Apostle v. Acacia Mutual Life Insurance

CONNOR, J. This action was tried in the Forsyth County court upon the theory that, notwithstanding the policy had lapsed and become void, according to its terms, because of the nonpayment of the monthly premium due on 1 June, 1933, the policy was in full force and effect at the death of the insured on 1 August, 1933, if the defendant had failed to act upon the application of the insured for its reinstatement within a reasonable time after the application was delivered to defendant’s agent *98 by the insured at 'Winston-Salem, N. C., on 24 July, 1933. Tbe record of the trial shows that it was conceded by the parties that if the defendant had failed to so* act upon the application, the plaintiff was entitled to recover on the policy; and that otherwise she was not entitled to recover. Therefore, the only question presented by this appeal is whether there was evidence at the trial from which the jury could find, as contended by the plaintiff, that the defendant failed to act upon the application of the insured for the reinstatement of the policy within a reasonable time after its delivery to its agent at Winston-Salem, N. C., on 24 July, 1933. No other question is presented by this appeal, for it is well settled, as said in Hargett v. Lee, 206 N. C., 536, 174 S. E., 498, that an appeal ex necessitate follows the theory of the trial. See Shipp v. Stage Lines, 192 N. C., 415, 135 S. E., 339. This principle is enforced by this Court, because of the constitutional limitation of its jurisdiction as an appellate Court. Const, of N. C., Art. IY, sec. 8. It may be conceded that after the application for the reinstatement of the policy was received by the defendant at its home office in Washington, D. C., on 31 July, 1933, the defendant did not fail to act upon it within a reasonable time. The evidence, however, shows that nearly four days elapsed from the time the application was delivered to defendant’s agent at Winston-Salem, on- 24 July, 1933, to the time it was received at defendant’s branch office in Charlotte, during the afternoon of 28 July, 1933. While there was evidence tending to show that this delay was not due to the default of the agent, the credibility of this evidence was for the jury. Whether upon all the facts and circumstances, as shown by the evidence, there was an unreasonable delay on the part of the agent was a question for the jury. In Trust Co, v. Ins. Co., 199 N. C., 465, 154 S. E., 743, it is said: “Reasonable time is generally conceived to be a mixed question of law and fact. ‘If, from the admitted facts, the Court can draw the conclusion as to whether the time is reasonable or unreasonable, by applying to them a legal principle or a rule of law, then the question is one of law. But if different inferences may be drawn, or circumstances are numerous and complicated, and such that ’ a definite legal rule cannot be applied to them, then the matter should be submitted to the jury. It is only when the facts are undisputed and different inferences cannot be reasonably drawn from them, that the question ever becomes one of law.’ Claus v. Lee, 140 N. C., 552, 53 S. E., 433; Blalock v. Clark, 133 N. C., 306, 45 S. E., 642; Blalock v. Clark, 137 N. C., 140, 49 S. E., 88.” In the instant ease it cannot be held as a matter of law that the time which elapsed from the delivery by the insured to defendant’s agent of his application for the reinstatement of his policy to the receipt of the apjdication at defendant’s branch office in Charlotte was a reasonable *99 time. "WTietber or not tbe agent mailed tbe application at Higb Point on 25 July, 1933, as be testified, was for tbe jury to determine. There was evidence from wbicb tbe jury could find tbat tbe application was not mailed at Higb Point until tbe morning of 28 July, 1933, and tbat for at least three days tbe agent, without any valid reason, kept tbe application in bis possession at Higb Point, thus unreasonably delaying its consideration by tbe defendant at its borne office in Washington, D. C. We find no error in tbe judgment of tbe Superior Court. It is Affirmed.