*1 378. сharge in was to. There no üficat6¡referred alleged the against alien complaint as filed the of the certificate iden that had obtained he al means, but court tity fraudulent the by testimony to government introduce the lowed establishing cláimed the purрose for the of objected as not testimony to
fact'.' was This as made. The ease issues being within the Rock, Ark. Ehrman, Lasker of Littlе applicable is sub S. the and the law to facts (Grover Ark., on Owens, Rock, Chow, of Little Chang that T. as of stantially the same apрellant. the brief), of for Chang Mung v. United alias Sau States by this -- 375, decided F.(2d) 63 America, Rock, (Wal- Rector, of Little Ark. H.W. held, It is there February 6, on 1933. сourt Dorado, Ark., L. Gau- Goodwin, ter of El Plummer Hip v. Case following Chin the Lui ghan, Gaughan, & of Cam- Sifford, Godwin charge the A.) 763, that where F. C. 238 (C. El Do- den, Rector, Ark., and Pattex’son & of does Exclusion Act Chinese made under the rado, brief), appellee. Ark., oxxthe for misrep allegations. or of fraud not include KENYON, SANBORN, and Before of procuring resentation a certificate in the Judges. GARDNER, Circuit misrep or of such identity, fraud of evidence against the admitted resentation cannot be Judge. GARDNER, Circuit person. Chinese by appellee as brought action This is an (cid:127) is Chang Case decision'in The the Chow on insur plaintiff, to recover life .certain controlling here. upon аppellant ance the policies by issued the judgment- The is reversed. parties life of Hawkins Wharton. The John designated in they will be referred to as were the lower court. pleaded The effect:. That (1) answer in misrepx’esenta- the made insured material had question tions in embodied answering in 9^-C application insurance; his for ixx- (2) that the misrepresentations made material surеd had v. WHARTON. CO. INS. ÆTNA LIFE question ap- in 10 embodied in his answering No. 9498. insurance; plication and that insur- (3) for on good ed was not in health on date the Eighth Aрpeals, Circuit. Court of Circuit which policies the were delivered and the first 19, 1933. Jan. premiums paid. in- surviving Plaintiff the of the widow is beneficiаry jured, pol- in and the named the upon. icies sued testimony, At close of all the defend- the upon a ant moved for directed vex’diet the forth, set in its grounds pleaded above three denied, and the answer. The motion was jury upon the. to case sent to instructions are in exceptions urged court which no this court the appellant. The submitted to by defenses, jury the above-notеd axxd each of jury a verdict in the favor of the returned the issues. plaintiff on all appeal it is contended the On this that denying in dеfendant’s for court erred motion verdict, urging de- a that each of directed its by proof such as to fenses was sustained leаve supporting substantial evidence the vex’- no jury. diet of the second appearance the this is of This the first of ease in this coxxrt. On trial the *2 379 words, a for In the testimony other on these action, lower court directed verdict each of the plаintiff, issues is the appeal of the of same character as that defendant. On the sub- on defendant, appeal; of thе mitted tho first it support the action is the con- the in of but favor, testimony a verdict in tention of each side that his directing lower in its сourt strengthens urges, Certainly, three de that its his contention. the urged, then as it now sustained, on the testimony and that there was introduced оf new behalf fenses had been to entitling controlling defendant not of or conclu- plaintiff no is a substantial evidence chаracter, clearly re jury. to a sive but is cumulative. It have the submitted We issues the Las judgment ground that cannot be said that a new state of versed the the on facts on presented, make a issue that additional jury evidence to but certain was such as been disprove re contentions, testimony tending prove or cer- of and to each the defendant’s alleged ease, grаnt to tain facts offered. has been manded the with directions v. Ætna Life plaintiff a new trial. Wharton cumulative, merely testimony being The 37. (C. F.(2d) A.) Ins. Co. C. 48 of apply court should the doctrine the this court, compliance in retrial, the lower On Allison, “law of the v. 170 Alerding case.” court, opinion of mandate this tho and with 252, 1006, Rep. 83 N. E. Am. Ind. 127 St. jury on instruc- these issues to the submitted 363; Staples, 300, E. Turner v. 86 Va. S.9 complaint makes which dеfendant no tions of Ky. 1123; Gilmore, v. 142 Samuels & Co. clearly we think court, C.) in and which this 169; Day 166, (C. 134 S. W. Smith v. questions arising on this law. The stated the 136 964. F. con- therefore, same as those appeal are, the testimony of did not have the effect This appeal. on former by ns the siderеd evidence, in the did removing the conflict nor by plaintiff produced rule that the deci it rob the evidence the It is a well-established was, that of character. There is the of substantial appellate of an court law its sion therefore, to follоwed error action tho court presented, no in the of points the be ease on case, for in in in a directed subsequent proceedings denying defendant’s motion in all that judgment appealed Fed from is appellate verdict, court. the аnd the and both the trial Bank National Bank v. Omaha affirmed. Reserve eral 511; Pa Northern F.(2d) 45 (C. 8)A.C. Judge Harrington KENYON, (concurring). Co. Circuit Ry. Van Dusen cific Co. v. 394; Pennsylvania F.(2d) (C. 8) 60 C. A. only opinion in concur this because of I (C. C. Workers v. Mine United Mining Co. ease, law the and of the rule of.the of the law Nat 851; Page F.(2d) v. Arkansas 28 8)A. opin- was established in former case the this 27; (C. 8) F.(2d) 53 Corp. A.C. ural Gas of ion the court. (C. Reid, Murdoch & Co. Co. v. P. Coffеe H. 387; Finley United F.(2d) v. 60 8) C. A. 972; Mes (C. 8) 300 F. C. A. Mine Workers Anderson, 436, 32 Ct. S. 225 U. S. singer v. 739, Ed. 1152. 56 L. rule, is this it of Recognising the force UNITED v. STATES PULLIG. the appeal second that on this contendеd No. 9535. facts, of and a state presents different record ap- on the former our determination hence Eighth Appeаls, Court of Circuit Circuit. controlling. now peal not is 19, 1933. Jan. substantially different If evidence is the presented on respects from that in material of the of the appeal, the rule law the former & applied. Power Illinois should he case not 8) (2d) A. 49 F. Corp. Hurley (C. Light C. v. Corp. Natural Page Arkansas Gas 681; v. 27. rule (C. F.(2d) 53 With this 8) C. A. carefully the considered mind, in we have some testimo while there new record, and is plaintiff and the de of the ny on both behalf that the tes fendant, it is to be observed all by party either on the introduced timony again introduсed the second trial was on first prove to dis trial, it directed or and was all questions of the three contested fact. prove