275 S.W. 313 | Tex. App. | 1925
"It is understood and agreed that the company shall not be liable under the policy named above for any loss occurring after the maturity of any premium installments if any of same be in default. Upon nonpayment of any of the premium installments at maturity, the policy shall lapse and cease and continue to be void as a protection against loss, for such nonpayment during such nonpayment."
Neither installment of this note was ever paid. On March 9, 1922, the house and furniture were destroyed by fire. The case was tried to the court without a jury, and *314 judgment rendered for plaintiff for $1,924.93, being the $2,000 insurance, less $75.07 due and unpaid on the installment note. From this judgment the insurance company has appealed.
The only question involved is whether or not the policy in question, according to its terms, and the terms of the installment note given for the second and third year premiums, had lapsed at the time of the fire for nonpayment of premiums.
The policy sued upon appears to be a standard fire policy. In addition to the printed form, containing the general provisions, there were attached to it three slips, or papers, as follows: The first slip contained a description of the property insured. The second was a rate and analysis slip, giving the rates which applied to the particular property according to its description. The third was an exact copy of the application signed by Baggett, except that it did not show his signature thereto, nor contain on the back thereof the report of the agent to the insurance company, which appeared on the original application. In the original application just above Baggett's signature, and in the slip attached to the policy, appeared the following provision:
"If any promissory note given for the whole or any portion of the premium for the policy that may be issued upon this application shall not be paid promptly when due, then said policy shall be suspended, inoperative, and of no force or effect until such promissory note is paid. This company shall not be bound by any act done or statement made by or to any agent, or other person which is not contained in this, my application."
There also appeared in the body of the policy on the front page thereof the following provision:
"This policy is made and accepted subject to the foregoing stipulations and conditions, and to the following stipulations and conditions printed on the back hereof, which are hereby specially referred to and made a part of this policy, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto. * * * "
The trial court held the third slip or paper referred to above — that is, the purported copy of Baggett's application attached to the policy — inadmissible and not a part of the policy because it did not contain the name of Baggett nor the report of the agent to the company on the back thereof. In doing so he doubtless concluded that it did not comply with article 4951, R.S. 1911, which reads in part as follows:
"Every contract or policy of insurance issued or contracted for in this state shall be accompanied by a written, photographic or printed copy of the application for such insurance policy or contract, as well as a copy of all questions asked and answers given thereto."
The omission from the paper of the agent's report on the back of the original application is immaterial. That report was not an essential part of the application. It could have as well been made on an entirely separate and distinct blank; nor are any of the statements, representations, or provisions of said agent's report offered in evidence or relied upon to defeat the policy. If they had been, then an entirely different case would be presented. Such, in fact, was the case in Southwestern Surety Co. v. Hico Oil Mill (Tex.Com.App.)
This, then, leaves the question: Does the failure to include in the purported copy of the application attached to the policy the name of the applicant preclude its admission in evidence as a part of the policy? No Texas case on this point has been cited, and we have found none. Appellee cites the case of Seller v. Life Ass'n,
We are of the opinion, however, that the language in the policy, i e., "this policy is made and accepted subject to the foregoing stipulations and conditions * * * together with such other provisions, agreements or conditions as may be indorsed hereon or added hereto, * * *" was sufficiently definite and comprehensive to include, as a part of the policy, the purported copy of the application excluded by the trial court. This rider, however, was attached to the policy at the same time, in the same manner, and in connection with the rate analysis sheet, and the rider describing the property itself, fully described the property insured, the indebtedness thereon, and contained the questions asked insured and his answers thereto, in addition to the forfeiture provision. We are of the opinion, therefore, that it was a part of the policy, and that the insured was bound by its provisions with reference to any default in the payment of the premium note.
That being true, this case comes clearly within the rule laid down in Duncan v. United Mutual Fire Insurance Co.,
"The premium was not paid in cash. Only a part of it was paid in cash. If the balance was not paid by the note, such balance remained unpaid. Under the authorities above quoted we are compelled to hold that the balance was not paid by the note. Since the note was not paid when due, a part of the premium was not paid when due. Since the note was due and unpaid before and at the time the fire occurred, an equivalent amount of the premium was due and unpaid before and at the time the fire occurred. By the plain terms of the policy, the company was not liable for any loss or damage thereunder after the unpaid portion of the premium became due, so long as it was unpaid, unless the company has waived its right under the clause of the policy set up as a defense. A fair and reasonable interpretation of that clause is that the parties intended by its provisions that nonpayment of the unpaid portion of the premium should have the effect of suspending the obligation to pay for any loss that might occur during the default in payment of the premium, and that, upon its payment, the policy should be revived, and in full force. The parties had a right so to contract. The provision was not contrary to any law or to public policy. It was evidently inserted for a legitimate purpose — to aid in securing prompt payment of the premium. It could work no injury to the plaintiff except by his own fault or negligence. Such injury would not be due to the provision of the policy, but to his own default."
The policy in question had also lapsed at the time of the fire under the provisions contained in the installment note given by Baggett for the second and third year premium. Even if there had been no provision for forfeiture in the policy itself, and the note alone had contained the provisions upon which it would lapse, the same result would obtain, for the reason that the note, given as part payment for the premium simultaneously with the issuance of the policy, became a part of the insurance contract. This identical question was passed upon by this court in the case of North River Ins. Co. v. Thomas (Tex.Civ.App.)
Since the policy sued upon had lapsed at the time of the fire, the judgment of the trial court must be reversed and judgment here rendered for appellant.
Reversed and rendered.
"The Liverpool London Globe Insurance Company, Ltd., in consideration of the stipulations herein named and of eighty-four and 50/100 dollars premium, does insure C. V. Baggett for the term of three years from the 31st day of July, 1919, at noon to the 31st day of July, 1922, at noon against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding twenty-seven hundred fifty dollars." *316
Appellee contends that this provision is in effect an acknowledgment of payment by the company of the premium named, and that by reason thereof the insurance company is estopped to deny payment for the purpose of forfeiting the contract, citing articles 49534955, R.S. 1911; Dunken v. Life Ins. Co. (Tex.Civ.App.)
We do not consider the recital quoted as a receipt for the premium, but merely as indicating the amount required to pay for the amount of the insurance therein set out. As between the insurance company and Baggett no estoppel can apply. One of the essential elements of estoppel is that the party asserting it must have been misled or caused to change his position to his injury. Baggett could not complain of this. He knew he had paid cash on his premium only for the first year. For the remaining two years of the premium he had only given his notes, which were long past due, and which he knew he had not paid. Failure to pay these notes when due was a failure to pay the balance of the premium for those years. Duncan v. United Mutual Fire Ins. Co.,
Appellee's motion is therefore overruled.
Overruled.