Headen v. Metropolitan Life Insurance

173 S.E. 349, 206 N.C. 270, 1934 N.C. LEXIS 161

• Court: Supreme Court of North Carolina
• Decided: March 21, 1934
• Status: Published

Opinion

Stacy, C. J.

Manifestly, if the insured were not in sound health at the time of the issuance of the policy, or if within two years prior thereto, she had been attended by a physician for any serious disease, or before said date, had had any disease of the heart, liver or kidneys, she is not entitled to recover according to the express terms of the con tract of insurance. Gilmore v. Ins. Co., 199 N. C., 632, 155 S. E., 566. But it is provided by N. C. Code, 6460, that when a policy of life insurance, not to exceed $5,000 in amount, has been issued without medical examination of the insured “the policy shall not be rendered void nor shall payment he resisted on account of any misrepresentation as to the physical condition of the applicant, except in cases of fraud.” The provisions of this statute, being in force at the time of the execution of the policy, entered into and became a part of the convention of the parties as much so as if they had been expressly incorporated in its terms. Bateman v. Srerrett, 201 N. C., 59, 159 S. E., 14; Trust Co. v. Hudson, 200 N. C., 688, 158 S. E., 244; House v. Parker, 181 N. C., 40, 106 S. E., 136; Mfg. Co. v. Holladay, 178 N. C., 417, 100 S. E., 567. Therefore, the defendant may not now declare the policy in suit void, pursuant to the stipulation of the contract, as this is in direct conflict with the statute, and the chance which the agent said he was going to take, precludes the defense set up, except in cases of fraud. Holbrook v. Ins. Co., 196 N. C., 333, 145 S. E., 609; McNeal v. Ins. Co., 192 N. C., 450, 135 S. E., 300. Fraud is neither pleaded in the answer nor suggested in the evidence.

There was no error in directing a verdict for the plaintiff, hence the verdict and judgment will be upheld.

No error.