dissenting.
As I understand the linchpin of the majority’s opinion, it is held that while a jury might infer fraud from the testimony of the decedent insured’s wife with reference to the application for insurance, the jury might also infer the absence of fraud due to the ignorance of the widow (a witness to the application) and the illiteracy of her applicant husband in submitting the application. In substance then, the majority concludes that because of a possible lack of understanding a jury issue remains for determination with reference to the sole issue presented to it, whether there was fraud committed by the decedent in applying for the insurance.
In the original opinion in this case, this court remanded the case to the trial court for further consideration of whether false representations were chargeable to the decedent (Bailey v. Interstate Life &c. Ins. Co., 155 Ga. App. 65 (270 SE2d 287)). This was necessitated because no factual illumination was cast on the question as to the source of the medical representations at the original hearing and the record could support a conclusion that all representations in the application emanated from the agent accepting the application.
In our initial decision, this court held that the evidence before the trial court established conclusively that the representation concerning medical history was both false and material. At the second hearing, Mrs. Bailey admitted that her husband answered questions concerning his health indicating a negative answer to those questions. In my opinion, this satisfied the void noted in our first opinion, and established Mr. Bailey’s participation in furnishing the information concerning his health, laying to rest any question that the information originated with him, to the exclusion of the insurer’s agent.
As held in the first Bailey case, supra, misrepresentations will prevent a recovery where the misrepresentation is fraudulent or material to the issuance of the policy. It was established by evidence *616to the satisfaction of this court that the application contained false representations and such representations were material. On the second hearing these representations were shown to have come from the applicant. The insurance company was not required to prove that Mr. Bailey had knowledge of the falsity of a misrepresentation in order to prevent a recovery. See United Family Life Ins. Co. v. Shirley, 242 Ga. 235 (248 SE2d 635). Therefore, it is wholly immaterial that the falsity be known to Mr. Bailey. His illiteracy and his widow’s ignorance (lack of knowledge or understanding) had no relevance to the denial of recovery where a material misrepresentation is shown. Shirley, supra. I would affirm the grant of summary judgment to appellee Interstate Life and Accident Insurance Company.
I respectfully dissent. I am authorized to state that Chief Judge Shulman, Presiding Judge Quillian and Judge Pope join in this dissent.