The issues as to whether the premiums due by the insured upon the contract of insurance had been paid in full prior to the cancellation of the policy by the defendant, as well as whether there was a waiver of the right to forfeit, to be implied from the course of dealings between the insurer and the insured, were questions of fact for determination by the trial court upon the conflicting testimony; and for this reason it can not be held that it was error on the part of the appellate division of the municipal court to overrule the motion for a new trial.
The above is the opinion of the majority of the court, but, in the opinion of the writer, the evidence was not sufficient to support the judgment, and a new trial should have been granted.
Judgment affirmed.
Broyles, J., dissents. In the brief of the evidence it is stated: “Mrs. Smith, the only witness for the plaintiff, testified, that she was the wife of the insured; that she had been accustomed to pay the premiums on the policy of insurance involved in this suit; that she had always paid premiums on said policy to collector at her home; that she was positive that every premium on the policy prior to the one due June 30, 1914, had been paid promptly on the date when due; that she was sure she had paid premiums due June 30, 1914, and that she had receipt therefor; that it was on the table with other receipts; upon its not being found there, that it was at home; upon being offered by the court time to go home for it, that she was not sure that she could find it, but was positive that she had it; that on or about July 26 or July 27, 1914, Mr. Spangler, subagent of the insurance company, informed her that this particular premium was past due and that the period of grace for its payment would expire on July 30, 1914; that said Spangler told her he would come by on that day, but for her to look after it herself in the event that he did not come; that said ^Spangler did not come by on that day, and that she made no effort to pay, nor any tender of this premium, until August 4, at which time said premium was refused, and notified her that the policy was canceled.” Mr. Spangler testified, for the defendant, that he was subagent of the Inter-Southern Life Insurance Company, and, as such, was under the supervision and direction of Mr. Eedding; that he collected premiums on this policy monthly for more than a year previous to June, 1914, at the home of Mrs. Smith; that all premiums prior to June 30, 1914, were paid before the grace period expired; that on a few occasions he advanced part of the premiums for Mrs. Smith, but such advances were made without any knowledge or consent on the part of Mr. Eedding or of the company; that if she had not repaid him for such advances, it would have been his individual loss, and not a loss of the company; that the premiums on which these advances were applied were always paid by himself to the company before the grace period expired; that he was never authorized by Mr. Eedding or by any one else in behalf of the company to waive prompt payment of the premiums; that during the month of July, after this particular premium was due, but before the period of grace thereon had expired, he notified Mrs. Smith that if the premium was not paid before the expiration of the grace period, the policy would be held to be lapsed and a forfeiture declared; that he called on her on or about the 26th or 27th of July and told her that the grace period would expire on July 30, and he would try to call on her again on July 30, but that if he did not come by on July 30, not to wait for him, but for her to look after it; that on July 30 he was sick and for that reason did not call on her that day. Mr. Eedding testified, that he was general agent for the State of Georgia for the defendant company, and that Mr. Spangler, who was under his supervision and direction, had never been authorized to waive the time of payment of the premium due on June 30, 1914, or any other premium; that all previous premiums had been paid to the company before the expiration of the grace period; that he notified Mrs. Smith about the middle of July that if this policy lapsed, a forfeiture would be declared; that no offer of payment of the premium due June -30, 1914, was made until August 4, 1914, five days after the grace period had expired, and it was then refused. Dr. G. O. Jones testified that he was medipal examiner for the defendant company, and that on August 4, 1914, the plaintiff came to his office to undergo a physical examination for reinstatement of his policy. The plaintiff introduced a receipt of the defendant company, dated June 30, 1914, for $5.40 “to apply on the monthly premium due on policy No. 5995 issued to Jas. B. Smith subject to the conditions endorsed on the back” of the receipt. The defendant introduced a like receipt dated June 30, 1914, which the witness Eedding testified was never delivered to the plaintiff. He testified that receipts for premiums were made out before due, as of date when due, and not delivered until premiums were paid, and therefore did not always show date of actual payment, but that they did show for what periods they were made. On the back of the receipts it was stated that the receipt would be void unless signed by the secretary of the company and countersigned by the auditor, and unless the amount specified therein was actually paid. The policy contained the following provisions: “Premiums are due and payable in advance at the executive offices of the company in the city of Louisville, Kentucky, but may be paid to an authorized agent of the company in exchange for the company’s receipt therefor, signed by the president or the secretary. If any note or other obligation given for a premium, .or any part thereof, on this policy, shall not be paid when due, this policy shall be and become null and void without any notice or action of the company, notwithstanding any receipt which may have been given for such premiums, except as herein provided.” “A grace of one month will be allowed in the payment of all premiums after the first year, the policy to remain in full force during that time.” “No change or modification of any of the provisions of this contract shall be valid unless made .at the executive office, either by the president, vice-president, secretary, or assistant secretary, in writing and endorsed hereon, and the company shall not be bound by any promise or representation heretofore or hereafter given by any agent or person other than as above.” J. N. Johnson Jr., Napier, Wright & Wood, for plaintiff in error. A. W. White, Moore & Branch, contra.