Myrtle CHAVIS
v.
HOME SECURITY LIFE INSURANCE COMPANY.
No. 742.
Supreme Court of North Carolina.
January 29, 1960.*576 Varser, McIntyre, Henry & Hedgpeth, Lumberton, for defendant, appellant.
L. J. Britt & Son, Lumberton, for plaintiff, appellee.
HIGGINS, Justice.
The defendant admitted the execution and delivery of the policy, the payment of the premium, and the death of the insured within the period of coverage. These admissions placed upon the defendant the burden of showing a legal excuse for refusing payment according to the terms of the policy. The plaintiff introduced the policy in evidence. The admissions and the policy made out a case for the jury. Thomas-Yelverton Co. v. State Capital Life Ins. Co., 238 N.C. 278, 77 S.E.2d 692. Defendant's assignment of error based on the court's refusal to nonsuit cannot be sustained.
The insurer offered as its defense the application for the policy in which appeared above the insured's name the statement she had not suffered from cancer, etc. The agent of the insurer testified the insured answered the questions as recorded in the application and signed it. The defendant offered medical testimony the insured died of cancer within four months of the date of the policy; that she had suffered from the disease for as much as three years prior to the application; that she had been operated on for this malignancy prior to the application. The defendant contended the concealment of this important information induced the defendant to issue the policy.
The plaintiff offered evidence the insured did not sign the application; and that only the questions as to her name, age, residence, the name of the beneficiary, and "how is her health," were asked by the agent; and that no other information was asked for or given. The beneficiary stated, "Her health is good as far as I know"; and that she knew nothing of any disease, treatment or operation her mother had while in Jacksonville or Onslow County. The agent received the premium and submitted to its principal the application upon which the policy was based.
Whether responsibility for the false answers was attributable to the insured or to the agent of the company was in serious dispute. There was neither allegation nor proof of any collusion. The jury resolved the disputed issues of fact against the defendant. "* * * the credibility of the evidence to support the defendant's defense was a matter for the jury." Tolbert v. Mutual Benefit Life Ins. Co., 236 N.C. 416, 72 S.E.2d 915, 917. The assignments of error based on the introduction of parts of defendant's answer are without merit. The parts of the answer offered were of distinct and separate facts pertinent to the issues. They were competent as judicial admissions as well as admissions against interest. Whitson v. Frances, 240 N.C. 733, 83 S.E.2d 879; Winslow v. Jordan, 236 N.C. 166, 72 S.E.2d 228.
*577 Likewise without merit is the assignment of error based on the court's admission of plaintiff's evidence contradicting the written application with respect to the insured's health. Without discussing other reasons why the evidence might be admissible, it is enough to say that the execution of, and responsibility for, the written application were in serious dispute. The dispute was resolved by the jury against the defendant. In any event, the exclusion of parol evidence, on the ground it contradicts a written instrument, presupposes the existence of a valid and binding written instrument. The assignment of error based on the admission of testimony cannot be sustained.
The case of Heilig v. Home Security Life Ins. Co., 222 N.C. 231, 22 S.E.2d 429, settles adversely to the defendant's claims the controlling issues of fact and questions of law involved in this appeal.
No error.
PARKER, J. dissents.