. I am unable to agree with the conclusion reached by the majority of the court, but think that the judgment should be reversed because of error committed by the trial judge in connection with plaintiff’s claim that the time for payment of the semi-annual premium was extended by defendant’s local agent.
I shall assume that it was essential for the defendant, in support of its defense that the policy had been forfeited for non-payment of the November premium, to- establish that notice required by the statute had been mailed to the insured, and that upon all of the evidence it was a question of 'fact for the jury whether such notice had been so mailed. If the determination of the case had been allowed to rest upon a decision of this issue by the-jury, a. verdict favorable to the plaintiff might be sustained, but, as I think, the trial judge authorized a verdict to be" found in favor of the plaintiff upon tile other theory, of an extension of time of payment of the premiums.
It is unnecessary to review and discuss the evidence for the purpose of demonstrating that it is insufficient to sustain a recovery upon such theory, for it is conceded in the prevailing opinion that it is not sufficient... The case upon this branch comes clearly within the reasoning of Conway v. P. M. L. Ins. Co. (140 N. Y. 79), which. is adverse to plaintiff’s views.
But it is said, first, that the trial judge “ made the controlling fact in the case the one involving the mailing of the notice,” and in respect to which we must. “ start with tile fact established that the defendant failed "to mail this notice; ” and,, secondly, that while the trial judge “ charged the jury that if they found that the" time of payment (of the premium) was extended, then that agreement would be binding upon the defendant. He did not instruct the jury *205that the determination of that issue favorably to the plaintiff entitled her to recover.”
If the court fairly induced or permitted the belief upon the part of the jury that they might find a verdict for the plaintiff upon both or either of the grounds that the notice had not been mailed and that the time of payment had been extended, we cannot say that one issue was made any more controlling than the other, nor under a general verdict can we assume, as does the majority opinion, that the jury determined that no notice necessary to work a forfeiture was mailed. If both of the issues indicated were submitted, it may just as well be assumed that the jury found that the time of payment had been extended and then deemed it unnecessary to decide whether any notice was served. In other words, the elementary rule applies that if this ease was submitted to the jury upon two theories, one of which was erroneous, the presumption is against the judgment and it must be reversed, and, therefore, I pass to the consideration of the second reason advanced for sustaining it.
It seems to me to be a very incomplete view which regards the question of extension of time of payment as not having been submitted to the jury. That issue ran all through the case. In her complaint the plaintiff distinctly and fully alleged an agreement of extension by the agent which prevented any forfeiture of the policy. This having been denied in the answer, a large amount of evidence was admitted over the strenuous objection of the defendant for the purpose of establishing the alleged agreement. The propositions involved in this claim were covered by the motion for a nonsuit.
After all this the learned trial justice commenced his charge as follows: “ There are two principal points that I shall discuss. First, the complaint alleges that ' On or about the 27th day of December, 1902, and before the semi-annual premium of $61.47 on said policy became due, the insured requested of the duly authorized agent of the defendant at Rochester, N. Y., by whom said policy had been solicited and through whom (it) was delivered, that the policy be continued as a valid, subsisting policy, notwithstanding the -non-payment of said semi-annual premium of $61.47, when the same became due on the 29th day of November, 1902, and that the agent agreed with, and promised the insured that he would carry said policy and *206would not forfeit the same for the non-payment of said premium provided the same were paid to said agent within a week thereafter; that relying upon the said agreement and promise of the agent (of) the defendant the insured did not pay the said semi-annual premium within thirty days from the time it was due.’
“Now,, gentlemen, if you find from the evidence that an arrangement was made with the agent to extend the time of payment of the policy upon the insurance and that the agent was authorized by the company to make that agreement, or, if you find from the. evidence that it was customary for the agent to do this kind of business, give extension as to time of payment of premiums, with the knowledge and approval of the officers of the company, then that- contract would be good" and binding upon the " defendant. That is á question of fact which you must determine from all the evidence. It is not for the court to say, but it is a. question of fact for you to determine. The next question that you may take into consideration is the question of notice,” etc.
In addition, the court, by various refusals to charge and remarks, emphasized its,views that the action and evidence presented this issue, of extension as one of the decisive ones to be considered by the jury.
In the light of all this — pleadings, proofs and charge relating, to this subject.—fit seems to me utterly unjustifiable to hold that the court did not "fairly instruct the jury that tliéy might find an extension of time of payment of the premium, and that if they did so find the plaintiff was entitled to a verdict. We cannot reasonably reject the view that it did so, simply because the judge did not in so many words tell the jury that they might so decide for the plaintiff if they found the extension. That was the fair import of what was said and done, and otherwise much that occurred upon the trial "was quite irrelevant and pointless.
The entire court is agreed upon the proposition that if, as I have contended, this question was submitted, it was error requiring a reversal of the judgment..
The judgment should be reversed.
Judgment and order affirmed, With costs.