Thе written application signed by the insured upon which the policy of insurance was issued contained the following questions and answers:
“29. Have you ever had eleetro-cardiographic оr X-ray studies made? 29. No.
“31. A. Has a physician or other practitioner examined you within 2 months? 31. A. No.
“32. B. Havе you had any reason, during the past six months, to think you might be physically impaired, temporarily or othеrwise? 32. B. No.
“34. For what have you consulted, or been attended by a physician or surgeon or othеr practitioner during the past seven years? None.”
There was evidence offered by the dеfendant that on 30 March, 1951, before the issuance of the policy 1 May, 1951, a physician had given thе insured a thorough physical examination which included X-ray pictures and a stomach examinаtion. The physician testified: “He (the insured) said he was tiring easily at his work, that his appetite was not аs good as usual, and that he was generally not up to par. . . . During my examination I felt a lump over thе liver area.” The physician further testified that in June he saw the insured again and advised an exploratory opera *418 tion. Tbis was bad in July, 1951, resulting in discovery that insured bad cancer of tbe liver wbicb in Deсember following caused bis death.
Tbe defendant excepted to tbe denial of tbe motion for judgment of nonsuit, but evidence of tbe execution and delivery by tbe defendant of tbe poliсy of insurance on tbe life of tbe insured, in consideration of tbe premium, and tbe subsequent death оf tbe insured made out a
prima facie
ease and put tbe burden on tbe defendant to substantiate its affirmative defense of false and material representations in tbe application. Hence nonsuit was improper.
Davis v. Jenkins, ante,
283,
Tbe defendant, however, assigns error in tbe instructions given tbe jury in that the court reрeatedly referred to tbe ground of defendant’s defense as “false or fraudulent” represеntations by the deceased, whereas tbe allegation was “false and material.” Tbe court instructed tbe jury that tbe representations would not prevent recovery on tbe policy unless material or fraudulent, and thereupon charged as follows:
“Therefore, let us see for a moment what these, words mean in tbe language and in tbe sense that we are considering. A fraudulent representation is a representation of a subsisting fact falsely made, with knowledge of its falsity, intеnded and calculated to deceive, and wbicb does actually deceive, causing аnother to do what be would not have otherwise done. A false statement is an untrue or erronеous statement, intended and calculated to deceive and influence another. In law tbis word usually means something more than untrue. It means something designedly untrue and deceitful, and implies an intentiоn to perpetrate some subterfuge or fraud.”
Tbe defendant did not allege fraud. To avoid liаbility on tbe policy it was only required to show that tbe representations were material and that they were untrue.
Bryant v. Ins. Co.,
We think tbe court inadvertently left tbe jury under tbe impression that tbe defendant’s defense wаs bottomed on fraud, and that it was necessary for tbe defendant to show not only that tbe representations were false but that they were made designedly with intent to defraud. True tbe issue submitted contаined tbe words false or fraudulent, but tbe court’s references to and definition of tbe meaning of frаudulent representations as pertinent to tbis case may have bad a prejudicial effect on tbe minds of tbe jury.
A representation in an application for an insurance policy is deemed material “if tbe knowledge or ignorance of it would naturally influence
*419
tbe judgment of thе insurer in making the contract, or in estimating the degree and character of the risk, or in fixing the rate of premium.”
Wells v. Ins. Co., supra; Petty v. Ins. Co., 212
N.C. 157,
The statute provides that statements in an application for a policy of insurance “shall be deemed representations and not warranties, and a representаtion, unless material or fraudulent, will not prevent a recovery on the policy.” G.S. 58-30. Interpreting this statute, it is well settled that a material representation which is false will constitute sufficient ground upon which to avoid the policy.
In
Assurance Society v. Ashby,
“It is settled law in North Carolina that answers to specific questions like the one asked in the instant сase, where there had been medical examination, are material as a matter of law.”
In the case at bar the credibility of the evidence to support the defendant’s defense was a matter for the jury. There were no requests for instruction.
For the reasons herein stated we think there should be a new trial, and it is so ordered.
New trial.