Carson v. National Life Insurance

AlleN, J. It is stated in tbe case on appeal, as an admission of tbe plaintiff made on tbe trial, that she has no title to tbe policy of insurance sued on except by virtue of tbe assignment made to her by tbe insured, and as tbe jury has found that this assignment was procured by fraud, she cannot recover while this finding stands. It is, therefore, only necessary to examine tbe assignments of error bearing on this issue unless there is error in these, and upon full consideration of tbe record we find none. If these assignments are considered as a whole, they are not of sufficient importance and were not so material as to justify disturbing tbe verdict, and when dealt with seriatim there is no technical error. 1. Tbe plaintiff, who was examined as a witness, was asked tbe question, “Was policy No. 207800, issued by tbe National Life Insurance Company on tbe life of Eason Matthews, your property, and is it now your property?” to which she would have answered “Yes.” Tbe question and answer were excluded, and tbe plaintiff excepted. It is sometimes competent for a party to testify to tbe ownership of property which is in dispute, but as tbe sixth issue, finding that tbe assignment was executed to tbe plaintiff, was answered in her favor, and as tbe only question in controversy on this phase of tbe case was on tbe issue of fraud in procuring tbe assignment, tbe question and answer are immaterial. 2. Tbe same witness was asked, “State if you know of any negotiations for said policy before tbe assignment to you,” to which she would *138 have answered, “Yes, sir; we bad talked of my buying tbe policy.” Tbis was excluded, and tbe plaintiff excepted. Tbis question assumes tbat there was an assignment of tbe policy, and was asked before tbe assignment was introduced in evidence, and tbe answer is objectionable upon tbe additional ground tbat it purports to give an account of a conversation between tbe plaintiff and ber busband. Again, it does not bear upon tbe issue of fraud, but upon tbe question of tbe purchase and assignment of tbe policy. 3. S. T. Carson, busband of tbe plaintiff, and who was tbe only other person present at tbe time tbe assignment was made, was examined as a witness and was asked, “Did you explain to Mr. Matthews what be .was signing when be signed tbis paper?” to which tbe witness would have replied tbat be did. Tbis evidence was excluded, and tbe plaintiff excepted. S. T. Carson is a surety on tbe prosecution bond of tbe plaintiff, and as such was interested in tbe event of tbe action and could not testify to a conversation with tbe deceased, under section 1631 of Revisal. Mason v. McCormick, 75 N. C., 263. Again, tbe only thing proposed to be proved by tbe witness is tbat be told tbe insured tbat tbe paper be was signing was an absolute assignment of tbe policy, and tbis appeared from tbe paper itself. 4. Mrs. Matthews, widow of tbe insured, who was examined as a witness, was asked, “State if you know tbe contract and agreement between Mr. Carson and your busband at tbe time be took out tbis policy,” and she answered: “Tbe agreement was tbat Mr. Carson was to pay him bis money back, with tbe interest on it, and Mr. Carson was to give him up tbe policy.” Tbis was objected to by tbe plaintiff. We see no reason for refusing to permit the witness to speak of tbe agreement with tbe busband of tbe plaintiff, who was present at tbe trial, and there is nothing to show tbat she was' not speaking of ber own knowledge. It also appears from tbe evidence of S. T. Carson tbat be gave substantially tbe same account of tbe transaction at tbe time tbe policy was taken out. Tbis evidence also refers to tbe taking out of tbe policy and not to fraud in procuring its assignment. 5. Tbe same witness was permitted to state tbat “Eason Matthews was not able to go to Carson, so sent for him to come, but never got him there.” Tbi.s was objected to by tbe plaintiff. Tbis bears remotely on tbe issue of fraud, but as she was testifying of ber own knowledge so far as tbe record discloses, tbe evidence was competent. 6. J. W. Coburn, administrator of Eason Matthews, was examined as a witness, and tbe following questions and answers appear in bis evidence, to which tbe plaintiff excepted: *139 Q. Did you ever see Mr. Carson for Mr. Matthews about returning tbe policy? Answer: “Yes, during tbe year 1911.” Q. State if you, at tbe instance of Mr. Matthews, went to Mr. Carson to get tbe policy. Answer: “Yes, sir.” Q. State what you said to Mr. Carson in reference to tbe policy? Answer: “I went to Mr. Carson and told him Mr. Matthews got me to come to him and tell him be wanted to take tbe policy up.” Tbe first of these questions might be objectionable, standing alone, because it invplves inferentially a declaration of tbe insured, Matthews; but this and tbe succeeding questions were only preliminary to tbe last one, and tbe answer to tbe last, which give£ an account of tbe conversation between tbe witness and S. T. Carson, was competent and involves all that was in tbe preceding questions. When be told Mr. Carson that tbe insured got him to come to him and tell him be wanted to take up tbe policy, it was equivalent to saying that be went to see him at the instance of Mr. Matthews. 7. His Honor charged tbe jury, among other things, as follows: “If you find that Matthews signed tbe paper voluntarily, and if be knew what was in tbe paper that bis mark was being made to, then tbe burden would be on tbe defendant to show by tbe greater weight of tbe evidence that it was procured by fraud.” This was excepted to by tbe plaintiff, but it properly places tbe burden of proof on tbe defendant, and there is. nothing of which tbe plaintiff can justly complain in tbe charge. There are exceptions bearing upon tbe other issues, some of them presenting questions that are not free from difficulty, but, as we have before stated, it is not necessary to consider them, in view of tbe finding lipón tbe seventh issue, which makes it impossible for tbe plaintiff to recover. No error.