(dissenting):
I respectfully dissent. On a motion for a directed verdict, the evidence adduced by the plaintiff and all reasonable inferences to be drawn therefrom are to be viewed in a light most favorable to her. The trial court may not weigh the evidence since this is the function of the jury. Webb v. Illinois Central R. Co., 352 U.S. 512, 77 S.Ct. 451, 1 L.Ed.2d 503 (1957); Sano v. Pennsylvania Railroad Co., 282 F.2d 936 (C.A. 3, 1960). The Supreme Court has stated that, viewed in this perspective, actions are solely for the jury “in all but the infrequent cases where fair-minded jurors cannot honestly differ.” Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 510, 77 S.Ct. 443, 450-451, 1 L.Ed.2d 493 (1957). I do not believe that the instant case is one which falls into the latter category.
The majority asserts that it is in agreement with the district court that the evidence created no jury issue as to whether Prudential should have applied accumulated dividends to the premiums in default. After setting forth plaintiff’s testimony as to her oral direction in March of 1963, to apply dividends to premium arrearages, the majority discusses how its own interpretation of that testimony is consistent with plaintiff’s subsequent course of conduct. Weighing the evidence in this manner is the function of the trier of fact. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the inquiry whether, with reason, the conclusion may be drawn that the policy of insurance had not lapsed prior to Mr. Wisniewski’s death. See Rogers v. Missouri Pacific R. Co., 352 U.S. at 506-507, 77 S.Ct. 443. Viewing the evidence in this case in a light most favorable to the plaintiff, I *159do not find it unreasonable to conclude that an oral direction had been given to Prudential requesting that dividends be applied to prevent future lapses for non-payment of premiums. Prudential conceded that written notice by the insured is not actually required in order for accumulated dividends to be applied to premiums, and in fact it was uncontradicted that Mrs. Wisniewski was not required to give written notice in March of 1963 when accumulated dividends were used for this purpose. If this evidence was negated by evidence such as her subsequent course of conduct, it remains the jury’s function to weigh the evidence, and not the court’s. The district court thus erred when it prevented the case from going to the jury on this issue.
Plaintiff also contends, and I agree, that there was evidence which presented a second question of fact for the jury. The testimony in this case was in agreement that the Wisniewskis had purchased an insurance policy from Prudential in 1957 and had paid the premiums on a monthly basis for seven years. During the last two years of that period, the Wisniewskis had repeated difficulty paying these monthly premiums, and the policy “lapsed” on at least seven occasions. In every one of these instances, Prudential made every effort to keep the policy in effect, and each “lapse” was corrected by the payment of the premiums due and the signing of a Prudential reinstatement form by either Mr. or Mrs. Wisniewski. There is no doubt that Prudential would have, as a matter of course, reinstated the policy again in December of 1964 had it not been for Mr. Wisniewski’s death.1 Prudential’s agent, Little, testified that had the insured paid the premiums prior to his death, the company would have reinstated the policy even though the pro forma averments of the insured’s continued good health could no longer have been made. It was in evidence that Prudential had received a check, signed by Robert Wisniewski and dated December 19, 1964. Mrs. Wisniewski testified that this check had been mailed on December 19, 1964. Prudential, however, records the postmark date as the controlling date of payment, and in this case the payment was postmarked December 23, 1964, the day after the insured died. The majority holds that Mrs. Wisniewski is bound by Prudential’s practice if she is to take advantage of their voluntary modification of the policy for her benefit.
It is clear, however, that there was evidence presented that the insured had, in fact, mailed the premium prior to his death, and Prudential’s district manager testified that the mail was delayed at the time due to the holidays. There is no question that had the payment been postmarked December 19, December 20, December 21, or December 22, the date of death, Prudential would have reinstated the policy. Thus there was a real jury question presented as to whether the insured had mailed the payment before he died and a post office delay caused the envelope to be postmarked the day after his death.2
*160Viewing the evidence in a light most favorable to the plaintiff, I conclude that a jury could reasonably find that the policy had not lapsed under either theory advanced by plaintiff. It was thus error for the district court to direct a verdict for the defendant.
. Cf. Poles v. State Mutual Benefit Society, 129 Pa.Super. 297, 301, 195 A. 429, 431 (1937), where the court states:
“ * * * Where an insurance company adopts a course of conduct which induces an honest belief, reasonably founded, in the mind of the policyholder that strict compliance with stipulations for prompt payment of premiums will not be insisted upon and that payment may be delayed without incurring a forfeiture, the company will be deemed to have waived the right to claim an automatic forfeiture and it will by its conduct be estopped from enforcing the same.”
See also, Klopik v. General American Life Ins. Co., 155 Pa.Super. 659', 39 A.2d 281 (1944); Bush v. Prudential Ins. Co. of America, 150 F.2d 631 (C.A.3, 1945) (interpreting Pennsylvania law).
. If Prudential is sincere in its policy of honoring the insurance if the premium, though late, is still paid prior to death, then it should not penalize plaintiff here because of a delay in processing the mail. Of course, the inference can be made that it was not mailed until after the insured died, but that is a question for the jury and on a directed verdict, the court must take Mrs. Wisniewski at her word.