concurring. Although I concur in the judgment reached by the majority, I disagree with the majority’s determination to gratuitously overrule paragraph three of the syllabus in Halkias v. Wilkoff Co. (1943), 141 Ohio St. 139, 25 O.O. 257, 47 N.E. 2d 199.
Halkias held that: “The renewal of defendant’s motion to direct a verdict at the close of all the evidence, challenges, not the sufficiency of the *77evidence that was alone before the court and jury at the time the original motion was made, but the evidence and the state of the record as it exists at the conclusion of all the evidence.” Id.
That holding has been the law in Ohio for forty-five years and it is in accord with long-standing authority from other jurisdictions. As early as 1893, the United States Supreme Court stated:
“A defendant has an undoubted right to stand upon his motion for a nonsuit, and have his writ of error if it be refused; but he has no right to insist upon his exception, after having subsequently put in his testimony and made his case upon the merits, since the court and jury have the right to consider the whole case as made by the testimony. It not infrequently happens that the defendant himself, by his own evidence, supplies the missing link, and, if not, he may move to take the case from the jury upon the conclusion of the entire testimony.” Bogk v. Gassert (1893), 149 U.S. 17, 23.
Federal courts facing the issue under the Federal Rules of Civil Procedure have been uniform in following Bogk’s rule that the court should “ ‘have the right to consider the whole case.’ ” Alston v. Bowins (C.A.D.C. 1984), 733 F. 2d 161, 163-164; accord Peterson v. Hager (C.A. 10, 1984), 724 F. 2d 851, 854; see, generally, Newman v. Brengle (C.A. 7, 1958), 250 F. 2d 660; Auto Transport v. Potter (C.A. 8, 1952), 197 F. 2d 907. “Technically a party waives his right to a directed verdict, if the motion is made at the close of his opponent’s case, and thereafter he introduces evidence in his own behalf. However he may renew the motion at the close of all the evidence. * * * The renewed motion will be judged in the light of the case as it stands at that time. Even though the court may have erred in denying the initial motion, this error is cured if subsequent testimony on behalf of the moving party repairs the defects of his opponent’s case.” (Emphasis added.) 9 Wright & Miller, Federal Practice and Procedure (1971) 588-590, Section 2534.
The federal rule governing directed verdicts, Fed. R. Civ. P. 50(a), is the paradigm for the Ohio rule governing directed verdicts, Civ. R. 50(A)(2), and contains identical language to that recited from the Ohio rule by the majority.5 Thus, there is no statutory basis for Ohio to deviate from federal precedent, particularly where such deviation violates the principle of stare decisis.
Further, state courts appear to be in accord with the federal courts. See Abston v. Medora Grain, Inc. (1971), 206 Kan. 727, 482 P. 2d 692; Gulf Heating & Refrigeration v. Iowa Mut. Ins. Co. (Fla. 1966), 193 So. 2d 4; Smith v. Sharp (1962), 85 Idaho 17, 375 P. 2d 184.
The majority, in its zeal to give a defendant the right to preserve error for appeal when a motion for directed verdict has been overruled, has elevated technicality over substance.
Though a plaintiff with a meritorious cause of action fails to establish each element of his action, the defendant may supply the gaps by his presentation of evidence. If that happens, the result under the majority *78holding is a denial of a remedy for a wrong committed. I believe it is more important to fairly resolve a substantive cause of action than to grade the performance of a trial judge. Under the logic of the majority decision, if a trial judge erroneously denied a motion for a directed verdict after plaintiffs opening statement, and the plaintiff went on to establish a justified cause of action, the appellate court should nonetheless find for the defendant. '
The issue at hand is similar to the one presented when a complaint fails to identify all the issues raised by the evidence. Under Ohio pleading rules, which are designed to ensure that justice is not denied by technicalities, “* * * the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby * * *. ” (Emphasis added.) Civ. R. 15(B). The same principles should apply when a motion for a directed verdict is erroneously denied by a trial court and a defendant subsequently presents evidence which cures the inadequacy of the plaintiffs case.
Admittedly, the defendant will sometimes be faced with a difficult choice: whether to proceed with his case and risk helping the plaintiff, or whether to stand on his motion and hope the appellate court will support that stand. However, this is a question of trial tactics, not substantive rights. Upon proper objection, the defendant always retains the right to have the denial of a directed verdict motion reviewed by an appellate court on the basis of the whole record.
Moreover, the majority’s analysis suffers from a certain illogic. On the one hand, the majority overrules precedent which holds that a defendant waives his objection to the denial of a directed verdict by presenting evidence. On the other hand, the majority affirms precedent which requires a defendant to renew his motion for a directed verdict at the close of all the evidence in order to preserve the original denial of a directed verdict for appeal. If the basis for the majority decision is to preserve an error for appeal, why the need for a second motion at the close of all the evidence?
Finally, the majority ignores the primary purpose of a directed verdict which is to enhance judicial efficiency. Alston, supra, at 164 (“The directed verdict serves a single, albeit important, interest: judicial efficiency.”); Rutherford v. Central Illinois RR. Co. (C.A. 5, 1960), 278 F. 2d 310, 312 (“A directed verdict is a device to save time and trouble involved in lengthy jury determination.”), certiorari denied (1960), 364 U.S. 922. Allowing an appellate court to review the denial of a directed verdict at the close of the plaintiff’s case does not further this goal.
Accordingly, I would adhere to the rule in Halkias, supra, and follow the precedent established in the federal and state courts.
Wright, J., concurs in the foregoing opinion.Both Fed. R. Civ. P. 50(a) and Ohio Civ. R. 50(A)(2) provide in relevant part: “A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been, made. * * *” (Emphasis added.)