(after stating the facts). The learned trial judge in charging the jury said the following with reference to the claim of an estoppel:

“* * * The plaintiff .further claims that, even though Dr. Cameron did make certain untrue statements touching his habits regarding the use of intoxicating liquors and certain named drugs, defendant is now estopped from interposing such defense, for the reason that Minnie D. Batemen, the recorder, informed Frederika C. Runner, deputy Supreme Oracle, about the habits and life of Dr. Cameron after his initiation in the local lodge, which was January 17, 1911, and before the delivery to him of the policy on January 22, 1911. Now, if you are satisfied by a fair preponderance of the evidence, and the burden is upon the plaintiff to satisfy you of this claim first, if you are satisfied by a fair preponderance of evidence that Minnie D. Bateman did inform Frederika C. Runner that Dr. Cameron was in the habit of drinking intoxicating liquors and used drugs before the delivery to him of the certificate or policy, then the defendant would be estopped from interposing such matters as a defense to the recovery upon the policy.”

*177The only testimony in support of this claim is that of Minnie Bateman-, which is as follows:

“Q. Now, Mrs. Bateman, what did you tell Frederika C. Runner after the initiation and before the delivery of the policy?

“Mr. Kelley: I object to it as immaterial and for the reasons before stated.

“The Court: Take the answer.

“Mr. Kelley: Exception.

“A. I told her that it had been rumored about the doctor’s condition and the circumstances.

“Q. What did you tell her?

“A. That he was a user of liquor and was a drug fiend.

“Q. What did she say?

“A. She didn’t believe it she said.

“Q. (showing witness a paper). Did she sign that policy afterwards?

“A. She did.”

We are of the opinion that there is not sufficient testimony in this record upon which the claim of estoppel could be based, and that therefore the trial judge erred in submitting that question to the jury. The testimony, in our opinion, was incompetent as hearsay. All the knowledge that Mrs. Bateman claims to have was as she states a rumor that Cameron was a user of liquor and a drug fiend. Mrs. Runner, the representative of the Supreme Camp, at the time had the sworn, unequivocal statement of the assured in his application which had been passed upon and accepted by the Supreme Camp. A mere rumor communicated to her was not such knowledge as could be made the basis of an estoppel. The plaintiff having asserted a waiver and estoppel, the burden of proving knowledge on the part of the defendant rested upon her. This, in our opinion, she has failed to do.

Assignments of error are also based on the failure of the court to grant the defendant’s motion for a *178directed verdict and because of the failure of the court to grant the motion for a new trial on the ground that the verdict was against the weight of the evidence. The disputed questions of fact were submitted to the jury, and we are not satisfied that this was so clearly against the weight of the evidence as to warrant us in overruling the action of the trial court in denying a motion upon this ground. In our opinion, the questions of fact were properly submitted to the jury. However, the case should be reversed for the error before referred to.

The judgment is reversed, and a new trial granted, with costs to the appellant.