Bennett v. Heidinger

• Decision Date: 31 March 1986
• Docket Number: No. 50335,50335
• Citation: 30 Ohio App.3d 267,507 N.E.2d 1162
• Parties: , 30 O.B.R. 465 BENNETT, Appellant, v. HEIDINGER, Appellee.
• Court: Ohio Court of Appeals

Page 267

30 Ohio App.3d 267

507 N.E.2d 1162, 30 O.B.R. 465

BENNETT, Appellant, v. HEIDINGER, Appellee.

No. 50335.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

March 31, 1986.

Syllabus by the Court

1. Where a husband contracts with a polygraphist to conduct a polygraph examination of his wife to test her marital fidelity, the issue of whether the parties agreed that the husband would receive a copy of the polygraph test charts (polygrams) is to be determined by the trier of fact.

2. Only the subject of a polygraph examination can claim entitlement to the polygraph test charts (polygrams) based on a property right analogous to the property right that a patient has in his medical and dental records, such as X-rays.

George Wm. Joseph, Jr., Lakewood, for appellant.

Leo R. Ward, Cleveland, for appellee.

McMANAMON, Judge.

James E. Bennett, the plaintiff below, timely appeals from a decision of the Parma Municipal Court which denied Bennett's entitlement to polygraph test charts (polygrams) prepared by defendant Robert F. Heidinger at Bennett's request.

Bennett's sole assignment of error posits that the court's finding is against the manifest weight of the evidence.

On October 22, 1984, Bennett and Heidinger orally agreed that the latter would conduct a polygraph examination of Bennett's wife, Elby A. Bennett, to test her marital fidelity. Mrs. Bennett consented to the examination, which was held on October 24, 1984. She also signed a release which authorized Heidinger to disclose the examination results and his opinions to her husband.

Defendant supplied the plaintiff with a verbal opinion of the test results six days after the examinations and followed up with a written report containing his opinions as to those results. It was Heidinger's opinion that Elby Bennett had truthfully denied having extramarital affairs.

Heidinger later received a letter from Bennett requesting another review of the test results. Bennett specifically asked the defendant for a list of the questions posed and how they were answered; whether the responses were truthful; the type of test and machine used. No specific request was made for the polygrams. This letter was followed by another dated November 9, 1984, advising Heidinger that Bennett had retained counsel and now wanted the test charts for review.

This letter was followed, two weeks later, with a visit by plaintiff and his attorney to defendant's office with a request to see the polygrams. Heidinger permitted the pair to review the charts, and again explained the procedures used, the results, and his opinions. The defendant further informed Bennett that he would permit any qualified examiner of Bennett's choice to meet with Heidinger and view and discuss the charts. However, the defendant refused plaintiff's request for a copy of the charts.

Bennett subsequently instituted the instant contract action, seeking an order for release of the polygrams as well as compensatory and punitive damages for expenses incurred in his efforts to obtain them. The defendant answered and asserted a counterclaim and a cross-claim for declaratory judgment, requesting a ruling that the service contract between the parties did not require him to provide the polygrams to the plaintiff.

The matter was tried to the court, which found that the parties did not bargain for plaintiff's receipt of the charts, and rendered judgment for the defendant accordingly.

Bennett argues that the trial court erred in failing to conclude from the evidence that the defendant was under a contractual duty to supply him with the polygrams.

A reviewing court will not reverse a verdict as being against the manifest weight of the evidence where there is some competent, credible evidence going to all the essential elements of the case. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578. Whether the subject contract obligated Heidinger to provide the charts to Bennett turns on the intent and purpose of the parties in formulating their agreement. The relevant inquiry is the manifestation of intent of the parties as seen through the eyes of a reasonable observer, rather than the subjective intention of the parties. See 1 Corbin on Contracts (1963), Section 9; Restatement of the Law 2d, Contracts (1981), Sections 1 and 3. A contract must be construed with reference to its subject matter, nature, and object or purpose. McBride v. Prudential Ins. Co. of America (1947), 147 Ohio St. 461, 34 O.O. 381, 72 N.E.2d 98.

In formulating their oral agreement, the parties neither defined the term "results" nor specifically discussed the subject of charts. However, Heidinger's testimony concerning the formation of the contract could lead a reasonable person in his position to believe that the parties never intended to contract for the charts:

"Q. Would you please tell the Court exactly what you agreed to do for $250?

"A. I agreed to give his wife a polygraph examination and give him my opinion as to the results of the test, whether she was truthful or not, like I do for all my clients.

"Q. That $250 include[s] giving James Bennett a copy or an original of your polygram charts?

"A. No way.

"Q. Have you ever contracted with anyone to do that?

"A. No, sir.

"Q. Have you ever released any of your charts?

"A. No, sir.

"Q. Did James Bennett ask you about those charts?

"A. No, sir.

"Q. Prior to the conducting of the exam?

"A. No, sir.

"Q. Prior to the paying of the $250?

"A. No, sir."

The record demonstrates that the plaintiff again made no mention of, nor request for, the charts on the day the examination was administered, or during the parties' numerous communications, including Bennett's November 23 visit to the defendant's office with his lawyer and his letter sent in early November.

The record further reflects that Heidinger's reluctance to release polygrams stems from his view that a proper chart analysis cannot be made absent reference to other crucial information. In response to counsel's question why he desired to be present, were the charts to be reviewed by another qualified polygraphist, Heidinger told the court:

"A. Because no one can interpret someone else's charts without knowing the facts. Each chart is marked individually with certain notations and unless someone knows my notations or shorthand, they wouldn't, probably wouldn't know what I was writing or why these quotations were made.

"Q. You mean they're not standard?

"A. Not completely. Such things as sneezes, finger movement, coughs, all of those have to be recorded.

"Q. What's a sneeze got to do with it?

"A. A sneeze will greatly distort the test at that point. In addition--

"Q. Wait a minute.

"A. All right.

"Q. Are there other factors which might go into the interpretation of a chart?

"A. Certainly.

"Q. Such as?

"A. Temperature, humidity, question formulation, somatics, the physiological condition of the person being tested, the psychological condition, the method or type of test being conducted. You heard testimony that there is [sic ] at least seven different methods in polygraph testing. A person would have to be familiar with that. They would have to be familiar with the chart markings, such as when the question started, when it stopped. If there were outside noises or activity or distractions, if the room was properly arranged for polygraph testing. Such things as pictures and things can interfere with the test. There is a great deal of things that anyone would have to know before looking at charts and even beginning to guess or render at an opinion."

Bennett essentially testified that he contracted for Heidinger's "results and opinions," and that "a chart is a result." He further stated that he thought he was bargaining for the charts at the time he entered into the contract, and that he expected to get them. It is a well-established proposition of contract law that where reasonable...