Owens v. Reserve Loan Life Insurance

BuogdeN, J. The facts present two questions of law, to wit: 1. Was there any competent evidence of the prepayment of premium by the plaintiff upon signing the application on 15 May, 1929 ? 2. Is the right of plaintiff to maintain this action foreclosed by a receipt given the defendant on 17 October, 1929? The plaintiff applied for a certain sort of policy providing disability-benefits and waiver of premium. Such a policy was issued and forwarded to the agent at Wilson, North Carolina, but never delivered to the plaintiff. The defendant asserts that such delivery was not made because its agents had information that the plaintiff was not in good health and required a further physical examination. Hence the defendant maintains that, as no policy was delivered, the plaintiff cannot recover. *887 Upon the other hand, the plaintiff asserts that he paid the premium at the time of signing the application on 15 May, 1929, and that a receipt for such payment was detached from the application and delivered to him, which he had since lost or misplaced. This receipt provided that if the premium was paid at the time the application was signed, the insurance would be in full force and effect from the date thereof, if the application was approved, otherwise the insurance became effective upon delivery of the policy. What then, is the evidence tending to show payment of premium at the time the application was signed? The plaintiff said: (a) “I paid the first premium when I signed the application. I paid it with the cash surrender value of the lapsed policy.” (b) At the time the application was signed on 15 May, 1929, the agent for the defendant, unknown to the plaintiff, actually had in hand a check issued by the defendant and payable to the plaintiff for $44.21, which was in excess of the premium on the new policy, (c) The plaintiff testified that the agent for’the defendant detached from the application the receipt and delivered it to him. There was a perforated line separating the receipt from the application and when the original application was produced in court the receipt was detached therefrom. The term payment was thus defined in Moore v. Construction Co., 196 N. C., 142, 144 S. E., 692: “Payment is the discharge of a debt by the delivery of money or other thing of value; it is the fulfilment of a promise or the performance of an agreement. In a strict legal sense there must be a delivery by the debtor and an acceptance by the creditor of money or its equivalent with intent in whole or in part to pay a debt or to satisfy an obligation.” More than one hundred years ago this Court, speaking through Reid v. Reid, 13 N. C., 247, said: “I think the receipt prima facie evidence, that an account was stated between the parties, and the balance of seven dollars then paid. It certainly is not conclusive that full payment is made. It is not conclusive of anything, . . . not even that the seven dollars were paid.” To like effect is the declaration in Keaton v. Jones, 119 N. C., 43, 25 S. E., 710, as follows: But when the writing is only an acknowledgment of payment or delivery, it is only prima facie conclusive, and the fact recited may be contradicted by oral testimony. See, also, Harper v. Dale, 92 N. C., 397; Norwood v. Grand Lodge, 179 N. C., 441, 102 S. E., 749. Consequently, the possession of a receipt for the first premium, nothing else appearing, is prima facie evidence of payment. While the record discloses that the plaintiff gave to the agent of the defendant a check on 12 September for $35.25 to pay the premium and received a check from the defendant for $44.21; nevertheless, the Court is of the opinion that there was sufficient evidence of payment at the *888 time the application was signed to be submitted to a jury for its determination from all the facts and circumstances of the case. The second question of law relates to a receipt which the plaintiff gave to the agents of defendant on 17 October, 1929, for the return of the premium amounting to $35.25. The testimony of plaintiff and of other witnesses tends to show that at said time the plaintiff did not have sufficient mental capacity to understand the nature of the transaction. Consequently, the question as to whether there was a settlement between the plaintiff and the defendant on 17 October, 1929, must also be submitted to a jury. There are certain other exceptions in the record which are not discussed for the reason that as a new trial is awarded, it is deemed inadvisable to debate and decide questions which may never arise at a future hearing. New trial. SciiENCK, J., took no part in the consideration or decision of this case.