This is an action for the cancellation of a policy of insurance which was issued by the plaintiff Missouri State Life Insurance Company on 17 February, 1931, and was thereafter assumed by the plaintiff General American Life Insurance Company, on the ground that the issuance of said policy was procured by false and fraudulent representations made by the defendant Eugene B. Hardin in his application for said policy. The action was begun on 11 February, 1933.
The policy was issued on the application of the defendant Eugene B. Hardin, and insures the life of his infant son, Eugene B. Hardin, Jr., in the sum of two thousand dollars. It was understood and agreed that the premiums on the policy would be paid by the defendant Eugene B. Hardin. It is provided in the policy that "in the event of the death of Eugene B. Hardin, Sr., father of the insured, hereinafter referred to as purchaser, while no premium is in default, no further payment of premiums will be required, and this policy will continue in force as a fully paid up policy." It is also provided in the policy that "the company will waive the payment of further premiums if the purchaser becomes totally and permanently disabled, subject to the limitations and conditions hereinafter defined."
The application for the policy, which is in writing, was signed by the defendant Eugene B. Hardin, at Wilmington, N.C. on 12 February, 1931, and contains, among others, the following questions and answers, together with the applicant's certificate that said answers are full, correct, and true: *Page 24
"9. Has the purchaser had any disease or injuries, or received any medical or surgical advice or attention within the past ten years? If so, give details.
"Disease or injury: `Flu.' Date: `March, 1922.' Duration: `4 days.' Complications: `None.' Result: `Recovered.' Name medical attendant: `Infirmary, U. of N.C. Chapel Hill, N.C.'"
"11. Is the purchaser now in good health? `Yes.'"
The application was solicited by L. K. Breeden, agency supervisor of the plaintiff Missouri State Life Insurance Company, and was signed by the defendant Eugene B. Hardin, as purchaser, in his presence and in the presence of Leslie R. Hummel, local agent of the plaintiff, at Wilmington, N.C. The questions in the application were read to the applicant by L. K. Breeden, who wrote the answer to each question in accordance with the response of the applicant. The application, after it was signed by the applicant, was forwarded by its agents, with their approval endorsed thereon, to the plaintiff, and was received by the plaintiff at its home office in the city of St. Louis, Missouri, where it was in due course considered and approved by its underwriting department. No medical examination of the applicant was required by the plaintiff. The policy was issued by the plaintiff in accordance with the application as signed by the defendant and approved by its underwriting department. It has been in full force and effect since its delivery. All premiums due on the policy prior to the commencement of this action have been paid.
The evidence at the trial tended to show that for some time prior to July, 1928, the defendant had observed that he was at times unsteady in his walk or clumsy; that he would have a feeling that he was about to fall forward, especially when he was descending a stairway, which caused him to catch at and hold on to the rail or banister of the stairway. At times he felt a numbness in his fingers. He had observed these and other symptoms, from time to time, since he was a student at the University of North Carolina, in 1922, and spoke of them to his mother in 1928. At her suggestion, the defendant consulted Dr. David R. Murchison, of Wilmington, N.C. who examined him, and advised him to consult Dr. E. J. Wood, also of Wilmington, N.C. The defendant consulted Dr. Wood, who examined him, but did not inform the defendant his opinion as the result of the examination. Dr. Wood reported to Dr. Murchison, who then advised the defendant to go to Baltimore, Maryland, and there consult Dr. Walter E. Dandy. The defendant went to Baltimore and consulted Dr. Dandy, who examined him, and advised him to consult Dr. F. R. Ford, of Baltimore, Maryland. The defendant consulted Dr. Ford, who examined him, but did not inform the defendant his opinion as to his condition. Dr. Ford reported to Dr. Dandy, who *Page 25 thereupon advised Dr. Murchison, at Wilmington, by letter dated 19 July, 1928, that he and Dr. Ford were of the opinion that the defendant was suffering with disseminated schlerosis, or creeping paralysis. This disease is progressive in its nature and is incurable. Dr. Murchison consulted with a brother of the defendant and informed him of the diagnosis made by all the doctors who had examined the defendant. They both agreed that it was best for the defendant, who was then about 25 years of age, not to inform him that he was suffering with an incurable disease. Dr. Murchison told the defendant that there was nothing the matter with him. When the defendant signed the application for the policy involved in this action, he did not know that he was them suffering with an incurable disease, but, on the contrary, was of the opinion that he was in good health. He was at that time employed in his father's drug store in Wilmington and continued in such employment until some time in 1932, when he was informed by a doctor in Philadelphia that he was suffering with an incurable disease — multiple schlerosis, or creeping paralysis. The defendant is now and has been since some time in 1932 totally and permanently disabled, within the terms of the policy. When the plaintiffs were informed of defendant's condition, they began this action to cancel the policy. At the date of the issuance of the policy the plaintiffs did not know that the defendant was then suffering with an incurable disease, or that he had consulted Dr. Murchison, Dr. Wood, Dr. Dandy, and Dr. Ford, in July, 1928.
At the close of all the evidence the defendant's motion for judgment as of nonsuit was allowed, and plaintiffs duly excepted.
From judgment dismissing the action as of nonsuit the plaintiffs appealed to the Supreme Court. It is provided by statute in this State that when there was no medical examination of the applicant for a policy of life insurance which has been issued by a company doing business in this State, the policy shall not be rendered void, nor shall payment be resisted on account of any misrepresentation by the applicant as to his physical condition at the date of the application, except in cases of fraud. C. S., 6460. This statute is applicable to the instant case.
There was no evidence at the trial of this action tending to show any false and fraudulent representation by the defendant Eugene B. Hardin in his application for the policy, which was issued on said application by the plaintiff Missouri State Life Insurance Company, with respect to the physical condition of the applicant at the date of *Page 26 application. It is true that all the evidence shows that he was suffering then with an incurable disease, but the uncontradicted evidence shows that the defendant was ignorant of this fact, and that he had been assured by a physician whom he had consulted in July, 1928, that there was nothing the matter with him at that time. There is certainly no evidence from which the jury could have found that the statement made by the applicant in answer to the 11th question in the application was fraudulent. All the evidence shows the good faith of the defendant when in response to the 11th question he stated that he was then in good health.
It is further provided by statute in this State that all statements in an application for a policy of insurance, or in the policy itself, shall be deemed representations and not warranties, and that a representation, unless material or fraudulent, will not prevent a recovery on the policy, C. S., 6289. This statute is applicable to the instant case.
There was no evidence tending to show that the answer of the defendant to the 9th question contained in the application was false or fraudulent. The evidence shows that the answer, while true and correct as certified by the defendant, was not full. It appears from the answer that the question was not answered categorically. The answer as written in the application by the agent of the plaintiff was accepted by him, and by the underwriting department of the plaintiff, as satisfactory. There was no evidence tending to show that the plaintiff Missouri State Life Insurance Company, before issuing the policy which it now seeks to have canceled, notified the defendant that his answer to the 9th question was not satisfactory. While the plaintiff had a right to all the information sought to be elicited by the question, when it issued the policy without requiring of the defendant a categorical answer to the question, it waived this right, and in the absence of fraud is not entitled to have the policy canceled upon its contention that the defendant wrongfully concealed the fact that he had received medical advice or attention within the ten years preceding the date of the application. All the evidence shows that if the defendant had been informed before the issuance of the policy that the plaintiff regarded the fact that he had been examined by doctors, and informed by them that there was nothing the matter with him, as material, he would have so informed the plaintiff.
The cases in this and other jurisdictions cited by counsel for the plaintiff do not sustain their contention that there was error in the judgment of the Superior Court in this action. The judgment is
Affirmed. *Page 27