NEW YORK LIFE INS. Co. v. CUMINS.

Circuit Court of Appeals, Third Circuit.
January 11, 1928.

Rehearing Denied March 14, 1928.
No. 3664.

1. Pleading 2-Amendment to Practice Act
held inapplicable to pending action (Practice
Act Pa. 1925, amending Practice Act 1915).
Practice Act Pa. March 30, 1925 (P. L. 84),
amending Practice Act 1915, held inapplicable to
action in which case was fully at issue under
old law before amendatory act took effect, since
there was no provision in amendatory act that
pleadings in pending actions should be recast.
2. Courts 366(1)-Federal court held bound
by state court's construction of state prac-
tice statutes.

Federal courts held bound by ruling of Supreme Court of Pennsylvania in its construc

tion of Pennsylvania Practice Acts.

3. Insurance 668 (7)—Whether insured consulted doctor contrary to representations, or between date of medical examination and delivery of policy, held for jury.

In action on life insurance policy, evidence as to whether insured had consulted physician, contrary to his representations, or between date of medical examination and delivery of policy, held sufficient to take the case to jury. 4. Insurance 255-Insured's misrepresentation, to invalidate life policy, must be of such importance that, but for such misrepresentation, company would not have written policy.

In order to strike down life insurance policy for misrepresentation by insured, it must be of such substantial importance that insurance company, but for such misrepresentation, would

not have written contract of insurance.

5. Insurance 668 (6)-Materiality of insur. ed's misrepresentation in securing life policy is for jury in doubtful case.

When it is doubtful whether misrepresentation of insured in obtaining life policy was material, question of materiality must be submitted to jury.

In Error to the District Court of the United States for the Western District of 24 F. (2d)-1

PER CURIAM. This case, a suit to recover upon a policy of life insurance, was begun in a state court and from thence removed by the insurance company to the court below. In that court on September 24, 1924, the defendant filed an affidavit of defense, which pleading, by the Pennsylvania Practice Act of 1915 (P. L. 483; Pa. St. 1920, §§ 17181-17204), made the issue in the case. On September 16, 1926, the insurance company petitioned the court for leave to file an amended affidavit of defense, which by virtue of the amended Practice Act of Pennsylvania of March 30, 1925 (P. L. 84), would have materially changed the isThe petition was refused, and on trial the court tried the case and ruled that said latter act of 1925 had no effect on the pleadings. The insurance company at the trial prayed for a directed verdict in its favor, which was refused, and the case resulted in a judgment for the plaintiff. The denial of the petition for leave to file the amended affidavit of defense, or to rule as though it had been filed, and the refusal of the motion for a directed verdict form the two questions here involved. [1-5] The opinion of the court below on mo

sue.

tion for a new trial, printed in the margin,1 summarizes the facts of the case and the reasons given by the court in justification of its rulings. As this opinion covers both questions here involved, and as its reasoning and conclusion commend it to us, it is apparent that an additional opinion by this court

1 SCHOONMAKER, District Judge. This is an action at law by plaintiff, widow of William Cumins, to recover the proceeds of a life in surance policy upon his life, payable to plaintiff as beneficiary. There was a jury trial, which resulted in a verdict for the plaintiff for the amount of the policy. The defendant has filed a motion for a new trial, urging in support thereof: (1) That the court erred in not admitting in evidence the averments of the defendant's affidavit of defense, not denied by a reply from the plaintiff; and (2) that the court erred in not giving the jury binding instructions to find for the defendant.

The first point involves a determination of the applicability of the Pennsylvania Practice Act of March 30, 1925, amending the Practice Act of 1915. Section 2 of the amendatory act provides: "Every allegation of fact in the plaintiff's statement of claim, or in the defendant's set-off or counterclaim, or new matter, if not denied specifically or by necessary implication in the affidavit of defense, or plaintiff's reply, as the case may be, or if no affidavit of defense or plaintiff's reply be filed, shall be taken to be admitted.

This action was brought and was at issue un

der pleadings filed under the Pennsylvania Practice Acts as they then stood prior to the effective date of the act of 1925. In that situa

tion the act of 1925 had no application whatever to the instant case. The defendant then sought to bring the pleadings in this case within the purview of the amendatory act by undertaking on September 16, 1926, to refile its affidavit of defense in the guise of an amended affidavit of defense with a notice indorsed thereon to the plaintiff, requiring her to reply to the new matter set out in the affidavit of defense. Leave to file this paper was refused by the court, thus leaving the pleadings in the case as they stood prior to the passage of the amendatory act of

1925.

The case must then proceed to trial on the

pleadings as they stood prior to the amendment. There was then no sanction for taking as admitted new matter set out in the affidavit of defense, to which the plaintiff had not replied. The case was fully at issue under the old law. There was no provision in the amendatory act that the pleadings in pending actions must be recast to comply with the provisions of the new statute. The act of 1925 had no applicability to the pending suit. We therefore hold that we committed no error in refusing to admit in evidence the allegations of new matter contained in the defendant's affidavit of defense.

We have carefully considered the cases of Kille v. Reading Iron Works, 134 Pa. 225, 19 A. 547, and Lane v. White, 140 Pa. 99, 21 A. 437, cited by defendant as supporting its position.

would simply be an effort to restate in different language what has been tersely, yet fully and adequately, stated by the trial judge.

We therefore limit ourselves to adopting his conclusions and affirming the judgment entered pursuant thereto.

We are in full accord with the views expressed by the Supreme Court of Pennsylvania in those cases, and consider ourselves bound by the rulings of that court in its construction of Pennsylvania Practice Acts; but it will be noted in those cases that the Supreme Court merely applied the provisions of the amendatory acts to future procedure to be taken in cases begun before the acts passed. This we would have done in the instant case, had there been no pleadings filed prior to the effective date of the amendatory act. However, the pleadings in this action were complete. The issue had been made. There was no need to hold up the action and refile the pleadings under the new law.

The defendant contended that under the undisputed testimony it appeared (1) that Cumins had procured the policy by fraud, in that he had made material misrepresentations as to his health in his application for insurance, when he stated that he had not consulted a physician within five years, except for usual colds, he (defendant) having offered testimony from two physicians as to consultations with Cumins within that period; and (2) that the policy by its own terms never became effective, because, between the date of his medical examination and had consulted a physician. True, the defendthe date of the delivery of the policy, Cumins ant offered testimony as to the consultation with physicians within the periods mentioned; but it was not undisputed, for the plaintiff offered the testimony of several witnesses, who testified as this period, which, if believed by the jury, would to the healthful appearance of Cumins during tend to rebut defendant's testimony as to consultation with physicians as to a material ailment. In fact, it should be noted that there was no evidence offered by the defendant as to the ailments, if any, about which Cumins conmight properly infer and find, in view of the sulted the physicians named, so that the jury testimony as to the healthful appearance of Cumins, that the consultations either did or did

not take place or were not for a material ailment.

In order to strike down a policy for misrepresentation by the insured, it must be of such substantial importance that the insurance company, but for this misrepresentation, would not have written the contract of insurance. Miller v. Maryland Casualty Co., 193 F. 343 (C. C. A. 3d Cir.); New York Life Insurance Co. v. Moats (C. C. A.) 207 F. 481. When it is doubtful whether the misrepresentation was material or not, the question of materiality must be submitted to the jury. Miller v. Maryland Casualty Co., supra.

Under these authorities, it would have been error to have directed verdict in this case for the defendant. Defendant's motion for a new trial will be denied.

CUDAHY PACKING CO. v. CITY OF

OMAHA et al.

Circuit Court of Appeals, Eighth Circuit. January 10, 1928.

Rehearing Denied March 14, 1928.

No. 7478.

1. Exceptions, bill of 38-Where evidence in former trial was considered at new trial, proceedings at former cannot be denied consideration on appeal because bill of exceptions was not filed within term.

Where verdict was directed for plaintiff, but defendants' motion for new trial was granted, and second trial had, at which all evidence in former case was considered, proceedings at first trial cannot be denied consideration on appeal, on ground that bill of exceptions was not filed within term, nor within any. extension thereof, since there was no final judgment until in second trial.

4. Exceptions, bill of 40 (1)-Where order intended to extend time for filing bills of exception merely extended time for filing transcript, bill of exceptions held properly filed within extended time.

Where court undertook to extend time for filing bills of exception, but order only extended time for filing transcript on appeal, bill of exceptions held properly allowed and filed within period of extension, since plaintiff in error had right to rely on action of court, and should not be prejudiced, in absence of fault on its part.

6. New trial 156-Hearing on motions for new trial may be continued from time to time, or term to term, during which judgment is held in abeyance.

By appropriate order, hearing on motions for new trial may be continued from time to time, and even from term to term, and by them judgment is held in abeyance.

7. New trial 152-Court may permit amendments to motion for new trial at any time before motion is disposed of.

Court retains jurisdiction to permit amendments to motion for new trial at any time before motion is disposed of.

8. Appeal and error 977(1)-Order granting new trial, being discretionary with trial court, cannot be reviewed in federal courts.

Order granting or refusing new trial, which court has jurisdiction to make, is discretionary with trial court, and cannot be reviewed on appeal or writ of error in federal courts.

9. Courts 353, 356 (2, 9)-Power and practice of federal courts as to bills of exception, motions for new trial, and methods of review are not conformed to state courts.

not conformed to those of state courts in matPower and practice of federal courts are ters relating to bills of exception, motions for new trial, and methods of review of their judgments.

10. Waters and water courses

203(15)

Plaintiff, suing city for refund of money paid for water in excess of rate under contract with city's predecessor, must establish full and complete contract.

Plaintiff, suing city for money paid for water in excess of rate under contract with company, from which city purchased water plant, held required to establish full and complete contract entitling it to relief sought, where answer put in issue existence of valid contract.

II. Trial 177-Moving by both parties for directed verdict waives jury trial and submits all questions to judge.

Where both sides moved for directed verdict at close of all evidence, effect is to waive jury trial and submit all questions of fact, as well as of law, to judge.

12. Courts~406 (1%)—Judge's finding, after both parties moved for directed verdict, cannot be reviewed, if supported by any evidence.

Where both sides moved for directed verdict at close of all evidence, Circuit Court of Appeals cannot review judge's finding, unless there was no evidence on which it can be sustained.

13. Waters and water courses203(15)Evidence held to support finding that plaintiff, suing city to recover money paid for water exceeding contract rate with city's predecessor, entered into supplemental agreement with predecessor, releasing it from further obligation, if city raised rates.

In action by packing company against city furnishing water for refund of amount paid for water in excess of rate under contract with city's predecessor, evidence held sufficient to justify finding that supplemental agreement was made between plaintiff and city's predecessor, where