Mutual Life Insurance v. Bolton , 1918 Ga. App. LEXIS 605 ( 1918 )

Jenkins, J.

(After stating the foregoing facts.) The question presented for our consideration is whether the evidence warranted the verdict. Section 2479 of the Code of 1910 provides that “Every applicátion for insurance must be made in the utmost good faith, and the representations contained in such application are considered as. covenanted to b.e true by the applicant. Any variation by which the nature, or extent, or character of the risk is changed will void the policy.” It has been held that “It is immaterial whether the statements made by thd applicant for insurance were representations or warranties, since the effect of such statements must be determined by the provisions of these sections of the code, without reference to whether the statements may be regarded technically as representations or as warranties. If the representations were untrue and the nature or extent or the character of the risk was changed by the representations, the policy was void under the express terms of § 2479.” Ætna Life Insurance Co. v. Conway, 11 Ga. App. 553, 560 (75 S. E. 915). Section 2480 provides that “Any verbal or written representations of facts by the assured to induce the acceptance of the risk, if material, must be true, or the policy is void.” Code-section 2481 provides that “A failure to-state a material fact, if not done fraudulently, does not void; but the willful concealment of such a fact, which would.enhance the risk, will void the policy.” In the case of a representation the important inquiry is: 1st. Was the representation false? 2d. If' false, was it made in reference to a matter material to the risk? In general, it may be said that the test, in determining whether questions contained i'n an application for insurance are material, is whether knowledge or ignorance of the facts sought to be elicited thereby would materially influence the action of the insurer. Ætna Life Insurance Co. v. Conway, supra; Empire Life Ins. Co. v. Jones, 14 Ga. App. 647, 656 (82 S. E. 62). The insured in this case stated unequivocally that he was in good health, and, under the undisputed evidence introduced upon the trial of the case, this was untrue, and, under the'testimony of Dr. Wilson, the insured was suffering from a number of serious disorders, both at the time the application' was made and at the time the policy was issued, which, under his testimony, were material to the risk, and under the ruling made in the ease of Ætna Life Insurance Co., supra, the policy was void. See also Southern Life Ins. Co. v. Hill, 8 Ga. App. 857 (70 S. E. 186). While it is true that the truth and materiality of the representations made by the insured are generally questions of fact for determination by the jury, yet where all the testimony relating to a question of fact excludes every reasonable inference but one, as we think it does in this case, since even the physician introduced by the plaintiff testified that the insured was not in good health at the time the application for insurance was made, and at the time the policy was issued, and the testimony of the other witnesses to the same effect is undisputed, the issue becomes an issue of law for determination by the court. Empire Life Ins. Co. v. Jones, supra.

Under the facts appearing in the record -in this case, the evidence as adduced in the trial in the court below did not authorize a verdict in favor of the plaintiff, and the court erred in refusing a new trial.

Judgment reversed.

Wade, C. J., and Lulce, J., concur.