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344 F2d 953 Fidelity and Guaranty Life Insurance Company v. I Richardson

344 F.2d 953

FIDELITY AND GUARANTY LIFE INSURANCE COMPANY, Appellant,
v.
Iva I. RICHARDSON, Appellee.

No. 21834.

United States Court of Appeals Fifth Circuit.

May 4, 1965.

Paul R. Larkin, Jr., James E. Tribble, Samuel J. Powers, Jr., Blackwell, Walker & Gray, Miami, Fla., for appellant.

George L. Knight, Hyzer, Knight & Lund and John West, Miami, Fla., for appellee.

Before TUTTLE, Chief Judge, and PHILLIPS,* and WISDOM, Circuit Judges.

PER CURIAM.

1

In this suit on a life insurance policy the insurer appeals from a judgment in favor of the plaintiff based on a jury's special verdict. The jury found that the policy was in effect on the date of the assured's death. The insurer contends that there was insufficient evidence to support the jury's verdict; and that the trial court erred in denying his motions for a directed verdict, judgment n. o. v., and new trial.

2

No good purpose would be served by reviewing the evidence at length. The case turned on whether Mrs. Richardson, the assured's widow, paid two or three premiums. Mrs. Richardson testified that she paid three premiums, two by check and one in cash delivered to the agent who sold the policy. The agent, whom the plaintiff called to the stand, testified on cross-examination, that he was not given any cash in payment of the disputed premium. His testimony produced a conflict; it did not impeach Mrs. Rlchardson's testimony. We cannot say that Mrs. Richardson's testimony was cancelled out by the agent's. Nor can we say that the jury acted irrationally in crediting her testimony. On the record, there was sufficient evidence (1) for the case to go to the jury, (2) to support the jury's finding, and (3) to justify denial of a new trial.

3

The judgment is affirmed.

Notes:

*

Senior Judge of the Tenth Circuit, sitting by designation