City of Canton v. Pryke , 27 Ohio C.C. Dec. 536 ( 1916 )

Powell, J.

The defendant in error, Walter Pryke, recovered a judgment' against the city of Canton for damages arising from the loss of the personal services of his wife, by reason of the negligence of said city in the maintenance of its streets and street-crossings. Said judgment is brought into this court by petition in error for review. The question presented to us for adjudication is one of procedure, and not one arising out of the merits of the case.

The record shows that the case was on trial in the court of common pleas. The plaintiff, Pryke, offered his testimony and rested his case. The defendant, the city of Canton, then moved for a directed verdict in its favor. Whereupon the plaintiff joined in said motion, asking a directed verdict in favor of plaintiff. The court overruled the motion of defendant, and sustained the motion of plaintiff, directing a verdict in his favor in the sum of $2500, which verdict was returned by the jury, and judgment thereon entered. Defendant filed a motion for a new trial, which was overruled, aftd a bill of exceptions was taken, containing the entire record, and the same was filed in this court with the petition in error.

Did the court err in its action on said two motions for a directed verdict?

We are of the opinion that it did.

The conduct of the trial of a cause in the court of common pleas is provided for by Sections 11447 and 11448, General Code. By subdivision three of Section 11447 it is provided as follows:

“3. The party who would be defeated, if no evidence were offered on either side, first, must produce his evidence, and the adverse party must then produce his evidence.”

Pursuant to this direction plaintiff offered all his . evidence and rested. Defendant then, by his motion for a directed verdict, submitted for the consideration of the court the evidence offered by the plaintiff, with the claim that even if its truth were admitted it would not make a case that would entitle the plaintiff to a judgment. The action of the defendant was equivalent to a demurrer to the evidence, the only difference being in the legal effect of an order sustaining the same. Formerly on an order sustaining a demurrer to the evidence a non-suit was entered, which did not bar a second suit on the same cause of action; but now a judgment entered on an order sustaining a motion to direct a verdict is res adjudicata and no second suit can be maintained. Otherwise a motion to direct a verdict and a demurrer to the evidence are one and the same thing. A motion by the defendant to direct a verdict at the close of plaintiff’s case is not a submission of the defendant’s case, and cannot be made so by the plaintiff’s joining in such motion. He had nothing to submit that was not already submitted when he had offered his evidence and rested his case. His joining in defendant’s motion does not change the nature of it. It is still a motion testing the sufficiency of the plaintiff’s evidence, and is in no wise a submission of defendant’s case. It is said, however, that the record does not show any prejudicial error in the action of the court; that the defendant should have stated what it intended to prove by the evidence to be offered. We do not subscribe to this view. The statute above cited prescribes what the record should show. It should show that the plaintiff offered his evidence and rested; that a motion to direct a verdict was filed by the defendant and overruled; that the defendant then offered its evidence, or refused to offer any, as the case might be, and rested. -If its motion to direct a verdict was then renewed, as required by law, the whole case would be before the court and jury; and if then followed by a motion by the plaintiff for judgment on the whole case it would be & submission of the whole case to the court, as a matter of law, and without the intervention of the jury.

A case cannot be submitted and adjudicated on the submission of one side only. If-it is submitted on the evidence, it must be submitted on the whole evidence, and the record must so show. If on a motion for judgment on the pleadings, it must be on all the pleadings in the case, and not on any one of them. It was not necessary in this case to show what the evidence to be offered tended to prove. It was only necessary to show that the defendant had evidence to offer, or, if it had none to offer, that it rested its case. This the record does not show and the court erred in directing a verdict for plaintiff, and in entering judgment thereon without such evidence having been offered.

It is strongly contended in argument that the defendant waived its right to have its case submitted to a jury, and that it consented to have its case passed on by the court or that the court should direct such verdict to be returned as the pleadings and the evidence would warrant.

The right of trial by jury shall ever be held inviolate. And if a party who is entitled to a trial of his cause by jury, waives such right, the record ought to disclose such waiver in unequivocal terms. What does this record disclose that can be construed as a waiver of a jury trial and a submission of the same to the court without the intervention of a jury ?

The record shows that the court overruled the motion of defendant for a directed verdict and sustained the motion of plaintiff for such verdict. After this had been done counsel for plaintiff said: “We now ask that the case go to the jury on the facts.” Counsel for defendant said: “We object and insist that this is not the correct procedure.” The court then submitted the case to the jury by directing it to return a verdict for the plaintiff in the sum of $2500, which was done.

The majority of this court do not think that this action on the part of defendant constitutes a waiver of any of its rights. It was and is more of a protest to the action of the court in sustaining plaintiff’s motion for a directed verdict. There remained nothing to submit except only a direction by,the court to the jury to retire and réturn a verdict in an amount fixed by the court.

“The right of trial by jury, being guaranteed to all our citizens by the constitution of the state, cannot be invaded or violated by either legislative act or judicial order or decree.” Gibbs v. Village of Girard, 88 Ohio St., 34.

In the able opinion in the above case, at page 47, the judge writing the opinion says:

“So long as the trial by jury is a part of our system of jurisprudence its constitutional integrity and importance should be jealously safeguarded. The right of trial by .jury should be as inviolate in the working of our courts as it is in the wording of our constitutions.”

A majority of this court think there was no waiver of any rights on the part of the defendant, and that the court of common pleas erred in sustaining plaintiff’s motion for a directed verdict and in directing the jury to return the verdict that was returned. ■

Said judgment will therefore be reversed and the cause will be remanded to the court of common pleas for a new trial, and for such other proceedings as are authorized by law.

Judgment reversed, and cause remanded. •

Houck, J., concurs.