Bryant J. PARKER
v.
Mildred S. HENSEL and Robert A. Hensel, by his guardian ad litem, Mildred S. Hensel, and Allstate Insurance Company, a corporation.
No. 527.
Supreme Court of North Carolina.
May 4, 1955.*202 Jones & Small, Charlotte, for defendants-appellants.
Welling & Welling, Charlotte, for plaintiff-appellee.
DENNY, Justice.
The allegations of the plaintiff with respect to fraud and upon which he is relying in his effort to have the release executed by him set aside, are in substance as follows:
That, after long negotiations, the plaintiff agreed to accept the offer made by the claims adjuster of Allstate Insurance Company; that the offer was to pay the plaintiff $1,000 and to pay all the hospital and doctor bills incurred by the plaintiff as a result of the said accident and injuries. That after reaching the above agreement, the claims adjuster left and returned on 6th November, 1953 and represented to plaintiff that his "bill at Charlotte Memorial Hospital was $315.00 and his bill with Dr. F. Wayne Lee was $150.00." Whereupon, *203 the release was executed and plaintiff received a draft payable to him in the sum of $1,000, and drafts in the sum of $315 and $150 were delivered to the hospital and to Dr. Lee, respectively. That the claims adjuster of the defendant Allstate Insurance Company, on 6th November, 1953, knew that the plaintiff's hospital bill was $607.11 and that Dr. Lee's bill was $190; that without the plaintiff's knowledge, his own insurance had been applied to his hospital bill in the sum of $292.11 and to his doctor bill in the sum of $40. That as a direct and proximate result of the fraudulent misrepresentations of the insurance adjuster, "the maximum benefits of the plaintiff's accident and health insurance policy were used and applied to the plaintiff's hospital and doctor bills without the plaintiff's knowledge and consent; and that the plaintiff's maximum benefits for the policy year of his accident and health insurance policy were used thereby leaving the plaintiff without accident and health coverage for the remainder of the policy year."
The circumstances under which the hospital and Dr. Lee were paid the maximum benefits available under the provisions of the plaintiff's accident and health insurance policy, are not disclosed by the plaintiff's pleadings. Neither do the pleadings disclose when such payments were made. Likewise, there is nothing in the pleadings to indicate that the claims adjuster, representing the defendants, had anything to do with the application of these benefits. It does appear from the plaintiff's pleadings, however, that after such application was made, the outstanding bills of Charlotte Memorial Hospital, incurred by the plaintiff, on 6th November, 1953, amounted to $315, and that the bill of Dr. Lee was $150. The release states explicitly that it was executed in consideration of the payment of $1,000 to the plaintiff and payment of $315 to Charlotte Memorial Hospital and $150 to Dr. F. Wayne Lee. Hence, in our opinion the allegations in the amended complaint are insufficient to constitute actionable fraud.
In order to establish actionable fraud, certain essential facts must appear. These are (1) the misrepresentation of a material fact, false within the knowledge of the party, making it; (2) made with the intent to deceive; and (3) which in fact does deceive the other party to his injury. McIntosh on the Law of Contracts, Synopsis, Page XXXI; Lamm v. Crumpler, 240 N.C. 35, 81 S.E.2d 138; Cofield v. Griffin, 238 N.C. 377, 78 S.E.2d 131; Lillian Knitting Mills Co. v. Earle, 237 N.C. 97, 74 S.E.2d 351; Ward v. Heath, 222 N.C. 470, 24 S.E.2d 5.
Moreover, if it be conceded, for the purpose of argument, that the claims adjuster knowingly and falsely misrepresented the facts with respect to the bills in controversy, in order to reduce the liability of his company, what damage or injury has the plaintiff suffered? When the plaintiff's pleadings are analyzed with respect to the allegations of fraud, the injury allegedly sustained as a result of such alleged fraud is limited exclusively to the fact that the plaintiff by reason of the application of the maximum benefits under his accident and health policy to the payment of his hospital and doctor bills, was left without accident and health coverage for the remainder of the policy year. The pleadings are silent as to when the policy year ended. Furthermore, there is no allegation to the effect that as a result of the lack of such coverage the plaintiff has suffered any pecuniary loss.
In view of the conclusion we have reached, we deem it unnecessary to consider the defendants' exception to the refusal of the court below to allow their motion to strike certain allegations from the plaintiff's amended reply.
The demurrers should have been sustained and the ruling of the court below to the contrary is
Reversed.
BARNHILL, C. J., took no part in the consideration or decision of this case.