ON PETITION FOR REHEARING. Appellee, in support of her petition for rehearing, assails the original opinion and our statements therein that the only policy sued on was the policy issued by the Western company, and that the American policy not being introduced in evidence, we did not know the provisions thereof.
On page four of her original brief, after setting out the application to the Western company for a policy under the terms of the reinsurance contract, appellee said that the 23. policy sued on was issued upon said application, thus indicating her understanding at that time. She now, for the first time, insists that the policy sued on in the second paragraph of complaint was the policy issued by the American company. An examination of the record conclusively shows that appellee, as well as appellant and the trial court understood that both paragraphs of complaint were founded upon the Western policy. Appellant, in its second and third paragraphs of answer to first paragraph of complaint, alleged a default of more than thirty days in the payment of premiums. Appellee, in her reply to this answer, alleged that, by the terms of the policy sued on, she had thirty days' grace in which to pay the premiums and set out the clause of the policy giving thirty days' grace. Later, she filed a second paragraph of complaint, and in the second paragraph of her reply to the answer to the second paragraph of complaint, she sought to avoid the failure to pay the premiums within "the thirty days of grace given for the payment of each monthly premium," by alleging *Page 633 certain facts which she claimed estopped appellant from insisting upon a forfeiture because of her failure to pay within the thirty-day period. In the third paragraph of reply, she alleged that, "by the terms of the policy herein sued upon premiums weredue on the first of each month and that a period of grace ofthirty days was given in which to pay said premiums" (our italics) and conceded that the premiums due January 1, and February 1, were not paid within the "period of grace prescribed in the said policy." In the fourth paragraph of reply, she also alleged that, "by the terms of the policy sued upon payment of premiums were required to be made on the first day of each calendar month and that a period of thirty days' grace was provided within which to make said payment of premiums," and she sought to avoid forfeiture because of her failure to pay within the thirty-day period, by reason of the fact that she sent a check to appellant February 4, in payment of the premium due January 1, and that appellant had retained the check so sent. If any further proof is needed to show that appellee, appellant and the trial court understood that the only policy sued on was the Western policy, we might look at the instructions given at the request of the parties. In instruction No. 1, given at the request of appellee, the jury was informed that the complaint was in two paragraphs to recover on account of "a policy of insurance"; that she and her husband had surrendered the American policy and procured "the policy sued upon in this action"; that appellant had by answer alleged a failure to pay the premiums within the thirty-day period of grace as required by the policy and that appellee in her reply had alleged facts to avoid forfeiture by reason of her failure to pay the premiums within the thirty-day period. In instructions Nos. 5, 6 and 7, given at her request, she refers to "the policy" sued on. The court, *Page 634 at the request of appellant, instructed the jury that "the policy sued" on contained the express condition that a "grace period of thirty days" was granted for payment of premiums, and that a failure to pay a premium within such time rendered "the policy of insurance in suit" void, and that if appellee had failed to pay within the thirty-day period, she could not recover, unless appellant had waived or was estopped from treating the policy as void. Instruction No. 3, given at request of appellant, told the jury that the policy sued on contained a provision giving thirty days' grace within which to pay the premiums, and, in at least ten other instructions, the jury's attention was called to the thirty-day period of grace in the policy, and in two instructions, the court directly told the jury that if it found the American policy had been surrendered and "the policy in suit" executed by the Western company, appellee's rights were governed by the Western policy. Appellee tendered no instruction wherein it was claimed she had the right, under the provisions of the American policy, to a grace period of sixty days, and no reference to a claim that she had a right to pay within sixty days was made in any instruction given by the court. Appellee, appellant and the court, having adopted the theory that the Western policy was the only policy sued on, that theory will be adopted and adhered to on appeal.
In her original brief herein, appellee made the statement that the American policy issued to her and her husband contained a provision giving them a grace period of two months for the payment of premiums. No reference was made to the page of the record where such evidence could be found. In her brief on rehearing, she says that a "skeleton copy" of the American policy issued to her and her husband was introduced in evidence, and gives the page of the record where she *Page 635 says such alleged copy can be found. An examination of the record shows that the reinsurance contract between the receiver of the American company and appellant, and certain exhibits which were referred to in the contract and made a part thereof were introduced in evidence. Following these exhibits, appear what seem to be "skeleton" forms of two insurance policies. These forms are not mentioned in the reinsurance contract and are not made a part thereof by reference or otherwise. The reinsurance contract makes reference to exhibits A, B, C, D and E, and makes them a part thereof. The "skeleton" forms referred to are not a part of the reinsurance contract, and there is nothing in the record to show they were or were not introduced in evidence, or that neither of them was or purported to be a copy of the original policy issued by the American company to appellee and her husband. Exhibit B, which is filed with and made a part of the second paragraph of appellee's complaint, is alleged to be a copy of the reinsurance contract. The so-called "skeleton" forms do not there appear as a part of that contract, or as a part of the complaint, and notwithstanding the statement of appellant's counsel that these "skeleton" forms are certified to by the commissioner of insurance, the record does not so show. The certificate of the insurance commissioner precedes the copy of the contract and makes no reference to the alleged copies of the American policy. In order to verify the correctness of our position, we have examined the original reinsurance contract on file in the office of the insurance commissioner and we find the copy thereof which is made a part of the second paragraph of complaint is an exact copy of the original, and that the alleged skeleton forms are not attached to or made a part of the contract.
Appellee concedes that the policy sued on in the first paragraph of complaint is the Western policy, and in *Page 636 the second paragraph of her complaint, she alleges that she and her husband made application to appellant for a policy of insurance, and that, "in accordance with said application, the said defendant executed to the plaintiff and said John Bartlett, the policy of insurance sued upon, (our italics) a copy of which is attached hereto, and made a part hereof and marked Exhibit `A' and attached to the first paragraph of this complaint." Exhibit "A," thus referred to as the policy sued on, is a copy of the Western company policy.
We adhere to the statement in the principal opinion that the only policy sued on is the policy issued by appellant; that there is nothing in the record showing that such policy is not identical in form with the American policy; that the policy issued by the American company was not introduced in evidence, and that we do not know what its provisions were.
Other reasons are urged in support of the petition for a rehearing, but they are based upon a mistaken idea of the facts as disclosed by the record, and we do not deem it necessary to further extend this opinion by discussing them, although we have given each of them painstaking consideration.
Petition for rehearing denied.