Tillery v. Royal Benefit Soc'y

• Decision Date: 11 March 1914
• Court: North Carolina Supreme Court
• Parties: TILLERY v. ROYAL BENEFIT SOCIETY et al.

80 S.E. 1068

165 N.C. 262

TILLERY

v.ROYAL BENEFIT SOCIETY et al.

Supreme Court of North Carolina.

March 11, 1914.

1. Appeal and Error (§ 185*) — Dismissal — Want of Jurisdiction.

A motion to dismiss for want of jurisdiction because of the amount in controversy may be made for the first time in the Supreme Court.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1166-1176, 1375; Dec Dig. § 185.*]

2. Courts (§ 121*)—Jurisdiction—Superior Court.

The amount demanded in good faith, and not the amount recovered, determines jurisdic-tion, and hence the superior court has jurisdiction in an action on an insurance policy in which the demand made in good faith was for $202.

[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 413-426, 428, 450, 452, 458, 459, 406; Dec. Dig. § 121.*]

3. Trial (§ 193*)—Instructions—Opinion as to Facts.

A requested charge that, if insured was more than 55 years of age when he applied for membership, the association was not liable on the policy, "as the same was procured under a misrepresentation of the age" of insured, would be properly refused as an expression of opinion upon the facts, even if there was any evidence to support it.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 436-438; Dec. Dig. § 193.*]

4. Trial (§ 252*) — Instructions — Applicability to Evidence.

A requested charge that, if insured was more than 55 years of age when he applied for membership, the association was not liable on the policy, "as the same was procured under a misrepresentation of the age" of insured, was properly refused, where there was no evidence that insured had made any representation as to his age.

[Ed. Note.—For other cases, see Trial, Cent. Dig. 505, 596-612; Dec. Dig. § 252.*]

Appeal from Superior Court, Carteret County; Whedbee, Judge.

Action by Bert Tillery against the Royal Benefit Society and another. From a judgment for plaintiff, defendants appeal. Affirmed.

The plaintiff alleges that he is entitled to recover $150, the face of the policy, and $52, sick benefits, and demands judgment for $202. The policy is not in the record, and there is nothing to show that the demand of the plaintiff is not made in good faith. The plaintiff recovered $142, and the defendant moves in the Supreme Court to dismiss the action, for that the superior court did not have jurisdiction, contending that the amount in controversy is less than $200.

The defendant the Royal Benefit Society introduced evidence tending to show that Starkey Tillery was more than 55 years of age at the time be became a member in the Royal Benefit Society. No offer to return premiums received was made by the defendant the Royal Benefit Society; no application for membership was introduced as evidence. There was no evidence that Starkey Tillery knew of any age limit to become a member, and there was no evidence that Starkey Tillery represented what his age was when he became a member.

There were no requests for instructions.

The defendant assigns the following as errors: "(1) That the court erred in failing and refusing to charge the jury that, if Starkey Tillery was more than 55 years of age at the time he made application for membership in the Royal Benefit Society, the defendant was not liable on the policy, as the same was procured under a misrepresentation of the age of the said Starkey Tillery.

(2) The court erred in entering judgment as set out in the record. (3) That the court erred in refusing to grant a new trial."

Judgment...