Greensboro Life Insurance v. Knight, 160 N.C. 592 (1912)

Dec. 11, 1912 · Supreme Court of North Carolina
160 N.C. 592


(Filed 11 December, 1912.)

1. Evidence — Conflicting—Questions for Jury.

Where there is conflicting and competent evidence upon whether a premium note was given for a policy of life insurance induced by false and fraudulent representations of the insurance agent made at the time the note was delivered, it presents an issue of fact, upon which the finding of the jury is conclusive.

2. Insurance — Contracts—Fraud—Parol Evidence.

Testimony of representations of an insurance agent falsely and fraudulently made, which would, if established, vitiate a policy of life insurance, is not governed by the rule of evidence that the written policy may not be varied by parol testimony.

3. Insurance — Contracts—Principal and Agent — Fraud—Corroborative Evidence — Intent—Statements Made to Others.

Where the validity of a life insurance policy is attacked for the false and fraudulent representations of the agent, as thus inducing the contract, it is competent to show, in corroboration of the plaintiff’s evidence, that the agent sold only one kind of policy, and by others that he made the same representations to them as an inducement to insure; and also as evidence of the intent of the agent in making the representations to the plaintiff.

4. Insurance — Contracts — Corroborative Evidence — Declarations— Justice’s Court — Harmless Error.

Where the declarations of an insurance agent are competent as corroborative of the testimony of the plaintiff as to fraud in the procurement of tlie policy of life 'insurance, and as to the intent of the agent in making them, it is admissible to show, in the same action on appeal to the Superior Court, that the agent had testified in the magistrate’s court to certain facts; and if error was committed in' admitting these declarations, it was cured by the agent’s testimony to tbe same effect in the Superior Court.'

Appeal by plaintiff from Gime, J., at Spring Term, 1912, of NORTHAMPTON.

The facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Clark.

Mason, Worrell '& Long and T. C. Harrison for plaintiff.

Winborne & Winborne, D. C. Barnes, Gay & Midgett, and Peebles & Harris for defendant. ■

*593Clakk:, 0. J.

Tbis was an action begun before a justice of tbe peace for tbe recovery on a note of $133.38 for tbe first premium on an insurance policy for $2,000. Tbe defendant refused to pay tbe note, upon tbe ground tbat tbe execution of tbe note bad been secured by false and fraudulent representations of tbe plaintiff made at tbe time tbe note was executed and delivered. Tbe whole case turned upon tbat point and tbe jury found tbe facts witb tbe defendant.. Upon tbis proposition, there was testimony on both sides, and being an issue of fact, it is not necessary to state tbe evidence upon which tbe jury acted.

Tbe first exception was because tbe defendant was allowed to state what representations were made to him by tbe insurance agent, and cannot be sustained. Tbe rule tbat parol agreements are merged in a written contract is not applicable where tbe allegations and issue are tbat tbe written contract was procured by false and fraudulent representations. Gwaltney v. Assurance Society, 132 N. C., 928, and cases there cited.

Exception 2 was abandoned and Exception 3 was because tbe witness was allowed to state what Maurer, tbe insurance agent, said in bis testimony at tbe trial before .a. justice of tbe peace relative to tbe character and kind of insurance be had written for other parties in tbe county at tbe time be solicited tbis insurance. Tbis was competent, because tbe evidence showed tbat tbe agent bad only attempted to write one kind of policy, and they all were of tbe same kind as tbat of the defendant. If error, it was harmless, for Mourer testified to same purport at tbis trial.

All tbe other exceptions are practically to admission of testimony of tbe seventeen witnesses who testified, in corroboration and to show tbe intent of tbe insurance agent in making tbe false representations to tbe plaintiff, tbat be made tbe same representations to them. Tbe court so told tbe jury at tbe time be admitted tbe testimony, and also in bis charge. He charged them tbat such evidence was competent for tbat purpose only, if they found tbat tbe agent did make false representation, and tbat tbe jury could consider tbe evidence as to tbe transactions and conversations of tbe agent witb these other parties in tbat way, and for no other purpose.

*594Evidence of a collateral offense of tbe same character and tending to prove guilty knowledge of the party, when that is an essential element of the crime, is admissible. S. v. Graham, 121 N. C., 627; S. v. Jeffreys, 117 N. C., 727. These conversations and transactions were made by the same agent about the same kind of policies, about the same time; were representations of the same character, and made to thirty-eight different parties, to the same purport.

Such evidence is admissible in criminal actions and a fortiori it is admissible in civil actions. Brink v. Blade, 77 N. C., 59.

Upon an examination of all the exceptions, we find

No error.