Capital Fire Insurance v. Shearwood

112 S.W. 878, 87 Ark. 326, 1908 Ark. LEXIS 61

Opinion

Wood, J.,

(after stating the facts). Where a fire insurance policy is issued, and the premium is paid, and afterwards the assured violates the provisions _of the policy against incumbrances, which creates a forfeiture, the insurer, having no knowledge of the forfeiture until after the loss occurs, does not waive same by merely failing to return the premium before suit is brought to recover the amount of the policy; nor is it precluded by such failure from setting up the forfeiture in defense of 'the suit. Kentucky Vermillion Mining & Concentrating Co. v. Norwich Union Fire Ins. Soc., 146 Fed. 695; U. S. Life Ins. Co. v. Smith, 92 Fed. 503, 34 C. C. A. 506; Georgia Home Ins. Co. v. Rosenfeld, 95 Fed. 358, 37 C. C. A. 96; 16 Am. & Eng. Enc. L. p. 939 and cases cited. See Titus v. Glens Falls Ins. Co., 81 N. Y. 410; Gibson Electric Co. v. Liverpool & L. & G. Ins. Co., 159 N. Y. 418.

In such cases the insurer has done no affirmative act recognizing the validity of the policy, notwithstanding the forfeiture, and has done nothing to deceive, or to increase the burdens of, the assured. Therefore the doctrines of waiver and estoppel cannot be invoked against the appellant, under the conceded facts of this record. Queen Ins. Co. v. Young, 86 Ala. 424; Ala. State Mutual Assurance Co. v. Long Clothing & Shoe Co., 123 Ala. 667. See, also, Sun Mut. Ins. Co. v. Dudley, 65 Ark. 240.

The judgment for the error indicated, is reversed; and the cause is dismissed.