Smith v. New York Life Ins. Co.

• Decision Date: 10 April 1935
• Docket Number: 307.
• Citation: 179 S.E. 457,208 N.C. 99
• Parties: SMITH v. NEW YORK LIFE INS. CO.
• Court: North Carolina Supreme Court

179 S.E. 457

208 N.C. 99

SMITH v. NEW YORK LIFE INS. CO.

No. 307.

Supreme Court of North Carolina

April 10, 1935

Appeal from Superior Court, Pitt County; Cowper, Special Judge.

Action by Edward Dalton Smith against the New York Life Insurance Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

See also, 205 N.C. 348, 171 S.E. 330.

This is an action brought by plaintiff to recover a certain amount of money, for total and permanent disability, under a policy for $5,000, issued to him by defendant, on October 9, 1926. The premiums have all been paid.

A provision in the policy is as follows: "Disability shall be considered total whenever the Insured is so disabled by bodily injury or disease that he is wholly prevented from performing any work, from following any occupation, or from engaging in any business for remuneration or profit, provided such disability occurred after the insurance under this policy took effect and before the anniversary of the policy on which the Insured's age at nearest birthday is sixty."

It is contended by defendant that the disability occurred before the policy was issued. That the plaintiff answered "No" in his application to the following question "Have you consulted any physician for or suffered from any ailment or disease of the skin, middle ear or eyes?"

In plaintiff's claim for disability benefits made August 19 1932, he answered questions as follows "(a) Are you wholly disabled at the present time? Yes.

(b) State cause of disability? Don't know.

(a) On what date did the illness begin that led up to the present disability and what was the nature of the illness? Some time in 1925, my right eye hurt at night, until I had it treated.

(b) Give name and address of the first physician consulted at the beginning of that illness? A. L. MacLean, 1201 N. Calvert St., Baltimore, Md. Was at Johns Hopkins Hospital at that time.

(c) State date on which you first consulted that physician? Sept. 16, 1925.

(d) Give names of all other physicians consulted and dates of such consultations? J. O. Baxter, New Bern, N. C., April, 1932.

From what date has your disability prevented you from engaging in any occupation whatsoever for remuneration or profit? January 1, 1932."

The plaintiff was allowed by the court below to amend his complaint and set up the plea of waiver. The plaintiff contended their agent, who sold him the policy, knew about the eye treatment; that the eye, for six years, had given him no trouble after the treatment, and for five years from the time the policy was issued he was in good health and under no disability; that when the policy was taken out he was not nineteen years old and a pupil in the school conducted by the agent of defendant company, who solicited the insurance. Without further detailing same, facts are set forth that would entitle plaintiff to a waiver issue on this application aspect. This action was here before on the question of removal to the federal court, 205 N.C. 348, 171 S.E. 330. The only exception and assignment of error made by the defendant will be set forth in the opinion.

Albion Dunn, of Greenville, for appellant.

S. J. Everett, of Greenville, for appellee.

CLARKSON Justice.

The defendant's first and only exception and assignment of error embraces its exception to the order of his honor, G. V. Cowper, special judge presiding at the November term, 1934, permitting the plaintiff to amend his pleadings so as to set up a waiver of the conditions of the policy by the defendant, and the defendant contends that said order was erroneously granted for that: "(1) It is in violation of section 547, C. S., in that the amendment changes substantially the claim of the plaintiff, and (2) the Court was without authority to permit a replication, for that the time for replying to the further answer and defense of the defendant, had long since expired." We cannot so hold.

N.C. Code 1931 (Michie), § 536, is as follows: "The judge may likewise, in his discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited, or by an order to enlarge the time."

Section 547 is as follows: "The judge or court may, before and after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding, by adding or striking out the name of any party; by correcting a mistake in the name of a party, or a mistake in any other respect; by inserting other allegations material to the case; or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the fact proved. When a proceeding taken by a party fails to conform to law in any respect, the trial judge may permit an amendment of the proceeding so as to make it conformable thereto."

The contention of defendant cannot be sustained. In Aldridge v. Ins. Co., 194 N.C. 683, 685, 140 S.E. 706, 708, we find: "At a special term of the superior court, held in December, 1926, the feme plaintiff was made a party, and leave was granted the plaintiffs to reply to the answer. The defendant objected to the order authorizing the replication apparently on the ground that pleadings must be filed and issues joined before the clerk. P. L. 1921 Ex. Sess. c. 92; P. L. 1923,...