
    Ohio Exchange for Educational Films Co. v. P. & R. Amusement Co.
    
      (Decided December 13, 1932.)
    
      Messrs. Paxton & Seasongood and Messrs. E. N. S H. W. Lilley, for plaintiff in error.
    
      Mr. Edward E. Alim and Mr. T. E. Ruth, for defendant in error.
   Kátnkle, J.

Plaintiff in error, being tbe plaintiff in the lower- court, in its petition .sought to recover a judgment against defendant in error, defendant in the lower court, upon two separate causes of action.

In brief, the first cause of action was based upon a liability which the plaintiff in error claims was originally incurred by one Mr. Petras during the time he was operating a moving picture theater in Piqua, Ohio. The petition alleges that this liability was subsequently assumed by the P. & R. Amusement Company, defendant in error. The petition recites the refusal of defendant in error to complete said contract and claims damages by reason of such failure to carry out such assumed contract.

In brief, in the second eause of action, plaintiff in error seeks to recover damages upon a contract which it is claimed was entered into directly between the plaintiff in error and the defendant in error. Plaintiff in error claims this contract was violated by defendant in error to its damage. The details of said respective contracts and the respects in which plaintiff in error claims they were violated are set forth in full in the petition.

Plaintiff in error sought to recover $175 upon the first cause of action, and $1,800 upon the second cause of action, or a total of $1,975, with interest.

To this petition the defendant in error filed an answer.

The first defense of the answer consists of a general denial.

The second defense of the answer consists of a denial that defendant in error assumed the performance of the Pekras contract and denies any indebtedness upon such contract; admits there was a proposition made at one time that it should assume this contract, but claims it was never accepted or carried out.

The third defense, in brief, is to the effect that certain pictures which were delivered to defendant in error were allocated to the alleged contract with Pekras, which was never assumed by defendant in error, and that the exhibit of these pictures and payment therefor should have been credited on the second contract, that is upon the contract set forth in the second cause of action, and that same were wrongfully credited by plaintiff in error upon the Pekras contract.

The fourth defense, in brief, claims that all of the films that were actually furnished by plaintiff in error have been paid for by defendant in error. It is admitted that plaintiff in error has been paid for all films which it delivered, but plaintiff in error claims that it should have been permitted to deliver the other films and collect the contract price therefor.

The answer also avers that defendant offered to take films from plaintiff, but the latter refused to furnish these films during the month of March, 1931; that over 35 films which defendant ordered, plaintiff failed to furnish and therefore plaintiff breached the contract rather than the defendant.

The fifth defense is that the contract set forth in the second cause of action of the petition was altered after it was signed by the president of defendant without his knowledge and consent.

The sixth defense, in brief, alleges illegality of the said contract.

A reply was filed to the answer of defendant and an issue was thus raised which, was submitted to the jury with the result that the jury found in favor of defendant upon both causes of action set forth in the petition.

Motion for new trial having been filed and overruled, error is prosecuted to this court. Counsel have favored the court with very exhaustive briefs. We have considered the same and have .also read the record. We shall not attempt to discuss the testimony in detail. Counsel are thoroughly familiar with the same. We will merely, announce the conclusion at which we have arrived aftér a consideration of the record and briefs.

It is seriously contended by counsel for plaintiff in error that the verdict is against the manifest weight of the evidence. There is a conflict in the testimony upon various issues presented. The determination of these questions of fact therefore falls within the province of the jury. The jury evidently resolved the issues in favor of defendant. From a consideration of the record we would not feel warranted in disturbing the verdict of the jury upon the ground that the same is against the manifest weight of the evidence.

The petition sets forth two separate causes of action.

The defense to these causes of action differs in some respects. To the second cause of action a number of defenses are made. In the absence of any special findings of fact testing the verdict we would not be warranted in stating upon which defense the jury found in favor of the defendant. The case, therefore, falls within the well-established rule that if there was no prejudicial error as to some one of the issues raised by the pleadings the verdict must stand.

It is also claimed that the court erred in its general charge to the jury. We have read the entire charge of the court with care, and upon such reading find no error therein which we consider prejudicial to plaintiff in error in view of the general verdict. •

Among other things, counsel for plaintiff in error complain of the charge of the trial court in reference to the measure of damages. Assuming for the purposes of this case that the complaint is well taken, nevertheless that could not constitute prejudicial error on behalf of plaintiff in error as it is apparent that the jury did not consider the question of damages.

It is also urged with much force that counsel for defendant in error were guilty of misconduct during the trial of the case. This misconduct consisted of one of counsel for defendant in error writing in chalk upon a blackboard in the courtroom the words: “Canceled by plaintiff because they were not fit for Piqua rural audiences — sophisticated and vulgar.”

This was written during a recess, and as soon as the court’s attention was called to the writing the jury was excused and the writing was ordered erased. This is made one of the grounds of the motion for a new trial and certain affidavits on behalf of plaintiff in error were introduced and also the affidavits of ten of the jurors to the effect that they had not seen the writing on the blackboard about which complaint was made.

The motion for new trial which included the ground of misconduct of counsel was overruled.

We have read that portion of the record which relates to the writing in question, and the action of the court thereon, and are of opinion that there is nothing in the record which would warrant a reviewing court in disturbing the verdict upon the ground of misconduct of counsel.

The case of Ohio & Western Pennsylvania Dock Co. v. Trapnell, 88 Ohio St., page 516, 103 N. E., 761, states the rule governing reviewing courts upon this question. On page 521 the court says: “Remarks of this kind are wholly improper in the trial of a case and it is the duty of the trial court to see that they are not made, or at least not persisted in, but something must be left to the discretion of a trial court, otherwise we would never reach an end to litigation, and a reviewing court ought not to reverse unless it clearly appears that such misconduct was of such character and so persistent as to prevent a fair trial of the cause.”

In our opinion this court would not be justified in reversing the judgment of the lower court upon the ground of misconduct of counsel. We have considered all of the grounds of error urged by counsel for plaintiff in error in their brief, but finding no error in the record which we consider prejudicial to plaintiff in error, the judgment of the lower court will be affirmed.

Judgment affirmed.

Allread, P. J., and Hornbegk, J., concur.  