Opinion
4 Div. 288.
October 28, 1926.
Appeal from Circuit Court, Pike County; W. L. Parks, Judge.
Wilkerson Brannen, of Troy, and Steiner, Crum Weil, of Montgomery, for appellant.
The provision of the policy is valid. Rose v. Citizens' Ins. Co. of Missouri, 210 Ala. 72, 97 So. 81; Continental Ins. Co. v. Phipps (Mo.App.) 190 S.W. 994. There was no waiver of said provision. Lett v. Liverpool London Globe Ins. Co., 213 Ala. 488, 105 So. 553; 2 Williston on Contr. § 757; 5 Elliott, § 4140; Elder v. Fed. Ins. Co., 213 Mass. 389, 100 N.E. 655; 4 Cooley's Briefs, 2723; Johnston v. Phelps County Farmers' Mut. Ins. Co., 63 Neb. 21, 88 N.W. 142, 56 L.R.A. 127; Beeman v. Farmers' Pioneer Mut. Ins. Ass'n, 104 Iowa, 83, 73 N.W. 597, 65 Am. St. Rep. 424; Brockway v. Insurance Co., 215 Mich. 547, 184 N.W. 399; Farmers' Mut. Ins. Co. v. Kinney, 64 Neb. 808, 90 N.W. 926; Phelps County Farmers' Mut. Ins. Co. v. Johnston, 66 Neb. 590, 92 N.W. 576.
Ballard Brassell, of Troy, for appellee.
By attempting to collect the note, defendant waived the provision of the policy set up in its pleas. Rose v. Citizens' Ins. Co. of Missouri, 210 Ala. 72, 97 So. 81; Shawnee Mutual Fire Ins. Co. v. Cannedy, 36 Okl. 733, 129 P. 865, 44 L.R.A. (N.S.) 376.
It has been held by this and many other courts that the provisions of a fire insurance policy as set out in the defendant's special pleas 3 and 4 are binding and valid on the insured. Rose v. Citizens' Insurance Co., 210 Ala. 72, 97 So. 81. Indeed, this question is not seriously doubted in brief of appellee's counsel, who contend, however, that, notwithstanding the provision that all of the installment notes should become due upon default of any one of them, and the assured would have a right to sue and recover upon all of them, that the bringing of a suit and recovery of a judgment upon same operated as a waiver of the forfeiture or to reinstate the policy retrospectively, and which said point is invoked by special replication to defendant's pleas 3 and 4.
The court is unequivocally committed to the soundness of the following quotation from 26 C. J. 328, § 410:
"When the policy contains a stipulation that it shall stand suspended during delinquency, but that the holder shall be liable for such delinquent assessment, or that the entire premium note shall be deemed earned upon default, the insurer does not waive the delinquency as a defense to any loss occurring during such periods by demanding or accepting premiums." Lett v. Liverpool London Globe Co., 213 Ala. 488, 105 So. 553.
As the loss occurred during the forfeiture or suspension of the policy, the subsequent attempt by the insurer to collect the premiums by suit or otherwise did not operate to reinstate the policy as of the time of the loss.
Appellee's counsel seek comfort from a reference in the opinion in the case of Rose v. Citizens' Insurance Co., 210 Ala. 72, 97 So. 81, to the Oklahoma case of Shawnee Co. v. Cannedy, 36 Okl. 733, 129 P. 865, 44 L.R.A. (N.S.) 376, but the opinion did not approve or repudiate the holding in said Oklahoma case, as to have done so was not essential to the decision of the question involved. Moreover, the principle declared in said Oklahoma case was contrary to the statement and holding in our recent case of Lett v. Liverpool London Globe Co., 213 Ala. 488, 105 So. 553.
The trial court erred in not sustaining the defendant's demurrer to plaintiff's special replication to pleas 3 and 4.
As this case was tried upon an agreed statement of facts and which do not entitle the plaintiff to recover, the judgment of the circuit court is reversed, and one is here rendered in favor of the defendant.
Reversed and rendered.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.