SPECIAL CHARGES NOT SUBJECT TO COMMENT BY TRIAL JUDGE.

Court of Appeals for Tuscarawas County.

#### Tuscarawas County Commissioners et al v. Swanson et al.*

Decided, July 11, 1916.

*Charge of Court—Duty of Trial Judge With Respect to Special Written Requests for Instruction of Jury—Evidence Immaterial or Irrelevant.*

Special charges before argument should be either given or refused by the trial judge without change, modification or comment; and a statement addressed to the jury by him to the effect that the instruction so given was not conclusive or more than a tentative statement of the law which might be modified in his general charge constitutes error which, in the event of a verdict adverse to the party asking that such instruction be given, must be regarded as prejudicial error.

*E. E. Lindsay,*Prosecuting Attorney, and *Buchanan, Beed & Bussell,*for plaintiffs in error.

*J. E. Greene, D. A. Hollingsworth*and *Lynch, Day, Eirwple & Lynch,*contra.

*

Motion to direct the Court of Appeals to certify its record in this case overruled by the Supreme Court, November 21, 1916.

Houck, J.

This is a proceeding -in error and is prosecuted from the Common Pleas Court of Tuscarawas County, Ohio, to this court, where it is sought to reverse the judgment of the said court of common pleas. The plaintiffs in error were the defendants in the lower court, and the defendants in error were the plaintiffs.

The petition of the plaintiffs below sets forth three causes of action, being in substance as follows:

*168*First.*That for many years prior to March, 1909, there was a bridge across the Tuscarawas river, in Warwick township, Tuscarawas county, Ohio, belonging to and maintained by said county; that the same had become dangerous for public travel, by reason of decay, etc.; that it was condemned for public travel by the county commissioners of said county; that said bridge was an important one and used much for public travel; that plans were ordered prepared by said county commissioners for a new concrete bridge *at or not far from the point where the old bridge stood;*that plans and specifications were prepared for a new bridge, bids advertised for, etc.; that plaintiffs bid on same, and being the lowest bidders were awarded the contract for said new bridge; bonds were sold as provided by law, and a written contract entered into with plaintiffs for the construction of 'said bridge for the sum of $31,196.77; that plaintiffs executed the proper bond; that the plans and specifications, contract and bond, each and all were approved by the prosecuting attorney of said county, and that everything in the premises required by law to be done was done by plaintiffs.

Thereupon the plaintiffs entered upon the execution thereof, and obtained a large quantity of materials which they used therein, and employed a large amount of labor in and about the work of building and constructing said bridge. That on October 27th, 1909, the county engineer, Edward Stingle, the agent of the defendants, and who was authorized to inspect, approve and accept said work, materials, etc., approved an estimate to the amount of $602.52; that same was done under the terms of said written contract; that defendants refused to pay same, and plaintiffs pray for judgment for said $602.52 at six per cent, from October 27th, 1909.

*Second.*Plaintiffs pray judgment for a second estimate of $776.10 at six per cent, from December 10th, 1909.

*Third.*That in addition to the estimates set out in the first and second causes of action they expended the sum of $15,000 under said contract in and about the work and materials used and in the necessary preparation to carry on said work; that plaintiffs were ready and willing to carry out their part of the *169contract, bnt defendants refused to permit them to do so, and defendants have notified plaintiffs to cease work upon said contract and have compelled them to abandon their work, and no part of said materials furnished or work done by them has been paid for, and by reason whereof they pray for judgment for $13,618.38, with interest from December 10th, 1909.

Wherefore, plaintiffs ask for a judgment in the sum of $15,-000 with interest.

The answer admits certain allegations in the petition, but the defendants rely upon the following defenses:

1. That the new bridge was not being built at the particular point where the" old bridge stood.

2. That the plaintiffs did not expend the money claimed by them to be expended, and that they had not furnished the. materials and had not done the work claimed by them.

3. That the contract was not approved as required by law, and the letting of same had not been properly advertised.

The reply filed by plaintiffs was in the nature of a general denial of all the allegations therein inconsistent with the allegations of the plaintiffs’ petition.

Upon these pleadings and the evidence the cause was submitted to a jury, and a verdict rendered in favor of the plaintiffs in the sum of $10,663.84. A motion for a new trial was filed, heard and overruled, and a judgment entered on the verdict.

The plaintiffs in error seek a reversal of the judgment below upon numerous grounds, as set forth in their petition in error, but in oral argument their counsel seem to rely upon the following grounds:

1. That the trial judge erred in overruling the demurrer to the petition.

2. Because no handbills had been circulated, and the proper notice had not been given of the fact that a new bridge was to be constructed.

3. For the reason that the bridge was not constructed at the point or place of the old bridge.

*1704. That the court erred iu giving special written requests Nos. 2, 3 and 4, before argument, as requested by plaintiffs below.

5. 'That the court erred in refusing to give written request No. 1, before argument, as requested by defendants.

6. That the court erred in its general charge to the jury.

7. That the verdict of the jury was against the manifest weight of the evidence.

As to alleged errors 1, 2 and 3, we will say that this cause has heretofore been before this court on a demurrer to the petition which involved the same questions, and the court having overruled the demurrer we do not think it necessary to discuss the same further than to say that we still adhere to our former holding and judgment in overruling said demurrer to the petition in this case.

Fourth ground of alleged error, as to special written requests Nos. 2, 3 and 4, given before argument at the request of the plaintiffs below, we find upon examination that each and all of them are correct propositious of law, and are clearly applicable to the facts in the present case, and the court committed no error in giving them to the jury.

In passing, we will say that it is the duty of a trial judge, when requested to do so by either party before argument, to give to the jury special written requests as to the law applicable to the facts and the issues to be determined in the ease, and if they are proper to be given they must be given without comment on the part of the court.

From an examination of the record in this case we find that the trial judge made comments upon these requests, and stated to the jury that they might be modified by what he might say in his general charge. The court said:

“But I will charge a part of the plaintiffs’ requests with the distinct understanding that something that I might say, and it might be considerable, in the general charge, that will be delivered to you after the argument, must be taken into consideration in connection with that which I am about to charge before argument. What I now say to you, in charging you before ar*171gument, I want you to distinctly understand is not conclusive; that I might say something more on these propositions, in addition thereto, that may considerably modify them and put them in a new light.”

After the court had given these special charges he continued as follows:

í£Now, as I have said before, in what I might have to say in the general charge after argument, some considerable modification of this, or possibly additions thereto, will necessarily creep in.”

We hold that it was the duty of the court to give or refuse these propositions of law as they were presented to it, without any change or modification, and without any reference to what the court might or might not do in its general charge with reference to modifying the same. It was error on the part of the court to comment upon these propositions of law, but as the error was against the prevailing party, it of course was not prejudicial.

Coming now to the fifth error complained of: Did the court err in refusing to give special request No. 1, before argument, as requested by the defendants below?

From an examination of this request, in our opinion the evidence sought by it to be excluded from the jury was irrelevant and wholly immaterial to a proper determination of the issues raised by the pleadings. But how could the plaintiff in error be prejudiced by the trial court permitting testimony to go to the jury concerning an issue or issues that were not in the case V

Sixth ground of alleged error: Did the court err in its general charge to the jury? We have examined the general charge of the court with much care, and while we find some technical errors, yet upon the whole it fully covers the propositions of law applicable to the facts as shown by the evidence, and we find no error therein prejudicial to the rights of the plaintiff in error.

Seventh ground of alleged error: Was the verdict of the jury against the manifest weight of the evidence, and did the *172court err prejudicially against the rights of the plaintiffs in error in overruling the motion for a new trial and entering a judgment on the verdict?

The bill of exceptions in this ease contains about six hundred pages of typewritten matter, and we have spared neither time nor labor in reading the testimony of the witnesses and in an examination of the exhibits attached thereto, and we have done this in order to satisfy ourselves as to whether or not the judgment is supported by sufficient evidence, and we do not hesitate to say that we are fully satisfied that it is; and we therefore find that the judgment is not against the manifest weight of the evidence.

From an examination of the whole record we find therein no error prejudicial to the rights of the plaintiffs in error, and further finding that substantial justice has been done to all parties to this suit, we hold that the judgment below should be affirmed.

Judgment affirmed.

Shields, J., and Powell, J., concur.