Churchill v. Brooklyn Life Ins. Co.

• Decision Date: 28 February 1883
• Citation: 88 N.C. 205
• Court: North Carolina Supreme Court
• Parties: W. L. CHURCHILL v. BROOKLYN LIFE INSURANCE COMPANY.

88 N.C. 205

W. L. CHURCHILL

v.BROOKLYN LIFE INSURANCE COMPANY.

Supreme Court of North Carolina.

February Term, 1883.

MOTION to set aside a judgment heard at Fall Term, 1882, of GREENE Superior Court, before MacRae, J.

An action was brought by the plaintiff against the defendant company, a corporation duly organized under the laws of the state of New York, and the summons, returnable to fall term, 1882, was regularly served on June 28, 1882, upon W. W. Smith, the company's general agent in this state, and the person upon whom service of process may be made under the act of 1877, ch. 157, § 3.

At fall term, on the first Monday in October, 1882, the plaintiff filed his complaint, in which he alleged that on April 29, 1871, he obtained a life policy from the defendant for fifteen hundred dollars, and was to pay therefor, by the stipulations of said policy, a semi-annual premium of $15.96 during the life-time of the plaintiff; that he has regularly made such semi-annual payments until the 29th day of April, 1882, inclusive, making in all twenty-two payments, and amounting to the sum of $350.12, and that the same were made to said general agent; that about the 28th of April, 1882, he paid to said agent the semi-annual premium due on the day following, who acknowledged its receipt, but wrote that he did not have the renewal receipt of the plaintiff, but had written to the company for it, and would forward it as soon as received; that on the 5th of May, 1882, said agent wrote to the plaintiff informing him that the company had written to him (Smith) that it had notified the plaintiff to pay his premium at the “Home Office” in New York, and had returned to him (Smith) the sum of $15.96, the amount of premium due on the 29th of April, saying that the said agent was not authorized to receive it. The plaintiff further alleged that no such notification from the company was received by him prior to said 29th of April, that the premium must be paid at the Home Office; but as soon as the notification came to him, to-wit, on the 15th of May, 1882, he remitted to the company, at the Home Office, the premium due on the said 29th of April, and the defendant, declining to accept the same, returned the amount to the plaintiff and refused to renew the policy, until the company had specific and satisfactory information of the habits of the plaintiff. Whereupon the plaintiff demands judgment for the amount of the premiums which he had paid.

The defendant failed to answer the complaint at said fall term, and judgment by default was rendered in favor of the plaintiff. Between that and the next term, the defendant moved to set aside the judgment on the ground of excusable neglect under section 133 of the Code, and the excuse given was, that immediately after the service of summons on Smith, the general agent, the defendant wrote to him that as soon as he received the complaint to send it to the defendant and further instructions would then...