Thomas Dunlap HUNTER
v.
JEFFERSON STANDARD LIFE INSURANCE COMPANY.
No. 96.
Supreme Court of North Carolina.
March 9, 1955.*80 Smith, Moore, Smith & Pope, Greensboro, and Harkins, Van Winkle, Walton & Buck, Asheville, for defendant-appellant.
Lee & Lee, Asheville, for plaintiff-appellee.
DENNY, Justice.
We deem it unnecessary to consider and discuss all the exceptions and assignments of error set forth in the record since, in our opinion, the question which is determinative of this appeal is as follows: Did the defendant by accepting premiums from the plaintiff covering a period of more than four years, after he became 55 years of age, waive the termination date for discontinuance of liability under the provisions of the total and permanent disability rider attached to his policy?
While there is some conflict in the authorities on this question, the greater weight of authority supports the view laid down in AnnotationInsurance113 A.L.R. 857 et seq., as follows: "It is well settled that conditions going to the coverage or scope of the policy, as distinguished from those furnishing a ground for forfeiture, may not be waived by implication from conduct or action, without an express agreement to that effect supported by a new consideration. This rule may be, as it often is, otherwise stated that the doctrine of waiver may not be applied to bring within the coverage of the policy risks not covered by its terms, or risks expressly excluded therefrom."
It is also said in 29 Am.Jur., Insurance, section 903, page 690, "The doctrines of implied waiver and of estoppel, based upon the conduct or action of the insurer, are not available to bring within the coverage of a policy risks not covered by its terms, or risks expressly excluded therefrom; and the application of the doctrine in this respect is, therefore, to be distinguished from the waiver of, or estoppel to deny, grounds of forfeiture."
We likewise find in 45 C.J.S., Insurance, § 674, p. 616, "As a general rule, the doctrines of waiver or estoppel can have a field of operation only when the subject matter is within the terms of the contract, and they cannot operate radically to change the terms of the policy so as to cover additional subject matter. Accordingly, it has been held by the weight of authority that waiver or estoppel cannot create a contract of insurance or so apply as to bring within the coverage of the policy property, or a loss or risk, which by the terms of the policy is expressly excepted or otherwise excluded."
In the case of McCabe v. Maryland Casualty Co., 209 N.C. 577, 183 S.E. 743, 744, a policy of insurance was issued to Jos. T. McCabe on 25th July, 1929, at which time the insured was over 65 years of age. The policy contained the following provision: "`20. Age Limits of Policy: The insurance under this policy shall not cover any person under the age of 18 years nor over the age of 65 years. Any premium paid to the company for any period not covered by this policy will be returned upon request.'"
The jury found that the defendant had waived the age limitation, but upon appeal to this Court we held otherwise. Stacy, *81 C. J., speaking for the Court, said: "* * the suit is upon the policy as written. Burton v. [Life & Casualty] Ins. Co., 198 N.C. 498, 152 S.E. 396. The stipulation in question is not a condition working a forfeiture, which may be waived, Mahler v. [Milwaukee Mechanics'] Ins. Co., 205 N.C. 692, 172 S.E. 204; Horton v. [Home] Ins. Co., 122 N.C. 498, 29 S.E. 944, but a limitation upon liability. Foscue v. [Greensboro Mutual Life] Ins. Co., 196 N.C. 139, 144 S.E. 689; City of Lexington v. [Home] Indemnity Co., 207 N.C. 774, 178 S.E. 547; Spruill v. [Northwestern Mut. Life] Ins. Co., 120 N.C. 141, 27 S.E. 39."
The above view is in accord with numerous decisions from other jurisdictions, among them being Pothier v. New Amsterdam Cas. Co., 4 Cir., 192 F.2d 425, 31 A.L.R.2d 295; Bankers Life Co. of Des Moines, Iowa v. Sone, 5 Cir., 86 F.2d 780; Barnett v. Travelers' Ins. Co., 8 Cir., 32 F.2d 479; Kinard v. Mutual Benefit Health & Accident Ass'n D.C., 108 F.Supp. 780; Metropolitan Life Ins. Co. v. Stagg, 215 Ark. 456, 221 S.W.2d 29; Conner v. Union Auto. Ins. Co., 122 Cal.App. 105, 9 P.2d 863; Railey v. United Life & Accident Ins. Co., 26 Ga.App. 269, 106 S.E. 203; Pierce v. Homesteaders Life Ass'n, 223 Iowa 211, 272 N.W. 543; Ridgeway v. Modern Woodmen, 98 Kan. 240, 157 P. 1191, L.R.A.1917A, 1062; Foote Lumber Co. v. Svea Fire & Life Ins. Co., 179 La. 779, 155 So. 22; Prudential Ins. Co. of America v. Brookman, 167 Md. 616, 175 A. 838; Palumbo v. Metropolitan Life Ins. Co., 293 Mass. 35, 199 N.E. 335; Henne v. Glens Falls Ins. Co., 245 Mich. 378, 222 N.W. 731; Smith v. Aetna Life Ins. Co., 58 Ohio App. 412, 16 N.E.2d 608; Owens v. Metropolitan Life Ins. Co., 178 S.C. 105, 182 S.E. 322; McLain v. American Glanzstoff Corp., 166 Tenn. 1, 57 S.W.2d 554; Powell v. American Casualty & Life Co., Tex.Civ.App., 250 S.W.2d 744; Carew, Shaw & Bernasconi v. General Casualty Co., 189 Wash. 329, 65 P.2d 689, and Two Rivers Dredge & Dock Co. v. Maryland Casualty Co., 168 Wis. 96, 169 N.W. 291.
Each of the decisions of this Court cited and relied upon by the appellee, except the case of Pearson v. Newt Pearson, Inc., 222 N.C. 69, 21 S.E.2d 879 which is not controlling on the question before us, involved the question of forfeiture which we have repeatedly held may be waived.
While the plaintiff is entitled to the return of the premiums paid for disability coverage since 2nd October, 1946, on his pleadings as cast, the motion for judgment as of nonsuit, interposed by the defendant in the trial below, should have been sustained.
The judgment of the court below is
Reversed.
BARNHILL, C. J., and WINBORNE, JOHNSON and DEVIN, JJ., took no part in the consideration or decision of this case.