Washington Nat. Ins. Co. v. Scott

164 So. 301, 26 Ala. App. 598, 1935 Ala. App. LEXIS 208

• Court: Alabama Court of Appeals
• Decided: April 2, 1935
• Docket: 6 Div. 714.
• Status: Published

Opinions

On Rehearing.

We are taken rather severely to task because — as appellant’s distinguished counsel claims — appellant “presented for determination * * * a clear-cut question of law, and the Court of Appeals has completely ignored it.”

Appellant says “the outstanding question presented on the appeal was whether or not the undisputed facts constituted a waiver by both parties of the age limitation clause of the policy.” Well, we agree. And we thought what we had written constituted a decision by us that they did not. That is, did not, in the sense that appellant would be excused from living up to “the literal terms of the policy.”

To be fair, for the purposes of the review stated to be made of our holding, perhaps we ought to here set down — as we do — that both appellant (and its predecessor in interest) and appellee were well aware of the date upon which appellee reached the age of sixty-five years. But we felt, and1 feel, that appellant should not be allowed to quibble about “waiver.” when appellee concludes to demand the return of premiums paid by him, when, as can be readily seen, if “liability” had arisen on the policy, appellant could have at least caused appellee a great deal of trouble — a protracted lawsuit- — by “tendering back these very premiums” and retying upon the plain terms of the policy. Appellant (or its predecessor) varóte the policy. Now let them comply with its terms.

The application for rehearing is overruled.

Application overruled.

PER CURIAM.

Reversed and remanded on authority of Washington National Ins. Co. v. Scott (Ala.Sup. 6 Div. 807) 164 So. 303.