opinion: JOHN HANCOCK MUT. LIFE INS. CO. v. DE COSTA.
  No. 5875.
  Circuit Court of Appeals, Third Circuit.
  Jan. 16, 1936.
  Rehearing Denied Feb. 6, 1936.
  Charles M. Willits, Frank Shunk Brown, and Brown & Williams, all of Philadelphia, Pa., for appellant.
  Joseph L. Wase and Morris W. Kolander, both of Philadelphia, Pa., for appellee.
  Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
  THOMPSON, Circuit Judge.
  This is an appeal from a judgment of the District Court for the Eastern District of Pennsylvania. The appellee brought an action in assumpsit upon a policy of life insurance issued upon the life of her husband. She sued for the principal benefit of $5,000, for disability benefits of $50 per month, and for the return of-two quarterly premiums. She alleged that about April 1, 1933, the insured contracted a mental disease which totally and permanently incapacitated him until his death on February 27, 1934; that she notified the appellant on or about April 7, 1933; and that she made two further premium payments in April and July, 1933. The defenses were that the policy lapsed on November 7, 1933, for nonpayment of the October premium; that the insured was not totally disabled until a period more than three months after the lapse of the policy; and that the insured failed to give appellant notice or due proof of his disability. The policy contained the following provision:
  “If after the first premium or regular installment thereof shall have been paid hereunder and under the policy, the Insured prior to the anniversary of the policy neaiest his sixtieth birthday shall become wholly and permanently disabled by bodily injury or disease sustained’ or contracted after the date hereof, so that thereby he will be wholly, continuously and permanently prevented from the pursuit of any form of mental or manual labor for compensation, gain or profit whatsoever, then, if there is no premium in default, and the policy is not being continued as paid-up or extended insurance under the non-forfeiture provisions thereof, the Company will upon receipt of due proof of such disability grant the following benefits subject to the terms and conditions herein set forth.
  “Beginning with the anniversary of the policy next succeeding the commencement of such disability the Company will waive the payment of further premiums during the continuance of the disability, and will pay to the Insured, from the date of the commencement of such disability, or to the beneficiary if disability results from insanity, subject to the conditions and limitations of this provision, with the written consent of the assignee, if any, a sum equal to one per centum of the face amount of the policy exclusive of any policy additions, and a like sum monthly thereafter during the continuance of the disability, until the maturity of the policy * * *.”
  The defense rested upon the theory that, as a matter of law, due proof of disability was a condition precedent to recovery and that insanity did not exclude the presenting of due proof. It also defended upon the ground that it in fact never received notice or due proof. At the conclusion of the case, the appellant, in furtherance of its theory, submitted, inter alia, the following point for charge: “If you find the insured was totally and permanently disabled on October 7, 1933, yet nevertheless due proof thereof was not furnished to and received by defendant subsequent to disability and prior to the date of default, then the plaintiff is not enlitlec to recover anything and your verdict must he in favor of the defendant.”
  The court refused this point hut charged: “You will take this policy out with you. I am not going to charge that as a matter of law, members of the jury. I am going to ask you to read that policy yourselves and come to a conclusion as to whether the subsequent or prior notice should govern. That is an interpretation of the policy that is for you, and I give that to you with the explanation that the cause set forth by the plaintiff is one of mental disability and not physical disability.”
  The jury were thereby instructed that it was their duty to construe the written instrument- — -an instruction clearly erroneous. As was stated by Chief Justice Marshall in Levy v. Gadsby, 3 Cranch, 180, 2 L.Ed. 404: “But in this case the question arises upon, a written instrument, and no principle is more clearly settled, than that the construction of a written evidence is exclusively with the court.” We deem unnecessary further citation to the effect that: it is the province of the court to construe written contracts and not the province of the jury. In the instant case the court should have given the jury clear and positive instructions as to whether due proof of disability was a condition precedent to the granting of the disability benefits provided by the contract of insurance; as to whether insanity of the assured avoided the necessity of giving due proof; and as to what constituted due proof. The refusal to give such instructions constituted subsTantial error.
  The judgment is reversed with a venire de novo.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.