Anthony v. Teachers Protective Union

Adams, J. The defendant moved to dismiss both causes of action as in case of nonsuit and tendered prayers for directed instructions on all the contested issues that were answered. The court denied the motion and declined to give the requested instructions, and the defendant excepted. The ground of all the exceptions addressed to these questions, as set out in the appellant’s brief, is the asserted failure of the plaintiff to state in her application for membership that she had previously suffered illness and received medical treatment. This contention is based upon her answer to each of the following questions: Q. 5: “Are you now suffering from, or have you ever had any . . . gall or kidney stones ... or any chronic or periodical mental or physical ailment or disease ... or have you ever had or been advised to have a surgical operation?” A. “Yes.” Q. 6: “Have you during the past five years had any medical or surgical advice or treatment or any departure from good health ? If so, state when and what the duration.” A. “Operation; 3 months; September,'1930. My physician at that time was Dr. J. B. Riddle. Address: Morganton, N. O.” These questions and the answers appear in the plaintiff’s application for membership in the defending corporation and were subscribed on 1 October, 1931. At the trial the plaintiff testified that in the spring of 1931 Dr. Kirksey had treated her and that she had not given his name to the defendant’s agent at the time she made her application. The defendant says that the statements contained in her application were representations (O. S., 6289) which, being in the form of written answers to written questions, are deemed to be material (Insurance Co. v. Woolen Mills, 172 N. C., 534), and that the withholding of information in regard to Dr. Kirksey’s treatment was in effect the suppression of a material fact by reason of which the policy may be avoided at the election of the defendant. In view of facts revealed by the record this position cannot be maintained. The verdict, supported by competent evidence, establishes these facts: Anterior to 1 October, 1931, the plaintiff had not suffered from chronic cholecystitis; Dr. Kirksey had not treated her for this infirmity; during the five years preceding this date she had had no departure from good health other than that which was attendant upon the operation *11 performed by Dr. Eiddle. It is therefore evident that her failure to inform tbe defendant’s representative that in tbe spring of 1931 Dr. Ilirksey bad treated ber for a temporary indisposition is of negligible significance and in no event is adequate cause for canceling tbe policy. Tbe second cause of action consists, of alleged forceable trespass on tbe premises of tbe plaintiff and alleged assault upon ber person by tbe defendant’s agent when be went to ber borne and undertook to settle a controversy between tbe plaintiff and tbe defendant founded upon tbe policy of insurance. Tbe allegations directed to tbe second cause are specifically denied, and tbe immediate question is wbetber tbe evidence considered most favorably for tbe plaintiff is enough to warrant a recovery upon these allegations, or, indeed upon tbe answers returned to tbe eleventh and twelfth issues. Forceable trespass is the high-handed invasion of tbe actual possession of another, be being present and forbidding. When a person enters upon tbe actual possession of' another and by bis language or conduct gives tbe occupant cause to fear that be will inflict bodily barm if tbe person in possession does not yield, bis entry is forceable in contemplation of law, wbetber be causes such fear by a demonstration of force such as to indicate bis purpose to execute bis pretensions, or by actual threats to do bodily barm, or by tbe use of language which plainly implies a purpose to use force against any who may make resistance. Even if tbe entry is peaceable, or by tbe express or implied invitation of tbe occupant, still if after coming upon tbe premises tbe defendant uses violent and abusive language and does acts which are calculated to produce a breach of the peace and is forbidden, be is guilty of forceable trespass, because although not a trespasser in tbe beginning, he becomes a trespasser as soon as be puts himself in open opposition to tbe occupant of tbe premises. It is not necessary that tbe occupant actually be put in fear, if the conduct or language of tbe trespasser be calculated to intimidate, alarm, put in fear or to create a breach of tbe peace— if there be such demonstration of force as to create a reasonable apprehension that tbe party in possession must yield to avoid a breach of tbe peace. Tbe act complained of must have been with a strong band, ' manu forti,” and this implies tbe exercise of greater force than is expressed by tbe words “vi et armis.” Eudeness of language, mere words, or even a slight demonstration of force against which ordinary firmness is a sufficient protection will not constitute tbe offense. S. v. Ray, 32 N. C., 39; S. v. Pearman, 61 N. C., 371; S. v. King, 74 N. C., 177; S. v. Gray, 109 N. C., 791; S. v. Davenport, 156 N. C., 596; S. v. Tyndall, 192 N. C., 559. Examined in tbe light of these principles tbe evidence does not justify tbe answers to tbe eleventh and twelfth issues. Tbe testimony is concise. *12 The plaintiff was nervous; the defendant’s agent talked to her in a loud tone and said that she had made false statements in her application for membership; both the plaintiff and the agent were angry; and the agent tried to persuade her to accept a check for $30.00 and to cancel the policy, and she declined the offer. The plaintiff’s daughter requested the agent to leave the house, but she immediately asked “if he wanted to stay” until Dr. Kirksey came. He waited and a few minutes later, when they arrived, he had an interview with the physician and the plaintiff’s brother, who, after the conversation had become electric, “got up” and without the slightest resistance “put the agent out.” This incident, however, the plaintiff neither instigated nor encouraged. The foregoing circumstances, appearing in the evidence for the plaintiff, may be conceded. Still, according to her evidence the agent made no threats, offered no violence, used no profane or indecent language, committed no assault, exerted no force, but was only insistent that the plaintiff’s statements had misled the defendant and that she was entitled only to the sum he tendered. Indeed, the plaintiff testified, “My complaint is that he (the agent) accused me of making false statements.” We find nothing in the agent’s conduct that was calculated to result in a breach of the peace — nothing to make a case of forceable trespass; bare words, however violent, cannot of themselves constitute the force necessary to complete the offense. S. v. Covington, 70 N. C., 71. The exceptions relating to the admission of evidence and the charge of the court are not of sufficient gravity to require a new trial. We find no error as to the first cause of action but the defendant’s motion to dismiss the second should have been allowed. As to the first cause no error, and as to the second the judgment is Reversed.