Yerys v. New York Life Insurance

Stacy, C. J., after stating the case: The defense of invalidity is not available to the defendant in the present action. Mauney v. Ins. Co., 209 N. C., 499, 184 S. E., 82; Wamboldt v. Ins. Co., 191 N. C., 32, 131 S. E., 395; Hardy v. Ins. Co., 180 N. C., 180, 104 S. E., 166; Amer. Trust Co. v. Ins. Co., 173 N. C., 558, 92 S. E., 706. Neither is it entitled to be heard again on the question of reformation or cancellation, nor on the subject of its counterclaims. These matters were considered in a forum of its own choosing. They are now res judicata. Bunker v. Bunker, 140 N. C., 18, 52 S. E., 237; Distributing Co. v. Carraway, 196 N. C., 58, 144 S. E., 535; 15 R. C. L., 949, et seq. “It is a familiar maxim that a man shall not be twice vexed for the same cause. If a final judgment or decree is rendered, the parties cannot again be heard upon any matter which was then litigated and determined, the controversy having passed in rem judicatam and become conclusive between the parties” — Adams, J., in Harvey v. Rouse, 203 N. C., 296, 165 S. E., 714. The two questions still open for determination are (1) coverage, and (2) genuineness of plaintiff’s present claim. Mills v. Ins. Co., ante, 439. The judgment below, as we understand it, is to this effect. It is observed that the coverage clauses in the instant policies are not identical with those appearing in the Mills case, supra. Here, the disability must have “occurred” after the insurance took effect, while in the cited case the disability must have resulted from bodily injury or disease “occurring and originating” after the insurance became effective. However, as the issue of liability has not yet been determined, we refrain from further comment. An appeal from a judgment sustaining a plea in bar is not regarded as premature. Royster v. Wright, 118 N. C., 152, 24 S. E., 746; Bethell v. McKinney, 164 N. C., 71, 80 S. E., 162. Affirmed.