dissenting. I can not, after careful consideration, agree with the majority opinion. As I view the ease, the burden of proof rested upon the plaintiff to prove that the policy ha,d been reinstated, or the provisions in that regard waived, in *836accordance with the allegations of her petition. It is undisputed that the policy became lapsed on February 27, 1933. This much is admitted by the majority opinion. Under the terms of the policy it could be reinstated at any time within three years from the date of the lapse, provided it had not been surrendered, on evidence of insurability satisfactory to the company, and upon payment of past-due premiums with interest, and the payment or reinstatement of any indebtedness. As stated in the majority opinion, on March 7, 1933, the general agent of the defendant wrote to the insured a letter referring to his policy which had lapsed for non-payment of premiums, and suggested that he change his premium from an annual to a quarterly basis, saying further: “It will also he necessary for you to fill out and sign the attached application for reinstatement and return to this office together with P. O. money-order for $24.35 covering the net quarterly premium.” On May 1, 1933, the insured complied with the requirements of Daniel’s letter. The check sent by the insured was, however, insufficient to cover the quarterly premium; and on the day his check and signed application for reinstatement were received, the insurer, through its agent, wrote to the insured of this fact, and on May 10, 1933, the insured mailed to the insurer the additional amount. The insured died on May 21, 1933. The insurer on May 25, wrote to the insured, notifying him that his application for reinstatement was rejected, and returned his premium. There is no dispute that at the time of its refusal to reinstate the insurer had no notice of the death of insured. I do not think it can be disputed as good law that if the insurer had taken no further action in the matter, that is, had done nothing but receive and retain the check and application for reinstatement, the only question that would have presented itself would have been whether a reasonable time had elapsed in which the insured should have taken some action in the matter, thereby making the policy reinstated; and since only eleven days had elapsed, it may be that this issue should, as a matter of law, have been found against the insured. The chech sent by the insured was certainly recognized both by the insured and the insurer to be conditional on its approval of the application for reinstatement, for the insured mailed the check along with the application for reinstatement.
*837However, we have the further, very vague, testimony of the insured’s son, as follows: “I had that receipt at that time, and showed it to Mr. Hanserd after my father died on Sunday; that was Tuesday. That receipt looked like the usual receipt, it was countersigned by Thomas H. Daniel. Looking at this old receipt [indicating], it is very much similar to the receipt received, possibly the same one signed it. It was signed by an officer of the company, secretary or president. . . This receipt I have testified was similar to the receipt I hold in my hand, was a receipt in the amount. If I am not mistaken it was issued for $39.58, something around there, 39 and something. . . Just from observation I knew it was an ordinary receipt. I saw it when it was received, and another occasion when Mr. Hanserd was down there. I saw it when my father received it. . . I saw it when Mr. Hanserd was there, and I showed it to Mr. Hanserd, and I have never seen it since that time. To my own knowledge that is all the times I saw the receipt. I have testified this printed receipt bore the signature of officers of the company on it. I do not recall the title. I am not sure, I think he was secretary though, and the signature of the agent too. That receipt was similar in some respects to the receipt which I hold here, except as to the amount. It is the same type of receipt. I could not say as to the printed language. I wouldn’t say that it is the exact language, conveys the same idea that the premium had been received and accepted.” The very best that can be said for this testimony is that it shows that the insurer sent a receipt for the money. It is nowhere testified that it was unconditional, or that it contained any statement that the policy was reinstated. This fact alone would appear to me to be sufficient to defeat the action; but- assuming that it did show that it was a general receipt for the premium, I think the circumstances of the transaction, plus the uncontroverted evidence on the part of the defendant, clearly shows that there had not been any reinstatement of the policy; and under the principle which is well expressed by Cooley (4 Briefs on Insurance, 3797-8), that “the mere receipt of the amount for which the insured was delinquent is not a waiver, if the insurer by reservation or otherwise indicates unmistakably an intention to insist on the requirement as to good health,” a verdict for the defendant was demanded. See also 3 Couch on Insurance, § 688 notes 3, 5, 6.