#### Josef Groffinger, Appellee, v. The Metropolitan Life Insurance Company, Appellant.

(Not to be reported in full.)

Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1913.

Affirmed.

Opinion filed October 9, 1913.

Rehearing denied October 28, 1913.

Statement of the Case.

Action by Josef Groffinger against the Metropolitan Life Insurance Company, a corporation, to recover as beneficiary on a policy of life insurance issued by defendant to Erzsebet Groffinger. From a judgment in favor of plaintiff for six hundred and twenty dollars, defendant appeals.

William P. Launtz, for appellant.

N. C. Lyrla, for appellee.

*619Abstract of the Decision.

1. Insurance, g 663*—sufficiency of evidence to defeat policy for false statements in application. In order to defeat recovery on a policy for false representations made in the application, the evidence must show that the representations were material, and known to be false by the insured and were made to deceive the company, and such questions are to be determined by the jury.

2. Insurance, § 336*—when false answers inserted in application will not avoid policy. False answers concerning physical condition of applicant written in application by the agent when applicant indicates to the agent that she suffered with pains over the heart, held not to avoid policy.

3. Insurance, § 366*—when company cannot claim policy to be void ab initio. Insurance company cannot claim that false answers in the application rendered the policy void ab initio where it has failed to return or has not offered to return the premiums paid.

Mr. Justice Thompson

delivered the opinion of the court.