4, 1933, as a final decree from which an appeal would lie. Therefore a rehearing would be of no avail.
In the second place, we cannot find that the copy of the application is so illegible as to fail of compliance with the Pennsylvania statute. We have had no trouble in reading it, and do not think the applicant would. The application and the insurance policies, with the copy of the application, were offered in evidence on the trial of the equitable issue, without objection on the part of the plaintiff.
Counsel for plaintiff rely on the case of New York Life Insurance Co. v. Halpern (D.C.) 57 F.2d 200, 203, affirmed by Per Curiam Opinion of the Circuit Court of Appeals, 61 F.2d 1037, as sustaining their position. We cannot so read that case. Judge Gibson, the trial judge, merely held that the insurance company could not urge that the insured was estopped from asserting any error in the answers recorded in the application, because the copy attached to the policy was in such small type as to be practically illegible.
No such presumption was asserted or relied on by the insurance company in the instant case. We based no finding on any such presumption. To our mind, the proofs in this case disclosed a deliberate concealment by plaintiff of his physical condition and medical history, in order to induce the issuance of the insurance policies.
The plaintiff's petition for a new hearing will be denied.
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