Whitehurst v. Life Ins. Co. Of Va.

• Decision Date: 02 December 1908
• Citation: 149 N.C. 273,62 S.E. 1067
• Parties: WHITEHURST. v. LIFE INS. CO. OF VIRGINIA.
• Court: North Carolina Supreme Court

62 S.E. 1067

149 N.C. 273

WHITEHURST.

v.LIFE INS. CO. OF VIRGINIA.

Supreme Court of North Carolina.

Dec. 2, 1908.

1. Fraud (§ 64^*)—Actions—Questions for Jury.

Where there is doubt as to whether representations were intended and received as mere expressions of opinion, or as statements of fact, the question must be submitted to the jury.

[Ed. Note.—For other cases, see Fraud, Cent. Dig. § 69; Dec. Dig. § 64.*]

2. Fraud (§ 13*)—Fraudulent Representations—Statements Recklessly Made.

An averment of the existence of a material fact, recklessly or positively, by a person consciously ignorant whether it is true or false, is actionable fraud, especially where the parties are not upon equal terms.

[Ed. Note.—For other cases, see Fraud, Cent. Dig. § 5; Dec. Dig. § 13.*]

3. Fraud (§ 3*)—Elements of.

To support an action for deceit, there must have been a statement untrue in fact, the person making it must have either known that it was untrue, or have been culpably ignorant, it must have been made with intent that the other party should act upon it, and he must have so acted to his damage.

[Ed. Note.—For other cases, see Fraud, Cent. Dig. § 1; Dec. Dig. § 3.*]

4. Fraud (§ 23*)—Facts Not Equally Known.

The false representation of a fact materially affecting the value of the contract, and which is peculiarly within the knowledge of the person making it, and in respect to which the other party has not an equal opportunity of ascertaining the truth, is fraudulent.

[Ed. Note.—For other cases, see Fraud, Cent. Dig § 20; Dec. Dig. § 23.*]

5. Fraud (§ 13*)—Fraudulent Representations—Relief in Statement.

A misrepresentation is a fraud at law, though made innocently and with an honest belief in its truth, if made by a person who ought to have known the truth.

[Ed. Note.—For other cases, see Fraud, Cent. Dig. §§ 4, 5; Dec. Dig. § 13.*]

6. Fraud (§ 64*)—Actions—Questions for Jury.

Whether a representation by a life insurance agent, to induce the taking out of a policy, that the company would at the end of a certain period pay back the premiums with interest, insured being blind, and the agent having read the policy to him and so explained a certain clause, was intended as a statement of fact and accepted and reasonably relied upon by insured, was for the jury.

[Ed. Note.—For other cases, see Fraud, Cent. Dig. §§ 69, 70; Dec. Dig. § 64.*]

Appeal from Superior Court, Craven County; W. R. Allen, Judge.

Action by M. E. Whitehurst against the Life Insurance Company of Virginia. Judgment for plaintiff, and defendant appeals. Affirmed.

At the close of plaintiff's testimony, and again at the close of the entire testimony, there was motion of nonsuit under the Hinsdale act, motions refused, and defendant excepted. On issues submitted the jury ren dered the following verdict: "(1) Did the defendant falsely represent to the plaintiff that under the policies in controversy the plaintiff would be repaid the amount of premiums paid by him with about 4 per cent. interest thereon at the expiration of 10 years? Answer: 'Yes.' (2) If so, did the plaintiff rely on said representations, and was he induced to accept said policies? Answer: 'Yes.' (3) Has the plaintiff waived the right to rely upon failure to deliver to the plaintiff policies that provided for the return of premiums paid and about 4 per cent. interest at the expiration of 10 years? Answer: 'No.' (4) Is the defendant indebted to the plaintiff, and, if so, in what sum?" And thereupon the court rendered judgment as follows: "This cause coming on to be heard before his honor, Judge W. R. Allen, and a jury, and being heard, and the jury having answered all the issues in favor of the plaintiff, except the one as to the quantum of damages, and the amount and dates of payments having been agreed upon, and it having been agreed that his honor should answer the issue as to the quantum of damages, and his honor having found that the payments, together with interest on each up to the 10th day of February, 1908, amounting to $359.03, it is therefore considered by the court and adjudged that the plaintiff recover of the defendant $359.63, with interest thereon from the 10th day of February, 1908, till paid, and the costs of the action to be taxed by the clerk." Defendant excepted and appealed.

H. C. Whitehurst and Simmons, Ward & Allen, for appellant.

W. W. Clark, for appellee.

HOKE, J. (after stating the facts as above.) We find no reversible error in the record, and are of the opinion that the case has been tried in substantial accord with the principles announced and upheld in the cases of Caldwell v. Insurance Co., 140 N. C. 100, 52 S. E. 252, Sykes v. Insurance Co., 148 N. C. ——, 61 S. E. 610, Stroud v. Insurance Co., 148 N. C. ——, 61 S. E. 626, and other decisions of like import. There was evidence tending to show: That plaintiff obtained and held for some time a policy in defendant company, containing, among others, a stipulation as follows: "That if plaintiff should be living at the end of ten years, the policies could be continued or surrendered by the insured under one of the following options: * * * (4) Surrender this policy and draw the entire cash value, that is, the legal reserve, computed according to the Actuary's Table of Mortality, and 4 per cent. interest, together with the dividend." That plaintiff was blind and unable to read the policy himself, and, at the time the contract was entered into, and as an in-ducement thereto, the defendant's agent read the policy to plaintiff, and told plaintiff that at the end of 10 years the whole amount paid in would be returned, with interest. That the agent explained the fourth clause to mean that the company would pay the premium back at the end of 10 years, etc. And that plaintiff accepted the policies and paid the premiums thereon to the amount indicated, relying upon these statements and assurances of defendant's agent referred to, etc.—and on this evidence we think his honor correctly ruled that the questions at issue should be submitted to a jury. While it is a correct principle, as we have held in Cash Register Co. v. Townsend, 137 N. C. 652, 58 S. E. 306, 70 L. R. A. 349, that expressions of commendation and opinion, or extravagant statements as to value, or prospects and the like, are not, as a rule, regarded as fraudulent in law, it is also true that, when assurances of value are seriously made, and are intended and accepted and reasonably relied upon as statements of fact, inducing a contract, they may be so considered in determining whether there has been a fraud perpetrated; and, though this declaration may be clothed in the form of opinion or estimate, when there is doubt as to whether they were intended and received as mere expressions of opinion or as statements of fact to be regarded as material, the question must be submitted to the jury. 14 A. & E. p. 35; 20 Cyc. p. 124; Morse et al. v. Shaw, 124 Mass. 59. In 20 Cyc, supra, it is...