68 P.2d 796 | Okla. | 1937
The parties here are referred to as plaintiff and defendant, as they appeared in the trial court, where Gertie R. Roberson, as plaintiff, secured judgment against the insurance company on a life insurance policy issued on the life of Mattie E. Suggs, mother of plaintiff.
The insurer defended on two grounds: One, the defense based upon alleged willfully false representations in the application for the insurance; and two, the defense based upon a provision in the policy, in substance, that liability was contingent upon the then good health of the insured.
The defendant now urges, among other grounds for reversal, that the trial court erred in overruling its demurrer to plaintiff's evidence and its motion for a directed verdict. We find, however, from the record that the plaintiff's evidence made out a prima facie case, and that after the close of defendant's evidence and plaintiff's rebuttal evidence there was conflicting evidence upon the issues of fact upon the defenses. These issues then were for determination by the jury. We have repeatedly so announced the rule. Sovereign Camp W. O. W. v. Welch,
Defendant also urges error in the rejecting of the opinion evidence of Dr. Elmore as to the question of insured's sound health in September, 1929, when the policy was issued. The evidence discloses, however, that later, on redirect examination, this evidence was admitted.
Defendant urges error in the rejecting of evidence offered to show that certain other members of insured's household were afflicted with certain ailments some time prior to September, 1929. This was offered to show that it was more probable that insured was not in good health when the policy was issued and delivered. This point is not supported by authorities nor argued at length. We find no merit in it.
In several assignments of error the defendant questions the court's instructions to the jury. Our attention is directed to Home State Life Ins. Co. v. Jennings,
The defendant also urges that the verdict Is not supported by the evidence, it being contended in effect that the insured in September, 1929, was seriously afflicted with *267
pulmonary tuberculosis, and that she therefore was not in "good health" or in "sound health," as that term was used in the policy and construed in the Jennings Case, supra, and other cases. The burden was on the defendant to establish this defense as we said in the Jennings Case, and as we also held in the second and third paragraphs of the syllabus in Mid-Continent Life Ins. Co. v. House,
There is nothing to indicate that the jury arbitrarily disregarded any competent evidence offered by defendant. The plaintiff relies upon the testimony of witnesses, including the state agent of defendant insurer, who had some association with the insured in September, 1929, in connection with the issuance of this policy. The jury verdict includes a determination that on the controlling date the insured was in sound health, and we cannot say that the conclusion is not supported by competent evidence.
Finding no reversible error, the judgment is affirmed.
OSBORN, C. J., BAYLESS, V. C. J., and BUSBY, CORN, GIBSON, and HURST, JJ., concur. RILEY and PHELPS, JJ., absent.