Strigas v. Durham Life Insurance ( 1953 )

73 S.E.2d 788 (1953) 236 N.C. 734

STRIGAS et al.
v.
DURHAM LIFE INS. CO.

No. 665.

Supreme Court of North Carolina.

January 6, 1953.

Hines & Boren and Jordan & Wright, Greensboro, for plaintiffs-appellants.

I. O. Brady, Raleigh, and Hudgins & Adams, Greensboro, for defendant-appellee.

DENNY, Justice.

Where an instrument is wholly in writing and the intention of the writer must be ascertained from the document itself, the intention of the writer as well as the effect of that "Intention is a question of law. Young v. Jeffreys, 20 N.C. 357; Spragins v. White, 108 N.C. 449, 13 S.E. 171; Silver Val. Mining Co. v. North Carolina Smelting Co., 122 N.C. 542, 29 S.E. 940; Wilson & Co. v. Levi Cotton Mills, 140 N.C. 52, 52 S.E. 250; Patton v. Sinclaire Lumber Co., 179 N.C. 103, 101 S.E. 613. And if the terms of a writing or contract are explicit, the court determines their effect simply by declaring their legal meaning. Wilson & Co. v. Levi Cotton Mills, supra.

Conceding that the son of the insured, George J. Strigas, was acting as the agent of his father when he wrote the notation on the letter of October 20th and forwarded it to the defendant, which notation the defendant admits in its answer it received and took no action pursuant thereto, it was insufficient, in our opinion, to constitute a request for extended term insurance under the provisions of the policy. The writing contained nothing more than a request for additional time in which to pay the premium or premiums that would fall due while the insured was on his trip to Greece. There is no provision in the policy for any such extension of time and the company was under no obligation to grant such a request. A request to hold is not the equivalent of a request to convert or to change. The word "hold" means in its usually accepted sense, "to maintain or sustain; * * * to possess; * * * to keep; to retain." Black's Law Dictionary, Third Edition. We do not think the language used by the insured to his son, or by his son to the defendant, is susceptible of being construed to be a request for a conversion of the policy from one type of insurance to another. Furthermore, if the insured had intended to convert his policy into extended term insurance under the provisions of option 3 in the policy, there would have been no necessity for the statement that he would settle when he returned. There would have been no debt or obligation to settle. A conversion of the policy, pursuant to the provisions of option 3, would have constituted a complete settlement of all obligations of the insured with respect to the premium then due as well as to future premiums; the policy would have been paid up for its face amount as extended insurance for a definite term as set forth in the policy.

In an action to recover on a life insurance policy where the insurer admits the execution of the policy and the death of the insured, the burden of proving that the policy was not in force at the time of the death of the insured is ordinarily on the insurer. Page v. Life Insurance Co., 131 N.C. 115, 42 S.E. 543. However, in the instant case the plaintiffs allege that the quarterly premium due on the policy held by the insured was not paid on July 13, 1949, the date it was due, or within the stipulated grace period. Consequently, the plaintiffs having alleged that the policy lapsed prior to the death of the insured, the burden was on them in the trial below to show compliance with the essential provisions of the policy in order to convert the face amount thereof into extended term insurance.

We think the ruling of the court below relative to the insufficiency of the plaintiffs' evidence to establish compliance with the provisions of option 3 of the policy for extended term insurance, was correct and must be upheld. "The court may always direct a verdict against the party who has the burden of proof, * * if the evidence offered and taken to be true fails to make out a case." McIntosh North Carolina Practice and Procedure, section 574, page 632, et seq.; Spruill v. Northwestern Mutual Life Insurance Co., 120 N.C. 141, 27 S.E. 39; State v. Prince, 182 N.C. 788, 108 S.E. 330.

In the trial below, we find

No error.