(dissenting).
I am unable to concur in the decision. The issue before the court was whether the insurer was estopped upon non-payment of premium notes to insist on the forfeiture provisions of the policy and the notes by a form notice of the due date of a subsequently due premium which contained the usual admonition with respect to the grace period. The court directed a verdict for the plaintiff, and the majority opinion treats the inquiry on appeal as limited to whether there was substantial evidence to support the directed verdict, after concluding that both parties had made motions for peremp*124tory instructions. Assuming a reasonable inference to arise from notice of the grace period that the insurer had waived forfeiture, the opinion concludes that the assured was misled by it to his injury, since the granting of the peremptory instruction forecloses any consideration of the question by us.
The insurer moved for a directed verdiet at the conclusion of the plaintiffs evidence. Its motion was denied. It then proceeded to offer evidence in its own behalf. The court accepted its statement of facts as though proven. The opinion applies the rule that where both sides move for a directed verdict, one of the motions is granted and the defeated party without reservation takes but a general exception, he concedes there is nothing material for the jury to pass upon. Beuttell v. Magone, 157 U.S. 154, 160, 15 S.Ct. 566, 39 L.Ed. 654. It is a highly technical application of the rule which ignores wholly its philosophy and the history of its development, As stated in the leading cases, the rule is based upon an implication that where such concurrent motions are made there are no disputed facts for submission to the decision of the jury. It is subject, however, to this limitation: That where the request for directed verdict is coupled with a reserved right to _ submit issues to the jury, no waiver of trial by jury results General Tire Co. v. Standard Accident Insurance Co., 8 Cir., 65 F.2d 237; Continental Casualty Co. v. Shankel 10 Cir., 88 F.2d 819. Moreover, it has always been held that , ’ , , , J , ... ... where a defendant after the denial of his motion for directed verdict at the conclusion of the plaintfffs evidence goes forward with his defense he waives his motion and can base no claim of error upon . its denial. Order of United Commercial Travelers v. Elliott, 6 Cir., 65 F.2d 79.
In any event a “request made to the court by each party to instruct the jury to render a verdict in his favor was not equivalent to a submission of the case to the court without the intervention of a jury, within the intendment of sections 649, 700, Rev.St.” Beuttell v. Magone, supra [157 U.S. 154, 15 S.Ct. 567].
The limitations of the rule are based upon reason. If the party making the motion doesn’t stand upon it, it is no longer of avail to him unless thereafter renewed, and receiving no advantage he should suffer no penalty. The procedural consequences that follow submission of facts to the court through concurrent motions were never thought to follow where the proceedings were such as to indicate that notwithstanding the motion there exists a disputed issue of fact to be decided by the jury. As was said by Mr. Justice Holmes in Sena v. American Turquoise Co., 220 U.S. 497, 501, S.Ct. 488, 490, 55 L.Ed. 559, As both Par,hes moved for a ruhnS> and as there was nothmg inore, according to Beuttell v. Magone, 157 U.S. 154, 15 S.Ct. 566, 39 L.Ed. 654, st0°d admitted that there was no Question °f fact sufficient to prevent a rulln£ being made. Here a question of fact was submitted to the court by the defendant a^ter tbe denial of its motion for directed verdict. An issue was presented in resPect t0 whether the insured was misled t0 hls miur7 b7 the notice- Without such fact bemS established there could be no es-l°PPeb
To foreclose the defendant from having this issue submitted to the jury by a rule of procedure, which technical in the beginning is now given a refinement, neither required by the circumstances nor responsive to the reasons which brought it into being, is out of harmony with the modern trend toward simplification and clarification of procedural rules.
The harshnesg of tbe rule bas now been miti ated. Rule 50 of tbe Rules of civil Procedure promulgated by the Supreme Court 2g U-S_CA_ foUowmg section 723c, nQW freeg Ht¡ fr0m tbes t ic conscJ ______ . A■ , , ,. . quences of motions for directed verdict made witbout reservation. Cognizing ^ la unaCquainted with the Feder- ^ rule are f ent] tr¡cked b ¡t RuIe 5Q wag des¡ d t0 t the al acti_ ,. it- 4 . , tioner on an equal basis with the Federal specialist See Notes to Rule 50, 2 EdmundS; Fedefal Ruleg of Civil Procedure; 1259. In present circumstances there was no failure of reservation of the right to go to the jury. When the defendant proceeded to offer evidence, notwithstanding his motion and its denial, that was the full equivalent of an express reservation of issues to go to the jury.
tb-g jg soundj tben tbe court was jn error in granting the plaintiff’s motion for a directed verdict and should have submitted the issue to the jury. Granting the reasonableness of an inference that the insured was misled to his injury by the notice of grace, the defendant offered to prove *125that the insured knew his insurance had terminated. With the inference on one side and the proffered evidence on the other, a clear question of fact was presented, and this was made plain to the court. In such situation the failure to make specific an exception to the court’s direction is of no moment. United States v. LaFranca, 282 U.S. 568, 51 S.Ct. 278, 75 L.Ed. 551; Standard Oil Co. of Kentucky v. Noakes, 6 Cir., 59 F.2d 897; Routzahn v. Petroleum Iron Works, 6 Cir., 56 F.2d 938, 939.
The judgment should be reversed and the case remanded for new trial.