Summary
In Rothfuss v. Hamilton Masonic Temple Co. (1971), 27 Ohio St.2d 131, this court dealt with the failure of a Court of Appeals to pass upon all assignments of error as required by R.C. 2505.21.
Summary of this case from Lumbermen's Alliance v. American Excelsior Corp.Opinion
Nos. 70-478 and 70-479
Decided July 7, 1971.
Appeal — Court of Appeals — R.C. 2505.21 — Obligation of Court of Appeals to pass on assignments of error — Appeal to Supreme Court — Remand for consideration of errors.
APPEALS from the Court of Appeals for Butler County.
The following facts are taken, in pertinent part, from the opinion of the Court of Appeals:
"This is an appeal upon questions of law from the orders of the Court of Common Pleas of Butler County overruling motions for a new trial and for judgment non obstante veredicto in a negligence action.
"Corilda Rothfuss [Supreme Court case No. 70-478] filed suit against the Hamilton Masonic Temple Company of Hamilton to recover damages for personal injuries she claimed to have suffered when she fell into a window well. The defendant owns and maintains the parking lot at the rear of the Masonic Temple; the well extends some three feet three inches into the lot from the building, is eight feet long and has a two and one-half inch curbing around its edges. On May 5, 1959, Mrs. Rothfuss accompanied her sister to a function at the Temple. It was yet daylight when they arrived and parked in the lot. Mrs. Rothfuss left the car from the passenger side, walked to the rear of the car and entered the building. At proximately 10:00 p.m., she left the Temple with her sister to return to the car. Darkness having fallen, the parking lot was then illuminated by two flood lights located on the corners of the building and a city light on the back of the lot. Mrs. Rothfuss walked in front of her sister's car, stepped into the unrailed, uncovered window well, fell three feet to its bottom receiving as a result physical injuries for which she recovered a verdict of $18,000.
"The trial court had overruled timely motions for a directed verdict, submitting the issues, including contributory negligence and assumption of the risk, to the jury after charging that the defendant had maintained a qualified nuisance and by virtue thereof was negligent.
"The fundamental question is whether the plaintiff by her conduct is chargeable with negligence which was a direct contributing cause of her misfortune.
"* * *
"Because of our conclusion that the controlling issue is as stated before, we will assume without deciding that the trial judge was correct in his instruction that the defendant was guilty of negligence." (Emphasis added.)
Plaintiff, William Rothfuss (Supreme Court case No. 70-479), brought his action against the defendant for loss of consortuim and special damages. In each case, the jury returned a verdict for the plaintiff and judgment was entered upon the verdict. The Court of Appeals reversed the judgments of the Court of Common Pleas and entered final judgments for the defendant. The journal entries of the Court of Appeals read, in pertinent part:
"Upon consideration whereof, this court finds that in the record and proceedings aforesaid, there is error manifest upon the face of the record to the prejudice of the appellant, in this, to wit: The trial court erred in overruling the motion of the appellant for a directed verdict in its favor on the issue of the contributory negligence of Corilda Rothfuss."
The Court of Appeals did not pass on all assignments of error presented to it, passing only on the question of plaintiff's contributory negligence as a matter of law.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Mr. Irving I. Saul, Messrs. Lord Lordeon and Mr. T. Patrick Lordeon, for appellant.
Messrs. Baden, Jones Scheper, and Mr. Thomas W. Baden, for appellee.
In the Court of Appeals, the defendant enumerated the following assignments of error:
"The court erred in admitting evidence of the plaintiff over the objection of the defendant.
"The court erred in its general charge to the jury.
"The verdict appears to be excessive and rendered under the influence of passion and prejudice.
"The verdict is excessive and is manifestly against the weight of the evidence and is not sustained by sufficient evidence.
"Other errors occurring during the trial prejudicial to the rights of the defendant."
R.C. 2505.21 provides:
"* * * All errors assigned and briefed shall be passed upon [by] the court."
It is important that the Court of Appeals should have decided all assignments of claimed prejudicial error argued by brief, particularly in the area of plaintiff's claim of defendant's negligence as a matter of law, as well as defendant's claim that plaintiff was contributorily negligent as a matter of law. Upon appeal, appellants had contended that such issues were jury questions.
Failure by the Court of Appeals to state its reasons for not passing upon all the assignments of error presented to it precludes this court from determining whether there was any merit to the claims of prejudicial error presented to the Court of Appeals by the assignments of error as a predicate to the appeal presented here.
There is no question that the Court of Appeals failed to perform its statutory obligation (R.C. 2505.21). Therefore, this court reverses the judgments of the Court of Appeals and remands the causes to that court for consideration of the assignments of error not passed upon.
Judgment accordingly.
O'NEILL, C.J., DUNCAN, CORRIGAN and STERN, JJ., concur.
SCHNEIDER and LEACH, JJ., concur in part.
HERBERT, J., dissents.
If the Court of Appeals was correct in entering final judgment for the defendant on the basis of contributory negligence as a matter of law on the part of Mrs. Rothfuss, no useful purpose would be served by remanding the case to that court to pass on the other errors assigned in brief by defendant in that court — even though that court, in accordance with the requirements of R.C. 2505.21, should have passed upon all assignments of error.
In my opinion, however, the ruling of the Court of Appeals was not correct. While I concur in the order of remand, I do so only upon the basis that the Court of Appeals erred; a matter as to which the majority apparently expresses no opinion.
Regardless of what action the Court of Appeals now takes on the other assignments of error and regardless of whether its action in such respect would warrant a later allowance by us of a motion to certify the record, as to those issues yet not passed upon, we necessarily invite another appeal to this court on the issue of whether Mrs. Rothfuss was contributorily negligent as a matter of law.
In my opinion, our action in ignoring this question, which can and should be passed upon now, serves only to compound the error of the Court of Appeals in not complying with R.C. 2505.21 by failing to pass on all assignments of error, and thus to invite multiple appeals.
The very purpose of R.C. 2505.21 is to prevent multiple appeals. The purpose of requiring the Court of Appeals to pass upon all errors was to avoid a remand and another appeal in those cases where this court disagreed with and overruled the specific ruling of the Court of Appeals. But unless we do so disagree, I consider it an act of futility merely to remand and then to affirm in a later appeal to this court on the basis of the same question now presented.
App. R. 12(A), effective July 1, 1971, seeks to accomplish the same purpose, providing that "* * * All errors assigned and briefed shall be passed upon by the court in a written opinion which shall contain the reasons for the court's decision. * * *"
SCHNEIDER, J., concurs in the foregoing opinion.
In view of the record from below and what I believe to be the proper law applicable thereto, I would reverse this cause and enter final judgment for the appellant.