Phenix Ins. Co. v. Bachelder

• Decision Date: 01 July 1891
• Citation: 49 N.W. 217,32 Neb. 490
• Parties: PHENIX INS. CO. v. BACHELDER.
• Court: Nebraska Supreme Court

32 Neb. 490

49 N.W. 217

PHENIX INS. CO.

v.BACHELDER.¹

Supreme Court of Nebraska.

July 1, 1891.

Syllabus by the Court.

1. The policy of fire insurance contained a clause, if the assured failed to pay his premium note at the time specified, then the policy should cease to be in force, and remain null and void during the time the note remains unpaid after maturity, and that the payment of the premium revives the policy, and makes it good for the balance of the term. The premium note matured before the loss complained of, and had never been fully paid. Held, that the company was not liable.

2. Such stipulation in the policy can be waived by the company, but such waiver must be pleaded and proved, to avail the insured.

3. The absolute denial by the insurer of all liability, on the ground that the policy was not in force at the time of the loss, is a waiver of the preliminary proofs of loss required by the policy.

Error to district court, Sarpy county; CLARKSON, Judge.Fawcett & Sturdevant and John P. Davis, for plaintiff in error.

A. U. Hancock, for defendant in error.

NORVAL, J.

This is an action on a policy of fire insurance. There was a trial to a jury, which resulted in a verdict for the plaintiff. The defendant brings the case into this court by petition in error. We are asked to reverse the case upon two grounds: First, the failure of the defendant in error to pay his past-due premium note; second, failure of the insured to furnish the preliminary proofs of loss according to the terms and conditions of the policy. We will briefly examine the points in the order named. The policy provides that, “in case the assured fails to pay the premium note or order at the time specified, then this policy shall cease to be in force, and remain null and void during the time said note or order remains unpaid after its maturity, and no legal action on the part of this company to enforce payment shall be construed as reviving the policy. The payment of the premium, however, revives the policy, and makes it good for the balance of the term.” The consideration for issuing of the policy was $10 cash, and the payment at maturity of the assured's promissory note for $22. The note was payable on the 1st day of August, 1889. No part of the $22 was paid when due, and a balance of $7 remained unpaid at the time of the fire. The defendant in error held two policies from this company, one for $100, and the other for $1,000, on buildings which were detached when the policies were issued; but the buildings were subsequently joined together. A new policy, the one in suit, was issued covering the building thus formed. Evidence was introduced tending to show that one Weymouth, a soliciting agent of the company, agreed to cancel the old policies and apply the unearned premiums on the new. It is claimed by the plaintiff in error that the agent had no power to make any such agreement. Conceding, as is claimed by the insured, that the company is bound thereby, and that the unearned premiums on the old policies should be credited upon the note, there would remain unpaid a small balance, and he would still be in default at the time of the fire. It is obvious that the failure to pay the premium note at maturity suspended the policy until payment was made. It could have been revived, for the balance of the term, by making full payment at any time before the loss. This, as we have seen, he failed to do. True, after the maturity of the note, he paid $15 thereon, but this did not give him the right to avail himself of the benefits of the contract of insurance. Nothing short of full payment, or a waiver of the stipulation in the policy, could have the effect to remove the suspension caused by the failure to pay the note. The clause referred to is not unreasonable. It is but fair and just that, while...