NIAGARA FIRE INS. CO. v. POSPISIL

NIAGARA FIRE INS. CO. v. POSPISIL. No. 8873. Circuit Court of Appeals, Eighth Circuit. Dec. 9, 1931. For former opinion, see 52 F.(2d) 709, which reversed judgment in 35 F.(2d) 213. L. E. Waggoner, of Sioux Falls, S. D., for appellant. C. C. Puckett, of Tyndall, S. D. (J. L. Quinn and F. D. Wicks, both of Scotland, S. D., on the brief), for appellee. Before KENYON and BOOTH, Circuit Judges, and OTIS, District Judge. [MAJORITY — PER CURIAM.] PER CURIAM. In a petition for rehearing filed by appellee, the attention of this court for the first time is called to section 1447 of the South Dakota Code of 1919, which reads as follows: “Delay in the presentation to an insurer of notice or proof of loss is waived, if caused by any act of his, or if he omits to make objection promptly and specifically upon that ground.” Neither in the briefs nor in the oral argument was there any reference to this statute. There is nothing in the record clearly to indicate that it was relied upon by the appellee in the District Court nor considered by that court. To the end that the effect, if any, of this statute may be considered by the District Court, the judgment below is reversed, and the cause remanded for a new trial. The petition for rehearing is denied without prejudice to the raising of the question of the effect of the statute referred to on the new trial.