Appeal from the District Court of the United States for the Eastern District of Pennsylvania; William H. Kirkpatrick, Judge.
Before BUFFINGTON and THOMPSON, Circuit Judges, and MARIS, District Judge.
BUFFINGTON, Circuit Judge.
In this case it appears that Alice Deeney, the beneficiary in a policy issued on the life of her deceased husband, brought suit thereon against the AEtna Life Insurance Company. The facts were not in dispute, but the case was submitted to the jury on the theory that diverse inferences could be drawn therefrom.The jury found in favor of AEtna and, on entry of judgment, plaintiff took this appeal. In denying a motion for a new trial, the trial judge correctly stated the facts and his view of the controlling law as follows:
"The policy lapsed on January 16, 1931. It contained a provision that within five years after lapse it might be reinstated 'upon evidence of insurability satisfactory to the company and by payment of arrears of premiums with interest,' etc.
"Sometime early in August, 1931, Mrs. Deeney, the insured's wife who was also the beneficiary who is the plaintiff here, went to the office of the company's general agent in Reading and obtained a blank form of application for reinstatement. Her husband filled in the answers to the questions and signed it. A number of the answers related to his health and in signing he certified, among other things, that he had had no illness nor accident since the original issuance of the policy, was in sound health and had not consulted a physician since that time. The application when offered in evidence also included a recommendation addressed to the company by the agent that the policy be reinstate and a statement that the agent had no information relating to the insured's health, etc., which might affect the decision of th company, though it does not appear just when this was added.
"On August 15, 1931, Mrs. Deeney at the instance and request of her husband sent the application to the general agent's office accompanied by her own check for the arrears of premiums with interest and a note as follows:
"'Please forward receipt to Mrs. C. L. Deeney, 743 E. Broad Street, Tamaqua, Pa. Care of Mr. E. W. Yetten.
"Thereafter, so far as appears from the evidence, neither the wife, the husband nor the company itself (as distinguished from its general agent in Reading) did or said anything in connection with the reinstatement of the policy.
"The agent received the check, endorsed it 'Aetna Life Insurance Company -- Agency Account' and deposited it in a trust account kept by the agency. The money never ...