A. & N. CLUB v. Great American Insurance Company, No. 18190.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtPHILLIPS, EDWARDS and CELEBREZZE, Circuit
PartiesA. & N. CLUB, a/k/a Youngstown Garrison No. 281 Army and Navy Union, U.S.A., Inc., Plaintiff-Appellee, v. GREAT AMERICAN INSURANCE COMPANY, Defendant-Appellant.
Docket NumberNo. 18190.
Decision Date05 December 1968

404 F.2d 100 (1968)

A. & N. CLUB, a/k/a Youngstown Garrison No. 281 Army and Navy Union, U.S.A., Inc., Plaintiff-Appellee,
v.
GREAT AMERICAN INSURANCE COMPANY, Defendant-Appellant.

No. 18190.

United States Court of Appeals Sixth Circuit.

December 5, 1968.


404 F.2d 101

Marvin L. Karp, Cleveland, Ohio, for defendant-appellant; H. J. Glickman, Ulmer, Berne, Laronge, Glickman & Curtis, Cleveland, Ohio, on brief.

Leon M. Plevin, Cleveland, Ohio, for plaintiff-appellee; Dudnik, Komito, Nurenberg, Plevin, Dempsey & Jacobson, Cleveland, Ohio, on brief.

Before PHILLIPS, EDWARDS and CELEBREZZE, Circuit Judges.

CELEBREZZE, Circuit Judge.

The action in the District Court was instituted by the Army and Navy Club, a/k/a Youngstown Garrison No. 281 Army and Navy Union, U.S.A., Inc., hereinafter Plaintiff, to recover on a $30,000 fire insurance policy No. 1 68 34 68 issued by the Great American Insurance Company, hereinafter Defendant. The action was tried to the Court sitting without a jury. Judgment in the amount of $24,937.50 was entered in favor of Plaintiff. Defendant appeals.

On December 12, 1963, the Defendant issued a fire insurance policy to Plaintiff in the amount of $30,000. The policy provided coverage against losses by fire

404 F.2d 102
and lightning, extended coverage, vandalism and malicious mischief. It protected the contents, improvements, and betterments of the premises located at 2716 Market Street, Youngstown, Ohio. On December 30, 1963, the premises and contents therein were totally destroyed by fire by reason of which Plaintiff claimed to have sustained a loss of $24,937.50

The Defendant admitted issuance of the policy, notice of and destruction of the property located at 2716 Market Street, Youngstown, Ohio; but denied payment under the policy. The basis of denial was that Plaintiff was responsible for the incendiary fire and that Plaintiff did not have an insurable interest.1

The questions before the trial court were factual determinations from the evidence. The first related to whether or not Plaintiff had an insurable interest in the property. The second was the determination of whether the insured had participated in the arson of the insured property.

The Plaintiff presented three witnesses whose testimony related to the chartering of Plaintiff organization and the issuance of and the claim under the insurance policy. The Plaintiff then rested its case. At this time the Defendant moved for a judgment in its favor, and dismissal of the complaint, on the ground that the Plaintiff had failed to prove that it had an insurable interest in or owned the damaged premises as required by Ohio law. The Court reserved its ruling on the motion.

Defendant then elected to put on its case. After all of the evidence was before the Court, the Defendant called the Court's attention to the pending motion, whereupon the Court overruled Defendant's motion. The case was then taken under advisement by the Court.

The main thrust of Defendant's appeal before this Court is based on the ground that the Court erred by not granting Defendant's motion for judgment at the conclusion of Plaintiff's case. Plaintiff moved to dismiss this appeal; but on May 6, 1968 a panel of this Court denied the motion stating: "The question raised by Appellee is one for consideration on the merits of the appeal."

The pertinent question on appeal is whether the Defendant waived its right to question the Court's disposition of Defendant's motion for dismissal when it presented evidence after the Court had reserved action on its disposition.

On appeal Defendant's theory is that its presentation of evidence did not constitute a waiver of its right to appeal the disposition of the motion before the District Judge; for the trial judge did not deny, but merely reserved action on the motion. Defendant agrees with the proposition that if its motion had been denied prior to its presentation of evidence, it would have waived any right to challenge the trial judge's action. Defendant reasons that at the point of denial it would have been faced with the choice of standing on the motion and filing a "writ of error" or waiving the right to bring the aforementioned writ and proceeding with its evidence. However, when the Court reserved its ruling, Defendant contends it had no choice of electing to stand or to go ahead with the evidence. Defendant wishes the Court to believe that Defendant had no alternative but to go forward, since the Defendant had no power to compel action on the part of the Court unless the case was rested. Columbia & P. S. Railroad

404 F.2d 103
Co. v. Hawthorne, 144 U.S. 202, 12 S.Ct. 591, 36 L.Ed. 405 (1892)

The law is clear that the Defendant could have stood on its motion at that time. 9 Wigmore on Evidence, Sec. 2496 (3rd Ed. 1940). Had the Court denied the motion Defendant could have appealed the denial. The only difference between Defendant's alternative actions on a denial and reservation of the motion, is that in the latter instance, the choice to proceed is made on the supposition that the motion may later be denied.

The motion in question was made pursuant to Rule 41(b), Federal...

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25 practice notes
  • General Elec. Co. v. Board of Assessors of Lynn
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 31, 1984
    ...600] the motion. Cf. Martin v. Hall, 369 Mass. 882, 884-885, 343 N.E.2d 841 (1976) (rule 50[a] ); A. & N. Club v. Great Am. Ins. Co., 404 F.2d 100, 103-104 (6th Cir.1968) (rule 41[b] ). Therefore, the assessors' appeal now tests whether the board's decision that the taxpayer had met its bur......
  • Nulf v. International Paper Co., No. 79-1008
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 5, 1981
    ...trial judge to either act upon the motion immediately or to reserve his decision until later." A & N Club v. Great American Insurance Co., 404 F.2d 100, 103 (6th Cir. 1968). See generally 9 C. Wright & A. Miller, Federal Practice and Procedure § 2371, at 222-23 (1971). Admittedly, the usual......
  • Christy v. Servitto, Civ. A. No. 83-5418 PH.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • October 24, 1988
    ...in deciding the motion. A.P. Hopkins Corp. v. Studebaker Corp., 496 F.2d 969, 971 (6th Cir.1974); ABN Club v. Great Amer. Insurance Co., 404 F.2d 100, 103 (6th Cir.1968). Additionally, when ruling on a Rule 41(b) motion, a court is not to make any special inferences in the plaintiff's favor......
  • Johnson v. Mortham, No. TCA 94-40025-MMP.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • February 7, 1996
    ...verdict in a jury trial pursuant to FED.R.CIV.P. 50 are similar in effect and interpretation. E.g., A & N Club v. Great Am. Ins. Co., 404 F.2d 100, 103 (6th 6 If the trial of this matter were before a jury, there would be some risk that altering the order of presentation might confuse the j......
  • Request a trial to view additional results
25 cases
  • General Elec. Co. v. Board of Assessors of Lynn
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 31, 1984
    ...600] the motion. Cf. Martin v. Hall, 369 Mass. 882, 884-885, 343 N.E.2d 841 (1976) (rule 50[a] ); A. & N. Club v. Great Am. Ins. Co., 404 F.2d 100, 103-104 (6th Cir.1968) (rule 41[b] ). Therefore, the assessors' appeal now tests whether the board's decision that the taxpayer had met its bur......
  • Nulf v. International Paper Co., No. 79-1008
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 5, 1981
    ...trial judge to either act upon the motion immediately or to reserve his decision until later." A & N Club v. Great American Insurance Co., 404 F.2d 100, 103 (6th Cir. 1968). See generally 9 C. Wright & A. Miller, Federal Practice and Procedure § 2371, at 222-23 (1971). Admittedly, the usual......
  • Christy v. Servitto, Civ. A. No. 83-5418 PH.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • October 24, 1988
    ...in deciding the motion. A.P. Hopkins Corp. v. Studebaker Corp., 496 F.2d 969, 971 (6th Cir.1974); ABN Club v. Great Amer. Insurance Co., 404 F.2d 100, 103 (6th Cir.1968). Additionally, when ruling on a Rule 41(b) motion, a court is not to make any special inferences in the plaintiff's favor......
  • Johnson v. Mortham, No. TCA 94-40025-MMP.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • February 7, 1996
    ...verdict in a jury trial pursuant to FED.R.CIV.P. 50 are similar in effect and interpretation. E.g., A & N Club v. Great Am. Ins. Co., 404 F.2d 100, 103 (6th 6 If the trial of this matter were before a jury, there would be some risk that altering the order of presentation might confuse the j......
  • Request a trial to view additional results

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