66 Ind. App. 269 | Ind. Ct. App. | 1916
Appellant in the court below unsuccessfully sought to recover on a fire insurance policy for damages by fire to certain personal property, which he alleged was insured by appellee company against loss in this manner. The errors assigned are: (1) Overruling appellant’s demurrer to appellee’s third paragraph of answer; (2) error in stating the conclusions of law on the facts found; and (3) in overruling appellant’s motion for a new trial.
The questions presented by the first and third assignments of error are included and covered by the second assignment, and as a matter of convenience will be considered under this assignment.
The facts found by the court, so far as material, are to this effect: On August 12, 1911, P. H. York was appointed receiver of the property and assets of the Mahogany Interior Trim Company, an Indiana corporation, engaged in the manufacture of interior furnishings, with a branch plant engaged in manufacturing metallic cabinets, under the name of Metallic Cabinet Company. On March 20, 1912, on sta
“Belative to tbe insurance of Metallic Cabinet Co., I would say' I note that you have made it out to Metallic Cabinet Co. whereas it should have been made out to P. H. York receiver, also in order that there may be no misunderstanding with tbe policy would say that another insurance company cancelled tbe insurance because of tbe building not- being in such condition.that they would care to continue it. I herewith return,your policy. Do not make it out unless' you are sure that this cancellation will not waive insurance. Also note that we have discontinued work at tbe plant which may further complicate with tbe insurance.”
On receiving tbe letter and policy, McCullough, who bad authority to issue policies of insurance and collect tbe premium therefor in appellee company, indorsed on tbe policy, “Cancelled for non-payment,” and forwarded tbe same to tbe office of appellee company at Chicago. No notice of tbe action taken by tbe agent was communicated to tbe receiver or to the Mahogany Interior Trim Company,
The policy of insurance, which is a standard form of fire insurance policy, is made a part of the special findings of fact, and among its provisions is the following :
“This policy shall be cancelled at any time at the request of the insured, or by the company by giving five days’ notice of such cancellation. If the policy shall be cancelled as hereinbefore provided or become void or cease, the premium having been actually paid, the unearned premium shall be returned on surrender of this policy or by its renewal, this company-retaining the customary short rate, except, that when this policy*274 is cancelled by this company by giving notice, it shall retain only the pro rate premium. ’ ’
On the foregoing, which substantially covers the facts found, the court, as a matter of law, concluded that the policy sued on was not at the time of the loss in force and that appellant was not entitled to recover.
Appellee attaches some force to the fact that the premium for the issuing of the policy was not paid. This argument naturally directs itself to the legal existence of the policy from its inception.
Further, it may be added that there is no condition in the policy itself making the actual payment of the premium a condition precedent to the attaching of liability. • 5 Elliott, Contracts §4133. But from the language of the policy, viz., “The premium having been actually paid, the unearned premium shall be returned on surrender of the policy,” etc., it might well be inferred that credit could be extended as to the payment of the premium. Hence, in so far as the payment of the premium affects the attachment of the risk, it can be disassociated from this discussion, and receive no further consideration, except in so far as the nonpayment of the premium might throw light on the question of whether the policy was or was not canceled. The actual delivery
Appellant states his position in the following language: “It is appellant’s contention that such letter is not an absolute order of cancellation of the insurance contract by the assured; that it simply authorizes the insurer to cancel the contract if the conditions thereon named will prevent the insurance, and that it implies a request that the policy shall be rewritten if the conditions named'will not prevent it.”
It is apparent from the letter that the policy was not returned to appellee for the obvious purpose of cancellation, but was delivered to appellee’s agent conditionally. For if appellant desired to cancel the policy, he had the right absolutely under the terms of
Had appellee notified appellant, upon t the receipt of the policy accompanied by the letter, that it would not rewrite the insurance, the cancellation would have been complete, not by reason of the provisions of the policy authorizing cancellation by it, but by reason
Note. — Reported in 113 N. E. 1021. Insurance: whether failure of insured to speak or act after notice of breach of policy constituted, a waiver thereof, 25 L. R. A. (N. S.) 1, 51 L. R. A. (N. S.) 261; waiver of condition in insurance policy by insurer’s knowledge of existing facts, 18 Ann. Cas. 686; acts sufficient to effect cancellation of fire policy, 17 Ann. Cas. 795; what amounts to waiver of condition requiring payment of premium before delivery of policy, 57 Am. Rep. 514. See under (1) 19 Cyc 606; (2) 19 Cyc 643; (3) 19 Cyc 791; (4, 5) 19 Cyc 645.