Parrish

This case involves the question of whether or not the beneficiary under a life insurance policy is precluded from a recovery by reason of misrepresentations made by the insured in his application, and the giving of a false certificate of continued good health upon the receipt of the policy.

After a verdict in favor of the plaintiff, defendant has moved for a judgment notwithstanding the verdict and in the alternative for a new trial pursuant and in conformity to the provisions of Rule 50(b), Fed.Rules Civ.Proc. 28 U.S.C.A. The plaintiff contends that the misrepresentations and false certificate were not material to the risk. The defendant contends otherwise. This case is governed by California law.

On October 17, 1946, the insured aged 46 made application to the defendant insurance company for a $10,000 ten year term life policy. In writing he answered certain questions as follows:

*301 *'8. Have you ever had or been under treatment, observation, or diagnostic study by a physician, specialist, or other practitioner for any of the following? (These questions must be asked and answered with careful deliberation and consideration). For each affirmative answer underline ailment and…