Sanford v. National Council, Junior Order of United American Mechanics
| Decision Date | 20 November 1918 |
| Docket Number | 420. |
| Citation | 97 S.E. 384,176 N.C. 443 |
| Parties | SANFORD v. NATIONAL COUNCIL, JUNIOR ORDER OF UNITED AMERICAN MECHANICS. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Richmond County; Harding, Judge.
Action by T. M. Ewing, executor of Annie Dunlap, deceased, against the National Council, Junior Order of United American Mechanics. T. M. Ewing dying Frank Sanford, as administrator with the will annexed of Annie Dunlap, was substituted as plaintiff. From an order setting aside a verdict for plaintiff, and refusing to give judgment, plaintiff appeals. No error.
In an action on insurance policy, where there was no dispute as to amount of recovery, an agreement that issue as to amount of recovery should be decided for a specific amount, if the only other issue should be decided in favor of plaintiff, was intended merely for the guidance of the jury, and did not prevent the court from setting aside issue as to amount of recovery after verdict, and submitting a new issue or defense, which appeared in plaintiff's evidence on the trial.
J. W Dunlap, at the time of his death, in March, 1918, was a member of Ellerbee Council, No. 388, of defendant order, and was duly enrolled as a member of class B, funeral benefit department of the National Council of said order, and was in good standing in Ellerbee Council, No. 388, when he died, and by virtue of his enrollment in said funeral benefit department of the order, his widow, Annie Dunlap, was entitled to the sum of five hundred dollars ($500.00) as a funeral benefit from the National Council of the said order as of the time he died. Due proofs of death were filed with the defendant. Annie Dunlap brought this action to recover the amount alleged to be due by defendant to her, and died during its pendency. T. M. Ewing, her executor, was made party plaintiff, and a new action for the same cause brought within 12 months thereafter. T. M. Ewing died, and plaintiff Frank Sanford, as administrator with the will annexed of Annie Dunlap, was substituted in his place as plaintiff.
Defendant answered, denying liability, and especially because, as it alleged in its answer, John W. Dunlap's death was caused by his intemperate habits, and that it is provided by section 15 of the revised laws of the funeral benefit department which were in full force and effect at the time the application of John W. Dunlap for membership was filed, and at the time of his death, that no claim should be paid when intemperance was the cause of the death.
The case came on for trial, and the defendant, after abandoning all other defenses, if any others existed, relied solely upon the defense that John W. Dunlap's death was caused by the excessive use of intoxicating liquor, and thereupon submitted the following issues, which were accepted by the plaintiff and the court:
The jury answered the first issue "No," and the second issue was answered "$500, with interest from March 10 1913." After the verdict was returned, and before the judgment was signed, the defendant moved to set aside the verdict and that a new trial be ordered. The court, being of the opinion that the defendant was surprised by the evidence tending to show that John W. Dunlap's death was caused by valvular disease of the heart, set aside the verdict, in the exercise of its discretion, as to the second issue only overruling the motion of the defendant as to the first issue, and ordered a new trial. The court then permitted the defendant to submit the following issues:
"(1) [Retained with answer thereto as above.]
(2) Did the deceased die as a result of the disease which demonstrated itself prior to the deceased's admission to the order, or of the funeral benefit department?
(3) What amount, if any, is plaintiff entitled to recover?"
The plaintiff excepted to the order for another trial, and to the new issue submitted. He also excepted to the refusal of his motion for judgment upon the issues answered by the jury and the agreement of the parties.
Plaintiff appealed.
W. R. Jones, of Rockingham, for appellant.
Douglass & Douglass, of Raleigh, for appellee.
WALKER, J. (after stating the facts as above).
The defendant's motion to dismiss the appeal because the case was not served within the time fixed by law, or within 15 days after the court adjourned, is fully met by the statements in the supplemental transcript sent to this court, which shows that an appeal was taken from the judge's order and refusal to give judgment, and that defendant's counsel were duly notified thereof and actually accepted service of the notice of appeal, and agreed to extend the time for serving the case on appeal to August 1, 1918, and, besides, accepted service of the case on appeal within the extended time, or on July 20, 1918. Defendant's other objections, not appearing in this (plaintiff's) appeal, are not before us (as defendant did not appeal), nor do they appear in the record. Even if they have any merit, we cannot consider them.
But we are of the opinion that the ruling of the judge as to the new issue must be sustained. The contract of insurance contained a provision that no claim should be made "for benefits upon the death of any member from a disease which may have demonstrated itself prior to the member's admission to the order, or his enrollment in the funeral benefit department." The case had been tried upon the...
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