February 28, 1934
PRUDENTIAL INS. CO. OF AMERICA
On Petition for Rehearing.
Appellant in her petition for rehearing again urges error in the action of the District Court in discharging the jury without permitting it to determine the issues of fact. There was no error in this. The action was in a court of equity where it is a matter of discretion as to whether a jury will be used at all. Idaho & Oregon Land Improvement Co. v. Bradbury, 132 U.S. 509, 10 S. Ct. 177, 33 L. Ed. 433. Even if the court does submit the issues to the jury, the verdict is not binding upon the court, and may be followed or disregarded in the discretion of the court. Kohn v. McNulta, 147 U.S. 238, 13 S. Ct. 298, 37 L. Ed. 150. Hence it must follow that even if a jury is permitted to hear the evidence it is not mandatory upon the court to submit the case to that jury if after hearing the evidence it chooses not to do so.
Counsel further charges that the court erred in stating that appellant's motion for judgment was made before the jury was discharged. That statement, however, does not appear in the opinion. Appellant is right, however, in stating that her motion was made otherwise, but that fact cannot form the basis of error with respect to discharging the jury in an equitable proceeding.
Appellant further insists that appellee's tender was ineffective because the original tender was not kept good by paying the money into court. This might be true with respect to an action at law, but it has no application to an equitable tender.
Appellant also contends that this court failed to consider one of the errors assigned by her, namely, that appellee waived any right it might have had to set aside the reinstatement of the policy by accepting a premium after it became known to appellee's agent that the insured was not in good health. It is obvious that if the incontestable clause is to mean anything at all it must mean that the insurer has an absolute right any time during the limited period to take action to set the policy aside for fraud in its procurement or in its reinstatement. This right would not mean much if the insurer could be bound by the action of its local agents in ratifying a reinstatement before the facts came to the knowledge of the company itself. This is especially true in view of the contract provisions that no condition, provision or privilege of the policy could be waived except by written endorsement of certain named officials, and that no agent had power to waive any forfeiture.
The petition for rehearing is overruled.
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