Shields v. Supreme Council , 8 Ohio Law. Abs. 341 ( 1930 )

WILLIAMS, J.

Plaintiff in error relies upon waiver of the provisions of the policy by the establishment of a custom of giving notice. There is some question whether the return of the so-called card constituted the giving of notice, but if we assume, for the purposes of argument, that it did, and that the course of action was such as to constitute a waiver of the provisions of the policy as to payment without notice, we are still confronted with a conflict in the evidence as to whether or not the card was in fact returned. The collector maintained that the card was treated like all other cards that were received and that all were returned, and the plaintiff in error adduced evidence tending to show that it was never received.

The trial court was warranted in believing the testimony of the collector and disbelieving the testimony adduced to the contrary, and, therefore, in finding that notice was given by returning the card. We can not say that the decision of the court is manifestly .against the weight of the evidence and, finding no reversible error apparent on the face of the record, the judgment must be affirmed.

Richards, P., concurs.