(dissenting)—I cannot see my way clear to concur in the reversal of the judgment of the trial court. I see nothing involved in this case other than the question of fact as to whether the deceased was in good health at the time of the delivery of the policy, as to which question the burden of proof, as conceded in the majority opinion, rested upon the insurance company. The deciding of this case upon the merits *263by the court in favor of the insurance company is not deciding that there was no evidence to support the finding of the jury that the deceased was in good health at the time the policy was delivered; but it is deciding, as a matter of law, that it has been affirmatively conclusively proven that he tvas not then in good health. To my mind, the two or three sick spells of the deceased, occurring a short time before the delivery of the policy, and the uncontroverted testimony of the expert witnesses that, in their opinion, the deceased was not in good health at the time of the delivery of the policy, is not conclusive upon that question of fact, in the sense that the court is, upon such a showing, authorized to decide it in favor of the insurance company as a matter of law, contrary to the jury’s finding. The jury may have believed that the deceased was in good health at the time of the delivery of the policy, notwithstanding a short time prior thereto he had two or three sick spells. The jury may have also believed that the testimony of the expert opinion witnesses was not such as to compel a finding that the deceased was not in good health at the time of the delivery of the policy. It is to be remembered that this was the testimony of human witnesses, the weight and credibility of which the jury were the judges. The mere fact that there were no expert witnesses testifying that, in their opinion, the deceased was in good health when the policy was delivered, does not take away from the jury the right and duty of weighing the testimony and being the judges of the credibility of these expert opinion witnesses. It may be that the trial court should have awarded the insurance company a new trial upon the ground that the verdict was against the weight of the evidence, and .possibly the record would warrant this court in deciding that the trial court abused its discretion in *264denying the motion for new trial made upon that ground. But that is quite a different matter from finally deciding the case upon the merits by this court. I think the judgment of the trial court should be affirmed; or, in any event, no disposition of the cause should be made by this court more favorable to the insurance company than to grant it a new trial.
Holcomb, Fullerton, and Tolman, JJ., concur with Parker, J.