On Rehearing. In Brooklyn Life Ins. Co. v. Bledsoe, 52 Ala. 538, 542, the first payment was made to the agent of defendant, who did not report it; when the second annual payment was to become due, on February 19th the next year, on the 6th of that month assured asked "indulgence upon payment of next premium," and reply was made on the 14th, stating that the policy stood as canceled on the company's books. There was evidence that the first payment was duly made, but that no other effort was made to pay the second premium; held, assured had not been prevented from making or tendering payment of the second premium. In this decision Judge Brickell declared that the policy was forfeitable by its own terms, payment was a condition precedent to its continuance, that such condition may be waived by any act which "prevents performance, (and) the opposite party is excused from strict performance" if that act was the immediate cause — "causa causans, not the causa sine qua non"; that is to say, that the letter to assured of date February 14th, to the effect that the policy "stood canceled," was not the immediate cause of the failure to pay the second premium that became due and payable on February 19th of the same year.
The case of New York Life Ins. Co. v. Norris, 206 Ala. 656,91 So. 595, was in some respects different as to the notice of the status of the policy as shown by the company's books. In the Bledsoe Case the notice contained the statement:
"If, however, you did pay it to the late Mr. Humphries, please send us a certified copy of the receipt you have for such payment, and also state when and where and how it was paid. * * *"
In the Norris Case rejoinder F sets up the facts of failure or refusal to accept payment, as follows: *Page 409
"* * * That on the occasion set out in said replication, when it is alleged defendant's said agent or servant refused to accept the said offer of payment of said premium and said interest and wrongfully rejected said offer of payment, said agent did not deny the existence of said policy or the validity thereof, but admitted the same and stated to plaintiff that there was some question about the loan on said policy, and he would have to write to the home office about the same and that he would let her hear from him. And defendant avers that thereafter defendant wrote to the insured direct, the same Frank M. Norris, deceased, within the time said premium and interest were due and payable under said policy, and, to wit, 2 weeks before said 30 days after July 3, 1913, had expired, requesting the payment of same, and said Norris received the same within, to wit, one day thereafter, and wholly failed and refused to pay said premium and interest, though he had sufficient time and opportunity to do so, and same have not been paid to this date."
Demurrer was sustained to such rejoinder, and the court held, as to this ruling, that the matter might be shown under the "joinder of issue." The court there said:
"The plaintiff's evidence, touching this aspect of the case, was susceptible of the interpretation that the refusal was predicated of some doubt in respect of the loan by the insurer to the insured, and this fact (if so) inspired the defendant's agent to state to the insured's wife, in the presence of his daughter, that he would take up the matter with the head office and communicate later. This evidence cannot, as a matter of law, be said to show a conditional refusal. Quite differently, it rather seems to evince the assertion of a reason for the refusal — a reason, the evidence nowhere shows, was ascertained by the defendant to be ill-founded or which the defendant afterwards withdrew or repudiated through definite advice to the insured or his representative. The correspondence shows, unmistakably, that the insurer regarded the insured as in entire default with respect to the July, 1913, premium, on that account pronounced the policy a 'lapsed' policy, and, so affirming, sought to induce insured to proceed as for a reinstatement consequent upon his default; whereas, if plaintiff's evidence of seasonable tenders was accepted by the jury, the insured was not in default at all, was still entitled to the benefit of the insurance the policy contract assured. The action of the insurer, in January, 1914, in foreclosing on the pledge of the policy (sole security for the loan) for failure to pay the July, 1913, premium, precludes any doubt of the defendant's attitude in the premises. From the whole evidence, it is apparent that no communication, oral or written, manifesting the insurer's recantation or notifying insured thereof, will be or can be produced; this to the end of reimposing upon the insured the duty of paying the July, 1913, premium."
Norris paid no premiums for 1913 to 1916, and recovery was permitted on the policy. The causa causans of his failure to pay or tender subsequent premiums is thus adverted to in the opinion:
"If, as plaintiff's evidence went to show, there was, because of seasonable tenders of the 1913 premium, no ground for forfeiture of insured's rights under the policy, the policy continued in force, notwithstanding the insurer's ill-founded declaration and insistence that the policy had 'lapsed' on account of the failure of the insured seasonably to pay the July, 1913, premium. The mere assumption of the insured in and under such circumstances, however formally expressed, afforded no basis for conclusions that he had acquiesced in the asserted forfeiture or had raised up an estoppel against the assertion of insurer's liability under the policy; no consideration for the relinquishment of insured's right under the policy being shown to have passed to him."
Thus the refusal of tender of premiums, with the promise to take the matter up with the "head office," was an unconditional refusal, and the assured was not thereafter required to keep good that tender or make further tender of payment of the annual premium. It now appears to the writer that the Norris Case did not take consideration of the decision in Brooklyn Life Ins. Co. v. Bledsoe, supra, as to the duty of assured to "keep good" the tender of the first premium and to show that assured was ready, able, and willing to make payment of subsequent premiums for the years 1914 and 1915, and to the date of his death on February 12, 1916. This is illustrated by the issue presented in the Norris Case, supra, where defendant's pleas averred, among other things:
"* * * That it was provided in said policy that, if the premium should not be paid thereon within one month from its due date, to wit, July 3d of each year, that the same should lapse, and defendant avers that the insured, Frank M. Norris, failed to pay the premium due on said policy on, to wit, July 3, 1914, and failed to pay the same within one month thereafter, wherefore the defendant says that said policy lapsed. * * * that it was provided in said policy that, if the premium should not be paid thereon within one month from its due date, to wit, July 3d of each year, that the same should lapse; and defendant avers that the insured, Frank M. Norris, failed to pay the premium due on said policy on, to wit, July 3, 1915, and failed to pay the same within one month thereafter, wherefore the defendant says that said policy lapsed."
The writer agreed to the decision in the Norris Case. Whether that decision is in all respects justified by the better authorities, as to construction of insurance contracts, until that decision is modified by this court as to such a refusal being the causa causans of the failure to keep good the tender of 1915 premium and to show that assured was ready, willing, and able to make payment of premiums becoming due and payable (if the contract was of force) in 1914 and 1915, the principle there applied should be given effect to the facts of the instant case.
Here the terms of the policy are exhibited, making the policy forfeitable for nonpayment *Page 410 of premiums, providing for reinstatement on conditions indicated, and for the suspension of the payment of premiums under the terms stipulated in the policy. In the instant case, as in the Norris and Bledsoe Cases, supra, the assured lived beyond the next accruing premium period, and the same was not paid or tendered at such subsequent period. In the Bledsoe Case the assured sought additional time for payment, was refused, and told the policy stood canceled on the company's books. In the Norris Case and this case no subsequent offer of payment was made or tendered. In the Norris Case that duty was excused (under the rule of unconditional prior refusal) in 1914 and 1915, because the agent had refused to accept the premium for 1913, saying he would refer the matter to the head office for consideration and notification, etc. It would appear that Mr. Fisk's letter, offered by defendant in the instant case, left open only the question of reinstatement under the terms of the policy — upon "evidence of insurability satisfactory to the company" — which the physical condition of Mr. Watts would have prevented. If there was excuse for nonpayment or not keeping good the tender of premiums by Norris for the years 1914 and 1915, under the terms of Mr. Fisk's letter, a jury question was presented as to the duty of Mr. Watts to make subsequent payment or tender thereof for the November, 1919, premium. He died in August, 1920. Under his enfeebled condition in 1918 and 1919, and that phase of the evidence tending to show that his mother had paid the "November, 1918," premium to defendant's agent having authority to collect the premiums, and thereafter Mr. Fisk's letter to assured informing him of his "nonpayment of the premium last due" (that of November, 1918), the jury may have inferred that the letter amounted to an unconditional refusal to accept other premiums without formal reinstatement per terms of the policy, and that tender of payment was excused.
The foregoing being considered by all the justices on rehearing, it is the judgment of the court that the affirmative charge for the defendant was justified under the facts of this case, and the decision by Mr. Chief Justice Brickell in Brooklyn Life Ins. Co. v. Bledsoe, 52 Ala. 538. If there be a conflict between the Bledsoe Case and New York Life Ins. Co. v. Norris, 206 Ala. 656, 91 So. 595, the latter case is hereby overruled in so far as it may be in conflict with the Bledsoe Case, and the ruling now made on rehearing in the instant case.
The rehearing is granted, the former judgment of reversal and remandment is set aside, and a judgment affirming the judgment of the trial court is now entered.
All the Justices concur in granting the rehearing.