185 Iowa 1001 | Iowa | 1919
“It is the universally recognized doctrine that forfeitures are not favored in law, and that the courts will be vigilant and quick to discover and give effect to any act or circumstance from which it may fairly be argued that the insurer has waived the right to strict and literal performance by the insured, or upon which an estoppel against such defense may be founded.”
The text of 25 ■ Oyc. 871 declares:
“Indeed, a demand of a premium or assessment on account of which a forfeiture might be claimed, or an attempt to collect it, is a waiver of the forfeiture, for it is a recognition of the continuance of the contract.”
In Limerick v. Home Ins. Co., 150 Ky. 827 (150 S. W. 978), it was held that:
“The unconditional demand by an insurance company of payment of an overdue premium note is a waiver of the default, so that the insured may recover on the policy if he immediately complies with the demand by mailing a check for the amount, although the insured property is burning when the demand is received, and the policy provides that the company will not be liable for any loss which might occur while any premium note remains due and unpaid.” (See syllabus in 44 L. R. A. [N. S.] 371.)
To the same effect is New England Mut. L. Ins. Co. v. Springgate, 129 Ky. 627 (112 S. W. 681).
An argument in avoidance is made. It is not very insistent. It was nowhere 'made in either the errors relied on for reversal or the brief points. The nearest specific reference in the errors relied on is that the court erred in holding that the unpaid note constituted a full payment of such premium, entitling the insured to paid-up or extended insurance. No reference whatever to extended insurance is found in the brief points. The exact avoidance argument is, in effect, that that clause of the policy which gives option to have extended insurance has a requirement that the policy shall be presented for endorsement. Neither the errors relied upon for reversal nor the brief points can be strained into making a reference to such a position. About the most that can be said is that such argument is made in pleading. A statement in petition that rights are claimed under said Paragraph X is met by an allegation that all the rights of assured or plaintiff by virtue of this paragraph were lapsed and .forfeited by reason of nonpayment of said note. It will be noticed that failure to have the policy endorsed is not mentioned. There is nothing in the provisions of the note pleaded to work that the policy is to lapse though extended insurance is paid for, if assured failed to have the policy en
It is true the clause provides that the policy will be continued in force “on presentation thereof to the company for endorsement.” It may be conceded that if, after the note had matured and remained unpaid, the company had demanded of assured that he present his policy for endorsement in order that he might obtain the benefits of the provision, there might be some question as to what the consequences would be if, after such notification or demand, the policy was not presented for endorsement. But, in view of the hostility of the law to forfeitures, it would be a hard rule, even on the law side, to hold that one who had in fact paid premium for a stated time in advance, forfeited his insurance for nonpayment during a period for which payment had been made, merely because he did not, on his own motion, present his policy for endorsement. Failing to have it endorsed was, of course, no advantage to the assured. Such failure gave him no additional rights. One who had let his note remain with the defendant after it had matured,
There might well be a distinction if the past-due note was for the payment of a premium that had been fully earned before death of insured. The trial judge states it well:
“If a note is given to pay the premium on a policy of insurance for a particular time, and the policy is continued in force for such time, it could not be claimed, of course, that a demand of payment by the company after the default would amount to a waiver of nonpayment of premium for any period of the time not covered by the note. * * * In demanding payment of this note, defendant was not, in effect, merely demanding payment to keep the policy alive for the year ending May 22, 1911, but it was demanding payment of premium that would keep it alive until May 22, 1913; and I think that, if it amounts to a waiver at all, it amounts to a waiver of forfeiture for the full time that the policy would have been continued if the payment had, in fact, been made in cash, or the note paid when due.”
He treats the matter as if the note had been paid in