61 S.E. 610 | N.C. | 1908
Plaintiff alleges that the statements made by the defendant, (16) through its officers and agents, as above set out, were false, fraudulent and wickedly designed to deceive and calculated to deceive plaintiff, and that they did in fact deceive plaintiff; and that the said defendant has knowingly reaped the reward of this wrongful conduct, and that, instead of issuing contracts pursuant to and consistent with the agreements, it issued others, providing for no substantial benefits to the beneficiaries thereunder, except in the event of death, and that this wrongful conduct has caused the plaintiff damage in the sum of $200. Wherefore, plaintiff demands judgment for the sum of $200, for the costs of this action and for such other and further relief as to the court may seem just and right.
The defendant answered and denied the material allegations of the complaint.
The court submitted issues to the jury, which with the answers thereto, are as follows:
1. "Did the defendant, through its agents, represent to plaintiff that it could and would issue to said plaintiff insurance policies on the lives of Joseph M. Sykes, Maggie R. Sykes and Carl Sykes, with the provision therein stipulated that at the end of ten years from the date thereof the plaintiff might withdraw the whole amount of premiums paid in, with four per cent interest thereon?" Answer: "Yes."
2. "If so, were such representations false?" Answer: "Yes."
3. "If so, were such representations relied upon by the plaintiff?" Answer: "Yes."
4. "If so, was the plaintiff induced thereby to enter into said contracts of insurance?" Answer: "Yes."
5. "Has the plaintiff waived his right to rely upon said representations?" Answer: "No." *13
6. "What amount is the plaintiff entitled to recover of the defendant?" Answer: "One hundred and forty-four dollars and fourteen cents."
Upon the verdict the court adjudged that the plaintiff recover (17) of the defendant the said sum of $144.14 and costs. The defendant excepted and appealed. The defendant entered several exceptions to the rulings and charge of the court, which we understood to be abandoned here, and, we think, properly so. The question which we are called upon to decide, and which was the only one presented in the argument before us, relates to the measure of damages. The court charged upon the sixth issue that, if the jury found the other issues in favor of the plaintiff, he was entitled to recover as damages "the amount of the premiums paid, with six per cent interest from the date of each payment until paid." This instruction was erroneous — not sufficiently so, however, to reverse the judgment, but only to modify and affirm it, for the reasons which will hereinafter appear.
The defendant's counsel have argued that there was substantial error in the charge of the court upon the sixth issue, as the wrong rule for measuring the damages was given to the jury. They insist that the defendant was entitled to a deduction or credit to the extent of the value of the benefit received by the plaintiff in the way of insurance during the period fixed by the contract, this being an action sounding in tort and brought for the purpose of rescinding the contract because of the fraud or deceit practiced upon the plaintiff. We will state the proposition in the language of the defendant's counsel, to be found in their brief, so that there may be no misunderstanding as to the exact position taken by them: "The proper rule as to the measure of damages is that laid down in May v. Loomis,
There was some evidence that the plaintiff was very ignorant and unlettered, and this must have been known to the defendant's agent. He was an easy mark for the false and fraudulent practices of the defendant's agent, who was evidently a man of much superior intelligence. There was some evidence to the contrary, but what was the fact in this conflict of testimony was a question for the jury. The agent, it seems, took advantage of the plaintiff's ignorance and misled him as to the true nature of the contract. The policy was so worded as to leave some room for doubt and uncertainty as to what or how much the plaintiff would receive at the end of the insurance period, and what the agent said in explanation of it was fairly calculated to mislead *18 (24) an ignorant man. The jury, by their verdict, have substantially found that there was a mistake in writing the policy, which was induced by the fraud of the defendant. This entitled the plaintiff to the judgment, with the rate of interest changed. We think under the circumstances, the costs of this Court should be taxed against the defendant.
Modified and Affirmed.
Cited: Austin v. Ins. Co., post 24; Whitehurst v. Ins. Co.,