Although the uncontroverted evidence as to the motion for summary judgment is that plaintiff had no knowledge of the suspension of his driver's license, this misrepresentation, if determined by the jury to be material, would be a sufficient basis for declaring the policy void ab initio. United Family Life Ins. Co. v. Shirley, 242 Ga. 235 ( 248 S.E.2d 635). Judgment reversed. Deen, C. J., Smith, Banke and Underwood, JJ., concur.

The Court concludes that it would be more appropriate to submit the question to a jury. United Fam. Life Ins. Co. v. Shirley , 242 Ga. 235, 248 S.E.2d 635, 637 (1978) ("[W]ith 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.").

Unlike United Ins. Co. v. Dixon, 143 Ga. App. 133 ( 237 S.E.2d 661) (1977), and other cases involving OCGA § 33-4-6, the burden was not on the insured to show bad faith but rather on the insurer to show good faith. Overruled on other grounds, United Family Life Ins. Co. v. Shirley, 242 Ga. 235, 238 ( 248 S.E.2d 635) (1978). In that posture, and given the circumstances of the case, we do not find as a matter of law that the issue here on ultimate liability under the policy was "closely contested" so as to avoid the issue of additional damages going to the jury.

Other issues with reference to Code Ann. § 56-2409, supra, were not determined as a matter of law. See in this connection United Family Life Ins. Co. v. Shirley, 242 Ga. 235, 238 ( 248 S.E.2d 635), as to the decedent's "actual knowledge of the falsity, i.e., fraud"; and the materiality was not determined as "to the acceptance of the risk" or "to the hazard assumed by the insurer." The defendant proceeded to call the plaintiff, who witnessed the application which was submitted in evidence, and she testified relative to the application taken by the insurer's agent, a Mr. James Cook, seated in the courtroom.

In addition, the evidence that Mrs. Jones may have been suffering from pneumonia in 1977 did not demand a judgment, as a matter of law, in favor of Delta. Whether misrepresentations are material is ordinarily a question for the jury and the evidence here does not exclude every reasonable inference except that it was material. Prudential Ins. Co. v. Perry, 121 Ga. App. 618, 626 ( 174 S.E.2d 570) (1970); United Family c. Ins. Co. v. Shirley, 242 Ga. 235, 236 ( 248 S.E.2d 635) (1978). There is no evidence in the record that applicant's visit to the Macon clinic would have affected Delta's decision to issue the insurance policy on the life of Addie Lee Jones. Appellee has cited numerous cases in support of its argument that misrepresentations as to past medical attention in an insurance application are material as a matter of law.

In other words, we cannot determine whether Mr. Wadley's response to the inquiry was or was not a misrepresentation. If Mr. Wadley in fact had ever been treated for or ever had any known indication of "chronic respiratory disorder" other than dyspnea or pneumonia, the issue of material misrepresentation remains. See generally United Family Life Ins. Co. v. Shirley, 242 Ga. 235 ( 248 S.E.2d 635) (1978). If, on the other hand, the only chronic respiratory disorders for which Mr. Wadley had ever been treated or of which he had ever had any known indication were dyspnea and pneumonia as represented, it would appear that Mr. Wadley's response to the inquiry was not an omission but was merely imperfect insofar as it did not give all the information requested under the application.

Code Section 56–2409 has almost identical language to O.C.G.A. § 33–24–7(b). Gilham is called into question by Davis v. John Hancock Mut. Life Ins. Co., 202 Ga.App. 3, 413 S.E.2d 224 (1991), and United Family Life Ins. Co. v. Shirley, 242 Ga. 235, 248 S.E.2d 635 (1978). “Because Shirley explicitly stated that no good faith defense exists for ‘misrepresentations, omissions, concealment of facts, and incorrect statements,’ Davis' argument, citing Fidelity Bankers Life Ins. Co. v. Renew, 121 Ga.App. 883, 176 S.E.2d 103 (1970); Gilham v. National Life & Acc. Ins. Co., 104 Ga.App. 459, 122 S.E.2d 164 (1961), that a good faith defense for omissions is valid in this case is misplaced.”

Code [Ann.] § 109A-2-401 (2). [Cits.] `The Motor Vehicle Certificate of Title Act provides an additional method whereby title to motor vehicles can be proven but did not change the existing law as to the manner in which ownership of chattels, including automobiles, can be proven.' Hightower v. Berlin, 129 Ga. App. 246 (3) ( 199 S.E.2d 335) (1973)." Canal Ins. Co. v. P J Truck Lines, 145 Ga. App. 545, 546 ( 244 S.E.2d 81) (1978), overruled on other grounds in 242 Ga. 235, 238 ( 248 S.E.2d 635) (1978). On motion Turner Leasing, Inc. was permitted to intervene in this action to determine ownership of the 1982 Oldsmobile.

Lee v. Chrysler Life Ins. Co., 204 Ga. App. 550, 551 ( 419 SE2d 727) (1992).United Family Life Ins. Co. v. Shirley, 242 Ga. 235, 238 ( 248 SE2d 635) (1978).Taylor v. Ga. Intl. Life Ins. Co., 207 Ga. App. 341, 342 ( 427 SE2d 833) (1993).

These conflicting affidavits present a jury question on the issue of whether the false statements in the Livelys' application would be material to a prudent insurer. See Snead, 231 Ga. App. at 410(3)(b); United Family Life Ins. Co. v. Shirley, 242 Ga. 235, 236-237 ( 248 S.E.2d 635) (1978). Compare Graphic Arts Mut. Ins. Co. v. Pritchett, 220 Ga. App. 430, 432-433(2) ( 469 S.E.2d 199) (1995); Taylor v. Ga. Int'l Life Ins. Co., 207 Ga. App. 341, 343 ( 427 S.E.2d 833) (1993); Davis v. John Hancock Mut. Life Ins. Co., 202 Ga. App. 3, 5(1) ( 413 S.E.2d 224) (1991) (no jury issue where defendant underwriter's testimony as to materiality was uncontradicted).