Reliance Life Ins. Co. of Pittsburgh v. Lowry , 229 Ala. 258 ( 1934 )

On Rehearing. Appellant, in his carefully prepared brief, has taken the position, and pressed it with much force, that in the instant case we have virtually departed from our holdings in the cases of Batson v. Fidelity Mutual Life Ins. Co., 155 Ala. 265,46 So. 578, 130 Am. St. Rep. 21; Norris v. New England Mutual Life Ins. Co., 198 Ala. 41, 73 So. 377; Satterfield v. Fidelity Mutual Life Ins. Co., 171 Ala. 429, 55 So. 200, and Pan American Life Ins. Co. v. Carter, 202 Ala. 237, 80 So. 75.

By reference to the three first above-named cases, it will be seen that the notes were given for the initial or first premium, and the policy contract in each case provided that it should not become operative until actual payment of the initial premium had been made. The initial payment in each case constituted a condition precedent to be performed to put the policy into operation. This fact differentiates the instant case from the Batson, Norris and Satterfield Cases, supra, and brings it within the influence of the Parker Case, supra, and which case we may add was the last authoritative expression by this court on the question at the time the contract now before us was executed.

By reference to the bound record (2597) in the Carter Case, supra, it will be noted that the policy sued on in that case contained this clause or provision: "If any premium or any note or other obligation given therefor shall not be paid when due, this policy shall thereupon cease except as herein provided."

No such provision is contained in the policy sued on in this case, and this fact clearly differentiates the Carter Case from the instant case. Had the policy contract contained such a provision, our holding in the case would have been controlled by the Carter Case, supra.

What is said in the Parker Case, supra, on this point is apropos here, and we refer to what is there said without reproducing the same. In the absence of a provision in the policy contract terminating the insurance upon the nonpayment of the note, such a provision appearing only in the note was and is without force or efficacy.

It follows that the application for rehearing will be overruled.

Application overruled.

ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.