Appeal from the District Court of the United States for the Eastern District of Wisconsin; Ferdinand A. Geiger, Judge.
Before EVANS, SPARKS, and ALSCHULER, Circuit Judges.
This action was brought to recover on a life insurance policy.At the conclusion of the trial the court denied plaintiffs' and granted defendant's unqualified motion for a directed verdict. Judgment was thereupon entered dismissing the action, and this appeal followed.
Defendant asserts several grounds as justifiable bases for the court's action. We need not consider all of them, but direct our attention to the two which deal with alleged false statements made by the insured at or before delivery of the policy. A written application for the insurance policy was made October 22, 1929. The policy was dated December 2, 1929, and delivered December 6, 1929. The insured died May 14, 1931.On July 14, 1930, asserting December 29, 1929, as the effective date, insured applied for total disability benefits. Defendant thereupon examined him and, in September, 1930, notified him that the policy was not in force and never had been because of concealment and misstatement of facts respecting health. In the same written notice it also informed insured that, if the policy did take effect at all, it elected to rescind the same for fraud, and it tendered to the insured a check for the premium paid, with interest. The insured did not pay the second premium, which became due November 11, 1930, because he was, so he asserted, relieved of this obligation by reason of his disability.
In March, 1931, after holding for some months the check which appellee had sent him, the insured cashed it. The cashing of the check by the insured was under assurance from defendant's agent that it would not affect his rights.
It would unduly extend the length of this opinion if all of the evidence on this phase of the case (the cashing of the check for the amount of the premium and interest) were set forth, for there are two positions taken by defendant in support of the ruling of the court which have not been successfully met, and they alone necessitate an affirmance of the judgment.
Both relate to medical treatment received by the insured. In the application the insured answered certain questions propounded to him as follows:
"8. Have you ever consulted a physician or practitioner for or suffered from any ailment or disease of * * * (Results and, if within five years, name and address of every physician or practitioner consulted.)
"9. Have you ever had Rheumatism, Gout or Syphilis?
"10. Have you ever consulted a physician or practitioner for any aliment or disease not ...