Hart v. Woodmen of the World

Peb CubiaM. The following reasons are assigned by his Honor in support of the judgment entered in the Superior Court: “It further appearing to the court that after the plaintiff’s intestate changed his occupation he made to the defendant as many as twelve or more monthly payments of dues and assessments, and that the same was transmitted to the defendant by the clerk of the local camp, as required by the bylaws, and that after the death of the plaintiffs intestate, proofs of death and loss were duly made out and transmitted to the defendant, as required by the said policy of insurance, constitution and by-laws, and after the receipt of the same the defendant denied liability and refused to pay to the plaintiff, the beneficiary in the policy, the amount thereof, and that the defendant has failed and refused to return to 'the plaintiff’s intestate or his personal representative the premiums, dues and assess *490 ments levied on account of said policy, and in filing its answer Herein made no offer to return tbe same, but Has kept tbe said premiums, dues,, and assessments wbicb were paid to it for tbe purpose of keeping in force tbe insurance contract sued on, and tbe court being of tbe opinion, on sucb facts, that tbe plaintiff is entitled to recover of tbe defendant r It is therefore ordered,” etc. Tbe defendant takes tbe position that none of tbe provisions of its constitution and by-laws could be waived by any officer or agent, and that tbe failure of tbe insured to pay tbe additional thirty cents per month while engaged in tbe hazardous wox’k’ rendered bis certificate null and void. We do not think this position open to tbe defendant on tbe record. Tbe insured was required to notify tbe clerk of bis camp’ within thirty days of bis change of occupation, wbicb was done, according to tbe verdict of tbe jury. With knowledge of tbe changed and hazardous employment of tbe insured, tbe defendant continued to accept tbe dues and assessments at tbe old rate. This was not an unauthorized act of an officer or an agent, but tbe defendant’s own election, deliberately made. Sucb was a waiver of its right to insist upon a forfeiture of tbe policy. Bergeron v. Ins. Co., 111 N. C., 45. It has been held with us, in a number of cases, that where an applicant knowingly misrepresents a material fact, and tbe company, with full knowledge of tbe circumstances and falsity of tbe statement, issues a policy, receives tbe premiums, and recognizes and continues to recognize tbe applicant as bolding a contract of insurance, it ordinarily will be estopped from insisting on a forfeiture of tbe policy that otherwise might ensue. Robinson v. Brotherhood, 170 N. C., 545; Grabbs v. Ins. Co., 125 N. C., 389. It is not necessary to discuss tbe principle, announced in numerous decisions, that notice to tbe agent is notice to tbe company, for, in tbe instant case, tbe insured, when be changed bis occupation, was only required to notify tbe clerk of bis camp, wbicb be did, and this was notice to tbe defendant. Fishblate v. Fidelity Co., 140 N. C., 589. See, also, Carden v. Sons and Daughters of Liberty, 179 N. C., 399. After a careful examination of tbe defendant’s exceptions and assignments of error, we are convinced that tbe case was tried according to law and precedent. No error.