Bryant v. Metropolitan Life Insurance

*184 Hoee, J., after stating tbe ease: Our statute on insurance, in reference to tbe question involved in this appeal (Revisal 1905, Vol. II, sec. 4808), provides: “All statements or descriptions in any application for a policy of insurance, or in tbe policy itself, shall be deemed and beld representations and not warranties; nor shall any representation, unless material or fraudulent, prevent a recovery on tbe policy.” And in Fishblate v. Fidelity Co., 140 N. C., 589, tbe Oourt, in construing this section (erroneously printed in tbe opinion as section 4646), beld as follows: “1. In an action for indemnity on an accident policy, where, on an issue involving tbe question as to whether tbe plaintiff, in representing himself to be sound physically and mentally, made a" false statement on a matter material to tbe contract, a charge that a misrepresentation, to become material, must be as to a defect which contributes in some way to tbe loss for which indemnity is claimed, is erroneous. 2. Every fact untruly asserted or wrongfully suppressed must be regarded as material, if the knowledge or ignorance of it would naturally influence the judgment of the underwriter in making the contract at all, or in estimating the degree and character of the risk, or in fixing the rate of premium.” There are decisions apparently to the contrary in other jurisdictions, but, as shown in the opinion referred to, they were rendered usually, all of them as far as we have examined, in applying statutes having a different wording from ours and requiring a more restrictive interpretation. This being the construction we have put upon our statute' — and, as the law is now expressed, it is, we think, undoubtedly the correct construction — the court below properly held that the representation of the insured as to having been under the care of the physician within two years was material to the contract ; .and, under the facts and circumstances disclosed by the testimony, defendant has a right to insist and the case requires that there, should be a determinative finding on the issue ad *185 dressed to that question, and this has not been done. The Jndge below takes an excerpt from the testimony of Dr. AVhite-head and finds such statement to be true, but this statement is not conclusive on the issue and does not in itself embody all the facts relevant to the inquiry. It is true that the courts will hold that a prescription given by a physician in response to a casual inquiry does not amount to being under such physician’s care, within the meaning of this, stipulation. A prescription given after more careful examination, as an exceptional or isolated occurrence, might not be so. No more is it required that a patient should be bedridden to constitute the relationship; and if the insured, being apprehensive as to his condition, though “up and around,” within the time named, consulted Dr. Whitehead or any other physician and entrusted his case to him for regular or continuous treatment, this would come within the representation, and, if false, would relieve the defendant from the obligations of the contract. Dr. Whitehead’s entire statement on this subject, as shown in the record, is as follows: “I saw Matthew Bryant ten or twelve months prior to his death. He showed the history of a cough. He came back in a few days and I examined him. I asked him for a specimen of his sputum. He did not give it. I got a specimen of his sp-utum a few days before he left Rocky Mount. I know he had tuberculosis. I cannot SAvear he had it two weeks before he left Rocky Mount. ' He had irregular temperature, chilly sensations, cough, husky voice, etc. I thought he had tuberculosis before.” Dr. Whitehead was asked, “Please state Avkat medical attention you gave Bryant from the start to finish,” to which he replied: “He called at my office five or six times Avithin tAvelve months’ time. I put him on creosote with strychnine and hypophosphites. After-Avards I gaA^e him creosote and cod liver oil. This is all the medical treatment I gave him. I gave him advice as to his surroundings, diet, etc. The paper shoAvn me (Exhibit 6) is in my handwriting.” It is not clear hoAv much of this *186 statement referred to conditions existing prior to or at tbe time of the application, but such conditions .and other facts and circumstances pertinent to the inquiry should be heard and considered and the issue in some way determined before the court is in a condition to enter a proper judgment in the cause. As the matter stands, questions raised by the pleadings and material to the inquiry have not been determined. And for this error a new trial of the causé is awarded. New Trial.