Home Protection of North Alabama v. Avery

• Decision Date: 07 December 1888
• Citation: 85 Ala. 348,5 So. 143
• Parties: HOME PROTECTION OF NORTH ALABAMA v. AVERY.
• Court: Alabama Supreme Court

5 So. 143

85 Ala. 348

HOME PROTECTION OF NORTH ALABAMA v. AVERY.

Supreme Court of Alabama

December 7, 1888

Appeal from circuit court, Tallapoosa county; JAMES W. LAPSEY Judge.

Action by A. E. Avery against the Home Protection of North Alabama upon an insurance policy.Judgment for plaintiff.Defendant appeals.

H A. Garrett and J E. Cobb, for appellant.

J M. Chilton, for appellee.

STONE C.J.

It is shown in the record before us that the appellee, a married woman, took out three policies in the appellant corporation a fire insurance company.Two of them were against losses by fire or lightning, and the third one against losses by storms.Only one of the policies is before us, and it is the foundation of the present action.It bears date November 27 1883, was to run five years from date, and was based on a gross premium of $44; one-fifth of which ($8) was paid in advance, and the remaining four-fifths were to be paid in installments of the same amount, on the 15th day of March, severally, in the years 1885, 1886, 1887, and 1888.This policy insures two separate barns, with their contents of hay and grain, each separately valued.The number of this policy is 50,835.The barns and their contents were destroyed by fire, December 4, 1885.The defense was rested alone on the fact, not disputed, that the assured had failed to pay the installment of premium ($8.80) due March 15, 1885.One clause of the policy of insurance is in this language: "This company shall not be liable for any loss or damage under this policy, if default shall have been made in the payment of any installment of premium due by the terms of the installment note.On payment by the assured of all installments of premiums due under this policy, and the installment note given thereon, the liability of this company on this policy shall again attach, provided written consent of the secretary of this company be first obtained; and the policy [shall] be in force from and after such payment, unless this policy shall be void and inoperative from some other cause.But this company shall not be liable for any loss happening during the continuance of such default of payment.*** It is further provided that no attempt, by law or otherwise, to collect any note given for the cash premium, or any installment of premium due upon any installment note, shall be deemed a waiver of any of the conditions of this policy, or shall be deemed in any manner to revive the policy; but upon payment by the assured or his assignee of the full amount due upon such note and costs, if any there be, this policy shall thereupon be in full force, unless the same be inoperative or void from some other cause than the non-payment of note."The application for the policy, and which is made a part of the contract of insurance, contains a stipulation similar to that above.It is contended for appellee that the insurance company waived all ground of forfeiture in this case, and several grounds are urged in support of this contention: First, it is claimed that it was the custom of the insurance company to notify its customers when their premium notes fell due, and that it failed to do so in this case; second, that the company never gave notice of any claim that the policy was forfeited until after the destruction of the property by fire; third, that, after the company had notice of the loss, it informed the assured, by letter from its secretary, that its adjuster would be around soon, and adjust the amount of the damage.Testimony was offered tending to show it was the custom of the appellant insurance company to give notice to its customers when their installments of premium would mature.There was testimony that such had been the practice of this company in prior dealings with the appellee, and with other persons who held its policies; and there was testimony, not denied, that the Home Protection Company had given notice of the time when premiums would mature on the other two policies held by the appellee, and that such maturing premiums had been promptly...