Fishblate v. Fidelity & Cas. Co. of New York

• Citation: 53 S.E. 354,140 N.C. 589
• Parties: FISHBLATE et al. v. FIDELITY & CASUALTY CO. OF NEW YORK.
• Decision Date: 20 March 1906
• Court: North Carolina Supreme Court

53 S.E. 354

140 N.C. 589

FISHBLATE et al. v. FIDELITY & CASUALTY CO. OF NEW YORK.

Supreme Court of North Carolina

March 20, 1906

Appeal from Superior Court, New Hanover County; W. R. Allen, Judge.

Action by S. H. Fishblate and others against the Fidelity & Casualty Company of New York. From a judgment in favor of plaintiff defendant appeals. Affirmed.

The plaintiff, holding an accident policy in the defendant company, which, in terms, covers the injury, files his complaint alleging the loss of an eye by accidental injury received when crossing the streets in the city of Wilmington on or about February 12, 1904, and offered evidence tending to show that the injury so received resulted in inflammation of the eye which necessitated its removal by surgical operation; that notice was given and demand duly made on the company for the amount due on the policy. The defendant admitted the policy and the loss of the eye and demand duly made, but alleged that the loss of the eye resulted not from accidental and external injury but from preexistent disease and further resisted recovery on the ground that the plaintiff had made material misrepresentations, inducing the contract, as to his physical and mental condition at the time the policy was applied for. The plaintiff replied, claiming that no such misrepresentations or concealments had been made by him, and further that the defendant's agent with whom he dealt had full notice and knowledge of the plaintiff's exact physical and mental condition at the time the policy was taken out. This reply was not formally drawn out and made a part of the pleadings, but an issue addressed to this question was submitted, the court stating that in its opinion no formal reply was required in order to raise the issue, but if he decided otherwise he would permit the plaintiff to amend the pleadings in this respect. The defendant excepted. There was testimony on the part of defendant tending to show that some time previous to taking out the policy, the plaintiff's eye had been diseased and the same had thereby been weakened and left with a tendency to inflame and there was some evidence tending to show that the plaintiff was not sound in some other respects, having rheumatic gout, etc. There was testimony from the plaintiff to show that 8 or 10 years ago the plaintiff's eye had become inflamed, causing ulceration and necessitating a surgical operation, but that the eye had permanently healed, and while the sight was somewhat impaired, the eye was sound and well, and no longer gave any trouble. Experts testified that the eye was cured, but the sight somewhat impaired. There was evidence also to the effect that the defendant's agent, at the time the policy was applied for and taken out, was fully aware of the trouble the plaintiff had had with his eye and its present condition, and that he was also fully informed of the plaintiff's physical and mental condition. Issues were then submitted, and under the charge of the court, answered by the jury as follows: (1) Was the plaintiff's eye lost as a result directly and independently of all other causes from bodily injuries sustained through external, violent, and accidental means? Yes. (2) Did the plaintiff warrant in the contract of insurance that he was in a sound condition mentally and physically? Yes. (3) If so, was said warranty false? No. (4) If so, was it knowingly false? (There was no answer to this issue, it not being necessary.) (5) Did the defendant have knowledge of the mental and physical condition of the plaintiff at the time the policy was issued? Yes. (6) And it being agreed by both plaintiff and defendant that the amount of damage, if any, should be $1,700 and interest, and be answered by the court, and the court so answered. Judgment on the verdict. Defendant excepted and appealed.

Meares & Ruark, for appellant.

John D. Bellamy, Rountree & Carr, and W. J. Bellamy, for appellee.

HOKE J. (after stating the case).

The issues submitted and answered by the jury are determinative of the controversy in the plaintiff's favor, and we find no error which requires that a new trial should be awarded. In response to the first issue, the jury have answered that the plaintiff's eye was destroyed by external, violent, and accidental means directly and independently of all other causes. The verdict on the second issue established a warranty in the contract of insurance that the plaintiff was sound mentally and physically when the same was made, and, on the third issue, that this warranty has not been broken.

There is no exception to the charge of the court on the first and second issue. On the third issue the defendant excepts for that the court charged the jury among other things as follows: "So that it becomes material to inquire under that issue (the third) what is meant by sound physically and mentally. This does not mean that a person should be perfect both in mind and in body, but it means that he should not be so impaired in body and mind as to materially cause the injury complained of. If you find from the evidence that the condition of his eye was such that he would ultimately have lost sight without the interference of external and accidental causes, though not at the time he did lose it, then he would not be sound physically and mentally within the meaning of the policy, although the loss of the eye--the loss of his sight--was hastened by external means, and although he would not have lost his sight at that time, and on the other hand, the eye was sound within the meaning of the policy if he would not have lost his sight, but for external, violent, and accidental means. I repeat that if you find from the evidence that the condition of the eye was such that he would ultimately have lost sight without the interference of external and accidental causes, though he would not have lost his sight at the time he did lose it, then he would not be sound physically and mentally within the meaning of the policy, although the loss of sight was hastened by external means and although he would not have lost his sight at the time he did lose it, and on the other hand, the eye was sound within the meaning of the policy if he would not have lost his sight, but for external, violent, and accidental means." This charge might be upheld on the first issue and is perhaps more favorable to the defendant on that issue than he could require. Freeman v. Accident Ass'n, 156 Mass. 357, 30 N.E. 1013, 17 L. R. A. 753; Fetter v. Casualty Co., 174 Mo. 256, 73 S.W. 592, 61 L. R. A. 459, 97 Am. St. Rep. 560.

But on the third issue we are of opinion that the charge is not in accord with the authorities. This issue involves the question as to whether the plaintiff, in representing himself to be sound physically and mentally, made a false statement on a matter material to the contract, and the charge, as we interpret it, means that to constitute the breach of this stipulation, so far as the eye is concerned, it must have been affected with a disease that would in any event have destroyed the sight, and certainly involves the proposition that, to become material, a misrepresentation must be as to a defect which...