
    No. 164
    CENTRAL GAS CO v. HOPE OIL CO.
    Error to Court of Appeals, 7th Dist.
    No. 18355.
    Filed in Supreme Court Feb. 1, 1924.
    2 Abs. 115
    3235. VERDICT — Special and general.
    Attorneys — Moore, DeVaul & Moore, Woods-field, for Gas Co.; L. E. Matz and F. W. Ketterer, Woodsfield, for Oil Co.
   Action on an account and for damages for breach of contract in the Common Pleas of Monroe county, where the Hope Oil Co. was plaintiff and the Central Gas Co. was defendant. Defendant drew up several special interrogatories which the court submitted to the jury. The jury then returned a general and special verdict finding a general verdict for plaintiff in the sum of $254.67 (the amount claimed on the account in the first cause of action) plus $900, making a total of $1154.67.

The special verdict was in answer to the special interrogatories which inquired how much the jury had allowed on each of several aspects of the alleged breach of contract set up in the second cause of action. In answer to each question the jury reported “Nothing.”

Defendant, contending that the verdict revealed that the jury allowed plaintiff nothing for the items of damage claimed in the second cause of action yet had rendered a verdict for' $900 in an attempt to penalize defendant, moved for a new trial because of inconsistency in the general verdict and the special verdict.

The court overruled defendant’s motion for judgment and granted plaintiff’s motion for new trial because the answers to the interrogatories were inconsistent with the verdict. Defendant prosecuted error to the Court of Appeals which sustained the ruling of the Common Pleas.

Defendant contends that the trial court erred in refusing to ignore the verdict for $900 and to render judgment for $254.67, and that the Court of Appeals erred in sustaining the trial court and likewise refusing to enter the judgment desired by defendant. The questions involved are:

1. The effect that answers to special interrogatories have upon a general verdict.

2. The right of parties, where both general and special verdicts are rendered; and what is essential to- make the general and special verdict inconsistent.

3. The right of plaintiff in an action for money only to recover more by the jury than he claims in his petition.

4. The right of the Court of Appeals, in reviewing action of Common Pleas on motion for judgment on special verdict, to find contrary to the trial court, and whether the Appeals is not bound by the Common Pleas finding.  