(dissenting). I would affirm the judgment of the lower court.
I think it is quite important to keep in mind that Question 4 did not ask Mrs. Webb to state what the child’s physician had said with respect to the child’s health, but asked whether any physician had ‘ ‘ever given an unfavorable opinion of the child’s health!”
If the inquiry had been what Mrs. Webb- had been told, then I would concur in the majority opinion. However, in view of the nature of the question, and Mrs. Webb’s answer thereto, I cannot.
The question, “has any physician ever given an unfavorable opinion of the child’s health?”, asked for nothing more than Mrs. Webb’s evaluation of Dr. Taber’s final statement to her with respect to her child. And, under Mrs. Webb’s sworn testimony, as was found by the trial judge, Dr. Taber did no more than tell Mrs. Webb the child had a heart murmur, that there was no cause for worry, since he believed the heart murmur would clear up in time.
I do not consider this such an unfavorable opinion of the child’s health as that the mother should have had it in *326mind and should, herself, have thought it to be the kind of unfavorable opinion the policy question was asking about.
Upon fair evaluation, instead of it being an unfavorable opinion, as it was given to Mrs. Webb and as she understood it, she was not to worry about it as the doctor believed it would clear up in time.
I am aware that Dr. Taber in rationalizing on this matter, gave evidence somewhat to the contrary but, I am also aware that he prefaced his testimony by stating that he did not remember what he had said to Mrs. Webb. And, all of his evidence to the contrary of Mrs. Webb’s is made from the standpoint of the child’s later death from a heart involvement.
Since the trial judge found as a fact that Dr. Taber did advise Mrs. Webb as she testified, that there ivas no cause for worry, I think this Court is bound to take the trial judge’s finding.
It is the settled rule that the credibility of witnesses is for the trial court, and an appellate court will not disturb the trial judge’s finding in regard thereto, except upon documentary or other like evidence. Early v. Street, 192 Tenn. 463, 241 S.W.2d 531; Finks v. Gillum, 38 Tenn.App. 304, 273 S.W.2d 722; Allen v. Goldstein, 40 Tenn.App. 308, 291 S.W.2d 596; Hall v. Britton, 41 Tenn.App. 72, 292 S.W.2d 524.
While it is unquestionably the rule that a life insurance policy may be voided for a material misrepresentation increasing the insuror’s risk of loss, without the element of wilful fraud or deliberate intent to deceive, Robbins v. New York Life Ins. Co., 18 Tenn.App. 70, 72 S.W.2d 788, this very statement of the rule contemplates that there must be a material misrepresentation. And, that element *327is totally lacking in this case since Mrs. Webb did no more than give her honest evaluation of the doctor’s reassurance to her that she need not worry about the child’s condition.
I think it should be noted that it lies exclusively within the power of the insurance company to word the questions in its policies so as to exact the information needed. And the asking of questions that do not exact explicit answers ought not to be encouraged by interpretations of the intent of the questions in favor of the insuror. If heart murmurs make infants uninsurable, an exact question could and should be asked in regard thereto.
It seems hardly fair to forfeit the policy when the mother of an infant child who is the picture of health, as this baby was, places a favorable interpretation on a reassuring statement made to her by her doctor in answer to an inexact question — a question which allows the company to have it both ways.
The importance of this proposition is pointed up by the majority opinion which holds that Mrs. Webb was obligated to relate to the agent taking her application the statement made to her by the baby’s doctor. The point I seek to make is that she was not asked this question, although she could have been. Yet, we are forfeiting her policy as though she had been. In other words, an inexact question is being construed more favorably to the insurer, than to the insured and under all of our cases is a mistake.
I remember when insurance policies asked exact questions. Of course, some of these questions discouraged applications for insurance. But when they were answered the insured and the insurer both knew where they stood.
*328Being of this opinion, it necessarily follows that I cannot agree with the part of the opinion which would forfeit the policy because Mrs. Webb answered “no” to the question, whether the child had “any deformity, physical or mental defects”.
Since Mrs. Webb’s baby was the picture of health, apparently perfect in its body and mind so far as she could see and tell, and had only a condition with respect to which her doctor had reassured her as above indicated, her negative answer to this question could not forfeit the policy.
T.C.A. sec. 56-1103 was long ago said to be remedial in nature, intended to relieve against the hardships arising from the enforcement of the common law as to warranties in insurance policies. Hartford Life Ins. Co. v. Stallings, 110 Tenn. 1, 72 S.W. 960; Continental Fire Ins. Co. v. Whitaker & Dillard, 112 Tenn. 151, 79 S.W. 119, 64 L.R.A. 451; Stubblefield v. Mutual Benefit Health & Acc. Ass’n., 11 Tenn.App. 411. So, that a policy cannot be avoided under this statute simply because the facts as they develop after the policy has been issued are contrary to the facts as they appear in the light of the applicant’s answers. But, the policy can only be forfeited under the statute when in fact there has been a misrepresentation. Where there is no misrepresentation, and the questions are honestly answered according to the best knowledge of the insured, there can be no forfeiture or avoidance of the policy.
It would not be right to conclude this opinion without mentioning that, although after the baby died Dr. Taber had something to say about what he likely would or would not have done or said, it is still a fact that the baby’s physical condition made so little impression on him that *329Re was unable to recall just exactly what he did say to Mrs. Webb. And this, in and of itself, as much as anything else, sustains and justifies Mrs. Webb’s conclusion that she had not been given an unfavorable opinion concerning the child’s health.
So, being convinced there was no misrepresentation of the facts as known to Mrs. Webb, I would affirm.