
    No. 659
    WILLE v. PILOT
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 5742.
    Decided Feb. 23, 1925
    ■923. PLEADINGS—Allegations in petition must be adhered to and objection to introduction of evidence other than is alleged in the petition, should be sustained.
    940. POWERS—Offering to defendant to reduce judgment if right to prosecute error is given up, is outside scope of trial judge.
    Attorneys—Loecher, Green & Woods for Wille; Preusser & Morris for Pilot; all of Cleveland.
   VICKERY, J.

Joseph Pilot brought an action in the Cuya-hoga Common Pleas against Herman Wille and brother, for damages for assault and battery, alleging several injuries resulting from the assault; and at the hands of the jury recovered a verdict of $10,000. The Court reduced the judgment to $7,500 and would have reduced it to $5000, had Wille agreed to give up his right to prosecute error. Judgment was entered for $7500.

Error was prosecuted and Wille claimed that the verdict was so excessive that it was the result of passion and prejudice on part of the jury; and that a large part of the damages resulted from the introduction of evidence relating to an injury which was not claimed in the petition nor at any time before the trial, and he (Wille) was then unable to meet this new allegation of inquiry. The Court of Appeals said:

1. The lower court evidently -took the view that inasmuch- ás assault and - battery was charged, that the injury resulted from the assault and battery, it would be! unnecessary- >to: specifically: allege jt. ”: 1 ; • -, í s ¡

v-¿." Since- Pilot in - his petition; set'forth ‘ih very minute particulars the injuries that he complained of and none other, Wille had the right to rely upon the petition and was only prepared to meet those particular allegations.

3. Wille had the right to object to the introduction of evidence of an injury other than was claimed.

4. The offering of the court to reduce the verdict to $5000 if Wille would give ‘ up the right to prosecute error and consent to pay the $5000 verdict, was outside the scope of a trial judge.

5. On the whole Wille did not have a fair trial and judgment is reversed and cause remanded.  