#### MAGGIE BYNUM v. THE LIFE INSURANCE COMPANY OF VIRGINIA.

(Filed 24 March, 1943.)

1. Insurance § 30a: limitation of Actions § 2e—

In an action to recover premiums paid by plaintiff: on forfeited life insurance policies on the lives of certain relatives of plaintiff, where summons was issued 17 February, 1942, and the evidence tended to show that such premiums were paid only to 1936, defendant having pleaded the three-year statute of limitations, C. S., 441,- 6465, judgment of nonsuit was properly allowed. C. S., 567.

2. Insurance § 30a—

In an action to recover premiums paid by plaintiff on a forfeited life insurance policy, where the evidence shows that the premiums were paid to date and the policy still in force, there is no cause of action stated and the suit cannot be maintained.

3. Insurance § 32d: Appeal and Error § 39a—

In an action to recover premiums paid on forfeited life insurance policies, judgment of nonsuit, containing a proviso, “without prejudice to the rights of plaintiff in the paid-up policies listed in paragraph (c) of the further answer,” if not in favor of plaintiff, is harmless error.

Stacy, C. X, and Winborne, X, dissent.

Appeal by plaintiff from Pless, J., at September Term, 1942, of BttNcombe.

This is an action to recover the premiums paid by tbe plaintiff on five policies of life insurance, three of which were originally issued in 1898, one in 1901 and one in 1903; four being on the lives of certain relatives of the plaintiff and one on her own life.

The premiums on the four policies on the lives of the relatives of the plaintiff were paid by her until 1936, and the premiums on the policy on her own life were paid by her up to the time of the institution of this action, 17 February, 1942.

"When the plaintiff had introduced her evidence and rested her case the defendant moved for a judgment as in case of nonsuit (C. S., 567), which motion was allowed, and from judgment predicated upon such ruling the plaintiff appealed, assigning error.

George F. Meadows for plaintiff, appellant.

Adams & Adams for defendant, appellee.

*743Schenck, J.

Tbe defendant interposed a plea of tbe three years statute of limitation to tbe plaintiff's alleged cause of action in so far as it related to tbe premiums paid on tbe policies issued on tbe lives of tbe relatives of tbe plaintiff. Tbe evidence of tbe plaintiff is to tbe effect tbat these policies were canceled for tbe nonpayment of premiums on 19 March, 1936.

It is stipulated by tbe parties tbat summons was issued 17 February, 1942; hence, it appears tbat tbe action was barred by tbe provisions of C. S., 441 and 6465, tbe latter of which, in part, reads: “No action shall be maintained to recover under a forfeited policy unless tbe same is instituted within three years from tbe day upon which default was made in paying tbe premium, installment, interest, or portion thereof for which it is claimed tbat forfeiture ensued.”

Since this action is stated to be for tbe recovery of premiums paid on forfeited policies, and since tbe evidence of tbe plaintiff is to tbe effect tbat tbe premiums on tbe policy on tbe life of the plaintiff herself have been paid to date and tbat tbe policy is still in force, no cause of action to recover premiums on a forfeited policy can be maintained on tbe policy involved.

It follows tbat there was no error in sustaining tbe demurrer to tbe evidence of tbe plaintiff and entering judgment as in case of nonsuit.

However, tbe plaintiff appellant complains tbat bis Honor added to bis judgment tbe following proviso: “Without prejudice, however, to tbe rights of the plaintiff in tbe paid-up policies listed in paragraph (c) of tbe further answer,,as follows:

> “Policy No. 769037, on tbe life of Annie Bynum.$49.00

> Policy No. 793721, on tbe life of Henry Bynum.$47.00

> Policy No. 1054743, on tbe life of Annie Bynum .$46.00

> Policy No. 1385773, on tbe life of Martha Bynum.$41.00.”

If this proviso be error, such error, if not in favor of tbe plaintiff, appellant, was certainly harmless to her. It was doubtless entered to put of record tbat tbe court did not intend to foreclose by tbe judgment any person from any benefits be or she might have under tbe paid-up policies which tbe defendant admitted existed upon tbe death of tbe insureds therein named. Tbe record, however, does not divulge who tbe beneficiaries of tbe policies are, and tbe proviso is therefore not binding against any person who may be interested in any benefits under tbe policies.

Affirmed.

Stacy, O. J., and WiNBORNE, J., dissent.