Lutz

This is an appeal from a judgment -of the district court holding void and unenforceable and ordering the surrender of a policy of life insurance on the life of Abe Lutz, hereinafter called the insured, applied for and issued to Harry Lutz, his son. The judgment was based upon findings of the absence of the required good health in Abe Lutz at the time the first premium was paid and the policy delivered and of misrepresentation in the application signed by Abe Lutz. The action below was initiated by the complaint of appellee company for the avoidance of the policy. Appellants answered and counter-claimed for a recovery on the policy. The company’s answer to the counter-claim pleaded again the absence of good health and the misrepresentations. . The judgment also denied the counter-claim.

The policy provided that “* * * the insurance applied for shall not take effect unless and until this Application is approved by the Company at its Home office and the first premium is paid while the Proposed Insured is in good health; * * *” Appellants do not contend that the policy is binding if the insured is not in good health when the policy is delivered and the first premium is paid. 1 It is…