George Washington Life Ins. Co. v. American Collapsible Box Co.
| Decision Date | 08 June 1923 |
| Docket Number | 395. |
| Citation | 117 S.E. 785,185 N.C. 543 |
| Parties | GEORGE WASHINGTON LIFE INS. CO. v. AMERICAN COLLAPSIBLE BOX CO. ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Stokes County; Harding, Judge.
Action by the George Washington Life Insurance Company against the American Collapsible Box Company and another. Judgment for plaintiff, and defendants appeal. No error.
Where there are specific findings of misrepresented material facts avoiding the policy as a matter of law, the result will not be affected by a general finding that insured withheld no fact which he should have communicated.
The death of the individual defendant, Adrian Van Den Boom having been suggested, his widow and administratrix comes into court and makes herself party defendant.
The action is to set aside an insurance policy in plaintiff company on the ground that the same was procured by alleged misrepresentations that were false, fraudulent, and material in various specified particulars. The pertinent allegations having been denied, the cause was submitted to the jury and verdict rendered on the following issues:
"(1) Did Adrian Van Den Boom, in his application for the insurance policy in controversy in answer to inquiries contained therein, represent that he was in good health and that he had no history of consumption? Answer: Yes (by consent).
(2) Did Adrian Van Den Boom incorrectly, falsely, and fraudulently represent in the application for insurance policy in controversy that he was in good health and that he had no history of consumption? Answer: No.
(3) Did Adrian Van Den Boom at said time have tuberculosis or consumption? Answer: No.
(4) Did Adrian Van Den Boom have tuberculosis at the time he was examined by Dr. Banner in 1919? Answer: No.
(5) If so, did Dr. Banner inform him that he had tuberculosis as alleged in the complaint? Answer: No.
(6) Did Adrian Van Den Boom in his application for the insurance policy in controversy, in answer to inquiry in that behalf represent that there was no fact relating to his personal or family history or habits which had not been stated in answers asked of him and with which the company should be acquainted? Answer: Yes (by consent).
(7) Were there facts relating to the physical condition or personal history of said Adrian Van Den Boom which he should have communicated to the plaintiff and which he failed to communicate in answer to said questions? Answer: No.
(8) Did Adrian Van Den Boom in his application for the insurance policy in controversy and in answer to a question asked him in that behalf represent that he had never had spitting of blood? Answer: Yes (by consent).
(9) Was said representation true? Answer: No.
(10) Did Adrian Van Den Boom in his application for the insurance policy in controversy and in answer to questions asked him in that behalf represent that he had never had chronic cough or hoarseness? Answer: Yes (by consent).
(11) Was said representation true? Answer: Yes.
(12) Did Adrian Van Den Boom in his application for the insurance policy in controversy and in answer to a question asked him in that behalf represent that he had never had Spanish influenza? Answer: Yes (by consent).
(13) Was said representation true? Answer: No.
(14) Did Adrian Van Den Boom incorrectly, falsely, and fraudulently represent in the application for the insurance policy in controversy that he was not afflicted with a chronic cough and hoarseness? Answer: No.
(15) Did Adrian Van Den Boom incorrectly, falsely, and fraudulently represent in the application for the insurance policy in controversy that he had not had Spanish influenza? Answer: No.
(16) Did Adrian Van Den Boom in his application for the insurance policy in controversy and in answer to questions in that behalf represent that he had consulted no physician within the last seven years except Dr. Banner of Greensboro, N. C.? Answer: Yes (answered by consent).
(17) Was that representation true? Answer: No.
(18) Did Adrian Van Den Boom consult Dr. Simmons in January, 1919? Answer: Yes.
(19) Was the policy in controversy obtained from the plaintiff by means of false and fraudulent representations or concealments, as alleged in the complaint? Answer: No."
Judgment on the verdict that the policy in question be surrendered and canceled. Defendants excepted and appealed.
Swink, Clement & Hutchins and O. O. Efird, all of Winston-Salem, and N. O. Petree, of Danburg, for appellants.
E. D. Broadhurst, of Greensboro, J. J. Parker, of Charlotte, and Manly, Hendren & Womble, of Winston-Salem, for appellee.
The statute (C. S. § 6289) more directly pertinent to the question presented provides that "all statements or descriptions in any application for a policy of insurance, or in the policy itself, shall be deemed representations and not warranties, and a representation, unless material or fraudulent, will not prevent a recovery on the policy," and in authoritative cases construing the law it is held that every fact untruly asserted or wrongfully suppressed must be regarded as material if the knowledge or ignorance of it would naturally influence the judgment of the underwriter in making the contract at all, or in estimating the degree and character of the risk, or in fixing the rate of the premium. Schas v. Equitable Life Insurance Co., 166 N.C. 55, 81 S.E. 1014; Bryant v. Insurance Co., 147 N.C. 181, 60 S.E. 983; Fishblate v. Casualty Co., 140 N.C. 589, 53 S.E. 354.
Considering the record in view of these principles, it appears that in the application for...
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