Dourm v. Caledonian Insurance

FUNK, P. J.

Epitomized Opinion

Published Only in Ohio Law Abstract

This was an action on an insurance policy, The Insurance Company insured plaintiff’s automobile on July 13, 1920, for $2800 for one year, the policy to expire at noon July 13, 1921. In April, 1921, plaintiff had a loss payable clause attached to policy in favor of The Akron Finance Company, from whom plaintiff had obtained a loan. In entering the date expiration on this endorsement clause the typist erroneously made the date of expira-t'on July 31, 1921. On July 6, 1921, plaintiff’s husband, at her special instance and request, called on defendant’s local agent in Akron and requested a renewal of the policy at the expi ation, which the agent agreed to do. For some reason the agent did not issue a renewal of policy on July 13, 1921. The machine was totally destroyed by fire on July 31, 1921. The plaintiff claimed that the defendant was liable for the loss by reason of the agreement of the agent to renew. The defendant maintained that the actual cash value of the machine was not $2800, that no appraisers were appointed and that the conditions of the policy were violated. The court directed a verdict for the defendant, whereupon plaintiff prosecuted error. In sustaining the judgment of the lower court, the Court of Appeals held:

1. To entitle an insured to maintain an action to recover under a policy of insurance he must show that he has either performed the conditions or has a legal excuse for the non-performance thereof.

2. As the plaintiff did not plead a waiver of the conditions and did not prove a compliance with these conditions, a verdict was properly directed for the defandant.