ON REHEARING.
It appears that this court, in the opinion heretofore rendered, *714overlooked an assignment of error, made by the petition for certiorari, as to the ruling of the trial court in rejecting a statement contained in the proof of death, of a physician, Dr. Miller, that he had attended the insured for three months, within two years from the date of her application for the policy, for serious bodily disease or complaint, to wit, that he had attended her during said period for morphinomania, colliquative diarrhoea, and malarial fever, during which time she was bedridden for two months. The proof of death containing this statement had been furnished to the company by the plaintiff, and had been produced by the company to be used as evidence on the trial, in response to a notice duly served on the company by the plaintiff. It was expressly stipulated that the statement of Dr. Miller, referred to, set out in the proof of death, should “be considered as part of the proof of death under [the policy], in accordance with the conditions of said policy,” this agreement being signed by the plaintiff. It also appeared that the plaintiff had introduced in his behalf a portion of the proof of death.
We think the ruling of the justice’s court in rejecting this part of the proof of death, offered as evidence by the defendant, was-error. Besides the express stipulation in the policy, that any statement made in the proof of death should be evidence in behalf of the company, the plaintiff, in making the proof required by the policy, incorporated therein this statement of Dr. Miller, and expressly agreed that it should be considered as a part of the proof, and he had called upon the company to produce this proof of death, to be used as evidence on the trial, and had in fact used that portion of the proof of death which contained a statement of facts beneficial to his claim, and he could not be heard to object to other portions of the proof of death, which the defendant desired to introduce in its behalf. The entire proof of death was clearly' admissible; and the exclusion of that portion which was offered by the defendant, containing the statement of Dr. Miller relating to the physical condition of the insured, was. harmful error.
The defendant relied upon the' breach of two separate and distinct conditions and warranties: first, that the insured stated in .her application for the policy that she was in sound health and without physical or mental defect or infirmity of an)’- kind;. *715and second, that she had not been attended by a physician, within two years from the date of her application, for any serious disease or complaint. The plaintiff set up a waiver as to the breach of the first condition and warranty. The second breach of the condition and warranty, relied upon by the defendant, was eliminated by the ruling complained of. Although the evidence established facts which were sufficient to show a waiver of the breach first mentioned, this did not preclude a defense as to the second breach of the condition of the policy, relied upon as a defense. The policy contained the express condition that it would be void if the insured, before its date, had been attended by a physician for any serious disease or complaint; and in one of the questions propounded to the insured by the medical inspector, in her application for the policy, she was asked to give the names of all physicians who had attended her within two years, “when, and for what complaint;” and to ■ this question she responded that she had been attended by no physician for any complaint during the two years previous to the date of her application for the policy. The statement of Dr. Miller, contained in the proof of death, directly contradicted this representation of the insured, this physician stating that within two years prior to her application for insurance he had attended her for morphinomania, colliquative diarrhoea, and malarial fever, and that during-the time he attended her she was bedridden for two months. It is contended by counsel for the plaintiff that the ruling of the trial court in rejecting the statement of Dr. Miller, above referred to, was, if erroneous, not harmful, as the proof of death showed that the insured had in fact died of bronchitis of only ten days’ duration; and that, therefore, the complaints of diseases for which Dr. Miller had attended the insured in no way contributed to her death, and that the statement made by the insured in her application, that she had not been attended by a physician within two years for any disease or' complaint, was immaterial. The materiality of these representations claimed to have been made by the insured, and which are claimed to have been untrue, relate to the risk assumed by the company in issuing the policy of insurance; and it can not be held, as matter of law, that the fact that the insured had, within two years prior to the date of her application, been attended by a physician for the disease men*716■tioned in Dr. Miller’s statement was not material to the risk. Certainty this 'question was issuable. Section 2097 of the Civil Code provides, that “Every application for insurance must be made in the utmost good faith, and the representations contained in such application are considered as covenanted to be true by the applicant. Any variation by which the nature, or extent, or character -of the risk is changed, will void the policy.” If the representation made by the insured in her application for the policy, that she had not been attended by a physician for any disease or .complaint within two years from the date of her application, was a material representation, and if it varied from the truth in such manner as to change the nature or extent or character of the risk, then the policy is void. In this case, moreover, the effect -of the- policy contract is to provide that the untruth of the statement made bj the applicant, touching rhe fact of her bodily condition as to disease or complaints, or the attendance of a physician on her for disease or complaint within two years from the .date of the application, would render the policy ■void.
“Where an-applicant for life-insurance covenants in his application that the statements made to the medical examiner are true, .and these statements are made a part of the contract of insurance and form the basis of such contract, any variation in any of them, which is material, whereby the nature or extent or character of the risk' is changed, will avoid the policy, whether the statement was made in good faith or wilfully or fraudulently.” Supreme Conclave Knights of Damon v. Wood, 120 Ga. 328 (47 S. E. 940).
For the foregoing -reasons we think the judgment of the superior -court on certiorari, granting a new trial, should be affirmed, instead of .reversed; and 'it is ordered that a judgment of affirmance be .substituted for .the judgment of reversal heretofore ■rendered. Judgment affirmed.