Richards v. Industrial Commission
| Decision Date | 01 June 1955 |
| Docket Number | No. 34178,34178 |
| Citation | 163 Ohio St. 439,127 N.E.2d 402 |
| Parties | , 56 O.O. 383 RICHARDS, Appellee, v. INDUSTRIAL COMMISSION of Ohio, Appellant. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. Where in the course of a trial the defendant appropriately moves for a directed verdict, which motion or motions are overruled, a verdict is returned for the defendant, and plaintiff's motion for a new trial is sustained, there emerges from such sequences of events a final appealable order, i. e., the overruling of the defendant's motion or motions for a directed verdict.
2. The timely filing of a notice of appeal is the only jurisdictional step in an appeal from the Court of Common Pleas to the Court of Appeals, and upon such filing the Court of Appeals may allow amendments of the notice of appeal, which, under the circumstances, are in the furtherance of justice. (Paragraph one of the syllabus of Damar Realty Co. v. City of Cleveland, 140 Ohio St. 432, 45 N.E.2d 209, and the case of In re Guardianship of Wisner, 148 Ohio St. 31, 72 N.E.2d 751, approved and followed.)
3. Where an appeal is perfected to the Court of Appeals by the timely filing in the trial court of a notice of appeal and such notice states that the appeal is from a judgment of the trial court sustaining a motion for a new trial, and where the appellant duly files as an assignment of error the overruling by the trial court of his motion for a directed verdict, which motion was made at the end of all the evidence, and where both the notice of appeal and such assignment of error are before both the Court of Appeals and the appellee for a period of over four months, an amendment to make the notice of appeal include the order overruling the motion for a directed verdict is an amendment which should be allowed in the furtherance of justice, and it is error for the Court of Appeals to refuse such amendment.
This action was instituted in the Common Pleas Court of Perry County as an appeal from an order of the Industrial Commission of Ohio, appellant herein, denying the plaintiff, appellee herein, the right to participate in the State Insurance Fund, for the death of her husband.
Plaintiff alleges in her petition that her husband's death was directly and proximately caused by 'unusually heavy exertion sustained in the course of his employment,' and prays for judgment against the defendant and that she be allowed to participate in the State Insurance Fund.
The defendant's answer specifically denies any right of plaintiff to so participate, and the issues were made upon plaintiff's petition, defendant's answer, and the record of proceedings before the Industrial Commission.
On February 6, 1953, the cause came on for hearing before a jury in the Common Pleas Court.
The defendant, at the end of the plaintiff's case and at the conclusion of all the evidence, moved for a directed verdict. The ruling on the former motion was reserved by the court and the latter motion was overruled at the time it was made.
A verdict was returned in favor of the defendant, and a judgment was rendered in accordance therewith on February 16, 1953.
On February 16, 1953, a motion for a new trial was made by the plaintiff, and this motion was sustained by the trial court on January 8, 1954.
On January 26, 1954, the defendant duly filed its notice of appeal in this langauge:
'The Industrial Commission of Ohio, defendant-appellant, hereby gives notice of appeal to the Court of Appeals of Perry County from a judgment rendered by the Court of Common Pleas in the above entitled cause, granting plaintiff's motion for new trial, on January 8, 1954.
'Said appeal is on questions of law.'
On March 22, 1954, the defendant filed its brief in the Court of Appeals, which listed as assigned errors the following:
'1. The Court of Common Pleas erred in overruling the motion of the defendant for a verdict to be directed in its favor, which motion was made at the end of all the evidence.
'2. The Court of Common Pleas erred in sustaining the plaintiff's motion for a new trial and in ordering the same.
'3. The granting of the plaintiff's motion for a new trial is contrary to law.
Two days later, on March 24, 1954, the plaintiff filed a motion to dismiss the appeal 'for the reason that the order of the Court of Common Pleas entered in that court on January 8, 1954, sustaining plaintiff-appellee's motion for a new trial and setting aside the verdict of the jury in the court below and granting a new trial, is not a final order which may be reviewed in the Court of Appeals.'
The appeal came on for hearing on August 5, 1954, at which time the defendant moved to amend its notice of appeal to read as follows:
'The Industrial Commission of Ohio, defendant-appellant, hereby gives notice of appeal to the Court of Appeals of Perry County from an order of the Court of Common Pleas of Perry County overruling a motion made by the defendant for the court to direct a verdict in its favor, which motion was made at the conclusion of all the evidence offered during the trial of this cause; and from an order of the Court of Common Pleas of Perry County made on January 8, 1954, which order vacated, set aside, and held for naught, a judgment entered in this cause in favor of the defendant and from the order of the court entered on the same date granting to the plaintiff a new trial.
'Said appeal is on questions of law.'
On the same day, August 5, 1954, the findings of the Court of Appeals were filed as incorporated in the following entry:
'This cause came on to be heard on the appellant's notice of appeal, the appellee's motion to dismiss the appeal, the briefs of the parties, and the argument of counsel:
'Whereupon, at the time of hearing in this court, appellant moved orally to amend its notice of appeal and thereafter reduced to writing said motion to amend the notice of appeal and seasonably filed the same with the Clerk of Courts.
'Upon consideration thereof, the court find that defendant-appellant's motion to amend its notice of appeal is not well taken and the same is, therefore, hereby overruled.
'The court further find that plaintiff-appellee's motion to dismiss the appeal is well taken and the same is, therefore, hereby sustained.
'It is therefore ordered, adjudged and decreed that the appeal be and the same is hereby dismissed, with costs to the appellant.
'Exceptions to appellant.'
The cause is before this court upon the allowance of defendant's motion to certify the record of the Court of Appeals.
C. William O'Neill, Atty. Gen., Paul Tague, Jr., James M. Videan and James F. DeLeone, Columbus, for appellant.
R. N. Larrimer, Columbus, Joseph C. Allen, New Lexington, and R. Brooke Alloway, Columbus, for appellee.
The question presented by defendant's only assigned error is: Did the Court of Appeals err in sustaining plaintiff's motion to dismiss the appeal?
To determine this question it is necessary first to consider the notice of appeal to the Court of Appeals, the assignment of errors in the Court of Appeals, the motion of defendant to amend the notice of appeal to include therein an order of the trial court duly assigned as error in its brief and the overruling of such motion by the Court of Appeals.
The determinative question before this court is: Did the Court of Appeals err in overruling the motion to amend the notice of appeal to include the order overruling defendant's motion for a directed verdict which was duly assigned as error and properly before the court?
The notice of appeal, as originally filed, reads as follows:
'The Industrial Commission of Ohio, defendant-appellant, hereby gives notice of appeal to the Court of Appeals of Perry County from a judgment rendered by the Court of Common Pleas in the above entitled cause, granting plaintiff's motion for a new trial, on January 8, 1954.
'Said appeal is on questions of law.' (Emphasis added.)
The assignment of errors, duly filed by the defendant in the Court of Appeals, is as follows:
'1. The Court of Common Pleas erred in overruling the motion of the defendant for a verdict to be directed in its favor, which motion was made at the end of all the evidence.
'2. The Court of Common Pleas erred in sustaining the plaintiff's motion for a new trial and in ordering the same.
'3. The granting of the plaintiff's motion for a new trial is contrary to law.
(Emphasis added.)
The defendant moved to amend the notice of appeal to read as follows:
'The Industrial Commission of Ohio, defendant-appellant, hereby gives notice of appeal to the Court of Appeals of Perry County from an order of the Court of Common Pleas of Perry County overruling a motion made by the defendant for the court to direct a verdict in its favor, which motion was made at the conclusion of all the evidence offered during the trial of this cause; and from an order of the Court of Common Pleas of Perry County made on January 8, 1954, which order vacated, set aside, and held for naught, a judgment entered in this cause in favor of the defendant, and from the order of the court entered on the same date granting to the plaintiff a new trial.
'Said appeal is on questions of law.' (Emphasis added.)
These are the sections of the Revised Code which must be considered:
Section 2505.05. ...
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