290 S.W. 673 | Ky. Ct. App. | 1927
Reversing.
The appellant, whom we shall refer to as the fire insurance company, has made a motion for an appeal and asked for the reversal of a judgment for $300.00 recovered against it by the appellee, whom we shall refer to by name. In 1923, Johnson made application for a *828 policy of fire insurance, which the fire insurance company issued to him, and upon which this suit was instituted. At that time, Johnson had a lien on this property in favor of the New York Life Insurance Company, and there was executed and attached to this policy a mortgage clause containing the following provision:
"And this insurance as to the interest therein of the said mortgagee (or trustee) only, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by the commencement of foreclosure proceedings, nor the giving of notice of same relating to the property, nor by any change in the interest, title, or possession of the property, nor by any increase of hazard; provided that in case the mortgagor or owner shall neglect to pay any premium due under this policy the mortgagee shall on demand pay the same."
When the policy was issued, Johnson paid $24.96 and executed a note by the terms of which he agreed to pay the fire insurance company $24.96 on the first day of September, 1924, and a like sum on that day in each of the years, 1925, 1926, and 1927. This note, the application for this insurance and the policy in question each contained a condition that, in substance, provided that the fire insurance company should not be liable for any loss or damage that might occur to the property insured while any installment of this note was past due and unpaid. The first installment became due on September 1, 1924. It was not paid on that date, but on September 11, 1924, Johnson paid it. The company sent to Johnson in August, 1925, a notice of the approaching maturity of the second installment, which notice Johnson received about August 16, 1925. It contained the following:
"As the policy by its provisions lapses and remains suspended during the time in which this installment remains unpaid prompt attention is necessary to keep your insurance in force."
Johnson failed to pay this installment on September 1, 1925, and twenty days thereafter, a house which was insured in the sum of $300.00 under the policy was destroyed by fire. Thereafter, Johnson sent to the fire insurance company check for this $24.96, which was returned to him. On December 12, 1925, he instituted this suit by the New York Life Insurance Company and F.D. *829 Johnson, for the use of New York Life Insurance Company, plaintiffs, against the fire insurance company. On January 18, 1926, the New York Life Insurance Company moved that its name be stricken from the petition as one of the plaintiffs, which motion was sustained. Thereupon Johnson amended his petition and moved that the New York Life Insurance Company be made a defendant, but it was never brought before the court on that amended petition. The answer of the fire insurance company set up the failure of Johnson to pay the $24.96 due September 1, 1925, and pleaded the terms of the note, the policy and the application, by which it was provided that the fire insurance company should not be liable for a loss sustained while a premium installment is past due and unpaid. At the close of the evidence, the fire insurance company moved for a peremptory instruction, which motion was overruled, and it excepted.
Johnson insists that, having accepted on September 11, 1924, the payment of a premium installment that had become due on September 1, and having, upon other insurance contracts that Johnson had with this company, accepted premium installments after they were due, that by virtue of such a course of dealing between the parties, the fire insurance company has waived the prompt payment of this premium, and is estopped to claim that this policy was not in force at the day of the fire. He insists that he is correct in this position for the further reason that after he failed to pay the installment due September 1, 1925, the company did not give him any notice of the lapse of his policy, nor did it return to him his note or demand a return of the policy for cancellation or give him any notice of its intention to cancel the policy, and that as he did offer to pay the $24.96, after the fire, the fire insurance company should have been required to accept it, and not having done so should not now be allowed to claim the policy is not in force. Relative to the custom of accepting premiums after they were due, the decision of this court in the case of Dancey v. Cotton States Life Insurance Company,
These questions disposed of, we come now to his final contention, which is that this contract was kept alive by virtue of the mortgage clause attached to the policy. That mortgage clause means exactly what it says. It was for the benefit of the life insurance company only. It is asking for no relief in this action. No demand was made of it and the premium installment was not paid, either by it or by Johnson before the fire. The court should have directed the jury to return a verdict for the fire insurance company, and because that was not done the motion of the fire insurance company for an appeal is sustained, the appeal is granted, the judgment is reversed and the fire insurance company is awarded a new trial.
