Pierson v. John Hancock Mutual Life Insurance

*92HERNDON, J.

I dissent. In my opinion, the majority erroneously hold as a matter of law that respondent’s asserted acceptance of a check for $21.61 mailed by appellant on May 31, 1963, the last day of grace for the payment of the $41.61 quarterly premium due on May 1, 1963, operated as a waiver of respondent’s right to insist upon full payment of said premium within the grace period.

In my view, four basic errors underlie this mistaken holding : (1) failure to recognize that in this case, as in most eases, the question whether or not there was a waiver is a question of fact; (2) a misconception…