Jones v. Provident Savings Life Ass'n of New York

Supreme Court of North Carolina

Jones v. Provident Savings Life Ass'n of New York

64 S.E. 166, 150 N.C. 377, 1909 N.C. LEXIS 60

DecidedApril 1, 1909

StatusPublished

This text of 64 S.E. 166 (Jones v. Provident Savings Life Ass'n of New York) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jones v. Provident Savings Life Ass'n of New York, 64 S.E. 166, 150 N.C. 377, 1909 N.C. LEXIS 60 (N.C. 1909).

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Opinion

Hoke, J.,

after stating the case: The construction and interpretation of this contract of insurance, and the effect of the stipulations therein, and also of the verdict rendered by the jury, were' all involved and presented On the former appeal in the cause, and after full and careful consideration the Court, being of opinion with -defendant, directed that judgment be entered in its favor. This opinion having been certified down, it became the duty of the judge below to comply with the order made, and there is no error to plaintiffs’ prejudice in the judgment as entered. Dobson v. Simonton, 100 N. C., 56; Calvert v. Peebles, 82 N. C., 334. And we are of opinion that there is nothing in the scope of the original complaint, nor in the agreement made in the cause, to require or justify the Court in opening up the controversy, as desired by the plaintiff.

The action was instituted and tried on the theory that the amount of the premiums to be assessed against the holder were fixed and expressed at the attained age of sixty-five years, and could in no event ever exceed that sum. It. was further contended that, if this were not true, the plaintiff had been induced to enter into the contract under false and fraudulent assurances that this was its-purport, and judgment was demanded in the one case> for all premiums wrongfully collected in excess of the stipulated amount, or, if this was not the correct interpretation of the contract on its face, and fraud was established by the verdict, that the contract relation be severed and,all premiums *382 collected should be returned. Defendant controverted both positions taken by plaintiffs, and claimed, further, that if recovery was had by plaintiff the cost and value of the insurance which the company had carried on the life of W. O. Jones should be allowed and deducted from any recovery plaintiff should make. Issues were framed determinative of the substantial issues arising on the pleadings as understood by both parties, as no objection to the issues from either appear in the record, and the jury have rendered a verdict against the j)laintiffs on their allegations of fraud, and the court has held against their legal position as to the force and meaning of the stipulations of the contract, and the agreement relied upon by plaintiffs was never intended to have the effect contended for by the plaintiffs. This agreement was entered into between the parties .in April, 1907, on condition that defendant should be granted a continuance. Its principal intent and purport was to relieve the plaintiffs of the payment of further premiums pending the litigation, and to-prevent the forfeiture of the policy by reason of nonpayment. This effect has been allowed it in the judgment as entered by the court, and the intimations in the agreement, looking to a further accounting between the parties, were evidently made in view of further adjustment to be required in case the plaintiffs should succeed. This was the view of the agreement entertained by the judge below, the same who presided at the trial of the cause, as indicated by the judgment concerning it, entered and signed by him at October Term, 1907, as follows:

“CONSENT ORDER.

“North Carolina — Wake County.

Superior Court, October Term, 1907.

“Jones et al. v. Provident Life Assurance Society of New York.

“In this case it is agreed that, if judgment be given finally for plaintiffs, defendant shall be entitled to credits on said judgment for all unpaid premiums, with interest from date when such premiums should have been paid.

“This order is made in furtherance of an agreement of counsel that premiums falling due after 1 February, 1907, should *383 not be paid until the final termination, of the suit, and then at the rates which the court should hold the legal rate of premiums.

“B. E. LoNG,

“November 6, 1907. , Judge Presiding.”

And, in our opinion, it-cannot be maintained that a collateral agreement of this character should have the force and effect to change the scope of the action and open up questions which involve an inquiry into the scheme and plan of defendant’s organization and an investigation's to the regulation and management of the internal affairs of the company. Such a result is not within the scope of the action as originally constituted, was never contemplated by the parties/ and is not a just or correct interpretation of the' agreement relied upon.

There is no .error., and the judgment below will be

Affirmed.

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Hoke, J.,

after stating the case: The construction and interpretation of this contract of insurance, and the effect of the stipulations therein, and also of the verdict rendered by the jury, were' all involved and presented On the former appeal in the cause, and after full and careful consideration the Court, being of opinion with -defendant, directed that judgment be entered in its favor. This opinion having been certified down, it became the duty of the judge below to comply with the order made, and there is no error to plaintiffs’ prejudice in the judgment as entered. Dobson v. Simonton, 100 N. C., 56; Calvert v. Peebles, 82 N. C., 334. And we are of opinion that there is nothing in the scope of the original complaint, nor in the agreement made in the cause, to require or justify the Court in opening up the controversy, as desired by the plaintiff.

The action was instituted and tried on the theory that the amount of the premiums to be assessed against the holder were fixed and expressed at the attained age of sixty-five years, and could in no event ever exceed that sum. It. was further contended that, if this were not true, the plaintiff had been induced to enter into the contract under false and fraudulent assurances that this was its-purport, and judgment was demanded in the one case> for all premiums wrongfully collected in excess of the stipulated amount, or, if this was not the correct interpretation of the contract on its face, and fraud was established by the verdict, that the contract relation be severed and,all premiums *382 collected should be returned. Defendant controverted both positions taken by plaintiffs, and claimed, further, that if recovery was had by plaintiff the cost and value of the insurance which the company had carried on the life of W. O. Jones should be allowed and deducted from any recovery plaintiff should make. Issues were framed determinative of the substantial issues arising on the pleadings as understood by both parties, as no objection to the issues from either appear in the record, and the jury have rendered a verdict against the j)laintiffs on their allegations of fraud, and the court has held against their legal position as to the force and meaning of the stipulations of the contract, and the agreement relied upon by plaintiffs was never intended to have the effect contended for by the plaintiffs. This agreement was entered into between the parties .in April, 1907, on condition that defendant should be granted a continuance. Its principal intent and purport was to relieve the plaintiffs of the payment of further premiums pending the litigation, and to-prevent the forfeiture of the policy by reason of nonpayment. This effect has been allowed it in the judgment as entered by the court, and the intimations in the agreement, looking to a further accounting between the parties, were evidently made in view of further adjustment to be required in case the plaintiffs should succeed. This was the view of the agreement entertained by the judge below, the same who presided at the trial of the cause, as indicated by the judgment concerning it, entered and signed by him at October Term, 1907, as follows:

“CONSENT ORDER.

“North Carolina — Wake County.

Superior Court, October Term, 1907.

“Jones et al. v. Provident Life Assurance Society of New York.

“In this case it is agreed that, if judgment be given finally for plaintiffs, defendant shall be entitled to credits on said judgment for all unpaid premiums, with interest from date when such premiums should have been paid.

“This order is made in furtherance of an agreement of counsel that premiums falling due after 1 February, 1907, should *383 not be paid until the final termination, of the suit, and then at the rates which the court should hold the legal rate of premiums.

“B. E. LoNG,

“November 6, 1907. , Judge Presiding.”

And, in our opinion, it-cannot be maintained that a collateral agreement of this character should have the force and effect to change the scope of the action and open up questions which involve an inquiry into the scheme and plan of defendant’s organization and an investigation's to the regulation and management of the internal affairs of the company. Such a result is not within the scope of the action as originally constituted, was never contemplated by the parties/ and is not a just or correct interpretation of the' agreement relied upon.

There is no .error., and the judgment below will be

Affirmed.

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64 S.E. 166, 150 N.C. 377, 1909 N.C. LEXIS 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-provident-savings-life-assn-of-new-york-nc-1909.

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