Appeal from the District Court of the United States for the Western District of Pennsylvania; Nelson McVicar, Judge.
Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
BUFFINGTON, Circuit Judge.
In the court below Mrs. Sarah Enelow, the beneficiary in an insurance policy on the life of her husband now deceased, brought suit against the New York Life Insurance Company to recover on its policy. The insurance company's defense was fraud in the procurement of the policy. After proofs, both sides prayed binding instructions. The court affirmed the defendant's point, which was that the jury should find for the plaintiff only for the return of premiums paid. On entry of judgment for such sum in its favor, plaintiff took this appeal. Both sides having asked for instructions in their favor, the facts were left to the court to decide and its findings are conclusive. Beuttell v. Magone, 157 U.S. 154, 15 S. Ct. 566, 39 L. Ed. 654.
From the record it appears the policy provided: "This contract is made in consideration of the application therefor and of the payment of the premiums." It further states: "The policy and the application therefor, copy of which is attached hereto, constitute the entire contract." On the sheet to which a photostatic copy of the application is attached is this cautionary notice:
"This copy should be carefully examined and if any error or omission is found, full particulars, with the number of the policy, should be sent immediately to the Home Office of the Company, No. 51 Madison Avenue, Madison Square, New York, N.Y."
In his signed application for the policy the following questions and replies are made:
"7. B. Have you ever been under observation or treatment in any hospital, asylum or sanitarium? No.
"8. Have you ever consulted a physician or practitioner for or suffered from any ailment or disease of
"A. The Brain or Nervous System? No.
"B. The Heart, Blood Vessels or Lungs? No."
"10. Have you ever consulted a physician or practitioner for any ailment or disease not included in your above answers? No.
"11. What physicians or practitioners, if any, not named above, have you consulted or been examined or treated by ...