Hightower v. Metropolitan Life Ins. Co.

The opinion of the Court was delivered by Mr. CitiEE Justice Gary. The foregoing statement of facts practically embodies the entire record. There is no doubt that the failure of the insured to pay the premium which became due on the 14th of October, 1920, caused the policy to lapse, but it was provided in the policy that it might be reinstated at any time upon payment of the past-due premium and the production of evidence of insurability satisfactory to the company. On the 29th of November, 1920, the insured wrote a letter to the defendant, inclosing a money order in the sum of $15.79, to pay the premium of insurance necessary for a reinstatement of the policy. This letter with its inclosure' was duly received by the company, which introduced testimony to prove that it wrote a reply, dated the 1st of December, 1920, inclosing a reinstatement blank, and that said letter was duly placed in the post office, properly addressed to the insured. The plaintiff offered evidence to' show that the letter was not received by the insured. This is the, main issue in the case. The fact that the defendant may have deposited the letter, dated the 1st of December, 1920, in the postoffice, while raising a presumption that it was received by the insured in due course of mail, nevertheless there are facts ’ and' circumstances tending to rebut such presumption, sufficient to require the submission of such issue to the jury. As we have reproduced these facts and circumstances, it is not necessary to discuss them in detail. If the defendant company retained the premium tendered by the insured, *389 and failed to take the steps which defendant claims were taken to advise the insured of the necessity of making formal application for reinstatement, under the circumstances indicated, we think there was some evidence tending to establish waiver. The judgment is affirmed. Mr. Justice Fraser concurs.