*458Dissenting Opinion.
Comstock, J.Action by appellee against appellant, on a certificate of insurance issued to him in a combination policy of insurance, providing for benefits for loss of time from accident, for loss of time occasioned by sickness and for death benefit, to recover for loss of time occasioned by sickness.
The clause in said policy of insurance relating to sick benefits, is as follows:
“If at any time after this certificate has been maintained in continuous force and effect for ninety consecutive days, the aforesaid member shall, by reason of sickness or disease that begins after the expiration of the above term, become strictly confined to the house and totally disabled and prevented from transacting any and every kind of business, upon satisfactory proofs to the society of such confinement and total disability, said member shall be indemnified for the number of cousecutive days, after the first week, that he is actually confined to the house, subject to the personal calls of a registered physician in good standing, not to exceed thirty [weeks] during one year from the beginning of any illness, at the rate of $7 per week for the first eight weeks, $10 per week for the next eight weeks, $12 per week for the next eight weeks, and $15 per week for the remaining six weeks of the aforesaid period.”
The policy also contained the following conditions:
“Assessments are to be paid monthly in advance. * * * The failure to pay any assessment when due, will immediately terminate this membership and insurance. The acceptance of any past-due assessment is optional with the society and shall not in any ease be a waiver of the forfeiture of this contract and insurance, but shall be construed and have the same effect as if a new application had been made and a new certificate issued on the day following such acceptance, and for the payment and remittance of such past-due assessment the insured constitutes the local secretary his agent. ’ ’
*459Appellee alleges in his complaint that.he performed all the conditions to be performed by him; that he became sick on December 21, 1904, and was sick for twenty weeks, for which he claims benefits. Appellant answered in two paragraphs — general denial, and a second paragraph alleging affirmative matter showing that appellee’s membership in said society had been terminated by his failure to pay certain assessments and his subsequent reinstatement, and that he was' not entitled to sick benefits until ninety days after said reinstatement, as provided in said policy. Appellee’s demurrer to the second paragraph of answer was overruled. The cause was put at issue, and tried by a jury, and a verdict returned in favor of appellee for $198.72, upon which judgment was rendered. The court overruled appellant’s motion to instruct the jury to render a verdict in its favor, and overruled its motion for a new trial, and these rulings are assigned as error on this appeal.
It is insisted that the instruction to return a verdict for the defendant should have been given, because the appellee failed to give in evidence the policy of insurance upon which the action was founded, as shown by the bill of exceptions. The bill of exceptions states that “the defendant in the above-entitled cause filed his motion for a new trial therein, and stated as one ground and reason therein specified, in specification number two, that the yerdiet of the jury is not sustained by sufficient evidence, to wit, the original certificate of insurance, which is in writing, was not read in evidence to the jury. Counsel for appellee offered and had marked by the reporter said original policy of insurance, and said he would introduce the same in evidence, but - did not read in evidence to the jury said policy of insurance, or any part thereof; that said original policy of insurance, or any part thereof, was not read by any one, during the trial of said cause, to the jury.”
The policy, as hereinbefore set out, contained certain material provisions and conditions, the proof of which de*460pended upon the policy which was the contract between the parties. The policy was not read to the jury, nor is it shown that its reading was waived. Waiver of evidence upon which the successful prosecution of an action depends, is not presumed and this is unquestionably true where a general denial is filed. There was therefore a fatal defect in the proof to sustain the verdict, for which the judgment should be reversed.