
    No. 775
    KLINE et al v. SMITH
    Ohio Appeals, 3rd District, Allen County
    No. 340.
    Decided May 31, 1923
    367. TRIALS.
    All questions of fact must be submitted to the jury, even if there be no conflict of evidence, or contradictory of plaintiff’s claim.
    Attorneys — -Lippineott & Lippineott, for Kline et al; Ernest M. Botkin, for Smith-.
   HUGHES, J.

Epitomized Opinion

Smith brought an action against Kline and his wife to recover under a contract which he claimed had been made with them jointly for services in taking care of a dairy, farming the wife’s farm, and for the sale of hay. Kline pleaded general denial and payment, while his wife asserted that she had no contractual relations with plaintiff. The court in its charge directed the jury to find for plaintiff in some amount against the defendant Kline’. Later in the charge, the court told the jury that if Kline’s wife participated in the benefits of the labor of plaintiff, she was also liable. It -¡fias admitted in the evidence that she did participate in these benefits, therefore the charge was a direction against her. The trial resulted in a verdict for plaintiff against both defendants. Defendants prosecuted errer. In reversing the judgment, the Court of Appeals held:

1., It is the duty of the trial court to submit to the jury issues of fact, even though there be no conflict of evidence upon the questions, and even though the defendant has not offered evidence to contradict the claims made by the plaintiff, which had been supported by evidence ’ tending to prove them. The court in'this case took most of the issues of fact out of tlje hands of the jury and decided them in favor of the plaintiff, thus prejudicial error was thereby committed.  