Harrison v. Metropolitan Life Ins. Co.

• Decision Date: 12 December 1934
• Docket Number: 545.
• Citation: 177 S.E. 423,207 N.C. 487
• Parties: HARRISON v. METROPOLITAN LIFE INS. CO.
• Court: North Carolina Supreme Court

177 S.E. 423

207 N.C. 487

HARRISON v. METROPOLITAN LIFE INS. CO.

No. 545.

Supreme Court of North Carolina

December 12, 1934

Appeal from Superior Court, Mecklinburg County; Stack, Judge.

Action by Herbert L. Harrison against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant appeals.

No error.

Court's power to set aside verdict is not only made discretionary by statutes but is inherent in trial court (Code 1931, § 591).

The complaint of plaintiff alleges, in part: "That on or about the 13th day of February, 1931, the defendant insured the life of Viola Harrison, for the sum of $1,000.00 by issuing its Policy No. 6,829,517-A to the said Viola Harrison. That the plaintiff is named beneficiary in said policy of insurance issued by the defendant upon the life of Viola Harrison No. 6,829,517-A. That Viola Harrison died on the 20th day of June, 1931. That the first premium of $9.35 was paid when the policy No. 6,829,517-A was issued upon the life of Viola Harrison, deceased, on or about February 13 1931. That Herbert L. Harrison, the beneficiary in said policy made demand for payment of said policy in a reasonable time after the death of the said insured and payment was refused. That demand has been made upon the defendant for the payment of the $1,000.00, the amount of said policy of insurance upon the life of the insured and payment has been refused. That the defendant is justly indebted to the plaintiff in the sum of $1,000.00 with interest from the 20th day of June, 1931, until paid."

The defendant denied liability and for further answer and defense alleged: "That on January 24, 1931, within two weeks prior to the date when she signed said application she had consulted one of the leading surgeons and goiter specialists in the City of Charlotte on account of the nervousness, fast heart, tremor and loss of weight from which she had been suffering for several months and said surgeon after carefully examining her had informed her that she was suffering from exophthalmic goiter, and advised her to have an operation for the removal of said goiter and had told her that if she did not have such operation, she would die from the effects of said goiter.

That all of said facts were well known to said Viola Harrison at the time she signed Part A of said application for insurance on February 7, 1931, and at the time she signed Part B of said application for insurance on February 7, 1931, and at the time of the delivery of said policy to her on March 16 1931; and that said false and fraudulent statements and representations contained in said application, as hereinbefore set forth, were, and each of them was, made for the purpose of inducing, and did induce, the defendant to accept said application and to issue its said policy of insurance, which the defendant would not have done had it known of the disease from which said Viola Harrison was suffering or of any of the other facts so falsely misrepresented by said Viola Harrison."

The following issues were submitted to the jury and their answers thereto: "(1) Did the deceased at the time of her application for insurance in the defendant company falsely and fraudulently represent that she did not have goiter, as alleged in the answer? A. No. (2) At the time of the application by the deceased for the policy of insurance in question, did the deceased falsely and fraudulently represent that she had never been attended by a physician, as alleged in the answer? A. No. (3) What amount, if any, is the plaintiff entitled to recover of the defendant? A. $1,000.00 with interest from June 20, 1931, until paid."

The court below rendered judgment on the verdict. The defendant made numerous exceptions and assignments of error and appealed to the Supreme Court.

Cansler & Cansler and R. M. Gray, Jr., all of Charlotte, for appellant.

Taliaferro & Clarkson and Carswell & Ervin, all of Charlotte, for appellee.

CLARKSON Justice.

Neither at the close of plaintiff's evidence, nor at the close of all the evidence, did the defendant make a motion for judgment as in case of nonsuit, as is allowed in C. S. § 567.

In Harris v. Buie, 202 N.C. 634, 636, 163 S.E. 693 694, is the following: "At the close of plaintiff's evidence, the defendant, Buie, did not move for judgment as in case of nonsuit in the court below, nor at the close of all the evidence, as he had a right to do under C. S. § 567. By the failure of defendant to follow strictly C. S. § 567, supra, the question of the insufficiency of evidence is waived. Nowell v. Basnight, 185 N.C. 142, 116 S.E. 87; Penland v. Hospital, 199 N.C. 314, 154 S.E. 406; Batson v. Laundry Co., 202 N.C. 560, 163 S.E. 600."

In State v. Waggoner, 207 N.C. 306, 307, 176 S.E. 566, 567, we find: "The defendant made a motion of nonsuit at the close of state's evidence. This motion was overruled, and the defendant offered evidence in his own behalf tending to establish his innocence. The motion for nonsuit was not renewed at the conclusion of all the evidence, and therefore the insufficiency of evidence to warrant conviction was waived and cannot now be considered by this court on appeal. State v. Hayes, 187 N.C. 490, 122 S.E. 13."

In the present case, the insufficiency of evidence is waived. The exception and assignment of error made by defendant as to the refusal of the court below to submit the third issue and fourth issue tendered by it cannot be sustained. The first two issues tendered by defendant are those submitted to the jury by the court below and arose on the pleadings and are determinative of the controversy. The other two we do not think were material and in not submitting them would be prejudicial to the defendant from the pleadings in the cause. There were no exceptions to the evidence on the trial in the court below. The defendant made a motion in the court below to set aside the verdict as contrary to all the evidence. The court below refused the motion. This exception and assignment of error cannot be sustained.

N.C. Code 1931 (Michie), § 591, is as follows: "The judge who tries the cause may, in his discretion, entertain a motion, to be made on his minutes, to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages; but such motion can only be heard at the same term at which the trial is had. When the motion is heard and decided upon the minutes of the judge, and an appeal is taken from the decision, a case or exceptions must be settled in the usual form, upon which the argument of the appeal must be had."

This power is not only made discretionary by statute, but it is inherent in the trial court and, ordinarily, not reviewable by this court. Brantley v. Collie, 205 N.C. 229, 231, 171 S.E. 88. See Bundy, Guardian v. Sutton et al. (N. C.) 177 S.E. 420, filed this day. In fact, the defendant by not making motions of nonsuit, the insufficiency of evidence was waived. The other exceptions and assignments of error were to the charge of the court below. Taking the charge as a whole, we think the learned and able judge in the court below applied the law, applicable to the facts. The charge fully defined all the elements of fraud and deceit and applied the law to the facts on this aspect clearly and accurately. It did not impinge C. S. § 564.

N.C. Code 1931 (Michie), § 6289, is as follows: "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."

The contention of defendant is that a short while before the policy was taken out, Viola Harrison went to the office of a physician and...