(dissenting). The plaintiff recovered upon a life policy issued September 10, 1894, upon the life of her husband, who died on July 3, 1895. The .premium was payable weekly, in installments of 15 cents. The policy contained the proviso that “no obligation is assumed by this company prior to the date hereof, nor unless, on said date, the assured is alive and in sound health.” The company defended upon the ground that, at the time the policy issued, the assured was not in sound health, but was ailing from a disease of the spine, which continued, and caused his death. This was not admitted, but it was claimed upon behalf of the plaintiff that, if it were true, the condition was waived by the defendant. Both questions were left to the jury, and a verdict was returned for the plaintiff. Counsel asserts that there *524was no testimony to the effect that spinal disease constituted unsoundness of health; but we think that where, as in this case, it appears that such disease was of' several years’ standing, and continued until death resulted, it is, in the absence of proof to the contrary, sufficient evidence of unsound health nine months before death. This appears, not only from the statements contained in the proof of loss, but by the testimony of the plaintiff herself upon the witness stand. We think that the unsoundness of health of the assured at the time the policy was issued was conclusively proved, and that the question should not have been left to the jury.
Was there testimony which could support the claim that the condition was waived ? Counsel for the plaintiff asked her the question:
“Q. Did you have any talk with any of the agents, concerning your husband, when he was sick? (Objected to by counsel for defendant as incompetent and immaterial.)
“ The Court: The reason that you claim that this evidence might be proper would be if they want to make any defense because there were certain statements that weren’t true, or something of that kind ?
“Mr. Sullivan: Yes; if they claim under a certain clause in the policy.
“ The Court: But you claim they waived it?
“Mr. Sullivan: Yes; by accepting the premium.
‘ ‘ The Court: As I understand it, your proposition is to show, after they had full knowledge of the fact, that they received your money. Is that about it ?
“Mr. Sullivan: After they had notice or knowledge of any sickness that Mr. Hilt had, they received our money, — yes, sir; and by receiving our money they are now estopped, and waived any condition in the policy to that effect. Will the evidence be received, your honor?”
The court permitted the witness to answer, and the examination proceeded as follows:
“Q. Mr. Parker was one of the men that came to see you to get your money ?
“A. Yes, sir.
*525“Mr. Potter: We would like to have all this testimony received under our objection and exception.
“The Court: All right.
“A. When I had mine insured, and my children, they sent a doctor to examine me. With Mr. Hilt, they didn’t.
“Q. Did Mr. Parker speak to you about your husband’s health some time before his death ?
“A. No, not as I know of.
“Q. I want you to recall. You had a conversation with me concerning the health of your husband. Did he introduce any man to you as the head man of the company ?
“A. Oh, yes: I didn’t know what you meant.
“Q. When was that?
“A. Oh, about two months or so before the time. I can’t swear to it, — just the time.
“Q. About two months, you think? Did you have a talk with that head man ?
“A. Yes, sir.
‘ ‘ Q. Where was that ?
“A. In my kitchen.
“Q. What did he say to you ?
“A. He said—
“Mr. Potter: I understand—
“The Court: As I understand, this man Parker was the man who took your policy, — made out the policy for you first?
“A. Mr. Lucas is the first man.
“Mr. Sullivan: They have several agents here in the city.
“The Court: What did you say this man Parker did?
“A. He was the next agent. When Lucas didn’t come any more, then Parker came as agent, — the second agent.
“The Court: What did he come for?
“A. After money.
“rlhe Court: Was he the same party to whom you gave this other paper?
“A. Yes, sir.
“ The Cotirt: When you notified him of the death?
“ A. No; that was that man, — Mr. Yelzy.
“Mr. Potter: Perhaps, with a slight explanation, I can make it plain to the jury and all of us: They have agents whose business it is to collect these weekly premiums, *526and if one agent, for any reason, is discharged, or quits, his book is transferred to some other agent, and that agent then goes around collecting the weekly premiums. This branch of the business, it is called the ‘ Industrial Branch,’ and weekly premiums are collected, — in this case, 15 cents a week. If the agent who took the policy originally leaves the service of the company, somebody takes his place, and takes his book and goes around and makes the weekly collections.
“The Court: You concede this man Parker had authority to do that?
“Mr. Potter: To make the collection? .
“The Court: Yes.
“Mr. Potter: I haven’t any reason to doubt it. I presume likely that is so. We do not concede that he had any other authority, though.
“The Court: What did you say he said, — this man Parker ?
“Mr. Sullivcm: She said he introduced her to a man that he called the head man of the company.
“A. Yes; he fetched the head man there. He told me he come to see me, and I told him all right, and he come.
“ The Court: Gro on.
“A. He says, ‘ Mrs. Hilt, do you think that was right, to have your husband insured ? ’ and I told him I didn’t know nothing about it.
“Mr. Sullivan: Was there anything further said?
“A. And he said if I thought there was any fraud. I told him I didn’t know nothing about it, on my side; I didn’t know; if he thought so, it was not me. That is what I said.
“Q. About how long was that before your husband died, as near as you can fix it?
“A. On my knowledge, about two months or so,- — -a little more. I don’t know.
“Q. Did you have any hot words with him? Did you get warm, — you or him?
“A. Yes; it made me mad when he said I was a fraud, a swindler. I told him I was not; it was his business, not mine.
“Q. That was in your kitchen, after you had been introduced to him by Mr. Parker ? That talk was had with you in your kitchen, after you had been' introduced to him by Mr. Parker. Is that right ?
*527liA. Yes, sir.
“Q. Did they come around and collect the weekly premiums after that ?
“A. Yes, sir.”
Velzy was sworn for the defendant, and testified that he was one of several thousand assistant superintendents, who were said to be “ just a rank higher than an agent in the town.” Their duty was to do office work in their offices, and occasionally to visit policy holders and ■examine their receipt books, to-see that the agents had turned in to the company all collections made. He testified that he heard that Hilt was ill, about two weeks before he died, from Charles Shafer, who was a home inspector, and who • came along 'at that time. He was able to fix the time that Shafer was there as the week beginning Monday, June 17th, from records in his office. He stated that Shafer’s duty was to go around and take the date of the last payment, from the receipt books in the hands of the assured, to see if the agents had turned in all collections; also: “If there are any impaired healths in the district, — people that were insured when the policy is issued, — it is his business to lift those policies, and pay the people back their money.”
The plaintiff’s case, then, hangs on the slender thread that the failure of Shafer to lift this policy, and pay back the premiums received, and the acceptance by Parker of one or two payments of 15 cents after this visit by Shafer, constituted a waiver of the condition of sound health provided by the contract. There is no evidence in the record of what Shafer knew, except as it is to be inferred from the conversation related by Mrs. Hilt. She says he asked her if she thought it was right to have Hilt insured, and she disavowed knowledge upon the subject, and that he then asked if she thought there was any fraud, and she told him she did not know; if he thought so, it was not her. Her testimony implies that he accused her of being a fraud and a swindler, and she replied that it was his business, and not hers. It is not claimed that Shafer re*528ceived any money, or that he directed any one else to. The most that can be said is that after this conversation, from which we may infer that he believed, and possibly knew, that the policy was obtained when the assured was not in sound health, he did not offer to pay back the premiums, and demand the policy. There is, in my opinion, no evidence that the home office was informed of, or acted upon, the knowledge obtained by Shafer. There is nothing to indicate that he saw Hilt, with whom the contract was made; and, if the company is to be held liable, it is to say that, when notice is brought home to one having authority to cancel policies for fraud, his failure to do so, and the subsequent receipt of money by a collector not a general agent, constitute a waiver, notwithstanding the express provision that waivers must be in writing, signed by the president or secretary of the company. We think this is not the law. The case is within the rule of Mallory v. Insurance Co., 97 Mich. 416; Cleaver v. Insurance Co., 65 Mich. 527 (8 Am. St. Rep. 908). See, also, Bourgeois v. Insurance Co., 86 Wis. 402; Pitney v. Insurance Co., 65 N. Y. 6; 2 Biddle, Ins. § 1081; 2 May, Ins. §§ 507, 508.
The judgment should be reversed, and a new trial ordered.
Grant, J., concurred with Hooker, J.