
    BRACALE et v MONUMENTAL LIFE INSURANCE CO.
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 18142.
    Decided July 15, 1941
    Geo. E. Beach, Cleveland, for plaintiffs-appellants.
    Bushnell, Burgess & Fulton, Cleveland, for defendant-appellee.
    GUERNSEY,' PJ. (3rd Dist.); STEVENS, J., DOYLE, J. (9th Dist.), sitting by designation.
   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.  