We have examined the petition for rehearing of the plaintiff in error, the grounds alleged being: (1) That a question of fact submitted was overlooked by the court; (2) that the court overlooked an assignment of error, charging error in the trial court in overruling the motion to make the petition more definite and certain; (3) that the court overlooked express and controlling *Page 200 decisions which hold that the matters pleaded in plaintiff's reply constitute a departure.
1. The question of fact submitted was presented on the hearing of this case, and upon a re-examination of the same it clearly appears that this question of fact was decided by the trial court and jury adverse to the plaintiff in error, and was a controverted question of fact. The contention here goes only to the weight of the testimony, and we deem it unnecessary to cite authorities that this court will not reverse or grant a rehearing in a case where the jury has decided the same on conflicting evidence.
2. Where counsel presented a case to the court upon certain assignments of error only, as they did in this case upon the following propositions: (1) That the reply constituted a departure; (2) that the waiver pleaded in the reply is insufficient to constitute an excuse for nonperformance of the provisions and conditions of the policy — it is too late to urge other assignments, not originally presented, on rehearing. They will be considered waived. We are of the opinion that the trial court's action in overruling the motion to make the reply more definite and certain did not constitute reversible error.
3. The contention that the reply constituted a departure was fully discussed in the opinion deciding this case, and we fully concur in what was there said.
The petition for rehearing should be denied.
By the Court: It is so ordered. *Page 201