The opinion
CRAVEN, Circuit Judge
(dissenting).
I dissent for the reasons stated by the district judge in his well-reasoned Memorandum of Decision 1 dated February 1, 1968. At that time — when the case was of fresh impression — the district judge denied the insurance company’s alternative motions for judgment n. o. v. or for a new trial. It is too bad he had a second thought 11 months later. I think that he was right the first time, and that the questions presented were for the jury. Certainty in the adminis *447 tration of justice is not the valued goal it was once thought to be, for it is inereasingy recognized that the search for certainty sometimes produces only certitude. I think the case could have been properly decided either way and should have been left to ,the jury.
. That memorandum states, in pertinent part:
[T]he defendant urges that the answers by Colonel Sivertsen to questions 4(a), (b), (e) and (d) on the application for insurance were false in that they failed to disclose prior medical history and that it is the duty of the Court in such circumstances to rule that these misstatements were material and that the policy was therefore avoided on these grounds. In answer to interrogatories numbers 42, 43, 44, 45, 95, 96, and 97, The Guardian Life Insurance Company indicated that the only fact misrepresented, which they considered at all material to them was the matter of the hypertensive cardiovascular disease. The plaintiff counters this with competent medical testimony that a review of 25 years of physical examinations and medical records of the deceased did not disclose that Sivertsen ever had hypertensive cardiovascular disease and that he did not have it at the time the application was made. Further, says the plaintiff, this is borne out by the fact that the autopsy performed after Sivertsen’s death in June, 1966 did not indicate any hypertrophy of the left ventrical or any other indication of hypertensive cardiovascular disease.
The Court is of the opinion that the conflicting medical testimony on the only fact considered material by the life insurance company (the presence of hypertensive cardiovascular disease) took the question beyond the province of the Court, which is the usual judge of materiality, and it was properly left to the jury, under the instructions specifically given on the point, to determine whether Sivertsen actually had hypertensive cardiovascular disease at all, or to such a degree as to he material.