Opinion
No. 39524
Decided April 5, 1967.
Negligence — Motor vehicles — Parties defendant — Motion to elect — Requested special charge on damages — Verdict for defendant.
APPEAL from the Court of Appeals for Franklin County.
This is an action to recover for personal injuries claimed to have been received by plaintiff as a proximate result of the alleged negligence of "The Galena Shale, Tile and Brick Company, James McKenzie and William Alexander Dove" in "operating the * * * tractor and loaded semi-trailer."
The petition does not disclose who was the driver of the truck but it is admitted that Dove was the driver, and that the other two defendants were sued on the theory that one of them was Dove's employer.
After the opening statement of plaintiff, the court ordered plaintiff to elect as to whether he desired to proceed against the Galena Company and McKenzie in the alternative, or to proceed against Dove. Thereupon, plaintiff elected to proceed against Dove, and the Galena Company and McKenzie were dismissed as parties defendant.
Section 2307.191, Revised Code, permitting joinder of the employee and employer did not become effective until after the judgment in the trial court.
The jury returned a verdict for defendant Dove.
The judgment on that verdict was reversed by the Court of Appeals.
The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of a motion to certify the record.
Messrs. Solsberry, Ahern Butler and Mr. Alphonse P. Cincione, for appellee.
Messrs. Wiles, Doucher, Tressler, Martin Ford, for appellants.
Admittedly, the only grounds given by the Court of Appeals for its reversal were:
1. Error in failure to give two requested special instructions.
2. Error in sustaining defendant's motion to elect at the end of plaintiff's opening statement.
Admittedly, the two requested special instructions relate only to the issue of plaintiff's damages. There is no claim of error in submission of the issue of defendant Dove's claimed negligence to the jury. There is nothing to indicate that the jury did not base its verdict for Dove on a finding that defendant was not negligent. Hence, any error in refusing to give the two special instructions could not have prejudiced plaintiff. If, as its verdict indicates, the jury found defendant not negligent, it would not even have reached the issue of damages.
Furthermore, the jury verdict for the driver negatives the possibility of any prejudice to plaintiff in being required to elect whether to sue the driver or to sue his employer. If, as the jury found, the driver was not negligent, there could be no verdict against his employer.
The judgment of the Court of Appeals is reversed and that of the Common Pleas Court affirmed.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, WHITE and BROWN, JJ., concur.
WHITE, J., of the Eighth Appellate District, sitting for SCHNEIDER, J.