McLain v. Shenandoah Life Ins. Co.

Decision Date03 January 1945
Docket Number740.
CourtNorth Carolina Supreme Court

This is a civil action to recover upon a double indemnity provision of an insurance policy issued by the defendant upon the life of Robert Sherrill McLain in which the plaintiff Oma Mink McLain, his wife, was beneficiary. The insured was killed in a collision between the motorcycle on which he was riding and a truck. The plaintiff accepted the check of the defendant for $2500, and executed and delivered a release of all claims against the defendant. The plaintiff now contends that the execution and delivery by her of a release of all claims against the defendant company was procured by misrepresentation and fraud practiced on her by the defendant, and seeks to avoid the release and to recover the double indemnity provided in the policy. The defendant denies that it practiced any misrepresentation or fraud upon the plaintiff.

The policy in suit was first written to cover only indemnity of $2500 upon the death of the insured, but there was subsequently attached thereto a supplemental contract for "Double Indemnity Benefit," which provided for payment of an additional $2500 "if the insured *** shall die as a result of any bodily injury effected while not under the influence of intoxicants, directly through external violent and accidental means, *** provided such death does not result *** from any violation of the law."

There arose upon the contradictory allegations and contentions of the plaintiff and defendant the fourth issue which was submitted to the jury, to wit: "4. Was the plaintiff induced to accept the check and execute the release by the fraudulent misrepresentation of the defendant, as alleged in the complaint and reply?"

The jury answered the fourth issue in the affirmative, as contended for by the plaintiff, and the other issues were also answered in favor of the plaintiff. The Court entered judgment, predicated on the verdict, that the plaintiff recover of the defendant the amount sued for, namely, $2500. From this judgment the defendant appealed assigning errors.

H H. Leake, Fred S. Hutchins, and H. Bryce Parker, all of Winston-Salem, for plaintiff, appellee.

Womble, Carlyle, Martin & Sandridge, of Winston-Salem, for defendant, appellant.

SCHENCK Justice.

The defendant, appellant, states in his brief: "On this appeal the appellant chooses to rely upon its Assignments of Error No. 1, 3 and 4, which relate to the signing of the judgment and to the overruling of the defendant's motion for judgment as of nonsuit made at the conclusion of the plaintiff's evidence and renewed at the conclusion of all the evidence." It is the contention of the defendant that there was not sufficient evidence of fraudulent misrepresentation to be submitted to the jury, and since the plaintiff's alleged cause of action is bottomed upon the allegation of fraud in the procurement of the release executed and delivered by her, the motion of the defendant for a judgment as in case of nonsuit, or to dismiss the action, should have been allowed. There appears in the brief of the plaintiff, appellee, the following: "As stated by the defendant, the sole question now before the Court is whether there was sufficient evidence of fraud for the jury."

We adopt the statement that "the sole question now before the Court is whether there was sufficient evidence of fraud for the jury."

The fraud alleged and relied upon by the plaintiff consisted of the alleged false statements made by the representatives of the defendant to the plaintiff as to the provisions contained in the policy, namely, that the policy had not been in force long enough to put in effect the provision for double liability, and that the policy did not cover death caused by a motorcycle. The policy, of which she was the beneficiary and which was the subject of the settlement, was in the possession of the plaintiff, and, according to her own testimony, she had known the policy contained double indemnity provision from the time it was issued in December 1934, that she had...

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