#### THOMAS T. WYCHE v. NEW YORK LIFE INSURANCE COMPANY et al.

(Filed 19 September, 1934.)

Insurance OR c — Findings held not to support judgment for insured in action on disability clause, and case is remanded for further findings.

Where, in an action by insured to recover an annual premium paid under protest upon the ground that payment of the premium was waived under the disability clause of the policy, the parties agree that the court should find the facts, and the court finds that insured was disabled within the terms of the policy, and enters judgment for insured, but it does not appear from the findings when insurer received due proof of such disability, or that such disability had then existed for not less than sixty days as required by the policy, the findings do not support the judgment, and the case will be remanded for further proceedings.

Appeal by defendant from *Pless, J.,*at July Term, 1934, of Haywood.

Civil action to recover 1934 annual premium on insurance policy paid under protest.

Tbe facts are these:

1. On 26 February, 1919, tbe defendant issued to tbe plaintiff a policy of insurance containing, among other things, tbe following provisions:

“Total AND PeemaNent Disability BeNeeits.

“Whenever tbe company receives due proof, before default in tbe payment of premium, tbat tbe insured, before tbe anniversary of tbe policy *46on which the insured’s age at nearest birthday is 60 years and subsequent to Jhe delivery hereof, has become wholly disabled by bodily iujury or disease so that he is and will be presumably thereby permanently and continuously prevented from engaging in any occupation whatsoever for remuneration or profit, and that such disability has then existed for not less than sixty days . . .

“(1) Waiver of Premium. Commencing with the anniversary of the policy next succeeding the receipt of such proof, the company will on each anniversary waive payment of the premium for the ensuing insurance year,” etc.

2. The annual premiums on said policy have been duly paid up to and including the premium of $75.60 due 26 February, 1934, which was paid under protest, because at that time, it is alleged, the plaintiff was “less than sixty years of age and has become wholly disabled by disease so that he is now and will be presumably thereby permanently and continuously prevented from engaging in any occupation whatsoever for remuneration or profit, and such disability has existed for more than sixty days prior to the commencement of this action, which was instituted 19 April, 1934.”

3. On appeal to the Superior Court, a jury trial was waived and the court found the facts as alleged by the plaintiff.

From a judgment for the plaintiff the defendant appeals, assigning errors.

*Thomas Troy Wyche in propria persona.*

*Johnson, Rollins é TIzzeTl for defendant.*

Staoy, C. J.

The demurrer to the evidence was properly overruled on authority of the first *Mitchell case,*205 N. C., 721, 172 S. E., 497. But the facts found by the court are insufficient to support the judgment, in that it is not made to appear when the defendant received due proof of plaintiff’s disability, and that such disability had then existed for not less than sixty days, as provided by the policy. *Hundley v. Ins. Co.,*205 N. C., 780, 172 S. E., 361; *Rhyne v. Ins. Co.,*199 N. C., 419, 154 S. E., 749; *Guy v. Casualty Co.,*151 N. C., 465, 66 S. E., 437. Hence, the cause will be remanded for further proceedings as to justice appertains and as the rights of the parties may require.

Error and remanded.