The exceptions relating to the first and second issues do not seem to be very strongly urged in the appellant’s brief, and we find no reversible error presented by them. The third issue was answered by consent. The controversy centers upon the fourth and fifth issues.
Under its exceptions to the court’s refusal to grant its motions for judgment as of nonsuit, and to the court’s refusal to give requested peremptory instructions as to the fourth and fifth issues, the defendant *781takes the position that under all of the evidence it was entitled to a judgment canceling the total and permanent disability clause of the policies in suit.
From the issues submitted, the evidence offered by the defendant, and the charge of the court, it clearly appears that the case was tried in the Superior Court upon the theory that the disability clause in the policies in suit was void for reason that the plaintiff, the insured, made false representations and concealments in his application to the defendant, the insurer, for such policies. Having been tried upon this theory in the Superior Court, and no objection having been made by either party to the issues submitted, the case must be interpreted by us in the light of such theory. Edgerton v. Perkins, 200 N. C., 650.
Upon the fourth issue the defendant offered evidence tending to prove that the plaintiff had other illnesses and injuries than those mentioned, namely: “Treatment of the right leg 1923, tonsilectomy 1927, influenza 1928, and bronchitis 1928,” and the plaintiff did not controvert that he had had some other illnesses and injuries. However, the plaintiff offered evidence, his own testimony principally, that he had made known to both the soliciting agent and to the medical examiner of the defendant, who filled out the application, all of the illnesses and injuries that he had suffered, and had told such examiner that he had had trouble while in the army with a sprained ankle and afterwards had an attack of “sciatica nerve trouble,” and had recently been to the Veterans’ Bureau in Charlotte and had it checked; that at the time of the examination the examiner had him to hop to the back of the office on his right foot and back on his left foot, and the examiner remarked: “I think that is all right”; that during the examination he was stripped and the fact that one of his legs was smaller than the other was apparent; and that he remembered very distinctly that the medical examiner, when the various illnesses and injuries the plaintiff had suffered were being related to him, said: “There ain’t no need putting all that junk down, because it is immaterial.” The defendant offered evidence, the testimony of the the medical examiner principally, that the plaintiff did not inform him of any illnesses or injuries not written in the application, and did not tell him of any trouble he had had in the army or of any visit to the Veterans’ Bureau, and that the plaintiff was not stripped for the examination and was not required to hop across the office, and did not make known or exhibit the fact that one of his legs was smaller than the other; and that the medical examiner had no information as to the plaintiff’s past health record except that given to him by the plaintiff. This sharply conflicting evidence raised a clear issue of fact for the jury and the jury found for the plaintiff.
*782A similar issue of fact was presented under the fifth issue. The plaintiff’s evidence tended to prove that he gave to the medical examiner of the defendant the names of all other physicians than Dr. R. J. Rose, who had treated him during the preceding five years, and that the medical examiner of the defendant failed to write such names in the application. The defendant’s evidence tended to show that while other physicians had treated the plaintiff for other maladies in the preceding five years, no other physicians or maladies than those mentioned in the application and issues were given to its medical examiner by the plaintiff. The issue of fact raised by this conflicting evidence was likewise found for the plaintiff.
The answers to the issues, when taken with the agreement in the record, constitute a verdict that, under the decisions of this Court, support the judgment entered.
It is a well settled principle in this jurisdiction that an insurance company cannot avoid liability on a policy issued by it by reason of any facts which were known to it at the time the policy was delivered, and that any knowledge of an agent or representative, while acting in the scope of the powers entrusted to him, will, in the absence of fraud or collusion between the insured and the agent or representative, be imputed to the company, though the policy contains a stipulation to the contrary. Follette v. Accident Asso., 110 N. C., 377; Fishblate v. Fidelity Co., 140 N. C., 589; Short v. Life Insurance Co., 194 N. C., 649; Laughinghouse v. Insurance Co., 200 N. C., 434; Colson v. Assurance Co., 207 N. C., 581; Barnes v. Assurance Society, 204 N. C., 800, and cases there cited.
There is no suggestion in this case that there was any collusion between the insured and the medical examiner, or that the medical examiner was not acting in the scope of his employment in making the examination and in writing the answers to the interrogatories contained in the application, since said examiner was introduced as a witness for the defendant and his testimony is its principal reliance. There is also no evidence or suggestion in the record of any collusion between the insured and the soliciting agent. The only evidence relative to the information possessed by the latter was the testimony of the former. The soliciting agent was not called as a witness.
What is said in Follette v. Accident Association, supra, is applicable to this case and renders unnecessary any discussion by us of the questions relative to waiver and estoppel raised in the briefs. In that case Judge Avery writes: “It is not material whether we say that the conduct of the local agent amounts to a waiver or works an estoppel on the insurer, as the authorities are in conflict upon the point. . . . Certain it is that in such cases the knowledge of the agent is imputed to the principal, and to deliver a policy with a full knowledge of facts upon which its *783validity may be disputed, and then insist upon those facts as a ground of avoidance, is to attempt a fraud.”
We have examined the exceptive assignments of error which relate to the admission and exclusion of evidence and to the charge of the court and find no reversible error.
No error.