Summary
In Haines v. Cleveland Ry. Co., 141 Ohio St. 523, it was held that it was "* * * not reversible error for the trial court to submit to the jury a form of verdict for the defendants, even though the defendants concede negligence as to the collision and admit an injury to plaintiff's elbow of a minor and inconsequential nature."
Summary of this case from Appleton v. MatthewsOpinion
No. 29277
Decided June 2, 1943.
Negligence — Passenger injured in collision of streetcar with tractor-trailer truck — Plaintiff required to elect between two claims, one unsupported by proof — Heart ailment a pre-existing condition aggravated by injury — Defendants conceded negligence — Jury furnished form of verdict for defendants.
1. In an action by a streetcar passenger to recover damages for personal injuries due to a collision between a streetcar and a truck, in which the principal injury asserted by the plaintiff is a heart ailment "which was either the result of said accident or that said accident and injury aggravated and inflamed some pre-existing condition of which she had never before had knowledge," it is not prejudicial error on the part of the trial court to require the plaintiff to elect between the two claims at the close of all the evidence when no proof has been introduced supporting one of them.
2. In such an action it is not reversible error for the trial court to submit to the jury a form of verdict for the defendants, even though the defendants concede negligence as to the collision and admit an injury to plaintiff's elbow of a minor and inconsequential nature.
APPEAL from the Court of Appeals of Cuyahoga county.
The present action is in this court pursuant to the allowance of a motion to require the Court of Appeals to certify its record.
On the morning of October 3, 1937, plaintiff, the appellant herein, was riding in a streetcar of the Cleveland Railway Company, which came into collision with a loaded tractor-trailer truck of the Monark Motor Freight System, Inc., at the intersection of Detroit avenue and West 38th street, in the city of Cleveland.
Plaintiff filed her petition against the railway company and the trucking company, in the Court of Common Pleas of Cuyahoga county, claiming to have sustained direct and consequential personal injuries in the collision as a result of the combined and concurrent negligence of both defendants. She asked substantial damages.
In her petition plaintiff averred "that prior to said injuries and collision she was in excellent health." She then complained principally of a heart ailment which "was either the result of said accident or that said accident and injury aggravated and inflamed some pre-existing latent heart condition of which she had never before had knowledge."
The defendants filed separate answers, admitting their corporate existence and the nature of their respective businesses, but denying each and every other allegation contained in the petition.
In due time the cause came on for trial before the court and a jury. After the opening statement on behalf of the plaintiff, counsel for the railway company moved that plaintiff be required to elect between the claim of an impaired heart as a direct result of injuries suffered in the collision and the claim that a pre-existing latent heart condition was "aggravated and inflamed" by reason of such injuries. Counsel for the other defendant joined in the motion, which was overruled immediately prior to the taking of testimony.
In their opening statements, counsel for the defendants admitted plaintiff's status as a passenger on the streetcar and conceded negligence insofar as the happening of the collison was concerned, but denied any connection between this incident and the fibrillation of plaintiff's heart, causing a blood clot with ensuing complications.
Mr. Marshman, counsel for the railway company, stated: "* * * We do conclusively contest the claim made against the defendants in this case that the amputation of this lady's leg had anything to do, ladies and gentlemen of the jury, with the fact that she got a bump on the back of her right elbow on that streetcar, that was treated by a mercurochrome dressing."
At the close of the opening statements, the court addressed counsel for the Monark Motor Freight System, Inc., as follows:
"Your adoption of Mr. Marshman's statement, Mr. Schutz, is intended then on your part to include conceding that there was negligence of the driver of the truck which concurrently contributed as the proximate cause of the collision? * * * The thing that you take issue upon is the effect of it upon the plaintiff?" To which the defendants' counsel — both of them — replied, "That is right."
When all the evidence was in, the defendants again moved that the plaintiff be required to elect as to whether she would rely on the claim of a direct heart injury or the aggravation of a pre-existing latent and unknown heart condition. This motion was granted and plaintiff thereupon elected to stand on the claim of a direct heart injury by reason of the collision, reserving exceptions to the court's ruling.
After some discussion and deliberation, the trial court, over plaintiff's objection and exception, submitted two forms of verdict to the jury — one for the plaintiff and the other for the defendants. The jury returned a verdict for the defendants, upon which judgment was entered. On appeal, such judgment was affirmed by a divided vote of the Court of Appeals.
Messrs. Burt, Carson Shadrach, for appellant.
Messrs. Squire, Sanders Dempsey, Messrs. Miller, Davis Folk, Mr. Donald M. Marshman and Mr. Otto W. Schutz, for appellees.
Seeking a reversal of the judgment below, plaintiff relies upon two errors which she asserts are prejudicial.
(1) Error on the part of the trial court in requiring plaintiff to elect whether to proceed on a claim of direct injury to the heart or of aggravation of a preexisting heart condition.
(2) Error in submitting to the jury a form of verdict for the defendants and receiving a verdict for the defendants.
With regard to the first error assigned, the typewritten bill of exceptions discloses that plaintiff and other of her witnesses testified that her general health was good prior to the collision. There was no evidence introduced from which it could be found that any previous heart ailment with which plaintiff may have been afflicted was aroused or aggravated by her experience in the collision of October 3, 1937. There was some medical evidence, however, from which an inference could be drawn that injury received by plaintiff in the collision was responsible for an impaired heart, causing complications which necessitated the later amputation of one of her legs.
The evidence on the trial then failing to support the claim that a latent heart condition was aggravated, we think the court was warranted in sustaining the defendants' motion to require the plaintiff to choose which of the two claims she would rely upon. Pursuing a different course, the defendants might have moved the court, at the close of the evidence, to withdraw the alternative claim from the consideration of the jury, but we deem the motion as made within the rights of the defendants. As a matter of fact, the sustaining of either of the motions described would accomplish the same result.
As to the second error advanced, the court might properly have submitted to the jury but one form of verdict, and that for the plaintiff. In their opening statements, counsel for the defendants conceded negligence as to the collision, and an impartial reading of these statements, together with some of the questions asked during the trial, lead to the conclusion that defendants admitted plaintiff received an abrasion on her right elbow, due to the collision. Consequently, the submission of a verdict form for the plaintiff alone would have been technically correct.
However, this abrasion was slight, its treatment cost plaintiff nothing, it was given little attention in the presentation of the case, plaintiff was not incapacitated from performing her work on account of it, and she suffered no financial loss of any kind in connection with it.
Under these circumstances, the submission of the two forms of verdict — one for the plaintiff and the other for the defendants — was not an error of such magnitude or prejudice, in our opinion, as to call for reversal.
The verdict form for the plaintiff was before the jury, and if it had found that plaintiff sustained any real injuries by reason of the collision, it had full opportunity of awarding her damages. Plaintiff does not assert any errors as to the admission or exclusion of evidence, or as to the charge of the court.
Finding no prejudicial error therefore in the judgment of the Court of Appeals, such judgment is affirmed.
Judgment affirmed.
MATTHIAS, WILLIAMS and TURNER, JJ., concur.
WEYGANDT, C.J., HART and BELL, JJ., dissent.
I cannot give assent to the conclusion reached by the majority in this case.
The record discloses that the defendants admitted liability for the collision and further admitted that the plaintiff was injured. The real controversy in the case centered around the question of the seriousness of the plaintiff's injury. Under these circumstances, in my judgment, the only question for determination by the jury was the amount of damage to which the plaintiff was entitled; submitting a form of verdict in favor of defendants and entering judgment upon such verdict in favor of defendants constituted error prejudicial to the rights of the plaintiff.
The judgment of both the Court of Appeals and the Court of Common Pleas should be reversed and the cause remanded to the Court of Common Pleas for a new trial.
WEYGANDT, C.J., and HART, J., concur in the foregoing dissenting opinion.