
    No. 138
    NAT’L. LIFE & ACC. INS. CO. v. RAY
    No. 20218.
    Supreme Court
    On motion to certify.
    Dock. 12-19-26,
    4 Abs. 867.
    First Publication of this Case
    1247. WAIVER — Does company waive requirements in policy that upon revival after lapse, evidence must be presented as to sound health, of the assured when the agent of the Company accepts premiums covering the time for which no payments were made; and no action is taken by the company until death of the insured who was in a hospital, unknown to the Company?
    Attorneys — Tracy, Chapman & Welles for Company; Warren L. Smith for Ray; all of Toledo.
   The policy of insurance involved herein lapsed for non-payment of premiums on Mar. 3, 1924, the premiums having been in default four weeks whein the policy expired under its terms. On April 12, 1924, Lillie Ray, who was the wife of the insured and beneficiary under the policy paid $3.00, being the amount of premiums for 12 weeks.

The policy required, in reference to revival for “presentation of evidence satisfactory to the Company of the sound health of the assured.” It is claimed that no evidence was submitted in compliance with this requirement an dthat James Ray, the insured on April 12, 1924, was a patient in a hospital, unknown to the Company at the time, suffering from tuberculosis, from which he died April 29, 1924.

The Lucas Common Pleas directed a verdict in favor of the Company in an action on the policy-in that court. The Court of Appeals reversed the judgment and the case is taken to the Supreme Court on a motion to certify. It is claimed that there was no showing of any authority on part of the Company’s agent to receive premiums in default for more than four weeks; and that the contract of insurance negatives the existence of any such authority.

It is claimed that the Company did not waive the requirements as to proof of sound health for it did not know of the illness of the insured. It is urged that a waiver is the intentional relinquishment of a known right, and that a party will be held to a waiver only where he has knowledge of the essential and important facts upon which his conduct is based.  