concurring.
Prior to 1955 our statutes provided that, on request, the jury should “find upon particular questions of fact” and specified that “when a special finding of facts is inconsistent with the general verdict” it should control that verdict.
Prior to the decision of Davison v. Flowers (1930), 123 Ohio St. 89, this court had held that “the particular questions of facts ‘contemplated by the statute are those, the answers to which will establish ultimate and determinative facts, and not such as are only of a probative character’ ” (123 Ohio St. 89, 95. See also Bradley, an Infant, v. Mansfield Rapid Transit, Inc. [1950], 154 Ohio St. 154, 161, 162). Hence, the foregoing statutes had been of no use in the trial of negligence actions.
In paragraph four of the syllabus of Davison v. Flowers, supra, it is stated: “Two requests for finding upon particular questions of fact were made by the defendant. (1) Was the defendant negligent?—which the jury answered ‘yes’—(2) ‘If your answer to defendant’s request No. 1 is yes, state of what that negligence consisted.’ In view of the fact that more than one specific act of negligence was pleaded and relied on, the court committed error in refusing to submit said second request. Such request and the answer thereto relate to a finding upon a particular question of fact which is of an ultimate and determinative and not of a probative character.”
*204To the same effect see paragraph two of syllabus in Bradley v. Mansfield Rapid Transit, Inc., supra.
These holdings apparently recognize the fact, of which we can take judicial notice, that in almost every petition in an action for negligence, the plaintiff alleges that the defendant was negligent in certain specific respects and that that negligence proximately caused the damages to the plaintiff. This is and has been done notwithstanding what is now Section 2309.04, Revised Code, which states that “* * * the petition * * * must contain * * * a statement of facts constituting a cause of action.” (Emphasis added.)
The 1955 amendment to Section 2315.16, Revised Code, provided for findings “upon particular material allegations contained in the pleadings controverted by an adverse party.” In my opinion, this was intended to codify and approve the law as previously declared by our court.
Certainly, where the adverse party raises no question as to the form of allegations in a pleading (by motion) and denies such allegations, he should be in no position to object to the submission of special interrogatories based upon such allegations on the ground that such allegations are not “material allegations contained in the pleadings” within the meaning of Section 2315.16, Revised Code. Likewise, a party, who makes allegations in a pleading, should not be in a position, when the opposing party seeks to have special interrogatories submitted with respect to such allegations, to contend that they are not “material allegations contained in the pleadings.”