Green v. Patriotic Order Sons of America, Inc.

87 S.E.2d 14 (1955) 242 N.C. 78

Annie GREEN
v.
PATRIOTIC ORDER SONS OF AMERICA, Inc.; Funeral Benefit Association of the State Camp of North Carolina, Patriotic Order Sons of America, Inc.

No. 381.

Supreme Court of North Carolina.

April 13, 1955.

John Hugh Williams, Concord, for plaintiff appellant.

Hugh G. Mitchell, Statesville, Hartsell & Hartsell, William L. Mills, Jr., Concord, for defendant appellee.

WINBORNE, Justice.

Upon the stipulated facts of the case in hand, as shown in the record on appeal, and as hereinabove set forth, two questions arise for decision on this appeal: (1) Was Green "over the age of fifty years" on 20 June, 1944, the date on which he was reenrolled as a member of a Funeral Benefit Association within the meaning of the bylaws of the association?

(2) If so, did the Funeral Benefit Association waive such age requirement?

The first question merits an affirmative answer, and the second a negative one.

In connection with the first question, admittedly on 20 June, 1944, Green had passed his fiftieth birthday by four months and eight days. But appellant contends that Green was "not over fifty years of age" until he reached his fifty-first birthday. On the other hand, appellees contend that Green was "over fifty years of age" after he had passed his fiftieth birthday.

Appellant cites in support of her position two cases decided by the Supreme Court of Oklahoma, Watson v. Loyal Union Life Association, 143 Okl. 4, 286 P. 888, and Wilson v. Mid-Continent Life Ins. Co., 159 Okl. 191, 14 P.2d 945, 84 A.L.R. 386, and Annotations 84 A.L.R. 389, also 67 C.J.S. p. 541, 29 Am.Jur. 454, Insurance, § 558.

Appellees cite in support of their position the case of Bay Trust Co. v. Agricultural Life Ins. Co., 279 Mich. 248, 271 N.W. 749.

And upon examination of the annotations and texts above cited, it appears that the two Oklahoma cases and Allen v. Baird, 208 Ark. 975, 188 S.W.2d 505, are the bases for the text that "it has been held generally that a person is not over a specified age in years until he has passed his birthday next beyond the age specified," [67 C.J.S. p. 541] as contended for by appellant. The principle so stated is not convincing.

Moreover, the Michigan case, supra, is the basis for the text that "it has been stated that a person is over the age of sixty years when he has lived in excess of sixty calendar years" as contended by appellees. This principle is consonant with the views of this Court.

However neither party cites a case, nor has this Court found any in this State, treating of the particular question thus raised.

Statutes of a kindred nature, in this State, and decisions of this Court pertaining to related matters, lend light to the subject, and point the way to a reasonable and satisfactory conclusion.

In this connection it is appropriate to note that the words "over" and "years" in the phrase "not over fifty years of age" have ordinary meaning, and are in common use. "Over" means "beyond or above, or in excess of a certain quantity or limit; as, boys of twelve years and over." 67 C.J.S. p. 540.

And in respect to the word "year" it is noted that our General Assembly has adopted appropriate rules for construction of statutes, among which is G.S. § 12-3, that "In the construction of all statutes the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the General Assembly, or repugnant to the context of the same statute, that is to say * * *

"3. * * * The word ``month' shall be construed to mean a calendar month, unless otherwise expressed; and the word ``year,' a calendar year, unless otherwise expressed; * * *."

And this Court has held that a calendar month contains the number of days asscribed to it in the calendar, varying from twenty-eight days to thirty-one. State v. Upchurch, 72 N.C. 146. The Court has also held that the word "year" will be interpreted to mean twelve calendar months. Muse v. London Assurance Corp., 108 N.C. 240, 13 S.E. 94. See also Shaffner v. Lipinsky, 194 N.C. 1, 138 S.E. 418.

Moreover it is significant that the General Assembly of North Carolina has enacted legislation pertaining to fraternal benefit societies, Article 28, Subchapter VII, Chapter 58, of General Statutes, in Section G.S. § 58-279 of which it is declared that "Any society may admit to beneficial membership any person not less than sixteen and not more than sixty years * * *."

In interpreting this statute, manifestly the definition of the word "year" as set out in the statute, G.S. § 12-3(3) would be appropriate. Likewise in interpreting a by-law of a funeral benefit association, the word "year" should have like meaning.

Therefore this Court holds that when a person reaches his fiftieth birthday he would have lived fifty calendar years, of twelve calendar months each. Hence after his fiftieth birthday he would be over fifty years of age.

Now, as to the second question. "Waiver is the intentional relinquishment of a known right. It is usually a question of intent; hence knowledge of the right and an intent to waive it must be made plainly to appear. * * * ``There can be no waiver unless so intended by one party and so understood by the other, or unless one party has so acted as to mislead the other.' 2 Herman on Estoppel, § 825." Brady v. Funeral Benefit Ass'n, 205 N.C. 5, 169 S.E. 823, 824.

In the light of the by-laws Article VI, Sec. 3, Article XII, Section 2, and Article XVII, Section 1, hereinabove quoted, it is clear that the Funeral Benefit Association has not waived the age requirement as to Green.

For reasons stated the judgment below is hereby

Affirmed.

BARNHILL, C. J., took no part in the consideration or decision of this case.