The majority opinion accurately sets forth the substance of the pleadings upon which the case was tried and likewise states the tendency of the evidence introduced, excepting the portion in relation to the occurrence when the agent who had the policy for delivery to the insured, which portion, in my opinion, goes no further than that the agent had with him the policy, took it from his pocket, held it in view of the insured and relatives of the latter then present, and after the tender to the agent, of the cash, by the insured in the amount of the first premium, which cash the agent did not take into his hands, the agent placed the policy in his pocket and departed. There is no testimony whatsoever tending to prove that anything was said by the agent or by the *Page 462 insured or by any other person present, concerning the retention of the policy by the agent; nor was there any testimony whatsoever tending to prove that the agent was clothed with the authority to exercise discretion pertaining to a withholding of the policy from the insured. There was testimony that the agent we have referred to was the representative of the insurer in the taking of the application for the insurance, and that he received the policy from the insurer for delivery and collection of the premium.
By admission in the pleading of the insurer, the policy had been issued by it pursuant to the application, prior to the time we have referred to when the agent exhibited it.
The evidence introduced in behalf of plaintiff tended to prove that the insured did every conceivable thing possible on his part, short of using physical force, to pay in cash, the premium.
Strange as it may seem that the agent did not take the money when tendered, and that there is no testimony of any explanation thereof, yet it is the firmly settled rule that on a motion to direct a verdict, the evidence in behalf of the party against whom the motion is made, must be taken as true and given effect most favorable to that party. Following that rule, as we must, reasonable minds might properly conclude that what was done by the assured in his effort to pay the premium which the majority of this court rightly held to have been such tender as to be the equivalent of payment, was also an acceptance and receiving of the policy by him.
As the majority opinion states, there was evidence tending to prove that the insured's health, habits and occupation were the same as described in the application, which requirement was one of the three, and there were but three requirements on the part of the insured, the other two being payment of the first premium and that the insured accept and receive the *Page 463 policy. The same evidence may properly prove more than one issue in a case.
Nowhere in either the application or the policy, and the application is in terms made part of the policy, is there any allusion to delivery of the policy excepting as may be implied from the accepting and receiving of the policy by the insured.
The quoted portion of the application covering the matter, in the majority opinion, makes clear that after receipt of the application the only requirement expressly stated on the part of the insurer was to issue the policy, and all that was left for the insured to do after the issuance of the policy was to accept and receive it and pay the premium while the insured's health, habits and occupation were the same as described in the application.
In this case the action of plaintiff was on a contract in writing prepared by defendant, and where such is the case and there is uncertainty of meaning necessitating interpretation, such interpretation must be given in favor of the other contracting party.
Following that unquestionable rule I am of opinion that whether the insured accepted and received the policy, did the equivalent of paying the first premium, and was at that time in the same health and had the same habits and occupation as when he made the application for the insurance, were submissible to the jury and therefore the court erred in directing a verdict.
Text writers declare and many cases hold, indeed there are no authorities to the contrary, that manual delivery of an insurance policy, that is conferring physical possession of it on the insured, even when a policy provides in express terms that it shall be delivered to the insured as a condition precedent to the taking effect of the policy, is not necessary, constructive delivery being sufficient, but, as we have said, the word *Page 464 "delivery" is nowhere used in the contract of insurance in the instant case.