McKerley v. Commercial Casualty Insurance

*504 Staoy, C. J., after stating the case: The plea of the defendant that the policy in suit was delivered conditionally and has never become operative is not supported by the evidence. Grier v. Ins. Co., 132 N. C., 542, 44 S. E., 28; Kendrick v. Ins. Co., 124 N. C., 315, 32 S. E., 128; Rayburn v. Casualty Co., 138 N. C., 379, 50 S. E., 762. When the evidence is not sufficient to warrant an affirmative finding on a plea in bar, the court is not required to submit the question to the jury. Falkner v. Pilcher Co., 137 N. C., 449, 49 S. E., 945. The second contention of the defendant that the death of the assured was not caused from the effects of bodily injury sustained solely through external, violent and accidental means, as insured against in the policy, is answered by the verdict. The third position taken by the defendant that proof of loss and suit after sixty days from such filing and within two years, as provided by the policy, has not been shown, is not available to the defendant on the present record, for at the close of the evidence, the amount of recovery, if any, was agreed upon, and further, “if the jury shall answer the first issue yes, then the court may find the amount as herein stated, and enter judgment accordingly.” Furthermore, plaintiff testified that she offered to reimburse defendant’s agent for the amount of the premium after her husband’s death, “because when I went to him to sign the papers to get the insurance papers started he told me he had paid the insurance himself, and I said I will pay it to you.” This is some evidence that proof of loss was signed in the presence of defendant’s agent. But the point seems not' to have been mooted in the court below. The verdict and judgment will be upheld. No error.