Copening v. Winston Mutual Life Insurance

29 S.E.2d 33, 224 N.C. 97, 1944 N.C. LEXIS 289

• Court: Supreme Court of North Carolina
• Decided: March 1, 1944
• Status: Published

Opinion

DeviN, J.

The trial judge declined to submit issues, tendered by defendant, addressed to the defense set up in the answer, and supported by evidence, that the death of the insured was due to causes excluded from coverage by limitations in the policy. In the charge the evidence relating to the issue of fraud in the procurement of the policy was correctly presented to the jury, but the only instructions given with reference to the provisions contained in the policy which limit its coverage were stated in connection with the issue of fraud.

We think the failure to submit appropriate issues on a material phase of the case presented by pleading and evidence, coupled with instructions to the jury apparently confining consideration of the evidence relating thereto to the issue of fraud, was sufficiently prejudicial to require a new trial, and it is so ordered.

New trial.