
    LAUB BAKING CO. v. MIDDLETON OCEAN ACCIDENT & GTEE. CORP. LTD. v. MIDDLETON
    Ohio Supreme Court
    Nos. 20366 and 20367.
    Decided Feb. 15, 1928.
    Error to Cuyahoga Appeals.
    Judgment reversed.
    396 — DIRECTED VERDICTS — 791. Motions and Orders —398. Dismissals — 941. Practice and Procedure.
    1. Motion for directed verdict, after evidence all in, is submission to court within purview of 11586 GC. After decision thereon, favorable to defendant, plaintiff cannot dismiss without prejudice.
    2. Where proof and essential facts -and reasonable inferences are such that jury should arrive at hut one conclusion, duty of trial court to direct verdict.
    3. Where motion to direct verdict has been passed on, aggrieved party may seek reversal or final judgment in-reviewing court.
    4. .Refusal of trial court to direct verdict and dismissal without prejudice, constitutes final order within, purview of 12258 GC.
    6. Motion for new trial not necessary in application, by court, of law to facts on motion for directed verdict. Defeated party may rest solely on motion and need not. ask for new trial.
   JONES, J.

1. Where, after the parties have introduced their evidence and rested, a defendant moves the court for a directed verdict in his favor, the submission of such motion is a submission to the court within the purview of Section 11586. General Code.' After such submission and subsequent announcement of its conclusion favorable to the defendant, the plaintiff cannot have his cause dismissed without prejudice over the objection of the defendant.

2. When the proof of the essential facts put in issue and the reasonable inferences deducible therefrom are such that the jury, as fair minded men, should reasonably arrive at but one conclusion, it is the duty of the trial court to direct a verdict in favor of the party which such proof sustains.

3. In such a case, where a motion for a directed verdict has been íefused or sustained, the party aggrieved may seek a reversal or a final judgment in the reviewing court, if the whole evidence has been embodied in a bill of exceptions.

4. The refusal of a trial court to direct a verdict for a defendant, and its dimissal of the. cause without prejudice, determines that action and prevents a judgment in favor of defendant; this constitutes a final order within the purview of Section 12258, General Code, and is reviewable on error.

5. Where a motion for a new trial is necessary to determine the weight of the evidence, it is not necessary in the application, by the court, of the law to the facts on a motion for a directed verdict. The defeated party has the right to rest solely on his motion for a directed verdict; and, although he may do so, he is not compelled to ask for a new trial which be. may not desire.

(Marshall, CJ., Day, Allen, Kinkade and Matthias, JJ.,. concur.)  