Steele v. Metropolitan Life Ins. Co. of New York

• Decision Date: 19 December 1928
• Docket Number: 382.
• Citation: 145 S.E. 787
• Parties: 196 N.C. 408, 61 A.L.R. 821 v. METROPOLITAN LIFE INS. CO. OF NEW YORK. STEELE
• Court: North Carolina Supreme Court

145 S.E. 787

196 N.C. 408, 61 A.L.R. 821

STEELE v. METROPOLITAN LIFE INS. CO. OF NEW YORK.

No. 382.

Supreme Court of North Carolina

December 19, 1928

Appeal from Superior Court, Guilford County; A. M. Stack, Judge.

Action by E. D. Steele against the Metropolitan Life Insurance Company of New York. From an unsatisfactory judgment for plaintiff, he appeals. Reversed.

Provision of judgment, requiring bond to indemnify insurer if insured was still living, held unauthorized.

This was an action brought by plaintiff against defendant, on September 27, 1926, to recover on a policy of insurance. John M. Harrell had a 10-year term policy in the sum of $2,500 on his life in defendant's company. For value it was transferred to plaintiff, and assented to by defendant, on February 5, 1913. The policy was issued November 13, 1912 the annual premium being $27.25. It was renewed November 13 1922, the annual premium being $34.88.

The following allegations of plaintiff are admitted by defendant "That said policy of insurance carries the privilege of renewal or extension under certain conditions, all of which have been complied with. That on November 9, 1922, the said policy was renewed for the further term of ten years from November 13, 1922, to November 13, 1932, by agreement between the interested parties, including this plaintiff, subject to all its conditions, agreements and provisions, except that the insured should in each and every year during said term pay a premium of $34.48. That all premiums which have matured and become payable by the terms of said policy have, in accordance with the terms thereof been paid."

It is alleged by plaintiff: That for more than seven years before bringing this action John M. Harrell had left his home in High Point, N. C., and had gone to Gainesville, Fla., stayed there a short while, and has never been heard of since. Diligent search and inquiry have been made for him by his relatives and friends in North Carolina, and also by his friends in Gainesville, Fla. No communication has ever come from him to his family and friends or any one else. That "this plaintiff verily believes that the said Harrell is in fact dead, as well as presumptively dead from his long absence without news from him. That prior to the bringing of this action this plaintiff made proof of the death in fact or presumptive death on account of the matters and things hereinbefore set out of the said Harrell and demanded payment of the said $2500, according to the terms of said policy, on account of the matters and things hereinbefore set out; that payment was refused by the defendant."

Defendant denied that Harrell was dead, and demanded strict proof, and contends that he has been heard from in the last seven years. The defendant introduced no testimony, but the defendant, on cross-examination, elicited from plaintiff's witnesses evidence tending to show that the said John M. Harrell was seen by his nephew, J. C. Reitzel, in Norfolk, Va., in 1919 and that at the time he was an officer in the United States Navy, going under an assumed name, and that it had been reported to friends and relatives that he was in California, Cuba, and South America; that he got into financial difficulties in High Point and also in Gainesville, Fla.

It was in evidence that Harrell owed plaintiff more than the face amount of the policy.

The issues submitted to the jury, and their answers thereto, were as follows:

"1. Was the insured, J. M. Harrell, dead at the date of bringing this action? Answer: Yes.

"2. Did the said John M. Harrell assign the policy sued on in this action to E. D. Steele, the plaintiff, as alleged in the complaint? Answer: Yes.

"3. Does the indebtedness of the said John M. Harrell to the said E. D. Steele amount to as much as the face amount of said policy? Answer: Yes."

The evidence introduced by plaintiff was sufficient to be submitted to the jury on the issues.

The judgment in the court below is as follows: "On Motion of King, Sapp and King, Attorneys for plaintiff, it is ordered, adjudged and decreed by the Court that the plaintiff, E. D. Steele, have and recover of the defendant, Metropolitan Life Insurance Co., of New York, the sum of $2500, the face of the policy sued on, together with interest thereon from the 28th day of September, 1926, till paid, together with the costs of the action to be taxed by the Clerk. No execution to issue until plaintiff files bond in the sum of $3000, with sufficient surety to indemnify defendant against loss in event John M. Harrell is in fact living."

Plaintiff excepted and assigned error to the following part of the judgment: "No execution to issue until plaintiff files bond in the sum of $3000, with sufficient surety to indemnify defendant against loss in event John M. Harrell is in fact living."

King, Sapp & King, of Greensboro, for appellant.

Brooks, Parker, Smith & Wharton, of Greensboro, for appellee.

CLARKSON J.

Has the court the power to require plaintiff, who is assignee of a life insurance term policy, to give bond for return of money awarded by verdict of a jury, to wit, amount of policy which is less than amount due the plaintiff by insured, on allegation and proof of absence of insured for more than seven years without being heard from by those who would be expected to hear if insured were living? We think not.

The policy issued is a 10-year renewable term policy. It was issued on November 13, 1912, and renewed on November 12, 1922.

Defendant contends that the case presents a new question in this jurisdiction, and cites as an analogous case Springer v. Shavender, 116 N.C. 12, 21 S.E. 397, 33 L. R. A. 772, 47 Am. St. Rep. 791, on rehearing 118 N.C. 33, 23 S.E. 976, 54 Am. St. Rep. 708. The Springer Case is bottomed on a statute (C. S. 74): "When the personal estate of a decedent is insufficient to pay all his debts, *** to sell the real property for the payment of the debts of such decedent."

That case, and the authorities relied on, are to the effect that the jurisdiction acquired is to deal with the estates of dead men. The court in that case (116 N.C. 12, 21 S.E. 397) quoting headnote, held: "The appointment of an administrator upon the estate of a living man is void for all purposes, and everything that is founded...