DENNY, J., concurring.
BARNHILL, J., dissenting. The case was brought back because of an alleged inadvertence or misapprehension of the record as it relates to the second cause of action. It is contended that no evidence was offered by the plaintiff to show a cancellation of the policy.
It was said on the original hearing that the complaint states a cause of action for wrongful cancellation, which is consistent with the cause of action on the policy, as both are in affirmance of the contract, and a new trial was granted, limited to this alleged breach of plaintiff's contractual rights. Trust Co. v. Ins. Co., 173 N.C. 558, 92 S.E. 706; 29 Am. Jur., 286. The case was tried on both causes of action, and there was no objection or challenge to the joinder of the two causes in the same complaint.
The defendant alleges in its answer that the policy lapsed "for the nonpayment of the premium due July 27, 1939"; that the cash surrender value of the policy "at said time" was $1.86 over and above a loan then existing against the policy, and "a check in said amount of $1.86 was drawn payable to the insured . . . and mailed to him, but said check has never been cashed." Defendant further alleges in its answer "that it is due and owing the plaintiff the sum of $7.00," and tenders judgment in this amount.
The plaintiff testified that he tendered the defendant's agent the quarterly premium "due August 27, 1939, within the grace period," which he refused to accept, "and stated as his reason that the policy had been lapsed for the nonpayment of the premium due July 27, 1939." See McAden v.Craig (5th syllabus), 222 N.C. 497, 24 S.E.2d 1. Plaintiff further testified that "he has never received any notice whatever of the lapse of the policy nor has he ever received any premium notices." See G.S., 58-207 (C. S., 6465).
The defendant's local agent testified that he saw the plaintiff on 27 August, 1939, "the last day of grace according to the policy as I understood it. . . . I told him if the policy (premium) wasn't paid that day the grace expired and it would require a certified form before I could collect any money on the policy. . . . I told him the grace would expire that day." Cross-examination: "The last day of grace was the 27th of August, according to my receipts. . . . My receipts are made up at the home office. . . . The 27th day of August is the date the premium would be due under the terms of the policy, and he would have thirty-one days thereafter in which to pay it." Thus the defendant's agent admits that he was misinformed and that he misled the plaintiff.
If the defendant wrongfully terminated or canceled the policy, as may be inferred from the above evidence, it was in derogation of plaintiff's rights. Aiken v. Ins. Co., 173 N.C. 400, 92 S.E. 184. The home office made up the agent's receipts, and even in the answer, filed 21 October, *Page 3 1942, the due date of the premium is alleged to be "July 27, 1939." The trial court held, as a matter of law, that the third quarterly premium was due on 27 August of each year, and that the period of grace, in which it could be paid, extended it in each instance for 31 days thereafter. The issue appears to be one for the jury.
It is urged, however, that the plaintiff does not rely upon his allegation of wrongful cancellation, either in his original brief or in his brief on rehearing. His first exception is to the refusal of the court to submit the issues tendered, including the 4th, which relates to the alleged wrongful cancellation of the policy. See issues set out on original hearing, 223 N.C. 501. In his brief on rehearing, the plaintiff says: "The plaintiff offered evidence on both grounds (tender and wrongful cancellation) and tendered issues on both grounds. The trial court submitted the issue on tender, but refused to submit the issue on wrongful cancellation."
This would seem to dispose of the question, certainly so far as a reversal on petition to rehear is concerned. "No case should be reheard on a petition to rehear unless it was decided hastily and some material point had been overlooked or some direct authority was not called to the attention of the court." Weathers v. Borders, 124 N.C. 610,32 S.E. 881; Weston v. Lumber Co., 168 N.C. 98, 83 S.E. 693; Jolley v. Tel.Co., 205 N.C. 108, 170 S.E. 145.
In the petition to rehear, the defendant for the first time takes the position that the plaintiff can sue only on the contract and not for its breach; that the insured and not the beneficiary has such a cause of action. See Wooten v. Odd Fellows, 176 N.C. 52, 96 S.E. 654, andGorrell v. Water Supply Co. (1st syllabus), 124 N.C. 328, 32 S.E. 720. This is a shift in position which is not permitted on rehearing. Holland v.Dulin, 206 N.C. 211, 173 S.E. 310; Jolley v. Tel. Co., supra. Moreover, the record supports the plaintiff's right to pursue the matter of an alleged wrongful cancellation. 48 A.L.R., 109.
We adhere to the original decision.
Petition dismissed.