Lebanon Mutual Insurance v. Hoover, Hughes & Co.

Mr. Justice Sterrett delivered the opinion of the Court, One of the conditions of the policy in suit is, if the assured “shall have neglected to pay the premium,.....then and in every such case this policy shall be null and void.” The alleged breach of this condition is the only defence interposed by the insurance company. The policy issued April 24th, 1882, for one year from that date, was twice renewed. The first renewal certificate is dated April 4th, 1883, to take effect at expiration of original risk, and the second April 1st, 1884, to take effect on the 24th day of that month. In both of these certificates, issued by the secretary under seal of the corporation, the payment of $30, renewal premium, by the assured is acknowledged; but, in point of fact, the first was paid to the company on June 4th, 1883, and the second was remitted to Mr. Tredick, agent of the company, on May 3d, 1884, next day after the fire, and was by him immediately forwarded to plaintiff in error, who refused to receive or recognize it as a payment, for the reason that the property covered by the policy was destroyed before the renewal premium was paid or tendered. On the trial, evidence was received tending to show that Tredick, through whom the insurance was placed, was the recognized agent of the company for the purpose of securing risks, receiving and remitting premiums, etc.; that in his dealings with the company he was made its personal debtor for premiums on all policies issued through him, and that he periodically accounted to it therefor, whether the money [599] was received by him from the persons to whom the policies were issued or not; that he made the persons or firms to whom he delivered policies, his personal debtors, and dealt with them in that relation, charging them with the premiums on his books, sending them bills in his own name and making himself responsible to the company for the same, and that the bills for premiums were generally rendered sometime during the month after the insurance was effected. The admission of this evidence was excepted to and is the subject of complaint in the first three specifications of error. In submitting the case to the jury, on the evidence above mentioned, the learned judge instructed them in substance to find for the plaintiffs if they were satisfied as to the truth of the facts alleged by them. These instructions are also assigned for error in the fourth to the seventh specifications, inclusive. In view of the testimony, the instructions under which it was submitted, and the verdict in favor of plaintiffs for the full amount claimed by them, the jury must have found all the controlling facts in their favor. They must have found, among other things, that the relations existing between the company, Tredick, its agent, and the assured were of such a character that it could not be truthfully said the latter neglected to pay the last renewal premium. To visit upon them the consequence of neglect to pay the premium it should appear they were in default — that the premium was payable on delivery of the renewal certificate, or within a specified time thereafter, and that they had neglected to pay it accordingly. The finding of the jury, however, negatives any such conclusion. They found the established course of dealing between the three parties concerned, was that Tredick, the agent, was treated as debtor to the company for premiums on all policies or renewal certificates procured through him, whether he received such premiums from the parties in whose favor they were issued or not, and that he was not expected to account and pay to the company until a statement was rendered during the next succeeding month; that as between Tredick and the assured the latter were not expected to pay in advance, but upon demand made by him a month or more after the insurance was effected. If such was the mutual understanding o£ the parties (and the jury has impliedly found it was) it would be a mere travesty of justice to hold that they neglected to pay the premium in question, and thus permit the company to shirk the payment of an honest obligation. It cannot be truthfully said the assured neglected to pay a premium which, according to the mutual understanding of all the parties, was not demaudable before it was actually remitted to the party entitled to receive it. [600] The true answer to the narrow, technical defence, interposed in this case, is not that there was an actual waiver of the condition in question, but that there was a mutual understanding between the parties, that instead of a strictly cash payment of premiums at the time of effecting insurance, a short credit would be given by the company to its agent and by him to the assured. This fact was so clearly and conclusively shown by the testimony, that the jury, under, the instructions given them, could not have done otherwise than find for plaintiffs. It is unnecessary to consider the specifications of error in detail. The plaintiff in error-has no just ground of complaint in regard to either of the rulings of the Court. The evidence complained of was properly received and submitted to the jury with instructions which, in the main, are correct. In the light of the testimony, and the facts which the jury must have found therefrom in reaching the conclusion they did, the defence is destitute of merit, and such as no reputable underwriter should ever insist upon. Judgment affirmed.