
    Whitaker, Admr., v. The Michigan Mutual Life Insurance Company.
    
      Circuit court reviewing common pleas judgment — May have cognizance of record facts only — Party entitled to instruction on verdict — Failing to make request — Not entitled to judgment on error. ■
    
    1. A circuit court when reviewing a judgment of the court of common pleas may have cognizance of such facts only as appear upon the record under review.
    2. Although a party against whom a verdict is returned and a judgment is rendered in the court of common pleas may have been entitled to an instruction to the jury to return a verdict in his favor, he is not, on that account, entitled to a final judgment in his favor in a reviewing court unless upon the trial he has requested that such instruction be given.
    (No. 10516
    Decided February 11, 1908.)
    Error to the Circuit Court of Hamilton county.
    Suit was brought by the plaintiff in error in the court of common pleas to recover from the insurance company upon two policies on the life of his intestate. In its answer the company alleged the policies were procured by the making of certain false and fraudulent representations respecting the condition of his health at the time the policies were issued. Issues being joined upon these allegations of the answer the cause was tried to a jury which returned a verdict for the plaintiff. A motion for á new trial having been overruled judgment was rendered on the verdict. The company prosecuted error to the circuit court where the judgment of the court of common pleas was reversed upon the ground as shown by the journal, “That the verdict and judgment were not supported by sufficient evidence, and therefore that the court erred in overruling defendant’s motion for a new trial, and the court find no other errors in the record.” The cause was remanded to the court of common pleas for a new trial.
    The cause came on for a second trial in the court of common pleas which resulted in a verdict for the plaintiff, and a motion for a new trial being overruled judgment was again rendered for the plaintiff. The company did not, upon the second trial, ask the court to direct the jury to return a verdict in its favor. The company filed a petition in error in the circuit court assigning numerous errors and praying for a reversal of the judgment. Said judgment was reversed by the circuit court and a final judgment rendered in favor of the company, the material portion of its judgment being as follows:
    “Said verdict and judgment was not sustained by sufficient evidence, and because said verdict and judgment was not sustained by sufficient evidence and because this court, in a former proceeding in error in this court in substantially the same testimony, had so similarly held, it was the duty of the trial court in this cause, to whose judgment this error proceeding is prosecuted, to have directed a verdict for the defendant at the conclusion of the testimony, to all of which plaintiff in error excepts. And the court now on its own motion, coming to enter ■ the judgment that the court of common pleas should have entered, as aforesaid, now enters this judgment, to-wit: That the judgment of the court of common pleas, to which error is now prosecuted herein, be, and the same-is hereby vacated and held for naught and this court proceeding to render the judgment which should have been rendered by the court of common pleas, it is accordingly considered, ordered and adjudged that the petition of the plaintiff be, and the same is, hereby dismissed and final judgment is now entered in this cause in favor of the defendant below, The Michigan Mutual Life Insurance Company, and it is ordered that the said defendant, to-wit, this plaintiff in error, go now hence without day and recover of the defendant in error all of its costs, not only in this court but in the court of common pleas, which same are taxed at $-
    In his petition in error filed here, the plaintiff prays that the judgment of the circuit court may be reversed and that the cause be remanded to the court of common pleas for a new trial.
    
      Mr. Thorne Baker and Mr. Charles W. Baker, for plaintiff in error.
    
      Messrs. Maxwell & Ramsey, for defendant in error.
   Shauck, C. J.

In so far as the judgment of the circuit court reverses that of the court of common pleas on the ground that it was against the weight of the evidence, it is admitted that it must be affirmed here because this court does not determine the weight of conflicting evidence.

But' the circuit court, applying the view that its reversal of the former judgment upon the weight of the evidence was an adjudication of the company’s right to a verdict and judgment upon that evidence, and that the right so determined should have been enforced by the trial court when the cause was again submitted upon the same evidence, rendered a final judgment in favor of the company dismissing the original petition of the plaintiff. Assuming the correctness of that view respecting the effect of the former judgment of the circuit court, there are two reasons why it should not have been applied in the present case. Both the circuit court and the court of common pleas are courts of record, and it can not be material whether the same or different judges sat in the several trials and reviews which have been had. In any view the record before us is to be regarded as showing all that appeared in the court of common pleas upon the second trial and all that was presented for the consideration of the circuit court when reviewing the judgment. From this record it does appear that all of the evidence which was offered upon the second trial was read to the jury from a bill of exceptions which had been taken upon the former trial, but it does not appear that upon the second trial all the evidence was offered which had been offered upon the former trial. Therefore, having in mind the conclusiveness of the record it does not appear that the former judgment of the circuit ’ court was not influenced by substantial evidence which does not appear in the present record.

It is also clear that the circuit court erred in reversing the judgment of the court of common pleas because it did not give an instruction which the company had not requested. Although this precise question is novel, the reasons involved do not seem to justify a distinction between cases in which a party is entitled to a directed verdict, whether because of a former adjudication upon the weight of the evidence offered, or because of the failure of his adversary to adduce evidence in support of a material allegation with respect to which, in view of the issues joined, the burden of proof is upon him. In either case the party entitled to the instruction is amenable to the familiar rule that he must request the trial court to give it, since error consists not in the failure, but in the refusal, to give an instruction to which a party is entitled. That instruction being requested in a proper case, its refusal is error which entitles a party to a final judgment in the reviewing court, because otherwise he could not be placed in the position which he would have occupied if the error had not intervened.

The judgment of reversal rendered by the circuit court is affirmed, the final judgment rendered by it in favor of the company is reversed, and the cause is remanded to the court of common pleas for a new trial.

Remanded.

Price, Crew, Summers, Spear and Davis, JJ., concur.  