{ "id": 8562898, "name": "MRS. ANNIE V. TERRELL v. THE LIFE INSURANCE COMPANY OF VIRGINIA", "name_abbreviation": "Terrell v. Life Insurance Co. of Virginia", "decision_date": "1967-01-20", "docket_number": "", "first_page": "259", "last_page": "263", "citations": [ { "type": "official", "cite": "269 N.C. 259" } ], "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": "126 S.E. 2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "257 N.C. 281", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567468 ], "opinion_index": 0, "case_paths": [ "/nc/257/0281-01" ] }, { "cite": "128 S.E. 2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "258 N.C. 432", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561050 ], "opinion_index": 0, "case_paths": [ "/nc/258/0432-01" ] }, { "cite": "125 S.E. 2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "257 N.C. 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565489 ], "opinion_index": 0, "case_paths": [ "/nc/257/0065-01" ] }, { "cite": "171 S.E. 57", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "205 N.C. 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627996 ], "opinion_index": 0, "case_paths": [ "/nc/205/0251-01" ] }, { "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": "196 S.E. 317", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "213 N.C. 384", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628292 ], "opinion_index": 0, "case_paths": [ "/nc/213/0384-01" ] }, { "cite": "119 S.E. 2d 614", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "254 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627747 ], "opinion_index": 0, "case_paths": [ "/nc/254/0671-01" ] } ], "analysis": { "cardinality": 555, "char_count": 11599, "ocr_confidence": 0.542, "pagerank": { "raw": 3.0302116280845706e-07, "percentile": 0.8545519449203409 }, "sha256": "e051e08bd96c085fc820a33d2472d7973545897b028fb39f120f131855a3187c", "simhash": "1:b3779d52f7432186", "word_count": 1902 }, "last_updated": "2023-07-14T15:36:18.626474+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "PARKER, C.J., took no part in the consideration or decision of this case." ], "parties": [ "MRS. ANNIE V. TERRELL v. THE LIFE INSURANCE COMPANY OF VIRGINIA." ], "opinions": [ { "text": "BRANCH, J.\nIt is stipulated by counsel that policy No. 1034585, executed by defendant on the life of Matthew Marion Terrell, was delivered to him by defendant\u2019s agent on 2 December 1963, that premiums were paid on said policy, and that proof of death was duly submitted. This makes out a prima facie case, and nonsuit is improper except where plaintiff\u2019s evidence establishes defendant\u2019s affirmative defense. Rhinehardt v. Insurance Co., 254 N.C. 671, 119 S.E. 2d 614. Appellant contends that nonsuit should have been granted because deceased did not reveal that he had suffered an attack and seizure of epilepsy after the application for and before delivery of the policy. Conceding that the propositions set forth in Butler v. Insurance Co., 213 N.C. 384, 196 S.E. 317, Wells v. Insurance Co., 211 N.C. 427, 190 S.E. 744, and Gilmore v. Insurance Co., 205 N.C. 251, 171 S.E. 57, and other cases cited in this connection by defendant are correct, the record reveals that defendant did not plead the defense of fraud, misrepresentation or concealment.\nSince plaintiff\u2019s evidence did not make out an affirmative defense for defendant, the burden of proof is upon defendant to show such defense as would avoid the policy, Rhinehardt v. Insurance Co., supra, and in making out its defense, it must be made according to its allegations. The court cannot take notice of any proof unless there is a corresponding allegation. Fox v. Hollar, 257 N.C. 65, 125 S.E. 2d 334.\nAccording to its pleadings, defendant seeks to avoid liability solely on the ground that deceased was uninsurable according to defendant\u2019s rules and standards for the policy when delivered on 2 December 1963, and defendant\u2019s proof of its defense must correspond with its allegations.\nThus the court correctly denied defendant\u2019s motion for judgment as of nonsuit. For the same reasons defendant\u2019s assignment of error as to the failure of the court to explain the law applicable to the case, based on Exceptions 15, 16, 17 and 18, is overruled.\nWe find no error in the court\u2019s instruction that there was no fraud involved in the case. The defense of fraud is not available to the insurer unless specially pleaded. King v. Insurance Co., 258 N.C. 432, 128 S.E. 2d 849. The court\u2019s statement did not express an opinion as to the facts, the weight of the evidence, or the credibility of the witness. It was a correct statement of a matter of law.\nAppellant contends that the trial judge erred in giving plaintiff\u2019s contentions and in that he gave contentions that were not supported by the evidence.\n\u201cError in stating the contentions of a party must ordinarily be brought to the trial court\u2019s attention in time to afford opportunity for correction. But where the statement of a contention upon a material point includes an assumption of evidence entirely unsupported by the record, the misstatement must be held prejudicial, notwithstanding the absence of timely objection.\u201d Strong: N. C. Index, Vol. 4, Trial, \u00a7 37, p. 344. Appellant did not in apt time request further or different instructions as to the contention. It argues that the court\u2019s statement that plaintiff contended that defendant had failed to prove \u201cthat the deceased was uninsurable\u201d was prejudicial error because it had not included \u201caccording to defendant\u2019s rules and standards.\u201d In the same paragraph the court used this language: \u201c. . . but that it was not an epileptic attack and was not a convulsion, was not such an occurrence or condition as would render the deceased uninsurable under any of the company\u2019s rules and regulations.\u201d (Emphasis ours) Reading the court\u2019s statement of contentions contextually, we find no prejudicial error.\nThe defendant called R. T. Tavnner, its Assistant Vice-President and Manager of Underwriting, as a witness. While being questioned by defendant\u2019s counsel, he testified that the company would have declined to issue the contract because of its regulations had it known that deceased had suffered a convulsion or epileptic attack between the date of the application and the date of delivery. Mr. Tavnner was then asked if Terrell had suffered a convulsion or epileptic attack after the date of the insurance application, \u201cwas Mr. Matthew Marion Terrell insurable according to the rules and standards of the Company on the second day of December, 1963?\u201d Plaintiff\u2019s objection to this question was sustained. Had the witness been permitted to answer, his answer would have been: \u201cHe would not have been insurable.\u201d The trial court correctly sustained the objection. \u201cA witness will not be allowed to give his opinion on the very question to be decided by the jury.\u201d Ponder v. Cobb, 257 N.C. 281, 126 S.E. 2d 67. Moreover, the witness had just testified to facts with substantially the same meaning. Thus the sustaining of the objection could not have been harmful error.\nThere was conflicting evidence as to whether deceased was insurable according to the Life Insurance Company of Virginia\u2019s rules and standards on the date of the delivery of the policy \u2014 December 2, 1963. This raises an issue of fact which was submitted to the jury upon evidence and a charge free of prejudicial error. The jury answered the issue in favor of plaintiff.\nNo error.\nPARKER, C.J., took no part in the consideration or decision of this case.", "type": "majority", "author": "BRANCH, J." } ], "attorneys": [ "E. Carter Harris and C. Wallace Vickers for plaintiff.", "Bryant, Lipton, Bryant & Battle for defendant." ], "corrections": "", "head_matter": "MRS. ANNIE V. TERRELL v. THE LIFE INSURANCE COMPANY OF VIRGINIA.\n(Filed 20 January, 1967.)\n1. Insurance \u00a7 26\u2014\nEvidence and stipulations to the effect that insurer issued and delivered the life policy to insured, that premiums were paid on said policy, and that proof of death was duly submitted, held to make out a prvtma facie case precluding nonsuit unless plaintiff\u2019s own evidence establishes an affirmative defense duly alleged by insurer.\n2. Insurance \u00a7 17\u2014\nInsurer may not contend that nonsuit should have been entered because plaintiff\u2019s own evidence disclosed that insured did not reveal a fact material to the risk when the defense of fraud, misrepresentation or concealment is not pleaded by insurer.\n3. Insurance \u00a7 26\u2014\nThe burden of proof is upon insurer to establish its affirmative defense in accordance with its allegations.\n4. Pleadings \u00a7 28\u2014\nProof without corresponding allegation is ineffectual.\n5. Trial \u00a7 35\u2014\nWhere an affirmative defense is not available to a defendant because such defense was not pleaded, the trial court\u2019s instruction that such defense was not involved in the ease is a correct statement of a matter of law, and does not constitute an expression of opinion by the court as to' the facts, the weight of the evidence, or the credibility of the witness.\n6. Trial \u00a7 37\u2014\nDefendant\u2019s objection to a statement by the court of a contention of plaintiff on the ground that the statement omitted an essential fact, will not be sustained when immediately thereafter the court supplies the omission so that, when read contextually, the statement of the contention is without prejudicial error.\n7. Insurance \u00a7 26; Evidence \u00a7 35\u2014\nWhere the issue is whether insured was insurable under the company\u2019s rules and regulations at the time of the delivery of the policy in suit, it is not error to exclude insurer\u2019s testimony that at such time insured was not insurable, since a witness may not give an opinion on the very question to be decided by the jury.\n8. Appeal and Error \u00a7 41\u2014\nThe exclusion of testimony cannot be prejudicial when the same witness has just testified to facts with substantially the same meaning.\n9. Insurance \u00a7 26\u2014\nWhere plaintiff\u2019s evidence is conflicting as to whether insured on the date of the delivery of the policy was insurable according to insurer\u2019s rules and standards, an issue of fact is raised for determination by the jury, and insurer is not entitled to nonsuit on such affirmative defense.\nParker, O.J., took no part in the consideration or decision of this case.\nAppeal by defendant from Latham, S.J., July 1966 Civil Session of Durham.\nCivil action by plaintiff as beneficiary to recover under the terms of a whole life insurance policy issued to her husband by defendant.\nOn 14 October 1963 plaintiff\u2019s husband, Matthew Marion Terrell, executed an application to defendant insurance company for a whole life insurance policy in the amount of $5,000.00. The application contained the following provision:\n\u201c(2) That except as otherwise provided in the attached receipt bearing the same number as this application, the insurance herein applied for shall not take effect until a policy therefor is delivered to me and the first premium paid, while the proposed insured (and the applicant for the applicant\u2019s waiver of premium benefit provisions, if any,) is insurable according to the company\u2019s rules and standards for such policy.\u201d (Emphasis ours)\nThe application was forwarded by the local agent to defendant\u2019s home office. On 17 November 1963, the insured, an Army Reserve officer, suffered an illness in the nature of a seizure or collapse while on a military exercise, and was immediately taken to Watts Hospital, Durham, North Carolina, where he was treated and released on the same day. Insured entered Veterans Administration Hospital on 20 November 1963 and remained there until his discharge on 2 December 1963. Insured\u2019s application was approved at the home office of defendant, and on 20 November 1963 policy was mailed to the local agent for delivery. The local agent delivered the policy to insured on the same day he returned from the hospital, at which time insured made the first quarterly premium payment. Insured thereafter made two other quarterly premium payments. He died on 26 June 1964. The death certificate listed cause of death as an epileptic seizure. Proof of death of insured was duly given defendant company.\nThe evidence tends to show that defendant was not aware of the illness and hospitalization of insured which occurred between execution of application and delivery of policy. Defendant did not furnish insured with a copy of its \u201crules and standards.\u201d\nDr. Amos Carl Gipson, Jr., insured\u2019s attending' physician, by deposition testified to the effect that insured was admitted to the Veterans Administration Hospital following a seizure or epileptic attack; that insured remained in the hospital from 20 November 1963 until 2 December 1963, and underwent extensive tests and examinations. He stated: \u201cThe only abnormality we could detect was an abnormality on the glucose tolerance test. . . . and we didn\u2019t feel that this necessarily represented diabetes. The other tests were within normal limits. ... At the time he left the hospital it was our feeling that we were unable to establish any definite pathological diagnosis other than, as I have mentioned, the glucose tolerance. . . . His neurological examination was also within normal limits, except that he did have a slight decrease in biceps reflex on the left. ... I would say simply he was nervous, and anxious and afraid he might be about to suffer some loss of income.\u201d\nDefendant did not allege fraud, concealment or misrepresentation in its answer, but did allege that on the date of delivery of the policy deceased was uninsurable according to defendant\u2019s rules and standards for the policy applied for by him.\nThe following issue was submitted to and answered by the jury as indicated: \u201cWas the deceased, Matthew Marion Terrell, insurable according to The Life Insurance Company of Virginia\u2019s rules and standards on the date of the delivery of the policy on December 2, 1963? Answer: Yes.\u201d\nJudgment was entered upon the verdict. Defendant appealed.\nE. Carter Harris and C. Wallace Vickers for plaintiff.\nBryant, Lipton, Bryant & Battle for defendant." }, "file_name": "0259-01", "first_page_order": 291, "last_page_order": 295 }