EVIDENCE - HEARSAY RULE - USE OF "RES GESTAE"

In an action on a life policy which acknowledged receipt of the first premium, the insurer-defendant claimed that no premium payment was made and that delivery was only to allow inspection and comparison with a specimen copy of the policy already in the hands of insured's wife. The district court admitted testimony by the insured's wife, the beneficiary and plaintiff in the action, to the effect that when the insured turned the policy over to her he said it was hers and paid for. The Circuit Court of Appeals for the Fifth Circuit sustained the ruling and, on motion for rehearing, adhered to its original decision, stating that what the insured said about payment was properly admitted as res gestae of his possession of the policy. Yarbrough v. Prudential Ins.

Co. of America, (C. C. A. 5th; 1939) 100 F. (2d) 547.