#### The People, ex rel. E. R. Leonard, Appellant, v. The Equitable Life Insurance Society of the United States, Appellee.

Peremptory instruction—when should he given. Where there is no evidence tending to prove the plaintiff’s cause of action alleged in his declaration, a peremptory instruction should he given for the defendant.

Action of debt. Appeal from the Circuit Court of Union county; the Hon. William N. Butler, Judge, presiding.

Heard in this court at the February term, 1908.

Affirmed.

Opinion filed September 12, 1908.

James Lingle, for appellant.

Mayer, Meyer & Austrian and Crawford & Crawford, for appellee.

Mr. Justice Myers

delivered the opinion of the court.

This is an appeal from, a judgment in favor of appellee upon a directed verdict, in an action of debt, brought by the state’s attorney of Union county on the relation of an informer, against appellee, and tried at the November term, 1907, of the Circuit Court of Union county. The action was one' to recover the penalty provided by the insurance statute of this state (oh. 73, secs. 27-30 Hurd’s Rev. St.), which prohibits insurance companies transacting business in this state from making any distinction or discrimination in the established rates or premiums exacted, between insurants of the same class and equal expectation of life. The declaration contained four counts, each of which charged that the Equitable Life Assurance Society (appellee) executed and delivered a certain policy or policies of insurance and charged and collected premiums thereon less than the established rate of premium charged other insurants of the same class. To this declaration the defendant pleaded the general *497issue. The case was tried by a jury and at the close of plaintiff’s evidence he dismissed his suit as to all counts except the first, whereupon the defendant asked for and obtained a peremptory instruction to the jury to find for the defendant, and the jury returned a verdict accordingly. Motion for new trial and in arrest of judgment were made successively and overruled by the court. From a judgment on the verdict the plaintiff appealed to this court.

Counsel on both sides have elaborated in brief and argument upon propositions which are wholly outside the question that must determine this appeal. Appellant submitted his case upon the first count alone and we find in the abstract no evidence offered or excluded tending to prove material allegations contained in the first count. That being the condition of the record the peremptory instruction and judgment necessarily follows, whatever may have been the court’s views as to cumulative penalties or measure of damages under the statutes. The first count alleges that the defendant on the 14th day of February, 1906, was a life insurance company doing business in Union county; that it issued a policy of insurance for $1,000 to one Ira P. Keith, 38 years old, for which it charged $8.14; that the defendant’s established premium for persons of that age was $44.99, whereby the defendant violated the statutes prohibiting discrimination, etc. In the search for evidence we have gone beyond the abstract, which is barren of any proof, and have examined the record in vain for evidence of any of the material allegations as above recited. There is no evidence or offer of a policy issued, premium paid or an established rate.

Appellant complains of the limitation to which he was subjected by the court in the opening statement to the jury and of the construction given the statute by the court in ruling on objections made by counsel for appellant. There being no evidence in proof of *498the declaration the question argued by counsel may be of interest as an abstract proposition, but has no bearing in determining whether the judgment should be affirmed or reversed, and whether counsel or court correctly construed the statutes is not a question made by the record and calling for a decision by this court in disposing of the case.

We therefore deem it unnecessary to consider further the matters discussed in brief and argument. The judgment will be affirmed.

Affirmed.