Sewell v. Continental Casualty Co., 46 So. 714

Sewell v. Continental Casualty Co.

46 So. 714 | Miss. | 1908

Oalhoon, J.,

delivered the opinion of the court.

One Sewell was a fireman on the Illinois Central Railroad. On April 24,1906, he made application to the appellee company for an accident policy. The payments were to be made by orders on the paymaster of the railroad company, and the deceased, Sewell, gave the orders, with directions to charge the amounts against the pay account of the applicant, and the orders recite for the payment of $10, the first instalment from his wages for May, 1906, the second instalment of $10 to be paid from his wages for June, 1906, the third instalment of $10 to be paid from his wages for July, 1906, and the fourth instalment of $10 Was not to be paid at all if the others were paid when due. In the order itself it is stated as the understanding between the parties that, if the first, second, and third instalments were paid when due, the fourth instalment should not be collected. The order further states that, “if for any reason whatever payment for *863any instalment be not made as above specified, then all my rights under said policy and the rights of my beneficiary thereunder ■shall at once terminate and be void,” and the order waives any notice of payment or nonpayment of the instalments, and specifies that on default in the payment of any one of them, “and the defaulted instalment be afterwards paid as above provided, then in that event such payments shall reinstate my policy only from the date of the receipt of such payment at the general office of the Continental Casualty Company.” The order specifies the agreement that, should Sewell be discharged from or cease to be in the service of said ráilroad company before the first of said instalments become due, “then all my rights and the rights of my beneficiary in said policy shall immediately cease, unless I notify the secretary of the said Continental Casualty Company in writing within three days after leaving said service and remit said instalment with said notice.” The appellant, Rogalia .Sewell, was made the beneficiary in the policy. In the application for the insurance it is made a part of this contract that, if any one of these payments wias not made by twelve o’clock noon of the day when due, all of the rights of the applicant under the policy should become void, and that the policy could •only be reinstated “at the option of the company and by tendering payment at its general office in Chicago, and if accepted, the reinstatement shall take effect from and after receipt of such payment, and no claim for loss arising between the time of such forfeiture and reinstatement shall be good against the company.” The application further provides a waiver of notice -of payment or nonpayment, and an agreement by the applicant ■that, on any default of any payment and a subsequent payment,, reinstatement could only be had from the date of such payment at the general office of the Continental Casualty Company.

It will be noted that the first payment under the order was to he made from the wages of the applicant for the month of May, 1906, and, of course, that was payable on the last day of May or the first day of June, 1906: It is immaterial which. As a *864matter of fact, Sewell earned no wages whatever for the month of May, 1906, and, of course, under the contract his policy then became void, unless reinstated under the terms of the contract. The applicant was killed on the 19th day of June, 1906, and the appellant, his beneficiary, made Claim for the amount of the policy, and on the trial the court below gave a peremptory instruction to the jury to find for the appellee. This peremptory instruction was based on the liability or nonliability of the casualty company on the facts herein before stated. We need pay no attention to anything else in the record, except to say that we find nothing to justify the court in sustaining any claim of waiver by the company based on proofs of loss. The very correspondence in reference to that shows that, so far from any waiver being contemplated, it wás distinctly stated that there was to be no waiver considered, and we find no error in any other act on the part of the appellee. We regard it as plain that this policy was forfeited by nonpayment of the May wages, and under the contract wie cannot see how this defect could be cured,, except by reinstatement according to the terms of the contract, by payment of the defaulted sum at the general office of the company and reinstatement from the date of the receipt of the money. We do not think any case cited conflicts with this conclusion; every contract of insurance being determinable by its-own provisions. After Sewell’s death, and after the policy was forfeited, as we have hereinbefore decided, twenty dollars were sent to the company on behalf of Sewell; but, as soon as the company learned of Sewell’s death, it sent its agent to investigate, and that agent tendered the premium-back.

Affirm&d.