“When the defendant made this motion, he came within the rule announced in Ellis & Morton v. Ohio Life Ins. & Trust Co., 4 OS. 628.

By the admissions which the defendant made, in contemplation of law by said motion, the plaintiff had established that he was the duly appointed and qualified executor of decedent’s estate, that he had made proper proof of decedent’s death, that the amount due upon both policies was in the sum of $244.36, that the defendant company admitted that the claim had been approved for the amount specified, that he had been recognized as the proper claimant for the same, and that a check for said amount had been made out for him and would be promptly delivered.

These admissions brought the plaintiff within the. first clause of the policy and established plaintiff’s case, and put the defendant upon proof to overcome the same, and it was prejudicial error for the trial court to direct a verdict in favor of said defendant.

In the reply of the plaintiff, he relied upon an estoppel to overcome the defense of payment made by said company, to said niece, of the proceeds of said first policy, the company having admitted liability, and made payment to the plaintiff, of the amount due upon the other.

In the trial, the plaintiff attempted to prove, in his case in chief, although out of order, his estoppel, by certain facts — being substantially that immediately after decedent’s death he went to the office of defendant company in Akron and informed the agent, there in charge, of the death of said decedent, and that the agent told him to proceed with the funeral and that the company would later pay him the amount due upon both policies; that, in reliance upon this assurance of said agent, the plaintiff contracted undertaker’s bills, and that said company, in disregard of the promises of its said agent, paid the proceeds of the first policy to another.

The plaintiff was prevented from proving these essential facts of his alleged estoppel by the objection of the defendant’s counsel, and in each instance the plaintiff took his exception to the ruling of the court, and the bill of exceptions shows, in part, what he expected to prove to sustain his estoppel. These objections, as shown by the record, were not made or sustained upon the ground that the plaintiff was prematurely attempting to prove the estoppel set up in the reply but upon the theory that defendant could not be estopped from exercising its rights to make selection as provided in the facility of payment clause. Although prevented from showing all of the essential facts claimed by him, the plaintiff was permitted to show some of them, which, in addition to the card sent him by defendant, tend to prove the estoppel claimed by him.

The only witness offered was the plaintiff, and, after he had been examined and then cross-examined, the plaintiff rested his case. *288 Thereupon, over the objection and exception of the plaintiff, the defendant was permitted to recall the plaintiff and further cross-examine him and have him identify certain exhibits of the defendant, and then, over the objection and exception of the plaintiff, the defendant was permitted to offer each of these exhibits (six in number) in evidence.

The trial court committed serious error, prejudicial to the plaintiff, in permitting, in effect, the defendant to open plaintiff’s case after he had rested, in allowing- said defendant to offer evidence in passing’ upon defendant’s motion for a directed verdict in its favor. Of course, the court was incompetent to reopen plaintiff’s case over his objection and permit this evidence to be offered.

EIGHT — 142—LAW AB CO DH 5-1

The plaintiff concedes to the defendant, under this policy containing the facility of payment clause, the right to make payment to the person equitably entitled to receive the proceeds of the policy when the rights of others have not intervened, but he claims that if he had been permitted by the trial court to introduce all of his evidence, he would have, shown that the defendant did make an election, as permitted by the policy, and designated the plaintiff as the one to whom it would make payment of the proceeds of both of said policies, and that, relying upon said designation and election by said company, the plaintiff contracted debts for the burial of said decedent, which he would not otherwise have done.

In our opinion the trial court, for the reasons assigned by it for so doing, committed prejudicial error in refusing to permit the plaintiff to prove the estoppel he claimed to have, because if he had proved his estopnel, the defendant could not make its second election, to his injury. This principle of estoppel is fully recognized in the following' cases: Met. Life Ins. Co. v. Johnson, 121 Ill. App. 257; Shea v. U. S. Ind. Ins. Co. 23 N. Y. App. Div. Sup. Ct. 53.

. Por the reasons stated, the judgment of the Court of Common Pleas is reversed and the cause remanded, with instructions to try the issues made in the pleadings in accordance with the rules of procedure prescribed by the civil code of this state.”