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Ciccone v. Colonial Life Insurance Co.

Decided: January 31, 1933.

CLARA CICCONE, PLAINTIFF-RESPONDENT,
v.
THE COLONIAL LIFE INSURANCE COMPANY OF AMERICA, DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the appellant, Autenreith, Gannon & Wortendyke.

For the respondent, Saul Nemser (Gerald T. Foley, of counsel).

Heher

The opinion of the court was delivered by

HEHER, J. Plaintiff brought this action upon a policy of insurance issued by defendant upon the life of her deceased husband. She was the designated beneficiary. The trial judge directed a verdict in here favor, and defendant appealed from the judgment entered thereon.

The insured died on March 28th, 1929. The policy provided for the payment of the annual premium in quarterly installments on the 13th day of January, April, July and October. The answer alleged a default in the payment of the premium due on October 13th, 1928, and that by reason of the continuance of the default to November 15th, the policy lapsed and became void. It was also alleged that the policy was not reinstated in the manner therein provided.

The evidence established the payment to defendant, on December 28th, 1928, of the premium in default. It was paid by the insured's check to the order of defendant, and was endorsed by the latter and deposited in one of its bank accounts. It was not thereafter returned to the insured.

The first ground for reversal is that the trial court erred in denying defendant's motion for a nonsuit. It is contended that this motion should have been granted because the plaintiff, in her reply, pleaded a waiver of the default in the payment of the premium "under an agreement between the plaintiff and the defendant," and failed to prove such agreement.

The reply does, in fact, allege an agreement with the plaintiff, but this apparently was treated at the trial as a misstatement of the pleader, and the case was tried on the theory that the waiver asserted by plaintiff resulted from the acceptance by defendant of the premium in default. Defendant

will not now be permitted to urge the impropriety of the trial court's ruling because it disregarded the precise issue raised by the pleadings. Berg v. Rapid Motor Vehicle Co., 78 N.J.L. 724; Garretson v. Appleton, 58 Id. 386; Phillips v. Borough of Longport, 90 Id. 212.

The second and third grounds of appeal are that the trial court erred in rejecting the defendant's offer in evidence of conversations between the witness, Cipriano, and the plaintiff, presumably offered for the purpose of showing that the premium in default was received conditionally, and of book entries made or directed by, and other acts of, this witness, offered for the same purpose.

These questions are not properly raised by the grounds of appeal. There was a failure to comply with the well established rule that the grounds of appeal, in the case of rulings on evidence, should state the name of the witness, and the questions or answers objected ...


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