#### W. E. SHUFORD, Administrator, v. LIFE INSURANCE COMPANY OF VIRGINIA.

(Filed 23 December, 1914.)

1. Pleadings — Waiver—Insurance—Supreme Court — Amendments.

While it is usually necessary to plead a waiver in order - to make it available on the trial, the Supreme Court may allow an amendment there, within its sound discretion, and not disturb a verdict and judgment the party may have obtained in the Superior Court; and it appearing in this case that the plaintiff has failed to plead that the defendant had waived a condition contained in its policy of life insurance, requiring proof of death of the insured, and that the action had been commenced in a justice’s court, where the pleadings are ordinarily informal, and that full opportunity had been given the defendant to produce and .introduce testimony upon the question, the verdict below is left undisturbed.

2. Insurance — Policies—Proof of Death — Impossible Requirements — Waiver —Principal and Agent — Proof of Agency — Evidence Sufficient.

Where a policy of life insurance provides that payment thereof to the wife of the insured will discharge the insurer from all liability thereunder, and relying upon the statutory seven years absence, and other evidence sufficient upon the inquiry of the whereabouts of the insured, etc., the wife has made demand for payment on the agent of the insurer, who refuses on behalf of the company to pay the amount of the policy without proof of death of the insured by three witnesses, .or certificate to that effect by the physician attending him during his last illness, the conditions imposed by the company are impossible of performance, and will be regarded as a waiver by the company of its right to demand the proof of death. The evidence in this case that the agent was authorized by the company to waive the proof of death in its behalf is held sufficient.

3. Insurance — Proof of Death — Absence—Evidence—Trials—Questions for' Jury.

• Evidence in this action to recover on a life insurance policy, on behalf of the beneficiary, that the deceased had been absent for more than seven years, without hearing from him, whether he were alive or dead; that she had made frequent inquiries of him, had employed an attorney and detective to help find him, who had actively endeavored to do so without result, etc., is held sufficient, upon the question of the death of the insured, to be submitted to the jury. Sizer v. Severs, 165 N. C., 500, cited and applied.

Appeal by defendant from Cline, J., at August Term, 1914, of Buncombe.

This is an action to recover on a policy of life insurance.

In the year 1902 the intestate of the plaintiff was insured by the defendant in two policies of insurance, one for $110 and the other for $55. • Both policies were identical in form. The policies were made payable to the executors or administrators of the insured, Melvin Tilson. The policies contained, among other things, the following provisions:

*548“The Life Insurance Company of Virginia agrees to pay unto tbe • executors or administrators of tbe person named as insured in tbis policy tbe amount of benefit provided in said schedule, witbin twenty-four hours after acceptance, at its home office, of satisfactory proofs of death of tbe insured named below, during tbe continuance of tbis policy, which is issued and accepted subject to tbe conditions' and agreements below, and on tbe reverse side hereof, which are hereby referred to, and each one of which is hereby made a part of tbis contract.”

On tbe reverse side of tbe policy (article 6) : “No suit shall be brought against tbe company after six months from tbe date of tbe death of tbe insured. If any suit be commenced after six months, tbe lapse of time shall be conclusive evidence against any claim, tbe provisions of any and all statutes of limitations to tbe contrary notwithstanding. Proofs of death under tbis policy shall be made upon blanks to be furnished by tbe company, and shall contain answers to each question propounded to tbe claimant, physicians, and other persons. . . .

Article 7 : “Agents (which term includes superintendents and assistant superintendents) may in their discretion receive premiums within four weeks after the same are due, with this exception: they are not authorized to make, alter, or discharge contracts, or waive forfeitures.

“The company may make any payment provided for in this policy to husband or wife, or any relative by blood, or lawful beneficiary of the insured, or to any person appearing to said company to be equitably entitled to the same, and the production by the company of a receipt signed by any or either of said persons, or of other sufficient proof of such payment to any or either of them, shall be conclusive evidence that such benefits have been paid to the person or persons entitled thereto, and that all claims under this policy have been fully satisfied.”

Tilson and his wife had separated some time in the year 1903, and did not live together afterwards. In the spring of 1904 he left, and has not been seen or heard of since. After some time Mrs. Tilson instituted inquiries to ascertain his whereabouts, but was unable to get any information. She employed a lawyer and he told her he could ascertain nothing. Afterwards, she employed one Kesterson, who represented himself as a detective, to try to find Tilson, and he, having heard that Tilson had gone to Spartanburg, went there and made inquiry, but learned nothing. Kesterson also wrote to the police»of Greenville, S. C., but got no information from them. The wife made frequent inquiries of various parties, but could never get any information. Advertisement was made for him. A number of witnesses testified that he had left here in the spring of 1904; that his health was bad when he left; and he had never been heard of since. The plaintiff relied on the absence for more than *549seven years, taken in connection witb tbe physical condition of tbe intestate of tbe plaintiff at tbe time of bis departure, and tbe efforts made to find bim, to establish death.

Tbe plaintiff offered as a witness Mrs. Sallie Tilson, who testified as follows: That she was tbe wife of Melvin Tilson, tbe insured, and bad regularly paid tbe premiums on tbe policies of insurance; that her bus-band left her in tbe spring of 1904, and that be bad not been back here since, to her knowledge; that she employed a lawyer by tbe name of Williamson to help her in finding bim, and that she also employed a man . by tbe name of Kesterson to aid her in ascertaining her husband’s whereabouts, and whether be was-living or dead; that both of these parties reported they were unable to get any information about bim at all; that she bad made frequent inquiries and bad never been able to bear anything of bim. She said she bad talked to tbe agents of tbe insurance company, and asked them to find bim for her.

Tbe witness was then asked tbe following questions:

Q. Did you ever apply to tbe agent for payment on these policies ?

Tbe defendant objected, tbe objection was overruled, and tbe defendant excepted.

A. Yes, sir.

Q. Did you go to tbe superintendent, himself, about it? A. Yes, sir.

Q. What did be tell you?

Tbe defendant objected, tbe objection was overruled, and tbe defendant excepted.

A. He said I would have to have three witnesses to tbe death that saw bim, or tbe doctor’s certificate. I stated to bim bow long be bad been gone and what efforts I bad made to find bim.

Q. Go ahead and state what else you said to bim and all be said to you.

Tbe defendant objected, tbe objection was overruled, and tbe defendant excepted.

A. I spoke to bim and told bim I would like to get a settlement in some way; that I bad paid out so much on it, and told bim I bad been thinking of writing tbe borne office, and be said if they replied, it would be to refer it back to bim. Then I have spoken to tbe assistant superintendent, because I bad worked bard and paid tbe money. He said there was not any use to .write to tbe borne office unless I could bring tbe proof of three witnesses that saw bim after be was dead, or tbe doctor’s certificate.

Q. What did be say to you, anything more than you have told? A. .Only tbe evidence that they required; be said they could not pay tbe claims without evidence of that kind.

Tbe defendant objected to tbe testimony, tbe objection was overruled, and tbe defendant excepted.

*550No proofs of death were furnished by the plaintiff.

The defendant tendered the following issues:

“Is the defendant indebted to the plaintiff, and if so, in what amount ?” as the only issue arising under the pleadings; but the court submitted, in addition thereto, the following: “Was the insured, Melvin Tilson, dead at the time of the commencement of this action ?”

The defendant excepted.

“Did the defendant waive the condition and provisions of the policies requiring that proofs of death under them should be made upon blanks to be furnished by the company, and shall contain answers to each question propounded to the claimant’s physician, and other persons, and shall contain the record evidence and verdict in the coroner’s inquest, if one shall he heard ?”

The defendant excepted. '

His Honor charged the jury, among other things, as follows: “If you find by the greater weight of the evidence that seven years — that the plaintiff, the insured, was dead at the time of the commencement of this action, and that subsequent to his death Mrs. Tilson, the wife of the insured, went to the office of the general superintendent of the defendant here in this city, seeking to obtain payment of the amount of these policies; if you find that she had been continuing the payment of these policies herself all this time; and if you find that the general superintendent declined to pay her- — deal with her in the matter; if you find by the greater weight of the evidence that she wanted to take it up with the home office, and that he said there was no use to do that; that it would be referred back to him, and that they would pay nothing under the policies unless they had proof of three witnesses to his death, or a certificate of the physician who attended him in his last illness — had proof of his death — that in substance, I say, I am not attempting to give the language of the witness, then the court instructs you as a matter of law that upon such facts, if you find them, would constitute a waiver of these policies, that they are payable only upon proof of death, etc.”

All the issues were answered in favor of the plaintiff, and from the judgment pronounced thereon the defendant appealed.

B. S. McGall and 0. K. Bennett for plaintiff.

Merrimon, Adams & Adams'for defendant.

AlleN, J.

The principal exceptions relied on by the defendant are:

(1) That as a waiver of the proofs of death is not distinctly pleaded, it was error to submit the issue of waiver to the jury, or to receive evidence bearing on the issue.

(2) That there is no evidence of a waiver in that the demand made on the defendant was by Mrs. Tilson, and that she was not entitled to receive the money under the policy.

*551(3) That the evidence is insufficient to establish the death of the insured.

1. It is usually necessary to plead a waiver (Mfg. Co. v. Assurance Co., 106 N. C., 28); but when it appears that upon appeal from, a justice of the peace, in whose court the pleadings are generally informal, an issue has been fairly tried, and both parties have had full opportunity to produce and introduce their evidence, this Court would not disturb the verdict and judgment for failure to do so, but would in the exercise of its discretion amend the pleading here, as it has the power, to do. Corporation Commission v. Bank, 164 N. C., 358.

The evidence of waiver offered by the plaintiff consists of. conversations with agents of the defendant, testified to by the wife of the insured, and there is no suggestion that the agents with whom she had the conversations could not be produced, or that they would contradict her.

If, therefore, we should sustain the first contention of the defendant we would not set aside a finding of fact based upon evidence, which, so far as the record discloses, is undisputed, because of a failure to file a formal plea. ¥e are of opinion this ought not to be done, and that this is a proper case for allowing the amendment.

2. The policy provides that the defendant may pay to the wife of the insured, and that her receipt shall discharge liability under the policy. If so, she had the right to demand payment, and the refusal to pay except upon conditions impossible of performance would be equivalent to a denial of liability and would be a waiver of the proof of death. Doggett v. Golden Gross, 126 N. C., 477; Gerringer v. Ins. Co., 133 N. C., 410.

3. The evidence of death is fully as strong and conclusive as that sustained in Sizer v. Severs, 165 N. C., 500.

Upon a review of the whole record we find

No error.