#### SAMUEL B. WELLS v. JEFFERSON STANDARD LIFE INSURANCE COMPANY, a Corporation, and SAMUEL B. WELLS, Administrator of the Estate of MARY NICHOLSON WELLS, v. JEFFERSON STANDARD LIFE INSURANCE COMPANY, a Corporation, and MARTHA J. NICHOLSON v. JEFFERSON STANDARD LIFE INSURANCE COMPANY, a Corporation.

(Filed 2 November, 1938.)

Insurance § 31b — Evidence held for jury on question of insured’s misrepresentations which were material as a matter of law.

Defendant insurer introduced evidence that at the time of the issuance of the policies in suit insured made written representation to the effect that she was not pregnant and that her menstruation was regular and normal, in reaffirming her representations to this effect made in her application, that insured’s last menstruation period was over two months prior to the issuance of the policies, and that had insured disclosed the facts the policies would not have been issued by the insurer or by the re-insurer. The policies were issued after medical examination. Held,: The evidence was sufficient to be submitted to the jury, and upon an affirmative finding that insured had made such misrepresentations, insurer is entitled to the cancellation of the policies, the representations being material as a matter of law.

PetitioN by plaintiffs to rebear tbe above ease on appeal as it relates to tbe second and third actions reported in 213 N. C., 801, 196 S. E., 326.

These three civil actions, consolidated for tbe purpose of trial, are to recover on three policies of insurance issued by tbe defendant on tbe life of Mary Nicholson "Wells: one, dated 7 July, 1935, in which her husband, Samuel B. Wells, is the beneficiary; and two others dated 1 November, 1935, in which the administrators, executors or assigns of the insured, and her mother, Martha J'. Nicholson, respectively, are the beneficiaries. From judgment as of nonsuit at the close of the plaintiffs’ evidence the cases were heard here on former appeal reported in 211 N. C., at 427, 190 S. E., 744. The judgment was reversed, and on retrial in the court below, these issues were submitted to and answered by the jury as follows:

“1. Did Mary A. Wells represent in her application for the insurance policy sued on that she had not consulted a doctor for any cause, prior to her said application? Ans.: ‘Yes’ (by consent).

“2. Was.the applicant, Mary A. Wells, treated for malaria during the month of May, 1935, by Dr. C. F. Hawes? Ans.: ‘Yes’ (by consent).

*352“3. Was tbe said representation material to a contract of insurance between tbe said Mary A. Wells and tbe defendant? Ans.: No.’

“4. Hid tbe applicant, Mary A. Wells, represent in ber application for tbe insurance policy sued on that ber menstruation was regular and normal. Ans.: ‘Yes’ (by consent).

“5. Was said representation true ? Ans.: ‘Yes.’

“6. Was said representation material to a contract of insurance between tbe said Mary A. Wells and tbe defendant? Ans.: ‘No.’

“7. Did tbe said Mary A. Wells represent in ber application for tbe insurance policy sued on that sbe was not pregnant ? Ans.: ‘Yes’ (by consent).

“8. Was tbe said representation true? Ans.: ‘Yes.’

“9. Was said representation material to a contract of insurance between tbe said Mary A. Wells and tbe defendant? Ans.: .

“10. Did tbe said Mary A. Wells, on August 5, 1935, prior to tbe delivery of policies Nos. 549703 and 551126 reaffirm tbe representations, agreements and statements contained in ber said application ? Ans.: ‘Yes.’

“11. Was tbe said Mary A. Wells pregnant on 5 August, 1935 ? Ans.: ‘Yes.’

“12. Was said Mary A. Wells’ menstruation regular and normal on 5 August, 1935 ? Ans.: ‘No.’

“13. Were said representations, or either of them, material to tbe contract of insurance between tbe said Mary A. Wells and tbe defendant, as contained in policies Nos. 549703 and 551126? Ans.: ‘Yes.’

“14. Was Mary A. Wells in good health at tbe time of tbe execution and actual delivery of tbe policies? Ans.: ‘No.’

“15. In what amount, if any, is defendant indebted to plaintiffs? Ans.: .”

Plaintiffs appealed from judgment denying recovery in tbe second and third actions. On tbe call of tbe case in this Court, defendant made motion to be permitted to amend its answer in said actions to aver, in substance, that, in August, 1935, prior to tbe delivery of tbe policy on which each action is based, Mary Nicholson Wells was pregnant, and ber menstruation was not regular and normal, to ber knowledge; that sbe failed to inform tbe defendant of these facts, but on tbe contrary reaffirmed ber agreements and statements contained in tbe original application; that knowledge of ber condition in those respects was material to tbe risks; that defendant did not have knowledge thereof, and that, if it bad bad such knowledge, tbe policy would not have been issued. There is evidence tending to support tbe averments as set forth in this amendment. Other pleas of defendant are set out in .the former appeal, 211 N. C., 427, 190 S. E., 744.

*353Upon consideration of tbe record and case on appeal in tbe light of tbe pleadings as so amended, tbe Court being evenly divided, Connor, J., not sitting, tbe judgment below was affirmed.

Tbe plaintiffs now petition for rebearing on tbe ground tbat there is “lack of relevant evidence to support any of tbe issues 12 to 14, . . . inclusive.”

Oscar B. Turner and Norwood B. Boney for petitioners.

Beasley & Stevens and Smith, Wharton & Hudgins for defendant, appellee.

'WiNBORNE, J.

Tbe petition to rehear presents one question: Is there sufficient evidence to support any of tbe issues 12 to 14, both inclusive? We think so.

There is evidence tending to show tbat prior to 5 August; 1935, tbe last menstruation of insured was on 20 May, 1935. There is also evidence tending to show tbat tbe policies of insurance would not have been issued'by tbe defendant, or by tbe Pilot Life Insurance Company, tbe re-insurer, if tbe insured bad disclosed tbe true facts with reference to her pregnancy and menstruation. There is also evidence tbat tbe questions and answers with respect thereto are in writing.

It is settled law in North Carolina tbat answers to specific questions like tbe ones asked in tbe case in band, where there has been medical examination, are material as a matter of law. Petty v. Ins. Co., 212 N. C., 151, 193 S. E., 228, and cases cited.

As to tbe 14th issue, it is stated in tbe judgment below tbat tbe defendant, for tbe purpose of tbe trial, in open court waived any and all rights tbat it has or might have thereunder.

In tbe judgment below we find no error, and tbe petition is

Dismissed.