Sexton v. Greensboro Life Insurance

76 S.E. 535, 160 N.C. 597, 1912 N.C. LEXIS 215

• Court: Supreme Court of North Carolina
• Decided: December 4, 1912
• Status: Published

Opinion

OlaRK, C. J.

Tbis is an action upon a life insurance policy, and was before tbis Court, 157 N. C., 142. In that ease, Brown, J., says: “Tbe controversy is over tbe payment of tbe premium due 1 August, 1909, of $34.57. If that was paid, tbe plaintiff is entitled to recover. If it was not paid, or payment waived, plaintiff is not entitled to recover.”

On 13 September, 1909, tbe intestate paid cash $16.40 and gave a note due 1 November, for $18.17, which was never paid. After tbe death of plaintiff’s intestate tbis note was in tbe possession of tbe defendant. It expressed on tbe face of it tbe agreement that if tbe note was not paid at maturity, tbe policy was void. At tbe former trial, upon notice, tbe defendant produced in court tbis note and tbe attached receipt for premium due 1 August, 1909, and they were put in evidence by tbe plaintiff. On appeal, tbe Court held that this was error. On tbis trial said note and tbe attached receipt were put in evidence by tbe defendant. Tbe plaintiff contends that as it was held error on tbe former appeal for her to put tbe note and receipt in evidence, it must be error now for defendant to put them in evidence. Tbis by no means follows. On tbe former trial they were put in evidence by tbe plaintiff as proof of payment of tbe premium. Tbis Court said: “Had tbe receipt been in tbe plaintiff’s possession, it would be very strong evidence of payment; but as it was in defendant’s possession and bad never been delivered, it was no evidence of payment, and tbe introduction of it as evidence by the plaintiff under tbe circumstances was inadmissi ble.” On tins trial tbe note and receipt were introduced by tbe defendant for tbe opposite purpose. On bebalf of defendant tbey were competent as corroborative of tbe proof tbat tbey bad never left the defendant’s possession and tending to sbow tbat there bad been neither payment nor waiver of tbe payment of tbe premium in question.

Tbe only other assignment of error is to tbe nonsuit directed in this ease. We have stated above tbe substance of tbe controversy as set out by Brown, J., in tbe opinion in tbat case. Upon tbat opinion, it was clear tbat on tbe evidence then before tbe Court tbe plaintiff was not entitled to recover.

In the opinion in the former case it was said: “There is no evidence that the defendant accepted the note as a payment for the premium. It is merely an extension of the time of payment. In express terms the note on its face declares the policies void if the note is not paid when due. This note is similar to the language construed in Ferebee v. Insurance Co., 68 N. C., 11.” In 3 Cooley Ins., 2269, and cases cited, and Pitt v. Insurance Co., 100 Mass., 500, it is said tbat when a policy or a note contains “a stipulation to this effect, a failure to pay at maturity a note given for a premium will work a forfeiture of insurance.” On this trial, there was no new testimony adduced tending to sbow payment of premium.

Tbe plaintiff contends tbat as it puts tbe policy in evidence with proof of tbe death of tbe assured and tbe letter of 14 September, 1909, from tbe company to tbe deceased, which stated tbat it bad received tbe remittance in settlement of tbe policy, tbat this made out a prima, facie case, and tbat tbe words in tbe letter, “Tour official receipt has been attached to your note,” called for explanation by evidence from tbe defendant, and, therefore, tbe case should have gone to tbe jury. Tbe court - refused to grant a nonsuit at close of plaintiff’s evidence. Tbe defendant put in evidence tbe following letter, which it obtained from tbe plaintiff upon due notice to produce tbe same, dated 30 November, 1909: “Your note of $18.17 and interest, total $18.55, has been returned to us by tbe bank, marked ‘No attention.’ In order to keep Policy No. 724 in force, it will be necessary for you to let us have check for above amount by return mail, together with the inclosed informal health certificate for the approval of the medical department.” This was written evidence showing that the premium note had not been paid, and that whatever might have been the effect, as a waiver, of presenting the note for payment, the action of defendant on that date negatived any waiver after that date, unless the deceased should make payment. There was no evidence contradictory of this, and the court properly sustained a motion to nonsuit, for upon the evidence, taken in the most favorable aspect, the plaintiff could not recover.

It is true, the plaintiff claims that under the automatic extension feature of the policy, there having been payment of three annual premiums, the plaintiff was entitled to an extension to the amount marked on the policy. The policy, which was in evidence, provided that the “nonforfeiture value on the margin of this page shows the several guaranteed values of this policy corresponding to the number of years for which annual premiums have been paid, and in the event >of any indebtedness against this policy these values will be reduced proportionately.” This table shows that where three annual premiums had been paid, as in this case, the loan value was $60, which would have entitled the insured to three years and one month’s extension. But it appeared in the evidence of the plaintiff that the insured had borrowed said $60 from the company, which was unpaid, and therefore, upon the plaintiff’s evidence, the insured was entitled to no extension.

Affirmed.