Coile v. Order of United Commercial Travelers of America, 161 N.C. 104 (1912)

Dec. 11, 1912 · Supreme Court of North Carolina
161 N.C. 104


(Filed 11 December, 1912.)

1. Insurance Orders — Assessments — Payments — Custom—Suspension.

A check sent in due time, properly addressed, on a bank where the maker had ample deposit to cover it, in payment of an assessment to an insurance order in jrarsuanee of a notice sent out by it to its members, and in accordance with the recognized and unrevoked custom of the insurance order, does not work a legal suspension of the member by reason of the remittance having failed to reach its proper destination in the required time..

2. Same — United States Mail.

An insurance order which by an unrevoked and recognized custom has received remittances by mail for assessments due it by its members, is estopped from insisting upon the forfeiture, under the policy contract, of the rights of a member who, in conformity with this custom, had mailed a good check to cover the assessment in time for it to have reached its proper destination by due course of the mails.

3. Negligence — Transactions by Mail — Custom—Revocation.

The regularity of the mail, a jrablic agency, is such that it is not negligence to rely upon it as a matter of transmission, especially \vhen it has been so used in the course of dealings between the parties, and there has been no express revocation.

4. Same — Insurance Orders — Assessments—Subsequent Payment— Reinstatement — Waiver—Estoppel.

The plaintiff duly mailed his good cheek to cover an assessment made against him and its other members by an insurance order, which not reaching its destination in time, worked a forfeiture as susjiension under the rules of the association. While the plaintiff had been declared suspended he received an accident covered by his policy, the subject of the action. Upon being notified of his suspension, and before the accident, he applied for reinstatement: Held, (1) the plaintiff, under the facts of this case, was not legally suspended; (2)'.his application for reinstatement was not such an acknowledgment of his being lawfully suspended as would estop him from recovery; (3) the subsequent collection of this assessment and other ones by the insurance order was a waiver by it of its right to suspend the plaintiff, if otherwise it could lawfully have done so.

*105Appeal by defendant from Long,, J., at April Term, 1912, of BUNCOMBE.

Civil action. Tbe following issue was submitted to tbe jury:

Is tbe Order of United Commercial Travelers of America, tbe defendant above named, indebted to "W". C. Coile, tbe plaintiff, as alleged in tbe complaint; and if so, in wbat amount? Amswer: Yes; $275; interest from 23 March, 1910.

From tbe judgment rendered, tbe defendant appealed.

Mark W. Brown, for plaintiff.

Bourne, Parker .<& Morrison for defendant.

BeowN, J.

Tbe defendant is a benefit society witb an insurance feature, of wbicb tbe plaintiff was a member. On 26 February, 1910, tbe plaintiff was suspended because of nonpayment of Assessment No. 99 in tbe sum of $2. On 23 March, 1910, tbe plaintiff met witb an accident, about wbicb there seems to be no controversy, and be brings this suit to recover tbe sum to wbicb he would be entitled under tbe terms of tbe accident policy.

Tbe plaintiff notified tbe defendant of tbe accident by mail on 1 April, 1910. Tbe defendant contends that at tbe time of tbe accident tbe plaintiff was suspended as a member of tbe order, and was not entitled to its benefits. This is tbe only point necessary to consider upon this appeal.

Tbe evidence tends to prove that Assessment No. 99 was levied 25 January, 1910, payable on or before 24 February, 1910. Notice was mailed to tbe plaintiff at bis address witb remittance blank and an addressed envelope was sent with tbe notice.

A part of tbe notice was in tbe following words: “This notice is mailed from tbe Supreme office, but your remittance must be made to tbe secretary of your council, as per inclosed envelope.”

Tbe testimony tends to prove that tbe plaintiff mailed bis check at Morristown, Tenn., for Assessment No. 99, on 22 or 23 February, 1910, in a properly addressed and stamped envelope and in ample time to reach tbe secretary at Asheville before tbe date when the said assessment was due. At tbe time *106tbe plaintiff bad funds in tbe bank witb wbicb to pay tbe check. Testimony tends to prove tbat it was a matter of custom for members of tbe order to pay tbeir dues witb checks duly mailed, and tbat they were accepted by tbe secretary in payment. Tbe check was not received by tbe secretary, and on 26 February, 1910, the plaintiff was suspended because of tbe nonpayment of Assessment No. 99.

Plaintiff did not know tbe check bad not been received until 16 March, 1910, when he saw Wiley, tbe chief officer of Ashe-ville Council, to whom be gave a duplicate check for said Assessment No. 99, and at tbe same time told him tbat be bad sent tbe original check from Morristown to tbe secretary.

Upon receipt of tbe duplicate check, Wiley said, “That makes you all right.” Tbe plaintiff was then in good health, and it was seven days before tbe accident. This assessment was paid by tbe plaintiff and retained by tbe defendant. After tbat tbe plaintiff was regularly assessed as a member for Assessment No. 100.

Upon tbe evidence we think bis Honor was correct in bolding tbat tbe plaintiff was entitled to recover, as be bad not been lawfully suspended as a member of tbe order. The defendant not only collected and retained tbe $2 for Assessment No. 99, for tbe nonpayment of wbicb be was suspended, but also retained tbe $2 for Assessment No. 100. Tbe defendant cannot keep tbe plaintiff’s money and escape liability. Matthews v. Insurance Co., 147 N. C., 339; Morgan v. Insurance Co., 42 Wash., 10.

It is true, tbe plaintiff applied for reinstatement prior to tbe accident, and it is contended tbat this was an acknowledgment tbat be bad been properly suspended. We do not think so. Tbe plaintiff applied because be bad been notified tbat be had been suspended, but be bad a right also to rely upon tbe fact tbat bis Assessment No. 99 bad been paid and tbat tbe company bad no right to suspend him.

Assuming tbat be bad been properly suspended, tbe defendant waived tbe same by collecting Assessment No. 99 and tbe subsequent Assessment No. 100, thereby treating tbe plaintiff in all respects as if be were a member in good standing. Morgan v. Insurance Co., supra.

*107A course of action on tbe part of tbe insurance company wbicb leads tbe party insured honestly to believe that by conforming thereto a forfeiture of bis policy will not be incurred, followed by due conformity on bis part, will estop tbe company from insisting upon tbe forfeiture, though it might be claimed under tbe express letter of tbe contract. Insurance Co. v. Eggleston, 96 U. S., 577; Insurance Co. v. Norton, 96 U. S., 234.

In sending bis check for Assessment 99, tbe plaintiff conformed to tbe custom recognized and adopted by the defendant. Tbe regularity of tbe mail, a public agency, is such that it is not negligence to rely upon it as a method of transmission, especially when it has been so used in tbe course of dealings between tbe parties and there has. been no express revocation. Hollowell v. Insurance Co., 126 N. C., 398.

Tbe judgment of the Superior Court is