Mutual Savings Life Ins. Co. v. Osborne , 245 Ala. 15 ( 1943 )

It was decided by our early cases that one who is only authorized to solicit and take applications for insurance and receive the premiums and deliver the policy after having been signed by the proper officers has no authority, express or implied, to waive conditions precedent stated in the policy. Alabama State Mutual Assurance Co. v. Long Clothing Shoe Co.,123 Ala. 667, 26 So. 655. This rule has been followed in Green v. Weschester Fire Ins. Co., 221 Ala. 344, 128 So. 436; Indemnity Company of America v. Bollas, 223 Ala. 239,135 So. 174.

The provisions of the instant policy as to the requirement of payment of premiums will be set out in the statement of facts.

Under the contradictory evidence, or the reasonable inferences therefrom, as to the payment of the required premium on the policy declared upon, charges 6, 9 and 10, refused to the defendant, should have been given. In the failure to give these charges, reversible error intervened.

Since the case will be retried, we may say that charge 12, requested by the defendant, was abstract because there was no evidence or reasonable inferences therefrom that E. D. Graves attempted to waive payment of the first premium on the policy or that he actually delivered the policy without receiving payment of the first premium.

Charge 27 was covered by the oral charge of the court.

It follows from the foregoing, that the application for rehearing is granted, the judgment of affirmance heretofore rendered is set aside and vacated, and the judgment of the Circuit Court is reversed, and the cause is remanded.

GARDNER, C. J., and BROWN and LIVINGSTON, JJ., concur.