dissenting:
I cannot concur in the majority opinion in this cause. I feel that this is a case which is essentially one of a determination by the trial court of disputed factual issues. The first question is whether there was sufficient evidence to support the finding by the trial court that there was either an express or implied waiver by Manhattan of the condition of its policy requiring prepayment of its initial premium. It is true, as appellee contends, if the trial court was correct in finding such waiver either express or implied, that plaintiff is entitled to recover on such theory alone. It also follows that if the finding of an express or implied waiver was not based on sufficient evidence then plaintiff would be entitled to recover if there is evidence in the record to support the finding of the trial court that plaintiff relied upon the representation of the defendant insurance company and delayed in making immediate payment of the premium (which plaintiff otherwise would have done) to the prejudice of the plaintiff. If this were so, then plaintiff would be entitled to recover (A-1 Cleaners & Dyers v. American Mut. Liability Ins. Co. of Boston, 307 Ill App 64, 30 NE2d 87, at 88).
This case is unique only in the fact that the insured died suddenly and unexpectedly during the period of delay in the mailing of the premium. It is clear that if the check for the premium had been mailed prior to the death of the insured Thomson, plaintiff would have been entitled to recover. Were there particular developments shown in the record which should operate to deprive plaintiff of its right to recover simply because the premium payment was delayed? It is notable that the trial court found that there was an unconditional delivery of the policy without the requirement of payment of the premium and there was evidence to support the court’s conclusion on this issue. The express stipulation of the policy, to the effect that the policy would not be in force until the first premium was paid, could be waived by an unconditional delivery of the policy upon an implied understanding that extra time is allowed for such payment (John Hancock Mut. Life Ins. Co. v. Schlink, 175 Ill 284, at 292, 51 NE 795). The record discloses that the policy was delivered manually to plaintiff without a request for payment. There was evidence that it would be “in full force and effect” even though it was to be returned to the home office for correction of clerical errors. The finding of the trial judge that the time for payment had been extended until the next working day was justified on the basis of evidence in the record. There was evidence of the authority of the representative of the agency to deliver the policy and to pick it up for correction. There was also evidence that the representative of the plaintiff company requested information as to the amount for the initial premium. There was evidence that the representative offered to pay the premium from his personal funds. The representative of the selling insurance agency stated that plaintiff’s representative could get a check for the initial premium to her and she would send it with the policy to the home office of Manhattan. Such payment would be received if mailed on Monday, April 22, 1963. Payment was in fact transmitted (even though after the death of the insured) within such period of time. So far as the record is concerned the court, even though the evidence was conflicting, could have con-eluded that time of payment was extended until April 22, 1968.
On the record, the trial court could properly conclude that the delay in payment was initiated by the errors of the defendant insurance company in the preparation of the policy which led the local agent to extend the time for payment. The complicated rate structure in the policy was also a contributing circumstance. It is also apparent that the trial court’s finding that the agreement to send the policy in for correction and waiver of prompt payment until the following working day was supported by evidence in the record and justified plaintiff’s reliance upon the insurance company representation made through its local agent (Hooker v. Farmers Mut. Reins. Co., 304 Ill App 230, 26 NE2d 146, at 149). It is notable that plaintiff was not asking for a modification of the policy which had been delivered to it. The conclusion of the trial court, therefore, that the defense which was based on the ordinary printed provision in the policy (as to the policy being in force upon payment of the premium) was in fact waived by the company agents or, at the very least, plaintiff was entitled to rely on the representation that the payment of the premium could be delayed until the next working day.
The trial judge saw and heard the witnesses and his determination of the disputed factual issues relating to waiver or the representation that the payment of premium could be delayed was not contrary to the manifest weight of the evidence. The trial judge’s findings and conclusions should be affirmed in this Court even though we might come to contrary conclusions had we been sitting as a trial court.
It is, therefore, my conclusion that the judgment of the trial court should be affirmed.