56 Tenn. 261 | Tenn. | 1872
delivered the opinion of the Court.
This is an action brought in the first Circuit Court of Shelby county, by J. M. McKenzie, against the Planters Insurance Company, on a policy of insurance issued by the latter to the former, on his hotel in Carroll county, Tenn. The property was insured from June 28, 1867, to June 28, 1872, to the amount of •'$2,000, and was totally consumed by fire on the 31 •of November, 1868. Two grounds' of defense were relied on by the Insurance Company — first, that Me-
The first ground for reversal relied on by the company is, that the court below erred, in stating to-the jury the legal effect of the collection by the company of premium notes, as a waiver of a previous forfeiture of the policy by the default of the assured. It appeared in proof, that after obtaining his policy from the Planters Company, the assured took another policy on the same property from another Insurance company, and also that he rented out and gave possession of the property to two lessees — both of these acts voided the policy of the Planters Company, according to the stipulations of the contract of insurance-—unless the consent of the company was obtained and endorsed on the policy. To avoid the fact, that no such consent was obtained and endorsed on the policy, the assured adduced evidence which tended to show, that after the second policy was taken out and after-the hotel had changed possession by renting, the company was notified thereof, and with such notice the-company had assessed twenty-five per cent, on the premium note of $300 of the assured, and that the as
It is insisted for defendant that the rule as to-waiver by making assessments on premium notes, is-laid down too broadly by the Circuit Judge. It is-argued, that where the forfeiture of the policy results-from the . violation of the stipulations of the policy by the assured himself — as in the present case — he forfeits-to the company the whole of the premium note, and the company has the right to enforce the collection of the note. Hence it is insisted, that to allow the assured, at his pleasure, to do an act of forfeiture, and then to make the enforcement of the rights of the company, as by collecting the premium note, constitute a waiver of its rights to declare the forfeiture, would
But the language of the Circuit Judge is: “If you :are satisfied from the testimony that with the knowledge of the after, insurance, the company made assessments . upon premium notes and collected premium money from the plaintiff,” then such assessment and collection would be a waiver. The assessment of a .premium mote and the collection of the amount so assessed, necessarily implies that the company does not claim the whole amount of 'the note to be due, but only such portion as may be necessary to meet the exigency which calls for an assessment. It implies that the company still recognizes the assured as entitled to the benefits of the policy, and subject as other policyholders to have the residue of his premium note assessed for future exigencies. The assessment upon the premium note is so far from, being' an act in confirmation of a forfeiture, that it is wholly inconsistent with it, and furnishes conclusive evidence that the company has waived the forfeiture if done with knowledge of the acts of forfeiture. It is upon this ground that the rule of -law rests, which holds such assess
The instructions given to the jury are to be construed as applicable to the evidence in the case. We find in the record that on the 5th of September, 1868, the Insurance Company made an assessment of 25 per cent, upon the premium or deposit notes, for the purpose of paying expenses and ' losses. A circular was issued calling on the policyholders to pay this assessment, and among the others one was addressed to plaintiff, in which he is notified that his deposit note of $300 was assessed $75, and that the assessment was payable within thirty days; and he is expressly notified that “if payment is not made in the time specified, your policy will become void, and you will be liable for the full amount of your note.” Here is positive proof that at that time, which was after the alleged acts of forfeiture, and after the proof tends to show the company had knowledge of these acts, the company held plaintiff as a subsisting policyholder, and an express admission that his policy was then in full force. It is in proof that plaintiff promptly paid the assessment. It was in reference to this evidence that the Circuit Judge instructed the jury that the assessment upon plaintiff’s premium note, and the payment thereof, after the acts of forfeiture, if the assessment and payment were made with knowledge by the company of the acts of forfeiture, would
But it is next insisted that the Circuit Judge erred in admitting as evidence the parol declarations of the agent, Nolen, made before the policy was. issued and at the time it was received, as proved by-plaintiff. On this point the Judge said to the jury; “But if you find that the company was not notified of this after insurance, and in ignorance of the after-insurance made collections of premiums, you will find for defendants. So, too, if you are satisfied from the testimony that the plaintiff made the statement to the-agent of the company, that he intended to take out other-insurance, when this insurance was being effected, and the agent agreed to this, and the policy was issued upon this understanding, and that by the misstatements- and misrepresentations of the agent afterward acting within his apparent authority, plaintiff was kept in ignorance, of the provisions of the contract in -this respect, the company will now be estopped from setting up these stipulations of the policy. On the contrary, if the agent made no such misstatements, and the policy was delivered to plaintiff, he was bound to know its provisions, and if he negligently failed to open it he would be bound to know its provisions: and if you find this state of facts, you will find for defendant.” It is obvious that these instructions were given to the jury in view of the conflict in the testimony between the plaintiff and the agent of defendant. In order to avoid the written simulations in
It is insisted, in the last place, that the judgment ought to be reversed, because, in his application for a policy, plaintiff represented himself as owning the property insured in fee simple, and that by the terms of the policy this was a warranty that he had the fee simple title; but that on the trial of the cause, the only proof made as to the title was parol or oral testimony. To this it may be answered that uo issue is made by the pleadings as to any misrepresentation of the character of his title by plaintiff in his application for insurance, nor was any objection made to- the competency or sufficiency of the parol testimony as to title, on the trial. It is too late now to raise the question, after having waived it in the court below.
We have found no error in the ruling of the court below as to matters of law. On the trial the jury have given credit to the testimony in favor of the plaintiff, and we can not say that their verdict is not supported by the evidence.
Let the judgment be affirmed.