Brown v. L.A. Wells Const. Co., 29660.

• Citation: 56 N.E.2d 451,143 Ohio St. 580
• Decision Date: 19 July 1944
• Docket Number: No. 29660.,29660.
• Parties: BROWN v. L. A. WELLS CONST. CO.
• Court: Ohio Supreme Court

143 Ohio St. 580
56 N.E.2d 451

BROWN
v.
L. A. WELLS CONST. CO.

No. 29660.

Supreme Court of Ohio.

July 19, 1944.

[56 N.E.2d 451]

Syllabus by the Court.

1. A judgment or order may be entered nunc pro tunc in furtherance of justice only and when a judgment is so entered in the Court of Common Pleas, a notice of appeal to review such judgment or order, filed therein not more than twenty days from the date of its catual entry is filed within the time limited by law. Charles v. Fawley, 71 Ohio St. 50, 72 N.E. 294, approved and followed.

2. On the trial of a cause of action for wrongful death of an engineer who was employed to work upon a drill scow which was used to deepen a channel in navigable waters, it is a question for the jury whether the decedent was a seaman and entitled to the benefits of the federal statute known as the Jones Act (Title 46, Section 688, U.S.Code, 46 U.S.C.A. § 688), which makes applicable to seamen the statutes of the United States relating to rights of action by railway employees.

3. In an action for wrongful death or personal injury, it is error to withdraw from the consideration of the jury an alleged cause of action and enter judgment the evidence offered is such that reasonable the evidence offered is such that reasonable minds could arrive at different conclusions as to the right of plaintiff to recover upon such cause of action.

Appeal from Court of Appeals, Cuyahoga County.

Wrongful death action by one Brown, administratrix, against the L. A. Wells Construction Company. From a judgment for plaintiff, defendant appealed to the Court of Appeals and from an order entered nunc pro tunc granting judgment for defendant on first cause of action, the plaintiff appealed to the Court of Appeals which reversed the judgment withdrawing from the consideration of the jury the first cause of action and the case was transferred to the Supreme Court following the allowance of a motion to certify the record.-[Editorial Statement.]

Judgment of the Court of Appeals affirmed.

[56 N.E.2d 452]

This is an action for wrongful death, which originated in the Court of Common Pleas of Cuyahoga county.

The petition states two causes of action. The first was based upon a statute of the United States, commonly known as the Jones Act, 46 U.S.C.A. § 688, which extended to seamen the provisions of the federal railway employees statutes; and the second was based upon the claimed violation of Section 871-13, General Code of Ohio, as it pertains to frequenters in and about places of employment.

The issues were made by the third amended petition, the amended answer thereto and a reply.

The cause was tried to a jury and at the close of plaintiff's evidence, upon motion for a directed verdict in favor of the defendant, the court made the following statement to the jury: ‘The court has removed by operation of law from your consideration the cause of action described as the first cause of action in the plaintiff's petition. That leaves for your consideration only the second cause of action * * *.’

The jury returned a general verdict for plaintiff. No finding was made therein in favor of the defendant upon the first cause of action.

A motion by defendant for a new trial was overruled and judgment was entered on the verdict on November 9, 1942, and on November 28, 1942, defendant filed notice of appeal.

On March 12, 1943, the trial court made the following entry:

‘This matter coming on regularly to be heard and a jury having been empanelled and sworn, and both parties having offered evidence, and at the conclusion of all the evidence the defendant having moved the court for judgment upon the first cause of action, namely, the claim for damages arising under and by virtue of the federal statutes commonly known as the Jones Act, and the court being fully advised in the premises finds that said motion for judgment on said first cause of action, as recited in the plaintiff's fourth amended petition, should be and it is hereby granted; and judgment is hereby rendered in favor of the defendant upon said first cause of action; to all of which the plaintiff excepts.

‘And it appearing to the court that said order was announced by this court on the 23rd day of September, 1942, at the time of and during the trial of said cause, but that the same, through inadvertence, was not entered at said time upon the records or the journal of the court, the court orders that this order and judgment be now entered by the clerk of this court upon the journal of this court this 12th day of March, 1943, said order and judgment to take effect as of the 23rd day of September, 1942.’

Thereafter, on March 27, 1943, plaintiff filed notice of appeal. In the Court of Appeals each appeal was separately docketed, the defendant's appeal being No. 19121, and the plaintiff's being No. 19282.

A motion to dismiss the appeal in cause No. 19282 (plaintiff's appeal) upon the ground that the notice of appeal was not filed within the time limited by law was overruled.

The Court of Appeals, in that case reversed the judgment of the Court of Common Pleas, for error of law in withdrawing from the consideration of the jury the first cause of action set forth in the plaintiff's third amended...