92 S.E. 362 | N.C. | 1917
The action was brought to recover the amount alleged by the plaintiff, the beneficiary, to be due upon a life and accident insurance policy issued to her husband, Dr. Nicholas Gibbon Moore, on 24 June, 1910. The policy insured against a total and partial loss from accident, producing *585 injuries and disabling the insured from pursuing his ordinary business, and it also provided for the payment of $1,000 if the accidental injuries caused his death, to be paid to the plaintiff, and, further, for an additional sum of 10 per cent of the amount due under the policy if the premiums have been paid in advance monthly or annually during a period of twelve months. The policy recites the payment (534) of the original or first premium, and provides for the payment of the following losses or indemnities:
TOTAL ACCIDENT DISABILITY.
"A. At the rate of $100 per month for a period not exceeding twenty-four consecutive months, against total loss of time resulting directly and independently of all other causes from bodily injuries effected through external, violent, or accidental means, and which wholly and continuously from the date of accident disable and prevent the assured from performing every duty pertaining to any business or occupation.
PARTIAL DISABILITY.
"B. Or if such injuries shall wholly and continuously, from date of accident, disable and prevent the assured from performing one or more important daily duties pertaining to his occupation.
SPECIFIC TOTAL LOSSES.
"C. Or if any one of the following specific total losses shall result solely from the injuries described in Paragraph A within ninety days from date of accident, the company will pay in lieu of any other indemnity, for loss of life, $1,000 (the principal sum of this policy)."
The premiums were paid to 1 July, 1915, and the accident which caused the insured's death occurred on 1 or 2 July, 1915, and resulted from his falling from a scaffold while trimming a hedge. The premium due 1 July, 1915, was paid on 3 July, 1915, and the renewal receipt issued 7 July, 1915. The other material facts will be stated in the opinion.
The defendant resisted a recovery on the following grounds:
"1. That the policy sued on had lapsed, according to its terms, for nonpayment of premium at the time the injury of which it is contended the assured died was inflicted.
"2. The assured and the beneficiary are barred from recovery on account of their failure to give notice of the happening of the alleged accident in accordance with the terms of the policy contract; or, at least the recovery is limited to one-fifth the amount of the policy by reason *586 of the failure to give notice of the happening of the alleged accident in accordance with the terms of the policy.
"3. That the plaintiff failed to furnish to the defendant proper proofs `affirmatively establishing the fact that the . . . death is such as comes within the provisions of the policy . . . within thirty days from the date of death,' as provided in paragraph `n' of said policy.
(535) "4. That this suit was prematurely brought, in that the policy provides that `No action at law or in equity shall be maintainable before three months . . . from the date on which this paragraph provides that the proofs must be furnished to the company — paragraph `n' of the policy.
"5. That the death of the assured was not caused and did not occur in such a manner and by such means as to bring it within the terms of the policy so that the principal sum thereof became payable to the beneficiary on account thereof. The defendant contending that the death of Dr. Moore did not `result directly and independently of all other causes from bodily injuries effected through external, violent, and accidental means, which wholly and continuously from the date of the accident disabled and prevented him from performing every duty pertaining to any business or occupation,' as provided in paragraph `a' of the policy.
"6. That the plaintiff is not entitled to recover anything on account of the accumulation provision of the policy, for the reason that the premiums had not been paid in advance for any consecutive policy year."
The jury returned the following verdict:
1. Was the policy No. E171222 sued on in this case in full force and effect as a binding contract of insurance at the time the assured suffered the alleged injury during the afternoon of 1 July, 1915? Answer: "Yes."
2. Did the death of Dr. Moore, the assured, result directly or independently of all other causes from bodily injuries effected through external, violent, and accidental means? Answer: "Yes."
3. Did Dr. Moore, the assured, pay the premiums on the policy sued on yearly or monthly in advance for a consecutive period of twelve months; and if so, for how many consecutive periods of twelve months? Answer: "Yes; for one period."
4. In what amount, if anything, is the defendant indebted to the plaintiff? Answer: "$1,100, with interest from 1 January, 1916."
Judgment for the plaintiff was entered upon the verdict, and the defendant appealed.
It may be conceded at the outset that the provision as to the prompt payment of the premiums when they fall due is a valid one, and so pertains to the essence of the contract as ordinarily to require strict observance of it, unless compliance with it has been waived. Vance on Insurance, p. 213; Kerr on (536) Insurance, p. 392; Klein v. Ins. Co.,
The policy provides that the company shall not be liable thereunder, if it has lapsed by nonpayment of premium, for any accidental injury happening between the date of such expiration and 12 o'clock noon of the day following the date of the renewal payment. But in this case the jury have found by the verdict, upon sufficient evidence, that the policy was "in full force and effect as a binding contract of insurance at the time that the insured suffered the alleged injury during the afternoon of 1 July, 1915." This verdict was based upon testimony from which the jury might well infer that the defendant had waived the slight deviation of the payment from the time when it was due by the terms of the policy, not only "by its prior and long continued course of dealings," but also by receiving a check for the overdue premium, upon which it was expressly stated that the check should be in payment of the premium for the full term of July, August, and September, 1915, or, in other words, the premium for that entire period; and with this condition plainly written on its face, the defendant received and kept it.
The company, knowing, of course, for what time the premium was tendered, accepted the check and cashed the same. It would seem that fairness to the insured required that if the company was unwilling to take the premium upon this offer, viz., that the premium should cover the whole period, it should not have accepted and appropriated the check. This act, when taken in connection with its previous conduct in regard to overdue permiums [premiums], was evidence of its intention to waive the provision of the policy as to prompt payment of the premiums. It was not merely a courtesy or favor extended to the insured, as in Hay v. Assn., supra. A *588
casual indulgence would not be sufficient to show a waiver, as decided in that case, and so the judge charged the jury, but he left it to them to find whether there had been such "a long continued course of dealings" on the part of the defendant as showed that it did not intend to rely (537) upon the delay in payment, but that it extended credit to the insured for the brief space of time. It was said in Painter v.Industrial Life Assn.,
The principle upon which the court charged the jury in this case seems to be firmly settled. It was clearly recognized, upon the authority of some of the above cited cases, in Murphy v. Ins. Co.,
As to the second contention of the defendant, in regard to notice within ten days of the accident, we are of the opinion, and in that respect we agree with the judge who presided at the trial, that notice of the death was sufficient within the meaning of this clause of the policy. In construing a similar policy in Hoffman v. M. Accident Co.,
The defendant is not in a position to complain of any failure of plaintiff to furnish it with proofs of loss. Plaintiff requested defendant to send the proper blank, as it had agreed to do in the policy, for proof of her claim on account of the death of her husband, which she stated was caused by an accident, and defendant failed to comply with the request, but sent a disability blank, as if Dr. Moore had survived the accidental injury or plaintiff was applying for his indemnity. Plaintiff, though, did cause to be properly filled up the blank sent out for the attending physician to execute, and this gave all the information he had as to the cause of death; and plaintiff did not stop there, but offered, if this was not sufficient or a more detailed statement was desired, to comply with any requirements of the defendant in that respect. Upon receiving the papers returned by plaintiff, or the doctor's certificate, with explanation of the nature of the claim, the defendant answered the plaintiff's inquiry by stating, in its letter, that the "final proofs" had been received, but as Dr. Moore was taken ill on 13 September, 1915, and died on the 19th day of the same month, he was not entitled to any benefits, as his policy did not cover illness until after the first week, and then concluded: "We are, therefore, not due him any indemnity, under his policy, and will, of course, cancel his claim on our records." All this was done, notwithstanding that defendant had been informed twice that the claim was for Dr. Moore's death, first by Mrs. Moore, the beneficiary, and then by Mr. Turlington, her attorney, who stated in his letter to the company that the claim was for the death of the insured, which was caused by an accident, and the attorney offered to make the proof complete if it was not already so. The company knew on 24 September, 1915, that the claim was for Dr. Moore's death — a total loss — in favor of the beneficiary, Mrs. Moore, as her letter of 22 September, 1915, which it had received on 24 September, 1915, so informed it. It was not for indemnity for loss of time during disability caused by accidental injury.
It does not satisfactorily appear why the company should have canceled the claim or policy, under the circumstances, as it did, or at least rejected the plaintiff's claim by refusing to proceed further with her *592 application, instead of accepting her offer to give any further information desired, which was made through her attorney.
This was tantamount to a plain denial of the company's liability. It was said in Life Ins. Co. v. Higson,
In answer to the position taken by the defendant, that plaintiff cannot recover because the insured was not wholly and continuously disabled from the date of the accident, we need only refer to what is stated in regard to separate indemnities, one of which is for death caused by an accidental injury, in 1 Corpus Juris, p. 469, where the authorities are cited in the note. "When the policy provides separate indemnities for injuries which produce immediate, total, and continuous disability, and for death which results from such injuries, the question of immediate, total, and continuous disability is not involved in a suit for the death indemnity." The reference in the policy to the injuries described in Paragraph A is confined to such only as are bodily, and which were effected through external, violent, and accidental means, directly and independently of all other causes, provided the death of the insured results solely from them, and the above authorities are to this effect. The jury have found that Dr. Moore's death did result from such injuries. The other part of the clause was intended to apply to disability caused by the accident. The following authorities bear upon the several questions involved in the case and conclusively answer all material objections: McFarland v. M., etc.,Accident Assn.,
The last contention is that the plaintiff was not entitled to recover anything under the accumulation clause of the policy, as the premiums had not been paid in advance for any consecutive period of twelve *593
months. But the jury have settled this controversy against the defendant, upon evidence sufficient to support the verdict. If there is any ambiguity as to the meaning of the policy, it should receive a construction favorable to the insured and the beneficiary. Bray v. Ins. Co.,
There are objections to evidence, but they require no separate discussion. It was competent for the medical expert to state that a certain injury, fully described in the hypothetical question, which was based upon evidence, would cause death. It was the opinion of an expert upon a matter involving scientific knowledge and professional experience. Mule Co. v. R.R.,
We have examined all the material questions presented in the record, and which were learnedly and ably discussed by counsel, and we have found nothing that warrants a reversal.
No error.
Cited: Bullard v. Ins. Co.,