delivered tbe opinion of the court.
This is an action on a policy of life insurance, admitted to have been issued by the defendant on the life of the husband of the plaintiff. The petition alleged that Hanley, in his lifetime, deposited the policy with the defendant, as security for a debt of $600, which had been fully paid, and that the policy was in the possession of the defendant; that $481 had been paid on the policy, and that the balance of $10,000, the amount of the policy, was due. The answer alleged that the $10,000 was to be paid only on the condition that the semi-annual premiums, to be paid, by the policy, on the first days of February and August in each year, were met by the respondent as they became due ; that when the semi-annual premium became due on August 1, 1872, it was demanded of Hanley, and that he refused to pay it, upon which the policy became forfeited. The answer then set out a clause in the policy to the effect that, after the receipt of two or more annual premiums, the failure to pay any other premium when due should cause the policy to-become a paid-up policy on a proportional basis as provided, and that the commuted policy should be subject to the same conditions, etc. ; that Hanley paid five semi-annual premiums, and that, by reason of the failure to pay the-then succeeding premium, due August 1, 1872, the policy became a commuted policy, to wit, for $581, subject to-certain credits, etc.; that on this basis defendant had paid the policy in full. The reply set up various matters, the-allegations being to the effect that the defendant waived the-payment of the premiums when due, and gave Hanley time-to pay them, and never claimed that the policy had become-a commuted policj'-. The affirmative allegations of the answer were denied.
The evidence it is unnecessary to set forth in detail. It.
The defendant’s evidence tended to show that its manager had told Hanley, who himself was employed by the company, that the policy was lapsed and would' be can-celled, upon which Hanley said that he knew it, and was aware of the rules; that, by the custom of the company, when a premium was overdue for thirty days, the person must submit to re-examination as to his health; that in December, 1872, the amount due on the policy, as a commuted policy, was paid to the plaintiff, and that she, on the
The instructions which were given for the respondent are not now objected to by the appellant, except upon the ground that there was no evidence to support them, or to show either payment or waiver of payment of the August premium. Among other instructions given for the appellant was the following:
“The jury are instructed that,in order to recover in this action, the plaintiff must show by evidence one of the following facts: first, that the premium due by said Hanley to the Life Association of America was paid; or, second, that the defendant had waived the prompt and immediate payment of said premium, and assented to the delay in the payment up to the time of said Hanley’s death ; or, third, that it had been accustomed to receive the premiums on said policy long after they became due and payable by the terms of the policy, and had continued the policy in force notwithstanding the failure to pay said premiums when and as they became due ; or, fourth, that for a long time before said 1st of August, 1872, defendant had been accustomed to waive the prompt payment of premiums on policies issued by it, and had been accustomed to keep such policies in force notwithstanding the failure to pay the premiums promptly, and that defendant had so waived prompt payment in case of the premiums due on the policy herein sued on, and of the premiums last due; or, fifth, that defendant had waived any right it may have had to forfeit or commute said policy. ”
There was a verdict and judgment for the respondent in the sum of $10,308.70, and an appeal to this court.
The rule of law by which this case must be governed was laid down in Thompson v. St. Louis, etc., Insurance Com
The third instruction, of the refusal to give which the-appellant complains, was properly refused. It was not necessary that there should have been an express waiver. It was for the jury to say, under the instructions and upon all the evidence, whether there had been a waiver. The sixth instruction was properly refused. As, according to the
In regard to the admission of evidence, it was competent for the respondent to state the whole conversation with the witness Mott, who had given his version of it. If she stated'to Mott what her husband had told her, that was 'still a part of the conversation. As a statement by Hanley, the remark was not evidence, and so the court' instructed the jury. In the refusal of the court below to set aside the verdict, notwithstanding the affidavits as to newly-discovered evidence, we see no abuse of its discretionary power. The judgment, with the concurrence of all the judges, will be affirmed.