Carroll v. Carolina Casualty Insurance

*458 Devin, J. Tbe defendant assigns error in tbe trial below in two respects: (1) in tbe court’s denial of its motion for judgment of nonsuit, and (2) in tbe court’s instructions to tbe jury. Tbe plaintiffs’ evidence was sufficient to carry tbe case to tbe jury and to support tbe verdict. Notwithstanding tbe incorrect answer to tbe question in tbe application as to absence of bernia, under tbe terms of tbe policy, tbis would not defeat plaintiffs’ action on tbe policy, otherwise incontestable, unless tbe answer was made witb intent to deceive, or materially affected tbe acceptance of tbe risk and contributed to tbe event on wbicb tbe policy became payable. There was evidence to sustain plaintiffs on tbis point, and tbe motion for judgment of nonsuit was properly denied. Tbe court charged tbe jury that there was no evidence of an intent to deceive tbe defendant in tbe application for tbe policy of insurance. There was no error in tbis instruction. Tbe plaintiffs’ evidence negatived fraud, and tbe burden on tbis issue was upon the' defendant. There was no evidence contra. Tbe court charged tbe jury in substance if they found that the feme plaintiff was sent to tbe hospital for an appendix operation, and that the hernia in any way contributed to her hospitalization; or that it materially affected tbe acceptance of tbe risk, or contributed to tbe contingency; or that but for the answer to tbe question in tbe application the Insurance Company would not have written tbe policy as it did, or not at all, or changed it, they should answer tbe issue yes, and that, before they could answer it no they must find tbe hernia did not contribute to her hospitalization or materially affect tbe acceptance of tbe risk. Tbis charge presented tbe determinative question in tbe language of tbe policy wbicb provided that falsity in an answer in tbe application would bar recovery “if such answer is made witb intent to deceive or materially affects tbe acceptance of tbe risk by tbe Company and contributes to tbe contingency or event on wbicb tbe policy is to become due and payable.” Tbe charge is in substantial compliance witb tbe rule laid down in Wells v. Ins. Co., 211 N. C., 427, 190 S. E., 744, and in accord witb the provisions of G. S., 58-30, that “a representation, unless material or fraudulent, will not prevent a recovery on tbe policy.” The general rule is that the materiality of tbe representation depends on whether it was such as would naturally and reasonably have influenced tbe insurance company witb respect to the contract or risk. Wells v. Ins. Co., supra; Schas v. Ins. Co., 166 N. C., 55, 81 S. E., 1014. Tbe question was one for tbe jury. Bank v. Ins. Co., 223 N. C., 390, 26 S. E. (2d), 862. It is true the court, in one instance, inadvertently told tbe jury if they found certain facts to answer tbe issue “no” when “yes” was indicated *459 and intended, but in tbe succeeding paragraph tbe court corrected tbe instruction, and properly and fully charged on this point, as was also done in tbe preceding paragraph. Tbe defendant does not raise the-point, or suggest, that there was any misunderstanding of tbe court’s instructions on this issue, and merely finds fault with this portion of tbe charge for that the court submitted “a question of law to the twelve jurors.” The exception to tbe charge as to tbe amount of recovery is without merit. We think the case was fairly and properly submitted to tbe jury, and tbe result reached will not be disturbed. No error.