Abrams v. Metropolitan Life Insurance

223 N.C. 500

Opinion

DeNNY, J.

The plaintiff is seeking a recovery under the terms of the policy referred to herein. ' He alleges a tender of the premium in controversy while the policy was in force and that the defendant refused to accept the tender. Plaintiff testified in support of his allegations. The defendant denied tender. The issue submitted on this question was answered by the jury in favor of the defendant.

Ve find no error in the trial below which would warrant a new trial on the question of tender and the issue must stand. Pinnix v. Griffin, 221 N. C., 348, 20 S. E. (2d), 366.

However, the plaintiff also alleges wrongful cancellation of the policy,, which constitutes a cause of action for breach of contract and one which is not inconsistent with the cause of action based on the contract. The defendant admits the cancellation of the policy. Lykes & Co. v. Grove, 201 N. C., 254, 159 S. E., 350; Bare v. Thacker, 190 N. C., 499, 130 S. E., 164; Irvin v. Harris, 182 N. C., 647, 109 S. E., 867; Fleming v. Congleton, 177 N. C., 186, 98 S. E., 449; Pritchard v. Williams, 175 N. C., 319, 95 S. E., 570. It was error to refuse to submit an issue on the question as to whether or not the policy of insurance was wrongfully canceled. Garland v. Jefferson Standard Life Ins. Co., 179 N. C., 67, 101 S. E., 616; C. S., 6465.

We deem it unnecessary to discuss the other exceptions, since they may not arise upon another trial.

For the reasons stated, there must be a

Partial new trial.