| N.C. | Sep 18, 1906
after stating tbe case: It is conceded that tbe plaintiff, under tbe terms of tbe contract of insurance,
It seems clear to us that the approval -required in the ease is something more than a mere ministerial act and involves the exercise of judgment and discretion. State v. Smith, 57 P., 449" court="Mont." date_filed="1899-06-12" href="https://app.midpage.ai/document/state-ex-rel-state-publishing-co-v-smith-6639755?utm_source=webapp" opinion_id="6639755">57 Pac., 449. The word “approve” is “to regard or pronounce as good; think or judge well of; admit the propriety or excellence of; be pleased with; commend.” Webster’s Intern. Diet. ;'l Words and Phrases, Jud. Def., 475. In the absence, certainly, of any showing that the approval of the officers has been fraudulently withheld and that their denial of the application is purely arbitrary, we do not see why their refusal to reinstate the plaintiff is not fatal to his right of recovery in this action. We are not called upon in this case to say under what circumstances, if any, we would decide that the action of the officers designated to pass upon' the application of a delinquent member1 could be investigated, with a view to ascertain whether they have exercised their judgment properly or have unreasonably deprived him of any right to which he is entitled under the terms of his contract and the by-laws of 'the company. Where there is no suggestion of fraud or other legal wrong, there can be no valid reason why the applicant should be permitted to attack the soundness of their judgment or the justness of their conclusion. We must hold it fir be right, and unassailable in any such manner, because the parties have solemnly agreed that
As the policy had been forfeited and plaintiff’s connection with the defendant had been severed by his own default, he had no right to be readmitted to membership, but his reinstatement was then dependent upon the mere favor of the company, which cordd be extended to him subject to such terms as it deemed necessary for its protection. The very question was decided in Harrington v. Keystone Assn., 190 Pa., 77" court="Pa." date_filed="1899-02-20" href="https://app.midpage.ai/document/harrington-v-keystone-mutual-benefit-assn-6245183?utm_source=webapp" opinion_id="6245183">190 Pa., 77, in. which it appeared that the executive committee was “empowered” to reinstate a delinquent member. The Court there said: “Conceding, for the purpose of argument, that her application was in time, and that she complied or was ready and willing to fully comply with all the terms and conditions of the by-laws above quoted, it does not follow that the committee was bound to reinstate her to membership in the association. While the by-laws empowered them to grant her request, they were not bound nor could they be compelled to do so. It neither clothed her with any legal or equitable right, nor did it impose any duty or obligation
While it may not be necessary for us to go to tbe extent, tbe Court did in tbat case, we yet tbink our case is stronger than tbat one so far as tbe discretionary nature of tbe power is concerned. In tbe case of Lovick v. Life Assn., 110 N.C., 93" court="N.C." date_filed="1892-02-05" href="https://app.midpage.ai/document/lovick-v-providence-life-assn-3670160?utm_source=webapp" opinion_id="3670160">110 N. C., 93 (cited and relied on by tbe plaintiff’s counsel), tbe policy provided that tbe delinquent should have tbe “opportunity for reinstatement on similar conditions,” tbe context showing clearly that the term “similar conditions” bad reference to the payment of past-due premiums, assessments, and other indebtedness. Ey opportunity we mean- “fit or convenient time; suitable occasion; time or place favorable for executing the purpose or doing tbe thing in question.” Webster Int. Diet. It was, therefore, properly held in Loviclcs caso tbat if tbe plaintiff seasonably tendered tbe back dues, he was entitled to reinstatement, and, being thus entitled, be could recover tbe premiums paid, if tbe company refused to reinstate him. There was nothing in tbe policy then being construed which required tbe approval of tbe company or any of its officers as a condition precedent to tbe reinstatement or tbe exercise of any discretion or judgment.
Tbe Court charged in tbis case tbat if tbe plaintiff applied for reinstatement and was refused after be bad furnished proof of bis good health, tbe first issue should be answered “Yes.” In tbis there was error. Tbe instruction excludes altogether from tbe consideration of tbe jury tbe question of approval by the president and medical director, and makes tbe recovery depend entirely upon tbe application and proof of good health, contrary to tbe very terms of tbe policy, and without any reference to tbe other valid provisions of tbe bylaws. Tbis of itself entitles tbe defendant to a new trial. But as there was no evidence to warrant a verdict for tbe plaintiff, tbe Court should have granted tbe defendant’s motion to nonsuit, and dismissed tbe action, and there was
Error.