Does N. C. Code, 6460, apply to the policy issued to the plaintiff ?
The policy was issued without medical examination by a physician, and N. C. Code, 6460, provides “that where there has been no medical examination the policy shall not be rendered void nor shall payment be resisted on account of any misrepresentation as to the physical condition of applicant except in cases of fraud.” It was held in Holbrook v. Ins. Co., 196 N. C., 333, 145 S. E., 609, that if an insurance company issued a policy to a person it knew to be physically unsound or took a chance upon physical unsoundness without medical examination that such company could not resist payment except in cases of fraud.
*260Manifestly it was not tbe purpose of N. C. Code, 6460, to permit a recovery on an insurance policy issued without medical examination irrespective of tbe facts surrounding tbe transaction; otherwise tbe expression “except in cases of fraud” would bave neither meaning nor significance. It is apprehended that if fraud in tbe procurement of a policy is alleged, an issue tendered or submitted together with competent evidence, and a jury shall find tbe existence of fraud in such procurement, then and in such event no recovery can be bad. That is to say, “in cases of fraud” a policy issued without medical examination stands upon tbe same footing as policies issued upon such examination.
Tbe defendant pleaded fraud and offered tbe application in evidence, and also offered tbe testimony of physicians tending to show that tbe representations made by tbe insured in tbe application were false. Obviously tbe statements made by tbe insured to tbe effect that be bad never consulted a physician or been in a hospital were material. O. S., 6289. This evidence was competent upon an issue of fraud, but no such issue was tendered. Moreover, tbe issue submitted by tbe trial court was not objected to. TIence tbe parties chose “sound health on 20 July, 1930” as tbe battleground, and tbe theory upon which to determine tbe merits of tbe controversy. “If tbe defendant did not consider tbe issues submitted by tbe court proper or relevant, it was bis duty to tender other issues, and having failed to do so, be cannot now complain.” Greene v. Bechtel, 193 N. C., 94, 136 S. E., 294. McIntosh, North Carolina Practice & Procedure, p. 545. McIntosh states tbe proposition of law as follows: “If tbe parties consent to tbe issue submitted, or do not object at tbe time or ask for different or additional issues, tbe objection cannot be made later.”
Consequently, tbe opinion of tbe physician, who was not qualified as an expert, that tbe insured was not in sound health on tbe date of tbe delivery of tbe policy was incompetent for tbe reason that “sound health” was tbe very question to be determined not by tbe witness, but by tbe jury. Marshall v. Tel. Co., 181 N. C., 292, 106 S. E., 818; Trust Co. v. Store Co., 193 N. C.; 122, 136 S. E., 289; Denton v. Milling Co., 205 N. C., 77. Tbe theory upon which a cause is tried must prevail in considering tbe appeal, and in interpreting a record and in determining tbe validity of exceptions. Walker v. Burt, 182 N. C., 325, 109 S. E., 43; Shipp v. Stage Lines, 192 N. C., 475, 135 S. E., 339; Holland v. Dulin, ante, 211.