*1 29a Guaranty William W. Boillot, Respondent, v. Company, Income Appellant. 120 S. W. Corporation, 76. a (2d) City May Appeals. 23, Kansas Court of & Davis Davis and appellant. C. W. Armstrong for *3 respondent. Irwin, & Buchanan for

Boillot & Teters Bmhman and *5 298 SPERRY, C.—This upon is an action founded same contract the 19139,

involved in cause No. decided in court the this on same day this cause was decided. In plaintiff this action seeks to recover the period benefits for the 11, January 1936, 11, April to plaintiff

-The judgment recovered a for monthly benefits; $1500 $113.10; interest penalties $150; Attorneys’ $150 fees and costs. The defendant has appealed.

The defendant “The says, Court is' advised that is a similiar this 19139, case to parties pending No. between the same term. at this ‘Argument’ The ‘Points and Authorities’ and except is identical for Point XII.”

Point 'is that the court in refusing permit erred to defendant to show plaintiff, had disability. recovered'from his

After the evidence was plaintiff’s closed of one counsel to stated the court inadvertently he had omitted to introduce the policy and permitted asked to be to introduce policy the in evidence. the When court he permit indicated would the policy to be introduced counsel for the defendant said:

“I want to a couple motions; make go of it will in the record: I want make to a motion that opened the entire case be up, so de the fendant can have opportunity bring to witnesses here and in connec tion with apprise the motion I will the that Court I want to intro duce Boillot, evidence to show that Mr. the plaintiff, was disabled not claims, during as he period' the for which brought, suit was that he was- provided not disabled as in policy the during period that and that Mr. Boillot was not- disabled that he prevented so was tuning from ’’ pianos wholly or as partially, is contended by plaintiff. for' motions, The- court overruled the received the policy evidence, in judgment plaintiff. for and rendered the *6 pleadings The considered, is necessary it not to policy introduce the in evidence.

The to reopen motions the the of purpose allowing case for defend- ant to disabled, plaintiff introduce evidence the to effect that was not afterthought. anwas

Plaintiff’s evidence was same as in the the each of former trials. any Neither in nor in No. this case case 19139 did the offer defendant disability. question plaintiff’s evidence on the of the nothing indicating There is in record the court abused dis- its refusing motions, cretion in the if would have even such evidence stage preceeding. any been admissible the at of the appeal

The of must the as in cause result this be same result No. 19139. appeal must the No.

The of this be the same as result in result cause 19139. plaintiff have adjudged is re- judgment

The is affirmed and to and $191.31, thereto the in sum of the defendant addition cover from Campbell, C., appeal. concurs. for vexatious penalties adopted Sperry, C., is foregoing opinion PEE of CUEIAM:—The plaintiff judgment and the court. The is affirmed opinion as the of defendant, recover from the adjudged to have and in addition there- is appeal. for All $191.31, penalties concur. of vexatious sum to, the Guaranty W. Company, Income Boillot, Respondent, v. William Appellant. (2d)W. 74. 120 S. A Corporation, May 23, City Appeals. of Kansas Court