
    13507.
    Brown, adm'r, v. Mutual Life Insurance Company of New York.
   Stephens, J.

1. Statements made in an application for life insurance will not, if false, void the policy issued thereon unless they were material and operated to change the nature or character of the risk. This materiality, when not indisputably established by the evidence, is a matter for determination by a jury. Supreme Conclave v. Wood, 120 Ga. 328 (47 S. E. 940); Ætna Life Ins. Co. v. Moore, 231 U. S. 543, 554 (34 Sup. Ct. 186, 58 L. ed. 356); Southern States Life Insurance Co. v. Morris, 24 Ga. App. 746 (102 S. E. 179); Empire Life Insurance Co. v. Jones, 14 Ga. App. 647 (3) (82 S. E. 62); Ætna Life Ins. Co. v. Conway, 11 Ga. App. 557 (75 S. E. 915); Park’s Code (1910), §§ 2479, 2480, 2481, 2499(a).

2. A physician designated by a life-insurance company to examine applicants for life insurance acts as an agent of the company in receiving answers to medical questions propounded to an applicant, and any infoi'mation given to the physician in answer to such questions is information to the company, although such information did not appear in the application signed by the applicant and the application contained answers giving information to the contrary. Fair v. Metropolitan Life Ins. Co., 5 Ga. App. 708 (63 S. E. 812); Insurance Co. v. Mahone, 21 Wall. 152. In an action upon the policy the answers actually given by the applicant to the medical examiner, although in conflict with those contained in the written application signed by the applicant, may be placed in evidence by the testimony of one who heard them at the time they were made to the medical examiner. Where such statements by the applicant made to the medical examiner were to the effect that the applicant had malarial fever ” about one year before the time of the application and had been treated therefor by two physicians whom she named, who were other than the physicians whose names appear in the application as the only physicians who treated her, such statements to the medical examiner were relevant as evidence tending to establish- information on the part of the insurance company affecting the materiality of the risk, and it was therefore error to exclude them from evidence.

3. Where in such a suit the insurance company, in addition to the defense above stated, defended upon the ground that the applicant was not in good health at the time the policy was delivered, evidence that the agent of the company delivering the policy to the applicant had knowledge of facts stated above in paragraph 2 of the syllabus, which were not contained in - the application, was relevant and material as showing that the company at the time of the delivery of the policy had knowledge of facts which pnt them upon notice that the risk was impaired at the time of the delivery of the policy; and the exclusion of this evidence was error. Johnson v. Ætna Ins. Co., 123 Ga. 404 (51 S. E. 339, 107 Am. St. R. 92); Mechanics &c. Ins. Co. v. Mutual &c. Asso., 98 Ga. 262 (25 S. E. 457).

Decided March 1, 1923.

' Action on insurance policy; from Ben Hill Superior court'—■ Judge Gower. March 18, 1922.

Application for certiorari was denied by the Supreme Court.

A. J. é J. G. McDonald, for plaintiff.

Smith, Hammond & Smith, Qvincey & Bice, for defendant.

4. Statements made by the applicant that the only diseases from which the applicant had suffered since childhood were one attack of “ typhoid fever ” for a period of four weeks twenty years before the date of the application, and “ nervousness ” for a period of three weeks sometime during the year prior to the date of the application, and that during the five years prior to the date of the application she had on a named date consulted only one physician, whose name is given, will, if false and untrue, create an. issue for determination by a jury, when taken in connection with the evidence erroneously excluded and other relevant evidence in the case.

5. The materiality of the alleged false representations made by the ap- ■ plicant being a conclusion and ordinarily a question for the jury, it was error to permit a medical officer from the home office of the company to testify that had the defendant company known of the falsity of the representations contained in the application, the company would not have accepted the risk. It was proper for such witness to testify to facts tending to establish the materiality of the representations alleged to have been made in the application as affecting the risk.

6. An official of the insurance company cannot testify as to the lack of knowledge on the part of the insurance company, or any of its officers other than himself, of the falsity of the representations made in the application.

7. This being a suit by the beneficiary against the insurer to recover on the policy, and a verdict having been found for the defendant as directed by the court, and the court having erred in certain rulings upon testimony as here indicated, it was error to overrule the plaintiff’s motion for a new trial.

Judgment reversed.

Jenlcins, P. J., and Bell, J., concur.-  