Stallings v. Occidental Life Insurance Co.

Stacy, C. J.

The question for decision is the correctness of the directed verdict.

The case turns on whether there was a conditional delivery of the policy for purposes of inspection, as contended by the defendant’s agent, or an absolute delivery upon acceptance of the applicant’s promise to pay balance of first premium out of the first government check thereafter received by him. Pender v. Ins. Co., 163 N. C. 98, 79 S. E. 293; Murphy v. Ins. Co., 167 N. C. 334, 83 S. E. 461; Underwood v. Ins. Co., 185 N. C. 538, 117 S. E. 790.

As the evidence is conflicting on this central issue it should have been submitted to the jury for determination. There was error in directing a verdict for the plaintiff.

The letter of October 29th to the defendant’s agent gives intimation of his authority to deal with the balance of the first premium on a credit basis.

While the agent has rendered himself liable to the defendant for the balance due on the first premium, there is no contention that this liability ivas imposed for or inures to the benefit of the plaintiff. However, on the facts of the instant record, it may have some bearing upon his authority to accept the applicant’s promise to pay the balance of the first premium out of his government check. Murphy v. Ins. Co., supra.

New trial.

Barnhill and Wixboexe, JJ., took no part in the consideration or decision of this case.