At tbe outset it is to be observed that tbe application
for tbe insurance policy provided “that tbe insurance hereby applied for shall not take effect unless and until tbe policy is delivered to and received by tbe applicant and tbe first premium thereon paid in full during bis lifetime,” etc.
In Powell v. Insurance Co., 153 N. C., 124, Walker, J., speaking for the Court, said: “We do not see why an insurance company may not stipulate in its agreement to insure, that its risk shall not begin until some definite time in the future, or until some specified act has been done.”
Again in Turlington v. Ins. Co., 193 N. C., 481, Connor, J., said: “It is expressly stipulated in the application therefor “that the company shall incur no liability under this application until it has been received, approved, and a policy issued and delivered, and the full first premium stipulated in the policy has actually been paid to and accepted by the company during the lifetime of the applicant.” This is a valid stipulation; plaintiffs, having failed to show by the evidence that the policy sued on was issued and delivered during the lifetime of Richard C. Turlington, cannot recover thereon.”
The plaintiff, however, insists that this cause of action is not based upon the contract, but upon tort growing out of the negligence of the agent of the defendant in failing promptly to deliver said policy during the lifetime and good health of the applicant. Plaintiff insists further that this case comes within the principle declared by this Court in Fox v. Ins. Co., 185 N. C., 121. The defendant insists that the Fox case is contrary to the overwhelming weight of authority, and that it ought to be overruled.
The Fox case was the subject of sharp debate, as will appear by the various opinions filed in the cause. The governing principle in the case *37is thus declared in the main opinion of the Court: “If the defendant’s agent wilfully failed to deliver the policy within a reasonably short time after its receipt, during which time the plaintiff’s intestate was in good health and ready, able, and willing to pay the premium on delivery, as stipulated, and plaintiff’s intestate having thereafter become ill, the defendant could not withhold the delivery so as to release it from responsibility.” The concurring opinion of Adams, J., rests upon the following declaration: “I am convinced that a new trial should be granted, and the jury permitted to find from the evidence whether the intestate, while in good health, requested the agent to deliver the policy, and whether he was ready, able, and willing at that time to pay the premium; and, if so, whether the agent, carelessly disregarding the applicant’s rights, failed to deliver the policy within a reasonable time thereafter.”
These two ideas expressed in the main and concurring opinions are not identical, because in the main opinion the duty was imposed upon the agent “to deliver the policy within a reasonably short time after its receipt”; while in the concurring opinion the duty was imposed upon the agent to deliver the policy within a reasonable time after the request of such delivery by the applicant.
But it is unnecessary for us to determine whether the Fox case was correctly decided or not, because the facts in the present case preclude the application of the rule of liability announced by the Court therein. Immediately upon receipt of the policy the agent undertook to deliver it to Sturgill. He went to Sturgill’s boarding house and found that he had been transferred to Winston-Salem. On the very next day he wrote Sturgill’s foreman, for -.whom he also had a policy of the same kind, advising him of the receipt of the policies and requesting instructions. This letter was shown to Sturgill, and thereupon on 26 October the agent was advised that Sturgill, as a matter of fact, was not ready for the delivery of his policy at that time, but that he would be ready to take the policy and pay the premium about the first of the month. This instruction from Sturgill was clearly equivalent to a declaration to the agent that he was then not ready, able, and willing to pay the first premium, and would not be ready to comply with the terms of the contract until after the first of the month. Sturgill was killed before any advice was given to the agent of the defendant that he was ready to take the policy and pay the premium; indeed, Tharington testified that at the time of Sturgill’s death they had not received their pay.
Under these facts and circumstances we are of the opinion that the plaintiff is not entitled to recover, and that the motion for nonsuit, duly made by the defendant, should have been allowed.
Reversed.