Limerick v. Home Ins. Co.

• Decision Date: 03 December 1912
• Citation: 150 Ky. 827,150 S.W. 978
• Parties: LIMERICK v. HOME INS. CO.
• Court: Kentucky Court of Appeals

150 S.W. 978

150 Ky. 827

LIMERICK v. HOME INS. CO.

Court of Appeals of Kentucky.

December 3, 1912

Appeal from Circuit Court, Grant County.

Action by R. E. Limerick against the Home Insurance Company. From a judgment for defendant on instructed verdict, plaintiff appeals. Reversed and remanded.

O. S Hogan, of Frankfort, and Clore, Dickerson & Clayton, of Cincinnati, Ohio, for appellant.

A. G De Jarnette, of Williamstown, and Flexner & Gordon, of Louisville, for appellee.

HOBSON C.J.

On April 15, 1908, R. E. Limerick insured his dwelling house its contents, and a barn in the Home Insurance Company for five years; the premium to be paid in five annual installments. The insurance on the barn was $500. At the time of the issual of the policy he made a cash payment and gave his note for four annual installments payable May 1, 1909 1910, 1911, 1912. The installment of the premium note, which came due on May 1, 1911, was not paid when due, and had not been paid on June 5, 1911, when the barn covered by the policy was struck by lightning and destroyed by fire. The policy contained this provision: "But it is expressly agreed that this company shall not be liable for any loss or damage that may occur to the property herein mentioned while any installment of the installment note, given for premium upon the policy, remains past due and unpaid; or while any single payment, promissory note (acknowledged as cash or otherwise) given for the whole or any portion of the premium, remains past due and unpaid. Payments of notes and installments thereof must be made to the said Home Insurance Company at its western Farm Department office in Chicago, Illinois, or to a person or persons expressly authorized to collect the same for said company. And it is expressly agreed that the failure of the assured to receive the notices that may be sent by the company of the approaching maturity of the premium note or notes, or any installment thereof, shall not operate to render the company liable for any loss or damage while such note or notes, or installment thereof, remain overdue and unpaid. The company may collect, by suit or otherwise, any past due notes or installments thereof, and a receipt from the said Chicago office of the company for the payment of past-due notes or installments must be received by the assured before there can be a revival of the policy, such revival to begin from the time of said payment, and in no case to carry the insurance beyond the end of the original term of this policy."

A similar provision was contained in the application signed by the insured and in the note which he executed. On June 1, 1911, the company by its agent wrote the insured the following letter: "Falmouth, Kentucky, June 1, 1911. Doctor R. E. Limerick, Corinth, Ky.--Dear Sir: Say, doctor, the Home Insurance Company has mailed your installment note to me for collection. So please send me your check as soon as you receive this notice for $28.00 payable to the Home Insurance Company of New York and I will send it in with the note to the company. So please attend to this at once and oblige, Yours very truly, A. G. Meador." This letter was received by Dr. Limerick on June 5th while the barn was burning. He thereupon mailed the agent a check for the amount of the note, which was in due time received by the agent and returned to the insured on the ground that the barn was burned when the check was sent, and the company was not liable. This suit followed. At the conclusion of the evidence for the plaintiff which showed these facts, the circuit court instructed the jury peremptorily to find for the defendant. The plaintiff's petition having been dismissed, he appeals.

In Walls v. Home Ins. Co., 114 Ky. 611, 71 S.W. 650, 24 Ky Law Rep. 1452, 102 Am. St. Rep. 298, a similar policy had been issued, and the insured had failed to pay one of the installment notes. In that case, as here, the insurance company had demanded payment of the full amount of the installment long after it was due, and it was held that the...