
    No. 330
    19412
    Robert S. Alter v. Robert Shearwood, a minor, etc.
    Error to the Court of Appeals of Hamilton County.
    355. DAMAGES — In suit for personal injuries the measure of damages, in the absence of proof of loss of salary, is the injury governed by the evidence and the ability to earn a living thereafter.
    687. JUDGMENTS — Appeal court may affirm part of judgment when plaintiff agrees to remit part.
    327. COURTS — Appellate court requiring plaintiff to make remittur before it will affirm, does not violate “due process of law”, under Sec. 5, Art. 1, Ohio Const.
    941. PRACTICE & PROCEDURE — Where court of appeals affirms a reduced judgment, does not authorize a petition in error. In such case a petition in error can only be filed upon an order directing Court of Appeals to certify record.
    681. JURISDICTION — Case may be dismissed at any time when want of jurisdiction of subject matter has been proven.
   JONES, J.

1. In a suit for personal injuries wherein it is alleged that plaintiff has lost a weekly salary or compensation in a definite amount, and no proof of such amount has been offered on the trial, it is not error for the court to charge that, “The measure of damages is compensation for the injuries received as shown by the evidence, and in determining this amount, if any, you will take into consideration the nature and extent of these injuries upon his ability to work and earn a living”.

2. A reviewing court upon finding a verdict and judgment excessive may, the plaintiff consenting to remit a part of the judgment, affirm the judgment for the balance. (Pendleton St. R. R. Co. v. Rahmann, 22 Ohio St., 446; Schendel v. Bradford, 106 Ohio St., 387; Silverglade v. Von Rohr, 107. Ohio St., 75; approved and followed.)

3. The action of the appellate court, requiring such consent remittur as a condition for affirmance and of refusing a new trial, neither violates due process nor the provisions of Sec. 5, Art. 1, of the Ohio Constitution authorizing. the right of trial by jury.

4. The procedure of the Court of Appeals, affirming the reduced judgment, does not authorize the filing of a petition in error as a matter of right; nor does it involve any question arising under the state or federal constitutions. In such case a petition in error can only be filed upon an order directing the Court of Appeals to certify its record.

5. A proceeding may be dismissed by the court at any' stage of the case wherein want of jurisdiction of the subject-matter appears.

Dismissed for want of jurisdiction.

Marshall, CJ., Day, Allen, Kinkade and Robinson, JJ., concur.  