Dewease v. Travelers Insurance Co.

DeviN, J. It is unnecessary to decide whether there was sufficient evidence to go to the jury that plaintiff was wholly disabled within the meaning of the policy, as the judgment of nonsuit must be sustained upon other grounds. The language of the policy of insurance sued on in the instant case, as interpreted by this Court in construing similar provisions in Johnson v. Ins. Co., 207 N. C., 512; Hundley v. Ins. Co., 205 N. C., 780, and Modlin v. Woodmen of the World, ante, 576, in the light of the evidence offered here, compels the conclusion that the failure to furnish proof or *734 notice of any bind to defendant insurance company until two years after the plaintiff’s employment had ended, and the payment of premiums had ceased, rendered plaintiff’s claim unenforceable. Due proofs were not furnished the insurance company while she was insured under her policy. Her policy had lapsed. Similar results have been reached in other jurisdictions: Bergholm v. Peoria Life Ins. Co., 284 U. S., 489; Iannarelli v. Ins. Co., 171 S. E. (W. Va.), 748; Parker v. Ins. Co., 155 S. E. (S. C.), 617; Ins. Co. v. Fugate, 170 S. E. (Va.), 573; Wick v. Ins. Co., 175 Pac. (Wash.), 953; McCutcheon v. Ins. Co., 158 So. (Ala.), 729. In Bergholm v. Peoria Life Ins. Co., supra, construing a similar provision in an insurance policy, Associate Justice Sutherland, speaking for the Court, uses this language: “The obligation of the company does not rest upon the existence of the disability, but it is the receipt by the company of proof of the disability which is definitely made a condition precedent to an assumption by it (waiver) of payment of the premiums becoming due after the receipt of such proof.” In Horn v. Ins. Co., 65 S. W. (2d), Ky., 1017, cited by plaintiff, the provisions of the policy were in some respects different from those in this case. And in Smilhart v. Ins. Co., 71 S. W. (2d), Tenn., 1059, also cited by plaintiff, it was held that where the contract stipulated no time within which proof of disability should be made, proof within a reasonable time would be sufficient, in that case seven months. While there is no specific requirement in the policy as to the form of proof necessary, the informal statement to the superintendent of the Highland Park Manufacturing Company would not avail the plaintiff, for he was not the agent of the insurance company. Ammons v. Ins. Co., 205 N. C., 23. The employer in a group insurance policy is not ordinarily the agent of the insurance company. Duval v. Ins. Co., 136 Atl. (N. H.), 400. The judgment is Affirmed.