Whеre the insured, in an application for insurance, attached to and made a part of the policy of insurance issued, untruthfully answered a question as to whether he had ever had any ailment or disease of heart or lungs, and the evidence showed that insured had a markedly enlarged heart as a result of rheumatic fever, wetness of the lungs, and swelling оf both ankles, before the signing of the application, and that the affliction continued until the insured’s death, and where а question as to what physicians insured ever consulted was answered “None,” when the evidence showed that insured had bеen treated by a physician, from about a year before the date of the application until the time of his death, for rheumatic heart disease, from which he died in less than a year from the date of the application for insurance, the finding was demanded that the representations were untrue and materially increased the risk of the insurance company.
National Life &c. Ins. Co.
v.
Gordon,
183
Ga.
577 (
What has been said in division 1 applies also to the effect of notice of the agent with respect to the condition of the insured, in view of the provisions as to the limitation of the agent in both the aрplication and the policy, and to the provision in the application and the policy that the contract of insurance would not become effective until the policy had been delivered to and acceрted by the insured while in good health, since the evidence demanded the finding that the insured was not in good health when the pоlicy was delivered, and the agent was without authority to waive the provision by having knowledge of his condition. The case of
Rhodes
v.
Mutual Benefit Health &c. Assn.,
56
Ga. App.
728 (
By a cross-bill of exceptions the beneficiary under the policy excepted to the court’s refusal to permit the beneficiary to testify that she was present when the pоlicy sued on was delivered by the agent of the insurer; and that in delivering the policy to the insured, her husband, the agent stated that what the company didn’t know didn’t hurt, and that a man with the heart condition the insured had might live to be a hundred years old; and that' the agent came to the plaintiff’s counsel’s office and stated in her presence that the answers with referencе to the heart condition were not on the application when the insured signed it, and that the agent stated that he knеw within three months after the
*441
insurance policy was delivered that the insured had a heart condition, and that he repоrted this fact to the insurance company, and that subsequently he continued to collect premiums on the policy for four or five months. While we do not agree with the reason assigned by the judge for not admitting this testimony, namely, that it was not in rebuttаl to evidence by the company that it did not know of the insured’s condition, we think that the court’s ruling was correct. It was cоrrect as to the agent’s knowledge of the insured’s heart condition because it was not indicated what heart cоndition the agent knew about, and because notice to the agent would not be notice to the company under the facts of this case because the
application
and the policy provided that only the president or secretary of the company, in writing, had the power to waive, alter, or modify the instruments. Where the application contains suсh a provision, the limitation on the agent’s authority dates from the date of the application and not the policy.
Reliance Life Ins. Co.
v.
Hightower,
148
Ga.
843 (
The court did not err in refusing to admit the proffered testimony set forth in the cross-bill.
The court erred in denying the motion for a new trial.
Judgment reversed on the main bill of exceptions, and affirmed on the cross-bill of exceptions.