#### MAUDE PATTON ANTHONY v. TEACHERS PROTECTIVE UNION.

(Filed 28 February, 1934.)

1. Insurance I b — Misrepresentation in this case held not material and was not adequate cause for cancellation of policy.

Plaintiff, in ber application for tbe policy in suit, failed to disclose in her written answer to a written question, that she had been treated within five years prior to the application by a physician, and the policy provided that insurer might cancel same for misleading statements in the application. The verdict of the jury, supported by evidence, established that the treatment which plaintiff did not reveal in her application was for an illness other than the cholecystitis causing the disability sued on, that prior to the application for the policy plaintiff had not suffered from cholecystitis, and that for five years prior to the application for the policy plaintiff had had no departure from good health other than that disclosed on the application. Held, the failure of plaintiff to disclose the treatment by the physician on the application was not a suppression of a material fact and was not adequate cause for cancellation of the policy. C. S., 6289.

2. Trespass A d — Definition of forceable trespass.

Forceable trespass is a high-handed invasion of the actual possession of another, he being present and forbidding, and although actual force need not be used, it is necessary that the trespasser by acts or threats *8plainly imply the purpose to use force against resistance, and create the reasonable apprehension that the party in possession must yield to avoid a breach of the peace, and even if the party’s entry is peaceable he may become guilty of forceable trespass if he thereafter puts himself in open opposition to the occupant.

3. Trespass B c — Evidence of forceable trespass held insufficient.

Evidence tending merely to show that plaintiff was nervous and that defendant talked to her in a loud voice and accused her of having made false statements in her application to defendant’s insurance company and that both parties became angry, and that thereafter plaintiff’s brother put defendant out without the slightest opposition on his part is held insufficient to be submitted to the jury on the issue of forceable trespass, the evidence failing to disclose any offer of violence or the use of profane or indecent language, or threats, or any force or assault.

Appeal by defendant from Finley, J., at March Term, 1933, of Bueke.

The complaint states two causes of action. The first is for loss founded upon disability under a health and accident policy issued to the plaintiff by the defendant.

The plaintiff made application in writing for membership in the Teachers Protective Union, on 1 October, 1931. A certificate of membership, containing the following clause, was issued to her on 8 October, 1931: “In consideration of the statements, conditions and provisions of the application for membership, . . . the articles of incorporation and the constitution and general laws of the union, and all amendments thereto, which are on file in the office of the supreme secretary and are now hereby made a part of this certificate of membership.” The certificate provides that “Benefits for sickness shall not be paid for any illness contracted prior to or within thirty (30) days after the date of the certificate of membership.” The same provision is in the constitution and general laws. The certificate also provides that “The supreme officer shall have power to cancel a certificate of membership when it becomes evident that false or misleading statements were made in the application for membership or in application for benefits; or when it shall have been established that disability, for which claim is made, had its inception prior to membership in the union under this certificate.” The same provision is in the constitution and general laws.

The plaintiff became sick on 7 January, 1932, and remained incapacitated and confined to her home during the time for which she makes claim. She filed proof of claim for benefits and a representative of the defendant notified her that on account of cholecystitis with which she was suffering and her failure to inform the defendant that she had been treated for this disorder she was not entitled to benefits under her policy.

*9Tbe second cause of action is assault and forceable trespass committed by E. L. Cunningham, agent of tbe defendant,, when be called at ber borne to settle tbe controversy between tbe defendant and berself growing out of ber claim of loss.

Tbe jury answered tbe issues as follows:

1. Did tbe plaintiff, prior to 1 October, 1931, bave cbronic cbolecysti-tis or cbronic inflammation of tbe gall bladder? Answer: No.

2. Had tbe plaintiff, prior to 1 October, 1931, been treated by Dr. J. J". Kirksey for cbronic cbolecystitis or cbronic inflammation of tbe gall bladder? Answer: No.

3. At tbe time of applying for membership in tbe Teachers Protective Union did tbe plaintiff fail to inform tbe defendant or did she withhold information from tbe defendant that she bad been treated by Dr. J. J. Kirksey in tbe spring of 1931 for chronic cbolecystitis or ebronic inflammation of the gall bladder? Answer: No.

4. If so, was tbe failure to so inform tbe defendant material to tbe risk applied for to be assumed ? Answer: .

5. Did tbe plaintiff at any time during tbe five years immediately before 1 October, 1931, bave any medical or surgical advice or treatment or any departures from good health, other than tbe operation by Dr. J. B. Eiddle in September, 1930, and if so, when and by what physician was she treated ? Answer: No.

6. If so, did tbe plaintiff at tbe time of applying for membership in tbe Teachers Protective Union, fail to inform tbe defendant, or did she withhold information from tbe defendant that she bad been so treated? Answer: No.

I. If so, was tbe failure to so inform tbe defendant material to tbe risk applied for to be assumed ? Answer: .

8. Did tbe plaintiff become disabled of sickness on or about 7 January, 1932, and if so, was cbronic cbolecystitis or cbronic inflammation of tbe gall bladder tbe cause or one of tbe causes contributing to such sickness and disability? Answer: No.

9. Was tbe plaintiff on account of sickness from and after 7 January, 1932, totally disabled and necessarily and continuously confined to her bouse and regularly attended therein by a registered physician at least once a week solely by reason of such sickness? Answer: Yes.

10. If so, for what period of time and between what dates was she so confined? Answer: 7 January-20 April, 1932.

II. Did tbe defendant unlawfully enter upon tbe premises of tbe plaintiff and unlawfully and wilfully commit forceable trespass upon tbe person of tbe plaintiff, as alleged in tbe complaint? Answer: Yes.

12.If so, what damage, if any, is tbe plaintiff entitled to recover of the defendant ? Answer: $1,000.

*10Tbe plaintiff was given judgment on the first cause of action for $350 and on the second for $1,000.

The defendant excepted and appealed upon assigned error.

C. E. Cowan and Winborne & Proctor for appellant.

Mull & Patton, 8. J. Ervin and 8. J. Ervin, Jr., for appellee.

Adams, J.

The defendant moved to dismiss both causes of action as in case of nonsuit and tendered prayers for directed instructions on all the contested issues that were answered. The court denied the motion and declined to give the requested instructions, and the defendant excepted.

The ground of all the exceptions addressed to these questions, as set out in the appellant’s brief, is the asserted failure of the plaintiff to state in her application for membership that she had previously suffered illness and received medical treatment. This contention is based upon her answer to each of the following questions: Q. 5: “Are you now suffering from, or have you ever had any . . . gall or kidney stones ... or any chronic or periodical mental or physical ailment or disease ... or have you ever had or been advised to have a surgical operation?” A. “Yes.” Q. 6: “Have you during the past five years had any medical or surgical advice or treatment or any departure from good health ? If so, state when and what the duration.” A. “Operation; 3 months; September,'1930. My physician at that time was Dr. J. B. Riddle. Address: Morganton, N. O.”

These questions and the answers appear in the plaintiff’s application for membership in the defending corporation and were subscribed on 1 October, 1931. At the trial the plaintiff testified that in the spring of 1931 Dr. Kirksey had treated her and that she had not given his name to the defendant’s agent at the time she made her application. The defendant says that the statements contained in her application were representations (O. S., 6289) which, being in the form of written answers to written questions, are deemed to be material (Insurance Co. v. Woolen Mills, 172 N. C., 534), and that the withholding of information in regard to Dr. Kirksey’s treatment was in effect the suppression of a material fact by reason of which the policy may be avoided at the election of the defendant.

In view of facts revealed by the record this position cannot be maintained. The verdict, supported by competent evidence, establishes these facts: Anterior to 1 October, 1931, the plaintiff had not suffered from chronic cholecystitis; Dr. Kirksey had not treated her for this infirmity; during the five years preceding this date she had had no departure from good health other than that which was attendant upon the operation *11performed by Dr. Eiddle. It is therefore evident that her failure to inform tbe defendant’s representative that in tbe spring of 1931 Dr. Ilirksey bad treated ber for a temporary indisposition is of negligible significance and in no event is adequate cause for canceling tbe policy.

Tbe second cause of action consists, of alleged forceable trespass on tbe premises of tbe plaintiff and alleged assault upon ber person by tbe defendant’s agent when be went to ber borne and undertook to settle a controversy between tbe plaintiff and tbe defendant founded upon tbe policy of insurance. Tbe allegations directed to tbe second cause are specifically denied, and tbe immediate question is wbetber tbe evidence considered most favorably for tbe plaintiff is enough to warrant a recovery upon these allegations, or, indeed upon tbe answers returned to tbe eleventh and twelfth issues.

Forceable trespass is the high-handed invasion of tbe actual possession of another, be being present and forbidding. When a person enters upon tbe actual possession of' another and by bis language or conduct gives tbe occupant cause to fear that be will inflict bodily barm if tbe person in possession does not yield, bis entry is forceable in contemplation of law, wbetber be causes such fear by a demonstration of force such as to indicate bis purpose to execute bis pretensions, or by actual threats to do bodily barm, or by tbe use of language which plainly implies a purpose to use force against any who may make resistance.

Even if tbe entry is peaceable, or by tbe express or implied invitation of tbe occupant, still if after coming upon tbe premises tbe defendant uses violent and abusive language and does acts which are calculated to produce a breach of the peace and is forbidden, be is guilty of forceable trespass, because although not a trespasser in tbe beginning, he becomes a trespasser as soon as be puts himself in open opposition to tbe occupant of tbe premises. It is not necessary that tbe occupant actually be put in fear, if the conduct or language of tbe trespasser be calculated to intimidate, alarm, put in fear or to create a breach of tbe peace— if there be such demonstration of force as to create a reasonable apprehension that tbe party in possession must yield to avoid a breach of tbe peace. Tbe act complained of must have been with a strong band, ' manu forti,” and this implies tbe exercise of greater force than is expressed by tbe words “vi et armis.” Eudeness of language, mere words, or even a slight demonstration of force against which ordinary firmness is a sufficient protection will not constitute tbe offense. S. v. Ray, 32 N. C., 39; S. v. Pearman, 61 N. C., 371; S. v. King, 74 N. C., 177; S. v. Gray, 109 N. C., 791; S. v. Davenport, 156 N. C., 596; S. v. Tyndall, 192 N. C., 559.

Examined in tbe light of these principles tbe evidence does not justify tbe answers to tbe eleventh and twelfth issues. Tbe testimony is concise. *12The plaintiff was nervous; the defendant’s agent talked to her in a loud tone and said that she had made false statements in her application for membership; both the plaintiff and the agent were angry; and the agent tried to persuade her to accept a check for $30.00 and to cancel the policy, and she declined the offer. The plaintiff’s daughter requested the agent to leave the house, but she immediately asked “if he wanted to stay” until Dr. Kirksey came. He waited and a few minutes later, when they arrived, he had an interview with the physician and the plaintiff’s brother, who, after the conversation had become electric, “got up” and without the slightest resistance “put the agent out.” This incident, however, the plaintiff neither instigated nor encouraged.

The foregoing circumstances, appearing in the evidence for the plaintiff, may be conceded. Still, according to her evidence the agent made no threats, offered no violence, used no profane or indecent language, committed no assault, exerted no force, but was only insistent that the plaintiff’s statements had misled the defendant and that she was entitled only to the sum he tendered. Indeed, the plaintiff testified, “My complaint is that he (the agent) accused me of making false statements.” We find nothing in the agent’s conduct that was calculated to result in a breach of the peace — nothing to make a case of forceable trespass; bare words, however violent, cannot of themselves constitute the force necessary to complete the offense. S. v. Covington, 70 N. C., 71.

The exceptions relating to the admission of evidence and the charge of the court are not of sufficient gravity to require a new trial.

We find no error as to the first cause of action but the defendant’s motion to dismiss the second should have been allowed.

As to the first cause no error, and as to the second the judgment is

Reversed.