Johnson v. Pilot Life Ins. Co.
| Citation | 1 S.E.2d 381,215 N.C. 120 |
| Decision Date | 01 March 1939 |
| Docket Number | 94. |
| Parties | JOHNSON v. PILOT LIFE INS. CO. |
| Court | United States State Supreme Court of North Carolina |
Civil action to recover disability benefits under policy of insurance issued by defendant to plaintiff and to set aside settlement or release given by plaintiff to defendant.
The complaint alleges that a $15000 policy of life insurance was issued to the plaintiff by the defendant on 17 March, 1926 containing provision for total and permanent disability benefits, etc.; that the plaintiff was totally and permanently disabled 20 May, 1929, as a result of an injury broken neck, which rendered him incapable of attending to his business affairs; that in October, 1929, the defendant took advantage of plaintiff's mental condition and procured from him "by means of persuasion and undue influence" the policy in suit and undertook to settle its liability thereunder by the payment of $5000; that the said attempted settlement and surrender of the policy in suit, under the circumstances alleged, is void and of no effect; wherefore, plaintiff prays for its reinstatement and recovery thereunder.
The defendant answering, denied any liability under the policy pleaded the settlement of 16 October, 1929, as a complete release and discharge; and further that the plaintiff's action to set aside the release on the ground of fraud is barred by the three-years statute of limitations, C.S. § 441.
The plea of the statute of limitations is based upon allegations to the effect that even if the plaintiff were of unsound mind on 16 October, 1929 (which is expressly denied) and continued in that condition, nevertheless in March, 1933, a general guardian was appointed for the plaintiff, who, with his counsel, made an investigation "relative to the fairness and adequacy of the settlement", completing the investigation in April, 1933; that the said guardian was discharged upon a finding of plaintiff's sanity on 12 December, 1933; and that this action was not begun until 28 November, 1936.
"For the purpose of motion", plaintiff's counsel filed a written stipulation to the effect that a guardian was appointed in March, 1933; that shortly thereafter certain information was requested of defendant "for the purpose of ascertaining whether any undue advantage was taken of the said R. L. Johnson at the time of settlement"; that the information requested was furnished in April, 1933; that in December following, the plaintiff was adjudged competent to manage his own affairs.
"Thereupon the defendant made an oral motion in open court that the action be dismissed on the ground that it appears from the record, including the stipulations, that the action is barred by the statute of limitations."
There is a reference in the judgment to "the stipulations filed by the parties", but the only stipulation appearing on the record is the one filed by counsel for plaintiff.
The motion was denied and defendant appeals, assigning as error "that the court erred in denying its motion to dismiss".
Smith Wharton & Hudgins, of Greensboro, and Battle & Winslow, of Rocky Mount, for appellant.
Dan B. Bryan, Harold D. Cooley, and I. T. Valentine, all of Nashville, for appellee.
It appears that in the Superior Court an effort was made to have the issue raised by defendant's plea of the statute of limitations, C.S. 441, "finally determined in advance of the trial" upon the complaint, answer and "stipulations filed by the parties". To this end, the defendant sought to terminate the action by motion to dismiss, Batson v. City Laundry Co., 206 N.C. 371, 174 S.E. 90, albeit the burden was on the plaintiff to show that he had brought a live claim to court. Allsbrook v. Walston, 212 N.C. 225, 193 S.E. 151. From a denial of the motion, the defendant appeals.
It is not clear upon what theory the motion was ruled, i. e., whether the issue was finally determined or the "evidence" merely held sufficient to preclude a nonsuit. See Dix-Downing v. White, 206 N.C. 567, 174 S.E. 451; Rogers v. Bailey, 209 N.C. 849, 184 S.E. 48. Without this knowledge, any expression of opinion might prove unwise. Richardson v. Southern Express Co., 151 N.C. 60, 65 S.E. 616. Perhaps neither side would want to risk the issue upon the record as it now stands. However this may be, it is manifest that the appeal is fragmentary or premature and must be dismissed under the uniform decisions on the subject. Capps v. Atlantic Coast Line R. Co., 182 N.C. 758, 108 S.E. 300; Yates v. Dixie Fire Ins. Co., 176 N.C. 401, 97 S.E. 209. There are other issues yet to be determined. Joyner v. Reflector Co., 176 N.C. 274, 97 S.E. 44. A fragmentary appeal is one which seeks to bring up only a part of the case, leaving other parts of its unsettled. Hinton v. Life Ins. Co., 116 N.C. 22, 21 S.E. 201; McIntosh N.C. Prac. & Proc. 776.
No appeal lies from a refusal to dismiss an action. Goldsboro v. Holmes, 183 N.C. 203, 111 S.E. 1; Farr v. Babcock Lbr. Co., 182 N.C. 725, 109 S.E. 833; Goode v. Rogers, 126 N.C. 62, 36 S.E. 185. In such case there is no judgment--only the refusal of a judgment. Bradshaw v. Citizens' Nat. Bank, 172 N.C. 632, 90 S.E. 789. Of course, if the motion had been allowed and the action dismissed, the plaintiff could not have proceeded in the court below, and in that event an appeal by the plaintiff would have been in order. Royster v. Wright, 118 N.C. 152, 24 S.E. 746. Such a ruling would have been just the reverse of the one we are now considering. Batson v. City Laundry Co., supra.
The reason no appeal lies from a refusal to dismiss, is that it does not come within the purview of the statute, C.S. § 638 permitting appeals. Thomas v. Carteret, 180 N.C. 109, 104 S.E. 75; Chambers v. Seaboard Air Line R. Co., 172 N.C. 555, 90 S.E. 590; Corporation Comm. v. Cannon Mfg. Co., 185 N.C. 17, 116 S.E. 178. Moreover, if a departure be allowed in one case, it could be insisted on in another, and each litigant,...
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