31 S.W.2d 899 | Ky. Ct. App. | 1930
Affirming.
In an action upon a fire insurance policy, the trial court directed a verdict for the insurance company. The insured has prosecuted an appeal to determine the correctness of the decision. The ultimate question to be decided is whether the insurance company waived a provision of the policy suspending the insurance during the time any installment of a premium note was past due and unpaid. The waiver is asserted upon two grounds: (1) That the local agent informed the insured if payment of the portion of the premium due was made when the next installment became payable a year later it would be all right; and (2) that the company retained the past-due note and made an unconditional demand for payment thereof.
1. The pleading and proof for the insured showed that he contemplated a vacancy in the insured property, and requested the local agent of the insurance company to obtain a vacancy permit. In case the vacancy permit was not obtained, he did not intend to pay the installment of the premium note presently maturing since his insurance would not be valid when the property was vacant. The agent responded that he probably could not get a vacancy permit, but, if a tenant was obtained, and the portion of the premium then maturing should be paid by the time the next annual installment was due, it would be all right. It appeared that the company on prepared forms had notified the insured that an installment of *531
the premium note would be due in about two weeks thereafter, and should be paid promptly to avoid suspension of the insurance. The company would not be responsible for any loss occurring while any installment of the premium note remained past due and unpaid. This, perhaps, was before the communication with the agent, but the appellant admitted that subsequently he received two notices from the company advising that his failure to pay an installment of the premium note had automatically suspended the insurance. The final notice was given about thirty days after the note was due. It also advised the insured that he could make a settlement by paying the short-term rate if he decided to cancel the policy. Forms were inclosed and specific directions given regarding remittance of the amount due under either option. The company makes the point that its local agent had nothing to do with the collection of premium notes and was not authorized to vary or waive the terms of the contract respecting payment of premiums. But, however that may be, we need not decide, since the appellant could not rely upon what the agent had said in the face of express notice from the company that the insurance was in suspense because the payment was not made. Home Insurance Co. v. Wood,
2. The insured testified that the company made unconditional demands upon him for payment of the premium note and threatened legal action for its collection. He did not produce the writings about which he testified, and did not account satisfactorily for their nonproduction. He took no steps to require the company to produce the correspondence. By seasonable notice he could have required the company to supply the evidence. 22 Corpus Juris, p. 1059; Louisville Nashville R. R. Co. v. Johnson,
But such is not this case. Here no attempt was made to forfeit the insurance for a period covered by a premium note which was collectible, and which was retained as a subsisting obligation. There was no unconditional demand for payment of the very debt in default of which the insurance was defeated. Continental Ins. Co. v. Peden,
Taking the view of the evidence most favorable to appellant, as we must do to sustain a peremptory instruction, it is clear there was no waiver of the suspension of the insurance resulting from failure to pay the premium note. Since the fire occurred during the *534 suspension period, the company was not liable for the loss. The circuit court correctly construed the evidence and entered the appropriate judgment.
The judgment is affirmed.