Creech v. Sovereign Camp, W. O. W.

• Decision Date: 09 June 1937
• Docket Number: 594.
• Citation: 191 S.E. 840,211 N.C. 658
• Parties: CREECH v. SOVEREIGN CAMP, W. O. W.
• Court: North Carolina Supreme Court

191 S.E. 840

211 N.C. 658

CREECH v. SOVEREIGN CAMP, W. O. W.

No. 594.

Supreme Court of North Carolina

June 9, 1937

Appeal from Superior Court, Columbus County; M. V. Barnhill, Judge.

Action by Sarah F. Creech against the Sovereign Camp of the Woodmen of the World. Judgment for plaintiff, and defendant appeals.

No error.

This is an action brought by plaintiff against defendant to recover on a policy of insurance (ten-year term insurance certificate), issued in favor of plaintiff beneficiary by defendant on the life of plaintiff's husband, Onzie Creech. The policy of insurance (beneficiary's certificate) was taken out on March 6, 1935, and delivered April 15, 1935. Onzie Creech died on December 6, 1935, of lobar pneumonia. The premium was paid on the policy and defendant attempted a refund of same by sending plaintiff $28.54 after Onzie Creech's death, which was never accepted. The defendant denied liability on the ground of false and fraudulent representations of a material character set out in the application for the policy of insurance, which induced defendant to issue same.

The issues submitted to the jury and their answers thereto were as follows:

"1. Had the deceased, Onzie Creech, prior to March 5, 1935 used liquors to excess? Ans: No.

2. Had the deceased, Onzie Creech, within five years prior to March 5, 1935, suffered any mental or bodily disease or infirmity? Ans: No.

3. Had the deceased, Onzie Creech, within five years prior to March 5, 1935, consulted or been attended by a physician for any disease or injury or undergone any surgical operation? Ans: No.

4. Had the deceased, within ten years prior to March 5, 1935 had any disease or injury? Ans: No.

5. Did the insured, Onzie Creech, procure the issuance of the policy of insurance upon his life sued on in this action by false and fraudulent statements, as alleged in the answer? Ans: ------.

6. Is the defendant indebted to the plaintiff, and if so, in what amount? Ans: $2,500.00 with interest."

The court below rendered judgment on the verdict. The defendant made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones will be considered in the opinion.

Powell & Lewis, of Whiteville, for appellant.

Lyon & Lyon, of Whiteville, for appellee.

CLARKSON Justice.

At the close of plaintiff's evidence and at the close of all the evidence, the defendant in the court below made motions for judgment as in case of nonsuit. C.S. § 567. The court below overruled these motions and in this we can see no error.

The plaintiff introduced the policy (beneficiary certificate) on the life of Onzie Creech, dated March 6, 1935. The admissions of the defendant were that Onzie Creech died December 6, 1935; that plaintiff was named as beneficiary in the beneficiary certificate; the issuance and delivery of the beneficiary certificate; the filing of proof; and that plaintiff had made demand on the defendant for $2,500, amount of the insurance, and payment refused by defendant. The plaintiff then rested.

In Lyons v. Knights of Pythias, 172 N.C. 408, 410, 90 S.E. 423, 424, it is said: "On proof of the death of the member, presentation of the policy by the beneficiary, and denial of any liability by the company, a prima facie right of recovery is established; and defendant, claiming to be relieved by reason of nonpayment of dues or other like default, has the burden of proof in reference to such defenses. Harris v. National Council, Junior Order, etc., 168 N.C. 357, 84 S.E. 405; Wilkie v. National Council, 147 N.C. 637, 61 S.E. 580; Doggett v. Golden Cross, 126 N.C. 477-480, 36 S.E. 26." Blackman v. W. O. W., 184 N.C. 75, 113 S.E. 565; Green v. Casualty Co., 203 N.C. 767, 773, 167 S.E. 38.

The defendant set up as a defense to the action the following provisions in the policy: "For the purpose of securing the beneficiary certificate herein applied for, I hereby warrant that I have not been sick, except as stated herein; that I am now in sound bodily health; that I have no injury or disease that will tend to shorten my life; that I am not addicted to the use of intoxicating liquors, opium or other injurious drugs or substances."

The answers by Onzie Creech to the material questions were as follows:

"1. Have you ever used liquors to excess or taken treatment for liquor habit, or have you ever used any form of opium, morphine, cocain or other narcotics? Ans: No.

2. Have you, within the past five years, suffered any mental or bodily disease or infirmity? Ans: No.

3. Have you, within the past five years, consulted or been attended by a physician for any disease or injury or undergone any surgical operation? Ans: No.

4. Have you had, in the last ten years, any disease or injury other than those above mentioned? Ans: No."

We need not consider the fifth issue: "Did the insured, Onzie Creech, procure the issuance of the policy of insurance upon his life sued on in this action by false and fraudulent statements, as alleged in the answer?" The jury answered "No" to all the first four issues and automatically the sixth issue was answered "$2,500 and interest."

Upon a careful review of the charge of the court below, we see no prejudicial error on the four issues answered in favor of plaintiff.

In the application of Onzie Creech for certificate of membership is the following: "And further waive for myself and beneficiaries the privileges and benefits of any and all laws which are now in force or may hereafter be enacted in regard to disqualifying any physician or nurse from testifying concerning any information obtained by him or her in a professional capacity; and I expressly authorize such physician or nurse to make such disclosure."

In the record is the following: "Dr. R. C. Sadler, a witness for defendant, was asked: 'Q. Have you treated him for any disease or infirmity within the past five years? Q. Did he have any physical disease? (By the Court) What you knew about him, I take it, you discovered as a physician? Ans: That is true.' The defendant moved, under section 1798, in order to make the testimony of witness competent. The court, in the exercise of its discretion, refused to grant the motion, after the witness stated that he discovered what he knew about the deceased in the capacity of a physician. (Witness recalled) 'Q. Do you recall whether you have treated him for any disease within the past five years? Ans: I treated him, yes.' The defendant moves, under section 1798, C.S., in order to make the testimony of the witness competent. The court, in the exercise of its discretion, refused to grant the motion; it being made to appear to the court from the evidence so far that the deceased died from pneumonia contracted from a cold, and no evidence being offered to the contrary." To all the above questions the plaintiff objected, which was sustained by the court below for the reasons given. In this we can see no error. C.S., § 1798, supra, is as follows: "No person, duly authorized to practice physic or surgery, shall be required to disclose any information which he may have acquired in attending a patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon: Provided, that the presiding judge of a superior court may compel such disclosure, if in his opinion the same is necessary to a proper administration of justice."

Before a physician may testify to matters arising in his confidential relationship with his patient, our statute requires that the trial judge find that in his opinion such testimony is "necessary to a proper administration of...