The application for the policy sued on was dated June 23, 1942. The policy was issued on July 6, 1942. The insured died on July 21, 1943. The policy contained the following limitation-of-liability clause: "Limitation of insurance. (d) If the insured within five years prior to the date hereof *Page 831 has had medical or surgical attention not specifically stated in the application thereof, or if the insured prior to the date hereof has had any illness or disorder of the kidneys . . the liability of the company under this policy shall be limited to the return of the premium paid, provided, however, that the limitation contained in this clause shall not be effective after two years from the date of this policy." To question No. 20 in the application for insurance: "What medical or surgical attention have you had in the last five years?" the insured answered: "None." The insured also subscribed to the following statement in the application for the insurance: "I hereby certify that except as stated in this application . . I have never had . . kidney disease." The policy and the application for insurance were introduced in evidence and the uncontradicted testimony of the two witnesses who were present when the insured made and signed the application was that the agent of the insurance company asked the insured what medical or surgical attention she had had in the last five years (question No. 20 in the application), and she answered: "None." The uncontradicted testimony of Dr. Phinizy was that he attended the insured on April 7, 9, and 15, 1942, and that she suffered a chronic illness of some months' duration characterized by severe anemia, hypertension, and albuminuria. This was just a little more than two months before she made the application for the policy sued on.
The present case is almost identical with that of BankersHealth Life Ins. Co. v. North, 68 Ga. App. 677 (supra), where it was held: "The limitation-of-liability clause contained in this policy was the proper subject of contract between the insurer and insured, and, in the absence of fraud or misrepresentation on the part of the insurer or its authorized agents, was binding on the insured." The same form of policy issued by the same company and an untruthful answer to the same question in the application for the insurance are involved in the present case as in the North case, and the insured in this case, as was true in the North case, was suffering with kidney trouble, or had been so suffering very recently before making application for the insurance. In these circumstances I think this case is controlled by the North case, and not by the principles ruled in the cases cited in the majority opinion. Accordingly, a verdict was demanded for the insurance company. *Page 832