Cook v. Lamar Life Ins. Co
| Decision Date | 06 January 1930 |
| Docket Number | 27970 |
| Court | Mississippi Supreme Court |
| Parties | COOK v. LAMAR LIFE INS. CO |
1. INSURANCE. Where life insurer presented past-due note for premium, and insured refused to pay note, one claiming under insured could not insist on waiver of forfeiture.
Where life insurance company, being reasonably willing to waive default in payment, presented past-due note for premium, and insured refused to pay note, one claiming under insured could not insist that insurance company waived forfeiture, since position was that of positive active wrong in transaction.
2 INSURANCE. Life insurance is matter of contract. and such contracts are creatures of voluntrary assent or agreement.
Life insurance is a matter of contract, and such contracts are creatures of voluntary assent or agreement.
3. INSURANCE. Where life insurer offered to waive forfeiture but insured refused to accept by refusal to pay note, there was waiver of insurer's waiver.
Where life insurance company offered to waive forfeiture for nonpayment of note for premium by accepting payment of past-due note, it was an offer which insured could accept or reject, and when he refused to pay note he refused to accept offer, and thereby waived insurance company's waiver.
APPEAL from circuit court of Winston county HON. JOHN F. ALLEN, Judge.
Action by Mrs. Maggie R. Cook against the Lamar Life Insurance Company. From a judgment for defendant, plaintiff appeals. Affirmed.
Affirmed.
Reily & Parker, of Meridian, for appellant.
Without regard to how clear and unmistakable could be the terms of any insurance policy fixing the right of the insurer to declare a forfeiture, it cannot be said that the insurer could thereby deprive itself of the right and power to waive such a forfeiture.
New York Life Ins. Co. v. O'Dom, 100 Miss. 292, 56 So. 379; London Guarantee & Accident Co. v. Miss. Central R. R. Co., 52 So. 787.
The rule has become generally accepted that even though provision is made in a note executed by the insured or any receipt for such note given for a premium that the note, receipt and contract of insurance shall be absolutely void if the note is not paid at maturity, the policy itself containing no like ground or right of forfeiture, such provision is general and is itself without effect to terminate the insurance.
Coughlin v. Reliance Ins. Co., 201 N.W. 920; Manhatten Life Ins. Co. v. Packer, 85 So. 298.
By retaining the notes and attempting to collect the full premium for the entire term, the company waived the forfeiture and is liable far the amount of the policy.
Lemerick v. Home Ins. Co. of N. Y., 150 S.W. 978; Walls v. Home Ins. Co., 71 S.W. 650; Security Life & Annuity Co. v. Underwood, 150 S.W. 293; Shawnee Mutual F. Ins. Co. v. Cannady, 129 P. 865; Williams v. Empire Mutual A. & L. Ins. Co., 68 S.E. 1082.
A claim of a forfeiture for nonpayment of a premium note is inconsistent with a subsequent demand for the payment of such note and a notice that if the note is not paid, suit will be brought thereon and that by so doing, a waiver of forfeiture is made.
Marden v. Hotel Owners Ins. Co., 39 A. S. R. 316.
Wells, Jones, Wells & Lipscomb, of Jackson, for appellee.
Conditions in policies as to forfeiture for nonpayment of premium on a specified day or within a specified time are valid, and enforceable in the absence of statutory provisions to the contrary or except so far as limited by statute; and the time fixed for payment is binding in the absence of fraud or mistake.
2 Joyce on Ins., sec. 1100, p. 2208; 2 Joyce on Ins., sec. 1103, p. 2215; New York Life, etc., v. Alexander, 122 Miss. 813, 85 So. 93; Wheeler v. Connecticut Mutual Ins. Co., 82 N.Y. 550, 37 Am. Rep. 597; New York Life Ins. Co. v. O'Dom, 100 Miss. 219, 56 So. 379.
In the absence of a statute, a contract made between the insured and the insurer, providing that a policy shall cease to be in effect, if a note, which has been given for the payment of a premium on the policy, is not paid at maturity, is a valid contract, and no affirmative action by the insurer cancelling the policy is necessary.
Iowa Life Ins. Co. v. Lewis, 23 S.Ct. 126, 187 U.S. 335, 351, 47 L.Ed. 204; Manhatten Life Ins. Co. v. Wright, 126 F. 82, 85, 61 C. C. A. 138; Lefler v. New York Life Ins. Co., 143 F. 814, 74 C. C. A. 488; New York Life Ins. Co. v. Slocum, 177 F. 842, 847, 101 C. C. A. 56; Reed v. Bankers' Reserve Life Ins. Co. (C. C.), 192 F. 408, 411; Philadelphia Life Ins. Co. v. Hayworth (C. C. A.), 296 F. 339, 343; Wastun v. Lincoln, 12 F. Rep. (2d) 422; Duncan v. Mo. State Life, 160 F. 646, 87 C. C. A. 542; Marshall v. Mo. State, 148 Mo.App. 669, 129 S.W. 40; Iles v. Mutual Reserve, etc., 95 P. 522, 50 Wash. 49, 18 L.R.A. (N.S.) 902, 126 Am. St. Rep. 886; National Life Ins. Co. v. Manning, 86 S.W. 618, 38 Tex. Civ. App. 498; Stephenson v. Empire Life Ins. Co., 139 Ga. 82, 76 S.E. 592; Jefferson Mut. Ins. Co. v. Murry, 86 S.W. 813, 74 Ark. 507; Cohen v. Continental F. Ins. Co., 67 Tex. 325, 60 Am. Rep. 24, 3 S.W. 296; 25 L.R.A. (N.S.) 6; 3 Cooley's Briefs on the Law of Insurance, page 2724.
The rule that demand of the past due premium waives the forfeiture does not apply where the premium was earned before the default (Mandego v. Centennial Mut. Life Ass'n, 64 Iowa 134, 17 N.W. 656, 19 N.W. 877), or where the contract provides that the full premium shall be considered as earned by the default.
Laughlin v. Fidelity Mut. Life Ass'n, 8 Tex. Civ. App. 448, 28 S.W. 411; Union Central Life Ins. Co. v. Chowning, 8 Tex. Civ. App. 455, 28 S.W. 117; Sullivan v. Connecticut Indemnity Ass'n, 101 Ga. 809, 29 S.E. 41; Union Central Life Ins. Co. v. Berlin, 101 F. 673, 41 C. C. A. 592; Linn v. New York Life Ins. Co., 78 Mo.App. 192, 2 Mo.App. 201; Baker v. Union Life Ins. Co., 43 N.Y. 283, reversing S.Ct. 393; Cohen v. Continental Fire Ins. Co., 67 Tex. 325, 3 S.W. 296, 60 Am. Rep. 24; Fry v. Franklin Ins. Co., 3 Wkly. Law Bul. 161, 7 Ohio Dec. 442; 3 Cooley's Briefs on the Law of Ins., pages 2726, 2727; Robinson v. P. Fire Ins. Co., 18 Hun. (N.Y.) 395; Phoenix Ins. Co. v. Tomlinson, 125 Ind. 84, 25 N.E. 126, 9 L.R.A. 317, 21 Am. St. Rep. 203; Bloom v. State Ins. Co., 95 Iowa 359, 62 N.W. 810; Blackerby v. Continental Ins. Co., 7 N.Y. Law Rep. 653, 83 Ky. 574; Sharkey v. Hawkeye Ins. Co., 44 Iowa 540; Shultz v. Hawkeye Ins. Co., 42 Iowa 239; Mutual Fire Ins. Co. of Portland, Oregon, v. Maple, 38 L.R.A. (N.S.) 726, 727; Lehman v. Clark, 174 Ill. 279, 288, 43 L.R.A. 648, 51 N.E. 222, 225; 3 Joyce on Law of Insurance, section 1472a, page 2667; 3 Joyce on Law of Insurance, section 1670, page 2536; Union Central Life Ins. Co. v. Chowning, 8 Tex. Civ. App. 455, 456, 28 S.W. 117; Cohen v. Continental Life Ins. Co., 67 Tex. 325, 60 Am. Rep. 24, 3 S.W. 296.
When a note is given in payment of an insurance premium, and the...
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