The insurance policy herein sued upon stated that the policies were issued in consideration of $36.00 and “of the statements in the application for this policy, copy of which is endorsed hereon and made a part hereof.” By this reference the policy makes the attached application a part thereof, and the question as to whether or not the applicant signed the original application is wholly immaterial. Having accepted the policy and the benefits thereunder he is bound by its terms, which include the provision that the answers of the insured in the attached applications were a par.t of the consideration. While this proposition is sufficiently obvious to make unnecessary the citation of authority, it has been expressly decided in the Columbian Nat. Life Ins. Co. v. Harrison (C. C. A.) 12 F.(2d) 986, that he could not sue on the policy and deny that he signed the application thereto attached. The reason which supports this conclusion would apply equally to an unsigned application attached *572to the poliey and made a part thereof, as in the ease at bar.
The opinion of the majority of the court proceeds upon the assumption that, there was an issue as to whether or not the decedent made the representations contained in the copy of the application, made a part of the poliey, and that upon this issue the jury were justified in concluding that under the evidence no such representations were made. There was no such issue raised in the pleadings. In her complaint the appellee set out the policy in haee verba and the copy of the application indorsed thereon and referred to in the poliey as a part thereof. If the poliey as written and the application incorporated therein did not truly express the contract of the parties, the burden was upon the appellee-to allege and prove that fact. The question whether or not the policyholder was estopped to contest the contents of the application, and the consequent burden of the insurance company to set up- the estoppel, is, in my judgment, not involved in the case. The appellant was standing upon the terms of the poliey, and the appellee was likewise doing so! I am therefore of opinion that the question as to whether or not the insured made the representations contained in the application was established by the contract between the parties and admitted by the pleadings, and for those reasons was not a matter for the consideration of the jury.
The testimony shows without dispute that the insured had applied to the Prudential Life Insurance Company for life insurance as early as July 5, 1928. This application was rejected. The notice of rejection sent by the company to its agent is contained in the record, and the letter addressed by the company’s agent to the applicant at his place of residence is also contained in the record. Gladys Golden, a stenographer in the employ of the Hawaiian Trust Company, the agent of the Prudential Life Insurance Company, testified as follows: .
“Mr. Withington (for appellant): Did you send notice to the applicant of the rejection? A. Yes.
“Q. You notified Harry Dye? A. Yes, by letter.
“Q. Have you got a copy of that letter? A. Yes, I have it right here.
“Mr. Withington: We offer it in evidence.
“Mr. Kelley (for appellee): No objection.”
The testimony of the witness, received without objection, and the receipt in evidence, without objection, of the copy of the letter containing notice of rejection was sufficient to prove that the applicant was notified of his rejection. It is true, as stated in the main opinion, that there was no- specific proof as to the method by which this written notice was conveyed to the applicant, but the statement of the witness, that the applicant was notified of the rejection, implies that the witness knew that the applicant had received the letter or notice. No point was made in the lower court as to the sufficiency of this evidence to show that the applicant received the notice. It does not appear that the point was urged before the Supreme Court of Hawaii, the opinion of that court merely stating in this regard that “at the time this application was made the insured had applied to the Prudential Insurance Company of America for a life insurance policy and his application had been rejected and he had been notified.” The only allusions to the matter contained in the brief of the appellee are the assertion appearing in “comments on the evidence,” to the effect that if the insured had been declined for life insurance by the Prudential “it does not appear with any degree of certainty that the applicant had knowledge of it,” and the statement, in a list of “appellee’s contentions,” that, “It cannot be-said from the evidence that Harry Apau Dye had actual knowledge of being declined for life insurance.” The appellant assumes in its brief that the notice of rejection by the Prudential Company was received by the decedent, and this assumption is not disputed by the appellee in any other manner than by the brief statements just referred to. The ease should be considered here in the appellate court on the same theory that it was considered in the trial court, and that theory involves a tacit admission of the plaintiff that the assured had been notified of the rejection of his application for life insurance in the Prudential Company.
I cannot agree with the statement that it is a question for the jury to determine whether reasonably prudent and intelligent men would have considered the statement at the time as a substantial increase in the risk insured' against as applied to the sitution presented by .the ease at bar. It is true that the courts have sometimes held that .the question of whether or not a representation is material is a question for the jury to determine, and in other cases it has been held that it is a question for the court to determine. The law is well settled to this effect, and the question in each individual case presented is whether or *573not the question in that ease is one for the court or the jury. It is uniformly held that where an insurance company requires the applicant to answer definite questions concerning himself or affecting his health, the answers to- the questions are material for the reason that they form the basis of the contract between the parties. Thus, where a perfectly definite question is asked and a perfectly clear answer is given, and the answer is untrue, the answer is held to be material as a matter of law, unless there is a doubt as to the real meaning of the parties as distinguished from a literal interpretation thereof. For illustration, if an applicant is askod to name the physicians that he has consulted within five years prior to the application and he omits from the list the name of a physician he has consulted with reference to the health of some member of his family, it is clear that although the statement would be untrue the parties did not contemplate such a consultation of a physician as involved in the issuance of insurance to the applicant, and therefore, although the answer is given in response to a perfectly definite question, and is definitely untrue, ■the untruthfulness of the answer would be immaterial as a matter of law. Whereas, on the other hand, if the applicant omitted to name a physician he had consulted within that period with reference to his heart condition and had been advised that he was likely to drop dead at any moment, it is dear that while the answer would be no more false in a literal sense than the first answer with reference to the consultation of a physician concerning the health of a member of his family, the answer would bo untrue and the untruth would be clearly material to the question under consideration by the insurance company and the applicant at the time the negotiations for insurance were under consideration. In such a ease, the answer would be material as a matter of law and the court instructing the jury should so inform them. There is, however, a twilight zone between these two extremes where reasonable men might differ as to the purport or intent or the proper interpretation of the answer given by the applicant to a question asked by the insurer. In such a ease it was said that the question of materiality is for the jury. I am inclined to think that this statement is not strictly accurate, that the question for the jury to determine under proper instructions from the trial court is whether the applicant intended to answer untruthfully the exact question asked by the insurer. This question, of course, is usually presented with relation to a categorical and terse answer to a question which is sometimes compound, complex and complicated. The most familiar illustration of this situation is with reference to the question, “What sickness or illness have you had within the last five years ?” The answer may be, “None,” or, frequently, some comparatively serious sickness may he mentioned and others omitted. In view of the fact that the condition of health and sickness-is always relative it has been held as a matter of law that such a representation does not include minor, temporary, and inconsequential illness which it can be seen would not, in view of either the insurance or the applicant, he deemed to have affected the risk. In such a case the illness may be such that it may be said, as a matter of law, not to be within the contemplation of the parties. A good illustration of the matter under consideration is the recent ease of Stipcich v. Insurance Co., 277 U. S. 311, 48 S. Ct. 512, 72 L. Ed. 895, where it was held that concealment of a diagnosis of a duodenal ulcer avoided the poljey, although such diagnosis occurred after the application for the policy was made but before it was delivered. There is no disagreement in the authorities upon the proposition that the question of materiality of representation is one to he decided by the court where it is clearly material or where it is clearly immaterial, and one to be decided by the jury when it cannot be said, as a matter of law, that it is clearly material or clearly immaterial. The various decisions upon this subject must be read in' the light of this general principle, and the disagreement of the authorities is not upon the broad proposition as to whether the court or jury should determine the question, but as to' whether or not the materiality of a specific question and answer in a given case was for the court or jury. In this ease it is unnecessary to consider this twilight zone or this area of disagreement in the multitude of authorities upon such question, for it is uniformly held that the representation that the assured has not been rejected by another insurance company is a material representation, as a matter of law, and the only variance in the authorities hereon is as to the intent of the question and answer. For instance, as to whether or not it was in the contemplation of the parties in asking the questions upon applications for accident insurance to- cover rejections for life insurance policies where the question is broad and indefinite. There is no question as to the meaning of the question and answer in the ease at bar.
The rule is thus stated in Cooley’s Briefs on Insurance, vol. 4, p. 3228: “Among the *574questions invariably asked of the applicant for life insurance is whether he had ever applied to any other company for insurance and been rejected. The purpose of the question is perhaps twofold — to discover whether the risk has ever been regarded as unsafe by other insurers, and to show the applicant’s anxiety for insurance. Whether the applicant has ever applied to other companies for insurance and been rejected is, therefore, regarded as material to the risk, and a statement in this regard whether made as a warranty or as a representation, will, if false, avoid the policy.” In support of this proposition Cooley cites a multitude of authorities.
It is said in some of the text-books and decisions that the materiality of a misrepreisentation is always a question for a jury. For instance, Cooley, in his Briefs on Insurance, vol. 3, p’. 1935, states: “Though more or less qualified in those states where statutes have been adopted relating to the effect to be given to immaterial statements, it is nevertheless the general rule'that the materiality of the misrepresentation is a question for the jury.”
Richards, in his work on Insurance (3d Ed.) § 101, states: “Whether a representation be material or not, and whether substantially true or not, are questions of fact, and ordinarily are to be determined by the jury; but when the testimony in its entirety, relating to a question of fact, is such that to a reasonable mind.only one inference is dedueible from it, the issue becomes one of law, and is to be determined by the court.” In section 97 of his work he states: “ *' * Where an applicant erroneously stated that no other company had refused to grant him life insurance it was held to be a material misrepresentation, and good ground for decreeing a cancellation of the policy.”
In Joyce on Insurance, it is stated (section 2075), after dealing with the subject of warranties: “And although the policy does not declare the statements warranties, still if applicant’s misrepresentations that an accident policy of insurance had been canceled or renewal refused is falsified, as where he had received notice of cancellation and had endeavored to obtain insurance to replace that cancelled, in such ease the materiality is apparent as a matter of law and as the misrepresentation was also intentional, recovery was precluded.” Citing Maryland Casualty Co. v. Eddy (C. C. A.) 239 F. 477.
In May on Insurance (4th Ed.), an earlier work (1873), the author states in section 184: “In ease of warranty the question of materiality does not arise. In case of representation it always does; and if this materiality depends upon facts and circumstances, it is a question for the jury, to be inferred from those facts and circumstances, as is also the materiality of a concealment. The test of the materiality of a misrepresentation or concealment is, that it influences the insurer in determining whether to accept the risk, and what premium to charge.” The author, however, states (section 185) that where the parties to an insurance policy have put their representations in the form of question and answer, that fact shows the representations to be material, stating: “The inquiry and answer are tantamount to an agreement that the matter inquired about is material, and its materiality is not therefore open to be tried by the jury. That this materiality is under such circumstances a question for the court, has been frequently decided, especially in cases where untrue answers are given to questions as to title. Whether certain statements are or are not material, is a matter upon which there may be a difference of opinion. Nothing therefore can be more reasonable than that parties entering into a contract of insurance shall determine for themselves what they think to be material. And that determination is conclusive.”
In determining the weight of this authority, it is proper to note that there have been a multitude of decisions upon the subject since this text-book was written, and that there have also been statutory provisions in many states limiting the effect of such statements to their effect as representations rather than warranties.
In Ruling Case Law, published in 1916, vol. 14, § ,258, it is said: “A statement as to previous rejections is material as a matter of law and if false avoids the policy regardless of the good faith of the applicant.”
If we assume that there is confusion or disagreement in the eases upon the question as to whether or not materiality of such representation is a question for the jury, it must be borne in mind that the question has arisen under different forms of policies, in different jurisdictions, and under different legislation, which accounts in a measure for this diversity. So far as the case at bar is concerned, the matter of the materiality of misrepresentations with reference to denials of applications for life insurance in other companies, and as to whether or not the question is one for the court or jury, is definitely *575settled by comparatively recent decisions of our Supreme Court.
In Aetna Life Ins. Co. v. Moore, 231 U. S. 543, 34 S. Ct. 186, 187, 58 L. Ed. 356, the Supreme Court bad occasion to consider a policy of life insurance issued in the state of Georgia and governed as to its interpretation by tbe Code of Georgia. It had been held by the Supreme Court of Georgia that under the Code of that state the parties could not make representations as to immaterial matters warranties, and therefore it was incumbent upon the insurance company to establish that the representations claimed by it to avoid the policy were material to the risk and untrue. The application of the insured contained the following questions and answers: “16. Has any proposal or application to insure your life been made to any company, association or agent on which a policy of insurance is now pending? Or has any such proposal or application ever been made for which insurance has not been granted, or on which a policy or certificate of insurance was not issued in full amount, and of the same kind as applied for? If so, state particulars and the names of all such companies, associations, or agents. Answer: None.” While there were a number of other questions and answers involved in the opinion, wo will confine our consideration of the case to this particular question and answer. The insurance company had moved for a directed verdict. Discussing this question, the Supreme Court, speaking through Justice McKenna, after quoting from section 2479 of the Georgia Civil Code 1910, the provision that, “Every application for insurance must be made in the utmost good faith, and the representations contained in such application are considered as covenanted to be true by the applicant. Any variation by which the nature or extent or character of the risk is changed will void the policy,” went on to say:
“But who is to decido — the court or jury • — whether a variation be of the quality described? We have seen how explicit the poliey is, and this court in Jeffries v. Economical Life Ins. Co., 22 Wall. 47, 22 L. Ed. 833, and Aetna Life Ins. Co. v. France, 91 U. S. 510, 23 L. Ed. 401, held that the parties to the contract may make the inquiries and answers material, and that therefore their materiality is not open to be tried by a jury.
“These cases recognize the right of the insurer and the insured to make their own contract and determine for themselves what representations shall be material.
“How far has this simple rule and the right of ihe parties been changed by the Georgia Code?”
The court then called attention to the decisions of the Supreme Court of Georgia holding that statements of the insured made in his application were deemed warranties, and stated as follows:
“We have seen questions were addressed to Salgue as to the names and residence of the physicians he had employed or consulted, and whether any physician had expressed an unfavorable opinion upon his life with reference to life insurance, and also whether any proposal or application to insure his life was pending in another company, or, if made, had not been granted. * * * To the third [above] question he answered, ‘None.’ The truthfulness of the answer is asserted notwithstanding it appeared from the testimony that ho had made application to-the Penn Mutual Company, which application had not been granted. * * *
“It is contended by respondent that this testimony shows that Salgue’s application to-the Penn Mutual was not rejected, but was. withdrawn; and, besides, whether it was rejected or withdrawn was a question for the jury. We are unable to concur with either [italics ours] contention. The question was-a very broad one. It was whether any proposal or application had been made for which insurance had not been granted, and particulars were asked for, ‘and the names of all such companies, associations, or agents.’ Regarding the sense of the question — indeed, if not its letter — the answer was untruthful. * * * If it had been answered according to tbe facts, the company would have received information of circumstances certainly material for it to consider. * * *
“In Phoenix Life Ins. Co. v. Raddin [120 U. S. 183, 7 S. Ct. 500, 30 L. Ed. 644], there is a clear definition of principles. Answers to questions propounded to an applicant, it was held, will he considered representations unless clearly intended by both parties to be warranties, as to which substantial truth in everything material to the risk is all that is required of the applicant. And it was decided : ‘Whether there is other insurance on the same subject, and whether such insurance-has been applied for and refused, are material facts; at least, when statements regarding them are required by the insurers as part of the basis of the contract. * * * *576Where an answer of the applicant to a direet question of the insurers purports to be a complete answer to the question, any substantial misstatement or omission in the answer avoids a policy issued on the faith of the application.’ ”
It will thus be observed that the Supreme Court decided that the answer to the question as to other applications for insurance was material, and also decided that the question of whether or not the answer in that particular ease was false was a question for the court and not for the jury, in view of the admitted faets.
In 1874 the Supreme Court in Jeffries v. Life Ins. Co., 22 Wall. 47, 51, 22 L. Ed. 833, supra, had occasion to consider the effect of an untrue answer of the insured in his application as to previous applications made to other companies. The policy in that case was issued in Missouri, and it appears that that state, on March 23,1874, had passed a statute to the general effect “that misrepresentations not relating to the risk, shall not vitiate a policy, and that in all cases the materiality shall be a question for the jury.” The policy, however, had been issued in 1870 and the insured died in 1871. The court did not refer to the Missouri statute in its decision, but in dealing with the question of materiality the opinion proceeds as follows:
“We are to observe, also, that other clause of the policy, in which it is declared that this policy is made by the company and accepted by the insured, upon the express condition and agreement that such statements and declarations are in all respects true. This applies to all and to each one of such statements. In other words, if the statements are not • true, it is agreed that no policy is made by the company, and no policy is accepted by the insured.
“The proposition at the foundation of this point is this, that the statements and declarations made in the 'policy shall be true.
“This stipulation is not expressed to be made as to important or material statements only, or to those supposed to be material, but as to all statements. The statements need not come up to the degree of warranties. They need not be representations even, if this term conveys an idea of an affirmation having any technical character. Statements and declarations is the expression; what the applicant states and what the applicant declares. Nothing can be more simple. If he makes any statement in the application it must be true. If he makes any declaration in the application it must be true. A faithful performance of this agreement is made an .express condition to the existence of a liability on the part of the company.
“There is no place for the argument either that the false statement was not material to the risk, or that it was a positive advantage-to the company to be deceived by it.
“It is the distinct agreement of the parties, that the company shall not be deceived to its injury or to its benefit. The right of an individual or a corporation to make an unwise bargain is as complete as that to make a wise bargain. The right to make contracts carries with it the right to determine what is prudent and wise, what is unwise and imprudent, and upon that point the judgment of the individual is subject to that of no other tribunal.
“The ease in hand affords a good illustration of this principle. The company deems it wise and prudent that the applicant should inform them truly whether he has made any other application to have his life insured. So material does it deem this information, that it stipulates that its liability shall depend upon the truth of the answer. The same is true of its inquiry whether the party is married or single. The company fixes this estimate of its importance. The applicant agrees that it is thus important by accepting this test. It would be a violation of the legal rights of the company to take from it its acknowledged power, thus to make its opinion the standard of what is material, and to leave that point to the determination of a jury. The jury may say, as the counsel here argues, that it is immaterial whether the applicant answers truly if he answers one way, viz., that he is single, or that he has not made an application for insurance. Whether a question is material depends upon the question itself. The information received may be immaterial. But if under any circumstances it can produce a-reply which will influence the action of the company, the question cannot be deemed immaterial. Insurance companies sometimes insist that individuals largely insured upon their lives, who are embarrassed in their affairs, resort to self-destruction, being willing to end a wretched existence if they can thereby bestow comfort upon their families. The juror would be likely to repudiate such a theory, on the ground that nothing can compensate a man for the loss of his life. The juror may be right and the company may be wrong. But the company has expressly provided that their judgment, and not the judgment of the juror shall govern. Their right thus to con*577tract, and the duty of the court to give effect to such contracts, cannot be denied. * * *
“Many cases may be found which hold, that where false answers are made to inquiries which do not relate to the risk, the policy is not necessarily avoided unless they influenced the mind of the company, and that whether they are material is for the determination of the jury. But we know of no respectable authority which so holds, where it is expressly covenanted as a condition of liability that the statements and declarations made in the application are true, and when the truth of such statements forms the basis of the .contract.”
While the Supreme Court in this early ease did not pass upon the effect of the Missouri statute above referred to, it did so in the case just considered (Aetna Life Ins. Co. v. Moore, supra) under a statute of similar effect as determined by the Supreme Court of the state of Georgia.
In a later case, Mutual Life Ins. Co. of N. Y. v. Hilton-Green, 241 U. S. 613, 36 S. Ct. 676, 677, 60 L. Ed. 1202, the Supreme Court again was called upon to consider the effect of an application for life insurance containing the following question and answer: “22. I have never made an application for life insurance to any company or association upon which a policy has not been issued on the plan and premium rate originally applied for, except as to the following companies or associations: None, and no- such application is now pending or awaiting decision.” The policies were issued in Florida, and contained, among others, the following agreements: “All statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties. 81 * * In November, 1908, he [the insured] applied to Prudential Insurance Company of America for a life insurance policy.” One of the principal questions involved in the decision is not germane to the case at bar, and we omit a statement in reference thereto. The insurance company moved for a directed verdict, which was refused. The Circuit Court of Appeals (211 F. 31) in deciding the case, held: “That, under the language of the policies involved in this suit, the defendant, to avoid the policies for false representations, must establish their falsity, materiality, and the knowledge of the insured, actual or imputed, of their falsity. * * * So with regard to the representation of the insured that there had been no previous application for insurance made by him and rejected, or not passed upon favorably by the insurance company. This was untrue, must have been known to have been untrue by the insured when he made it, and it was material. Either of these two last representations would be sufficient to avoid the policies, unless the defendant is estopped to rely upon them, by reason of its knowledge of their falsity.”
After quoting this portion of the decision of the Circuit Court of Appeals, Mr. Justice McReynolds, speaking for the court, states: “Considered in most favorable light possible, the above quoted incorrect statements in the application are material representations; and, nothing else appearing, if known to be untrue by assured when made, invalidate the policy without further proof of actual conscious design to defraud. Moulor v. Am. Life Ins. Co., 111 U. S. 335, 345, 4 S. Ct. 466, 28 L. Ed. 447, 450; Phoenix Life Ins. Co. v. Raddin, 120 U. S. 183, 189, 7 S. Ct. 500, 30 L. Ed. 644, 646; Aetna Life Ins. Co. v. Moore, 231 U. S. 543, 556, 557, 34 S. Ct. 186, 58 L. Ed. 356, 365, 366; May, Ins. (4th Ed.) § 181.”
After deciding that the information of the local agent of the insurance company as to the falsity of the applicant’s answers was not binding upon the company, the opinion of Mr. Justice McReynolds proceeds as follows :
“The assured at the least consciously permitted an application containing material misrepresentations to be presented by subordinate agents to officers of the insurance company under circumstances which he knew negatived any probability that the actual faets would be revealed; and later he accepted policies which he must have understood were issued in reliance upon statements both false and material. He could claim nothing because of such information in the keeping of unfaithful subordinates. Moreover, the false representations accompanied and were' essential parts of the policies Anally accepted. * * * Beyond doubt an applicant for insurance should exercise toward the company the same good faith which may be rightly demanded of it. The relationship demands fair dealing by both parties. N. Y. Life Ins. Co. v. Fletcher, 117 U. S. 519, 529, 533, 534, 6 S. Ct. 837, 29 L. Ed. 934, 939, 940; Assurance Co. v. Bldg. Ass’n, 183 U. S. 308, 361, 22 S. Ct. 133, 46 L. Ed. 213, 234; U. S. Life Ins. Co. v. Smith, 92 F. 503, 34 C. C. A. 506.
“Considered with proper understanding of the law there is no evidence to support a verdict against petitioner, and the trial court should have directed one in its favor.”
*578These decisions of the Supreme Court of the United States settle the question so far as this court is concerned that misrepresentations with relation to the rejection of the applicant by other life insurance companies are material as a matter of law, and if false and known to be false by the insured, invalidate the policy.
There is nothing in Security Life Ins. Co. v. Brimmer (C. C. A.) 36 F.(2d) 176, Northwestern Mut. Life Ins. Co. v. Wiggins (C. C. A.) 15 F.(2d) 646, or Hardman et al. v. Firemen’s Ins. Co. (C. C.) 20 F. 594, cited by respondent^ inconsistent with the foregoing conclusions; but if there is they cannot stand as authority against the express decision of the Supreme Court of the United States to the contrary.
The main opinion in his case assumes that the materiality of the question and answer with reference to rejection for insurance depends upon the cause of rejection rather than upon the fact of rejection. It is true that in most of the cases in which rejection has been relied upon as the basis for asserting the falsity of the representation the rejection was because of defective health, which would rather obviously affect the risk assumed by the insurance company issuing the policy. But, as pointed out in the decisions from which we have quoted, the question of the health of the applicant is not the only reason an insurance company seeks information concerning such rejections. In this connection, however, it may be well to point out that the record in this ease seems to show that the rejection was for a cause which would materially affect the risk. Gladys Golden, the witness above, referred to, testified as follows:
“Q.. Something is said about the reason for rejection, — have you a copy of any record of the reason for rejection? A. Yes.
“Q. What was the reason for rejection? ijc Hi *
“Mr. Withington (for appellant): You have a list there that refers — that explains this card? A. Yes.
“Q. This card shows the reason for rejection? A. Yes.
“Q. Will you refer to that list of reasons and show what reason for the rejection in this case was?
“Mr. Kelley (for appellee): Now may I look at it. * * * We are perfectly satisfied. * * *
“A. The reasons are, lung disease, asthma, bronchitis or cough, loss or gain in weight, the other was underweight.
“The Court: Is there any way in which this record, orginal document, can be read into the record?
“Mr. Kelley: I would like it to remain in the ease until the ease is finished.” * *
“Q. This is the Prudential Life Insurance Company’s list of impairments, past or present history, confidential list? A. Yes.
“Q. Then on this card, being Defendant’s Exhibit No. 1, it names the amount, $2,000, and there are two numbers, 13-41; is that correct? A. Yes.
“Q. Those two numbers, 13-41, refer to the corresponding numbers on that confidential list; is that correct? A. Yes.
“Q. No. 13, as you have already read, reads, lung disease, asthma, bronchitis or cough; is that correct? A. Yes. •
“Q. It could be in one or all of any two or three of those disorders? A. Yes.
“Q. But it doesn’t say which one of those on this card and you don’t know? A. No.
“Q. No. 41 reads, loss or gain in weight; over or underweight? A. Yes.
“Q. This doesn’t indicate whether this man had lost weight or gained weight, or whether over or underweight, and you do not know? A. No, I do not.”
It is true that the doctor was not questioned on the subject of the health of the insured. As I view it, that question is wholly immaterial. But it cannot be said that there was an entire lack of proof on the subject. On the contrary, the uncontradieted testimony of one credible witness was sufficient to establish that the applicant was rejected for the reason stated. The appellee’s attorney examined the records of the company produced in court and announced himself as perfectly satisfied. If we assume, as the main opinion does, that the reasons for rejection are material, they are amply proven by the undisputed evidence introduced by the defendant.
With reference to the question of tender, it may be conceded, as stated by the majority, that the tender of the premium to the appellee or her attorney should have included interest. No point was made upon that ground at the time of the tender, or at any subsequent time, until the filing of the amended replication on June 16, 1930. The rale is well settled that one objecting to the suf*579fieieney of a tender of this sort must make the objection at the time of the tender. As stated by the Supreme Court of Illinois, in Thompson v. Crains, 294 Ill. 270, 128 N. E. 508, 12 A. L. R. 931: “ * * * The only objection made to this tender at the time was that the amount was not sufficient, and that no question was raised as to its being by certified check or because of the indorsement. The law interprets the conduct of the parties as to a tender according to their apparent intention and determines its sufficiency upon the objections then stated, and silence is considered a tacit waiver of other objections, 1 Sutherland on Damages (4th Ed.) § 273; 26 R. C. L. 638. See, also, to the same effect 28 Am. & Eng. Ency. of Law (2d Ed.) 18, 19, and cases cited; Gradle v. Warner, 140 Ill. 123, 29 N. E. 1118; 12 Ency. of Evidence, 487. This same reasoning applies to the question whether or not the tender was properly made to the trustee instead of to the creditor herself. 1 Sutherland on Damages (4th Ed.) § 265.”
This same rule was applied by the Supreme Court of Pennsylvania in Leafgreen v. Labar, 280 Pa. 215, 124 A. 443. To the same effect, see People’s Furniture & Carpet Co. v. Crosby, 57 Neb. 282, 77 N. W. 658, 659, 73 Am. St. Rep. 504, where it is said: “When the tender is refused because not deemed sufficient in amount, and absolutely, it cannot be avoided merely because not in lawful money to the precise amount.”
In my opinion the judgment should he reversed.