(dissenting).
Section 40-418, General Statutes of Kansas 1935, provides that no misrepresentation made in the securing of a policy of life insurance shall be deemed material or render the policy void unless the matter misrepresented shall have actually contributed to the contingency or event on which such policy is to become due and payable. . The policy in suit contains a provision that it and the application shall constitute the entire contract and that all statements made by the insured shall in the absence of fraud be deemed representations and not warranties. The law of Kansas is controlling in respect to the effect of the statute and the provision in the policy. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487; Ruhlin v. New York Life Ins. Co., 304 U.S. 202, 58 S.Ct. 860, 82 L.Ed. 1290; New York Life Ins. Co. v. Jackson, 304 U.S. 261, 58 S.Ct. 871,. 82 L.Ed. 1329; Rosenthal v. New York Life Ins. Co., 304 U.S. 263, 58 S.Ct. 874, 82 L.Ed. 1330.
Much of the evidence is reviewed in the opinion of the majority. I do not stop to restate it or to add extensively to it. The insured was examined and tests were made. But the tests were all negative, and he was assured that he had only a nonspecific inflammatory reaction. He was advised that there was nothing to worry about, for him not to think that he had a cancerous condition, and to forget it. None of the physicians who examined him or made tests believed at the time that a malignant condition existed. They were virtually unanimous in the belief that it was merely a nonspecific inflammatory condition. And most of them testified that in their opinion his condition existing at the time of the several examinations conducted in Cleveland,was merely a nonconnected coincidence with his death occurring later. The insured continued in the active practice of his profession after the examinations were conducted and the tests were made. He was about six feet in height, weighed about two hundred pounds, was healthy and robust until the spring of 1937, and lost no time from the office until about August of that year. He did not complain. He sometimes ran up the stairs to his office. He played golf, and he took golf lessons in the summer of 1937.
An incorrect or untruthful answer does not necessarily relieve an insurer of liability in Kansas. The rule under the statute there is whether the insured exercised good faith in making the answer. The question is whether he answered in good faith or with a fraudulent intent and purpose. The evidence in this case presented that question. Northwestern Mut. Life Ins. Co. v. Woods, 54 Kan. 663, 39 P. 189; Sharrer v. Capital Life Ins. Co., 102 Kan. 650, 171 P. 622; Scott v. National Reserve Life Ins. Co., 143 Kan. 678, 56 P.2d 176; Day v. National Reserve Life Ins. Co., 144 Kan. 619, 62 P.2d 925; Jackson v. National Life & Accident Ins. Co., 150 Kan. 86, 90 P.2d 1097. The court submitted the issue to the jury in clear and unmistakable instructions. The jury resolved it in favor of plaintiff. The finding is supported by substantial evidence, and the judgment should be affirmed.