17 Pa. Super. 119 | Pa. Super. Ct. | 1901
Opinion by
The plaintiff brought this suit on a policy issued by the defendant, a mutual insurance company, and on the trial the court gave the jury binding instructions to return a verdict in favor of the. defendant. In addition to the policy in suit the plaintiff, an old member of this company, had charge of others which had been issued in 1890 and were as follows: No. 14344 issued in the name of his brother and himself on an office and carriage house; Nos. 14345 and 14346 in the name of his mother, Ann C. Gonder, on a barn belonging to her.
He subsequently stored personal property of his own in these buildings and took out insurance thereon in 1893 under a policy, No. 14896, on which this action is founded. The following is a description of the property so stored:
Personal property in barn of Ann C. Gonder insured in policy No. 14346 . . . $600.00
Personalty in office and carriage house insured in policy No. 14344 .....$600.00
$1,200.00
On the last policy he paid the cash premium and gave his premium note, $60.00, to cover the assessments thereon.
The policy provided “that when an assessment'is made to pay for losses to the company, any member neglecting or refusing to pay said assessment after sixty days’ public notice, the insurance is suspended until the amount due, with ten per cent added for collection, be paid, but otherwise no neglect or refusal to pay such assessment and charges for collection will release the liability for the same.”
The plaintiff admitted that he had read the policy of insurance
The policy declared, and he must be presumed to have known, that without any action on the part of the company the neglect to pay the assessment had the effect of suspending the protection of the policy until the default was removed: Washington Mutual Fire Insurance Company v. Rosenberger, 84 Pa. 373.
Courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or an agreement to do so on which the party relied. Any agreement, declaration, or course of action on the part of the insurance company that would lead an insured party to believe honestly that by conforming thereto a forfeiture of his policy would not-be in
In this case there is nothing to indicate any change of terms of the contract, any waiver of its conditions, any course of dealing or established practice, or mutual understanding on the part of the company and this plaintiff that would mislead a reasonable business man into believing that the general rule as indicated by the contract would not be enforced against him. The mutuality of the contract required him to discharge his part before he could demand performance by the company. The fact that the policy was not formalty marked void on the books of the company until after the fire, is not material under the facts of this case. It was the continuing neglect of the insured, after he had knowledge that losses had been sustained and assessments had been levied, to pay them, and to which he contributed twice through three other policies, that prevents him from recovering for a loss which occurred during the period of his default. If the delinquent policy holder had paid and the company had accepted his assessments prior to the fire, the policy would have been restored to full life. During the default the contract relation is not wholly dissolved, but the protection of the policy is suspended until the default of nonpayment is removed: Columbia Insurance Co. v. Buckley, 83 Pa. 293.
The judgment is affirmed.