Butler v. N.Y. Life Ins. Co

• Decision Date: 13 April 1938
• Docket Number: No. 385.,385.
• Court: North Carolina Supreme Court
• Parties: BUTLER . v. NEW YORK LIFE INS. CO.

196 S.E. 317

213 N.C. 884

BUTLER .

v.NEW YORK LIFE INS. CO.

No. 385.

Supreme Court of North Carolina.

April 13, 1938.

Appeal from Superior Court, Sampson County; E. H. Cranmer, Judge.

Civil action by George C. Butler, administrator of the estate of Lela F. Butler, deceased, against the New York Life Insurance Company, to recover on a policy of life insurance. From a judgment dismissing the action as in case of nonsuit, the plaintiff appeals.

Affirmed.

Civil action to recover on a policy of life insurance.

On November 13, 1933, Lela F. Butler made application to the New York Life Insurance Company for $1,000 policy of life insurance, payable to her estate.

The application is made a part of the policy and contains the following agreement: "It is mutually agreed as follows: 1. That the insurance hereby applied for shall not take effect unless and until the policy is delivered to and received by the applicant and the first premium thereon paid in full during his lifetime, and then only if the applicant has not consulted or been treated by any physician since the time of making this application."

The policy was issued, without medical examination, and delivered December 17, 1933, in consequence of a letter written December 15 on behalf of applicant, inclosing check for premium and asking that policy be sent, as applicant was going away. The writer testified, "I must have meant that Miss Butler was going to the hospital when I said in the letter she was going away, " though this was not stated. In the meantime, the applicant had consulted a physician on the 1st and 3d or 4th of December, discovered that she had a cancer, and was taken to the hospital on December 16. She died May 28, 1934.

The defendant pleaded violation of the condition attached to the delivery of the policy, and, in addition, that it was secured by fraudulent misrepresentations and concealments.

In response to a question from the court, plaintiff's counsel stated that plaintiff could not refute the testimony concerning consultation by applicant and treatment of her by Dr. Parker on account of her ailment (cancer) on or about December 1 and 3 or 4, 1933. Whereupon, the court dismissed the action as in case of nonsuit.

Plaintiff appeals, assigning errors.

Howard H. Hubbard, of Clinton, for appellant.

Rountree & Rountree, of Wilmington, for appellee.

STACY, Chief Justice.

Plaintiff takes the position that the delivery of the policy, following receipt of the first premium, concluded the contract, in the absence of fraud, Grier v. Ins. Co., 132 N.C. 542, 44 S.E. 28, and that the provisions of C.S. § 6460--the policy having been issued without medical examination--preclude a denial of liability, except in case of fraud, Holbrook v. Ins. Co., 196 N.C. 333, 145 S.E. 609, and, further, that plaintiff's evidence is sufficient to make out a prima facie case. Williamson v. Ins. Co, 212 N.C. 377, 193 S.E. 273.

The position of the defendant is that the.evidence shows a conditional delivery of the policy, which was not met, and that no contract of insurance ensued. Gardner v. Ins. Co, 163 N.C. 367, 79 S.E. 806, 48 L.R.A., N.S, 714, Ann.Cas. 1915D, 652; Lancaster v. Ins. Co, 153 N.C. 285...