The only error assigned is that the court should have instructed the jury to return a verdict for the defendant on the ground that the evidence shows that the insured was not in sound health at the time of the delivery of the policy.
The burden of proving that the insured was not in sound health was upon the defendant. Mumaw v. Western Southern LifeIns. Co., 97 Ohio St. 1, 119 N.E. 132. To justify the sustaining of such a motion in any case, it must appear that there is no substantial evidence of sound health. This, it seems, certainly should be the rule when, as in this case, the motion is made by the party upon whom the burden rests and the credibility of witnesses is presented.
In this case, there is evidence by the insured's mother that he was in good health. If her testimony is accepted as true, the jury could, within reason, decide that whatever his ailment, it was not such that tended to weaken his constitution and increase the insurer's risk.
This verdict is the second one that has been found in plaintiff's favor, and while I have some doubts, I have concluded that it cannot be said that there is no substantial evidence of good health.
For these reasons, the judgment should be affirmed. *Page 431