Aldridge v. Greensboro Fire Insurance

Adams, J. Tbe complaint was'filed on 12 December, 1925, and tbe answer 2 January, 1926. At a special term of tbe Superior Court beld in December, 1926, tbe feme plaintiff was made a party and leave was granted tbe plaintiffs to reply to tbe answer. Tbe defendant objected to tbe order authorizing tbe replication, apparently on tbe ground that pleadings must be filed and issues joined before tbe clerk. Public Laws 1921, Ex. Ses., cb. 92; Public Laws 1923, cb. 53; Public Laws 1924, Ex. Ses., cb. 18. These statutes have reference to tbe clerk and were not intended to impair tbe broad powers conferred on tbe judge, who “may in bis discretion and upon such terms as may be just allow an answer or reply to be made, or other act done, after tbe time limited or by an order to enlarge tbe time.” C. S., 536; McNair v. Yarboro, 186 N. C., 111; Cahoon v. Everton, 187 N. C., 369; Battle v. Mercer, ibid., 437; Roberts v. Merritt, 189 N. C.,194; Butler v. Armour, 192 N. C., 510. Tbe order was an exercise of tbe court’s discretion and will not be disturbed. Although tbe policy designated B. H. Aldridge as tbe insured, evidence was admitted on behalf of tbe plaintiff tending to show that Mrs. Aldridge bad applied for tbe insurance, bad told tbe agent that tbe property was encumbered witb a debt of one thousand dollars; that she and her husband owned tbe property, and that tbe policy might be issued in tbe name of herself, in tbe name of her husband, or in tbe names of both. To this evidence tbe defendant excepted for tbe avowed reason that it tended to establish a parol contract of insurance and necessarily to vary tbe terms of tbe policy; also because it was incompetent as proof of tbe defendant’s waiver of tbe conditions on which tbe policy might be forfeited. Closely related are exceptions to instructions based upon this and similar testimony — all these exceptions assailing tbe sufficiency of evidence in support of tbe defendant’s alleged waiver. Waiver is a voluntary and intentional relinquishment of a known right and implies an election to dispense witb something of value or to forego some advantage which might be demanded. 27 R. C. L., 904. “Where a ground exists upon which tbe company may have tbe right to avoid or forfeit tbe policy, it may witb knowledge thereof intentionally relinquish its right, or its conduct may justify insured in tbe belief that it does not intend to take advantage of it; hence it may be estopped *686 from claiming that the policy is avoided or forfeited if insured acts in reliance upon this belief to his prejudice. The courts being loath to enforce a forfeiture are prompt to seize upon any circumstances which indicate a waiver on the part of the company, or which will raise an estoppel against it.” 32 C. J., 1315, see. 565. It is true that under certain conditions the terms set out in a policy of insurance can be waived only in the manner prescribed by the contract (B lack v. Ins. Co., 148 N. C., 169) ; but the provisions which usually restrict the agent’s power of waiver do not as a rule apply to an agent who has knowledge of conditions existing at the inception of the contract. These conditions may be waived by the agent although embraced in the policy when it is delivered, for in these circumstances the agent’s knowledge is the knowledge of his principal. Smith v. Ins. Co., 193 N. C., 446; Bullard v. Ins. Co., 189 N. C., 34; Insurance Co. v. Lumber Co., 186 N. C., 269; Johnson v. Ins. Co., 172 N. C., 142. Applying this principle to the evidence, neither in the admission of the testimony nor in the instructions to which the exceptions relate have we discovered any sufficient or satisfactory cause for awarding a new trial. The defendant contends, however, that if this be conceded the action, nevertheless, should have been dismissed as in case of nonsuit. Its position is that the plaintiffs neither referred to the deed of trust as an encumbrance on the property nor made known to the defendant the nature of their title, and that the defendant could not therefore have intended to waive its right to insist upon the forfeiture. In regard to the first proposition it may be said that the defendant’s agent had been definitely informed that the plaintiffs were “in debt $1,000 on this property.” Whatever the nature of the indebtedness the agent was put on his guard; and even if the character of the outstanding encumbrance was not described it would still be inequitable to permit a forfeiture of the policy for the reason which the defendant assigned. And in reference to the second proposition it is immaterial in our opinion whether the agent or the plaintiffs understood the nature of an estate by entire-ties ; the decisive fact is the information given to the agent as shown by the testimony of Mrs. Aldridge. In her conversation with him she said: “You can make it (the policy) to me or to my husband, or to both of us. ... I told him it (the property) was ours, he could make it (the policy) to me or my husband, or make it to both of us, it did not make any difference which one he made it to, because what was one’s was the other’s.” This evidence, while perhaps not as comprehensive as the plaintiffs contend, was submitted to the jury on the question of the joint ownership of the property, the defendant having offered no testimony, and the issue, under instructions free from error, was answered in favor of the *687 plaintiffs. Tbe case of Hardin v. Ins. Co., 189 N. C., 423, cited by tbe defendant, is easily distinguishable and calls for no special comment. Tbe issues, sixteen in number, covered all phases of tbe controversy, and we find in tbe record no assignment of error which requires another trial. No error.-