Hutson v. Metropolitan Life Insurance

Per Curiam. The plaintiff contends that the question involved, was there sufficient evidence justifying the trial court to submit the first issue to the jury, said issue being as follows: “Was the defendant’s policy No. 2608872-A on the life of the plaintiff forfeited on account of the alleged nonpayment of the premium due 14 May, 1929, thereon?” We think the policy of insurance on plaintiff’s life, if not forfeited by nonpayment of premium that plaintiff has waived any rights he may have had and estopped to enforce them. The record discloses: (1) It is not denied that to pay the premium due 14 May, 1929, if defendant had made plaintiff a loan on the policy, it was necessary for plaintiff to pay $189.03 which he has never done. (2) That plaintiff on 17 June, 1929, signed a “request for reinstatement of policy.” In which is the following: “Are you now in sound health? Yes. Are your habits sober and temperate? Yes. Have you since date of issue of the above policy (a) Had any illness or injury? If yes, give date and particulars, (a) No. (b) Consulted any physician or physicians? If yes, give date, and name and address of physician or physicians, and state for what illness or ailment, (b) No.” The grace period provided in the insurance policy expired on 14 June, 1929. (3) The plaintiff was sent a check by defendant for $99.84 on 22 August, 1929, payable to his order. “Territory dividend due policy number and detail 1929, 2608872-A.” The check was endorsed by plaintiff “received payment in full as detailed on reverse side.” (4) Plaintiff brought the present suit on 27 May, 1932, over three years from 14 May, 1929, when the premium was due but within the 31 days of grace period. The action is brought to reinstate the policy that had been canceled by defendant. In Murphy v. Ins. Co., 167 N. C., 334 (336), quoting numerous authorities, it is said: “It is also held by well considered cases on the. subject here and elsewhere that this provision as to forfeiture, being inserted for the benefit of the company, may be waived by it, and such a waiver will be considered established and a forfeiture prevented whenever it is shown, as indicated, that there has been a valid agreement [330] to postpone payment or tbat tbe company bas so far recognized an agreement to tbat effect or otherwise acted in reference to tbe matter as to induce tbe policyholder, in tbe exercise of reasonable business prudence, to believe tbat prompt payment is not excepted and tbat tbe forfeiture on tbat account will not be insisted on.” This is well settled and salutary law, but tbe plaintiff, being sui juris, signed tbe application for reinstatement and made certain representations as to bis being in sound health — which was untrue — cashed tbe cheek and waited over three years, from 14 May, 1929, before bringing this action. Tbe nonsuit was properly granted. On tbe entire record, we see no evidence of fraud on tbe part of tbe defendant. We have gone through tbe record and examined tbe able briefs of tbe litigants, but for tbe reasons given, tbe judgment must be Affirmed.