Summary
In McAtee v. Western Southern Life Insurance Co., 82 Ohio App. 131, 81 N.E.2d 225, the court held that in an action commenced after October 11, 1945, an order overruling a motion for new trial is a final order.
Summary of this case from Jolley v. Box Co.Opinion
No. 6940
Decided April 19, 1948.
Appeal — Motion for judgment non obstante veredicto — Includes motion to vacate judgment — Time for filing — Questions presented thereby — Order overruling such motion, a final order — Motion for new trial — Addressed to judgment, not verdict or decision — Order overruling same, not final order — Court of Appeals — Appellate jurisdiction — Section 6, Article IV, Constitution — Review of judgments and final orders — "Judgment" of court of record defined — "Judgments and final orders" construed — Legislative power to control meaning of "final order" — Motion for new trial also an application to vacate judgment — Procedure applicable to filing — Motions addressed to judgment — Sections 11578 and 11576, General Code — Life insurance — Insurer estopped to deny truth of application, when — Failure to return copy of application with policy — Section 9389, General Code — Estoppel available only when facts pleaded — Beneficiary entitled to benefits of estoppel, when — Estoppel effective as to health only on date of application — Effect of estoppel not abrogated by evidence, when.
1. In an action commenced prior to September 27, 1947, a motion for judgment non obstante veredicto may be filed after judgment in a case tried to the court without a jury, even though the trial court has journalized a finding for one of the parties.
2. The entry of the trial court overruling such motion is a final order from which an appeal upon questions of law may be taken to the Court of Appeals.
3. In actions commenced prior to October 11, 1945, the entry overruling a motion for new trial is not a final order.
4. In actions commenced after October 11, 1945, the motion for new trial, by virtue of Section 11578, General Code, effective October 11, 1945, must be addressed to the judgment of the court and not, as in actions commenced prior to such date, to the verdict or decision of the court.
5. By virtue of the amendment to Section 6, Article IV of the Constitution of Ohio (September 3, 1912), the Court of Appeals was given jurisdiction to review "judgments" of courts of record.
6. Such term, "judgments," has been judicially construed to comprehend "all decrees and final orders rendered by a court of competent jurisdiction and which determined the rights of the parties affected thereby."
7. By amendment to Section 6, Article IV of the Constitution of Ohio, effective January 1, 1945, the Legislature is given power to provide for review of "judgments and final orders" of courts of record.
8. Such terms, "judgments and final orders," as used in such amendment are construed to mean such orders of courts of record as had been at the time of the adoption of such amendment judicially determined to be within the comprehension of such terms.
9. Although the Legislature may not by statute include within the purview of the term, final order, an order not so judicially determined to be such, it may by lawfully changing the procedure in a trial court so affect the character of an order as to give it a meaning and application not formerly included within its interpretation.
10. By virtue of Section 11578, General Code, effective October 11, 1945, the Legislature has changed the procedure applicable to the filing of motions for new trial, and, by virtue of Section 11576, General Code, effective October 11, 1945, has provided that such motions are addressed to the judgment and are applications to vacate such judgments as well as motions for new trial.
11. In actions commenced after the effective date of such sections, the action of the trial court in overruling a motion for new trial, including as it does in effect the overruling of a motion to vacate a judgment, is a final order from which appeal on questions of law may be taken to the Court of Appeals.
12. The question raised by a motion for judgment non obstante veredicto filed by a plaintiff is whether the pleadings and evidence presented in the case show that the plaintiff is entitled to judgment as a matter of law, and the defendant is entitled to the benefit of the most favorable, reasonable construction of the pleadings and all the evidence.
13. Where, under Section 9389, General Code, a full and complete copy of an application for insurance has not been returned with the policy, the insurance company while so in default is estopped from denying the truth of such application, but to make such estoppel available the facts constituting the estoppel must be pleaded by the plaintiff.
14. Where the existence of an application for insurance is not mentioned in the pleadings and for the first time knowledge of its existence appears in evidence introduced by the defendant insurer, the plaintiff beneficiary of a policy of insurance issued pursuant to such application is entitled to the benefits of estoppel provided for in Section 9389, General Code.
15. The estoppel provided for in Section 9389, General Code, is only effective as to the sound health of the insured on the date of the application and does not affect the right of the insurer to show lack of sound health thereafter on the date the policy became effective.
16. Even though the insurer introduces substantial evidence showing the insured was not in sound health prior to the date of the application, and evidence that insured was not in sound health after the effective date of the policy, the effect of the estoppel created by statements in the application is not abrogated, unless there is substantial evidence that insured was not in sound health after the date of the application and when such policy became effective, even though the policy provides that it shall be void if the insured was not in sound health on its effective date.
APPEAL: Court of Appeals for Hamilton county.
Mr. John P. Bok, for appellant.
Messrs. Kyte, Conlan Heekin, for appellee.
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 defendant. 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 be filed 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.
The 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 trial 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, the Supreme 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 court. 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.
Section 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.
A 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 be estopped 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 as 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, but 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: * * *."
The court, on page 422 of the opinion, cites the case 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 full 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 truth 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 Howle, 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.
* * * * *
"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 made the estoppel available. The defendant company was not required in its answer to say whether a full and complete copy of the application had been returned with each policy or not. The denial of the existence of the applications might be taken as an argumentative denial of their 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 Howle 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?
Such 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 electrocardiagram, 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 cardiagram, 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.)
"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 estopped 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 the 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.