McCraw v. Old North State Insurance

78 N.C. 149

• Court: Supreme Court of North Carolina
• Decided: January 5, 1878
• Status: Published

Opinion

Rodman, J.

The plaintiff was not entitled to a judgment, upon the verdict, because the jury found that the company had not extended the time for the payment of the premium note; and by the terms of the policy in such case, it was-void, Ve think, however, he is entitled to a new trial for the reasons which we proceed to state:—

1. Perkinson, one of the owners of the property insured,, had given evidence tending to prove that the company by its agent bad agreed to extend the time for the payment of the premium note, for ninety days after the 1st of February, 1876. To weaken this evidence, the defendant put in evidence declarations of Perkinson made while the fire was. in progress, tending to prove the contrary, and that the policy had become void by his neglect to pay the premium note when it had become due. To explain these declara tions, Perkinson was recalled and slated that during the fii& he was excited and confused; that he had answered the questions put to him. without reflection, and did not then, remember that the time for paying the premium note had been extended. To support this testimony of Perkinson,. the plaintiff call in one Fitz, and proposed to show by him that -while the fire was burning, he also asked Perkinson if the property was insured, and that Perkinson had replied that “ he did not know, his mind was so confused and excited he could not recollect.” This testimony of Fitz was objected to and excluded by the Judge, and plaintiff excepted. The Judge, however, allowed Fitz to say that Per-kinson appeared much disturbed and depressed.

The ground of the objection was that this declaration to Fitz was not contemporaneous with those previously proved, and could not therefore qualify or explain them. However that might be, if the declarations had been as to some other subject, we are of opinion that they ought to have been received. Declarations as to the present state of the feelings or health are always competent when that is the •question; and these were so nearly contemporaneous with those previously proved, and while the same state of circumstances continued, that they must reasonably be considered, in reference to the purpose for which they were introduced, as contemporaneous.

2. The plaintiff then offered to prove that shortly after the fire had subsided, Perkinson’s mental condition was such as to excite the attention and remark of one of his- friends who in consideration of it, .advised him to take a drink of liquor. This was objected to and excluded, and, .plaintiff excepted. We think this evidence was competent. It consisted of two parts, — one, as to the actual condition of PerkinSon’s mind, which was certainly competent,; and the other, as to the advice of his friend, which was relevant1' as tending to show to what extent the witness thought Per-■kinson’s mind was affected. When evidence tends fairly to prove the matter in dispute, although it may be by itself weak, Courts are not disposed to reject it. The jury will pass on its collected weight. - .

3. The plaintiff requested the Judge to instruct the jury that a forfeiture by means of the non-performance .of a condition subsequent, was not favored; and the waiver of the forfeiture by the company might be inferred from the dealing of the company with the insured, and from the known custom of the company with reference-to matters insisted on as working the forfeiture, as well as it might result from express agreement. This the Judge declined to do, and instructed the jury that “the forfeiture for non-payment of the premium note .at1 maturity,1 is a provision in favor of the insurance, company which they may waive.’by an express agreement for, an extension, and suqh agreement if made needs 110 consideration to support it.”

■Substantially, the;only matter in dispute between the parties was as to the extension on the premium note for ninety days after it fell due. There was the evidence of Perkinson to the effect .that there had been ah express agreement for extension; and it might have been, and probably was argued, that there was in the testimony of Long, matter which supported Perkinson. Independently of this,ft was argued for the plaintiff that the course of dealing by the company with Perkinson, and with other policy holder’s to his knowledge, as testified to by Long, estopped the company, from denying an agreement for extension, .and from insisting on a forfeiture. As there is to be a new trial, it will be suffi cient to say that there was evidence upon which the jury might, under proper instructions, have come to this conclusion. Long stated the course of dealing. He also stated that the company thought it good policy not to urge the prompt payment of the premium notes, as while they lost nothing by it, they were not during such indulgence bound for any loss. It is scarcely necessary to say that such a course of dealing with such a view which could not have been known to the insured, was unfair and calculated to deceive them. It was also a mistake in law; for it cannot be doubted that if a company intentionally by language or conduct leads its policy holders to believe that they need not pay their premium notes promptly, and that no advantage will be taken of the failure, it is equivalent to an express agreement to that effect, and is a waiver of the forfeiture.' It will be sufficient in support of this doctrine to cite May on Insurance § § 360, 361, and the cases there referred to, which fully sustain it.

The Judge by his instruction in effect says that there can be no waiver except by an express agreement, and deprived the .plaintiff of any benefit from the other view of the case. He also omitted to inform the jury that the company was bound by the acts and representations of its general agent within the line of his employment, a proposition of law which the plaintiff had urged and the defendant had denied. May on Insurance § § 143, 144: Union Mut. Ins. Co. v. Wilkinson, 13 Wall. 222.

This case differs essentially from Ferebee v. N. C. Home Ins. Co., 68 N. C. 11, in which the agent agreed to receive payment of the premium in a debt owing by himself, which could not be supposed to be within the scope of his agency, and the company had notified the plaintiff that the premium must be paid, or the policy would be forfeited. Judgment reversed and venire de novo.

Error.

Per Curiam. Venire de novo.