161 N.C. 104 | N.C. | 1912
Tbe defendant is a benefit society witb an insurance feature, of wbicb tbe plaintiff was a member. On 26 February, 1910, tbe plaintiff was suspended because of nonpayment of Assessment No. 99 in tbe sum of $2. On 23 March, 1910, tbe plaintiff met witb an accident, about wbicb there seems to be no controversy, and be brings this suit to recover tbe sum to wbicb he would be entitled under tbe terms of tbe accident policy.
Tbe plaintiff notified tbe defendant of tbe accident by mail on 1 April, 1910. Tbe defendant contends that at tbe time of tbe accident tbe plaintiff was suspended as a member of tbe order, and was not entitled to its benefits. This is tbe only point necessary to consider upon this appeal.
Tbe evidence tends to prove that Assessment No. 99 was levied 25 January, 1910, payable on or before 24 February, 1910. Notice was mailed to tbe plaintiff at bis address witb remittance blank and an addressed envelope was sent with tbe notice.
A part of tbe notice was in tbe following words: “This notice is mailed from tbe Supreme office, but your remittance must be made to tbe secretary of your council, as per inclosed envelope.”
Tbe testimony tends to prove that tbe plaintiff mailed bis check at Morristown, Tenn., for Assessment No. 99, on 22 or 23 February, 1910, in a properly addressed and stamped envelope and in ample time to reach tbe secretary at Asheville before tbe date when the said assessment was due. At tbe time
Plaintiff did not know tbe check bad not been received until 16 March, 1910, when he saw Wiley, tbe chief officer of Ashe-ville Council, to whom be gave a duplicate check for said Assessment No. 99, and at tbe same time told him tbat be bad sent tbe original check from Morristown to tbe secretary.
Upon receipt of tbe duplicate check, Wiley said, “That makes you all right.” Tbe plaintiff was then in good health, and it was seven days before tbe accident. This assessment was paid by tbe plaintiff and retained by tbe defendant. After tbat tbe plaintiff was regularly assessed as a member for Assessment No. 100.
Upon tbe evidence we think bis Honor was correct in bolding tbat tbe plaintiff was entitled to recover, as be bad not been lawfully suspended as a member of tbe order. The defendant not only collected and retained tbe $2 for Assessment No. 99, for tbe nonpayment of wbicb be was suspended, but also retained tbe $2 for Assessment No. 100. Tbe defendant cannot keep tbe plaintiff’s money and escape liability. Matthews v. Insurance Co., 147 N. C., 339; Morgan v. Insurance Co., 42 Wash., 10.
It is true, tbe plaintiff applied for reinstatement prior to tbe accident, and it is contended tbat this was an acknowledgment tbat be bad been properly suspended. We do not think so. Tbe plaintiff applied because be bad been notified tbat be had been suspended, but be bad a right also to rely upon tbe fact tbat bis Assessment No. 99 bad been paid and tbat tbe company bad no right to suspend him.
Assuming tbat be bad been properly suspended, tbe defendant waived tbe same by collecting Assessment No. 99 and tbe subsequent Assessment No. 100, thereby treating tbe plaintiff in all respects as if be were a member in good standing. Morgan v. Insurance Co., supra.
In sending bis check for Assessment 99, tbe plaintiff conformed to tbe custom recognized and adopted by the defendant. Tbe regularity of tbe mail, a public agency, is such that it is not negligence to rely upon it as a method of transmission, especially when it has been so used in tbe course of dealings between tbe parties and there has. been no express revocation. Hollowell v. Insurance Co., 126 N. C., 398.
Tbe judgment of the Superior Court is
Affirmed.
