Opinion
Decided September 28, 1933.
Negligence — Operator and owner of automobile properly joined as defendants, when — Failure to provide form of verdict against either defendant prejudicial error — Defendant entitled to order permitting physical examination of injured party, when — Continued reference upon voir dire examination to insurance company, prejudicial error — Statement of juror indicating merits not decisive, ground for mistrial — Refusal to grant motion to withdraw juror, prejudicial error, when — Charge to jury erroneous — Judgment of individual juror upon false testimony — Prejudicial error to charge that statute violation negligence per se — Section 12603-1, General Code.
1. In an action for damages for personal injuries resulting from an automobile accident it is proper to join as defendants the operator and the owner of the automobile when the owner thereof was a passenger at the time of the accident.
2. When the liability of either or both of the defendants is a positive issue in such a case, the failure of the trial judge to instruct the jury with respect thereto and to provide a form of verdict against either defendant is prejudicial error.
3. The defendant in a personal injury action is entitled to an order permitting a physical examination of the injured party, especially where the trial judge refuses to require the petition to be made definite and certain as to plaintiff's alleged injuries.
4. Continued reference upon voir dire examination in a negligence action, to an insurance company, and questions on the trial eliciting irrelevant answers from witnesses concerning such insurance company, indirectly advise the jury that an insurance company has indemnified the defendant against loss, and is prejudicial error.
5. The statement of a juror during recess in a negligence action to the effect that an insurance company would have to pay, indicating that the case would not be decided on its merits, is ground for a motion to withdraw a juror and continue the case for trial; and there being no conflict of evidence as to such statement, refusal to grant the motion was prejudicial error.
6. It is erroneous to instruct a jury that all or part of the testimony of a witness may be rejected if "in the judgment of an individual juror" such witness has testified falsely.
7. It is prejudicial error to charge that a violation of Section 12603-1, General Code, would be negligence in and of itself.
ERROR: Court of Appeals for Erie county.
Messrs. Quigley Byrnes, for plaintiffs in error.
Mr. John F. McCrystal, for defendant in error.
In the Court of Common Pleas Cecile B. Soissons, as plaintiff, recovered a judgment against John A. Hoge and James Nezbeda in the sum of $2,500 for personal injuries claimed to have been sustained through their negligence.
The action arose out of a collision occurring on Lake Road in Erie county, between an automobile owned by Hoge and operated by Nezbeda and an automobile operated by Miss Soissons. Hoge, Nezbeda and Raymond Sherman, residing in Cleveland, had been in Detroit and were returning to Cleveland, taking turns at driving the automobile. Miss Soissons was proceeding westerly along the highway, and the Hoge car easterly. Ahead of Miss Soissons, proceeding in the same direction, was a Ford car which, without warning, turned abruptly across the road in front of the Hoge car, to enter a private driveway. Nezbeda thereupon swerved the Hoge automobile to his left, the front and rear wheels thereof leaving the pavement on the north side of the road, his purpose being to avoid a collision with the Ford car. He then turned the car back toward the south side of the pavement, and, in doing so, collided with the Soissons car, which, at the same time, and for the purpose of avoiding a collision with the Hoge car, was turned by Miss Soissons to her left toward the south side of the pavement. There was a collision, the front of the Hoge car striking the right rear fender of the Soissons car. Miss Soissons claims in her amended petition that as a result of that collision "she was thrown against and over the steering wheel injuring her abdomen, ribs and back, and her body was discolored; that she suffered much pain by reason of her said injuries and still suffers pain by reason thereof; that she was made sick and nervous; that her injuries were of such a nature that at times they caused her to fall to the ground and on one of these occasions she very severely injured her knee and blood poisoning set in causing her great pain, sickness and discomfort".
Various grounds of negligence are alleged in her amended petition, some of which are conclusions rather than allegations of fact and might well have been ordered to be made definite and certain as requested by the defendants Hoge and Nezbeda in a motion filed by them in the Court of Common Pleas; but, since this court must reverse the judgment on other grounds, the ruling on this motion ceases to be of any practical moment, because as a result of the trial the plaintiffs in error are now fully advised as to all of the contentions and claims made by the defendant in error.
The objection made to joining Hoge and Nezbeda, we think, is not well taken, for the reason that Hoge owned, was an occupant of, and had control of the manner of operating the car while it was being operated by Nezbeda, and it seems to us that both Nezbeda and Hoge may have been negligent, the one in the manner in which he drove the automobile, the other in permitting it to be so driven; or that Nezbeda may have been negligent and Hoge not negligent; or that neither of them was negligent, according to the way the jury may have found the facts to be under proper instructions of the trial judge; and since the liability of either or both of the defendants was a positive issue in the case the trial judge should not have omitted, as he did, instructing the jury with respect thereto. Aurend v. Schroeder, Admr., 32 Ohio App. 35, 165 N.E. 591.
The defendant in error charges each of the plaintiffs in error with negligence proximately causing her injuries. The plaintiffs in error charge that the negligence of the defendant in error was the proximate cause thereof, and the evidence is quite in conflict on the issues made by the pleadings — so much so, at least, that this court can not say that the finding of the jury in favor of the defendant in error is manifestly against the weight of the evidence.
The plaintiffs in error, by written motion, requested an order permitting a physical examination of the defendant in error, to ascertain the extent of her injuries. Ruling on this motion was delayed until after the trial commenced. At the trial it appeared that Miss Soissons was suffering from a "mouse knee", or floating cartilage in the knee, and in view of the fact that the trial judge refused to require the amended petition to be made definite and certain as to her alleged injuries, which request in our judgment should have been granted, it was eminently proper for plaintiffs in error to request and the court to make an order permitting an examination that would advise them of the physical condition of Miss Soissons, which latter motion having been filed long before the trial should have been promptly granted.
The record discloses that nearly, if not all of the prospective jurors on their voir dire were asked by counsel for defendant in error whether any of them were connected with The General Casualty Company of Detroit. The following are examples of the questions thus repeatedly asked:
"Q. Are you in any way connected with The General Casualty Company of Detroit?
"Q. Are you connected with or do you handle The General Casualty Company of Detroit?
"Q. Can you tell whether or not your company is indirectly connected with this casualty company?
"Q. Are you connected with the concern I just mentioned?"
On cross-examination, one of the physicians called in behalf of Miss Soissons testified that he "had received some kind of a telephone call about a case pending here from a Mr. Slick", and also testified that he had received a call from Mr. McCrystal asking him to examine Miss Soissons "and to come in and testify". On redirect examination he was asked whether Slick told him whom he represented. Over objections and exceptions he was permitted to answer that Slick "said he represented an insurance company". And in his argument to the jury, counsel for the defendant in error said:
"They brought this doctor in (apparently referring to a Cleveland physician who was called as a witness by plaintiffs in error). Before they brought him they telephoned Dr. Deeds, who swore that Slick, of the insurance company, called him up and asked him about this case, asked him question after question, how he would answer under certain conditions."
Passing the questionable propriety of the manner of the voir dire examination, which it seems to us by continual repetition was an indirect way of telling the jurors that the plaintiffs in error were protected by indemnity insurance, the questions permitted to be asked of Dr. Deeds eliciting the immaterial and irrelevant statement as to whom Slick represented, and what was said in argument as to "the insurance company", all taken together, clearly and intentionally advised the jury that The General Casualty Company of Detroit had idemnified the plaintiffs in error against loss for any compensation awarded Miss Soissons. In view of the fact that the amended petition did not advise plaintiffs in error of the nature of the knee injury, and in view of the refusal of the court to make the allegations as to the alleged injuries to Miss Soissons definite and certain, and in view of denial of the motion for a physical examination until after witnesses called in her behalf had testified with respect thereto, we are of opinion that the court committed prejudicial error in admitting the "mouse knee" testimony adduced in behalf of defendant in error over the objections and exceptions of the plaintiffs in error.
Plaintiffs in error submitted to the trial judge four separate written requests to be given to the jury before argument, all of which except No. 3 were properly refused, but refusal to give the latter constituted prejudicial error.
At a recess had during the trial, one of the jurors was overheard to say, in a conversation with two other persons:
"That don't make any difference, even if he was all that, it would not relieve the insurance company from paying for all the damages."
The juror was not called by defendant in error, nor by the court, to refute or explain this statement, and there was no denial of its truth by anybody. The court denied a motion of defendant in error to withdraw a juror and continue the case for trial, suggesting as a reason:
"The court happens to know every man on the jury and every woman on the jury, and the court really looks upon the suggestion as offered as a very serious attack upon the integrity of some very reputable and splendid people, and would hesitate very much, on the scanty evidence offered, and upon this doubtful evidence offered, to sustain the motion."
There being no conflict of evidence as to the narrated conduct of the juror, refusal to grant the motion was prejudicial error.
In his charge to the jury the court did not give the jury an opportunity to find that the defendant in error might, under the evidence and the law, be entitled to a verdict against one of the plaintiffs in error and not against the other, the court providing only two forms of verdict, one for a verdict against both of the defendants and the other a verdict in favor of both of the defendants. This was prejudicial error, since, as we have heretofore indicated, a verdict might have been returned in favor of both of the plaintiffs in error, or in favor of the defendant in error against one or both of the plaintiffs in error.
We also observe that the trial judge said in his charge:
"In reference to the credibility of the witnesses, the court will further say to you, that if any witness in the judgment of the jury, or in the judgment of an individual juror, has testified falsely, you may reject all or any part of the testimony of such witness, but it is not necessary to do so, you may accept that which you believe to be true and reject that which you believe to be false."
The jury, of course, acts as an entity, and the "judgment of an individual juror" can not determine or control what the verdict of the jury shall be. This instruction was clearly erroneous and prejudicial.
The trial judge, directing the attention of the jury to Section 12603-1, General Code, said:
"Now, if by a preponderance of the evidence in this case you find that the defendants were in the act of violating that statute at the time and place in question, then that would be negligence in and of itself on the part of the defendants."
In so charging the jury the court committed prejudicial error.
At the conclusion of the general charge the court refused a request of defendants "to charge the jury as to the duty of the defendants in the event that the jury find that the Ford automobile going west turned suddenly in a southerly direction in the pathway of the defendants' car". This was one of the questions involved in the trial, and the trial judge not having charged concretely on this subject in his general charge should have complied with this request.
We are unable to approve the closing argument of counsel for defendant in error, nothing appearing in the argument of counsel for plaintiffs in error justifying it. The closing argument was an appeal to passion and prejudice; not an appeal on the facts in evidence. In this connection we call attention to what was said on this subject at page 246 of the opinion of this court in Thatcher v. Pennsylvania, Ohio Detroit Rd. Co., 33 Ohio App. 242, 168 N.E. 859, and in Machaterre, a Minor, v. Dusha, 30 Ohio App. 242, 164 N.E. 783.
It is apparent that the judgment of the Court of Common Pleas must be reversed and the cause remanded for a new trial, which is accordingly done.
Judgment reversed and cause remanded.
RICHARDS and WILLIAMS, JJ., concur.