I agree that the presumption of a delivery arose upon the showing that the policy was in possession of the deceased. This is purely a presumption as to the fact of delivery, and is a rebuttable presumption. Without adverse proof the presumption made a prima-facie case for the jury for plaintiff, but here we have the presence of the facts, destroying the presumption, if those facts are to be taken as proven. So that we get to the old question in Gannon v. Gas Co., 145 Mo. l.c. 515; Trust Co. v. Hill, 283 Mo. 278. The facts shown made a prima-facie case for the jury, and under Gannon v. Gas. Co., supra (a case which I have always followed, but at times with much reluctance), this prima-facie case left to the jury the determination of the credibility of the evidence offered by defendant. Under Gannon's case and its predecessors, and many successors (as late as Keller v. St. Louis Butchers Supply Co., at this term of the court) the delivery of the policy sued upon was for the jury. But, whilst under our rule the case should have been submitted to the jury, the trial court has the peculiar power to prevent the miscarriage of justice by setting aside a verdict which is against the weight of the evidence. [Keller v. Supply Co., supra.] This is one of the cases where the trial court should function aright on the motion for new trial, if such motion charges that the verdict of the jury was against the weight of the evidence. This question was not in the instant case, because there was, in the first instance, a directed verdict for defendant. It may be in a future trial of the case.
With these additional observations, I concur in the opinion. *Page 567