after stating the case: It is unnecessary to set forth the testimony of the two witnesses as it appears in the depositions, for it is sufficient to state that it was competent and relevant to issues 12 and 13, as it tended to show that Isaac Hardy had applied for insurance and had been rejected prior to the date of the policy issued by the defendant to him.
We were told on the argument that the court excluded the depositions because the commission was issued to W. W. Brocks, instead of W. W. Brooks, and signed and certified by W. E. Brooks; but this, we think, was not a good reason for their rejection. The person who was intended to act ás commissioner was otherwise sufficiently identified, and plaintiff, if she had desired to be present, could easily have ascertained the place and time and the commissioner, by referring to the notice she received. Besides, she waived this irregularity and reserved only the right to object on the trial to the testimony as being incompetent. We are of the opinion that her agreement with the defendant amounted to a clear waiver of the defect, or misnomer, and it appears that she has not been prejudiced thereby. The objection was too technical and attenuated to be sustained. It should have been overruled and the depositions admitted. We do not say that all that is in the depositions is competent and relevant, but there is some such evidence there. The plaintiff has not yet specified her objections thereto, and its competency cannot be determined until she does so. She may fail to object to some or all of it, and thereby waive the incompeteney of the evidence. If the court ruled that the testimony contained in the depositions was incompetent, and excluded them for that reason, there was error. It was material for the underwriter to know whether Mr. Hardy had before applied for insurance and been rejected. It would have had a substantial influence in deciding whether to issue the policy or not. Fishblate v. Fidelity Co., 140 N. C., 589; Bryant v. Ins. Co., 147 N. C., 183; Alexander v. Ins. Co., 150 N. C., 536; Gardner v. Ins. Co., 163 N. C., 367; Schas v. Ins. Co., 166 N. C., 55.
This error entitles defendant to another jury.
New trial.