Nyiry v. Modern Brotherhood
| Decision Date | 02 July 1915 |
| Docket Number | 14673 |
| Citation | 110 N.E. 943,92 Ohio St. 387 |
| Parties | Nyiry v. Modern Brotherhood Of America. |
| Court | Ohio Supreme Court |
Jurisdiction-Reversals-Weight of evidence-Error to enter final judgment, when-Duty to remand for new trial, when.
If the issues of fact are triable by jury, and there is some
evidence upon each essential element of such issues of fact, a reviewing court may reverse under the statute upon the ground that the verdict is contrary to, or against the weight of the evidence, but such finding does not authorize such court to enter a final judgment against the defendant in error. Its duty is to remand the case for a new trial.
On December 9, 1910, the defendant in error issued to John Nyiry a benefit certificate in the sum of $1,000, payable on his death to his wife, plaintiff in error. He died about the 1St of June, 1911. Suit was brought in the court of common pleas by the beneficiary against the defendant in error under the terms of the policy, in which petition in said action it was averred "that said plaintiff and John Nyiry each duly performed all the agreements and conditions of said benefit certificate on their part to be performed."
The defendant in error answered that some half dozen or more of the answers of said John Nyiry were untrue, especially the one in which he averred that to the best of his knowledge and belief he was in sound health and physical condition, and also the inquiry as to whether or not he had consulted a physician; that the issuing of the policy was based. upon the truth of the answers appearing In said application and policy, and but for such belief in their truthfulness the policy would not have been issued. There was later a subsequent issue raised as to mutual mistake, and a request for reformation of the contract.
Upon the issues joined the case was by the court of. common pleas submitted to the jury. The jury returned a general verdict for the plaintiff and returned a special finding of fact as follows:
Defendant in error filed its motion for judgment on the special finding, which was overruled. Motion for a new trial was also overruled and judgment entered on the general verdict.
Error was prosecuted to the court of appeals, which reversed the judgment of the court of common pleas "because the same is contrary to law and the evidence," and thereafter the court of appeals rendered final judgment in favor of the Modern Brotherhood of America.
Error is here prosecuted to reverse the judgment of the court of appeals.
Mr. T S. Dunlap; Messrs. Bauder & Searles and Mr. S. S. Ford, for plaintiff in error.
Mr James F. Walsh, for defendant in error. BY THE COURT.
The journal entry of the court of appeals in this cause is in the blanket form, "contrary to the...
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