Forney v. Fidelity Mutual Life Insurance

Citations

• 87 Kan. 397
• 124 P. 406
• 1912 Kan. LEXIS 158

Syllabus

<p>.SYLLABUS BY THE COURT.</p> <p>1. Insurance — Premium — Default — Forfeiture — Revival — Waiver. An insurance contract provided that upon default in payment of premium or premium obligation the policy should ipso facto become of no effect, and that a revival could be had by .application, approval and payment of arrears — the insured being in good health. The insured gave his note for , one year’s premium and at its maturity defaulted. Shortly thereafter he made a partial payment and applied for revival, approval of which was withheld for the solé reason that the balance still due was not paid or arranged for. In fact the insured had, several days before his death,and several months prior to the expiration of the insurance year, paid the balance to the company’s agent, who failed to remit it to his principal. Held, that the policy should be deemed to have been in force.</p> <p>2. Pleadings — Variance—No Prejudicial Error. While waiver should have been specifically pleaded instead of alleging, as the petition did, that the policy was in full force at the death of the insured, still as no motion was made for more specific allegations, no showing of injury or application for further time, and the cause was fully tried, no materially prejudicial error was committed by permitting the plaintiff to introduce testimony to show waiver.</p>