The opinion
APPLICATION FOR REHEARING
This application is made upon the theory that this court reversed this cause and entered final judgment in favor of the plaintiff in error on the weight of the evidence; and that in accordance with Bank Co v Coal Co, 121 Oh St 544, this court had no such authority and the cause should have been remanded for trial.
The ultimate fact, recognized by the defendant in error in her brief now filed, which is all controlling in this suit, is, was Brown as secretary of Local 360 entitled to a 5% commission on sums collected for the brotherhood on its loyalty loan assessment?
The proof made by the plaintiff in error, and not denied by the defendant in error, was that the secretaries were not to receive a commission on this collection.
The defendant in error in her present brief states: “The other evidence in the case showed that Mr. Brown was entitled to receive commissions on all other collections made by him whether for the local division or for the Grand Lodge.” Further the brief recites, “There is also in evidence, the written admission of two of the plaintiffs in error who were members of the auditing-committee that Mr. Brown was allowed 5% commissions on all collections made by him.” These facts are readily t admitted by the plaintiff in error; but this proof is not a denial by inference or otherwise, of the one ultimate controlling fact in this case, which the plaintiff in error proved and which the defendant in error did not deny.
Counsel for defendant in error are in error when it is assumed that a reversal was entered upon the weight of the evidence; the judgment was and is reversed upon the view that there was no evidence to support the verdict and judgment entered, and hence the same were contrary to law and the same should have been for the plaintiff in error.
We direct attention to the authority relied upon Bank Co v Coal Co, supra, page 548. The court says: “Where there is no conflict in the evidence, the Court of Appeals may'apply the ruling principles of law to the uncontroverted facts, and, if application of the ruling principles requires a reversal of the judgment, and a final judgment in favor of the plaintiff in error, that procedure will be approved.”
We have no disposition to usurp the province of the jury, or to deny the defendant in error her right to a trial by jury. This the defendant in error had. She offered no proof in denial of the ultimate controlling fact, such must therefore, be admitted to be true.
*542 The fact being uncontroverfced, we but apply the ruling principle of law. We see no useful purpose in granting a new trial as the result must be the same. , The applicant suggests that Brown might not have known oí the conventions action. To this we answer, that he could and should have known thereof. The application for a re-hearing will therefore 'be denied and the former judgment adhered to. Exceptions are noted.
We further consider that our holding is not in conflict with Burton, Exr v Tax Commission of Ohio, 37 Oh Ap 183, and the request for certification will not be granted.