Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.
The issue is whether, in a suit brought upon two life insurance policies, the District Court erred in permitting the case to go to the jury.
The plaintiff brought suit to recover the face amount of two policies of life insurance issued by the defendant on the life of her husband, Edward Landau, who died August 4, 1948. The insurance company 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 for insurance. At the close of the evidence the defendant moved for a directed verdict and binding instructions to the jury that the plaintiff was entitled only to recover premiums paid upon the policies in suit, with interest. The motion was denied and the case went to the jury which returned a verdict for the full amount of the policies. Thereafter, defendant moved that the verdict and judgment thereon be set aside and that judgment be entered in accordance with its motion for directed verdict. The motion was denied, 102 F.Supp. 810, and defendant appealed.*fn1
The testimony disclosed that the insured, on March 25, 1947, made application to the defendant for a $5,000 life insurance policy, naming the plaintiff as his beneficiary. The policy was delivered on April 8, 1947. On that date the insured applied for another policy of $3,000 naming the plaintiff as his beneficiary. That policy was issued April 11, 1947. The application for the second policy was based on the same medical examination made in connection with the first policy and incorporated the application for the latter.
The insured at the time he made the applications was 53 years old. He had been in the wholesale millinery business in Pittsburgh in partnership with his brother for a number of years.
The March 25, 1947 application for insurance contained, inter alia, the following questions and answers:
"5. State every illness, disease, injury and operation you have had since childhood. - T & A (tonsillectomy and adenoidectomy). No serious illness.
"6. State every physician or practitioner whom you have consulted for any purpose in the last 5 years. - None.
"7. Have you ever had an X-ray, electrocardiogram, blood test or other special laboratory test? - No.
"8. Have you ever had albumin, sugar, blood, pus or casts in the urine? - No.
"9. Have you ever been in a hospital, clinic, sanitarium or institution for observation or treatment or other medical purpose? - No."
"11. Have you been on a special or restricted diet ...