Opinion
No. 3779.
January 13, 1930. Rehearing Denied January 23, 1930.
Appeal from District Court, Cass County; Geo. W. Johnson, Judge.
Action by John J. Ellington against the Tyler Mutual Fire Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed and rendered.
A policy issued by the appellant insurance company, dated October 6, 1928, purporting to insure, from the acceptance thereof by the insured (appellee Ellington) to October 6, 1929, in the sum of $3,000, a gin plant, consisting of buildings, machinery, bagging, and ties, cotton seed, etc., belonging to appellee, contained a stipulation as follows: "It is mutually understood and agreed that this contract of insurance shall not become effective or binding on either party thereto until the required premium deposit shall be paid either by cash or note to said secretary, and if a note be accepted as premium deposit, and it is not paid at maturity, this contract of insurance shall immediately cease to be effective or binding on either party thereto until said note is paid according to its terms and conditions."
The policy was sent by mail to appellee, with a letter, dated October 4, 1928, from Dabney White, appellant's secretary, as follows: "I hand you herewith renewal of your policy as heretofore carried in the sum of $3,000 under blanket form, and in return am asking you to send me the necessary premium of $157.50."
Appellee received the policy October 5 or 6, 1928, and October 24, 1928, wrote appellant as follows: "With reference to $3.000 insurance policy we carry on gin with the Tyler Mutual Fire Insurance Company, we understood that this was a profit-sharing policy and would have some saving from last year. We notice that the rate, $157.50, is the same premium we paid on this policy last year. Should have taken this matter up with you ere this, but in the fall rush of business overlooked it. Will thank you to look into this rate on our policy and kindly advise if it is correct."
October 25, 1928, appellant's said secretary (Dabney White) wrote appellee as follows: "In reply to your letter concerning your insurance, am advising you that you have our blanket policy covering your gin property, and it not only covers your gin proper, but also your seed cotton, cotton seed, bagging, and ties, and fuel. This policy is written at the same rate that other companies charge for their specific policy. We write the specific policy — the same kind of policy other companies write, with dividend of 25 per cent. deducted from your first payment. These two forms of insurance represent dividend you receive from our company. Inasmuch as your policy is blanket policy, you receive your dividend in extra protection to you. I thought you understood this condition thoroughly, as this has been our custom for 25 years."
The gin plant purporting to be covered by the policy was destroyed by fire on Saturday night, October 27, 1928. Appellee had not then paid the premium on the policy, but on the next day after the property was so destroyed, to wit, Sunday, October 28, 1928, he sent to appellant by mail, unaccompanied by a letter or communication of any kind, his check on an Atlanta, Tex., bank for $157.50, the amount of the premium on the policy. Appellant received the check Monday morning, October 29, 1928, and, knowing nothing about the fire which destroyed the gin plant, deposited the check in a bank at Tyler for collection. The first information appellant had of the fire was contained in a letter appellee wrote it October 29, 1928, which it received October 30, 1928.
Appellee having demanded payment of the policy, and appellant having refused to comply with the demand because of the former's failure to pay the premium before the property was destroyed as stated, this suit to enforce such demand was commenced by a petition filed February 6, 1929.
In its answer to the suit appellant set up the stipulation in the policy, set out above, that the contract should not become "effective or binding on either party thereto" until the premium had been paid, "either by cash or by note," and the failure of appellee to pay such premium before the fire occurred, as a reason why he should not recover anything of it.
In a supplemental petition appellee set up a provision in the policy that the acceptance thereof by him should be considered as an "agreement to its terms and conditions," and then alleged that he accepted the policy immediately on his receipt thereof October 6, 1928, and that same then became, and at the time of the loss was, a binding contract between him and appellant; that by delivering the policy to him as it did, without demanding that the premium first be paid, appellant waived payment thereof as provided in the stipulation it set up as stated above, and was estopped from setting up said stipulation as a defense to the recovery sought against it. Appellee alleged, further, that the effect of the letters and conduct of appellant's secretary, Dabney White, hereinbefore referred to, was to waive said stipulation. He alleged, further, that appellant had a custom of extending credit to its members, and that it extended credit to him in accordance with such custom, and thereby waived said stipulation and was estopped from asserting to the contrary. Appellee alleged, further, that he was entitled to 30 days from the time he accepted the policy in which to pay the premium thereon by virtue of a provision in appellant's constitution and bylaws, made a part of the policy, as follows: "In the event that a member fails to pay his or their premium when due or within 30 days after becoming due, without grace, suit shall be filed against him or them, in Tyler, Texas, and in addition to the amount asked for he or they shall pay all costs of court in collecting same, including a reasonable amount for attorney's fees."
In a supplemental answer appellant set up a provision in the policy that none of its officers or agents should have power to waive stipulations in the policy like the one it had invoked as defense against the recovery appellee sought.
The trial was to the court without a jury, and resulted in a judgment, rendered March 27, 1929, in appellee's favor for $3,000, the amount of the policy.
Butler, Price Maynor, of Tyler, for appellant.
O'Neal Harper, of Atlanta, for appellee.
The provision in the policy that it should not "become effective or binding on either party" thereto until the premium thereon had been paid was a valid one (Ginners' Mut. Underwriters' Ass'n v. Fisher [Tex.Com.App.] 238 S.W. 207, 208), and, if it ought to have been given effect, the judgment should have been in appellant's favor, instead of against it, for it conclusively appeared that the premium had not been paid at the time the fire occurred.
The trial court was of opinion, it seems, that the provision was never operative because of another provision in the policy, to wit, the one with reference to suit thereon in Tyler, Tex., set out in the statement above, and of opinion, further, that, if the provision in question was not rendered inoperative by the one with reference to suit in Tyler, appellee's failure to comply with it was waived by appellant. We do not think the judgment is sustainable on either of those grounds.
As to the provision that suit should be filed against a member in Tyler if he failed to pay a premium "when due or within 30 days after becoming due," it is evident it was intended to apply to a case where by agreement of the parties payment of the premium had been deferred to a time after the policy became effective, and not to a case like this one, where the premium was to be paid before the contract should become effective. The two provisions, in that view, are not inconsistent with each other, and the rule applicable therefore required both to be given effect. Thompson v. Waits (Tex.Civ.App.) 159 S.W. 82; Harrison Bldg. Co. v. B. F. Dittmar Co. (Tex.Civ.App.) 4 S.W.2d 1038; Clark v. Hamilton (Tex.Civ.App.) 16 S.W.2d 833; 2 Elliott on Contracts, 787 et seq.; 6 R.C.L. 837 et seq.
As to the other ground of the conclusion of the trial court, we think appellee failed to discharge the burden resting upon him to prove that appellant waived the provision in the policy that it should not be effective until the premium was paid. The court's conclusion was based upon his finding that the policy was "unconditionally delivered" to appellee when appellant sent it to him October 4, 1928, his finding that it was the "common custom and practice" of appellant acting by its secretary, Dabney White, to waive the provision in question, and his finding that appellant "by its conduct, letters, and practice" caused appellee to believe, "and in truth and in fact did assure him, that his contract of insurance here sued upon was in full force and effect and that his gin property was protected thereby," and that appellant agreed to be bound by the contract of insurance, despite the provision of the policy relative to repayment of premium.
The finding that the policy was "unconditionally delivered" was in the face of the fact that it was dated ahead of the time it was sent, contained the provision in question, and was accompanied by the letter of October 4, 1928, from appellant, set out in the statement above, asking appellee to send "the necessary premium of $157.50."
It is true appellee as a witness testified he had not read the policy at the time the fire occurred, and did not know it contained the provision in question. But he failed to either plead or prove facts "legally sufficient to excuse him for failing to read or know the contents" of the policy, and therefore was not in a position to claim anything on account of his ignorance of the existence of the provision. Southern Surety Co. v. Benton (Tex.Com.App.) 280 S.W. 551: National Life Ins. Co. v. Sikes (Tex.Civ.App.) 7 S.W.2d 154.
Chargeable, as appellee was, with knowledge of the provision, and requested, as he had been, in the letter which accompanied the policy when appellant sent it to him, to remit the amount of the premium, and in the absence, as was the case, of other evidence relevant to the matter, we cannot agree with the trial court that it appeared appellant had waived the prepayment of the premium and was in the attitude of having "unconditionally delivered" the policy to appellee. As we view it, the exact contrary appeared, to wit, that appellant had not waived such prepayment, but by dating the policy far enough ahead of the time it sent same to appellee to enable him to pay the premium and have it become effective on the day of its date, and by requesting appellee in the letter it sent with the policy to remit the premium, had advised him it was in the attitude of insisting on a compliance by him with requirement of the provision. Ginners' Mut. Underwriters' Ass'n v. Fisher (Tex.Com.App.) 238 S.W. 207.
The finding that it was the "common custom and practice" of appellant's secretary, Dabney White, to waive the provision in question, was based on testimony of appellee as a witness in his own behalf that, the year before the policy in question here was issued, appellant issued him a policy insuring the gin, that he did not pay the premium thereon until 15 or 20 days after he received it, and that appellant made no complaint because he did not sooner pay the premium, and testimony of the witnesses Baker and Pritchett that appellant issued to them, respectively, policies on gins, and that they, respectively, without complaint on the part of appellant, at times had delayed paying the premiums as long as from three weeks to two or three months. We do not regard the testimony referred to as of any probative force, for neither appellee nor either of the witnesses named testified to anything showing that appellant, after a loss occurred, ever recognized as effective and binding on it a policy it issued containing a provision like the one in question. The fact that it issued such policies, and, having notified the holders of the amount of the premium and requested payment of same at the time it delivered the policies, failed to renew its demand for such payment, was of no probative force, for it had a right to rely on the provision that liability on its part would not begin until such holders paid the premium on their respective policies. Patrick v. Association (Tex.Civ.App.) 256 S.W. 666.
The finding that appellant "by its conduct, letters, and practice" caused appellee to believe that the policy was in force, notwithstanding he had not paid the premium, and notwithstanding the provision in it that it should not be effective until he paid same, was without evidence to support it, we think. The "conduct, letters, and practice" relied upon was that hereinbefore referred to, for there was none other shown by the evidence. In none of that conduct and in none of those letters have we been able to see anything warranting the assumption that appellant was in the attitude of waiving a compliance by appellee with the provision in question.
As we see it, the judgment should not have been in appellee's favor. It will be reversed, and judgment will be here rendered that he take nothing by his suit against appellant.