St. Paul Fire & Marine Ins. Co. v. Cooper
| Decision Date | 09 November 1909 |
| Docket Number | Case Number: 235 |
| Citation | 25 Okla. 38,1909 OK 290,105 P. 198 |
| Parties | ST. PAUL FIRE & MARINE INS. CO. v. COOPER. |
| Court | Oklahoma Supreme Court |
¶0 INSURANCE--Conditions of Fire Policy--Waiver of Breach. One of the conditions of a fire insurance policy was that, in case of default in the payment of any note given for premiums, the company should not be liable for any loss occurring to the property mentioned therein during the continuance of such default. Held, there being a breach of such condition, the company may waive the forfeiture by acts from which an intention so to do may be fairly inferred. Held, further, that the acceptance of the cash premium by the general agents of the company after default and notice of loss operates as a waiver of the forfeiture, and renders the company liable on the policy from its inception as though the premium notes had been paid when due.
Error from District Court, Kay County; W. M. Bowles, Judge.
Action by Rosanna Cooper against the St. Paul Fire & Marine Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.
J. D. Houston and C. H. Brooks, for plaintiff in error.--Citing: Williams v. Albany Ins. Co., 19 Mich. 451; Equitable Ins. Co. v. Harvey (Tenn.) 40 S.W. 1092; Houston v. Insurance Co. (Neb.) 89 N.W. 635; Insurance Co. v. Coleman (Dak.) 43 N.W. 693; Insurance Co. v. Garbacz (Neb.) 67 N.W. 864; Insurance Co. v. Bachelder, 49 N.W. 217; Curtain v. Insurance Co. (Cal.) 21 P. 370; McElroy v. Insurance Co., 65 N.Y. 888; 16 A. & E. Enc. L. 861.
Thomason & Meyer and C. L. Pinkham, for defendant in error.--Citing: Smith v. Insurance Co. (Dak.) 23 N.W. 355; Schoenman v. Insurance Co. (Neb.) 20 N.W. 284; Insurance Co. v. Lansing (Neb.) 20 N.W. 22; Joliff v. Insurance Co., 39 Wis. 111; Garlock v. Insurance Co. 138 Ill. 215; 19 Cyc. 800; Insurance Co. v. Shader, 93 N.W. 972; Insurance Co. v. Raddin, 120 U.S. 506; Insurance Co. v. Chew (Ind. App.) 38 N.E. 417; Insurance Co. v. Liggett, 16 Ind. App. 598; Insurance Co. v. Bowen, 40 Mich. 149; Insurance Co. v. Moreland (Ky.) 56 S.W. 653; Insurance Co. v. Reppond (Tex.) 81 S.W. 1012.
¶1 On February 11, 1907, Rosanna Cooper, defendant in error, plaintiff below, sued the St. Paul Fire & Marine Insurance Company in the district court of Kay county on a policy issued by it on February 12, 1906, insuring plaintiff, against loss by fire for five years, a dwelling house and furniture and a stone barn and some grain on certain premises situate in said county. There was a trial to the court on an agreed statement of facts and judgment for plaintiff for total loss of said barn and grain in the sum of $ 1,000, with interest and costs. To review said judgment defendant brings the case here.
¶2 Of even date therewith, and as payment for the premium on said Policy and a cyclone policy covering the same property, plaintiff executed and delivered to Van Arsdale & Osborne, general agents for defendant, her three promissory notes of $ 31.50 each, the first due January 1, 1906, the second October 1, 1906, and the third January 1, 1907. One of the conditions contained in said policy was that:
"* * * This company shall not be liable for any loss or damage that may occur to any of the property therein mentioned while any note or obligation given to the company or its general agents, for the premium or any part thereof, remains due and unpaid."
¶3 This will be hereinafter called the "suspending clause," and is in effect repeated in said notes, which, among other things, provide:
¶4 The loss sued for occurred December 17, 1906, at which time two of said notes were due and unpaid. This is set up in defense of plaintiff's action, and said suspending clause invoked to escape liability. Said clause was a condition which the insurer had a right to make, and is valid and enforceable, and when, as here, it is made a part of the contract of insurance, the failure to pay said premium notes when due is a good defense to a suit on the policy to recover loss occurring during the time such premium notes thus remain due and unpaid. Continental Ins., etc., Co. v. Chew, 11 Ind. App. 330, 38 N.E. 417, 54 Am. St. Rep. 506, and cases cited. But this condition inserted in the contract for the benefit of the insurer may be waived, and that too by acts from which such intention may be fairly inferred. Has defendant so waived it? We think it has. As evidence thereof, the agreed facts disclose: That within a week after said loss the insurer notified plaintiff of its claim of nonliability therefor and refused to pay the same on the ground that said notes were due and unpaid at the time it occurred; that thereupon on January 12, 1907, plaintiff paid the said general agents at their office in Wichita, Kan., $ 102.35, the full amount of said notes, which, with full knowledge of said loss, was by said agents received and accepted and since retained, and said notes by them canceled and returned to plaintiff; that thereafter plaintiff furnished defendant proof of loss under oath at an expense to her of $ 5, which it has since retained without response save the answer in this suit. The trial court held, in effect, that acceptance of the cash premium by the general agents of the insurer, after default in payment of the premium notes and notice of the loss, operated as a waiver of said suspension clause and the forfeiture sought to be taken advantage of under it, and rendered the company liable on the policy from its inception. In so holding we see no error.
¶5 Smith v. St. Paul Fire & Marine Ins. Co., 3 Dak. 80, 13 N.W. 355, was a suit on an insurance policy issued by defendant to plaintiff covering, among other things, two horses. The consideration was the payment at maturity of certain promissory notes of even date payable at future periods. One of the conditions contained in said policy and premium notes was identical to the suspending clause above set forth. The loss occurred under said policy a few days after the first of said installment notes fell due and while it remained unpaid. Plaintiff after the loss, forwarded by letter to the general agents of defendant at Fargo the amount due on said note and notified him of the loss. The agent retained the money, canceled the note, returned it to plaintiff, and made no further reply. Thereafter plaintiff furnished proof of loss, as required by the policy, to which no response was made until after the action was brought, when in its answer defendant denied liability under the policy and alleged as defense plaint...
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