Reinhardt v. Life & Casualty Insurance

Beog-deN, J.

The policy of insurance construed in Gilmore v. Ins. Co., 199 N. C., 632 , 155 S. E., 566 , contained a limitation to the effect that if the insured should die from Bright’s disease before the policy had been in force for two years that the liability of the insurer was limited to the return of premiums paid on the policy. Such limitation was approved by the court upon authority of Spruill v. Ins. Co., 120 N. C., 141 , 27 S. E., 39 . In addition the court ruled that the principle announced in Holbrook v. Ins. Co., 196 N. C., 333 , 145 S. E., 609 , did not apply *787 to such reasonable limitations contained in the policy itself. The case at bar, therefore, falls directly within the principle of the Gilmore case, supra.

The plaintiff, however, insists that there was a directed verdict in favor of the defendant. It appears that the defendant, having admitted the allegations of the complaint, set up as a further defense that the policy was obtained by means of fraud. Thereupon the defendant, assuming the burden of proof, proceeded to offer evidence to sustain the defense. The record discloses that at the conclusion of plaintiff’s evidence the court instructed the jury “to answer the issue no.” The issue submitted was the usual issue of indebtedness.

It is a general principle of law that the trial judge cannot direct a verdict in favor of the party upon whom the burden of proof rests.

Bank v. McCullers, 200 N. C., 591 , 157 S. E., 869 . This principle, however, has been applied to cases in which the trial judge directed a verdict upon the pleadings or in cases where the evidence was conflicting. The case at bar is governed by the principle announced by McIntosh North Carolina Practice & Procedure, p. 632, as follows: “If the facts are admitted or established, and only one inference can be drawn from them, the judge may draw the inference and so direct the jury,” etc. The record discloses that there was no dispute with respect to the limitation set out in the policy, nor was there any dispute or conflict of evidence with respect to the fact that the insured was suffering with Bright’s disease. Consequently, upon the facts presented, the instruction of the trial judge will not be held for reversible error.

It appears that the defendant had tendered to the plaintiff the amount of premiums, to wit, $4.02, and cost up to the time of tender. Obviously, the plaintiff is entitled to judgment for the amount of premium paid and cost up to the time of tender.

Modified and affirmed.