Opinion
No. 6141.
Argued October 6, 1950.
Decided October 10, 1950.
John A. Chambliss, Chattanooga, Tenn. (George L. Taylor, Big Stone Gap, Va., and William G. Brown, Chattanooga, Tenn., on brief), for appellant.
Fred B. Greear, Norton, Va. (Greear, Bowen, Mullins Winston, Norton, Va., on brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
This is an appeal from a judgment for plaintiff on a life insurance policy. The defense was based on alleged false statements in the application respecting consultation with physicians; and the only question presented by the appeal is whether verdict should have been directed for defendant on that ground. There was a question as to whether certain consultations involved matters of sufficient importance to be deemed material within the applicable rule. See Modern Woodmen of America v. Lawson, 110 Va. 81, 65 S.E. 509, 135 Am.St.Rep. 927; New York Life Ins. Co. v. Franklin, 118 Va. 418, 87 S.E. 584; Combs v. Equitable Life Ins. Co., 4 Cir., 120 F.2d 432, 436-437. There was evidence that one consultation was with respect to a heart ailment; but, in view of other testimony in the case, there was a question as to whether this consultation actually occurred, with the burden upon defendant to establish it. All of these matters were properly left to the jury under a charge to which no exception has been taken.
Affirmed.