Morairty

On June 16, 1947 appellant issued a policy of life insurance for a term of one year to Albert Francis Morairty who was then 58 years old. Pursuant to the application of Morairty, his wife, Ruth M. Morairty (appellee) was named as beneficiary in the policy.

On January 28, 1948 the insured died from a cerebral concussion caused by a fall. Appellee filed due proof of death. Appellant tendered the amount of the premium paid plus interest, but denied liability under the policy on the ground that it was void because its issuance had been induced by the insured’s misrepresentation and concealment of material facts concerning his prior medical history which had been inquired about in the written application for the policy.

Appellee originally instituted this action in the Superior Court of Arizona for recovery of the face amount of the policy. On appellant’s petition the action was removed to the United States District Court in Arizona on the ground of diversity of citizenship. Appellant’s answer set up the affirmative defense above referred to and renewed the tender of the sum paid in as premium, plus 6% interest to date.

Upon trial the jury returned a verdict in favor of appellee and…