On Motion for Rehearing.
PLEASANTS, Chief- Justice(dissenting).
Appellant, in an able motion for rehearing and oral argument submitted on the motion, vigorously assails our judgment affirming the judgment of the trial court, on two grounds. The first ground of assault is based upon the theory that the $100 coupon which matured at the expiration of the first year for which the premium on the policy was paid did not constitute funds in appellant’s hands belonging to the insured which it was in any circumstances required to wholly appropriate to prevent the forfeiture of the policy. This theory is based upon the following provisions of the coupon: “Sterling Mutual Life Insurance Company will accept this guaranteed coupon as One Hundred Dollars ($100.00) in part payment on the second or any subsequent annual premium on policy No. 687 or pro rata on semiannual or quarterly premiums or will credit the amount hereof to the insured” hereunder, payable as stated in said policy with three and one-half percent (3½.%) compound interest. A. M. Miller, President.”
Appellant earnestly insists that this provision of the contract can only be construed as giving the insured the right to use such • pro rata part of the $100 in payment of yearly, semiannual or quarterly premiums on the policy, as the $100 bears to the yearly premium; and that the insured having been duly notified of the accrual of the premium for the second year, and having made no offer to pay in cash any part of the premium necessary to keep the policy in force for three, six, or- twelve months, the policy became forfeited for nonpayment of premium at the expiration of thirty-one days from the due date of the second yearly premium.
The question is not wholly free from doubt. But when the insurance contract is construed as a whole and its primary purpose of protecting the family of the insured from loss by his death is given due consideration, I agree with my associates that the motion should not be granted on this ground. In my opinion the coupon was a fund in the hands of the appellant belonging to the insured which equity would have required it to apply in full to prevent a forfeiture of the policy, if the insured had not by other provisions of the policy expressly prohibited such application of the $100 evidenced by the coupon, unless authorized by him.
As shown in our original opinion the policy in this case gave the insured several options in the application of the $100 coupon which became due and owing to him at the expiration of the first insurance year. The second of these options is as follows: “Leave said coupons with the company to draw 3½,°/o compound interest and withdrawable at any time in cash, or payable at their face value plus accumulated interest thereon in ease of death.” The policy further provides that “unless the insured shall elect otherwise in writing, the coupon shown shall be held at 3½% compound interest and shall be withdrawable at any time in cash, or payable to the beneficiary under this policy in case of the death of the insured.” There is no ambiguity in this language, its meaning is plain, and it seems to me that no sound reason can be given for not holding it valid and binding upon both parties to the contract.
Counsel for neither of the parties have found, any case in this state in which this question has been presented upon a state of facts exactly similar to the facts of this case. It seems to the writer that it is unnecessary for appellant to present any such authorities, since there is no principle of equity or rule of law that required or permitted appellant upon the undisputed facts of this case to apply the fund in its hands to the payment of the premium upon the policy. The question here presented has been discussed and decided in the case of Gardner v. Life Ins. Co., 201 N. C. 716, 161 S. E. 308, in which the facts were in substance exactly the same as in this case.
I respectfully dissent from the holding of *548the majority of this court refusing the motion for rehearing. I think the motion should be granted, and dhe judgment of the trial court so reformed as to limit appel-lees’ recovery to the sum of $100 with compound interest at the rate of 3½ per cent, per annum from the date the coupon matured.