Bryant v. Occidental Life Insurance Co.

Bobbitt, J. The question discussed in the briefs is whether the two “causes of action” are “mutually repugnant and inconsistent.” A cause of action consists of the facts alleged in the complaint. G.S. 1-122; Lassiter v. R. R., 136 N.C. 89, 48 S.E. 642; Stamey v. Membership Corp., 249 N.C. 90, 94, 105 S.E. 2d 282. No fact alleged by plaintiff in one “cause of action” is inconsistent with or contradictedi by any fact alleged in the other. On the contrary, the allegations in the two “causes of action” are entirely consistent, and, except as indicated, are identical. No policy was issued by defendant. The factual allegations contained in plaintiff’s “first cause of action” are that defendant “unreasonably delayed” acting upon Bryant’s application from September 21, 1959, until after his death on November 14, 1959, and did not, during said period, tender or return the amount of the first premium forwarded to it with Bryant’s application. Apart from such delay, no fact is alleged indicating that defendant had accepted or would accept Bryant’s application. In an exhaustive annotation in 32 A.L.R. 2d 487, at p. 493, many decisions, including Ross v. Ins. Co., 124 N.C. 395, 32 S.E. 733, are cited in support of this statement: “Based on the doctrines that an application for insurance is a mere offer, which must be accepted before a contract of insurance can come into existence, andi that silence and inaction do not amount to an acceptance of an offer, the overwhelming weight of authority is to the effect that, at least in the absence of additional circumstances, no inference or presumption of acceptance which would support an action ex contractu can be drawn from mere delay or inaction by the insurer in passing on the application.” Also, see 29 Am. Jur., Insurance § 203; 44 C.J.S., Insurance § 232. In the Ross case, which deals with a factual situation quite similar to that alleged in plaintiff’s “first cause of action,” Fair cloth, C. J., said: “Even long delay by the defendant could not presume an acceptance. The natural and legal inference is to the contrary.” True, plaintiff, in her “first cause of action,” asserts that defendant’s unreasonable delay in acting upon Bryant’s application, together with the retention of the premium, “constituted an acceptance of said application” by defendant; but, as indicated above, this is nothing more than an erroneous legal conclusion. Notwithstanding she purports to allege two separate causes of action, plaintiff bases her right to recover upon an alleged single wrong, to wit, the alleged negligent failure of defendant to act upon Bryant’s application within a reasonable time. [568] No question is presented as to whether any of plaintiff’s allegations should be stricken upon the ground of redundancy or otherwise upon motion made under G.S. 1-153. Nor does this appeal present any question as to whether the facts alleged are sufficient to state a cause of action. Defendant did not demur, either in the superior court or in this Court. The decision on this appeal is simply this: It was error to strike the allegations constituting the portion of the complaint designated “second cause of action” on the ground that these allegations and the allegations constituting the portion of the complaint designated “first cause of action” were “mutually repugnant and inconsistent.” Reversed. Winborne, C. J., took no part in the consideration or decision of this case.