
    The Baltimore & Ohio Railroad Co. v. Nobil.
    
      Motion for judgment notwithstanding verdict — Pleadings and not record — To be considered, when.
    
    In disposing of a motion for judgement notwithstanding the verdict of a jury, the trial court is confined to a consideration of the statements in the pleadings, and the record outside of the statements in the pleadings should not be considered in deciding such motion. McCoy et al. v. Jones et al., 61 Ohio St., 119, approved and followed.
    (No. 12028 —
    Decided December 12, 1911.)
    Error to the Circuit Court of Summit county.
    On the 9th day of January, 1908, the defendant in error commenced an action against the plaintiff in error, in the court of common pleas of Summit county, and in an amended petition subsequently filed, alleged that “on the 9th day of March, 1907, the said railroad company was a common carrier of goods for hire, from the city of Portsmouth, Ohio, to the city of Akron, Ohio, and that on said date, in consideration of the freight charges fixed by the defendant and which have been paid by plaintiff to defendant, defendant agreed to carry safely for plaintiff, from Portsmouth, Ohio, and to deliver to plaintiff at the city of Akron, Ohio, and the plaintiff then and there delivered to defendant for that purpose forty cases of shoes, of the value of $1,583.86.”
    A copy of the agreement was attached to the petition as an exhibit.
    The petition amended further alleges that, “defendant did not safely carry and deliver said goods, but failed so to do, and permitted thirty-eight cases of said shoes to become water soaked while in the possession of defendant for transportation as aforesaid, whereby said thirty-eight cases of shoes were wholly lost to plaintiff to his damage in the sum of $1,554.46, with interest,” etc., for which amount judgment is prayed.
    The railroad company, in an amended answer, admits its corporate capacity, and that it was a common carrier at the time and as alleged by the plaintiff. The answer proceeds to set out the important clauses in the bill of lading on which the shoes were shipped, among which are the following: “No carrier or party in possession of all or any of the property herein described, shall be liable for any loss thereof or damage thereto, by causes beyond its control; or by floods or by fire, or by quarantine, or by riots, strikes, or stoppage of labor; or by leakage, breakage, chafing, loss in weight, changes in weather, heat, frost, wet or decay; or from any cause if it bé necessary or is usual to carry such property upon open cars.”
    Another provision made in the bill is, that the carrier is not bound to carry the property by any particular train, or in time for any particular market; “or otherwise than with as reasonable despatch as its general business will permit.”
    The company admits that it received the forty cases of shoes for transportation, as alleged, and thirty-eight cases were, to some extent, damaged by becoming wet with water after delivery to the defendant.
    
      The company avers that the damage or loss, if any, resulting to said cases of shoes, “was wholly due to floods and causes beyond defendant’s control, floods, high water, inability to move rapidly, make up and run trains, and by unprecedented rain storms and high water, an act of Providence which defendant could not foresee, and against which it could not protect said property; that it handled and carried said goods with as reasonable despatch as its general business would permit, and was in no manner guilty of negligence with respect thereto, while the same were in its possession and control, and fully performed all the terms and conditions of said contract,” etc.
    The reply to the amended answer admits that the bill of lading contained the clauses copied therein, and that the contract for carriage is as alleged by defendant, and denies all allegations not admitted.
    On the issues thus made up, supplemented by some slight amendments, the cause came on to be heard to a jury, at the September term, 1908. The plaintiff introduced his evidence and rested. Thereupon the railroad company introduced its evidence and rested. At the close of all the evidence, the company moved the court to direct a verdict in its favor. This was overruled and the company excepted. The plaintiff submitted certain instructions, some of which were given by the court. Some of the requests of defendant were given, and others refused. The case was' argued by counsel and the court charged the jury thereafter. The jury returned a verdict finding for the plaintiff in the sum of $700. This verdict was filed on the 5th day of November, 1908.
    On the same day, the company filed a motion for judgment notwithstanding the verdict, on the following grounds; “that on the undisputed facts appearing of record, and notwithstanding said verdict, the plaintiff is not entitled to recover, and defendant is entitled to have judgment rendered in its favor.
    “As a matter of law, the jury should have returned a verdict for the defendant.
    “Under the law, as given to the jury by the court, and the undisputed facts appearing of record, the plaintiff, as a matter of law, was not entitled to recover and the defendant was.”
    On the next day, November 6, 1908, the company filed its motion for new trial, assigning ten grounds for the same, among others, that the court erred in admitting and also in excluding evidence; erred in giving instructions requested by plaintiff and erred in refusing to charge as requested by defendant, and erred in the general charge; also that verdict is contrary to law and not supported by any evidence; verdict not supported by sufficient evidence.
    Each of these motions remained pending until the January term, 1909, when the following action was taken by the court, as shown by the record:
    “January 18th, 1909. January Term. This cause coming on to be heard upon the motion of the defendant filed herein for judgment upon the undisputed facts of record, notwithstanding the verdict of the jury in favor of the plaintiff, and also the motion of said defendant to set aside and vacate the verdict of the jury and for a new trial and were argued by counsel and submitted to the court, and the court being fully advised in the premises, finds that the court erred in refusing to grant the motions of the defendant to direct the jury to return a verdict in favor of the defendant; and the court further finds that the plaintiff is not entitled to recover in this action; that defendant is entitled to judgment in its favor.
    “It is therefore accordingly considered, ordered and adjudged by the court that the said motion for judgment be and the same hereby is sustained ; that the plaintiff’s petition be and the same hereby is dismissed at his costs * * *.
    “It is further ordered that the motion for a new trial be and the same hereby is overruled, to which order and judgment in favor of the defendant and against the plaintiff, the plaintiff here and now excepts.”
    The plaintiff prosecuted error in the circuit court and specially assigned as error the sustaining of the motion of the defendant in error for judgment notwithstanding the verdict. The circuit court sustained this assignment, and for that error reversed the judgment of the court of common pleas and remanded the case.
    The railroad company brings error in this court to reverse the judgment of the circuit court.
    
      Messrs. Allen, Waters, Young & Andress, for plaintiff in error.
    
      Messrs. Grant, Sieber & Mather and Messrs. Otis, Beery & Otis, for defendant in error.
   Price, J.

The foregoing statement is a ’ history of a controversy which seems to have troubled and perhaps confused the trial court. The course of procedure adopted to. reach a final judgment was, in some respects heroic, but we fear that it is tainted with serious error.

The issues joined were clearly made up so that important questions of fact were in dispute by the pleadings, and it has not been suggested in brief or oral argument, that the defendant company was entitled to judgment on the pleadings. Both parties produced the evidence to the jury, and when it was closed the defendant moved for an instructed verdict which was denied. Counsel and the trial court recognized that there were disputed facts in the case for consideration of the jury; — counsel by formulating written charges to be -given supposed to bear on the line of controversy. The plaintiff desired instructions to the effect that it was incumbent on the defendant to show that the injury to the goods is within the terms of exemption contained in the bill of lading; that it resulted from causes beyond its control, and further that proper care, and skill were exercised by defendant to prevent such loss or injury; that defendant was free of negligence contributing to the loss. On behalf of the railroad company, the court was requested to and did charge on the subject of unprecedented floods, the act of God seen therein, and the jury were charged as to how the facts should appear to make out that special defense.

And in the general charge the court said: “whether in this case such ordinary and reasonable care were not used by the defendant and whether the loss, if any, resulted therefrom are questions for you to determine from all the facts and circumstances proved in the trial.” In the ample charge the jury were instructed how to apply the evidence of the parties. All these steps taken by counsel and recognized by the court, indicate that material facts were in dispute.

Under these instructions the jury found for the plaintiff below and assessed damages. On the day verdict was returned the railroad company moved for judgment non obstante veredicto, and the next day filed a motion for new trial. All this occurred during the September term, 1908. Silence seemed to prevail until the 18th day of January, 1909, when the above motions were taken up and the court'being obsessed of its plenary powers, sustained the motion for judgment and overruled the motion for new trial, and thus the plaintiff below was sent out of court with a judgment for costs on his head.

The court found it had erred in not granting the motion for a directed verdict, but recognized that it was without power to reverse that decision, and it was not reversed. The motion for new trial furnished another legal opportunity to pass on all the facts disputed and undisputed, where sound discretion may be exercised, but that was overruled.

We are not so far convinced of the unlimited powers of a trial court, that we can, after what had become a part of the record,, sanction a judgment upon what was alleged to be “undisputed facts.” Such a view trenches upon the solemn rulings of the court both preceding and concurrent, and we find no justification in practice or code for such a judgment. In fact the law condemns it.

There are somewhat well established unwritten rules of practice as to minor details of a trial, but they must conform to and not override the written code, for in it is found the general course of procedure at and throughout a trial, and the disposition of the rights of the parties until final judgment. This, the legislature in adopting the code, regarded as the better guarantee of an orderly and fair trial.

To this end we have Section 5327, Revised Statutes, to-wit: “When the verdict is special, or when there is a special finding on particular questions of fact, or when the case is reserved, the court shall order what judgment shall be entered.” The preceding section defines the duty of the clerk as to entering a judgment on a verdict and when the same shall be entered with respect to the filing of a motion for new trial.

Next we have Section 5328, Revised Statutes, which, as we think, controls the present case: “When, upon the statements in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, although a verdict has been found against such party.” It may happen that for lack of a test of the pleadings by demurrer or otherwise, the correct view of the statements in the pleadings may not have been taken by the trial court, or its attention challenged thereto whereas after the conflict to a jury is over, and all the light of the trial is reflected upon the pleadings, it becomes apparent that the verdict rendered has no foundation in the statements of the pleadings; or, that they demand that the judgment should go to the other party. In such case the court may render the proper judgment. The kind of judgment rendered by the trial court in this case has been considered by this court in at least two cases.

Challen v. Cincinnati, 40 Ohio St., 113, was a case for damages caused by change of street grade. There was a verdict for the plaintiffs against the city and it moved for a new trial, to which plaintiffs consented. The city then withdrew said motion and filed another, calling it a motion “in arrest of judgment and for judgment for the defendant on the pleadings.” The court entered upon the journal, against the objection and exception of the plaintiffs, the words: “it appearing to the court that by the admission of plaintiffs upon the trial they were not the owners of the premises at the time the work was done,” etc., and taking that entry with the pleadings, sustained the city’s motion and dismissed the action at plaintiffs’ costs. The district court affirmed the judgment, but when considered by this court it was held: “An admission made during the jury trial not incorporated into the pleadings, was only a part of the evidence, and has no place in the record except in a bill of exceptions. Hence, the statement of the journal must be disregarded. On such a motion the court could only look at the pleadings.” In the instant case the trial court wholly ignored the pleadings and acted on what the entry calls “undisputed facts appearing of record.”

If a confession or admission at a trial and in open court relating to such an important matter as ownership of the lots alleged to have been damaged, cannot be considered in connection with a motion for judgment on the pleadings, much less is a court authorized to wholly ignore the pleadings and render a judgment directly in the face of a jury verdict. A similar question came to this court in McCoy et al., Trustees, v. Jones et al., 61 Ohio St., 119. The suit in common pleas was on a promissory note payable to a lodge one day after date, and signed “Thomas Jones— J. Frock.” Payments of interest had been made. Jones made default and Frock filed an answer setting up that he was merely surety on the note and that without his knowledge or consent there had been an extension of time of payment. Other contracts of extension were pleaded in the answer. The issues were tried to a jury and a verdict returned against Frock for the amount due on the note. He filed a motion for a new trial, which, as was done in our case, was overruled, and he also filed a motion in arrest of judgment, of which the following is a part: “and moves the court, upon the statements 'in the pleadings and record herein, to arrest judgment on the verdict in this action against said Jeremiah Frock in favor of the plaintiffs, as by the same be is in law entitled to judgment against said plaintiffs * *

The trial court overruled the motion. On error the circuit court reversed the judgment of the common pleas and directed it to sustain the motion, whereupon the case came to this court on error respecting the above motion and perhaps another question of practice.

The holding of this court is clearly stated in the second paragraph of the syllabus, to-wit: “Courts are confined to a consideration of the statements in the pleadings in disposing of a motion for judgment notwithstanding the verdict, under Section 5328, Revised Statutes. The record outside of the statements in the pleadings should not be considered in disposing of such motion.” What the court say on pages 129-30 is very appropriate here, as the reasons for the ruling made plain.

In the case at bar, the above positive rule was violated, because the trial court went outside of the pleadings and rendered judgment on what the entry calls “undisputed facts.” It is unnecessary to pursue this subject further, in the light of the foregoing adjudications of the question.

The circuit court decided correctly in reversing the judgment of the court of common pleas, and the judgment of reversal is affirmed, and cause remanded to the court of common pleas for other and further proceedings according to law.

Judgment affirmed.

Spear, C. J., Johnson and Donahue, JJ., concur.

Davis and Shauck, JJ., dissent.  