(concurring).
I concur in the result reached in this case, affirming the judgment of the District Court, because the record is conclusive as to the cancellation of the policy issued by the Home Accident & Home Fire Insurance Company, prior to the application made by Dr. Garfagni to appellee for a policy of insurance. And I concur in holding that there was no waiver of the provisions of the policy, because there was no proof of compliance with the provision with respect to waiver set out in the opinion. 78 F.(2d) 545, 547.
However, I cannot agree with the opinion herein with respect to the holding of this court, that the trial court was justified in its express and in its implied finding that the “replacement” of three other policies prior to the application made to appellee, were cancellations within the meaning of the warranty against cancellations.
In so far as the opinion herein so holds, I dissent.