
    Nyiry v. Modern Brotherhood of America.
    
      Jurisdiction — Reversals—Weight of evidence — Error to enter final Judgment, when — Duty to remand for new trial, when.
    
    If the issues of fact are triable by jury, and there is some evidence upon each essential element of such issues of fact, a reviewing court may reverse under the statute upon the ground that the verdict is contrary to, or against the weight of, the evidence, but such finding does not authorize such court to enter a final judgment against the defendant in error. Its duty is to remand the case for a new trial.
    (No. 14673
    Decided July 2, 1915.)
    Error to the Court of Appeals of Cuyahoga county.
    On December 9, 1910, the defendant in error issued to John Nyiry a benefit certificate in the sum of $1,000, payable on his death to his wife, plaintiff in error. He died about the 1st of June, 1911. Suit was brought in the court of common pleas by the beneficiary against the defendant in error under the terms of the policy, in which petition in said action it was averred “that said plaintiff and John Nyiry each duly performed all the agreements and conditions of said benefit certificate on their part to be performed.”
    The defendant in error answered that some half dozen or more of the answers of said John Nyiry were untrue, especially the one in which he averred that to the best of his knowledge and belief he was in sound health and physical condition, and also the inquiry as to whether or not he had consulted a physician; that the issuing of the policy was based upon the truth of the answers appearing in said application and policy, and but for such belief' in their truthfulness the policy would not have been issued. There was later a subsequent issue raised as to mutual mistake, and a request for reformation of the contract.
    Upon the issues joined the case was by the court of common pleas submitted to the jury. The jury returned a general verdict for the plaintiff and returned a special finding of fact as follows: “Was John Nyiry attended by a. physician in August, 1910? Answer: Yes.”
    Defendant in error filed its motion for judgment on the special finding, . which was overruled. Motion for a new trial was also overruled and judgment entered on the general verdict.
    Error was prosecuted to the court of appeals, which reversed the judgment of the court of common pleas “because the same is contrary to law and the evidence,” and thereafter the court of appeals rendered final judgment in favor of ■ the Modern Brotherhood of America.
    Error is here prosecuted to reverse the judgment of the court of appeals.
    
      Mr. T. S. Dunlap; Messrs. Bauder & Searles and Mr. S. S. Ford, for plaintiff in error.
    
      Mr. James F. Walsh, for defendant in error.
   By the Court.

The journal entry of the court of • appeals in this cause is in the blanket form, “contrary to the law and the evidence.” Upon the facts the court of appeals must have found that the verdict was against-the manifest weight of the evidence. The court did not follow the requirements of the statute in pointing out the specific ground of error, which may have been an oversight of counsel rather than of the court. Thereafter, however, the court of appeals undertook to enter final judgment against the plaintiff below.

This brings '.up for review the question as to whether or not there was any issue of fact, and any evidence upon each material element thereof, requiring a submission of the case to the jury. We do not regard the special finding of fact by the jury as conclusive against the general verdict. Upon the contrary, we believe it is reconcilable with the general verdict, and, therefore, we are brought to the question as to whether or not the court of appeals was justified in rendering final judgment against the plaintiff below.

If this was a case for the jury, under the issues pleaded and the evidence offered, then the plaintiff had the constitutional right to a verdict by the jury, and no reviewing court is authorized by the constitution, or statutes pursuant thereto, to render final judgment contrary to said verdict. Its duties in that behalf are limited to having said cause remanded to the trial court for -a new trial. Anything else than this makes a mere mockery out of trial -by jury. Indeed, boiled down, it makes a trial by jury simply a prelude to a trial by judge. We would then have a paper right of trial by jury in theory, while we would have a trial by judge in practice. Such a trial would be an expensive farce, an extravagant nullity and a most palpable violation of the right of trial by jury guaranteed by every state constitution in the Union, and also guaranteed in our federal practice by the federal constitution. Gibbs v. Village of Girard, 88 Ohio St., 34; Slocum v. New York Life Ins. Co., 228 U. S., 364.

The judgment of the court of appeals entering final judgment against the defendant in error below is reversed, and the judgment of the court of appeals, in so far as it reversed the court of common pleas on the ground that the verdict was contrary to the evidence, is affirmed, and this cause is remanded to the court of common pleas for a new trial or such other proceedings as are warranted by law.

Judgment accordingly.

Nichols, C. J., Wanamaker, Newman and Matthias, JJ., concur.  