Whitmire v. Provident Life & Accident Insurance

Stagy, C. J. The defendant has done no more than it had a right to do under the terms of its contract. In recognition of this fact, the plaintiff has bottomed his alleged cause of action on fraud and deceit, and seeks to recover in tort, but a careful perusal of the record leaves us with the impression that it is barren of evidence sufficient to carry the ease to the jury on the theory advanced by the plaintiff. It appears from the testimony that under date of 1 September, 1931, the plaintiff received a letter' from the defendant advising him that continuance of the insurance was contingent on not less than fifty per cent of the employees of the Southern Railway System subscribing for the group insurance, that up to that time they had not done so, and that it would be necessary to discontinue under paragraph six of the policy, or make other adjustments. He was also advised that if adjustments *103 were not agreed upon, no deduction for premium would be made after 31 October following. Tbe plaintiff made no answer to this letter, but acquiesced in the payment or collection of a premium after it had been received. Under date of 30 September, 1931, the plaintiff received a letter from the defendant stating that the insurance would be discontinued as of 1 November, 1931, that thereafter he would have no insurance, and that “no deductions will be made from your October earnings or thereafter in payment of protection thereunder.” The plaintiff did not reply to this letter, but received, without protest, his October earnings without any premium deduction. He instituted this action 28 April, 1932, for “fraudulent and unlawful cancellation.” It would seem that the plaintiff, with full knowledge, has ratified the provisions of the policy at variance with the representations made by Chunn. He will not be permitted “to have his cake and eat it too.” Starkweather v. Gravely, 187 N. C., 526, 122 S. E., 297. The case is unlike Elam v. Realty Co., 182 N. C., 599, 109 S. E., 632, where it was said an insurance agent or broker who undertakes to procure a policy of insurance for another, affording protection against a designated risk, may be held liable in damages for his negligent failure to exercise ordinary care in the discharge of the obligation assumed by him. The motion to nonsuit should have been allowed. Reversed. ClaeksoN, J., dissents.