Mrs. Annie V. TERRELL
v.
The LIFE INSURANCE COMPANY OF VIRGINIA.
No. 767.
Supreme Court of North Carolina.
January 20, 1967.*198 Bryant, Lipton, Bryant & Battle, Durham, for defendant.
E. Carter Harris, C. Wallace Vickers, Durham, for plaintiff.
BRANCH, Justice.
It is stipulated by counsel that policy No. 1034585, executed by defendant on the life of Matthew Marion Terrell, was delivered to him by defendant's agent on 2 December 1963, that premiums were paid on said policy, and that proof of death was duly submitted. This makes out a prima facie case, and nonsuit is improper except where plaintiff's evidence establishes defendant's affirmative defense. Rhinehardt v. North Carolina Mutual Life Insurance Co., 254 N.C. 671, 119 S.E.2d 614. Appellant contends that nonsuit should have been granted because deceased did not reveal that he had suffered an attack and seizure of epilepsy after the application for and before delivery of the policy. Conceding that the propositions set forth in Butler v. New York Life Insurance Co., 213 N.C. 384, 196 S.E. 317; Wells v. Jefferson Standard Life Insurance Co., 211 N.C. 427, 190 S.E. 744, and Gilmore v. Durham Life Insurance Co., 205 N.C. 251, 171 S.E. 57, and other cases cited in this connection by defendant are correct, the record reveals that defendant did not plead the defense of fraud, misrepresentation or concealment.
Since plaintiff's evidence did not make out an affirmative defense for defendant, the burden of proof is upon defendant to show such defense as would avoid the policy, Rhinehardt v. North Carolina Mutual Life Insurance Co., supra, and in making out its defense, it must be made according to its allegations. The court cannot take notice of any proof unless there is a corresponding allegation. Fox v. Hollar, 257 N.C. 65, 125 S.E.2d 334.
According to its pleadings, defendant seeks to avoid liability solely on the ground that deceased was uninsurable according to defendant's rules and standards for the policy when delivered on 2 December 1963, and defendant's proof of its defense must correspond with its allegations.
Thus the court correctly denied defendant's motion for judgment as of nonsuit. For the same reasons defendant's assignment of error as to the failure of the court to explain the law applicable to the case, based on Exceptions 15, 16, 17 and 18, is overruled.
We find no error in the court's instruction that there was no fraud involved in the case. The defense of fraud is not available to the insurer unless specially pleaded. King v. National Union Fire Insurance Co., 258 N.C. 432, 128 S.E.2d 849. The court's statement did not express an opinion as to the facts, the weight of the evidence, or the credibility of the witness. It was a correct statement of a matter of law.
Appellant contends that the trial judge erred in giving plaintiff's contentions and in that he gave contentions that were not supported by the evidence.
"Error in stating the contentions of a party must ordinarily be brought to the trial court's attention in time to afford opportunity for correction. But where the statement of a contention upon a material point includes an assumption of evidence entirely unsupported by the record, the misstatement must be held prejudicial, notwithstanding the absence of timely objection." Strong: N.C. Index, Vol. 4, Trial, § 37, p. 344. Appellant did not in apt time request further or different instructions as to the contention. It argues that the court's statement that plaintiff contended that defendant had failed to prove "that *199 the deceased was uninsurable" was prejudicial error because it had not included "according to defendant's rules and standards." In the same paragraph the court used this language: "* * * but that it was not an epileptic attack and was not a convulsion, was not such an occurrence or condition as would render the deceased uninsurable under any of the company's rules and regulations." (Emphasis ours) Reading the court's statement of contentions contextually, we find no prejudicial error.
The defendant called R. T. Tavnner, its Assistant Vice-President and Manager of Underwriting, as a witness. While being questioned by defendant's counsel, he testified that the company would have declined to issue the contract because of its regulations had it known that deceased had suffered a convulsion or epileptic attack between the date of the application and the date of delivery. Mr. Tavnner was then asked if Terrell had suffered a convulsion or epileptic attack after the date of the insurance application, "was Mr. Matthew Marion Terrell insurable according to the rules and standards of the Company on the second day of December, 1963?" Plaintiff's objection to this question was sustained. Had the witness been permitted to answer, his answer would have been: "He would not have been insurable." The trial court correctly sustained the objection. "A witness will not be allowed to give his opinion on the very question to be decided by the jury." Ponder v. Cobb, 257 N.C. 281, 126 S.E.2d 67. Moreover, the witness had just testified to facts with substantially the same meaning. Thus the sustaining of the objection could not have been harmful error.
There was conflicting evidence as to whether deceased was insurable according to the Life Insurance Company of Virginia's rules and standards on the date of the delivery of the policyDecember 2, 1963. This raised an issue of fact which was submitted to the jury upon evidence and a charge free of prejudicial error. The jury answered the issue in favor of plaintiff.
No error.
PARKER, C. J., took no part in the consideration or decision of this case.