The issue raised by the grant of certiorari in this case is whether misrepresentations made by the appellee in his application for insurance policies on the life of his minor child, now deceased, were material as a matter of law, under Code Ann. § 56-2409 (Ga. L. 1960, pp. 289, 660) and prior decisions of the Georgia appellate courts, so as to prevent a recovery under the insurance policies. A majority of the Court of Appeals affirmed the action of the trial court in denying the appellant’s motion for a directed verdict and submitting the case to the jury. The Court of Appeals further held that the evidence supported the jury’s verdict for the plaintiff insured.
The two allegedly material misrepresentations were as follows: 1. That the applicant’s child did not at that time have any illness or diseases. 2. That the child had not consulted a physician or been confined to a hospital or institution within the past three years. 1
Regarding the first alleged misrepresentation, the majority opinion ruled that the evidence was inconclusive not only as to whether the child was already fatally ill when the appellee father applied for coverage, but also as
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to whether the appellee had
knowledge
of any illness or disease. Citing
United Ins. Co. v. Dixon,
Regarding the second alleged misrepresentation, the majority opinion held that "the judge was correct in reserving for the jury’s determination the issue of whether the appellee’s failure to list all medical examinations, even those of a routine nature, within a 3-year period was a misrepresentation so material or misleading that had the insurer known the true facts, it would not have issued the policy under the terms stated.” Shirley, supra, p. 723 (1).
Ordinarily, it is a jury question as to whether a misrepresentation is material, but where the evidence excludes every reasonable inference except that it was material, it is a question of law for the court.
Prudential Ins. Co. v. Perry,
Likewise, with respect to the issue of the materiality of the "misrepresentation” of no illness or diseases, it was proper to submit this to a jury in view of the conflict of evidence as to whether the child’s illness or disease was in existence at the time the application was filled out. The judgment must be reversed, however, because the case was submitted to the jury upon an erroneous theory. The majority opinion, as indicated hereinabove, required actual
knowledge
of the misrepresentation in order to void the policies, citing
Pitts v. Gulf Ins. Co.,
Unfortunately, as was pointed out by the dissenting opinion in the Court of Appeals, that court, in the case sub judice and in previous cases upon which reliance is placed, has overlooked or failed to follow a full-bench decision of the Supreme Court which is controlling as to this point. In
Preston v. Nat. Life &c. Ins. Co.,
Accordingly, we expressly overrule those cases which require actual knowledge of the falsity of misrepresentations in order to prevent a recovery on the policy, including but not limited to
Canal Ins. Co. v. P & J Truck Lines, Inc.,
The judgment in the case sub judice is reversed and a new trial ordered, so that the jury, properly instructed, can determine whether the appellee applicant made "misrepresentations, omissions, concealment of facts, [or] incorrect statements,” and, if so, whether they prevent a recovery under the policies by virtue of any one of the three criteria of Code Ann. § 56-2409 (only one of which being the applicant’s actual knowledge of the falsity, i.e., fraud).
Judgment reversed.
Notes
Appellee answered the question by stating that his son had received only routine medical attention for a child his age, and the insurance agent, in accordance with training instructions given him by the appellant, recorded an answer of "No.”