Rogers v. Ziegler ( 1925 )

The judgment rendered in the court of common pleas in this case was reversed on April 6, 1925, for failure to give request No. 9. Briefs have been submitted on an application for a rehearing, and the question has been re-examined by the court.

In view of the fact that the jury returned a verdict in favor of Clinton A. Mauk, driver of the car in which Mrs. Ziegler was riding, it is insisted that, even though request No. 9 contained a correct statement of the law, it was not prejudicial error to refuse to give it. We cannot assent to this contention. If the requested instruction had been given before argument, it would have enabled counsel to pursue a line of argument that they were not able to make in the absence of the charge. If counsel had been enabled to pursue that line of argument, perchance the jury would have returned a verdict in favor of both defendants. In addition to this, the duty of the trial judge is mandatory to give to the jury in charge before argument such written requests as state correct propositions of law and are pertinent to the issues and the evidence, and a refusal to give such requests before argument is reversible error. The language of Section 11447, General Code, is imperative. Cleveland ElyriaElectric Rd. Co. v. Hawkins, 64 Ohio St. 391, 394, 60 N.E. 558;Chesrown v. Bevier, 101 Ohio St. 282, 128 N.E. 94; and Payne,Dir. Gen., v. Vance, 103 Ohio St. 59, 133 N.E. 85.

As stated in the original opinion in this case this court is not favorbly impressed with the language of instruction No. 9, but that it states a correct proposition of law seems to be sustained by abundant authority. 20 R.C.L., p. 101, Section 88; 29 Cyc., 510; 7 L.R.A., 678; Bolin v. Chicago, St. P., M. O.Ry. Co., 108 Wis. 333, 84 N.W. 446, 81 Am. St. Rep., 911;Memphis St. Ry. Co. v. Haynes, 112 Tenn. 712, 81 S.W. 374;Potter, Adm'r., v. C. N.W. Ry. Co., 21 Wis. 377, 94 Am. Dec., 548; and New Jersey Express Co. v. Nichols, 33 N.J. Law, 434, 97 Am. Dec., 722.

Application for rehearing denied.

WILLIAMS and YOUNG, JJ., concur.