
    James v. Mutual Reserve Fund Life Association, Appellant.
    Division One,
    February 15, 1899.
    
    1. Practice: plea of performance of contract: peoof of waiver. Under a plea of performance of the conditions of an insurance policy as to the payment of premiums within the prescribed time, the plaintiff can prove a waiver of the conditions.
    2. —-: -: -: burden : right to open and close. And under such plea the burden is on the plaintiff to establish such waiver, and hence he has the right to open and close the case.
    
      3. Waiver: forfeiture: by agent: insurance policy: case stated. Where an insurance policy provides that premiums shall he paid on or before a prescribed time, and if not so paid it shall be void, and the receipts for the premiums paid provided in their face that they should not be valid unless countersigned by the agent at Kansas City, and the policy was negotiated and issued by the agent at Kansas City, and all the premiums were paid to him, and all the dealings of the insured and the beneficiary were with him, he became the alter ego of the company, and he had power to waive a foi-feiture of the policy if the premiums were not paid on exaor time, or otherwise to alter, waive, rescind or vary the whole or any provision of the policy, notwithstanding the policy provided that “no contract, alteration or discharge of contract, waiver of forfeiture, nor granting of permits or credits, shall be valid, unless the same shall be in writing, signed by the president or vice-president and one other officer of the association.”
    4. -: -: ■-: -: payment OF premiums. The prompt payment of premiums due on a life insurance policy may be waived or suspended by the company or its agent in express terms or by its course of dealing with the insured.
    5. - — ■: -: one act. But one act of waiving a forfeiture is not sufficient to constitute a course of conduct.
    6. -: -: -: COUPLED WITH OTHER EVIDENCE. But where such single act stands admitted, and plaintiffs uneontra-dieted testimony is that there were a number of other such belated payments and waivers of forfeiture, it will be held that they constituted such a course of conduct as to induce the insured and beneficiary to believe that a failure of strict payment would not prejudice their rights.
    7. Practice: judgment: reversal: insufficiency of evidence. It is not enough to justify a reversal that there is an insufficiency of evidence; it must appear that there is no evidence tending to establish the fact found by the jury. And the fact that the verdict is not such as the appellate court would have reached upon the conflicting evidence adduced, will not warrant a reversal.
    8. -: -: -: -': prima FACIE case. The appellate court, in determining whether the evidence is sufficient to support a verdict for the plaintiff, will, laying aside the defendant’s controve?rting evidence, assume that plaintiff’s evidence is true, and give to it every favorable inference which may be reasonably and fairly drawn from it.
    
      9. -: new TRIAL: NEWLY DISCOVERED EVIDENCE: MISAPPREHENSION oe the law. Where the losing party supports his motion for a new trial by affidavit reciting evidence which he could by the exercise of diligence, have produced at the trial, and alleges as his reason for doing so a misapprehension of the law governing the case, in this, that he did not expect proof of waiver of the conditions of the contract would be admitted under a plea of performance, and he made no claim of surprise by the ruling of the court admitting such proof under the plea, and made no effort to get the case postponed until he could obtain this evidence, the new trial was properly denied.
    10. -: constitutional questions: waiver. If the protection of the Constitution with respect to the rule as to proof of waiver in insurance cases, was not invoked in the trial court, it can not be raised on appeal.
    
      Appeal from Jackson Circuit Court. — Horr. J. H. Sloveb, Judge.
    Aeeiemed.
    ¥m. C. & Jas. C. JoNes, Wash. AdAMs and Geoege BueNham, Je., for appellant.
    (1) The defendant should have been permitted to open and close the case. St. Louis Tow. Co. v. Ins. Co., 52 Mo. 529; Eeithmuller v. Eire Ass’n, 88 Mo. App. 129; Hazell v. Bank, 95 Mo. 60; Gaus v. Magee, 42 Mo. App. 307; Porter v. Jones, 52 Mo. 399; Harvey v. Sullen, 56 Mo. 372; Benoist v. Murrin, 58 Mo. 307; Bates v. Eorcht, 89 Mo. 121; Mo-Hale v. Oertel, 15 Mo. App. 583; Cravens v. Eaulkner, 28 Mo. 19. (2) The evidence offered to prove that defendant had not required prompt payment of earlier assessments should have been excluded. The purpose of this evidence was to show that plaintiff had waived prompt payment of the earlier assessments, and therefore should not be permitted to insist on prompt payment of the June call. Under given conditions such “course of conduct” might create an estoppel (or waiver), but whether estoppel or waiver was thereby created, facts relied upon sbould have been pleaded. Murphy v. Ins. Co., 70 Mo. App. Y8; MeNees v. Ins. Co., 61 Mo. App. 341; Kyle v. Ins. Co., 11 Mo. 291; Russell v. Ins. Co., 55 Mo. 593; McCullough v. Ins. Co., 113 Mo. 606; Bayse v. Ambrose, 32 Mo. 484; Pier v. Heinriehoffen, 52 Mo. 333; Travis v. Ins. Co., 32 Mo. App. 198; Roy v. Boteler, 40 Mo. App. 213; Obey v. Ins. Co., 29 Mo. App. 110; Lanitz v. King, 93 Mo. 518; Nichols v. Larkin, 79 MÍo. 271; Bank v. Hatch, 78 Mo. 24; Mahoney v. Reed, 40 Mo. App. 99; Bray v. Marshall, 75 Mo. 327; Hanley v. Ass’n, 4 Mo.’App. 253. (3) The acts shown do not establish, or tend to establish waiver. If they tend to establish anything (and this we deny), they tend to establish estoppel, and estoppel (i. e., the facts constituting estoppel), if relied on, must be pleaded. Miller v. Anderson, 19 Mo. App. 71; Weise v. Moore, 22 Mo. App. 530; Hammerslough v. Cheat-ham, 84 Mo. 13; Bray v. Marshall, 75 Mo. 327; Stones v. Richmond, 21 Mo. App. 17; Noble V. Blount, 77 Mo. 235; Meyer v. Knickerbocker, 73 N. T. 516; Ins. Co. v. Tullidge, 39 Ohio St. 240; Ins. Co. v. Pattker, 33 Ohio St. 459; Meyer v. Ins. Co., 73 N. T. 516; Day v. Ins. Co., 45 Conn. 480. (4) It was clearly shown that the June payment was not paid oi* tendered until after the time limited for payment (i. e. June 30), had expired, and the demurrer to the evidence should have been sustained, or the case reversed on appeal. Reichenbach v. Ellerbe, 115 Mo. 588; Gaterman v. Ins. Co., 1 Mo. App. 300; Survick v. Valley Ass’n, 25 Ins. L. J. 380; Scheele v. Society, 63 Mo. App. 277; Klein v. Ins. Co., 104 U. S. 88; Wheeler v. Ins. Co., 82 N. T. 543; Yoe v. Ass’n, 63 Md. 86; Hawkshaw v. Kofh, 29 Eed. Rep. 770; Sup. Lodge v. Keener, 26 Ins. L. J.. 413; Ins. Co. v. Strathorng, 3 U. S. 24; Am. Br. Co. v. Talbot, 141 Mo. 674. (a) The evidence offered to show waiver of prompt payment "of assessments (even if admissible under the pleadings) was wholly insufficient to establish waiver, even if defendant were chargeable with the knowledge and acts of those not shown to be its agents. Eeichen-bach v. Ellerbe, 115 Mo. 588; Eichards v. Ins. Co., 68 Mo. App. 585; Ohadwiclc v. Triple Alliance, 56 Mo. App. 463; French v. Hartford L. & A. Co., 21 Ins. L. J. 331; Harvey v. Grand Lodge, 50 Mo. App. 412; Grossman v. Mass. Ben. Co., 143 Mass. 435; State ex rel. v. Ben. Soc., 42 Mo. App. 489; Scheele v. Society, 63 Mo. App. 277; Gaterman v. Ins.. Co., 1 Mo. App. 300; Borgraffe v. Snp. Lodge, 22 Mo. App. 140; Smith v. New England Co., 63 Eed. Eep. 772; Barnes v. Continental, 30 Mo. App. 539; Easely v. Yalley Ass’n, 91 Ya. 162. (b) The acts relied on were not acts of the defendant — the agency of Eames and Miss Dewey was not shown; the extent of their authority was not shown; per contra they were shown not to be defendant’s agents and their authority, if any had been shown, was limited by the contract. Lyon v. Soc., 153 Mass. 83; Smith v. New England Co., 63 Fed. Eep. 772; Swett v. Ins. Co., 78 Me. 541; Williams v. Ins. Co., 89 Me. 165; West End Co. v. F. I. Co., 25 Ins. L. • J. 857; Sullivan v. Ins. Co., 25 Ins. L. J. 412; Jenkins v. Ins. Co., 58 Mo. App. 212; McOullom v. Ins. Co., 65 Mo. App. 304; Ins. Co. v. Wolff, 95 U. S. 326; Burbank v. Ass’n, 144 Mass. 437; McCoy v. Ins. Co., 152 Mass. 272. (c) The evidence of plaintiff and of witness Larimer, as to payments to and conversations with the elder Eames and Miss Dewey, should have been withdrawn from the jury by instruction. Ins. Co. v. Garzbac, 48 Neb. 827; Ins. Co. v. Humphrey, 62 Ark. 348; Furnas v. Franklin, 6 Neb.-429; Mechem on Agency, sec. 186; Hamilton v. Ins. Co., 15 Mo. App. 59; Stavinow v. Ins. Co., 43 Mo. App. 517; McOullom v. Ins. Co., 65 Mo. App. 310; Titus v. Eailroad, 46 N. J. Law, 393. (5) The court should have given the defendant a new trial upon the showing made in the affidavits filed in support of its motion therefor. Mayor v. Burns, 114 Mo. 426; Eickroad v. Martin, 43 Mo. App. 597; James v. Hicks, 58 Mo. App. 521.
    
      Lipscomb & Rust for respondent.
    (1) Tbe law does not favor forfeitures, and slight circumstances are enough to show a waiver. Hawthorn v. Ins. Co., 5 Mo. App. 73. (2) It was not necessary to plead the waiver in this case. Ins. Co. v. Kyle, 11 Mo. 27; McCullough v. Ins. Co., 113 Mo. 616; Schmidt v. Ins. Co., 2 Mo. App. 339; Stewart v. Supreme Council, 36 Mo. App. 319. The rule applies to cases like the present, where the waiver applies to matters occurring before the loss as in this case, as well as when it applies to matters subsequent to the loss, like furnishing proof of loss. Thompson v. Ins. Co., 62 Mo. 469; ITanley v. Ins. Co., 69 Mo. 382. (3) The allegation of the petition that “defendant waived all further payments of premiums” is not denied. Hoffman v. Ins. Co.,. 56 Mo. App. 309; LaEorce v. Ins. Co., 43 Mo. App. 519. (4) Notice to the agent is notice to the company. Bacon on Ben. Soc. and Life Ins., secs. 426 and 433; May on Ins.. (3 Ed.), sec. 136; Richards on Ins. (2 Ed.), pp. 21 and 22. Knowledge of the agent of matters within the scope of his employment is in this as in other matters the knowledge of the company. 11 Am. and Eng. Ency. of Law, 338, 339 and note 2. (5) Defendant contends that all evidence as to conversation had between plaintiff and the elder Eames, should have been stricken out. "W"e contend that it should hot have been stricken out. Eirst, because it was competent; second, because the objection to it came too late; and third; because defendant expressly asked plaintiff on cross-examination for these conversations, and after getting-them and finding them not satisfactory moved to have them stricken out. 1 Am. and Eng. Ency. of Law, 432, and note. (6) In view of the instruction given and the theory on which the case was submitted to the jury, the conversations between the two Eames and the plaintiff were immaterial,. and the refusal to strike them out, if error, was harmless. (7) The granting a new trial because of the affidavit made and filed by attorneys for defendant is: Eirst, a matter peculiarly in the discretion of the trial court; second, the affidavit was not such as the law requires; because it did not state that the verdict was unjust, as expressly required in Culberson v. Hill, 87 Mo. 556, and third, it did not state that it was not cumulative merely (State v. McLaughin, 27 Mo. 112), while as a matter of fact it was merely cumulative. (8) In reply to constitutional question first suggested at ¿he argument in this court we wish only to say: Eirst, the question not having been raised below can not be raised here; second, this is not in the nature of class legislation. It does not apply only to insurance companies. It applies 'to a particular class of instruments, and not to a particular class of persons. State v. Stone, 118 Mo. 388; Henning v. Ins. Co., 47 Mo. 432.
    Wm. O. & Jas. 0. Jokes, Wash Adams and George Bubstham, Jr., for appellant in reply.
    (1) The question of unconstitutionality was raised in the lower court; by defendant objecting to the instruction which submitted the question of waiver to the jury; also by defendant objecting to the testimony when offered, and moving to strike it out when received and by renewing the objection in the motion for new trial. This course necessarily raised every point respecting waiver, constitutional and otherwise in the lower court. State ex rel. v. Smith, 141 Mo. 1; Kaukauna Co. v. (3-reen Bay & Canal Co., 142 IT. S. 254. (2) To say that thfe rule applies to a particular class of instruments and not to a particular class of persons, and is therefore not class legislation, is a lame defense of this unreasonable rule. It is the persons who issue insurance policies that are affected by this vicious rule. Can this rule, thus laid down, in the case of McCullough v. Ins. Co., ■113 Mo. 616, “That waiver must be pleaded in regard to all kinds of actions except on policies of insurance, as the case at bar,” be defended at all? Has it any rational basis whatever? Such a classification is plainly unreasonable and wholly unjustifiable. It is classification run mad. If the rule were embodied in a statute, would it not be a violation not only of the Constitution of Missouri but also of the 14th amendment to the Constitution of the United States ? State v. Hays, 81 Mo. 5Y4; Railroad v. Ellis, 165 U. S. 155.
    
      
      Note. — Decided December 8, 1898. Motion for rehearing filed; rehearing denied February 15, 1899.
    
   MARSHALL, J.

On the third of October, 1890, the defendant, an insurance company on the assessment plan, insured the life of Milton James, of Kansas City, Missouri, in the sum of three thousand dollars, “upon the condition of the payment of nine dollars and eighty-four cents, as a deposit in advance of mortuary premium and dues, within thirty days from the first week day of the months of February, April, June, August, October and December.” The plaintiff, the wife of the insured, was the beneficiary. With the exception of two or three times the plaintiff paid the premiums at the office of the local agent in Kansas City, and nearly always to Miss Carrie Dewey, a clerk in said office, who had authority to receive and receipt for them. The policy provided that if the premiums were not paid on or before the day provided therefor in the policy, it should expire and become null and void. The plaintiff testified that she had paid premiums after the expiration of the time specified and as late as the 2d, 3d and 4th of the next month, but she could not specify which they were. Six receipts were produced by plaintiff, five of which showed that the premiums were paid within the required thirty days, and one, for the premium due April 1st, 1892, was paid on the 2d of May, 1892. The receipts for the other payments, made between October, 1890, and June, 1893, were not produced. The premium payable within thirty days after June 1st, 1893, was not paid during that time. Plaintiff says she had always received notices of the assessments prior to that time, but received none for that one, and waited to receive it until July 2d or 3d, and then went to the agent’s office, and tendered the premium to Miss Bewev, who told her she would not receive it, and called Mr. F. 0. Eames, to whom she again tendered it, but he refused to receive it because it was three days past due. Plaintiff insisted upon paying it because she had paid past due premiums before, which had been accepted without objection, and because she had received no notice. Mr. Eames said, “well, it is different now; that James was in good health then.” Miss Dewey told plaintiff they could not receive the premiums on account of Mr. James’ health, and spoke of another similar case, and said they were instructed to watch such cases, and that “We watch them like a hawk.” Mr. Eames told plaintiff on July 31st “he was no longer the agent of the company, but his son was, and his son was at home sick.” Plaintiff went to the son’s house to see him about it, but as he had since died, the testimony as to what transpired was excluded. Several times during the month of July plaintiff again offered to pay the premium as did also her friend, Mr. John Larimer, between the 1st and 7th of July, but it was refused. The insured became insane in June, 1893, and was confined in an asylum. He died in February, 1895. No premiums were tendered between July, 1893, and February, 1895. Miss ' Dewey and Mr. E. 0. Eames testified that the plaintiff never tendered the premiums to either of them at any time, and especially not in July, 1893. . They both said Mr. Eames ceased to be the agent of the company in March, 1893, and was not in Kansas City between March 12th, 1893, and the spring of 1894, and that they had no conversations with her on the subject at all. Miss Dewey said she was in the office about an hour on the 1st and 3rd of July respectively; that sbe left Kansas City for Chicago on the 6th and returned on the 22d of July.

This suit was begun on the 25th of September to recover on the policy. The defense is a non-payment of the premium for June,1893, and a forfeiture of the policy in consequence. The reply is a general denial. The jury found for the plaintiff in the sum of $2,920, which sum was arrived at by deducting the unpaid premiums from the face of the policy, and adding-interest on the balance. The defendant appealed.

I.

The first objection of defendant is that under a plea of performance the plaintiff was permitted to prove a waiver of the conditions of the policy to be performed by the insured; that is, the payment of the premiums within the prescribed time. This practice is sanctioned in this State. [McCullough v. Ins. Co., 113 Mo. l. c. 616; Ins. Co. v. Kyle, 11 Mo. 278; Nickell v. Ins. Co., 144 Mo. l. c. 432.] The reason for this rule is that: “It is merely evidence of a performance. It is not the case of a substitution of a new contract for an old one; it is not an excuse for non-performance by the prevention or discharge of the defendants; but it is evidence of performance.” [NaptoN, J., in Insurance Co. v. Kyle, sii/pra,.'] “The proof of waiver in this case is not an excuse for non-performance at all; it is proof of performance within the meaning of the condition.” [Napton, J., in Russell & Co. v. Ins. Co., 55 Mo. l. c. 593.] This rule has obtained in this State for such a long period of time that the litigants have a right to assume that it will continue • to be followed, notwithstanding it is apparently an exception to the general rules of pleading applicable to other cases.

II.

The defendant argues, however, that the policy expressly provides that: “No contract, alteration or discharge of contract, waiver of forfeitures, nor granting of permits of credits shall be valid unless the same shall be in writing, signed by the president or vice-president and one Other officer of the association,” and hence the agent or local treasurer at Kansas City, could not waive the forfeitures.

This is not a new proposition. It has been much discussed, and the rule is established by the great weight of ■authority that an agent may waive a forfeiture notwithstanding such a restriction as that above quoted in this policy. This is the result of the adjudications in Alabama, Connecticut, Georgia, Illinois, Indiana, Kansas, Michigan, Louisiana, Missouri, New Hampshire, New York, Tennessee, Texas, Vermont and by the Supreme Court of the United States. [Joyce on Insurance, vol. 2, sec., 1856 and cases cited in note 15; May on Insurance, vol. 1, sec. 135, page 240 and cases cited in note 2.]

In Thompson v. Ins. Co., 52 Mo. l. c. 471, a very similar provision to that contained in this policy was under review, and it was held that the agent had power to waive a forfeiture, and might by a course of dealing create an estoppel to enforce the provision notwithstanding the policy also provided that if the premium was received after it was due it should be considered “as an act of grace or courtesy, and forms no precedent in regard to future payments.” In the case at bar the receipts for premiums provided on their face that they should not be valid unless countersigned by the agent in Kansas City. This policy was, negotiated and issued by the agent in Kansas City. All of the premiums were paid to him. All of the dealings of the insured and of the plaintiff were with him. He must therefore be regarded as the alter ego of the company, and what he did was the same as if the company was present acting for itself. [Nickell v. Ins. Co., 144 Mo. 420.] Under our law a party to a contract in writing may alter, waive, rescind, vary or waive the whole or any provision thereof by a subsequent parol agreement, or by acts in pais amounting to an estoppel. Parties may even become liable for tbe acts of tbeir agents by tbeir course of business. [Edwards v. Thomas, 66 Mo. l. c. 482.]

III.

Insurance companies by tbeir course of business, practice and conduct with respect to tbe payment of premiums, may waive tbe prompt payment thereof, and can not afterwards take advantage of wbat would otherwise be available as a defense on tbe ground of forfeiture. [May on Insurance, vol. 1, secs. 134,135, and cases cited; Ibid, sec. 137a, pp. 244, 245, citing Van Allen v. Ins. Co., 4 Hun. 413; Ins. Co. v. Tullidge, 39 Ohio St. 240.] Joyce on Insurance, vol. 2, sec. 1356, lays down tbe rule that: “If an insurance company or its authorized agent, by its habits of business, or by its acts or declarations, or by a custom to receive overdue premiums without objection, or by a custom not to exact prompt payment of tbe same, or in brief, by any course of conduct, has induced an honest belief in the mind of tbe policy bolder, which is reasonably founded, that strict compliance with a stipulation for punctual payment of premiums will not be insisted upon, but that tbe payment may be delayed without a forfeiture resulting therefrom, it will be deemed to have waived tbe right to claim tbe forfeiture, or it will be estopped from enforcing tbe same, although tbe policy expressly provides for forfeiture for non-payment of premiums as stipulated, and even though it is also conditioned . that agents can not waive forfeitures, and even though the policy provides that receiving overdue premiums is merely an act of courtesy.”

The prompt payment of the premiums is for the benefit of the insurer, and may be waived or suspended by it or its agent in express terms or by its course of dealing with the insured. [Ins. Co. v. Hillyard, 37 N. J. L. 444; Palmer v. Ins. Co., 84 N. Y. 63; Bouton v. Ins. Co., 25 Conn. 542; McCraw v. Ins. Co., 78 N. C. 149; Ins. Co. v. Adams, 13 Ky. L. Rep. 589; Ins. Co. v. Dowdall, 55 Ill. App. 622; Joyce on Ins., vol. 1, p. 544, sec. 439, and the numerous cases cited in note 145; Ostrander on Ins. (2 Ed.), see. 335.]

The question of waiver is, lite any other fact in the ease, essentially a matter for the jury. [Ostrander on Ins. (2 Ed.), sec. 95, p. 302.]

IY.

"We have not experienced nearly so much difficulty with the proposition of waiver generally, as we have with its application to the facts as disclosed by this record. It is conceded that the June premium or assessment was not paid within thirty days after the first week day in June. Plaintiff contends that it was tendered and refused on the 2d and 3d of July, 1893; that the tender was made to Mr. E. 0.Eames and to Miss Dewey. They both deny this, and assert that Mr. E. 0. Eames ceased to be the agent of the company on March 1st, 1893, went to Chicago, and was not in Kansas City again until the spring of 1894; that Miss Dewey was in the office for an hour on July 1st and 3d each, and went to Ohicago on July 6th, 1893, and returned on the 22d. Mr. John Larimer testified that after the payment was refused from Mrs. James, he went to the office of the company, saw Mr. Eames and Miss Dewey and offered to pay the assessment for Mrs. James, and they refused to accept it. The plaintiff testified that between the date of the policy, October 3d, 1890, and July 1st, 1893, she had paid all the premiums, with two or three exceptions, generally to Miss Dewey, and had paid some of them later than the time at which she tendered the June assessment; had paid some of them on the 2d, 3d and 4th of the next month after they fell due; that when the June assessment was refused, she called attention to tbe fact tbat sbe bad paid assessments when they were more than three days past due and they bad been accepted, and Mr. Eames said it was different now because Mr. James was not in good health; and Miss Dewey said they had instructions to watch such cases, and they did “watch them like a hawk.” Of the' fifteen assessments which had been paid prior to June, 1893, only six receipts were produced, five of which showed they were paid befóte the expiration of the thirty days, and one was paid two days after the limited time had expired. As to when the other nine payments were made, we have only the evidence of the plaintiff, who says she had paid some as late as the 2d, 3d and 4th of the month, after the'limited time had expired. Her testimony in this regard is substantially uncontradicted.

Upon this showing plaintiff contends that a prima facia case of waiver was made out, which entitled her to go to the jury, and that as there is no- substantial countervailing evidence in the case, the jury properly found that, by its course of dealing, practice or conduct, the defendant had waived the condition of the policy requiring prompt payment of the assessments, and returned a verdict in her favor. On the other hand the defendant insists that there is not sufficient evidence in the case to establish a custom or course of dealing, and strenuously argues that as the receipts, introduced in evidence, showed that only one payment had been made after the time limit for payment had expired, one incident could no more create a custom or course of business, than one swallow could make a summer.

■ It may he conceded that one act waiving a forfeiture would not be sufficient to constitute a course of conduct. In Thompson v. Ins. Co., 52 Mo. l. c. 471, relied on by plaintiff, it appeared that the premium was tendered two days after it was due, and that premiums for previous years had been paid and received weeks after they became due, and the instruction left the question of waiver, by course of business, to tbe jury, who found for tbe plaintiff, and tbis court affirmed tbe judgment, saying: “Tbe plaintiff was thus induced to belieye, that a failure of strict payment on tbe day would not prejudice bis rights.” Attention was also called to tbe fact that: “Tbe courts bave become more liberal in tbeir construction of those sort of stipulations in policies of insurance.” Thus, there was presenting evidence of more than one act, and tbe same is true here, for we can not overlook tbe testimony of tbe plaintiff herself; and tbe receipts, not covering tbe whole period, do not controvert or contradict her testimony, nor raise such a suspicion in reference to it as to warrant its total rejection, but on tbe contrary, rather give' color to it, by showing that she did pay and tbe company did receive one assessment after it was past due — and if one, why not more, as long as tbe insured was in good health, and it was tbe premium tbe company wanted? Our law does not require tbe testimony of any given number of witnesses to establish a fact, in cases of tbis character. Tbe plaintiff’s evidence in respect to tbe course of business stands alone. Neither Mr. Eames nor Miss Dewey were even examined on tbis subject. They contradicted her concerning tbe tender of tbe June assessment, and tbe jury must bave believed tbe plaintiff, but they did not contradict her about tbe payment of any of tbe premiums, and confined tbeir testimony to tbe six receipts. It may be that no other witness knew when she bad paid tbe previous assessments. Only tbe plaintiff and Mr. Eames and Miss Dewey would be likely to know anything about that matter, and tbis may account for tbe fact that she stands alone in her testimony in tbis regard. But, however, that may be, tbe fact remains that she so testified — she is not contradicted — she is not impeached. If she told tbe truth, she was entitled to a verdict. Whether she told tbe truth, was for tbe jury to say. They believed her. It is not our practice to set aside a verdict when there is any evidence to support it, unless it shows on its face that it must have been the result of passion, prejudice or misconduct of the jury, and it is not enough that there is an insufficiency of evidence; a case will not be reversed unless there is no evidence tending to establish the fact found by the jury. [Moore v. Railroad, 73 Mo. 438; Bray v. Kremp, 113 Mo. 552; State v. Richardson, 117 Mo. 586; Grove v. Kansas City, 75 Mo. 672; Pierce v. Chamberlain, 82 Mo. 618; Eswin v. Railroad, 96 Mo. 290; Williams v. Railroad, 109 Mo. 475; State to use v. Brokerage Co., 85 Mo. 411; Ettlinger v. Kahn, 134 Mo. 492; Vautrain v. Railroad, 78 Mo. 44; Rosecrans v. Railroad, 83 Mo. 678; Manion Wreck. Co. v. Carreras, 26 Mo. App. 229.] The fact that the verdict is not such as the appellate court would have reached upon the conflicting evidence adduced, will not warrant a reversal. [Davis v. Railroad, 46 Mo. App. 180.] And the appellate court, in determining whether the evidence is sufficient to support a verdict for the plaintiff will, laying aside defendant’s controverting evidence, assume that plaintiff’s evidence is true, and will give to it every favorable inference which may be reasonably and fairly drawn from it. [Cohn v. Kansas City, 108 Mo. 387.]

Gauged by these precedents and measured by these rules, we are constrained to hold that plaintiff made out a prima facie case of waiver, and the verdict of the jury can not be disturbed on that ground.

V.

The instructions fairly put the case to the jury in accordance with the law as hereinbefore expressed, and hence there was no error in this particular.

Yl.

The defendant alleges error in not permitting it to open and conclude the case.' In view of what is herein said with reference to tbe admission of evidence of waiver under a plea of performance, tbe burden of proof was clearly upon tbe plaintiff, and tbis assignment of error need not be further dwelt upon.

vn.

In its motion for new trial defendant alleges tbat, “since tbe trial defendant bas discovered new and important evidence of wbicb it bad no knowledge or information at the trial, and tbe importance or necessity of wbicb was not known to defendant because it was not advised by tbe pleadings of tbe issue on wbicb tbe case was finally submitted to tbe jury.” Tbe evidence here alluded to is shown by tbe affidavits filed in support of tbe motion, to consist of tbe facts relating to tbe time tbe several premiums were received by tbe defendant company at its office in New York, as shown by tbe books of tbe company and tbe reports of tbe agent of tbe company inKansas Oity, and of tbe methods employed by tbe company in sending out notices of assessments on tbe first week day of tbe respective months they fell due, and of tbe affidavit of Miss Dewey, showing when assessments numbered 56 to 67 were paid, and tbe affidavit of Mr. E. 0. Eames to tbe same effect; of an affidavit of Mrs. Louisa M. Yeits tbat E. 0. Eames roomed at her bouse in Chicago from March 2d, 1893, for seven months thereafter, and tbat Miss Dewey likewise roomed at her bouse for two months commencing July 6th or 7th, 1893; and finally, an affidavit of counsel for defendant, in wbicb it is stated tbat as it did not appear from tbe pleadings tbat plaintiff would rely upon any custom or waiver of prompt payment, they “did not have and produce tbe testimony which is embraced in tbe affidavits hereto attached and filed in tbis case.”

It is manifest tbat none of tbis evidence is newly discovered evidence, which, by tbe exercise of diligence, tbe defendant was unable to obtain in time for tbe trial. Tbe evidence as to the time of payment of the several assessments and the method of sending notices, was in defendant’s possession at all times, and could have been secured before the trial when defendant took depositions in New York. The evidence of Mrs. Veits as to Mr. Eames and Miss Dewey’s presence in Chicago was cumulative of their testimony to the same effect. The facts sworn to by Miss Dewey after the trial, could have been brought out at the time as she was present in'court and testified in the case. Those contained in Mr. Eames’ affidavit could have been brought out when his deposition was taken before the trial. The affidavit of counsel shows very clearly that the reason, none of this was done, was because they did not think it. would be necessary, as they did not expect proof of waiver-would be admitted under a plea of performance. In this they were, of course, laboring under a misapprehension of the-law in this State. The circuit court committed no error in refusing to grant a new trial for these reasons. [Mayor, etc. v. Burns, 114 Mo. 426; State v. Potter, 108 Mo. 424;. State v. Keith, 53 Mo. App. 383; Dean v. Chandler, 44 Mo. App. 338; Macklin v. Railroad, 45 Mo. App. 82; State v. Campbell, 115 Mo. 391; State v. Luke, 104 Mo. 563; State v. Myers, 115 Mo. 394; State v. Cantlin, 118 Mo. 100, and especially State v. Ray, 53 Mo. 345.] Aside from this, the defendant did not make any claim in the circuit court that it was surprised by the ruling of the court on the question of waiver, and made no effort to have the hearing of the-cause postponed until it could get this evidence from its New York office and employees [Schuchman v. Heath, 38 Mo. App. 280], but on the contrary took its chances before the-jury, lost, and is now outside of the pale of relief on this ground.

VIII.

No protection of the Constitution was claimed in the-circuit court with respect to the rule as to proof of waiver in insurance cases, and bence none can be claimed bere. [Vaughn v. Railroad, 145 Mo. 57; Parlin & Orendorff v. Hord, 145 Mo. 117; Hulett v. Railroad, 145 Mo. 35; Sayward v. Denny, 158, U. S. l. c. 184; Oxley Stave Co. v. Butler Co., 166 U. S. 648.]

Finding no reversible error in tbe record, tbe judgment of tbe circuit court is affirmed.

All concur.  