Raykurn v. Pa. Cas. Co
| Decision Date | 16 May 1905 |
| Citation | 50 S.E. 762,138 N.C. 379 |
| Parties | RAYKURN. v. PENNSYLVANIA CASUALTY Co. |
| Court | North Carolina Supreme Court |
INSURANCE—ACCIDENT INSURANCE — TERM OF POLICY—EFFECT OF DELIVERY—WAIVER OF CONDITIONS.
1. Plaintiff applied through defendant's agent for an accident policy on October 21st. The policy was countersigned by the agent on October 23d, and recited that it was effective for one year from that day until October 23d of the following year, and further declared that it should not take effect unless the premium was actually paid previous to any accident for which claim should be made. The policy was delivered to plaintiff, and the premium paid on October 30th, he having in the meantime been injured, to the knowledge of the agent who delivered the same. Held, that there was a waiver of the provision of the policy requiring the payment of a premium previous to any accident for which claim should be made.
2. An accident insurance policy takes effect from its date, unless it is stated that it shall only take effect on certain conditions, in which case it takes effect as of the day of its date upon compliance with the conditions and the delivery of the policy.
3. In the absence of fraud, the delivery of an insurance policy is conclusive proof that the contract is completed, and an acknowledgment that the premium was properly paid during good health.
4. Where insurance is applied for, and afterwards a policy is issued and delivered, it is based on the status of the insured at the time of the application, and the insurer assumes the risk after the date of the policy.
5. An accident policy reciting that the insurance is for the term of one year beginning on the 23d of October, 1901, and ending on the 23d of October, 1902, is a continuing contract beginning and ending on the days specified, although it is not delivered, and the premium is not paid, until October 30, 1901.
6. Where a contract of insurance is reasonably susceptible of two constructions, that construction most favorable to the insured should be adopted.
[Ed. Note.—For cases in point, see vol. 28, Cent. Dig. Insurance, §§ 292, 295.]
Appeal from Superior Court, Rutherford County; Neal, Judge.
Action by S. C. Rayburn against the Pennsylvania Casualty Company. From a' judgment of nonsuit, plaintiff appeals. Reversed.
McBrayer & McBrayer, for appellant.
Gallert & Carson, for appellee.
The motion of the defendant to amend the transcript of appeal by inserting the amended answer is allowed, and the appeal has been considered and determined by us with the amended answer in.
The action is brought to recover upon an accident policy issued by the defendant to the plaintiff, and dated October 23, 1901. The plaintiff was injured on October 27, 1901.
The plaintiff testified that he made due application in usual form through Mills, the defendant's agent, for the policy, on October 21, 1901, and at that time offered to pay the premium. Mills refused the money, and said that was not the time, and that the plaintiff could pay the premium when he (Mills) brought him the policy. The agent delivered the policy to the plaintiff on October 30, 1901, and then received the premium. At the time he delivered the policy, Mills said to the plaintiff that "he understood I was already hurt in the arm and shoulder, and that, although being hurt, he would deliver the policy." The plaintiff made claim in due form and in apt time, and received from the home office, at Scranton, Pa., the necessary blanks for making proof, dated January 2, 1902. The plaintiff's notice of injury, sent to the defendant, states he was hurt on October 27, 1901. Again, on February 25, 1902, the defendant's manager at Charlotte, N. C, sent another set of proofs to the plaintiff to be executed.
The policy recites that it is issued in consideration of an annual payment of a premium of $10, and states that "this insurance is for the...
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