Home Insurance v. Mears

JUDGE HAZELRIGG delivered the opinion of the court. Appellant seeks to avoid liability under the insurance policy sued on by appellee, on the grounds — First, that the proof of loss had not been furnished, as required by the terms of the policy; second, that there was a change in the title and possession of the insured premises; and, third, that the loss occurred while appellees were in default in the payment of the premium note due several months before the fire. It Is clear, as substantially admitted by counsel for appellant, that the first defense was waived by the prompt denial of liability • on the part of the company when informed of the loss. Nor is there any merit in the second defense, there being no proof whatever of any change in the title or possession of the premises. The proof is to the contrary. It is admitted that the premium note due on December 1, 3894, was still unpaid in March, 1895, when the fire occurred. Briefly, the appellees’ excuse for nonpayment is that, when the premium became due, one of their number, who were joint owners, was about to become the owner of the entire property, and, not desiring to continue the policy in connection with the tornado policy, which had’ been taken at the same time in the same company, he wrote the company advising it of the contemplated change of ownership, and asking for terms op which he could have a cancellation of the tor 325 nado policy and a renewal or continuance of the fire policy. The premium note due in December was for future or unearned insurance, and included the premium of the tornado policy. After some correspondence, the company finally wrote him, in substance, that, upon change of ownership, the proper indorsements might be made on the policies, but that, if the tornado policy was to be canceled, the company would be “entitled to short rates and expense of writing the risk.” It concluded its letter with these words: “We have referred this matter to our solicitors, Messrs. Sympson & Gaddie, asking them to call upon you and have it satisfactorily arranged.” Sympson did call upon appellee, E. J. Mears, who had conducted the correspondence, and, after explaining what was meant by “short rates,” etc., Mears agreed to let the policies stand as they were. He was at work in a field, and he testifies that he asked Sympson about paying the notes, and the latter told him to send the money to the company. He then asked him, “When?” and Sympson answered, “Any time within a week would do.”. The property burned within less than a week after this, and, in fact, on the day appellee had intended sending the money. It is made clear by the proof that the letter of the company induced the appellee to await the visit of the agents, Sympson & Gaddie, who were authorized to arrange the matter of continuance or cancellation of the policies. But for the delay of this visit, the monéy would have been sent before the loss occurred. Under these circumstances, we think the company liable. Its conduct in extending the time of payment for a week from the conference between Sympson and Mears, and in writing the letter referring the matter in controversy to its local agents for adjustment, who were to call on the insured, is wholly inconsistent with an 326 intention to insist on a forfeiture of the policy for nonpayment of the premium note, and is altogether consistent with the intention to waive the stipulation as to forfeiture. The proceedings on the trial were in accordance with these views of the law, and the judgment is affirmed. (See Moreland v. Union Central Life Insurance Co., 20 Ky. L. R.. 432; [46 S. W. 516] ).