
    Scharff v. Levine.
    (Decided May 21, 1928.)
    
      
      Messrs. Herberich é Weick, for plaintiff in error.
    
      Messrs. Harris & Holub and Messrs. Mather, Nesbitt é Willkie, for defendant in error.
   Pardee, J.

The parties appear in this court in the reverse order' of that in the court of common pleas, and for convenience in this opinion will be referred to as plaintiff and defendant, as they were in that court.

Plaintiff, Molly Levine, brought an action at law to recover damages for personal injuries which she suffered as a result of an automobile accident, which she claimed was caused by the negligence of the defendant, Nicholas Scharff. The case'was tried to a jury, a verdict was returned for the plaintiff, and judgment was entered thereon.

The defendant denied any liability, and claimed that the accident was caused by the sole negligence of the husband of said plaintiff, who was driving the automobile in which she was a passenger.

The defendant admitted that the automobile which collided with the car in which the plaintiff was riding belonged to him, but claimed that the driver had borrowed it for his own use, and was so using it at the time of the accident, and that, although he, the defendant, was riding in said car, he was but a passenger, and, if there was any negligence on the part of the driver, that defendant could not be charged therewith.

There is a very sharp conflict in the evidence. The plaintiff and her witnesses claimed that the accident resulted from the sole negligence of the driver of the defendant’s car; while the claim, of the defendant and Ms witnesses was that the accident was caused by the sole negligence of the driver of the car in which the plaintiff was riding. The jury arrived at the conclusion, as is shown by their unanimous verdict, that they believed the evidence of the plaintiff and disbelieved that of the defendant, and we cannot say, from an examination of the record, that this finding is manifestly against the weight of the evidence; and, if the finding of the jury had been for the defendant instead of for the plaintiff, we should have found ourselves in the same position and should have been unable to say that such a verdict was manifestly against the weight of the evidence.

The defendant claims, in addition to the one that the verdict is manifestly against the weight of the evidence, that counsel for the plaintiff was guilty of misconduct during the trial of the case, which conduct was prejudicial to the defendant; that the court committed prejudicial error in refusing to give certain special written requests before argument, submitted by the defendant; and that the court erred in its general charge to the jury.

. We do not find any prejudicial error in any of said claims, except as to defendant’s special request No. 12, submitted to the court, and asked to be given by it to the jury before argument, which request is the following, to wit:

‘ ‘ The court says to you, as a matter of law, that the law presumes that the driver of defendant’s car was not in any manner negligent and, before it can be found by you that he was negligent in any manner, it must be proven against him by the greater weight of the evidence, and the court says to you that you have no right to assume or presume that he was negligent, simply because the accident happened. ”

When the Civil Code of Ohio was adopted in 1853 (51 Ohio Laws, p. 100), paragraph 5 of Section 266 provided:

“When the evidence is concluded, either party may request instructions to the jury on points of law, which shall be given or refused by the court; which instructions shall be reduced to writing, if either party require it.”

This paragraph remained in its original form until March 3, 1892, when the Legislature of Ohio amended it (89 Ohio Laws, 60) to read as follows:

“When the evidence is concluded, either party may present written instructions to the court on matters of law, and request the same to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced.”

And it is at present paragraph 5 of Section 11447, General Code.

We cannot follow the argument advanced in plaintiff’s brief in relation to this request. Plaintiff’s attorneys try to apply to this subject the rulé which requires a case to be submitted to the jury when there is some evidence upon every material point to sustain plaintiff’s claims; and, while the presumption that the defendant is free from negligence may be overcome by slight evidence, which would be sufficient to require the trial court to present the issue thus made to the jury, it will not be denied that the jury would not be justified in finding the defendant guilty of negligence, unless all the evidence offered in the case established that fact by a preponderance of the evidence, and it will be admitted that, if plaintiff did not prove her claim by that quantity of evidence, it was the duty of the jury to return a verdict for the defendant.

This was one of the principal questions in the case to be decided by the jury. This pequest was pertinent to the issues made by the pleadings and the evidence adduced upon such issues, and contained one of the usual statements of the law given to the jury, in one form or another, in all negligence cases.

Before the amendment was adopted, it was a matter in the discretion of the trial judge whether or not he would give the charges requested before argument, or before the final submission of the case. Shortly after amendment, the question as to its effect was presented to the Supreme Court of this state, in the case of Village of Monroeville v. Root, 54 Ohio St., 523, 44 N. E., 237, and the court in the syllabus of that case stated the law as follows:

“1. Section 5190, Revised Statutes, as amended March 3, 1892 (89 Ohio Laws, 60), confers upon parties the right to have such correct written instructions as may be requested given to the jury before the argument.
“2. To constitute error under this provision of the statute, the record must affirmatively show that the court was requested to give such instructions before the argument, and that its refusal to do so was the subject of an exception.”

And in the opinion in that case, on page 527 (44 N. E., 238), Judge Shauck said:

“Counsel for the plaintiff in error contends that it is still a matter of discretion with the trial judge to give the propositions requested either before or after argument. This view denies all effect to the amendment. Before the amendment the statute authorized the requests for instructions to be made before the argument, but, as it was interrupted [interpreted], it required of the court nothing more than the giving of such requested instructions as were proper before the final submission of the cause. Since the legislature has taken care to confer upon a party the right to have the instruction given before the argument, the courts cannot say that there is no substantial error in a denial of the right. ’ ’

And the same judge, in the- later case of Cleveland & Elyria Electric Rd. Co. v. Hawkins, 64 Ohio St., 391, at page 395, 60 N. E., 558, 559, speaking upon the same subject said:

“That the amendment foreclosed discretion in that respect was decided in the Village of Monroeville v. Root, 54 Ohio St., 523 [44 N. E., 237]. By the amendment the giving of such requested instructions before the argument is required by the same imperative language which is employed in the 7th subdivision of the section to enjoin upon the court the duty of giving its general instructions after the argument is concluded. The 5th and 7th subdivisions of the section relate to the same general subject, the instructions to be given to the jury, and no reason appears why the same language should be regarded as mandatory in the former and directory in the latter.”

In the ease of Chesrown v. Bevier, 101 Ohio St., 282, 128 N. E., 94, the court reiterated the law upon the subject in the second paragraph of the syllabus, as follows:

“2. Upon a written request to charge before argument, if the request correctly states the law and is pertinent to one or more of the issues of the case and the same subject has not been covered by other charges given before argument, it is error to refuse to give such charge before argument, even though the language of the charge is not the exact language the court would have selected. ’ ’

In the case of Payne, Director Gen., v. Vance, 103 Ohio St., 59, 133 N. E., 85, the court again stated the law in the seventh paragraph of the syllabus:

“7. When either party presents written instructions to the court and requests them to be given to the jury before argument, and such written instructions state correct propositions of law, pertinent to the issues and the evidence adduced, it is reversible error to refuse such request.”

To the same effect are the following cases: Armuleuis v. Koblitz, 114 Ohio St., 73, 150 N. E., 620; Cincinnati Trac. Co. v. Kroger, 114 Ohio St., 303, 151 N. E., 127; Rogers v. Ziegler, 21 Ohio App., 186, 193, 152 N. E., 781; and Mulvihill v. Frohmiller, 21 Ohio App., 210, 153 N. E., 115.

There are many other cases in this state which have recognized and applied the rule as stated without exception.

The right thus conferred upon litigants to have proper written requests given before argument gives to such litigants a substantial right, of which they cannot be deprived by the trial court, and a reviewing court is not permitted, under Section 11364, General Code, to say, when such right has been denied, that substantial justice has been done.

We are unanimously of the opinion that this request correctly stated the law upon the subject contained therein; that it was pertinent to the issues and the evidence adduced; that it was properly and timely asked; that it was not covered by any other request given before argument; that it was improperly refused; and that the defendant took an exception at the time,' as required by the statute. This refusal of the trial court constituted prejudicial error, which requires us to reverse the judgment.

Judgment reversed and cause remanded.

Washburn, P. J., and Punk, J., concur.  