The opinion
Brown, J.
The insured, Pearl Alexander, was a child about fifteen years of age, whose life was insured on 18 March, 1907, by defendant, for the benefit of plaintiff, her mother by adoption and great-aunt by blood. Insured died in April, 1908, according to the evidence, of an abscess in the kidney.
There is a statement in the application, which is the basis of the policy, that insured had never had any disease of the kidneys. The evidence fully sustains the finding of the jury, that prior to the application for insurance the girl had kidney disease and was being treated for it by a physician.
*538
Tbe insurance contract contains tbe following clause:
“Tbis policy is void if tbe insured, before its date (meaning date of policy), bad been rejected for insurance by any other company or bas been.attended by a physician for any serious, disease or complaint, or bas bad before said date any pulmonary disease or chronic bronchitis, or cancer, or disease of tbe heart,, liver or kidneys,” etc.
It must be conceded that tbe representation is a most material, one, within tbe meaning and scope of tbe statute (Revisal, sec. 4808).
Bryant v. Insurance Co.,
147 N. C., 181 . Such a representation undoubtedly influenced tbe judgment of tbe company in accepting tbe risk, and it is therefore a material representation.
Under tbe facts of tbis case it matters not that the insured made no false representation.. She made a most material representation, which was untrue, for she bad kidney disease before tbe application for insurance, was being treated for it at tbe time, and died of tbe disease thirteen months thereafter.
Tbe company was imposed -upon (whether fraudulently or-not is immaterial) by such representation and induced to enter into tbe contract. In such case it bas been said by tbe highest Court that, “Assuming that both parties -acted in good faith, justice would require that tbe contract be canceled and premiums, returned.”
Insurance Co. v. Fletcher,
117 U. S., 519 .
Tbe ease at bar is governed by tbe principles laid down in
Bryant v. Insurance Co., supra.
It appears in the record that tbe premiums have been voluntarily paid'into tbe Superior Court by tbe defendant. It is ordered that they be applied to tbe costs of tbis appeal, and that tbe remainder, if any, after paying costs below, be paid to plaintiff.
Tbe motion for judgment for defendant is allowed. Let tbe costs be taxed against plaintiff.
Reversed.