ON MOTIONS FOR REHEARING AND TO TRANSFER. We are at a loss to understand how the foregoing opinion can be so misunderstood as that it should be construed as being based on the inter-office communications between the defendant's home office and its Kansas City office, as evidence of the matters stated therein. It is not. The statements in those letters are not treated as evidence of their contents. But the testimony of the officers that a certain document was sent or received in a letter of such and such a date is evidence.
Neither does the opinion base its denial of recovery upon the acceptance of the evidence of defendant's witnesses in contradiction of any evidence offered by plaintiff. We are well aware of the rule that where the verdict is in plaintiff's favor all of her evidence not diametrically opposed to reason or the common experience of men, must be accepted as true. But in this case plaintiff sues upon a certain theory, offers no evidence in support of that theory and asks the jury to give her a verdict based on inferences when there is no evidence anywhere furnishing a basis support for such inferences, not even in anything defendant or its officers said or did; and certainly plaintiff ought not to object if defendant's evidence and correspondence is looked into to find, if possible, some evidence which might tend to support plaintiff's theory. When this is done and nothing is found therein to give support or countenance to plaintiff's claim, this is not basing the conclusion reached by the opinion upon an acceptance of defendant's testimony in preference to plaintiff's evidence. *Page 277
The fallacy in plaintiff's position is in assuming that she made a prima-facie case. She did not. Not only does she solemnly state in her petition that the policy is not in her possession and is in defendant's possesion, but, as stated in the opinion, the whole theory of her case, as shown by her pleadings, instructions and evidence, is that "possession of the policy had been surrendered to defendant, but that it was a conditional surrender, dependent upon defendant's issuance of a new policy, and the condition not having been performed, the surrender did not take effect. Consequently, she says, the old policy is still in force." But there is no evidence to show that the surrender of the old policy was conditioned upon the issuance of the new.
The motions for rehearing and to transfer are overruled. All concur.