Shimp v. Cedar Rapids Ins. Co.

• Decision Date: 28 March 1888
• Parties: SHIMP v. CEDAR RAPIDS INS. CO.
• Court: Illinois Supreme Court

124 Ill. 354

16 N.E. 229

SHIMP

v.CEDAR RAPIDS INS. CO.

Supreme Court of Illinois.

March 28, 1888.

Appeal from appellate court, Third district.

J. S. Wolfe, for appellant.

Gere & Philback, (C. J. Deacon, of counsel,) for appellee.

MULKEY, J.

This was an action of assumpsit brought by the appellant Julia C. Shimp, in the Champaign circuit court against the Cedar Rapids Insurance Company to recover a loss by fire under a policy issued to her by the company, June 16, 1882, on her dwelling, furniture, etc., to the amount of $1,500. The premium was $21.50, $10 of which was paid in cash, and a note given for $11.50, payable June 1, 1883, with this provision in it: ‘This note is given for insurance, and in case of loss under the policy for which it is given becomes due and payable on the date of such loss,’-which we understand to mean that if a loss occurred for which the company was liable the note was to become due on the date of such loss. The property covered by the risk was destroyed by fire on the 18th of February, 1883. Suit was commenced on the 12th of April following, and the premium note was paid by appellant to appellee through a bank on the 28th day of May, 1883, being a month and a half after the suit was commenced. The plaintiff having been unsuccessful in both the lower courts, brings the case here for review.

Appellee set up as a defense in the trial court certain breaches of the conditions in the policy. Appellee's counsel do not question the truth of the facts constituting the defense thus set up, but insist that the company is not in a position to avail itself of that or any other defense by reason of its having accepted payment of the premium note after having obtained full knowledge of all the facts and circumstances constituting the defenses made to the action. Indeed, it is conceded that if the company has not waived the right to set up the defenses relied on by reason of having accepted such payment, the judgments below are right and ought to be affirmed. A recurrence to a few well-settled principles it is believed will relieve the question thus presented of all real or apparent difficulty. That the company had a complete defense to the action on the policy at the time the suit was commenced is admitted. But this, like most other rights, is one that might be abandoned, released, or waived. There is no pretense that it has been released, intentionally abandoned, or expressly waived; so that if there has been a waiver at all, it is what is known to the law as an implied waiver. This class of waivers is frequently to be met with in the law of insurance. Thus, where the assured has been guilty of some breach or breaches of the conditions of the policy, and the insurer, with full knowledge thereof, during the pendency of the risk, accepts a maturing premium, or does any other act recognizing the continued existence and validity of the policy, such acceptance or other act...