Walls v. Home Ins. Co.

• Decision Date: 28 January 1903
• Citation: 114 Ky. 611,71 S.W. 650
• Parties: WALLS v. HOME INS. CO. OF NEW YORK.
• Court: Kentucky Court of Appeals

71 S.W. 650

114 Ky. 611

WALLS v. HOME INS. CO. OF NEW YORK.

Court of Appeals of Kentucky.

January 28, 1903

Appeal from circuit court, Washington county.

"To be officially reported."

Action by J. W. Walls against the Home Insurance Company of New York. From a judgment for defendant, plaintiff appeals. Reversed.

John W Lewis, for appellant.

W. C McChord, for appellee.

O'REAR J.

Appellant Walls, effected a contract of insurance upon his dwelling house and contents with appellee insurance company for a term of years upon the plan of paying the premiums in annual installments. The first premium was paid in advance for the first year's insurance. Appellant when taking the insurance, executed to appellee a note for $30 for the aggregate of the four remaining years of the term. An equal part, to wit, $7.50, was to be paid the 1st day of June of each year, and in advance for the insurance for that year. The note contained this additional stipulation: "And it is hereby agreed that, in case any one of the installments herein named shall not be paid at maturity, or if any single payment promissory note (acknowledged as cash or otherwise) given for the whole or any portion of the premium for said policy shall not be paid promptly when due, this company shall not be liable for loss during such default, and the said policy shall lapse until payment is made to this company at the Western Farm Department at Chicago; and, in the event of nonsettlement for time expired as per terms on short rates, the whole amount of installments or notes remaining unpaid on said policy may be declared earned, due, and payable, and may be collected by law." The policy contained an expression of the same idea, and other conditions relating thereto in this language: "But it is expressly agreed that this company shall not be liable for any loss or damage that may occur to the property herein mentioned while any installment of the installment note given for the premium upon this policy, remains past due and unpaid, or while any single payment promissory note (acknowledged as cash or otherwise) given for the whole or any portion of the premium remains past due and unpaid. Payments of notes and installments thereof must be made to the said Home Insurance Company at its Western Farm Department office in Chicago, Illinois, or to a person or persons especially authorized to collect the same for said company. *** The company may collect, by suit or otherwise, any past-due notes or installments thereof, and a receipt from the said Chicago office of the company for the payment of the past-due notes or installments must be received by the assured before there can be a revival of the policy, such revival to begin from the time of such payment. *** This company reserves the right to cancel this policy or any part thereof by tendering to the assured the unearned pro rata premium, after due notice to that effect, either by mail addressed to the assured at his, her, or their post-office address as named in this policy or otherwise. The assured may also cancel when the premium or note or obligation given for such premium has been actually and fully paid in cash, in which case the company shall retain the expenses of writing, procuring, and taking the risk, and the usual short rates from the date of the policy up to the time it is received for such cancellation." There is contained in the policy this further expression: "This contract being based upon the mutual good faith of the parties hereto, it is agreed," etc. The installment due June, 1900, was not paid. Appellee retained the note. Appellant retained the policy. Appellee wrote appellant to pay the installment after it was due and default had been made. In the following July appellee had sent the note to its agent at Springfield, near appellant's post-office address, with instructions to collect the note. The agent sent appellant three notices. The agent's evidence on this point is as follows: "Q. Did you notify Mr. Walls? A. I sent him three notices. Q. What was the substance of them? A. That his installment due on the 1st of June, 1900, was in arrears, and that, if he would send me the money, I would have the company send him a receipt. That is about the way I send the first two notices usually. I always use about the same form. I don't remember the words exactly. In the last notice I sent him in January, I reckon,--I notice that I turned the note back in to the company about the latter part of January. I have...