Teel v. Camden Fire Insurance

YORK, J. This is an appeal from an order granting a new trial after judgment on verdict in favor of appellants. On May 18, 1931, the plaintiff suffered injuries as the result of a collision with a motor truck owned by Signal Trucking Company. Pie thereafter brought an action against the trucking company and recovered judgment in the sum of $17,170.60 and costs of suit. At the time of the accident the trucking company carried with the defendant insurance companies a contract of insurance indemnifying it against liability for injuries to persons and damage to property arising out of or occasioned by the use, operation and maintenance of the trucks of said assured. The present action was brought against the insurance companies to recover the amount of the judgment rendered against the assured, except for the sum of $1570, which has been paid on the judgment by the assured.

Defendants interposed the defense that the contract of insurance had lapsed prior to the accident by reason of the fact that the monthly premium for the policy had not [627]been paid. Affixed to the policy of insurance was the following indorsement:

“It is hereby understood and agreed that the annual premium under this policy, amounting to $2320.57, shall be due and payable as follows:

“386.77—upon delivery of the policy.

“$175.80—on the eighth day of each succeeding month thereafter during the currency of this policy.

“It is further understood and agreed that the failure of the assured to pay to the company or its duly authorized representative the sum of $175.80 as above set forth shall terminate the company’s liability under this policy as of said due date.”

It is conceded that the policy of insurance was dated April 8, 1931, and it is shown by the evidence that the initial payment of $386.77 was made on the date the policy was delivered, and that the check for $175.80 which was given by the trucking company in payment of the premium due on May 8, 1931, was not paid.

Upon trial of the action, the jury brought in its verdict in favor of the defendant insurance companies, whereupon plaintiff made his motion for a new trial upon all of the statutory grounds. The order granting said motion specified : ‘1 One of the grounds for this ruling is the insufficiency of the evidence.”