Walser v. Gate City Life & Health Ins. Co.

• Decision Date: 10 April 1918
• Docket Number: 358.
• Citation: 95 S.E. 542,175 N.C. 350
• Parties: WALSER v. GATE CITY LIFE & HEALTH INS. CO.
• Court: North Carolina Supreme Court

95 S.E. 542

175 N.C. 350

WALSER v. GATE CITY LIFE & HEALTH INS. CO.

No. 358.

Supreme Court of North Carolina

April 10, 1918

Appeal from Superior Court, Forsyth County; Adams, Judge.

Action by Mary Walser against the Gate City Life & Health Insurance Company. From judgment, defendant appeals. Error.

This was a civil action, tried at May term, 1917, of said court. The action was to recover on two policies of insurance on the life of George Walser, deceased, issued by defendant company in 1913, one of straight life insurance for $70, No. 118306 and another a life, accident and health policy for $62.60 No. 22858, in both of which the plaintiff's then wife and now the widow of the insured was originally named as beneficiary. There was evidence on the part of plaintiff that she paid the weekly premiums on said policies until his death, the 23d of December, 1916, and shortly thereafter she demanded payment from the company, and the same was refused that when the policies were being bargained for between plaintiff and defendant's agent, the latter assured plaintiff that she would get the money if she survived her husband, and, when policies were issued, plaintiff was designated as beneficiary, and had never in any way surrendered her rights under the policy nor consented to any change therein. There was evidence on part of defendant that the insured paid all the premiums on these policies while he was able to work, and thereafter and for 20 weeks before his death said premiums were paid out of the sick benefits due under one of the policies; that the plaintiff, his wife badly neglected him, particularly in the latter part of his sickness, and so much so that his brothers had to care for him to a great extent, employed their sister for a nurse, and paid her and provided for him and became responsible for his physician's fees and his funeral expenses, which last were paid out of the policies and amounted to $82.40; that under these conditions the defendant company paid to said brothers the full amount of both policies, one of them having been designated as beneficiary on both in lieu of plaintiff some time prior to the death; that this was done on the formal application of the insured, he saying that his wife was cruel and neglectful of him, and that his brothers had to keep him up and he wished them to have the money. It appeared that the straight life policy contained a provision giving the insured the privilege of changing the beneficiary at his election, and thereupon, his honor, being of opinion that, under the stipulations, the change of beneficiary to the brother in the life policy was valid, held that defendant was protected as to that payment, but that, as to the accident and health policy, as that in his opinion contained no such provision, the plaintiff was entitled to recover, notwithstanding the payment of same to the brothers, designated as beneficiaries at the insistence of the insured and so appearing at the time of his death. Pursuant to an instruction to this effect, there was verdict in favor of plaintiff for the amount of the accident and health policy, No. 22858. Judgment on the verdict, and defendant excepted and appealed to superior court. This judgment having been affirmed in superior court, the Hon. W. J. Adams presiding, defendant again excepted and appealed to the Supreme Court.

Where insured's wife, designated beneficiary of his accident and health policy, neglected him in his last sickness, and his brothers maintained him, provided a nurse, and paid physician's and undertaker's bill, their receipt for proceeds of such policy was, under facility of payment clause, good defense to insurer in suit by wife for proceeds.

L. M. Swink, of Winston-Salem, for appellant.

HOKE J. (after stating the facts as above).

It is the recognized general rule that, in the absence of stipulation or condition affecting it, the beneficiary designated as such in an ordinary life policy or a life, accident and health policy, has a vested interest therein which cannot be destroyed or altered without his consent and...