Friedrich v. Nolan , 81 Ohio App. 288 ( 1947 )

This is an appeal on questions of law from a judgment for plaintiff, following a jury verdict finding plaintiff entitled to a commission for selling defendants' real estate.

Number six of the seven assignments of error is directed at the giving of the following special charge, requested by the plaintiff:

"I charge you, members of the jury, that if you find that the evidence most favorable to plaintiff's case, tends to prove that the broker and the owner entered into an oral agreement, whereby the broker was employed to sell the owner's property at a fixed commission, and the broker thereupon made an effort to procure a purchaser and presented an offer from a prospective purchaser to the owner, and after the offer was presented, the owner and purchaser consummated the sale, then and in that event the broker is the procuring cause of the sale and is entitled to recover the agreed commission based on the actual sale price, and your verdict must therefore be for the plaintiff."

That charge violates the rule as stated in Van Demark v.Tompkins, Exr., 121 Ohio St. 129, at page 132, 167 N.E. 370:

"It is, of course, the general rule that the jury is to determine the issues from all the evidence in the case, not that produced and offered exclusively by one side or the other, but from the testimony of all witnesses, the depositions, and any other items of evidence admitted at the trial."

See, also, Cincinnati Traction Co. v. Williams, 115 Ohio St. 124, 152 N.E. 30; Travelers' Ins. Co. of Hartford, Conn. v.Gath, 118 Ohio St. 257, 160 N.E. 710. This court has followed the general rule in City of Cincinnati v. Tuke, 70 Ohio App. 47,44 N.E.2d 748; Sweeney v. Schneider, 73 Ohio App. 157,53 N.E.2d 820; Estridge, Admx., v. Cincinnati Street Ry. Co.,76 Ohio App. 220, 63 N.E.2d 823.

In 39 Ohio Jurisprudence, 985, it is stated:

"The jury, in weighing the evidence with the view of determining in whose favor it preponderates, should weigh and consider all of the evidence introduced by both parties, and they should be instructed so to do by the court. The charge should not be drawn so as to confine the jury, in weighing the evidence in favor of one party, to that offered by such party, excluding any benefit that might be derived from his adversary's evidence, or from that of any witnesses. The jury should be instructed to consider, in weighing evidence for either party, all the evidence introduced by both."

The above charge would seem to deny to the defendants the right to have the jury consider all the evidence on the issues submitted and to tend to mislead the jury into considering only a part or less than all the evidence introduced which might bear on those issues, and, therefore, constitutes prejudicial error.

There are no other errors prejudicial to defendants in the record.

The judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

MATTHEWS, P.J., ROSS and HILDEBRANT, JJ., concur in the syllabus, opinion and judgment.