McNeal v. Life & Cas. Ins. Co. of Tenn.
| Decision Date | 03 November 1926 |
| Docket Number | 268. |
| Citation | 135 S.E. 300,192 N.C. 450 |
| Parties | McNEAL v. LIFE & CASUALTY INS. CO. OF TENNESSEE. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wake County; Barnhill, Judge.
Action by Lonnie McNeal against the Life & Casualty Insurance Company of Tennessee. From the judgment, plaintiff appeals. Reversed.
Plaintiff alleged that on February 4, 1924, the defendant issued a policy of life insurance in the sum of $300 to Isaac Hodge said policy being No. U-4096891, and being payable to the estate of said Hodge; that thereafter the said Hodge duly assigned said policy to the plaintiff, Lonnie McNeal. It was further alleged that Hodge died on May 5, 1924, and that said policy of insurance was paid up and in good standing at the time of his death.
The defendant filed answer, admitting that the policy was issued on the life of Isaac Hodge, and, while not denying the assignment, alleges that the policy was secured by fraud and fraudulent misrepresentation, in that the said Hodge was suffering with tuberculosis at the time the application for said policy was made.
Whereupon the plaintiff filed a reply, denying that the insured, Hodge ever filed an application for insurance, and alleging that an agent of the defendant wrote the policy upon the life of Hodge and accepted premium thereon, and that said policy was issued to Hodge without medical examination, and therefore contrary to law. In the meantime Lonnie NcNeal died and his administrator, S. R. Murray, was duly made a party.
When the case was called for trial the following judgment was rendered:
"This cause coming on to be heard and the defendant having moved for judgment on the pleadings, said pleadings consisting of a complaint, the answer, and the reply of the plaintiff, and it appearing to the court that the plaintiff did not allege that he had an insurable interest in the life of the deceased, Isaac Hodge, and, furthermore, that it was alleged in the reply that the policy contract was executed without a written application having been made by the insured, the deceased, Isaac Hodge, in violation of the statute relating thereto, and in the making of said motion for judgment on the pleadings, the defendant tendered judgment for the sum of $4.50, being the amount of the premiums that had been paid on the said policy and for costs to date, it is hereupon considered, ordered, and adjudged that the plaintiff recover of the defendant the sum of $4.50 and the costs of this action, and that as to the other matters alleged in the complaint the action is hereby dismissed."
From said judgment, plaintiff appealed.
H. L. Swain, of Raleigh, for appellant.
Willis Smith, of Raleigh, for appellee.
When a policy of insurance, properly executed, is offered by the insurer and accepted by the insured as the evidence of their contract, it must be conclusively presumed to contain all the terms of the agreement for insurance by which the parties intend to be bound. And when a formal written policy is delivered and accepted, the written policy, while it remains unaltered, constitutes the contract between the parties. Clements v. Insurance Co., 155 N.C. 57, 70 S.E. 1076; Wilson v. Insurance Co., 155 N.C. 173, 71 S.E. 79; Hollingsworth v. Supreme Council, 175 N.C. 615, 96 S.E. 81, Ann. Cas. 1918E, 401; Guarantee Corporation v. Electric Co., 179 N.C. 402, 102 S.E. 636.
While it is admitted in the pleadings that the policy sued on was executed and delivered to Isaac Hodge, the defendant contends that the judgment of the court should be sustained by reason of the fact that the plaintiff had no insurable interest in the life of the deceased, Isaac Hodge, and, further, that it appeared that the policy had been issued without a medical examination as required by C. S. § 6460. Two questions, therefore, are presented by this contention:
(1) Was it necessary for the plaintiff to allege and prove an insurable interest in the life of Isaac Hodge?
(2) Was the policy void by reason of failure to comply with C. S. § 6460?
The first contention as to insurable interest cannot...
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