{ "id": 8626369, "name": "DOROTHY K. BRYANT, Administratrix of the Estate of CLYDE JAMES BRYANT, Deceased v. OCCIDENTAL LIFE INSURANCE COMPANY OF N. C., a corporation", "name_abbreviation": "Bryant v. Occidental Life Insurance Co.", "decision_date": "1960-12-14", "docket_number": "", "first_page": "565", "last_page": "568", "citations": [ { "type": "official", "cite": "253 N.C. 565" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "32 S.E. 733", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "124 N.C. 395", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659485 ], "opinion_index": 0, "case_paths": [ "/nc/124/0395-01" ] }, { "cite": "32 A.L.R. 2d 487", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "pin_cites": [ { "page": "p. 493" } ], "opinion_index": 0 }, { "cite": "105 S.E. 2d 282", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "249 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608424 ], "pin_cites": [ { "page": "94" } ], "opinion_index": 0, "case_paths": [ "/nc/249/0090-01" ] }, { "cite": "48 S.E. 642", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "136 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658805 ], "opinion_index": 0, "case_paths": [ "/nc/136/0089-01" ] } ], "analysis": { "cardinality": 409, "char_count": 8564, "ocr_confidence": 0.553, "pagerank": { "raw": 9.505882454708161e-08, "percentile": 0.5230893770254559 }, "sha256": "0a6bda052da92c68a8f57c180d834411768846741a0ea06a17d6f5f38273d466", "simhash": "1:2e3bcd4b8bfc0545", "word_count": 1362 }, "last_updated": "2023-07-14T21:02:38.064481+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Winborne, C. J., took no part in the consideration or decision of this case." ], "parties": [ "DOROTHY K. BRYANT, Administratrix of the Estate of CLYDE JAMES BRYANT, Deceased v. OCCIDENTAL LIFE INSURANCE COMPANY OF N. C., a corporation." ], "opinions": [ { "text": "Bobbitt, J.\nThe question discussed in the briefs is whether the two \u201ccauses of action\u201d are \u201cmutually repugnant and inconsistent.\u201d\nA cause of action consists of the facts alleged in the complaint. G.S. 1-122; Lassiter v. R. R., 136 N.C. 89, 48 S.E. 642; Stamey v. Membership Corp., 249 N.C. 90, 94, 105 S.E. 2d 282.\nNo fact alleged by plaintiff in one \u201ccause of action\u201d is inconsistent with or contradictedi by any fact alleged in the other. On the contrary, the allegations in the two \u201ccauses of action\u201d are entirely consistent, and, except as indicated, are identical.\nNo policy was issued by defendant. The factual allegations contained in plaintiff\u2019s \u201cfirst cause of action\u201d are that defendant \u201cunreasonably delayed\u201d acting upon Bryant\u2019s application from September 21, 1959, until after his death on November 14, 1959, and did not, during said period, tender or return the amount of the first premium forwarded to it with Bryant\u2019s application. Apart from such delay, no fact is alleged indicating that defendant had accepted or would accept Bryant\u2019s application.\nIn an exhaustive annotation in 32 A.L.R. 2d 487, at p. 493, many decisions, including Ross v. Ins. Co., 124 N.C. 395, 32 S.E. 733, are cited in support of this statement: \u201cBased on the doctrines that an application for insurance is a mere offer, which must be accepted before a contract of insurance can come into existence, andi that silence and inaction do not amount to an acceptance of an offer, the overwhelming weight of authority is to the effect that, at least in the absence of additional circumstances, no inference or presumption of acceptance which would support an action ex contractu can be drawn from mere delay or inaction by the insurer in passing on the application.\u201d Also, see 29 Am. Jur., Insurance \u00a7 203; 44 C.J.S., Insurance \u00a7 232. In the Ross case, which deals with a factual situation quite similar to that alleged in plaintiff\u2019s \u201cfirst cause of action,\u201d Fair cloth, C. J., said: \u201cEven long delay by the defendant could not presume an acceptance. The natural and legal inference is to the contrary.\u201d\nTrue, plaintiff, in her \u201cfirst cause of action,\u201d asserts that defendant\u2019s unreasonable delay in acting upon Bryant\u2019s application, together with the retention of the premium, \u201cconstituted an acceptance of said application\u201d by defendant; but, as indicated above, this is nothing more than an erroneous legal conclusion. Notwithstanding she purports to allege two separate causes of action, plaintiff bases her right to recover upon an alleged single wrong, to wit, the alleged negligent failure of defendant to act upon Bryant\u2019s application within a reasonable time.\nNo question is presented as to whether any of plaintiff\u2019s allegations should be stricken upon the ground of redundancy or otherwise upon motion made under G.S. 1-153. Nor does this appeal present any question as to whether the facts alleged are sufficient to state a cause of action. Defendant did not demur, either in the superior court or in this Court.\nThe decision on this appeal is simply this: It was error to strike the allegations constituting the portion of the complaint designated \u201csecond cause of action\u201d on the ground that these allegations and the allegations constituting the portion of the complaint designated \u201cfirst cause of action\u201d were \u201cmutually repugnant and inconsistent.\u201d\nReversed.\nWinborne, C. J., took no part in the consideration or decision of this case.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Spears, Spears & Powe and Alexander H. Barnes for plaintiff, appellant.", "Smith, Leach, Anderson & Dorsett and C. K. Brown, Jr., for defendant, appellee." ], "corrections": "", "head_matter": "DOROTHY K. BRYANT, Administratrix of the Estate of CLYDE JAMES BRYANT, Deceased v. OCCIDENTAL LIFE INSURANCE COMPANY OF N. C., a corporation.\n(Filed 14 December, 1960.)\n1. Pleadings \u00a7 2\u2014\nA cause of action consists of tbe facts alleged in the complaint. G.S. 1-122.\n2. Pleadings \u00a7 34: Insurance \u00a7 10\u2014 Causes of action asserted held not inconsistent and action of court striking one of the causes upon refusal of plaintiff to make election, was error.\nThe complaint purported to allege two separate causes of action based upon the single circumstance of delay of insurer in acting upon intestate\u2019s application for life insurance, the first cause ex contractu upon the assertion that such delay, together with the retention of the premium, constituted an acceptance of the application, and the second in tort upon assertion that if the axiplication had been rejected within a reasonable time intestate, being in good health, would have had sufficient time to have secured similar insurance with another insurer. SelcL: The two asserted causes of action are not repugnant and it was error for the court to strike, on motion, the allegations of the second cause of action on the ground that the two causes of action were inconsistent.\nWinborne, G. J., took no part in the consideration or decision of this case.\nAppeal by plaintiff from Mallard, J., April Term, 1960, of Dtjeham.\nPlaintiff appeals from an order striking all allegations of the complaint (26 paragraphs) designated as plaintiff\u2019s \u201csecond cause of action.\u201d\nThe complaint purports to allege two separately stated causes of action. In each, plaintiff alleges that Clyde James Bryant, her intestate, on September 21, 1959, executed, and delivered to defendant\u2019s agent an application for a $5,000.00 life insurance policy and delivered to said agent the amount of the first premium, and that defendant, prior to Bryant\u2019s death on November 14, 1959, had not acted upon Bryant\u2019s application.\nIn her (the portion so designated) first cause of action, plaintiff, in substance, alleges the receipt given Bryant for the first premium stipulated: If Bryant\u2019s application was approved by defendant, the policy \u201cwould take effect from the date of the application, or the medical examination, if required.\u201d If defendant rejected Bryant\u2019s application, \u201csaid premium would be promptly returned.\u201d Defendant did not tender or return the said premium to Bryant. After Bryant\u2019s death, defendant\u2019s agent \u201cvisited the plaintiff and attempted to return said premium to her in return for said receipt.\u2019.\u2019 Defendant\u2019s \u201cunreasonable delay\u201d in acting upon Bryant's application, together with the retention of the premium, \u201cconstituted an acceptance of said application\u201d by defendant. Due proof of Bryant\u2019s death was furnished defendant. Hence, plaintiff is entitled to recover $5,000.00.\nIn her (the portion so designated) second cause of action, plaintiff alleges, in addition to facts alleged in her first cause of action, the following: Bryant was in good health from September 21, 1959, until his last illness, which commenced November 9, 1959. Bryant had suffered in the past from tuberculosis. On September 21, 1959, his tuberculosis was \u201cstable and inactive.\u201d Bryant\u2019s application so advised defendant and gave information as to medical sources that could supply information as to Bryant\u2019s health. Defendant, upon investigation, would have determined that Bryant\u2019s tuberculosis was \u201cstable and inactive.\u201d Upon making such determination, defendant would not have refused to issue life insurance to Bryant solely because of such tuberculosis and would not have required Bryant to undergo a general medical examination before issuing life insurance to him. Bryant\u2019s death was not caused or related in any way to tuberculosis but by a condition \u201cpreviously undetected and which would not have been detected in a general medical examination.\u201d Defendant made no effort to ascertain the status of Bryant\u2019s health prior to his death. If it had done so, it would have determined that Bryant was in good health and would have issued the policy. If defendant had rejected Bryant\u2019s application within a reasonable \u25a0time, Bryant would have had sufficient opportunity to have secured similar insurance with another company. Hence, plaintiff is entitled to recover $5,000.00 on account of defendant\u2019s negligent failure to act upon Bryant\u2019s application within a reasonable time.\nAt the hearing on defendant\u2019s motion to strike, Judge Mallard stated he was of the opinion the first and second causes of action \u201cwere mutually repugnant and inconsistent,\u201d and gave plaintiff an opportunity to elect \u201cwhich of the two alleged causes 'of action\u201d plaintiff desired to retain in the complaint. It was then stated by plaintiff\u2019s counsel that \u201cplaintiff would not make an election between the two alleged causes of action.\u201d Thereupon, Judge Mallard entered the order striking all allegations of the complaint designated as plaintiff\u2019s \u201csecond cause of action.\u201d\nSpears, Spears & Powe and Alexander H. Barnes for plaintiff, appellant.\nSmith, Leach, Anderson & Dorsett and C. K. Brown, Jr., for defendant, appellee." }, "file_name": "0565-01", "first_page_order": 605, "last_page_order": 608 }