Gwaltney Et Ux v. Provident Sa

• Decision Date: 05 April 1904
• Citation: Gwaltney Et Ux v. Provident Sa, 47 S.E. 122, 134 N.C. 552 (N.C. 1904)
• Parties: GWALTNEY et ux. v. PROVIDENT SAV. LIFE ASSUR. SOO.
• Court: North Carolina Supreme Court

47 S.E. 122

134 N.C. 552

GWALTNEY et ux.

v.PROVIDENT SAV. LIFE ASSUR. SOO.

Supreme Court of North Carolina.

April 5, 1904.

On petition for rehearing. Petition dismissed.

For former opinion, see 44 S. E. 659.

CLARK, C. J. This is a petition to rehear the former decision in this case. 132 N. C. 925, 44 S. E. 059. The same propositions of law as now were presented and argued on the former hearing. No material point of law or fact has been shown to have been overlooked, and our opinion would be simply a reiteration, substantially, of what was written on the former hearing. Whatever difference of view there may be as to the facts, the jury, in their province, have determined the truth or falsity of the averment on both sides, and we cannot disturb their finding. The case had been previously before this court (130 N. C. 629, 41 S. E. 795), and has been heretofore fully considered.

It is now ordered: Petition dismissed.

MONTGOMERY, J. (dissenting). The defendant company canceled the plaintiff's policy of insurance because of a refusal on the part of the plaintiff to pay premiums which the defendant averred that the plaintiff owed, and this action was brought to recover the amount paid by the plaintiff as premiums before the cancellation of the policy. The complaint embraces two causes of action utterly antagonistic to each other, and, in my opinion, cannot be properly joined in the same action. The gravamen of the first cause of action is that the defendant, through one of its general agents, by means of false representations, induced the plaintiff to accept a policy of insurance unlike the one which the defendant, through its agent, verbally agreed to issue and deliver to him.

The particulars of the first cause of action appear substantially in the following allegations: That the plaintiff told the agent that he desired a policy, and would accept none other, based upon a level premium from year to year, and which would not increase with advancing age; that the agent promised to deliver to the plaintiff such a policy, and that upon that representation the plaintiff made application in writing for the policy; that shortly thereafter the agent delivered to the plaintiff a policy in accordance with the application, which did not provide for the payment of a leva rate pre-mium until the death of the plaintiff, but did provide for an increase in the rate of the premiums due on the policy with the yearly advance in the plaintiff's age; that the agent (in the language of the complaint) represented to the plaintiff and assured him that the policy so presented was such a policy as the plaintiff had, in his former conversation, stated that he (plaintiff) would accept and that the policy so presented by him provided for the rate of a level rate premium, to wit, $22.40 per quarter, and that the insurance provided in said policy would be extended during the life of the plaintiff upon the payment of a regular premium of $22.41 per quarter. There was another allegation that those representations were false, and that the agent knew they were false. As bearing more particularly upon the alleged fraudulent intent of the agent, we quote the eighth and ninth allegations of the first cause of action: "(8) That Jones, the general agent of defendant, made the said false, deceitful, and fraudulent representation wickedly and fraudulently, scheming and contriving, designing and intending, as plaintiff believes and alleges, to prevent the plaintiff from examining the policy and investigating the terms thereof, he (the said general agent), well knowing that the plaintiff would refuse to accept the policy if he (plaintiff) should learn its terms, conditions, stipulations, and provisions; and the plaintiff explicitly alleges that he would have refused finally and peremptorily to accept the policy if he (plaintiff) had known the terms, conditions, stipulations, and provisions of the policy tendered him by Jones, the general agent as aforesaid. (9) That the plaintiff, knowing said Jones to be the general agent of the defendant being not at all familiar with the terms, conditions, stipulations, provisions, or language of insurance policies, and being totally unskilled in interpreting the same, relied upon and believed the said wicked, false, deceitful, and fraudulent representations of the said Jones, hereinbefore set forth, and was by the said wicked, false, deceitful, and fraudulent representations misled, deceived, and prevented from investigating the terms, conditions, stipulations, and provisions of the said policy, and finding out for himself and by the aid of friends or counsel what said terms, conditions, stipulations, and provisions really were, and in consequence thereof accepted the said policy." The plaintiff further alleges that, believing for nine years these fraudulent representations, he paid during that time $22.41 per quarter, and that only at the beginning of the tenth year was any demand made for an increased premium; that for two years he paid the increased premium, but refused after that time to pay any further Increase. The plaintiff has paid $1,-030.84 as premiums to the defendant The second cause of action has its foundation in an allegation that the plaintiff took out the policy just as it read when delivered to him by the agent; that is, a policy providing for an increase in the rate of the premium due on the policy with the yearly advance in the plaintiff's age; but that before the second annual premium in quarterly equivalents became due, to wit, in December, 1890, the defendant, through its general agent, verbally agreed to renew and extend said policy for the plaintiff during each successive year of his life, upon the payment of a level annual premium in quarterly equivalents of $22.41 each, and to waive the conditions of said policy providing for an increase of the rate of premium for the actual age attained. The complaint was duly verified by the plaintiff.

A few words will be sufficient to dispose of the matters pertaining to the second cause of action. His honor submitted this issue (seventh) raised by the second cause of action in the complaint: "Did the defendant, through its general agent, some time after the execution and delivery of the policy, waive the provisions in the policy permitting an increase of the premiums, and agree to continue the policy upon payment of $22.41 per quarter during the life of the plaintiff, as alleged in the complaint?" Upon that issue his honor told the jury that it was incumbent upon the plaintiff to go further, and establish the affirmative of the same to their satisfaction by proof clear, strong, and convincing. The jury responded to that issue under that instruction "Yes." I have examined carefully every word of the evidence bearing on that issue, and there is not a scintilla, even, to support it The allegation in the second cause of action is that the agent, in December, 1890, waived the conditions of the policy providing for an increase of the rate of premium for the actual age attained, and agreed that he (plaintiff) should pay $22.41 quarterly as a level rate until his death, instead of increased premiums as he advanced in age, as the policy provided. In his examination in chief he testified that: "Jones came to Wake Forest in November, I think, and stayed several days, and insured several parties. After he returned to Greensboro, I had a conversation with a Mr. Powell, in consequence of which I told Jones, that Mr. Powell told me that he had examined a policy like mine at my request, and he said there was some doubt as to its running level in all the premiums till my death. I told him that Mr. Powell said he was not satisfied, as he had not examined It carefully, and there might be a rising premium in it. I said I told Powell that there was no possibility that there was a rising premium on it, for I had been assured there would be none. I said: 'Now, Mr. Jones, my people live to be very old. Suppose I live beyond 75. Is there any possibility of a rise in that premium?' He told me emphatically that I need give myself no uneasiness. I went back home thoroughly satisfied that it never would rise on me.

Q. Did he say anything more that you recollect? A. I thoroughly impressed upon him the fact I went away assured." On his cross-examination he was asked: "I believe you stated that you never examined this policy, and never knew that it was not a level rate policy, till 1898, when they made a demand on you? A. That is right. Q. You allege here that heretofore in the second year you knew it was a level rate policy? A. Exactly as it was issued. Q. But that this company, acting through its general agent, made a verbal agreement with you to extend this policy? A. I thought that was the policy. Q. What you say in this complaint is correct, is it not? A. It is, as I understand it. Q. You have sworn to the complaint, have you not? A. Yes. Q. Did you not say in your answer a while ago that about November, 1890, you had a conversation with Jones, and he said you need not be uneasy about your policy? A. Yes. In 1890 he came to where I was living, and in consequence of Powell's statement I went there again in January. He came in November to the college, and went back before Christmas. Q. Then the only conversation you had with Jones some time in the second year caused him, in reply to something you said, to say that you need not give yourself any uneasiness about the policy? A. Yes. Q. So that, if this allegation means that you knew what the policy was at the end of the second year, it is a mistake, is it not? A. I did not come to that knowledge, I am sure, at the end of the second year, that it was not a level rate." The defendant denied the allegations of fraud, and averred that the plaintiff received a policy of the nature applied for, and in accordance with the application signed by the plaintiff; that all verbal understandings or negotiations entered into between the plaintiff and...