Schas v. Equitable Life Assur. Soc. of U.S.
| Decision Date | 15 December 1915 |
| Docket Number | 552. |
| Citation | 87 S.E. 222 |
| Parties | 170 N.C. 420, Am.Ann.Cas. 1918A,679 v. EQUITABLE LIFE ASSUR. SOCIETY OF UNITED STATES. SCHAS |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Buncombe County; Webb, Judge.
Action by Fannie Schas against the Equitable Life Assurance Society of the United States. From judgment for plaintiff, defendant appeals. No error.
Question as to misstatement as to health held for jury.
Bourne Parker & Morrison and T. F. Davidson, all of Asheville, for appellant.
Mark W Brown, of Asheville, for appellee.
This case was before us at a former term, and is reported in 166 N.C. at page 55, 81 S.E. 1014. We then ordered a new trial for errors committed in the trial below. At the February term, 1915, it was again tried upon issues, and the jury returned the following verdict:
"(1) Did the insured, Lewis Schas, at the time of signing the application for the policy sued on, represent that he had not been under the care of a physician within two years next preceding date of said application, as alleged in the complaint? Answer: Yes.
(2) Had the insured, Lewis Schas, been under the care of a physician within two years preceding the date of said application? Answer: No.
(3) Did the insured, Lewis Schas, represent at the time of making his application for the insurance that the policy should not take effect until the first premium had been paid during his good health? Answer: Yes.
(4) At the time of the payment of said first premium was said Lewis Schas in good health? Answer: Yes.
(5) Did the insured, Lewis Schas, at the date of his application for the policy of insurance, represent that he had not had any serious illness or disease, except diseases incident to childhood? Answer: Yes.
(6) Had Lewis Schas had any serious illness or disease, except diseases incident to childhood, at the time of his application for the insurance policy sued on? Answer: No.
(7) Was the death of insured brought about by his own intentional self-destruction, as alleged in the answer? Answer: No."
The defendant has appealed from the judgment rendered upon the verdict.
The questions of evidence are unimportant and call for no special comment. Some of the questions were not answered, and therefore, no harm was done, and where they were asked by defendant, and ruled out, it does not appear what the answers would have been or what was expected to be proved, so we can see that there was prejudice. In re Smith's Will, 163 N.C. 464, 79 S.E. 977; State v McKenzie, 166 N.C.
290, 81 S.E. 301; State v. Lane, 166 N.C. 333, 81 S.E. 620. Harmless error is not ground for a reversal. The ruling must be material, and prejudicial to appellant.
The instruction as to what constituted "serious illness" was substantially correct, and we think that the jury must have fully understood what is meant by the term, as used in the policy. On the conflicting state of the evidence as to whether the illness of the deceased was a serious illness, it was for the jury, to whom the case was submitted, to decide. The question propounded to the applicant did not require him to give information as to the last illness he had suffered, but the last serious illness. Not every illness is serious. An illness may be alarming at the time, or thought to be serious by the one afflicted, and yet not be "serious" in the sense of that term as used in insurance contracts. An illness that is temporary in its duration, and entirely passes away, and is not attended nor likely to be attended, by a permanent or material impairment of the health or constitution, is not a serious illness. It is not sufficient that the illness was thought to be serious at the time it occurred, or that it might have resulted in permanently impairing the health. Union Mut. Ins. Co. v. Wilkinson, 13 Wall. 222, 20 L.Ed. 617. A cold may be, and sometimes is, followed by pneumonia, pleurisy, abscess of the lungs, and consumption, but to hold that because a cold may be attended or followed by such consequences it is a serious illness, and that a failure to mention such in response to an inquiry in an application for insurance as to the nature and character of any serious illness the applicant has suffered, would result in invalidating almost all contracts of insurance the covenants of which are based upon the statements in the application as warranties; for, if a careful investigation should be made into the lives of persons insured, in almost every life there would be found some incident of illness of such ordinary occurrence and insignificance in its effect, yet of possible seriousness, which the applicant, without careful scrunity and accurate recollections of his past life, has overlooked to mention. Em. Ho. of Co. Woodmen v. Prater, 24 Okl. 214, 103 P. 558, 23 L. R. A. (N. S.) 917, 20 Ann. Cas. 287, and notes. It has been held that, if the affliction is of a permanent character, it must certainly be a serious one; and if it is merely temporary, and to pass away without serious results, it cannot well be said to render the person unsound in his general health. The word "serious" is not generally used to signify a dangerous condition, but rather to define a grave, important, or weighty trouble. Brown v. Met. L. Ins. Co., 65 Mich. 306, 32 N.W. 610, 8 Am. St. Rep. 894. Serious or severe illness does not include the ordinary diseases of the country, which yield readily to medical treatment, and, when ended, leave no permanent injury to the physical system, but refers to those severe attacks which often leave a permanent injury and tend to shorten life. Holloman v. Life Ins. Co., 1 Woods, 674; s. c., 12 Fed. Cas. No. 6,623. In Webster's Dictionary the word "serious" is defined as something "giving rise to apprehension; attendant with danger; as a serious injury or condition; important, weighty, not trifling; grave;" and we find substantially the same definitions given in the other dictionaries. The court, in Caruthers v. Kansas Mut. L. Ins. Co. (C. C.) 108 F. 487, gives the same meaning to those words, and states that, as the company saw fit to use the word ...
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