#### MATTIE H. MOORE v. LAFAYETTE LIFE INSURANCE COMPANY.

(Filed 13 April, 1927.)

Evidence — Nonsuit—Questions for Jury — Insurance, Life — Payment of Premiums.

Where there is a provision in a policy of- industrial insurance that the policy would be “in benefit” only upon the payment at a certain time weekly of a specified amount, and there is some evidence from which the *539jury may reasonably infer that this condition had been complied with by the insured, the issue should be answered by the jury, and a judgment as of nonsuit upon the evidence in the ease is erroneously entered.

Appeal by plaintiff from Oglesby, J., at September Term, 1926, of Forsyth.

Civil action to recover on a contract of insurance.

On 25 May, 1925, tbe defendant, in consideration of weekly premiums of twenty-five cents eacb, to be paid on every Monday thereafter, issued to James B. Moore a life insurance policy in tbe amount of $175, payable to plaintiff (wife of tbe assured) upon tbe death of tbe assured, provided said policy was then “in benefit”; that is, provided tbe premiums were fully paid, or “in arrears not exceeding four weeks,” at tbe time of tbe death of tbe assured. Otherwise, tbe policy, by its own terms, was to be null and void.

Tbe assured died 28 December, 1925. Plaintiff testified that tbe policy was in tbe possession of tbe assured and in benefit at tbe time of bis death. She further offered a receipt for premiums paid by tbe assured, purporting to bear date “12-17-25” (17 December, 1925). There was other evidence given by tbe defendant’s agent tending to show that tbe last payment was made on 9 November, 1925.

At tbe close of plaintiff's evidence, on motion of defendant, judgment was entered as in case of nonsuit. Plaintiff appeals, assigning errors.

Wallace & Wells for plaintiff.

Benbow, Hall & Benbow for defendant.

Stacy, C. J.,

after stating tbe case: Tbe evidence offered by tbe plaintiff was sufficient to carry tbe case to tbe jury. It is true, tbe evidence is conflicting as to whether tbe premiums were or were not in arrears more than four weeks at tbe time of tbe. assured’s death, but this did not warrant tbe withdrawal of tbe case from tbe jury. Myers v. Kirk, 192 N. C., 700; Smith v. Coach Line, 191 N. C., 589; Shell v. Roseman, 155 N. C., 90. If the plaintiff be entitled to recover under any view of tbe evidence, tbe motion for judgment as of nonsuit should be overruled. It is when — and only when — tbe plaintiff is not entitled to recover in any aspect of tbe case that such motion should be allowed. Christman v. Hilliard, 167 N. C., 4.

Reversed.