On Petition for a Rehearing.
Before HOLMES, STRUM, and RIVES, Circuit Judges.
PIOLMES, Circuit Judge.The following statement in our former opinion in this case is withdrawn, because contrary to a finding implicit in the jury’s verdict: “When the plane in which he was riding was last seen, it was entering a storm front in the open sea, flying at an elevation of 1100 feet when it had been directed to fly at 9000 feet.” The statement in the file that someone had seen this plane after it left Puerto Rico is a highly controversial one; and, the jury having returned its verdict for the appellee, we are bound by all of the facts and inferences favorable to the appellee that are warranted by the evidence in the record. The case of Barringer v. Prudential Insurance Company, D.C., 62 F.Supp. 286, was not decided on full evidence, but on a presumption arising from pleadings and statements of counsel.
Our original view of this case was decisively influenced by the belief 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. We now think that it was within the province of the jury to disbelieve the report to this effect, in the light of contrary statements in the file and the uncertainty as to the description of the plane. Also the *514weather condition, apparently, did not indicate much of a storm.
The burden of proof was on the insurer to prove that death resulted from an aviation hazard. If the plane was shot down by enemy submarines, the appellee is entitled to recover; the same is true if the plane fell, sank, was never heard of, and Colonel Smith made his way to one of the near-by uninhabited islands, where he died of disease or starvation, as Jennings came very near doing.
On reconsideration, we cannot say as a matter of law that the insurer has met its burden in this case. The petition for rehearing is granted, our former opinion is set aside, the judgment of reversal set aside, and the judgment appealed from affirmed.
Affirmed.