Cato v. . Hospital Care Association

Clarkson, J. Tbe defendant appellant contends tbat tbe lower court committed error by not rendering judgment on tbe verdict for tbe defendant appellant and by signing tbe judgment. We cannot so bold on tbe record. Tbe charge of tbe court below is not in tbe record, and it is well settled in this jurisdiction tbat it is assumed tbat tbe court below charged tbe law applicable to tbe facts. Maynard v. Holder, 219 N. C., 470 (471). *483 Tbe evidence is to tbe effect tbat tbe agent of tbe defendant went to tbe borne of plaintiffs, on 21 February, 1939, and applications for certificates of membership were signed by plaintiffs and afterwards sent by tbe agent to defendant company and policies were issued. Tbe action is brought on this certificate or policy. Plaintiffs paid tbe agent $4.50 at tbe time of tbe application, a quarterly payment on tbe policy. Tbe service was hospital care. While tbe policy was in force tbe plaintiff, Margaret E. Cato, was operated on for appendicitis. Tbe hospital and surgical bills totaled $109.00, for which plaintiffs instituted this action, after defendant bad denied liability. It was contended by defendant tbat tbe feme plaintiff answered certain questions in tbe application or certificate falsely, which were material to tbe validity of tbe policy. Tbe feme plaintiff denied this. She -testified tbat she at tbe time the certificate was signed, wore dark glasses and she could not see real good. “I am not able to read fine print — I can’t even read normal print. ... I will be 59 years old my next birthday. ... I have ten living children and one dead. Tbe hospital did furnish service to me during tbe time of my appendicitis operation. Tbe Hospital Care Association has never furnished me any hospital service. . . . He (tbe agent) asked me bad I bad a doctor in tbe last six months and I told him no, I bad not bad a doctor in a year. He asked me if I thought I was in good health. I said I thought I was as far as my age would permit. I will be 59 my next birthday. He did not read anything else or ask me any other questions tbat I can recollect. I was not able to read tbe paper which I signed. (The Court) : You say be asked you just two questions, one was whether you bad had a doctor in the last six months? Ans.: Yes, sir. (The Court) : And the other was whether you were in good health ? Ans.: Yes. (Tbe Court) : And you told him tbat you bad not bad a doctor in the last six months and tbat you were in good health for your age? Ans.: Yes, sir. . . . Q. Mrs. Cato, look at tbat and see if that is your signature (handing witness a paper writing, Defendant’s Exhibit 2). ’Ans.: You go ask him, I can’t see what tbat word says. Please ask him, will you? I recall signing tbe application tbat night. Q. Did you ask Mr. Eitch to read this over to you? Ans.: No, I trusted him. Q. Did you ask any of your children to read it over to you? Ans.: No, I trusted Mr. Eitch. I just took bis word for it and signed tbe paper. Q. And you did not know whether tbe answers to these questions were right or wrong ? Ans.: I didn’t even know there was any questions to be asked, only tbe two he asked me. I knew be asked me two?” The insurance certificate, or application, was introduced in evidence by plaintiff Margaret E. Cato, tbe beneficiary. Tbe premium was paid and tbe certificate was in force at the time of the need for hospitaliza *484 tion. Tbe medical and hospital bill was for $109.00. Tbe plaintiffs bad filed proper proof and tbe defendant bad denied liability, a prima facie case was made out against defendant. In Lyons v. Knights of Pythias, 172 N. C., 408 (410), it is said: “On proof of tbe death of tbe member, presentation of the policy by the beneficiary and denial of any liability by tbe company, a prima facie right of recovery is established, and defendant, claiming to be relieved by reason of nonpayment of dues or other like default, has tbe burden of proof in reference to such defenses. Harris v. Junior Order, etc., 168 N. C., 357; Wilkie v. National Council, 147 N. C., 637; Doggett v. Golden Cross, 126 N. C., 477 (480).” Creech v. Woodmen of the World, 211 N. C., 658 (660); Blackburn v. Woodmen of the World, 219 N. C., 602 (606). In Cox v. Assurance Society, 209 N. C., 778 (782), this Court said: “It is a well settled principle in this jurisdiction that an insurance company cannot avoid liability on a policy issued by it by reason of any facts which were known to it at the time the policy was delivered, and that any knowledge of an agent or representative, while acting in tbe scope of tbe powers entrusted to him, will, in tbe absence of fraud or collusion between the insured and tbe agent or representative, be imputed to tbe company, though tbe policy contains a stipulation to tbe contrary. Follette v. Accident Assn., 110 N. C., 377; Fishblate v. Fidelity Co., 140 N. C., 589; Short v. Ins. Co., 194 N. C., 649; Laughinghouse v. Ins. Co., 200 N. C., 434; Colson v. Assurance Co., 207 N. C., 581; Barnes v. Assurance Society, 204 N. C., 800, and cases there cited.” Peebles v. Guano Co., 77 N. C., 233 (237); Alpha Mills v. Engine Co., 116 N. C., 797; Williston on Contracts (Rev. Ed.), Vol. III, sec. 751, supra. Tbe answers to certain issues in favor of plaintiffs fully support tbe judgment. On tbe verdict we think tbe judgment correct. Tbe defendant’s agent, as was found by tbe jury (and there was competent evidence to* sustain tbe finding), inserted in tbe certificate or application certain answers to questions, without tbe knowledge of plaintiff. Tbe defendant may not now assert tbe falsity of tbe answers. Whitehurst v. Ins. Co., 149 N. C., 273; Currie v. Malloy, 185 N. C., 206; Lunn v. Shermer, 93 N. C., 164. Tbe cases of Inman v. Woodmen of the World, 211 N. C., 179, and Assurance Society v. Ashby, 215 N. C., 280, are not applicable to tbe facts in tbe present action. This contract and loss occurred before tbe Hospital Insurance Act of 1941, eb. 338. For tbe reasons given, we find no prejudicial or reversible error on tbe record. No error.