#### W. H. POWELL v. NORTH STATE MUTUAL LIFE INSURANCE COMPANY.

(Filed 6 October, 1910.)

1. Appeal and Error — Exceptions to Charge — Allowable — Final Judgment — Two Appeals.

While an exception to a charge should ordinarily be reserved until a final judgment and an appeal taken from the judgment, in this case it is desirable, if not necessary, for the court to pass upon the exception in considering the appeal in the same cause by the adverse party from the refusal of the lower court to sustain a motion for judgment upon the verdict, the latter appeal depending upon the correctness of the charge.

2. Insurance — Policy Contract — Ambiguity—Issues—Evidence, How Considered.

While in interpreting a written policy of life insurance, any ambiguity or doubt as to the true meaning of the words employed is to be, construed favorably to the insured, it is not so as to the evidence in the trial of the issues before a jury; and an instruction that they should allow to the plaintiff a more favorable consideration of the evidence than to the defendant, and resolve any doubt in his favor, is erroneous.

3. Insurance — Policy Contract — Issues Determinative.

When, in an action to recover upon a policy of life insurance, the pleadings raise an issue as to whether there had been a delivery of the policy sued on, that issue should be directly submitted to and passed upon by the jury, the issues as to whether any recovery may be had on the policy, being dependent upon the answer to that issue.

4. Same — Policy Stipulations.

When the pleadings raise an issue as to the delivery of a policy, and there is evidence as to whether there had been a delivery, such as fraud in the procurement, etc., of the policy, the subject of the action, the indisputable clause is but one of the terms of the policy dependent for its efficacy upon the valid delivery thereof, which should first be shown.

5. Insurance — Policy Contract — Delivery—Regulations—Fraud— Evidence.

When the policy of life insurance states that it is “based upon the payment of premiums in advance,” and there is evidence tending to show that, by the rules and regulations of the company, a new examination of the insured is required if it is not delivered within sixty days; that the premium must be paid on *125its delivery, and that it cannot be delivered unless tbe applicant is in good health; that none of these requirements were complied with and the policy was delivered when the insured was sick, only a few days before his death, it is sufficient upon the issue as to whether there had been a valid delivery of the policy sued on.

6. insurance — Principal and Agent — Rules and Regulations — Knowledge Presumed.

An agent of a life insurance company is presumed to have knowledge of the company’s rules and regulations relating to the delivery of policies, and the law requires that he shall act in good faith when he is dealing with the company in his own behalf. . '•

7. Insurance — Policy Contract — Delivery—Requirements.

A requirement in a written policy of life insurance that the policy shall not be effective until there has been a delivery thereof, is valid and binding, and the delivery must be either actual or constructive.

Appeal from Coohe, J., at tbe November Term, 1909, of Edgecombe.

Tbe facts are sufficiently stated in tbe opinion.

F. S. Spruill for plaintiff.

Rouse & Land and Gilliam & Gilliam for defendant.

Plaintiff's Appeal.

"Walker, J.

Tbis action was brought to recover five thousand dollars, tbe amount of an insurance policy alleged to have been issued by tbe defendant on tbe life of Henry D. Teel. Tbe defendant denied that tbe policy bad ever been delivered to Henry D. Teel, and that it bad ever become a binding contract between tbe parties. It averred in tbe answer that Teel, in bis application, bad made a false and material representation as to bis habit of using opium or any of its preparations, with tbe fraudulent intent of procuring tbe policy to be issued to him, as be knew, at tbe time of making tbe statement, that it was false. Issues were submitted to tbe jury which, with tbe answers thereto, are as follows:

1. Did Henry Teel, in bis application for tbe policy, represent that be did not then have and never bad any habit of taking opium or any of its preparations or any narcotics? Ans.: No.

*1262. Did Henry D. Teel, on the date of said application, have tbe habit of taking opium or any of its preparations or any narcotics? Answer: No.

3. Was said representation a material inducement to the issuing of the policy by the defendant ? Answer: No.

4. Did Henry D. Teel, on the 10th day of May, 1907, have the habit of taking opium or any of its preparations or any narcotics? Answer: No.

5. Was the delivery of the policy to Teel fraudulent? Answer ¡¿.No.

6. Did the defendant company, either on the date of the issuing of said policy or the receipt of the note for the first premium, have any knowledge that H. D. Teel had the habit of taking opium or any of its preparations or any narcotics? Answer: No.

In the charge to the jury the court gave the following instruction: “You are instructed that the testimony in this case must be viewed most favorably for the plaintiff; and whenever you are in doubt or uncertainty in respect to the evidence, the same must be solved in favor of the insured.” The defendant excepted, and after the verdict was returned, moved for a new trial, upon the ground that the said instruction was erroneous. The court refused the motion and the defendant again excepted. The defendant then moved to set aside the verdict upon the third, "fourth and fifth issues. The motion was granted and the ease continued for trial upon those issues. The defendant reserved its exception to the refusal of the motion for 9, new trial. The plaintiff moved for^judgment upon the remaining issues, that is, the first, second and sixth. This motion was denied. The plaintiff having excepted and appealed, the defendant also appealed.

If the plaintiff is otherwise entitled to judgment upon issues one, two and six, we think the court erred in giving the instruction to which exception was taken by defendant. As the plaintiff has appealed from the refusal of the court to render judgment in his favor, it becomes necessary to consider the defendant’s appeal in fconnection with the plaintiff’s, although the general rule is that a party cannot appeal from an order refusing *127a new trial until there is judgment, but should reserve his exception until the case is ripe for an appeal by him. The circumstances of this case, though, as we have said, make it necessary and desirable that both appeals should be heard, as we cannot well pass upon the plaintiff’s motion without first ascertaining if there has been a valid verdict upon which a judgment can be entered. If we should decide for the plaintiff and enter judgment, without considering the defendant’s exception to the charge, we might afterwards decide that the defendant’s exception was well taken, which would involve a new trial and thus produce confusion, as judgment would already have been rendered for the plaintiff.

The instruction of the court that the evidence should be viewed most favorably for the plaintiff, and if the jury are in doubt or uncertainty in respect to the evidence, they should solve the doubt in favor of the insured, was erroneous. Asbury v. R. R., 125 N. C., 568. There is no rule of law giving the plaintiff such an advantage over the defendant. We presume his Honor had in mind the rule which requires insurance policies to be construed favorably to the insured, when there is any ambiguity or doubt as to the true meaning of the words which are chosen by the insurance company to express the terms of the contract. Bank v. Insurance Co., 95 U. S., 673. When a motion to nonsuit is made, the testimony is construed most favorably to the plaintiff, but not so as to the evidence in the trial of issues before a jury. In this case the court correctly instructed the jury as to the burden of proof, but went too far in telling them to allow to the plaintiff a more favorable consideration of the evidence than to the defendant, and to resolve any doubt in his favor. This entitles the defendant to a new trial upon the issues, and the plaintiff, consequently, is not entitled to judgment.

But there is another reason which sustains the refusal of the court to render judgment for the plaintiff. The defendant, in its answer, denies that the policy was ever delivered or that any contract of insurance was made, and that question should be settled by the submission of proper issues to the jury before there can be any judgment for the plaintiff. Bryant v. Insur *128 ance Co., 147 N. C., 181. If there was no contract of insurance either because the policy was not delivered or for any other reason, such fraud in its procurement, the indisputable clause providing that the policy shall be absolutely incontestable from date, can be of no avail to the plaintiff. The indisputable clause is but one of the terms of the contract of insurance, and if there was no contract, there can, of course, be no such stipulation. We need not consider the clause with a view of determining its validity and effect, for the jury may find, under proper instructions, that there was no contract between the parties, and we are of the opinion there was evidence fit to be considered and tending to show that there was no such contract. The policy states that it is “based upon the payment of premiums in advance,” and the witness Adams, one of the agents of the company, as partner of H. D. Teel, testified that, by the rules and regulations of the company, if a policy has not been delivered within sixty days, a new examination of the applicant by a physician is required; that the premium must be paid when the policy is delivered, and that a policy cannot be delivered unless the applicant is then in.good health. There was other evidence that the conditions, upon which the policy was to take effect, were not complied with. This case, as now presented, is not like Rayburn v. Casualty Co., 138 N. C., 379, nor is it like Kendrick v. Insurance Co., 124 N. C., 317, and Grier v. Insurance Co., 132 N. C., 545, where the policies had been delivered. In those cases there was no dispute as to the fact of delivery and no suggestion of fraud, and in Grier’s case there was a special provision in the application by which the contract was completed when the policy was issued. H. D. Teel was agent or local manager of the defendant at Tarboro, N. C., and is presumed to have known the rules and regulations relating to the delivery of policies. His position with respect to the company required that he should act in good faith (Sprinkle v. Insurance Co., 124 N. C., 405, 16 A. & E. Enc., 2 Ed., 912), if it did not require that he should disclose to the company any material change in his physical condition, that is, such as he knew would “naturally influence the judgment of the company in making the contract at all or in estimating the degree or character of *129tbe risk, or in fixing tbe rate of premium.” Bryant v. Insurance Co., 147 N. C., 181; Fishblate v. Fidelity Co., 140 N. C., 589. At tbe time tbe policy is alleged to bave been delivered, if there was any delivery, H. D. Teel was in a precarious condition of bealtb and in bis last illness, as be died a day or two after-wards.

If all tbe terms of tbe contract bave been agreed upon witb tbe intention tbat tbe contract shall take effect, tbe formal delivery of tbe policy by tbe insurer and its acceptance by tbe insured, are not essential to its validity, but if it is provided tbat tbe contract shall not become effective until there has been a delivery of the policy to tbe applicant, it will not be binding until delivery, either actual or constructive. 16 Am. & Eng. Enc. (2 Ed.), 855, and cases in note. “Whether an insurance policy has or has not been delivered after its issuance so as to complete tbe contract and give it binding effect, does not depend upon its manual possession by tbe assured, but rather upon tbe intention of tbe parties as manifested by their acts or agreement. As a general rule, whenever one parts witb tbe custody and control of anything witb tbe intention at tbe time tbat it shall pass into tbe possession of another, its delivery to such other person has, in contemplation of law, become complete. Tbe manual possession of tbe thing which it is intended to deliver is a matter of little consequence. Such possession may exist without any legal delivery, and it may not exist where a legal delivery has been effected. Tbe controlling question is not who has tbe actual possession of tbe policy, but who has tbe right of possession.” So we held in Waters v. Annuity Co., 144 N. C., 669, tbat “a binding acceptance can be, and frequently is, indicated by tbe mailing of a letter in due course containing an unconditional acceptance, or by sending a policy to an agent witb instructions for unconditional delivery, where there is no contravening stipulation in tbe contract itself.” Assurance Co. v. McArthur, 116 Ala., 659; Insurance Co. v. Babcock, 104 Ga., 67 (67 Am. St. Rep., 134). We also said in Water’s case, supra, tbat “where a policy which complies witb tbe application has been unconditionally delivered, in tbe absence of fraud, it is held *130to be conclusive evidence that tbe contract of insurance exists between tbe parties.” We do not see why an insurance company may not stipulate in its agreement to insure, that its risk shall not begin until some definite time in tbe future, or until some specified act bas been done. Insurance Co. v. Babcock, supra. There are peculiar facts and circumstances in this case which may have an important bearing upon tbe question as to tbe delivery of tbe policy or tbe completion of tbe contract.

It is considered by us, as necessary to a determination of tbe rights of tbe parties, that issues should be submitted to tbe jury, with proper instructions from tbe court, as to tbe consummation of tbe contract by delivery of tbe policy or otherwise. We will not undertake to formulate tbe issues, as we could not well do so without anticipating what tbe course of tbe next trial will be.

No error.

DEFENDANT'S APPEAL.

Walker, J.

It follows from what we have said in tbe plaintiff’s appeal, that there must be a new trial of tbe case upon all tbe issues, and it is so ordered.

New trial.