
    Davis, Agent, etc., v. Vance.
    
      New trial — Failure to introduce additional evidence — Willful tort and contributory negligence.
    
    (No. 18162
    Decided April 22, 1924.)
    Error to the Court of Appeals of Gallia county.
    
      Messrs. Wilson & Rector; Mr. F. C. Amos and Mr. H. C. Johnston, for plaintiff in error.
    
      Mr. R. M. Switzer, for defendant in error.
   By the Court.

This cause was before this court and decided on July 5, 1921, at which time this court reversed the Court of Appeals and the court of common pleas, a report of which will be found in 103 Ohio St., 59, 133 N. E., 85. The major question before the court at that time was upon the subject of willful tort. This court reversed the lower courts for error of law in the charge to the jury on that subject, and the cause was remanded to the court of common pleas for new trial. This court did not at that time feel justified in rendering final judgment, notwithstanding the fact that it was held upon the undisputed facts shown by the record that Vance was guilty of contributory negligence which would prevent a recovery. Inasmuch as the error in the former judgment was a result in part of evidence introduced and rejected under an erroneous notion of willful tort, which if established would preclude the defense of contributory negligence, the court was of the opinion that Vance should have an opportunity to try his case according to legal principles then declared by the court. The record as presented in the instant case is a transcript of the former record, with the addition of one stipulation, which, in the opinion of the court, does not change the situation. The judgment of the 'Court of Appeals is therefore reversed, and the judgment of the court of common pleas affirmed-upon the authority of our former decision, reported in 103 Ohio St., 59, 133 N. E., 85.

Judgment reversed.

Marshall, C. J., Robinson, Jones, Matthias, Day and Allen, JJ., concur. >

Wanamaker, J., not participating.  