
    No. 754
    COLUMBUS MUT. LIFE INS. CO. v. JORDAN
    Ohio Appeals, 3rd District, Logan County
    No. 669.
    Decided Feb. 3, 1923
    This opinion has not been published except in Abstract.
    269. NEW TRIAL.
    If judgment has been reversed once on weight of evidence, a new trial cannot be granted on that ground — Waiver is a question of fact — Decisions where there is a conflict of evidence.
    j Attorneys — Hamilton Brothers and J. M. Sheets, pr Insurance Co.; J. A. Price and U. G. Hahn, for prdan.
   HUGHES, J.

Epitomized Opinion

This case was formerly before the court and the judgment was reversed at the other hearing and a lew trial awarded for the reason that the verdict vas against the evidence and for error in ■ submitting to the jury the issue of waiver when it had pot leen made an issue by the pleadings.' Jordan imended her pleadings and alleged that the Com-iany had waived the provision that the policy shall lot be in force if the premium is not paid in full Pa note is not accepted by the Company during good health of the person until the policy is led and delivered.

The evidence disclosed that the agent of the Com-lany agreed to allow Jordan to pay for the policy s she could and that the agent would advance the layment within 30 to 60 days. Apparently (the pinion does not state) the insured died before the iolicy was issued or the premium paid. The jury eturned a verdict for.Jordan, and found that the lsured was in good health when the insurance con-raet was completed. In affirming the judgment the !ourt of Appeals held:

1.Upon the issue of good health there was a cintilla of evidence to support the jury’s finding or Jordan.

2.The judgment having been reversed once on the 'eight of the evidence, a new trial cannot now be rantd upon that ground.

3.The issue of waiver was a question of fact to e determined by the court in place of the jury.

_4. Where there is a conflict in the evidence the ition as to whether reasonable minds mig’ht ar-'at different conclusions from the facts and cir-imstances proved by it; in deciding it there was ■ror.  