Neither at the close of plaintiff’s evidence nor at the close of all the evidence did the defendant make a motion for judgment as in case of nonsuit, as is allowed in C. S., 567.
In Harris v. Buie, 202 N. C., 634 (636), is the following: “At the close of plaintiff’s evidence the defendant Buie did not move for judgment as in case of nonsuit in the court below, nor at the close of all the evidence, as he had a right to do under C. S., 567. By the failure of defendant to follow strictly C. S., 567, supra, the question of the insufficiency of evidence is waived. Nowell v. Basnight, 185 N. C., 142; Penland v. Hospital, 199 N. C., 314; Batson v. Laundry Co., ante, 560.”
In S. v. Waggoner, ante, 306 (307), we find: “The defendant made a motion of nonsuit at the close of State’s evidence. This motion was overruled and the defendant offered evidence in his own behalf tending to establish his innocence. The motion for nonsuit was not renewed at the conclusion of all the evidence, and therefore the insufficiency of evidence to warrant conviction was waived, and cannot now be considered by this Court on appeal. S. v. Hayes, 187 N. C., 490.”
In the present case the insufficiency of evidence is waived. The exception and assignment of error made by defendant as to the refusal of the court below to submit the third issue and fourth issue tendered by it cannot be sustained. The first two issues tendered by defendant are those submitted to the jury by the court below, and arose on the XDlead-ings, and are determinative of the controversy. The other two we do not think were material, and in not submitting them would be prejudicial to the defendant from the pleadings in the cause. There were no exceptions to the evidence on the trial in the court below. The defendant made a motion in the court below to set aside the verdict as contrary to all the evidence. The court below refused the motion. This exception and assignment of error cannot be sustained.
N. C. Code 1931 (Michie), sec. 591, is as follows: “The judge who tries the cause may, in his discretion, entertain a motion to be made on his minutes to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages; but such motion can only be heard at the same term at which the trial is had. When the motion is heard and decided upon the minutes of the judge, and an appeal is taken from the decision, a case or exceptions must be settled in the usual form, upon which the argument of the appeal must be had.”
This power is not only made discretionary by statute, but it is inherent in the trial court and ordinarily not reviewable by this Court. *491 Brantley v. Collie, 205 N. C., 229 (231). See Bundy v. Sutton, ante, 422. In fact, tbe defendant by not making motions of nonsuit, tbe insufficiency of evidence was waived. Tbe other exceptions and assignments of error were to tbe charge of tbe court below. Taking tbe charge as a whole, we think tbe learned and able judge in tbe court below applied tbe law applicable to tbe facts. Tbe charge fully defined all tbe elements of fraud and deceit and applied tbe law to the facts on this aspect clearly and accurately. It did not impinge C. S., 564.
N. C. Code 1931 (Michie), sec. 6289, is as follows: “All statements or descriptions in any application for a policy of insurance, or in tbe policy itself, shall be deemed representations and not warranties, and a representation, unless material or fraudulent, will not prevent a recovery on the ,policy.”
Tbe contention of defendant is that a short while before tbe policy was taken out Yiola Harrison went to tbe office of a physician and was told that she bad goiter. “Have you been attended by a physician during tbe last five years?” Tbe applicant answered, “No.” It will be noted that tbe question is susceptible of different interpretations. This whole matter, under tbe facts in this case, was left by tbe court below for tbe jury to say whether it was done fraudulently. Tbe company’s physician examined her and did not discover a goiter, and there was evidence that she died of apoplexy. On this aspect, tbe court charged, “Tbe defendant must show, if it was false, she made tbe false statement for tbe purpose and with tbe intent to deceive tbe agent of tbe defendant Insurance Company, and must show that it actually, by reason of such false statement, fraudulently and knowingly made, was induced to issue tbe policy and was damaged thereby.” Oil and Grease Co. v. Averett, 192 N. C., 465 (467-8). We do not think tbe charge prejudicial. Anthony v. Teachers Protective Union, 206 N. C., 7. We think this exception and assignment of error made by defendant cannot be sustained.
In Howell v. Insurance Co., 189 N. C., 212 (217)/is tbe following: “But whether a representation is material or not is not always a question of fact, or rather, like tbe question of negligence, or reasonable time, a mixed question of law and fact. Where there is a controversy as to tbe facts, or where, upon tbe facts admitted or found by tbe jury, tbe court cannot bold that knowledge or ignorance of them, upon all tbe facts in tbe particular case, would or would not naturally influence tbe judgment of tbe underwriter in making tbe contract at all, or in estimating tbe degree and character of tbe risk, or in fixing tbe rate of premiums, an appropriate issue should be submitted to tbe jury, in order that they may, upon competent evidence, determine whether or not tbe representation was material.”
*492Tbe application was made on 5 February, 1931, and tbe policy issued about 13 February, 1931. Tbe defendant Insurance Company bad its physician to examine ber. He testified, in part: “I found no abnormality physically from that examination, which was held on 7 February, 1933, and after Yiola Harrison signed it, I signed my name on Part B of tbe application as a witness. . . . . I could not tell from ber physical appearance anything that might indicate any disease. She appeared in good health when I examined her, and I recommended her as a good risk. I based this recommendation on the answers and history and my findings. ... I made the examination at the insured’s home at the request of the company. ... I generally start and read the question. I can’t swear that I asked Yiola Harrison every one, but I read the list of diseases and don’t ask the questions from memory. ... I examined her pulse and it was in the normal limits. I examined her heart. If her pulse rate had not been within the normal limits, they would have sent her back for reexamination. ... I can’t swear I read the questions verbatim every time because sometimes I know the applicant. An exophthalmic goiter bulges. Yiola Harrison had no abnormal enlargement, and I did not notice anything indicating a goiter, and I found no symptoms of goiter.”
W. M. Moore, agent for defendant, testified, in part: “Does the appearance of applicant indicate to you that she is in sound health? Yes. Do you recommend delivery of the policy? Yes. . . . She paid me the premium after Form 074 was signed, and I delivered the policy to her. I know that the insured was examined by a doctor before the issuance of this policy. ... I solicited her several times before she took out this policy. . . . She was not sick but some two or three days before she died. She was 24 or 25 years old. ... I saw Yiola Harrison all along during the six months I was on that route and she appeared to he in good health. She was in normal health all the time I saw her, both before and after the policy was issued. I did not see her but about once a month. There was nothing to indicate she was sick.”
Her husband, the plaintiff, testified, in part: “Yiola Harrison was my wife. I work at Efird’s Department Store. I talked to Dr. Kennedy when he treated my wife and he said that she died with apoplexy.”
In Hines v. Casualty Co., 172 N. C., 225 (227), is the following: “The question is not whether the plaintiff had hernia, for this is not denied, hut whether it was of such nature as to have rendered him an unsound man at the time of the application. The jury is the only tribunal which can settle the disputed facts, for this is an issue of fact and not a matter of law. The illness from which the plaintiff suffered subsequently, and for which he seeks to recover, was an attack of rheu*493matism, which had. no connection with, nor was there any evidence to show that it was in any way traceable to hernia.
“Revisal, 4808 (C. S., 6289), provides that all statements in an application for insurance shall be held merely representations, and not warranties; and that no- representations, unless fraudulent or materially affecting a risk, shall prevent a recovery. This matter was properly submitted to the jury, and they- found that The plaintiff was of sound physical condition at the time he signed the application, notwithstanding such hernia; and that his representations at the time he applied for the policy were not false and were not material to the defendant in determining whether it would issue the policy.’ The court instructed the jury that whether he was in sound health or not was a matter for the jury to determine upon the evidence, depending upon whether the extent of the hernia he had was such as to render him unsound or not.” -
In Suggs v. N. Y. Life Insurance (S. C.), Vol. 176, No. 3, p. 457, S. E. Reporter, in a case similar to the present, it is said: “In Johnson v. New York Life Insurance Company, 165 S. C., 494, 164 S. E., 175, 177, the Court said: ‘Finally, the intent with which representations or misstatements of facts are made is a thing that is locked up in the heart and consciousness of the applicant. It may be shown by his express words, or it may be deduced from his acts and the facts and circumstances surrounding the making of the misrepresentations, though on this •question the mere signing of the application containing the answers alleged to be false is not conclusive. Huestess v. Insurance Co., 88 S. C., 31, 70 S. E., 403.’ ”
Ordinarily, the question whether the representation is material or fraudulent is for the jury to determine, but in some cases, where the facts are undisputed and these facts can reasonably give rise to only one inference, that the policy was procured by a material representation which was false, or by fraud and deceit, the question is one for the court to determine. The case in the court below and the issues submitted were on the theory of fraud.
In Weil v. Herring, ante, 6 (10), Brogclen, J., says: “An examination of the record discloses that the cause was not tried upon that theory, and the law does not permit parties to swap horses between courts in order to get a better mount in the Supreme Court.”
Then, again, there was no request for nonsuit, as heretofore stated, and the question of the insufficiency of the evidence to be passed on by the jury was waived. We see no prejudicial or reversible error in the trial of the case.
No error.