OPINION

Appeal on questions of law and fact from the Court of Common Pleas of Hamilton county.

The action was brought to recover from appellee the amount of a policy of insurance, conditioned upon the accidental death of the decedent insured.

The defense was that the decedent met his death as a result of an intentional killing, not caused by burglars or robbers.

The action, not constituting a chancery ease, the appeal should have been on questions of law only. Bond, however, was given, so that although erroneously appealed, the case here may be reduced to an appeal on questions of law.

A bill of exceptions was filed in the Court of Common Pleas and this court.

The record conclusively shows that the decedent was sitting in his yard, that he was called out to the fence along the street by a man alighting from an automobile, that this man asked decedent if he was Jim Rolls, and upon his answering in the affirmative, shot and killed him.

The evidence is conclusive that the killing was intentional and not by a burglar or robber.

No motion was made for an instructed verdict by appellant, or for judgment non obstante veredicto. We, therefore, remand the case for a new trial, for the reason that the verdict is manifestly against the weight of the evidence.