#### JOHN B. SOWELL v. TRAVELERS INSURANCE COMPANY.

(Filed 21 November, 1934.)

Insurance F e — Employee held insured under .lower group of employees and nonsuit was properly entered in action to i*ecover under higher group.

Employees under a group policy of insurance were divided into two classes, in accordance with their position with the company, a higher premium being deducted from the salaries of the higher group and the higher group being insured for a larger amount. Plaintiff, with knowledge of the two classes and of the premiums of each, was promoted from the lower class to the higher class, and the deductions from his salary for the insurance correspondingly increased, and was thereafter demoted to the lower class, but the employer continued to deduct from his salary the premiums for the higher class, but insurer did not receive such overcharge. Plaintiff thereafter became disabled under the terms of the policy, and insurer paid him the insurance for the lower class and the employer tendered him the overcharge of premiums. Plaintiff brought *373this action to recover of the insurer the amount of insurance for the higher class: BeUL, insurer’s motion as of nonsuit was properly allowed. jDeese v. Ins. Go., 204 N. 0., 214, is distinguished.

Sci-iEwcK, J., took no part in the consideration or decision of this case.

Appeal by plaintiff from Schench, J., at February Term, 1934, of BUNCOMBE.

Civil action to recover on a certificate of group insurance issued by defendant to plaintiff as an employee of Rogers Store, Inc., a subsidiary of Southern Grocery Stores, Inc.

The schedule of insurance set out in the master policy issued by defendant to the employer shows $1,000 for “Managers” and $3,000 for “Superintendents.” The amount deducted monthly for managers was sixty cents and for superintendents, $1.80. The policy provides: “If the employee’s occupation or position shall change so as to place him in a different class, the amount of his insurance shall, on the date such change becomes effective, change to the amount provided in the above table for the class in which his new occupation or position shall place him.”

The plaintiff was originally employed as manager. On 1 February, 1928, he was promoted to superintendent, which position he held until August, 1930, when he was demoted to manager. His insurance and the monthly premiums to be retained increased or decreased as the plaintiff was promoted or demoted.

After plaintiff was demoted from superintendent to manager, the employer continued to deduct the higher premium until the overcharge amounted to $8.40.

The plaintiff has been paid by the defendant $1,000, the amount due a manager under the policy, and his employer has tendered him the overcharge of $8.40. He sues for $2,000, the difference between the amount paid him by the defendant and the amount he would have been entitled to receive had he remained superintendent up to the time of his disability. The basis of his claim is that he was overcharged by his employer after his demotion from superintendent to manager. This excess or overcharge was never paid to the defendant.

The court, being of opinion that the defendant had discharged its full liability under the policy, dismissed the action as in case of nonsuit, and the plaintiff appeals.

Richard H. Moser and G. O. Jackson for plaintiff.

Johnson, Rollins <& TJzzell for defendant.

Stacy, C. J.,

after stating the case: The nonsuit is correct. The plaintiff knew the amount of his insurance, as well as the monthly pre*374miums to be deducted by tbe employer, changed back and forth accordingly as he was demoted or promoted from one classification to another. With this knowledge he cannot, while manager, be heard to say he was superintendent.

In the case of Deesa v. Ins. Co., 204 N. C., 214, 167 S. E., 797, cited and relied upon by plaintiff, the employee had no such knowledge or information. The two cases are not alike.

Affirmed.

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