Shuford v. Life Insurance Co. of Virginia

AlleN, J.

The principal exceptions relied on by the defendant are:

(1) That as a waiver of the proofs of death is not distinctly pleaded, it was error to submit the issue of waiver to the jury, or to receive evidence bearing on the issue.

(2) That there is no evidence of a waiver in that the demand made on the defendant was by Mrs. Tilson, and that she was not entitled to receive the money under the policy.

(3) That the evidence is insufficient to establish the death of the insured.

1. It is usually necessary to plead a waiver (Mfg. Co. v. Assurance Co., 106 N. C., 28); but when it appears that upon appeal from, a justice of the peace, in whose court the pleadings are generally informal, an issue has been fairly tried, and both parties have had full opportunity to produce and introduce their evidence, this Court would not disturb the verdict and judgment for failure to do so, but would in the exercise of its discretion amend the pleading here, as it has the power, to do. Corporation Commission v. Bank, 164 N. C., 358.

The evidence of waiver offered by the plaintiff consists of. conversations with agents of the defendant, testified to by the wife of the insured, and there is no suggestion that the agents with whom she had the conversations could not be produced, or that they would contradict her.

If, therefore, we should sustain the first contention of the defendant we would not set aside a finding of fact based upon evidence, which, so far as the record discloses, is undisputed, because of a failure to file a formal plea. ¥e are of opinion this ought not to be done, and that this is a proper case for allowing the amendment.

2. The policy provides that the defendant may pay to the wife of the insured, and that her receipt shall discharge liability under the policy. If so, she had the right to demand payment, and the refusal to pay except upon conditions impossible of performance would be equivalent to a denial of liability and would be a waiver of the proof of death. Doggett v. Golden Gross, 126 N. C., 477; Gerringer v. Ins. Co., 133 N. C., 410.

3. The evidence of death is fully as strong and conclusive as that sustained in Sizer v. Severs, 165 N. C., 500.

Upon a review of the whole record we find

No error.