OUR HOME LIFE INSURANCE COMPANY, PLAINTIFF IN ERROR,
v.
JAMES ANN PEACOCK, DEFENDANT IN ERROR
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Our Home Life Insurance Company obtained a writ of error challenging a judgment in favor of James Ann Peacock on an insurance policy issued on her husband's life. The Florida Supreme Court reversed, holding that the insurer properly pleaded a valid defense based on the insured's renunciation of the policy and mutual agreement to discharge both the insurance contract and the premium note.
The Court held that if the facts averred in the plea are true, they constitute a valid defense to the action. A subsequent mutual agreement that the contract of insurance and the note shall stand discharged is not required to be in writing, and surrender of the note by the insurer and the policy by the insured is not essential to a valid avoidance of the policy after failure and refusal to pay the premium.
“This policy shall not take effect unless the annual or other authorized premium thereon is paid to the company, or an authorized agent of the company, in the lifetime and good health of the insured.”
The policy provision establishing that payment of the premium was a condition precedent to the policy taking effect, supporting the insurer's defense.
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Join FLexlaw to unlock all legal intelligenceOur Home Life Insurance Company issued a life insurance policy to William Lewis Peacock on January 9, 1913, with an annual premium of $175.05 due Octo…
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Per Curiam.
James Ann Peacock obtained a judgment on an insurance policy issued on the life of her husband, William Lewis Peacock, deceased, and the defendant company took writ of error. One of the pleas to which a demurrer was sustained is as follows : “That the policy of insurance sued upon was issued by this defendant, to the said William Lewis Peacock, on the 9th day of January, A. D. 1913, in consideration of an annual premium of one hundred seventy-five and 05-100 dollars, to be paid this defendant on the 15th day of October, A. D. 1913. That the said William Lewis Peacock executed and delivered to this defendant his promissory note due October the 15th, 1913, for the said policy. That when the said note became due,, and afterwards on Nov. 5, 1914, this defendant duly requested payment of same from, the said William Lewis Peacock, and thereupon the said William Lewis Peacock refused to pay the said note, and unconditionally stated and declared he did not intend to pay said note, or in anywise comply with said contract and averred that he would not take the said policy of insurance or pay the said note or be bound by the same.
“And it was then and there agreed between this defendant and the said. William Lewis Peacock that the said contract of insurance together with the said note given therefor then and there stand discharged. Wherefore defendant says the said William Lewis Peacock, in his life time renounced the said contract and this defendant became thereby discharged.” The policy contained the following' provision: “This policy shall not take effect unless the annual or other authorized premium thereon is paid to the company, or an authorized agent of the company, in the lifetime and good health of the insured.”
If the facts averred in the quoted plea are true, such facts taken in connection with the quoted provision of the policy, constitute a defense to the action. The giving of the note for the premium was prima facie not a payment of the premium, but merely an extension of time for the payment till the maturity of the note. Herman v. Williams, 36 Fla. 136, 18 South. Rep. 351; McDonald v. Providence Savings Life Assurance Society, 108 Wis. 213, 84 N. W. Rep. 154; King v. McConnell, 57 Fla. 77.
The receipt of the premium was not acknowledged in the policy. It was not in fact paid. A subsequent mutual agreement that the “contract of insurance” and “the note given therefor” shall “stand discharged,” is not required to be in writing. The interest of the beneficiary was dependent upon the payment of premiums, and on failure of such payment the policy may be avoided by the insurer. The avoidance by stipulation after failure to pay the premium was not illegal. Surrender of the note by the insurer and of the policy by the insured was not essential to a valid avoidance of the policy and the note after failure and refusal to pay the premium note.
The judgment is reversed.
All concur, except Cockrell, J., absent by reason of sickness.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bd. of Pub. Instruction for Bay Cnty. v. State ex rel. W. J. Barefoot & Julia Lee Cooey, 145 Fla. 482 (Fla. 1941)…870, that “The execution of a note in renewal of a previous one is not a payment of such prior note, nor the creation of a new indebtedness, unless there is an express agreement to that effect by the parties.” See Our Home Life Ins. Co. v. Peacock, 71 Fla. 35, 70 So. 775; Frank, et al., v. Williams, 36 Fla. 136, 18 So. 351. Upon this authority we think that the note of the one relator accepted after the effective date of the amendment to the Constitution freeing homesteads up to a certain value from taxa…
Authorities Cited
- Frank Herman & Co. v. Helena Williams, 36 Fla. 136 (Fla. 1895)
- King v. McConnell, 57 Fla. 77 (Fla. 1909)