Opinion
No. 29432.
May 4, 1931.
1. INSURANCE.
By introducing fire policy and premium note insurer made prima facie case, entitling it to judgment on note, in absence of evidence of payment or other defense.
2. INSURANCE.
Fire policy provisions for suspension on default of premium note installment and reinstatement on payment of arrearage are valid.
3. INSURANCE. Mortgage clause respecting mortgagee's interest held not to supersede provision for reinstating policy on payment of delinquent installments of premium note.
The mortgage clause attached to fire policy was in substantially statutory form and was to effect that insurance as to mortgagee's interest only should not be invalidated by any act or neglect of mortgagor or owner, nor by any foreclosure or change in ownership, or by more hazardous occupation of premises than permitted by policy, with provision for mortgagee's payment of premium on mortgagor's failure to do so.
4. APPEAL and ERROR.
Though premium note authorized attorney's fees, fees could not be allowed on appeal, where no evidence thereon was offered at trial.
APPEAL from circuit court of Benton county; HON. T.E. PEGRAM, Judge.
Marvin Crawford, of Ashland, and R.L. McLaurin, of Vicksburg, for appellant.
The only theory upon which the learned court below held that the recovery could not be had by the insurance company was that the insurance, having been suspended during the default in the payment of the note, that the note was void and without consideration, because of such condition contained therein. This ruling of the trial court was equivalent of saying to the appellee that he might relieve himself of the legal obligation to pay his own note because of his default, without any breach of the contract on the part of the insurance company.
This identical question was settled by this learned court in the case of Home Fire Insurance Company of New York v. McFarland, 142 Miss. 558, 107 So. 754, to the opinion in which case we respectfully direct the attention of the court. The opinion in the foregoing case was written by Judge McGowen, and it was specifically held that one might contract for the suspension of a contract, and a renewal or reinstatement of the terms and provisions thereof, upon the payment of the arrearage.
T.M. McKenzie, of Ashland, for appellee.
The facts are that the burden of proof was on the plaintiff and his own witness admitted under oath that he did not know whether any or all of these premiums had been paid. Under section 5185, Miss. Code 1930, Vol. 2, the plaintiff was required by this section to notify the mortgagee or trustee of the failure of the mortgagor to pay any premiums due, and should he fail to do so the policy would then become null and void and therefore no rights would exist for either party, and the case cited by counsel, Home Fire Insurance Co., of New York v. McFarland, in 142 Miss. 558, 107 So. 754, decided by this honorable court is not in point for the reason that the court only held between the parties that the failure to pay a premium lapse the policy with the right of either party to arrearages and continue the policy in full, the statute above quoted makes the policy absolutely null and void upon the failure of the mortgagor to pay the premium or the failure of the fire insurance company to notify the mortgagee on the failure or default in the premium and last but not least the failure or default of the mortgagee to pay the premium renders the policy null and void and this honorable court has held in a numerous line of decisions and leading cases being the case of Cotton Oil Co. v. Fire Insurance Co., 152 Miss. 532, 533.
The appellant, Hartford Fire Insurance Company, issued to the appellee, W.A. Dickerson, a policy of insurance covering certain tenant houses, and protecting the appellee from loss thereon by reason of fire, lightning, and storm for a period of five years. In payment of the premium on said policy, the appellee paid the sum of thirty-six dollars and twenty-four cents and executed a note for one hundred forty-four dollars and ninety-six cents payable in four equal annual installments. This note provided that, if any single payment given for the whole or any portion of the premium for said policy shall not be paid when due, the company shall not be liable for loss during such default, and the said policy shall lapse until payment shall be made to the company at its office in Atlanta, Ga., and the whole amount of installments, or notes, remaining unpaid may be declared earned, due, and payable, and may be collected by law. The appellee defaulted in the payment of the first installment of the said note, and thereupon the appellant instituted this suit in the court of a justice of the peace for the full amount of said note, and recovered a judgment therefor, from which there was an appeal to the circuit court. On the trial of the cause in the circuit court, there was a judgment entered in favor of the appellee, Dickerson, and from this judgment this appeal was prosecuted.
Among the stipulations on the policy which are specifically made a part of the contract are the following: "It is expressly agreed that this company shall not be liable for any loss or damage that may occur to the property herein mentioned while any instalment of the instalment note, given for premium upon this policy, remains past due and unpaid; or while any single payment, promissory note (acknowledged as cash or otherwise) given for the whole or any portion of the premium remains past due and unpaid. Payments of notes and instalments thereof must be made to the said Hartford Fire Insurance Company at its Southern Farm Department Office in Atlanta, Georgia, to a person or persons specifically authorized to collect the same for said company. . . . The company may collect, by suit or otherwise, any past due note or instalment thereof and a receipt from the said Atlanta office of the company for the payment of past due notes or instalments must be received by the assured before there can be a revival of the policy, such revival to begin from the time of said payment, and in no case to carry the insurance beyond the end of the original term of this policy."
Upon the trial of the cause the appellant, by its agent who wrote the insurance and took the note, identified and introduced in evidence the note and policy of insurance, and rested. The appellee offered no evidence, and on appeal, in support of the judgment in his favor, contends, first, that the appellant was not entitled to recover for the reason that it offered no evidence that the note had not been paid. By the introduction of the note and policy contract, the appellant made out a prima facie case entitling it to a judgment in the absence of evidence or payment or other defense.
Upon all other points this case is controlled by the case of Home Insurance Co. v. McFarland, 142 Miss. 558, 107 So. 754, in which the court had under consideration provisions of a policy identical with those found in the policy here involved and quoted above, and held that provisions of a policy for suspension on default of any installment in the premium note, and renewal or reinstatement on the payment of the arrearage, are valid.
The provisions of a mortgage clause attached to the policy, in substantially the statutory form, to the effect that this insurance, as to the interest of the mortgagee only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the property, nor by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy, and in case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee shall, on demand, pay the same, provided also that the mortgagee shall notify this company of any change of ownership or occupancy or increase of hazard which shall come to the knowledge of said mortgagee, and the mortgagee shall, on demand, pay the premium for such increased hazard for the term and use thereof, otherwise this policy shall be null and void, do not supersede or invalidate the express provisions of the contract between the original parties that payment of any past-due installment of the note may be enforced, and that the policy shall thereby be renewed or reinstated from the time of such payment.
The note sued on contains a provision for the payment of "expenses of collection and attorney fees," but there was no evidence whatever offered touching the question of attorney's fees, and consequently none can be allowed in this court. The judgment of the court below will therefore be reversed, and judgment will be entered here for the full amount of the principal of the note with six per cent interest from the date of filing of the suit.
Reversed, and judgment here for appellant.