In the motion for a rehearing of this case counsel for the movant cite Vaughn v. National Life c. Co.,*Page 618189Ga.121 (5S.E.2d238), which they admit was not cited in their original brief, where the court said: "Physicians could be consulted on numerous matters that would not materially change the nature or extent or character of the risk. Such consultations, contrary to representations of the insured, manifestly would not under the statute void the policy. No doubt in enacting these statutes [Code, §§ 56-820, 56-821, 56-908] the legislature had in mind the probability of an insured, due to forgetfulness because of its lack of importance, stating in his application that he had not consulted a physician, when in fact he had consulted a physician and received treatment for a cold that had long since disappeared entirely. And by the statutes it was intended to make sure that the family of such an insured should not be denied his insurance money solely because of such innocent and harmless oversight." However, in that case the court also said: "But where the evidence excludes every reasonable inference except that they [the untrue representations made by the insured in his application] were material, no issue is presented upon that point for determination by the jury, and it should be decided by the court." And in the instant case the undisputed evidence demanded a finding that the representations made by the insured were both untrue and material to the risk. Here, the insured had consulted a physician and received radium treatment on several occasions, not for a mere temporary cold, but for a pre-cancerous sore, called "keratosis," on his lip, and had died a few years later from a cancer on the floor of his mouth, although it was not shown that the keratosis was cancerous or that it had any connection with his death.
Rehearing denied. MacIntyre and Gardner, JJ., concur.