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Pence v. United States.

July 2, 1941

PENCE
v.
UNITED STATES.



Appeal from the District Court of the United States for the Eastern District of Wisconsin; F. Ryan Duffy, Judge.

Author: Sparks

Before SPARKS and KERNER, Circuit Judges, and LINDLEY, District Judge.

SPARKS, Circuit Judge.

The Government appeals from a judgment in favor of the beneficiary of a policy of war risk insurance, contending that reinstatement of the policy after lapse for nonpayment of premiums was obtained by fraud, hence denying liability on it. The case was tried to a jury which rendered a general verdict in favor of appellee.

Appellee has filed her motion to dismiss the appeal on the grounds that no statement of points was filed with the clerk of the District Court for inclusion with the record, pursuant to Rule 9 of the court, that it raises no substantial question for consideration by this court, is frivolous and was taken only for purposes of delay. She also asks that a penalty be imposed upon appellant for having taken the appeal for purposes of delay.

With respect to the absence of the statement of points from the original record, although it was included later by leave of this court, we have recently held that failure of an appellant to comply with Rule 75(d), 28 U.S.C.A. following section 723c, pertaining to the inclusion of a statement of points is not jurisdictional and does not necessitate dismissal of the appeal. See Adams et al. v. New York, Chicago & St. Louis R. Co., 7 cir., 121 F.2d 808, decided by this court May 20, and June 24, 1941. Inasmuch as we are of the opinion that the appeal presents a serious question, we cannot agree with appellee that it should be dismissed for frivolity. Under all the facts here presented we think the motion to dismiss should be, and it is denied.

The principal questions presented by the appeal are whether the court erred in failing to grant appellant's motion for a directed verdict or for judgment notwithstanding the verdict because the evidence established that the policy sued upon was reinstated by fraud; and whether the court erred in denying appellant's motion for a mistrial on the ground of prejudice arising out of a newspaper report by which some of the jurors learned of certain proceedings had out of their presence.

The insured, Dr. Pence, an eye, ear, nose and throat specialist, entered the military service as a medical officer in August, 1918. He returned to private practice after his honorable discharge in January, 1919. In December, 1924, he applied for and passed a civil service examination for appointment to the medical service, and in March, 1925, he returned to Government service, being employed thereafter in various Government hospitals.

While in the military service, Pence obtained a policy of war risk insurance in the amount of $10,000 which he permitted to lapse for non-payment of premiums in February, 1920. In June, 1927, he applied for reinstatement of the policy, answering the following questions as indicated:

5. "Are you now in as good health as you were at the due date of the premium default? Yes."

7. "Have you been ill, or contracted any disease, or suffered any injury, or been prevented by reason of ill health from attending your usual occupation, or consulted a physician in regard to your health, since lapse of this insurance? No."

In connection with his medical examination he answered the following question in the negative as to each and every part:

11. "Have you ever been treated for any disease of brain or nerves No, throat or lungs No, heart or blood vessels No, stomach, liver, intestines No, kidney or bladder No, genito urinary organs No, skin No, glands No, ear or eye No, bones No."

The medical examiner recommended acceptance of the risk as a first-class one, and the policy was, accordingly, reinstated as of July 1, 1927. The insured died on September 21, 1934. He had been at home for two days, September 17 and 18, with a cold, but had not been attended by a physician. He worked all day before his death, and was found dead in bed the morning following. His death certificate, signed by the physician in charge of the hospital where he was employed, but who had not attended him, gave as the cause, "coronary thrombosis, ...


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