Todd v. Fidelity & Casualty Co of New York

10 N.E.2d 184, 56 Ohio App. 195, 24 Ohio Law. Abs. 620, 9 Ohio Op. 295, 1936 Ohio App. LEXIS 363

Opinion

OPINION

By OVERMYER, J.

This is an appeal on questions of law in an action for money only brought by George M. Todd against the Fidelity & Casualty Company of New York. Issue was joined and on trial to a jury, at the conclusion of plaintiff’s evidence, the defendant company moved for a directed verdict in its favor, which motion was overruled. Thereupon, the defendant rested, and both sides rested, and the following proceedings appear in the record:

“By Mr. Campbell: The defendant renews its motion for a directed verdict.

“By the Court: Overruled.

“By Mr. James: Just a minute.

“By Mr. Campbell': Exception.

“By Mr. James: The plaintiff now moves for a directed verdict on the evidence.

“By Mr. Campbell: I want to know what the court holds the record is now?

“By the Court: The court will hold that they are double motions.

“By Mr. Campbell: Now pending before the court?

“By the Court: Yes.

“By Mr. Campbell: The defendant withdraws his.

“By Mr. James: Our motion will stand.

“By the Court: I will grant your motion.

“By Mr. Campbell: Exception.”

Thereupon the court directed the jury to return a verdict for the plaintiff in the amount determined by the court to be due the plaintiff.

Clearly, when the defendant withdrew its motion, which it had a right to withdraw after the court ruled that both motions were pending, there remained only the plaintiff’s motion pending and the jury could not be discharged from a consideration of the facts, there being fact issues presented by the evidence. P., C., C. & St. L. Ry. Co. v Luthy, 112 Oh St 321, 147 NE 336; Need v Hershman, 103 Oh St 13, 132 NE 19, 18 A.L.R. 1419.

The defendant’s withdrawal of its mo tion for a directed verdict was tantamount to a request to submit the case to the jury, and failure to so submit it was prejudicial error requiring a reversal. Judgment reversed and cause remanded.

CARPENTER, J, concurs. LLOYD, J, not participating.