57 S.E. 390 | N.C. | 1907
The plaintiffs, husband and wife, allege that they were induced to take out these policies of insurance upon their own lives and the lives of their children, relying upon the representation of the agents of the companies that the policies should contain a provision that at the end of ten years the beneficiaries thereunder would be paid the face value of the policies, as in case of death, or the amount of premiums paid, with 4 per cent interest. The defendant denied that any such representations were made.
(624) The husband testified to the above representations, and that, four or five years after he had taken out the policies, hearing doubt as to this being the meaning of his policy, he got it, read part of it, and could have read it all, and continued to make payments five or six years longer, until it matured. He then demanded his money back, with interest, which the company refused to pay; and he brought this suit.
The feme plaintiff testified substantially to the same representations. All the agents named by the plaintiffs as having made these representations testified that they did not make them. The feme plaintiff testified that she read the policies, saw exactly what they said, and she paid the premiums after reading them; that one of the defendant's agents told *431 her she would not get the face value of the policy if living at the end of ten years, but she thought he was joking. Another agent told her to read the policy, which she did, and reread it.
The defendant asked the court to charge the jury: "The plaintiff admits that at the time he received the policy he could have read it; that nothing was done by any agent of the company to keep him from reading it; that he put the policy away, and several years thereafter he heard general talk among the people that the company would not live up to statements made by the agents, and that he then took his policy and read it, or read such part of it as he saw proper, and the court instructs the jury that, this being the evidence of the plaintiff himself, you will, on the whole evidence, answer the sixteenth issue `Yes.'" This issue was as to whether the plaintiff had waived the right to rely upon the alleged false representations, if made, and it was error to refuse the prayer, for the plaintiff testified that after reading the policy he continued to pay the premiums. This was an acquiescence in the terms and conditions of the policy. The feme plaintiff was even more explicit — that she read the policies again and again, and she and her husband thereafter continued to pay the premiums on all the policies which they had taken out for themselves and their children. The (625) evidence is that the plaintiffs were intelligent persons.
This case is not like Caldwell v. Insurance Co.,
Nor is this like Gwaltney v. Insurance Co.,
Error.
Cited: Sikes v. Insurance Co., post, 629; Clements v. Insurance Co.,
(626)