Hay v. People's Mut. Benev. Ass'n of N. C.

• Decision Date: 04 December 1906
• Parties: HAY v. PEOPLE'S MUT. BENEV. ASS'N OF NORTH CAROLINA et al.
• Court: North Carolina Supreme Court

55 S.E. 623

143 N.C. 256

HAY v. PEOPLE'S MUT. BENEV. ASS'N OF NORTH CAROLINA et al.

Supreme Court of North Carolina

December 4, 1906

Appeal from Superior Court, Catawba County; Cooke, Judge.

Action by Helen Hay against the People's Mutual Benevolent Association of North Carolina and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.

That a beneficial association accepted payment of certain assessments after they should have been paid did not constitute a waiver of the right to forfeiture of the contract for failure to pay a subsequent assessment when the insured was in failing health.

M. H Yount and W. C. Feimster, for appellants.

Self & Whitener, for appellee.

CLARK C.J.

The jury find that the insured had notice of the yearly assessment upon his policy due January 23, 1905; that he failed to pay it; that his wife, the beneficiary named in the policy and plaintiff herein, in the latter part of April or first part of May, 1905, made inquiry of the secretary and treasurer of the defendant whether or not any assessments were due on the policy, and offered to pay the same if any were due, and to pay such other sum as might be necessary for the reinstatement of the policy; and that from January 7 1905, until his death, June 18, 1905, the insured was in such broken health as not to be able to attend to business part of the time. The plaintiff testified that her husband had a severe attack in November, 1904, and from then on he was in failing health; that about April 1st he began to grow more feeble; that the last of March she came to Raleigh, whither her husband had come just before Christmas, and found him unable to attend to his business, so she took charge of all his mail matters, and the latter part of April or in the first part of May wrote the company, as found by the jury asking if any assessments were due and to be permitted to pay anything that was due. This offer was not accepted by the company. The defendant is an assessment insurance company. The by-laws in force at the time the policy was issued were put in evidence. Section 9 thereof reads as follows: "Any member failing to pay his one dollar yearly assessment, or one dollar and fifteen cents on every death, within 30 days after notice mailed to him, shall be dropped from the association, and shall be required to pay a new membership fee in order to renew his insurance." The insured having failed to pay his yearly assessment of January 23d, of which he had notice, he was dropped by the terms of section 9. Did he, or his wife for him (he being, as she says, grown too feeble to attend to business), have the absolute right, without the consent of the company, to pay that and other unpaid dues, 90 days or more thereafter, the last of April or first part of May, and reinstate him? We think not. Indeed, the terms of section 9 seem to contemplate, not a reinstatement, but a reinsurance--"a new membership fee in order to renew his insurance." If so, a new contract was required, and the company did not enter into it. The difference between reinsurance and reinstatement is pointed out. Lovick v. Ins. Co., 110 N.C. 93, 14 S.E. 506.

But, if it be conceded even that section 9 provides for a...