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ity to perform their duties solely because they are assistants and have been given the work to do by the city solicitor.

This proviso, we think, was intended to enable the solicitor to wholly separate himself from the duties of the office of prosecuting attorney of the police court, and in effect to make an appointment to that position.

It is urged that as the sole provision for compensation is found in the section referred to, which provides that the solicitor shall be prosecuting attorney "and shall receive for this service such compensation," therefore the solicitor himself is the one to whom the compensation is given. But in the view we have taken the section gives him authority to appoint an assistant to "perform this service" and relieve himself from it. Manifestly the legislature intended that the one performing this service should receive the compensation. The language of the statute is "shall receive for this service such compensation."

In the recent codification of the statutes the sections under investigation here are included in Sections 4306 and 4307, General Code. In Section 4306 it is provided that the solicitor may designate an assistant to perform such services, and in Section 4307 it is provided that the persons thus appointed shall be subject to approval of council and such assistants shall receive for their services in city cases such salaries as the council may prescribe, and the county commissioners may allow such further compensation as they deem proper.

Whatever consideration may be given to a general codification in the ascertainment of legislative

Opinion of the Court.

intent may be properly invoked here, although it must be conceded that in this instance the language employed in the codification is more explicit than in the original act.

For the reasons given the judgments of the circuit court and common pleas will be reversed and the cause remanded to the court of common pleas with instructions to enter judgment for plaintiff in error.

Judgments reversed.

DONAHUE, WANAMAKER and NEWMAN, JJ., NICHOLS, C. J., not participating.

concur.

PERKINS V. THE BOARD OF COUNTY COMMISSIONERS OF PUTNAM COUNTY.

Motions by both plaintiff and defendant for directed verdict-Subsequent motion to submit case to jury-Case to be submitted to jury, when.

(No. 13308-Decided October 14, 1913.)

ERROR to the Circuit Court of Putnam county.

Messrs. Bailey & Leasure, for plaintiff in error. Mr. J. W. Smith, for defendant in error.

BY THE COURT. Plaintiff brought an action in the common pleas court of Putnam county against defendant for damages on account of injuries claimed to have been sustained through the negli

Opinion of the Court.

To the

gence and carelessness of defendant. petition was filed an answer consisting of a general denial and the defense of contributory negligence. The charge of contributory negligence was denied by reply.

The case went to trial to a jury, and, at the close of all the evidence, defendant moved the court to instruct the jury to return a verdict in its favor, and, thereupon, plaintiff moved for a directed verdict in his favor. These two motions were presented to the court and the motion of defendant was overruled. Thereupon, a request was made by defendant that the case be submitted to the jury for its determination on the evidence, which request was refused. The court then sustained the motion of plaintiff for a directed verdict in his favor, and the jury found for him in an amount directed by the court. Upon the overruling of the motion for a new trial by defendant, judgment was rendered in favor of plaintiff in the amount found by the jury in the directed verdict.

Error was prosecuted to the circuit court by the defendant in error herein, and that court reversed the judgment of the court of common pleas upon the sole ground that the court had erred in refusing the request of the defendant below to submit the cause to the jury on the evidence after its motion to direct a verdict at the close of all the evidence had been overruled, the circuit court finding no further error in the record.

Plaintiff in error is seeking a reversal of the judgment of the circuit court, and we shall refer briefly to the cases cited in support of his contention.

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In the case of Strangward v. American Brass Bedstead Co., 82 Ohio St., 121, a motion was made by each party after the impaneling of the jury for a verdict on the pleadings. The court held that such motion by each party was a waiver of a jury trial and a submission of the case to the court, and that a party could not, as of right, after his motion had been overruled and that of the other party sustained, give evidence in support of his case. The court say that the offer to give evidence came too late, the cause having already been submitted to the court and the court having rendered its judgment on the motion.

In the case before us, the motions were not made until the close of all the evidence, and the request of defendant that the case be submitted to the jury was made before judgment was rendered.

In First Natl. Bank v. Hayes & Sons, 64 Ohio St., 100, it is held that where at the conclusion of the evidence in the case each party requests the court to instruct the jury to render a verdict in his favor, the parties thereby clothe the court with the functions of a jury, and where the party whose request is denied, does not thereupon request to go to the jury upon the facts, the verdict so rendered should not be set aside by a reviewing court, unless clearly against the weight of the evidence.

It will be observed in that case that the party whose motion for a directed verdict was denied did not request the court to submit the case to the jury for its determination upon the evidence. Had such a request been made, it is obvious from the opinion of the court that a different conclusion would have been reached, for the court say that

Opinion of the Court.

the omission of the plaintiff to ask the court to submit the case to the jury, after it had directed a verdict for defendant, must be taken as a waiver of its right to pass upon the evidence. The court further say that where, at the close of the evidence, each party moves the court for the direction of a verdict in his favor, each party must have intended to submit the case to the court for its finding upon the facts as well as the law.

In Koehler v. Adler, 78 N. Y., 287, followed and approved by later New York cases, it is held that when both parties ask for a directed verdict in their favor, respectively, it will be assumed that they intend to waive the right to a submission to the jury and consent that the court shall decide the questions of law and fact involved; but the court say that this presumption is repelled when the party whose request is denied thereupon asks to go to the jury upon the questions of fact.

This is the holding of practically all the cases on the subject. Applying it to the case under consideration, it follows that defendant below was entitled to a submission of his case to the jury on the facts, and the trial court, having denied it this right, committed prejudicial error.

The judgment of the circuit court in reversing that of the common pleas court is affirmed.

Judgment of circuit court affirmed.

NICHOLS, C. J., JOHNSON, DONAHUE, NEWMAN and WILKIN, JJ., concur.