
    CARTER v. LIFE & CASUALTY INS. CO. OF TENN.
    No. 11897.
    March 11, 1938.
    
      Maddox ■& Griffin, for plaintiff.
    
      Wright & Covington, Sydney F. Keeble, and Joseph L. Myerson, ■for defendant.
   Atkinson, Presiding Justice.

“The insurer is not estopped by waiver from asserting its rights under the limitation of insurance clause, that, ‘within two years from date of issuance of.this policy, •the liability of the company under same shall be limited, under .the following conditions, to the return of the premium paid thereon: . . (1) If the insured before its date has been rejected for insurance by this or any other company, order or association, or has been attended by a physician for any serious disease or complaint, or has had- before its date any pulmonary disease or chronic bronchitis, or cancer, or disease of the heart, liver, or kidneys,’ where the amount of the premiums to be paid are equitably based on the kind of insurance policy issued, and both parties contract with the knowledge that before the date of issuance of the policy the insured suffered with a serious disease or complaint, and the evidence authorized an inference that the serious disease or complaint was one of the elements that entered into and brought about the particular kind of insurance . contracted.” The case is for decision on certiorari from the ruling of the Court of Appeals just quoted. Upon full consideration, the Supreme Court has reached the conclusion that the ruling of the Court of Appeals is correct. As brought out in the opinion of the Court of Appeals, the instant case differs from Metropolitan Life Insurance Co. v. Hale, 177 Ga. 632 (170 S. E. 875), in which case there was a provision that the policy might be declared void under similar circumstances.

Judgment affirmed.

All the Justices concur.  