#### Magley, Appellee, *v.*The Masonic Temple Assn. of Columbus, Ohio, Appellant.

(No. 3957

— Decided February 3, 1947.)

*Mr. Horace S. Kerr,*for appellee.

*Messrs. Wiles & Doucher*and *Mr. Henry L. Scarlett,.*for appellant.

By the Court.

This is an appeal on questions of law from a' judgment of the Common Pleas Court of' Franklin county. The action was instituted by the-plaintiff filing a-petition alleging and claiming damages by reason of an explosion and fire occurring on the-property of the defendant. The case was tried by the court without the intervention of a jury and on the-issues joined the court found in favor of the defendant. After the lapse of several berms of court the plaintiff filed a petition for a new trial on the ground of newly discovered evidence. It was agreed between counsel that the matter could be submitted to the court. *521-on affidavits instead of at a formal hearing, and the case was conducted in that manner. To support the ■allegations in the petition the plaintiff submitted the •affidavits of Herrick L. Johnston and Dana J. Demo-rest. Those affidavits disclose that both of those gentlemen are chemists, who made an investigation as to the cause of the fire and the results of their examination •of certain lacquers, varnishes, enamels and paints ■as to their combustibility and explosiveness. On the submission of those affidavits the plaintiff rested his case. The trial court found in favor of the plaintiff and granted a new trial and it is to that judgment that this appeal is directed.

The assignments of error may be epitomized as follows:

(1) The court was in error in granting a new trial when there was no evidence in the record to prove the material allegations of the plaintiff’s petition.

(2) The court erred in failing to sustain the defendant’s motion for a judgment notwithstanding the ■decision of the court and to render a final judgment in favor of the defendant.

(3) The court erred in overruling the defendant’s motion for a new trial.

The particular statute under which newly discovered •evidence becomes a ground for a new trial is Section 11576, General Code. Subdivision seven of that section authorizes the granting of a new trial for, “Newly ■discovered evidence, material for the party applying, which with reasonable diligence he could not have •discovered and produced at the trial.”

It will be noted that under this section a new trial ■can be granted for newly discovered evidence which, first, is material to the party applying, and which with reasonable diligence he could not have discovered and produced at the trial.

*522■ Section 11580, General Code, provides that the application for a new trial after term may be made by petition. Section 11581, General Code, provides in part as follows: “The facts stated in such petition, shall be-considered as denied, without answer.”

Therefore, by that section, defendant denies that the plaintiff has newly discovered evidence material -for the plaintiff, which with reasonable diligence he could not have discovered and produced at the trial, and that such evidence was discovered after the term at which the judgment was rendered. That being denied hy the defendant without answer, the burden of proof was upon the plaintiff, as the Supreme Court said in the third paragraph of the syllabus in the case of *Sheen*v. *Kubiac,*131 Ohio St., 52, 1 N. E. (2d), 943:

“To warrant the granting of a motion for a new trial based on the ground of newty discovered evidence, it must be shown that (1) the new evidence must be such as will probably change the result if a new trial is granted, (2) it must have been discovered since the trial, (3) it must be such as .could not in the exercise of due diligence have been discovered before the trial, (4) it must be material to the issues, (5) it must not be merely cumulative to former evidence, and (6) it must not merely impeách or contradict the former evidence.”

Now, as stated, previously, the only evidence to support the plaintiff’s petition for a new trial was the two affidavits of Demorest and Johnston. We find nothing in the record to establish that such evidence was discovered since the trial, nor that it could not, in the ■exercise of due diligence, have been discovered before the trial. Those facts were properly alleged in the petition to vacate the judgment, but the record is totally lacking in any proof of them. Under Section 11581, General Code, some proof is rquired to establish those *523facts, the amount resting within, the sound discretion ■of the court.

In the case of *Thompson*v. *Longo,*16 Ohio Law Abs., 205, this court held as follows, in the fifth paragraph of the syllabus:

*“*Under the provisions of G. C. 11581 all of the material allegations of the petition for the vacation ■of a judgment after term are denied and must be proved by a preponderance of the evidence.”

The sixth paragraph of the syllabus in that case reads:

“A petition for vacation of a judgment after term and the granting of a new trial on the ground of newly discovered evidence must show that the evidence was not discovered until after term and could not have been discovered with reasonable diligence; that the evidence is material and would probably produce a ■different result. ’?

See also *Western Ohio Public Service Co.*v. *Incorporated Village of Yellow Springs,*38 Ohio Law Abs., 472; *Stroufe*v. *Guttman,*65 Ohio App., 556, 32 N. E. (2d), 444.

Counsel for the plaintiff, in his oral argument, ■stated when that new evidence was discovered and the diligence he pursued which would have been sufficient to sustain the ruling of the tria) court, but that is not in the record and counsel for the defense had no opportunity to cross-examine or file counter affidavits, and therefore it cannot' be considered by the court in passing upon this question.

Counsel for the plaintiff has filed a memorandum in which reference is made to several Ohio cases, none of which is exactly in point, or in opposition to the principles announced in the cases quoted, *supra.*

We áre of the opinion that the trial court was in error in granting a new trial under the evidence submitted on the record.

*524The next assignment of error is that the court erred in failing to sustain the defendant’s motion for a judgment notwithstanding the decision of the court and to render a final judgment in favor of the defendant. Prior to the filing of the motion for a new-trial the defendant filed a motion for a judgment notwithstanding the decision of the court. That motion was overruled prior to the overruling of the motion for a new trial.. Section 11601, General Code, is the section pertinent to such motion and it provides:

“When, upon the statements in the pleadings or upon the evidence received upon the trial, 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 and whether or not motion to direct a verdict may have been made or overruled, but no judgment shall be rendered by the court on the ground that the verdict is against the weight of the evidence.” (Italics ours.)

It will be noted the above-quoted section provides that when upon the evidence received in the trial of a cause a party is entitled to judgment, judgment shall be so rendered by the court. As stated previously, the record does not disclose that any of the new evidence was discovered after the trial. There is not a scintilla of evidence on the subject. The motion for a judgment notwithstanding the decision of the court was, therefore, one under Section 11601, General Code, and the courts have almost unanimously held that where a plaintiff fails to offer proof upon a material issue therein a judgment in his favor is contrary to law, and if the trial court fails to do this, it is the duty of the reviewing court to do so.

In the case of *Levin*v. *Kiska,*54 Ohio App., 408, 7 N. E. (2d), 666, the court held in the syllabus:

“1. Where a plaintiff in an action fails to offer *525proof upon a material issue therein, a judgment in his favor is contrary to law.

*“2.*Where a jury has returned a verdict for plaintiff, and the trial judge finds, upon the hearing of a motion for a new trial, filed by defendant and containing the ground that the judgment is contrary to law, that plaintiff failed to offer proof upon a material issue in the case, it is the duty of the trial judge, under the provisions of Section 11601, General Code, to enter judgment in favor of the defendant, regardless of whether a motion to direct a verdict in defendant’s favor was made and overruled, or not made at all, during the trial; and where the trial court fails or refuses to enter such judgment, it is the duty of the reviewing court so to do.”

The same principle is maintained in the ease of' *Woolley*v. *Fell,*24 Ohio Law Abs., 324, the first paragraph of the syllabus reading as follows:

“See. 11601 G. C. empowers a trial judge to examine the evidence and the pleadings after a jury verdict, and to render judgment *non obstante veredicto*against the party having the burden of proof if the state of the evidence is such that reasonable minds can arrive at but one conclusion and that adverse to the claim of the plaintiff, even though the court has overruled motions for a directed verdict at the conclusion of the plaintiff’s case in chief and at the conclusion of all the evidence.”

See also *Schaffer*v. *Aranyos,*25 Ohio Law Abs., 386, the third paragraph of the syllabus reading as follows:

“The right of a party to have judgment in his favor does not depend upon the making and overruling of a motion for a directed verdict, by virtue of the provisions of the amendment to Section 11601, General Code, 116 Ohio Laws, 413.”

The plaintiff says that the court could not have *526sustained that motion, eiting *Globe Indemnity Co.*v. *Schmitt,*76 Ohio App., 35, 63 N. E. (2d), 169. There the court held that where a special verdict alone is returned and a motion for a new trial is filed, the court has no jurisdiction to enter a judgment on such special verdict unless and until' the court has -overruled the motion for a new trial, and where the motion for a new trial is' granted the power to enter a judgment does not exist. We find that case is not in point, as it has application to Section 11599, General Code, while in the case at bar Section 11601, General Code, is applicable. We find the same situation in the case of *Fishback*v. *Norman,*78 Ohio App., 140, 69 N. E. (2d), 159, which has been cited by the plaintiff.

The motion for a judgment notwithstanding the finding of the court in this case was not directed to the findings in the original trial; but only to the finding-in the vacation proceedings. The cases cited by the plaintiff, *supra,*relate to the relation between a special verdict and a motion for a new trial. Such a verdict follows just as a general verdict follows if a motion for a new trial is allowed. Therefore, a judgment cannot be had upon a special verdict until the motion for a new trial is passed upon. A motion for a judgment notwithstanding the verdict is a right which a party has irrespective of the verdict and of the motion for a new trial.

Were our sympathies permitted to enter into this matter our decision would probably be otherwise; but under the recognized law of this state we.must find that the motion for a judgment notwithstanding .the decision of the court should have been sustained, and it is so ordered.

*Judgment accordingly.*

Hornbeck, P. J., Wiseman and Miller, JJ., concur.