Blake v. . Hospital Care Assn.

Stacy, C. J. The question for decision is whether plaintiff’s hospitalization is covered by the certificate in suit. It is conceded that the certificate contains a provision including her case and an endorsement excluding it. The optional right of the association to renew the certificate at the expiration of any term period is not presently controverted. Plaintiff says, however, that the defendant may not renew the certificate and at the same time delete it of its essential features. To do so is not to “renew,” but to issue a different certificate. Having issued the certificate with provision covering plaintiff’s case, followed by numerous elections to renew it, plaintiff says the endorsement ought not to be permitted to destroy the certificate so far as she is concerned. Defendant answers by saying, “You paid dues for two quarterly periods after the rider or endorsement had been placed on the certificate and with knowledge of it.” “Quite true,” says the plaintiff, “but I protested and you" promised to give me some reply, which you never did. You accepted my dues knowing that I was relying upon the provision in the body of the certificate at variance with the endorsement, and you thereby lulled me into a sense of security. To insist upon the endorsement now would partake of the nature of imposition and amount to a species of fraud. You have waived it by your conduct.” Dibbrell v. Ins. Co., 110 N. C., 193, 14 S. E., 783. The plaintiff had been a member of the association for two years, and it is admitted that her quarterly dues were paid regularly. The certificate in terms excludes maternity cases during the first year and includes them thereafter, if then in force. Plaintiff was induced to continue her membership in the association by reason of this provision, and the endorsement undertaking to eliminate it at the end of the second year came as a surprise. She protested. Defendant promised to act upon her protest, and did so only by silence. In the meantime, plaintiff *706 continued to pay ber dues as required by ber membership in tbe association, and tbe defendant accepted tbem. Tbe plaintiff invokes tbe doctrine of waiver and wbat sbe terms tbe greater merit. Underwood v. Ins. Co., 185 N. C., 538, 117 S. E., 790. Tbe defendant relies upon tbe letter of tbe endorsement and wbat it calls tbe stronger position. Allen v. Ins. Co., 215 N. C., 70; 14 R. C. L., 933. As between tbe claims of waiver on tbe one side and acquiescence on tbe other, tbe facts agreed are not determinative of tbe issue, and, hence, are insufficient to warrant tbe court in proceeding to judgment. Roebuck v. Trustees, 184 N. C., 611, 113 S. E., 927. Tbe judgment will be vacated and the cause remanded for further proceedings as to justice appertains and tbe rights of tbe parties may require. Error and remanded.