O’Hara, J.
Harold J. and Diana Snyder, plaintiffs, are the parents of Darrel Snyder, deceased. [37]*37He died November 19, 1960, of injuries sustained in an airplane crash which occurred November 13,1960. They are also named his beneficiaries in an application for a $25,000 life insurance policy directed to defendant company.
John S. McKenzie is a soliciting agent for defendant insurance company. In 1954, the agent sold a policy of life insurance to plaintiff father, and at various times in the period between that sale and September 20, 1960, he and the father discussed the prospect of selling additional policies covering the plaintiffs’ 2 sons, Duane and Darrel.
On September 20, 1960, agent McKenzie came to the Snyder home with a view to the sale of a life policy on Darrel. By this time Duane had applied for and received his policy.
At the home the evening of the visit were Darrel, his mother, plaintiff Diana, Hazel, his wife, now widow, his grandmother, and later his father, plaintiff Harold J. Snyder. The meeting took place in the family dining room.
■ It is the claim of the plaintiff that oral representa^ tions were made by the agent on diverse occasions, including the time at which a life policy was sold to deceased’s brother, and again on the night deceased signed his application, which were completely at variance with the printed application form. Specifically the form of the application contained the following questions — answered affirmatively but in the agent’s handwriting:
“And do you agree that the company is not bound by any statement made by or to any agent unless written herein * * * and do you further agree that there shall be no liability hereunder until a policy shall be issued, and delivered to and accepted by you while in good health and free from injury.”
[38]*38Plaintiffs contend, and support by testimony of deceased’s father and mother (over strenuous objection) and deceased’s wife, that the agent said in substance: “You are insured as soon as you have a medical examination and leave the medical examiner’s office a healthy man.” They further contend, and support by testimony, that a medical examination was made and a requisite urine specimen taken and analyzed. The examining physician testified he found the urine specimen negative, and that the physical examination disclosed nothing to disqualify deceased as an insurance risk. He additionally testified that he sent the completed medical examination blank and the urine specimen to the company home office at least a week before deceased sustained the injuries which caused his death 6 days later. The additional claim of plaintiff is that the agent did not show the application blank to deceased, nor read its provisions to him, but merely asked him questions to which he, the agent, wrote down the answers and only told deceased to sign the blank on the signature line. Plaintiffs assert their total reliance upon the agent’s alleged representations, to the exclusion of the application form. The total first annual premium was paid by the agent under an agreement with plaintiff-father that the agent would later be reimbursed therefor. Admittedly the agent fulfilled this commitment but was not reimbursed therefor until after deceased’s injury.
The declaration, in a single count, alleges actually somewhat contradictory theories. Paragraphs 5, 6, and 7 assert the agent’s representations, the reliance thereon, the satisfactory completion of the medical examination and urine test, and their “submission” to defendant by mail. Paragraphs 9 and 12 allege an unreasonable delay after receipt of the examination, the urine specimen and the first premium with [39]*39a consequent waiver of any conditions precedent to the effective coverage of the deceased.
Defendant contrariwise denies the authority of the agent to alter the terms of the contract and denies in fact that he made such representations. The company urges strenuously that assuming the agent made such representations, there was no reliance upon them by plaintiffs under their own testimony. It is the insurer’s further claim that the urine specimen was not in fact sent by the medical examiner on either date he asserts he sent it. There is a strong suggestion in their testimony that it was not sent until after deceased was injured and that the medical report was never sent — at least never received by it. The company denies any undue delay in processing the application for the reason that there was never in the office the precise item necessary to process the application. They emphasize that this aspect of the case formed no part of the claim in the declaration and that plaintiffs’ counsel affirmatively denied that such was a part of their claim — and further that the burden of establishing undue delay was plaintiffs’ and that such burden was not met.
On these controverted factual issues, the case was submitted to the jury under a general charge and the jury returned a verdict in the full amount of the unissued policy — $25,000.
It must be conceded that much, if not all, the force of plaintiffs’ first theory, or the first facet of their declared theory, was vitiated by their own testimony on cross-examination. Accepting the claim of plaintiffs that the application form was not read and that applicant did not see the 2 limiting provisions, namely, (1) “The company reserves the right to require medical examination of any applicant,” and (2) “Is applicant being examined? Yes,” plaintiff Harold Snyder still testified as follows:
[40]*40.. ' “Q. Now, you do know that certain things had to be done with respect to the examination, did you not, Mr.- Snyder?
“A. I figured there were.
“Q. And what were these things?
“A. Examination, for one.
“Q. And what else?
“A. A urine specimen.
“Q. And what would happen to that urine specimen?
“A. It would have to go to the home office.
“Q. And what would have to happen to the medical examination that was made?
“A. It would have to be approved.
“Q. At the home office; is that correct?
“A. Right.
“Q. Uh-huh, and the urine specimen also would have to be approved?
“A. Right.”
The coplaintiff testified in the same tenor with some semantic difficulty over the word “accepted”:
“Q. Now, referring to this nonmedical business. You realize that Duane, or that Darrel, would have to have a medical examination, did you not?
“A. That’s right.
“Q. And, as a matter of fact, you testified before that Mr. McKenzie gave you some medical papers; is that correct?
“A. He gave them to Darrel.
“Q. Well, gave them to Darrel, but you saw him give them; is that correct?
“A. That’s right.
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O’Hara, J.
Harold J. and Diana Snyder, plaintiffs, are the parents of Darrel Snyder, deceased. [37]*37He died November 19, 1960, of injuries sustained in an airplane crash which occurred November 13,1960. They are also named his beneficiaries in an application for a $25,000 life insurance policy directed to defendant company.
John S. McKenzie is a soliciting agent for defendant insurance company. In 1954, the agent sold a policy of life insurance to plaintiff father, and at various times in the period between that sale and September 20, 1960, he and the father discussed the prospect of selling additional policies covering the plaintiffs’ 2 sons, Duane and Darrel.
On September 20, 1960, agent McKenzie came to the Snyder home with a view to the sale of a life policy on Darrel. By this time Duane had applied for and received his policy.
At the home the evening of the visit were Darrel, his mother, plaintiff Diana, Hazel, his wife, now widow, his grandmother, and later his father, plaintiff Harold J. Snyder. The meeting took place in the family dining room.
■ It is the claim of the plaintiff that oral representa^ tions were made by the agent on diverse occasions, including the time at which a life policy was sold to deceased’s brother, and again on the night deceased signed his application, which were completely at variance with the printed application form. Specifically the form of the application contained the following questions — answered affirmatively but in the agent’s handwriting:
“And do you agree that the company is not bound by any statement made by or to any agent unless written herein * * * and do you further agree that there shall be no liability hereunder until a policy shall be issued, and delivered to and accepted by you while in good health and free from injury.”
[38]*38Plaintiffs contend, and support by testimony of deceased’s father and mother (over strenuous objection) and deceased’s wife, that the agent said in substance: “You are insured as soon as you have a medical examination and leave the medical examiner’s office a healthy man.” They further contend, and support by testimony, that a medical examination was made and a requisite urine specimen taken and analyzed. The examining physician testified he found the urine specimen negative, and that the physical examination disclosed nothing to disqualify deceased as an insurance risk. He additionally testified that he sent the completed medical examination blank and the urine specimen to the company home office at least a week before deceased sustained the injuries which caused his death 6 days later. The additional claim of plaintiff is that the agent did not show the application blank to deceased, nor read its provisions to him, but merely asked him questions to which he, the agent, wrote down the answers and only told deceased to sign the blank on the signature line. Plaintiffs assert their total reliance upon the agent’s alleged representations, to the exclusion of the application form. The total first annual premium was paid by the agent under an agreement with plaintiff-father that the agent would later be reimbursed therefor. Admittedly the agent fulfilled this commitment but was not reimbursed therefor until after deceased’s injury.
The declaration, in a single count, alleges actually somewhat contradictory theories. Paragraphs 5, 6, and 7 assert the agent’s representations, the reliance thereon, the satisfactory completion of the medical examination and urine test, and their “submission” to defendant by mail. Paragraphs 9 and 12 allege an unreasonable delay after receipt of the examination, the urine specimen and the first premium with [39]*39a consequent waiver of any conditions precedent to the effective coverage of the deceased.
Defendant contrariwise denies the authority of the agent to alter the terms of the contract and denies in fact that he made such representations. The company urges strenuously that assuming the agent made such representations, there was no reliance upon them by plaintiffs under their own testimony. It is the insurer’s further claim that the urine specimen was not in fact sent by the medical examiner on either date he asserts he sent it. There is a strong suggestion in their testimony that it was not sent until after deceased was injured and that the medical report was never sent — at least never received by it. The company denies any undue delay in processing the application for the reason that there was never in the office the precise item necessary to process the application. They emphasize that this aspect of the case formed no part of the claim in the declaration and that plaintiffs’ counsel affirmatively denied that such was a part of their claim — and further that the burden of establishing undue delay was plaintiffs’ and that such burden was not met.
On these controverted factual issues, the case was submitted to the jury under a general charge and the jury returned a verdict in the full amount of the unissued policy — $25,000.
It must be conceded that much, if not all, the force of plaintiffs’ first theory, or the first facet of their declared theory, was vitiated by their own testimony on cross-examination. Accepting the claim of plaintiffs that the application form was not read and that applicant did not see the 2 limiting provisions, namely, (1) “The company reserves the right to require medical examination of any applicant,” and (2) “Is applicant being examined? Yes,” plaintiff Harold Snyder still testified as follows:
[40]*40.. ' “Q. Now, you do know that certain things had to be done with respect to the examination, did you not, Mr.- Snyder?
“A. I figured there were.
“Q. And what were these things?
“A. Examination, for one.
“Q. And what else?
“A. A urine specimen.
“Q. And what would happen to that urine specimen?
“A. It would have to go to the home office.
“Q. And what would have to happen to the medical examination that was made?
“A. It would have to be approved.
“Q. At the home office; is that correct?
“A. Right.
“Q. Uh-huh, and the urine specimen also would have to be approved?
“A. Right.”
The coplaintiff testified in the same tenor with some semantic difficulty over the word “accepted”:
“Q. Now, referring to this nonmedical business. You realize that Duane, or that Darrel, would have to have a medical examination, did you not?
“A. That’s right.
“Q. And, as a matter of fact, you testified before that Mr. McKenzie gave you some medical papers; is that correct?
“A. He gave them to Darrel.
“Q. Well, gave them to Darrel, but you saw him give them; is that correct?
“A. That’s right.
“Q. And did you also see him give Darrel a little specimen bottle?
“A. Yes.
“Q. Would that bottle be somewhat similar to this one?
“A. It looks about like it.
[41]*41■ “Q. It looks about tbe same, and what did he tell him he’d have to do with reference to the bottle?
“A. Put a specimen in it.
“Q. Uh-huh, and take it'where?
“A. To the doctor. * * *
“Q. Now, Mrs. Snyder, you knew that this specimen that Darrel was to give was to be delivered to Dr. Putzig, right, or that he was to give a specimen to Dr. Putzig. Let’s put it that way. Correct?
“A. That’s right.
“Q. And you also knew, did you not, Mrs. Snyder, that the specimen then would have to be delivered to the home office of the company in Omaha, Nebraska; is that correct?
“A. Uh-huh.
“Q. As a matter of fact, in the policies that your husband had taken out previously, the policy that your boy, Duane, had taken out previously, that’s the same way that that was handled; is that correct?
“A. I believe it was, but I can’t remember that.
“Q. And you also knew, did you not, Mrs. Snyder, that the medical report of Dr. Putzig had to go to the home office; is that correct?
“A. Yes.
“Q. You heard your husband testify to that fact, and you knew, did you not, that both the medical report and the urine specimen would have to be approved at the home office, is that correct?
“A. Wouldn’t the medical —
“Q. Could you — do you understand the question? You knew, did you not, that before an insurance policy could be issued to your boy that both the medical report and the urine specimen would have to be okayed by the home office; is that correct?
“A. Accepted, I didn’t know about the okay.
“Q. Well, accepted. You say accepted, does that mean to you the same thing as being’ okay?
“A. Yes.
“Q- Uh-huh, and both you and your husband did know that; is that correct?
“A. Yes.”
[42]*42In'view of this testimony, it is difficult to understand plaintiffs’ claim that coverage attached immediately the deceased walked out of the doctor-examiner’s office “with a clean bill of health.”
On the issue of undue delay there is a factual conflict but with a serious question as to whether plaintiffs sustained their admitted burden. Significant is plaintiffs’ counsel’s remark in his argument contra the motion for directed verdict:
“Now, Your Honor, this company is not accused of being dilatory. I haven’t found this in the testimony or even in the declaration.”
On this theory, no motion was ever made to conform the declaration to the proofs. However, after the close of plaintiffs’ proofs and the denial of the motion for a directed verdict, and when the defendant’s case was being developed, a new theory of ambiguity of the application developed. It was bottomed chiefly upon inconsistencies in the application form which defendant claimed was obsolete and improperly used by the soliciting agent. The blank contains the legend “nonmedical only — use regular application for medically examined cases.” Buttressing this statement with the testimony of the chief witness for defendant that the company does issue policies effective on examination, and some additional concessions on cross-examination that certain company advertising for an ordinary life plan recites “your protection is established with your first deposit,” a persuasive basis for an ambiguous application form was made. However, as urged by defendant this is at total variance with the concept of complete reliance on the agent’s oral representations and wholly unrelated to the theory of undue delay and waiver.
On this somewhat confused conflict of theories and again after defense motion for a directed ver[43]*43diet, the jury received the case. Defendant’s requests to charge in the form submitted were all rejected by the court and his charge was general in nature. It is in the charge as related to the testimony adduced that we find merit in defendant’s position on appeal.
We acknowledge copious briefing, ample appendices, and oral argument by appellee, but we believe the essential issue is narrow and obviates discussion of the plethora of citation.
Persuasive is the concluding paragraph of defendant-appellant’s brief:
“The trial judge’s charge to the jury was in error because, among other things, it failed to give, as requested, defendant’s theory of the case.”
Fairly read in its entirety we must agree, not unmindful in so holding, of appellees’ contention that if error it were, it must be shown to have been prejudicial error.
After the general statement of the theories of plaintiffs’ case, without any distinction as to which of the 3 required what specific proof, the court said:
“Now, if you find that a contract existed covering •the life of the deceased based upon the agreement between the deceased and McKenzie, then you will find for the plaintiffs. If you find that a contract based upon Mr. McKenzie’s statement that the deceased was covered from the time of the physical examination did not exist, then you pass on to the next question — Did the defendant delay an unreasonable length of time in accepting or rejecting the application? In considering this question you should consider the testimony of Dr. Putsig that he sent the medical report on November 3,1960, and he sent the urine specimen on November 5,1960, which specimen at the earliest would have reached the defendant on November 7 or 8, 1960, and that the deceased [44]*44ioas injured on November 13, I960.” (Emphasis supplied.)
The composite effect of the whole charge with this pointed reference to plaintiffs’ theory limited the jury in effect to the consideration of none of the testimony — lengthy and detailed — that the company could not act timely because it never received the completed medical examination. Under the equivocating nature of the medical examiner’s testimony as to the date of mailing and the manner in which it was mailed, as against the supervising underwriter’s testimony that it was not in fact received, defendant was entitled to instruction that an issue of fact on this precise point was created. It was the whole basis of the defense to the plaintiffs’ second declared theory in paragraphs 9 and 12 of. the declaration. As the issues were submitted the court’s charge in its essence was:
“If you believe plaintiffs’ testimony, you will find for them, if you disbelieve them, you will not.”
A careful reading of the charge reveals that nowhere did the court outline, in anywhere near equal detail, defendants’ theory, nor does it pose those evidentiary or testimonial premises of fact-finding which would have entitled defendant to a verdict.
We have long recognized the overwhelming impact of the charge of the court upon the jury, and the need for the most meticulous avoidance of emphasis on the theory of one or the other of the parties to & cause. Few, if any members of the bar with experience as trial advocates, are not acutely aware of the marked change that takes place in the whole mien of the jury when the bombast of argument is concluded and the presiding judge, reminding the jurors of their oaths, to take the law applicable to the facts from him, begins his charge. Early in our State jurisprudence, this Court announced:
[45]*45“Appellate courts must presume that one occupying so important a position as that of circuit judge can influence a jury.” (Emphasis supplied.) McDuf v. Detroit Evening Journal Co., 84 Mich 1, 10 (22 Am St Rep 673).
Abiding this premise, the effect of the presentation of the theories in the manner done here is manifest, It amounted to an exclusion of the consideration of the defendant’s theory and provided no guidance in the application of the factual evidence adduced by it to that theory. On this point this Court unanimously deciding recently, quoted with approval what we believe to be the controlling principle as stated, in 53 Am Jur, Trial, § 626, p 487:
“Each party to an action is entitled to have the jury instructed with reference to his theory of the case, where such theory is supported by competent evidence and the instruction is properly requested, and this although such theory may be controverted by evidence of the opposing party.” Schattilly v. Yonker, 347 Mich 660, 666.
The situation here meets all the requirements of the foregoing holding. Mr. Griller, defendant’s principal witness, testified:
“Q. Now you say that to your knowledge the medical report never came into the home office?
“A. That’s correct.”
This testimony is in direct factual conflict of Dr. Putzig’s:
“I filled out and completed this form * * * I put down my findings and I couldn’t find the envelope so I typed one out and I took that and 3 other envelopes to Edmore and I mailed them there.”
“Q. And to whom did you address that envelope ?
“A. To the United Benefit Life Insurance Company.
[46]*46“Q. And you personally?
“A. I think they are in Chicago, I’m not sure.
“Q. Omaha?
“A. Omaha, Nebraska.” (Emphasis supplied.)
Particularly in view of the foregoing, defendant was entitled to some reference to its factual version of the question of mailing and receipt. Defense counsel specifically requested a charge that “if you believe the testimony of the defendant that no report of the medical examination was ever received by it * * * then you must bring in a verdict in favor of the defendant.” The whole theory of defendant’s defense is contained in 1 paragraph of 18 lines of the court’s charge. It is barren, as is the balance of the charge, of any reference to the issue of non-receipt of the examination. Under the charge here, defendant may have had a slightly better chance than the didus ineptus recently adverted to by Justice Black in his opinion in Mack v. Precast Industries, Inc., 369 Mich 439, 448, but if it did, it was only infinitesimally more so.
• At the conclusion, the court asked counsel:
“Q. Do you have anything further, Mr. Harper?
“A. No, Your Honor.
“The Court: Mr. Hoffeins? [Defense counsel.]
“Mr. Hoffeins: No comment other than the ones I had in chambers, Your Honor.”
By this time of course the requests to charge had been refused.
For the reason hereinbefore specified and under the holdings in McDuff and Schattilly, we are constrained to reverse. The verdict is set aside and the cause remanded for a new trial. Costs to the defendant.
. Carr, C. J., and Dethmers and Kelly, JJ., concurred with O’Hara, J.