(dissenting).
On November 28, 1967, defendant-appellant, Massachusetts Mutual Life Insurance Company, insured the life of John H. Vye for $75,000.00, payable to his employer, Woodall Industries, Inc. Mr. Vye had absolutely no interest, nor did any member of his family, in the policy or proceeds of the policy of the life insurance.
On or about December 2, 1968, while the policy was in full force and effect, Mr. Vye died. He was always a vigorous man until the day before his death. On that day he was in a neighborhood pharmacy when he suddenly complained of pains in his chest, which were so severe as to cause him to sit down. The pharmacist gave him smelling salts which seemed to relieve him, and called Dr. Paul M. Becker, a neighborhood physician, who, by telephone, directed that Mr. Vye be taken immediately by ambulance to the William Beaumont Hospital, whei'e he was at once placed in the Intensive Care Unit. The next day he seemed to be on the road to recovery and was removed to a private room where he suddenly died.
The defendant-appellant insurance company failed and refused to make the payment for such life insurance to the Woodall Industries, Inc., and the latter brought suit on the policy. The case was tried before a jury which returned a verdict giving the full amount of the policy to appellee, Woodall Industries, Inc.; and the insurance company appealed.
Although Mr. Vye was Executive Vice President of a corporation, he used all of his spare time engaging in physical work around his home — cutting trees, planting bushes, splitting logs, mowing his lawn, raking the leaves, removing the leaves from the roof and gutters, as well as removing snow from the roof, shoveling snow from the walks and driveway (his neighbors had employed men with tractors to do this work), trimming trees by getting up into them by ladders, as well as removing screens and storm-windows each season — all of which is unusual physical effort, such that in our day most men of his age, in similar employment, hire others to do.
Mr. Vye came from Wisconsin. He was married in 1941 to Mrs. Vye and lived with her until his death on December 2, 1968. During that period Mr. Vye suffered from no physical ailments, nor were his activities around the house restricted in any way. At that time, the Vyes were living in Milwaukee and afterward moved to Van Wert, Ohio, where they lived for two years. From Van Wert, they moved to Hudson, Wisconsin, “near the Twin Cities,” and remained there for six years. They then moved to Birmingham, Michigan. He rarely saw a doctor and had no family physician. The only time he saw a doctor was for flu or some minor, common ailment. The only general physical examinations he had before that in the instant case were when he was examined in 1946 for and obtained $5,000 of life insurance, and when he was examined by an insurance company physician in 1964 and, as a result, secured $45,000 of life insurance.
The insurance company, in its appeal, relies on false representations made by Mr. Vye in the application for the policy, in that he stated he had no known indication, or had been told, that he had any disorders of the heart or blood vessels ; that, on the contrary, Mr. Vye had a long history of, and was suffering *991from, disorders of the heart and blood vessels for many years preceding the date of application for the insurance, all of which were known to Mr. Vye but not disclosed in the application.
The issue in the case is whether Mr. Vye, at the time of the application, was suffering from disorders of the heart and blood vessels and knew that he was suffering from such disorders, and that he had fraudulently concealed pertinent information from appellant insurance company.
In the application for insurance, Mr. Vye was asked, and replied:
“During the last ten years have you had
“Advice from or attendance or treatment by physicians, other practitioners, or psychologists? Yes. * * #
“X-ray, electrocardiographic or blood examinations? Yes. * * *
“During the past ten years have you any known indication of “Pain, pressure, or discomfort in the chest? No.
“Shortness of breath, palpitation or irregular heart action ? No.”
It is not claimed that any of the foregoing answers constituted misrepresentations. Mr. Vye was further asked:
“At any time have you had any known indication or been told that you had
“Any disorder of the heart or blood vessels? No.”
It is this answer upon which the insurance company relies in its contention that the policy should be cancelled because of material misrepresentations made by Mr. Vye. We disagree with this contention.
Mr. Vye was also asked whether he had any gallstones or gall-bladder disorder, ulcer of the stomach or bowel, or any disorder of the- stomach, liver, intestines or rectum, and his reply was “No.”
The real basis of defendant-appellant’s contention is as follows:
On November 2, 1966, Mr. Vye called on Dr. Paul M. Becker, a physician having an office in the neighborhood of Mr. Vye’s home in Birmingham, Michigan. Mr. Vye had never consulted Dr. Becker before, and never consulted him afterward.
Dr. Becker is the chief witness of the insurance company in this case.
Why Mr. Vye came to see Dr. Becker was because he had occasional rectal bleeding. Dr. Becker examined him and found that the cause of the bleeding was the presence of internal hemorrhoids. Such hemorrhoids, as Dr. Becker stated, are very common. Mr. Vye also had “a very small polyp,” which is a wart-like growth of the lining of the rectum- — eight millimeters in circumference, of benign appearance, and which Dr. Becker linked with the rectal bleeding. The treatment for such bleeding is sitz baths, suppositories, and a local ointment, all designed to act against inflammation, and to avoid recurrences of bleeding, which Dr. Becker prescribed.
After this examination, Dr. Becker decided to listen to Mr. Vye’s heart. He stated that he heard a diastolic murmur, with the heart examination otherwise being normal. A diastolic murmur is medically significant as showing a defect of the valves of the heart.
Further, in the printed form of the application for insurance it was set forth:
“If any part of any question is answered ‘Yes,’ give particulars. For medical histories, include: Nature of Ailment; Date; Duration, Attending physicians.”
Referring to the questions to which he had answered “Yes,” as 3A-4A and D. Mr. Vye answered:
“Had an executive type of exam, a short time ago by Dr. MacQueen. This included E.K.G., chest X-ray, Bl. Chemistry and Sigmoidoscopy. All reports normal. No treatment.”
It is to be noted that in the above the insurance company wanted the medical *992histories, nature of ailment, date, duration, and name of attending physician.
Mr. Vye’s only ailment was hemorrhoids. As to the nature of ailments, Mr. Vye stated he could not recall any major ailment. The only treatment prescribed was a local ointment, sitz baths, and suppositories.
It is claimed by appellant insurance company that, in addition to a false representation that Mr. Vye had never had any known indication or been told that he had any disorder of the heart and blood vessels, Mr. Vye further was guilty of fraud in not disclosing to the insurance company that he had been examined and treated by Dr. Paul M. Becker for hemorrhoids, and that Dr. Becker had told him that he had a diastolic heart murmur, which is a matter of considerable medical significance. We disagree with this contention of appellant as to both of these claims of nondisclosure.
Mr. Vye called upon Dr. Becker on only one occasion, and that was for advice and treatment of rectal bleeding. Dr. Becker, as mentioned, prescribed a local ointment, sitz baths, and suppositories to alleviate the inflammation for this common inconvenience. There was no medical history, no duration of ailment, and no “attending physician” except that Dr. Becker examined the colon and prescribed the remedy during, perhaps, ten minutes of the appointment. Mr. Vye never asked for any general examination and received none.
The law is that it is not necessary to disclose trivial complaints. The hemorrhoids were trivial and they were cured by an ordinary common remedy. Lipsky v. Washington Nat. Ins. Co., 7 Mich. App. 632, 152 N.W.2d 702.
Dr, Becker testified that when Mr. Vye consulted him, it “was an ordinary office conversation. It was the first time I ever saw this gentleman. But I took a short history. * * * The history, now referring to my record:
“ ‘In the past’ — this refers to significant parts of the history, I don’t write more down — ‘the past history of scarlet fever, with slow recovery. And questionable heart involvement.’ ”
“This is quoting the patient. And obviously considerable question, since I made three question marks behind my note.
Q. Would you explain to the jury perhaps what you mean by your three question marks that you refer to?
A. It would mean that the question quotes apparently some comment which he recalls this date back to his childhood about the degree of scarlet fever which was apparently slow recovery, prolonged, that somebody must have mentioned the heart was involved. The question marks indicate that this was not established. This was not a firm diagnosis which the patient was aware of subsequently.
In fact, as further conversations went with the patient, he pointed out to me that he knew nothing about any heart problem, because he had had subsequent examination. His company, in fact, I believe asked him to have subsequent —periodic heart examinations. He mentioned that no heart disease was established at those examinations. And the question marks simply indicate that it is not an established diagnosis, simply a comment referring back to childhood. * * * The further comment just illustrates that was, once more, periodic physicals. I have a note here, ‘No significant abnormalities found.’ * * * And the physicals entailed chest x-rays, he mentioned, which were reported to him as being normal. * *
Q. What examination, if any, did you conduct at that time ?
A. Examination was one of a short survey examination of the patient in general, including taking his *993blood pressure, looking at his general apparent health, his skin, his head, his nose, throat, his neck, his chest, a heart examination we will come back to later, abdominal examination; and, now with reference to his complaint, the rectal examination, which included both a finger examination and examination by a sigmoidoscope. This is a term which we use when we use a tubular instrument which is inserted into the lower rectum for a certain length. It allows us to directly inspect the inside lining of the rectum, lower part of the colon, large bowel, and discloses to us any visible abnormality which, for instance, could have led to bleeding.
Q. What did that examination disclose ? If anything.
A. The examination, to first do away with the patient’s initial complaint, disclosed a definite presence of internal hemorrhoids. Hemorrhoids are dilated veins superficially close to the surface, located at the lower part of the rectum, very close to the exit point, and are very common.
The patient, in addition to the presence of hemorrhoids, had — quoting my notes — ‘a very small polyp’ — which is a wart-like growth of the lining of the rectum, which was very small, two times three millimeters in circumference * * * which is an equivalent to maybe two and a half to three inches — up from the rectal opening; which, by appearance, looked entirely benign and, in my opinion, was not the source of his rectal bleeding, which I linked with the existing definitely present internal hemorrhoids, the most common cause for rectal bleeding.” (Emphasis supplied.)
Dr. Becker prescribed sitz baths at home, suppositories, and a local ointment, all designed to act against inflammation, to avoid recurrences of bleeding.
All of the foregoing had to do with Mr. Vye’s symptoms, his rectal bleeding and remedies therefor, and this was the only reason Mr. Vye called on Dr. Becker, who lived in the neighborhood, but was a total stranger to Mr. Vye. There is no dispute as to any of the foregoing.
However, Dr. Becker then suggested a heart examination with X-rays and an electrocardiogram, and Mr. Vye acquiesced.
Now we come to the main issue in the case.
Dr. Becker testified that during the heart examination he listened to the heart, and heard, “What we describe” as a diastolic murmur, with the heart examination otherwise being normal.
Dr. Becker further testified that
“the heart is an active pumping organ which goes basically through two phases of action, one is the active contraction of the heart muscle which results in a pumping out of a blood volume which has collected inside the heart chamber. This part of the active contraction we call ‘systole.’
“Then, after the contraction, the heart muscle basically relaxes and is filled with a blood volume which it has to pump out again. This is called ‘diastole.’
“We distinguish by listening to the heart when we are talking about heart murmurs, between the systolic murmurs and diastolic murmurs; which simply means the murmurs we hear during the active pumping part of the heart are the systolic ones, and murmurs we hear in the inactive phase are diastolic murmurs.
“There is one other way to distinguish, and this is referring now to heart sounds which also occur, there is this distinction from murmurs normally. The heart, when it beats— which you all may have heard on television or movies — makes a certain sound, anyone normal, something like ‘lop dup.’ ‘Lop’ would be the first *994sound, call that ‘S-l,’ the first sound. And the ‘dup’ would be the second sound.
“These are sounds created by the valves in the heart as they are opened or closed.
“So, the heart action is ‘lop dup, lop dup,’ the first and second sound.
* w * -X* * *
“The diastole, as I explained already, the inactive part of the heart muscle, the heart muscle is filled passively, is filled after the second sound, which terminates the action, contraction part.
“Anything after the second sound occurring until the first sound comes in again would be diastole.
“Now, of course, if you refer to first and second sound, and say a systolic murmur occurs in this time span (indicating) between first and second sound, and the diastolic murmur occurs between or after the following the second sound, before the first sound, the next cycle comes in again. That is the distinction between systolic and diastolic murmurs. * * * Now, then, as I indicated, I heard a diastolic murmur; which means I heard a heart murmur after the second sound of the heart. * * *
“Since a diastolic murmur in the medical profession is almost immediately considered significant, that means a meaningful medical finding referring to some abnormality, the patient was advised by me that it would be smart — this has nothing to do with rectal bleeding, mind you — smart to have an electrocardiogram and have a chest x-ray taken to further elucidate the degree of meaningfulness this heart murmur documented.
“The patient agreed to this. He had an electrocardiogram taken in my office at that same conversation. And the electrocardiogram, was considered within normal limits by me.
“Q. Did you make any diagnosis, at the time of your examination, of his condition?
A. On the basis of the presence of this diastolic murmur, I formed the opinion that the patient had an aortic valve defect, allowing the occurrence of the diastolic murmur. The shape of the murmur, the sound character of the murmur, was such to allow that diagnosis, a defect of the aortic valve in this patient’s heart.
Q. Did you inform Mr. Vye of this diagnosis at that time ?
A. I informed him of my opinion.
Q. What treatment, if any, did you prescribe at that time? This is your office.
A. Now, we have to be careful. The patient was not symptomatic. That means he had no symptoms referrable to this particular finding. He, in other words, offered no symptoms to indicate that he had, in fact, heart disease.
‘The disclosure I made to him was simply that of some murmur existing carrying medical significance.
‘This didn’t mean he had to be running around with shortwind-edness or any other symptom re-ferrable to the heart.” (Emphasis supplied.)
Dr. Becker assumed that Mr. Vye had an aortic valvular defect, and he therefore gave Mr. Vye penicillin to avoid possible infection “which could arise on this defective valve I assumed was present.” (Emphasis supplied.)
Mr. Vye also had an X-ray taken on Dr. Becker’s suggestion.
Dr. Becker testified:
“Q. What, if anything, did you report to Mr. Vye concerning the results of this X-ray ?
A. I simply told him this is in accord with the short conversation we had about his heart in my office, that I still considered the finding significant enough to have somebody follow up in the *995future on this particular finding; which means, for instance, no more than have it examined once a year to see whether this valvular defect I presumed was present gained significance in terms of producing symptoms progressed to a point where it would need specific assistance to the heart to allow work under an extra load because of an existing defect. * * * ” (Emphasis supplied.)
The findings of the X-ray technician stated:
“The findings are compatible with aortic valvular disease. The study is otherwise negative.”
It appears in further evidence that the X-ray findings were compatible with many other conditions of the heart, none of which carried any suggestion of disease or danger to Mr. Vye.
The most important point in the diagnosis is that Mr. Vye, as was finally proved, and admitted by everyone, had no aortic valvular defect at any time; and the findings of the X-ray technician that they were compatible with aortic valvular disease are, therefore, completely without substance and worthless.
This proof comes from the evidence at the autopsy examination of Mr. Vye. Dr. Becker, after the autopsy, admitted that the heart valves of Mr. Vye showed no disease or aortic defect whatever. His explanation of the mistake he had made in diagnosing Mr. Vye as having defective or diseased heart valves was that the heart murmur he had previously considered secondary to a defective aortic valve was not a defective valve at all; that Mr. Vye died of an aneurism, described by Dr. Becker as a cystic medial necrosis of the aortic wall, which weakens the aortic wall; that this can lead to progressive slow dilatation, or widening of the aortic wall, and that while the valves may be normal in structure, that the valves are pulled apart by such widening; that it gives the same sound phenomenon as a defective valve, and that there is no way for a doctor to listen to a patient who is otherwise healthy, and has no heart symptoms, to know about this particular condition, except by a post-mortem examination which sheds light on the existing cause for an aortic valvular murmur. The autopsy, Dr. Becker went on, disclosed a very rare cause of aortic insufficiency.
“Q. And that is shown in the gross pathological discussion of the aorta or the microscopic ?
A. The microscopic; ‘Idiopathic cystic medial necrosis of the aorta,’ number one diagnosis. * * *
Q. It mentions in there some place something about the condition of the aorta that is being described as ‘recognizable zone of acute inflammatory cell infiltration.’ Does that mean, as you said before, something that occurred?
A. This was a description of the in-tima, of the internal lining.
Q. Now, what is there that says there is the period of time or any period of time as to the existence of the condition that you referred to of the medial ?
A. ‘Within the media there are irregular zones of acute hemorrhage with separation amongst the fibers and other zones of development of the irregular cystic space, a microscopic size amongst the medial fibers.’
******
Q. Did you ever recommend to Mr. Vye that that he go to a cardiologist specifically?
A. I told him if he has any doubt in what I am telling him, he should have that rechecked by a cardiologist, any other internist, his company physician, a physician of his choice.
Q. Didn’t you tell him to have it checked at the next physical examination? * * * Did you tell Mr. Vye that when he came *996to his next physical examination, he should call the attention of the company doctor to it?
A. By all means, yes.
* * •» * * *
Q. I will quote your words * * * T told Mr. Yye my opinion was he had very likely an aortic valvular disease, as indicated by the heart murmur, that I felt it was wise for him to have this mentioned to his company examiner to determine any confirmation of the finding, as well as possible future observation.’ * * *
A. I’m sure that I mentioned that to him.
* * * * * *
Q. You were asked whether you told Mr. Vye that his condition needed any medical attention. Would it be your recollection that you told him, ‘to have this confirmed and followed up, kept under observation by either myself or by a competent physician of his choice, that immediate treatment was not necessary. The treatment consists of proper follow-up’?”
On cross examination, Dr. Becker was asked:
“Q. And you didn’t tell him, then, anything about, ‘Well, have this within a year or within six months or within two years’?
A. If I told him all these details, it would have taken me two hours. I had a twenty-minute office call.” (Emphasis supplied)
Dr. Becker did, however, tell Mr. Vye that the heart murmur was not causing him any trouble; that he had no symptoms of heart disease, and that the heart needed no specific treatment.
It is repeatedly claimed that Dr. Becker told Mr. Vye that he had a diastolic heart murmur. However, this is not borne out by Dr. Becker’s testimony. He was asked:
“Q. And you did use the word ‘diastolic’ to him?
A. I am quite certain that I did.”
Mr. Vye told Dr. Becker that no one had ever mentioned any heart involvement to him during his lifetime until he made a twenty-minute call on Dr. Becker for treatment of rectal bleeding on November 2, 1966. It appears that he had passed an examination for life insurance in 1946, twenty years before he saw Dr. Becker; and that the examining physician for appellant insurance company, Dr. Bell, after Dr. Becker’s examination of Mr. Vye on November 20, 1967, found no diastolic murmur, and a physician, Dr. MacQueen, who was the partner of the insurance physician, had found no diastolic murmur after listening to his heart during a physical examination on November 8, 1967, twelve days before Dr. Bell’s examination of Mr. Vye.
Dr. Bell found no abnormality in Mr. Vye’s heart. Dr. MacQueen had found “a light systolic murmur at the apex which is of no significance.” As Dr. Bell testified, a systolic murmur is a functional murmur, which is not organic and is of no significance. Dr. Mac-Queen testified he heard a systolic murmur, but no diastolic murmur. It is agreed that a systolic murmur is not organic, and comes and goes, and is of no significance.
Dr. Becker testified that systolic murmurs are easy to hear, but that diastolic murmurs are very difficult to hear. “It takes experience and it takes a certain tuning in, knowing from past experience what the murmurs are supposed to be like. They are easily overlooked, far easier than systolic murmurs.”
Dr. MacQueen directly disputed the contention advanced by Dr. Becker that diastolic murmurs are more difficult to detect than systolic murmurs. He testified:
“Q. You mentioned that your findings of Mr. Vye were a systolic murmur, is that correct ?
A. Yes.
*997Q. Did you find any evidence of a diastolic murmur?
A. I did not.
Q. Is that harder to detect ?
A. No.”
It is important in this case to know what kind of man Mr. Vye was. Mr. Vye was a stocky, well-developed man, fifty years old, five feet, eleven inches tall, weighing an estimated 205 pounds, with good musculature and development. He had never had any serious illness except scarlet fever when he was about ten years old, from which he had completely recovered. He never went to a hospital until the day of his death. He had had no illnesses of any consequence, and he did not even have a family doctor. He had been examined for life insurance by the “Mutual N.Y.” and had secured a $5,000 policy which had been paid up. He also had been examined by the Northwestern Insurance Company and had secured a $45,000 policy in 1964.
Mr. Vye had been examined by the insurance doctors for the Massachusetts Mutual Life Insurance Company in this case, and the Woodall Company had secured a policy of $75,000 on his life, of which the company was the sole beneficiary. He had submitted to the examination, not in his own interest, but because the Woodall Company wished to check on the health of their employees, and take insurance out on them, in which Woodall would be the beneficiary, and, after a medical examination by the physician for the company, the policy was issued.
When Mr. Vye was in the Intensive Care Unit the first day, he was asked by Dr. Becker, who had not seen him for two years, “whether he had, in the interim two years, another examination, and what was disclosed to him during this examination, whether my personal finding was confirmed or not. And I recall that he told me it was not too long ago he had once more a company physical examination; that, at that examination, everything was found all right, and that the examining physician did not hear the murmur I described to him.”
“Q. Now I understand, Dr. Becker, that following your second call to see Mr. Vye in 1968 (in the Intensive Care Unit) you did determine that he had actually done as you suggested, and called the condition to the attention of another doctor.
A. Yes.
Q. And you found that the other doctor had not confirmed to Mr. Vye, the findings that you had announced to him; did you not?
A. That is what he indicated to me.
Q. I see. And to the best of your knowledge, Mr. Vye had had no further difficulty with a heart condition, valvular condition, or any other condition since he [first] saw you, until November, 1968?”
The accompanying opinion sets forth that Mr. Vye, in the course of his physical examination by Dr. Becker, was told that he had a significant heart murmur considered secondary to a defective aortic valve. After the post-mortem examination, Dr. Becker admitted that he was mistaken with regard to his diagnosis in which he assumed that Mr. Vye had a significant heart murmur secondary to a defective aortic valve, since the heart valves were found to be healthy and not defective. Dr. Becker also told Mr. Vye he had no symptoms of any heart trouble but that, on his next physical examination, he should inform the physician making such examination of the condition that Dr. Becker diagnosed. Mr. Vye was further informed by Dr. Becker that X-rays should be taken and he acceded to this request. Thereafter, he was informed that the X-rays were compatible with Dr. Becker’s diagnosis. The X-rays were also compatible with a healthy heart with no defects, such as an enlargement, which Dr. Becker acknowledged did not signify any heart trouble but might be due to hard, vigor*998ous work to which Mr. Vye was accustomed.
Nearly two years after Dr. Becker’s examination, Mr. Vye signed an application for the insurance policy in suit. During the examination certain questions were asked Mr. Vye by Dr. J. Ken-ner Bell, who examined him for the appellant insurance company. During the trial Dr. Bell was asked by the insurance company whether he found any evidence of past or present disease of:
“B. Heart, blood vessels, with any abnormality of size, position, rhythm, or sounds.”
Dr. Bell answered “No.”
Mr. Vye had been approved by the medical examiner of two insurance companies for life insurance. No one had ever told him that he had a heart involvement that would affect him. To have a doctor whom he consulted merely for hemorrhoids give out in such a way, seemingly, was enough to make him skeptical of such a diagnosis. And the fact that the diagnosis turned out to be false was an eventual justification of his skepticism. It is to be noted that when Dr. Becker realized Mr. Vye’s disbelief in him, he made his diagnosis and recommendation so mild and phrased it in such language that a layman would consider there was really nothing to be disconcerted about and nothing of any serious nature in these recommendations.
These recommendations of Dr. Becker were:
“[T]he electrocardiogram was considered within normal limits by me * * *. The patient was not symptomatic. That means he had no symptoms referrable to this particular finding. He, in other words, offered no symptoms to indicate that he 'had, in fact, heart disease.
“The disclosure I made to him was simply that of some murmur existing carrying medical significance. * * *
“I simply told him this is in accord with the short conversation we had about his heart in my office, that I still considered the finding significant enough to have somebody follow up in the future on this particular finding; which means, for instance, no more than have it examined once a year to see whether this valvular defect I presumed was present gained significance in terms of producing symptoms, progressed to a point where it would need specific assistance to the heart to allow work under an extra load because of an existing defect.
* * -X- * * -X-
“Q. Was there anything at all, Doctor, in this history that you took, that indicated Mr. Vye had suffered any symptoms or exhibited any symptoms of a heart disorder or disease ?
A. No. * * * He was asymptomatic, he didn’t have symptoms. * * -x- [i] told him that, in my opinion, he had a significant heart murmur which I considered secondary to a defective aortic valve and possibly related to the scarlet fever history he gave me, from childhood; that the heart disease at the present time was not causing him any trouble; he was not symptomatic; that it needed no specific treatment; that it needed, as many other things in a medical examination, follow-up examination, to keep this heart in surveillance to see whether this presumed aortic insufficiency got worse. If symptoms appeared at that time, he needed treatment. Certainly this is something which I think you should have checked again by me or anyone, just have it checked again.” (Emphasis supplied.)
Dr. Becker later testified:
„Q And you didn>t tell theil) anything about, ‘Well, have this within a year or within six months or within two years’?”
*999He This was not denied by Dr. Becker, answered:
“If I told him all these details, it would have taken me two hours. I had a twenty-minute office call.”
Dr. Becker was asked:
“Q. I want you to know, Dr. Becker, what you did say to him, if you can tell us * * *
A. I don’t recall my wording.
Q. Of course not.”
A check-up within two years was actually carried out by Mr. Vye. He was examined by Dr. Becker on November 2, 1966; he was then examined by Dr. MacQueen on October 27, 1967, and by Dr. Ball, the Examiner for the insurance company, on November 20,1967. The diagnosis of Dr. Becker was completely wrong. The diseased or defective valves upon which he based his diagnosis did not exist. On the autopsy they were found to be healthy and not diseased.
At the post-mortem examination, Dr. Becker admitted that the valves disclosed no diseased condition. What caused Mr. Vye’s death was an aneurism. Dr. Becker quoted the pathologist, who described the aneurism, as stating in the autopsy report:
“ ‘The admitting history of chest pain referred to both the sternum and the interscapular areas’ — which means to the back — ‘was indicative of the involvement of the aorta by a tearing process which gave rise to the clinical appearance of diaphoresis.’ This means sweating. ‘The underlying lesion’- — do you want me to proceed?
Q. Yes.
A. ‘The underlying lesion within the aorta has no recognizable etiological basis but in this instant was seen to be associated with foci of fibrinoid necrosis and acute inflammatory cell infiltration in the intima and around an intima blood vessel. The developing hemorrhage and dissection around the aorta eventually resulted in rupture through the wall and the development of the cardiac tam-ponade which was the proximal cause of death.’
-X- -X- -X -X- -X- -X-
Q. Now, I would like to ask you a couple questions about this statement that there is, ‘no recognizable etiological basis,’ referring to the lesion within the aorta, I believe. What does that mean?
******
A. ‘Etiology’ means a known cause for a given condition. ‘Etiology’ refers to a cause of an abnormality.
Q. Because of what?
A. Of any given abnormality or disease process. * * * The etiology of the changes described, which we already referred to yesterday of changes in the aortic wall, the cause for this is not known to the medical profession. It is open to speculation. We have our thoughts but we have no proof. This is why he says there is no etiologic basis known.
* * * * * *
Q. Let me read to you the very first sentence that you are talking about. ‘The underlying lesion within the aorta has no recognizable etiological basis but in this instant was seen to be associated with foci or fibrinoid necrosis and acute inflammatory cell infiltration in the intima and around an intimal blood vessel.’ Is that correct ?
A. Yes. He is there referring to the inner coating of the aorta, which is called ‘intima’.
Q. Yes. And when I ask you about that, Doctor, that is an area which is outside of the heart entirely, is it not?
A. Yes.
Q. So that, of course, is not a part of any heart valve or anything of that sort?
A. Not what he is talking about here.
*1000Q. * * * And, then, you would gather from — or, to you, what is stated here, would mean that this aneurysm condition and rupture developed from the fact of the fi-brinoid necrosis and acute inflammatory cell infiltration in the in-tima?
A. The underlying background for the dissection is related more to the changes in the media, that is the medial coat of the aorta. Medial necrosis, as the pathologist describes that in his diagnosis. The intima, the changes in the intima which you now described as inflammatory, are not that important as the changes in the media.
Q. * * * It refers, in that sentence, to, ‘an acute inflammatory cell infiltration.’
And what is the meaning of an acute one as opposed to, say, chronic ?
A. Acute is something what takes place within hours, let’s say, after some given injurious event. An acute response to some process going on means a response within hours or maybe days.
Chronic, in other words, on the other side, is a response which goes on over a long period of time.”
After his call on Dr. Becker, Mr. Vye did not restrict his activities in any way, continuing to shovel snow and the like. During his entire life with Mrs. Vye, he was never confined to a hospital. Mr. Vye had worked up from small business positions in small towns in Ohio and Wisconsin, and finally became Executive Vice President of Woodall Industries, Inc., in Michigan. The sole beneficiary of the life insurance policy here in question, as heretofore said, was Woodall Industries, Inc.
With regard to his physical condition and physical work habits, Milton F. Mal-lender, of 6015 East Surrey Lane, Birmingham, Michigan, an attorney with offices in the Ford Building in Detroit, testified that Mr. Vye was his next-door neighbor for two years before his death. Mr. Vye had bought the house new, and it had been rough graded. Mr. Mallender told of Mr. Vye’s work around the house in Birmingham, much of which is similar to that already recounted. During the first summer and fall, Mr. Vye spent his time preparing his yard for landscaping, which included wheeling dirt and cutting down trees, and digging holes for the planting of bushes and so forth. He would work every weekend at that particular work. Mr. Vye personally did the various tasks of cutting down trees and the like. One tree that was on the line between Mr. Mallender’s property and that of Mr. Vye interfered with his access to his garage, and he asked Mr. Mallender if he had any objection if he took it down. Mr. Mallender had no objection and one Saturday, Mr. Vye and his son, who was in high school, removed the tree. Mr. Vye also trimmed his trees, borrowing Mr. Mallender’s ladder to get up into the trees. Mr. Mal-lender also testified that Mr. Vye shoveled out his own driveway. Mr. Mallen-der had a man come with a tractor to take the snow off his driveway; but Mr. Vye shoveled his own. He had a power mower that he rode for mowing the lawn; but he would rake the leaves. He planted bushes that Mr. Mallender gave him, removing them from Mr. Mallen-der’s lot, and took them over and planted the shrubbery in his lot. He later cut down another tree, sawed it up, and split the wood. He borrowed a sledge and a wedge from Mr. Mallender to split the wood. When Mr. Mallender returned from a trip east, he found that Mr. Vye had died that day.
What does the layman understand if he is told he has a systolic or diastolic murmur? The Chief Medical Director, Dr. C. Paul Nay, of appellant insurance company, sat attentively through the whole trial, and could not even remember whether Dr. Becker testified that *1001Mr. Vye had a systolic or diastolic murmur; (and Dr. Becker’s testimony leaves it uncertain whether he ever told Mr. Vye that he had a diastolic murmur.) And Dr. Nay further gave as his view that it would be unusual for a layman to know the difference between a systolic and diastolic murmur. It is claimed that Mr. Vye’s answers to the application for insurance (although hereafter proved truthful) were material misrepresentations and that a misrepresentation is material, when because of it a policy would not be issued. But it is not the absolute power of the insurer to decide whether it would accept the risk. The test of materiality is whether knowledge of the true facts would have influenced a prudent insurer in determining whether to accept the risk or in fixing the amount of premiums. And consequently the insured in this case is not bound by the statement that the insurer would have accepted the risk, and, if not, avoided or forfeited the policy. It is the truth that determines the right of the insurer so to act. (45 C.J.S. Insurance § 595, p. 406) Yet, in any event, under the facts in this case, no right of forfeiture could be sustained.
We have shown that Mr. Vye was not guilty of misrepresentation in stating that no one had told him he had disorder of the heart or blood vessels. But even if it be conceived that the word, “disorder,” were ambiguous, it is elementary insurance law that ambiguous policy provisions must be construed against the insurance company and most favorably to the insured. Zurich Insurance Co. v. Rombough, 384 Mich. 228, 232, 180 N. W.2d 775.
Moreover, in Franklin Life Insurance Co. v. William J. Champion, 350 F.2d 115, 129 (C.A. 6), this Court said:
“The insured is not specially equipped to determine what facts are material to the acceptance of a risk. He may be expected to answer in good faith the questions that are put to him, but not to bring an understanding of medicine beyond that of the medical profession to the problem of materiality.”
Among other things, Mr. Vye was told by Dr. Becker about the murmur:
“I simply told him this is in accord with the short conversation we had about his heart in my office, that I still considered the finding significant enough to have somebody follow up in the future on this particular finding; which means, for instance, no more than have it examined once a year to see whether this valvular defect I presumed was present gained significance in terms of producing symptoms, progressed to a point where it would need specific assistance to the heart to allow work under an extra load because of an existing defect. * * Mr. Vye had no symptoms. * * * I told him that it was not causing any trouble, he needed no * * treatment.” (Emphasis supplied.)
After Dr. Becker took the X-ray of Mr. Vye in his office, he delivered the message over the phone to Mr. Vye, telling him that the X-ray “emphasized the need for follow-up examinations. That everything else was normal; that the fact that he had no symptoms indicated that he needed no other care, but to simply have the heart examined in the future, whether care would become necessary. He offered no symptoms that he had heart disease. The disclosure I made to him was simply that of some murmur existing carrying medical significance.”
“Q. And the purpose of the future examination was to decide whether or not care was necessary in the future date, is that it ?
A. Yes.
Q. And did you tell him there was no further or not treatment necessary at the time * * * ?
A. Yes. * * *
Q. And didn’t you tell him, then, anything about, ‘Well, have this within a year or six months or within two years”!
*1002A. If I told him all those details, it would have taken me two hours. I had a twenty-minute office call.”
The truth of Mr. Vye’s answer to the question in the insurance application that at no time had he had any known indication of, or been told that he had, any disorder of the heart or blood vessels was, at most, for the jury to determine. No one testified that Mr. Vye ever had any “disorder” of the heart or of the blood vessels. What Dr. Becker told him was not that he had any such disorder of the heart; and whatever he said about the valves (which was unfounded) could be taken as speculation, or as some minor condition not worthy of mention, according to the statements made by Dr. Becker set forth in the prior paragraph.
As far as ailments went, Mr. Vye never knew he had an ailment.
No one ever told Mr. Vye that he had any disorder of the heart. No one ever told him he had any disorder of the blood vessels. The burden of proof was upon the plaintiff to prove the material misstatements alleged in the complaint.
It is the accepted law that the provisions of a life insurance policy will be construed strictly against the insurer and in favor of the insured and the provisions for a forfeiture will be strictly construed against an insurer and in favor of the insured.
Mr. Vye answered the question in the application that he had not been told he had any “disorder” of the heart or blood vessels. Applicant contends this answer was false. I disagree. Whether he truthfully responded to the questions in the application is determined by whether he truthfully responded to the questions as he understood them.
“Disorder” in a medical sense is defined in Webster’s New International Dictionary as follows: “Disturbance in the functions of the animal economy, or of the soul. Synonyms — Irregularity, disarrangement, tumult, bustle, commotion, disturbance: disease, illness, indisposition, sickness, ailment, malady, distemper.” Admittedly, Mr. Vye was never told he had any of these “disorders,” and, in answering “No,” to the question, he truthfully responded to the questions as he understood them and even as the dictionary defines them; and, therefore, was guilty of no false representation.
It is to be remembered that Dr. Becker told him he had no symptoms indicating he had heart disease, and that the “disclosure I made to him was simply of some murmur existing carrying medical significance.” Dr. Becker told him it was causing no trouble, and needed no specific treatment, but just to keep it checked within a year or two. Further, it is to be emphasized that his answer that he had no disorder of the heart or blood vessels was true, as a “disorder” means a malady, sickness or the like, according to common parlance and according also to Webster’s New International Dictionary. This case does not depend upon Franklin (supra). All answers of Mr. Vye were true. The burden of proof was upon the plaintiff to prove the material misstatements alleged in the complaint.
The truth of a representation refers to a truth synonymous with sincerity and lack of fraud, rather than to the literal meaning of truth, which is relating things exactly as they are. Franklin Life Insurance Company v. William J. Champion & Company, 350 F.2d 115 (C. A. 6).
With regard to the printed form of application in which it was set forth:
“If any part of any question is answered ‘Yes,’ give particulars. For medical histories, include: Nature of Ailment; Date; Duration, Attending physicians.”
The above obviously called for information about any ailment suffered by Mr. Vye. Mr. Vye never suffered any ailment, except scarlet fever forty years previously. “He never suffered any ailment,” even according to Dr. Becker.
In Mutual Benefit Life Ins. v. Abbott, 9 Mich.App. 547, 550, 556, 157 N.W.2d *1003806, 807, the applicant for insurance was asked in the printed application:
“Have you during the last five years received the services of a physician or an institution for electrocardiographic or x-ray studies, treatment, observation, diagnosis or a routine examination?”
His answer was “Yes.” The printed application then went on:
“If the answer is ‘yes’ to any of the above questions, give reason, date, duration, and names of all hospitals and attending physicians.”
The answer of the applicant was:
“April, 1957, Hemorrhoidectomy. Robert Kolesar, M.D. 10 days in hospital, Saginaw General.”
The Insurance Company contended that the insured omitted to state “that he had sustained emotional problems, had frequent headaches and nausea and had received treatment from two doctors to relieve him of these difficulties.” The Court said:
“The record does not show what kind of treatments were given, and it is possible that only some form of medicine was prescribed or psychiatric treatment given. It is also possible that the emotional condition was temporary and not serious in nature. There is no record of any hospitalization because of the complaints mentioned. As these questions and answers ought to be construed liberally in favor of the insured, we cannot say that defendant’s omission to disclose the facts about his emotional problems and his headaches and nausea constitutes a material misstatement of fact in answer to the questions referred to. Certainly there is nothing in the record to indicate that Mr. Abbott believed that the conditions mentioned were symptoms of any serious ailments. That defendant attempted to answer the questions honestly and to the best of his ability is borne out by the fact that in answer to the specific question regarding treatments by a physician, he truthfully answered that he had been hospitalized, named the doctor who treated him and gave the reason for his hospitalization.”
Dr. Becker testified that “the autopsy, while showing normal aortic valves, showed a condition which we consider as one of the causes for an aortic murmur of the type I heard. * * * The cystic necrosis of the aortic wall is one process * * * which weakens the aortic wall. This can lead to progressive slow dilatation, widening of the aortic wall. While the valves are normal in structure, when the aortic widens, it pulls the valves apart. It gives one the same sound phenomenon as the defective valve, and there is no way for us by listening to a patient, who is otherwise healthy, has no symptoms, to know about this particular condition unless we come to the unfortunate postmortem examination which sheds considerable light on— and did for me — on the existing cause for an aortic valvular murmur.”
What is inexplicable and unbelievable is Dr. Becker’s diagnosis that Mr. Vye was, first, suffering from a diastolic murmur resulting from a diseased heart valve; and, when it was proved in the postmortem examination that Mr. Vye’s heart valves were not diseased, but healthy, Dr. Becker attributed his first diagnosis to a very rare condition arising out of the involvement of the aorta by a tearing process or lesion which causes the aortic wall to widen and pulls the valves apart, and gives exactly the same sound phenomenon as a defective valve, although this results in an aneurism and is the result of an acute inflammatory cell infiltration — and such an infiltration takes place “within hours, or maybe days.” And Dr. Becker examined him two years before his death during only a twenty-minute office call, primarily for a remedy for rectal bleeding, while Mr. Vye who, admittedly, never had any symptom of a heart disorder, had previously been examined by two examiners representing different insurance companies, who found his heart in perfect condition and passed him for life insurance; and subsequently his compa*1004ny physician gave him an hour’s examination and found no diastolic murmur— but in good health, as did also the medical examiner for appellant insurance company, who, likewise finding no diastolic murmur, passed him for the insurance which appellant insurance company issued to the company in which appellant was Executive Vice President.
Dr. Becker then, when confronted with the results of the postmortem examination of Mr. Vye, did admit that he had no valvular disease or defect of the heart valves. How, then, when Mr. Vye called upon him for a simple remedy for rectal bleeding, did he justify his diagnosis of a diastolic heart murmur resulting from a defective heart valve, medically significant, which should be reported to the company physician at his next examination, for confirmation of Dr. Becker's opinion.
Conceding that the postmortem examination showed the valves to be healthy, Dr. Becker explained his diagnosis of a diastolic murmur to be due, not to a defective heart valve, but to a very rare condition which produced a murmur similar to a diastolic murmur and which was indicative of the involvement of the aorta by a tearing process which gave rise to the clinical appearance of diapho-resis. Dr. Becker further explained that an underlying lesion of the aorta was associated with foci of fibrinoid necrosis and, as the postmortem examination showed, with acute inflammatory cell infiltration in the intima and around an intimal blood vessel; and that the aneurism of the heart, from which Mr. Vye died, was associated with the underlying lesion within the aorta; and that it was the developing hemorrhage and dissection around the aorta which eventually resulted in rupture through the wall, and the development of the cardiac tamponade (aneurism of the heart).
Now, the significant word in the foregoing is “acute.” The postmortem examination with which Dr. Becker agreed, was that the underlying lesion of the heart was seen to be associated with foci of fibrinoid necrosis and “acute inflammatory cell infiltration in the intima and around an intimal blood vessel” which resulted in the developing hemorrhage and dissection around the aorta which resulted in the rupture and the aneurism causing death.
Dr. Becker was asked what was meant in the postmortem report by “an acute inflammatory cell infiltration,” as opposed to a chronic infiltration, and, as mentioned hereinbefore, he replied:
“Acute is something that takes place within hours — let’s say, after some injurious event. An acute response to some process going on means a response within hours, or maybe days. “Chronic, in other words, on the other side, is a response which goes on over a long period of time.”
Since Dr. Becker’s explanation of hearing a diastolic murmur depends upon the rare condition which causes the aorta to widen and pull the valves apart, it is pertinent to note that although he had taken X-rays of the heart in 1966 and saw the X-rays taken in the hospital in 1968, they showed the heart relatively normal and compatible with a healthy heart. Dr. Becker, therefore, would have seen that the aorta had not widened. Without the widening of the aorta, the valves would not have been pulled apart, and no murmur simulating a diastolic murmur could have been heard. If the aorta had widened, Dr. Becker would have seen it in the X-ray film when he first claimed to have heard a diastolic murmur, caused by the valves pulling away. But in the X-ray film of a healthy heart, there would have been no widening of the aorta and no murmur caused by the valves pulling away from a widened aorta.
“Roentgenographic evidence of widening of the thoracic aorta is a common observation and is a helpful sign pointing to the diagnosis of dissecting an aneurism of the aorta.”
Acquired Diseases of the Heart and Great Vessels (P. 1100) by Jesse E. Edwards, M.D., Consultant, Section of *1005Pathologic Anatomy, Mayo Clinic, and Professor of Pathology, Mayo Foundation, Graduate School, University of Minnesota, W. B. Saunders Company (1961).
Speaking of Diagnosis of Dissecting Hematoma, it is stated:
“Once considered, the diagnosis is often clear from the clinical picture alone. A widened or distorted aortic contour may be seen on a chest photograph.” “The Heart,” p. 1156, by J. Willis Hurst, Professor and Chairman, Department of Medicine, Emory University School of Medicine, and Chief of Medicine, Grady Memorial Hospital, Atlanta, Georgia, and R. Bruce Logue, Professor of Medicine (Cardiology), Emory University School of Medicine, and Chief of Medicine, Emory University Hospital, Atlanta, Georgia. McGraw Hill Book Company, 1970.
The conclusion is that Dr. Becker did not hear a diastolic murmur (when Mr. Vye called upon him for a hemorrhoid remedy) resulting from diseased valves, which were afterward found to be entirely healthy; and he did not hear a diastolic murmur as a result of a widening of the aortic wall, which pulled the valves apart — -as there appeared no widening of the aorta at the time Dr. Becker took the first X-rays, or when the X-rays were taken at the hospital just before Mr. Vye’s death.
Moreover, as heretofore emphasized, Mr. Vye’s answer that he was never told he was suffering from a disorder of the heart or blood vessels was true, both in common parlance and according to the definition of “disorder” in all accepted dictionary definitions and meanings of the term.
In addition to the above, we have then, Mr. Vye, who, Dr. Becker admits, had no symptoms of heart trouble or heart disease. Dr. Becker also testified that: “The disclosure I made to him was simply of some murmur existing carrying medical significance;” that it was not causing him any trouble; that he needed no specific treatment, and that the murmur should be checked by his company physician within six months or a year or two to see whether it “got worse.” As to whether Dr. Becker told Mr. Vye he had a diastolic murmur, he was not sure. Dr. C. Paul Nay, the Chief Medical Director of the appellant insurance company, who, as mentioned, sat through the entire trial, could not remember Dr. Becker’s mention of a “diastolic” murmur, and gave as his opinion that it would be unusual for a layman to know the difference between a systolic and a diastolic murmur. The X-rays taken by Dr. Becker were normal as was the electrocardiogram. Mr. Vye never had any symptoms of heart trouble until he was rushed to the Intensive Care Unit the day before he died. On cross-examination Dr. Becker was asked whether he had stated in a deposition that he had told Mr. Vye he had “very likely an aortic valvular disease.” But, as Dr. Becker testified, he saw Mr. Vye only during a twenty-minute office call, and, when asked what he said to Mr. Vye, replied: “I don’t recall my wording.”
With regard to the one claim on which the appellant insurance company relies ■ — that Mr. Vye falsely stated no one had ever told him he was suffering from a disorder of the heart or blood vessels, every dictionary meaning of “disorder” shows he was telling the truth. As to whether Mr. Vye was suffering from a “disorder” of the heart or blood vessels, there was no ambiguity according to every dictionary meaning of the term “disorder,” as applied in medicine. But even if there were an ambiguity, it is the accepted law that all ambiguities in insurance policies must be resolved most strongly against the insurer. And it is equally the law that an appellate court will not search the record for grounds of reversal — and that, in construing the policy of insurance, every doubt is to be resolved against the insurer and in favor of the insured.
The policy holder, rather than the insured, is entitled to the benefit of infer-*1006enees and intendments which reasonably may be drawn from dubious and uncertain language of the insurance contract. It is the insurance company which uses uncertain terms at its peril. But here, the term, “disorder,” in a medical sense is not uncertain.
It is the general rule that 'the appellate court, when considering whether the findings have evidentiary support, will consider only the evidence most favorable to the successful party, including all reasonable inferences which may be drawn therefrom which will be construed most strongly in favor of the judgment.
Here then, in conclusion, we have a man, Mr. Vye, at the age of 52, who, since childhood never had any illnesses except trivial and minor colds and the like; who had never been confined to a hospital; who did not even have a family physician; who, during his lifetime, in spite of the fulfillment of his important duties as Executive Vice President of an important corporation, engaged during the weekends in the most strenuous kind of activity — shoveling snow from the walks and driveway of his home while his neighbors employed men with tractors to do such work; cutting down, sawing, and splitting trees for firewood; removing dirt in wheelbarrows; digging holes for the planting of bushes, climbing ladders to get up into the trees to trim the branches, and many similar vigorous, physical tasks. During his entire lifetime he never had a pain in his chest, or symptoms of a heart condition. According to Dr. Becker, the neighborhood physician and the principal witness for the insurance company, who had examined him for .a minor case of rectal bleeding from hemorrhoids, and afterward examined his heart, Mr. Vye had no symptoms of any heart disease; his electrocardiogram was within normal limits; and X-rays then taken of Mr. Vye showed that they were compatible with a healthy heart with no defects. It was not until a year and a half later, the day before his death, that he had chest pains and was taken to the Intensive Care Unit where, at first, he seemed to have recovered, but died the next day when he was removed from Intensive Care.
Mr. Vye is claimed by the insurance company to have been guilty of misrepresentation and fraud in the application for insurance, in which he had no interest whatever, direct or indirect, nor did any members of his family. To me, it is impossible to believe that a man like Mr. Vye, who held an important corporate office, and had always been an honest, upright man, would have deliberately defrauded an insurance company in the amount of $75,000, in a matter in which he would not profit and in which neither he nor his family had any interest. The claim that Mr. Vye was guilty of misrepresentation and fraud upon the insurance company is incredible.
The only interest that any party had in the insurance policy was that of the corporation in which Mr. Vye was associated as Executive Vice President. From what has heretofore been said, there is no proof that Mr. Vye was guilty of any misrepresentation and fraud, for the only claim of such fraud is that, in his application, he stated that no one had ever told him that he suffered from disorders of the heart or blood vessels. It is a fact that he had never suffered from such disorders, and no one had ever told him that he had such disorders.
■It is, therefore, my view that any question raised by appellant insurance company was for the jury to determine, under the instructions as given by the trial court, and that the verdict- in favor of appellee should be sustained.
We cannot hold from the evidence before us that Dr. Becker told Mr. Vye he had disorders of the heart or blood vessels, in view of the fact that he told him he had no symptoms of heart disease; that his heart needed no treatment; that it was causing him no trouble, but that because of a murmur, he should check up with a physician every year or every two years. Nothing in the above *1007constituted medical advice to Mr. Vye that he had disorders of the heart or blood vessels. A “disorder” of the heart is defined in Webster, as previously mentioned, in its physical sense, as a disease, illness, indisposition, sickness, ailment, malady or distemper. Under such a definition, and in common parlance, Mr. Vye had no disorders of the heart or blood vessels; and he had never been told that he had.
The District Court, in the motion for judgment notwithstanding verdict, said of Dr. Becker’s examinations:
“[This] examination which consisted of various examinations, involving the rectum, an electrocardiogram, blood pressure, other aspects, and an attempt to convey to the applicant the seriousness of the heart murmur, took place within fifteen or twenty minutes. It seems to me that the jury could well infer, when they come to this question of weight, that there was no particular attempt on the part of the doctor to impress upon the applicant that he had a serious heart murmur and, on the contrary, other words seem to contradict it. Because the doctor also testified, T told him that he should perhaps have it confirmed if he wanted to go to another specialist for that purpose, but that it was something that should be watched. That if he had annual physicals at the company he works for, that would be sufficient.’
“I don’t think that that falls, necessarily, into the category of whether he should or should not have believed that he had a heart murmur and therefore in response to the question, ‘Have you been advised that you had a heart disorder?’ that was an untruthful one. I think in view of the examination that he subsequently had with the company doctor, the company doctor said, ‘You have a heart murmur but it is insignificant.’ Then, I think that he could well have truthfully and honestly and sincerely felt that this was an insignificant, minor type of thing that he was not required to report to the insurance company.
“I think that his subsequent conduct and the type of work that he did both physically and with regard to this business which we had testimony about, indicated that he considered it minor, and, therefore, the jury could find it unreportable or not necessary to be reported ailment.”
To me, it seems erroneous that, on the evidence before it, this Court should hold, as a matter of. law, that Mr. Vye was guilty of such a misrepresentation or swindle, and that, on these grounds, the judgment should be reversed. There is a presumption that a man does not make a fraudulent misstatement. Penn Mut. Life Ins. Co. v. Mechanics’ Savings Bank and Trust Co., 72 F. 413, 442 (CCA 6), and this rule applies with special force to Mr. Vye, in the circumstances of this case. I am of the view that the verdict in favor of the appellee and the judgment entered thereon should be affirmed.