Blackman v. Woodmen of the World

Clare:, C. J.

The production by the plaintiff of the certificate duly authenticated, and evidence that the insured had died, and that the plaintiff was tbe widow named as beneficiary in tbe policy wbicb sbe produced in open court, made out a prima facie case, wbicb required tbe refusal of a motion to nonsuit. Tbe production of tbe policy was prima facie evidence of its delivery by tbe defendant, and on its face was- prima facie proof of bis induction into tbe order as therein recited.

Tbe defendant also asked for nonsuit upon tbe issues as to tbe false allegations as to tbe insured not having certain diseases alleged, and other statements in tbe policy. But these were matters in defense, the burden of proof of wbicb rested upon tbe defendant, and a nonsuit was-therefore properly refused. Tbe defendant moved for a nonsuit at tbe close of tbe plaintiff's evidence, but as tbe defendant, upon tbe denial of' such motion, introduced evidence, be waived tbe exception for a denial of tbe motion. Tbe plaintiff thereupon, in reply, introduced other-evidence, and tbe defendant’s demurrer at tbe close of all tbe evidence was properly overruled, and tbe jury, as already stated, found against tbe defendant upon all tbe issues.

Under tbe former system of procedure, when a defendant demurred to tbe evidence or moved for a nonsuit, it was not admissible for him tO' introduce evidence. By C. S., 567, it is now provided that when the-plaintiff rests, if a defendant moves to nonsuit, or demurs to tbe evidence,, and tbe motion is denied, be is allowed to introduce evidence, but when be does so be waives tbe exception, and if tbe motion to nonsuit is. renewed at tbe end of all tbe evidence, bis exception must be considered in tbe light of all tbe evidence when tbe last motion is made.

In this case there was ample evidence to be submitted to tbe jury, who have found all issues in favor of tbe plaintiff. Tbe appeal was argued in this Court almost entirely upon tbe question of nonsuit. Tbe other exceptions do not require to be discussed.

No error.