Petty v. Pacific Mut. Life Ins. Co. of California
| Decision Date | 14 October 1936 |
| Docket Number | 163. |
| Citation | 187 S.E. 816,210 N.C. 500 |
| Parties | PETTY v. PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Vance County; E. H. Cranmer, Judge.
Action by Mrs. Nannie Draper Petty against the Pacific Mutual Life Insurance Company of California. From a judgment for plaintiff upon the pleadings, defendant appeals.
Reversed.
Judgment for plaintiff upon pleadings has same effect as sustaining demurrer to answer, and requires that defendant's pleading be given most favorable interpretation and every intendment taken against plaintiff.
Action by the plaintiff beneficiary upon a policy of insurance issued upon the life of Ira Moody Petty.
Judgment upon the pleadings for the amount demanded in the complaint was entered by the court below. Defendant appealed.
J. M Broughton, of Raleigh, for appellant.
J. P. & J. H. Zollicoffer, of Henderson, for appellee.
A judgment for the plaintiff upon the pleadings has the same effect as sustaining a demurrer to the answer, and requires that the defendant's pleading shall be given the most favorable interpretation and every intendment taken against the plaintiff. Barnes v. People's Bank & Trust Co., 194 N.C. 371, 139 S.E. 689; Pridgen v Pridgen, 190 N.C. 102, 129 S.E. 419.
It is necessary, therefore, to examine the allegations of the answer in accord with this rule.
After admitting the issuance of the policy sued on and the death of the insured, the defendant interposed the defense that the policy had lapsed for failure to pay the premiums due thereon, and that subsequently the insured made written application for reinstatement with a certificate of health wherein certain representations as to his then physical condition and previous requirement of medical services were made, concluding with the following language: "I hereby declare that the foregoing statements and certifications are made by me as a consideration for the acceptance by the Company of the premium now in default and for the reinstatement of the above numbered policy as of the due date of said premium and are complete, true and correct, and I understand that the Company, believing the same to be such, will rely and act on them."
It is particularly alleged in the answer that, in response to the question, "Are you now in good health?" the insured replied, "Yes." "Whereas, in truth and in fact, the said Insured was not at such time in good health, but on the contrary had at such time an ulcer of the stomach, among other ailments, of which condition the Insured had previous thereto been informed and advised by one or more physicians, and for which condition a diet had been prescribed by physicians, and that said condition of ulcer of the stomach was such as to necessitate an operation of said Insured, which was performed less than ninety days after the date of said Certificate of Health, pursuant to which operation, the death of the Insured occurred a few days thereafter."
It was further alleged in defendant's answer that, in response to the question, "Have you during the past year had any injury, sickness or ailment of any kind, or required the services of a physician or other practitioner?" the insured replied, "No." "Whereas, in truth and in fact, the Insured within less than a year of the date of the said Certificate of Health had had sickness or ailments including said condition of ulcer of the stomach, and had required and obtained the services of one or more physicians in connection therewith, and had within said period of less...
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