
    LUCIE C. CARSON v. THE NATIONAL LIFE INSURANCE COMPANY et al.
    (Filed 15 March, 1916.)
    1. Appeal and Error — Assignments of Error — Immaterial Error.
    A new trial will not he ordered on appeal when the assignments of error, considered as a whole, are not regarded of sufficient importance, or so material, as to disturb the verdict, and when, dealt with seriatim, there is no technical error.
    2. Same — Insurance, life — Policy—Assignment—Evidence.
    Where in an action upon a policy of life insurance the plaintiff relies solely on the validity of an assignment thereof made by deceased, and the jury has found that the physical assignment had been made, but that it was procured by fraud, the exclusion of her testimony to the effect that the policy sued on was her property is immaterial.
    3. Appeal and Error — Insurance, Life — -Policy — Assignment — Evidence — Yerdict.
    In this action upon a policy of life insurance the only question presented on appeal was whether there was error committed by the jury in rendering a verdict adverse to plaintiff on the issue of whether an assignment of the policy was procured through fraud. Held, excluding testimony of plaintiff of negotiations before the assignment was not erroneous, the assignment being in writing and in evidence; and it is further held in this case that the evidence was objectionable, it being of conversation between the plaintiff and her husband, and irrelevant, not bearing upon the issue of fraud.
    
      i. Evidence — Deceased—Transactions—Surety—InteresR-Trials.
    In an action involving the validity of an assignment, by the insured, since deceased, of a life insurance policy, testimony of the surety on the plaintiff’s prosecution bond as to what occurred at the time is incompetent under the statute, he being interested in the event of the action, and further incompetent when the proposed evidence appears in the writing itself.
    5. Evidence — Deceased—Insurance—Policies—Assignments—Evidence.
    Where an action upon a policy of life insurance depends upon the validity of an assignment of the policy to the plaintiff, which had been made by the deceased insured, it is competent for the widow of the deceased to testify as to an agreement made in the presence of the plaintiff’s husband, also present at the trial, and who was acting for her, that the deceased was to pay back the money and get the policy again.
    6. Appeal and Error — Questions and Answers — Harmless Error.
    Certain questions asked a witness in this case, involved in an issue of fraud in securing an assignment of a life insurance policy, taken together, are held competent, though the first may be objectionable, but this and the second question being preliminary to the third, which was competent and involved them, it is not held as reversible error.
    7. Contracts — Fraud—Burden of Proof — Insurance—Policies—Assignments.
    In an action involving the issue as to whether an assignment of a life insurance policy had been procured by fraud, the burden of proof is on the party alleging the fraud, when it is shown that the insured had signed the writing.
    Appeal by plaintiff from Bond, J., at August Term, 1915, of Pitt.
    Civil action to recover the amount of a certain policy of insurance issued by the defendant insurance company on the life of Eason Matthews and payable to his estate. The administrator of Matthews is a party to- the action.
    The plaintiff claims that she is the owner of said policy by reason of an assignment made to her by the insured. The defendants deny the execution of the assignment, and allege that if it was executed it was procured by fraud.
    The jury returned the following verdict:
    1. Did the insured, under the policy in suit, fail to pay premium due on 5 May, 1911, or within thirty-one days thereafter, as alleged, and thereby cause policy to become lapsed? Answer: “Yes.”
    2. Did Eason Matthews sign certificate of health dated 3 July, 1911? Answer: “No.”
    
      3. Was said policy reinstated upon consideration of tbe certificate of good bealtb bearing date 3 July, 1911, and in reliance upon statements therein? Answer: “Yes.”
    4. Did said certificate of bealtb, if made by Eason Matthews, represent that insured was in good bealtb on tbe date thereof, to bis best knowledge and belief? Answer: “Yes.”
    5. Was Eason Matthews, on 3 July, 1911, in good bealtb, tbe best of bis knowledge and belief? Answer: “No.”
    6. Did tbe insured execute tbe assignment of tbe policy in suit to Lucy J. Carson, tbe plaintiff, as alleged? Answer: “Yes.”
    7. If so, was said assignment procured through tbe fraud of S. T. Carson, agent of tbe plaintiff, as alleged? Answer: “Yes.”
    8. Is tbe defendant company indebted on said policy, and, if so, to whom, and in what amount? Answer: “No; owes nothing on it.”
    Judgment was entered upon tbe verdict in favor of tbe defendant insurance company, and the plaintiff appealed.
    
      Julius Brown, S'. J. Everett, and W. F. Evans for plaintiff.
    
    
      D. H. Bland, L. G. Cooper, and Harry Slcmner for defendant.
    
   AlleN, J.

It is stated in tbe case on appeal, as an admission of tbe plaintiff made on tbe trial, that she has no title to tbe policy of insurance sued on except by virtue of tbe assignment made to her by tbe insured, and as tbe jury has found that this assignment was procured by fraud, she cannot recover while this finding stands.

It is, therefore, only necessary to examine tbe assignments of error bearing on this issue unless there is error in these, and upon full consideration of tbe record we find none.

If these assignments are considered as a whole, they are not of sufficient importance and were not so material as to justify disturbing tbe verdict, and when dealt with seriatim there is no technical error.

1. Tbe plaintiff, who was examined as a witness, was asked tbe question, “Was policy No. 207800, issued by tbe National Life Insurance Company on tbe life of Eason Matthews, your property, and is it now your property?” to which she would have answered “Yes.” Tbe question and answer were excluded, and tbe plaintiff excepted.

It is sometimes competent for a party to testify to tbe ownership of property which is in dispute, but as tbe sixth issue, finding that tbe assignment was executed to tbe plaintiff, was answered in her favor, and as tbe only question in controversy on this phase of tbe case was on tbe issue of fraud in procuring tbe assignment, tbe question and answer are immaterial.

2. Tbe same witness was asked, “State if you know of any negotiations for said policy before tbe assignment to you,” to which she would have answered, “Yes, sir; we bad talked of my buying tbe policy.” Tbis was excluded, and tbe plaintiff excepted.

Tbis question assumes tbat there was an assignment of tbe policy, and was asked before tbe assignment was introduced in evidence, and tbe answer is objectionable upon tbe additional ground tbat it purports to give an account of a conversation between tbe plaintiff and ber busband. Again, it does not bear upon tbe issue of fraud, but upon tbe question of tbe purchase and assignment of tbe policy.

3. S. T. Carson, busband of tbe plaintiff, and who was tbe only other person present at tbe time tbe assignment was made, was examined as a witness and was asked, “Did you explain to Mr. Matthews what be .was signing when be signed tbis paper?” to which tbe witness would have replied tbat be did. Tbis evidence was excluded, and tbe plaintiff excepted.

S. T. Carson is a surety on tbe prosecution bond of tbe plaintiff, and as such was interested in tbe event of tbe action and could not testify to a conversation with tbe deceased, under section 1631 of Revisal. Mason v. McCormick, 75 N. C., 263.

Again, tbe only thing proposed to be proved by tbe witness is tbat be told tbe insured tbat tbe paper be was signing was an absolute assignment of tbe policy, and tbis appeared from tbe paper itself.

4. Mrs. Matthews, widow of tbe insured, who was examined as a witness, was asked, “State if you know tbe contract and agreement between Mr. Carson and your busband at tbe time be took out tbis policy,” and she answered: “Tbe agreement was tbat Mr. Carson was to pay him bis money back, with tbe interest on it, and Mr. Carson was to give him up tbe policy.” Tbis was objected to by tbe plaintiff.

We see no reason for refusing to permit the witness to speak of tbe agreement with tbe busband of tbe plaintiff, who was present at tbe trial, and there is nothing to show tbat she was' not speaking of ber own knowledge.

It also appears from tbe evidence of S. T. Carson tbat be gave substantially tbe same account of tbe transaction at tbe time tbe policy was taken out. Tbis evidence also refers to tbe taking out of tbe policy and not to fraud in procuring its assignment.

5. Tbe same witness was permitted to state tbat “Eason Matthews was not able to go to Carson, so sent for him to come, but never got him there.” Tbi.s was objected to by tbe plaintiff.

Tbis bears remotely on tbe issue of fraud, but as she was testifying of ber own knowledge so far as tbe record discloses, tbe evidence was competent.

6. J. W. Coburn, administrator of Eason Matthews, was examined as a witness, and tbe following questions and answers appear in bis evidence, to which tbe plaintiff excepted:

Q. Did you ever see Mr. Carson for Mr. Matthews about returning tbe policy? Answer: “Yes, during tbe year 1911.”

Q. State if you, at tbe instance of Mr. Matthews, went to Mr. Carson to get tbe policy. Answer: “Yes, sir.”

Q. State what you said to Mr. Carson in reference to tbe policy? Answer: “I went to Mr. Carson and told him Mr. Matthews got me to come to him and tell him be wanted to take tbe policy up.”

Tbe first of these questions might be objectionable, standing alone, because it invplves inferentially a declaration of tbe insured, Matthews; but this and tbe succeeding questions were only preliminary to tbe last one, and tbe answer to tbe last, which give£ an account of tbe conversation between tbe witness and S. T. Carson, was competent and involves all that was in tbe preceding questions. When be told Mr. Carson that tbe insured got him to come to him and tell him be wanted to take up tbe policy, it was equivalent to saying that be went to see him at the instance of Mr. Matthews.

7. His Honor charged tbe jury, among other things, as follows: “If you find that Matthews signed tbe paper voluntarily, and if be knew what was in tbe paper that bis mark was being made to, then tbe burden would be on tbe defendant to show by tbe greater weight of tbe evidence that it was procured by fraud.” This was excepted to by tbe plaintiff, but it properly places tbe burden of proof on tbe defendant, and there is. nothing of which tbe plaintiff can justly complain in tbe charge.

There are exceptions bearing upon tbe other issues, some of them presenting questions that are not free from difficulty, but, as we have before stated, it is not necessary to consider them, in view of tbe finding lipón tbe seventh issue, which makes it impossible for tbe plaintiff to recover.

No error.  