OPINION
By KLINGER, J.The insurance company claims said answers were wilfully false, fraudulently made, and were material and induced the company to reinstate the policy; that but for said answers and representations, said policy would not have been reinstated. This defense, if established, would bar the plaintiff from any recovery. Necessarily, the burden of proof was on the defendant to prove this defense.
Sec 9391 GC, provides that:
“No answer to any interrogatory made by an applicant in his or her application for a policy, shall bar the right to recover upon any policy issued thereon * * * unless it be clearly proved that such answer is wilfully false, was fraudulently made, that it is material, and induced the company to issue the policy, and that but for such answer the policy would not have been issued; *79and, also that THE AGENT OR COMPANY HAD NO KNOWLEDGE OP THE FALSITY OR FRAUD OF SUCH ANSWER.”
Plaintiff in his reply to the answer of the insurance company, averred that the agent of the company had full knowledge of the facts, and he offered evidence to substantiate this averment.
The issues tendered by these pleadings were submitted to the jury, and under the law of procedure in this state, the reviewing-court has no authority to interfere with the findings and conclusions of the jury as to issuable facts, even though in the opinion of the court the conclusion of the jury is wrong, if there is evidence in the record justifying the conclusion as found by the jury and that such conclusion is not manifestly against the weight of the evidence.
Under the provisions of §9391, GC, above mentioned, the insurance company in order to establish its defense to the action, was required to clearly prove that such answer:
1. Was wilfully false.
2. Was fraudulently made.
3. That it was material.
4. That it induced the company to issue the policy.
5. That but for such answer the policy would not have been issued.
6. That the agent or company had no knowledge of the falsity or fraud of such answer.
On the trial, the court admitted evidence offered by the company tending to prove five of the six elements above mentioned, but the evidence offered by the insurance company tending to show that but for such answer the policy would not have been issued, was excluded by the court.
In its charge, the court instructed the jury that the insurance company was required to clearly prove all the six elements above mentioned in order to avail itself of such defense.
The evidence on one of the elements having been excluded by the court, the charge as given, amounted to a direction to the jury to return a verdict for the plaintiff, because in excluding the testimony on the element above mentioned, the court made it impossible for the insurance company to prove its defense to the action. The exclusion of the evidence mentioned, was clearly prejudicial error.
The defendant contended in its brief, that there was no evidence tending to show that the death of the insured resulted from accident as defined and limited in the policy of insurance and that consequently it was, as a matter of law, not liable for the double indemnity provided in the policy.
We have carefully read the evidence and from such reading are of thé opinion that the jury could fairly draw an inference therefrom, that the death was the result of an accident as defined and limited in such policy, and that consequently it was not error for the court to submit the question of the liability of the company for double indemnity for accident, to the jury.
For the error hereinbefore mentioned, the judgment will be reversed and~the cause remanded to the Court of Common Pleas for a new trial.
GUERNSEY, J, concurs. CROW, PJ, dissents.