
    LANE v. SOUTHERN LIFE & HEALTH INSURANCE CO.
    No. 16664.
    Circuit Court, Palm Beach County.
    June 3, 1958.
    Johnson & Johnson, West Palm Beach, for plaintiff.
    Earnest & Pruitt, West Palm Beach, for defendant.
   R. O. MORROW, Circuit Judge.

This cause came before the court for trial without a jury. The court has heard the testimony, read the depositions and examined the documents admitted in evidence.

Plaintiff seeks damages by reason of non-payment of a life insurance policy, wherein plaintiff is beneficiary. Defendant denies liability and affirmatively pleads that the insured, now deceased, made application for such policy when she was suffering from a heart condition which was known to her at the time she made the application.

Prior to making her application, the deceased had medical treatment and an operation removing a tumor. The record does not show by direct and positive evidence — such as is required in cases of fraud — that the deceased was specifically informed as to any heart condition.

The deceased signed the application on June 30, 1955, and died on December 13, 1956, a little more than a year and five months later. Dr. White stated in his testimony that in a history given him by the deceased she said she had been told she had heart trouble three years before, which would be in October, 1953. Here again, the evidence fails to show positively and directly that the deceased, at the time she signed the application, was suffering from heart disease.

The burden is on the defendant to prove its affirmative defense by clear, positive and convincing evidence — in this respect, defendant has failed.

It is ordered and adjudged that the plaintiff, Howard Dane, do have and recover from the defendant Southern Dife & Health Insurance Co., a corporation, the sum of $1,000, together with interest thereon at the rate of 6 % per annum from December 24, 1956 to the date hereof; further, the sum of $200 as attorney’s fee for plaintiff’s attorney herein; and further the sum of $68 as plaintiff’s costs herein taxed; for all of which let execution issue.  