Moore v. General Acc. Fire & Life Assur. Corp.

• Decision Date: 16 May 1917
• Docket Number: 487.
• Citation: 92 S.E. 362,173 N.C. 532
• Parties: MOORE v. GENERAL ACCIDENT, FIRE & LIFE ASSUR. CORP., LIMITED.
• Court: North Carolina Supreme Court

92 S.E. 362

173 N.C. 532

MOORE v. GENERAL ACCIDENT, FIRE & LIFE ASSUR. CORP., LIMITED.

No. 487.

Supreme Court of North Carolina

May 16, 1917

Appeal from Superior Court, Iredell County; Carter, Judge.

Action by Maggie Moore against the General Accident, Fire & Life Assurance Corporation, Limited. Judgment for plaintiff, and defendant appeals. Affirmed.

A denial of liability by insurance company was a waiver of the clause in the policy forbidding the bringing of any suit until three months after the filing of proofs.

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 June 24, 1910. The policy insured against a total and partial loss from accidents producing 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 12 months. The policy recites the payment 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 one hundred dollars 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 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--one thousand dollars (the principal sum of this policy)."

The premiums were paid to July 1, 1915, and the accident, which caused the insured's death, occurred on July 1 or 2, 1915, and resulted from his falling from a scaffold while trimming a hedge. The premium due July 1, 1915, was paid on July 3, 1915, and the renewal receipt issued July 7, 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 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.

(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 July 1, 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: $1,100.00, with interest from January 1, 1916."

Judgment for the plaintiff was entered upon the verdict, and the defendant appealed.

J. F. Flowers, of Charlotte, for appellant.

Z. V. Turlington, of Mooresville, and H. P. Grier, of Statesville, for appellee.

WALKER, J. (after stating the facts as above).

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 Insurance, p. 392; Klein v. Insurance Co., 104 U.S. 88, 26 L.Ed. 662; Thompson v. Insurance Co., 104 U.S. 252, 26 L.Ed. 765; Hay v. Association, 143 N.C. 257, 55 S.E. 623; Clifton v. Insurance, 168 N.C. 499, 84 S.E. 817. This doctrine is well established. It is a very usual provision of a policy 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' Ass'n, 73 Or. 278, 144 P. 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 July 1, 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 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. Association, supra. A 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 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 Ass'n, 131 Ind. 68, 30 N.E. 876, approving and quoting from Sweetser v. Odd Fellows' Ass'n, 117 Ind. 97, 19 N.E. 722:

"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. Custer, 128 Ind. 25, 27 N.E. 124.

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