#### JAMES PENDER, Administrator, v. NORTH STATE LIFE INSURANCE COMPANY.

(Filed 17 September, 1913.)

1.' Discretion of Court — Verdict Set Aside — Appeal and Error.

Objection to the verdict of a jury, that it is contrary to the weight of the evidence, .must be by motion to set it aside, addressed to the discretion of the trial judge, from -which there is no appeal except when this discretion has been grossly abused.

2. Appeal and Error — Weight of Evidence — Matters of Law — Constitutional Law.

The Supreme Court can only review on appeal a “decision of tbe courts below upon matters of law or legal inference” (Const., Art. IY, sec. 8) ; and where there is legal evidence submitted to the jury, under correct instructions from the trial judge, no appeal lies from the verdict and judgment to review the findings of fact.

3. Insurance — Evidence—Production of Policy — Trial.

Where the beneficiary of a life insurance policy produces the policy at the trial of an action to recover thereon after its maturity, a prima facie case is made for him upon the question of a .delivery.

4. Insurance — Delivery of Policy — Payments of Premium — Waiver of Rules.

An insurance company ‘may waive a provision requiring that the first premium on a policy of life insurance be made as.a prerequisite to its delivery, which may be shown by direct proof that credit therefor had been given to the insured, or inferred from other surrounding circumstances, as, in this case, the production of thg policy, at the trial, by the beneficiary, suing for recovery thereon.

*995. Same — Principal and Agent — Evidence.

Where resistance is made to a recovery on a life insurance policy in an action brought by the beneficiary after the death of the insured, upon the ground thát the insured was the agent of the company at the time it was issued, that the policy was delivered to him as such agent, and thus to be held for delivery until he had paid the first premium, upon which question the evidence is conflicting, an instruction from the court is correct, that if the jury found that the insured received the policy from the company, not as agent or manager, but as an ordinary applicant only, and that he was trusted by the company to pay the first premium, instead of paying it in advance, they should answer the issue for the plaintiff, or “Yes”; but otherwise if the insured was to hold the policy as agent until he, as an ordinary applicant, or individually, should pay the premium.

6. Insurance — Delivery of Policy — Separate Dates — Verdict.

Where in an action by the beneficiary to recover upon a life insurance policy, there is a question as to whether the policy was actually delivered to the insured, it is immaterial as to the exact date of its delivery, should the jury find that it had actually been delivered; and, hence, a finding of the jury that the- delivery had been made on two separate dates will not avoid the-verdict for inconsistency.

7. Same — Consistent Verdict.

Where in defense to an action upon a life insurance policy it is contended that no delivery of the policy had been made to the insured, and there is evidence that the manual delivery was made on a certain date, and at a later date the insured gave his note for the first premium, which was accepted by the company, findings by the jury to separate issues, that the policy was delivered to the insured and became a consummated contract on both of these dates, are not inconsistent.

8. Insurance — Delivery of Policy — Payment of Premium — Waiver—■ Knowledge.

The rule of an insurance company that its agent shall not deliver a policy of life insurance more than sixty days after the date of its issue without a new physical examination of the insured, or a new health certificate given by his physician, maybe waived by the conduct of the company, and its accepting the note of the insured, contrary to this rule, for the first premium, with knowledge that it had not been observed, and retaining possession thereof without objection, is a waiver of such rule; and knowledge of the facts by the company may be inferred from the facts and circumstances of the case.

*100Appeal by defendant from Cline, J., at March Terra, 1913, of Edgecombe.

This case was before ns at Fall Term, 1910, and under- the name of Powell v. •Insurance Co. is reported in 153 N. C., at p. 124 ,et seq. Since that time the former administrator of the beneficiary under the policy has died, and the present plaintiff, as his successor in the administration of the .estate of H. D. Teel, has taken his place in the record. ' The facts of. the case are somewhat changed from those we then considered, as will appear by the following verdict of the jury:

1. Did II. D. Teel in his aiDplication for the policy, represent that he did not. then have, and never had, any habit of taking opium, or any of its preparations, or any narcotics? Answer: Yes.

2. Did H. D. Teel, on the date of said application, have any habit of taking opium, or any of its preparations, or any narcotics? Answer: No.

3. Was said representation a material inducement to the issuing of the jxfiicy by the defendant? Answer: Yes.

4. Was said Teel agent and manager of defendant at Tar-boro, on 6 December, 1906? Answer:- No.

5. Was said policy delivered to said Teel, and did it become a consummated contract between him and defendant on 6 December, 1906? Answer: Yes.

6. Did said Teel, on 10 May, 1907, have the habit of taking opium or any of its preparations, or'any narcotics? Answer: No.

7. Was there a material change for the worse in the health of said Teel, prior to 10 May, 1907'? Answer: No.

8. Was the said policy delivered to said Teel, and did it become a consummated contract between said Teel and the defendant on 10-May, 1907? Answer: Yes.

The other facts necessary to an understanding of the case are stated in the opinion. The court rendered a judgment upon the verdict for the plaintiff, and the defendant appealed, after duly noting exceptions to the rulings of the court.

F. S. Spruill and W. O. Howard for plaintiff.

Rouse & Land for defendant.

*101Walker, J\,

after stating tbe case: Tbe answers to tbe first and third issues were not seriously contested by tbe plaintiff, and could not well baye been resisted, but tbey bare become immaterial by reason of tbe answer to, tbe second issue in favor of tbe plaintiff. Whether the deceased was addicted to tbe habitual use 6f opium in any of its forms, or of any other narcotic, was a pure issue of fact to be determined by tbe jury upon tbe evidence, which was conflicting. There was sufficient evidence, in law, to support tbe finding of tbe jury, and when this is tbe case and it is claimed that tbe jury have given a verdict against tbe weight of all the evidence, tbe only remedy is an application to tbe trial judge to set aside tbe verdict for that reason.. We will not review bis ruling upon such a motion, except where it clearly appears that there has been a gross abuse of bis discretion, which, of course, will be of exceedingly rare occurrence, and so much so that in our procedure it may be considered as almost a negligible quantity. There was no such abuse in this instance.

Under tbe fourth and fifth issues, tbe jury, by their answers thereto, have evidently found as facts that H. D. Teel was not agent or manager of tbe defendant company on 6 December, 1906, when tbe policy was sent to him from tbe home office, and that tbe company did not require payment of tbe premium in .advance, but delivered tbe policy to H. D. Teel and trusted him for tbe payment of tbe premium, tbe understanding being that tbe policy should immediately become effective upon its delivery and without prepayment of the premium as a condition upon which it should take effect. We cannot escape this conclusion after a careful perusal of.the evidence and tbe charge of tbe court, and considering them in connection with the issues four and five, as answered by tbe jury.

Tbe defendant offered strong evidence. to show that H. D. Teel was tbe defendant’s agent and local manager on ,6 December, 1906, but there was some evidence on tbe other side of tbe question, introduced by tbe plaintiff, and while it may not be very convincing or even satisfactory, we are not willing-to say that it was altogether destitute of probative force, but we *102do mean to say tbat it was weak or insufficient to warrant tbe finding of tbe jury. It was some evidence, and was properly submitted to tbe jury, and tbe defendant baving failed to bave tbe verdict set aside by tbe judge below, because it was against tbe weight of tbe evidence, must abide by tbe result as final and beyond our control. We can- review by appeal “any decision of tbe courts below upon any matter of law or legal inference,” but in jury trials, at least, our jurisdiction ends wben tbat is done. ¥e cannot review findings of fact in sucb cases. Const., Art. IY, sec. 8. And wbat we bave said applies equally to tbe sixth and seventh issues. There was conflicting evidence which carried tbe questions to tbe jury, and we are concluded by their findings.

Returning to tbe fifth’ issue for further consideration, we find tbat tbe court instructed tbe jury, if they found tbat H. D. Teel received tbe policy from tbe insurance company, not as its agent or manager, but as an ordinary applicant for insurance, baving no sucb relation to it, and be was trusted to pay tbe first premium, instead of paying it in advance, they should, answer tbe fifth issue “Yes”; but if tbe insurance company sent tbe policy to H. D. Teel, be then being its agent or manager, to bold tbe }3olicy for tbe company until tbe premium was paid, and not to deliver it to himself until it was paid, or if H. D. -Teel received tbe policy, not as agent or manager, and laid it aside until be could pay tbe premium, and it was not paid by him on 6 December, 1906, they should answer tbe issue “No.” We see no valid objection tbe defendant can make to this instruction. There was evidence of the facts it embodied sufficient to support either hypothesis stated in it, and tbe jury manifestly found tbat H. D. Teel was not agent at tbe time, and received tbe policy as an ordinary applicant, baving no confidential relation with tbe company, and tbat tbe latter bad trusted him to pay tbe premium. If tbat be tbe case, tbe policy was delivered and in force on 6 December, 1906. If there bad been an actual delivery of the policy, nothing else appearing, tbe production of it at tbe trial by tbe plaintiff, who is tbe beneficiary, makes a prima facie case for him. Perry v. Insurance Co., 150 N. C., 143, citing Kendrick v. Insurance Co., *103 124 N. C., 315; Grier v. Insurance Co., 132 N. C., 542; Rayburn v. Casualty Co., 138 N. C., 379; Waters v. Annuity Co., 144 N. C., 663. That the company may waive the prepayment of the premium and give credit for the same is but to state a self-evident principle, and this waiver may be shown by direct proof that credit was given, or may be inferred from the circumstances as well. Bodine v. Insurance Co., 51 N. Y., 117. No man is bound to insist upon his rights, and an insurance company may disregard the provision requiring prepayment of the premium as a condition of imparting vitality to the policy, and agree, either expressly or impliedly, that it will accept the promise of the applicant to pay on demand or at a future day. The doctrine is thus clearly stated in Yance on Insurance, at p. 178: “Even though the parties may have expressly agreed that the contract shall not be deemed complete until payment of the premium in cash and in full, this stipulation may be waived by the insurer or any of its agents having competent authority. As a general rule, any agent having power to execute and issue contracts on behalf of the insurer has power to waive a condition of prepayment. And an absolute delivery of the policy by such an agent, without payment of the premium, under such circumstances as will justify an inference that credit is to be. given, will constitute a waiver of a condition of prepayment. It seems that an intention to give credit may be inferred from the mere fact of unconditional delivery, without requiring present payment. Nor do the courts show great readiness to find that a delivery was made subject to a condition of immediate payment.” The cases in this Court, already cited, are substantially to the same effect.

The sixth and seventh issues involved matters of fact alone, there being, in our opinion, evidence on both sides of the questions submitted to the jury in them. Our remarks as to the second issue are generally applicable to these two issues. We are concluded by the verdict.

In regard to the seventh issue, it was urged before us by the learned counsel for the defendant, that the verdict upon the fifth and seventh issues was inconsistent, as the policy could not *104have been delivered and become effective on two different dates. But we think, the answers to tiese issues are reconcilable, if it is necessary to bring them into harmony in order to sustain the verdict. It would seem to be immaterial on which of the two dates it took effect. If on either of them, it is valid and enforcible in view of the special facts of this case. But they are consistent, as the jury evidently meant that the policy was delivered on 6 December, 1906, and continued in force until and including 10 May, 1907; but if they were mistaken in law, for any reason,’ as to its being in force on 6 December, 1906, then upon the facts as they found them to be, it took effect on 10 May, 1907. It is true that there is evidence that H. D. Teel was the agent of defendant on 10 May, 1907, though there is no' special finding of the fact. We will assume it to be true. In this connection, there was evidence that II. D. Teel, on 10 May, 1907, gave his note to the agents of the company for $69.35, the amount of premium on this policy, and it was assigned by them to the company and mailed to the company on the same day. It was received by the company without objection, and has been retained ever since, so far .as appears.

The defendant contends, though, that there was a rule of the company, in force at the time of these transactions, forbidding an agent to deliver a policy sent to him for delivery, if more than sixty days since it was. issued have elapsed, unless the applicant for the policy has furnished the company with a new physical examination or health certificate, given by a physician.

If we concede, for- the sake of illustration and argument, that' this point is properly raised by the prayer for instruction, the rejection of which is the subject of the twenty-eighth exception, the prayer not being addressed to any particular issue, nor any finding asked in regard to it on the eighth issue, which is sufficient to embrace the question intended to be raised, we do not think it defeats the plaintiff’s right of recovery. If there was no such examination, and the rule has been established in such a way as to have bound H. D. Teel to its observance, and the policy, therefore, was issued in violation of the rule, it appears that the company, in February and April, 1907, wrote letters to their agents at Tarboro, N. O., having possession of this and *105other policies which had been issued for more than sixty days, and called for the payment of the premiums or the return of the policies, but not insisting upon a new physical examination. These letters were introduced by the defendant at the trial. When we consider these facts and the failure of the defendant to return the premium note and insist upon a, compliance with the rule requiring H. D. Tóel to furnish to it an examination as to the then state of his health, the doctrine of waiver is again applicable. The note of H. D. Teel recited that it was given for the first premium ($69.35) due on the .policy of insurance issued to him. The company must have known that there had been no new medical examination, as he was required to furnish it to the company, and failed to do so. Under the circumstances it would not be right for the company to retain the premium note, with knowledge that the alleged rule had not been complied with, and then, after the loss, to insist that the policy was not valid for that reason. And it is this element in the transaction that induces,the law to declare a waiver of the condition or to hold the company estopped to set it up in defense of an action upon the policy. It is partly based upon the eminently just maxim that if a party is silent when he should speak, he will not be permitted to speak when justice demands that he should be silent. He will not be allowed to take two chances, when he should be entitled to only one. If we put the case completely, it is this: The law will not allow the company to hold the premium upon the chance that there may be no loss, and, if there is a loss, to deny its liability upon the policy. Acceptance and retention of the premium, with knowledge of the facts, express or to be inferred, shows that it elected to consider the policy in force. Rayburn v. Casualty Co., 138 N. C., 379. Brief reference to the' authorities and precedents will be sufficient to show the state of the law upon this .question: “The acceptance by an insurance company, with knowledge of facts authorizing a forfeiture or avoidance of the policy, of premiums or assessments •which were in no degree earned at the time of such forfeiture or avoidance, constitutes a waiver thereof. This waiver is based on the estoppel of the company to declare void and of *106no effect insurance for which, with, knowledge of tbe facts, full compensation bas been received. Tbis rule is particularly applicable where tbe company’s claim is based on a right of cancellation and return of premiums, rather than on a distinct' forfeiture.” 3 Cooley’s Briefs on tbe Law of Insurance, pp. 2683, 2684, 2686, and tbe numerous cases cited in tbe notes. It is said in Phœnix M. Life Ins. Co. v. Raddin, 120 U. S., 183 (30 L. Ed., 644) : “Tbe only question upon tbe instructions of tbe court to tbe jury which is open to tbe defendant on tbis bill of exceptions is whether, if insurers accept payment of a premium after they know that there bas been a breach of a condition of tbe policy, their acceptance of tbe premium is a waiver of tbe right to avoid tbe policy for that breach. Upon principle and authority, there can be no doubt that it is. To bold otherwise would be to maintain that tbe contract of insurance requires good faith of tbe assured only, and not of tbe insurers, and to permit insurers, knowing all tbe facts, to continue to receive new benefits from tbe contract while they decline to bear its burdens. Insurance Co. v. Wolf, 95 U. S., 326; Wing v. Harvey, 5 D. M. and G., 265; Frost v. Saratoga Mut. Ins. Co., 5 Denio, 154; Bevin v. Connecticut M. L. Ins. Co., 23 Conn., 244; Insurance Co. v. Slockbower, 26 Pa., 199; Viele v. Germania Ins. Co., 26 Iowa, 9; Hodson v. Guardian L. Ins. Co., 97 Mass., 144.”

The other-questions raised by tbe defendant, which are subsidiary to those we have discussed' and dependent upon them, require no separate consideration.

Tbis case bas been tried three times in tbe court below, and beard twice in this Court. It bas been very ably and learnedly presented to us by counsel, and we have given to it a most patient and thorough examination. After doing so, we have not been able to discover any error in tbe trial and proceedings below.

No error.