Schoneman v. Western Horse & Cattle Insurance

Maxwell, J. On the 18th of March, 1882, the plaintiff, at Crete, made application to the agent of the defendant for a policy of insurance upon five head of live stock, including oné stallion. On the 21st of that month a policy was issued and delivered to the agent of the company at Crete, to be delivered to the plaintiff upon payment of the premium. The premium was $19, viz.: $10 on the stallion, and $9 on the other stock. On receipt of the policy the agent notified the plaintiff, who being unable to pay the premium at that .time, the agent agreed to extend the time of payment till May 15th, following. The policy contained the following provision: The annual premium and policy fee must be paid to the agent of the company, or direct to the company within fifteen days after -the date of the policy; if not so paid, the company will take back and cancel the policy.” On the 10th of May, 1882, the stallion died. The plaintiff thereupon went to the agent at Crete, paid the premium and obtained the policy. There is a dispute in the testimony as to whether or not he informed the agent of the loss before receiving the policy, he swearing that he did, but other evidence tends to show that he did not. The full amount of the premium, however, was paid to this company and retained by it, proof of loss made, and the action is brought, to recover the amount for which the horse was insured. On the trial of the cause the jury found for the defendant, and judgment was rendered dismissing the action. The attorneys for the plaintiff asked the court togive the following instruction: “Although by the terms of the policy the defendants reserved the right to take back and cancel the policy if the premium was not paid within fifteen days from its date, this was a privilege that the defendant could waive, and if the jury find from the evidence that the defendant through its agent accepted the premium [406] and delivered the policy to the plaintiff with full knowledge of the loss of the property insured after the expiration ■of the fifteen days, and you further find that the defendants have continued to hold the premium without offer to return the same,” that would be a waiver of the defendants’ right to cancel under the terms of the policy, and you will find for the plaintiff.” This-was refused, to which the plaintiff excepted. That an insurance company may waive any provision in a policy intended for its benefit is too well established to require the citation of authorities. In other words, where there has been a breach in the conditions of a policy, the company may, if it see fit, take advantage of such breach and cancel the policy. It need not do so, however, but may waive the forfeiture, and this may be done by acts as well as words. But the company as well as the insured should act in good faith. If there has been a .failure to pay the premium promptly at the day, the company certainly may waive this condition, and if it afterwards receive and retain it,-and deliver the policy, there would seem to be no good reason why the company should-not be bound by it. The consideration for the insurance is the premium, and if this is paid and appropriated by the company, the time of. its payment would not seem to be material. In this case the policy is dated March 21st, 1882, and runs from that date. The company received the premium for that policy and has appropriated the same to its own use. If the policy was obtained by fraud, it should have tendered back the premium and asked for the cancellation of the policy. But this it has not done. The instruction asked therefore should have been given. Veile v. Ins Co., 26 Iowa, 10. Baldwin v. Choteau Ins. Co., 56 Mo., 151. Joliffe v. Ins. Co., 39 Wis., 111. Ins. Co. v. Sohollenberger, 44 Penn. St., 259. Ins. Co. v. Brown, 40 Mich., 147. Bowman v. Ins. Co., 59 N. Y., 521. Ins. Co. v. Ins. Co., 20 [407] Barb., 468. Wood v. Ins. Go., 32 N. Y., 619. Hodson v. Ins. Co., 97 Mass., 144. Sheldon v. Ins. Co., 207. Boehen v. Ins. Co., 35 N. Y., 131. Sheldon v. Ins. Co., 26 N. Y., 460. Young v. Ins. Co., 45 Iowa, 377. Smith v. Ins. Co., 13 N. W. R., 135. Ins. Co. v. McLanathah, 11 Kas., 533. Meshon v. Ins. Co., 34 Iowa, 87. Keim v. Ins. Co., 42 Mo., 38. • There are other errors to which it is unnecessary to refer. .The judgment is reversed, and the case remanded for further proceedings. Reversed and remanded. The other judges concur.