Appeal
from Circuit Court, Jefferson County; Whit Windham
Judge.
Count A of the complaint is as follows:
"Count
A
"The
plaintiff claims of the defendant One Thousand Three Hundred
and Eighty Dollars ($1,380.00) due on a policy whereby the
defendant on the 7th day of November, 1938 insured J.M
Anderson against the loss of his life resulting solely from
bodily injuries effected directly and independently of all
other causes through accidental means. The plaintiff avers
that the said J.M. Anderson lost his life solely from bodily
injuries effected directly and independently of all other
causes through accidental means, which death occurred on the
23rd day of March, 1942, of which the defendant has had
notice. The plaintiff avers that she is the owner of said
policy and is the beneficiary named therein."
The
following are pleas of the defendant:
"10.
Defendant says: that policy provides 'In consideration of
the said premium paid in advance * * * the said company
hereby insures J.M. Anderson, * * * hereinafter called the
insured, subject to all provisions, conditions and
limitations hereinafter contained, from 12 o'clock noon
Standard time, at the place of residence of the Insured of
the 3rd day of November 1938 until 12 o'clock noon
Standard Time of the 1st day of Feb. 1939 and for such
further periods as the payment of renewal premium will
maintain this policy in force' and defendant says that
insured paid said premiums and maintained said policy in full
force and effect until the 1st day of Feb. 1942 when the
insured failed or refused to pay the premium due on said date
on said policy as provided by the above terms of said policy
and permitted said policy to lapse for non-payment of
premiums. And that said policy was not renewed or reinstated
thereafter and was not in force or effect at the time of
death of the insured on to-wit the 23rd day of March
1942.
"11.
Defendant for further plea says: that the policy provided
under Section 10(a) 'This policy is issued for the term
herein before specified and may be continued in force by the
payment of the agreed premium by the insured * * * ' and
that on to-wit the 1st day of Feb. 1942 the insured elected
not to continue said policy in force by failing or refusing
to pay the renewal premium due that date and permitted said
policy to lapse for non-payment of premiums."
Plaintiff's
replications to said pleas are as follows:
"Replication
No. 1
"Comes
the plaintiff and for replication to pleas numbers 10 and 11
separately and severally, filed by the defendant says that as
to any default in the payment of any premium or premiums on
said policy of insurance the defendant waived same in this:
that subsequent to the issue of said policy by the defendant
to the insured and prior to his death the said insured for a
long period of time, to-wit at least a year,
and probably longer prior to his death did not pay said
premiums on the due date thereof but the defendant by its
habits of business and by its acts and by a custom of the
defendant did receive from the insured past or overdue
premiums, and did not exact prompt payment of the same from
the insured so that by a course of conduct continuing a long
time prior to his death, which plaintiff says was a year or
more, caused and induced an honest belief reasonably founded
in the mind of the insured that strict compliance with any
stipulation for punctual payment of premiums would not be
insisted upon and that payment could be delayed without any
forfeiture of said policy resulting therefrom for a period of
time as long as, or longer than the period of time from
February 1st 1942 until the death of the insured on to-wit
March 23,
1942. And the plaintiff says that by said
course of conduct the defendant waived any right or power to
forfeit said policy or to refuse payment of same on account
of any default or delay by the insured in the payment of the
premiums which the defendant has alleged in its said pleas,
that the injured did not pay. And plaintiff hereby tenders to
the defendant and pays into Court the sum of $9.75 plus
interest of 70 cents, the amount of said premium due Feb.
1st, 1942 and the interest thereon.
"Replication
No. 3
"Plaintiff
for further replication to pleas Nos. 10 and 11, separately
and severally, says that the policy of insurance sued on
provided for the payment of a quarterly premium of $9.75 per
quarter. That insured had paid the premiums required from
November 7-1938 in full including all the time between that
date and a short time before his death. That said premium was
fully paid up to at least the 1st day of February 1942 and on
or before that date or some days thereafter the insured had
delivered to the defendant a check for the premium on said
policy which represented a sum sufficient to pay the premium
and keep the said policy in force to a date beyond the date
of the insured's death to-wit March 23-1943 plaintiff
says that the defendant customarily and for a period of over
one year prior to death of insured accepted said checks after
the due date of said premium on the policy sued on, and on
many occasions, if said check for said premium after being
delivered to the defendant was not paid promptly by the bank
on which it was drawn, the defendant continued to hold said
check in its possession and present it from time to time
until same was paid, and in no instance did said defendant
forfeit or attempt to forfeit said policy for and on account
of the present non payment of said check or checks, and the
plaintiff says that by said course of conduct the defendant
waived its right to declare any forfeiture of said policy for
and on account of any failure to promptly receive payment of
any check or checks given defendant by the insured for
payment of any premium or premiums on said policy. Plaintiff
further says that by said course of conduct indulged and
participated in by the defendant the defendant created an
honest belief in the mind of the insured reasonably founded
that the defendant would not exact immediate payment of said
check or checks and that said defendant, kept said check in
its possession and presented the same to the bank for payment
on one or more occasions prior to the death of the insured
and on one occasion after his death, and that said act or
acts on the part of the defendant were the same, in character
and procedure which the defendant had customarily done or
followed with reference to checks of the defendant for the
payment of premiums which were not paid promptly upon
presentation. The plaintiff says that by said course of
conduct on the part of the defendant and by retaining
possession of the insured's said check for the payment of
the premium for said period of time which would have kept
said policy in force the defendant waived its right and power
to declare a forfeiture of said policy sued on for the
alleged default in the payment of said premium or premiums,
and is estopped to defend or refuse payment of said policy
for and on account of the failure or delay of the insured to
pay the premium or premiums promptly and the plaintiff hereby
tenders to the defendant and into the Court the sum of $9.75
plus interest of $.70 cents the amount of said premiums due
on February 1st, 1942 and the interest thereon."
The
following charges were refused to defendant:
"(H)
The court charges the jury that insurance companies have the
same right as individuals to limit their liability and to
impose whatever conditions they please upon their obligations
not inconsistent with public policy and the
courts are without right to add anything to their contracts
or to take anything from them."
"(I)
The court charges the jury that it is the duty of the courts
and the jury that the terms of the insurance policy...
