Griffin v. United Services Life Ins. Co.

• Decision Date: 12 December 1945
• Docket Number: 675.
• Parties: GRIFFIN v. UNITED SERVICES LIFE INS. CO., Inc.
• Court: North Carolina Supreme Court

36 S.E.2d 225

225 N.C. 684

GRIFFIN v. UNITED SERVICES LIFE INS. CO., Inc.

No. 675.

Supreme Court of North Carolina

December 12, 1945

Civil action to recover on policy of life insurance.

On or about April 1, 1941 plaintiff applied to the defendant for a policy of life insurance in the sum of $2,000 on the life of his wife, Frances Parrott Griffin. The application was in the name of the insured and contained certain representations 'in lieu of medical examination.' Plaintiff was named as beneficiary. The policy was delivered in accord with the application.

The insured died July 15, 1941. Plaintiff filed proof of death. The defendant denied liability. Thereupon plaintiff instituted this action to recover the face amount of the policy.

The defendant in its answer pleads (1) fraud in the procurement of the policy and (2) no valid and binding delivery.

W. C Downing and James R. Nance, both of Fayetteville, for plaintiff-appellee.

Neil Burkinshaw, of Washington, D.C., and Robert H. Dye, of Fayetteville, for defendant-appellant.

BARNHILL Justice.

The plea of fraud was an affirmative defense. The burden was on the defendant to show both false representation and scienter. Hence the exception to the refusal to the court to dismiss as in case of nonsuit is without merit.

The application contains the provision 'the insurance hereby applied for shall not take effect until a policy shall have been actually delivered to and accepted by me, while I am in good health and the first premium shall have been paid or alloted to be paid during my continued good health. If, however, at the time of signing the application the full first-premium is paid, then the insurance will take effect from the date of this application (subject to the provisions of the policy applied for) * * *.'

The defendant pleads his provision by way of further defense and alleges that the insured was not in good health at the time the policy was delivered to and accepted by her; that the first full preimum was not paid at the time of signing the application and has not been 'paid or alloted to be paid during her continued good health', and that, therefore there has never been a valid devliery of said policy.

There was evidence tending to show that the insured was afflicted with chronic myelogenous leukemia and that she had not been in good health for a period of at least five years. She was treated at the Highsmith Hospital in Fayetteville in 1940 and again in July 1941. Shortly after the application she left for California to consult a doctor. She had likewise been treated at the Mayo Clinic and several Army hopsitals.

The testimony discloses that the first full premium was not paid at the time of the application. It does not appear that it was allotted to be paid.

So then there was an issue squarely raised by the pleading, supported by evidence, as to the valid delivery of the policy. It was material to the affirmative defense relied on. On this state of the record the court declined to submit the issues tendered by defendant or to submit others of similar import which would be determinative of the questions presented. In this there was error.

Ordinarily the form and number of the issues in the trial of a civil action are left to the sound discretion of the judge and a party cannot complaint because a particular issue was not submitted to the jury in the form tendered by him. But G.S. § 1-200 is mandatory. It is the duty of the judge, either of his own motion or at the suggestion of counsel, to submit such issues as are necessary to settle the material controversies arising on the pleadings. Holler v. Tel. Co., 149...