Blossom Peanut Co. v. Maple Heights

CONCURRING OPINION

By HURD, PJ.

I concur in the judgment of affirmance. I also concur in the opinion, except that I am inclined to believe'that the failure to instruct the jury on “proximate cause” in that part of the general charge complained of was an error of “omission” rather than of “commission.” The learned trial judge defined *5■“proximate cause” in his general charge and twice charged on the proposition of proximate cause in relation to the alleged negligence of the plaintiff; once, by way of a special charge in writing before argument, and once again at the conclusion of the general charge, both times at the request of the defendant.

It is well settled in Ohio that an,omission to charge with reference to one or more issues is not ground for reversible error in the absence of a request for an instruction to supply the omission. See 39 O. Jur. parag. 297, Trial, pages 1006 et seq., and numerous cases cited thereunder.

But whether there was here an error of omission or of commission the absence of a complete record showing the evidence adduced in the trial of the cause, is, I believe, fatal to the claim of prejudicial error now urged by the appellant, because of the impossibility of testing the charge thereby.

In the cases of New York Life Ins. Co. v Hosbrook, 130 Oh St 101 and Simko v Miller, 133 Oh St 345, cited and quoted in the dissenting opinion, it is clear that the court in each instance had before it a record of the evidence by which the charges in question could be tested.

In this case, considering all of the circumstances and the instructions as a whole, I cannot conclude that there was prejudicial error requiring a reversal.