OPINION
Appeal on questions of law.
This law suit was brought by the plaintiff, appellee here, to recover the benefits under an insurance policy; she being the beneficiary thereunder.
The trial resulted in a verdict for the plaintiff for the amount named in the policjr.
The defense was misrepresentation as to the health of the insured at the time of procuring the policy. The defendant moved for a new trial and for judgment notwithstanding the verdict. The trial court overruled the motion for judgment notwithstanding the verdict, but sustained the motion for a new trial.
From the overruling of the motion for judgment notwithstanding the verdict, the defendant appeals to this court.
While there is doubt in the mind of one member of the Court as to the appealability of this case, it is clear that it must appear from the record that the defendant was entitled to judgment at the close of the evidence, to entitle it to judgment here.
The plaintiff produced witnesses who gave evidence to the effect that the insured was in sound health at the time of the issuance of the policy, and worked steadily both before and after the time, and had not suffered any serious disease. The defense had medical testimony to the effect that the insured was tubercular at the time of the issuance of the policy and for a time prior thereto. Thus is presented an issue of fact for the jury, which prevents a judgment for the defendant. There was a conflict in the evidence, upon which reasonable minds might differ.
The defendant not being entitled to a directed verdict at the close of the evidence, is not entitled to judgment notwithstanding the verdict, and the trial court was correct in so holding.
The judgment is affirmed.
MATTHEWS & ROSS, JJ., concur.