Opinion
No. 25761
Decided May 20, 1936.
Trial practice — Jury waived and case submitted to court, when — Motions made for directed verdict and for judgment — Court discharged jury and counsel argued merits — Subsequent motion to submit case to jury, inoperative as reservation, when — Error proceedings — Findings and judgment for plaintiff, not reversed, when.
1. Counsel waive the right to have a jury pass on questions of fact and submit their case to the court for determination on both the facts and the law where, at the close of all the evidence in a jury case, counsel for plaintiff moves for a directed verdict and counsel for defendant moves for judgment, without any reservations, whereupon the trial judge announces he will dispose of the case, discharging the jury, without objection, and both counsel then argue the case to the court on the merits, at the conclusion of which argument counsel for defendant, upon provocation by opposing counsel, indicates an intention to withdraw his motion and expresses the opinion that the court had no right to discharge the jury, but does nothing more, and subsequently agrees to submit a memorandum on the law applicable to the case.
2. A motion filed eight days thereafter by counsel for defendant, in which he asks the court for separate findings of fact and conclusions of law in connection with the ruling on the motion for judgment, and in the event such ruling is unfavorable, reserving the right to have the case submitted to the jury on the facts, comes too late insofar as the reservation is concerned; and when the trial judge overrules the motion for judgment, he properly denies the application to have the case submitted to the jury.
3. When in such case the findings and judgment of the court in favor of the plaintiff are supported by substantial evidence with a correct application of legal principles, they will not be disturbed by a reviewing court on error.
ERROR to the Court of Appeals of Franklin county.
This case is here upon an order requiring the Court of Appeals to certify its record.
Plaintiff in error, The Buckeye State Building Loan Company, hereinafter referred to as "the company," filed its petition against Hannah Schmidt, defendant in error herein, and others, in the Court of Common Pleas of Franklin county. Two causes of action were stated. The first asked judgment on a promissory note alleged to have been executed by Mrs. Schmidt to the company, the amount claimed being $1925.29, with interest; the second sought foreclosure of a real estate mortgage averred to have been given to secure the note.
Mrs. Schmidt's answer contained three defenses: First, a denial of the execution of the note and mortgage; second, that if she did execute them her signature was secured by fraud; third, failure of consideration.
A reply was filed denying the affirmative allegations of the answer.
The cause came on for trial before a judge and jury, the company limiting the presentation of its case to the first cause of action set out in the petition, to which no objection was registered.
It appears from the record that Mrs. Schmidt and one George R. Mitchell owned separate residence properties in the city of Columbus. They were brought together for an exchange thereof by two real estate agents. For the purposes of the exchange Mrs. Schmidt's unencumbered property was given an agreed valuation of $4350, and Mitchell's a valuation of $8750, against which there was a mortgage of $6051, to be assumed by Mrs. Schmidt. This left Mitchell owing Mrs. Schmidt $1651.
Mitchell was apparently without ready money. One of the real estate agents, purportedly for and on behalf of Mrs. Schmidt, and using her name, made written application to the company for a loan of $2100 on her property, which was granted. All interested parties thereafter assembled at the office of the company to complete the exchange. An assistant attorney of the company was present ostensibly to represent its interests. There was a promissory note of $2100 (being the one now in issue) for Mrs. Schmidt's signature and a mortgage on her property to secure the same, also to be signed by her; a warranty deed from Mitchell to Mrs. Schmidt for his property, wherein she assumed and agreed to pay the mortgage of $6051 thereon; a warranty deed from Mrs. Schmidt to Mitchell for her property, wherein he assumed and agreed to pay the mortgage of $2100 thereon. In addition there were four checks drawn by the company to Mrs. Schmidt's order in the total amount of $2072.50. The discrepancy between that sum and $2100 is not clearly accounted for. It may be represented by the charge of the company for examining the title to the Schmidt property and for the preparation of the instruments involved. Mrs. Schmidt received a check for $1433.73; Mitchell got one for $421.77, and one of the real estate agents got two aggregating $217.
Mrs. Schmidt readily admitted executing the deed to Mitchell and stated she knew it contained a clause whereby he assumed a mortgage for $2100. She finally admitted her signature on the $2100 note and her endorsements on the four checks. However, she maintained ignorance of the portent and significance of the transaction as a whole and asserted she was unaware of and uninformed as to her obligation to pay the $2100 loan upon default in the payment thereof by Mitchell.
The specific fraud she charged to the company was that while its attorney told her she was attaching her signature to the deed and to the assignment of an insurance policy on her property, he failed to describe the other instruments and merely designated the different places for her signature, so that she did not appreciate or realize what she was signing. She also testified that the attorney advised her she would not be bound for anything, as Mr. Mitchell was assuming all obligations. This last statement was modified somewhat at the close of her cross-examination when in response to several questions by the court she indicated that the attorney's remark was limited to the assertion that "Mr. Mitchell would assume the obligation."
At the close of all the evidence Mr. Rector, attorney for plaintiff in error, moved for a directed verdict for the company on the first cause of action in the petition. Whereupon, Mr. Knepper, representing defendant in error, moved for judgment in favor of his client on both the first and second causes of action.
The record then shows the following:
"Mr. Rector: That leaves the case for the Court, I assume.
"The Court: Yes, the jury is excused then and the Court will dispose of the case. Report to the Assignment Commissioner. I think there will be nothing further in this room this afternoon.
"Do counsel wish to make any argument? * * *
"And thereupon, after a brief argument by counsel, Mr. Rector said:
"If the motion of the plaintiff is denied, we reserve the right to introduce further testimony.
"Mr. Knepper: Well, now, if we are at that stage —
"The Court: We won't cross that bridge until we get to it. We have not got to that bridge yet. No use crossing it until we get there, is there? Nothing you can do about it now.
"Mr. Knepper: Well, but you place me in this position now, Your Honor; if there is any question about that, why I have got to withdraw my motion now. I cannot wait until then and have a decision here and then have —
"The Court: The jury is gone; excused, discharged.
"Mr. Knepper: Oh, well, of course I don't think that can be done. I don't think Your Honor has any right to do that so we will not waste any time on that.
"Mr. Rector: Do I understand that briefs are to be submitted?
"The Court: I am asking Mr. Knepper to submit any memorandum on the law he wants to by Saturday.
"Mr. Knepper: I say to Your Honor we will submit a memorandum and will furnish counsel with a copy.
"The Court: All right."
The discharge of the jury and the above colloquy took place on Tuesday afternoon, October 23, 1934. On Wednesday, October 31, 1934, counsel for defendant in error filed the following motion:
"Now comes defendant, Hannah Schmidt, and respectfully asks the Court in the decision of her motion heretofore filed for judgment on the first and second causes of action set forth in plaintiff's petition to state and find the conclusions of facts involved in the above case separate and distinct from conclusions of law; and further, defendant, in the event that the Court overrules her said motion, respectfully reserves the right to have this case submitted to the jury for determination on the evidence."
The trial court found for plaintiff in error on the first cause of action in its petition, and rendered judgment in its favor for the amount claimed, with interest; overruled the motion of defendant in error for judgment in her favor on the second cause of action, and also her motion for submission of her cause to the jury, in the event of adverse action by the court. Subsequently, a motion for a new trial was overruled.
On error the Court of Appeals was of the opinion that under the evidence in the case the trial court acting as a jury was warranted in finding for the plaintiff in error and against the defendant in error, but placed its judgment of reversal on the grounds: "That the Common Pleas Court erred in overruling and refusing to sustain the motion of * * * Hannah Schmidt, filed October 31, 1934, to have the case submitted to a jury in the event the court overruled her motion for a directed verdict in her favor and in the refusal of the court to grant her motion for a new trial."
Messrs. Wilson Rector, for plaintiff in error.
Messrs. Knepper, White, Smith Dempsey, for defendant in error.
Assuming that the instant case presented questions of fact for the jury, did counsel for the parties by their behavior waive their right to a determination of such facts by the jury?
The following statement is made in 39 Ohio Jurisprudence, 877 and 878, Section 220:
"Although it may be regarded as settled in Ohio that where each party asks for a directed verdict in his favor and nothing further is said or done by them, a presumption arises that they intend to waive the right to a submission to a jury and consent to a decision by the court on the questions of fact involved as well as the questions of law, that rule does not apply if either party, in connection with these motions, makes a timely request to go to the jury on questions of fact. In other words, if one of the parties indicates to the court at the proper time his desire to avail himself of his right to have the questions of fact submitted to the jury, it is the duty of the trial court to give to such party an opportunity to exercise this right." (Italics ours.)
Probably the leading cases in Ohio on this question are First National Bank v. Hayes Sons, 64 Ohio St. 100, 59 N.E. 893; Perkins v. Putnam County Commrs., 88 Ohio St. 495, 103 N.E. 377; Nead v. Hershman, 103 Ohio St. 12, 132 N.E. 19, 18 A. L. R., 1419; P., C., C. St. L. Ry. Co. v. Luthy, Admr., 112 Ohio St. 321, 147 N.E. 336. These cases, in holding that the party whose motion for a directed verdict is denied, or against whom a verdict is directed, is then privileged to demand a submission of the factual issues in the case to the jury, contemplate, on their facts, a situation where the court acts promptly in disposing of the motions and the jury which has heard the evidence is still in the box or under control of the court and immediately available for further service in the case. The matter of waiver under circumstances resembling those now presented did not arise and was not considered.
Let us examine what transpired in the present case. At the conclusion of all the evidence counsel for plaintiff in error moved for a directed verdict and counsel for defendant in error moved for judgment. Neither motion included a reservation of any kind. Counsel for plaintiff in error then said, "That leaves the case for the Court, I assume." Counsel for defendant in error remained silent. The language addressed by the court to the jury in excusing them carries an unmistakable note of finality. There was no suggestion that they might be recalled in the case nor was there any admonition as to their conduct in regard to the case. Still counsel for defendant in error remained silent. Thereupon the case was argued to the court on its merits by both counsel. While, later on, counsel for defendant in error indicated an intention to withdraw his motion and expressed the opinion that the court had no right to discharge the jury, he did nothing effective about it. To preserve the question (if it was not then too late) he should have withdrawn his motion and demanded an immediate recall of the jury, reserving an exception if the court had declined to accede. He did neither. Indicative of the acquiescence of counsel for defendant in error to the discharge of the jury was his agreement to submit a memorandum on the law pertaining to the case within a period of several days. Accompanying such memorandum, he filed the double-barreled motion of October 31, 1934, in which he asked the court for findings of fact and conclusions of law, and then added that if the court should overrule the motion for judgment on the first and second causes of action in the petition, the right was reserved to submit the case to the jury for determination on the evidence. That reservation came too late and the trial court correctly held against it on the theory of waiver.
We shall not extend this opinion by commenting on the cases about to be cited. In our estimation they support our conclusion on the phase of the controversy under discussion. Conkling v. Knights Ladies of Security, 183 Iowa 665, 166 N.W. 384 (with which compare Manska v. San Benito Land Co., 191 Iowa 1284, 184 N.W. 345, 18 A. L. R., 1430, and Bukowski v. Security Ben. Assn., . . . Iowa, . . ., 265 N.W. 132); Bonacorso v. Camden Fire Ins. Assn., 130 Neb. 203, 264 N.W. 442; Sioux National Bank v. Lundberg, 54 S.D. 581, 223 N.W. 826; Secor v. Ardsley Ice Co. 117 N.Y. Supp., 414, 133 App. Div. 136 (Affirmed, 201 N.Y. 603, 95 N.E. 1139); New York v. Thirty-fourth St. Crosstown Ry. Co., 122 N.Y. Supp., 344, 137 App. Div. 644; General Tire Co. v. Standard Accident Ins. Co. (C.C.A. 8), 65 F.2d 237, 239.
Passing the question as to whether the trial court should have directed a verdict for plaintiff in error on the first cause of action, as a matter of law, we are convinced, as was the Court of Appeals, that there was certainly sufficient evidence to support the trial court's findings and judgment.
The general rule is that fraud is never presumed but must be proved by the one who asserts it. 19 Ohio Jurisprudence, 507, Section 232.
It may be that a fraud was perpetrated on Mrs. Schmidt by some person or persons in the manner in which the exchange of the properties was manipulated, but placing the finger of guilt on the loan company is fraught with difficulties. There is nothing to show that the company was acquainted with Mrs. Schmidt's ignorance of the details of the transaction. There is nothing to show that any of the instruments she signed were misrepresented to her. There is nothing to show that she was denied the opportunity of reading what she signed or that she was denied the privilege of seeking independent advice. The only consequential charge against the company is that its attorney informed Mrs. Schmidt she would not be bound on the obligation, as Mitchell was assuming it, and that is by no means conclusive of fraud. No motive is shown as to why the company should have desired to commit a fraud against Mrs. Schmidt. It paid out its money to the extent of nearly $2100, from which amount Mrs. Schmidt personally benefited in the sum of $1433.73, with a distribution of the balance in accordance with her presumed intention.
It follows that the judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed.
Judgment reversed.
WEYGANDT, C.J., STEPHENSON, WILLIAMS, JONES, MATTHIAS and DAY, JJ., concur.