Powell v. North State Mut. Life Ins. Co.
| Citation | 69 S.E. 12,153 N.C. 124 |
| Parties | POWELL v. NORTH STATE MUT. LIFE INS. CO. |
| Decision Date | 06 October 1910 |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Edgecombe County; Cooke, Judge.
Action by W. H. Powell against the North State Mutual Life Insurance Company. A special verdict was returned, defendant's motion for a new trial was denied, and its motion to set aside the verdict upon certain isues granted, and plaintiff's motion for judgment upon the remaining issues denied. Both parties appeal. Affirmed on plaintiff's appeal, and new trial granted on defendant's appeal.
In an action on a life policy, the evidence is not to be viewed most favorably for plaintiff, nor are doubts or uncertainties in the evidence to be solved in favor of insured.
F. S Spruill, for plaintiff.
Rouse & Land and Gilliam & Gilliam, for defendant.
Plaintiff's Appeal.
This action was brought to recover $5,000, the amount of an insurance policy alleged to have been issued by the defendant on the life of Henry D. Teel. The defendant denied that the policy had ever been delivered to Henry D. Teel, and that it had ever become a binding contract between the parties. It averred in the answer that Teel in his application had made a false and material representation as to his habit of using opium or any of its preparations with the fraudulent intent of procuring the policy to be issued to him, as he knew, at the time of making the statement, that it was false. Issues were submitted to the jury, which, with the answers thereto, are as follows:
In the charge to the jury, the court gave the following instruction: "You are instructed that the testimony in this case must be viewed most favorably for the plaintiff; and, whenever you are in doubt or uncertainty in respect to the evidence, the same must be solved in favor of the insured." The defendant excepted, and, after the verdict was returned, moved for a new trial, upon the ground that the said instruction was erroneous. The court refused the motion, and the defendant again excepted. The defendant then moved to set aside the verdict upon the third, fourth, and fifth issues. The motion was granted, and the case continued for trial upon those issues. The defendant reserved its exception to the refusal of the motion for a new trial. The plaintiff moved for judgment upon the remaining issues; that is, the first, second, and sixth. This motion was denied. The plaintiff having excepted and appealed, the defendant also appealed.
If the plaintiff is otherwise entitled to judgment upon issues 1, 2, and 6, we think the court erred in giving the instruction to which exception was taken by the defendant. As the plaintiff has appealed from the refusal of the court to render judgment in his favor, it becomes necessary to consider the defendant's appeal in connection with the plaintiff's although the general rule is that a party cannot appeal from an order refusing a new trial until there is a judgment, but should reserve his exception until the case is ripe for an appeal by him. The circumstances of this case, though, as we have said, make it necessary and desirable that both appeals should be heard, as we cannot well pass upon the plaintiff's motion without first ascertaining if there has been a valid verdict upon which a judgment can be entered. If we should decide for the plaintiff and enter judgment without considering the defendant's exception to the charge, we might afterwards decide that the defendant's exception was well taken, which would involve a new trial and thus produce confusion, as judgment would already have been rendered for the plaintiff.
The instruction of the court that the evidence should be viewed most favorably for the plaintiff, and, if the jury are in doubt or uncertainty in respect to the evidence, they should solve the doubt in favor of the insured, was erroneous. Asbury v. Railway, 125 N.C. 568, 34 S.E. 654. There is no rule of law giving the plaintiff such an advantage over the defendant. We presume his honor had in mind the rule which requires insurance policies to be construed favorably to the insured when there is any ambiguity or doubt as to the true meaning of the words which are chosen by the insurance company to express the terms of the contract. Bank v. Insurance Co., 95 U.S. 673, 24 L.Ed. 563. When a motion to nonsuit is made, the testimony is construed most favorably to the plaintiff, but not so as to the evidence in the trial of issues before a jury. In this case the court correctly instructed the jury as to the burden of proof, but went too far in telling them to allow to the plaintiff a more favorable consideration of the evidence than to the defendant, and to resolve any doubt in his favor. This entitles the defendant to a new trial upon the issues, and the plaintiff, consequently, is not entitled to judgment.
But there is another reason which sustains the refusal of the court to render judgment for the plaintiff. The defendant in its answer denies that the policy was ever delivered, or that any contract of insurance was made, and that question should be settled by the submission of proper issues to the jury before there can be any judgment for the plaintiff. Bryant v....
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