Rocky Mount Sa v. & Trust Co

• Decision Date: 01 March 1933
• Docket Number: No. 51.,51.
• Citation: 167 S.E. 854,204 N.C. 283
• Court: North Carolina Supreme Court
• Parties: ROCKY MOUNT SAV. & TRUST CO. et al. v. ÆTNA LIFE INS. CO.

167 S.E. 854

204 N.C. 283

ROCKY MOUNT SAV. & TRUST CO. et al.

v.ÆTNA LIFE INS. CO.

No. 51.

Supreme Court of North Carolina.

March 1, 1933.

Appeal from Superior Court, Nash County; Frizzelle, Judge.

Action by the Rocky Mount Savings & Trust Company and another, administrators of the estate of T. N. Ross, deceased, against the Ætna Life Insurance Company. Judgment for plaintiffs, and defendant appeals.

No error.

This cause has heretofore been considered by this court in two appeals, the first reported in 199 N. C. 465, 154 S. E. 743, and the second reported in 201 N. C. 552, 160 S. E. 831, in which the facts are set forth in detail.

One issue was submitted to the jury, as follows: "Did the defendant, Ætna Life Insurance Company, waive the forfeiture of the policy of insurance No. N-515135?" The jury answered the issue, "Yes, " and there was judgment upon the verdict.

The trial judge instructed the jury as follows: (a) "If you believe the defendant's evidence, you will answer the issue 'No.'" (b) "If you find the facts to be as testified by the defendant's witness, you will answer the issue 'No.''

From judgment entered, the defendant appealed.

Murray Allen, of Raleigh, for appellant.

Cooley & Bone and Vaughan & Yarborough, all of Nashville, for appellee.

BROGDEN, Justice.

On November 1, 1927, the policy of life insurance of the deceased, T. N. Ross, issued by the defendant company, lapsed, subject to the contract right of the insured to apply for reinstatement as provided in the policy. On November 7, 1927, the general agent of the defendant at Raleigh wrote to the insured, calling his attention to the fact that he had a right to submit a request for reinstatement of his policy, and stated, "If you are not prepared to pay the full amount of the premium, $26.72, we will be glad to accept a partial payment of $10.00 and extend the balance of the premium, if you will sign the enclosed note, partially filled out." On November 8, the insured signed the application for reinstatement, declaring in effect that he was in good health so far as he knew, and inclosed therewith a check for $10. On November 10, the general agent acknowledged receipt of the check and the application for reinstatement and forwarded the same to the home office of the defendant at Hartford, Conn., where it was received on November 18. On November 21, the home office referred the application for reinstatement to the medical department. The medical department required further physical examination. On November 22, the home office notified the general agent at Raleigh that a complete medical examination of the insured was necessary before passing upon the application for reinstatement. On November 26, Upshaw, the general agent at Raleigh, advised Bartholomew, the local agent in Nashville, N. C, that a complete medical examination of the insured was required, "by one of the company's regular examiners." The letter further stated, "If it is not convenient for you to attend to this matter for us, kindly advise us and we will be glad to write to the insured direct." The insured was then living in Nashville, and the evidence disclosed that the insured "did not receive any request from Mr. Upshaw or the Ætna Life Insurance Company, or any of its representatives for a physical examination." The wife of the insured testified that he "went to work every day. He was taken sick on Monday before (Christmas, December, 20, 1927), and was carried to the hospital on Thursday. Mr. Ross did not have any illness of any kind from the time he had an attack of gastritis or other illness in July up until the time he was taken sick in December. He did not take any medicine of any kind...