Summary
In Carrothers v. Hunter, 23 Ohio St.2d 99, 262 N.E.2d 867 (1970), the Ohio Supreme Court indicated that when a trial judge gives an erroneous statement of law in the jury charge (as opposed to omitting a necessary item), then the trial judge's error of commission may be reviewed by the Ohio Court of Appeals without the complaining party's having objected to the charge as given. Accord, State v. Lynn, 5 Ohio St.2d 106, 214 N.E.2d 226 (1966).
Summary of this case from Fornash v. MarshallOpinion
No. 69-677
Decided September 23, 1970.
Charge to jury — Court not "induced" to give certain charge, when — Error of commission in charge — Failure to object thereto not waiver of error — Such error proper ground for appeal — Negligence — Motor vehicles.
1. The word induce is commonly understood to mean to lead on, prevail upon or to move a party by persuasion or influence, and generally connotes the use of persuasion or influence by a party upon another to effect a result.
2. Where there are errors of commission in the charge of a court to the jury, not induced by the complaining party, a failure to object thereto does not constitute a waiver of the error, and such error may be proper grounds for an appeal. ( Simko v. Miller, 133 Ohio St. 345, paragraph three of the syllabus; Rosenberry v. Chumney, 171 Ohio St. 48; and State v. Lynn, 5 Ohio St.2d 106, paragraph four of the syllabus; followed.)
APPEAL from the Court of Appeals for Portage County.
This action arose as the result of a collision between an automobile in which the appellee was a passenger and a panel truck being operated by appellant on Pioneer Trail Road, near the village of Aurora, Ohio. Appellee filed a petition in the Court of Common Pleas of Portage County, alleging the negligence of the appellant in the operation of the panel truck and praying for damages for bodily injuries sustained in the collision. The dispute at the trial of the cause centered around the question of whether appellant was operating his truck to the left of center of the roadway. The parties agree that the two vehicles collided at or near the crest of a grade in the roadway and that the road, in the area of the accident, was covered with ice and snow at the time of the collision.
The jury, after starting deliberations, asked the following question of the trial court:
"Is a driver considered negligent if his car slides due to icy condition of road?"
In response to the question from the jury, and after conferring with both counsel, the trial court gave the following charge to the jury:
"As I told you earlier in the general charge, you occupy one exclusive field and I the other, your exclusive field is the facts and whether or not the defendant [appellant herein] under the condition deposed in this question was negligent is for you to decide, not me, but I can give you the law to apply to the facts as you find them to aid you in determining that question, but I must not invade your province by saying he was negligent or he wasn't, that is out of my field. As I told you earlier the law separates our functions, yours is the fact and mine is the law, so:
"I say to you that if you find from a preponderance of the evidence that the defendant violated the statute I gave you about at the crest of the hill, getting on the wrong side and driving to left of center, if you find from a preponderance of the evidence that the defendant violated this statute you are instructed that the defendant was guilty of negligence as a matter of law, unless you find that the defendant was driving to the right of the center of the roadway, and that his vehicle without his fault suddenly skidded across the road and collided with the plaintiff's vehicle. If it was impossible for the defendant traveling on the right side to keep his vehicle from going to the left side there would be no violation of the center line statute.
"In this connection, however, you should consider the speed at which the defendant was operating his vehicle, the condition of the surface of the road, and all the circumstances surrounding the collision to ascertain whether compliance with the statute was for him rendered impossible."
The jury returned a unanimous verdict for the appellant, and the trial court entered judgment upon the verdict. Thereafter, appellee's motion for a new trial was overruled. The Court of Appeals reversed the judgment of the trial court, and the cause is now before this court pursuant to the allowance of a motion to certify the record.
Mr. Harry L. Griffith, for appellee.
Mr. Seabury H. Ford, for appellant.
The record in this case clearly shows that the giving of the charge by the trial judge, in response to the question asked by the jury, was based upon the judge's and counsels' belief that the law contained in the charge was correct. Kohn v. B.F. Goodrich Co. (1941), 139 Ohio St. 141, 38 N.E.2d 592. It is undisputed that counsel for the appellee had no knowledge of the error and that he relied upon the stated conclusion of the trial judge that the Kohn case was the applicable law. Under these circumstances, appellee's counsel informed the judge:
"I have no objection to the charge being given."
Both parties now know and agree that the instruction to the jury was erroneous. The Kohn case was overruled by this court in Oechsle v. Hart (1967), 12 Ohio St.2d 29, 231 N.E.2d 306. Thus, the narrow question presented here is whether appellee, under the facts presented, induced the court to give the charge, and, therefore, lost her right to have the charge reviewed on appeal.
R.C. 2321.03 provides:
"An exception is not necessary, at any stage or step of the case or matter, to lay a foundation for review whenever a matter has been called to the attention of the court by objection, motion, or otherwise and the court has ruled thereon. Error can be predicated upon erroneous statements contained in the charge, not induced by the complaining party, without exception being taken to the charge."
In reversing the decision of the trial court, the Court of Appeals found the charge to the jury to be erroneous and found further that the record does not reveal any inducement of the court by the appellee.
It is generally stated that errors which arise during the course of the trial of a cause, which are not brought to the attention of the court by objection or otherwise, are waived and may not be raised on appeal. See, for example, Rosenberry v. Chumney (1960), 171 Ohio St. 48, 50, 168 N.E.2d 285. One of the exceptions to this general rule concerns errors which occur in the charge to a jury. Where the trial court gives an instruction which is incomplete, but correct as far as it goes, such error in the charge is an error of omission and it is complaining counsel's duty to request the trial court to charge further in order to eliminate any possible confusion of the jury which may result from such deficiency. Unless counsel has requested the court to supply the omission, the error is not reviewable on appeal. Rhoades v. Cleveland (1952), 157 Ohio St. 107, 105 N.E.2d 2; State v. Tudor (1950), 154 Ohio St. 249, 95 N.E.2d 385. However, where the trial court gives an erroneous statement of law in a charge, not induced by the complaining party, such an error is an error of commission and it may be reviewed on appeal without that party's having objected to the charge. R.C. 2321.03; Rosenberry v. Chumney, supra; Simko v. Miller (1938), 133 Ohio St. 345, 13 N.E.2d 914; State v. Lynn (1966), 5 Ohio St.2d 106, 214 N.E.2d 226.
It is appellant's contention that when the appellee stated to the trial court that she had no objection to the proposed charge, such action constituted an inducement under R.C. 2321.03, and that the error cannot be reviewed on appeal.
The word induce is commonly understood to mean to lead on, prevail upon or to move a party by persuasion or influence. Oxford English Dictionary (1961 Edition); Webster's Third New International Dictionary. The word induce connotes the use of persuasion or influence by a party on another to effect a result.
In the case at bar, nothing in the record indicates that the appellee's counsel in any manner persuaded or influenced the trial judge to give the erroneous charge to the jury. Under the instant circumstances, appellee's innocent acquiescence in the trial judge's erroneous conclusion that the applicable law was stated in the Kohn case does not establish that the charge was in any manner induced by the appellee.
Appellant also argues that the Court of Appeals abused its discretion in hearing this assignment of error because the appellee failed to raise the propriety of the charge either in her motion for new trial or in the original and reply briefs filed in the Court of Appeals. While the record discloses that the assignment of error was first raised in oral argument before the Court of Appeals, the court deferred its decision until the appellant had an opportunity to file a supplemental memorandum in answer to the assigned error. Appellant's memorandum was filed on May 23, 1969, and appellee filed a reply on May 28, 1969. Appellant had ample opportunity to present his position to the Court of Appeals and under the facts of this case we do not feel that the court abused its discretion in considering the assignment of error.
For the reasons stated, the judgment of the Court of Appeals is affirmed and the cause is remanded to the Court of Common Pleas for further proceedings.
This case was decided under the statute and arose before the Rules of Civil Procedure were in effect.
O'NEILL, C.J., LEACH and DUNCAN, JJ., concur.
SCHNEIDER and CORRIGAN, JJ., dissent.
LEACH, J., of the Tenth Appellate District, sitting for MATTHIAS, J.