Preferred Masonic Mut. Acc. Ass'n v. Harrington

20 Ohio C.C. Dec. 612

• Court: Hamilton Circuit Court
• Decided: May 11, 1907
• Status: Published

Opinion

GIFFEN, J.

This action was founded upon a policy of accident insurance. The plaintiff in her petition alleged full performance of all its conditions. The answer contains a general denial of such performance, and an averment that the last quarterly payment due before the accident was not paid, and that by the terms of the policy it thereby lapsed and became void and of no effect.

After verdict for plaintiff the court permitted plaintiff to file an amended petition, setting up a waiver of the condition of the policy requiring prepayment of the quarterly premium due January 30, 1903. The ease was tried partly upon this theory, and there was no error in permitting the amendment. Section 5114 Rev. Stat.

The production of the receipt of the association for the quarterly •premium was prima facie evidence of payment, and in the absence of any explanation entitled the plaintiff to a verdict without regard to any question of waiver. Neil v. Hepburn, 6 Ohio 534.

The deposition of the witness, Warner, attached to the bill of exceptions is not identified by any mark as the deposition offered in evidence, and hence cannot be considered as a part of the bill, nor will the court consider the alleged errors that the verdict is not sustained by sufficient evidence, and that the court refused to instruct the jury to return a verdict for the defendant. Lake Erie & W. Ry. v. Mackey, 53 Ohio St. 370 [41 N. E. Rep. 980; 29 L. R. A. 757; 53 Am. St. Rep. 640].

Such of the numerous special instructions requested by the defendant as were refused had either already been substantially given to ■the jury, or were afterwards embraced in the general charge, or were inapplicable to the case as presented by the record.

The failure of the jury to answer the three special interrogatories was not excepted to until after the jury was discharged, and will not avail as a ground of error.

We find no prejudicial error in the record and the judgment will be affirmed.

Swing and Smith, JJ., concur.