Nead v. Hershman
| Decision Date | 21 June 1921 |
| Docket Number | 16594 |
| Citation | 132 N.E. 19,103 Ohio St. 12 |
| Parties | Nead v. Hershman |
| Court | Ohio Supreme Court |
Trial practice - Motions for directed verdict - Plaintiff's motion sustained and defendant's overruled Defendant withdraws motion and requests submission to jury - Court to submit case to jury, when.
Where a motion by defendant for a directed verdict is made at the close of plaintiff's testimony and overruled, and then renewed at the close of all the testimony, followed by a like motion on the part of plaintiff, and the court passes on the latter motion first, sustaining it, and then overrules defendant's motion, and thereupon, and next in order of procedure, defendant requests the withdrawal of his motion and the submission of the case to the jury, there being a jury issue, the refusal of the court to submit the issue to the jury under proper instructions is error.
-
This case came on for trial to the court and jury in the court of common pleas of Hamilton county, Ohio, upon the issues joined by the petition and answer.
At the close of the plaintiff's testimony, the defendant plaintiff in error here, moved the court for a directed verdict, which was overruled. At the close of all the testimony, the motion was renewed; and thereupon the plaintiff, defendant in error here, also moved the court for an instructed verdict in his behalf.
Next in the order of procedure, according to the record, the two motions pending having been made in the order above named the court passed upon the latter, sustaining it, and stating that he would direct the jury bring in a verdict for the plaintiff. After which the court proceeded to overrule the motion of the defendant for a directed verdict. Thereupon, counsel for the defendant withdrew, or offered to withdraw, the motion [heretofore made by him, and requested the court to send the case to the jury for the jury's determination of the facts.
This the court declined to do, but directed the jury to return a verdict for the plaintiff, which was done, and judgment was entered on the verdict. Motion for a new trial was overruled and error prosecuted to the court of appeals, where the judgment was affirmed.
Mr James G. Stewart and Mr. Harry H. Shafer, for plaintiff in error.
Mr. Moses Ruskin and Mr. Charles S. Bell; for defendant in error.
The principal ground of error relied upon in this court, and the only one that it will be necessary to consider, is a question of procedure.
The plaintiff in error contends that the court erred in refusing to allow his motion to withdraw his former motion for a directed verdict, and erred in refusing to submit the case upon that motion to. the jury, under proper instructions.
The defendant in error, on the other hand, contends that the application, made after the court had indicated his decision, came too late, and that the submission of a motion by each party to the suit at the conclusion of all the testimony, asking for a directed verdict, was in effect a waiver of a jury, and a final submission of the whole contrOversy to the court.
In Turner v. Pope Motor Car Co., 79 Ohio St. 153, it was held by this court:
"Where the plaintiff has introduced his evidence and rested, and each of the defendants has moved the Court for a directed verdict * * * upon which motions the cause has been submitted to the court and its conclusions thereon announced, the plaintiff has not the right to dismiss the action without prejudice."
The court there took the view that the sustaining of the motion was a final disposition of the case, and that the motion to dismiss without prejudice could not be entertained after such submission, in view of the wording of the statute upon that subject. That view is not the precise question we have in this Case.
In Strangward v. American Brass Bedstead Co., 82 Ohio St. 121, it was held:
"A motion by each party in a jury case * * * to direct a verdict in his favor on the pleaings, made to the court before evidence is offered, is a waiver...
To continue reading
Request your trial