Ferrell v. Metropolitan Life Insurance, 210 N.C. 831 (1936)

Sept. 23, 1936 · Supreme Court of North Carolina

210 N.C. 831

WILMA E. FERRELL v. METROPOLITAN LIFE INSURANCE COMPANY.

(Filed 23 September, 1936.)

Appeal and Error J d—

Where the Supreme Court is evenly divided in opinion, one Justice not sitting, the judgment of the lower court will be affirmed without becoming a precedent.

Devin, J., not sitting.

Appeal by defendant from Small, J., at April Term, 1936, of OuRRITUCK.

Civil action to recover on a $2,000 policy of life insurance.

Verdict and judgment for plaintiff, from which defendant appeals, assigning errors.

Chester Morris and John H. Hall for plaintiff, appellee.

Worth & Horner for defendant, appellant.

Per Curiam.

The case turns on whether the semiannual premium of $28.32, due 26 November, 1932, was paid by the insured. After plaintiff’s husband’s death on 5 February, 1933, she found among his papers the policy in suit, together with premium receipt for the November payment. It is the position of plaintiff that under “the law of the case,” as declared on two former appeals, reported in 207 N. C., 51, and 208 N. C., 420, the issue was one for the jury. C. S., 567. The defendant, on the other hand, contends that under the evidence tending to show November premium payment was made by worthless check, which was later returned to the insured, a directed verdict denying liability should have been entered. Penland v. Hospital, 199 N. C., 314, 154 S. E., 406. The Court being equally divided in opinion, Devin, J., not sitting, the judgment of the Superior Court is affirmed in accordance with the usual practice in such cases, and stands as the decision in the instant case without becoming a precedent. Sessoms v. R. R., 208 N. C., 844, 182 S. E., 112.

No error.

Devin, J., not sitting.