Union Cent. Life Ins. v. Berlin , 101 F. 673 ( 1900 )

CLARK, District Judge,

after stating the case, delivered the opinion of the court.

The question presented by the motion to direct a verdict for defendant, and by the assignment of error to the ruling of the court on the motion, is whether, upon the evidence disclosed in the letters of Marmon, the assured, Berlin, as a man of ordinary intelligence and prudence, was or could have been misled or induced to believe that the premium note falling due July 15, 1895, had been or would be extended, by reason of what had occurred between him and Marmon, without anything further on Berlin’s part. Having stated the evidence at length, it would seem to require no particular discussion to show that no reasonable or just view which could be taken of this evidence would justify the conclusion that the insured was misled, or misunderstood the effect of a failure to pay the July installment of premium according to the very plain terms of the contract. The parties having made certain terms conditions on which the contract was to continue or to terminate, the contract as thus made must be enforced, unless performance was waived by the insurer. Imperial' Fire Ins. Co. v. Coos Co., 151 U. S. 452, 14 Sup. Ct. 379, 38 L. Ed. 231; Insurance Co. v. Rosenfield, 37 C. C. A. 99, 95 Fed. 358. All dealings in relation to the policy after its delivery to Berlin are found in what occurred in regard to the premium notes maturing May 15th and July 15th. The assumption of the first note was not on behalf of the company, but the individual undertaking of Marmon, affecting the relation between him and Berlin only. Such negotiations as took place in respect of the second (or July) note could only impress upon a reasonably intelligent, prudent person the importance of prompt payment of this installment of premium, and the danger of nonpayments The understood necessity for a medical certificate of good health or' freedom from dangerous illness in order to renew the second note, with continued sickness from July 7th, furnishes a probable explanation of the failure by Berlin to take any further action after that date. But, be this as it may, the suggestion that he was misled as to the effect of what had taken place is wholly without support in the evidence. We conclude; therefore, that the facts furnish no foundation for the claim that forfeiture of the policy for breach of the condition requiring prompt payment of the premium was waived, and that it could not he reasonably inferred from the facts that Berlin was misled in this respect. Under such circumstances there was error in the court’s refusal, on motion, to withdraw the case from the jury.

This view, being conclusive of the case as presented by the record, renders it unnecessary to consider other assignments of error. Reversed and remanded, with a direction to set aside the verdict and grant a new trial.