Crawford v. Kellermier
| Decision Date | 18 March 1931 |
| Docket Number | 22480 |
| Citation | 123 Ohio St. 404,175 N.E. 600 |
| Parties | Crawford v. Kellermier. |
| Court | Ohio Supreme Court |
Supreme Court - Plaintiff in error has option to print only a portion of record - Section 12254, General Code, and Supreme Court rule IV - Presumption that all favorable portions printed - Pleading - Conclusions pleaded and traversed by general denial - Liberal construction to sustain pleading - Objections to evidence for insufficiency of pleading over-ruled, when - Employer's action against employee for damages to property for breach of contract - Recovery lies only where contract breached, if negligence not involved - Employee not required to guard against mere errors of judgment, when - Defective verdict - Section 11457, General Code - Court may correct verdict by adding interest to amount awarded.
1. By virtue of Section 12254, General Code, and rule IV of this court, a plaintiff in error may at his option print only so much of the record to be reviewed as will show the error complained of. In the event only a portion of the record is in fact printed, and the omissions are not prejudicial to the defendant in error, it will be presumed that plaintiff in error has printed all of the record which is favorable to his contentions, and this court will therefore only determine whether the printed portion shows that the court of appeals erred in affirming the judgment of the trial court.
2. Where the allegations of a pleading are conclusions rather than statements of fact, and such allegations are traversed by a general denial, without any motion having been filed to make definite and certain, the pleadings should be liberally construed so as to sustain the pleading if possible, and objections to introduction of evidence on account of the alleged insufficiency of the pleading should generally be overruled, unless there is a total failure to allege matter essential to the relief sought.
3. In an action by an employer against an employee to recover damages to property arising out of breach of contract, where the element of negligence is not involved, recovery can only be had where the contract is breached. The employee is not required to guard against mere errors of judgment, unless the contract expressly so provides.
4. Where a jury renders a verdict awarding to plaintiff the full amount claimed with interest, but without having calculated the interest and adding it to the principal, the defect is one of form, and under authority of Section 11457, General Code, may be corrected by the court with the assent of the jurors.
The facts are stated in the opinion.
Messrs Mansfield & Merryman, for plaintiff in error.
Mr. E Stanton Pearce and Mr. John H. White, for defendant in error.
This action was commenced in the court of common pleas of Jefferson county, Ohio, as a suit by Harry C. Kellermier to recover from Josiah J. Crawford for services, alleging an oral contract dated July 1,1925, by the terms of which Kellermier was to be paid at the rate of $65 per month for pumping and operating oil wells. He claimed for the period of thirty-nine months the total sum of $2,535, subject to credits in the sum of $850, leaving a balance claimed of $1,685. Another small additional claim was made, which is not material to our inquiry. The defendant answered, admitting the payment of $850, but denied all other allegations. In a cross-petition he alleged that the oil wells were in a run-down condition, and that under the terms of the contract of employment plaintiff was to receive $50 per month if he was unable to materially increase the production of the wells, while, if he did materially increase the production, he was to receive $65 per month. Defendant admits that the production was increased for a time, and that the payments made were at the rate of $65 per month, but that during the remainder of the period of service the production was not materially increased, and he asserts on the contrary, that plaintiff "handled said property so as to put the same in a run-down condition and materially decrease the production of oil therefrom, thereby greatly damaging said property and this defendant." A verdict was recovered in the sum of $1,999.10; but, on motion for new trial being filed, the court Ordered a remittitur in the sum of $99.10, which was accepted by the plaintiff, and judgment was entered for $1,900. Error was prosecuted to the Court of Appeals, and the judgment was affirmed. A motion to require the Court of Appeals to certify its record to this court was allowed.
Upon the issue as to whether plaintiff was entitled to receive compensation at the rate of $50 or $65 per month the case was properly submitted to the jury, and we find no error in the record, either upon the admission or rejection of evidence, or upon the court's instructions to the jury. Upon that issue the verdict properly responds to the issues made by the pleadings and the evidence offered. The principal matters urged for our consideration relate to the claim of damages set up by the cross-petition, and the reply thereto.
A large volume of testimony was taken and properly incorporated into a bill of exceptions, but only a small portion of the testimony has been printed for the use of this court, although no motion was ever made to waive the printing of any part thereof. Section 12254, General Code, and rule IV of this court, require the plaintiff in error to print "so much of the record to be reviewed as will show the error complained of." This statute is a part of the original Civil Code, and this rule is of long standing in this court.
Plaintiff in error may exercise his own judgment and discretion in printing those portions of the record which show the error complained of, though of course he owes a duty to print all portions of the record bearing upon such alleged error, and more especially where the alleged error relates to quantum of proof. In the instant case the question relates to the admissibility of evidence and whether there was any evidence to be considered by the jury upon the question of damages to the property. It is claimed by the defendant in error that there is other evidence in the record pertaining to the same subject-matter tending to show that no substantial damage was in fact suffered. It would of course have been proper for the...
To continue reading
Request your trial