
    CIRCUIT COURT JUDGMENTS ON WEIGHT OF THE EVIDENCE.
    [Circuit Court of Hamilton County.]
    Michigan Mutual Life Insurance Co. v. Abner L. Whittaker, Administrator of John C. Dexter.
    
    Decided, January 26, 1907.
    
      Life Insurance — Payment of Policy Declined — For Failure of Applicant to Disclose Condition of Health — Judgment for Administrator Reversed on Weight of the Evidence — Cause Retried on Precisely the Same Evidence with Same Result — Former Adjudication on Weight of the Evidence Stands as the Law.
    
    1. An objection to a verdict, on the ground that it does not advise the court on which of two causes of action the jury found against the defendant, is not well taken when it is manifest from an inspection of the pleadings and verdict that the jury found for the full amount upon both causes of action; and were this not true, the objection comes too late if postponed until the hearing on review.
    2. Where a court of last resort on the question of the weight of the evidence reverses a judgment because not supported by sufficient evidence and remands the cause for retrial, the judgment of the reviewing court on the weight of the evidence stands as the law of the case; and if upon second trial no new testimony is offered, and the case is submitted on the record as made at the first trial, it is the duty of the trial judge to withdraw the case from the jury on his own motion and render judgment for the defendant.
    Sullivan, J.; Dustin, J., and "Wilson. J., concur.
    At a former term of this court, other members then sitting, proceedings in error in this cause upon the same record and transcript of testimony, were prosecuted by plaintiff in error to reverse a judgment rendered against it in the court below.
    The judgment was reversed by this court on the ground alleged in the motion for a new trial and the petition in error, that the verdict and judgment was not sustained by sufficient evidence, and the cause remanded for further proceedings.
    A second trial was had before a jury on the same testimony, set forth in a bill of exceptions, taken at first trial and before-this court in such former proceedings in error. The jury again returned a verdict in favor of the defendant in error, differing only from the amount of the former verdict, to the extent of the accrued interest. Motion of plaintiff in error to set aside the verdict was again overruled and judgment entered upon the verdict. In these proceedings we have, therefore, the same record and bill of exceptions that were before this court in the proceedings in which the first judgment of the court below was reversed.
    It is urged by counsel for plaintiff in error, that the finding of the jury being on the issues joined in favor of the plaintiff below in a single sum, that the verdict is irregular, there being two causes of action stated in the petition and issues being joined upon each, the jury should have returned a separate verdict upon each cause of action; that the verdict in its present form does not advise the court whether the jury found in favor of the defendant below, upon the first, or second, or upon both causes of action. It is clear from the amount of the verdict that the jury included the full amount claimed in both causes of action, together with interest thereon for the period stated in the direction of the court. It is not necessary to look further than the pleadings and verdict to ascertain this fact.
    
      “If the meaning' of the jury in its verdict is certain from its terms, or becomes so when read in the light afforded by the ■pleadings of which it is the duty of the court to take judicial notice, and if the judgment is in conformity with its finding, it ought not to be set aside.” Fries v. Mach, 53 Ohio State, 59.
    “In considering the verdict itself, with a view to its sufficiency, the first object is to ascertain what the jury intended to find, and this is to be done by construing the verdict liberally, with the sole view of ascertaining the meaning of the jury.” Miller v. Shachelferd, 4 Dana, 273.
    If the objection to the verdict was sound we are of the opinion the objection came too late. We, therefore, find this point by plaintiff in error not well taken.
    In the former proceedings in this court, other members then sitting, the judgment entered at the first trial in the court below being reversed for error in overruling the motion of plaintiff in error to set aside the verdict because not sustained by sufficient evidence, and at the second trial the only testimony introduced, being that introduced at the first trial, plaintiff in error contends that the court below should have sustained its motion to set aside the verdict and granted a new trial, because this court had adjudicated the right of the plaintiff in error to have such a motion sustained upon the evidence in the record.
    If that adjudication ivas the law of the case, the motion should have been sustained. Whether the proceedings at the second trial should have been carried that far is discussed farther along. We have read the bill and briefs of counsel, discussing the law and the facts, and in connection therewith the opinion of the -members of this court, who sat in the hearing of the former proceedings in error. The analysis of the testimony set forth in the transcript and the .weight accredited thereto in that opinion is so in accord with our own convictions after carefully reading the testimony that we adopt it. It is so fair, full and thorough that any analysis undertaken to be written out here would be found nothing more than a repetition and hence of no additional value.
    It follows, therefore, that we have arrived at the same conclusion — that the verdict is not sustained by sufficient evidence, thus sustaining the contention of plaintiff in error on this point. For which reason the judgment must be reversed.
    Upon the state of the record, the question then arises, whether the cause must again be remanded for trial, or whether this court can proceed to render the judgment the trial court should have rendered, the case having been submitted on the same testimony a-s at the first trial, and enter that judgment here.
    At the conclusion of all the testimony a motion to withdraw the ease from the consideration of the jury and to enter a judgment for the defendant below was not made. No motion was made for a judgment in favor of the defendant below notwithstanding the verdict.
    In our view neither was necessary. If the former adjudication by this court on the weight of the evidence stood as the law of the case, then the plaintiff below, having failed to make out his case by proof, there was nothing for the jury to consider, and the trial court on its own motion should have withdrawn the case from the consideration of the jury, and rendered judgment for the defendant below.
    If upon the weight of evidence in this kind of a case, this court is the court of last resort, then it is well established by almost an unbroken line of authorities that its decision in the former proceedings in error remains the law of the case. On this point we cite Dodge v. Gaylord et al, 53 Ind. There is a long line of authorities cited in that case. Remanding the case in the former proceedings in error for another trial would then be for the purpose only to secure to the plaintiff below another opportunity to strengthen his case by additional testimony if he could, and not for the purpose of having again reviewed by by this court the ¡same testimony and record before it in the former proceedings. Otherwise, there would be no limit of the right of a party to have the same record reviewed by this court on the weight of the evidence, and hence the salutary rule that litigartion should be finally concluded would be of no force. Under the present statute providing the jurisdiction of the Supreme Court in error, that court is not required in this kind of a case to pass upon the weight of the evidence. In its discretion it may do so. ' But neither party to a case of this kind has a legal right to require that court to do so.
    It follows, therefore, that this court is the last court that parties have a legal right to require to pass upon the weight of the evidence, and hence in that respect it is a court of last resort. Hence we are of the opinion, that the trial court should have withdrawn the case from the consideration of the jury at the conclusion of all the testimony and rendered a judgment in favor of the defendant below, and not having done so, it is the duty of this court upon the state of the record to enter here a final judgment for plaintiff in error, as prayed for in its answer, which will be accordingly done.
    
      G. W. Baker, for plaintiff in error.
    
      Robert Ramsey, for defendant in error.
    
      
      For previous report of the same case in the same court, see 7 C. C.— N. S., 1;
    
     