Bracale v. Monumental Life Insurance

Ohio Court of Appeals

Bracale v. Monumental Life Insurance

37 N.E.2d 437, 34 Ohio Law. Abs. 512, 1941 Ohio App. LEXIS 939

CourtOhio Court of Appeals

DecidedJuly 15, 1941

DocketNo 18142

StatusPublished

This text of 37 N.E.2d 437 (Bracale v. Monumental Life Insurance) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bracale v. Monumental Life Insurance, 37 N.E.2d 437, 34 Ohio Law. Abs. 512, 1941 Ohio App. LEXIS 939 (Ohio Ct. App. 1941).

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Opinion

ON. MOTION TO CERTIFY BECAUSE OF CONFLICT

OPINION

BY THE COURT:

In the instant case a jury was waived and both plaintiff and defendant introduced all their evidence and rested before defendant moved-for judgment on the issues of law and fact.

In the absence of such a motion, a jury having ueen waived and all the evidence having been submitted, it was the duty bf the court to determine the issues of law and fact, and the submission of the motion did not in any way change or affect the duty of the court in this respect.

The judgment of the court, therefore, is one upon the issues, of law and fact and its presumed finding- of fact upon which the judgment is based is sustained by the evidence.

This being the case, there is no conflict between the judgment of this court affirming the judgment of the trial court in favor of the defendant, and the judgment of the Court of Appeals of the Second District, Franklin County, Ohio, on rehearing, in the case of Campbell v Monumental Life Insurance Company, reported in 32 Abs 107, affirming a judgment in favor of .the plaintiff in a similar case, where, as shown by the report of the original submission of the case, 31 Abs 420, the jury, upon a special interrogatory submitted to it, found in favor of the plaintiff upon an issue of fact similar to the issue of fact which the court in the instant case presumably found in favor of the defendant on the evidence.

GUERNSEY. PJ., STEVENS, J., DOYLE, J., concur.

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ON. MOTION TO CERTIFY BECAUSE OF CONFLICT

OPINION

BY THE COURT:

In the instant case a jury was waived and both plaintiff and defendant introduced all their evidence and rested before defendant moved-for judgment on the issues of law and fact.

In the absence of such a motion, a jury having ueen waived and all the evidence having been submitted, it was the duty bf the court to determine the issues of law and fact, and the submission of the motion did not in any way change or affect the duty of the court in this respect.

The judgment of the court, therefore, is one upon the issues, of law and fact and its presumed finding- of fact upon which the judgment is based is sustained by the evidence.

This being the case, there is no conflict between the judgment of this court affirming the judgment of the trial court in favor of the defendant, and the judgment of the Court of Appeals of the Second District, Franklin County, Ohio, on rehearing, in the case of Campbell v Monumental Life Insurance Company, reported in 32 Abs 107, affirming a judgment in favor of .the plaintiff in a similar case, where, as shown by the report of the original submission of the case, 31 Abs 420, the jury, upon a special interrogatory submitted to it, found in favor of the plaintiff upon an issue of fact similar to the issue of fact which the court in the instant case presumably found in favor of the defendant on the evidence.

GUERNSEY. PJ., STEVENS, J., DOYLE, J., concur.

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Bluebook (online)

37 N.E.2d 437, 34 Ohio Law. Abs. 512, 1941 Ohio App. LEXIS 939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bracale-v-monumental-life-insurance-ohioctapp-1941.

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