Schram v. Cincinnati

137 N.E. 868, 1 Ohio Law. Abs. 203, 105 Ohio St. 324, 1922 Ohio LEXIS 302

Opinion

EPITOMIZED OPINION

MARSHALL, C. J.:

As a result of a change in the grade of a certain street in Cincinnati, in 1909, Schram’s property was injured by interference with ingress and by removing lateral support from the lot. In 1912,- suit was brought for damage on both counts and judgment was rendered for Schram, although the trial judge erroneously instructed the jury to disregard one of the elements as a basis for damage. Schram denies that the causes of action are the same and upon a demurrer to the reply, an agreed statement of facts was drawn up by the parties and submitted to the trial court. Held:

1. When parties to an action submit an agreed statement of facts to the court, after the cause is submitted on a demurred to a reply, the statement of facts will be considered as a special verdict and the court may dispose of the case.

2. When a suit for damages pleads one cause of action involving two elements of damages and the court erroneously rules that one is improper and the jury being so instructed gives judgment for the plaintiff, if no error is prosecuted therefrom, the doctrine of res adjudicata applies.