
    No. 7
    WALLS v. MITCHELL et al
    Ohio Supreme Court
    No. 17781.
    Decided June 12, 1923
    465. ERROR — Error cannot be predicated upon requested charge where bill of exceptions fails to show that it was given.
    Attorneys — A. L. Gebhard, Bryan, and F. S. & J. M. Ham, Wauseon, for Walls; Paxson & Canfield, Wauseon, and Denman, Kirkbrido, Wilson & McCabe, Toledo, for Mitchell et al.
   ROBINSON, J.

Epitomized Opinion

This was an action by Mitchell et al against Walls to recover an automobile. In 1920 Mitchell employed one McMurray to assist in the sale of automobiles. On one occasion Mc-Murray procured a car representing that ho had a prospective buyer in the City of Toledo to whom he wished to exhibit it. McMurray took the car and drove it to the Village of Fayette, which was outside of the plaintiff's territory, and sold it to the defendant for $600 and a Ford automobile. The case was twice tried; the jury in each case returning a verdict for the defendant. The Court of Appeals reversed the judgment rendered upon the first verdict upon the ground that the verdict was manifestly against the weight of the evidence, and reversed the judgment entered upon the second verdict upon the ground that said court erred in giving a special instruction. The record did not disclose that this special request was given, or if given, that there was any exception taken thereto by the plaintiffs. In re - vejsing the judgment of the Court of Appeals, the Supreme Court held:

1. Where a bill of exceptions shows that a special request was made to charge before argument, but does not disclose that the re quested charge was given, error cannot bo predicated upon such requested charge.  