Thompson v. Mut. Ben. Health & Accident Ass'n, 525.

• Citation: 184 S.E. 695,209 N.C. 678
• Decision Date: 18 March 1936
• Docket Number: No. 525.,525.
• Court: North Carolina Supreme Court
• Parties: THOMPSON . v. MUTUAL BEN. HEALTH & ACCIDENT ASS'N.

184 S.E. 695
209 N.C. 678

THOMPSON .
v.
MUTUAL BEN. HEALTH & ACCIDENT ASS'N.

No. 525.

Supreme Court of North Carolina.

March 18, 1936.

[184 S.E. 696]

Appeal from Superior Court, Mecklenberg County; Moore, Special Judge.

Action by William Nelson Thompson against the Mutual Benefit Health & Accident Association. From a judgment for plaintiff, defendant appeals.

No error.

This is an action wherein the plaintiff seeks to recover illness indemnity benefits for "confining illness" under a health insurance policy issued to him by the defendant on November 17, 1931, and wherein the defendant seeks, first, to avoid all liability upon the ground that the issuance of said policy was procured by fraud, and, second, to limit the recovery of the plaintiff to the benefits allowed for "non-confining illness."

There was evidence tending to establish the plaintiff's allegation of total disability and total loss of time from August 1, 1934, to November 14, 1934, and that his illness confined him withindoors and required the regular attention of a physician. On the other hand, there was evidence tending to establish the defendant's allegations that the policy was procured by fraud, and that the plaintiff's illness did not confine him withindoors and therein require the regular attention of a physician.

The case was submitted to the jury under appropriate issues, and, from a judgment based on an adverse verdict, the defendant appealed, assigning errors.

J. Laurence Jones and J. L. Delaney, both of Charlotte, for appellant.

Ralph V. Kidd and John M. Robinson, both of Charlotte, for appellee.

SCHENCK, Justice.

The assignments of error are treated in the briefs in two groups, and we will consider them as grouped.

The first group of assignments relate to the motions for judgment as of nonsuit. It is conceded in the brief of the appellant that it "would not be entitled to a judgment of nonsuit unless the Court finds that the policy was void as a matter of law under the evidence."

The fraud alleged, upon which appellant seeks to have the policy declared void, is in effect that the insured concealed from the insurer that he had been ill over a long period for which he had collected health insurance, and that a railway employee benefit association had refused to renew a health policy he formerly carried with it, and that he had suffered from, and collected insurance for, attacks of influenza, neuritis, and neurasthenia, and that the insured had represented that he was "sound physically and mentally" at the time he made application for the policy, when in truth and in fact he knew he was suffering from nervous exhaustion, "special weakness in right arm" (telegrapher's cramp), and an irregular heart and subacute endocarditis, and, further, that...