Mccabe v. Md. Cas. Co

• Decision Date: 26 February 1936
• Docket Number: No. 29.,29.
• Court: North Carolina Supreme Court
• Parties: McCABE et al. v. MARYLAND CASUALTY CO.

183 S.E. 743

209 N.C. 577

McCABE et al.

v.MARYLAND CASUALTY CO.

No. 29.

Supreme Court of North Carolina.

Feb. 26, 1936.

Appeal from Superior Court, Pasquotank County; Moore, Special Judge.

Civil action to recover on policy of accident insurance by A. G. McCabe and another against the Maryland Casualty Company. From the judgment, the defendant appeals.

New trial.

Civil action to recover on policy of insurance.

Upon denial of liability and issues joined, the jury returned the following directed verdict:

"1. Did the defendant issue to J. T. McCabe its original policy of insurance No. MC-108253, as alleged in the complaint? A. Yes.

"2. Did the defendant, through its agents or employees know that Jos. T. McCabe was over 65 years of age, the name of his wife, and his lack of part of his left armat the time said policy was issued? A. Yes.

"3. Was the age and date of birth of Dr. J. Lev McCabe, the naming of the latter's wife as beneficiary, her designation as Jos. T. McCabe's wife, and a description of Jos. T. McCabe as in whole and sound condition physically inserted in the application of said policy through mutual mistake of the parties, or the mistake of the draftsman, as alleged in the complaint? A. Yes.

"4. Did the plaintiff's intestate, Jos. T. McCabe, die as a result of bodily injuries effected directly and independently of all other causes through accidental means and sustained while operating and driving an automobile? A. Yes.

"5; Has the defendant waived paragraph 20 of said policy designated 'Age Limits of Policy, ' and the errors appearing in the application, and is defendant estopped to set up said paragraph and said errors in denial of liability on said policy? A. Yes.

"6. At the time of the issuance of the policy MC-1082S3, on July 25, 1929, was J. T. McCabe, deceased, more than 65 years of age? A. Yes.

"7. Is plaintiff's cause of action barred by the statute of limitations? A. No.

"8. In what amount, if anything, is defendant indebted to plaintiff administrator? A. $5,000.00 with interest (from) November 15th, 1934."

Judgment on the verdict, from which the defendant appeals, assigning errors.

John H. Hall and McMuIlan & McMullan, all of Elizabeth City, for appellant.

J. H. LeRoy, Jr., and M. B. Simpson, both of Elizabeth City, for appellees.

STACY, Chief Justice.

Without going into the "mix-up, " as indicated by the third issue, whereby the insured was confused with his 36 year old son in the application, suffice it to say the policy in suit contains the following provision: "20. Age Limits of Policy: The insurance under this policy shall not cover any person under the age of 18 years nor over the age of 65 years. Any premium paid to the company for any period not covered by this policy will be returned upon request."

With this provision in the face of the policy, plaintiff's recovery is limited to a return of the premiums paid while the insured was over the age of 65 years. Reinhardt v. Ins. Co., 201 N.C. 785, 161 S. E. 528; Gilmore v. Ins. Co., 199 N.C. 632, 155 S.E. 566.

The fifth issue undertakes to find that the defendant had waived paragraph 20 of its policy, but the suit is upon the policy as written. Burton v. Ins. Co., 198 N.C. 498, 152 S.E. 396. The stipulation in question...