Loyal Protective Insurance Company v. Walker

• Decision Date: 27 November 1916
• Docket Number: 9
• Citation: 189 S.W. 1050,126 Ark. 296
• Parties: LOYAL PROTECTIVE INSURANCE COMPANY v. WALKER
• Court: Arkansas Supreme Court

189 S.W. 1050

LOYAL PROTECTIVE INSURANCE COMPANY v. WALKER

126 Ark. 296

No. 9

Supreme Court of Arkansas

November 27, 1916

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

Judgment affirmed.

F. G Bridges and W. T. Wooldridge, for appellant.

1. Appellee failed to pay the premium and his policy lapsed. He had notice. He was reinstated subject to all the conditions contained in the new contract. His sickness existed within thirty days from the reinstatement of the policy, and it was error to refuse instruction No. 1, asked by appellant. 122 Ark. 219; 64 S.E. 180; 112 P. 1106; 166 S.W. 17; 98 Ark. 421; 74 Id. 507; 75 Id. 25.

2. The court erred in giving instruction No. 1 asked by appellee. There was no evidence to justify the court in submitting the question of waiver of the forfeiture of the policy to the jury.

Geo. H Holmes, for appellee.

1. The policy had not lapsed, but if so, it had been reinstated. The company agreed to give thirty days' notice and failed. The doctrine of waiver and estoppel applies to insurance contracts. 122 Ark. 219; 67 Ark. 584; 72 Id. 365. After a company has once waived its right to declare a forfeiture, it can not subsequently avoid the effect of such waiver. 53 Ark. 494; 19 Cyc. 872.

2. The uniform custom of an insurance company to give notice relieves the policy holders from paying dues till notice is given. 48 S.W. 968; 98 Ark. 421; 67 Wisc. 422.

3. The contract does not provide that it shall not be liable for sickness commencing within thirty days after reinstatement. The provision as to sickness within thirty days after reinstatement is unreasonable. 92 N.Y. 846; 78 Id 85; 3 Daly 20.

4. Appellant is liable for damages and attorneys' fee provided by Act 115, Acts 1905. 94 Ark. 578; 88 Id. 556; 103 Id. 1.

3. There is no error in the instructions. 15 Wash. 627; 141 U.S. 213.

OPINION

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 thirty 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 1, June 1, September 1 and December 1, 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 lead 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 failed to notify plaintiff before the installment falling due on December 1 became due and that as soon as he was notified that said installment was due, he immediately remitted therefor and defendant received and accepted said remittance in payment of the 'call' or installment due December 1, 1913, then it is liable and your verdict should be for the plaintiff."

The correctness of this instruction presents the controlling question in ...