Fox v. Volunteer State Life Insurance

Pee Oubiam. Civil action. Tbe case was brought to this Court at a former term, on appeal from a judgment of nonsuit (185 N. C., 121), and a new trial was awarded tbe plaintiff. It was admitted tbat tbe application (parts 1 and 2) and tbe policy, wben issued, should constitute tbe entire contract between tbe parties, and tbat tbe policy should not take effect until it was issued and delivered and tbe premium paid; but tbe Court held tbat tbe jury should be allowed to pass upon tbe defendant’s alleged negligent failure to deliver tbe policy in due time. Tbe case was again taken up at tbe May Term, 1923, and was tried in substantial accordance with tbe opinion of tbe Court. There was disagreement between tbe parties as to tbe meaning of tbe first issue, but tbe crucial question was whether tbe defendant negligently delayed tbe delivery of tbe policy after it went into tbe bands of tbe local agent wben tbe plaintiff’s intestate was in good health, and was ready, able, and willing to pay tbe premium, and tbe question, which practically included three issues, was answered by tbe jury in favor of tbe plaintiff. Tbe defendant’s exceptions to evidence of statements made by its agent are untenable. Tbe statements qualified or explained tbe conduct of tbe agent at a time wben be was engaged in doing tbe work and performing tbe duties required of him and were not a mere narration of what bad previously occurred. Berry v. Cedar Worles, 184 N. C., 187; Hamrick v. Telegraph Co., 140 N. C., 151; Darlington v. Telegraph Co., 127 N. C., 448; Branch v. R. R., 88 N. C., 573. Nor can we sustain tbe other exceptions to tbe admission of evidence. Tbe motion for nonsuit seems to have been based on tbe agreement tbat tbe policy should not take effect until it was delivered and tbe premium was paid, but this question was disposed of in tbe former appeal. We find No error. Stacy, I., dissents.