Inter-Ocean Casualty Co. v. Anderson, 6 Div. 145.

• Decision Date: 13 January 1944
• Docket Number: 6 Div. 145.
• Citation: Inter-Ocean Casualty Co. v. Anderson, 245 Ala. 534, 17 So.2d 766 (Ala. 1944)
• Parties: INTER-OCEAN CASUALTY CO. v. ANDERSON.
• Court: Alabama Supreme Court

17 So.2d 766

245 Ala. 534

INTER-OCEAN CASUALTY CO. v. ANDERSON.

6 Div. 145.

Supreme Court of Alabama

January 13, 1944

Rehearing Denied May 18, 1944.

Appeal from Circuit Court, Jefferson County; Whit Windham Judge.

Count A of the complaint is as follows:

"Count A

"The plaintiff claims of the defendant One Thousand Three Hundred and Eighty Dollars ($1,380.00) due on a policy whereby the defendant on the 7th day of November, 1938 insured J.M Anderson against the loss of his life resulting solely from bodily injuries effected directly and independently of all other causes through accidental means.The plaintiff avers that the said J.M. Anderson lost his life solely from bodily injuries effected directly and independently of all other causes through accidental means, which death occurred on the 23rd day of March, 1942, of which the defendant has had notice.The plaintiff avers that she is the owner of said policy and is the beneficiary named therein."

The following are pleas of the defendant:

"10.Defendant says: that policy provides 'In consideration of the said premium paid in advance * * * the said company hereby insures J.M. Anderson, * * * hereinafter called the insured, subject to all provisions, conditions and limitations hereinafter contained, from 12 o'clock noon Standard time, at the place of residence of the Insured of the 3rd day of November 1938 until 12 o'clock noon Standard Time of the 1st day of Feb. 1939 and for such further periods as the payment of renewal premium will maintain this policy in force' and defendant says that insured paid said premiums and maintained said policy in full force and effect until the 1st day of Feb. 1942 when the insured failed or refused to pay the premium due on said date on said policy as provided by the above terms of said policy and permitted said policy to lapse for non-payment of premiums.And that said policy was not renewed or reinstated thereafter and was not in force or effect at the time of death of the insured on to-wit the 23rd day of March 1942.

"11.Defendant for further plea says: that the policy provided under Section 10(a)'This policy is issued for the term herein before specified and may be continued in force by the payment of the agreed premium by the insured * * * ' and that on to-wit the 1st day of Feb. 1942 the insured elected not to continue said policy in force by failing or refusing to pay the renewal premium due that date and permitted said policy to lapse for non-payment of premiums."

Plaintiff's replications to said pleas are as follows:

"ReplicationNo. 1

"Comes the plaintiff and for replication to pleas numbers 10 and 11 separately and severally, filed by the defendant says that as to any default in the payment of any premium or premiums on said policy of insurance the defendant waived same in this: that subsequent to the issue of said policy by the defendant to the insured and prior to his death the said insured for a long period of time, to-wit at least a year, and probably longer prior to his death did not pay said premiums on the due date thereof but the defendant by its habits of business and by its acts and by a custom of the defendant did receive from the insured past or overdue premiums, and did not exact prompt payment of the same from the insured so that by a course of conduct continuing a long time prior to his death, which plaintiff says was a year or more, caused and induced an honest belief reasonably founded in the mind of the insured that strict compliance with any stipulation for punctual payment of premiums would not be insisted upon and that payment could be delayed without any forfeiture of said policy resulting therefrom for a period of time as long as, or longer than the period of time from February 1st 1942 until the death of the insured on to-wit March 23, 1942.And the plaintiff says that by said course of conduct the defendant waived any right or power to forfeit said policy or to refuse payment of same on account of any default or delay by the insured in the payment of the premiums which the defendant has alleged in its said pleas, that the injured did not pay.And plaintiff hereby tenders to the defendant and pays into Court the sum of $9.75 plus interest of 70 cents, the amount of said premium due Feb. 1st, 1942 and the interest thereon.

"ReplicationNo. 3

"Plaintiff for further replication to pleas Nos. 10 and 11, separately and severally, says that the policy of insurance sued on provided for the payment of a quarterly premium of $9.75 per quarter.That insured had paid the premiums required from November 7-1938 in full including all the time between that date and a short time before his death.That said premium was fully paid up to at least the 1st day of February 1942 and on or before that date or some days thereafter the insured had delivered to the defendant a check for the premium on said policy which represented a sum sufficient to pay the premium and keep the said policy in force to a date beyond the date of the insured's death to-wit March 23-1943plaintiff says that the defendant customarily and for a period of over one year prior to death of insured accepted said checks after the due date of said premium on the policy sued on, and on many occasions, if said check for said premium after being delivered to the defendant was not paid promptly by the bank on which it was drawn, the defendant continued to hold said check in its possession and present it from time to time until same was paid, and in no instance did said defendant forfeit or attempt to forfeit said policy for and on account of the present non payment of said check or checks, and the plaintiff says that by said course of conduct the defendant waived its right to declare any forfeiture of said policy for and on account of any failure to promptly receive payment of any check or checks given defendant by the insured for payment of any premium or premiums on said policy.Plaintiff further says that by said course of conduct indulged and participated in by the defendantthe defendant created an honest belief in the mind of the insured reasonably founded that the defendant would not exact immediate payment of said check or checks and that said defendant, kept said check in its possession and presented the same to the bank for payment on one or more occasions prior to the death of the insured and on one occasion after his death, and that said act or acts on the part of the defendant were the same, in character and procedure which the defendant had customarily done or followed with reference to checks of the defendant for the payment of premiums which were not paid promptly upon presentation.The plaintiff says that by said course of conduct on the part of the defendant and by retaining possession of the insured's said check for the payment of the premium for said period of time which would have kept said policy in force the defendant waived its right and power to declare a forfeiture of said policy sued on for the alleged default in the payment of said premium or premiums, and is estopped to defend or refuse payment of said policy for and on account of the failure or delay of the insured to pay the premium or premiums promptly and the plaintiff hereby tenders to the defendant and into the Court the sum of $9.75 plus interest of $.70 cents the amount of said premiums due on February 1st, 1942 and the interest thereon."

The following charges were refused to defendant:

"(H)The court charges the jury that insurance companies have the same right as individuals to limit their liability and to impose whatever conditions they please upon their obligations not inconsistent with public policy and the courts are without right to add anything to their contracts or to take anything from them."

"(I)The court charges the jury that it is the duty of the courts and the jury that the terms of the insurance policy should be enforced and not a new or enlarged contract made for...