Opinion
No. 36247
Decided June 1, 1960.
Judgments — Jury unable to reach verdict — Motion by defendant for judgment on evidence — Sustention thereof — Not a finding of no evidence to support judgment for plaintiff — Right to retrial.
APPEAL from the Court of Appeals for Mahoning County.
This same cause was here before as reported in 168 Ohio St. 161, 151 N.E.2d 742. At that time the Court of Appeals had affirmed the judgment of the Court of Common Pleas, which sustained the motion to dismiss the petition on the ground that the trial court did not have jurisdiction of the subject matter of the cause of action. The judgment was reversed and the cause remanded for further proceedings.
Accordingly, it was tried on the original petition amended by leave of court so as to increase the amount of damages prayed for. An amended answer in the nature of a general denial was filed by the defendants. A jury was impaneled, and the presentation of testimony consumed four days. At the end of plaintiff's case, defendant union moved for a directed verdict in its favor on the ground "that there is no evidence to support the allegations in plaintiff's petition and that the acts committed by the defendant union are protected activities within the meaning of Section 7 of the National Labor Relations Act," which motion was overruled by the court. The motion for a directed verdict for the same reasons was renewed at the end of all the testimony and again overruled by the court. The cause was then submitted to the jury which deliberated for two and one half days without arriving at a verdict. After reporting to the court that its members were unable to reach a decision on the verdict, the jury was discharged on October 21, 1958, the entry being journalized the following day. Prior to that the jury was twice told by the court, during its deliberations and upon inquiry by it, that if it could not agree the case would have to be retried by another jury.
On October 23, 1958, a motion, captioned "Motion for Judgment on Disagreement of Jury" was filed reading, "Defendant respectfully moves the court for judgment in its favor, for the reason it is entitled by law to judgment upon the evidence received on the trial of this action, although the jury failed to reach a verdict and was discharged."
On January 28, 1959, the trial court sustained the motion and rendered judgment in favor of defendants. No opinion was rendered by the trial court setting forth the basis on which the motion was sustained and judgment entered for defendants. An appeal was prosecuted by plaintiff to the Court of Appeals, which court affirmed the judgment of the Court of Common Pleas, stating in its entry:
"The court, after careful consideration of the entire record finds that the plaintiff, appellant has not sustained the burden of proof resting upon him in support of the allegations contained in his petition and that the judgment of the trial court in sustaining the motion of the defendant, appellee for judgment on the evidence notwithstanding the failure of the jury to agree upon a verdict should be and the same is hereby affirmed."
The cause is before this court upon the allowance of a motion to certify the record.
Messrs. McDonald, Hopkins, Hood Hardy and Mr. Martin S. Goldberg, for appellant.
Messrs. Green, Schiavoni Murphy, for appellees.
Section 2323.18, Revised Code, provides, in part, as follows:
"When, upon the statements in the pleadings or upon the evidence received upon the trial, or both, one party is entitled by law to judgment in his favor, upon motion of such party, filed as provided in Section 2323.181 of the Revised Code, judgment shall be so rendered by the court although the jury may have failed to reach a verdict or a verdict has been rendered against such party and a judgment entered thereon, and whether or not a motion to direct a verdict has been made or overruled, but no judgment shall be rendered by the court on the ground that the verdict is against the weight of the evidence."
The motion for judgment in the Court of Common Pleas was sustained upon the claim that the defendant "is entitled by law to judgment upon the evidence received on the trial" and the affirmance by the Court of Appeals was based on the finding that the plaintiff "has not sustained the burden of proof resting upon him in support of the allegations contained in his petition."
The finding of the trial court that the defendant "is entitled by law to judgment upon the evidence received on the trial" was not a finding that there was no evidence to support a judgment for the plaintiff. If the judgment was so intended the trial court could have made that finding. It should be noted that defendant's request for judgment at the end of plaintiff's evidence was overruled and, when renewed at the end of all the testimony, was again overruled. The jurisdiction of the trial court to hear this action was determined by this court in its prior decision, supra. See, also, International Assn. of Machinists v. Gonzales, 356 U.S. 617, 2 L. Ed. (2d), 1018, 78 S. Ct., 923, and International Union v. Russell, 356 U.S. 634, 2 L. Ed. (2d), 1030, 78 S. Ct., 932. This leaves us, therefore, only the question of evidence.
Obviously, the trial court was not of the opinion that there was no evidence to support the plaintiff's cause or it would have so ruled at the end of all the testimony, if not at the end of plaintiff's testimony. The only construction remaining to be resolved so far as the trial court's decision is concerned relates to the burden of proof and the affirmance of the trial court's judgment by the Court of Appeals on the ground that plaintiff had "not sustained the burden of proof resting upon him." That appellate court finding recognizes that the finding of the trial court was reached by weighing the evidence. The affirmance was without an accompanying opinion explaining or setting forth how defendant "was entitled by law to judgment in his favor."
Had the jury arrived at a verdict for either plaintiff or defendants the trial court would have been without authority under Section 2323.18, Revised Code, quoted supra, to have rendered judgment for the adverse party on the basis of weight of the evidence. Upon such a finding, the trial court would have been required to grant a new trial. Had a verdict been found for either party and judgment entered accordingly, the Court of Appeals would have been without authority on appeal to enter final judgment for the adverse party or modify the trial court judgment (except as to remittitur) on the weight of the evidence.
The burden which rested upon the plaintiff in this case was to establish the material averments of his cause of action by a preponderance of all the evidence. Ginn, Admr., v. Dolan, 81 Ohio St. 121, 90 N.E. 141, 135 Am. St. Rep., 761; Klunk v. Hocking Valley Ry. Co., 74 Ohio St. 125, 77 N.E. 752; 21 Ohio Jurisprudence (2d), 161 et seq., Section 154; Brunny, Admx., v. Prudential Ins. Co., 151 Ohio St. 86, 93, 84 N.E.2d 504.
The fact that no verdict was rendered by the jury because of its failure to agree does not deprive the parties of their respective rights to try the case again. The trial court could have entered its judgment only after finding that at the conclusion of all the testimony and after construing all the relevant and competent evidence adduced most strongly in the plaintiff's favor, it was in law not sufficient to warrant the relief prayed for in the petition of the plaintiff.
In the case of Dick v. Railroad Co., 38 Ohio St. 389, at page 392, it is stated in the opinion:
"If there was evidence tending to support the issue, the court below erred in arresting it from the jury. It is only, where no evidence is introduced by the plaintiff, tending to support the issue, or where it is such as to show clearly, that he has no cause of action, that it is the duty of the court, to direct judgment of nonsuit."
In the case of Poske v. Mergl, 169 Ohio St. 70, 157 N.E.2d 344, this court stated the rule in relation to "weight" or "sufficiency" of the evidence, as a basis for a granting of a new trial. Paragraph one of the syllabus is as follows:
"Where the evidence in the trial of a case is such that the case must be submitted to a jury to find for either the plaintiff or defendant, and where the trial court after its review of the evidence on a motion for a new trial is convinced that there is insufficient credible evidence to sustain a judgment upon the verdict of the jury, such court may, in its discretion, grant not more than one new trial for that reason."
The finding by the trial court that judgment should be rendered "upon the evidence received on the trial" is insufficient to authorize judgment for the defendants and the finding of the Court of Appeals that plaintiff "has not sustained the burden of proof resting upon him in support of the allegations in his petition" is likewise insufficient. The judgment must, therefore, be reversed and the cause remanded to the Court of Common Pleas for a new trial.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, BELL and HERBERT, JJ., concur.
ZIMMERMAN, TAFT and PECK, JJ., dissent.