69 S.E. 12 | N.C. | 1910
Lead Opinion
PLAINTIFF'S APPEAL. This action was brought to recover five thousand dollars, the amount of an insurance policy alleged to have been issued by the defendant on the life of Henry D. Teel. The defendant denied that the policy had ever been delivered to Henry D. Teel, and that it had ever become a binding contract between the parties. It averred in the answer that Teel, in his application, had made a false and material representation as to his habit of using opium or any of its preparations, with the fraudulent intent of procuring the policy to be issued to him, as he knew, at the time of making the statement, that it was false. Issues were submitted to the jury which, with the answers thereto, are as follows:
1. Did Henry Teel, in his application for the policy, represent that he did not then have and never had any habit of taking opium or any of its preparations or any narcotics? Answer: No.
2. Did Henry D. Teel, on the date of said application, have the habit of taking opium or any of its preparations or any (126) narcotics? Answer: No.
3. Was said representation a material inducement to the issuing of the policy by the defendant? Answer: No.
4. Did Henry D. Teel, on the 10th day of May, 1907, have the habit of taking opium or any of its preparations or any narcotics? Answer: No.
5. Was the delivery of the policy to Teel fraudulent? Answer: No.
6. Did the defendant company, either on the date of the issuing of said policy or the receipt of the note for the first premium, have any knowledge that H. D. Teel had the habit of taking opium or any of its preparations or any narcotics? Answer: No.
In the charge to the jury the court gave the following instruction: "You are instructed that the testimony in this case must be viewed most favorably for the plaintiff; and whenever you are in doubt or uncertainty *104 in respect to the evidence, the same must be solved in favor of the insured." The defendant excepted, and after the verdict was returned, moved for a new trial, upon the ground that the said instruction was erroneous. The court refused the motion and the defendant again excepted. The defendant then moved to set aside the verdict upon the third, fourth and fifth issues. The motion was granted and the case continued for trial upon those issues. The defendant reserved its exception to the refusal of the motion for a new trial. The plaintiff moved for judgment upon the remaining issues, that is, the first, second and sixth. This motion was denied. The plaintiff having excepted and appealed, the defendant also appealed.
If the plaintiff is otherwise entitled to judgment upon issues one, two and six, we think the court erred in giving the instruction to which exception was taken by defendant. As the plaintiff has appealed from the refusal of the court to render judgment in his favor, it becomes necessary to consider the defendant's appeal in connection with the plaintiff's, although the general rule is that a party can not appeal from an order refusing a new trial until there is judgment, but should (127) reserve his exception until the case is ripe for an appeal by him. The circumstances of this case, though, as we have said, make it necessary and desirable that both appeals should be heard, as we can not well pass upon the plaintiff's motion without first ascertaining if there has been a valid verdict upon which a judgment can be entered. If we should decide for the plaintiff and enter judgment, without considering the defendant's exception to the charge, we might afterwards decide that the defendant's exception was well taken, which would involve a new trial and thus produce confusion, as judgment would already have been rendered for the plaintiff.
The instruction of the court that the evidence should be viewed most favorably for the plaintiff, and if the jury are in doubt or uncertainty in respect to the evidence, they should solve the doubt in favor of the insured, was erroneous. Asbury v. R. R.,
But there is another reason which sustains the refusal of the court to render judgment for the plaintiff. The defendant, in its answer, denies that the policy was ever delivered or that any contract of insurance was made, and that question should be settled by the submission of proper issues to the jury before there can be any judgment for the plaintiff.Bryant v. Insurance Co.,
If all the terms of the contract have been agreed upon with the intention that the contract shall take effect, the formal delivery of the policy by the insurer and its acceptance by the insured, are not essential to its validity, but if it is provided that the contract shall not become effective until there has been a delivery of the policy to the applicant, it will not be binding until delivery, either actual or constructive. 16 A. E. Enc. (2 Ed.), 855, and cases in note. "Whether an insurance policy has or has not been delivered after its issuance so as to complete the contract and give it binding effect, does not depend upon its manual possession by the assured, but rather upon the intention of the parties as manifested by their acts or agreement. As a general rule, whenever one parts with the custody and control of anything with the intention at the time that it shall pass into the possession of another, its delivery to such other person has, in contemplation of law, become complete. The manual possession of the thing which it is intended to deliver is a matter of little consequence. Such possession may exist without any legal delivery, and it may not exist where a legal delivery has been effected. The controlling question is not who has the actual possession of the policy, but who has the right of possession." So we held in Waters v. Annuity Co.,
It is considered by us, as necessary to a determination of the rights of the parties, that issues should be submitted to the jury, with proper instructions from the court, as to the consummation of the contract by *107 delivery of the policy or otherwise. We will not undertake to formulate the issues, as we could not well do so without anticipating what the course of the next trial will be.
No error.
DEFENDANT'S APPEAL.
Addendum
It follows from what we have said in the plaintiff's appeal, that there must be a new trial of the case upon all the issues, and it is so ordered.
New trial.
Cited: Mfg. Co. v. Assurance Co.,