McCabe v. Maryland Casualty Co.

Stacy, C. J.

Without going into the “mix-up,” as indicated by the third issue, whereby the insured was confused with his 36-year-old son in the application, suffice it to say the policy in suit contains 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.”

With this provision in the face of the policy, plaintiff’s recovery is limited to a return of the premiums paid while the insured was over the age of 65 years.

Reinhardt v. Ins. Co., 201 N. C., 785 , 161 S. E., 528 ;

Gilmore v. Ins. Co., 199 N. C., 632 , 155 S. E., 566 .

The fifth issue undertakes to find that the defendant had waived paragraph 20 of its policy, but the suit is upon the policy as written.

Burton v. 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. Ins. Co., 205 N. C., 692 , 172 S. E., 204 ;

Horton v. Ins. Co., 122 N. C., 498 , 29 S. E., 944 , but a limitation upon liability.

Foscue v. Ins. Co., 196 N. C., 139 , 144 S. E., 689 ;

Lexington v. Indemnity Co., 207 N. C., 774 , 178 S. E., 547 ;

Spruill v. Ins. Co., 120 N. C., 141 , 27 S. E., 39 . Its purpose was to protect the defendant against the heedlessness of youth and the debility of age.

McCain v. Ins. Co., 190 N. C., 549 , 130 S. E., 186 ;

Moore v. Cas. Co., 207 N. C., 433 , 177 S. E., 406 . Comnpare Walls v. Assurance Corp., 206 N. C., 903 , 173 S. E., 23 ;

Welch v. Ins. Co., 196 N. C., 546 , 146 S. E., 216 .

New trial.

Devin, J., took no part in the consideration dr decision of this case.