
    The Prudential Insurance Company of America v. Zimmer, Admr.
    (No. 15533
    Decided November 6, 1917.)
    Certified by the Court of Appeals of Hamilton county.
    The facts are stated in the opinion.
    
      Mr. Michael G. Heintz, for plaintiff in error.
    
      Messrs. Fulford, Shook, Wilby & Fricke, for defendant in error.
   Johnson, J.

The defendant in error brought suit against the plaintiff in error in the municipal court of Cincinnati upon an industrial policy of insurance. The defendant in its statement of defense admitted the issuing qf the policy, the death of the insured, and that the premiums were paid in full during his lifetime. It alleged that the policy contained the provision, “This policy shall not take effect if the insured die before the date hereof, or if on such date the insured be not in sound health, but in either event the premiums paid thereon, if any, shall be returned.”

On the trial the court charged the jury that the burden of proof was on the defendant company to establish that the deceased was not in sound health at the time of the delivery of the policy. Verdict was rendered and judgment entered for the plaintiff below, which judgment was affirmed by the court of common pleas and by the court of appeals.

The court of appeals certified the case to this court for review and final determination, because it found its judgment in conflict with the judgment announced by the court of appeals of Highland county upon the same question in a case decided by that court.

For the reasons given in the opinion in the case of Mumaw v. The Western & Southern Life Ins. Co., ante, 1, this day decided, the judgments of the courts below in this case will be affirmed.

Judgments affirmed.

Nichols, C. J., Wanamaker, Newman, Matthias and Donahue, JJ., concur.  