Cont'l Ins. Co. of New York v. Chew

• Decision Date: 19 October 1894
• Citation: 11 Ind.App. 330,38 N.E. 417
• Parties: CONTINENTAL INS. CO. OF NEW YORK v. CHEW.
• Court: Indiana Appellate Court

11 Ind.App. 330

38 N.E. 417

CONTINENTAL INS. CO. OF NEW YORK

v.CHEW.

Appellate Court of Indiana.

Oct. 19, 1894.

Appeal from circuit court, Henry county; E. H. Bundy, Judge.

Action by Prudence Chew against the Continental Insurance Company of New York. There was a judgment for plaintiff, from which defendant appeals. Modified.Thos. Baker and Brown & Brown, for appellant. L. P. Mitchell and M. E. Forkner, for appellee.

GAVIN, J.

The appellee recovered judgment against appellant upon a fire insurance policy. The premium was $15, payable $3 in cash and $3 annually, in advance, a note for the deferred payments being given. The policy provides that the company shall not be liable for any loss occurring while any part of the premium is overdue and unpaid. The note contains a provision of the same import. It is well settled that provisions of this kind are valid and enforceable, and that under them the failure to pay the premium when due is a sufficient defense to the action upon the policy to recover for a loss happening during the time when such premium is thus overdue and unpaid. Insurance Co. v. Hawley, 60 Ind. 515;Insurance Co. v. Leonard, 80 Ind. 515;Insurance Co. v. Dorman, 125 Ind. 189, 25 N. E. 213. The establishment of this rule does not, however, by any means foreclose the company from waiving the right which is thus given it, nor is there anything in the decisions of the various cases which we have cited which forbids such waiver. Although the company has a right to rely upon such default by the insured as a defense, if it, with knowledge of a loss, accepts the premium, it thereby waives the forfeiture, and restores the policy to its full force and effect. Such acceptance does not simply revive the policy as to the future, but it thereby restores to it its power and force from the beginning. Whatever may be the holdings in some jurisdictions, the question cannot be regarded as an open one in Indiana. It has received quite a full and thorough investigation at the hands of our supreme court; and in an opinion by Elliott, J., it was adjudged that in such cases the insurance company could not take the benefit without assuming the burden, but must, if it accept the premium, respond for the loss. Insurance Co. v. Tomlinson, 125 Ind. 84, 25 N. E. 126. The principle of waiver asserted in this case has been approved by the same court in Insurance Co. v. Custer, 128 Ind. 25, 27 N. E. 124, and Replogle v. Insurance Co., 132 Ind. 360, 31 N. E. 947. To the same effect are Joliffe v. Insurance Co., 39 Wis. 111;Smith v. Insurance Co., 3 Dak. 80, 13 N. W. 355;Cohen v. Insurance Co., 67 Tex. 325, 3 S. W. 296

In the application, in answer to the question, it was stated that the insured held title by a warranty deed. An answer and the evidence shows that this was not strictly true, but that she held title by inheritance from her husband, who had a warranty deed, and died intestate, seised of the property, leaving, as his heirs, his widow and several of their children. It is claimed that this statement of her title was a warranty, the breach of which voids the policy. A careful examination of the terms of both application and policy leaves it at the most extremely doubtful whether there is any warranty of this fact at all. Insurance Co. v. Rundell (Ind. App.) 34 N. E. 588;Insurance Co. v. Pauley (Ind. App.) 35 N. E. 190. Passing this question, however, if the statement be regarded as a warranty, the reply and the evidence show that the facts concerning the title were well known to the agent who took the application, and that true answers were made to the questions by the appellee, who could not write, but that the agent who wrote the application, probably through some misconception as to the force and purport of the question, wrote an incorrect answer, of which appellee had no actual knowledge. Under such circumstances, the company must bear the results of the fault of its own agent. Howe v. Society (Ind. App.) 34 N. E. 830;Insurance Co. v. Lorenz (Ind. App.) 33 N. E. 444;Insurance Co. v. Leon (Ind. Sup.) 37 N. E. 584;Bowlus v. Insurance Co., 133 Ind. 106, 32 N. E. 319;Rogers v. Insurance Co., 121 Ind. 570, 23 N. E. 498;Steele v. Insurance Co., 93 Mich. 81, 53 N. W. 514;Robison v. Insurance Co., 93 Mich. 533, 53 N. W. 821;Wich v. Insurance Co. (Colo. App.) 31 Pac. 389;McMurray v. Insurance Co. (Iowa) 54 N. W. 354. We find nothing in Robinson v. Glass, 94 Ind. 211, which controverts this proposition.

No “proofs” of loss were made, as required by the terms of the policy, but the complaint alleges a waiver by the denial of liability through appellant's general agent...