dissenting. Code Ann. § 56-2409 of the Insurance Code adopted in 1960 (Ga. L. 1960, p. 289 et seq.) provides that misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy unless fraudulent, or material to the acceptance of the risk or the hazard assumed, or the insurer would not have issued the policy at the premium rate applied for if the true facts had been known to it. Thus, I cannot concur with Judge Evans’ dissent because I do not believe there was any burden on the insurer, if it proved by uncontradicted evidence that there was a misrepresentation material to the risk, to go further and offer evidence that it would not have issued the policy, at least at the premium rate specified, if it had known the true facts. Where, as here, the possible defenses are in the alternative, the insurer need prove only one of them.
*13However, to reverse this jury verdict in favor of the plaintiff and to direct that it be entered in favor of the defendant we must necessarily hold that there is no evidence, or inference, from which a jury question could be extrapolated. The majority opinion is based on plaintiff’s evidence on the trial (a) that he did receive certain treatment from a chiropractor which is not listed in the application, and (b) he did receive certain disability payments which are not listed in the application. Were this all, I would willingly abide the majority opinion.
But in both instances there is uncontradicted evidence by the plaintiff which clearly disproves that these facts were misrepresented by him. As to the treatment by Dr. Smith the testimony is:
"Q. Did you to the best of knowledge tell [the insurance agent] exactly what Mr. Whelchel has asked you about, that you had been to Dr. Smith for these other injuries? A. Yes, sir. Q. And tell the court what his statement was to you? A. Well, he said they didn’t go by chiropractor doctors, it has to be sort of a physical doctor, in other words; that insurance companies would pay on what chiropractors said, but they wouldn’t go by chiropractors for an examination.”
On the question of whether the plaintiff misrepresented previous disability claims the testimony is as follows:
"Q. Did you also tell [the agent] at the time that you had filed or had made some applications for other disability? AYes, I sure did. I told him everything that had ever happened to me that I knowed of, cause I didn’t have nothing to hold back, wasn’t out for insurance at all cause he come to me wanting it, to sell me insurance. Q. Did you tell Mr. Beegle [the agent] everything that you told Mr. Whelchel [the examining attorney]? A. Yes, sir, everything I told him, I told him.”
It is also uncontradicted that plaintiff orally answered the application questions read by the soliciting agent and that the agent wrote them on the form with the statements set out above, and that the plaintiff then signed the form. I agree that in view of the plaintiff’s testimony on the trial *14the answers on the application constitute misrepresentations, but the uncontradicted testimony is that they were misrepresentations of the agent, not the applicant. I grant that if the limitation on the authority of the agent appeared on the application here as it does on the application in Prudential Ins. Co. v. Perry, 121 Ga. App. 618, 623 (174 SE2d 570), the fact that plaintiff, who was able to read and was not prevented from reading, could not raise the question. That case contained a specific agreement between the parties that the agent had no authority to waive the answer to any question, or to waive any condition applicable to any insurance coverage, or to waive any of the company’s rights or requirements in relation thereto, which language should have put the applicant on notice that he could not rely on the agent in any way, shape, or fashion. The application here says only: "I agree that the company shall not be bound by any promise or statement made by any agent.” Since the language of this application does not include a waiver or exception to the general rule that knowledge of the agent within the scope of his business is knowledge of the principal, we must assume that when the agent knew, but deemed fit not to write on the application, the facts that the plaintiff had been to a chiropractor and that he had made previous disability claims, this knowledge became the knowledge of the insurance company. If, with that knowledge imputed to it, it issued the policy, then it cannot claim that the misrepresentation, by whomever made, was material to the risk or to the hazard assumed. If the misrepresentation was not material, the insurer is not entitled to void the policy on this ground. Allstate Ins. Co. v. Anderson, 121 Ga. App. 582 (2) (174 SE2d 591). As Judge Evans pointed out, it cannot void it for the third reason stated in Code Ann. § 56-2409 because the defendant offered no testimony which indicated it would have refused or re-rated the risk if it had considered these facts. It cannot void the contract for fraud, among other reasons, because it cannot contend it relied upon the misrepresentations in issuing the policy. Under these facts, while a *15jury might have disbelieved the plaintiff’s testimony and rendered a verdict in the opposite direction, it did not, and this court cannot, do so.