Loyal Protective Ins. Co. v. Walker

• Decision Date: 27 November 1916
• Docket Number: (No. 9.)
• Citation: 189 S.W. 1050
• Parties: LOYAL PROTECTIVE INS. CO. v. WALKER.
• Court: Arkansas Supreme Court

189 S.W. 1050

LOYAL PROTECTIVE INS. CO. v. WALKER.

(No. 9.)

Supreme Court of Arkansas.

November 27, 1916.

Appeal from Circuit Court, Cleveland County; Turner Butler, Judge.

Action by Charles L. Walker against the Loyal Protective Insurance Company. Judgment for the plaintiff, and defendant appeals. Affirmed.

Bridges & Wooldridge, of Pine Bluff, for appellant. Geo. H. Holmes, of Rison, for appellee.

SMITH, J.

This suit was brought by appellee to recover certain sick benefits under a policy of insurance issued to him by the appellant company.

In defense of this suit it is said that the policy had lapsed by reason of the nonpayment of the quarterly dues, and that, while the policy had been reinstated, the period of illness here sought to be compensated existed within 30 days of the reinstatement, a condition against any liability for which the policy had provided.

Appellee insists that he had the right to recover as a reinstated policy holder; but he also says that his policy had never lapsed. Of course, if he is right in his last contention, we need not consider whether he is also right in his first.

The policy or certificate of membership recited that the premium of $7 was payable quarterly on the first business days of March, June, September, and December in each year, and the payment of which appellee is said to have made default was one due December 1, 1913.

It is not shown whether the by-laws of the order contained any provision for giving notice of assessments to the members; but the policy provided that the premiums should be paid on the first business days of March, June, September, and December, and also provided that failure to pay any premium upon the appointed day should terminate the contract, except as to any claim which had accrued, but that the policy might be reinstated by the secretary in his discretion, subject to all the provisions thereof.

In connection with his application for membership, appellee was given a receipt for his initial payment, which contained the following recitals:

"If accepted, your next payment will be due December, 1913. Premiums are payable quarterly in advance on or before March 1st, June 1st, September 1st, and December 1st, 30 days' notice being given."

In the letter to appellee notifying him of his acceptance as a member, written by the secretary of the insurance company for that purpose, the following statement appears:

"Your quarterly premiums will be due on the first business day of March, June, September, and December in each year and notices for same will be sent you thirty days in advance."

Appellant not only admitted its custom to send this written notice, but offered proof to show that the notice had, in fact, been sent appellee of this particular payment. However, that question was submitted to the jury under an instruction which told the jury to find for the company if they found such notice had been sent.

The court gave, over appellant's objection, the following instruction:

"The jury are instructed further that the stipulation requiring payment of premiums on the dates mentioned in the policy is a valid one and binding upon the plaintiff, unless the defendant by its conduct has waived its right to insist upon a forfeiture of the policy by reason thereof. You are therefore instructed that, if the defendant company by its acts or conduct led the plaintiff to believe that he would have notice before the maturity of his installments of the date upon which they would fall due, and plaintiff relied upon it to give said notice, and the defendant...