Before MARIS, KALODNER and STALEY, Circuit Judges.
This is an action upon a life insurance policy commenced in the District Court for the Eastern District of Pennsylvania. On January 5, 1950, the insured died of a heart condition known as an acute coronary occlusion. The insurer defended on the ground that the insured had misrepresented the state of his health by giving false answers in the medical part of his application. The district court directed a verdict for plaintiff-beneficiary in the sum of $686.28, representing the amount of premiums paid by insured plus interest, and plaintiff has taken this appeal.
The insured made a written application for the policy on August 13, 1948. He was then 45 years of age. The application contained, inter alia, the following questions and answers:
"11. Have you ever had or been told that Answer you had, or consulted or been treated 'Yes' by a physician or other practitioner or for any of the following: 'No'
"D. Pain in the chest, shortness of breath, Coronary Artery Disease or Angina Pectoris? No
"F. Stomach or Intestinal Trouble, Indigestion, Ulcers, Appendicitis, Gall Bladder or Liver Disorder, Jaundice, Dysentery or Hernia? No
"12. Have you ever had any X-Ray, electrocardiographic or blood examinations or studies? No
"13. Have you, during the past five years, consulted any physician or other practitioner, or been confined to or treated in any hospital, sanatorium, dispensary, clinic or similar institution not stated in answers to Questions 11 and 12? No
"I certify that I am the person named as the proposed Insured, that each of the foregoing statements and answers is a statement of fact and not opinion, that I have made and read each of them, and that all such statements and answers are complete, true and correctly recorded.
"Dated at Upper Darby, Pa.,
"Signature of Proposed ...