#### McAtee, Appellant, *v.*The Western & Southern Life Ins. Co., Appellee.

*133(No. 6940

Decided April 19, 1948.)

*Mr. John P. Boh,*for appellant.

*Messrs.*Kyte, *Gonlan <& Heehin,*for appellee.

Ross, J.

The plaintiff appeals upon questions of law from two orders of the Court of Common Pleas of Hamilton county, entered on the 9th day of December 1947. The case was tried to the court without a jury and resulted in a judgment for defendant. The only two orders of the trial court entered on that day 'were ‘(1) an entry overruling the plaintiff’s motion for judgment *non obstante veredicto*and (2) an entry ■overruling the plaintiff’s motion for a new trial.

The court, on the 22nd day of -October 1947, made .-and entered on its journal a finding in favor of the *134defendant. Final judgment was entered in favor of' the defendant, on October 23, 1947. Motions for judgment *non obstante veredicto*and for new trial were filed on October 25, 1947. These motions were-overruled on December 9, 1947.

Summons was served on the defendant on April 25, 1947. Section 11599-1, General Code, requiring motion for judgment *non obstante veredicto*to bellied before judgment did not become effective until September 27, 1947.

The motion for judgment *non obstante veredicto,.*under the practice in force at the time the action was commenced, was properly filed. The entry overruling that motion is a final order from which appeal on questions of law may be taken to the Court of Appeals.. *Cincinnati Goodwill Industries*v. *Neuerman,*130 Ohio St., 334, 199 N. E., 178; *Hoffman*v. *Knollman,*135 Ohio St., 170, 185, 20 N. E. (2d), 221; *Massachusetts-Mutual Life Ins. Co.*v. *Hauk,*72 Ohio App., 131, 51 N.E. (2d), 30.

It has been consistently held that the overruling of' a motion for new trial, where no final judgment is-entered, is not a final order or judgment from which an appeal to the Court of Appeals may be taken on questions of law. *Reliance Ins. Co.*v. *Pohlking,*27 Ohio Law Abs., 248; *In re Estate of Evans,*42 Ohio Law Abs., 7, 59 N. E. (2d), 161.

In 1945, the Legislature amended Section 11578,, General Code, and as to actions commenced after the effective date of such amendment, October 11,1945, motions for new trial were addressed to the final judgment of the court when approved in writing and filed for journalization, rather than as before to the verdict or decision of the court.

Where a motion for new trial is filed, usually the order overruling same will be the final *entry*in the-action.

*135The Court of Appeals, under the 1912 amendment of Section 6, Article IV of the Ohio Constitution, was ■given jurisdiction to review only “judgments” of courts of record inferior to the Courts of Appeals. By judicial construction, this term, “judgments,” was extended to include such “final orders” as had the dignity of judgments at the time of the adoption of the 1912 amendment. *Chandler & Taylor Co.*v. *Southern Pacific Co.,*104 Ohio St., 188, 135 N. E., 620; *Pilgrim Distributing Corp.*v. *Galsworthy, Inc.,*148 Ohio St., 567, 572, 76 N. E. (2d), 382.

By an amendment to Section 6, Article IV of the •Constitution of Ohio, the Legislature was given full power to provide for the review of “judgments and ■final orders” of courts of record inferior to the Court •of Appeals. This power was not as wide-as that conferred by the Constitution of 1851 upon the Circuit Courts, which provided that the Circuit Courts should have “such appellate jurisdiction as may be provided by law.” Even when-the Legislature acts it will be limited to provisions for review of “judgments and final orders.” And the meaning of those terms as used in the amendment will be limited as before by the scope of their definition as understood and accepted at the time of the adoption of the amendment.

The Legislature can no more designate an order final, which is not so in fact, than could it in the past, or now denominate an action a chancery case which •did not meet the requirements specified by judicial construction. *Borton*v. *Earhart,*144 Ohio St., 334, 59 N. E. (2d), 37.

It becomes unimportant, therefore, to determine whether the Legislature, as far as the jurisdiction of the Court of Appeals is concerned, has now attempted, or will in the future attempt, to clothe- the action of the *136trial court in overruling a motion for new trial with-, the dignity of a final order, if such action does not constitute a final order *within the purview of the-amendment.*However, it does become important to-determine whether the' action of the Legislature after the 1944 amendment of Section 6,' Article IV, has-changed the character of the action of the court in. overruling a motion for new trial by reason of the new function of a motion for new trial in its attack upon a judgment, rather than upon a verdict or decision.. Section 11578, General Code, amended, effective October 11, 1945.

In effect today the motion is now an application to-vacate a judgment as well as a motion for new trial.

In *Cox*v. *Cox,*108 Ohio St., 473, 141 N. E., 220, théSupreme Court sustained the judgment of the Court of Appeals in affirming an order of the court of Common Pleas overruling a motion to vacate a judgment of such trial Qourt. The question of the finality of the-order of the trial court in overruling the motion to vacate was not discussed, but apparently the Supreme-Court considered that the Court of Appeals had jurisdiction in appeal on questions of law.

In *Cox*v. *Cox,*104 Ohio St., 611, 136 N. E., 823,. this matter was definitely considered, and there can be no doubt that the Supreme Court, considered such action of the trial court in overruling a motion to vacate-a final order.

See, also, *Chandler & Taylor Co.*v. *Southern Pacific Co., supra,*and *Baldwin*v. *Lint,*53 Ohio App., 349, 5 N. E. (2d), 413.

It must be concluded, therefore, that the overruling-of a motion for new trial is a final . order in that as to actions commenced after October 11, 1945, the motion is essentially a motion to vacate a judgment as-well as a motion for a new trial.

*137Section 11576, General Code as amended and effective October 11, 1945, provides in part:

“A final order, judgment or decree, shall be vacated, ■and a new trial granted by the trial court on the application of a party aggrieved, for any of the following •causes affecting materially his substantial rights # * # ? ?

Such being the case, the appeal was properly taken from the action of the court on both motions and the assignments of error applicable to such action must be here considered. ' .

The action of the trial court on these motions will ■be considered as applicable to both motions.

The plaintiff in her petition states that she is the beneficiary of a certain policy of insurance issued by the defendant upon the life of William McAtee, who died on the 16th day of December 1946; that the amount •of such policy became due and payable to her but the defendant has refused to pay the amount of insurance, ■due her; that all premiums due under the policy have been paid; and that all conditions required to be performed have been duly and fully executed.

In the answer of the defendant, for a first defense, defendant admits the execution of the policy, the payment of the premiums, the amount of insurance, proof ■of claim, the death of the insured, demand and refusal ■of payment of the amount of the policy. Other allegations of the petition are denied.

For a second defense, the defendant alleges that the insured was not in sound health on the date of the ■delivery of the policy, as required by the terms thereof in order to fix liability upon the insurer, that upon •discovery of such facts the premiums paid by the insured were tendered plaintiff and refused, and the •defendant is ready and willing to pay such premiums, ■as the court may find due.

*138A reply was filed which is essentially a general denial of the allegations of the answer, inconsistent with the-allegations and claims of the plaintiff.

Upon the motion of the plaintiff for judgment *non obstante,*it must appear from the pleadings and evidence 'that the plaintiff is entitled to judgment as a matter of law, that is, giving the evidence of the defendant every reasonable construction in its favor, still the plaintiff should recover.

This contention of the plaintiff in this respect is-' predicated upon the claim that, when the defendant introduced an application for the insurance in evidence and it appeared in the application that the insured had’ stated that he was in sound health, and when it further appeared from the evidence that the defendant had failed to attach the application or a copy thereof to the policy delivered to the insured, the defendant by virtue of the terms of Section 9389, General Code, was thereafter forever precluded from denying such fact. An examination of the record shows the introduction of- a copy of the application in evidence by defendant, and that no copy thereof was attached to the policy or given the insured.

Section 9389, General Code, provides:

“Every company doing business in this state shall return with, and as part of any policy issued by it, to any person taking such policy, a full and complete-copy of each application or other document held by it which is intended in any manner to affect the force or validity of such policy. A company which neglects so-to, do, so long as it is in default for such copy, shall beestopped from denying the truth of any such application or other document. In case such company neglects-for thirty days after demand made therefor, to furnish-such copies, it shall be forever barred from setting up *139as, a defense to any suit 'on the policy, any incorrectness or want of truth of such application or other document.”

That section and its predecessor, Section 3623, Revised Statutes, have been considered several times by the courts of this state.

In *Lamarand*v. *National Life & Accident Ins. Co.,*58 Ohio App., 415, 16 N. E. (2d), 701, the third paragraph of the syllabus is:

“Section 9389, General Code, which provides that a copy of each application affecting an insurance policy shall be furnished the. insured, and that neglect or refusal to do so shall estop the insurer from denying the truth of any such application, does not prevent the insurer from defending on the ground that the insured was not in sound health at the date of application, bu¿ merely bars a defense on the ground of misrepresentation.”

An examination of the opinion shows that that holding was obiter dictum. On page 420 of the opinion it is stated:

“The jury, on the disputed evidence before it, returned a general verdict for the plaintiff and, in answer to special interrogatories submitted to it, said that the insured did not have cancer on March 12, 1934, and did not have cancer prior to that date, and was in sound health on that date. Upon the whole record we cannot say that the verdict is against the manifest weight of the evidence, or that there is not sufficient evidence to sustain it. This finding disposes of the claim of the insurance company that its motions for a directed verdict should have been sustained.

“The appellee, though successful, complains of a matter which requires our attention. Section 9389, General Code, provides as follows: * * *.”

*140The court, on page 422 of the opinion, cites the ca,se of *“Metropolitan Life Ins. Co.*v. *Howle, supra.”*Two-cases under that style are cited by the court on page 420 of the opinion; 62 Ohio St., 204, 56 N. E., 908, and 68 Ohio St., 614, 68 N. E., 4. In the first case, Section 3623, Revised Statutes, was not considered, but, on-the contrary, Section 3625, Revised Statutes, was. The first paragraph of the syllabus is:

“Section 3625, Revised Statutes, applies to false-answers to interrogatories in the application for a life insurance policy, but does not apply to conditions in the policy itself.”

Section 3625, Revised Statutes (now Section 9391,. General Code) provided:

“No answer to any interrogatory made by. an applicant, in his or her application for a policy, shall bar the-right to recover upon any policy issued upon such application, or be used in evidence upon any trial to recover upon such policy,- unless it be clearly proved’ that such answer is willfully false and was fraudulently made, that it is material, and induced the company to issue the policy, and that but for such answer the policy would not have been issued; and, moreover, that the agent or company had no knowledge of the falsity or fraud of such answer.”

Section 3623, Revised Statutes, is substantially present Section 9389, General Code.

In the second case, *Metropolitan Life Insurance Co.*v. *Howle,*68 Ohio St., 614, the court construed the application of Section 3623, Revised Statutes. The first paragraph of the syllabus is:

“Where under Section 3623, Revised Statutes, a ful! and complete copy of the application'for insurance has-not been returned with the policy, the insurance company while so in default is estopped from denying the-*141truth of such application, but to make such estoppel available the facts constituting the estoppel must be plead by the plaintiff.”

In the opinion, on page 617, it is stated:

“Upon the trial the defendant, insurance company, had a witness upon the stand with one of the applications for insurance in his hand, and was proceeding to prove that the answers to the several questions therein were made by said Sarah Howie, and that said answers were false, when counsel for plaintiff below objected on the ground that said defendant had failed to prove in open court that it had returned with said policy a complete copy of said application as required by Section 3623, Revised Statutes. The court sustained the objection, and excluded both of said applications, to which the defendant excepted.

*m** # * *#*

“Under the provisions of this section a failure to return a full and complete copy of the application with the policy, works an estoppel, so long as the company shall be in default, and in case of neglect to furnish such copy for thirty days after demand made therefor, such neglect shall be a bar to any and all defenses growing out of such applications and the answers to questions therein contained. The bar here provided for is a permanent estoppel. To make an estoppel or such bar available the facts constituting the same must be plead in all cases where the same is practicable.

“In this case the plaintiff below should have plead the estoppel in his reply, but instead of so doing he contented himself with a general denial, and thereby denied the existence of such applications. As the applications in this case in fact existed, he should have admitted that fact in his reply, and avoided their effect by pleading the failure to return copies, and thereby *142made the estoppel available. The defendant company wagi not required in its answer to say whether a full and complete copy of the application bad been returned with each policy or not. The denial of the existence ■of the applications might be taken as an argumentative denial of theii' return with the policies*, but pleadings should be direct and not argumentative. As the pleadings stood the court erred in excluding the evidence.”

It appears from a statement of that case at pages 615 to 617 that as its second defense the insurer- stated that the policies were issued because of false warranties in the application, and that the plaintiff filed only a general denial in the reply.

In the instant case, the application is not mentioned by either party. The defendant insurer defended upon the ground that the insured was not in sound health at the time such policy was delivered. The application was first brought into the case by the defendant, and was admitted over the objection of the plaintiff.

It would seem at first that the rule in the case of *Metropolitan Life Ins. Co.*v. *Howle,*68 Ohio St., 614, would apply, but a different situation is presented in the instant case. In the *Howie case,*the plaintiff was advised of the existence of an application by the insured, because the existence and force of such application was alleged by the defendant insurer in the answer. In the instant case, as far as anything in the pleadings or evidence shows, the first knowledge the beneficiary (who is the plaintiff) had of an application having been signed, executed, or delivered by her insured was when the defendant introduced such application in evidence. How can the plaintiff be required to plead facts constituting an estoppel of which she may be, and, as far as this record shows, was, wholly ignorant?

*143Such being the case, if it appears that such a plaintiff is not made aware of the existence of an application either in pleading or otherwise until such application is introduced in evidence by defendant, plaintiff may invoke the estoppel provisions of Section 9389; General Code, and the defendant is estopped to deny the truth of any statement contained in such application.

The dilemma of the defendant in the instant case is apparent. It needed the application in order to furnish a waiver, but when it introduced the application in evidence, the provisions of Section 9389, General Code, took effect and the *application*having stated the insured was in sound health at the time the *application*was signed the insurer cannot deny this fact. The application was signed on August 20,1946. The policy became effective August 26, 1946.

The insured died on December 16, 1946. The cause of death was cerebral hemorrhage. There is competent evidence that the decased consulted a physician on June 15, 1946, who recommended that he obtain an electrocardiagrám, because he found pain in the patient’s chest in the region of the heart. After the report was received, the physician told the insured he had “a condition suggestive of cardio-vascular disease, suggestive of it” and prescribed sedative and rest. This “disease” mentioned indicates an impairment of the veins of the heart. The physician who made the car diagram, on June 16, 1946, testified:

“Q. As the result of your examination of Mr. McAtee and as the result of the electro-cardiagram, what did you find his condition to be at that time? A. At that time my conclusion was that he had—

“(Question objected to by counsel for plaintiff; the objection was overruled and counsel for plaintiff excepted.)

*144“The Court: > All these questions of the doctor are objected to and overruled for the reason that I stated.

“A. My conclusions were that the evidence showed the existence of hyper-tension, systolic and diastolic, high blood pressure with some manifestations on the part of the blood vessels to the heart that we speak of as anginal pattern.

“Q. Is that a serious type of disturbance? A. It is a disease of circulation through the blood vessels of the heart and would necessarily have serious effects.

“Q. Did you send Mr. McAtee back to Dr. Cavanaugh? A. I referred the patient back.”

Now we are confronted with the positive fact that on August 20, 1946, the insured was in sound health. This is the effect of the • estoppel in the application. There is no evidence except that just mentioned that, after that date or on August 26, 1946, the insured was not in sound health. It may be argued that the disease from which the physicians - stated the insured was suffering could not be cured, that the cause of the death was directly attributable thereto, and that he must have still been suffering from it on August 26, 1946. This ignores the definite fact that the insurer is es-topped to deny that the insured was in *sound health*on August 20, 1946.

There being no evidence that after the date of the application or that on the date the policy became effective the insured was not in sound health, the plaintiff was entitled to judgment for the amount of the policy, the only defense being that the insured was not in sound health on the day the policy became effective.

Such being the case, the motion for judgment *non obstante veredicto*should have been granted, and this court, therefore, enters the judgment which the trial .court should have rendered and remands the case to *145the Court of Common Pleas of Hamilton county for execution of this judgment.

*Judgment reversed.*

Matthews, P. J., Ross and Hildebrant, JJ., concur in the syllabus, opinion and judgment.