Opinion
No. 9798.
July 12, 1934.
Appeal from the District Court of the United States for the Western District of Missouri; Merrill E. Otis, Judge.
On motion for rehearing.
Judgment in 70 F.2d 976, which reversed and remanded case, affirmed.
E.H. McVey, of Kansas City, Mo. (C.A. Randolph, Roeder Wild, and McVey, Randolph, Smithson Garrity, all of Kansas City, Mo., on the brief), for appellant.
Henry I. Eager, of Kansas City, Mo. (William C. Michaels, of Kansas City, Mo., Le Roy A. Lincoln, of New York City, and Meservey, Michaels, Blackmar, Newkirk Eager, of Kansas City, Mo., on the brief), for appellee.
Before STONE and SANBORN, Circuit Judges, and WYMAN, District Judge.
On May 22, 1934, this court, upon the petition of the appellant, granted a rehearing for the purpose of further considering two questions:
(1) Can the effect of section 5741, Rev. St. Mo. 1929 (Mo. St. Ann. § 5741, p. 4388), as interpreted by the Supreme Court of Missouri in the case of Gooch v. Metropolitan Life Insurance Co., 61 S.W.2d 704, be considered by this court upon this appeal, in view of the pleadings and proceedings in the court below?
(2) If that section can be considered by this court upon this appeal, is it, as apparently now construed by the Supreme Court of Missouri, void or, for any reason, inapplicable to the policy here involved?
These questions have now been briefed and reargued, and we have further considered them.
Our conclusion is that the broad issue of the right of the appellant to recover upon the policy of insurance in question was before the court below and is before this court; that section 5741, Rev. St. Mo. 1929, was a part of the policy; and that the appellant is entitled to the construction of that statute adopted by the Supreme Court of Missouri in the case above referred to, regardless of the fact that that construction was first placed upon this statute after this case was tried.
Our opinion, heretofore filed, will stand as the opinion in this case.
The judgment is reversed, and the case remanded for further proceedings not inconsistent with the opinion of this court.