Boseman v. Ohio State Life Insurance, 211 N.C. 392 (1937)

March 17, 1937 · Supreme Court of North Carolina

211 N.C. 392

ANNIE H. BOSEMAN v. OHIO STATE LIFE INSURANCE COMPANY.

(Filed 17 March, 1937.)

Insurance § 30c — Where nonpayment of premium to insurer’s agent in accordance with agreement is caused hy termination of agent’s employment without notice to insured, insurer may not declare forfeiture.

Evidence that insured made an agreement with insurer’s agent that the agent would collect the monthly premium from insured’s employer on the due date, and that the employer was ready, able, and willing to make the payment, but that the agent did not call as agreed because of the termination of his employment with insurer prior thereto, and that insurer gave no notice to insured or his employer that it would require payment direct to it or to its successor agent, is held sufficient to be submitted to the jury on the question of payment of the premium in the beneficiary’s action on the policy after the death of insured during the month for which such payment would have kept the policy in force.

Appeal by defendant from Harris, J., at November Term, 1936, of Halifax.

No error.

This is an action to recover on a policy of insurance issued by tbe defendant on tbe life of Aubrey H. Boseman, who died on 21 October, 1935.

Tbe policy was issued on 26 March, 1935. Tbe premiums were payable on tbe first day of eacb month and on.tbe payment of each monthly premium tbe policy was continued in force for tbe succeeding month.

It was admitted by tbe defendant that tbe plaintiff as beneficiary of tbe policy is entitled to recover of tbe defendant tbe sum of $600.00 if tbe policy was in force at tbe death of tbe insured on 21 October, 1935.

Tbe issue submitted to tbe jury was answered as follows:

“Was policy No. 61113 in force at tbe time of tbe death of Aubrey H. Boseman? Answer: 'Yes.’”

From judgment that plaintiff recover of defendant tbe sum of $600.00 with interest from 23 October, 1935, and tbe costs of tbe action, tbe defendant appealed to tbe Supreme Court, assigning as error tbe refusal of tbe trial court to allow its motion for judgment as of nonsuit at tbe close of all tbe evidence, and tbe peremptory instruction of tbe court to tbe jury.

No counsel for plaintiff.

Battle & Winslow for defendant.

PeR Cubiam.

It is admitted by tbe defendant that all tbe evidence at tbe trial of this action showed that tbe policy sued on was in force from tbe date of its issuance to 1 October, 1935. Tbe defendant contends that there was no evidence tending to show that the premium due on the policy on 1 October, 1935, was paid by the insured, and for that reason, under its terms, the policy was not in force at the death of the insured on 21 October, 1935. This contention cannot be sustained.

All the evidence showed that in accordance with the instructions of a general agent of the defendant, approved by the defendant, the insured had made arrangements with his employer for the payment of the premium due on 1 October, 1935, and that on that day the employer was ready, willing, and able to pay the premium. The agent of the defendant who had theretofore collected the monthly premiums due on the policy, failed to call on the employer on 1 October, 1935. This agent left the employment of the defendant during the month of September, 1935. .Neither the agent nor the defendant notified the insured or his employer that the said agent had left the employment of the defendant, or that the insured would be required to pay the premium due on 1 October, 1935, direct to the defendant or to the successor of the agent who had theretofore collected the monthly premiums. The employer of the insured testified that he had in hand on 1 October, 1935, the money to pay the premium due on that day, and would have paid the premium if the agent of the defendant had called for the money, in accordance with the arrangement made with him by the insured and the agent of the defendant.

In Lindley v. Ins. Co., 209 N. C., 116, 182 S. E., 716, the renewal premium required to keep the policy in force was not paid or tendered to the defendant until after the death of the insured. It was held that the plaintiff could not recover on the policy for the reason that it was not in force at the death of the insured. In the instant case, all the evidence showed that the premium due on 1 October, 1935, was paid by the insured in accordance with the instructions of the defendant. The cases are distinguishable.

The judgment in the instant case is affirmed.

No error.