Butler v. New York Life Insurance

Supreme Court of North Carolina

Butler v. New York Life Insurance

196 S.E. 317, 213 N.C. 384, 1938 N.C. LEXIS 96

CourtSupreme Court of North Carolina

DecidedApril 13, 1938

StatusPublished

Cited by5 cases

This text of 196 S.E. 317 (Butler v. New York Life Insurance) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Butler v. New York Life Insurance, 196 S.E. 317, 213 N.C. 384, 1938 N.C. LEXIS 96 (N.C. 1938).

Pincite

Opinion

Stacy, C. J.

Plaintiff takes the position that the delivery of the policy, following receipt of the first premium, concluded the contract, in the absence of fraud, Grier v. Ins. Co., 132 N. C., 542, 44 S. E., 28, and that the provisions of 0. S., 6460 — the policy having been issued without medical examination — preclude a denial of liability except in case of fraud, Holbrook v. Ins. Co., 196 N. C., 333, 145 S. E., 609; and further, that plaintiff’s evidence is sufficient to make out a prima facie case. Williamson v. Ins. Co., 212 N. C., 377.

The position of the defendant is that the evidence shows a conditional delivery of the policy which, was not met, and that no contract of insurance ensued. Gardner v. Ins. Co., 163 N. C., 367, 79 S. E., 806; Lancaster v. Ins. Co., 153 N. C., 285, 69 S. E., 214; Perry v. Ins. Co., 150 N. C., 143, 63 S. E., 679; Ray v. Ins. Co., 126 N. C, 166, 35 S. E., 246; Ormond v. Ins. Co., 96 N. C., 158, 1 S. E., 796; McCain v. Ins. Co., 190 N. C., 549, 130 S. E., 186, and cases cited.

Without making definite ruling upon the relative merits of these opposing positions as applied to the facts of the instant case, we think it is clear that plaintiff is in no position to insist upon a recovery. Undoubtedly there was a suppression of a material fact, i.e., that applicant was going to the hospital, when the premium was paid, which would have resulted in nondelivery of the policy but for such suppression. *386 Wells v. Ins. Co., 211 N. C., 427, 190 S. E., 744; Hayes v. Ins. Co., 132 N. C., 702, 44 S. E., 404. Otherwise the case of Ins. Co. v. Grady, 185 N. C., 348, 117 S. E., 289, might apply. A suppressio veri by one whose duty it is to speak is equivalent to a suggestio falsi. Isler v. Brown, 196 N. C., 685, 146 S. E., 803; 10 R. C. L., 324.

Moreover, it is conceded that the applicant consulted Dr. Parker and was treated by him for cancer between the date of the application and the delivery of the policy. This fact should have been communicated to the defendant. Whitley v. Ins. Co., 71 N. C., 480.

The record is not such as to call for a disturbance of the judgment of nonsuit.

Affirmed.

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Stacy, C. J.

Plaintiff takes the position that the delivery of the policy, following receipt of the first premium, concluded the contract, in the absence of fraud, Grier v. Ins. Co., 132 N. C., 542, 44 S. E., 28, and that the provisions of 0. S., 6460 — the policy having been issued without medical examination — preclude a denial of liability except in case of fraud, Holbrook v. Ins. Co., 196 N. C., 333, 145 S. E., 609; and further, that plaintiff’s evidence is sufficient to make out a prima facie case. Williamson v. Ins. Co., 212 N. C., 377.

The position of the defendant is that the evidence shows a conditional delivery of the policy which, was not met, and that no contract of insurance ensued. Gardner v. Ins. Co., 163 N. C., 367, 79 S. E., 806; Lancaster v. Ins. Co., 153 N. C., 285, 69 S. E., 214; Perry v. Ins. Co., 150 N. C., 143, 63 S. E., 679; Ray v. Ins. Co., 126 N. C, 166, 35 S. E., 246; Ormond v. Ins. Co., 96 N. C., 158, 1 S. E., 796; McCain v. Ins. Co., 190 N. C., 549, 130 S. E., 186, and cases cited.

Without making definite ruling upon the relative merits of these opposing positions as applied to the facts of the instant case, we think it is clear that plaintiff is in no position to insist upon a recovery. Undoubtedly there was a suppression of a material fact, i.e., that applicant was going to the hospital, when the premium was paid, which would have resulted in nondelivery of the policy but for such suppression. *386 Wells v. Ins. Co., 211 N. C., 427, 190 S. E., 744; Hayes v. Ins. Co., 132 N. C., 702, 44 S. E., 404. Otherwise the case of Ins. Co. v. Grady, 185 N. C., 348, 117 S. E., 289, might apply. A suppressio veri by one whose duty it is to speak is equivalent to a suggestio falsi. Isler v. Brown, 196 N. C., 685, 146 S. E., 803; 10 R. C. L., 324.

Moreover, it is conceded that the applicant consulted Dr. Parker and was treated by him for cancer between the date of the application and the delivery of the policy. This fact should have been communicated to the defendant. Whitley v. Ins. Co., 71 N. C., 480.

The record is not such as to call for a disturbance of the judgment of nonsuit.

Affirmed.

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196 S.E. 317, 213 N.C. 384, 1938 N.C. LEXIS 96, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butler-v-new-york-life-insurance-nc-1938.

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