Barnes v. Prince
Decision Date | 29 November 1974 |
Parties | , 70 O.O.2d 454 BARNES, Appellant, v. PRINCE, Appellee. |
Court | Ohio Court of Appeals |
A. Daniel Whittington, Cleveland, for appellant.
James T. Millican, II, Cleveland, for appellee.
At the close of the automobile accident negligence trial below, wherein the defendant had pleaded the defense of contributory negligence, the jury handed back a verdict form finding 'for the Plaintiff in the sum of $ None.' At that point the judge called the attorneys to the side bar for a discussion and then addressed the jury as follows:
'The Court: You have returned somewhat of an unusual verdict, and I am going to ask Mr. Smith (Jury Foreman) some questions.
'The verdict forms that were returned it appears to be in favor of the plaintiff signed by all eight, but which carries no award damages at all.
'Mr. Smith: He contributed, yes, both, both contributed.
'The Court: Was it the verdict or the decision of the jury that both the plaintiff and the defendant were at fault?
'Mr. Smith: Yes.
'The Court: And let me ask if that is understood to be the verdict by those-let me poll them.'
The court then polled the remaining jurors, all of whom answered in the affirmative, that their verdict was that they had found plaintiff contributorily negligent and on that basis had found for plaintiff but awarded zero dollars. The court then on its own initiative requested that the jurors sign the verdict form finding for the defendant as that was in fact their verdict. The court then discharged the jury. All of this occurred without objection from counsel.
Plaintiff has appealed assigning as error that: 'The trial court erred in allowing the jury to impeach their verdict.'
Civil Rule 48 provides in pertinent part that:
'* * * If the verdict is defective in form only, with the assent of the jurors and before their discharge, the court may correct it.'
The distinction between defects in form and substance of verdicts was discussed in Lehrer v. Cleveland Ry. Co., (C.P., 1918), 28 Ohio Dec. 243, 20 N.P. (N.S.) 481, 493:
A formal defect in a verdict does not affect the merits or rights of the parties and such verdict may be amended by the court to conform it to the issues and give effect to what the jury unmistakably found. It is the duty of the trial judge to look after the form and substance of a verdict so as to prevent a doubtful or insufficient finding from passing into the court records; every reasonable construction should be adopted for the purpose of amending verdicts into proper form. 76 American Jurisprudence 2d 165-67, Trial, Section 1208; accord, Wilson v. Marino (1961), Ohio App., 88 Ohio Law Abs. 316, 182 N.E.2d 635; Tradler v. Young (1956), 104 Ohio App. 64, 142 N.E.2d 456.
Under R.C. 2315.11, repealed as conflicting with Civil Rule 48, the court had the power to correct a verdict defective in form before the jury was discharged. It is recognized and acceptable practice for the court to direct the jury to correct an insensible or repugnant verdict and return a proper one consistent with their intention as expressed upon the court's request. 53 Ohio Jurisprudence 2d 267-269, Trial, Section 341. Moreover, in construing G.C. 11420-11, the predecessor to R.C. 2315.11, one court stated that:
'A jury should have every reasonable opportunity, before their verdict is put on record and before they are discharged and their relation to the case as jurors has ceased, to alter their verdict in form or substance to conform it to their intention and purpose.' Ekleberry v. Sanford (1943), 73 Ohio App. 571, 574, 57 N.E.2d 270, 272.
A situation very similar to the present case arose in Schaller v. Chapman (1943), 44 Ohio Law Abs. 631, 66 N.E.2d 266, where, in an action for damages based upon an automobile accident wherein the defendant had filed a cross-petition against plaintiff, the court noted that:
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Stevens v. Allen, 25179.
...(1929) (plaintiff's verdict awarding damages "in the sum of none dollars" was in effect a defendant's verdict); Barnes v. Prince, 41 Ohio App.2d 244, 325 N.E.2d 252 (1974) (trial court should amend verdict to reflect jury's clear intent to find for the defendant where a jury returns a defec......
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... ... Cf. Barnes v. Prince (1974), 41 Ohio App.2d 244, 325 N.E.2d 252 [70 O.O.2d 454]; Kahley v. Rus (June 29, 1978), Cuyahoga App. No. 37397, unreported. However, ... ...
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Constance J. O'connell v. Chesapeake & Ohio Railroad Co.
... ... Neustrom (C.A. 10, 1967), 379 ... F.2d 644; Stancell v. McKenzie Tank Lines, ... Inc. (1974), 497 F.2d 529; Barnes v ... Prince (1974), 41 Ohio App.2d 244 ... In ... addition, this court, in Hoover v. Consolidated ... Rail ... ...
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Phillips v. Garfield Hts.
...from defects in substance, do not affect the rights of the parties or the merits of the case. Barnes v. Prince (1974), 41 Ohio App.2d 244, 245, 70 O.O.2d 454, 454, 325 N.E.2d 252, 253. A verdict is defective in form only where the jury's intent is clear and obvious to the court. Id. at 247,......