
    19832.
    Southern Insurance Company v. Ray et al.
    
    Decided August 23, 1929.
    
      Maddox, Sapp & Maddox, for plaintiff in error.
    
      Mitchell & Mitchell, contra.
   Broyles, C. J.

1. The verdict, with the exception of the amounts found as damages for bad faith on the part of the defendant company and attorney’s fees, was authorized by the evidence, and the special grounds of the motion for a new trial, complaining of two excerpts from the charge of the court, show no cause for a reversal of the judgment.

2. This was a suit upon a policy of life-insurance which contained the stipulation that the policy should not take effect unless on the date of its delivery the insured was alive and in sound health. The insurance company’s defense was that the policy never took effect, because the insured was not in sound health when the policy was delivered. Upon the trial the evidence on this vital issue was in sharp conflict and would have supported a finding in favor of either party. Under such circumstances the finding of the jury (as shown by their verdict), that it was made to appear to them that the refusal of the insurance company to pay the loss was in bad faith, was not authorized by the evidence.

3. If the plaintiff, when the remittitur from this court is made the judgment of the trial court, will write off from the verdict and judgment the sum of $154.75 (the amount returned for damages and attorney’s fees), the judgment will be affirmed; otherwise it will stand reversed.

Judgment affirmed, on condition.

Luke and Bloodworth, JJ., concur.  