On Rehearing
JOHNSON, Judge.Appellant admits that appellee was relieved of the burden of proving the execution of her contract since appellant did not deny it by a sworn plea as required by Tit. 7, Sec. 375, Code of Alabama, 1940.
Appellant’s contention is that appellee failed to prove the existence of her application of insurance and that the application is an essential element of plaintiff’s prima facie case. For authority appellant cites Southern Life & Health Ins. Co. v. Whitfield, 238 Ala. 243, 190 So. 276, wherein it is stated:
“The plea was the general issue in short by consent, with leave to present any defense available by special plea and leave to plaintiff to present any matter available by special replication.
“[1] This plea put in issue the existence of the policy alleged in the complaint; and cast on plaintiff the burden of proof in that regard. National Life & Accident Ins. Co. v. Winbush, 215 Ala. 349, 110 So. 571; Life Ins. Co. of Virginia v. Mann [28 Ala.App. 425] 186 So. 583.”
In the Winbush case cited in the Whitfield case, it is stated:
“Plaintiff, to establish a prima facie case, must prove: (1) The existence of the contract or policy sued on; (2) the death of the insured or the happening of the event provided for in the policy; and (3) the giving of notice and proof of death, as required by the policy.”
Appellant’s contention relates only to element number one, i.e., “The existence of the contract or policy sued on.”
It is only where there is no evidence tending to establish the plaintiff’s case that the court may direct a verdict for defendant; and in considering the propriety of the affirmative charge, we review the tendencies of the evidence most favorable to the plaintiff, regardless of any view we may have as to the weight of the evidence. United Ins. Co. of America v. Ray, 275 Ala. 411, 155 So.2d 514.
Some of the evidence more favorable to appellee was that at the time appellant attempted to cancel the policy, appellee had been pregnant several months. She was told that she could not continue her coverage by transferring to another group and she could not pick up new coverage because of the “condition”; that she had been a paying subscriber for eight or nine years; that one of the provisions of the policy stated:
“ ‘Maternity care’ means care or treatment provided to a member who is subscriber or the wife of a subscriber, while such member is covered under a family contract, for any condition arising out of and during pregnancy, including but not limited to any condition or disease of the genito-urinary tract, gastritis, hyperemesis or anemia.”;
that the only defense presented by appellant was its attempted cancellation of the policy which attempt was held to be ineffective by this court in the original opinion.
The evidence when considered most favorable to appellee does certainly furnish “a mere glimmer, spark or smallest trace” in support of the issue of the existence of the contract. This is true even if appellee was held bound by the very ambiguous provision of the hospital service certificate which defines “contract”. The $25.00 deductible policy states under the headings, “TERMS AND CONDITIONS. SECTION I — DEFINITIONS: WHEN USED HEREIN” that:
*549“2. ‘Contract’ means this certificate and all riders and endorsements, thereto, if any, which together with the subscriber’s application and the subscriber’s identification card, constitutes the entire contract between the Corporation and the subscriber.”
There is no authority cited which requires a plaintiff to present all of the evidence in support of a particular element of his cause of action. This is true despite the case of Provident Life & Accident Ins. Co. v. Pressley, 37 Ala.App. 153, 64 So.2d 618, wherein the certificate issued to the employee provided in plain and specific terms that it was issued subject to the terms and conditions of the group policy issued to the employer.
Considering the evidence most favorable to appellee, the trial court did not err in refusing to give the requested affirmative charges.
Application overruled.