Staley, Chief Judge and Kalodner and Smith, Circuit Judges.
In the instant diversity action,*fn1 the plaintiff Sylvia Ostrov sought to recover from the defendant Metropolitan Life Insurance Company on a $50,000 life insurance policy issued to her on the life of her deceased husband, Nathan, the defendant having denied payment because of Nathan's alleged material misrepresentations as to his health. Following trial, the jury returned a verdict in favor of the defendant, and, pursuant thereto, judgment was entered in favor of the defendant on the policy claim, and for the plaintiff for $3,582.26 representing premiums paid. The District Court denied plaintiff's motions for judgment n.o.v. and for a new trial, and this appeal followed.*fn2
Plaintiff urges here that she is entitled to judgment n.o.v.; further, that she is entitled to the minimum relief of a new trial by reason of erroneous instruction to the jury as to the defendant's burden of proof with respect to its defense of material misrepresentations, and by reason of various alleged errors in the conduct of the trial.
In reply, defendant contends that the plaintiff's claim that she is entitled to judgment as a matter of law is without basis, and that the same holds true with respect to her asserted right to a new trial.
Discussion of the issues presented must be prefaced by this statement of the critical facts adduced below.
On August 11 and 18, 1959, Nathan executed an application for a $50,000 life insurance policy on a form supplied by defendant. This application consisted of two parts: "Part A" and "Part B". Part A, executed on August 11, 1959, asked for various information, including the applicant's name, residence, age, occupation and proposed beneficiary and stated that: "It is agreed that: 1. The statements and answers in Part A and Part B of the application for this insurance shall form the basis of the contract of insurance, if one be issued." Part B of the application, executed on August 18, 1959, captioned "Applicant's Statements to the Medical Examiner", contains the alleged fraudulent misrepresentations as to Nathan's health upon which defendant relies. Defendant prepared a policy pursuant to this application, but it never became effective and is not the policy in suit.
On August 31, 1959, Sylvia executed defendant's form captioned "Owner Form of Application", pursuant to which the policy in suit was issued. This form, which named Sylvia Ostrov as the "Owner" and Nathan Ostrov as the "Life Proposed", contained the following statement, which appeared above Sylvia Ostrov's signature:
" It is understood and agreed that all the statements and answers subscribed to by the life proposed in the basic application for insurance which was signed by the Life Proposed on the 1st day of Nov., 1962, including the statements and answers referred to in Item 1 of the agreements therein and the statement below when and as completed and signed by the Life Proposed, shall, together with this application, form the basis of the contract of insurance herein applied for, if one be issued, without affecting the use of the said basic application as the application for any other policy."
On the same day, Nathan signed a statement at the bottom of this form which read:
"I hereby consent to the insurance applied for on my life and I hereby ratify and confirm the statements and answers in the basic application for insurance, signed by me and referred to above, as being true and complete as though made on the date herein except as otherwise stated below."
"I have reviewed the said basic application and state that there are:"
On August 31, 1959, Sylvia Ostrov also executed defendant's form captioned "Request for Check-O-Matic Premium Arrangement", which authorized defendant to draw checks against a designated bank account for payment of premiums.
On September 15, 1959, the policy in suit was delivered to plaintiff and became effective. At that time both Sylvia and Nathan signed a form captioned "Application Amendment", which is reproduced in part below.
24 176 691A Nathan B Ostrov
(Including Basic Application as referred to therein)
To the Metropolitan Life Insurance Company:
The undersigned hereby amends the application for Life Insurance made to your Company ...