
    9268
    PARRY v. SOUTHEASTERN LIFE INS. CO.
    (- S- E. -.)
    Law of the Case. — Where the testimony on the first and second trials of an action is substantially the same, a verdict is properly directed on the second in accordance with the law as announced on the first.
    Footnote. — As to the conclusiveness of prior decisions on subsequent appeals, see notes in 34 L. R. A. 321 to 347.
    Before Smith, J., Newberry, September, 1915.
    Affirmed.
    Action by Julia O. F. Parry against Southeastern Life Ins. Company. From judgment for defendant, plaintiff appeals. The former appeal is reported in 95 S. C. 1, 78 S. E. 441.
    The new trial there granted was had before a jury. At the close of the testimony the Circuit Judge directed a verdict in favor of the defendant, on the ground that the only reasonable inference to be drawn from the testimony was that the policy of insurance had been forfeited by failure to pay the note given for the first premium when due, the conclusion reached on the former appeal.
    
      Mr. Pred. H. Dominick, for appellant,
    submits: While in the former decision in this case it was held that the letter of July iy is not of itself a waiver of the rights of the insurance company, we submit that this letter, when taken in 
      
      connection with other testimony in the case, is at least sufficient to support an inference of waiver, and such inference and such testimony should have been submitted to a jury for their determination as a question of fact, and cites: As to note as payment: 1 Rich. 36; lb. Ill; 79 S. C. 494; 77 S. C. 299. No election to declare forfeiture: 54 S. C. 547; 96 U. S. 242; 70 S. C. 306; 57 S. C. 370; 90 S. C. 175; 88 S. C. 31. Retention of note evidence of waiver of right to declare forfeiture: 96 S. C. 375; 101 S. C. 249.
    
      Messrs. Haynsworth & Haynsworth, Hunt, Hunt & Hunter, for respondent,
    cite: 95 S. C. 1; 101 S. C. 249.
    February 26, 1916.
   The opinion of the Court was delivered by

Mr. Chief Justice Gary.

We are unable to discover wherein the testimony adduced upon the first and second trials was materially different.

Appeal dismissed.  