Lindsey v. Home Ins. Co.

• Decision Date: 21 June 1932
• Parties: LINDSEY v. HOME INS. CO.
• Court: Kentucky Court of Appeals

51 S.W.2d 924

244 Ky. 580

LINDSEY v. HOME INS. CO.

Court of Appeals of Kentucky

June 21, 1932

Appeal from Circuit Court, Warren County.

Action by C. W. Lindsey against the Home Insurance Company. Judgment for defendant, and plaintiff appeals.

Affirmed.

Logan &amp Logan, of Bowling Green, for appellant.

Thomas & Bell, of Bowling Green, and Gordon, Laurent & Ogden and T M. Galphin, Jr., all of Louisville, for appellee.

WILLIS J.

C. W Lindsey sued the Home Insurance Company upon a fire insurance policy. The defense was rested upon the fact that the fire occurred while the insurance was in suspense because of failure of the insured to pay an installment of a note given for the premium.

The policy and the premium note both provided that the protection should be suspended during default in the payment of any part of the premium note. The facts were stipulated, and the plaintiff sought to excuse his failure to pay the past-due premium by the act of a bank clerk in failing to pay plaintiff's check given for the purpose. The case was submitted to the circuit court on the facts stipulated, and judgment was rendered for the defendant. The plaintiff has prosecuted an appeal.

The facts necessary to be noticed may be shortly summarized. The policy was to run five years, and the premium was evidenced by a note to be paid in five equal annual installments. The first installment was paid, but the next one, which fell due on September 1, 1928, was omitted. When it was eighteen days past due, the insurance company wrote to a mortgagee in whose favor any loss was payable, stating that ten days would be allowed for the payment of the portion of the premium then past due. Lindsey apparently learned of the letter, and within ten days from the date of that letter he mailed his personal check to the insurance company at Chicago to pay the premium. The check was deposited for collection, and it was sent through the regular channels for that purpose. The bank on which the check was drawn returned it unpaid, and when it reached the insurance company the fire had occurred. The company then returned to the insured both the check and the premium note, and declined to recognize liability for the loss which had occurred while the premium was unpaid and the policy was in suspense.

Lindsey was a regular customer of the bank on which the check was drawn, and had arranged with its cashier to honor his check whether or not he had funds on deposit, but in the temporary absence of the cashier his assistant returned the check because of insufficient funds on deposit to the credit of Lindsey to pay it. The assistant was not aware of the arrangement the cashier had made. A week or ten days later the cashier wrote to the insurance company to return the check, stating that it would be paid, but the company had then sent the check and premium note back to Lindsey.

It is first argued that the pleadings failed to present the issues of waiver and estoppel relied on by appellant because no reply was filed to the answer, and no waiver or other avoidance of the defense interposed was advanced by the pleadings. The stipulation of the facts obviated the necessity for further pleading, and entitled the parties to rely upon any right arising out of the facts stated. When the judgment of a court is invoked upon a particular state of facts, appropriate pleadings on behalf of all parties to justify consideration of the facts stated are presumed to be present. In such a situation there is no...