Collins v. U.S. Cas. Co.

• Decision Date: 22 November 1916
• Docket Number: 394.
• Parties: COLLINS v. UNITED STATES CASUALTY CO.
• Court: North Carolina Supreme Court

90 S.E. 585

172 N.C. 543

COLLINS v. UNITED STATES CASUALTY CO.

No. 394.

Supreme Court of North Carolina

November 22, 1916

Appeal from Superior Court, Guilford County; Cline, Judge.

Action by D. H. Collins against the United States Casualty Company. Judgment for plaintiff, and defendant appeals. Affirmed.

In an action on a health policy, an instruction that should jury find that loss resulted from sickness or disease which existed or was contracted before policy was issued, they should answer "Yes" to issue, held fully responsive to defendant's special prayer for an instruction on issue whether illness was contracted before policy was issued.

The action is based upon a policy of insurance issued by the defendant to the plaintiff in May, 1915, and which was in force on and after the 24th day of that month. The policy insured the plaintiff to the amount of $5,000 as follows:

"Subject to its terms, this policy indemnifies for loss of time, of sight, of limb and of life from accident and for loss of time, of sight and use of limb from sickness, David Harley Collins, of Greensboro, North Carolina, by occupation a justice of the peace and United States Commissioner, herein called the insured, for three months, beginning at noon standard Eastern time on the 24th day of May, 1915, subject to the provisions and conditions and limits herein, against loss resulting directly and independently of any and all other causes from bodily injury affected solely through external, violent and accidental means, herein called such injury, and against loss resulting from sickness or disease, herein called such sickness."

Then follows a description of the different kinds of insurance and the indemnities therefor, according to the nature and extent of the injuries and the consequent losses. Under the headline of "Additional Provisions" is this clause:

"This policy does not extend to, nor cover, * * * loss caused by any sickness or disease existing, or contracted, prior to the issue of this policy, nor loss caused by any sickness or disease, unless disability resulting therefrom begins while this policy is in force." The jury returned the following verdict:

"First. Did D. H. Collins, insured, in his application for insurance, represent that he had not consulted a physician or taken treatment during the two years immediately preceding the date of the application except Dr. Jarboe in January, 1914, over one year prior to the date of the application? Answer: No.

Second. Had D. H. Collins, insured, consulted a physician or taken treatment during the two years immediately preceding the date of the application otherwise than Dr. Jarboe in January, 1914? Answer: Yes.

Third. If so, did the said D. H. Collins fully and fairly disclose all the facts in regard thereto to the defendant at the time the application was made? Answer: Yes.

Fourth. Did D. H. Collins, insured, in his application for insurance, represent that he had not had any disease or accidental injury during the seven years immediately preceding his application for insurance except muscular rheumatism in January, 1914, and then ten days in the hospital? Answer: No.

Fifth. Had said D. H. Collins, insured, had any disease or accidental injury during the seven years preceding the date of his application for the insurance herein sued on except muscular rheumatism, and that in January, 1914, and then ten days in the hospital? Answer: Yes.

Sixth. If so, were the facts in regard thereto fully and fairly disclosed and made known to the defendant at the time the application was made? Answer: Yes.

Seventh. Did D. H. Collins, insured, in his application for insurance, represent that he had never had any application for accident or health or sickness or benefit or life insurance declined or acceptance postponed, and that no company or association or order had ever canceled or refused to renew a policy or certificate for him? Answer Yes.

Eighth. Had D. H. Collins had any application for accident or health or sickness or benefit or life insurance declined or acceptance postponed, or had any company or association or order ever canceled or refused to renew a policy or certificate of insurance for him? Answer: No.

Ninth. Was the loss complained of by the plaintiff caused by sickness or disease existing or contracted prior to the issuing of the policy sued on? Answer: No.

Tenth. In what amount, if anything, is the defendant indebted to the plaintiff? Answer: $350."

Defendant, at the close of the evidence, moved for a nonsuit, upon the evidence, which motion was refused, and it then requested an instruction that, if the jury believe the evidence, they should answer the ninth issue "Yes"; this also was refused. Defendant excepted to these refusals, and further excepted to the following instruction of the court to the jury on the ninth issue:

"The burden of this issue is upon the defendant insurance company. It must establish by the greater weight of the evidence that the loss complained of was caused by sickness or disease existing or contracted prior to the issuing of the policy."

The defendant further excepted to the refusal of the court to set aside the verdict because it was against the weight of the evidence.

Judgment upon the verdict was rendered, and defendant appealed.

Brooks, Sapps & Williams, of Greensboro, for appellant.

R. C. Strudwick and Justice & Broadhurst, all of Greensboro, for appellee.

WALKER, J. (after stating the facts as above).

The motion for a nonsuit on the evidence was properly denied. There was evidence in the case upon which the jury could return a verdict for the plaintiff, as the evidence, upon such a motion, must be construed most favorably in behalf of the plaintiff, and if in any reasonable view of it he is entitled to recover, it should be submitted to the jury, and they have found that there was no fraud or misrepresentation on the part of the plaintiff. Brittain v. Westhall, 135 N.C. 492, 47 S.E. 616; Shaw v. Public Service Corporation, 168 N.C. 611, 84 S.E. 1010; Clark v. Whitehurst, 171 N.C. 1, 86 S.E. 78.

The court told the jury that should they find from the evidence that the loss resulted from sickness or disease which existed before the policy was issued, or which was contracted before that time, their answer to the ninth issue would be "Yes." This was fully responsive to defendant's special prayer for an instruction upon the ninth issue, and was really a more preferable form of instruction than the one which was asked to be given. While we have not rejected the form of instruction which appears in the defendant's prayer, where there is no prejudice from it, we have yet commended the other form as the more desirable one. Merrell v. Dudley, 139 N.C. 57, 51 S.E. 777; Sossaman v. Cruse, 133 N.C. 470, 45 S.E. 757; Alexander v. Statesville, 165 N.C. 527, 81 S.E. 763.

The third assignment of error, as to the burden of proof upon the ninth issue, is untenable. The court properly instructed the jury that the burden was upon the defendant, and for this reason: The policy insured against "loss resulting from sickness or disease," and the plaintiff made out a prima facie case, when he exhibited the policy and proved that he was sick and confined to the hospital and his home by such illness after the insurance was taken out. The clause of the policy withdrawing from its operation that would otherwise be embraced by it is in the nature of an exception, or an exemption of the company, under the specified circumstances from liability thereon, and if the company would avail itself of the exemption, it must establish the facts which bring the case within the same. "Plaintiff, to establish a prima facie case, must prove: (1) The existence of the contract or policy sued on; (2) the death of the insured or the happening of the event provided for in the policy;...