
    BALTIMORE AMERICAN INSURANCE CO v RABKIN
    Ohio Appeals, 1st Dist, Hamilton Co
    No 4239.
    Decided April 17, 1933
    Harmon, Colston, Goldsmith & Hoadly, Cincinnati, for plaintiff in error.
    S. Geismar, Cincinnati, for defendant in error.
   OPINION

By ROSS, J.

It is obvious that the Philadelphia Fire & Marine Insurance Company was willing to pay a liberal sum to cancel the policy in view of the peculiarly hazardous character of the risk, the policy having suffered several losses in less than a week.

The Ellsberry Agency according to both the proof and the statute laws of this state was the agent of the Baltimore-American Insurance Company not the Gahagen Company, so that payment to the Agency was not payment to the Gahagen Company.

There is a complete absence of any proof authorizing the agency to dispose of the return premium, and the defense of the defendant therefore fails.

The defendant below moved for an instructed verdict at the close of the case of the plaintiff and again made the same motion at the close of all the evidence.

The plaintiff also made a motion for an instructed verdict simultaneously. Each motion was unrestricted and without reservation. This was a full submission of the entire case, both as to law and fact, to the court. The court could have discharged the jury and rendered judgment. However, if the weight of evidence be strictly construed in the light of the scintilla rule, the final judgment was correct, there, being no evidence to substantiate the defense.

The judgment is affirmed.

HAMILTON, PJ, and CUSHING, J, concur.  