153 N.C. 124 | N.C. | 1910
Plaintiff's Appeal.
Tbis action was brought to recover five thousand dollars, tbe amount of an insurance policy alleged to have been issued by tbe defendant on tbe life of Henry D. Teel. Tbe defendant denied that tbe policy bad ever been delivered to Henry D. Teel, and that it bad ever become a binding contract between tbe parties. It averred in tbe answer that Teel, in bis application, bad made a false and material representation as to bis habit of using opium or any of its preparations, with tbe fraudulent intent of procuring tbe policy to be issued to him, as be knew, at tbe time of making tbe statement, that it was false. Issues were submitted to tbe jury which, with tbe answers thereto, are as follows:
1. Did Henry Teel, in bis application for tbe policy, represent that be did not then have and never bad any habit of taking opium or any of its preparations or any narcotics? Ans.: 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 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 ease continued for trial upon those issues. The defendant reserved its exception to the refusal of the motion for 9, 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 fconnection with the plaintiff’s, although the general rule is that a party cannot appeal from an order refusing
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., 125 N. C., 568. There is no rule of law giving the plaintiff such an advantage over the defendant. We presume his Honor had in mind the rule which requires insurance policies to be construed favorably to the insured, when there is any ambiguity or doubt as to the true meaning of the words which are chosen by the insurance company to express the terms of the contract. Bank v. Insurance Co., 95 U. S., 673. When a motion to nonsuit is made, the testimony is construed most favorably to the plaintiff, but not so as to the evidence in the trial of issues before a jury. In this case the court correctly instructed the jury as to the burden of proof, but went too far in telling them to allow to the plaintiff a more favorable consideration of the evidence than to the defendant, and to resolve any doubt in his favor. This entitles the defendant to a new trial upon the issues, and the plaintiff, consequently, is not entitled to judgment.
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. Insur
If all tbe terms of tbe contract bave been agreed upon witb tbe intention tbat tbe contract shall take effect, tbe formal delivery of tbe policy by tbe insurer and its acceptance by tbe insured, are not essential to its validity, but if it is provided tbat tbe contract shall not become effective until there has been a delivery of the policy to tbe applicant, it will not be binding until delivery, either actual or constructive. 16 Am. & Eng. 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 tbe contract and give it binding effect, does not depend upon its manual possession by tbe assured, but rather upon tbe intention of tbe parties as manifested by their acts or agreement. As a general rule, whenever one parts witb tbe custody and control of anything witb tbe intention at tbe time tbat it shall pass into tbe possession of another, its delivery to such other person has, in contemplation of law, become complete. Tbe manual possession of tbe 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. Tbe controlling question is not who has tbe actual possession of tbe policy, but who has tbe right of possession.” So we held in Waters v. Annuity Co., 144 N. C., 669, tbat “a binding acceptance can be, and frequently is, indicated by tbe mailing of a letter in due course containing an unconditional acceptance, or by sending a policy to an agent witb instructions for unconditional delivery, where there is no contravening stipulation in tbe contract itself.” Assurance Co. v. McArthur, 116 Ala., 659; Insurance Co. v. Babcock, 104 Ga., 67 (67 Am. St. Rep., 134). We also said in Water’s case, supra, tbat “where a policy which complies witb tbe application has been unconditionally delivered, in tbe absence of fraud, it is held
It is considered by us, as necessary to a determination of tbe rights of tbe parties, that issues should be submitted to tbe jury, with proper instructions from tbe court, as to tbe consummation of tbe contract by delivery of tbe policy or otherwise. We will not undertake to formulate tbe issues, as we could not well do so without anticipating what tbe course of tbe next trial will be.
No error.
DEFENDANT'S APPEAL.
It follows from what we have said in tbe plaintiff’s appeal, that there must be a new trial of tbe case upon all tbe issues, and it is so ordered.
New trial.