Rand v. Home Life Ins. Co.

• Decision Date: 20 June 1934
• Docket Number: 369.
• Citation: 174 S.E. 749,206 N.C. 760
• Parties: RAND v. HOME LIFE INS. CO.
• Court: North Carolina Supreme Court

174 S.E. 749

206 N.C. 760

RAND v. HOME LIFE INS. CO.

No. 369.

Supreme Court of North Carolina

June 20, 1934

Appeal from Superior Court, Wake County; Cranmer, Judge.

Action by Parker Rand against the Home Life Insurance Company. Judgment for plaintiff, and defendant appeals.

No error.

This is an action instituted by the plaintiff against the defendant to recover disability benefits provided for in two policies of insurance theretofore issued to him and for the waiver of the premiums under said policies during his disability. The evidence of the plaintiff is to the effect that on April 28 1925, defendant issued to plaintiff its policy of insurance upon his life in the sum of $5,000, the same being policy No 309013, and thereafter, on September 29, 1926, the defendant issued unto plaintiff another policy of insurance upon his life in the sum of $5,000, being policy No. 328166. Attached to and forming a part of said policies of insurance were contracts providing for total and permanent disability benefits and a waiver of the payment of premiums during such disability. The premium on the first policy was due on October 10th and on the second policy on October 12, 1930. These premiums were extended by the defendant, and on January 23, 1931, the defendant extended the payment of the balance of the premium due under the first policy until July 10 1931, and on the second policy until July 12, 1931, in consideration of a stipulated payment at that time. At the time of the extension agreement, the defendant executed and delivered unto the plaintiff its receipt and agreement, in which it provided that, in case said policy of insurance terminates by death before the expiration of the extension the balance of the full annual premium will be charged against the policy or, should it terminate from any other cause, a pro rata premium will be charged against any benefits that may accrue thereunder. The evidence is further to the effect that during the life of the two policies of insurance and beginning some time the latter part of March the plaintiff suffered a severe and serious attack of destructive arthritis of the third lumbar vertebra, which is an infectious process or eating away of the vertebra, which is the backbone; that he suffered a great deal of pain and agony and was continuously thereafter under the influence of powerful narcotics in an effort to alleviate his suffering, and during all of said time was totally incapacitated and unable to carry on or to transact any business; that he was suffering unbearable pain, confined to his bed wrapped in blankets, using electric pads and other devices to alleviate his suffering; that the disease had affected his mind to such an extent he was not able to carry on any business and did not see any mail or papers; that he did not realize he had any insurance on his life; that this had never crossed his mind until Dr. Dewar mentioned the matter to his wife about July 27th; that he was totally unable to carry on any matters of business or to realize that he had a policy of disability insurance, and this condition existed throughout the entire period until about July 27th, and about seventeen days after the due date of the extended premium. During all this period of time he received no notice from the defendant that any premium on his policies of insurance was due, and it was not until July 27th or 28th that the attention of his wife was called to any insurance when it was suggested by Dr. Dewar to her that, if plaintiff had any disability insurance, he should be drawing the insurance, as he had been totally disabled for more than ninety days, and on that day she notified Mr. Rand, a relative of plaintiff and an attorney, who resides at Wilson, to come down and give the defendant notice of the mental and physical condition of plaintiff, which he did, and since that date the plaintiff has continued to suffer to such an extent that he is unable to engage in any occupation or perform any work for compensation or profit. The disability contracts provided that, after one full annual premium shall have been paid under the policies and before default in the payment of any subsequent premium or installment thereof, if due proof shall be furnished the company at its home office in the city of New York that the insured has become totally and permanently disabled before the anniversary of the policy on which his age at nearest birthday is 60: "(1) To Waive the Payment of Annual Premiums which may fall due under the said policy and under this contract during the continuance of such disability, commencing with the premium due on the anniversary of the policy next succeeding the date of receipt of such due proof. (2) To Pay to the Insured a monthly Income of One Per Centum of the Face Amount of the Policy during the continuance of such disability, the first income payment to become due on the first day of the calendar month following the date of receipt of such due proof."

The judgment of the court below, reciting the issues and their answers thereto, is as follows: "This cause coming on to be heard at this the third March 1933 Term of the Superior Court of Wake County, and being heard before his Honor, E. H. Cranmer and a jury and the following issues having been submitted to the jury in the first cause of action, to-wit: (1) Has plaintiff had since April 1, 1931, any impairment of body or mind which continues to render it impossible for him to follow any occupation or performing any work for compensation or profit? (2) If so, is such disability permanent as defined in said policy? (3) If he became so disabled prior to July 10, 1931, was he incapable of and unable to make payment of premiums and to furnish proof of disability as required by the terms of the policy? And the jury having answered each of said issues, 'Yes' and counsel representing plaintiff and defendant having agreed that a fourth issue reading as follows, to-wit: (4) What amount, if any, is defendant indebted to plaintiff by reason of his first cause of action? Should be answered by the Court if the other issues should be answered "Yes': '$50.00' per month beginning with the first day of August, 1931 and continuing through the first day of October, 1932, with interest on each monthly payment from its due date, until paid at the rate of 6 per cent. per annum, less $90.00, being balance of premium due on the insurance policy, subject of this controversy, from October 10, 1930, until October 10, 1931. By consent the fourth issue submitted to the jury was eliminated. And counsel representing plaintiff and defendant having further agreed that the two causes of action sued on are identical and that the same and identical issues were raised in the said second cause of action, that therefore the Court should answer the issues in the second cause of action in accordance with the answers to the issues in the first cause of action. Now, Therefore, it is hereupon ordered, adjudged and decreed: (1) That plaintiff have and recover of the defendant by reason of his first cause of action the sum of $50.00 per month from the first day of August, 1931, to and until the third day of October, 1932, with interest on each monthly payment from its due date until paid at the rate of six per cent. per annum. (2) That the defendant subtract and deduct from the amount due the plaintiff the sum of $90.00, it being the balance due by the plaintiff to the defendant for premium on insurance policy and disability, contract, the subject of this action, from October 10, 1930, to October 10, 1931. (3) That the plaintiff have and recover of the defendant on the second cause of action, the sum of $50.00 per month from the first day of August, 1931 to and until the third day of October, 1932, with interest on each payment from its due date until paid at the rate of 6 per cent per annum. (4) That the defendant subtract and deduct from the amount due the plaintiff, the sum of $90.00, same being the balance due by the plaintiff to the defendant for the premiums on the policy of insurance, subject of this action, from the 21st day of October, 1930, to the 12th day of October, 1931. (5) That the cost of this action be and the same is hereby taxed against the defendant."

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

Over three months' delay in giving insurer notice of insured's disability held not to work forfeiture of disability provisions in life policies requiring due proof of disability, where evidence showed that insured had mental and physical breakdown which rendered him incapable of transacting business.

Winston & Tucker and Murray Allen, all of Raleigh, for appellant.

Jones & Brassfield, of Raleigh, for appellee.

CLARKSON Justice.

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

The question involved: For a consideration, the premium due under the first policy was extended by defendant until July 10 1931, and on the second policy to July 12, 1931. About April 1, 1931, a little over three months before the above premiums were due, the plaintiff had a mental and physical breakdown, which continued until after the premiums were due and continued to a great extent to the trial of the cause, and his disability was permanent. Notice the latter part of July, 1931, was given the defendant company of plaintiff's disability. Under the terms of the policy, was there a forfeiture? We think not. The jury found that the impairment of body and mind was and continued since ...