Rhyne v. Jefferson Standard Life Insurance Co.

Stacy, C. J., after stating the case: The appeal presents the single question as to whether total disability - or insanity, which renders an assured incapable of giving notice of injury or disease, required by the terms of an insurance policy, can be said to have been reasonably within the minds of the parties at the time of the making of the contract, in the absence of unequivocal language dealing with such a situation. "We think not.

It is considered by a majority of the courts that a stipulation in a contract of insurance requiring the assured, after suffering injury or illness, to perform some act, such as furnishing to the company proof of the injury or disability within a specified time, ordinarily does not include cases where strict performance is -prevented by total incapacity of the assured to act in the matter, resulting from no fault of his own, and that performance within a reasonable time, either by the assured after regaining his senses or by his representative after discovering the policy, will suffice.

Guy v. U. S. Casualty Co., 151 N. C., 465 , 66 S. E., *719 437; Annotation: 54 A. L. R., 611; Notes: 27 L. R. A. (N. S.), 319; 18 L. R. A. (N. S.), 109; 14 L. R. A. (N. S.), 503; Ann. Cas., 1914D, 413; 14 Ann. Gas., 294; 14 R. C. L., 1333.

It may be conceded tbat tbe decisions are variant as to whether, under any circumstances in a case like the present, liability can survive failure to comply with the requirement of notice. The clear weight of authority, however, seems to be in favor of the plaintiff’s position. The reasons assigned by the different courts, in support of the majority view, are not altogether harmonious, and some perhaps are inconclusive. They are all considered in a learned opinion by Nortoni, J., in Roseberry v. Association, 142 Mo. App., 552 , 121 S.

W., 785 . But we are content to place our decision on the broad ground that, notwithstanding the literal meaning of the words used, unless clearly negatived, a stipulation in an insurance policy requiring notice, should be read with an exception reasonably saving the rights of the assured from forfeiture when, due to no fault of his own, he is totally incapacitated from acting in the matter. That which cannot fairly be said to have been in the minds of the parties, at the time of the making of the contract, should be held as excluded from its terms.

Comstock v. Fraternal Accident Association, 116 Wis., 382 , 93 N.

W., 22 . The primary purpose of all insurance is to insure, or to provide for indemnity, and it should be remembered that, if the letter killeth, the spirit giveth life.

Allgood v. Ins. Co., 186 N. C., 415 , 119 S. E., 561 ;

Grabbs v. Ins. Co., 125 N. C., 389 , 34 S. E., 503 .

If the majority view be correct, and we are disposed to think that it is, it follows that there was error in granting the defendant’s motion for judgment of nonsuit.

Eeversed.