Miller v. Auburn Private Hotel Co.

22 Ohio C.C. Dec. 645

• Court: Ohio Circuit Courts
• Decided: July 15, 1909
• Status: Published

Opinion

SMITH, J.

We are of the opinion that special charge No. 1 was properly refused by the trial court.

Special charge No. 9 ought to have been given and being refused the court should have covered it in the general charge. This upon examination we find the court failed to do.

In regard to that portion of the general charge relating to an explosion of the tank and the want of repair of the heating apparatus, we can not say that the same were prejudicial, as the evidence is not before us. These matters are not set up in the pleadings, the ground of negligence complained of being a defective and improper construction of the , apparatus in question.

Judgment reversed and 'new trial granted.

After a second trial, resulting in a verdict against the hotel company, the case was again taken to the circuit court, where the following opinion was rendered:

SMITH, J.

The only error complained of is that, in the course of the closing argument of attorney for defendant in error, he referred to an offer of compromise having been made by the defendant to the plaintiff before suit was brought, and in that connection the sum of $50 was mentioned by him as the amount which had been offered. Whereupon the attorney for plaintiff in error objected and before the court could make any ruling, some controversial remarks passed between the attorneys in the hearing of the jury, whereupon counsel for plaintiff said that he would withdraw what he had said as to compromise. No ruling of the court or admonition of the court to the jury was. asked then or thereafter by either of the attorneys.

It is urged that this was such misconduct on the part of counsel for plaintiff as of itself would necessitate a new trial of the cause.

We have examined the evidence in the record, and are of opinion that the judgment is fully sustained thereby, and the jury in answer to special interrogatory submitted, found that the plaintiff in error “was negligent, inasmuch as it allowed a faultily constructed and badly connected old tank to be placed in the building.” This being so, is misconduct of counsel as claimed and disclosed by the record such as would justify the setting aside of the judgment?

We are of the opinion that it is not. We do not think the case comes within the ruling of Cincinnati Gas & Elec. Co. v. Coffelder, 31 O. C. C. 26 (11 N. S. 289), or Dayton Folding Box Co. v. Ruehlman, 31 O. O. C. 292 (11 N. S. 493).

Under the general and special verdicts we may assume that when counsel withdrew his remarks and did not further persist in making similar statements, that no prejudice resulted to plaintiff in error, and particularly so when as the record shows such withdrawal was made before the court could make any ruling upon the matter, and no. exception was taken and no ruling or admonition of the court to the jury was asked by either of the attorneys, from which it would appear from the record that neither the court nor counsel regarded the remark as in any way serious or prejudicial to the right of plaintiff in error.

This is the second trial of the ease, both trials resulting in a verdict for defendant in error, and as it appears from the record that the jury was not influenced in arriving' at its verdict by mis-statements of counsel made in its presence, we think the judgment of the court below should be affirmed.

Giffen and Swing, JJ., concur.