
    GALLOWAY, Plaintiff, v. COLUMBUS-BROAD CORPORATION, etc., Defendant.
    Common Pleas Court, Franklin County.
    No. 190207.
    Decided November 8, 1954.
    David dayman, Samuel L. Zuravsky, Columbus, for plaintiff.
    Hamilton & Kramer, Columbus, for defendant.
   OPINION

By BARTLETT. J.

MOTION FOR LEAVE TO FILE AN AMENDED PETITION IS SUSTAINED, ON CONDITION PLAINTIFF PAY THE COSTS INCIDENT TO THE FILING OF THE DEFECTIVE PETITION, THE MOTION AND JUDGMENT ON THE PLEADINGS.

Previously the Court sustained a motion for judgment on the petition in favor of defendant on the ground that ultimate facts averred in the petition established, as a matter of law, the contributory negligence of the plaintiff.

Subsequently, the motion was filed, requesting leave to file an amended petition.

“3. Where a motion for judgment on the pleadings is made before trial and at a time when in effect such motion represents no more than a mere substitute for a demurrer to the petition, the plaintiff has the same rights with regard to amendment of a petition as he would have had if such a demurrer had been filed; and, if such motion is granted, plaintiff has the same rights with regard to amendment of his petition as he would have had if such a demurrer had been sustained.” Morton v. Fast, Exr., et al, 159 Oh St 381.

On page 387 of the opinion in the foregoing case, Judge Taft says:

“It is arguable that §11801 GC, authorizes a motion for judgment on the pleadings at any time and that defendant executor’s motion for an order of abatement and dismissal could be treated as such a motion. However, where such motion is made before trial and at a time such as in the instant case when, in effect, it represents no more than a mere substitute for a demurrer to the petition, the plaintiff should have the same rights with regard to amendment as provided in §§11361 and 11365 GC. This conclusion is fortified by the provisions of §11363 GC, reading in part:

“ ‘Before or after judgment, in furtherance of justice and on such terms as it deems proper, the court may amend any pleading * * * by inserting * * allegatons material to the case * * *.’”

Where a motion for judgment on the pleading is sustained:

“* * *, the pleader has the same right to appeal to the court's discretion to allow an amendment, or file other pleading, as he would have, were a demurrer made and sustained.” 31 O. Jur., Pleading, Sec. 288, p. 881.

“1. Courts should exercise great caution in rendering judgment upon the pleadings and opening statement of counsel, and the granting of a motion for such a judgment in favor of the defendant will be upheld only where it is clear that all facts stated and expected to be proved by plaintiff do not constitute a cause of action.” Ellis, Appellant, v. Victor Electric Products, Inc., Appellee, 85 Oh Ap 170.

After all the rights of the litigants themselves are paramount to the differences and views of their counsel; and the Court cannot maintain an unreasonable arbitrary attitude on such matters that would tend to create a lack of faith in the fairness of our judicial processes. Parties to law suits must not be forced to the conclusion that their rights are entirely subject to the frailities of the pleader in drawing their complaint.

“1. Under the provisions of §11365 GC, an amended petition may not be filed as a matter of right but the trial court is required to exercise sound discretion in permitting an amended petition to be filed.

“3. The meaning of the term ‘abuse of discretion’ in relation to the granting of a motion for leave to amend a pleading connotes more than an error of law or judgment; it implies an unreasonable, arbitrary, or unconscionable attitude on the part of the court.

“5. Although the reviewing court will seldom disturb the judgment of the trial court where the controversy involves a factual situation, where the trial court is required to exercise its discretion as to whether a defect in the petition has been remedied by a tendered amended petition the discretion to be exercised is somewhat limited and the reviewing court is in as good position as the trial court to determine the legal question propounded.” Davies v. Columbia Gas and Electric Corp., 51 Abs 372.

Motion for leave to file amended petition granted, on condition that plaintiff pay the costs incident to the filing of the defective petition, the motion and judgment on the pleadings. Sec. 2309.58 R. C.  