
    Ohio Farmers' Insurance Co. v. Wilson.
    
      Policy of fire insurance — Issued with condition — That policy is void if premium or note given therefor — Is unpaid for thirty days at time of loss — Such condition is valid — Neither demand nor notice t>y company necessary.
    
    Where a policy of insurance is made and accepted upon the express condition that the “entire policy shall be void * * * if the premium, or any note given therefor, shall have been due and unpaid for thirty days at the time any loss or damage shall happen to the property insured,” there being no waiver of the condition, such policy will immediately be void if the premium or any note given therefor shall not be paid within thirty days after payment thereof is due; and neither demand of payment nor notice of intention to insist on the forfeiture is necessary on the part of the insurer. Insurance do. v. French, 30 Ohio St., 240, distinguished.'
    (No. 8435
    Decided June 21, 1904.)
    Error to the Circuit Court of Mahoning county.
    Defendant in error brought an action against the plaintiff in error to recover for a loss, under a policy which contained the following stipulations: “This entire policy shall be void * # * if the premium,, or any note given therefor, shall have been due and unpaid for thirty days at the time any loss or damage shall happen to the property insured hereby.”' Upon the trial it appeared that a note was given for the premium on this policy, and that the same had not been paid, although it was more than thirty days past due; nor was there any offer to pay except that after the fire had occurred a check for the face of the note was sent to the company’s agent, which was returned. The court instructed the jury that the policy was void by its terms, the proof being con-elusive that a note had been given for the premium, that it was unpaid for more than thirty days at the time of the loss, and that there was no evidence whatever as to waiver of this provision of the policy; and the court thereupon directed the jury to return a verdict for the defendant. A verdict was accordingly returned for the defendant and a judgment rendered thereon. • On petition in error the circuit court reversed this judgment and remanded the cause to the court of common pleas for a new trial. The insurance company now prosecutes a petition in error in this court to reverse the judgment of the circuit court and to affirm the judgment of the court of common pleas.
    
      Mr. Lee Elliott and Mr. D. J. Hartivell, for plaintiff in error.
    There being no controversy on facts we contend that the policy by its terms had become void at the time the loss occurred and that the trial judge rightly directed the jury to return a verdict for the defendant. We think this court has passed directly on this point in Matthews v. Insurance Co., 40 Ohio St., 135.
    In Sanderson Robert v. Insurance Co., 13 Re., 668, 1 Disn., 355, the court clearly and ably discusses all the questions involved in the case at bar.
    Both of these cases cited directly support our position that where the policy stipulated that it shall be void in case of default in payment of the premium or note given therefor the policy becomes void at the time the default occurs without any affirmative act on the part of the insurance company or notice that it intends to insist on forfeiture and that no recovery can be had for a loss occurring during such default unless the company does some act waiving the forfeiture.
    The rule contended for is supported by all the leading text writers on the subject of insurance. May on Insurance (2 ed.), sec. 345; Joyce on Insurance, 1106; Biddle on Insurance, 908; Ostrander on Insurance, sec. 92, p. 286.
    The circuit court in deciding this case felt that they were bound by the ruling of the court in Insurance Co. v. French, 30 Ohio St., 240. This case was not referred to in Matthews v. Insurance Co., supra, although the last named case was decided several years afterwards, and if the French case bears the construction placed, upon it by the circuit court it is in direct conflict with Matthews v. Insurance Co. It seems to us that the case of Insurance Co. v. French did not present the precise question raised in the case at bar.
    Probably the latest authoritative expression on the question under consideration is the case of Insurance Co. v. Lewis, 187 U. S., 335.
    But again the conclusion Insurance Co. v. French, 30 Ohio St., 240, and its approval in Thompson v. Insurance Co., 104 U. S. 252, are cited. It was contended in the latter case that the mere taking of notes in payment of the premium was, in itself, " .a waiver of the conditional forfeiture, and Insurance Co. v. French, 30 Ohio St., 240, was cited to support the contention.
    The cases cited in the opinion show that the Supreme Court of the United States has uniformly maintained the rule contended for. It is also supported by the weight of authority in the state courts. 
      Howe v. Insurance Co., 93 N. Y., 70; Roehner v. Insurance Co., 63 N. Y., 160; Baker v. Insurance Co., 43 N. Y., 283; Patch v. Insurance Co., 44 Vt., 487; Lewis v. Insurance Co., 44 Conn., 72; Pitt v. Insurance Co., 100 Mass., 500; State v. Insurance Co., 123 Mass., 113; Garlick v. Insurance Co., 44 Ia., 553; Critchetts v. Insurance Co., 53 Ia., 404; Am. Ins. Co. v. Leonard, 80 Ind., 272; Willcutts v. Insurance Co., 8 Ind., 300; Bulger v. Insurance Co., 63 Ga., 328; Mobile L. Ins. Co. v. Pruitt, 74 Ala., 487; Continental Insurance Co. v. Daly, 33 Kas., 601; Quinn v. Insurance Co., 28 La. An., 135; Knickerbocker L. Ins. Co. v. Dietz, 52 Md., 16; Webb v. Insurance Co., 63 Md., 213; McIntyre v. Insurance Co., 52 Mich., 188.
    
      Mr. Frank Jacobs and Mr. J. R. Johnston, for defendant in error,
    If the common pleas court was right, then this case should be reversed, if wrong it should be affirmed. We contend that the common pleas court was in error in almost every aspect of the case.
    Plaintiff below was entitled to have the question of fact, as to whether the note was received in payment of the premium, submitted to the jury. If authority for this is deemed necessary, we simply call attention to the elementary principles governing jury trials, together with Bank v. Green, 40 Ohio St., 439; Cole, for Eaton, v. Kerr, Wright, 675.
    The condition in the policy relied upon was void for want of mutuality. There is no provision in the clause which would invalidate the note. Bouton v. Life Ins. Co., 25 Conn., 542; Jacobs v. Life Ins. Co., 5 Bigelow, 48; Goit v. Insurance Co., 25 Barb., 189.
    
      The condition was waived. The note was held by the company for more than two years and no notice of cancellation given or forfeiture declared by plaintiff in error. It had the option of declaring a forfeiture, but did not do so. Goodenow v. Tappan, 1 Ohio, 69. Forfeitures are not favored, and a provision for forfeiture will be strictly construed against the party in whose favor it is made. Insurance Co. v. French, 30 Ohio St., 240; Webster v. Insurance Co., 53 Ohio St., 558; Lessee of Bond v. Swearingen, 1 Ohio, 395; Lessee of Boyd v. Talbert, 12 Ohio, 212; Smith v. Whitbeck, 13 Ohio St., 471; West et al. v. Insurance Co., 27 Ohio St., 1; Presbyterian Church’s Lessee v. Picket et al., Wright, 57.
    The note was received as payment.
   Davis, J.

The parties had the legal right to agree, as they did do in this case, that the entire policy should be void if the premium, or any note given therefor, should have been due and unpaid for thirty days at the time the loss occurred. Their agreement was not merely that the policy should be void if the premium were not paid; but that it should also be void if any note given in payment of the premium should not be paid. It was agreed also that on the happening of that condition, the entire policy should be void, not that the insured should have the option to declare it void, or that it should become void, or be declared void thereafter upon any subsequent conditions. It was therefore not necessary for the insurer to demand payment of the note, nor to give to the insured any notice of intention to stand on the forfeiture. The contract of insurance became cancelled by the mere failure of the insured to pay the premium note within thirty days after its maturity. Iowa Life Ins. Co. v. Lewis, 187 U. S. Rep., 335; May on Insurance (2 ed.), sec. 345/; Joyce on Insurance, sec. 1106. As this condition in the policy is made for the protection of the insurer it could he waived; but there is nothing in this case which tends'to show a waiver by the insurance company. We know of no ruling in this court which is in conflict with our view of this case. Indeed, there are several which are in complete accord with it, although in none of them is the precise question here made formally decided. For example, Union Mut. Ins. Co. v. McMillen, 24 Ohio St., 67. In that case as in this (see statement of case) there was a condition, which was contained in a special agreement on the margin of the policy, that if any note be given in payment of premium and such note should not be paid according to the provisions thereof, then the policy should “become immediately void,” etc. This very explicit condition, for some reason which is not apparent, does not appear to have been mentioned either in the argument or in the decision, and the case was decided upon another condition appearing in the body of the policy; but it seems almost certain that if the case had stood upon the single condition as to the payment of the note, the judgment must have been the same; for White, J., discussing the question whether .the policy was a subsisting obligation at the time of the death of the insured, says:

“In considering the first question it is to be observed that the body of the policy contains a provision which declares that the policy is made and accepted upon the express condition that if the amount of any annual premium is not fully paid, on the day provided for, then the policy shall become hull and void, and wholly forfeited; and also that no agent of the company, except the president or secretary, can waive such forfeiture, or alter that or any other condition of the' policy.
“The parties were at liberty to contract in their own terms; and where no rule of law or of public-policy is contravened, the terms thus employed must furnish the standard for determining their rights under the contract.
“By the terms of this policy, full payment of the annual premium on the day provided for, was necessary to its renewal or continuance. As a consequence of the failure to make such payment, it is-expressly declared that the policy shall become-‘null and void, and wholly forfeited.’ Hence, if there was no authorized extension of -the time of payment, the policy had ceased to be operative long before the termination of the life insured.”

Another case is Insurance Co. v. Robinson, 40 Ohio St., 270, which differs from this case in no essential particular. The default in that case was in the payment of interest on outstanding premium notes; but the same condition covered the case of non-payment of the notes. Still another case is Matthews v. Insurance Co., 40 Ohio St., 135, cited and commented upon in the brief for plaintiff in-error.

But it is said that a different doctrine is laid down in Insurance Co. v. French, 30 Ohio St., 240, and that it was the controlling factor in producing the judgment of the circuit court in this case. The real controversy in that case was whether the insurer had waived the forfeiture or by its course of business: •with the insured had estopped itself from setting up' the forfeiture under the contract. That issue was-fairly submitted to the jury and the court was notable to say that the jury had clearly erred in finding" a verdict for the insured, and that was the foundation of the judgment .affirming the judgment; of the court below. In that the court was undoubtedly right; but it is in the reasoning by which that conclusion was reached that the confusion as to the meaning of the court arises.. It was pointed out in the opinion that the note which was given for premium contained a stipulation that “if not paid at maturity said policy is to be null and. void,” but that jhe policy itself contained no such provision. It cohtained only a clause that it should be void for non-payment of the premium. It seems, to have been the view of the judge who wrote the-opinion that payment of the premium by a note satisfied the condition of the policy and that non-payment of the note not being provided for in the policy but only in the note itself, that clause was not a part of the policy and its breach would not, therefore, of itself, avoid the policy, and that it was necessary for the insurer to do something indicating its intention to insist upon the forfeiture. It is not very clear that such is the correct view. Indeed it seems to us. that the reasoning of the Supreme Court of the' United States in the ease above cited is more satisfactory. Counsel for the plaintiff in error in support of their contention that the policy was void, had cited Union Mut. Life Ins. Co. v. McMillen, supra, with other eases. The court however, declined to be controlled by them for' the reason that there was an obvious difference between those cases and the case then in hand, viz.: “In most of the cases which have been cited in argument the policy contained a clause, that it should be void upon non-payment of the premium, or any note .given for such premium. This policy, however, contains no clause of avoidance for the non-payment of notes for premium. ’ ’

But Insurance Co. v. French finally turned upon the question of waiver and the syllabus, for which alone the concurring judges are responsible, must be interpreted in the light of that fact and of the particular circumstances of that case.

It is important to note in this connection another remark in the opinion in Insurance Co. v. French, because it conclusively shows that in the mind of the •court the crucial point of that ease was the question •of waiver, viz.: “Nor do these views conflict with Robert v. Insurance Co., 1 Dis., 355, a case which counsel seem to' think decisive of this. In that case the court admit that subsequent acts may prevent fhe avoidance of a policy, quoting some of the authorities already cited. ’ ’

We do not, therefore, regard Insurance Co. v. French as in any way applicable to the case now in hand, nor as conflicting with any former utterances •of this court or with the law of this case as we have stated it above.

The judgment of the circuit court is accordingly ■reversed and that of the court of common pleas

Affirmed.

Spear, O. J., Shauck, Price, Crew and Summers, JJ., concur.  