69 S.E. 266 | N.C. | 1910
This is an action to reform a policy issued by the defendant on 7 September, 1896, to the plaintiff, on the ground of mistake on the part of the plaintiff and fraud on the part of the defendant. The defendant, denying the alleged fraudulent representations, alleged that in September, 1898, the plaintiff surrendered the policy issued in 1896 and accepted a new policy from it; and further that more than a year before the policy issued in 1896 matured, it being a ten-year policy, to wit, in May, 1905, an agent of defendant fully explained to plaintiff the terms of that policy and told him that the representations made to him at the time the contract was entered into, and upon which he *317 relied, were not true; that the policy contained no such statement, and he would receive no such settlement, to wit, the payment of what he had paid in weekly premiums and 4 per cent interest thereon at maturity, as plaintiff claimed; and that thereafter plaintiff continued to pay weekly as theretofore until the maturity of his policy in September, 1906. The plaintiff denied that he had received any such information. Upon this evidence the defendant requested the following special instruction: "The court charges you that if you find from the evidence that about two years before maturity of policy sued on, the plaintiff was told that he would not, at its maturity, receive back premiums paid, with four per cent interest, and with that knowledge he continued to pay premiums, he thereby waived any benefit except as provided by the policy, and you will answer the sixth issue, Yes." His Honor gave this instruction, but added thereto the following: "Unless (390) you further find from the evidence that the defendant, through its agents, after such knowledge was acquired by the plaintiff, lulled the plaintiff into security or led the plaintiff to believe that he would receive premiums at maturity of the policy, together with interest thereon at the rate of four per cent." The defendant excepted to this addition to its prayer, upon the ground that there was no evidence to support it. There was no contention as to the amount paid by the plaintiff, the defendant admitting that plaintiff had fully performed the contract. His Honor submitted, without objection, the following issues to the jury:
1. Did the defendant, through its agents, represent to plaintiff that it could, and would, issue to said plaintiff an insurance policy on his life, with the provision therein stipulated that at the end of ten years from date thereof the plaintiff might withdraw the whole amount of premiums paid in, with 4 per cent interest thereon?
2. If so, was such representation false?
3. If so, was such representation relied upon by the plaintiff?
4. If so, was the plaintiff induced thereby to enter into said contract of insurance?
5. Did the plaintiff surrender said policy and accept from defendant another policy, as alleged in the answer?
6. Did the plaintiff waive his right to rely upon said false representations?
7. What amount is the plaintiff entitled to recover of the defendant?
The jury answered the issues as follows: The first, second, third and fourth issues, Yes; the fifth and sixth issues, No; the seventh issue, $130 with interest from maturity. Judgment was rendered thereupon for the plaintiff for $130, with interest at 4 per cent from 7 September, 1906, and the defendant appealed to this Court. *318
(391) This case does not differ, in the false representations alleged and proven to the satisfaction of the jury, from the facts alleged in Caldwell v. Ins. Co.,
But we think this error entitles the defendant to have only the sixth issue, the finding upon which alone was affected by the error, submitted to another jury. No exception is taken to the charge of the court upon the other issues. If the jury should, at the next trial, answer the sixth issue Yes, then the defendant will be entitled to judgment (392) for costs; if it shall be answered No, the plaintiff will be entitled to judgment. In Holmes v. Godwin,
Partial new trial.
Cited: Briggs v. Ins. Co.,