Rienzi v. Sams

OPINION

STEVENS, PJ.

The action below was for the recovery of damages alleged to have been sustained by reason of a claimed false arrest and false imprisonment of plaintiff by defendant Sams. The answers of the defendants were general denials.

Upon submission of the case to the jury, a verdict in favor of the defendants was returned, and judgment was thereafter entered upon said verdict. The cause is before this court upon appeal on questions of law.

Errors assigned may be grouped as follows:

I. Error in the admission and rejection of evidence.

2. Error in the charge of the court.

3. That the verdict and judgment are manifestly against the weight of the evidence.

We have examined all of the errors claimed to have intervened in the admission and rejection of evidence, and we find no prejudicial error in that respect.

The charge of the court contains an instruction upon the subject of justification for the arrest of plaintiff by the defendant Sams, which it is claimed should not have been given, because justification was not pleaded in said defendant’s answer.

It is the general rule that evidence bearing upon the subject of justification should not be admitted over objection unless justification was pleaded in the answer. However, 39 O. Jur., "Trial,” §269, states in part at p. 957, the following:

“The propriety of charging on issues raised by evidence which goes in without objection, notwithstanding such issues are not raised in the pleadings, is well established by the authority of many decisions of the supreme court of Ohio * *

See also Ely v Borck, 7 Oh App 49.

This court is of the opinion that there was such evidence admitted without objection in this case as warranted the trial court in giving the charge upon the subject of justification. We accordingly find said charge in that respect, and in the other respects concerning which complaint is made, to be free from prejudicial error.

We are unable unanimously to agree that the verdict and judgment are manifestly against the weight of the evidence.

Judgment affirmed.

WASHBURN, J., and DOYLE, J., concur in judgment.