Mills v. New York Life Insurance, 209 N.C. 296 (1936)

Jan. 22, 1936 · Supreme Court of North Carolina

209 N.C. 296

J. N. MILLS v. NEW YORK LIFE INSURANCE COMPANY and SOLOMON BLOMBERG.

(Filed 22 January, 1936.)

1. Insurance O b—

Payment of the initial premium on a policy of life insurance to insurer’s soliciting agent is payment to the company. C: S., 6304.

2. Same — Payment of note for second premium to insurer’s agent without obtaining note or insurer’s receipt held not payment to insurer.

The policy in question provided that premiums were payable at the home office of insurer and were payable to a duly authorized agent only in exchange for insurer’s official receipt. Plaintiffs evidence showed payment of a note given for the second semiannual premium to insurer’s authorized agent without obtaining the note or insurer’s official receipt, and there was no evidence that insurer ever received any part of the payment, in insured’s action against insurer to recover the premium paid after insurer had declared the policy forfeited, it is held, insurer’s motion to nonsuit was properly allowed, payment to the agent under the circumstances not constituting payment to insurer.

Appeal by plaintiff from Gowper, J., at April Term, 1935, of Durham.

Affirmed.

Erom a judgment of nonsuit as to defendant Life Insurance Company plaintiff appealed.

The facts as disclosed by the record are substantially as follows:

The plaintiff, who is a reputable colored physician of Durham, N. C., took out a policy of insurance in defendant company on 19 August, 1931, and paid the semiannual premium of $208.40 to the soliciting agent, Solomon Blomberg. When the next semiannual premium became due on 19 February, 1932, plaintiff paid $26.25 in cash to Blomberg, and gave a note to the company for the balance of tbe premium of $182.15. This note was made payable to tbe New York Life Insurance Company at Charlotte, N. C., on or before 19 May, 1932, and contains tbe provision tbat if not paid when due all rights under tbe policy would be terminated. Plaintiff testified be later paid tbe note to Blomberg, but did not get tbe note or official premium receipt. Tbe company lapsed tbe policy for nonpayment of tbe second semiannual premium. Tbe policy of insurance contained tbe following provision: “All premiums are payable on or before their due date at tbe home office of tbe company or to an authorized agent of tbe company, but only in exchange for tbe company’s official premium receipt signed by tbe president, a vice-president, a third vice-president, a secretary, or tbe treasurer of tbe company, and countersigned by tbe person receiving tbe premium. No person has any authority to collect a premium unless be then bolds said official premium receipt.”

On 26 March, 1934, at tbe instance of tbe southern representative of defendant company, Blomberg gave plaintiff bis personal check for $208.00, but tbe check was returned unpaid, with notation “account closed.”

Thereafter, on 7 December, 1934, plaintiff instituted tbis action against tbe defendants, in tbe court of a justice of tbe peace, to recover $200.00 (remitting all over tbat amount).

At tbe close of tbe evidence motion for nonsuit was sustained and from judgment thereon plaintiff appealed.

B. O. Everett for plaintiff.

Smith, Wharton & Hudgins for defendant New Yorlc Life Insurance Company.

Devin, J.

Tbe company admits tbe payment of tbe first semiannual premium, but without tbis admission payment to tbe soliciting agent Blomberg would constitute payment to tbe company by virtue of C. S., 6304.

But tbe payment to Blomberg of tbe amount of a later premium, becoming due thereafter, would not constitute payment to tbe company. Thompson v. Assurance Society, 199 N. C., 59. There is no evidence tbe company ever received any part of it, nor is it contended tbe payment was made in exchange for tbe official premium receipt required by tbe insurance contract, and tbe note given for part of tbe premium was on its face made payable to tbe company in Charlotte. Plaintiff testified be later paid tbis note to Blomberg but without requiring tbe production of tbe note or tbe premium receipt.

Tbe case of Hughes v. Lewis, 203 N. C., 775, is not in conflict with tbe rule laid down in Thompson v. Assurance Society, supra. In Hughes v. Lewis, supra, the facts were the reverse of those in the case at bar. There the insurance company, in attempting to refund to the insured the unearned portion of a premium, paid it to a local agent, who did not pay all of it to the insured, and it was held the company was liable to the insured for the unpaid portion.

Plaintiff has suffered a regrettable loss, but fault therefor may not, in law, be laid at the door of defendant insurance company.

Affirmed.