
    No. 339
    SASFIA v. THOMA
    No. 5025.
    Decided May 9, 1924
    841. NEW TRIAL — Where the trial court dismissed jury and induced parties to negotiate for settlement and later entered judgment for defendant, it was error to refuse new trial.
    Attorneys — Vickery and Vickery, for Sasfia; Hart, Curry, Sklenick & Murray, for Toma; all of Cleveland.
   VICKERY, J.

Epitomized Opinion

Published Only in Ohio Law Abstract

Original action in the Common Pleas for damages wherein Frank Sasfia, a minor, was sitting on his bicycle in the street with his foot resting on the curb when Toma drove a truck into him, causing the injuries complained of. A jury was impanelled and plaintiff presented part of his evidence and then desired to call defendant for cross-examination. Defendant was not then in court and after some delay in the trial the court suggested that a juror be withdrawn and the case set for four or five days later. An entry was made in the record, however, as follows: “Jury waived, case submitted to the court.” At the time set, the. parties appeared and announced that they could not agree on a settlement.

The record showed that the court said that if they could not settle, he would take care of it. About ¿an hour was consumed in discussion and evidence was heard front both sides. Both attorneys said they understood that it was not a trial in the strict sense, but in the nature of an effort at settlement. The case was left with the court and a few days later he entered judgment for defendant, saying that if the case had been submitted to1 the jury, he would have been compelled to direct a verdict for defendant. A motion for new trial was made and affidavits were filed and the motion was overruled. Sasfia prosecuted error. Held, by the Court of Appeals:

Under the circumstances, the parties were misled by the trial court. It was an abuse of discretion after the plaintiff had been misled in this manner, not to grant the motion for new trial. Reversed and remanded.  