122 Ark. 219 | Ark. | 1916
(after stating the facts). (1) The undisputed evidence shows that when a policy holder in appellant company had been suspended and had made application for reinstatement that it took the superintendent having charge of such applications from two to four weeks to make .an investigation, .and that it took sometimes nearly a month for the company to act on and return it. The agent took about a month for investigation, sending the application and the policy on December 12, 1914, and the policy was. revived and .the insured reinstated on January 4, 1915. The notation on the back recited that it was revived subject to the conditions of the policy, and the policy itself contained the reinstatement clause copied in the statement, which recites the conditions upon which the policy would be reinstated, among them being “that in case death occurs from any cause whatever within five weeks from the date of su-ch reinstatement the company shall not be liable to any extent whatever on .account of such death. ’ ’
"We know of no ground of public policy which forbids an insurance company from including the above as one of the conditions upon which its policy holders who are ‘ ‘ out of benefit,” i. e., who have been suspended for nonpayment of premium, may be reinstated, nor is there any ground of public policy forbidding the policy holder from accepting the renewal of the policy and reinstatement upon these conditions. In the absence of some statute or some well recognized ground of public policy forbidding such conditions, the parties have a right to make them and are hound by them. See Conway v. Minn. Mut. Life Ins. Co., 112 Pac. 106.
(2) The suit filed by appellee in this case is to recover on the policy .and she is ‘bound by the terms of the contract. It is not a suit in equity to reform the contract, nor a suit against the appellant for negligence in failing to revive the policy at an earlier date than January 4,1915, the date when the insured was reinstated and the policy revived. Appellee, having grounded her right of action on the policy, under its plain provisions, is not entitled to recover.
This court has often held that the doctrine of waiver and estoppel applies to insurance contracts,'and that these principles will be liberally applied when it is necessary to prevent injustice and fraud being perpetrated ¡by insurance companies upon their policy holders, when the latter have been misled or imposed upon by the agents of such companies. Forfeitures of insurance policies ■are not favored in law, and insurance companies may 'be estopped from claiming such forfeitures by the ¡acts of their agents towards the policy holders. This is familiar doctrine. See German Ins. Co. v. Gibson, 53 Ark. 494; Phoenix Ins. Co. v. Flemming, 65 Ark. 54; Ark. Mut. Fire Ins. Co. v. Claiborne, 82 Ark. 150; Queen of Arkansas Ins. Co. v. Forlines, 94 Ark. 227; Lord v. Des Moines Fire Ins. Co., 99 Ark. 476. But these well established doctrines of waiver and estoppel, invoked by the learned counsel for the appellee, have no application to the undisputed facts of this record. There was nothing done or said by the superintendent of the appellant to lead the insured to believe that the insured would be reinstated and the policy revived upon any other conditions than those mentioned in the reinstatement clause of the policy. There was nothing to mislead the policy holder or to induce her to believe that her policy would be revived from the day that she made application therefor or at any earlier date than was usual in such cases. Having had the policy in her possession, she must be -held to have been familiar with the reinstatement clause therein, which plainly declares that the company would not be liable for death occurring within five weeks from the date of the reinstatement, and when the policy was revived and returned to her with the date of reinstatement indorsed thereon she was fully advised.
So the case we have here is not one of waiver of forfeiture or estoppel by conduct, but it is the simple case of enforcing a contract that the parties made. As was said by Wheeler, J., speaking for the Supreme Court of New York, in Greenwaldt v. United States Health & Accident Ins. Co., 102 N. Y. Sup. 157-8: “While the courts have been reluctant to permit insurance corporations to void their policies through forfeiture clauses, I find no case in which they have made a new or different contract from .that which was entered into between the parties. This is not the case of an insurance company voiding its policy; it is an effort to make it liable under conditions which it was agreed should not constitute a liability. ’ ’
Inasmuch as the undisputed evidence shows that Alberta Bogers, the insured, died within five weeks from the date -of the reinstatement of her policy, under the express terms of such policy the appellant is not liable, and the court therefore erred in directing a verdict in favor of appellee. For this error the judgment is reversed and the cause dismissed.
