Woody Bros. Bakery v. Greensboro Life Ins. Co.

• Decision Date: 23 December 1931
• Docket Number: 593.
• Parties: WOODY BROS. BAKERY v. GREENSBORO LIFE INS. CO.
• Court: North Carolina Supreme Court

161 S.E. 554

201 N.C. 816

WOODY BROS. BAKERY v. GREENSBORO LIFE INS. CO.

No. 593.

Supreme Court of North Carolina

December 23, 1931

Appeal from Superior Court, Buncombe County; Harding, Judge.

Action by the Woody Bros. Bakery against the Greensboro Life Insurance Company. From a judgment of the superior court affirming a judgment of the general county court in favor of plaintiff, defendant appeals.

Affirmed.

This is an action to recover on a policy of life insurance issued by the defendant, without a medical examination of the insured. Code 1931, § 6460. By the terms of the policy, defendant promised to pay to the plaintiff, upon the death of the insured, the sum of $2,500. The policy was issued on May 15 1930; the insured died on July 28, 1930.

The defendant denied liability on the policy, and refused to pay the amount thereof, on the ground that the issuance of the policy was procured by false and fraudulent representations made by the insured in his written application therefor.

The action was begun and tried in the general county court of Buncombe county. The issues submitted to the jury were answered as follows:

"1. Was the policy sued on in this action procured by the fraud of the deceased? Answer, No.

"2. What amount, if any, is the plaintiff entitled to recover of the defendant on the policy sued on in this action? Answer, $2,500.00, with interest from 28 July, 1930."

From judgment on the verdict, the defendant appealed to the superior court of Buncombe county. N.C. Code of 1931, § 1608(cc). On this appeal, defendant assigned as errors in the trial in the general county court the refusal of the court (1) to submit issues tendered by defendant; and (2) to allow its motion for judgment as of nonsuit at the close of all the evidence. On the hearing of this appeal in the superior court, defendant's assignments of error were not sustained.

From judgment of the superior court affirming the judgment of the general county court, defendant appealed to the Supreme Court. On this appeal, defendant assigned as error the judgment of the superior court. This was the only assignment of error.

Sullivan & MacRae, of Asheville, for appellant.

W. H Hipps, Irwin Monk, and Kitchin & Kitchin, all of Asheville, for appellee.

PER CURIAM.

The only assignment of error on defendant's appeal to this court is based upon its exception to the judgment of the superior court. The defendant does not assign as errors the decisions of the judge of the superior court of the questions of law presented to said court by its assignments of error on its appeal from the...