The opinion of the court was delivered by: SCHOONMAKER
The defendant has set up an equitable defense under section 274b of the Judicial Code (28 USCA § 398), contained in the "New Matter" set forth in the defendant's affidavit of defense. To this "New Matter" the plaintiff has replied, and the equitable issue was tried before the court on the new matter set out in the defendant's affidavit of defense, plaintiff's reply, and the proofs.
By the equitable defense, the defendant is seeking to have the four insurance policies declared null and void and canceled, by reason of alleged false answers in the application for this insurance.
From the pleadings and proofs upon the equitable issue, we find the facts to be as follows:
(1) The defendant issued and delivered to Andy Adamos four insurance policies, each in the sum of $5,000, two dated April 8, 1932, and delivered April 15, 1932, being Nos. 11,773,180 and 11,773,181. The other two, namely, Nos. 11,780,717 and 11,780,718, were dated April 19, 1932, and were delivered during the latter part of May or the first part of June, 1932. Copies of these policies are attached to plaintiff's statement of claim.
(2) The medical examination for all of these policies was made on April 6, 1932, by Dr. J. C. Wiley. The answers of Adamos to the medical questions are in writing and signed by him, four copies of which are attached to the four policies of insurance that were delivered to him. In part II of the application for the above insurance, immediately over Adamos' signature, there appears, among other things, the following:
"On behalf of myself and of every person who shall have or claim any interest in any insurance made hereunder, I declare that I have carefully read each and all of the above answers, that they are each written as made by me, and that each of them is full, complete and true, and agree that the Company believing them to be true shall rely and act upon them."
(3) In the said medical examination blank (copy of which is attached to the policies), Andy Adamos was asked and answered the following questions, to wit:
"7. A. Have you ever had any accident or injury or undergone any surgical operation? No.
"B. Have you ever been under the observation or treatment in any hospital, asylum, or sanitarium? No.
"D. Have you ever been found to have a high blood ...