#### Scheu et al., Appellants, *v.*Scheu at al., Appellees.

(No. 1870

Decided December 14, 1945.)

*Mr. Logan W. Marshall, Messrs. Roland E. <& FL. E. Beery,*for appellants.

*Mr. Wayne F. Lee, Mr. James D. Herrman, Mr. Rodney R. Blake*and *Miss Gertrude M.*Bonholser, for appellees.

Hornbeck, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery county, entered on the verdict of a jury finding that the last will and testament of Charles W. Scheu, deceased, was his last will and testament.

Five errors are assigned, which will be considered in order.

1. Misconduct of juror.

^ Etta Schultz qualified and served as a juror and with the other jurors signed the verdict. Upon her *voir dire*examination, she stated that she knew none *511of the parties, one of whom was Luesetta Caroline Scheu Lee, a plaintiff. The trial proceeded and on the third or fourth day, Luesetta Lee discovered, from a short talk with Etta Schultz, that she knew the latter and, upon the motion for new trial, testified that in 1917, some 28 years before the trial, she had met and conversed with the juror under circumstances which created a feeling of animosity between them. Etta Schultz stated that she did not know Luesetta Lee personally, had no conversation with her in 1917, and had no ill feeling toward her. The answer of Etta Schultz on her *voir dire*examination to the effect that she did not know Luesetta Lee is assigned as the first ground of error.

There are two aspects to the question presented, one, did Etta Schultz knowingly answer improperly the question under consideration without stating the circumstances of the acquaintance of those parties, if any attended. It is probable that even though Etta Schultz at one time knew Luesetta Lee, the former did not appreciate the fact when interrogated on the *voir dire*examination. The second aspect of the question presented relates to the obligation enjoined upon Luesetta Lee when she realized the acquaintance to which she testified on the motion for new trial. Certainly, it was her obligation to bring to the attention of the court any fact of which she had knowledge which, in her .judgment, might affect the qualification of a juror to sit impartially in judgment on her case. She could not hazard the possibility of favorable or unfavorable action by the juror and, in the event that it was unfavorable, urge it after such action developed. The obligation which devolved upon such appellant when she discovered the fact, which in her judgment may have disqualified the juror, is set forth with citation of authorities in 24 Ohio Jurisprudence, 230, Section 102. *512The determinative question in the consideration of this claimed error is whether the trial judge erred'in concluding that no prejudice appeared to have resulted to plaintiffs’ cause by reason of the statement of the juror or by reason of her service as a juror. The trial judge was well within his province in concluding that no prejudice appeared.

2. The verdict is contrary to the weight of the evidence.

It is necessary to observe on this assigned error that, in the most favorable view to the appellants of the testimony developed, there was presented only á jury question. It became necessary, under the facts, for the jury to resolve them in favor of or against the claim of the appellants, and they held the burden of proof. There is nothing in the factual development which would require this court to hold that the jury disregarded its obligation or that its verdict is so manifestly against the weight of the evidence as to shock the conscience of a reviewing court.

3. Abuse of discretion on the part of the court.

It is claimed that the court abused its discretion in refusing to grant continuance of the cause when the chief counsel of appéllants could not be present at the time it was tried. It is also asserted that Logan W. Marshall of counsel was ill during the trial of the cause. There is not sufficient showing of any abuse of discretion on the part of the court in requiring counsel to proceed with the trial in the absence of Fricke, who no doubt had ample notice of the date fixed for trial and it does not appear that he was physically unable to be present. Manifestly, courts may not cease to function because one of counsel, even though chief counsel, as suggested, chooses to remain away from the place of trial at the time set for the hearing. The physical condition of Marshall was not brought to the attention of the trial judge and he, therefore, was *513given no opportunity to act in the situation presented.

4. Other errors occurring at the trial which were excepted to by plaintiffs at the time and which are apparent on the record.

W. J. Emmons, counsel for decedent in-his lifetime, who testified that he had prepared and witnessed the will, stated in his deposition that the purported will was executed on July 9,1939, whereas the true date was July 3, 1939. At the time of the taking of the deposition, the will under contest was not. presented to the witness although a photostatic copy of the last page thereof was available to him. The jury had to determine the probative effect of the testimony of Emmons. All the circumstances incident to the signing of the will were testified to fully by the witness.

The ultimate question was whether the instrument, which was exhibited to the jury and which had been probated, had been executed and was the -valid last will and testament of decedent. The mere fact that the scrivener may have been mistaken in his testimony at the trial as to the date of the execution of the will was not so material as to preclude the jury from finding in favor of the appellees on the question presented and from concluding that the witness had attested the signature of the decedent to the instrument which was exhibited to the jury. It'is also asserted that the witness stated that it was signed at night whereas the probability is that it was signed in the morning. We do not find that Emmons so testified, but if he did, this also merely went to the wfeight of the witness’ testimony and not to its competency.

5. Errors committed by the court in its charge to the jury and other errors manifest from the face of the record.

Counsel set forth a párt of the general charge given to the jury before it retired, wherein are stated the essentials to constitute due execution of the will, and *514also a part of the charge as given to the jury at its request after it had been in deliberation, and from these statements it is urged that the court modified its general charge by the special charge given at the request of the jury. We do not so find.

It must have been obvious to jury and counsel that the court in its latter charge confined the law, as announced, to the one question propounded by the jury and, properly, did not restate the law controlling all of the issues presented in the case.

A careful examination of this record and a reading of the testimony are convincing that the appellants had a fair trial; that the issues drawn by them were properly presented to the jury; that their cause was capably conducted by their counsel; and that the verdict returned is well supported by the evidence, if that which is favorable to the appellants is given credence, which was within the province of the jury.

We have not cited cases at length in passing upon this appeal because there is no legal question involved which is in doubt on the authorities.

We find no prejudicial error occurring in this record in any of the particulars assigned.

The judgment will be affirmed.

*Judgment affirmed.*

Miller and Wiseman, JJ., concur.