Hartford Fire Ins. Co. v. Jones
| Decision Date | 28 October 1926 |
| Docket Number | 4 Div. 288 |
| Citation | 215 Ala. 107,110 So. 30 |
| Parties | HARTFORD FIRE INS. CO. v. JONES. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Pike County; W.L. Parks, Judge.
Action by W.B. Jones against the Hartford Fire Insurance Company on a policy of fire insurance. From a judgment for plaintiff defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and rendered.
Wilkerson & Brannen, of Troy, and Steiner, Crum & Weil, of Montgomery for appellant.
Ballard & Brassell, of Troy, for appellee.
It has been held by this and many other courts that the provisions of a fire insurance policy as set out in the defendant's special pleas 3 and 4 are binding and valid on the insured. Rose v. Citizens' Insurance Co., 210 Ala. 72, 97 So. 81. Indeed, this question is not seriously doubted in brief of appellee's counsel, who contend, however, that notwithstanding the provision that all of the installment notes should become due upon default of any one of them, and the assured would have a right to sue and recover upon all of them, that the bringing of a suit and recovery of a judgment upon same operated as a waiver of the forfeiture or to reinstate the policy retrospectively, and which said point is invoked by special replication to defendant's pleas 3 and 4.
The court is unequivocally committed to the soundness of the following quotation from 26 C.J. 328, § 410:
"When the policy contains a stipulation that it shall stand suspended during delinquency, but that the holder shall be liable for such delinquent assessment, or that the entire premium note shall be deemed earned upon default, the insurer does not waive the delinquency as a defense to any loss occurring during such periods by demanding or accepting premiums." Lett v. Liverpool & London & Globe Co., 213 Ala. 488, 105 So. 553.
As the loss occurred during the forfeiture or suspension of the policy, the subsequent attempt by the insurer to collect the premiums by suit or otherwise did not operate to reinstate the policy as of the time of the loss.
Appellee's counsel seek comfort from a reference in the opinion in the case of Rose v. Citizens' Insurance Co., 210 Ala. 72, 97 So. 81, to the Oklahoma case of Shawnee Co v. Cannedy, 36 Okl. 733, 129 P. 865, 44 L.R.A. (N.S.) 376, but the opinion did not approve or repudiate the holding in said Oklahoma case, as to have done so was not essential to the decision...
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