| N.C. | Jun 26, 1935
STACY, C. J., and BROGDEN, J., dissent. This is a civil action for the recovery of benefits under a policy of accident insurance issued by the defendant to the plaintiff, and was heardde novo by the judge of the Superior Court upon an appeal from the justice of the peace.
It was stipulated and agreed that if the plaintiff was entitled to recover at all, he was entitled to recover the sum of $196.00; $80.00 per month for disability for two months and $36.00 for twenty-seven days' hospital benefits. A jury trial was waived by the parties, C. S., 568; and the following issue was tendered by the defendant, and agreed to by both parties as the proper issue in the cause, to wit:
"1. Was the policy of insurance in controversy obtained from the defendant insurance company by means of false and fraudulent representations or concealments, as alleged in the answer?"
After hearing the evidence for both the plaintiff and defendant and argument of counsel of both parties, the court answered the issue in the negative, and entered judgment for $196.00 in favor of the plaintiff. From this judgment the defendant appealed to the Supreme Court, assigning errors. By tendering the issue as appears in the record the defendant admitted the plaintiff's right to recover, unless the policy sued upon was obtained by means of false or fraudulent representations or concealments, and also assumed the burden of establishing the fraud. The evidence is sharply in conflict. The plaintiff's evidence tends to show that he told the agent of the defendant at the time the application for the insurance was made that he had a fracture of the skull from which he had entirely recovered, and that when the plaintiff offered to tell more of his illnesses, the agent of the defendant declared that since the plaintiff had recovered from the fracture, it would not be necessary for him to give other information. The evidence of the defendant tends to show that the plaintiff had suffered other illnesses not shown in the application for insurance, and made no effort to make known any other *346 illnesses than the fracture of the skull from which he said he had recovered. The court answered the issue in favor of the plaintiff and against the defendant, and since there was sufficient evidence to sustain such answer, the assignments of error based upon the court's refusal to grant a judgment as of nonsuit are untenable.
The assignments of error based upon the court's refusal to strike out the parol evidence as to what was said and done at the time the application for insurance was signed by the plaintiff for the reason that it varied the terms of a written contract are likewise untenable, since when it is sought to invalidate a written instrument for fraud in its procurement, parol evidence of the fraud is admissible, and not objectionable on the ground that it varies or contradicts the written instrument; Hunter v. Sherron,
The judgment below is
Affirmed.
STACY, C. J., and BROGDEN, J., dissent.