Opinion
3 Div. 21.
November 10, 1932. Rehearing Denied December 22, 1932.
Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.
John S. Tilley, of Montgomery, for appellant.
T. E. Martin, of Montgomery, for appellee.
The life insurance policy sued upon stipulated that the insurer assumed no obligation, unless on the date of the policy the insured was in sound health.
By special plea, defendant alleged that on said date the insured was afflicted with pulmonary tuberculosis, and continued to suffer with such disease until his death.
The evidence was chiefly directed to this issue. On this appeal the main insistence is that the motion for a new trial should have been granted upon the ground that such plea was sustained by the great weight of the evidence.
The evidence has been read and considered in conference. Without question, the insured was sent to the tuberculosis camp in Montgomery by his physician sixteen days after the date of the policy, and he died from pulmonary tuberculosis.
Allowing all due presumptions in favor of the verdict of the jury and the ruling of the trial court, we are convinced the verdict is opposed to the great weight of the evidence.
With a clear conviction that the verdict was wrong and unjust, our duty is to set it aside. Southern Railway Co. v. Grady, 192 Ala. 515, 68 So. 346.
The judgment is accordingly reversed, and one here rendered granting a new trial.
Reversed, rendered, and remanded.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.