dissenting. As I view this case, the opinion rendered by the Court of Appeals is based upon a theory which might have been in issue under the pleadings, but which was not the substantial issue under the evidence introduced.
The admissions of the defendant that it issued the policy, that the policy was reinstated after lapse for non-payment of premiums, and that premiums had been paid (which the defendant offered to refund to the beneficiary), were sufficient to make a prima facie case for the plaintiff. The defendant pleaded, however, that certain statements made in an application by the insured for reinstatement of the policy were false, material to the risk, and fraudulent, and that the defendant, “relying on the representations made in said application,” reinstated the policy. Under the admissions made by the defendant and the allegations of defense, the burden was on the defendant (unless it otherwise appeared from the evidence) to prove not only that the statements made by the insured were false, but that they were material to the risk, and fraudulent, in that the defendant relied upon the false representations. O’Connell v. Supreme Conclave Knights of Damon, 102 Ga. 143 (2) (28 S. E. 282, 66 Am. St. R. 159); Vaughn v. National Life &c. Ins. Co., 189 Ga. 121 (1) (5 S. E. 2d 238); Metropolitan Life Ins. Co. v. Joye, 77 Ga. App. 357, 361 (1) (48 S. E. 2d 751).
In Code § 56-904 (codified from Ga. L. 1906, p. 107), it is provided that no application for life insurance (when referred to in the policy) shall be received in evidence, either as a part of the policy of insurance, or as an independent contract, unless a correct copy of the application signed by the applicant is contained in, or attached to, the policy. In this case the application for reinstatement was not attached to the policy. It is not, therefore, to be regarded as a part of the contract. Torbert v. Cherokee Insurance Co., 141 Ga. 773 (82 S. E. 134). This fact, however, would not prevent the defendant from pleading and proving that the insured made false statements, material to the risk, and that the statements were fraudulently made.
In Bankers Health &c. Ins. Co. v. Hamilton, 56 Ga. App. 569, 571 (193 S. E. 477), Judge Sutton, for the Court of Appeals, stated in the opinion: “The conduct of the insured must not only be fraudulent, but the representation must be false and material to *254the risk.” See also Code §§ 56-821, 56-822, 56-824; Northwestern Life Ins. Co. v. Montgomery, 116 Ga. 799 (2) (43 S. E. 79); Johnson v. American National Life Ins. Co., 134 Ga. 800 (68 S. E. 731); Guaranty Life Ins. Co. v. Johnson, 60 Ga. App. 292, 294 (2) (3 S. E. 2d 773); National Life &c. Ins. Co. v. Boyd, 66 Ga. App. 722, 725 (19 S. E. 2d 210); Progressive Life Ins. Co. v. Gazaway, 67 Ga. App. 339 (20 S. E. 2d 189).
In the present case the only testimony offered by the defendant was that of its agent, who testified that he filled in the application for reinstatement of the policy, that the insured read it over, and signed it. Based on the uncontradicted testimony of Dr. T. H. Moss (a witness for the plaintiff), the jury would have been authorized, if not required, to find that the answers appearing in the application were false. Dr. Moss testified that the insured had a posterior gastric ulcer, and that by an operation he removed the affected area.
The establishment of one fact by uncontradicted testimony, the falsity of answers in the application, was insufficient to establish the affirmative defense offered by the defendant, that the answers appearing in the application were false, material, and fraudulent. Under the evidence and admissions of the defendant, it appears that the insured died of a heart condition. On the question as to whether or not the ulcer of the insured and the operation performed, by Dr. Moss increased the risk, Dr. Moss testified: “As to whether I considered the operation successful or not, yes, I thought he did awfully well. As to whether he recovered, yes, I considered he was well. . . As to whether there was any causal connection between his death and the operation, I would not think there was. As to whether the operation shortened his life, I do not think so. I think it lengthened it. . . As to whether that man’s health was not as stable and as good and substantial as a man who never had had an operation, I .can’t answer that. . . As to whether he would have been better off if he had never had the ulcer, he would have been a better risk.”
In Brown v. Mutual Life Ins. Co. of New York, 29 Ga. App. 794 (116 S. E. 559), it was said: “Statements made in an application for life insurance will not, if false, void the policy issued thereon unless they were material and operated to change the *255nature or character of the risk. This materiality, when not indisputably established by the evidence, is a matter for determination by a jury.”
Under the testimony of Dr. Moss, it was a question for jury determination whether or not the nature and character of the risk was materially changed by the ulcer and operation performed on the insured.
As to fraudulent representations, it must appear that they were acted upon by the defendant. The defendant failed to offer the testimony of any representative of the company that it acted on such false representations. A misrepresentation not acted upon is never a ground for annulling a contract. Code § 96-202. Having failed to establish its affirmative defense of fraud by any competent evidence, the defendant was not entitled to a directed verdict.
The second question considered by the Court of Appeals was not germane to a proper result and could not have been injurious to the plaintiff.
The question arises as to whether or not this court in reviewing the Court of Appeals could, and should, have considered the failure of the defendant to prove its affirmative defense. The writer is familiar with the requirements of Rule 45 of this court, to the effect that the application for certiorari must plainly specify “the decision complained of and the alleged errors.” This court has said a number of times that it will consider only the assignments of error made in the petition for certiorari. Neither the statement contained in Rule 45, nor the line of decisions referred to, are controlling in granting certiorari, the object being “to do full and complete justice in the premises.” (Court rule 45.)
The Constitution of 1945, art. VI, sec. II, par. IV (Code, Ann., § 2-3704) provides: “It shall also be competent for the Supreme Court to require by certiorari or otherwise any case to be certified to the Supreme Court from the Court of Appeals for review and determination with the same power and authority as if the case had been carried by writ of error to the Supreme Court.” This provision of the Constitution of 1945 was added to the Constitution of 1877 by amendment in 1916.
The Constitution fixed the powers of the Supreme Court per*256taining to certiorari, and the court has held by full-bench decisions that it has “jurisdiction to rule upon the assignments of error in the bill of exceptions from the trial court.” Gulf Paving Co. v. City of Atlanta, 149 Ga. 114 (99 S. E. 374); Forbes v. Mayor &c. of Savannah, 160 Ga. 701 (2) (128 S. E. 806). See also Central of Ga. Ry. Co. v. Yesbik, 146 Ga. 620 (91 S. E. 873).
Therefore, independently of the majority finding that “on the information which the applicant furnished, the insurer reinstated his policy on November 29, 1951” (which is itself a ruling purportedly on the evidence, and which shows the materiality of the evidence), this court has the power to determine the real issues in the case.
The judgment of the Court of Appeals was correct. It has long been the rule that a correct judgment should not be reversed because an incorrect reason may have been given for the judgment. Central of Ga. Ry. Co. v. Yesbik, 146 Ga. 769, 778 (92 S. E. 527). I therefore dissent from the judgment of reversal.
I am authorized to say that Presiding Justice Wyatt and Justice Mobley concur in this dissent.
Wyatt, Presiding Justice, dissenting. I can not agree with the majority opinion in this case, and I concur in all that is said by Justice Head in his dissenting opinion.
I am further of the opinion that the ruling made by the majority opinion is erroneous for the reason that the law permits evidence of good character to be introduced under the circumstances appearing in this case. It is my opinion that, since the law does permit the introduction of this type of evidence, when it is introduced it certainly raises an issue that should be decided by a jury.