dissenting:
To the extent the majority of the court hold there is no reversible error on the face of the record, excepting in one particular, I concur.
The assignment of error which they sus-’ tain namely the exclusion of evidence tending to prove that the insurance company would not have issued the policy but for the alleged fraud committed by the insured, in my opinion was not prejudicial, because of the doctrine announced in Sites v Haverstick, 23 Oh St 626, which doctrine has become so thoroughly rooted into the law of Ohio, one should indeed be brave, who would now challenge it, however much it has been heretofore assailed.
Without citing the myriad of reported cases decided by the Supreme Court, the Circuit Courts and Courts of Appeals throughout the many years following the announcement of the doctrine, it seems sufficient to suggest that its structure is such that in order to constitute reversible error the record should be so made in the trial court, as to show plainly the prejudice of the claimed error, by appropriate findings when a general verdict is returned.
Applying the doctrine to the instant case, it will be seen that the defense which was an affirmative one, consisted of six issues. So, the general verdict in favor of the plaintiff, was, for the purpose of application of the doctrine, a finding in plaintiff’s favor, and against defendant insurance company, not different in substance from a general verdict in favor of defendant, where the plaintiff’s cause of action rested on more than one issue. A case, directly in point, is 107 Oh St 33.
*80In the case at bar, there being a general verdict and no findings, the plural issue rule (ofttimes miscalled the two issue rule, because in many instances as in this case there are more than two issues) which is the doctrine announced in Sites v Haverstick, supra, requires the conclusive presumption, that five issues involved in the defense, namely wilful falsity, fraudulent making, materiality, inducement of the company to issue the policy, and that the agent of the company had no knowledge of the falsity or fraud of the answer, were each and all found to be sustained by the evidence, none of which findings could not be held to be against the weight of the evidence, and none of which is otherwise attended by reversible error.
Upon trial in the court below, the trial court sustained an objection by defendant to the introduction of any evidence for plaintiff, on the ground that the petition did not state a cause of action — the statements of counsel indicating that the contract sued upon was oral. The court held that a contract for the wrecking of a house, was a contract within the statute of frauds, and hence must be evidenced by a memorandum in writing, signed by the party to be charged; and there being no writing in the instant case, that the contract could not be enforced.
Such conclusively presumed finding even as to one of those five issues, unattended by reversible error, makes inconsequential, and therefore unavailable, the error which arose by the exclusion of the evidence offered by defendant in proof of one of the six issues namely, that the policy would not have been issued but for the wilful, fraudulent and material answer of the insured.