Opinion
No. 36128
Decided May 4, 1960.
Appeal — Reversal for failure of proof of essential element of cause — Remand for new trial error, when — Final judgment.
APPEAL from the Court of Appeals for Hamilton County.
The relator, a former employee of the city of Cincinnati, brought this action in mandamus in the Common Pleas Court against the respondents as members of the Board of Trustees of the Retirement System of the City of Cincinnati to obtain a writ requiring respondents to grant relator's application for accidental disability retirement and to order payment of retirement benefits to relator.
The cause was submitted to the trial court on the pleadings and a stipulation of facts. The court, after hearing, allowed the writ. Respondents filed a motion for a new trial on the ground that there was no evidence of any nature in the record even tending to prove that relator's alleged heart attack, allegedly suffered while at home, in any way contributed to or caused the permanent total disability which resulted in his separation from the city's service two years later. The motion was overruled.
The Court of Appeals, on appeal on questions of law, held that no competent evidence had been offered to establish a causal connection between the alleged accidental injury complained of and the alleged disability occurring two years thereafter, reversed the judgment of the trial court and entered final judgment for respondents, but upon rehearing the Court of Appeals reversed the judgment and remanded the cause to the trial court for a new trial.
The allowance of a motion to certify the record brings the cause to this court for review.
Messrs. Gorman, Davis Hengelbrok, for appellee.
Mr. James W. Farrell, Jr., city solicitor, for appellants.
This cause having been tried to the trial court on the pleadings and stipulation of facts, the Court of Appeals, after reversing the judgment of the trial court in favor of the relator, for a complete failure of proof of an essential element of relator's case, was in error in remanding the cause for a new trial. Lakeside Hospital v. Kovar, Admr., 131 Ohio St. 333.
The judgment of the Court of Appeals, so far as it remands the cause for a new trial, is reversed, and final judgment is rendered for respondents.
Judgment accordingly.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.