McLawhorn v. American Central Life Insurance

182 S.E. 139, 208 N.C. 709, 1935 N.C. LEXIS 106

• Court: Supreme Court of North Carolina
• Decided: November 1, 1935
• Status: Published

Opinion

ClakksoN, J.

From tbe evidence in tbe record it appears that tbe plaintiff, from 15 July, 1929, was, under tbe terms of tbe policy, “prevented from performing any work for compensation or profit or from following any gainful occupation.”

Tbe following letter, which is in tbe record, was sent by plaintiff to defendant: “Greenville, N. 0., 9 February, 1934. Tbe American Central Life Insurance Company, Indianapolis, Ind. Dear Sir: Please send me three (3) blanks ‘In Disability Benefit’ on my Policy No. 143026. I am unable to work or do anything at all. Several doctors will certify that I am unable to work. Tours truly, Melvin Thomas McLawhorn.”

It is further in tbe record: “Counsel then shows tbe witness a check, dated 3 April, 1934, for $60.00, and asked tbe witness if be endorsed that check, to which be answered: ‘I reckon I did.’ Tbe check was in tbe form and words following: ‘American Central Life Insurance Company, No. 337835, Indianapolis, April 3, 1934. Pay to Melvin Thomas Mc-Lawhorn or order $60.00. Sixty and 00/100 Dollars. Monthly disability payments for 2-26-34 and 3-10-34 — Policy 143026. American Central Life Ins. Company, Edward M. To Indiana National Bank, Indianapolis, Ind.’ That was tbe first check that came to me. Witness was then asked tbe question: ‘You accepted that check and endorsed it and got tbe money on it?’ ‘A. Yes, sir.’ ”

This check was dated 3 April, 1934, and was for two monthly disability payments — $30.00 a month, as provided by the policy. This action was commenced on 30 July, 1934, some five years later, for back disability payments, from 15 July, 1929, to 26 February, 1934, the time when no question is made that proper notice under tbe policy was given by plaintiff to defendant.

It is contended by plaintiff that be furnished proofs to defendant company on 15 July, 1929. We think tbe evidence is uncertain and so vague that we cannot say it was of sufficient probative value to be submitted to tbe jury.

Between 15 July, 1929, and February, 1934, tbe plaintiff made no demand for disability payments or waiver of premium, as provided by tbe policy. On tbe other band, be was continuously corresponding witb tbe defendant, requesting extension of premiums, etc., and executed two notes, termed “Automatic Premium Loans,” whereby be secured sufficient funds to meet these premiums. If tbe plaintiff bad submitted due proof of bis disability, it was not necessary to write for blanks and submit another claim in 1934, and to accept tbe $60.00 check under tbe new claim. For some four and a half years be paid bis premiums by borrowing from tbe company, getting extensions and otherwise, and at no time claimed to tbe company that be was disabled.

We think tbe evidence as to notice that plaintiff claimed be gave defendant was not sufficient to be submitted to tbe jury, but conceding, but not deciding, that it was, tbe plaintiff is estopped by bis conduct to maintain this action. We see no error in excluding tbe evidence that plaintiff complains of — if admitted it would not be of such materiality as to change tbe view we take of tbe evidence on this record.

Tbe judgment of tbe court below is

Affirmed.