Arrington v. Cont'l Life Ins. Co

• Decision Date: 16 March 1927
• Docket Number: (No. 82.)
• Citation: 137 S.E. 137
• Court: North Carolina Supreme Court
• Parties: ARRINGTON. v. CONTINENTAL LIFE INS. CO.

(193 N.C. 344)

137 S.E. 137

ARRINGTON.

v.CONTINENTAL LIFE INS. CO.

(No. 82.)

Supreme Court of North Carolina.

March 16, 1927.

Appeal from Superior Court, Halifax County; Ward, Judge.

Action by Rodney Arrington against the Continental Life Insurance Company. Judgment for plaintiff, and defendant appeals. No error.

Action by plaintiff, the beneficiary named therein, upon a policy of insurance issued by defendant upon the life of Pattie Arrington. The action was begun in the court of a justice of the peace of Halifax county, and was tried in the superior court of said county upon appeal from judgment rendered therein.

Issues submitted to the jury were answered as follows:

"(1) Was the policy sued on four weeks in arrears at the time of the $3 payment on March 23, 1926? Answer: Yes.

"(2) Did the defendant waive the alleged lapse of the policy by reason of the alleged nonpayment of the premium? Answer: Yes.

"(3) In what sum, if any, is the defendant indebted to the plaintiff? Answer: $185."

Prom judgment upon the foregoing verdict, defendant appealed to the Supreme Court.

Geo. C. Green, of Weldon, for appellant.

Travis & Travis, of Halifax, for appellee.

CONNOR, J. The policy sued on in this action was issued on October 17, 1921. According to its terms, a weekly premium of 25 cents was due and payable thereon on or before each Monday, during its continuance. It is provided in the policy that, upon the failure of the insured to pay a weekly premium within four Mondays from the date on which it was due, the policy shall become void; however, should the death of the insured occur when any premium is in arrears not exceeding four Mondays, defendant will nevertheless pay the policy, subject to its conditions.

The insured, Pattie Arrington, died on March 30, 1926. Plaintiff contended that on March 23, 1926, all premiums had been paid on the policy up to and including March 8, 1926; that on said date, insured, who resided in Halifax, N. C. sent by mail to defendant, at its home office in Richmond, Va., a cashier's check for $3 in payment of premiums then due and to become due thereafter up to and including April 12, 1926; that said check, was accepted by defendant as such payment and thereafter duly collected by defendant.

Defendant contended that the last premium paid prior to the death of insured was due on January 8, 1926. It admitted that it received the check for $3 on March 23, 1926, and thereafter collected same, but denied that it accepted the check or the proceeds of same in payment of premiums then due and to be come due thereafter. It contended that it held said sum of $3 in suspense in accordance with the provisions of the policy, and that, after the death of insured, it returned said sum to plaintiff. Plaintiff testified that he had declined to accept defendant's check for $3, as tendered to him.

The first issue having been answered by the jury in the affirmative, the policy had lapsed prior to the receipt of the check for $3, on March 23, 1926, and was therefore void at the date of the death of insured; plaintiff, the beneficiary named therein, can-hot recover on the policy unless defendant waived provisions of the policy relative to the time and manner in which the premiums should be paid.

Defendant excepted to the submission by the court of the second issue, and also to instructions' in the charge to the jury with respect to said issue. It contends that there was no evidence upon which the jury could answer the said issue in the affirmative, and that the burden upon said issue, being on plain...