DISSENTING OPINION. I adhere to the opinion in this case affirming the judgment and adopt it as my dissenting opinion from the judgment of the majority of the Court sustaining the suggestion of error. The opinion referred to is as follows:
"Appellee, Mrs. Julia McCrary, brought this action in the circuit court of Lauderdale County against appellant, the Praetorians, a life insurance company, on a life policy payable to her, to recover the sum of $1,000 with interest, the sum payable to her by the terms of the policy upon the death of the insured, D.L. McCrary. The declaration made the policy an exhibit thereto and alleged that insured had died and the insurance company had refused to pay the plaintiff the amount provided in the policy. The cause was tried on the pleadings and evidence oral and written. At the conclusion of the evidence on request of the plaintiff, the Court instructed the jury to return a verdict for the amount sued for with interest, which was done. From that judgment the insurance company prosecutes this appeal. *Page 455
"The defense was that the policy was forfeited by nonpayment of premiums. The material facts are undisputed. The insured was a son of the beneficiary. The policy had been in force more than four years. It was dated the 13th of March, 1931. On January 14, 1935, the insured secured a loan thereon of $33, executing a loan agreement therefor. At that time the cash loan value of the policy, according to its terms, was $33. The loan was made due January 14, 1936, one year after it was made. The premiums on the policy were annual, $22.35; semi-annual, $11.55; quarterly, $5.80; monthly, $1.95. The premiums on the policy were paid up to April 1, 1935. None were paid after that. On December 20, 1935, the insured died. His death therefore occurred before the loan was payable. The loan value of the policy, $33, was the amount of reserve credited to the insured under the terms of the policy. It is without question that if the loan had not been made the reserve of $33 was sufficient to keep the policy alive some time beyond the death of the insured. The question is whether the making of the loan and default in payment of the premiums after the first of April, 1935, voided the policy.
"The provisions of the policy particularly applicable are, the `Loan Privilege';
"And a part of the `Non-Forfeiture Privileges';
"And a part of the `Loan Agreement,' which are copied in the order stated:
"`Loan Privilege — At any time after two full years' premiums shall have been paid hereon and while this policy is in full force, The Praetorians will loan the insured upon proper assignment of this policy and on the sole security thereof any amount within the loan value shown in the "Table of Non-Forfeiture Values" opposite the year for which premiums shall have been paid. Interest at the rate of 6% for one year shall be paid in advance or deducted out of the proceeds of the loan, and shall be payable annually in advance thereafter as long as the loan remains unpaid. If interest is not paid when *Page 456 due, it shall be added to the principal and bear interest at the same rate. No loan made under this provision shall avoid the insurance hereunder unless the loan and other accrued indebtedness hereon shall equal or exceed the cash value when the loan is due or when there is a default in the payment of premiums.'
"`Non-Forfeiture Privileges — . . . but the extended term period will remain the same as set out in the table, unless the total indebtedness exceeds the reserve, in which event all benefits shall become null and void.'
"`Loan Agreement — . . . When the aggregate of the principal and interest due on this loan exceeds the pro rate amount of the Guaranty or Reserve Fund of The Praetorians accumulated to this Policy, the Praetorians shall not longer be liable thereon in any manner for benefits, options, paid up or extended insurance or otherwise, but the Policy shall in such event be automatically cancelled.'
"The case therefore is this: The policy of life insurance in force for more than four years; in January, 1935, a loan to the insured of the full amount of the reserve credit to his policy, its loan value, $33, due one year after date; all premiums paid to the first of April, 1935; default in the premiums thereafter; the death of the insured in December, 1935; if the reserve had not been borrowed it is without question that the policy would have been in force. Did the facts of the loan and default in the payment of the premiums forfeit the policy before the death of the deceased? We are of opinion that it did not, although the pertinent provisions of the policy and the loan agreement having to do with the question are somewhat ambiguous. Resolving the doubts, however, in favor of the insured as should be done under the law (Sovereign Camp, W.O.W. v. Thomas, 171 Miss. 99,157 So. 83, and authorities cited in the opinion), we are of the opinion that the loan agreement took the place of the cash reserve. In other words, to forfeit the policy it was necessary that there be a default in the payment of both *Page 457 the loan and the premiums before the death of the insured. The loan agreement simply took the place of the reserve. Either one would have kept the policy in force.
"Affirmed."