(dissenting).

I respectfully dissent.

Noble Andre on January 20, 1959, signed an application for life insurance from appellee which contained inter alia the following questions and answers.

The district court made findings that Andre’s answer “to each of these ques *562 tions 1 was false and was known by Andre at the time it was given to be false.” He further found in Finding—

Dr. Holliger, the personal physician of Mr. Andre, testified that on December 30, 1957 he advised Andre after examining him and listening to Andre’s story of his symptoms that Andre had angina pectoris which was a heart pain, and the doctor further advised him that he had a coronary insufficiency which he described as “an inadequate blood supply to the heart muscle.” A notation of this medical advice appears upon the doctor’s records. The doctor’s records of October 22, 1958 show that Andre had “sudden onset, speech difficulty and incoordination today” and that he had a “cerebral vascular accident” (designated C.V.A.). This was described as a “little thrombosis or a rupture of a vessel in the brain.” In lay language it is sometimes called a “stroke.”

The record shows that Mr. Andre was hospitalized in Hahnemann Hospital as a result of the last above condition from October 22, 1958 to October 24, 1958. The doctor testified that he advised Mr. Andre of the condition of his health. The doctor’s records of October 31, 1958 read in part: “Effects from CVA are daily improving, able to focus better and read now.”

The majority contends that appellee was aware of the fact that Andre had a heart condition and that therefore ap-pellee did not rely on Andre’s statements. Although the appellee was aware that Andre’s heart had been damaged at one time, the evidence did not indicate that the company was aware that he had experienced any of the symptoms of an active heart disease. I therefore feel that there was merit to appellee’s position that the medical picture presented to it was that of one with arrested asymptomatic heart condition and that knowledge of the symptoms of active heart and circulatory disease which had in fact been experienced by Andre would have materially affected the medical evaluation of his condition. 2

*563 Rule 52(a) provides in part as follows:

It has been held that a reviewing court in considering questions of sufficiency of evidence to sustain the verdict, must take that view of the evidence most favorable to the prevailing party and accept as established all facts which the evidence reasonably tends to prove and give to the prevailing party the benefit of all inferences which may be reasonably drawn from the evidence. Bank of America National Trust and Savings Association v. Hayden, 9th Cir., 231 F.2d 595 . Wilson v. New York Life Ins. Co., 250 F.2d 649 , 8th Cir.

A finding is “clearly erroneous” when although there is evidence-to support it the reviewing court upon the entire evidence is left with a definite and firm conviction that a mistake has been committed. United States v. U. S. Gypsum Co., 333 U.S. 364 , 68 S.Ct. 525 , 92 L.Ed. 746 .

In Bloom v. United States, 9 Cir., 272 F.2d 215 at 223 , this court stated:

Under the testimony in this case, a portion of which has been set out above, I cannot agree with the following language contained in the majority opinion —“There is no merit to the defendant’s claim of fraud, misrepresentation, or nondisclosure. They have no support whatever in the evidence.”

*564 I feel that there is ample support in the record for the findings of the court, that the findings are not clearly erroneous, and that the judgment of the district court should be affirmed

. Question No. 18 was not specifically referred to in the district court’s findings. However, it was quoted in the court’s order for judgment, and Finding No. 7, quoted below, would logically seem to refer to Question 18.

. In this regard, Hr. Edward Robbins testified as follows: