Under the facts of this case, it was a question for the jury whether the matters, about which the insured made false or incorrect statements or which he failed to disclose in his answers to the questions asked in the application for insurance, attached to the policy, substantially increased the risk assumed by the company on that particular policy; and the finding of the jury in favor of the plaintiff beneficiary, being supported by evidence and having the approval of the trial judge, will not be disturbed by this court. It follows that the trial judge did not err in overruling the defendant's motion for a new trial based only on the general grounds.
DECIDED JUNE 26, 1946. REHEARING DENIED JULY 25, 1946. Mrs. Mary Milton, as beneficiary, sued Metropolitan Life Insurance Company in the Civil Court of Fulton County to recover the face amount of a policy of life insurance, issued by the company on November 1, 1943, on the life of her husband, Edwin J. Milton, who died October 1, 1944; and alleged that the policy was in force at his death, and that she had given the company due proof of death of the insured. The defendant company answered and admitted the issuance of the policy, that all premiums thereon had been paid, and that it had received proof of the death of the insured; but, except as to the return of premiums paid, which it alleged it had tendered to the plaintiff and which it tendered into court, it denied liability on the ground that the policy was not of force at the death of the insured, because the same had been obtained by false and material representations and concealments of the insured, whereby the risk was enhanced — for that the insured, in his written application for insurance, in answer to the question, "When last sick?" untruthfully answered, "Not for 20 years"; and in answer to the question, "Nature of last sickness?" untruthfully answered, "Childhood illness"; and in answer to the question, "Have you had any illness or occupational disease?" untruthfully answered, "Yes, childhood illness," and gave as the date thereof, "Prior to 1923"; and in answer to the question, "What clinics, hospitals, physicians, healers, or other practitioners, if any, have you consulted or been treated by, within the past five years? If none, so state," untruthfully answered "None"; that *Page 161 each answer was a false and untrue representation, for that on September 10, 1943, the insured had consulted Dr. Charles M. Seigel on account of pains in his stomach and bloody stools, and a physical and X-ray examination was made of him; that on September 10 and 11, 1943, the insured had been examined by Dr. A. Gershon Carmel, placed on a diet, and medication had been prescribed; that on September 24, 1943, he had again consulted Dr. Seigel; that the application for insurance signed by the insured further provided that the insured had read the answers before signing it, and that they were correctly written and were full and complete and there were no exceptions to any answers other than stated therein; and that the failure of the insured to disclose the facts of the examinations and treatment constituted a concealment of facts material to the risk assumed by the defendant, whereby the risk was enhanced, and the policy issued was void by reason of said false and material representations and concealments. The application for insurance was attached to the policy.
On the trial, Dr. Seigel testified in substance: That he was a practicing physician and as such was consulted by the insured on September 10, 1943; that at that time the insured complained of feeling cold, of bloody stools, and of having pain in his stomach twenty-five to thirty minutes after each meal for the previous three or four days; that he questioned the insured, and his past history had no bearing on his illness and he had no serious difficulties at that time; that he examined the insured and his tentative diagnosis was "cause not determined"; that he prescribed a bland diet with a preparation called "gelusil" and capsules of becotin, and treated the insured over the period from September 10 through September 28, 1943, and the insured responded very well to the treatment; that he asked the insured not to smoke or drink (alcoholic beverages) and advised him to drink milk daily; that he did not give the insured a complete diagnosis or tell him what was troubling him, because he had not made a complete diagnosis at that time; that the insured expressed a feeling of illness and discomfort over a continued period of time and was concerned about his condition, for any man who comes to a doctor's office is necessarily concerned about himself.
Dr. Carmel testified in substance that he was a physician specializing in proctology, examined the insured on September 10 and *Page 162 11, 1943, and found some jellied fluid, apparent blood and mucus and feces; but that no definite diagnosis was made and there was no positive finding from the examination as to the source of the bleeding; and the witness did not tell the insured that he had cancer.
Dr. Homan testified in substance: That he was the medical examiner for the defendant in October, 1943; that he did not remember the insured, but recognized his own signature on the application and must have examined the insured; that the printed questions were asked the insured, and the answers on the application were those given by the insured; that — assuming that a man consulted a physician on September 10, 1943, complaining of pain in his stomach and bloody stools, and upon examinations by a proctologist on September 10 and 11, 1943, with the aid of a sigmoidoscope, a small quantity of blood, mucus, and feces was found, but no actual bleeding point was discovered, and the person in an application for insurance on October 1, 1943, concealed the above facts and circumstances — in his opinion, the facts and circumstances would increase the risk assumed by the company and could tend to shorten the life of the insured; and that he gave the insured a physical examination, but did not remember what was found from the examination.
The plaintiff testified in substance: That she married the insured in 1933, and that nothing occurred prior to November 1, 1943, to indicate that he was suffering from physical infirmity of any kind; that the insured had indigestion, which was the only complaint he ever made to her; that he "had a little indigestion, indigestion pains, that is, he called it that, indigestion pains. He would have these indigestion pains right after meals. He would complain of tightness of his stomach after a meal. That is all he would complain of after a meal. That went on about two weeks." There was evidence as to the apparent good health of the insured in October, 1943.
The original policy of insurance and the application for insurance were placed in evidence. The jury found in favor of the plaintiff. The defendant's motion for a new trial was overruled, and the exception here is to that judgment. Under the provisions of the Code, §§ 56-820, 56-821, 56-908, the failure of an application for life insurance to disclose the fact that the applicant had been treated for an ailment within the period of time mentioned in the application, to be a defense to the insurance company in an action on the policy, must be such as to substantially enhance the risk as contemplated in that particular policy; however, it need not be shown that the misrepresented facts actually or probably contributed to maturing the benefits of the policy, in whole or in part, earlier than would have been the case if the representations had been true. Preston v.National Life Ins. Co., 196 Ga. 217 (26 S.E.2d 439, 148 A.L.R. 897), and citations. The materiality of the representations made by the insured in his application for life insurance is ordinarily a question of fact for the jury to decide.Massachusetts Benefit Life Association v. Robinson, 104 Ga. 256 (8) (30 S.E. 918, 42 L.R.A. 261). And the burden of showing that the misrepresentations made in the application were untrue and material is upon the insurance company, where the action is defended upon the ground that the insured, in his application for insurance, made misrepresentations of facts material to the risk. Mutual Benefit Health AccidentAssociation v. Bell, 49 Ga. App. 640 (10) (176 S.E. 124). Also see New York Life Ins. Co. v. Watson, 48 Ga. App. 211 (172 S.E. 602).
While the evidence in the present case shows without dispute that the insured, in his application for insurance, made false or incorrect statements as to the consultation of physicians and treatment by one of them within the time mentioned in the application for insurance, it does not demand a finding that the ailment for which he consulted these physicians and for which treatment was prescribed was other than a mere temporary indisposition, which did not tend to undermine or weaken the constitution of the insured. While one of these physicians testified that the insured complained of "feeling cold, pains in the stomach, bloody stools, pain 25 or 30 minutes after each meal," for three or four days prior to his examination of him, the evidence did not demand a finding that this condition in the insured would have substantially increased the risk to the company had it been informed of the same. The insured was also examined by another physician, but *Page 164 both of these physicians testified that they did not make any definite diagnosis as to what was the matter with the insured at that time, and one of them testified that the insured responded very well to the treatment prescribed. There was no evidence from these physicians as to the cause of the condition testified to by them. The wife of the insured testified that the insured called these pains "indigestion pains," and that they were only of a few days duration.
The cases of Hamby v. American Ins. Co., 73 Ga. App. 531 (37 S.E.2d 217), and Preston v. National Life AccidentCo., supra, cited and relied on by the plaintiff in error, are distinguishable on their facts from the present case, and the rulings therein made do not require or authorize a ruling in the present case different from the one made herein. In the Hamby case, the insured was suffering with diabetes, and in thePreston case the insured was suffering with keratosis, which the medical testimony showed was a precancerous condition. It is generally and well known that diabetes and cancer are dangerous diseases which each year cause the death of many people. Under the facts in those cases, it was properly held that the misrepresentations were material and, as a matter of law, substantially enhanced the risk assumed by the insurance companies in those cases; while, in the present case, the record is silent as to what, if any, disease or malady the insured had or was afflicted with at the time he consulted the physicians and underwent the treatment testified to by them. Nor does it appear what caused the death of the insured. While this is not necessarily essential in this kind of case, still it must appear that there were misrepresentations which substantially enhanced the risk assumed by the insurance company in this particular policy. The court in the Preston case, at page 235, said: "This court knows judicially and without proof that cancer is a dangerous disease, and thus may in like manner know that any condition that tends to become a cancer is more than a trivial ailment. In this case it appeared, without dispute, that the insured had suffered from a keratosis, for which he had been treated with radium, about three and a half years before the policy was issued. It was shown further that a keratosis is regarded generally in the medical profession as `precancerous,' in that it may or may not develop into a cancer; also that even though it may on treatment disappear and *Page 165 be apparently cured, its final development into a cancer, or the development of a cancer elsewhere from the same cause, may be reasonably apprehended; and the insured here had never been dismissed as `entirely well.' These facts appearing conclusively and without dispute from the evidence, it must be held as a matter of law that the condition thus misrepresented was one that substantially increased the risk; and this is true regardless of whether it bore any relation, direct or collateral to the cancer from which the insured died." That case deals with and refers to a number of cases with reference to the question here involved, both from this court and the Supreme Court, and then states: "Something was said on the argument as to the desirability of a more certain and definite rule as to what will constitute a material misrepresentation in a case of this kind. The rule is contained in the Code, and, as we have seen, may be stated in four simple words, substantial increase in risk; but its application will of course depend upon the facts of each particular case, which will necessarily vary, and can not be anticipated further than has been done in such statute.
"An issue as to material representation, like questions as to negligence, proximate cause, and similar matters, should ordinarily be submitted to the jury; yet, just as is also true in reference to the other issues mentioned, where the evidence as a whole excludes every reasonable inference but one, the court may so rule as a matter of law."
Under all the evidence in this case, it was a question for the jury whether the matters which the insured failed to disclose in the answers in his application, or about which he may have made false or incorrect statements, whether they were concealments or misrepresentations, were material to the risk. Metropolitan LifeIns. Co. v. Marshall, 65 Ga. App. 696, 712 (16 S.E.2d 33). The jury resolved the issues in favor of the plaintiff, and its finding is supported by evidence, has the approval of the trial judge, and will not be disturbed by this court.
Pursuant to the act of the General Assembly, approved March 8, 1945 (Ga. L. 1945, p. 232), requiring that the full court consider any case in which one of the Judges of a division may dissent, and there being a dissent on motion for rehearing, this case was considered and decided by the court as a whole, on motion for rehearing, and after consideration of the motion the former opinion *Page 166 and judgment entered in this case is concurred in by a majority of the six Judges of this court, the motion for rehearing is denied, and the judgment of the trial court is affirmed.
Judgment affirmed. Sutton, P. J., MacIntyre, Gardner andParker, JJ., concur. Broyles, C. J., and Felton, J., dissent.