ON MOTION ROE REHEARING.
MacIntyre, J.The movant contends that “the court further overlooked the fact that even if it were proper to leave to the jury the question of good faith or fraud in the original application, yet under the undisputed facts fraud was demonstrated and proven beyond question as to the condition of the health of the insured at the time of the delivery of the policy, and as to the change in his physical condition between the time of the application and the delivery of the policy, and his actual knowledge at the time of the delivery of the policy that he was not in good health,' and that it was error to leave this question for decision by the jury.”
The evidence authorized the jury to find that Dr. Mathews was the examining physician on behalf of the insurance company; that he examined the insured on December 12, 1936, and thereupon recommended, his acceptance, and that the insured was re-examined at various times over a period of about three months; that at one time the insured became exasperated at the delay in issuing him *426a policy and requested a return of his application for insurance, and the insurance company asked him to withdraw this request, which he did; and that from time to time he reported to Dr. Mathews what he thought was a mere temporary indisposition, and finally the policy came and he accepted it, stating in the receipt: “I certify that there has been no change in my occupation, residence, or family history, that I have suffered no illness, or injury.” The jury was further authorized to find, under the circumstances, that Dr. Mathews had examined him at least three or four times after the original examination, certainly on the 15th, 18th, 22nd, and 28th of February, 1937, and stated: “I found nothing particular on any [of these] examinations.” The fact that on March 3,. 1937, two' days before the policy was delivered to him on March 5, 1937, the insured discovered a small mass or lump in his abdomen, which he immediately' reported to Dr. Mathews, was not conclusive that the deceased knew that he had suffered from an illness such as would void the policy as is contemplated in insurance law (see Black’s definition of illness in the opinion, supra), especially when it appears that the doctor himself, on examining the deceased, could not locate the mass or lump, except that it was somewhere in the abdomen, and, later on, its location was discovered only by x-ray by another doctor and its location and character were told to the insured only after he had accepted the policy.
Dr. Mathews, as examining physician for the insurance company, éxamined the insured on December 12, 1936, and from then until the time of the acceptance of the policy by the insured on March 5, 1937, the insured reported every indisposition to Dr. Mathews, and the testimony of Dr. Mathews does not demand a finding that he (the doctor) ever told the insured he was suffering from an illness or serious disease in contradistinction to a mere temporary indisposition, nor does the testimony disclose that Dr. Mathews ever notified the insurance company that the deceased was suffering from such illness before the issuance and delivery of the policy. A failure to so report by Dr. Mathews, whether acting for the insured or for the insurance company, might have been considered by the jury as a circumstance to show that Dr. Mathews, himself, did not consider the ailment or indisposition as serious until after Dr. Birdsong had x-rayed the deceased and had re*427ported his finding to Dr. Mathews, which was after the delivery of the policy. The fact that the insured concealed nothing relative to any physical indisposition, from Dr. Mathews, but reported to him all such matters, might also have been considered by the jury as a circumstance tending to show that the insured did not know that he was suffering from anything other than a mere temporary indisposition. Dnder the facts and circumstances of this case we think it was a question for the jury to determine whether the deceased knew, at the time of the delivery of the policy, that he was suffering from a disease or ailment which was of such character as to affect the general soundness and healthfulness of his system generally, and not a mere temporary indisposition which did not tend to undermine or weaken his constitution.
Moreover, was it not a jury question as to whether Dr. Mathews, the examining doctor, was the agent of. the insurance company, even up until the time of the acceptance of the policy? The jury might have determined that the examination was not entirely completed immediately after Dr. Mathews recommended an acceptance of the deceased as a proper risk, or if completed, that it was reopened, for the insurance company thereafter was calling on the deceased for an additional specimen of urine to be delivered to Dr. Mathews, the physician they had designated to examine him. If he was not its agent for determining if and when the deceased was or was not a proper risk, when did he cease to be its agent ? The only definite testimony in the record relative to this is that on February 17, 1937, the company was asking that Dr. Mathews, the doctor who examined the deceased, be given another specimen of the deceased’s urine, and the company receiving a specimen on February 23, 1937. Dr. Mathews says he examined the deceased on February 15, 1937, at his (the doctor’s) instance, and that he was acting as the deceased’s physician. We think it was for the jury to reconcile this testimony, if they could; and, if they could not, to decide whether at this time Dr. Mathews was the agent of the insurance company, and if so, whether he or the insured, or both together, perpetrated a fraud on the company, or whether Dr. Mathews merely thought the. insured had a temporary indisposition and not a serious illness, and for that reason did not think it necessary to inform either the insured or the insurer until after the x-ray had been made and Dr. Birdsong had completed his examina*428tion, a report of which was not made to the insured until after the acceptance of the policy. Therefore, if the insured gave Dr. Mathews all the information in his possession, and the symptoms did not disclose to Dr. Mathews a serious illness as contemplated in insurance law, the jury were certainly authorized' to find that the insured also was unaware of such illness. We can only repeat that the evidence authorized a finding by the jury that the applicant for the insurance had acted in the utmost good faith, and had fairly disclosed to the company, through its doctor, all of live information in his possession which would throw any light on the condition of his health and the desirability of his risk; and that even though it developed that he suffered from a disorder, as to which he had no knowledge and the existence of which was not ascertained by the examining phyiscians, the policy would not be void. We think the motion for rehearing should be denied on each and every ground thereof. Rehearing denied.
Broyles, O. J., and Guerry, J., concur.