Based upon the theory that the foregoing opinion by Mr. Justice BROWN constituted an opinion by the Court as an extension of the original opinion in response to application *Page 618 for rehearing, counsel for appellee have re-argued the entire case upon a second application for rehearing. The first paragraph of the opinion of Mr. Justice BROWN on rehearing would appear to be but a re-affirmation of the conclusion of the Court reached upon the original consideration of the case — that the policy was not subject to forfeiture on March 25th, 1938, and that, as a consequence, the Court erred in giving the affirmative charge for the defendant. But further discussion in this opinion of Mr. Justice BROWN constitutes only his individual views, and was not intended as expressing the views of the Court. Perhaps the manner of presentation of this matter on rehearing has inadvertently led to some confusion of counsel, and it is, therefore, thought proper that a more definite explanation of the holding of the Court be made.
As disclosed from the original opinion, a majority of the Court, consisting of GARDNER, C. J., FOSTER, LIVINGSTON, and LAWSON, JJ., were of the opinion there had been no forfeiture of the policy, and their conclusion was confined to that question alone. Under the undisputed evidence in the case, and indeed under the evidence furnished by the appellee insurance company, unless interest is to be added upon interest, on March 25th, 1938, the company was due on the policy a balance of $1.21. The date of March 25th was the date of interest payment. The insured died in August, 1938, and as stated in the original opinion, "the company could not at a later date short of the next interest payment period, March 25, 1939, forfeit the policy." Of course, it was conceded by all parties that if there was ambiguity in the contract it should be construed most strongly against the insurance company. There was no stipulation in the contract that added interest should bear interest, differing materially in this respect from the provisions found in Penn Mutual Insurance Co. v. Bancroft,207 Ala. 617, 93 So. 566, 28 A.L.R. 1102.
Construing the contract, therefore, as one providing for simple interest only, and the undisputed evidence disclosing that under such construction the company was, on March 25th, 1938, due a balance of $1.21, the majority of the Court was of the opinion there was no forfeiture of the policy, and of consequence, the plaintiff was entitled to recover. The majority, therefore, considered this ended the case, and no occasion was presented to enter into a discussion of any other question. If plaintiff undisputedly was entitled to recover, the Court could see no reason for a consumption of time upon a question which could have no bearing upon the case. Consequently, the concurrence was as above indicated. But the discussion in the opinion by Mr. Justice BROWN, both upon original consideration of the cause and upon rehearing, has led counsel for appellee to assume that the Court has reflected upon the soundness of the case of Penn Mutual Life Insurance Co. v. Bancroft, supra. This assumption is unfounded. The writer was the author of the opinion in the Bancroft case, and well remembers the labor spent upon it. The opinion was adopted by the Court after careful consideration, the rehearing having been denied in June, 1922, and in 1927 the principle of the Bancroft case was reaffirmed in Jones v. Mutual Life Insurance Co., 216 Ala. 437, 113 So. 314, 54 A.L.R. 1068, all the Justices concurring. It has been approvingly cited in other of our cases, among them, Travelers' Insurance Co. v. Williams,22 Ala. App. 7, 112 So. 99, certiorari denied 215 Ala. 603,112 So. 101; Equitable Life Assurance Soc. v. Brandt, 240 Ala. 260,198 So. 595, 134 A.L.R. 555. Both the Bancroft and Jones cases, supra, are found cited in the annotations of 126 A.L.R. 102; 54 A.L.R. 1068 (where the Jones case is reported in full), and 76 A.L.R. 717.
Speaking of contracts of this character, in the Bancroft case [207 Ala. 617, 93 So. 567, 28 A.L.R. 1102] this Court observed: "Some method, therefore, of enforcement of such contracts, other than sale, has been resorted to, and it has been held by the great weight of authority that agreements of this character, for the cancellation of a policy at the cash surrender value, are not inconsistent with sound public policy or violative of any of the substantial rights of the pledgor."
We quoted approvingly from the Minnesota Court, Palmer v. Mutual Life Ins. Co., 114 Minn. 1, 130 N.W. 250, Ann.Cas. 1912B, 957, the expression: "On the contrary, it is a reasonable and practical method of bringing the contract to final termination." And we further added in the Bancroft case: "The cancellation of the policy by the defendant company was but a method for the enforcement of the foreclosure of the pledge — a practical method of bringing the *Page 619 transaction to a final termination. Such agreements have been sanctioned by numerous authorities."
In view of the confusion which has arisen, and the misunderstanding of counsel in this cause as to the holding of the Court in the instant case, we have thought it advisable to thus respond to this second application for rehearing and to state our reaffirmation of the Bancroft and Jones cases, the soundness of which has never heretofore been questioned. We adhere, however, to our original construction of the contract here involved and to the view there was no forfeiture.
This ends the case and renders unnecessary the consideration of any other question. Yet in view of the misunderstanding which appears to have arisen, we thought it not inappropriate to here reaffirm the soundness of the Bancroft and Jones cases. The application will be denied.
Application overruled.
THOMAS, FOSTER, LIVINGSTON, and LAWSON, JJ., concur.