Adams v. Washington Fidelity National Insurance

Jenkins, P. J.,

dissenting. Whatever might be the general rule in view of the precedents cited in the foregoing opinion, I think that provision 3 of the policy here involved, providing that, “if any default be made in the payment of the agreed insurance premium for this policy, the subsequent acceptance of a premium by the company or by any of its duly authorized agents shall reinstate the policy, but only to cover accidental injury thereafter sustained and such sickness as may begin after the date of such acceptance,” entirely differentiates the case from those cited in the opinion; and that, in view of this special provision of the policy, the previous, acceptances of any past-due premiums from the insured could not be taken to alter the provisions of the contract by setting up a subsequent course of dealings contrary to its terms, but, in view of such provision, the prior paymehts and the acceptance of premiums in default must be understood to have been made in accordance with this stipulation comprising a part of the contract of insurance. An inference setting up a change in the contract by reason of a subsequent course of dealings is not permissible when the dealings thus relied on are themselves expressly contemplated and specifically provided for by the terms of the contract itself. Accordingly, it is my opinion that, the insured having died on the 7th day of the month while in default as to the current monthly premium, due on the first of the month, the subsequent belated tender of the premium on the 9th, after the death of the insured, could not avail anything.