Eckard v. Metropolitan Life Insurance

ConnoR, J. The policy of life insurance sued on in this action was issued by the defendant, a life insurance company doing business in this State, without a previous medical examination of the insured. The issuance of the policy was authorized by C. S., 6460, as amended prior to its issuance. See N. C. Code of 1935, sec. 6460. Holbrook v. Ins. Co., 196 N. C., 333, 145 S. E., 609. The statute was in force at the date of the issuance of the policy, and is therefore a part of the policy as much so as if its provisions were expressly incorporated in the policy. The rights and liabilities of the parties to this action are determined by the provisions of the policy (Gilmore v. Ins. Co., 199 N. C., 632, 155 S. E., 566), provided such provisions are not in conflict with the provisions of the statute (Headen v. Ins. Co., 206 N. C., 270, 172 S. E., 349). *133 In that case, the statute and not the policy controls. In Headen v. Ins. Co., supra, it is said by Stacy, C. J.: “The provisions of this statute being in force at the time of the execution of the policy, entered into and became a part of the convention of the parties as much so as if they had been expressly incorporated in its terms. Bateman v. Sterrett, 201 N. C., 59, 159 S. E., 14; Trust Co. v. Hudson, 200 N. C., 688, 158 S. E., 244; House v. Parker, 181 N. C., 40, 106 S. E., 136; Mfg. Co. v. Holladay, 178 N. C., 417, 100 S. E., 567. Therefore, the defendant may not now declare the policy in suit void, pursuant to the stipulation of the contract, as this is in direct conflict with the statute.” The statute which was in force at the date of the issuance of the policy in the instant case is as follows: “Sec. 6460. Medical Examination Required. No life insurance company organized under the laws of or doing business in this State shall enter into any contract of insurance in any twelve months period in an amount in excess of five thousand dollars ($5,000.00) upon any one life within this State without having previously made or caused to be made a prescribed medical examination of the insured by a registered medical practitioner; and provided further, that where there has been no medical examination, the policy shall not be rendered void nor shall payment be resisted on account of any misrepresentation as to the physical condition of the applicant, except in cases of fraud; and provided further, that this section shall not apply to contracts of insurance issued under the group plan.” Where a policy of life insurance has been issued in this State, without a previous medical examination of the insured, as authorized by the statute, by reason of its provisions, representations made by the insured in his application for the policy, although false in fact, do not invalidate the policy or affect the liability of the company under the policy, where such representations were not made fraudulently. The provisions in the policy of insurance sued on in this action are in conflict with the provisions of the statute and are not available to the defendant as a defense to plaintiff’s recovery in this action of the amount of the policy. See Potts v. Ins. Co., 206 N. C., 257, 174 S. E., 123. There was error in the refusal of the judge to sign the judgment tendered by the plaintiff at the trial of this action. The action is remanded to the Superior Court of Catawba County that judgment may there be signed in accordance with this opinion. Error and remanded.