
    Gale v. Priddy.
    
      Trial by jury — General or special verdict — Section 5801, Rev. Stat., mandatory only, when — Trial court to exercise power of refusal to ■permit questions propounded with great caution — Court procedure.
    
    1. A request that the court will direct the jury to render a special verdict in writing, upon any or all of the issues in the case, is not a request to instruct the jury that if they find a general verdict, they shall find specially upon particular questions of fact, as provided in Revised Statutes, Section 5201.
    2. Revised' Statutes, Section 5201, so far as it relates to special findings upon particular questions of fact, is mandatory only when the request therefor contains the condition that the questions which are submitted shall be answered in case a general verdict shall be rendered.
    3. The trial court should exercise with great deliberation and caution the power of withdrawing or refusing to submit questions propounded; and although the questions must be such that the answers thereto will establish ultimate and determinative facts, and not such as are only of a probative character; yet questions the answers to which establish probative facts from which an ultimate material fact may be inferred as a matter of law, should be allowed. Schweinfurth, Admr., etc., v. Railway Co., 60 Ohio St., 215, explained and qualified. The Cleveland <& Elyria Electric R. R. Co. v. Hawkins, 64 Ohio St., 391, approved and followed.
    (Decided June 10, 1902.)
    
      Error to the Circuit Court of Wood county.
    
      Mr. W. (}. Elliott and Messrs. Baldwm & Earring-ton, for plaintiff in error.
    The question presented arises upon the construction of Secs. 5200 and 5201 of the Revised Statutes.
    We contend that under these sections it is the right of a party to have a special verdict upon all or any of the issues joined. And upon this subject the court has no discretion as to whether pertinent interrogatories shall be submitted.
    If the court is vested with discretion in the matter, of course the defendant could not complain: but if the statute means what it says in direct and positive terms, then certainly the court erred in denying to the defendant a substantial right.
    We think the statute is not susceptible of any construction or interpretation which warrants the denial of this right. And so far as the statute has been directly under consideration by the courts, they seem to hold that.its provisions are mandatory. Railway Co. v. McCamey, 5 C. D., 631; 12 C. C. R., 543; Schweinfurth v. Railway Co., 60 Ohio St., 215; Miller v. Southworth, 5 C. D., 101; 10 C. C. R., 572; Summers v. Greathouse, 87 Ind., 205.
    The record does not show affirmatively that the request to submit special interrogatories was coupled with any condition that the same were to be answered in case of the rendition of a general verdict. Our circuit court has held, in Sun Oil Co. v. Insurance Co., 8 C. D., 145; 15 C. C. R., 355, that such condition in the request is essential.
    We doubt the correctness of this decision, and fail to see the reason or philosophy of such requirement.
    
      
      Mr. Chas. A. Strauch and Messrs. Janies & Beverstock, for defendant in error.
    We admit that the question presented arises upon the construction of Secs. 5200 and 5201 of the Revised Statutes.
    The question here presented has not, so far as we know, ever been presented to and passed upon by the Supreme Court of Ohio, and for that reason we must look elsewhere for a discussion of the question presented by courts construing similar statutory provisions.
    Observe that Secs. 545 and 546 of the Indiana Code are counterparts of Secs. 5200 and 5201 of the Revised Statutes of Ohio.
    The Supreme Court of Indiana, construing said Secs. 545 and 546, held that the request to submit interrogatories should be coupled with the condition that the same a,re to be answered in case of the rendition of a general verdict. Manning v. Gasharie, 27 Ind., 399; Killian v. Eigenmann, 57 Ind., 480; Railway Co. v. Bowen, 70 Ind., 478; Railway Co. v. Worley, 107 Ind., 320.
    The record must show affirmatively (and counsel for plaintiff in error admit it does not) that the re-' quest to submit the interrogatories was coupled with the condition that the same were to be answered in case of the rendition of a general verdict. That condition, is indispensable. Sun Oil Co. v. Insurance Co., 8 Circ. Dec., 145; 15 C. C. R., 355; Taylor v. Burk, 91 Ind., 252.
    Our position, aside from the Indiana authorities, is fully sustained by the opinion of Judge Parker, in Sun Oil Co. v. Insurance Co., 8 C. D., 145; 15 C. C. R., 355.
   By the Court :

The question raised in this case is concerning the refusal of the court of common pleas to instruct the jury to find specially upon particular questions of fact submitted by the plaintiff in error, who was defendant in that court. This was assigned as error in the circuit court, and the judgment of the common pleas was affirmed. It appears from the record that at the close of the testimony, before the argument of the case, and at the time defendant submitted his request to charge, the defendant also submitted to the court, in writing, certain requests to direct the jury to give a special verdict in writing, upon certain issues as follows: (Here follows the title of the case, and continuing) “And we return the questions submitted to us with our answers thereto, as follows, to-wit:” (Here follow the questions with a blank space after each for answers thereto, concluding with) “Upon consideration whereof the court refused each and all of said requests severally, to which refusal defendant then and there excepted.” It does not appear that the court was requested to instruct the jury “to find specially upon particular questions, of fact,” although questions seem to have been prepared and submitted to the court for the purpose of procuring such a special finding. Instead of such a request, the record shows that the defendant requested the court “to direct the jury to give a special verdict in writing upon certain issues,” which is a very different thing. It does not appear that a special verdict on any “issues” was prepared and submitted as is the general and proper practice in such cases. 22 Encv. PI. & Pr., 993; but it does appear that certain “particular questions of fact” were prepared, which counsel doubtless desired to have answered by the jury. A “particular question of fact” (Sec. 5201, Revised Statutes) is something different from, and less thhn, an “issue;” and the object of the statute is that these special findings, if inconsistent with the general verdict, may control it. Manning v. Gasharie, 27 Ind., 399. It is stated in the record that “upon consideration whereof the court refused each and all of said requests severally.” We are not able to say from that which is disclosed in the printed record that any of these questions called for more than evidentiary matter; but whatever may be the extent to which the trial court may scrutinize the questions submitted and eliminate from them, it has no right to withdraw, or refuse to submit, interrogatories which are pertinent and material. Summers v. Greathouse, 87 Ind., 205; and although, as was held in Schweinfurth v. Railway Co., 60 Ohio St., 215, 232, on authority of Railway Co. v. Dunleavy, 129 Ill., 132, 145, the questions must be such that the answers thereto will establish ultimate and determinative facts, and not such as are only of a probative character; yet this should not be construed to exclude questions the answers to which will establish probative facts from which an ultimate material fact may be inferred as matter of law. This is necessarily so in all cases which involve what are called mixed questions, of law and fact; for there a general verdict implies the finding of the jury upon the ultimate facts which are necessary to support the verdict, while the findings of the jury may be such on the “probative” facts that the necessary legal inference would be exactly the opposite of the finding implied in the general verdict. For example, a general verdict may imply a finding that there had been no payment made on the plaintiff’s claim, while answers, by the jury to interrogatories might disclose such evidentiary facts that the law would conclusively infer that there had been a payment. In such case the interrogatories could not lawfully be excluded from the jury. This in effect, if not in terms, was held-by the unanimous vote of the judges in the case of the Railroad Company v. Hawkins, 64 Ohio St., 391. It was said in the Illinois case above cited: “Doubtless a probative fact from which the ultimate fact necessarily results would be material, for the court could infer such ultimate fact as a matter of law.” 129 Ill., 135, 143. In any event the trial court should exercise great deliberation and caution in the matter of excluding interrogatories from the jury; for, while permitting immaterial questions is not likely to work injury after the verdict, the exclusion of a material one may be fatal to the rights of the party requesting it.

The statute, Sec. 5201, is mandatory upon the court to “instruct the jurors, if they render a general verdict, to find specially upon particular questions of fact;” but it is so mandatory only when the court is so requested to instruct the jurors by either party. That the request for special findings shall contain the condition that the questions shall be answered in case a general verdict shall be rendered, is therefore not a matter of mere form but one of substance. This statute is identical with the statute of. Indiana on the same subject and was adopted from that state. The Supreme Court of Indiana had repeatedly construed the statute as above, before its enactment here, as well as since that time. Manning v. Gasharie, 27 Ind., 399; Killian v. Eigenmann, 57 Ind., 480; Railway Co. v. Bowen, 70 Ind., 478; Taylor v. Burk, 91 Ind., 252; Railway Co. v. Worley, 107 Ind., 320.

When a statute is adopted from another state where it has received a settled construction, the presumption is that such construction'was adopted and that the terms of the statute are used in the same sense. Gray v. Askew, 3 Ohio, 466, 480; Paine v. Mason, 7 Ohio St., 198, 207; Favorite v. Booher, 17 Ohio St., 548, 554; Hilliard v. Gas Coal Co., 41 Ohio St., 662, 669.

From the foregoing it is clear that there are, apparent upon the record in this case, several reasons why the judgment of the court below should be, and it accordingly is,

Affirmed.

Burket, Spear, Davis, Shauck and Price, JJ., concur.  