The writer was in error in saying in the opinion that this was the second appeal in this case. The report of the case in78 So. 299, L.R.A. 1918D, 860,1 was between the same parties, but was on a different policy. The only excuse the writer has to offer is that the policies in the two cases are as near alike as if one were a copy of the other. The parties are the same, and the policies were issued on the same date, for the same amount, were forfeited the same day, reinstated the same day, and the same attorneys appeared for the respective parties in the same court; hence it never occurred to the writer that the cases were not the same, The writer compared the original record on the former appeal with the one on this appeal, and, finding the above similarities, he concluded it was a second appeal in the same case. This mistake led to another of referring to some pleas and subsequent pleadings on the former appeal, not in the record on this appeal.
The real questions of law involved in the two appeals are however, the same, except as pointed out and decided on the original hearing.
On the former appeal we held that the application for reinstatement was not made a part of the policy in such sense as to authorize us to consider it as a part of the contract. On this appeal we held that it was so made a part thereof, and we did consider it as a part of it, but declined to hold with appellant that the insured or beneficiary was bound by the stipulations contained in the application, that the insurer should not be liable if the "insured should die by his own hand or act whether sane or insane, within one year from the date of such placing in force."
It appears without dispute, except as conclusions of the pleader, that there was no consideration to support this condition.
The original policy, on which the action was brought and which was reinstated, gave the insured the right to have it reinstated without the above condition, and the condition together with others were on printed forms or blanks furnished by the company, and there was absolutely no consideration to support the new agreement; but it was the intention and contract right of the insured under the original contract of insurance, which is here sued on, that the policy should be reinstated on certain conditions which were complied with, and the original policy thus reinstated. It is certain that the contract was to reinstate the original, not to make a new contract, or amend or change the old; and that the rights and liabilities of both parties after the renewal or reinstatement should be the same as if there never had been a forfeiture. The rights and liabilities of the parties dated from the time of the original contract, and not from the time of the renewal — as the conditions in the application for renewal would indicate, or would follow if they were binding.
If these conditions contained in the application for renewal are binding, then the original contract and the renewal contract set up by the defendant contain conflicting provisions. In other words, if the original policy as it was written is the contract which controls, then the incontestable clause precludes any defense here attempted to be set up. On the other hand, if the original policy is changed by having the conditions contained in the application made a part thereof, then the incontestable clause is either wholly avoided, or its operation and effect postponed for two years. If the conditions in the application are a part of the policy, then the policy contains conflicting provisions, and, if the conditions are to be enforced, then there can be no recovery; if the pleas are true, then the replications setting up the incontestable clause would be no answer to the pleas. On the other hand, if they are not binding, so as to become a part of the policy, then the incontestable clause is in force and precludes any defense here attempted to be set up. The right to reinstatement is a part of the original policy, and was binding on the insurance company when the forfeiture occurred and when the reinstatement occurred. The insurance company certainly had no right, under the original contract, to require that the policy should be reinstated only on the conditions contained in the blank application which the insured signed. *Page 456
It is true the insured could have waived his right to reinstatement, and could have contracted for a new policy with different conditions, and could have waived benefits in the original policy; but did he do this? Did he not exercise his right under the original policy to have it reinstated as it was originally, and not to make a new contract as the insurance company now insists? We are unable to find any consideration to support these conditions in the blank application for reinstatement, and for this reason we hold they are not binding.
The clause of the contract to "reinstate" does not mean to reinsure under another and different contract; it implies the right of the insured to be placed in the same condition that he occupied before the forfeiture, and it implies the duty on the part of the insurer to place the insured in that condition, and it allows no right to exact other conditions, precedent or subsequent, to reinstatement. Lovick v. Providence Life Ass'n,110 N.C. 93, 14 S.E. 506, 507; Goodwin v. Assur. Ass'n,97 Iowa, 226, 66 N.W. 157, 32 L.R.A. 473, 59 Am. St. Rep. 411.
The insured had the legal right to have his policy reinstated after forfeiture without any additional consideration, within the time specified in the policy, if the insured paid or offered to pay the premiums and the accrued interest, and to furnish evidence satisfactory to the company of his insurability. This he did. The insured having done all that was required of him, he could have compelled, by a bill in equity, the reinstatement of his policy as it was. Bradbury v. Mutual Reserve Fund Life Co., 53 N.J. Eq. 306, 31 A. 775. It has been held that where the insured fully performed his part of the contract as to reinstatement after forfeiture, and the insurance company declined to reinstate, or to accept the offer, the beneficiary could recover on death of insured as if the contract had been reinstated. Van Houten v. Pine, 38 N.J. Eq. 72.
The contract in question was not for a year, with privilege to renew; it was for life, with right of reinstatement if forfeited. The contract is an entirety, subject, of course, to forfeiture or discontinuance for failure to pay premiums. Fearn v. Ward, 80 Ala. 555, 2 So. 114. The insurer has no right to impose or add other conditions to the right of reinstatement than those contained in the contract. Biddle on Ins. vol. 2, p. 1122; Davidson v. People's Ben. Ass'n, 39 Minn. 303,39 N.W. 803, 1 L.R.A. 482. If other conditions are so added by the insurer, they are not binding on the insured unless supported by a consideration. 9 Cyc. 593; Rowell v. Covenant Mut. Life Ass'n, 84 Ill. App. 304.
It follows that the application for rehearing must be overruled.
1 201 Ala. 337.