Berisford v. Sells
| Decision Date | 23 July 1975 |
| Docket Number | No. 74-307,74-307 |
| Citation | 43 Ohio St.2d 205,331 N.E.2d 408 |
| Parties | , 72 O.O.2d 117 BERISFORD, Appellant, v. SELLS, Appellee. |
| Court | Ohio Supreme Court |
On August 14, 1966, plaintiff, Martha Berisford, appellant herein, and defendant, Mary Sells, appellee herein, were returning to resume classes at Ohio University in Athens following a weekend visit to their homes in Martins Ferry, when, after driving through a six-inch deep hole covered by an accumulation of water, Sells lost control of the car, which crossed the highway and plunged into a roadside ditch, causing injuries to Berisford.
An informal arrangement existed among certain Martins Ferry girls attending Ohio University to ride together whenever going to or from Athens. Appellant has contended thoughout the proceeding that she had entered into an ongoing agreement to pay for her transportation.
Berisford's amended complaint, filed in the Court of Common Pleas of Belmont County, alleged that Sells had been guilty of ordinary negligence, and that recovery should be had under the first claim which alleged an agreement to pay for the ride, or under the second claim which failed to allege payment but described herself as a 'passenger.'
Defendant moved to dismiss the second claim for the reason that R.C. 4515.02 precluded recovery under that claim in the absence of an allegation of payment for the ride or defendant's willful and wanton misconduct. The court granted the motion to dismiss the second claim without stating reasons therefor.
At trial, plaintiff moved to reinstate the second claim, urging that the guest statute is unconstitutional, and that, therefore, her allegations stated a claim upon which relief could be granted in the absence of the statute. The motion was summarily overruled.
After the court overruled motions for directed verdict, the jury returned a general verdict in favor of the defendant.
Upon appeal, the Court of Appeals rejected plaintiff's contention that the guest statute is unconstitutional, ruled that plaintiff's failure to comply with Civ.R. 51 precluded an attack on alleged omissions in the court's charge to the jury and affirmed the judgment in favor of defendant.
The cause is before thi court pursuant to the allowance of a motion to certify the record.
Frazier & Sommer, Karl W. Sommer, Jr., Martins Ferry, Thomas & Thomas and Harold B. Thomas, Bridgeport, for appellant.
Kinder, Kinder, Kinder & Hanlon and Gordon T. Kinder, St. Clairsville, for appellee.
Appellant has asserted, from the trial court level to this court, that the dismissal of the second claim of her amended complaint, in effect, thwarted her attempt to challenge the constitutionality of the Ohio guest statute. We disagree, and find that no constitutional question is presented by the proceedings below.
There is no substantial difference between the two claims presented by appellant. In the first claim, appellant alleges that she was a 'passenger,' who had been damaged through appellee's ordinary negligence (excessive speed) which was the proximate cause of the injury. 'Passenger' status is supported by the allegation that there existed an oral agreement to pay for the transportation.
We find that the second claim is merely an abbreviated version of the first (with a failure to specify speeding as...
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7471 Tyler Blvd., LLC v. Titan Asphalt & Paving, Inc.
...and against the unsuccessful party. See Bowman v. Davis , 48 Ohio St.2d 41, 45, 356 N.E.2d 496 (1976), fn. 2; Berisford v. Sells , 43 Ohio St.2d 205, 208, 331 N.E.2d 408 (1975). Accord Mid-Ohio Mechanical v. Eisenmann Corp. , 5th Dist. Guernsey No. 07 CA 000035, 2009-Ohio-5804, 2009 WL 3633......
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Grenga v. Bank One, N.A., 2005 Ohio 4474 (OH 8/26/2005)
...are redundant under Civ.R. 12(F) when a party alleges the same set of fact in multiple claims against a defendant. See Berisford v. Sells (1975), 43 Ohio St.2d 205, 207. {¶132} Thus, the trial court could not use Civ.R. 11 to strike Mrs. Grenga's complaint since it was signed. Likewise, it ......
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Mid-Ohio Mechanical, Inc. v. Eisenmann Corp., 2009 Ohio 5804 (Ohio App. 11/2/2009)
...and against the unsuccessful party. Nott v. Homan (1992), 84 Ohio App. 3d 372, 378, 616 N.E. 2d 1152, 1156, citing Berisford v. Sells (1975), 43 Ohio St.2d 205, 331 N.E.2d 408. A trier of fact is free to reject any evidence of damages even if such evidence is uncontroverted, unimpeached, or......
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Bowman v. Davis
...between the parties, we must presume all issues to have been resolved in favor of the successful parties. Berisford v. Sells (1975), 43 Ohio St.2d 205, 208, 331 N.E.2d 408. The Court of Appeals properly rejected those assignments of error. There were no assertions of error that the amount o......