Everett v. St. Paul Fire & Marine Insurance

Morris, J.

The judgment here appealed from was entered on 18 September 1968. The record on appeal was not filed in this Court until 10 February 1969.

Rule 5, Rules of Practice in the Court of Appeals of North Carolina, requires that the record on appeal is to be docketed in this Court within 90 days after the date of the judgment. This rule provides that the trial tribunal may extend this time up to 60 days for good cause; however, the record in the present case does not reveal that such an extension was requested or granted. The record on appeal was docketed in this Court 145 days after the date of the judgment.

In looking to the merits of this case, we find that plaintiff contends that her letter of 26 September 1966 was not a request by her to cancel the policy on 927 East Main Street, but that she was merely acting according to the request of Denkins and that it should have been apparent to Denkins that she had sent the wrong policy. Furthermore, she claims that the policy on the damaged property was not effectively canceled until after the fire because she did not- receive the refund of premiums until after the fire.

The evidence taken in the light most favorable to plaintiff shows that she committed an error when she mailed the policy for the property at 927 East Main Street to Denkins on 26 September 1966. However, the letter stated that other insurance had been obtained on this property. Also, on 11 November 1966, plaintiff, in a letter to St. Paul requesting the cancellation date of this policy stated, “Recently I notified the Roy Denkins Insurance Agency 'that I intended to cancel the policy on 927 East Main Street . . .” We think plaintiff’s evidence, taken in the light most favorable to her, was insufficient to carry the case to the jury. Assuming, arguendo, that Denkins was acting as the agent of St. Paul in canceling this policy, the cancellation was not affected by the failure of Denkins to return the premium refund until after the fire of 7 November 1966. Hayes v. Indemnity Co., 274 N.C. 73, 161 S.E. 2d 552. Nor was Denkins required to notify plaintiff that the cancellation had become effective. Hayes v. Indemnity Co., supra.

We find the plaintiff’s assignment of error to be without merit. However, for failure to comply with Rule 5, Rules of Practice in the Court of Appeals of North Carolina, the appeal is

Dismissed.

Campbell and PARKER, JJ., concur.