ORDER DENYING PETITION FOR REHEARING
Before PHILLIPS, Chief Judge,* and McAllister and O’SULLIVAN, Senior Circuit Judges.
Upon consideration, it is ordered that the petition for rehearing be and hereby is denied.
Senior Circuit Judge McALLISTER dissents, for the reasons stated in his dissenting opinion filed April 6, 1973, and the dissenting opinion filed herewith. He remains of the view that the judgment of the District Court should be affirmed.
Entered by order of the court.
*1008McALLISTER, Senior Circuit Judge(dissenting to order denying rehearing).
This whole case depends upon one simple issue.
When appellee’s decedent, John H. Vye, in his application for life insurance on November 20, 1967, was asked whether he had ever been told that he had a disorder of the heart or blood vessels, he answered “No.” Appellee contends that this was an honest answer.
Appellant contends it was a false answer. If Mr. Vye’s answer was an honest one, the judgment of the District Court must be affirmed.
Mr. Vye, at the time of his death in 1968, had never been ill for a day, except for a case of scarlet fever when he was 12 years old. He had never been confined to a hospital and, at no time, did he ever have a family doctor.
Although Mr. Vye had, through the years, become Executive Vice President of a corporation, he was a most vigorous man, using all his spare time engaging in physical work around his home, such as cutting trees, planting bushes, splitting logs, mowing the lawn, removing leaves from the roof and gutters, as well as removing snow from the roof of his home, shoveling snow from the walks and driveways, while his neighbors hired men with tractors to do this particular work; trimming trees by getting up into them by ladders, as well as removing screens and storm-windows each season — all of which requires unusual physical effort, such that in our day most men of his age, in similar employment, hire others to do.
Mr. Vye had been insured in 1946 for $5,000; and, in 1964, for an additional $45,000. In November 1967, he was insured for an additional $75,000. All of these policies were payable to his employer. Neither Mr. Vye nor any member of his family had any interest, direct or indirect, in them. In no case had any examining insurance physician raised any question about his health.
- In the last insurance policy of $75,000 on the life of Mr. Vye, payable to his employer, Woodall Industries, and issued by appellant, Massachusetts Mutual Life Insurance Company, Mr. Vye, on November 8, 1967, first consulted a reputable physician, Dr. M. D. MacQueen, for a physical examination lasting from one hour to an hour and a half. Prior to such examination, Mr. Vye signed a form, addressed to Dr. MacQueen, stating that he relied upon the record of the physical examination by Dr. MacQueen “as the most dependable source of detailed information I can supply (to Massachusetts Mutual Life Insurance Company) in an effort to establish my insurability.”
Dr. MacQueen was a physician of 49 years’ experience. He had never known or met Mr. Vye before. His examination of Mr. Vye included, among other matters, Mr. Vye’s blood pressure, pulse, general physical condition, chest X-ray, cholesteric test, blood count, electrocardiogram and stethoscopic examination. His findings were normal for a man of Mr. Vye’s age. He also noted that Mr. Vye had a slight systolic murmur at the apex of the heart, which Dr. MacQueen reported was “of no significance.” Dr. MacQueen also reported that there was nothing about the condition of Mr. Vye’s heart which indicated that there had been any prior heart difficulty or abnormality. After filing the report, Dr. Mac-Queen testified that he had never done any further professional work for Mr. Vye, or had any personal contact with him.
The physical examination of Mr. Vye by Dr. MacQueen had been arranged by Woodall Industries. Dr. MacQueen described the examination as fairly extensive and reported that while he had detected a systolic murmur of the heart, there was no evidence of a diastolic murmur. A diastolic murmur, the doctor said, was considered more serious, as it puts more work on the heart and the stricture of the heart becomes more severe. A diastolic murmur, Dr. Mac-Queen testified, is no harder to detect than a systolic murmur, which is of no importance. The report of Dr. Mac-Queen was sent to appellant, Massa*1009chusetts Mutual Life Insurance Company, as requested by Mr. Vye and by the appellant insurance company. Dr. Mac-Queen was not the examining physician of appellant insurance company. Dr. John Kenner Bell was the examining physician for the insurance company. However, Dr. MacQueen and Dr. Bell had been partners for 42 years. Nevertheless, the records of Dr. MacQueen are not seen by Dr. Bell, and would not be seen by Dr. Bell without Mr. Vye’s written authorization.
Dr. Bell examined Mr. Vye on November 20, 1967, for the life insurance policy of $75,000 requested by Woodall Industries. In this case we are concerned with the examination by Dr. Bell of Mr. Vye’s heart. He found no abnormalities whatever on his examination of Mr. Vye’s heart. Although Dr. Mac-Queen had detected a systolic murmur — ■ this is the kind of murmur that comes and disappears from time to time — and is of no importance, Dr. Bell found no murmur of any kind in Mr. Vye’s heart; and it was on Dr. Bell’s report that the insurance policy was issued.
Contention of Insurance Company
The entire claim of the insurance company rests on statements made by Dr. Paul M. Becker. He was a doctor in the neighborhood; and Mr. Vye, who had never seen him before, called on him for advice and treatment of rectal bleeding. It was a routine call. Dr. Becker testified it was “an ordinary office conversation. It was the first time I ever saw this gentleman.” Dr. Becker prescribed sitz baths at home, suppositories, and a local ointment, all designed to act against inflammation and avoid recurrence of bleeding. This treatment was successful as Mr. Vye never returned for further treatment.
However, Dr. Becker listened to Mr. Vye’s heart. He stated that he heard a diastolic murmur and advised him to watch it in the future. The heart was otherwise normal. However, Mr. Vye immediately pointed out to him that he knew nothing about any heart problem; and had never been told to watch his heart in the future. He stated that he had insurance-company physical examinations before, and “no heart disease was established at those examinations.” Dr. Becker, however, told Mr. Vye “that it would be smart” to have an electrocardiogram and a chest X-ray. Mr. Vye consented; and the electrocardiogram and X-ray were within normal limits. However, Dr. Becker stated that he formed the opinion that Mr. Vye had an aortic valve defect, because of the murmur — “a defect of the aortic valve in this patient’s heart.”
Dr. Becker was then asked what treatment he prescribed. He answered: “He 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.” Dr. Becker told Mr. Vye 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 be necessary.” Dr. Becker further told him that there was “no further treatment necessary at the time.” Dr. Becker further told Mr. Vye that “it was not causing any trouble, he needed no * * * treatment.”
Dr. Becker prescribed no medicine or treatment for Mr. Vye. His only medical advice was that he considered the finding of an aortic valve defect significant enough “to have somebody follow up in the future on this particular finding; which means no more than to 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.) Nothing was said about what specific assistance the heart would need, or whether Mr. Vye was going to carry “an extra load.”
*1010With regard to the examinations that Dr. Becker suggested Mr. Vye have made in the future, 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 had told him all those details, it would have taken me two hours. I had a twenty-minute office call.” (Emphasis supplied.) The medical examination Mr. Vye afterward had on his insurance application lasted one and a half hours, and showed him to be in perfect condition and completely acceptable as an insurance risk. Dr. Becker had suggested such an examination once a year and, again, to have his heart checked whenever he had his examinations by the company physician. Dr. Becker testified that the purpose of a future examination was to decide whether or not care was necessary at a future date. Such a date might be 25 years in the future.
Summing up, then, after Dr. Becker had finished his examination of the rectal bleeding, he listened to Mr. Vye’s heart. He went on to reassure Mr. Vye that:
1. He had no symptoms of heart disease.
2. His heart was causing him no trouble.
3. He needed no treatment.
4. The chest X-ray was satisfactory.
5. The electrocardiogram was satisfactory.
6. He had some murmur existing carrying medical significance.
His only advice was to have the heart checked by some physician every year or two to see if it needed specific assistance to carry an “extra load,” — no extra load being contemplated. There was at no time any evidence that Dr. Becker told Mr. Vye that he had a serious or dangerous condition.
After the physical examination by Dr. Becker, it is of interest to note that
Milton F. Mallender, of 6015 West 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. Mallender also testified that Mr. Vye shoveled out his own driveway. Mr. Mallender 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. Mallender’s lot, and took them over and planted the - shrubbery in his lot. He later cut down another tree, s.awed it up and, with a sledge and wedge borrowed from Mr. Mallender, split the wood. When Mr. Mallender returned from a trip east, he was informed of Mr. Vye’s death.
The above is recited only to show Mr. Vye’s abounding health and the admitted absence of any heart disease or illness up to the day of his death.
It should be noted that the insurance company asked numerous direct ques*1011tions of Mr. Vye, which bore on the heart. The company asked:
“4. During the last ten years have you had
A. Advice from or attendance or treatment by physicians, other practitioners or psychologists?
Answer: Yes
B. Treatment or observation in a clinic, hospital or sanitorium?
Answer: Yes
During the past ten years have you had any known indication of:
A. Pain, pressure, or discomfort in the chest?
Answer: No
B. Shortness of breath, palpitation or irregular heart action?
Answer: No
Cause of death of Father?
Answer: Heart.”
All of these answers were admittedly true.
The claim of the insurance company is that Mr. Vye lied in his written application for insurance in stating, in answer to a question:
“Q. At any time have you had any known indication of or have you been told that you had (a) Any disorder of the heart or blood vessels?”
The company claims Mr. Vye’s answer, “No,” was a lie and a fraud committed on the insurance company to secure the policy.
So the issue boils down to the question of whether Dr. Becker told Mr. Vye he had a disorder of the heart or blood vessels.
The other questions asked by the insurance company covered every kind of heart disease. It is conceded all were answered truthfully by Mr. Vye. The only claimed lie is that Mr. Vye had not been told by anyone that he had a disorder of the heart or blood vessels.
Dr. Becker was the only one of five physicians who examined Mr. Vye and detected what he said he “assumed” was valvular disease, causing the murmur which he and no one else heard or detected.
Valvular disease causes diastolic murmurs in the heart and it was this assumed valvular disease that Dr. Becker relied upon in his diagnosis of diastolic murmur. But a postmortem examination showed that Mr. Vye’s heart valves were healthy and without any defect.
When Dr. Becker was challenged on this during cross-examination, he admitted he was wrong in his diagnosis of valvular disease, and was wrong in diagnosing a diastolic murmur as a result of the assumed valvular disease. It is to be noted that Dr. Becker never claimed that Mr. Vye had heart disease. When cross-examined with regard to whether he used the word “diastolic” to Mr. Vye, Dr. Becker’s answer was that “I am quite certain that I did.” .
When Dr. Becker was asked what he actually told Mr. Vye about having future examinations from time to time, his answer was: “I don’t recall my wording.”
Dr. Nay, the Chief Medical Director of appellant insurance company, who sat through the entire trial, stated that he could not remember that Dr. Becker had mentioned “diastolic murmur” in his testimony. But this is, in any event, unimportant, because Dr. Nay, from his experience, stated it would be unusual for a layman to know the difference between a “systolic” murmur and a “diastolic” murmur.
To get down to the basic question, Mr. Vye is charged with lying and fraud in representing to the insurance company that no one ever told him that he had any disorder of the heart or blood vessels.
What is a disorder of the heart ? What are diseases of the heart, or ailments of the heart, or heart attacks, or serious conditions of the heart, or indispositions of the heart? Strangely enough, “disorder” is a word of rare use. Dictionary meanings are not controlling as to the use of words. Yet, one of the few definitions of “disorder” is found and defined *1012in Webster’s New International Dictionary as “a disease, illness, indisposition, sickness, ailment, malady or distemper.” No one contends that Mr. Vye was suffering from a disease, illness, or distemper. Dr. Becker emphasized he had no disease and needed no medical assistance. In Black’s Law Dictionary, Revised 4th Edition, the only definition of “Disorder” is given in a quotation: “Usually a slight, partial, and temporary physical ailment. Pacific Mutual Life Insurance Co. v. McCombs, 188 Ark. 52, 64 S.W.2d 333.”
What was Mr. Vye to understand from the question whether he ever had a disorder of the heart? “Whether insured truthfully answered questions in the application is determined by whether he truthfully responded to the questions as he understood them.” 45 C.J.S. Insurance § 595, p. 395. Service Life Ins. Co. of Omaha, Neb. v. McCullough, 234 Iowa 817, 13 N.W.2d 440. “The law is that it is not necessary to disclose trivial complaints in his application for insurance. The hemorrhoids were trivial, and cured by an ordinary remedy.” Lipsky v. Washington National Insurance Co., 7 Mich.App. 632, 152 N.W.2d 702.
“The law is settled that in a representation, contained in an application for insurance, that the insured is in good health, or that he has not been subject to illness, or that he has not been attended by a physician or consulted one professionally, the answer is to be construed as meaning, in the one case, that he has not suffered an illness of a serious nature, tending to undermine the constitution, and that a state of health is freedom from disease or ailment that affects the general soundness or healthiness of the system seriously. And as to representations as to treatment by physicians, the omission to state a treatment by a physician for some temporary indisposition does not avoid the policy.” Blumen-thal v. Berkshire Life-Ins. Co., 134 Mich. 216, 96 N.W. 17.
“Insured, in applying for life policy, was not obliged under Michigan law to disclose any ailments or medical treatments which involved only slight or temporary indispositions or routine check-ups.” Miller v. Pacific Mutl. Life Ins. Co., 17 F.R.D. 121, affirmed 228 F.2d 889.
“An anaemic murmur, indicating no structural defect of the heart, but arising simply from a temporary debility or weakened condition of the body, is not within the meaning of the term ‘bodily or mental infirmity,’ in an application for accident insurance, in which the applicant states his freedom from such infirmities.” Manufacturers’ Accident Indemnity Co. v. Dorgan, 58 F. 945, 6 C.C.A. 581, 22 L. R.A. 620.
“If the insured in good faith answers questions which are ambiguous, doubtful, or obscure, the representations will be construed in his favor, and against the insurer. Likewise, if the inquiry is so framed that it does not clearly inform the insured of its meaning, and he may have been honestly mistaken as to what was intended, and his answer, by fair and reasonable construction, may be considered a true one in response to the question as he understood it, such interpretation will be given, and a forfeiture precluded. 7 Couch, Insurance 2d Ed. § 35: 145 at 164.” MFA Mutual Insurance Company v. Lusby, 295 F.Supp. 660 (1969).
We are impressed with the statement of the District Court in the motion for judgment notwithstanding verdict, in which he said of Dr. Becker’s examination:
“[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 15 or 20 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 im,press upon the applicant that he had a serious heart murmur and, *1013on 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 has annual physicals at the company, that would be sufficient.’
-X- -x- * -X- -x- *
“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 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.” (Emphasis supplied.)
“Most trials are a battle of probabilities,” a great lawyer once declared. In this case, the probabilities seem unquestionable that Mr. Vye believed that this was a minor kind of thing, a slight or temporary situation, and the law does not require the applicant to disclose trivial minor complaints.
Mr. Vye had no interest whatever in the insurance policy, nor did any of his family.
Since childhood, Mr. Vye had never been ill until the day of his death. He had never suffered any pain, pressure or discomfort in the chest. He never had suffered from shortness of breath, palpitation or irregular heart action. His life, up to the time of his death, had been one of vigorous physical work, at all times when he was not officially acting for his corporation. Would any reasonable man with a dangerous heart disease have engaged in such arduous physical labor? All the probabilities in this case demonstrate that he was convinced he was not subject to heart disease ; that he had no interest in lying to secure life insurance for his company after his death; that he had no reason to believe he had anything but a trivial minor complaint; no one had ever told him that he had any disorder of the heart or blood vessels and, since it is not necessary to disclose minor or trivial complaints in an application for life insurance, the policy is in full force and effect.
When Dr. Becker testified that he “read the x-ray, radiologist’s opinion of mild cardiomegaly consistent with aortic valvular disease — consistent, in other words, with my opinion” — the case, as diagnosed by him and the radiologist, fell apart for this reason: The postmortem examination disclosed there was no aortic valvular disease, and that the heart valves were perfectly healthy — and this was admitted by Dr. Becker after the postmortem. Moreover, the mild cardio-megaly, or slight enlargement of the heart, had no bearing on the case since, after the postmortem, it could not have had any relationship with the valvular disease — the diagnosis which Dr. Becker clung to until the portmortem showed the valves to be healthy.
Dr. Becker never mentioned a “disorder of the heart or blood vessels” to Mr. Vye. When Dr. Becker assured Mr. Vye that he had no heart disease; that he had no symptoms of heart disease; that he . needed no care; that no treatment was necessary, and that it was not causing him any trouble; that every few years he should check with the company medical examiner and that would be sufficient as far as care went — what was Mr. Vye to understand as to whether he had a disorder of the heart or blood vessels, which had never been mentioned to him? He answered “No” to such question on the application for insurance. Whether he truthfully answered the question in the application is to be determined by whether he truthfully responded to the question as he understood it.
The policy-holder rather than the insured is entitled to the benefit of inferences and intendments which may reasonably be drawn from dubious and uncertain language; and, in construing a policy of insurance, every doubt is to be resolved against the insurer and in favor of the insured.
*1014In my opinion, the evidence discloses that Mx\ Vye truthfully answered the question in the insurance application that he had never been told he had a disorder of the heart or of the blood vessels.
In the transcript of testimony, hundreds of questions about the heart were asked in ordinary and technical language by many witnesses, but one looks in vain for any question as to whether Mr. Vye had ever been told that he had a disorder of the heart or of the blood vessels.
All of the foregoing questions were, in my view, jury questions, and were submitted to the jury under proper instructions.
On the petition for rehearing, the judgment heretofore entered should be set aside, and a judgment entered in favor of appellee.
The majority opinion in this case was written by Circuit Judge W. Wallace Kent, who died May 28, 1973. Judge Phillips was substituted for Judge Kent on the panel for disposition of the petition for rehearing.