Whitley v. The Peidmont & Arlington Life Ins. Co.

• Decision Date: 30 June 1874
• Citation: 71 N.C. 480
• Court: North Carolina Supreme Court
• Parties: G. A. WHITLEY, Adm'r., . v. THE PEIDMONT & ARLINGTON LIFE INSURANCE COMPANY.

71 N.C. 480

G. A. WHITLEY, Adm'r., .

v.THE PEIDMONT & ARLINGTON LIFE INSURANCE COMPANY.

Supreme Court of North Carolina.

June Term, 1874.

The premium upon a Policy of Life Insurance is considered paid to the Company, when, according to instructions, it is delivered to the Express Company, addressed to the Agent of the Insurance Company.

A Policy of Life Insurance is not binding until the premium is paid--such a clause being contained in the application. And it is the duty of the assured to communicate to the Company, any material change in his health, in the interval between the application and the completion of the contract by the payment of the premium.

This was a CIVIL ACTION, on a policy of Life Insurance, tried before Buxton, J., at the Spring Term, 1874, of STANLY Superior Court.

On the trial below many points were raised and decided by the presiding Judge, to whose rulings exceptions were taken, but as most of them are not material to the questions decided in this Court, they are omitted. The opinion of Justice RODMAN contains all the material facts of the case.

Under the rulings of his Honor in the Superior Court, the jury rendered their verdict against the plaintiff. Judgment in accordance therewith, and appeal by the plaintiff.McCorkle & Bailey, for appellant .

Montgomery and Battle & Son, contra .

RODMAN, J.

There are many exceptions in this case as to the competency of evidence of which we do not think it material to consider. The material facts, and about which there seems to be no dispute, are these:

On 31st of March, 1872, Mathew Hahn, the intestate of the plaintiff, signed and delivered to the agent of the company a written application for an insurance on his life for $2,000.

It is not denied that the representations therein as to the health of Hahn at that time were true. The application contained this language just above the signature of Hahn: “It is hereby declared * * * also that the policy of insurance hereby applied for shall not be binding upon this Company until the amount of premium as stated therein shall have been received by said Company, or some authorized agent thereof, on proper receipt of the Company, during the life time of the person therein assured. The undersigned further binds himself to pay the premium due on policy for which this application is made as soon as policy is issued by said Company, or in default of so doing, this is his obligation on which action may be brought at law to recover the same, &c. The application was forwarded to the Company by its agent, Courts, who received a policy dated 8th April, 1872. About the 20th April Hahn received a letter from Courts, dated 12th April, informing him that the policy had been received and directing him, as he had previously done, to send the premium of $38.84, together with $1, his fee, either by express or by post office order, to him (Courts) at Ruffin, N. C. Some time early in May Hahn was taken sick; he was quite sick on 11th of May, and on that day he, or his relatives, (we think it immaterial which,) delivered to the express agent at Concord a package containing the amount of the premium and fee, directed to Courts at Raleigh, N. C. Hahn died on 13th of May. Courts happening to be in Raleigh on 3d of June, received the package of money there on that day, and wrote to his son at Concord to countersign the policy and send it to Hahn. Courts was at that time ignorant of the sickness and death of Hahn. The policy was countersigned on 17th of June and forwarded to the late residence of Hahn. The premium soon after its receipt was forwarded to and received by the Company.

The policy contains the following: “And it is further agreed by the within assured that the notice contained on the back of this policy is accepted by the assured as forming a part of this contract,” &c., and also, “ Not binding on the Company until countersigned by its authorized agent or officer, D. W. Courts, or such sub-agent as may be designated by said agent or officer, and the advance premium paid.” The page headed “Notice” contains as follows: “The premium of this policy is payable at the commencement of this risk in one or more premiums as may be expressed,” &c.

We may shortly dispose of some preliminary questions. We consider that the premium was paid to the Company when it was delivered to the express agent at Concord, directed to Courts. It is true the address was not in conformity with his directions, as it was to Raleigh, and not to Ruffin; but as he did actually receive it within a reasonable time, and accepted and forwarded it to the Company, who retained it without objection, we consider that any variance from the directed address, was waived. Under other circumstances such a variance might be material; we confine our opinion to the particular case before us. May, on Insurance, sec. 345, p. 412.

We also consider that it is immaterial whether the premium was paid with the express knowledge and assent of Hahn, or by his relatives without his express assent. Such assent must be presumed under the circumstances. The payment was made for his benefit, and it will be presumed, in the absence of contrary evidence, that a person assents...