
    Wicker v. Kenney, a Minor, etc.
    
      Negligence — Defendant denies ownership of automobile and that accident happened — Testimony as to admissions by defendant competent.
    
    In a personal injury action charging that defendant owned and operated the automobile in question and that his negligence caused the accident and injury complained of, in which action the defendant denies ownership of the automobile, that the accident happened, and that he was negligent, testimony as to admissions alleged to have been made by 'defendant which would' tend to prove that he owned the automobile, that he was operating it, and that the accident happened, is admissible.
    Evidence, 22 C. J. § 324.
    (Decided January 7, 1924.)
    Error: 'Court of Appeals for Hamilton county.
    
      Messrs. Jackson & Woodward, for plaintiff in error.
    
      Messrs. Crosley & Rogers, for defendant in error.
   By the Court.

This action is prosecuted to reverse the judgment of the Court of Common Pleas in a personal injury case.

The plaintiff in error urges that the verdict is excessive and was given under the influence of passion and prejudice. All that need be said on these two grounds is that the facts were fairly presented to the jury, and we see no reason to disturb the verdict on either of the grounds mentioned.

It is claimed that the court erred in overruling the motion for an instructed verdict and in admitting evidence that was prejudicial to the defendant "below.

The petition charged that the defendant owned and operated the automobile, and that his negligence caused the accident and injury. The answer denied the ownership of the automobile; that the accident happened; and that defendant was negligent.

The court permitted Mrs. Kenney to testify that "Wicker called upon her, and in her testimony she said: “Well, he came in the door and he laughed; and he said "he was the man that hit the little girl and I told him that I thought it wasn’t anything to laugh over and he made the remark that he didn’t care, that he carried insurance * *

Wicker denied that he said he didn’t care. He said he told her he was sorry.

The issues made by the pleadings were: Did Wicker own the automobile in question; was he operating it at the time and place in question; and was he guilty of negligence?

The plaintiff was obliged to prove each of the issues before a recovery could be had.

If Wicker made the statements to Mrs. Kenney that she claimed, Ms admissions would tend to prove that he owned the automobile, that he was operating it, and that the accident happened.

It is a general rule of evidence that declarations of a party to an action against interest may be offered in evidence, and tMs is true even though the statement contains some element that otherwise would not be admissible in evidence.

'Counsel criticize the case of Goz v. Tenney, 104 Ohio St., 500, and claim that it does not correctly state the law. We do not agree with that contention. In that case, as in the one at bar, defendant denied the ownership of the automobile, and that it was being operated in the usual course of his business at the time of the happening of the accident. The court held that plaintiff could call witnesses to testify to statements made by the defendant to an insurance company to prove the allegations made by the pleadings.

From the record in the case at bar and an examination of the case of Goz v. Tenney, supra, our conclusion is that the facts in this case bring it within the rule stated in Goz v. Tenney, and that the. judgment should be affirmed.

Judgment affirmed-

Cushing, Buchwalter and Hamilton, J-L, concur.  