Nelson v. Jefferson Standard Life Ins. Co.

• Decision Date: 17 September 1930
• Docket Number: 123.
• Citation: 154 S.E. 752,199 N.C. 443
• Parties: NELSON v. JEFFERSON STANDARD LIFE INS. CO.
• Court: North Carolina Supreme Court

154 S.E. 752

199 N.C. 443

NELSON v. JEFFERSON STANDARD LIFE INS. CO.

No. 123.

Supreme Court of North Carolina

September 17, 1930

Appeal from Superior Court, Warren County; Small, Judge.

Action by Sue I. Nelson, administratrix of the estate of Meynardie Nelson, deceased, against the Jefferson Standard Life Insurance Company. Judgment for plaintiff, and defendant appeals.

No error.

Filing proofs of disability held not condition precedent to attaching of liability, where insured became insane and was incapable of furnishing proof (C.S. § 6479, subsecs. 4, 5).

This is an action brought by plaintiff, administratrix, against the defendant, to recover on a policy issued by defendant to her intestate. The policy No. 175,188 was issued on November 15 1928. The annual premium on the policy, in advance, was $1,090.75. The life of plaintiff's intestate was insured for $25,000, and the policy contract contained the following--the basis of this action: "Rider attached to and forming part of Policy No. 175,188, issued to Maynardie Nelson, Total and permanent disability. If after one full annual premium shall have been paid on this policy and before default in the payment of any subsequent premium, the insured shall furnish to the company due proof of entire and irrevocable loss of the sight of both eyes, *** or that he has been wholly and continuously disabled by bodily injuries or disease other than mental and will be permanently continually and wholly prevented thereby from pursuing any occupation whatsoever for remuneration or profit, provided that such total and permanent disability shall occur before the anniversary of the policy on which his age at the nearest birthday is 60 years, the Company, by endorsement in writing on this contract will agree to pay (a) The premiums which shall become payable after the accrual and proof of said disability and during the continuance thereof, and (b) Commencing immediately from the acceptance by the company of the original proofs of disability provided the insured is still disabled, a monthly income during the life time of the insured prior to the maturity of this policy as an endowment or death claim, of one per cent. of the face amount of this policy, the amount otherwise payable at the maturity of this policy shall not be reduced by any premiums or installments paid under the above provisions. If disability is total but not obviously permanent, it shall be presumed to be permanent after continuous total disability for 3 months and the waiver and installments shall accrue from the beginning of the fourth month of such continuous total disability. Upon receipt of due proof that the insured has, for more than 60 days immediately prior to the filing of such proofs, been continuously and wholly disabled through loss of reason or through any mental disease and presumably will be permanently, continuously and wholly prevented thereby from pursuing any occupation whatsoever for remuneration or profit, after one full annual premium shall have been paid and before a default in the payment of any subsequent premium, provided that such total and permanent disability shall occur before the anniversary of the policy on which his age at nearest birthday is 60 years, the Company will, by endorsement in writing on this contract grant to the insured the benefits of paragraph (a) above, but he shall not be entitled to the benefits of paragraph (b)."

The premiums have been paid by the insured in accordance with the terms of the policy. Plaintiff's intestate died February 27, 1929. The beneficiary of the $25,000 policy was the plaintiff, who has been paid that sum by defendant. The disability benefits were paid from October 17, 1928, until the death of plaintiff's intestate, to Sue I. Nelson guardian of Maynardie Nelson.

It is admitted that if any total and permanent disability occurred, it occurred before the anniversary of the policy on which insured's age at the nearest birthday was 60 years, and after the payment of one full annual premium on the policy and before default of any subsequent premiums on said policy sued on.

The issues submitted to the jury and their answers thereto, were as follows:

"1. Did Maynardie Nelson, the insured, become wholly and continuously disabled by disease, other than mental, and was he permanently continuously and wholly prevented thereby from pursuing any occupation whatsoever for remuneration or profit, as alleged in the complaint? Answer: Yes.

"2. If so, from what date? Answer: April 1, 1927.

"3. If he became so disabled prior to October 17, 1928, was he continuously so insane that he was incapable of, and unable to furnish proof of such disability, as required by the terms of the policy, or to procure some one to do it for him? Answer: Yes.

"4. If so, from what date? Answer: April 1, 1927.

"5. What amount, if any, is the plaintiff entitled to recover of the defendant on account of premium paid after the total disability of the insured? Answer: $1,090.75, with interest.

"6. What amount, if any, is the plaintiff entitled to recover of defendant on account of monthly benefits under said policy? Answer: $4,641.66 2/3."

The court below rendered judgment on the verdict.

The defendant made numerous exceptions and assignments of error and appealed to the Supreme Court. The necessary facts will be set forth in the opinion.

Geo. C. Green, of Weldon, and Brooks, Parker, Smith & Wharton, of Greensboro, for appellant.

Travis & Travis, of Halifax, and Joseph P. Pippen and J. M. Picot, both of Littleton, for appellee.

CLARKSON J.

The defendant, at the close of plaintiff's evidence and at the close of all the evidence, made motions for judgment as in case of nonsuit. C. S. § 567. The court below overruled the motions, and in this we can see no error.

In Rhyne v. Ins. Co., 196 N.C. 717, at page 718, 147 S.E. 6, 7, Stacy, C.J., speaking for a unanimous court, citing numerous authorities, said: "It is considered by a majority of the courts that a stipulation in a contract of insurance requiring the assured, after suffering injury or illness, to perform some act, such as furnishing to the company proof of the injury or disability within a specified time, ordinarily does not include cases where strict performance is prevented by total incapacity of the assured to act in the matter, resulting from no fault of his own, and that performance within a reasonable time, either by the assured after regaining his senses or by his representative after discovering the policy, will suffice. *** [page 719 of 196 N. C., 147 S.E. 6, 7]. But we are content to place our decision on the broad ground that, notwithstanding the literal meaning of the words used, unless clearly negatived, a stipulation in an insurance policy requiring notice should be read with an exception reasonably saving the rights of the assured from forfeiture when, due to no fault of his own, he is totally incapacitated from acting in the matter. That which cannot fairly be said to have been in the minds of the parties, at the time of the making of the contract, should be held as excluded from its terms." A petition to rehear the Rhyne action was denied May 31, 1929. See Rhyne v. Jeff. Stand. Life Ins. Co., 199 N.C. 419, 154 S.E. 749.

In volume 2 C. S., under Insurance, subchapter 5, Accident and Health Insurance, C. S. § 6479, dealing with standard provisions in policy under subsection 5, is the following: "Failure to give notice within the time provided in this policy shall not invalidate any claim, if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonsonably possible." (Italics ours.)

It will be noted that under the standard provisions in policies, where time limit is fixed, yet the General Assembly, realizing that a hard and fast rule should not always be applied, put in the above provision to meet varying contingencies that might arise. Although the above provision was not cited to this court in the case of Mewborn v. Assurance Corporation, 198 N.C. at page 158, 150 S.E. 887, 889, yet this court held: "The expression 'immediate written notice,' as used in the policy, we apprehend, was intended to impose upon the plaintiff the exercise of reasonable diligence in giving the required notice, which, under the apparent weight of authority, should be measured by his ability and opportunity to act in the premises. Carey v. Farmers', etc., Ins. Co., 27 Or. 146, 40 P. 91; Rhyne v. Ins. Co., 196 N.C. 717, 147 S.E. 6." Under C. S. § 6479, supra; latter part subsection 4, we find: "If Form (A) or Form (C) is used the insurer may at its option add thereto the following sentence: 'In event of accidental death immediate notice thereof must be given to the insurer." D"

The defendant contends that under the...