{ "id": 8626092, "name": "MRS. EVA TOLBERT v. THE MUTUAL BENEFIT LIFE INSURANCE COMPANY", "name_abbreviation": "Tolbert v. Mutual Benefit Life Insurance", "decision_date": "1952-11-05", "docket_number": "", "first_page": "416", "last_page": "419", "citations": [ { "type": "official", "cite": "236 N.C. 416" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "90 S.E. 574", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "172 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11254537 ], "opinion_index": 0, "case_paths": [ "/nc/172/0534-01" ] }, { "cite": "117 S.E. 785", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "185 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656731 ], "opinion_index": 0, "case_paths": [ "/nc/185/0543-01" ] }, { "cite": "193 S.E. 228", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "opinion_index": 0 }, { "cite": "212 N.C. 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601947 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/212/0157-01" ] }, { "cite": "1 S.E. 2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "215 N.C. 280", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629340 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/215/0280-01" ] }, { "cite": "190 S.E. 744", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "211 N.C. 427", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627268 ], "opinion_index": 0, "case_paths": [ "/nc/211/0427-01" ] }, { "cite": "189 S.E. 496", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "211 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625394 ], "opinion_index": 0, "case_paths": [ "/nc/211/0179-01" ] }, { "cite": "81 S.E. 1014", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "166 N.C. 55", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11268585 ], "opinion_index": 0, "case_paths": [ "/nc/166/0055-01" ] }, { "cite": "79 S.E. 806", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "163 N.C. 367", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271963 ], "opinion_index": 0, "case_paths": [ "/nc/163/0367-01" ] }, { "cite": "60 S.E. 983", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "147 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269261 ], "opinion_index": 0, "case_paths": [ "/nc/147/0181-01" ] }, { "cite": "49 S.E. 2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "229 N.C. 305", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12165775 ], "opinion_index": 0, "case_paths": [ "/nc/229/0305-01" ] }, { "cite": "72 S.E. 2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 } ], "analysis": { "cardinality": 466, "char_count": 8089, "ocr_confidence": 0.497, "pagerank": { "raw": 4.3788204999823603e-07, "percentile": 0.9192238620861679 }, "sha256": "c88a483bc1643eb9250720f7ef1a725d2d54e486cf2330d9b760158959424d12", "simhash": "1:93e5e146093d1ca1", "word_count": 1378 }, "last_updated": "2023-07-14T20:03:47.341722+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MRS. EVA TOLBERT v. THE MUTUAL BENEFIT LIFE INSURANCE COMPANY." ], "opinions": [ { "text": "Devin, C. J.\nThe written application signed by the insured upon which the policy of insurance was issued contained the following questions and answers:\n\u201c29. Have you ever had eleetro-cardiographic or X-ray studies made? 29. No.\n\u201c31. A. Has a physician or other practitioner examined you within 2 months? 31. A. No.\n\u201c32. B. Have you had any reason, during the past six months, to think you might be physically impaired, temporarily or otherwise? 32. B. No.\n\u201c34. For what have you consulted, or been attended by a physician or surgeon or other practitioner during the past seven years? None.\u201d\nThere was evidence offered by the defendant that on 30 March, 1951, before the issuance of the policy 1 May, 1951, a physician had given the insured a thorough physical examination which included X-ray pictures and a stomach examination. The physician testified: \u201cHe (the insured) said he was tiring easily at his work, that his appetite was not as good as usual, and that he was generally not up to par. . . . During my examination I felt a lump over the liver area.\u201d The physician further testified that in June he saw the insured again and advised an exploratory operation. Tbis was bad in July, 1951, resulting in discovery that insured bad cancer of tbe liver wbicb in December following caused bis death.\nTbe defendant excepted to tbe denial of tbe motion for judgment of nonsuit, but evidence of tbe execution and delivery by tbe defendant of tbe policy of insurance on tbe life of tbe insured, in consideration of tbe premium, and tbe subsequent death of tbe insured made out a prima facie ease and put tbe burden on tbe defendant to substantiate its affirmative defense of false and material representations in tbe application. Hence nonsuit was improper. Davis v. Jenkins, ante, 283, 72 S.E. 2d 673; MacClure v. Casualty Co., 229 N.C. 305, 49 S.E. 2d 742.\nTbe defendant, however, assigns error in tbe instructions given tbe jury in that the court repeatedly referred to tbe ground of defendant\u2019s defense as \u201cfalse or fraudulent\u201d representations by the deceased, whereas tbe allegation was \u201cfalse and material.\u201d Tbe court instructed tbe jury that tbe representations would not prevent recovery on tbe policy unless material or fraudulent, and thereupon charged as follows:\n\u201cTherefore, let us see for a moment what these, words mean in tbe language and in tbe sense that we are considering. A fraudulent representation is a representation of a subsisting fact falsely made, with knowledge of its falsity, intended and calculated to deceive, and wbicb does actually deceive, causing another to do what be would not have otherwise done. A false statement is an untrue or erroneous statement, intended and calculated to deceive and influence another. In law tbis word usually means something more than untrue. It means something designedly untrue and deceitful, and implies an intention to perpetrate some subterfuge or fraud.\u201d\nTbe defendant did not allege fraud. To avoid liability on tbe policy it was only required to show that tbe representations were material and that they were untrue. Bryant v. Ins. Co., 147 N.C. 181, 60 S.E. 983; Gardner v. Ins. Co., 163 N.C. 367, 79 S.E. 806; Schas v. Ins. Co., 166 N.C. 55, 81 S.E. 1014; Inman v. Woodmen of the World, 211 N.C. 179, 189 S.E. 496; Wells v. Ins. Co., 211 N.C. 427, 190 S.E. 744; Assurance Society v. Ashby, 215 N.C. 280, 1 S.E. 2d 830.\nWe think tbe court inadvertently left tbe jury under tbe impression that tbe defendant\u2019s defense was bottomed on fraud, and that it was necessary for tbe defendant to show not only that tbe representations were false but that they were made designedly with intent to defraud. True tbe issue submitted contained tbe words false or fraudulent, but tbe court\u2019s references to and definition of tbe meaning of fraudulent representations as pertinent to tbis case may have bad a prejudicial effect on tbe minds of tbe jury.\nA representation in an application for an insurance policy is deemed material \u201cif tbe knowledge or ignorance of it would naturally influence tbe judgment of the insurer in making the contract, or in estimating the degree and character of the risk, or in fixing the rate of premium.\u201d Wells v. Ins. Co., supra; Petty v. Ins. Co., 212 N.C. 157, 193 S.E. 228; Ins. Co. v. Box Co., 185 N.C. 543, 117 S.E. 785; Ins. Co. v. Woolen Mills, 172 N.C. 534, 90 S.E. 574.\nThe statute provides that statements in an application for a policy of insurance \u201cshall be deemed representations and not warranties, and a representation, unless material or fraudulent, will not prevent a recovery on the policy.\u201d G.S. 58-30. Interpreting this statute, it is well settled that a material representation which is false will constitute sufficient ground upon which to avoid the policy.\nIn Assurance Society v. Ashby, 215 N.C. 280, 1 S.E. 2d 830, Justice Barnhill, speaking for the Court, said: \u201cThe representations made were material to the risk. They are in the form of written answers to written questions. In such case the questions and answers are deemed to be material by the acts of the parties to the contract.\u201d And in Petty v. Ins. Co., 212 N.C. 157, 193 S.E. 228, Justice Winborne used this language:\n\u201cIt is settled law in North Carolina that answers to specific questions like the one asked in the instant case, where there had been medical examination, are material as a matter of law.\u201d\nIn the case at bar the credibility of the evidence to support the defendant\u2019s defense was a matter for the jury. There were no requests for instruction.\nFor the reasons herein stated we think there should be a new trial, and it is so ordered.\nNew trial.", "type": "majority", "author": "Devin, C. J." } ], "attorneys": [ "Folger L. To.ivnsend and James R. Todd, Jr., for plaintiff, appellee.", "Williams & Whisnant and Hal B. Adams for defendant, appellant." ], "corrections": "", "head_matter": "MRS. EVA TOLBERT v. THE MUTUAL BENEFIT LIFE INSURANCE COMPANY.\n(Filed 5 November, 1952.)\n1. Insurance \u00a7 37\u2014\nProof of tbe execution and delivery of tbe policy of life insurance sued on in consideration of premium paid, and of tbe subsequent death of insured, makes out a prima facie case, with tbe burden on insurer to prove its defense of false and material representations avoiding tbe policy, and therefore in such instance insurer\u2019s motion to nonsuit is properly denied.\n2. Insurance \u00a7 31a (2)\u2014\nA policy of life insurance may be avoided by showing that insured made representations which were material and false.\n3. Same\u2014\nA representation in an application for a policy of life insurance is deemed material if tbe knowledge or ignorance of it would naturally influence tbe judgment of insurer in making the contract, and written questions relating to health and their answers in an application are deemed material as a matter of law.\n4. Insurance \u00a7 37\u2014\nWhere insurer seeks to avoid a policy of life insurance on the ground of material and false representations made by insured in the written application for the policy, an instruction of the court which tends to leave the impression that it was not only necessary that insurer show that the representations were false and material but also that they were fraudulently made with intent to deceive, must be held for prejudicial error.\nAppeal by defendant from Sink, J., May Term, 1952, of Caldwell. New trial.\nThis was a suit on a policy of insurance on the life of J. Eay Tolbert issued by the defendant.\nThe policy in the sum of $5,000 was issued 1 May, 1951, and the insured died 12 December, 1951. The defendant admitted the issuance of the policy and the death of the insured, but denied liability on the ground that in his application the insured had made certain false and material representations which caused the defendant to act favorably on the application and to issue the policy.\nIssues arising on the pleadings were submitted to the jury and answered in favor of the plaintiff.\nThe determinative issue submitted was in these words: \u201c2. Did the deceased make false or fraudulent representations in his application, as alleged in the answer?\u201d To this the jury answered \u201cNo.\u201d\nFrom judgment on the verdict for the amount of the policy the defendant appealed.\nFolger L. To.ivnsend and James R. Todd, Jr., for plaintiff, appellee.\nWilliams & Whisnant and Hal B. Adams for defendant, appellant." }, "file_name": "0416-01", "first_page_order": 468, "last_page_order": 471 }