dissenting:
The evidence shows that the premium called for by the policy was not paid by the insured. The policy provided that the insured may cancel the policy by surrendering it. Because of the nonpayment of the premium, the insurance broker held the policy. The commission of the broker would come out of the premium paid by the insured. The broker cancelled the policy because of nonpayment of the premium and surrendered the policy to the insurer, who is the garnishee. The policy was surrendered and cancelled prior to the accident of January 14, 1961, which is the basis for plaintiffs’ cause of action against Underwood. The broker was the agent of the insured. As the policy was not in effect at the time that the cause of action arose in favor of plaintiffs and against Underwood, the insured, there is no basis for the judgment against the garnishee.
Therefore the judgment against the insurer should be reversed and the cause remanded with directions to enter judgment for Apex Mutual Insurance Company, the garnishee, and against plaintiffs.