#### MRS. WARDY HEADEN v. METROPOLITAN LIFE INSURANCE COMPANY.

(Filed 11 July, 1934.)

1. Insurance I lb — Right to avoid policy for misrepresentations in application held determined adversely to insurer by jury’s verdict.

The jury found from the evidence that insured had not been attended by a physician for serious disease within two years prior to making-application for the policy, and that insured had not had any serious disease of heart or kidneys prior to such application. The only defense interposed by insurer was that insured had made misrepresentations in her application relating to the matters passed upon by the jury. Held, plaintiff was entitled to recover, the verdict of the jury being determinative of the rights of the parties.

3. Appeal and Error A a: J lb—

The verdict of the jury upon conflicting, competent evidence, and the refusal of the trial court to set aside the verdict as being against the weight of the evidence are not subject to review upon appeal.

3. Appeal and Error K f—

Where judgment for plaintiff is affirmed on appeal under an erroneous belief that a verdict had been directed in plaintiff’s favor, a petition to rehear will be granted for the purpose of affirming the judgment upon the verdict of the jury.

Soi-ienck, J., took no part in the consideration or decision of this case.

*861PetitioN to rebear tbis case, reported ante, 210.

Tbe action is to recover on a policy of life insurance, issued 28 July, 1930, and providing tbat “if tbe insured is not in sound bealtb on tbe date hereof,” or if “witbin two years before tbe date hereof,” tbe insured has “been attended by a physician for any serious disease or complaint,” or before said date, has bad any “disease of tbe heart, liver or kidneys,” not specifically recited in tbe space for endorsements, “then, in any such case, tbe company may declare tbis policy void and tbe liability of tbe company in tbe case of any such declaration or in the case of any claim under tbis policy, shall be limited to tbe return of premiums paid on tbe policy, except in tbe case of fraud, in which case all premiums will be forfeited, to tbe company.”

Tbe defendant offered evidence tending to show tbat tbe insured was not in sound bealtb when tbe policy was issued; tbat witbin two years prior thereto she bad been attended by physicians for serious diseases, and tbat before said date, she bad bad diseases of tbe heart, liver and kidneys.

Tbe policy was issued without medical examination of tbe insured, and defendant’s agent at tbe time of soliciting tbe applicant, on being-invited to have a physician examine her, if be doubted tbe risk, stated be was “going to take a chance on tbe old lady.” Premiums were paid during tbe life of tbe insured. No fraud is pleaded or suggested.

Tbe case was tried upon tbe following issues:

“1. Was said Salem Knuekley attended by a physician or physicians for any serious disease or complaint witbin two years before 28 July, 1930? Answer: No.

“2. Had said Salem Knuckley bad any disease of tbe heart or kidneys before 28 July, 1930? Answer: No.

“3. "What amount, if any, is plaintiff entitled to recover of defendant? Answer: $320.00, with interest from November, 1931.”

Tbe court instructed tbe jury to answer tbe first two issues “Yes,”-if they found “tbe evidence as testified by tbe witnesses for tbe defendant and tbe record evidence”; and to answer them “No,” if they did “not find tbe facts as testified by those witnesses.”

Judgment on tbe verdict, from which tbe defendant appeals.

J. D. McCall for plaintiff.

Cansler & Cansler and R. M. Gray, Jr., for defendant.

Stacy, C. J.

Tbe burden of tbe petition to rehear is, tbat tbe clause in tbe policy, “or in case of any claim under tbis policy,” liability shall be limited, etc., is not affected by tbe provision, “nor shall payment be resisted on account of any misrepresentation as to tbe physical condition of tbe applicant, except in cases of fraud,” C. S., 6460, and for tbis *862position tbe cases of Reinhardt v. Ins. Co., 201 N. C., 785, 161 S. E., 528, and Gilmore v. Ins. Co., 199 N. C., 632, 155 S. E., 566, are cited as controlling authorities.

Tbe plaintiff, on tbe other band, contends that tbe case is governed by tbe decisions in Potts v. Ins. Co., ante, 257; Holbrook v. Ins. Co., 196 N. C., 333, 145 S. E., 609, and McNeal v. Ins. Co., 192 N. C., 450, 135 S. E., 300.

Tbe record does not call for a determination of tbe point. Tbe jury rejected tbe defendant’s evidence, and, on tbe verdict, tbe plaintiff is entitled to recover. Tbe questions debated on brief and in tbe certificate of counsel are not before us for decision. It is not a matter for review on appeal that tbe jury declined to believe tbe evidence of one of tbe parties, or that tbe trial court refused to set aside tbe verdict as against tbe weight of tbe evidence. Goodman v. Goodman, 201 N. C., 808, 161 S. E., 686.

We were originally in error in thinking that a verdict bad been directed for tbe plaintiff. Tbe inadvertence, however, was not against tbe appellant, but rather in its favor. Tbe case was brought back in order that it might be permitted to go off on tbe jury’s findings — tbe course it should have taken in tbe first instance. Thus, while tbe decision is placed upon other grounds, tbe result is tbe same. For this purpose only is tbe

Petition allowed.

Sohenok, J., took no part in tbe consideration or decision of this ease.