Prudential Ins. Co. of America v. Same , 134 F.2d 16 ( 1943 )

STEPHENS, Associate Justice

(dissenting).

Case No. 7824 should, in my opinion, be reversed for failure of the trial court to direct a verdict for the appellant: In view of the insured’s Beth Israel Hospital experience and his medical history as disclosed in the Hospital records, I think the insured’s negative answers to questions 6d, 7a, 9a and 10a and his affirmative answer to question 10b of the insurance application constituted misstatements which all reasonable jurymen must have found materially affected the acceptance of the risk; and I think that the alleged waiver of the appellant’s right to avoid the policy because of misstatements in the application was as a matter of law ineffective for the reason that undisputedly the material facts concerning the insured’s Beth Israel Hospital experience and medical history as shown in the Hospital records were not fully disclosed to the appellant at the time of the alleged waiver. Waiver is an intentional relinquishment of a right and therefore requires knowledge of the existence of the right or of the facts upon which the same depends.

In case No. 7825 I think the instructions of the court to the jury on the subject of burden of proof in respect of undue influence were insufficient.