
    Hotel Pendleton Co. v. McNab et al.
    (Decided March 9, 1928.)
    
      
      Mr. James Olds, for plaintiff in error.
    
      Mr. J. L. Griffiths, for defendants in error.
   Funk, J.

Arthur and Ida McNab, husband and wife, commenced a joint action in the municipal court of Akron against the Pendleton Hotel Company to recover the value of certain property belonging to them, alleged to have been stolen from their room in the hotel of the defendant.

At the trial, both of them testified that part of the property belonged to the husband, part to the wife, and part to their baby daughter. The record does not show that they were the joint owners of any of the property alleged to have been stolen.

At the close of the evidence, defendant moved the court to direct the jury to return a verdict for defendant. The record affirmatively shows that this motion was not argued. It does not show that counsel stated the grounds upon which he based his motion.

The record shows that the court sustained the motion on the ground that the parties plaintiff testified that they each'owned certain articles, as individuals, of the property stolen, and for which they sought to recover, and were not the joint owners of any of the property alleged to have been stolen,, and for the further reason “that the measure of damages could not be determined because * * * the value of the goods have not been fixed except as to cost price, and that would not be the measure of damages in this case, but the market value at the time that they were purloined from the plaintiff.”

Motion for new trial was duly filed and overruled, and a petition in error filed in common pleas court, which, court reversed the judgment of the municipal court for error in directing the verdict, and ordered the cause remanded to that court for further proceedings according to law. Error is prosecuted here.

Counsel for the hotel company contend that the common pleas court wrongfully reversed the judgment of the municipal court, and that the judgment of the common pleas court should be reversed, thereby affirming that of the municipal court, for these three reasons.

First, that there is a misjoinder of parties plaintiff, because the evidence disclosed that the plaintiffs owned their property individually, and were not joint owners of any of the property claimed to have been stolen.

Second, that there was no evidence of the value of any of the articles at the time they were stolen, and that the only evidence as to value was what the articles cost plaintiffs when they bought them.

Third, that there was no evidence that plaintiffs sustained the relation of guests to the hotel, and that all the evidence was to the effect that they were lodgers, and not guests, within the meaning of the law.

As to the misjoinder of parties plaintiff: This case was tried in the municipal court of Akron, which court has such jurisdiction as is provided by law. The jurisdiction of that court is fixed by Section 1579-506, General Code. Subdivision 1 of this section gives that court broad general jurisdiction “in all actions and proceedings of which justices of the peace have or may be given jurisdiction. ’ ’ This subdivision is followed by ten other subdivisions, by which it is given special jurisdiction in certain matters wherein the amount involved does' not exceed $1,000. Subdivision 11 of this section reads as follows:

11. Within the jurisdiction of the court, authority to determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights. When such determination cannot be had without the presence of other parties, the court may order them to be brought in or may dismiss the action without prejudice. ’ ’

It is apparent from the provisions of this section that it was the intention of the Legislature that the municipal court of Akron should be a court where justice could be meted out speedily between litigants, without requiring them to conform to certain technical rules of procedure. Under this subdivision 11, the court.has jurisdiction “to determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights.”

In the instant case the court had jurisdiction of the subject-matter and of the parties to the action. It clearly appears from the record that, if the hotel company is liable at all, it would be liable to each plaintiff, at least in separate actions, and that-the evidence would be the same in each action, except as to the particular article belonging to each plaintiff, and its value, and that the evidence as to each one could not affect the rights of the other. The record also clearly shows what articles belonged to each plaintiff, so that the amount due each one could be readily determined under proper evidence as to the value of the several articles. As to the clothing said to belong to tbe child, which was apparently under 5 years of age, we think under this record a fair inference would be that the father was the legal owner of such articles.

It is, therefore, clear that the municipal court had special jurisdiction under this section of the Code to proceed to determine the case without prejudice to the rights of any one, and that it was error for the trial court to direct a verdict on the ground that none of the property stolen was owned jointly by plaintiffs.

As to the question of the value of the articles alleged to have been stolen, and the question whether the relation of innkeeper and guest existed within the meaning of the law, the latest pronouncement of our Supreme Court upon whether or not the evidence in a particular case is such as to bring a determination upon it within the province of the jury is to be found in Painesville Utopia Theatre Co. v. Lautermilch, decided February 29, 1928, 118 Ohio St., 167, 160 N. E., 683, the syllabus of which reads as follows:

“Whenever, from conflicting evidence of the same witness or of different witnesses, it becomes necessary to weigh such conflicting evidence to determine wherein the probable truth lies, or from a combination of circumstances determine an ultimate fact upon the determination of which different minds might reasonably arrive at different conclusions, it is the province of the jury to perform that function. It is reversible error for the court to invade that province of the jury. ’ ’

Under this holding, we are clearly of the opinion that the evidence and the reasonable inferences to be drawn therefrom were such that there was some evidence upon each of these questions and upon every other material issue necessary to be proven to entitle the plaintiffs to recover, and that it was reversible error not to submit the case to the jury under proper instructions, including instructions that, if they should find for plaintiffs, they should find the amount due each, but that, if they should find for defendant, it would then not be necessary for them to find any amount due either plaintiff.

The judgment of the common pleas court is therefore affirmed, and the cause remanded for further proceedings according to law.

Judgment affirmed.

Pardee, J., concurs.

Washburn, P. J., not participating.  