Defendant has petitioned for a rehearing. In the petition it is said: "The defendant does not seek a rehearing on the law in regard to disability, but solely for reconsideration of the facts and the record as to disability." The defendant asserts "that the evidence is not sufficient to sustain the verdict of the jury that the insured was immediately, continuously and wholly disabled from the date of the accident until the date of his death as required by the terms of the insurance contract." Defendant calls attention to the fact that the plaintiff, in an affidavit in proof of claim for indemnity, in answer to two questions stated that the insured continued to work nineteen days after the accident, and that he quit work on August 11th; and it is argued that these statements should carry more weight than any testimony she may have given upon the second trial in conflict with such statements. It is, also, argued that the testimony of the son of the insured fails to show that he "was with his father" and attended to his father's work for more than two days *Page 591 a week. It is, also, argued that the evidence does not establish that the cause of death was accident, but establishes rather that the cause of death was disease.
Every aspect of the question of sufficiency of the evidence was given careful consideration by the court before the former decision was made. But, in view of the earnest petition for rehearing we have again reviewed the evidence and reconsidered its sufficiency. The fact that the plaintiff made statements before suit inconsistent with her testimony did not render her testimony inadmissible, nor did it render it unbelievable as a matter of law. Neither statement "is inherently incredible, and as between the two inconsistent statements, it was for the jury to decide which one was true." Nimmins v. Forsberg, ante, 417,294 N.W. 663.
We adhere to the views expressed in the former opinion: "There was ample evidence from which the jury could find that he (the insured) sustained an injury to his heart on July 23d 1938, solely from the struggle with the horse; that he became immediately ill and wholly disabled as a result of such injury, and from no other cause; that he continued to be in that condition until his death; and that his death resulted directly from the injury he sustained on July 23d, and from such injury alone. The jury by their verdict so found, and this finding is binding on this court." The petition for a rehearing is denied.
BURR, Ch. J., and MORRIS, BURKE, and NUESSLE, JJ., concur. *Page 592