Hunter v. Jefferson Standard Life Insurance Co.
86 S.E.2d 78
N.C.
1955
Check Treatment
Denny, J.

We deem it unnecessary to consider and discuss all tbe exceptions and assignments of error set forth in the record since, in our opinion, tbe question which is determinative of this appeal is as follows: Did the defendant by accepting premiums from tbe plaintiff covering a period of more than four years, after be became 55 years of age, waive tbe termination date for discontinuance of liability under tbe provisions of tbe total and permanent disability rider attached to bis policy ?

While there is some conflict in tbe authorities on this question, tbe greater weight of authority supports tbe view laid down in Anno.- — ■ Insurance — 113 A.L.R. 857, et seq., as follows: “It is well settled that conditions going to tbe coverage or scope of the policy, as distinguished from those furnishing a ground for forfeiture, may not be waived by implication from conduct or action, without an express agreement to that effect supported by a new consideration. This rule may be, as it often is, otherwise stated that tbe doctrine of waiver may not be applied to bring within the coverage of tbe policy risks not covered by its terms, or risks expressly excluded therefrom.”

It is also said in 29 Am. Jur., Insurance, section 903, page 690, “Tbe doctrines of implied waiver and of estoppel, based upon tbe conduct or action of tbe insurer, are not available to bring within tbe coverage of a policy risks not covered by its terms, or risks expressly excluded therefrom ; and tbe application of tbe doctrine in this respect is, therefore, to be distinguished from tbe waiver of, or estoppel to deny, grounds of forfeiture.”

We likewise find in 45 C.J.S., Insurance, section 674, page 616, “As a general rule, tbe doctrines of waiver or estoppel can have a field of operation only when tbe subject matter is within tbe terms of tbe contract, *596 and they cannot operate radically to change the terms of the policy so as to cover additional subject matter. Accordingly, it has been held by the weight of authority that waiver or estoppel cannot create a contract of insurance or so apply as to bring within the coverage- of the policy property, or a loss or risk, which by the terms of the policy is expressly excepted or otherwise excluded.”

In the case of McCabe v. Casualty Co., 209 N.C. 577, 183 S.E. 743, a pplicy of insurance was issued to Jos. T. McCabe on 25 July, 1929, at which time the insured was over 65 years of age. The policy contained the following provision: “20. Age Limits of Policy: The insurance under this policy shall not cover any person under the age of 18 years nor over the age of 65 years. Any premium paid to the company for any period not covered by this policy will be returned upon request.”

The jury found that the defendant had waived the age limitation, but upon appeal to this Court we held otherwise. Stacy, C. J., speaking for the Court, said the suit is upon the policy as written. Burton v. Ins. Co., 198 N.C. 498, 152 S.E. 396. The stipulation in question is not a condition working a forfeiture, which may be waived, Mahler v. Ins. Co., 205 N.C. 692, 172 S.E. 204; Horton v. Ins. Co., 122 N.C. 498, 29 S.E. 944, but a limitation upon liability. Foscue v. Ins. Co., 196 N.C. 139, 144 S.E. 689; Lexington v. Indemnity Co., 207 N.C. 774, 178 S.E. 547; Spruill v. Ins. Co., 120 N.C. 141, 27 S.E. 39.”

The above view is in accord with numerous decisions from other jurisdictions, among them being Pothier v. New Amsterdam Cas. Co. (C.C.A. 4th), 192 F. 2d 425; Bankers Life Co. v. Sone (C.C.A. 5th), 86 F. 2d 780; Barnett v. Travelers’ Ins. Co. (C.C.A. 8th), 32 F. 2d 479; Kinard v. Mutual Benefit Health & Accident Ass’n., 108 F. Supp. 780; Metropolitan Life Ins. Co. v. Stagg, 215 Ark. 456, 221 S.W. 2d 29; Conner v. Union Auto. Ins. Co., 122 Cal. App. 105, 9 P. 2d 863; Railey v. United Life & Accident Ins. Co., 26 Ga. App. 269, 106 S.E. 203; Pierce v. Homesteaders Life Ass’n., 223 Iowa 211, 272 N.W. 543; Ridgeway v. Modern Woodmen, 98 Kan. 240, 157 P. 1191, L.R.A. 1917A 1062; Foote Lumber Co. v. Svea F. & L. Ins. Co., 179 La. 779, 155 So. 22; Prudential Ins. Co. of America v. Brookman, 167 Md. 616, 175 A. 838; Palumbo v. Metropolitan Life Ins. Co., 293 Mass. 35, 199 N.E. 335; Henne v. Glens Falls Ins. Co., 245 Mich. 378, 222 N.W. 731; Smith v. Aetna Life Ins. Co., 58 Ohio App. 412, 16 N.E. 2d 608; Owens v. Metropolitan Life Ins. Co., 178 S.C. 105, 182 S.E. 322; McLain v. American Glanzstoff Corp., 166 Tenn. 1, 57 S.W. 2d 554; Powell v. American Casualty & Life Co. (Court of Civ. App. of Tex.), 250 S.W. 2d 744; Carew, Shaw & Bernasconi v. General Casualty Co., 189 Wash. 329, 65 P. 2d 689, and Two Rivers Dredge & Dock Co. v. Maryland Casualty Co., 168 Wis. 96, 169 N.W. 291.

*597 Each of tbe decisions of this Court cited and relied upon by the appellee, except the case of Pearson v. Pearson, Inc., 222 N.C. 69, 21 S.E. 2d 879, which is not controlling on the question before us, involved the question of forfeiture which we have repeatedly held may be waived.

While the plaintiff is entitled to the return of the premiums paid for disability coverage since 2 October, 1946, on his pleadings as east, the motion for judgment as of nonsuit, interposed by the defendant in the trial below, should have been sustained.

The judgment of the court below is

Reversed.

Winbound and JohNsok, J.J., took no part in the consideration or decision of this case. Also neither BaeNhill, C. J., nor DeviN, J., took part in the consideration or decision of this case.