
    MASSACHUSETTS MUT. LIFE. INS. CO. v. SMITH.
    No. 13685.
    United States Court of Appeals Fifth Circuit.
    March 18, 1952.
    
      H. H. Grooms, Birmingham, Ala., for appellant.
    Reid B. Barnes, James A. Simpson, Birmingham, Ala., for appellee.
    Before HOLMES, STRUM, and RIVES, Circuit Judges.
   RIVES, Circuit Judge.

Appellant, on a second application for rehearing, strenuously urges that this court erred in holding that it was within the province of the jury to disbelieve the report that, when the plane was last seen, it was flying at an elevation of 1100 feet, when directed to fly at 9000 feet, and was entering a storm front.

The statement in the War Department file that someone had seen this plane after it left Puerto Rico is based upon a radiogram dated January 25, 1943, the day after the plane’s disappearance, the radiogram originating at Borinquen Field, and addressed to the Air Transport Command at Morrison Field and saying “Army C47 NBR 8688 last seen entering cloud bank 14 degrees latitude 64 degrees longitude. * * No further info from Bane.” “Bane” is said to be the code name of “Borinquen.”

The jury was furnished no evidence as to who this person was who saw the plane. The radiogram said nothing about its flying at an elevation of 1100 feet, but did say that there was no further information. It referred to the “storm” as a “cloud bank.” Over a month later, on February 27, 1943, Col. John A. O’Keefe, Morrison Field, reported to the Adjutant General, Washington: “4. No news or evidence has been received since departure of this particular plane. * * * ”

The Adjutant General wrote Mrs. Smith, the widow, dated March 9, 1943: “All efforts to locate the missing plane were unsuccessful and no report as to its location or whereabouts was received after takeoff.”

References to the fact that no one knew what happened to this plane after it left Puerto Rico are found in several other documents in the War Department file.

No issue was raised before this court as to the admissibility of these reports. However, the fact that they were based on hearsay certainly goes to> their credibility. Pekelis v. Transcontinental Western Air, Inc., 2 Cir., 187 F.2d 122, 129.

With the evidence in such contradictory and unsatisfactory condition, we repeat that we cannot say as a matter of law that the insurer has met its burden in this case.

Since neither of the judges who concurred in the decision of the court in this case is of the opinion that the appellant’s petition for rehearing should be granted, the same is hereby denied.

Denied.

STRUM, Circuit Judge.

Being still of the view that the original opinion and judgment of reversal herein are correct and should not be disturbed, I respectfully dissent from the order denying the second rehearing.  