Summary
In McKellips v. Industrial Commission, 145 Ohio St. 79, 60 N.E.2d 667, a case was tried to the court without a jury — no motion of any kind was made at the conclusion of the evidence.
Summary of this case from Welge v. WelgeOpinion
No. 30109
Decided April 11, 1945.
Trial practice — Directed verdict or nonsuit — Motion by defendant at conclusion of plaintiff's evidence — Motion not renewed at close of all evidence — Issues submitted to trial court as question of fact — Appeal — Sole issue whether judgment sustained by sufficient evidence — Defendant not entitled to judgment on legal insufficiency of evidence — Weight of evidence not reviewed by Supreme Court.
APPEAL from the Court of Appeals of Defiance county.
This action was instituted in the Court of Common Pleas of Defiance county as an appeal from an order of the Industrial Commission disallowing plaintiff's claim for compensation from the state insurance fund.
Issue was made in that court on the petition of the plaintiff, McKellips, and the answer of the defendant, Industrial Commission. A jury was waived and the matter was heard by the court. At the conclusion of the plaintiff's case, the defendant moved for an order to arrest the taking of any further testimony and for a directed verdict in its favor. The record shows no action of the court on the motion, but the defendant proceeded to introduce evidence in defense. At the conclusion of all the evidence, the motion for a directed verdict or for nonsuit was not renewed, and the case was submitted.
The court found upon the issues joined in favor of the plaintiff, and that the plaintiff was entitled to participate in the state insurance fund. A motion for a new trial was thereafter filed and overruled, and the defendant appealed to the Court of Appeals, which court, holding that there was "credible and substantial evidence to support the finding and judgment of the Common Pleas Court, and the finding and judgment are neither contrary to law nor against the weight of the evidence," affirmed the judgment of the Common Pleas Court.
The case is before this court upon the allowance of a motion to certify the record of the Court of Appeals.
Mr. H.B. Mulholland, for appellee.
Mr. Thomas J. Herbert and Mr. Hugh S. Jenkins, attorneys general, Mr. Robert E. Hall and Mr. C.G.L. Yearick, for appellant.
An examination of the record herein shows that no motion for a directed verdict or for non-suit was made by the defendant after all the evidence had been introduced. By such failure to move for a directed verdict, which would challenge the legal sufficiency on the entire evidence adduced, the defendant submitted the issues to the trial court as a question of fact. "Without such challenge the whole case goes to the jury." Cincinnati Traction Co. v. Durack, Admx., 78 Ohio St. 243, 85 N.E. 38.
Unless a motion for a directed verdict is renewed at the close of all the evidence, error cannot be predicated upon the refusal of the court to direct a verdict.
Upon appeal to the Court of Appeals, the issue presented was simply whether the judgment of the trial court was sustained by sufficient evidence. The defendant was not entitled to a judgment in its favor based on the legal insufficiency of the evidence, since he had made no such challenge by appropriate motion. This court, in the case of Whitaker, Admr., v. Michigan Mutual Life Ins. Co., 77 Ohio St. 518, 83 N.E. 899, paragraph two of the syllabus, held:
"Although a party against whom a verdict is returned and a judgment is rendered in the Court of Common Pleas may have been entitled to an instruction to the jury to return a verdict in his favor, he is not, on that account, entitled to a final judgment in his favor in a reviewing court unless upon the trial he has requested that such instruction be given."
The Court of Appeals found the judgment not to be "against the weight of the evidence." This court does not weigh the evidence. It follows, therefore, the judgment of the Court of Appeals should be and is hereby affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, BELL, WILLIAMS, TURNER, MATTHIAS and HART, JJ., concur.