Argument for Respondent.

231 U.S.

of the medical adviser, and with the knowledge that the company to whom the application was made was about to reject it. Applicants for insurance are competent to make agreements in the policy that no person other than the executive officers of the company can vary its terms, and such an agreement is binding when made.

A decision of the highest court of a State on a principle of general jurisprudence is not controlling upon this court. Kuhn v. Fairmont Coal Co., 215 U. S. 349.

Where two cases are consolidated by the court below because it appears reasonable to do so under § 921, Rev. Stat., and this court doubts the reasonableness of the consolidation, it need not pass upon that subject definitely if, as in this case, a new trial is ordered on other grounds.

THE facts, which involve the validity of a verdict and judgment on a policy of life insurance, are stated in the opinion.

Mr. A. L. Miller, with whom Mr. M. D. Jones, Mr. George S. Jones, Mr. Walter Defore, Mr. Wallace Miller and Mr. Charles H. Hall, Jr., were on the brief, for petitioner.

Mr. Jesse Harris and Mr. Minter Wimberly, with whom Mr. Alexander Akerman was on the brief, for respondent:

Consolidating the causes was a proper exercise of the discretion of the trial court under § 921, Rev. Stat. Mutual Life Ins. Co. v. Hillman, 145 U. S. 285.

There was no error in the failure and refusal of the court to direct a verdict in favor of the insurance company.

While the policy is a Georgia contract, and the law of Georgia will, therefore, be applied in construing and considering the contract, the construction of the Georgia law will be taken in connection with the law as construed by the courts of the United States relating to contracts of life insurance. For the statute law of Georgia applicable to the case, see 1 Code of Georgia of 1910, §§ 24792482, and § 2499.

231 U. S.

Argument for Respondent.

The evidence for both the plaintiff and the defendant in the court below clearly establishes the fact that there was no fraudulent concealment of any material fact and no wilful concealment of any fact that would enhance the risk.

All material facts were made known to the agents of the defendant company. It cannot be said that there was any fraudulent concealment as to these questions by the insured. This being true, the policy will not be voided. Ley v. Metropolitan Life Ins. Co., 120 Iowa, 203; Patten v. U. S. Life Ins. Co.. 141 N. Y. 589; Vol. 25, Cyc. of Law & Procedure, 796.

The refusal of the court to give the instructions requested by plaintiff in error was proper. O'Connell v. Supreme Conclave, 102 Georgia, 143; Farrell v. Security Life Ins. Co., 125 Fed. Rep. 684.

The refusal of the court to so charge was not error because the representations and warranties made by the applicant that he did not have heart trouble were true, and this was a question of fact for the jury to decide.

The insurance company is estopped from alleging that this answer was not the truth, as the agents who solicited the insurance and the medical examiner for the company, who examined the deceased, acted as the agents of the insurance company and the insurance company is bound thereby. Union Mut. Ins. Co. v. Wilkinson, 13 Wall. 222; American Life Ins. Co. v. Mahone, 21 Wall. 152; New Jersey Mut. Ins. Co. v. Baker, 94 U. S. 610; Clubb v. American Accident Co., 97 Georgia, 502; German-American Ins. Co. v. Farley, 102 Georgia, 735; Continental Ins. Co. v. Chamberlain, 132 U. S. 304; Springfield Fire Ins. Co. v. Price, 132 Georgia, 687; Johnson v. Aetna Ins. Co., 123 Georgia, 404; Mechanics Ins. Co. v. Mutual Bldg. Assn., 98 Georgia, 262; Wood v. American Fire Ins. Co., 149 N. Y. 382.

The answer given by the applicant may have been inVOL. CCXXXI-35

Argument for Respondent.

231 U. S.

complete, but the agents of the company knew that he had consulted at least two other physicians, and they did not deem it necessary to insert this fact in the answer. Therefore, the action of the insurance company's agent, which led the applicant to believe that it was unnecessary to give the names of all the physicians whom he had consulted, was such action as to estop the company from insisting upon a forfeiture for the failure to so state. Phonix Mut. Ins. Co. v. Doster, 106 U. S. 30; Hartford Life Ins. Co. v. Unsell, 144 U. S. 439; N. Y. Life Ins. Co. v. Eggleston, 96 U. S. 572.

If the answer was not complete, or imperfectly answered, the issuance of the policy without further inquiry, especially when the insurance company had been put on notice, as in the case at bar, amounts to a waiver of the objection, and makes the omission immaterial. Phoenix Mut. Ins. Co. v. Raddin, 120 U. S. 183.

It was not necessary for the applicant, in answer to the question, to state the names of physicians he consulted for merely slight or temporary indispositions. McLain v. Provident Ins. Co., 110 Fed. Rep. 80; Hubbard v. Mutual Reserve Fund, 100 Fed. Rep. 719.

This particular question is not a warranty, but is a representation. Minn. Mut. Ins. Co. v. Lee, 230 Illinois,

273.

Whether or not the statements made in the application are material to the risk is a question for the jury and not a question of law for the court.

Misstatements by way or representations of warranty, which are made through fraud of the company's agent, cannot be relied on by it to defeat the policy, and especially is this so where the insured is misled by the agent into making the false statements. Standard Life Ins. Co. v. Frazier, 76 Fed. Rep. 705; 25 Ency. of Law and Procedure, 803; Globe Mut. Ins. Co. v. Myer, 118 Ill. App. 155.

Whether or not the alleged falsities of the answers of

the insured would void the policy, should be submitted as a question of fact for the jury, in order to determine whether or not the answers were made bona fide by the applicant. Moulor v. Am. Life Ins. Co., 111 U. S. 335; Fidelity Mut. Life Assn. v. Jeffords, 107 Fed. Rep. 402.

All policies of insurance and applications must be construed against the insurer and in favor of the insured, and all statements in the application will be construed as representations rather than warranties. Havan v. Scottish Union Ins. Co., 186 U. S. 423; Phænix Mut. Life Ins. Co. v. Raddin, 120 U. S. 183; Home Life Ins. Co. v. Fisher, 188 U. S. 726; First Natl. Bank v. Hartford Ins. Co., 195 U. S. 673; Franklin Fire Ins. Co. v. Vaughn, 92 U. S. 516; Mutual Benefit Life Ins. Co. v. Higginbotham, 95 U. S. 380; Knickerbocker Life Ins. Co. v. Trefz, 104 U. S. 197; 25 Cyc. 796, 815; Penn. Mut. Life Ins. Co. v. Mechanics' Savings Bank, 72 Fed. Rep. 413.

MR. JUSTICE MCKENNA delivered the opinion of the court.

Action on a life insurance policy for $6,000 issued upon the life of John A. Salgue, the intestate of respondent. It was tried to a jury, resulting in a verdict and judgment for respondent. The judgment was affirmed on writ of error to the Circuit Court of Appeals by a per curiam opinion. This certiorari was then granted.

The questions in the case are based on certain statements made by Salgue which, it is contended by petitioner (herein called the insurance company), became a part of the policy and constituted warranties.

The following are the material provisions of the policy and the application:

"This policy of insurance witnesseth: That the Aetna Life Insurance Company, in consideration of the statements, answers and warranties contained in or endorsed

upon the application for this policy, which application is copied hereon and made a part of this contract, and in further consideration of the annual premium

hereby insures the life of John A. Salgue.

"This policy is issued and accepted subject to the conditions, provisions and benefits printed on the reverse of this page, which are hereby referred to and made a part hereof.

"Conditions, provisions and benefits which are made a part of this policy:

"Section 1. This policy shall not take effect until the first premium hereon shall have been actually paid during the lifetime and good health of the insured.

"Section 7. All agreements made by said company are signed by one of its executive officers. No agent or other person not an executive officer can alter or waive any of the conditions of this policy, or make any agreement binding upon said company."

Copy of the application:

"Being desirous of insuring my life with the Aetna Life Insurance Company, I do hereby declare and warrant that I am in good health, of sound body and mind, and that the following statements signed by me are full, correct and true; and that I have no knowledge or information of any disease, infirmity or circumstance not stated in this application which may render insurance on my life more hazardous than if such disease, infirmity or circumstance had never existed; and I do hereby agree that the declarations and warranties herein made, and the answers to the following questions, together with those signed by me on the second page of this application, shall be the basis and form part of the contract (or policy) between me and the said company, and that if the same be in any respect untrue, said policy shall be void; and I further agree that the insurance hereby applied for shall not be binding upon said company until a policy has been issued, nor until