A. & N. CLUB v. Great American Insurance Company

Citation404 F.2d 100
Decision Date05 December 1968
Docket NumberNo. 18190.,18190.
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.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

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 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 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 Rules of Civil Procedure, which provides for involuntary dismissal in non-jury trials at the close of the Plaintiff's evidence. Federal Rule of Civil Procedure 41(b). The Rule is quite similar in effect and interpretation to Rule 50 (a), Federal Rules of Civil Procedure. United States v. United States Gypsum Co., 67 F.Supp. 397 (D.C.1946). The general policy behind these rules was to expedite the trial of cases, while relieving the moving party from having his proof cut off.2 Bach v. Friden Calculating Machine Co., 148 F.2d 407 (6th Cir. 1945). Whether the motion is granted though remains within the discretion of the trial judge. Bates v. Miller, 133 F.2d 645 (2d Cir. 1943). It is also within the discretionary power of the trial judge to either act upon the motion immediately or to reserve his decision until later. See O'Malley v. Cover, 221 F.2d 156 (8th Cir. 1955); Detroit United Railway v. Nichols, 165 F. 289 (6th Cir. 1908); 9 Cyc.Fed.Pro. Sec. 29.18 and Sec. 31.80 (3rd ed.).

It is well settled that if the motion is denied the moving party has the choice of either standing on his motion or to proceed with his case. 2 Barron and Holtzoff, Federal Practice and Procedure, Sec. 219; Kerola v. City Asphalt and Paving Co., 152 N.E.2d 287 (Ohio App. 1957). If the motion is denied and the defendant decided to proceed with its case, it will have waived the initial motion and the right to appeal any error committed in its disposition. Bach v. Friden Calculating Machine Co., 148 F.2d 407 (6th Cir. 1945); McDonough v. United States, 248 F.2d 725 (8th Cir. 1957); Boston Ins. Co. v. Fisher, 185 F.2d 977 (8th Cir. 1951); Bates v. Miller, 133 F.2d 645 (2d Cir. 1943). It will constitute a waiver of defendant's right to allege error on the motion's disposition only in light of the evidence introduced up to the point of the motion. The motion may be renewed though at the close of all the evidence, McDonough v. United States, supra. This Court has held that a review now would take into consideration all of the evidence presented before and after the initial motion. Detroit United Railway v. Nichols, 165 F. 289 (6th Cir. 1908); Sadler v. Draper, 46 Tenn.App. 1, 326 S.W.2d 148 (1959).

The District Court did not deny the motion, but reserved its ruling. The Defendant chose to proceed with its proof. The question before us is whether the moving party shall be treated in the same manner as if the motion had been denied initially, rather than reserved and then denied. The moving party was presented with the basic question of either standing on the motion or proceeding with the case. It cannot be denied that the moving party must make his choice on the assumption that the motion may be denied. To hold that the Defendant in this case has not waived its right to attack the later disposition of the motion would place it in a far better position than if the motion had been denied originally.3 It can be said that the "reservation" was through no fault of the moving party and was due to the discretion of the trial judge, but this is not reason enough to put Defendant in a better position.

The Eighth Circuit sees no difference in cases where the defendant has proceeded with its case after a motion under Rule 41(b), Federal Rules of Civil Procedure has been denied or reserved. The Court has...

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