Decided December 7, 1932.
Charge to jury — Written instructions, before argument, mandatory, when — Section 11447, General Code — Erroneous refusal not cured by giving same instruction in general charge.
1. Section 11447, General Code, confers upon parties to civil actions the absolute right to have instructions, when presented in writing, given to the jury before argument if so requested, provided the same be a correct statement of the law, pertinent to one or more issues and applicable to evidence adduced in the case.
2. Error in refusing to give such requested charge before argument is not cured by giving the same instruction in substance or in terms in the general charge.
ERROR to the Court of Appeals of Hamilton county.
This action originated in the court of common pleas of Hamilton county, it having been brought by Margaret Herbert, the beneficiary named in an accident insurance policy, and being based upon the claimed accidental death of the assured.
The policy contained a provision for the payment of the amount stipulated in the event "of death of the insured, resulting directly and independently of all other causes through external, violent and accidental means." The policy contained a further provision exempting the company from liability for accidental death occurring at a time when the insured was under the influence of an intoxicant or while violating any law.
The answer of the defendant company, after denying the claim of the plaintiff, in a separate defense asserted that at the time of the accident, which is claimed resulted in the death of the assured, he was under the influence of intoxicating liquor and was operating his automobile at a rate of speed in violation of the law and in disregard of a stop signal placed at the intersection of the streets where the automobile collision in question occurred, and that the collision with another automobile resulted from such excessive and unlawful speed and failure to observe the stop signal duly installed in accordance with the law and the ordinances of the city of Hamilton, where the collision occurred.
On the trial of the case, competent evidence was introduced supporting the claim of the plaintiff, and competent evidence was also introduced supporting the defense set up by the defendant company. The case was submitted to the jury after a motion for a directed verdict had been overruled.
The following special charge, requested by the defendant to be given before argument, was refused: "Ladies and gentlemen of the jury, I charge you that if you find the intersection of Seventh and Walnut streets in the city of Hamilton, Ohio, was on March 27, 1930, a closely built-up or business portion of said city of Hamilton, Ohio, then I charge you that any rate of speed in excess of twenty miles per hour at that point was prima facie unlawful."
A verdict was returned in favor of the plaintiff, and judgment accordingly rendered, which was affirmed by the Court of Appeals. Upon motion the record was certified to this court for review.
Messrs. Hightower O'Brien, for plaintiff in error.
Mr. Nicholas Klein, for defendant in error.
The charge requested in writing to be given before argument is conceded to be a correct statement of the law, pertinent to an issue in the case and the facts embodied therein supported by competent evidence.
The provisions of the statute, Section 11447, General Code, that a requested instruction meeting the above requirements shall be given to the jury prior to argument, are mandatory. This principle has been announced in numerous cases, in which it has been further declared that the error of refusing to give such requested charge before argument is not cured by giving the same instruction in substance, or in terms, in the general charge. The statute confers upon parties in civil actions the absolute right to have instructions, presented in writing, given to the jury before argument, if so requested, provided the same be a correct statement of the law, pertinent to one or more issues, and applicable to evidence adduced in the case. A failure to comply with such mandatory provisions, and thus deny the right clearly and expressly granted, is reversible error. Village of Monroeville v. Root, 54 Ohio St. 523, 44 N.E. 237; Cleveland Elyria Elec. Rd. Co. v. Hawkins, 64 Ohio St. 391, 60 N.E. 558; Chesrown v. Bevier, 101 Ohio St. 282, 128 N.E. 94; Cincinnati Traction Co. v. Kroger, 114 Ohio St. 303, 151 N.E. 127; Lima Used Car Exchange Co. v. Hemperly, 120 Ohio St. 400, 166 N.E. 364; Bartson v. Craig, 121 Ohio St. 371, 169 N.E. 291.
This statutory provision has long been in force and has been consistently held to be of a mandatory character. If the procedure thereby required is to be changed, it must come through a modification of the terms of the statute by the legislative branch of the government.
The Court of Common Pleas committed error in refusing to give the requested instruction, and the Court of Appeals committed like error in its failure to reverse the judgment on the ground stated.
There was evidence upon the question of the violation of speed regulations by the decedent, warranting the submission of that issue to the jury. Hence the motion for final judgment for the defendant was properly denied.
MARSHALL, C.J., JONES, DAY, ALLEN, KINKADE and STEPHENSON, JJ., concur.