Driver v. Planters' Mutual Insurance Ass'n

93 S.W. 752, 78 Ark. 127, 1906 Ark. LEXIS 224

• Court: Supreme Court of Arkansas
• Decided: March 3, 1906
• Status: Published

Opinion

Battle, J.

Planters’ Mutual Insurance Association of Arkansas insured certain property of Jettie Driver against fire, and received his note for $88 for the premium. The policy of insurance in reference to the note provided: “If paid on or before'maturity, all interest waived, said amount being for cash premium on my insurance this day applied for; and it is further agreed that, if this note is not paid at maturity, the whole amount of assessment on said insurance shall be considered as earned, and the contract be null and void, so long as this note remains overdue and unpaid.”

The property insured was destroyed by fire. The question is, was the note paid ?

The note was sent to the bank at Osceola, Arkansas, about the latter part of October, 1903, for collection. The insurance company and the bank notified Driver that the note was sent there. The proof on the part of Driver was that he went to Osceola after he had been notified and before the fire; that he “went to the bank and found no one there, but he met the cashier some two hundred yards from the bank, and told him to pay the note, and he promised to do so; that Driver had money on deposit in the bank sufficient to cover the note; that no check was drawn,’, and no entries made on the books of the bank charging Driver with the amount of said note, and no credit given to the Insurance Company until after the fire occurred. Several days, and perhaps several weeks, according to the contention of Driver, had intervened between the time he told the cashier to pay the note and the date of the fire, and he made no effort to see whether the note had really been paid or not until after the fire.”

The money to the credit of Driver in the bank was never applied to the payment of the note. The bank gave no credit to the insurance company on its books for the note or charged Driver with the amount thereof until after the fire, but until then treated it as unpaid and uncollected. There was no payment. Hatch v. Hutchinson, 64 Ark. 119; Sutherland v. First National Bank of Ypsilanti, 31 Mich. 230; Hecksher v. Shoemaker, 47 Pa. St. 249; Phillips v. Mayer, 7 Cal. 81; Cavanaugh v. Buehler, 120 Pa. St. 441, 453; Pease v. Dibble, 57 Ga. 446; Price v. White, 70 Ga. 381; Kenny v. Hazeltine, 6 Humph. 62.

The effort to pay the note after the fire was too late to save the insurance.

Judgment affirmed.