Jacob Laub Baking Co. v. Middleton

• Decision Date: 15 February 1928
• Docket Number: 20366,20367
• Citation: 160 N.E. 629,118 Ohio St. 106
• Parties: The Jacob Laub Baking Co. v. Middleton.
• Court: Ohio Supreme Court

160 N.E. 629

118 Ohio St. 106

The Jacob Laub Baking Co. v. Middleton.

No. 20366 , 20367

Supreme Court of Ohio

February 15, 1928

Directed verdict - Submission of defendant's motion is submission to court - Section 11586, General Code - Plaintiff cannot dismiss action after motion submitted and conclusion announced - Court to direct verdict where but one conclusion deducible from proof - Aggrieved party may seek reversal or final judgment in reviewing court, when - Refusal to direct verdict and dismissing action constitute final order, when - Motion for new trial necessary to determine weight of evidence - Such motion unnecessary when court allies law to facts - Defeated party may rest solely on motion for directed verdict.

1. Where, after the parties have introduced their evidence and rested, a defendant moves the court for a directed verdict in his favor, the submission of such motion is a submission to the court within the purview of Section 1158, General Code. After such submission and subsequent announcement of its conclusion favorable to the defendant, the plaintiff cannot have his cause dismissed without prejudice over the objection of the defendant.

2. When the proof of the essential facts put in issue and the reasonable inferences deducible therefrom are such that the jury, as fair minded men, should reasonably arrive at but one conclusion, it is the duty of the trial court to direct a verdict in favor of the party which such proof sustains.

3. In such a case, where a motion for a directed verdict has been refused or sustained, the party aggrieved may seek a reversal or a final judgment in the reviewing court, if the whole evidence has been embodied in a bill of exceptions.

4. The refusal of a trial court to direct a verdict for a defendant and its dismissal of the cause without prejudice, determines that action and prevents a judgment in favor of defendant this constitutes a final order within the pur- view of section 12255, General Code, and is reviewable on error.

5. While a motion for a new trial is necessary to determine the weight of the evidence, it is not necessary in the application, by the court, of the law to the facts on a motion for a directed verdict. The defeated party has the right to rest solely on his motion for a directed verdict and, although he may do so, he is not compelled to ask for a new trial which he may not desire.

Katherine Middleton instituted an action for malicious prosecution against the plaintiffs in error in the court of common pleas of Cuyahoga county. She alleged in her petition that she had been injured by a motor truck owned by the Jacob Laub Baking Company, which carried indemnity insurance with the Ocean Accident & Guarantee Corporation; that Heber J. Laub was the secretary of the baking company, one M. M. Welsh the agent and representative of the insurance company, and one Sweigert the claim agent of the latter company. The plaintiff alleged that she brought suit for personal injuries against the baking company and that while such suit was pending the defendants acting through the persons named, together with one Heckman, conspired together for the purpose of intimidating her and preventing her from bringing her cause to trial and that they falsely, maliciously, and without any probable cause swore out a warrant charging her with perjury in the trial against the baking company. She alleged that they caused a warrant to issue for her arrest on the charge of perjury and that she was arrested confined in jail, and compelled to give bail for her appearance; that she was indicted on the charge of perjury, tried therefor, and acquitted.

In this case for malicious prosecution, each of the defendants, plaintiffs in error here, filed separate and similar answers, in which, in addition to general denials, it was alleged as a defense that the testimony of Katherine Middleton, given at the personal injury trial, had been taken by a court stenographer, and that the same was, "upon and after advice of counsel, delivered to the prosecuting attorney of Cuyahoga county."

All of the evidence offered in the trial of the case for malicious prosecution was embodied in a bill of exceptions. It appears, without dispute, that in the trial of the personal injury case, Sweigert represented not only the insurance company, but the baking company as well, and as their attorney defended that suit in the interests of both. It also appears that whatever knowledge Sweigert obtained relating to the alleged perjury was obtained by him on the former trial, and that whatever these defendants, through their agents, may have done after that trial in causing the issuance of a warrant of arrest was done wholly at the instance and on the advice of Sweigert, who was their counsel. At the close of the entire evidence in the case for malicious prosecution each of the defendants, the plaintiffs in error here, moved the court to withdraw the case from the further consideration of the jury and for judgment in its favor. These motions were argued to the court in the absence of the jury. Disposing of the motions in the presence of counsel for both sides, the court said that the chief question for him to determine was "whether or not the defendants are entitled to avail themselves of the defense that they had the advice of counsel. That they had the advice of counsel is not disputed. That is before the court. The record is here and the evidence in that regard is clear. The defendants did have the advice of counsel." The court adverted to the fact that Sweigert's two clients did not conceal anything from him, for the simple reason that Sweigert knew all the facts relating to the perjury, since he was the attorney conducting the defense in the trial of the personal injury case and advised both of his clients to pursue the course they did. In disposing of the motion of the defendants for judgment, the court said:

"I am inclined to the opinion that from the facts in this case as they were adduced upon this witness stand that the advice of Sweigert must be held to be a complete defense under the circumstances.

"Mr. McCormack (attorney for plaintiff): Isn't that a question for the jury to say whether it is?

"The Court: No, sir; there is no question for the jury because it is admitted that Sweigert was familiar with all the facts, heard all the facts. That isn't disputed at all. If that were disputed in any way, we could say it is a question for the jury."

The attorney for the plaintiff then asked the court to dismiss the case without prejudice. To this the defendants objected for the reason that "the court has intimated what his course will be."

"The Court: I believe that is a complete defense, but I will permit you to dismiss without prejudice. * * * At plaintiff's costs."

The journal entry in the trial court recites that a juror was withdrawn and the case dismissed without prejudice at the plaintiff's costs. The defendants took exceptions and filed their petition in error in the Court of Appeals, where the "judgment" of the lower court was affirmed motions by the plaintiffs in error for certification of their respective cases to this court were allowed, and they now ask a reversal of the lower courts and for a final judgment in their favor in this court.

Messrs. Dustin, McKeehan, Merrick, Arter & Stewart, Mr. L. B. Davenport, and Mr. L. C. Wykoff, for plaintiffs in error.

Messrs. Mooney, McCormack, Roth & Pollack, for defendant in error.

JONES J.

Prior to the beginning of this action for malicious prosecution, Middleton had sued the baking company for personal injuries, and the case was defended by one Sweigert, as attorney for the baking company and as attorney for the insurer which had issued a policy of indemnity. During the trial of that case Middleton's testimony was taken by a court stenographer, and the affidavit charging the alleged perjury was based on the falsity of that testimony. The record discloses that, upon the advice of Sweigert, this testimony was delivered to the prosecuting attorney. Laub, acting under the advice of his counsel, Sweigert, swore to an affidavit resulting in Middleton's arrest and indictment, which later resulted in her acquittal. While the defense of acting under the "advice of counsel was not artistically drawn, the answers of the defendants sufficiently disclose that this defense was relied on. At any rate, the testimony in that respect was developed by the plaintiff from Laub who was called by her for the purpose of cross-examination. At the close of the entire evidence there was practically no dispute that Sweigert's advice to defendants was not based upon facts communicated by them to him, but upon the knowledge acquired by him in the previous trial of the personal injury case. Nor is there any substantial dispute as to the fact that whatever was done by the defendants, or their representatives, in connection with the prosecution of Middleton, was done in good faith and upon the advice of their counsel. This defense was relied on as showing want of malice and the existence of probable cause for the prosecution.

When both parties had rested their case, the defendants below, on their motion for a directed verdict, were entitled to judgment in their favor upon the issue so made. Had the plaintiff not asked for a dismissal without prejudice, the defendants, motion would have been sustained by the court, as is indicated in his following decision:

"I am inclined to the opinion that from the facts in this case as they were adduced upon this witness stand that the advice of Sweigert must be held to be a complete defense under the circumstances."

Plaintiff's counsel recognized this status after the announcement and sought to extricate their client from an...