DIGEST OF FIRE INSURANCE DECISIONS, WITH REFERENCE TO STATUTORY PROVISIONS, INCLUDING AN ANNOTATION OF THE NEW YORK STANDARD POLICY. SECTION I. In Consideration of the Stipulations herein named, and of does insure. for the term of. Dollars Premium, from the. day of day of ད 18 at noon, against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding Dollars, to the following described property while located and contained as described herein, and not elsewhere, to wit: This is the first paragraph of the New York Standard Form of Fire Insurance Contract, preceding the blank space for the written description. The parts which were new, or comparatively new, are indicated by italics. The subsequent paragraphs will be hereinafter found in their order, and the general arrangement and classification as to subject matter will be found in the Table of Contents. (Other Standard Forms will be found in the appendix.) Payment. 2.- An acknowledgment in a policy of terms empowered to give up to a person the receipt of the premium is not conclusive upon the insurer. He may still show that it has not been paid. Sheldon v. Atlantic Fire and Marine Ins. Co., 26 N. Y. 460; Dircks v. German Ins. Co., 34 Mo. App. 31. 3.- A policy for one year from November 11, in consideration of $160, to be actually paid within fifteen days, provided that the company should not be liable until the premium in full was actually paid, if not paid within fifteen days the policy is to be void. A loss occurring within fifteen days, and after the loss, but within the fifteen days, a tender of the premium. Held, actual payment is a condition precedent to the risk attaching at all, because the company cannot be bound for fifteen days while the assured has an option without legal responsibility for non-payment, and after the loss there was nothing upon which the risk could attach. Bradley v. Potomac F. Ins. Co., 32 Md. 108. 4.- An acknowledgment of the receipt of a premium in a policy of insurance operates as an estoppel preventing the company from setting up as a defense non-payment of the premium. Basch v. Humboldt Ins. Co., 6 Vroom, 429 (N. J.) 5. If a policy be executed and delivered containing an acknowledgment of receipt of premium, company will not be permitted to allege a want of consideration for their promise when sued thereon after a loss. Consol. Real Est. Co. v. Cashow, 41 Md. 59. 6.- Company was accustomed to charging premiums to an agent authorized to receive and submit applications and to receive and deliver policies for such as were accepted. Credit for the premiums was given by such agent. Held, that by this usage premium was paid. Train v. Holland Purchase Ins. Co., 62 N. Y. 598; Rev'g 1 Hun, 527. 7.— The delivery to an insurance broker of a policy and charging him with the premium in a general account in usual course of business by the agent of the company with its knowledge, is the equivalent of payment. Bang v. Farmville Ins. Co., 1 Hughes 290 (U. S. Cir.) 8.-When a clerk leaves office of a company with a receipt which he is on certain desiring to renew an insurance, and where the company has money of such person under its control, and where the premium is offered to the clerk and by him refused, and the receipt is left and no demand is made for its return, and the person holding it relies upon it as an insurance, company is estopped from denying its liability, even although private instructions may have been given to the clerk which he did not disclose, not to leave the receipt unless he was paid in cash. Staunton v. Western Ins. Co., 21 Grant Ch. 578 (Can.); and see 23 Id. 81. 9. If a company chooses to issue its policy and to look to its agent for the premium, it must be considered as paid so far as the liability of the company is involved. Planters' Ins. Co. v. Ray, 52 Miss. 325. 10.- A negotiable promissory note of broker accepted by the company on account of the premium, is prima facie payment of it, and discharges the assured. Union Ins. Co. v. Grant, 68 Me. 229. 11. A condition which provides that no insurance shall be considered to be binding until actual payment of the premium is not governed by the statute relating to conditions of insurance or variations. That act relates to contracts of insurance which have been made. The above condition refers to a precedent act to be done, without which there is to be no contract. Geraldi v. Provincial Ins. Co., 29 Up. Can. C. P. 321. 12.- When assured tenders the money to local agent of the company for the premium and he declines to take it, saying that he has in his hands money belonging to him for rent, and will credit him by that amount, it is equivalent to payment. Woody v. Old Dominion Ins. Co., 31 Grat. 362 (Va.) Payment to Agent or Broker. cedent to the existence of insurance, not- v. Pacific Mut. Ins. Co., 1 Cent. Rep. 73; withstanding delivery of the policy. 100 N. Y. 41. Pottsville Mutual Fire Ins. Co. v. Min- 20. Where neither the policy of in- fixes a place for the payment of the premium, or names the person to whom it 15. It is no defense that assured failed must be paid, parol evidence is competent to pay a note given for the premium, there to show the agreement between the inbeing no provision in the policy making sured and the agent who effected the inactual payment of the premium a condi-surance as to the place of payment. tion precedent, or default in payment a Blackerby v. Continental Ins. Co., 83 Ky. cause of forfeiture. Barracliff v. Trade | 574. Ins. Co., 13 Ins. L. J. 190; 45 N. J. L. 543; 21. Upon an insurer's avoiding a and see contra, McIntyre v. Michigan State Ins. Co., 52 Mich. 188; 13 Ins. L. J. 216; where the policy did contain such provision. 16.- When an agent in usual course of business charges himself with the premium, and upon delivery of the policy is obliged to pay it as his own debt, the insured becomes debtor to the agent, and the agent to the company; this, in view of course of business is an equivalent of actual payment. Elkins v. Susquehanna Mut. Fire Ins. Co., 16 Ins. L. J. 78; 4 Cent. Rep. 761; 113 Pa. 386. 17. A remittance by agent to his company on general account of "premiums," being accepted with knowledge that it was in excess of amount then actually due, and renewal of certain policies having been agreed upon for their benefit, even although there had been no specific appropriation of the money. Held, that it must be taken as having been received on account of such renewals. Kirkpatrick v. So. Australian Ins. Co., L. R. 11 App. Cas. 177 (Eng.) policy because representations or statements in the application are untrue, the policy becomes void ab initio and in toto; and the insurer cannot enforce the promise of the insured to pay the premium. *Schreiber v. German-American Hail Ins. Co., 19 Ins. L. J. 730; 45 N. W. Rep. 708; 43 Minn. 367. 23. A tender of payment of premium in full within a term of credit allowed is a sufficient compliance with the condition of payment to sustain an action on the policy. *Farnum v. Phonix Ins. Co., 83 Cal. 246, 23 Pac. Rep. 869. 24. It is not essential to the validity of a fire insurance policy, that the premium should have been paid before the fire. *Huggins Cracker & C. Co. v. People's Ins. Co., 41 Mo. App. 530. 18.- Where the company was accustomed to treat its agent as a debtor for the premiums and periodically to render him statements on which settlements 25.- The premium on a policy of inwere had, his obligation to pay the pre-surance issued under a custom between miums is in effect the payment of them by insurance agents, of keeping mutual acthe insured, and the policy cannot be counts for premiums due on policies and avoided for non-payment of premium. paying the difference at the end of each Pennsylvania Ins. Co. v. Carter, 9 Cent. month, is paid at the time of its issue, so Rep. 528; 11 Atl. Rep. 102 (Pa.) far as the rights of the assured and of the company are concerned. Id. 19. If, after the making of an agreement of insurance, premium to be paid by note of the applicant, and before the time when a policy should be made, the applicant becomes insolvent, the company can demand a solvent note instead of his as a condition of granting the policy. Hubbell 26. Payment to agent or broker. A check on the bank, payable to the order of the agent and accepted by him in payment of the premium, is in compliance with condition requiring payment before policy can take effect. The mode of pay Payment to Agent or Broker. ment not being prescribed by the company, the agent is at liberty to exercise a discretion in the matter, and may prescribe the mode of payment. Tayloe v. Merchants' Fire Ins. Co., 9 How. 390 (U. S.) premium to the company and afterwards take the assured's note for the amount thereof as their own and negotiate the same, this is a sufficient compliance with a condition of the policy requiring premium to be actually paid before company should become liable. Home Ins. Co. v. Curtis, 32 Mich. 402. 27.- An agreement made in good faith between an insurance agent, having authority to receive an insurance premium, 32. It was the custom of company to and the insured, that the agent shall be- deliver policies to broker without requircome personally responsible to his princi-ing cash payment of premium, charging pals for the amount of such premium, and the insured his personal debtor therefor, constitutes a payment of the premium as between the insured and the insurance company. Bouton v. American Mut. Ins. Co., 25 Conn. 542; Sheldon v. Connecticut Ins. Co., 25 Conn. 207. 28. Where it was stipulated in a policy that it should not be valid until the premium had been actually paid at the office of the company; held, that such stipulation was not complied with or waived by a payment of the premium to an insurance agent through whom the application was made, and the policy delivered, the policy also containing an express stipulation that every insurance agent, broker or other person forwarding applications or receiving premiums, should be deemed the agent of the applicant, and not of the company; although the company were in the habit of settling a monthly account with such agent, and he, after the loss, tendered the premium to the company. Mulrey v. Shawmut Mut. Fire Ins. Co., 4 Allen 116 (Mass.) the same to his individual account, and rendering to him monthly bills, deducting an agreed commission for obtaining risks. In his monthly settlements the broker paid the premiums charged to him, whether he had collected them or not, and in this particular case he offered to pay the premium at his first settlement after the issue of the policy, and after the fire. Held, evidence justified finding that company had accepted the individual credit of the broker as a payment of the required premium. White v. Connecticut Ins. Co.,120 Mass. 330. 33.- Policy is not rendered void by the fact that agent of company has consented to assured's paying the premium with credit of the amount upon his individual account. Jones v. Ætna Ins. Co., 8 Ins. L. J. 415 (U. S. Cir.) 34.- Broker is an agent of the assured and not of the company. Payment of premium to former does not bind the latter. Pottsville Mutual Fire Ins. Co. v. Minnequa Springs Improvement Co., 11 Ins. L. J. 892; 100 Pa. 137. 35.- It seems that agent binds the company in making agreement with assured to accept payment of premium in trade. Carlwitz v. Germania Fire Ins. Co., 12 Ins. L. J. 127 (U. S. Cir.) 29. When policy is delivered to a broker to be handed over to the assured if the premium note is paid, and the broker keeps the policy at the request of the assured, and while in his possession 36.- When policy provides in terms property is destroyed, premium not hav- that the company shall not be liable until ing been paid and condition in policy re- the premium be actually paid to the comquiring its prepayment, held, that company or its agent, and that a broker pany would not be bound by any credit or arrangement made by the broker with the assured. Marland v. Royal Ins. Co., 71 Pa. 393. 30. The charging of the premium to an agent, and the agent's agreement to give time for its payment, and subsequent payment to the company, constitute a waiver. Dayton Ins. Co. v. Kelley, 24 Ohio, 345. should be deemed the agent of assured, and that no person should be considered agent of the company unless he held the commission of the company, and that there should be no waiver unless evidenced by writing, payment of the premium to a broker who procured the policy cannot operate as a payment to the company. Peoria Sugar Ref'y v. Susquehanna Ins. Co., 20 Fed. Rep. 480; 14 Ins. 31.- If agents of company acting for themselves advance the money for the L. J. 333. Acceptance as Waiver of Forfeiture. 37. A provision that policy shall be to a broker, he is the agent of the comvoid if insured neglects to pay the premium pany; and payment of premium to him is is rendered nugatory by company's agent binding on the company. Lebanon Mut. giving credit to the insured for the same, F. Ins. Co. v. Erb, 2 Cent. Rep. 783; 112 and the company and its agent in usual Pa. 149. course of business treating the premium as the personal debt of the latter. Lebanon Mut. Ins. Co. v. Humes, 5 Cent. Rep. 211; 16 Ins. L. J. 679; s. c. 113 Pa. 591. 44.- Where the insured applies through a broker to an agent for a policy of fire insurance, and the agent, upon receiving the policy, delivers it, with several others 38.- When policy is delivered by the for the insured, to the broker, charges the company to a broker who delivers it to broker in a running account with the the insured, and the premium is charged premium, receives from him at once paragainst the broker by the company in an tial payment and the balance of the preaccount kept with him the insured has a mium after a fire has occurred, the comright to rely upon the broker's implied pany cannot, in an action on the policy, authority to receive payment of the pre- set up as a defense the failure of the inmium; and if paid to the broker the com-sured to comply with the condition relatpany can not subsequently recover same ing to payment of premium. Elkins v. from the insured. Greenwich Ins. Co. Susquehanna Mut. F. Ins. Co., 4 Cent. Union Dredging Co., 14 Daly 237, Rep. 761; 113 Pa. 386. V. (N. Y.) 39.- Where through ignorance, the insured is made the agent of the insurer to collect premiums, payment by the insured to himself as such agent will not bind the insurer. Harle v. Council Bluffs Ins. Co., 71 Iowa, 401; 32 N. W. Rep. 396. 45. Acceptance as waiver of forfeiture. Where a note for the balance of a premium on a policy of insurance, payable at a day named, is payable on the date of loss, in case of loss before that time, the acceptance of money due on the note six weeks after loss, and after the 40.- When policy requires prepayment commencement of a suit, does not waive of the premium, a broker or soliciting a forfeiture for a previous breach of a conagent empowered in usual course of busi-dition of the policy. *Shimp v. Cedar ness to deliver the policy and receive pre- Rapids Ins. Co., 13 West. Rep. 857; 16 N. miums, may take note of insured and East. Rep. 229; 26 Ill. App. 254. have it discounted, and as soon as the money from such note comes into his hands the premium is actually paid, and policy becomes operative. This notwithstanding clause in policy making broker agent of insured. Carson v. Jersey City Ins. Co., 14 Vroom 300 (N. J.) 41. A condition that a company shall not be liable until the premium is paid into its treasury may be waived by its adoption of a course of business allowing agents to receive checks. Universal F. Ins. Co. v. Block, 1 Cent. Rep. 554; 109 Pa. 535; Lebanon Mut. Ins. Co. v. Humes, supra No. 37. 42.- Where the premium is promptly paid over to the insurance broker, the fact that the broker retains the money, by arrangement with the agent, will not suspend the company's liability. Riley v. Com. Mut. F. Ins. Co., 1 Cent. Rep. 119; 110 Pa. 144. 48.- Where a policy with indorsed receipt for premium is sent by the company 46.- Acceptance of premium after it is due, and after a loss, is a waiver of forfeiture of the policy, though it contains a provision that the policy shall be void if the premium note is not paid when due. Phoenix Ins. Co. v. Lansing, 15 Neb. 494. 47. The forfeiture of an insurance policy for failure to pay the premium is not waived by accepting a part of the amount, where it provides that it shall remain null and void during such default, but that this shall not prevent the company collecting the amount due by suit or otherwise. Curtin v. Phonix Ins. Co., 78 Cal. 619; 21 Pac. Rep. 370. 48. The mere demand by an agent of an insurance company of premium after the time when it was due, where there was no payment or tender of payment, and no agreement for extension of time, is not a waiver of the forfeiture provided by contract for failure to pay the premium when due. Cohen v. Continental F. Ins. Co., 67 Tex. 325; 3 S. W. Rep. 296. |