Moore v. General Accident, Fire, & Life Assurance Corp., 92 S.E. 362

Moore v. General Accident, Fire, & Life Assurance Corp.

92 S.E. 362

N.C.

1917

Check Treatment

Walker, J.,

after stating the case: 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 *536 with it has been waived. Nance on Insurance, p. 213; Kerr on Insurance, p. 392; Klein v. Ins. Co., 104 U. S., 8; Thompson v. Ins. Co., ibid., 252; Hay v. Assn., 143 N. C., 257; Clifton v. Ins. Co., 168 N. C., 499. This doctrine is well established. It is a very usual provision of a pоlicy of accident insurance that it shall not become effective unless the premium is paid previous to an accident, or cover an injury received during an insurance period for which the premium has not been actually paid. 1 Corpus Juris, 409. And it is true that the insured is charged with notice of the terms of the policy affecting his rights under it, and, among them, is the one as to the payment of premiums. Matthews v. Travelers Assn., 144 Pac., 85. But this provision, as well as others, may be waived, or the conduct of the company in its dealings with the insured may prevent it from insisting upon a strict compliance, and this by equitable estoppel.

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 cheek should be in payment оf 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 thаt 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 cheek. This act, -when taken in connection with its previous conduct in regard tó overdue 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 casual indulgence would not be sufficient to show a waiver, as decided in that ease, 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 thаt it did *537 not intend to rely upon tbe 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., 131 Ind., 68, approving and quoting, from Sweetser v. Odd Fellows Assn., 117 Ind., 97: “It is abundantly settled that an insurance company will be estopped to insist upon a forfeiture if by any agreement, either express or implied by the course of its conduct, it leads the insured honestly to believe that the premiums or assessment will be received after the appointed day. The decisions which hold and enforce this view are very numerous,” citing, also, Michigan, etc., Ins. Co. v. Curtis, 128 Ind., 25. The following authorities are cited in Sweetser v. Assn., supra, in support of the doctrine: Ins. Co. v. Eggleston, 96 U. S., 572; Ins. Co. v. French, 30 Ohio St., 240; Helme v. Philadelphia L. Ins. Co., 61 Pa. St., 107; Stylow v. Odd Fellows Mut. Life Ins. Co., 59 N. H., 541 (47 Am. Rep., 220); Teutonia Life Ins. Co. v. Anderson, 77 Ill., 384; Hanley v. Life Assn., 69 Mo., 380; Northwestern M. L. Ins. Co. v. Amerman, 119 Ill., 329. Bacon on Benefit Societies, sec. 431, it is said: “'In many cases the company has been held estopped, by its having on former occasions received payment of overdue premiums, from claiming a .forfeiture, and alsо by a promise, express or implied, to receive the premium after it became due.” He adopts the rule stated by the Court in Sweetser v. Assn., supra, that estoppel by conduct may prevent an insurance company from claiming that there has been a forfeiture of a policy because of a violation of any of its stipulations. When the insured has clearly bеen misled by the company’s course of action in respect thereto, which is calculated to mislead him or throw him off his guard, and cause him to act otherwise than he would have done if he had not relied on the implied waiver by the company of strict performance, and the company will not afterwards be permitted to insist upon exact compliance, or to take advantage of any failure to comply on the part of the insured so that he will be prejudiced thereby; but each case, as he says, is controlled by its own peculiar facts. The Court in Sweetser v. Assn., supra, said: “One party to a contract will not be permitted to make a show of continued leniency, or a pretense of liberality, repeated with such uniformity as to put another off his guard, and afterwards, by a sudden change in his course of conduct, declare a forfeiture, when the other party is helpless to avert the consequences.” The Court after stating that the rule would not apply to mere occasional indulgence, further says: “But such a course of dealing may be pursued as will estop the company to say that there was no agreement, after it has permitted its policy to stand open and uncanceled, and after it has accepted payment of overdue "premiums or assessments in a specified manner, which has been conformed to during the lifetime of the insured, and until the opportunity *538 to make further collections has been cut short by his death.” In N. Y. Life Ins. Co. v. Eggleston, 96 U. S., 577, the Court said: “Courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or an agreement to do so on which the party has relied and acted. Any agreement, declaration, or course of action on the part of an insurance company which leads a party insured to honestly believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will and ought to'estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract. The company is thereby estopped from enforcing the forfеiture.”

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., 167 N. C., 334. As bearing upon the circumstance of accepting the check for the full period of the three months, July, August, and September, this Court has held in numerous cases that when on the face of the check is stated the purpose for which it is given, or the condition of the payment which it represents, the party to whom it is given or sent cannot accept and use it and afterwards repudiate the condition. Kerr v. Saunders, 122 N. C., 635; Armstrong v. Lonon, 149 N. C., 434; Aydlett v. Brown, 153 N. C., 336, and eases cited therein. But the use of the check is only one of the circumstances tending to show a waiver.

As to thе 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., 56 Mo. App., 301, 306, the Court says: “The beneficiary, until the death of the insurеd, had, at most, only an inchoate and contingent interest in the policy. The insurer could not, until that event occurred, recognize her as a party to the contract having a present interest therein. She could have no claim under the contract until the death of the insured, and, therefore, she could give no notice of the accident or injury until that event occurred.” This case was approved by the same Court in Crotty v. Cont. Casualty Co., 163 Mo. App., 628. See, also, Cont. Casualty Co. v. Colvin, 77 Kan., 561; Simpkins v. H. C. M. Assn., 148 Ia., 543; Horsfall v. Pac. Mut. L. Ins. Co., 32 Wash., 132; W. C. T. Assn. v. Smith, 85 Fed., 401; McFarland v. U. S. Mutual Acc. Assn., 124 Mo., 204; O. F. Fraternal Acc. Assn. v. Earl, 70 Fed. Rep., 16. In the case last cited it was said: “An accident by a means which is external, violent, and fortuitous, and which produces external, visible mark upon the body, may for a time utterly escape the attention, or even the knowl *539 edge, of tbe person affected, and yet result eventuаlly in mutilation or death. In an accident of the kind which killed Dr. Earl there may be, for a time, as in his case, nothing’ whatever to suggest the perils insured against, namely, mutilation or death, as possible results. Yet such accidents are within the scope of this policy. A requirement that notice of such an accident must be given within ten days of its occurrence would be rather a cancellation of the policy with respect to a risk distinctly specified therein than a rule of procedure to be followed by the certificate holder' — -an extinguishment of the insurance, rather than a limitation upon the method of ascertaining the loss to be compensated. If such a requirement be not void for repugnancy, within the rule illustrated by In re State Fire Ins. Co., 32 Law J. Ch., 300, it is so far unreasonable that we cannot put it into the contract by implication. We cannot imply from the words in question a significance which they do not express, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍when the effect would be to annul part of the insurance specified in the certificate as the subject-matter thereof.” It is said in Bacon on Benefit Societies, p. 1071, 1072: “If there was any reasonable doubt as to the proper construction to be placed upon the condition, we would adopt a reasonable one consistent with justice, and, if necessary, apply the rule applicable to a deed poll, that the words shall be taken in their strict sense against the grantor, and liberally in favor of the other party. The court must give practical and reasonable effect to all parts of the contract; not only those affecting one party, but all parties. As the limitation of ten days tends to a forfeiture, which is not favored in law, it must not be shortened by construction to deprive the beneficiary of any of the time allowed by the contract for the proteсtion of her rights. The policy of the law is to maintain contracts and enforce rights thereunder when this can be done without offending the ascertained intention of the contracting parties or some legal principle.” And in this connection Mr. Bacon favors the view of the ten days clause stated above. The clause in question here evidently contemplates that notice may be given by the insured or beneficiary according to the circumstances, that is, depending upon whether the injury is fatal or not, for it states the failure “of the assured or the beneficiary” to comply with the requirement shall limit the liability to one-fifth the amount which would otherwise be payable under this policy. The beneficiary could not wеll give the notice, as he might not know of the accident, and, if he did, he could not anticipate necessarily that it would result in death, or that any right would accrue to him under the policy. The reasonable construction of the policy is that each of them- — assured and beneficiary — shall give notice of the event upon which his claim depends. The plaintiff contends that this clause is void under statute, Pub. Laws 1911, ch 209, see. 2, forbidding the insertion in an accident *540 policy oí a provision limiting the amount of the payment “to a sum less than that of the indemnity stated in the policy and for which the premium has been paid”; but 'we need not decide this question, and leave it it open for future consideration if it arises again.

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 disаbility 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 оn 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 lоss 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 rejеcted the plaintiff’s claim by refusing to proceed further with her 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, 112 U. S., 696: “As to the proof of loss not being filed, it is conceded that notice of the death was given. *541 If, when that was done, the agents of the company repudiated all liability and informed the parties that the policy had lapsed, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍then no proof of loss was required by them, and the failure to file them cannot alter the case.” That case was approved in Higson v. Ins. Co., 152 N. C., 206, where other cases to the same effect are cited; I Corpus Juris, p. 479; Parker v. Ins. Co., 143 N. C., 339. The denial of liаbility was also a waiver of the clause in the policy forbidding the bringing of any suit upon it until three months after filing the proofs had expired. U. S. Casualty Co. v. Hanson, 79 Pac. Rep., 176; Cobb v. Ins. Co., 11 Kan., 93; Phillips v. U. S. Ben. Soc., 120 Mich., 142; Calif. Ins. Co. v. Gracy, 22 Am. St. Rep., 376; Ætna Ins. Co. v. Maguire, 51 Ill., 342. Both questions, as to waiver of proof of loss and as to time of bringing suit, are fully discussed in Calif. Ins. Co. v. Gracey, supra. See, also, Willis v. Ins. Co., 79 N. C., 285.

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 rеsults 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 dеath 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 materiаl objections: McFarland v. M., etc., Accident Assn., 124 Mo., 204; Kentzler v. American, etc., Acc. Assn., 88. Wisc., 589; Trippe v. Prov. F. Society, 140 N. Y., 23; U. S. Casualty Co. v. Hanson, 79 Pac. Rep., 176.

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 months. But the jury have settled this controversy against the defendant, upon evidence sufficient to support the verdiсt. 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., 139 N. C., 390; Willis v. Ins. Co., 79 N. C., 285. We conclude this part *542 of tbe case with tbe words of Justice Beade in Willis v. Ins. Co., 79 N. C., at p. 289: “Insurance contracts are prepared by insurers wbo have at their command in their preparation the best legal talent and business capacity, and every precaution is taken for their protectiоn. This is made necessary to prevent the frauds of bad men. But, on the other hand, the insured are generally plain men without counsel, or the capacity to understand the involved and complicated writings which they are required to sign, and which in most cases probably they never read. "What they understand is that they are to pay the insurers so much money, and if they are burned out the insurers pay them so much. Where, therefore, there has been good faith on the part of the insured and a substantial compliance with the contract on their part, the courts will require nothing more.”

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., 160 N. C., 252.

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.