Headen v. Metropolitan Life Insurance

175 S.E. 282, 206 N.C. 860, 1934 N.C. LEXIS 332

Opinion

Stacy, C. J.

Tbe burden of tbe petition to rehear is, tbat tbe clause in tbe policy, “or in case of any claim under tbis policy,” liability shall be limited, etc., is not affected by tbe provision, “nor shall payment be resisted on account of any misrepresentation as to tbe physical condition of tbe applicant, except in cases of fraud,” C. S., 6460, and for tbis position tbe cases of Reinhardt v. Ins. Co., 201 N. C., 785, 161 S. E., 528, and Gilmore v. Ins. Co., 199 N. C., 632, 155 S. E., 566, are cited as controlling authorities.

Tbe plaintiff, on tbe other band, contends that tbe case is governed by tbe decisions in Potts v. Ins. Co., ante, 257; Holbrook v. Ins. Co., 196 N. C., 333, 145 S. E., 609, and McNeal v. Ins. Co., 192 N. C., 450, 135 S. E., 300.

Tbe record does not call for a determination of tbe point. Tbe jury rejected tbe defendant’s evidence, and, on tbe verdict, tbe plaintiff is entitled to recover. Tbe questions debated on brief and in tbe certificate of counsel are not before us for decision. It is not a matter for review on appeal that tbe jury declined to believe tbe evidence of one of tbe parties, or that tbe trial court refused to set aside tbe verdict as against tbe weight of tbe evidence. Goodman v. Goodman, 201 N. C., 808, 161 S. E., 686.

We were originally in error in thinking that a verdict bad been directed for tbe plaintiff. Tbe inadvertence, however, was not against tbe appellant, but rather in its favor. Tbe case was brought back in order that it might be permitted to go off on tbe jury’s findings — tbe course it should have taken in tbe first instance. Thus, while tbe decision is placed upon other grounds, tbe result is tbe same. For this purpose only is tbe

Petition allowed.

Sohenok, J., took no part in tbe consideration or decision of this ease.