Page v. . Insurance Co. , 131 N.C. 115 ( 1902 )

This is an action upon a policy of life insurance. The answer admitted the execution of the policy and death of the assured prior to the falling due of the first renewal premium, but averred that the policy was not in force at his death, that no premium had been paid, and that the policy was procured by fraud and misrepresentation; that the assured was a nonresident of the State and owned no property here, and (116) hence that administration had not been legally taken out here. But all these were matters of defense, the burden of which was upon the defense.

The plaintiff introduced the policy, which recited on its face that it was not to be delivered till the first premium was paid. Its possession by the plaintiff was prima facie evidence of payment, like a receipt (Whitleyv. Ins. Co., 71 N.C. 480), subject to proof, if offered, to the contrary.Ormond v. Ins. Co., 96 N.C. 158.

The defendant demurred to the evidence, which being overruled, it offered no evidence, and his Honor properly instructed the jury that if they believed the evidence to respond "Yes" to the issue, "Was the policy sued on in force at the death of the testator?"

As to the last defense set up by the answer, the policy described the assured as a resident of the District of Columbia, but there was no evidence that the assured did not die in this State and leave property here; but if there had been, the possession of the policy authorized the plaintiff to take out administration here. Shields v. Ins. Co.,119 N.C. 380; Morefield v. Harris, 126 N.C. at p. 628.

The defendant insists that, the answer not having been put in evidence, the admissions therein could not be considered, and relies upon Smith v. Nimocks, 94 N.C. 243; Greenville v.Steamship Co., 104 N.C. 91, and cases there cited, and Smithv. Smith, 106 N.C. 498. Those cases hold that when issues are raised by allegation and denial in the pleadings, any other statements in the pleadings which might shake or controvert the allegations or denials of the party making such statements are matters for the jury, like other declarations against interest, when put in evidence by the opposite party. But whether the pleadings raise an issue or not (Code, sec. 268), is a matter of law for the court, and the court rightly held that the answer admitted the execution of the policy. The jury (117) did not have to pass upon that. The recitals in the policy put in evidence being prima facie evidence of the payment of the premium, and there being no evidence in support of the defenses set up in the answer, there was no error in the instructions given.

No error.