#### Shaper, Appellant, *v.*The National Life & Accident Ins. Co., Appellee.

(No. 2063

Decided April 14, 1950.)

*Mr. Otterbein Creager,*for appellant. •

*Messrs. Belgel é Mahrt*and *Mr. James E. Stubbs,*for appellee.

Miller, P. J.

The question presented by this appeal is whether the trial court erred in directing a verdict for the defendant at the close of all the evidence. The action was one to recover death benefits under the terms of a life insurance policy. One of the defenses set up in the answer was that the insured was not in good health at the time of the issuance of the policy. The policy provided that it was not to take effect as *296an obligation of tbe defendant unless the insured was in good health at the time of its delivery.

In order to maintain its defense the defendant offered as its own witness Dr. Lawrence Gough who testified that he had been the insured’s physician for a number of years; that he had treated her for high blood pressure. and migraine headaches at his office for a number of years beginning in 1939; that he gave her sedatives and xerescribed that she cut down on her eating and slow down -her' activities; that he once ordered her to a hospital for rest and observation, and “nothing organic could be found”; that he never called on her at her home but she always came to his office; that approximately 35 per cent of his medical patients had high blood pressure; that insured died in his office on the evening of February 2, 1948; and that he filled in her death certificate, naming the cause of death as coronary thrombosis and occlusion, and giving malignant lxypertension, duration 1939, as other conditions. He also related facts from which the inference of lack of good health on March 17, 1947, the delivery date of the policy, might have been made.

The defendant also called as a witness Dr. W. L. McCowan, the defendant’s medical examiner, who testified concerning his examination of the insured, and that there being nothing to suggest she was suffering from high blood pressure he did not take the same, as it was not required for the size of the policy being issued. There is, however, a conflict in the testimony as to whether Dr. McCowan took the blood pressure of the insured. The plaintiff testified that he was present when the examination was made and that her blood pressure was taken; that he knew the method of taking one’s blood pressure, as his had been taken by Dr. Gough sometime xn’ior thereto. The defendant’s *297agent testified that he regarded her as being in good health when he delivered the policy. The plaintiff and numerous other witnesses who had observed the insured in her place of business all testified as to her apparent good health at the time of the delivery of the policy.

The questions presented are: (1) Was the testimony of these lay witnesses of any probative value, since the medical testimony was to the effect that the insured’s illness was not apparent but could be detected only upon physical examination?; and (2) was there any evidence tending to establish that the insured was in good health at the time of the issuing of the policy?

The defendant cites the case of *Magyar, Admx.,*v. *Prudential Ins. Co. of America,*133 Ohio St., 563, 15 N. E. (2d), 144, wherein the court, in considering the first question, held “that the only evidence of any probative effect respecting the actual physical condition of the insured at the time of the issuance of his policy was that of the physicians referred to, and therefore that there is no conflict whatever in the evidence adduced which may be considered to be of probative value upon the sole issue in that case.”'

In the *Magyar case*the only evidence, other than medical, touching the condition of the insured’s health at the time of the issuance of the policy was the testimony of the insured’s son and a former agent of the defendant, that the- insured then looked or appeared in good health, and also the testimony of the widow that the insured was in good health before his last sickness. The facts in that case are not identical with those in the case at bar. The plaintiff cites the case of *Vida*v. *Metropolitan Life Ins. Co.,*which ivas decided in the same opinion as the *Magyar*case, as supporting his contention. In that ease the court held *298that, since there was evidence in the record that the medical witness had not made the examination concerning which he testified, and other witnesses had testified as to the good health of the insured, there was a direct and vital conflict of evidence upon the only issue in the case and it should be determined by the jury.

In the case at bar there was no denial that the medical witness had seen, examined and treated the insured as he had testified, but there is a conflict in the testimony as to the taking of the insured’s blood pressure. Whether it was taken was a question of fact, for the determination of the jury. Should it have resolved this question in the affirmative a reasonable inference would have been that she was not suffering from high blood pressure as claimed, or the same would have been reported by the examining physician.

An inference is a permissible deduction which the-jury may make without express direction of the law to that effect. If different inferences may be drawn from the evidence it is the function of the jury and not of the court to draw those inferences from the evidence and to find ultimate conclusions of fact. Should the jury conclude that the examining physician found no indication of high blood pressure this would be some evidence tending to indicate that the insured was in good health. That determination would not be based upon the testimony of lay witnesses as against that of medical men, but would be based upon an inference as to a condition found to exist by the examining physician, to wit, no high blood pressure.-

It is our conclusion that the testimony of the lay-witnesses was of itself of insufficient probative value-in this case to carry it to the jury *(Magyar*v. *Prudential Ins. Co., supra),*but based upon the medical testi*299mony and that of the lay witnesses there was some evidence from which the jury could find that the insured was in good health at the time of the issuing of the policy. The defendant does not urge, and, we do not find, that the instructed verdict could be sustained under the second defense.

The judgment is, therefore, reversed and the cause remanded for a new trial.

*Judgment reversed.*

Hornbeck and Wiseman, JJ., concur.