West v. Provident Life & Accident Insurance

Devin, J. The plaintiff challenges the correctness of the judgment on the ground that the Life Certificate issued by defendant on the life of W. A. West and attached to the accident and health insurance policy was a separate contract of insurance on the life of the insured, and that in the certificate, as distinguished from the policy, there is no right to cancel reserved by the defendant; that, at most, an option is therein extended to the insured to have a policy of ordinary life ’insurance issued him by the company. But, without deciding whether the contract of insurance issued in this case by the defendant was indivisible or consisted of two separable contracts, the nonsuit must be sustained upon another ground. The Life Certificate, under which plaintiff claims, obligated the insured to pay on the first day of each month a monthly premium of sixty cents. It is admitted that nine consecutive monthly premiums were unpaid at the time of the death of the insured, and that after due notice from the defendant of the termination of the accident and health policy, including the Life Certificate, and cessation of pay roll deductions for the payment of premiums, the insured raised no objection, offered no protest, made no payments, and neither tendered nor offered a single monthly premium during his life, but, on the contrary, received his wages undiminished by any deductions. Even if the defendant wrongfully terminated the insurance, that did not relieve the insured, if he desired to insist on its continuance, from his obligation to pay, or offer to pay, the premiums called for in his contract. In Trust Co. v. Ins. Co., 173 N. C., 558, it was held that if the insurer refused to perform its part of the contract, and so notified the insured, three remedies were given the latter: “(1) He may elect to consider the policy at an end and recover its value. (2) He may sue to have the policy declared in force. (3) He may tender the premiums and treat the policy as in force and recover the amount payable on it at maturity.” “A party to a contract cannot maintain an action for its breach without averring and proving performance of his own antecedent obligations *237 or some legal excuse for nonperformance.” Wade v. Lutterloh, 196 N. C., 116; Edgerton v. Taylor, 184 N. C., 571; Supply Co. v. Roofing Co., 160 N. C., 443; Ducker v. Cochrane, 92 N. C., 597. In Whitmire v. Insurance Co., 205 N. C., 101, this Court had under consideration a policy of accident and health insurance issued by this same defendant. There the policy had been canceled in accordance with its terms. In the opinion of the Court, written by Stacy, C. J., we find these words: “The plaintiff (the insured) did not reply to this letter, but received, without protest, his October earnings without any premium deduction.” Judgment affirmed.