Ross v. N.Y. Life Ins. Co
| Decision Date | 11 April 1899 |
| Citation | 32 S.E. 733,124 N.C. 395 |
| Court | North Carolina Supreme Court |
| Parties | ROSS. v. NEW YORK LIFE INS. CO. |
Contract of Insurance—Retention of Application.
An application for a policy, providing that the insurer should incur no liability thereon until its receipt and approval at the home office and the issuance of a policy thereon, and until the actual payment of the premium during the applicant's lifetime and while he was in good health, was forwarded by the insurer's agent to the home office, with a note for the first premium; and, without either accepting the application or issuing a policy thereon, the company retained the application and note for over two months, when the applicant died, the premium note not being due at the time. Held, that there was no contract of insurance.
Appeal from superior court, Randolph county; Allen, Judge.
Action by R. R. Ross, administrator, against the New York Life Insurance Company. There was a judgment for defendant, and plaintiff appeals. Affirmed.
Jones & Tillett, for appellee.
FAIRCLOTH, C. J. Plaintiff's intestate, on September 27, 1895, made application for life insurance with defendant's agent, and gave his note for the first payment The application and note, which was accepted as cash, were forwarded to the home office. The application contained this statement: "That the company shall incur no liability under this application until it has been received, approved, the policy issued thereon by the company at the home office, and the premium has been actually paid to and accepted by the company or its authorized agent during my lifetime and good health." Plaintiff's intestate became sick with fever in November, and died on December 15, 1895. The application was not accepted, no policy issued, nor was the first payment made. On the next January, the defendant tendered the note to plaintiff, who refused to receive it, and, after its maturity, demanded the payment of the policy. When plaintiff rested, his honor, on motion, held that plaintiff could not recover, and ordered a nonsuit. There was no error. As the facts do not show a contract, and as the facts were undisputed, there was nothing for the jury. The minds of the intestate and defendant never met. Ormond v. Association, 96 N. C. 158, 1 S. E 796; Whitley v. Insurance Co., 71 N. C. 480. Even long delay by the defendant could not presume an acceptance. The natural and legal inference is to the contrary. More v. Insurance Co., 130 N. Y. 537, 29 N. E. 757. The...
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