Braswell v. The Am. Life Ins. Co.

• Decision Date: 30 June 1876
• Citation: 75 N.C. 8
• Court: North Carolina Supreme Court
• Parties: W. T. BRASWELL v. THE AMERICAN LIFE INSURANCE CO.

75 N.C. 8

W. T. BRASWELL

v.THE AMERICAN LIFE INSURANCE CO.

Supreme Court of North Carolina.

June Term, 1876.

A person, whose life is insured by a Life Insurance Company, must have actual notice of the revocation of an agent's authority to receive premiums, to whom the insured has theretofore paid his premiums and obtained proper receipts, and to whom he paid his last premium, but got no receipt, before he can be charged with any default, or before the company can legally cancel his policy.

If a policy is wrongfully cancelled, the insured has a right to recover back the amount paid as premiums and interest thereon, as “money had and received for his use,” or upon a promise of the defendant to indemnify and save him harmless, which the law implies from the wrongful act of the defendant, in the cancellation of the policy; in which case, the measure of damage would be, the amount necessary to enable the insured to obtain another policy.

CIVIL ACTION, tried before MOORE, J., at May Term, 1876, of EDGECOMBE Superior Court.

A jury being waived his Honor found the folowing facts: The plaintiff insured his life in the defendant company in the sum of $2,000, and held a policy for that amount, the continued obligation of which was dependent upon the regular annual payment to defendant of a premium of $54.40. The policy bore upon its face the following condition: “And it is also agreed that this policy and the insurance hereby effected shall be subject to the several conditions and regulations printed on the back hereof, so far as the same can be applicable, in the same manner as if the same respectively were incorporated in this policy.” Printed upon the back of the policy were the following conditions or regulations: “Receipts for premiums excepting first (to be found on the face of this policy) will invariably be given on a separate paper, and will not be valid without the seal of the company.”“Policies expire at noon on the last day of the period for which payment has been made.”

One Dearing had been the agent of the company to collect the premiums on said policy, and to him the plaintiff had regularly paid his premiums, and had invariably received from said agent the receipt of the company, under its corporate seal, up to the time of the payment of the last premium in 1872. The plaintiff paid said last premium to Dearing, but did not obtain from him before, at, or after said payment, the regular receipt of the defendant company, under its corporate seal.

Before the payment of the last premium the agency of Dearing had been revoked by the defendant company, but the plaintiff had no notice of such revocation, other than that gathered from the facts hereinbefore stated. Up to the commencement of this action the plaintiff had paid five annual premiums, amounting to $272.

The defendant company not having received the last premium, and considering that the plaintiff had forfeited his policy, cancelled the same on its books, and notified the plaintiff of such cancellations, and thereupon the plaintiff instituted this action to recover of ...