Thompson v. Mutual Ben. Health & Acc. Ass'n
| Decision Date | 18 March 1936 |
| Docket Number | 525. |
| Citation | 184 S.E. 695,209 N.C. 678 |
| Parties | THOMPSON v. MUTUAL BEN. HEALTH & ACCIDENT ASS'N. |
| Court | North Carolina Supreme Court |
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.
In action on health policy which provided different benefits for confining and nonconfining illness, instruction that, if insured suffered total disability and got out of house infrequently and only because of doctor's instructions to do so as much as possible, and if he spent practically all of his time indoors, he was entitled to recover for confining illness, held proper.
J Laurence Jones and J. L. Delaney, both of Charlotte, for appellant.
Ralph V. Kidd and John M. Robinson, both of Charlotte, for appellee.
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 within the last five years he had been treated by only one physician and by him only for pyogenic poisoning from his teeth, whereas he had been treated by a number of other physicians for various maladies.
The plaintiff in his reply to the answer of the defendant denied the allegations of fraud by either concealment or misrepresentations, and averred that at the time his application for insurance was solicited and obtained he made a full and complete disclosure to the agent of the insurer of the facts relative to his former illnesses, collection of health insurance benefits, the reason for the refusal of the railway employees benefit association to rewrite the policy formerly held by him, and had concealed no facts from such agent and had made no misrepresentation of facts to such agent.
The court, without objection, submitted the following issue: "Was the policy of insurance, Plaintiff's Exhibit A, obtained from the defendant insurance company by means of false representations or concealments as alleged in the answer?" There was evidence to sustain the allegations both of the defendant and of the plaintiff, and the jury answered the issue in favor of the plaintiff. There are no assignments of error either to the evidence or to the charge as they relate to this issue; the defendant having contended itself to reply upon its motions for judgment as of nonsuit.
The motions for judgment as of nonsuit cannot be sustained. It has been repeatedly held by this court, and courts of other jurisdictions, that, if an agent of an insurance company while acting within the scope of his authority in soliciting and taking applications for insurance, is advised of the facts constituting any alleged fraud, and did not himself participate in such fraud,...
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