CATHERINE H. HART v. WOODMEN OF THE WORLD.
(Filed 30 March, 1921.)
1. Insurance, Life — Conditions—Acceptance of Premiums — Waiver.
Where the insured afterwards engaged in a hazardous occupation forbidden by the policy unless upon notification given to a certain of its ■agents and the payment of an additional premium, and it appears that the agent had been notified of such change and the insured continued the policy in force upon the continued payment of the same premiums, the company itself waives the condition imposed by accepting the premiums, with notice, and may not declare the policy invalid and refuse to pay it upon the death of the insured.
2. Same — Principal and Agent.
It is not an alteration of the conditions expressed in a policy of life insurance by an officer or agent thereof when the company itself knowingly receives the premiums until the death of the insured, without objection until then, and thus waives the condition.
3. Same — Notice.
Where the insured has notified the agent of the insurer designated by its constitution and by-laws of a change to more hazardous occupation, it is sufficient. ' .
Appeal by defendant from Daniels, J., at October Term, 1920, of New HaNover.
Tbis was a civil action to recover on a contract of insurance issued by tbe defendant on tbe life of Lee Roy Hart for tbe benefit of bis mother, plaintiff herein.
Tbe defendant’s constitution and by-laws contain tbe following stipulations: (1) “If a member engage in any of tbe (hazardous) occupa*489tions mentioned in this section he shall within thirty days notify the clerk of his camp of such change of occupation, and while so engaged in such occupation shall pay on each assessment thirty cents for each one thousand dollars of his beneficiary certificate in addition to the regular rate. Any such member failing to notify the clerk and to make'such payments as above provided shall stand suspended, and his beneficiary certificate be null and void.” (2) “No officer, employee, or agent . . . shall have the power, right, or authority to waive any of the conditions upon which beneficiary certificates are issued, or to change, vary, or waive any of the provisions of the constitution and by-laws,” etc.
It was admitted that after the insured had received his beneficiary certificate he changed his occupation and became a brakeman on a freight train, which is denominated in the defendant’s by-laws as hazardous. The insured continued in this work for a period of more than a year, and until his death, during which time he paid the regular premiums on his certificate, but did not pay the additional 30 cents due by reason of the change in his employment.
Upon issues joined, the jury returned the following verdict:
“1. Did the plaintiffs intestate fail to give notice to the defendant within thirty days of the change of his occupation? Answer: No.’
“2. Was the plaintiff’s intestate able and willing to pay the increased premium required for such changed occupation? Answer: ‘Yes.’”
Judgment on the verdict in favor of the plaintiff for the amount of the certificate, less 30 cents per month for the time plaintiff’s intestate was employed in the said hazardous work. Defendant excepted and appealed.
E. K. Bryan for 'plaintiff.
Joseph W. Little and George H. Howell for defendant.
Peb CubiaM.
The following reasons are assigned by his Honor in support of the judgment entered in the Superior Court: “It further appearing to the court that after the plaintiff’s intestate changed his occupation he made to the defendant as many as twelve or more monthly payments of dues and assessments, and that the same was transmitted to the defendant by the clerk of the local camp, as required by the bylaws, and that after the death of the plaintiffs intestate, proofs of death and loss were duly made out and transmitted to the defendant, as required by the said policy of insurance, constitution and by-laws, and after the receipt of the same the defendant denied liability and refused to pay to the plaintiff, the beneficiary in the policy, the amount thereof, and that the defendant has failed and refused to return to 'the plaintiff’s intestate or his personal representative the premiums, dues and assess*490ments levied on account of said policy, and in filing its answer Herein made no offer to return tbe same, but Has kept tbe said premiums, dues,, and assessments wbicb were paid to it for tbe purpose of keeping in force tbe insurance contract sued on, and tbe court being of tbe opinion, on sucb facts, that tbe plaintiff is entitled to recover of tbe defendant r It is therefore ordered,” etc.
Tbe defendant takes tbe position that none of tbe provisions of its constitution and by-laws could be waived by any officer or agent, and that tbe failure of tbe insured to pay tbe additional thirty cents per month while engaged in tbe hazardous wox’k’ rendered bis certificate null and void. We do not think this position open to tbe defendant on tbe record. Tbe insured was required to notify tbe clerk of bis camp’ within thirty days of bis change of occupation, wbicb was done, according to tbe verdict of tbe jury. With knowledge of tbe changed and hazardous employment of tbe insured, tbe defendant continued to accept tbe dues and assessments at tbe old rate. This was not an unauthorized act of an officer or an agent, but tbe defendant’s own election, deliberately made. Sucb was a waiver of its right to insist upon a forfeiture of tbe policy. Bergeron v. Ins. Co., 111 N. C., 45.
It has been held with us, in a number of cases, that where an applicant knowingly misrepresents a material fact, and tbe company, with full knowledge of tbe circumstances and falsity of tbe statement, issues a policy, receives tbe premiums, and recognizes and continues to recognize tbe applicant as bolding a contract of insurance, it ordinarily will be estopped from insisting on a forfeiture of tbe policy that otherwise might ensue. Robinson v. Brotherhood, 170 N. C., 545; Grabbs v. Ins. Co., 125 N. C., 389.
It is not necessary to discuss tbe principle, announced in numerous decisions, that notice to tbe agent is notice to tbe company, for, in tbe instant case, tbe insured, when be changed bis occupation, was only required to notify tbe clerk of bis camp, wbicb be did, and this was notice to tbe defendant. Fishblate v. Fidelity Co., 140 N. C., 589. See, also, Carden v. Sons and Daughters of Liberty, 179 N. C., 399.
After a careful examination of tbe defendant’s exceptions and assignments of error, we are convinced that tbe case was tried according to law and precedent.
No error.