1. A misrepresentation in an application for life insurance that materially affects the risk will void the policy. Code 56-908 (1933).

On October 25, 1956, plaintiff, a man of intelligence, a graduate of Lincoln University who has done graduate work in other institutions, and who has for a number of years been principal of a public school in Monroe County, applied for a $7,500 life insurance policy upon the life of his son, then aged 10, and in Part I of the signed application in answer to the question as to whether the proposed insured had any sisters stated that there were two and that their health was good. Part II, consisting of some 12 questions relative to the health of the proposed insured, was left blank. One question made inquiry as to whether the proposed insured had ever suffered from "anemia, inflammatory rheumatism, cancer, goiter."

The medical examination, required by the company before any consideration of the application, was delayed until December 28, 1956, when plaintiff took his son to the doctor for it, though the agent who took the application left medical forms with plaintiff at the time of taking it and requested that the examination be obtained. In connection with the examination the doctor was required to and did ask questions and obtain answers as follows: "1. Number living sisters, and ages? 13, 16. State of health? Good. 3. Are you now in good health? Yes. 4. When were you last attended by a physician or consulted one? Nov., 1956. 5. For what disease? Cold. 6. Give details in full. Sore throat, chest cold. 7. Give name and residence of the physician who attended you. Dr. Ann Stuckey, Griffin, Ga. 8. Give name and residence of your medical adviser, or family physician, to whom you now refer for a certificate, if deemed necessary. Dr. A. W. Bramlett, Forsyth, Ga. 9. Has any physician ever given an unfavorable opinion of your health after either a formal or informal examination? No. 22. Have you ever had illness, disease, injury or operation other than as stated above? If so, give full particulars, date, duration, severity, etc. of each. None."

After the medical examination was completed and sent in to the company the policy was delivered on February 15, 1957, with the plaintiff named as beneficiary.

The insured died September 28, 1958, from a cerebral hemorrhage brought on by sickle cell anemia, 1 from which he had been suffering since infancy. When the company learned of the cause of death it denied liability under the policy and tendered a return of the premiums previously paid, but plaintiff refused the tender and brought suit on the policy.

A trial before a jury was had, and after the close of the evidence defendant moved for a directed verdict, which was denied. The jury returned a verdict for plaintiff, after which defendant moved for a judgment non obstante veredicto and for a new trial. Both motions were overruled and defendant assigns error upon the judgment overruling them.

1. The evidence disclosed that at the time of making the application and for a number of years prior thereto both the insured and one of his sisters had suffered from sickle cell anemia and that in the opinion of the doctors who had treated them their condition was one of severity. The sister had suffered a stroke because of it, and as a result was obliged to walk with the use of crutches. The insured had experienced critical episodes at fairly regular intervals, sometimes requiring hospitalization and blood transfusions. Plaintiff admitted in his testimony that he had been informed by the doctors as far back as 1954 concerning the condition of his daughter, and attending physicians testified that the condition of the insured was discussed with the parents in 1950, when it was first learned that the son was suffering from sickle cell anemia, and at other times prior to the date of the application. Thus there was a misrepresentation by the plaintiff, both when he stated that the sister was in good health and when he stated that the insured was in good health. 2 Indeed, after he signed the application for the insurance on October 25, 1956, the son was treated by Dr. A. W. Bramlett on November 8, 1956, for sickle cell anemia, having low hemoglobin; again on November 10, 1956, for the same thing, when he was given a blood transfusion, and on November 13.

In the face of that, plaintiff again misrepresented the facts to the medical examiner on December 28, 1956, when he stated that the insured had been treated only for a cold and sore throat, and that he had never suffered any other illness or disease.

Instances of crisis, requiring hospitalization and transfusions had occurred a number of times prior to the making of the application, and since the child was living in the home with the father at all times, plaintiff must have been fully aware of the matter. The sickling was severe, and, as was testified by the doctors who treated the insured, of a character that was calculated to be fatal.

However, even had plaintiff been unaware of the seriousness of his son's condition, the result would be the same, since a misrepresentation that is material to the risk will void the policy whether made in good faith or not. Preston v. National Life &c. Ins. Co., 196 Ga. 217 (3) (26 SE2d 439, 148 ALR 897). Representations in the application and in the medical blank or form occupy the same status and have the same effect. Supreme Conclave Knights of Damon v. Wood, 120 Ga. 328 (1) (47 SE 940). 3

A vice-president of the defendant insurance company testified unequivocally that if the true facts had been disclosed they would have been taken into consideration in accepting or rejecting the application, and if accepted, in determining the amount of the premium. Dr. Stuckey, one of the attending physicians, testified that "in severe cases [of sickle cell anemia] they usually do not survive late childhood," and that in the case of the insured his affliction was "in my opinion severe." Admittedly the insured died from it. The materiality is clearly established. 4

2. It is urged that since the insurance company obtained a medical examination 5 of the insured before issuing and delivering

such policy . . . when it shall mature, unless the applicant or beneficiary shall have been guilty of actual fraud or shall have made material misrepresentations in procuring such policy, which representations change the character and nature of the risk . . ."

These provisions were of force and effect when the contract here was written, but other and different provisions became effective when the insurance code of 1960 was adopted. See Code 56-2407, 56-2409 (Ga. L. 1960, pp. 289, 659, 660).

the policy it was in position thereby to obtain full information as to the insured's physical condition and that this works a waiver of any misrepresentation that may have been made, or an estoppel against the company to assert such as a defense to an action upon the policy. This proposition has been adversely determined by the Supreme Court in Lee v. Metropolitan Life Ins. Co., 158 Ga. 517 (3) (123 SE 737). Neither the obtaining of an examination of an applicant nor the failure to obtain one will work either a waiver or an estoppel in the absence of a showing that the true facts were known to the insurance company when it accepted the application and delivered the policy. See Wiley v. Rome Ins. Co., 12 Ga. App. 186 (76 SE 1067). "Waiver is the intentional relinquishment of a known right." Estes v. Standard Fire Ins. Co., 66 Ga. App. 775, 778 (19 SE2d 35). Accord, Metropolitan Life Ins. Co. v. Dodd, 41 Ga. App. 243, 246 (152 SE 850); Metropolitan Life Ins. Co. v. Jones, 47 Ga. App. 687, 689 (171 SE 315). And see Liverpool &c. Co. v. Hughes, 145 Ga. 716 (89 SE 817); Guaranty Life Ins. Co. v. Pughsley, 57 Ga. App. 588, 591 (196 SE 265). Knowledge of the true facts is likewise essential in a situation of this kind to give rise to an estoppel. German American Mut. Life Assn. v. Farley, 102 Ga. 720 (3) (29 SE 615). If there were any estoppel arising out of the circumstances here it would work against the plaintiff, and not against the defendant, for it is the plaintiff who has failed to state material facts and has misstated others. "[Estoppel] arises when one by acts, representations, or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts." Carter v. Curlew Creamery Co., 16 Wash. 2d 476 (134 P2 66, 74).

The trial court erred in overruling the motion for judgment non obstante veredicto, and its judgment is reversed with direction that judgment for the defendant be entered pursuant to the motion. Carlisle, P. J., and Russell, J., concur.