#### ANDERSON CHAMBERLAIN v. HOME SECURITY LIFE INSURANCE COMPANY.

(Filed 20 June, 1934.)

1. Appeal and Error J g — Consideration of issue based on cause of action abandoned during trial held not necessary to decision of appeal.

Where plaintiff alleges two causes of action, but apparently abandons the second and fails to tender an issue as to damages thereon and the court fails to submit such issue to the jury, the answer of the jury to a prior issue based exclusively on matters pertaining to the cause of action abandoned need not be considered in deciding the questions involved in the appeal.

2. Courts A a — Sum demanded in good faith held to exceed two hundred dollars and Superior Court has jurisdiction.

Plaintiff brought this action in the Superior Court, alleging that he had three policies of insurance issued by defendant insurer on different dates, that he tendered insurer’s agent, while the policies were in force, the amount due on premiums in arrears, and that insurer refused to accept the sum tendered and canceled each of the policies because plaintiff refused to pay premiums in arrears due on a policy issued by the insurer to plaintiff’s wife, and that such cancellation was wrongful, wilful, wanton and malicious. Plaintiff demanded damages in the sum of $168.20, the amount paid by him as premiums on the policies, together with $500.00 punitive damages. Plaintiff did not tender an issue as to punitive damages nor did the court submit such issue. Defendant insurer demurred to the complaint on the ground that the cause of action was within the exclusive jurisdiction of a justice of the peace. Held, the demurrer was properly overruled, the simultaneous cancellation of the three policies constituting a single cause of action, and the sums demanded as actual and punitive damages being different elements of damage accruing from the single cause of action, and it being impossible to determine as a matter of law that the demand for punitive damages was not made in good faith.

3. Insurance H d — Measure of damages for wrongful cancellation of policy.

In an action to recover against insurer for its wrongful cancellation of a policy of insurance plaintiff may recover the sums paid by him *623as premiums on tlie policy if lie so elects, or in proper cases lie may recover tlie value of tlie policy at tlie date of cancellation, or tlie sum presently required to obtain like protection for plaintiff.

4. Appeal and Error J e—

Exceptions to tlie court’s charge in this case are not sustained, it appearing that appellant ivas not prejudiced by the instructions given.

Schenck, X, took no part in the consideration or decision of this case.

Appeal by defendant from Stack, Jat February Term, 1934, of G-astoN.

No error.

This is an action to recover damages for the wrongful, wilful, wanton and malicious cancellation by the defendant of three policies of insurance on the life of the plaintiff issued to him by the defendant, and also to recover on one of said policies for a disability resulting from an injury to plaintiff’s hand.

In his complaint, the plaintiff alleges that from the issuance of said policies to their cancellation, he paid to the defendant the sum of $168.20, as premiums on said policies; and that he is entitled to recover the said sum as his actual damages resulting from the cancellation of said policies by the defendant. He also alleges that in addition to his actual damages, he is entitled to recover of the defendant the sum of $500.00, as punitive damages, for the reason that the cancellation of said policies by the defendant was not only wrongful and unlawful, but also wilful, wanton and malicious.

He further alleges that while said policies were in force, he suffered a disability, resulting from an injury to his hand, and that by the terms of one of said policies, he is entitled to recover of the defendant on account of said disability the sum of $6.00.

In its answer, the defendant admits the issuance and cancellation of said policies of insurance, and the payment by the plaintiff as premiums on said policies, prior to their cancellation, of the sum of $168.20; it denies, however, that the cancellation of said policies was wrongful and unlawful, or wilful, wanton and malicious; it also denies that it is liable to plaintiff for the disability resulting from an injury to his hand, as alleged in the complaint. It prays judgment that the plaintiff recover nothing by his action, and that it recover its costs.

At the trial, the evidence for the plaintiff tended to show that the defendant issued to the plaintiff three policies of insurance on his life, one dated 14 April, 1924; one dated 18 February, 1924; and one dated 30 November, 1931; that the premiums on said policies were payable weekly, the total amount of said premiums being seventy cents per week; and that some time in March, 1933, the defendant, over the protest of the plaintiff and without his consent, canceled all of said *624policies. At tbe date of such cancellation, tbe plaintiff paid to tbe agent of the'defendant tbe sum of $1.75, wbicb sum was sufficient to pay tbe premiums tben in arrears, and to keep tbe said policies in force.

There was evidence tending to sbow tbat tbe defendant bad issued to tbe wife of tbe plaintiff policies of insurance on her life, and tbat tbe premiums on said policies were in arrears in March, 1933; and tbat tbe agent of tbe defendant refused to accept from tbe plaintiff tbe sum required to pay tbe premiums tben in arrears on tbe policies issued to him, unless plaintiff also paid tbe premiums tben in arrears on tbe policies issued to bis wife. Tbe plaintiff testified tbat tbe agent of tbe defendant refused to apply tbe sum of $1.75, wbicb be bad paid to said agent, in payment of tbe premiums on bis policies, but returned said sum to plaintiff, and canceled bis policies, as well as tbe policies on tbe life of bis wife. Because of bis advanced age and physical infirmities, plaintiff has been unable to procure other policies on bis life.

There was also' evidence tending to show tbat while tbe policies issued to tbe plaintiff by tbe defendant were in force, plaintiff suffered an injury, wbicb caused a disability wbicb was covered by one of said policies; and tbat defendant wrongfully refused to furnish to tbe plaintiff blanks on wbicb be was required by tbe terms of said policy to make proof of bis loss. Tbe amount wbicb plaintiff was entitled to recover on -account of sucb disability was $6.00.

There was also evidence tending to show tbat tbe total amount of tbe premiums paid by tbe plaintiff to tbe defendant on said policies, prior to their cancellation was $168.20.

At tbe close of tbe evidence for tbe plaintiff, tbe defendant demurred ore terms to tbe complaint, on tbe ground tbat tbe Superior Court was without jurisdiction of tbe action, for tbat tbe amount involved was less than $200.00. Tbe demurrer was overruled, and defendant excepted.

Tbe evidence offered by tbe defendant tended to show tbat tbe cancellation of tbe policies on tbe life of tbe plaintiff was not wrongful or unlawful, but was in accord with tbe terms and provisions of said policies, and was at tbe request of tbe plaintiff, who bad advised defendant tbat be was unable to pay tbe premiums in arrears at tbe date of said cancellation.

No issue involving punitive damages was tendered by tbe plaintiff or submitted by tbe court. Tbe issues submitted to tbe jury were as follows:

“1. Did tbe defendant wrongfully refuse to give tbe plaintiff tbe form for proof of claim for injury to bis band, as alleged in tbe complaint? Answer: .

2. Did tbe plaintiff on.March, 1933, pay or tender to defendant’s agent tbe sum of $1.75, wbicb would bring plaintiff’s policies within tbe grace period of said policies ? Answer: .

*6253. Did tbe defendant wrongfully cancel or suspend tbe policies of tbe plaintiff as alleged in tbe complaint ? Answer:.

4. Did tbe plaintiff pay tbe premiums on bis policies as provided in said policies, for bis benefit and protection, in tbe approximate sum of $168.00? Answer: .

5. What amount, if any, is plaintiff entitled to recover of tbe defendant ? Answer : .”

In its charge to tbe jury, tbe court stated tbe contentions of both tbe plaintiff and defendant witb respect to eacb of tbe first four issues and fully instructed tbe jury witb respect to tbe law applicable to eacb of said issues. Tbe court then instructed tbe jury witb respect to tbe 5tb issue, as follows:

“If you answer eacb of tbe first four issues, ‘Tes,’ in favor of tbe plaintiff, tben tbe court instructs tbe jury to answer tbe 5tb issue, ‘$168.20’; but if you answer tbe said issues ‘No,’ or any one of them ‘No,’ you will answer tbe 5tb issue, ‘Nothing.’ Tbe defendant excepted to this instruction.

After tbe court bad concluded its charge, but before tbe jury bad retired, counsel for defendant stated to tbe court, in tbe presence of tbe jury, that defendant contended that its agent did not refuse to allow plaintiff to pay premiums on one or any number of tbe policies, but that it refused to accept tbe sum of $1.15, as tbe full amount due as premiums on all tbe policies. Tbe court tben said to tbe jury:

“Yes, gentlemen, tbe defendant contends that, and offered evidence to support that contention. If you find witb them, you will answer at least some of these issues in tbe negative.” Tbe defendant excepted to this instruction.

Tbe jury answered eacb of tbe first issues, ‘Yes,” and tbe 5th issue, “$168.20.”

From judgment that plaintiff recover of tbe defendant tbe sum of $168.20, together witb tbe costs of tbe action, tbe defendant appealed to tbe Supreme Court.

W. H. Sanders for plaintiff.

Bulwinhle & Doiley for defendant.

Connor, J.

Two causes of action are alleged in tbe complaint in this action. On tbe first cause of action, tbe plaintiff seeks to recover damages, both actual and punitive, for tbe wrongful, wilful, wanton and malicious cancellation of tbe policies of insurance on bis life issued to him by tbe defendant. On tbe second cause of action, be seeks to recover tbe amount of bis claim for a disability resulting from an injury to bis band, which was covered by one of said policies. Tbe second *626cause of action was apparently abandoned by the plaintiff at the trial. No issue was tendered by the plaintiff or submitted by the court, involving the amount, if any, which the plaintiff was entitled to recover of the defendant on his second cause of action. For that reason, the affirmative answer to the first issue need not be considered in deciding the questions involved in this appeal. In effect, the plaintiff suffered a nonsuit on his second cause of action.

The first cause of action alleged in the complaint is founded on contract. It is alleged in the complaint that the defendant breached its contracts with the plaintiff, as evidenced by the three policies of insurance which were issued to the plaintiff by the defendant, by its wrongful, wilful, wanton and malicious cancellation of said policies. The facts alleged in the complaint are sufficient to constitute a single cause of action. The three policies of insurance were canceled by the defendant simultaneously. But one cause of action is alleged in the complaint as arising out of the cancellation of the policies. For purposes of jurisdiction, the fact that three policies of insurance, all issued by defendant to plaintiff, but at different dates, and for different amounts, were canceled, is immaterial. McGowan v. Ins. Co., 141 N. C., 361, 54 S. E., 287.

As his damages accruing on his first cause of action, the plaintiff demands judgment that he recover of the defendant (1) the sum of $168.20, this being the amount which he had paid to the defendant as premiums on his policies prior to their cancellation; and (2) the sum of $500.00, this being the amount which he alleges he is entitled to recover as punitive damages. These sums constitute different elements of the damages which accrued from a single cause of action. See Thompson v. Express Co., 144 N. C., 389, 57 S. E., 18, and Hall v. Telegraph Co., 139 N. C., 369, 52 S. E., 50.

In Braswell v. Ins. Co., 75 N. C., 8, which was an action to recover damages for the wrongful cancellation of a policy of insurance on the life of the plaintiff, it was held that where plaintiff elected to demand as his damages the amount paid by him as premiums on his policy, prior to its wrongful cancellation, he could recover such amount as money had and received by the defendant for his use. The judgment for such amount was affirmed.

This principle, when invoked by the plaintiff in an action to recover damages for the wrongful cancellation of a policy of insurance, was approved in Garland v. Ins. Co., 179 N. C., 67, 101 S. E., 616. In that ease it was held, however, that in a proper case the plaintiff was entitled to recover the value of the policy at the time it was wrongfully canceled, or the amount which would enable him to procure another policy affording him the same protection as that which he had under the policy which was wrongfully canceled.

*627It cannot be held as a matter of law that on the facts alleged in the complaint in the instant case, the plaintiff was limited in his recovery for the cancellation of his policies to the amount paid by him as premiums on said policies, prior to their cancellation, and that his allegation that he was entitled to recover punitive damages was not in good faith.

It has been uniformly held by this Court that in actions on contract, the amount demanded in good faith in the complaint is determinative of the jurisdiction of the action. Where such amount exceeds $200.00, the Superior Court has original jurisdiction. Martin v. Goode, 111 N. C., 288, 16 S. E., 232. There was no error in the refusal of the court to sustain the demurrer ore tenue to the complaint, on the ground that the Superior Court was without jurisdiction of this action.

There was no error in the instruction of the court to the jury, both in the charge and after the conclusion of the charge, that if the jury should answer either of the first four issues in the affirmative, they should answer the 5th issue “$168.20”; but that if they should answer either of said issues in the negative, they should answer the 5th issue, “Nothing.” It does not appear that the defendant was prejudiced by this instruction.

We find no error in the trial of the action. The judgment is affirmed.

No error.

Schekck, J., took no part in the consideration or decision of this case.