Landon v. Lee Motors, Inc.

• Citation: 53 O.O. 25,118 N.E.2d 147,161 Ohio St. 82
• Decision Date: 03 March 1954
• Docket Number: No. 33478,33478
• Parties: , 53 O.O. 25 LANDON v. LEE MOTORS, Inc.
• Court: Ohio Supreme Court

Page 82

161 Ohio St. 82

118 N.E.2d 147, 53 O.O. 25

LANDON v. LEE MOTORS, Inc.

No. 33478.

Supreme Court of Ohio.

March 3, 1954.

Syllabus by the Court.

1. Where a party to a law action requests the court to direct the jury to render a special verdict in writing upon any or all issues which the case presents, the court is required to so direct the jury and the jury can not thereafter return a general verdict.

2. Such special verdict must contain ultimate facts from which, in conjunction with the pleadings, conclusions of law may be drawn and judgment entered, without reference to the evidence disclosed by the record. (Dowd-Feder Co. v. Schreyer, 124 Ohio St. 504, 179 N.E. 411, approved and followed.)

3. It is error for a court to enter judgment on a special verdict which is not clear, consistent and complete, and which omits a finding of ultimate facts on any issue, the determination of which is necessary to support such judgment.

4. It is the duty of the trial court to require conformance with the provisions of Section 11420-14, General Code, in the preparation of a special verdict, and to refuse to submit a form which contains conclusions of law or evidentiary matters as distinguished from ultimate facts.

5. Where a special verdict is to be rendered, it is error for the court in its general charge to give any instructions to the jury except such as are necessary to inform it as to the issues made by the pleadings, as to the rules in weighing and considering the evidence, as to the burden of proof in establishing facts, and as to the rules in determining the credibility of witnesses, and except such further instructions as are necessary to enable the jury to clearly understand its function and duty concerning the rendition of the special verdict.

6. In order to recover against a defendant in a tort action, plaintiff must produce evidence which furnishes a reasonable basis for sustaining his claim. If his evidence furnishes a basis for only a guess, among different possibilities, as to any essential issue in the case, he fails to sustain the burden as to such issue.

7. One who contracts to repair or service an automobile is liable for any damage proximately resulting from the negligent or unskillful manner in which he makes the repairs or performs the services, but such repairman is not liable for an alleged failure to discover a latent defect, unless the evidence shows that he undertook to discover such defect and negligently failed to do so.

Certified by the Court of Appeals for Lucas county.

This cause is in this court by reason of the fact that the judges of the Court of Appeals for Lucas county certified the record to this court for review and final determination, on the ground that its judgment is in conflict with the judgment of the Court of Appeals for Cuyahoga county in the case of Wills v. Anchor Cartage & Storage Co., 38 Ohio App. 358, 176 N.E. 680.

Although the conflict question relates to the proper form and content of a special verdict, the action of the Court of Appeals in certifying its record here brings the entire cause to this court for review.

Appellant, Ralph S. Landon, hereinafter designated plaintiff, instituted this action in the Court of Common Pleas of Lucas County, seeking damages for personal injuries caused by an automobile collision, against appellee, Lee Motors, Inc., hereinafter designated defendant. Defendant is an Ohio corporation engaged in the retail sale and servicing of Ford automobiles in northwestern Ohio.

The cause was tried to a jury upon the issues made by plaintiff's amended petition, defendant's answer thereto, and plaintiff's reply.

The amended petition alleges that on July 8, 1949, plaintiff and his wife purchased a new 1949 Ford automobile from defendant; that on April 7, 1949, about 7:45 p. m., as plaintiff was driving this car in a southerly direction on U.S. route 23, about three miles north of Marion, Ohio, the steering mechanism of the car suddenly ceased to function, the left front wheel collapsed, and the automobile veered to the left out of control and crashed into a fence and telephone pole on the easterly side of the highway; that the failure of the steering mechanism and the collapse of the left front wheel were caused by the breaking in two places of the left steel kingpin; that the kingpin, housing and other parts connected therewith in the steering assembly were defective, worn, and broken; that on or about September 1, 1948, and thereafter, on or about January 15, 1949, and at other times, plaintiff advised defendant that the steering assembly of the car seemed to be faulty in that the car had a tendency to drift to the right or left; that on occasion the car was left with defendant for repair of such fault and, upon payment by plaintiff for the work done, was redelivered to plaintiff, he being informed by defendant that the trouble had been remedied and that the steering assembly was faultless; and that, as a direct result of the failure of the steering mechanism, plaintiff sustained severe and permanent injuries, which injuries were proximately caused by the negligence of defendant, in that, after being advised of the fault in the steering assembly, it failed to repair the same and to discover, remove and replace the kingpin, and in that it failed to inspect the steering assembly at the times it repaired the car but, instead, advised plaintiff that the steering assembly was safe and free faults.

The petition contains a second cause of action arising out of plaintiff's loss of services occasioned by injuries to his wife and prays for damages in the sum of $110,000.

Defendant's answer admits the purchase of the Ford automobile and the collision; denies that the collision was caused by the failure of the steering mechanism, that the failure of the steering mechanism was caused by the breaking of the left steel kingpin, and that the kingpin, housing and other parts were defective, worn, and broken; admits that on one or two occasions plaintiff advised defendant that the automobile seemed to pull to the right; alleges that defendant checked this complaint of plaintiff and corrected the condition; denies that because of the failure of the steering mechanism plaintiff sustained his injuries, that such injuries were proximately caused by the negligence of defendant in failing to repair the steering assembly, and to discover, remove or replace the kingpin, that it failed to inspect the steering assembly, and that it advised plaintiff the steering assembly was safe and free from faults; admits that plaintiff and his wife sustained personal injuries; and alleges that the accident and the admages and injuries resulting therefrom were directly caused or proximately contributed to by the negligence of plaintiff in the operation of the automobile at the time and place of the accident, and that all the risks and damages incident to the operation by plaintiff of the automobile under the physical conditions and circumstances at the time and place of the accident were fully known and appreciated by plaintiff and were assumed by him.

Plaintiff's reply consists of a general denial of the allegations of defendant's answer.

The cause was tried to a jury and at the request of plaintiff and under instruction by the court the jury returned a special verdict. On the basis of such special verdict, the court entered judgment for plaintiff the amount of $20,000.

After defendant's motion for a new trial was overruled, it appealed on questions of law to the Court of Appeals, which court reversed the judgment of the Court of Common Pleas, remanding the cause for a new trial and certifying the cause to this court for a final review and determination, as hereinbefore stated.

Additional facts will be found in the opinion.

George R. Effler and John J. Barone, Toledo, for appellant.

Shumaker, Loop & Kendrick and Robert B. Gosline, Toledo, for appellee.

STEWART, Judge.

The Court of Appeals, in reversing the judgment of the Court of Common Pleas, found as prejudicial error the action of the trial court in submitting to the jury in advance of argument two special instructions requested by plaintiff, in failing to include in its general charge to the jury charges requested by defendant on the subject of the liability of defendant, and in submitting to the jury and entering judgment thereon the form of special verdict returned by the jury.

Plaintiff relies on each of these findings as grounds of reversal in this appeal, together with a general assignment that the Court of Appeals committed error in reversing the judgment.

Defendant has filed an assignment of errors herein, contending that the Court of Appeals committed error in failing to render judgment in its favor, and in failing to find that both the evidence in the record and the special verdict returned by the jury were legally insufficient to sustain judgment for plaintiff. These claims of error were raised in the trial court by defendant's motion for a directed verdict at the end of plaintiff's evidence, by the renewal thereof at the conclusion of all the evidence, and by defendant's motion for judgment notwithstanding the verdict. They were raised again in the Court of Appeals by defendant's first assignment of error, in which it complains of the action of the Court of Common Pleas in failing to render judgment in defendant's favor as a matter of law.

The evidence in this case is extensive and complicated.

Plaintiff offered testimony to the effect that delivery of the 1949 Ford automobile was on July 10, 1948, and that, when the purchase was made, plaintiff and his son observed some work being done on it on the second floor of defendant's place of business, the automobile having been repaired by painting certain portions thereof prior to delivery.

Plaintiff testified that on his first day of operation of the automobile 'it veered off to the left and to the right at different times.'

The...