DocketNumber： No 70
Citation Numbers： 19 Ohio Law. Abs. 593, 1935 Ohio Misc. LEXIS 1429
Judges： Concúr, Crow, Guernsey, Klinger
Filed Date： 2/2/1935
Status： Precedential
Modified Date： 10/18/2024
OPINION
This is an action by the beneficiaries in a life insurance policy held by Donald L. Miller in The Western & Southern Life Insurance Company, to recover the amount stipulated in said policy.
In the answer, the defendant admits the execution and delivery of the policy, and further avers that the policy was surrendered by Donald L. Miller 'ón' the 21st of April, 1932, on receipt of the sum of $200.00 paid by The Western •'&' Southern Life Insurance Company to Donald L. Miller; that this payment was made and the policy surrendered for the purpose of compromising and settling disputes arid differences arising out of the negotiation for the contract of insurance.
It is claimed by the insurance company that the insured, Donald L. Miller, made false and fraudulent statements regarding his health and whether or not he had previously been treated for certain ailments, in his application for insurance.
As I view the evidence in this case, pro and con, upon this issue, there can be no doubt but Donald L. Miller made a settlement with the insurance company and agreed to and did receive and accept the sum of $200.00 to reimburse him for any and all sums that he had paid the insurance company, and surrendered his policy. There is no doubt in mind that he knew what he was doing, as all parties to the agreement were able to read and understand the simple language that was used in the negotiation.
If a settlement was had between Donald L. Miller and the insurance company whereby he surrendered his policy and accepted a consideration therefor, the plaintiffs in- this case cannot recover.
The plaintiffs contend that the release was obtained by misrepresentations. However, in my opinion there is a total failure of evidence to warrant the court in finding-that there were misrepresentations, inasmuch as the written evidence in the case' recites in plain English that the policy is surrendered on receipt of the check for $200.00. This release was not only before Donald L. Miller to read and sign, but was-also before the beneficiaries, the plaintiffs in this case, for them to read and sign.' There is no evidence in the bill of exceptions or record, that Donald L. Miller did not read it or did not understand it.
As I view the evidence, the overwhelming weight thereof supports the contention of the defendant The Western & Southern Life Insurance Company, on this issue.; and at most, only a scintilla of evidence could be claimed for the contention that Donald L. Miller did- not understand what he'-was doing and. that he misunderstood it as being a receipt for disability, and so forth. ■
Under the recent ruling of the Supreme Court in the case of Hamden Lodge et v Ohio Fuel Gas Company, 127 Oh St 469, the scintilla-rule is-no longer the law in Ohio. And inasmuch as the Supreme1 'Court has also said, in the case' of Greyhound Lines, Inc. v Martin, 127 Oh St 499, that where the Court of Appeals finds that 'the proof fails to show actionable negligence on the part of the defendant it becomes the duty of the court not to remand the case to the trial court for further proceedings, but to render finaí judgment, and also- in the case of Majoros v The Cleveland Interurban Rd. Co., 127 Oh St 255, has said that when a Court of Appeals reverses a judgment of the trial court for the reason that the trial court erred in not sustaining the motion of a defendant for directed verdict; it becomes the duty of the Appellate Court to render the judgment which the - trial court should have rendered, I therefore think, under §12272, GC, it becomes- Our duty to enter final judgment for the defendant The Western & Southern Life Insurance Company, since I believe the trial court should have sustained the motion interposed for judgment notwithstanding the finding and judgment of the court in favor of plaintiffs. See also, J. C. Penny, Inc. v Robinson, 193 NE 401.