
    McClanahan, Appellee, v. Koviak, Appellee; Aetna Casualty & Surety Co., Appellant.
    
      (Decided May 15, 1939.)
    
      Mr. Harry Falk, for appellee, Kathleen McClanahan.
    
      Mr. Sanford A. Headley, for appellant.
   Matthews, J.

This is an appeal in an action against the marshal of the village of Sharonville and the surety upon his bond for damages because of invasion of the plaintiff’s rights, under color of his office. The claim of the plaintiff is that under color of his office, the marshal committed an assault and battery upon her and falsely imprisoned and maliciously prosecuted her.

The jury returned two general verdicts, one against the marshal for $2,500, and one against the surety for $1,000. In answer to a special interrogatory, it stated that it awarded $2,500 as punitive or exemplary damages.

The defendants filed motions for a new trial and for judgment notwithstanding the verdict. The motions for judgment were on the ground that the evidence disclosed that the defendants were entitled to judgment. They were substantial reiterations of the motions for an instructed verdict and for judgment made by the defendants at the close of the plaintiff’s evidence and at the close of all the evidence, which were overruled.

The motions for a new trial were granted and the motions for judgment were overruled.

It is from the refusal of the court to render judgment that this appeal was taken. That such an order, under such circumstances, is a judgment or final order' within Section 6 of Article IV of the Constitution, conferring jurisdiction upon this court seems to be settled by the cases of Hocking Valley Mining Co. v. Hunter, 130 Ohio St., 333, 199 N. E., 184; Cincinnati Goodwill Industries v. Neuerman, 130 Ohio St., 334, 199 N. E., 178; Hubbuch v. Springfield, 131 Ohio St., 413, 3 N. E. (2d), 359; Murphy v. Pittsburgh Plate Glass Co., 132 Ohio St., 68, 4 N. E. (2d), 983; and Michigan-Ohio-Indiana Coal Assn. v. Nigh, Admx., 131 Ohio St., 405, 3 N. E. (2d), 355.

That this court has jurisdiction to review such an order is clear, but the exercise of such jurisdiction in a particular ease is dependent upon it being invoked in the manner and within the time provided by statute. This brings us to the first question presented by this record. Was the jurisdiction invoked within time? If it was not, we have no power to consider or review the action of the trial court in overruling the motions for an instructed verdict, and for judgment notwithstanding the verdict.

The motions for an instructed verdict at the close of all the evidence were overruled on November 16, 1938. On December 9, 1938, the motions for a new trial, which were filed within three days after the verdict, were sustained and the motions for judgment notwithstanding the verdict were overruled. The notice of intention to appeal was filed on December 15, 1938. Twenty-nine days elapsed between the overruling of the motions for an instructed verdict and the filing of the notice of intention to appeal, and five days between such notice and the order granting the new trial and overruling the motions for judgment notwithstanding the verdict.

Section 12223-7, G-eneral Code, provides that the appeal shall be perfected within twenty days “after the entry of the order, judgment, decree, or other matter for review,” with this proviso, as amended effective August 23, 1937:

“Provided, that, when a motion for a new trial is duly filed by either party within three days after the verdict or decision then the time of perfecting the appeal shall not begin to run until the entry of the order overruling or sustaining the motion for new trial. ’ ’

It seems clear from this proviso that, although the motions for an instructed verdict were overruled on November 16, 1938, the time for perfecting the appeal did not start to run until December 9, 1938, when the entry was made journalizing the court's ruling on the motions for a new trial.

While the granting of a motion for a new trial is not a final order in the absence of an abuse of discretion and is, therefore, not reviewable by this court (Hoffman v. Knollman, 135 Ohio St., 170, 20 N. E. [2d], 221), we know of nothing to preclude the Legislature from fixing that date for the commencement of the running of the period of limitation for the invoking of the jurisdiction of this court to review the action of the trial court in overruling the motions for an instructed verdict and for judgment notwithstanding the verdict, which are judgments or final orders.

We proceed, therefore, to consider the action of the trial court in overruling these motions.

(1) In passing upon the motions for an instructed verdict, it was the duty of the court to overrule them if, construing the evidence most favorably to the plaintiff, reasonable minds could reach different conclusions. Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 189 N. E., 246. And it is the duty of this court in. reviewing the action of the trial court in this respect to observe the same rule. Now, with this in mind, we consider the evidence in the record.

If the plaintiff’s testimony is accepted as true she committed no offense in the marshal’s presence. There was nothing in her conduct which would cause a reasonable man to conclude that she had. Upon what hypothesis then could she be lawfully arrested and deprived of her liberty? The marshal was not acting under the mandate of a warrant, fair upon its face. The arrest was without a warrant. His authority, therefore, was limited to those “found violating a law of this state, or an ordinance of a city or village.’-’ Section 13432-1, General Code. ■ Assuming that an appearance of criminal conduct by the person arrested which would cause a reasonable person to conclude that a crime was being committed in his presence is sufficient to satisfy the statute and create authority in the marshal (and we think that is the rule), 3 Ohio Jurisprudence, 176, Section 41, still, in this case, the evidence was properly submitted to the jury to draw the inferences and pass upon the credibility of the witnesses.

The motions of the defendants for an instructed verdict were, therefore, properly overruled.

(2) The jury, in answer to a special interrogatory, stated that it awarded $2,500 as exemplary or punitive damages. As that is the exact amount of the general verdict, it is urged by the surety that inasmuch as it is only liable for compensatory damages, the court should have rendered final judgment in its favor on this finding under the provisions of Section 11420-18, General Code.

It is true that a corporation is not liable for exemplary damages, unless through its governing officers it directed, participated in, or ratified the wrongful act justifying the award of exemplary damages. Go lumbus Ry., P. & L. Co. v. Harrison, 109 Ohio St., 526, 143 N. E., 32.

It is equally true that iu no case may exemplary damages be awarded against any defendant unless there is actual damage. 13 Ohio Jurisprudence, 243, Section 144; Cahill v. Fidelity & Casualty Co., 37 Ohio App., 444, 175 N. E., 39.

So that if the implication drawn by appellant corporation is sound, the answer to the special interrogatory would require the entering of a judgment in favor of both defendants.

But the jury found on the issue of liability in favor of the plaintiff. It found that the arrest was unlawful. A finding — general or special — that no actual damage resulted from this unlawful act under the evidence in this case would be manifestly against the weight of the evidence.

We find that the court did not err in not entering judgment for this defendant upon the special finding.

We note that since the granting of the motions for a new trial, an amended petition has been filed under which new issues may be presented for determination of the jury, as for instance, excessive force amounting to an assault and battery. Comment on rulings on. evidence relating to the issues would serve no purpose.

We find on the whole record that the court did not err in refusing to enter judgment for the defendants and limit our decision to that finding.

The orders appealed from are affirmed.

Judgment affirmed.

Hamilton, P. J., and Ross, J., concur.  