
    Herman v. Teplitz.
    
      Real property — Fraud in misrepresenting depth of lot sold— Charge to jury — Purchaser’s knowledge of dimensions defeats recovery of damages — Argument to jury — Prejudicial statements upon matters not in issue — Argument that vendor could recoup from escrow agent.
    
    (No. 18688
    Decided June 2, 1925.)
    Error to the Court of Appeals of Cuyahoga county.
    On March 28, 1923, the plaintiff, Meyer Teplitz, filed his petition in the court of common pleas of Cuyahoga county, Ohio, joining Olga Herman and the Cleveland Trust Company as defendants, and claiming that he had been damaged by the fraud of the defendants in the amount of $7,500. Plaintiff’s claim, stated ini substance, was that in negotiations preliminary to a contract between defendant Olga Herman and plaintiff executed upon January 13, 1923, for the sale by the defendant Olga. Herman to the plaintiff of a certain lot fronting upon East Eighty-Second street in the city of Cleveland, Ohio, the defendant Olga Herman fraudulently represented such lot to be 50 feet front on the street by 173 feet deep from the sidewalk line, when the lot, in fact, was only 140 feet deep from the sidewalk line; that plaintiff bought the lot relying on the defendant Olga Herman’s representations and suffered the damages claimed.
    
      Fraud, 26 C. J., Sec. 75; Appeal and Error, 4 C. J., Sec. 3032; Trial, 38 Cyc., p. 1507; Appeal and Error, 4 C. J., Sec. 2939.
    
      The petition also alleged that according to the agreement in question the title papers to the property and the plaintiff’s money were placed in escrow with the Cleveland Trust Company, under an agreement by which it was to act for both parties, for a consideration.
    The petition further alleged that the Cleveland Trust Company failed properly to perform its duties as escrow holder, in that it permitted Olga Herman’s deed to the plaintiff to be recorded and plaintiff’s money to be paid to Olga Herman, when it knew, or should have known, that the lot described in Olga Herman’s deed to plaintiff was only 173 feet from the center of the street and only 140 feet from the sidewalk line.
    The Cleveland Trust Company demurred to plaintiff’s petition on the ground of misjoinder, and was dismissed from the action. The case proceeded to trial against the defendant Olga Herman, and the jury returned a verdict of $4,000 in favor of the plaintiff. Upon the filing of a motion for new trial the court remitted from the verdict all in excess of $2,000, overruled the motion for a new trial, and entered judgment for the plaintiff in the sum of $2,000 and costs. The judgment of the trial court was affirmed by the Court of Appeals.
    The record discloses the following facts:
    It is conceded that the lot in question was 173 feet deep from the center line of the street, its rear line being marked off by a fence, and that before the consummation of the sale the plaintiff went to the lot in question several times, alone and with others; that he walked over the lot and looked at it for some time; that the fence marking the rear line of the lot was pointed out to him at various times; and that he had opportunity to gauge the lot’s size either by examination or by actual measurement.
    Teplitz, the plaintiff below, testified that before he bought the lot he told Miss Herman and her mother that it was designed to be used for an apartment house; that he talked over with Miss Herman the size of the lot and the number of feet which would be needed to build an apartment house upon the lot because of the set back from the street required by the building code. He said that Miss Herman stated that the size of the lot was 173 feet from the sidewalk line. Miss Herman stated that she had said that the lot was 173 feet in depth, but positively denied that she had ever stated to Teplitz that it was 173 feet in depth from the sidewalk line. The deed by which Miss Herman obtained title to the property read 173 feet from the center of the street. Miss Herman also denied that she had been told prior to the consummation of the sale that the lot was to be used for an apartment house. It was in evidence that Teplitz, when he was discussing the price of the lot with Miss Herman, said that the price was much higher than that of the lot which had been sold further down the street, and that Miss Herman answered that the lot in question was only a 140-foot lot. Moreover, Miss Herman states that she knew the whole time that the lot was only 140 feet from the lot line; that the 173 feet was measured from the center of the street; and that she never told this fact to Teplitz because she did not “consider it material.”
    The evidence also shows that one Fitzgerald, an employe of the Cleveland Trust Company, who, Miss Herman says, was her agent in this matter, drew the contract of sale in the escrow transaction. When Teplitz saw that the depth of the land was not included in the contract, he insisted that the number of feet be stated therein, whereupon Fitzgerald, in his own hand, wrote into the contract a statement that the lot approximated 50x173 feet. Fitzgerald then had a certificate of title drawn, showing that the lot was only 140 feet deep from the sidewalk line. This certificate of title Fitzgerald later had changed to read 173 feet from the center of the street, and thereupon gave it to Teplitz, who had never seen the certificate containing the statement that the lot was 140 ,feet deep from the sidewalk.
    The case comes into this court upon allowance of motion to certify the record.
    
      Messrs. Fackler & Morgfm, for plaintiff in error.
    
      Messrs. Cline & Patterson, and Messrs. Friedman é Bloom, for defendant in error.
   By the Court.

The testimony offered at the trial was sharply conflicting upon material points. This being the state of the record, the following request to charge was made of the court by defendant, and refused:

“If you find from a preponderance of the evidence that plaintiff from the inspection he made of the lot before he signed the contract of purchase knew that it was only about 140 feet deep from the street line, then plaintiff is not entitled to a verdict in his favor.”

This charge should have been given. If the plaintiff did know that the fence was 140 feet from the street line, then he was not entitled to recover, for in such case he knew that the lot was only 140 feet deep instead of 173 feet deep, in which event he did not rely upon the alleged misrepresentations of Miss Herman. “If one purchase property on his own knowledge, he cannot recover for fraudulent representation of it, because he has not been deceived by it.” Wilkinson v. Root, Wright, 686; 20 Cyc., 34.

We think that the refusing of this charge was prejudicial under the evidence offered in the case, and constituted reversible error.

Moreover, during the course of the argument, the attorney for the plaintiff made the following statement:

“We don’t claim anything, except that Miss Herman knew that she had 173 feet from the center of the street, and that she had 140 feet to sell, only, and when she signed this contract and put in the 173 feet, adding in ‘the above property unrestricted’ — whatever that little lady knew about tbe meaning of the word restricted, or incumbered, and 10 years in the public schools to teach her the ordinary meaning of the language — but when she went to her banter, and that great institution first declined to put in the 173 feet, and then, at the request and insistence of my client said ‘the property is unrestricted.’ Olga Herman., through her agent, the Cleveland Trust Company, who sits here now, and ought to be at the foot of a lawsuit, and when you render a verdict here to correct the injury which has been done, Miss Herman, there are the people who are to answer to you. They will answer to you. We can’t sue them both in this action. We tried to do it, and let them fight it out, but they demurred. The Cleveland Trust Company have gotten out of it, and all we can do is to sue the person to whom — with whom we had the contract, and then she can go back to the Cleveland Trust 'Company and recoup her damages, if they have cheated her # *

After argument and before the court charged the jury, counsel for defendant requested the following charge:

“You should pay no attention, in your consideration of this case, to any suggestion made by counsel for plaintiff that the defendant might have a claim against the Cleveland Trust Company. Such suggestion was improper.”

This request should have been given. The charge asked upon this point was not covered in the general charge. When the attorney for the plaintiff told the jury that Miss Herman could go back to the Cleveland Trust (Company and recoup her damages, he in effect told the jury that, if it rendered a verdict against Miss Herman, the Cleveland Trust Company would pay it. In that respect the statement was similar to statements made by counsel in the course of argument that defendants in personal injury suits carry insurance which indemnifies them against loss. This sort of statement is ordinarily held to be a ground for reversal. Emery Dry Goods Co. v. De Hart, 130 Ill. App., 244; Hollis v. U. S. Glass Co., 220 Pa.., 49, 69 A., 55.

In this statement the attorney for the plaintiff went outside the record and brought before the jury something not in evidence and highly prejudicial. Comments upon matters not in evidence, which are prejudical, made by attorneys during the course of argument, should be disapproved by the court at the time. Burns v. State, 75 Ohio St., 407, 79 N. E., 929.

It is reversible error for a court to refuse to instruct a jury to disregard prejudicial statements made during arguments upon matters not in issue in the case. Miller v. State, 73 Ohio St., 195, 76 N. E., 823. This rule obtains in civil as well as in criminal cases. 38 Cyc., 1479 and 1494, and cases cited.

The instruction to disregard the statement should have been given. The judgment will be reversed, and the cause remanded for new trial.

Judgment Reversed, and cause remanded.

Jones, Matthias, Day, Allen, Kinkade and Robinson, JJ., concur.  