
    BAYLOR v BUTLER
    Ohio Appeals, 9th Dist, Lorain Co
    No 475,
    Decided Jan 9, 1929
    F M Stevens and Cyril J Maple, both of Elyria, for Baylor.
    Geo L Glitsch, Lorain and H W Ingersoll, Elyria, for Butler.
   PER CURIAM

We have carefully considered the errors relating to the second cause of action claimed by the plaintiff, and while we find that there were some errors, we do not find that they were prejudicial, so as to prevent the plaintiff from having a fair trial, and we do find that the trial on that cause of action resulted in substantial justice being done, under the facts which the jury were warranted in finding.

As to the first cause of action, we find that the trial court was in error in ruling that there was a substantial variance between the allegations of the petition and the proof, and that therefore there was no evidence tending to prove the allegations of the first-cause of action. The trial judge should have applied to the first cause of action the law that he directed the jury to apply to the second cause of action, when he charged the jury that—

“It is not necessary that the plantiff, in order to recover, should have proven that the exact words set forth in said second cause of action were used, or that all of said words were used, but if you find from the evidence that the defendant used words conveying the same meaning as those set forth in said second cause of action, and that the same charged the plaintiff with trickery, artifice deceit and fraud in the conduct of his business in crying sales as an auctioneer, that would be sufficient, so far as the charge of slander set forth in said second cause of action is concerned.”

The judgment is therefore affirmed as to the second cause of action in plaintiff’s petition, and reversed as to the first cause of action in plaintiff’s petition, and the cause remanded to the Court of Common Pleas for further proceedings according to law; each party to pay one-half of the costs in both the Court of Common Pleas and Court of Appeals.

Washburn, PJ, Funk, J, and Pardee, J, concur.  