Perkins v. Bd. Of County Commissioners Of Putnam County
| Decision Date | 14 October 1913 |
| Docket Number | 133 |
| Citation | 88 Ohio St. 495,103 N.E. 377 |
| Parties | Perkins v. Bd. Of County Commissioners Of Putnam County. |
| Court | Ohio Supreme Court |
Motions by both plaintiff and defendant for directed verdict -Subsequent motion to submit case to jury - Case to be submitted to jury, when.
Messrs Bailey & Leasure, for plaintiff in error.
Mr. J W. Smith, for defendant in error.
Plaintiff brought an action in the common pleas court of Putnam county against defendant for damages on account of injuries claimed to have been sustained through the negli- gence and carelessness of defendant. To the petition was filed an answer consisting of a general denial and the defense of contributory negligence. The charge of contributory negligence was denied by reply.
The case went to trial to a jury, and, at the close of all the evidence, defendant moved the court to instruct the jury to return a verdict in its favor, and, thereupon, plaintiff moved for a directed verdict in his favor. These two motions were presented to the court and the motion of defendant was overruled. Thereupon, a request was made by defendant that the case be submitted to the jury for its determination on the evidence, which request was refused. The court then sustained the motion of plaintiff for a directed verdict in his favor, and the jury found for him in an amount directed by the court. Upon the overruling of the motion for a new trial by defendant, judgment was rendered in favor of plaintiff in the amount found by the jury in the directed verdict.
Error was prosecuted to the circuit court by the defendant in error herein, and that court reversed the judgment of the court of common pleas upon the sole ground that the court had erred in refusing the request of the defendant below to submit the cause to the jury on the evidence after its motion to direct a verdict at the close of all the evidence had been overruled, the circuit court finding no further error in the record.
Plaintiff in error is seeking a reversal of the judgment of the circuit court, and we shall refer briefly to the cases cited in support of his contention.
In the case of Strangward v. American Brass Bedstead Co., 82 Ohio St. 121, a motion was made by each party after the impaneling of the jury for a verdict on the pleadings. The court held that such motion by each party was a waiver of a jury trial and a submission of the case to the court, and that a party could not, as of right, after his motion had been overruled and that of the other party sustained, give evidence in support of his case. The court say that the offer to give evidence came too late, the cause having already been submitted to the court and the court having rendered its judgment on the motion.
In the case before us, the motions were not made until the close of all the evidence, and the request of defendant that the case be submitted to the...
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