dissenting.
It is clear that appellee Mrs. Schneider’s admissions and affidavit later filed are in conflict. The question is should that version of the matter most favorable or unfavorable to her be adopted. Many times the case of Burnette Ford v. Hayes, 227 Ga. 551 (181 SE2d 866) (1971) is erroneously cited as holding that “the testimony of a party offering himself as a witness in his own behalf is to be construed most strongly against him when it is contradictory, vague, or equivocal.” Actually this is a quote from Ryder v. Schreeder, 224 Ga. 382 (162 SE2d 375) (1968), which is cited in Burnette, supra. The latter case is the antithesis of the former. The Ryder case seems to be the rule where both parties make motions for summary judgment. The Burnette rule appears applicable where only one party makes a motion for summary judgment and holds: “ ‘Where the evidence on motion for summary judgment is ambiguous or doubtful, the party opposing the motion must be given the benefit of all reasonable doubts and of all favorable inferences and such evidence construed most favorably to the party opposing the motion. [Cit.]’ ”
The Burnette rule wherein only one summary judgment is involved has been modified by Chambers v. C. & S. Nat. Bank, 242 Ga. 498, 502 (249 SE2d 214) (1978). “ ‘(A) party testifying in his own favor has no right to be intentionally or deliberately self-contradictory; and if he is so, the courts are fully justified in taking against him that version of his testimony which is most unfavorable to him.’ [Cit.]” This latter case also dealing with summary judgment is adopted from Western & A. R. Co. v. Evans, 96 Ga. 481, 486 (23 SE 494) (1895), a case involving a verdict rendered by a jury. Judge Birdsong points out in his special concurrence in *772Combs v. Adair Mortgage Co. 155 Ga. App. 432, 434 (1980), that the words “intentional” or “deliberate” are contained in the body of the opinion of Evans, supra, but not in the headnote. He states that the ratio decidendi is in the headnote. However, the headnote must yield to the opinion itself. Deck v. Deck,1193 Ga. 739, 745 (20 SE2d 1) (1942) citing many cases emphasizes that “the headnote to a case ... is so far law only as it is sustained by the judgment of the court in the case.” See also Bass v. State Farm &c. Ins. Co., 128 Ga. App. 285, 294 (196 SE2d 485) (1973).
The Supreme Court held in Combs v. Adair Mortgage Co., 245 Ga. 296, 297 (264 SE2d 226) (1980) “this court continues to adhere to the rule enunciated in Burnette Ford, Inc. v. Hayes, supra, and views the holding in Chambers v. Citizens & Southern National Bank, supra, as one which came about as a result of factual differences.”
The case sub judice involves only one summary judgment. A review of the evidence contained in the record reveals that there was no indication that Mrs. Schneider intentionally or deliberately created a conflict in her testimony as the party responding to the motion for summary judgment in Chambers, supra. In fact Mrs. Schneider stated in her affidavit: “I had never visited or been treated by any other medical doctor other than Dr. Barfield who was listed on the application for insurance.” She stated that she did not mention headaches to her optometrist which constituted a routine eye checkup. She also said that her visit to the chiropractor was for relieving tension and anxiety and not treatment for headaches. The real issue to be determined by a jury is whether or not, based on the evidence of two visits to a medical doctor who treated the applicant for headaches, can this court say as a matter of law that treatment for headaches on two different occasions be adjudicated “frequent headaches”? On a continuum of one to seven, one being “not frequent” and seven being “frequent,” where on the continuum does “not frequent” stop and “frequent” begin? This is indubitably a question that can only be properly resolved by a jury.
There appears to be no limitation of authority of the agent on the application wherein the health questions were listed and which were signed by the applicant. In paragraph 4 of “Plaintiff’s Admissions of Facts and Genuiness of Documents” it is apparent that applicant and insurance representative had an oral discussion as to the meaning of headaches. “Defendant understood question after discussing with *773insurance representative that this did not mean normal or everyday headaches. Her answer to defendant’s question is that she has never had frequent headaches or any other nervous disorders.” Knowledge of the agent is knowledge of the company. The agent telling Mrs. Schneider not to list or count certain type of headaches is the same as the company speaking unless the authority of the agent has been limited and the applicant has notice of this limitation. On the page signed by the applicant in response to the health questions and doctor’s information there appears to be no limitation of authority on the agent.
“Absent a clear and unequivocal limitation on the authority of an agent of an insurance company, and absent fraud and collusion between the agent and the prospective insured, the actual knowledge of the agent of facts amounting to innocent misrepresentations in the application for insurance is imputed to the insurer, and the insurer will be estopped to assert that it would not have issued the policy if it had knowledge of the true facts.” Allstate Ins. Co. v. Anderson, 121 Ga. App. 582 (2) (174 SE2d 591) (1970). See also Reserve Life Ins. Co. v. Meeks, 121 Ga. App. 592 (174 SE2d 585) (1970); Chester v. State Farm &c. Ins. Co., 121 Ga. App. 599 (174 SE2d 582) (1970).
Without a limitation of authority of the agent stated in the application the act of the agent became the act of the insurer. The jury could find that the agent who was acting for the insurance company waived any other listing of “headaches” as distinguished from “frequent headaches,” the latter of which being the only information sought on the application.
I would affirm. I am authorized to state that Presiding Judge McMurray and Judge Smith join in this dissent.Judge Clark’s footnotes refer us to 22 Ga. Bar Journal 574 where “the young writer accurately predicted ‘there will be a not-too-distant era when headnotes will be looked upon as an historical oddity.’ ”