SECOND REVERSAL ON WEIGHT OF THE EVIDENCE.

Court of Appeals for Cuyahoga County.

#### Modern Brotherhood of America v. Katie Nyiry.

Decided, July 2, 1917.

*Judicial Interpretation of Section 11577 Unchanged—Courts of Appeals May Grant More Than One Reversal on Weight of the Evidence—Failure of Jury to Apprehend Substance of Interrogatory.*

1. The authority of courts of appeals to reverse a case the second time on the weight of the evidence, as held ,by the Supreme Court in *Railway*v. *Pace,*was in no sense modified by the later opinion in *Railway*v. *Santoro.*

2. Section 11577, in which it was sought to deprive reviewing courts of this authority, is part of a chapter relating to the trial court, and in the absence of express words or of words creating the inference, said section can have no application to courts of appeals.

3. The right of reversal by courts of appeals is jurisdictional, and not procedural, and is granted by the Constitution, and so far as said section has application to courts of appeals it is in conflict with the Constitution.

*G. W. Collister*and *Jas. T. Walsh,*for plaintiff in error.

*T. S. Dunlap,*contra.

. Lieghley, J.

The parties stood in reverse order in the court below, and for convenience will be mentioned herein as they were below.

*220The plaintiff brought suit in the common pleas court upon a benefit certificate of the defendant company for the sum of $1,000, which covered the life of her husband, John Nyiry. Trial was had in the court of common pleas, which resulted in a judgment for plaintiff, from which judgment error was prosecuted to the court of appeals, and upon due consideration there-^ of the court of appeals reversed the judgment on the weight of the evidence and entered final judgment. Error was prosecuted to the Supreme Court of Ohio, which resulted in an affirmance of the judgment of the court of appeals reversing the ease ’on the weight of the evidence, and a reversal of that part of the judgment of the court of appeals in which it undertook to render final judgment. The case was remanded to the court of common pleas for further proceedings. The .cause again came on for trial, and resulted in a verdict for plaintiff upon which judgment was entered, from which judgment error is prosecuted to this court to reverse the same.

It appears from the record that the deceased was examined in August, 1910, by Dr. Evans, who found him suffering from enlarged spleen and liver. Again by him in March, 1911, at which time he found him afflicted in the same manner but with the disease somewhat progressed. The deceased took sick about January 26, 1911, afflicted with cirrhosis of the liver and a general dropsical condition. He was taken to the hospital and there examined by other doctors who diagnosed his condition the same. The doctor who examined him in January declared that he was in the tertiary stage; that the disease is divided into three stages, primary, secondary and tertiary, and that the disease had progressed to the most advanced stage. The doctors agree that considerable time is required for the development of this disease to the stage they found in him upon examination. In the early part of March he was in Lakeside Hospital and examined by the house physicians. Those doctors were called who testified as to the advanced stage of his disease and that the deceased told them that he had been suffering for over eight months therefrom. The proof is'overwhelming, when the testimony of the doctors and those who are presumed to know is considered, that the deceased in December, 1910, and thereto*221fore was afflicted with the disease of which he died about May-29, 1911.

In the early part of December the deceased was an applicant to membership in the society of defendant. The application is a part of the policy and contains questions to be propounded to the applicant and his answers thereto recorded, which are made warranties of the truthfulness thereof by the terms of the contract.

In the answer of defendant it is claimed that said application contains the following question-: ‘ ‘ When and by what physician were you last attended and for what complaint?” and that the answer recorded thereto is “No.” The defendant claims that •the answer to this question was false and untrue, and being a warranty defeats plaintiff’s right of recovery.

A reply was filed thereto by the plaintiff in which facts are plead to the effect that said question was never propounded to the applicant and the answer not given. Facts are plead in the reply which it is claimed constitute an estoppel.

Plaintiff sought to verify her position and more solidly establish her right to recover by calling a larger number of witnesses to testify as to the physical appearance and condition of the applicant at or about the time the certificate was issued. However, these witnesses could only testify as to appearances at that time aud were not such as were thoroughly qualified to pass upon the fact of whether or not the applicant was diseased in the manner overwhelmingly established by the medical proof in the case and the circumstances and facts developed by the proof.

The state of the evidence has not been changed in any respect from what it was when the case was here before for review, with this exception, that the jury was requested by interrogatory to answer the following question: “Did the examining physician for the defendant when he prepared the application of John Nyiry, ask of him the following question: ‘When and by what physician were you last attended and for what complaint?’ ” "The answer of the jury was: “John Nyiry was not asked the following question: ‘When and by what physician were you last attended and for what complaint?’ ” ■

*222The force of this interrogatory and answer thereto is rendered negligible by the state of the proof. The physician who examined him as an applicant testified that he did not ask that exact question; that he used the word “doctor” for “physician” and the word “sickness” for “complaint,” in order that he might the better reach the understanding of the applicant. He gave the exact substance of the question but not the exact words. In short, the request for special finding submitted to the jury was not.based upon the state of the proof in the case, and the jury could only truthfully answer “No,” for tbe defendant was not claiming that the question in the exact words was submitted, but claimed at all times and proved that the whole substance and the exact meaning of the question was put to the applicant, so that the special finding of the jury after all presents a new fact but one of little or no probative value.

We have therefore reached the conclusion that the state of the evidence is the same now as it was when the case was here before for review, and that the judgment of the court below should be reversed on the weight of the evidence, unless the established law of the state precludes us from a judgment of reversal.

Section 11577, General Code, reads as follows:

“The same court shall not grant more than one new trial on the weight of the evidence against the same party in the same case, nor shall the same court grant more than one judgment of reversal on the weight of the evidence against the same party in the same case.”

This section was formerly Section 5306, Revised Statutes, and received judicial interpretation in the case of *Columbus Street Railway Co.*v. Peace, 68 O. S., 200, the syllabus of which reads as follows:

“The provision in Section 5306, Revised Statutes, that: ‘The same court shall not grant more than one new trial on the weight of the evidence against the same party in the same case,’ has special and exclusive application to trial courts, and such provision does not operate as a limitation upon the power of the circuit court, as a court of error, to reverse a case any number of times, on the ground that the verdict of the jury in the trial court was against the weight of the evidence.”

*223In the opinion Crew, J., at page 209, says as follows:

“It was doubtless the design and purpose of the Legislature by the enactment of Section 5306, Revised Statutes, to thereby restrain the unlimited discretion of trial courts over verdicts of juries, whose peculiar province it is under our system of jurisprudence to determine the facts. But in the absence of any such expressed intention, or irresistible implication arising from the language employed in the statute itself, we think it could not have been intended by the Legislature by this act to limit, or take away the jurisdiction, or to restrict and limit the power of the circuit court to but a single reversal, on the ground that the verdict of the jury in the court below was against the weight of the evidence. To give this act a construction that would thus restrict the power of the circuit court, would, we think, be far more calculated to injure than to preserve, the usefulness of the trial by jury. ”

Section 11577, General Code, will be found in the chapter relating to the jurisdiction and procedure of trial courts. Presumably the Legislature had in mind only and was dealing solely with the subject about which it was legislating. Neither by express words nor by words that will reasonably bear the implication is this section made referable to any other court than the trial court. In the absence of such the presumption is strong that the application of the section is limited to the subject-mat-' ter being dealt with.

We are not unmindful of the case of *Mahoning Valley R. R. Co.*v. *Santoro, Admr.,*93 O. S., 53. If the syllabus states the law of the case, it is silent upon the subject of'the right of a court of appeals to reverse a case a second time upon the weight of the evidence. However, the opinion by a majority of the court deals with the subject. So far as the language of this case is concerned, the case of *Railway Co.*v. *Pace, supra,*was not considered, referred to nor disapproved. The dissenting opinion by Judges Donahue and Jones held that Section 11577, General Code, has no reference to courts of appeals; that the right of reversal is jurisdictional and not procedural: that the court of appeals now obtains its jurisdiction from the Constitution, where .formerly it was granted by statute, and that so fay as said section *224may be claimed to be applicable to the courts of appeals, the same is in conflict with the Constitution.

So that we hold that this court has jurisdiction to reverse the same case a second time on the weight of the evidence against the same party, for the following reasons:

1. Said section is a part of the chapter relating to the trial court, and in the absence of express words or of words creating the inference, said section has no application to courts of appeals.

2. That the right of reversal is granted to the court of appeals by the Constitution, is jurisdictional and not procedural, and if said section may be said to apply to this court to that extent it is in conflict with the Constitution.

We are supported in this opinion and we derive our authority for it from the case of *Railway Co.*v. *Pace, supra,*in which judgment all members of the court concurred. Also by the dissenting opinion of Judges Donahue and Jones in the case of *Railroad Co.*v. *Santoro, supra.*

Our opinion in this matter is opposed by the majority opinion in the case of *Railroad Co.*v. *Santoro, supra,*in which case, however, the syllabus is silent in respect to the subject-matter under consideration.

In this unsettled state of the lav/ as to what our jurisdiction is and what our right is in respect to reversing the same case a second time upon the weight of the evidence, we adhere to the opinion that we have jurisdiction to do so, and the judgment of the lower court is reversed and the cause remanded at the costs of the defendant in error.

Grant, J., and Carpenter, J., concur.