Potts v. Life Ins. Co. of Va.
| Decision Date | 21 March 1934 |
| Docket Number | 494. |
| Citation | 174 S.E. 123,206 N.C. 257 |
| Parties | POTTS v. LIFE INS. CO. OF VIRGINIA. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Guilford County; Sink, Judge.
Action by T. C. Potts, administrator of the estate of Joseph W Abel, deceased, against the Life Insurance Company of Virginia, which brought a cross-action. Judgment for plaintiff, and defendant appeals.
Affirmed.
This action was instituted and tried in the municipal court of the city of High Point. It was alleged that on the 20th day of July, 1931, the defendant executed and delivered a certain policy of life insurance upon the life of Joseph W. Abel in the sum of $500, said policy being No. 5942823. The insured died on the 8th day of January, 1932. The defendant admitted the execution and delivery of the policy, but alleged that it was provided therein that "this policy shall be void if upon its date and delivery the insured be not alive and in sound health," etc., and that the insured was not in sound health on the date of delivery.
The defendant also alleged by way of cross-action that the insured signed a written application for said insurance and in response to certain questions propounded in said application, gave false answers and made false representations therein, and that said representations were known by the insured at the time to be false and were made with knowledge of falsity, with intent to deceive. Question 13 in said application is as follows: "(a) What is present condition of health?" "(b) When last sick?" The insured answered the first question "Good," and the second question, "Never." Question 15 was: "Has said life ever been under treatment in any dispensary, hospital or asylum," etc.? The insured answered, "No." Question 16 related to certain diseases including disease of the heart, disease of kidneys, disease of lungs, disease of liver, etc. The insured answered, "No." Question 17 was: The insured answered, "No." The application signed by the insured also contained the following: "And I declare that the answers to the above questions and those made or to be made to the medical examiner on the back hereof are complete, strictly correct and true; that the several questions were duly asked, and that the answers given by me are truly recorded hereon," etc.
The policy was issued without medical examination except such as was made by an agent of the defendant, who was not a physician. The judge of the municipal court excluded the application as evidence and the defendant excepted.
Dr McCain testified that he treated the insured in February or March, 1931, preceding the application for insurance, and that he came to his office every two weeks "from February until June or July 1931." Dr. Flagge testified that he treated the insured from June 9th until the time of his death, approximately each week, and that the insured was suffering with a stone "in the kidney." This physician stated that he had an opinion as to whether the insured was in sound health on June 9, 1931, preceding the application for insurance, and on July 20, 1931, when the policy was delivered; but the court would not permit witness to state that in his opinion the insured was not in sound health on the date of the delivery of the policy, and the defendant excepted. The trial judge declined to permit the defendant to offer the testimony of the superintendent of the policy department of defendant to the effect that the application signed by the insured influenced him in acting favorably and in delivering the policy.
Without objection the following issues were submitted to the jury:
1. "Was the deceased, Joseph W. Abel, in sound health on July 20, 1931?"
2. "What amount, if any, is plaintiff entitled to recover of the defendant?"
The jury answered the first issue, "Yes," and the second issue, "$500.00."
From judgment upon the verdict exceptions were filed and heard by the judge of the superior court, who overruled the exceptions and affirmed the judgment of the municipal court. From such judgment the defendant appealed.
Life insurance application, containing insured's statements that he had never consulted physician or been in hospital, and physicians' testimony, tending to show falsity of such representations, held incompetent in action on policy issued without medical examination, where no issue of fraud was tendered (C.S. § 6460, Laws 1927, c. 13).
W. Ney Evans, of High Point, for appellant.
T. W. Albertson and David H. Parsons, both of High Point, for appellee.
Does C S. § 6460, Laws 1927, c. 13, apply to the policy issued...
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