
    TRAPP v. METROPOLITAN LIFE INS. CO.
    No. 9798.
    Circuit Court of Appeals, Eighth Circuit.
    July 12, 1934.
    E. H. MeVey, of Kansas City, Mo. (C. A. Randolph, Roeder Wild, and MeVey, Randolph, Smithson & Garrity, all of Kansas City, Mo., on the brief), foi* 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, Blaekmar, Newkirk & Eager, of Kansas City, Mo., on the brief), for appellee.
    Before STONE and SANBORN, Circuit Judges, and WYMAN, District Judge.
   PER CURIAM.

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 eourt below?

(2) If that section can be considered by this eourt 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 ease 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.  