(145 N.E.) of the preceding regular assessments Nos., assured which the courts have refused in nu586, 587, and 588, with notice that they merous cases to countenance." must be paid on or before March 2, March 16, and March 30. There was no proof that any of these assessments was or was not an extra assessment, but it had been the fixed custom of the committee for many years to give the dates when the regular assessments had to be paid to prevent forfeiture. That suit was commenced in June, 1907, and appellee continued to pay all dues and assessments up to an assessment of $7.44 that fell due April 13, 1908, which he did not pay, but of which he testified no notice had been given him. The trial of the cause began April 14, 1908, and on the morning of that day appellee tendered the amount of the assessment to the collector, which was re fused. He then brought it into court for the use of the association. Without any evidence as to whether the assessment in question was a regular assessment, other than the fact that it was payable on the second Monday of the month, the court said: Many authorities are cited by the author in support of the above statement. One of Co. v. Sefton, 53 Ind. 380, where the plainthe authorities cited being Franklin Life Ins. tiff, over the objection of the defendant, was permitted to prove that it was the custom of the defendant to receive payment of premiums after they were due. This was held error, the court saying. "The custom or usage of the company could not be set up to control the terms of the contract between the parties." that the act of the agent in accepting pay- "But as forfeitures are not favored, appellant's custom of giving notice of the time regular assessments are due was a waiver of the right of forfeiture for nonpayment, without the giving of such notice. Where notice of an assessment is required by the by-laws of the society to be given, there can be no forfeiture on that ground, unless the notice is given. Nor should a forfeiture be permitted where during a long term of years-here the full term of membership-it has been the uniform custom of the society to give notice. Its own acts should estop it. * There are a few cases involving annual premiums, where it had been customary to give notice, and the failure to do so has been held not to waive the forfeiture. In case of monthly assess-ary notice, saying: ments it is, of course, only a difference in degree, but where a uniform custom has been so long and unbrokenly followed, as here, covering the entire period of membership of over 20 years, and where, without notice, there is a prompt offer to pay, it is a more just rule to deny forfeiture upon the ground of waiver." This In Grant v. Alabama Gold Life Ins. Co., 76 Ga. 575, the court, adhering "to the spirit of the Georgia Code,' held that an insurance company might be estopped from declaring a policy forfeited by failure to give a custom Yet the insured must act with reasonable diligence, and six months' delay to pay a premium for want of notice appears to us so unreasonable as to show a purpose to abandon the policy and let it lapse; and if a jury should decide that such was reasonable, the court should not permit the verdict to stand. Two or three months in a policy of Appellee also cites Joyce on Insurance (2d annual premiums, a month or six weeks in Ed.) § 1332, where the author says: "If a life insurance company has been in the practice of notifying the insured of the time when the premiums will fall due, and of the amount, and the custom has been so uniform and so reasonably long in continuance as to induce the insured to believe that a clause for forfeiture for nonpayment will not be insisted on, but that notice will precede the insistence upon the forfeiture, and the insured is in consequence put off his guard, such notice must be given, and, if not given, no advantage can be taken of such default in payment which it has thus encouraged, for the insured is entitled to expect the customary notification; and to mislead the insured by not giving such notice, and then insist upon a strict compliance with the conditions of forfeiture, constitutes, under such circumstances, a fraud upon the semiannual premiums, is time enough for one who has his life insured, though notice does not come to him from the company according to usage, to bestir himself to ascertain why the notice has not come, and not to do so within such reasonable time, without some overpowering providential cause, ought to conclude him." In Brooklyn Life Ins. Co. v. Bledsoe, 52 Ala. 538, the agent who delivered the policy collected the first premium and died without making a report to the company. A few weeks before the second annual premium became due the insured wrote the company asking an extension of time and offering to give his note with interest. He was then informed that the policy stood on the books of the company as having been canceled because of nonpayment of the first premium. About 10, right to show what had been the uniform months later the insured died without paying custom in regard to the payment of the preor offering to pay the second premium. The miums and that "no right of forfeiture could cancellation of the policy was held errone- arise from a default procured by such disous and without right, but the cause was re- reputable strategy." versed on the ground that the evidence did In Southern Life Ins. Co. v. McCain, 96 not show any act on the part of the insur-U. S. 84, 24 L. Ed. 653, the premium was ance company preventing performance on the part of the insured, and that the nonpayment was without excuse, the court saying: "It is an elementary principle, that the performance of conditions precedent may be waived, or if the party, whose responsibility is to arise on their performance, by any act of his prevents performance, the opposite party is excused from a strict compliance. He must, however, prevent performance-he must be the proximate, not the remote cause. Helme v. Philadelphia L. Ins. Co., 61 Pa. 107, 100 Am. Dec. 621, has been materially weakened by Smith v. National Life Ins. Co., 103 Pa. 177, 49 Am. Rep. 121, where the court, in speaking of the contention that the failure of the insurer to send the customary notice excused the insured's default, said: "By the terms of the contract it was certainly the duty of the assured to pay on the day stipulated whether he received notice or not; he knew, or was bound to know, the several dates at which the premiums were due, and his neglect to pay was at his own peril; the company was under no obligation to give the notice (Thompson v. Insurance Co., 14 Otto, 252). Assuming, however, that the assured may have been misled by the company's course of business, there can be no apology or excuse for two whole years' neglect upon that ground; such a default could not be traced to the misleading effect of the company's uniform practice in sending notices." In Insurance Co. v. Pottker, 33 Ohio St. 459, 31 Am. Rep. 555, when the policy was delivered by the agent, he agreed to give notice when each annual premium became due and to collect same at the residence of the insured. This plan of collecting premiums was carried out from the time the policy was issued, in 1868 to 1872. The insured was ready, willing, and able to pay the premium due in October, 1873, but no one came as usual to receive it, and no notice had been given to pay otherwise than in the usual manner. A few days after the premium was due the insured saw the agent who had theretofore collected the premiums and inquired why he had not called for the premium. On being informed by the agent that he had resigned because the company had marked a number of undesirable risks, and had directed him not to call on the parties so marked or to give them notice as formerly, the insured sent the amount of the premium then due to the company. The company refused to accept the premium thus sent on the ground that the policy had been forfeited. It was there held that the insured had the paid to one who had theretofore been an agent of the company and to whom premiums had been paid. The question related to the effect of a payment made to the former agent by a policy holder who had not been advised of the change of agency, and the failure of the company after being informed by the former agent of the receipt of the premium, to notify the insured of the revocation of the authority of the former agent to receive the premium. Globe Mutual L. Ins. Co. v. Wolff, 95 U. S. 326, 24 L. Ed. 387, involved the effect of a payment to an agent after due date of premium. In New York Life Ins. Co. v Eggleston, 96 U. S. 572, 24 L. Ed. 841, the insured had been paying the premiums to different agents as designated by the insurer in notices theretofore given. The insured having received no notice to whom to pay the last premium, and the due date having passed, telegraphed to one of the agents to whom former payments had been made, asking to whom payment should be made, and on receiving a reply telling him to pay a certain agent who held the receipts, tendered payment to such agent, who refused to accept the same in the absence of a certificate of health. The insured was sick when the tender was made, and died soon thereafter. Mayer v. Mutual Life Ins. Co., 38 Iowa, 304, 18 Am. Rep. 34, was apparently overruled in Mandego v. Centennial Mut. L. Ass'n, 64 Iowa, 134, 17 N. W. 656, 19 N. W. 877, where it was held that the failure to send notice, as was customary would not constitute a waiver of the condition of the policy relating to forfeiture because of nonpay. ment of premiums. On petition for rehearing, it was insisted that the decision was in conflict with Phoenix Mut. L. Ins. Co. v. Doster, 106 U. S. 30, 1 S. Ct. 18, 27 L. Ed. 65. In disposing of this contention the court said. "In that case the controversy was in relation to the annual assessments, which, we believe, are required to be paid by a day certain, but the assured does not know the amount required. It is not the same every year, and the assured does not know the amount he is entitled to as dividends due, which he has the right to deduct from the amount payable under the policy. Now, if the company sees proper to delay sending such notices, and induces the assured to believe a forfeiture will not be insisted upon, we can readily see why it should not be permitted to insist upon a forfeiture. We have no such case. As is said in the opinion, the amount due was payable at a day certain, and the amount was fixed and (145 N.E.) known. The sending of the notice was purely | tice, as was their custom, it not being obligaa voluntary act." In many of the cases cited by Mr. Joyce, the insurer was estopped from declaring the policy forfeited on account of having theretofore accepted payment after the due date, no question involving failure to give notice being involved. In others the insured was entitled to apply dividends on the premiums, in consequence of which he could not pay until he had notice from the insurer of the amount to pay. The authorities are hopelessly divided on the question as to whether forfeiture will lie where the insurer has failed to give the customary notice. [14] It is doubtless true that where the amount of the premium is variable, is not known by the insured, and can only be determined by conditions wholly within the knowledge of the insurer, the giving of notice is necessary before there can be a forfeiture for failure to pay a premium when due. Leonhard v. Provident Sav. L. Assur. Soc., 130 F. 287, 64 C. C. A. 533; Insurance Co. v. Doster, 106 U. S. 30, 1 S. Ct. 18, 27 L. Ed. 65; Life Ass'n v. Hamlin, 139 U. S. 297, 11 S. Ct. 61, 35 L. Ed. 167; Hannum v. Waddill, 135 Mo. 161, 36 S. W. 616; Insurance Co. v. Smith, 44 Ohio St. 156, 5 N. E. 417, 58 Am. Rep. 806. In Insurance Co. v. Smith, supra, the court applied the rule stated, saying: It may tory under the policy. The court in that case discussing a reply setting up usage on the part of the company of giving notice of the day of payment, and the reliance of the insured upon having notice, said. "This is no excuse for nonpayment. The assured knew, or was bound to know, when his * * *The reason premiums became due. why the insurance company gives notice to its members of the time of payment of premiums is to aid their memory and to stimulate them to prompt payment. The company is under no obligation to give such notice, and assumes no responsibility by giving it. The duty of the assured to pay at the day is the same, whether notice be given or not. Banks often give notice to their customers of the approaching maturity of their promissory notes or bills of exchange; but they are not obliged to give such notice, and their neglect to do it would furnish no excuse for nonpayment at the day." This statement was quoted with approval by our Supreme Court in Continental Life Ins. Co. v. Dorman, 125 Ind. 189, 25 N. E. 213. In Gasser's Ex'x v. Michigan Mut. Life Ins. Co., 201 Ky. 659, 258 S. W. 102, the court, in discussing the effect of a failure to pay a premium when due where there was only a reasonable delay in making the payment, resulting wholly from the failure of the insurer to give notice according to its previous custom, after calling attention to the fact that the case under consideration was not that kind of a case, said: "He knew from his policy that its life depended on his paying the annual premium on September 16 of each year. He paid these premiums for 15 years, and so necessarily knew about the premiums and when they were His course, after he obtained the payable. loan of $229.15 on his policy, warranted the company in assuming that notice to him would His conduct clearly indicated a be futile. purpose not to continue the insurance; for, if not, he had no right to remain silent so long. The failure to receive any further notice from the company should have apprised him, if he wished to continue his insurance, to pay what he owed or arrange it with the company. He could not indefinitely remain silent and take no action under the circumstances," "The case is to be distinguished from one where the premium is a fixed amount, and from a case, slightly differing, where, although there may be dividends which the policy holder at his option may have applied as the premium, yet there is no agreement and uniform practice that the dividends are to be deducted each year from the premium and the balance only paid to the company. probably be safely conceded that in either of the two supposed cases the assured would have no right to depend upon a notice from the company, not even if the company had ordinarily sent such notice. For the very life of successful life insurance depends upon prompt payment of premiums, and their business would be thrown into utter confusion if companies had no means of protecting themselves by forfeiture for nonpayment of premiums. But, while this is true, the contract is nevertheless an entire one of assurance for life, and the payment of the premiums, after the first, is not a condition precedent but a condition subse-citing Cooley's Brief on the Law of Insurquent, and the parties may deal in such way ance, vol. 3, p. 2281, where it is said: between each other as to estop the company from insisting upon a forfeiture where it would be inequitable for a forfeiture to be declared." In addition to the authorities cited by Mr. Joyce, we have made a careful study of all other cases which we have been able to find, and which might be helpful, and we call attention to the following. In Thompson v. Insurance Co., 104 U. S. 252, 26 L. Ed. 765, the court held it was no excuse for nonpayment of a life insurance premium that the company failed to give no "In the case of ordinary life insurance, where the policy fixes definitely the amount of the premiums and the time of payment, the insurance company is under no obligation to give the insured notice of the amount and maturity of the premiums accruing on the policy, unless there is an express or implied agreement that notice shall be given or a statute requiring notice." And continuing the court says: "The weight of authority seems to be to the effect that an obligation to give notice of the For other cases holding that usage to give notice is a favor only and does not waive the right to insist on a forfeiture for nonpayment, see Union Central Life Ins. Co. v. Chowning, 8 Tex. Civ. App. 455, 28 S. W. 117; Haydel v. Mutual Reserve, etc., Ass'n, 104 Fed. 718, 44 C. C. A. 169; Morey v. New York L. Ins. Co., 17 Fed. Cas. page 743, No. 9795, 2 Woods, 663; Redmond v. Canadian Mutual Aid Ass'n, 18 Ont. App. 335; Campbell v. National L. Ins. Co., 24 Upper Canada Common Pleas, 133, premiums, the only effect of a notice would have been to jog her memory. Assuming, however, that appellee, each month prior to December, 1921, had waited until she received notice of the premium falling due the first of the next month, such fact would not relieve her from the duty of acting. When the notice of the January premium did not reach her until after the notice of the February premium ordinarily would have reached her, ordinary prudence most certainly required her to take notice of such failure and to hasten to ascertain why the notice had failed to arrive at the proper time. Knowing a premium was due January 1, she knew that by the terms of the policy the premium must be paid when due or within 30 days thereafter. If, as was held in the Georgia case, two or three months where the premiums In Yoe v. Benjamin C. Howard, etc., Ass'n, 63 Md. 86, the court, in speaking of a 30-are payable yearly, a month or six weeks days period of grace, said: "The 30 days' grace was for his [the inthough he had the full period of 30 days with in which he could make the payment, yet if he thought proper to defer payment to the last hour of that period, the delay was at his own risk, and not that of the association. Here the full 30 days had expired without payment, and the party died 2 days thereafter; and, that being the case, he was not a member when he died, having by his default lost his membership and all the benefits appertaining thereto." sured's] convenience and accommodation; and [15, 16] Our Supreme Court in Supreme Council, etc., v. Grove, supra, seemingly has approved the rule denying forfeiture where there has been a uniform custom of giving notice of the time when premiums are due, and where there has been a failure to give such notice, and where there has been a prompt offer to pay. But in such cases the act of the company in failing to give notice must be the proximate cause of the failure to pay. Brooklyn Life Ins. Co. v. Bledsoe, 52 Ala. 538. And when the insured seeks to be relieved from a forfeiture for nonpayment of premiums, on the ground of failure to give the customary notice, he must bestir himself and pay or offer to pay within a reasonable time. A failure to act within a reasonable time, without some providential cause, ought to conclude him. Grant v. Alabama Gold Ins. Co., supra. [17] In the usual course of events, appellee would have received a notice about the middle of December, 1921, that the next premium would be due and payable the 1st of January, and about the middle of January she would have received a notice that another premium would be due February 1. She knew without any notice that a premium was due January 1, and that another was due February 1. She also knew the exact amount of each of them. With full knowledge of the due date and the amount of the where they are payable semiannually are reasonable times within which to pay, the 30day period of grace in the instant case should, as a matter of law, be held a reasonable time within which to pay, since the purpose of granting grace is to relieve the insured from possible default within that time in the payment of premiums when due. Where an insured, with the knowledge possessed by appellee, allows six weeks to pass by after failing to receive the customary monthly notice, and also allows the time for paying two premiums to pass without any excuse for so doing, other than that he had theretofore waited until the receipt of notice, should not be sufficient to relieve him from the failure to pay within time, when there is no claim that he did not know the amount of the premiums and when they were due and payable. Such a failure can result only from negligence. [18] Conceding the law to be as contended for by appellee, she had the burden of proving that her failure to pay the premium of January 1, 1922, on that day, or within a reasonable time thereafter, was the proximate result of the failure of appellant to give the customary notice. She also had the burden of proving that she offered to pay within a reasonable time after January 1, 1922. Considering the evidence most favorable to appellee, it shows she entered into a contract requiring her to pay a fixed premium on the first day of each month; that by such contract she agreed that notice of the time when the payments should be made was accepted by the acceptance of the policy, and that any other notice was waived; that she paid these monthly installments for a period of eight years; that notwithstanding appellant was not required to give her notice of the due date of the premiums, it had given notice each month, except that it failed in December, 1921, to give notice of the premium due January 1, 1922; that the contract provided (145 N.E.) for a grace of 30 days; that she was without, appellant August 16, 1920, inclosing a check any excuse for not paying within the period for the premiums for August and September, of grace, other than that she had always in which appellee stated she had gotten bewaited until she received the notice. This hind in her payments because of sickness. in our judgment is not sufficient to discharge the burden of proving that her failure to pay within the period of grace was the proximate result of the failure of appellant to give the customary notice, and to relieve her from the responsibility of her own neglect. Where a party knows the amount of the premium, knows when it is due, and where there is no question as to whom it should be paid, we fail to see how a failure to receive notice from the insurer stating when the premium no claim by appellee in her testimony or in is due, can be said to be the proximate cause of the insured's failure to pay within the 30-day period of grace. "Courts have always set their faces against an insurance company which, having received its premiums, has sought by technical defenses to avoid payment, and in like manner should they set their faces against an effort to exact payment from an insurance company when the premiums have deliberately been left unpaid." Mutual Life Ins. Co. v. Hill, 193 U. S. 551, 24 S. Ct. 538, 48 L. Ed. 788. Appellee and her husband at that time in their applications for reinstatement of the policy admitted the policy had lapsed because of nonpayment of premiums. In view of the evidence showing that the policy had lapsed in 1920, and had thereafter been reinstated on application of appellee and her husband, when there was no claim of any double payment of premiums, and no claim of error at that time, and when there was the testimony of any other witness that she made any double payments, it is clear there was no evidence to warrant the giving of this instruction or to sustain a finding that there had been any double payment of premiums. [21] Instruction No. 6, given at the request of appellee, told the jury that if appellant sent notices each month during the life of the policy, and that such notices contained directions, that they should be returned with the payment of the premiums, it might find that appellant was estopped The verdict in our judgment is contrary from claiming the policy was forfeited by to law. reason of the nonpayment of the premiums for January and February, 1922, if it found that notices of the January and February premiums were not sent, and were not received by appellee, and that she relied upon the sending of such notices for the payment of the premiums due on the policy. The evidence without conflict shows that all payments on the policy up to and including the installments for September, 1914, were made to an agent who called on appellee each month, and collected the monthly [19] Appellant complains of instruction No. 1, given by the court on its own motion. By this instruction the court informed the jurors that they were the exclusive judges of the facts proven, and of the weight and credit to be given to the testimony of each witness; that in arriving at the weight and credit of the witnesses they had the right to take in consideration their actions and demeanor while on the witness stand, their willingness or unwillingness to testify, their means of knowing the things about which premiums and gave appellee a receipt. Some they testified, the reasonableness or unreason- of these receipts were introduced in eviableness of their testimony, and from "these dence. There was no reference in any of facts determine what has been proven." them to any notice. There is nothing in any Appellant objects to the italicized expression of them to indicate that any notice had been and says it permitted the jury to consider given, or that any notice was to be returned matters outside of and beyond the evidence. with the payment of the premiums. The While the instruction is not a model, it is only notice introduced in evidence was a nonot subject to the objection urged against it. tice from appellant stating that the first [20] Instruction No. 5, given at the request monthly premium on the policy would be due of appellee, was to the effect that if the September 1, 1913, and which contained a jury found appellee had paid the premiums statement that that notice should be redue January, 1917, and January, 1919, twice turned with the remittance. No other notice there could be no forfeiture of the policy is to be found in the record. Neither is there for failure to pay the premiums due Janu- any evidence that any of the other notices ary 1, and February 1, 1922. When the mailed or given to appellee contained any policy lapsed in 1920, because of nonpay- such statement. The record is absolutely siment, appellee made no claim that she theretofore had made any double payment. She testified that she paid all of the premiums which were paid; that on August 16, 1920, she mailed appellant a check for the premiums due August 1, and September 1, 1920. A letter signed "John and Ellen Bartlett," doubtless written by appellee, was mailed to lent as to the contents of all notices other than the one given in September, 1913. Appellee makes no claim that she was under the impression that it was necessary for her to receive a notice before she could pay the monthly installments, or that she labored under the belief that it was necessary for her to return the notice when she made her re |