Wells v. STURDIVANT LIFE INSURANCE COMPANY

179 S.E.2d 806 (1971)

10 N.C. App. 584

Ernest WELLS v. STURDIVANT LIFE INSURANCE COMPANY.

No. 7118DC117.

Court of Appeals of North Carolina.

March 31, 1971.

*808 Wade C. Euliss, Greensboro, for plaintiff-appellee.

E. James Moore, North Wilkesboro, for defendant-appellant.

MALLARD, Chief Judge.

Defendant contends in its assignments of error numbered 1 and 3 that the *809 trial judge committed error in questioning the plaintiff's witness Freeman and the defendant's witness Price concerning collection of premiums on other policies sold by Freeman and listed on the weekly application record of Freeman. The questions asked by the judge do not appear in the record. The answers of the witnesses appear to be made in a proper area of investigation in this case. It is well-established law in North Carolina that the judge may ask a witness clarifying questions. These assignments of error are without merit.

At the close of plaintiff's evidence and again at the close of all the evidence, the defendant moved for an involuntary dismissal of plaintiff's action under Rule 41(b) on the ground that upon the facts and the law, the plaintiff has shown no right to relief. Defendant assigns as error the failure of the trial court to allow his motions.

This motion under Rule 41(b) in this action tried by the court without a jury challenges the sufficiency of the plaintiff's evidence to establish his right to relief. In determining the sufficiency of the evidence in this case, when the trial judge denied defendant's motion made at the close of all the evidence for dismissal under Rule 41(b) of the Rules of Civil Procedure, he was guided by the same principles expressed under our former procedure with respect to the sufficiency of the evidence to withstand the motion for nonsuit.

However, under Rule 41(b), if a trial judge allows the defendant's motion to dismiss made at the close of plaintiff's evidence on the grounds that upon the facts and the law the plaintiff has shown no right to relief, the court, as the trier of the facts, should determine the facts and render judgment against the plaintiff. The trial judge may decline to render any judgment until the close of all the evidence. Then if the trial judge renders judgment on the merits against the plaintiff, he shall make findings as provided in Rule 52(a). G.S. § 1A-1, Rule 41(b).

Defendant alleges and argues that the policy was not "issued" because the premium had not been paid. The question of whether the premium had been paid was a question of fact to be decided by the trier of the facts. The defendant in its answer alleges: "A policy form bearing number M33335 * * * was completed by the defendant but the policy was not issued * * *." (Emphasis Added.) Therefore, the proper execution of the policy by the officials of the defendant was not at issue herein.

The word "issued" when used in connection with a policy of insurance may have more than one meaning, depending upon the manner in which it is used. In this connection, the Supreme Court of Oregon said in the case of Stringham v. Mutual Life Ins. Co., 44 Or. 447, 75 P. 822 (1904):

"We will dispose first of the controversy relative to the meaning of the term `issued,' as employed in the application, it being insisted on the part of the plaintiff that it signifies simply the completion and signing up of the policy by the secretary and its execution at the office of the company, while, upon the other hand, it is contended that it includes as well the delivery of the policy to the applicant. Among the many cases that have passed under our notice, the term seems to have been used interchangeably to denote either one or the other of these conditions, but we have been cited to no case that attempts to determine as a general rule when an insurance policy is deemed issued. We are impressed that the term has a double application, and its meaning is to be determined by the relation in which it is employed."

In the case before us no issue was raised as to the insured having actual possession of the policy at his death. Also, there was no finding and no evidence to support a finding that there was a conditional delivery of the policy. McKerley v. Commercial *810 Casualty Insurance Co., 201 N.C. 502, 160 S.E. 576 (1931).

In Couch on Insurance 2d, § 10:31, it is stated:

"The insured's possession of a policy raises a presumption of proper delivery after performance of all conditions precedent, or, as often stated, makes a prima facie case on the issue of delivery. So, possession of the policy after the death of the insured ordinarily raises the presumption that it has been delivered and paid for, or that credit has been extended."

In Waters v. Security Life & Annuity Co., 144 N.C. 663, 57 S.E. 437 (1907), the rule is stated:

"The fact that the policy in a given case has been turned over to the insured is not conclusive on the question of delivery. This matter of delivery is largely one of intent, and the physical act of turning over the policy is open to explanation by parol evidence. It does, however, make out a prima facie case that there is a completed contract of insurance as contained in the policy."

"When the facts in evidence make out a prima facie case, it is one for submission to the jury. * * * The significance of `prima facie case' has been stated clearly and often. * * *" Millers Mutual Insurance Ass'n v. Atkinson Motors, Inc., 240 N.C. 183, 81 S.E.2d 416 (1954).

The evidence from the witnesses offered by plaintiff with respect to whether the premium was paid is contradictory. However, the policy introduced into evidence was signed by defendant's president and secretary and states clearly: "This policy is issued in consideration of the statements made in the application herefor, and the payment in advance of at least one month's premiums as stated above." (Emphasis Added.) Applying the pertinent rules, we conclude that plaintiff's evidence made out a prima facie case. Defendant does not allege nor offer evidence of fraud. Williamson v. Pilot Life Insurance Co., 212 N.C. 377, 193 S.E. 273 (1937); see also Grier v. Mutual Life Ins. Co., 132 N.C. 542, 44 S.E. 28 (1903). Moreover, in Murphy v. Lafayette Mutual Life Insurance Co., 167 N.C. 334, 83 S.E. 461 (1914), it is said:

"It is well established in this jurisdiction that, in the absence of fraud, and in so far as the contract of insurance is concerned, the delivery of an insurance policy absolute and unconditional is a waiver of the stipulation for a previous or cotemporaneous (sic) payment of the first premium."

Plaintiff's evidence in this case, while contradictory, did not establish the defense of the defendant. The cases cited by defendant to support its contention that the evidence did establish its defense are distinguishable. The questions of whether the premium was paid and whether the policy was delivered conditionally related to questions of fact to be resolved as other issues of fact. The trial judge found against the defendant.

There was ample evidence and stipulations to support the material findings by the trial judge that the $7.16 premium on the insurance policy was paid, that the policy was in effect at the time of the death of the insured on 27 November 1968, and that the defendant was indebted to plaintiff in the sum of $4,000. The trial judge correctly denied the defendant's motion for dismissal under Rule 41(b).

Defendant's fifth assignment of error asserts that:

"The court below erred in signing the judgment in this case for that the evidence is not sufficient to support the findings of fact or the conclusions of law set forth in the judgment or to support a judgment in favor of the plaintiff and against the defendant."

This assignment of error attempts to present several propositions of law and could be held to be broadside and ineffective. *811 State v. Blackwell, 276 N.C. 714, 174 S.E.2d 534 (1970). There is no exception appearing in the record to any specific finding of fact. However, the sufficiency of the evidence has been considered under other assignments of error.

Exception number 5, upon which assignment of error number 5 is based, appears in the record after the signature to the judgment and can be considered only as an exception to the judgment. "An exception to the judgment does not present for review the findings of fact or the evidence on which they are based." 1 Strong, N.C. Index 2d, Appeal and Error, § 28. Furthermore, nothing appears in the record in connection with exception number 5 to indicate that it relates to any specific finding of fact. "When there is no exception to the findings of fact by the court, the facts found will be assumed correct and supported by the evidence * * *." 1 Strong, N.C. Index 2d, Appeal and Error, § 28. This exception and assignment of error number 5, therefore, does not present the question of the insufficiency of the evidence to support the findings of fact.

In 1 Strong, N.C. Index 2d, Appeal and Error, § 28, the rule is stated:

"* * * However, an exception that the findings of fact are not sufficient to support the judgment presents for review the question whether the court's conclusions of law from the findings of fact are unwarranted or erroneous. And even when the exceptions to the findings of fact are too general to be effective, the appeal itself constitutes an exception to the judgment and raises the question of law whether the facts found support the judgment and whether error of law appears on the face of the record proper."

See also State v. Kirby, 276 N.C. 123, 171 S.E.2d 416 (1970); Lewis v. Parker, 268 N.C. 436, 150 S.E.2d 729 (1966).

We hold that no prejudicial error appears on the face of the record proper, that the material findings of fact are sufficient to support the conclusions of law, and that the findings of fact and conclusions of law support the judgment rendered.

Affirmed.

PARKER and GRAHAM, JJ., concur.