Barnes v. Equitable Life Assurance Society of the United States, 204 N.C. 800 (1933)

May 24, 1933 · Supreme Court of North Carolina

204 N.C. 800

KATHERINE S. BARNES v. THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES.

(Filed 24 May, 1933.)

Appeal by defendant from Alley, J., at April Term, 1933, of Bito-COMBE.

Civil action to recover on an “Economic Adjustment Policy” of insurance.

It was admitted on tbe bearing tbat plaintiff is entitled to recover on tbe policy in suit unless tbe answer to question 9 in tbe application vitiates tbe contract :

“9. State every physician or practitioner whom you bave consulted or wbo bas treated you during' tbe past five years. (If none, so state.) Name and address of eacb: Dr. H. H. Briggs, Asheville, N. C. Dates and details: November, 1927. Polypi «removed from nose. Result: Good.

It is alleged tbat in addition to consulting Dr. Briggs, tbe applicant bad also received treatment from Dr. O. N. Donnaboe, an osteopath, which she failed to mention, thus rendering tbe policy void for fraudulent suppression of a material circumstance affecting tbe risk. Insurance Go. v. Skurkay, ante, 227.

Upon this phase of tbe case, tbe court of first instance found tbe following facts:

“And tbe court further finds as a fact tbat tbe plaintiff, Katherine S. Barnes, in executing part two of tbe application for tbe policy above referred to, on 7 June, 1931, did not make untruthful answers to any material questions contained in said application; tbat she did not consult any other physician or practitioner during tbe past five years preceding said date other than tbe one given by her in her answer to tbe question propounded; tbat tbe said Katherine S. Barnes, in going to tbe osteopath, went only for tbe reason tbat she was tired from work connected with her duties, and for tbe purpose of obtaining relaxation, and not for tbe purpose of receiving treatment from a practitioner within tbe purview of question 9; tbat she advised both J. J. Conyers, agent and representative of tbe company, and Dr. C. C. Orr, defendant’s examining physician, of tbe treatments which she bad been receiving, and of her visits to Dr. O. N. Donnaboe, prior to 7 June, 1931, and tbat tbe defendant company, through said agent and physician, bad full knowledge of tbe treatments she, tbe said Katherine S. Barnes, bad received and of tbe visits she bad made to Dr. 0. N. Donna-boe, and issued tbe policy in controversy with said knowledge, and it is, therefore, estopped from relying on said treatments or visits to Dr. 0. N. Donnaboe or anyone else, as a violation of tbe terms of tbe policy.”

On appeal from tbe General County Court to tbe Superior Court of Buncombe County, tbe judgment of tbe county court was affirmed.

Defendant appeals, assigning errors.

Jones' & Ward for plaintiff.

Bourne, Parker, Bernard & DuBose for defendant.

Pee Cub-iam.

Upon the findings made by the trial court, supported, as they are, by competent evidence, tbe judgment is correct under the law as it obtains in this jurisdiction. Aldridge v. Ins. Co., 194 N. C., 683, 140 S. E., 706; Smith v. Ins. Co., 193 N. C., 446, 137 S. E., 310; Bullard v. Ins. Co., 189 N. C., 34, 126 S. E., 179; Ins. Co. v. Lbr. Co., 186 N. C., 269, 119 S. E., 362; Johnson v. Ins. Co., 172 N. C., 142, 90 S. E., 124. Compare Case v. Ewbanks, 194 N. C., 775, 140 S. E., 709. It would serve no useful purpose to' “thrash over old straw.”

Affirmed.