Opinion
No. 5384
Opinion Filed October 12, 1915.
APPEAL AND ERROR — Verdict — Evidence. Where there is evidence tending to support the verdict in an action at law, this court will not weigh the evidence, but, if it reasonably tends to support the verdict and judgment, they will not be disturbed.
(Syllabus by Devereux, C.)
Error from County Court, Oklahoma County; John W. Hayson, Judge.
Action by Jerry Bunn, administrator of the estate of Frances Bunn, against the Sun Accident Company, a corporation, and others. Judgment for plaintiff, and defendants bring error. Affirmed.
This action was brought on a policy of insurance, whereby the Sun Accident Company agreed to pay the plaintiff's intestate certain sums as sick benefit, and also a certain sum in case she died. The other defendants became liable by reason of having purchased the assets of the Sun Accident Company, and assumed its liabilities. The policy contained the following provision, among others:
"Condition number 8 reads, in part, as follows: Indemnity shall not be payable for injuries, * * * or disability, or illness, resulting wholly or in part, directly or indirectly, from tuberculosis, rheumatism * * * etc."
The evidence tended to show that the assured had regularly paid the premiums, and that she was taken sick with acute bronchitis, and that the immediate cause of her death was gastritis, which is inflammation of the stomach and bowels. There was evidence on behalf of the defendants that she died of tuberculosis. There was no exception to the instructions to the jury, nor did the plaintiffs in error ask any special instructions. The jury found a verdict for the plaintiff, and the defendants bring the case to this court by petition in error and case-made, and assign as errors: (1) That the verdict of the jury is not sustained by sufficient evidence. (2) That the court erred in overruling the motion for a new trial.
Moss Williams, for plaintiffs in error.
Charles B. Selby, for defendant in error.
The only assignment of error argued in the brief of the plaintiffs in error is that the verdict of the jury is not sustained by sufficient evidence. One of the doctors, who attended the assured, testified that she died of inflammation of the stomach and bowels, while another testified that she died of tuberculosis. In this conflict the jury was the proper tribunal to say what was the cause of her death, and as they have found for the plaintiff we will not disturb the verdict. Avants v. Bruner, 39 Okla. 730, 136 P. 593; Peters v. Holder, 40 Okla. 93, 136 P. 400.
We therefore recommend that the judugment be affirmed.
By the Court: It is so ordered.