The opinion
CALDWELL, Circuit Judge
(dissenting). The opinion of the court lays down propositions to which I cannot yield my assent. There is no rule of law which declares that every man is perfectly familiar with his health and physical condition. Many men are afflicted with fatal maladies who are profoundly ignorant of the fact. It is not the invariable practice of insurance companies to refuse to issue a policy until the premium has been paid; credit is frequently given. If the contract of insurance was complete before the evidence of the contract — the policy — was delivered, and before the sickness and death of the insured, it is immaterial what was said and done by the insured’s stenographer at or before the time of the delivery of the *643 policy and the payment of the premium. Nothing she said or did could affect the validity and binding force of the previously completed contract, if one existed. The question of fact whether there was a completed and binding contract for insurance prior to the delivery of the policy and the payment of the premium was submitted to the jury upon voluminous and conflicting testimony, under instructions which are not subject to any just exceptions. The jury found there was such a contract. This verdict of the jury is overthrown by the court on the strength of presumptions which are unknown to the law. There is no presumption of law that all contracts for insurance are in writing. It is' well settled that a verbal contract of insurance is not within the statute of frauds, and that it is as binding and effectual as a written one; and in a suit upon such a contract the rule of evidence is the same that it is in a suit upon any other lawful contract, viz. the party setting it up must prove it by a preponderance of the evidence. The plaintiffs in this case discharged all the burden imposed upon them by the law when they proved the contract to the satisfaction of the jury. The law raised no presumptions against them or the weight of the evidence. The exact nature of the “presumption” relied on as one of the grounds for setting aside the verdict of the jury is not defined by the court. Whether it is one of fact or one of law, and whether it is conclusive or may be rebutted, and, if open to rebuttal, the nature and degree of the evidence required to overthrow it, are questions not discussed in the opinion of the court. If the policy was not delivered, and the premium was not paid, before the sickness or death of the insured, these facts did not preclude the plaintiffs from showing, as they did to the satisfaction of the jury, that there was a valid verbal contract for the insurance, and that time was given for the payment of the premium: and, as the insurance might lawfully have been effected in this way. there is no presumption of law that it was not so done. Lisbon v. Lyman, 49 N. H. 553. To hold otherwise is to confound the distinction between facts and circumstances and presumptions.