
    The Central Gas Co. v. Hope Oil Co.
    
      Error proceeding — Final order — Affirmance of refusal to grant judgment upon special findings by jury — Exception to action by Court of Appeals unnecessary — Judgment to be entered where special findings irreconcilable with general verdict.
    
    1. An affirmance by the Court of Appeals of the common pleas court in refusing to grant a judgment upon special findings of fact, which are inconsistent with the general verdict, is a final order, and error lies to this court without noting an exception to the action of the Court of Appeals.
    2. Where special findings of fact returned by a jury are clearly irreconcilable upon the record with the general verdict, it is error for the trial court to refuse to set aside and disregard the general verdict, in so far as such special findings are inconsistent therewith, and to give judgment accordingly.
    (No. 18355
    Decided October 20, 1925.)
    Error to the Court of Appeals of Monroe county.
    This is a proceeding in error brought in this court to reverse the judgment of the Court of Appeals of Monroe county.
    In the original action, the Hope Oil Company sued the Central Gas Company in the court 'of common pleas upon two causes of action: First,
    for $200 and interest from March ‘24, 1921, for gas consumed, and, second, for damages claimed by the Hope Oil Company for breach of verbal agreement whereby the Central Gas Company agreed to purchase all the gas of well No. 1 on the Freitag farm, and also all the gas that could he produced from well No. 3 on that farm, if said well was drilled from the Keener sand into what is known as the Berea grit sand. The plaintiff averred that in pursuance of this agreement it expended money in fitting up said well, in the way of labor, laying pipe and setting up an engine the sum of $300, and $740 for equipment; that it immediately set about to drill well No. 3 from the Keener to the Berea grit sand, at a cost of $1,200, and that the equipment at the time of the filing of the petition was not worth more than $370; that in drilling said well No. 3 from the Keener to the Berea grit sand the well was destroyed as an oil-producing well, and produced gas only; and that by reason of the breach of the agreement the Hope Oil Company was damaged in the sum of $1870. For this amount, together with the $200 asked for in the first cause of action, and the interest thereon, the plaintiff asked judgment. Afterwards a supplemental petition was filed, in which judgment was asked for payment for the gas consumed since the filing of the petition, amounting to $37.23.
    
      [1.] Appeal and Error, 3 C. J., Sec. 420; [2.] Trial, 38 Cyc., p. 1927.
    
      The answer of the defendant admitted that it received gas from the plaintiff, and that 15 cents per thousand would be a reasonable price therefor, and as to the second cause of action the answer contained two defenses. The first, after making certain admissions as to tbie ownership' of the oil and gas wells on the Freitag farm, interposed a general denial, and the second went to the right of the plaintiff to maintain the suit as a partnership.
    Upon the pleadings and issues joined, the parties went to trial. The Central Gas Company asked the court to submit to the jury certain interrogatories, which, if they reached a general verdict, they should answer and return with their general verdict. Upon submission to the jury, the following general and special findings of fact were rendered :
    “General and Special Verdict for Plaintiff.
    “(Court of Common Pleas, Monroe County, Ohio, April Term, A. D., 1920.
    
      “Hope Oil Company, a Copartnership, Plaintiff, v. The Central Gas Company, a Corporation, Defendant. No. 9056.
    “Civil Action — General and Special Verdict for Plaintiff.
    “We, the jury, being duly impaneled and sworn and affirmed, find the issues in this case in favor of the plaintiff, and assess the amount due to the plaintiff from the defendant, the said Central Gas Company, at the sum of $900 plus $254.67, making a total of $1,154.67, and in response to the questions propounded to us, return the same with our special findings thereon as follows:
    “(1) Did you allow any amount for drilling No. 3 well from the Keener to the grit sand? No.
    “(2) If so, how much?
    “(3) Did the parties hereto enter into a contract? Yes.
    “If so, when? Prior to the time the gas was turned into the main.
    “(4) If your answer is in the affirmative, was that contract one that could be performed within one year from its date? Yes.
    “(5) If you have allowed any damages on the second cause of action, make an itemized statement showing the items and amounts on each allowed by you, which go to make up that damage (if no damage allowed on the second cause of action, disregard this question) as follows:
    “A. How much did you allow for the expense, if any, for the equipment of well No. 1? Nothing.
    “B. How much for labor in equipping well No. 1? Nothing.
    “•0. How much did you allow, for the expense, if any, for the equipment of well No. 3? Nothing.
    “D. How much for labor in equipping well No. 3? Nothing.
    “And we do so render our verdict upon the concurrence of nine members of our said jury, that being three-fourths or more of our number.
    “Each of us said jurors concurring in said verdict signs his name hereto this 9'th day of May, 1923.”
    The defendant, the Central Gas Company, moved the trial court for a judgment on the special verdict, claiming that the court should render judgment for $254.67, that being the amount claimed for gas used at 15 cents per thousand, with interest, as was prayed for in the first cause of action and the supplemental petition, and the court was asked to ignore the $900 item which the jury had awarded.
    It was the claim of the Central Gas Company that it was apparent from the answers to the interrogatories that the jury awarded nothing upon the claim for damages, as set forth in the second cause of action in the petition, and that, therefore, the plaintiff having recovered in full upon its first cause of action. and, the supplemental petition for the gas consumed, the balance, to-wit, the $900 allowed for damages in the general verdict, was inconsistent with the special findings of fact, which set forth that the jurors made no allowances for the items of special damage averred in the second cause of action. This motion for a judgment notwithstanding the verdict, or, in other words, for a judgment upon the special findings of fact, the court overruled, but did grant a motion for a new trial as prayed for by the defendant below, the Central Cas Company.
    A motion for a new trial by the plaintiff, the Hope Oil Company, was overruled. The case was, therefore, remanded for a new trial, whereupon the Central Gras Company prosecuted error to the Court of Appeals to reverse the judgment of the court of common pleas in failing to sustain its motion for judgment upon the special findings of fact. The Court of Appeals affirmed the judgment of the court of common pleas, and this action is brought to- reverse the judgment of the Court of Appeals. The record further discloses that a motion is made in this court to dismiss this proceeding in error, for the reason that no exception was taken to the ruling of the Court of Appeals on the refusal of the common pleas court to render judgment upon the special verdict.
    
      Messrs. Moore, Devaul & Moore, for plaintiff in error.
    
      Mr. F. W. Ketterer and Mr. L. E. Mats, for defendant in error.
   Day, J.

There are two questions presented by this record. The first arises upon the motion of the Hope Oil Company, defendant in error, to dismiss this proceeding for the reason that no exception was taken to the finding of the Court of Appeals in affirming the judgment of the court of common pleas.

While it is claimed that a supplemental journal entry was prepared by the Court of Appeals preserving such exception, we do not feel that the same was necessary, for the reason that, in so far as the rights of the Central Gas Company, plaintiff in error, to its judgment on the special findings of fact, are concerned, the same were finally settled and determined by the Court of Appeals in sustaining the common pleas court in refusing to enter judgment thereon in favor of the Central Gas Company; that is to say, by remanding the case for a new trial and overruling the motion for judgment on the special findings of fact, whatever rights the Central Gas Company had under said special findings were forever lost and finally disposed of adversely to the Central Gas Company; hence, to that extent, upon that feature of the case, the action of the court was a final judgment, and no exception to the finding of the Court of Appeals in that regard was necessary. Commercial Bank of Cincinnati v. Buckingham, 12 Ohio St., 402:

“In order that a final judgment may be reviewed, reversed, vacated or modified, it is not necessary that the party seeking its reversal, should have excepted to such final judgment at the time of its rendition.”

Justice v. Lowe, 26 Ohio St., 372, is to the samé effect.

We are, therefore, of opinion that the motion to dismiss this proceeding in error for failure to note an exception to the judgment of the Court of Appeals is not well taken, the same being in the nature of a final judgment upon that feature of the case.

The second question relates to the relative rights of the parties upon the special findings of fact. Upon the issues tendered by the pleadings, the interrogatories were pertinent, and the trial court was right in submitting the same to the jury. The answers thereto show conclusively that the jury allowed nothing on the special items of damage set forth in the second cause of action, and we fail to find under the pleadings how the item of $900, returned on the general verdict, could be based upon any other claims for damages than those specially set forth in the second cause of action.

It is true that the second cause of action of the petition contained the language:

“Plaintiff further avers that its No. 3 well at the time they entered into the contract with plaintiff, was producing about one barrel of oil per day but that in drilling said well from the Keener to the grit sand, said well was destroyed as an oil producing well and is producing gas only.”

There is some reference in the evidence, as contained in the bill of exceptions, as to the loss of this oil, as follows:

“Q. You may state to the jury, Mr. Preitag, what the effect upon this well was from what it was producing then from the Keener sand to the drilling down of it. A. It was producing one barrel of oil per day in the Keener and lime sand, and when we drilled it down to the grit sand, it did not produce any oil at all; it was destroyed as an oil well.”

And in two places in the record allusion is made to the possibility of saving this oil by using proper precautions. Outside of these three points, we are unable to find in the record further testimony on the question of the loss of the oil.

Now, the averments of the second cause of action in the petition relate to the following items: Expenditure in the equipment, in the way of labor and laying pipe line and setting up engine, $300 ; expenditures in the way of equipment, necessary and essential, and provided for in the claimed agreement, $740; cost of drilling well No. 3 from the Keener sand to the Berea grit $1,200, making a total of $2,240, from which sum the item referred to in the averment “that said equipment is now not worth more than the sum of $370” is to be deducted, which leaves a balance of $1870.

In the prayer for damages the following appears :

“That by reason of the foregoing, plaintiff is damaged in the sum of $1,870.”

Now if the sum of $200 asked for in the first cause of action be added to the foregoing item, to-wit, $1,870, the total is $2,070. This amount must have been in the pleader’s mind, as the close of the petition is as follows:

“Plaintiff therefore prays judgment against defendant in the sum of $2,070 with interest on $200 from this 24th day of March, 1921, for costs and such other and further relief to which plaintiff in equity may be entitled.”

It would, therefore, seem apparent that the petition itself did not declare upon other damages than those specifically set forth as above enumerated, and the record is silent as to the market value of the oil claimed to have been lost; nor does the charge of the court in stating the issues to the jury, and instructing them as to damages, indicate that this feature of the controversy between the parties was submitted to the jury as an item of damages. The paramount issue was rather as to whether there was a contract at all or not, and the question of damages was secondary. The charge in that behalf was as follows:

“If you further find from a preponderance of the evidence, that there was a contract between the parties, and that the defendant violated the contract, and that the plaintiff is entitled to damages, then the rule for estimating the damages to which the plaintiff would be entitled, is the difference between the actual value of the material or fixtures at the time they were purchased, and the actual value of them at the time of the violation of the contract, to this amount might be added, if you so find the facts to be, such expenses [as] are partial or total losses to plaintiff, if any, such as labor, or any other loss he may have sustained that comes within the description I have given you.”

In no event could the plaintiff recover for more than he prayed in his petition, and having limited himself to the items of damages indicated, we can find nothing in either the pleadings or the entire record to sustain the item of $900 in the general verdict. That the same, was inconsistent with the special findings, the plaintiff, the Hope Oil Company, must have believed, for in its motion for a new trial the first ground set forth is as follows:

“For the reason that the findings of the jury as shown by its general verdict are inconsistent with its findings as found in its special verdict.”

The court of common pleas was likewise of that opinion, for, as appears by its journal entry, it sustained the motion of the Central Gas Cbmpany for a new trial “for the reason that the answers to the interrogatories attached to the verdict are clearly and irreconcilably inconsistent with the general verdict”; and, further, in the brief of counsel we are advised that the Court of Appeals reached the following conclusion:

“We agree with counsel that the answers to these interrogatories show that the jury did not allow anything under the second cause of action.”

It would, therefore, seem that there is apparent upon the face of the record a clear inconsistency between the special findings of fact and the general verdict in this, to wit, that the $254.67 was allowed for the gas consumed under the first cause of action in the petition and supplemental petition, and the jury specifically finding that they allowed nothing for the special damages averred in the second cause of action we can find nothing to support the item of $900 in the general verdict. Its allowance is, therefore, clearly inconsistent with the special findings of fact.

Now, Section 11464, General Code, provides:

“When a special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court may give judgment accordingly.”

This language is plain and mandatory. This duty of the court to render judgment upon the special findings of fact has been heretofore recognized by this court in Davis v. Turner, 69 Ohio St., 101, 112, 68 N. E., 819

We are, therefore, of opinion that the court of common pleas should have sustained the motion of the defendant below, the Central Cas Company, for a judgment in its favor upon the special findings of fact, and that the Court of Appeals erred in sustaining the court of common pleas in its refusal so to do.

Proceeding, therefore, to render the judgment that the court of common pleas should have rendered, judgment is rendered in favor of the Hope Oil Company, defendant in error, for $254.67, and the item of $900 contained in the general verdict rendered herein is set aside and held for naught.

Judgment reversed, and judgment for plaintiff in error on the special findings of fact.

Judgment reversed.

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