Opinion
2 Div. 864.
June 30, 1925. Rehearing Withdrawn October 8, 1925.
Appeal from Circuit Court, Dallas County: S. F. Hobbs, Judge.
M. E. Frolich, of Selma, for appellant.
The demand for payment after the premium was past due, and after the time provided for the forfeiture of the policy, operates as a waiver of the forfeiture. Galliher v. State, etc. Ins. Co., 150 Ala. 543, 43 So. 833; U.S. Ins. Co. v. Lesser, 126 Ala. 568, 28 So. 646. The question of waiver of forfeiture was for the jury, and it was error to sustain demurrer to the evidence. Curtis v. Daughdrill, 71 Ala. 590; W. O. W. v. Gay, 207 Ala. 610, 93 So. 559; Bates' Adm'r v. Bates, 33 Ala. 102; Dearing v. Smith, 4 Ala. 432; National Union v. O'Rear, 16 Ala. App. 593, 80 So. 167; Security Mutual v. Riley, 157 Ala. 553, 47 So. 735; Queen Ins. Co. v. Young, 86 Ala. 424, 5 So. 116, 11 Am. St. Rep. 51.
Steiner, Crum Weil, of Montgomery, and Pettus, Fuller Lapsley, of Selma, for appellee.
While the premium note was past due, the policy was suspended. Crafton v. Home Ins. Co., 199 Ky. 517, 251 S.W. 992; Duncan v. U.S. Mutual, 113 Tex. 305, 254 S.W. 1101.
The special pleas of defendant set up a good defense, and the demurrers thereto were properly overruled.
There is no question here as to a forfeiture of the policy. The provision relied upon by defendant (and which appears in the policy) automatically worked a suspension of the policy during any period of default in the payment of a premium note, unless the company, by some duly authorized agent, extended the period of payment.
There was no evidence that Helmer, defendant's local agent at Selma, who sold plaintiff his policy, had any authority to waive the payment of the premium due on March 1, 1922, and keep the policy in force during plaintiff's default. A soliciting agent may waive a condition at the time the policy is delivered (Ætna Fire Ins. Co. v. Kennedy, 161 Ala. 600, 50 So. 73, 135 Am. St. Rep. 160, but he cannot waive the breach of a condition afterwards. Prine v. Am. Cent. Ins. Co., 171 Ala. 343, 54 So. 547; So. States Fire Ins. Co. v. Kronenberg, 199 Ala. 164, 74 So. 63.
Moreover, nothing that was said by the agent, Helmer, can possibly be construed as a waiver of the default admitted by plaintiff, for what he said was merely an invitation to plaintiff to come to his office and arrange with him to pay the premium and carry on the policy. This was in no sense a promise or assurance that the policy was in force, or would be kept in force, pending the execution of such an arrangement.
Under such a policy as this neither an invitation by the company to pay the premium, nor a request for its payment, can operate otherwise than as an invitation or request for reinstatement of the policy to make it operative, according to its terms, from the date of the payment. The rule is that —
"When the policy contains a stipulation that it shall stand suspended during delinquency, but that the holder shall be liable for such delinquent assessment, or that the entire premium note shall be deemed earned upon default, the insurer does not waive the delinquency as a defense to any loss occurring during such periods, by demanding or accepting premiums." 26 Corp. Jur. 328, § 410, and cases cited in note 70.
The evidence affirmatively showed that defendant was not liable for the loss under the terms of the policy, and the demurrer to the evidence was properly sustained.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.