129 P. 865 | Okla. | 1912
This was an action by Georgia A. Cannedy against the Shawnee Mutual Fire Insurance Company *734 on a policy of fire insurance issued by the company to recover for a building destroyed by fire.
The plaintiff gave two notes for the premium on the policy. They were dated April 22, 1908. One was for the sum of $10, due May 1, 1908. The other was for $22, and was due October 1, 1908. Each note contained the following provision:
"If this note is not paid at maturity, the whole amount of the premium shall be considered earned, and all notes given in settlement of said policy be due, and the policy be null and void, and so remain until the same shall be fully paid, and the policy be reinstated by the company."
This case was tried upon an agreed statement of facts. The substance of the material portion of the agreed statement is as follows: The plaintiff did not pay, or cause to be paid, either of the premium notes at the time they became due and payable, and there was no extension of time for the payment of same. On the 22d day of April, 1909, the dwelling house covered by the policy was totally destroyed by fire, and the plaintiff furnished proof of loss as required by the policy, but the company denied liability for the reason that the plaintiff had not paid the premium notes, as provided therein, and that, therefore, the policy was forfeited. On the 14th of December, 1908, prior to the time the house was destroyed by fire, the defendant filed suit against plaintiff on the premium note for $10, and on the 26th day of December recovered judgment by default, and on the 12th day of March, 1909, an abstract of that judgment was filed in the office of the clerk of the district court of Love county. On the 1st day of January, 1910, after the fire, the plaintiff paid the judgment to the justice of the peace, and took his receipt. The justice forwarded his check for the amount of the judgment to the defendant at Shawnee, but the company refused the check and returned it. On the 2d day of March, 1909, the defendant placed the $22 note in the hands of its attorneys at Marietta for collection, but they failed to collect it, and it was returned to the company on the 15th of March, 1909. On the 1st day of January, 1910, the plaintiff caused the Jordan Company, of Marietta, to send their check to plaintiff at its home office in Shawnee for the *735 amount of the $22 note, with interest. The company refused to receive the check, and gave as its reason for refusing the amount of the judgment and also the amount of the $22 note that this suit had been brought in the district court at that time, and to accept the money due upon the note and judgment might complicate the case.
The question is whether by retaining the premium notes and endeavoring to collect them in full the company waived the forfeiture. It has been held that a condition such as contained in the notes given for premium in this case did not render the policy void until the company had by affirmative action declared the policy forfeited. Mutual Life Ins. Co. v. French,
It has also been held that such a provision, as the one before the court in this case, in a premium note, but not in the policy, is nugatory. Dwelling-House Ins. Co. v. Hardie,
It has also been held that the provisions for forfeiture, being for the benefit of the insurer, may be waived by it.Bouton v. Am. Mut. Life Ins. Co.,
The judgment of the lower court should be affirmed.
By the Court: It is so ordered. *738