Ray v. Sec. Trust & Life Ins. Co

• Decision Date: 13 March 1900
• Citation: 35 S.E. 246,126 N.C. 166
• Court: North Carolina Supreme Court
• Parties: RAY v. SECURITY TRUST & LIFE INS. CO.

35 S.E. 246

126 N.C. 166

RAY

v.SECURITY TRUST & LIFE INS. CO.

Supreme Court of North Carolina.

March 13, 1900.

INSURANCE—APPLICATION —POLICY—REFUSAL TO ISSUE—MONEY HAD AND RECEIVED.

1. Where plaintiff's intestate signed an application for insurance, which provided that no insurance should be in force until delivery of the policy and payment of the first premium, and paid a sum less than the actual premium.through mistake of herself and the company's agent, and the company thereafter informed her that her application had been approved, and that a policy had been issued, but recalled the policy in the hands of its agent before delivery, there was no binding contract of Insurance which plaintiff could enforce.

2. Where plaintiff sued an insurance company for breach of an alleged agreement to insure, she was not entitled in that action to recover money paid on her application as money had and received.

Appeal from superior court, Vance county; Hoke, Judge.

Action by W. L. Ray against the Security Trust & Life Insurance Company for breach of contract to Insure. From a judgment in favor of plaintiff, defendant appeals. Reversed.

T. T. Hicks, for appellant.

A C. Zollicoffer, for appellee.

FAIRCLOTH, C. J. On November 18, 1898, the plaintiff's intestate made application to the defendant company for a life insurance policy, with the usual questions, answers, conditions, medical examination, and certificate, etc. On January 3, 1899, the president of the company addressed the applicant as follows: "I have the pleasure of informing that your application to this company for Insurance has been approved, and that a policy is being issued to-day, which will reach you in due time through the agent who forwarded the application." It appeared that the defendant had a general agent at Richmond, Va., and another agent at Oxford, N. 0., through whom the application was made; the principal office of the defendant being In Philadelphia, Pa. It also appears that the annual premium on $1,000 (amount applied for) was $33.80, and that the Oxford agent received $23.40 thereon; he and the applicant supposing that was the amount to be paid annually. There was some correspondence between the agents and the company. On January 18th, the general agent wrote to the Oxford agent for advice, etc., and on January 19th the company wrote: "If not placed, recall policy Corinne M. Ray at once." On January 17th, Mrs. Ray, the applicant, wrote to the company: "I wrote Mr. Marable, at Oxford, N. C., a few days ago, about the policy, but as yet have heard nothing from him. It seems...