#### J. B. BARROW v. PHILADELPHIA LIFE INSURANCE COMPANY.

(Filed 6 October, 1915.)

1. Insurance, Life — Application—Medical Certificate.

Where recovery upon a policy of life insurance is resisted upon the alleged grounds that the insured has made false statements in his application, as to his having palpitation of the heart and other organic troubles, the plaintiff may introduce in evidence the medical certificate of the company’s regular medical examiner, attached to the policy, tending to corroborate the contention of the plaintiff that the'deceased was in good health at the time of the issuance of the policy, and in contradiction of the defendant’s evidence on the question.

2. Same — Evidence.—Medical Expert.

Where an insurance company resists payment of matured life insurance under its policy, and the certificate of the company’s medical examiner, attached to the policy, has been introduced in evidence, it is competent to ask a medical expert witness whether, upon the matters stated in the certificate, the insured could have had heart trouble at the time, when the question is material to the controversy.

3. Insurance, Life —Application —Statements —Physicians —Consultations — Evidence — Trials—Instructions.

In this case it is contended by a life insurance company, as a defense to the payment of its matured policy, that the insured had untruly stated in his application that he had not previously consulted other physicians than those he has named, and there is evidence that he had conversations with other physicians about his physical condition. The charge is approved as to whether these conversations were merely incidental or amounted to a consultation.

Appeal by defendant from Garter, J., at February Term, 1915, of CRAVEN.

Moore <& Dunn for plaintiff.

Rouse & Land for defendant.

Clark, C. J.-

This action is for recovery of tbe amount of an insurance policy upon tbe life of ~W. M. Bagley wbieb bad been duly assigned by bim to tbe plaintiff. Tbe defendant alleged tbat tbe insured in bis application bad made misrepresentations as to tbe name of tbe last physician wbo bad been consulted by bim prior to tbe application, and also tbat be bad untruly represented therein that be was in good health at tbe time; that be bad never bad any palpitation or any disease of tbe heart nor chronic dyspepsia or disease of tbe stomach. These allegations were denied and raised issues of fact which were all found by tbe jury in favor of tbe plaintiff.

Tbe first four assignments of error were abandoned. Tbe fifth assignment was tbat tbe court permitted the admission of tbe medical certificate of Dr. Loftin which was attached to tbe application, it being shown *573that he was the regular medical examiner of said company. This certificate was competent because it was part of the application and tended to corroborate the contention of the plaintiff that the deceased was in good health at the time of the issuance of the policy and was competent in contradiction of the allegations of the witnesses of defendant concerning the conditions under which the policy was issued.

The sixth assignment of error was that a physician was asked the hypothetical question, if this statement annexed to the application by the medical examiner for the defendant was true, whether the applicant could have had heart trouble. "We are aware of no ground upon which this testimony could have been excluded. It was expert evidence which would materially aid the jury in coming to a conclusion as to the disputed fact whether the applicant had misrepresented his condition in that respect.

Assignments of error 7, 8, 9 and 10 are to the charge of the court on the second issue. This charge submitted to the jury whether they should find upon the facts deposed that certain conversations between the applicant and one or more physicians was merely an incidental matter or amounted to a consultation which made untrue the representation that the last physician consulted was Dr. Jones, in 1897, as stated in the application. We think the matter was fairly presented in the charge, and the jury found it against the defendant. They found that the deceased did not consult these doctors as physicians or professionally.

The case turned almost entirely upon disputed matters of fact, which were correctly presented to the jury under a very clear and impartial charge by the trial judge, and upon examination of all the assignments of error we do not find that a more minute discussion is needed. The applicant died in a few months after the policy was granted, and the defendant seems to have thought that, therefore, he must have been in bad health at the time of the application and had made misrepresentations. But the jury, upon all the evidence, found contrary to this contention.

No error.