dissenting:
On the basis of the decedent’s application and the medical examination given the decedent by the medical representative of the appellant, the decedent was offered a so-called “rated” policy at a premium substantially double the appellant’s charge for an unrated policy. When the policy was delivered to the decedent, he was told by the appellant’s representative who delivered it that he was being offered a rated policy at an increased premium because of his “poor health.” He accepted the rated policy and paid the first year premium.
*9On this appeal, the appellant has renewed its Motion for a Judgment N.O.V. or a New Trial. In passing upon the propriety of entering a Judgment N.O.V., the reviewing Court must view the evidence, together with all reasonable inferences therefrom in the light most favorable to the verdict-winner. Lynch v. Metropolitan Life Insurance Company, 427 Pa. 418, 423, 235 A.2d 406, 409 (1967).
The insurance policy issued to the decedent states that the decedent’s statements in the application were representations and not warranties. It therefore becomes incumbent upon the appellant to establish: (1) that the statements of the decedent in his application were false, (2) that their subject matter was material to the risk, and (3) that the decedent must have known them to be false and made them with the intent to deceive. Lynch, 427 Pa. at 424, 235 A.2d 406.
It is evident that the decedent’s answers to the medical questions were material to the risk and were contrary to the facts of his medical background. The evidence is also undisputed that he knew he had diabetes, as evidenced by his diabetic bracelet. However, members of his family testified that he had not been told that he had a heart condition. I believe it was for the jury to determine whether he had knowingly misrepresented his heart condition.
The central issue before us is whether credible evidence was offered from which the jury could conclude that the appellant had not been deceived by the medical application, but had acted upon other information which disclosed to it the true situation when it issued the policy. The appellee contends that the fact that the appellant issued a rated policy at a substantially higher premium than normal was evidence that it knew the decedent’s condition and preferred to assume the risk at a higher premium rather than decline the application. There was evidence that the decedent always wore his diabetic bracelet and his daughter testified that he was wearing it when he took his medical examination for the policy. There was no evidence as to whether the examining doctor took note of the bracelet and reported it to *10the appellant or the diabetes which it indicated, but it is a permissible inference that he did so in view of the fact that the appellant would only issue the policy on a rated basis. It is also a reasonable inference that the medical examiner discovered the diabetic condition of the decedent in the physical examination. This finds some confirmation in the testimony that the agent who delivered the policy to the decedent explained the reason for the rating and the higher premium as the decedent’s “poor health.”
The appellee contends that unless the appellant had knowledge of the decedent’s condition, it would have had no basis for issuing a rated policy because the decedent revealed no medical history which would call for a rating. The appellant explains its rating of the policy as due to the decedent’s obesity, its medical examination having revealed the decedent to be a man 5' 10" in height and weighing 238 lbs.
Whether the appellant relied upon the misinformation in the insurance application or whether it had learned of the decedent’s condition and decided to assume the risk at an upgraded premium was a disputed issue of fact for the jury. In view of our obligation to view the evidence and all reasonable inferences from it in the light most favorable to the verdict winner, I must conclude that there is no basis for reversing the Judgment and entering Judgment N.O.V. in favor of appellants.
The appellant bases its claim for a new trial on the grounds (1) that the appellee did not offer the insurance policy in evidence during her case in chief, and (2) that the trial court limited the appellant’s cross-examination of the appellee during her case in chief to the issues raised in her direct examination. There is no merit in either argument.
The policy was not produced during appellee’s case in chief because it had previously been turned over to the appellant who offered it in evidence during its defense. The appellant had the insurance policy in its possession throughout the appellee’s case and suffered no harm from the fact that it, rather than the appellee, introduced the policy in evidence.
*11While it is generally true that a party may be cross-examined as to any matter relevant and material to the case, it is equally true that a defendant should not be permitted to put in its defense under cover of cross-examination of the plaintiff. Agate v. Dunlevy, 398 Pa. 26, 30, 156 A.2d 530, 532 (1959). This is what was being attempted by the cross-examination. The appellee remained available to testify as on cross-examination in the appellant’s case, but was not called.
Therefore, I respectfully dissent and would affirm the judgment.