Lovick v. Provident Life Ass'n

• Court: North Carolina Supreme Court
• Writing for the Court: MERRIMON, C.J., (after stating the facts.)
• Citation: Lovick v. Provident Life Ass'n, 110 N.C. 93, 14 S.E. 506 (N.C. 1892)
• Decision Date: 16 February 1892
• Parties: LOVICK v. PROVIDENT LIFE ASS'N.

14 S.E. 506

110 N.C. 93

LOVICK v. PROVIDENT LIFE ASS'N.

Supreme Court of North Carolina

February 16, 1892

On rehearing. For former report, see 14 S.E. Rep. 43.

The other facts fully appear in the following statement by MERRIMON, C.J.:

The defendant corporation executed to the plaintiff its policy of insurance, whereby it insured the life of the plaintiff's father for the sum of $1,000, in consideration of certain premiums specified to be paid semi-annually by the plaintiff and also certain assessments, when made from time to time. This policy contained, among others, these provisions "The contract between the parties hereto is completely set forth in this policy, the application therefor, and the by-laws of the association, taken together. *** It is further declared and agreed that, in case this obligation of the association under this contract be defeated by failure of any of the considerations or by the violation of any of the covenants or considerations of this contract, all payments which shall have been made to the association on account of this contract shall be deemed forfeited to the association." In the by-laws of the defendant it is provided, among other things, as follows: "Only as many members as shall pay their mortality assessments within thirty days after date of notice shall be counted in determining the assessment basis of a death claim. Others shall be deemed forfeited in like manner as those who fail to pay annual dues, with opportunity for reinstatement on similar conditions." It is further provided that "any member failing to pay his semiannual premium andpro rata assessment at the death of a member or members within thirty days after date of notice, or according to the terms stated in the notice, shall forfeit his or her membership and all moneys previously paid into the treasury of the association." The plaintiff failed, as the court below held, to pay the premium due upon said policy on the 15th day of June, 1889, whereupon the defendant declared that the plaintiff, on account of such failure, had forfeited and lost all right and claim under the policy, and had likewise forfeited to it all the premiums and assessments he had theretofore paid, in pursuance of the stipulations therein contained. It appeared that the failure to pay this premium was occasioned by the inadvertent sending of a check to pay the same in a letter addressed to a former agent of the defendant. The plaintiff intended to pay it, and sent a check for the purpose within time for the defendant to get it, if the letter inclosing it had been properly addressed. The plaintiff thereupon, on the 8th of July, 1889, applied to the defendant for "reinstatement" of his policy of insurance; the plaintiff having sent check on the 28th of June, 1889, to pay the unpaid premium. The defendant returned this check, saying: "I herewith return the check, as it cannot be accepted, on account of the payment being overdue and the policy forfeited." In his application for "reinstatement" of his policy the plaintiff said to the defendant: "The policy I hold is on the life of my father, and he is in perfect health, and will get certificate from any physician in this city as to my statement. Will also refer you to anybody in this place as to my standing. I merely make this statement to show you that I am not a speculator in the insurance business. Please try to get me right this time, and I will try to keep right in the future." The defendant refused to grant this application, saying: "You were fully aware that Mr Nicholson [to whom the letter was inadvertently addressed] was not collecting for the association, and had no connection with it, and that you had for years past been paying direct to the office at Baltimore, under specific directions to do so. The fault is therefore clearly your own. I regret to say that it will be impossible for you to insure your father in the Provident, [the defendant,] on account of the fact that be is beyond the age at which we write insurance. Inclosed you will please find your checks." Nevertheless the plaintiff received notice on June 18, 1891, of quarterly dues of one dollar, and continued to receive notice of assessments for the months of July, September, and October of 1889, and sent checks for amounts. These checks, however, were all returned; the defendant saying in its letter of July 17, 1889: "The policy has been forfeited, and cannot be reinstated." The defendant said in its mortuary notices to plaintiff: "No payment will be received, reinstatement made, after the last day of payment, except upon the condition that the insured is alive and in good health." Upon the foregoing material facts the court below held "that the plaintiff applied within a reasonable time, towit, July 8, 1889, to have his policy reinstated in defendant association, and offered to show that his father, Henry J. Lovick, the person upon whose life the policy was written, was alive, in good health. That said application was refused. That said refusal was wrongful, and that by reason thereof...