The insurance company has filed an application for a rehearing of this case, or, in the alternative, that the court certify the case to the Supreme Court because of alleged conflict with decisions by several other Courts of Appeals.
In the brief on the application for a rehearing, counsel for the insurance company complain that in several instances reference to the evidence in the opinion of the court is at least inaccurate.
We have reexamined the record and find that it fully justifies the statement that, as a general agent of the insurer was required to report to the insurer daily the collections made by him, and as the entry of such collections were made on the records of the company (exhibits C and D) promptly on the receipt of said reports, said records do show the dates on which such agent received each of the premiums paid.
In answer to an interrogatory by the insurer which was submitted to the jury, the jury found that "the insurer waived its right to insist that the rights of the insured have been forfeited by voluntarily accepting premium payments as much as sixty days past due date"; and in answer to a question as to "who personally" relinquished such rights, the jury answered, "Defendant." Counsel requests that the court answer that question of "who personally."
Responding to that request, we observe: The policy, *Page 505 after naming certain officials of the insurer, including "secretary or assistant secretary, group division," who have authority to bind the company, provides that "no other person can alter or waive any of the conditions of this policy or make any agreement which shall be binding upon the company." The insurer voluntarily brought into court its record that had been made and kept in its home office, and the evidence is that the entries in the record so voluntarily brought into court were made "by clerks at the home office" of the insurer, "working under" the "direction and supervision" of the secretary of the groupdivision of the insurer.
It thus appears that officials having authority to so conduct the business of the company as to waive the payment of premiums as stipulated in the policy, made the entries upon the records of the company which the jury found constituted such waiver. Such records show that none of the premiums were paid at the times specified in the policy and that some of them were paid and accepted as long as 58 and 60 days after they should have been paid, and the insurer company did nothing to indicate that it did not acquiesce in such course of conduct, or that it considered that the policies had lapsed, until long after the death of Hoffman.
Further, the entries in the record so made by such officers of the company show not only a custom of receiving overdue premiums without objection, or at least a custom of not exacting prompt payment of premiums, but, in connection with the other evidence in the record, they show a practice of not treating the policy as lapsed when the insurer had a right to so treat the policy; and the entries also show that after the failure to pay the July premiums within the grace period, the insurer, upon information which the insured was required by the terms of the policy to furnish the insurer, calculated and set up on its records *Page 506 the premiums due for August and September. All of this was done during a time when the insurer had a right to treat the policy as not in force, and some of said entries were made after the insurer had received proof of the death of Hoffman; and no entry was made indicating an intention to treat the policy as not in force until after the occurrence of the foregoing acts and conduct of the officers of the insurer.
We shall not refer in detail to other claimed inaccuracies in the opinion.
We have reexamined the record and are still of the opinion that, considering all of the evidence and the reasonable inferences from such evidence which the jurors, as triers of the facts, were entitled to draw, the finding of the jury is not manifestly against the weight of the evidence as to any controlling fact.
We have always understood that, in an ordinary contract, where the parties, by negotiation, fix the terms of the contract and both of them have a part in choosing the language in which such terms are expressed, a provision as to times of payments may be waived by a course of conduct; and that where failure to make installment payments as stipulated gives to one of the parties the right to claim an advantage and he repeatedly accepts past due payments, he waives the right to claim such advantage and cannot claim it as to subsequent payments unless he gives the other party notice of his intention to insist upon payments as specified.
We know of no good reason for saying that such principle does not apply to insurance contracts, where the insured has no part in determining the wording of the contract.
We have examined the Court of Appeals cases which it is claimed are in conflict with the judgment we have reached in this case, and we do not find that our judgment in this case is in conflict with any of the cited cases, and we therefore decline to certify the case.
The application is denied.
Application denied.
STEVENS, P.J., and DOYLE, J., concur. *Page 507