Anthony v. Teachers' Protective Union

Citation173 S.E. 6,206 N.C. 7
Decision Date28 February 1934
Docket Number250.
PartiesANTHONY v. TEACHERS' PROTECTIVE UNION.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Burke County; Finley, Judge.

Action by Maude Patton Anthony against the Teachers' Protective Union. Judgment for plaintiff, and defendant appeals.

Reversed.

The complaint states two causes of action. The first is for loss founded upon disability under a health and accident policy issued to the plaintiff by the defendant.

The plaintiff made application in writing for membership in the Teachers' Protective Union on the 1st day of October 1931. A certificate of membership, containing the following clause, was issued to her on the 8th day of October, 1931 "In consideration of the statements, conditions and provisions of the application for membership, *** the articles of incorporation and the Constitution and General Laws of the Union, and all amendments thereto, which are on file in the office of the Supreme Secretary and are now hereby made a part of this certificate of membership." The certificate provides that "benefits for sickness shall not be paid for any illness contracted prior to or within thirty (30) days after the date of the certificate of membership." The same provision is in the constitution and general laws. The certificate also provides that "the Supreme Officer shall have power to cancel a certificate of membership when it becomes evident that false or misleading statements were made in the application for membership or in application for benefits; or when it shall have been established that disability, for which claim is made, had its inception prior to membership in the Union under this certificate." The same provision is in the constitution and general laws.

The plaintiff became sick on January 7, 1932, and remained incapacitated and confined to her home during the time for which she makes claim. She filed proof of claim for benefits and a representative of the defendant notified her that, on account of cholecystitis with which she was suffering and her failure to inform the defendant that she had been treated for this disorder, she was not entitled to benefits under her policy.

The second cause of action is assault and forcible trespass committed by E. L. Cunningham, agent of the defendant, when he called at her home to settle the controversy between the defendant and herself growing out of her claim of loss.

The jury answered the issues as follows:

"1. Did the plaintiff, prior to October 1, 1931, have chronic cholecystitis or chronic inflammation of the gall bladder? A. No.

2. Had the plaintiff, prior to October 1, 1931, been treated by Dr. J. J. Kirksey for chronic cholecystitis or chronic inflammation of the gall bladder? A. No.

3. At the time of applying for membership in the Teachers' Protective Union did the plaintiff fail to inform the defendant or did she withhold information from the defendant that she had been treated by Dr. J. J. Kirksey in the Spring of 1931 for chronic cholecystitis or chronic inflammation of the gall bladder? A. No.

4. If so, was the failure to so inform the defendant material to the risk applied for to be assumed? A. ______.

5. Did the plaintiff at any time during the five years immediately before October 1, 1931, have any medical or surgical advice or treatment or any departures from good health, other than the operation by Dr. J. B. Riddle in September, 1930, and if so, when and by what physician was she treated? A. No.

6. If so, did the plaintiff at the time of applying for membership in the Teachers' Protective Union, fail to inform the defendant, or did she withhold information from the defendant that she had been so treated? A. No.

7. If so, was the failure to so inform the defendant material to the risk applied for to be assumed? A. _______.

8. Did the plaintiff become disabled of sickness on or about the 7th day of January, 1932, and if so, was chronic cholecystitis or chronic inflammation of the gall bladder the cause or one of the causes contributing to such sickness and disability? A. No.

9. Was the plaintiff on account of sickness from and after January 7, 1932, totally disabled and necessarily and continuously confined to her house and regularly attended therein by a registered physician at least once a week solely by reason of such sickness? A. Yes.

10. If so, for what period of time and between what dates was she so confined? A. January 7-April 20, 1932.

11. Did the defendant unlawfully enter upon the premises of the plaintiff and unlawfully and wilfully commit forcible trespass upon the person of the plaintiff, as alleged in the complaint? A. Yes.

12. If so, what damage, if any, is the plaintiff entitled to recover of the defendant? A. $1,000."

The plaintiff was given judgment on the first cause of action for $350 and on the second for $1,000.

The defendant excepted and appealed upon assigned error.

Entering actual possession of another, causing occupant to fear bodily harm if he does not yield possession, is "entry forcible in contemplation of law," whether such fear is caused by demonstration of force, actual threats, or use of language implying purpose to use force against any one resisting.

Insurance agent calling on insured to make settlement for sick benefit who accused insured of making false statements in application, but who made no threat, used no indecent language, and offered no violence, and who was put out without resistance, held not to have committed "forcible trespass."--Id.

C. E Cowan, of Morganton, and Winborne & Proctor, of Marion, for appellant.

Mull & Patton, S. J. Ervin, and S. J. Ervin, Jr., all of Morganton, for appellee.

ADAMS Justice.

The defendant moved to dismiss both causes of action as in case of nonsuit, and tendered prayers for directed instructions on all the contested issues that were answered. The court denied the motion, and declined to give the requested instructions, and the defendant excepted.

The ground of all the exceptions addressed to these questions, as set out in the appellant's brief, is the asserted failure of the plaintiff to state in her application for membership that she had previously suffered illness and received medical treatment. This contention is based upon her answer to each of the following questions:

"Q. 5. Are you now suffering from, or have you ever had any *** gall or kidney stones *** or any chronic or periodical mental or physical ailment or disease *** or have you ever had or been advised to have a surgical operation? A. Yes."
"Q. 6. Have you during the past five years had any medical or surgical advice or treatment or any departure from good health? If so, state when and what the duration. A. Operation; 3 months; September 1930. My physician at that time was Dr. J. B. Riddle. Address: Morganton, N. C."

These questions and the...

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