Jarvis v. Hall

• Decision Date: 28 December 1964
• Citation: 210 N.E.2d 414,3 Ohio App.2d 321
• Parties: , 32 O.O.2d 429 JARVIS, Appellee, v. HALL, Appellant.
• Court: Ohio Court of Appeals

Page 321

3 Ohio App.2d 321

210 N.E.2d 414, 32 O.O.2d 429

JARVIS, Appellee, v. HALL, Appellant.

Court of Appeals of Ohio, Fourth District, Scioto County.

Dec. 28, 1964.

Miller, Searl & Fitch, Portsmouth, for appellant.

Bannon, Howland, McCurdy & Dever, Portsmouth, for appellee.

COLLIER, Presiding Judge.

This action was commenced in the Common Pleas Court of Scioto County by Gladys Jarvis against Clell Hall seeking damages for personal injuries alleged to have been sustained in an automobile collision on December 16, 1961, in the city of Portsmouth. The parties will be referred to herein as the plaintiff and defendant in the same relation they appeared in the trial court.

The petition alleges in substance that the plaintiff was operating her husband's automobile in a westerly direction on Gallia Street, that she stopped for a traffic control light; that the defendant was operating his automobile on the same street in the opposite direction, under the influence of alcohol; that defendant crossed the center of the street and collided with the automobile the plaintiff was driving; and that as a result of defendant's negligent act plaintiff sustained serious and permanent injuries.

The defendant filed an answer admitting the collision but denying all other allegations of the petition. The case came on for trial on January 30, 1964, and on that date the defendant was granted permission to amend his answer, admitting that defendant was negligent in driving his automobile on the left of the center line of the highway and that such negligence was the proximate cause of the collision of the two vehicles. In other words, the defendant admitted liability, leaving the question of damages, if any, the only issue to be determined by the jury.

The trial by jury resulted in a verdict in favor of the plaintiff in the sum of $5,000 upon which judgment was entered, the motion for a new trial was overruled, and the defendant now seeks a reversal of the judgment.

Under the first assignment of error the defendant claims that the court erred in overruling defendant's motion to withdraw a juror and declare a mistrial. The record shows that before the jury was empanelled and after the defendant had been granted permission to amend his answer admitting liability, counsel for plaintiff inquired whether the defendant would admit that the defendant was driving his automobile under the influence of alcohol. Upon receiving a negative reply, the plaintiff made a motion to amend her petition to include in the prayer of the petition a sum for punitive damages because of the operation of the automobile under the influence of alcohol. This motion was overruled.

The plaintiff began the introduction of testimony by calling the defendant for the purpose of cross-examination. So far as pertinent to this assignment of error the record reads:

"Q. How fast were you driving, Mr. Hall, when your car collided with that car occupied by Mrs. Jarvis? A. Well, I would say around 30 or 35.

"Q. Was there anybody in the car with you? A. No Sir.

"Q. Do you remember this accident clearly? A. Yes sir.

"Q. Isn't it a fact that you were under the influence of alcohol, or intoxicated?

"Objection

"Mr. Howland: May I finish my question?

"Q. Mr. Hall, had you had anything intoxicating to drink?"

Thereupon the defendant moved to withdraw a juror and declare a mistrial. This motion was overruled, and the jury was instructed to disregard the question. The defendant contends that liability having been admitted by the defendant, the attempt to inject intoxication into the case by the plaintiff was prejudicial and the court's instructions to disregard it was ineffective; that the damage had been done. In Cleveland Ry. Co. v. Kozlowski, 128 Ohio St. 445, at page 449, 191 N.E. 787, at page 788, in the opinion, Stephenson, J., says:

"*** An admission of liability in a personal injury case sends the pleadings to the four winds except as to the nature and scope of the injuries on the one side and the denial thereof on the other. Negligence and proximate cause go out of the case as if by magic, and nothing remains for the jury to do except fix the amount of damage. This is the sole and only issue left in the case. ***"

In the colloquy between the court and counsel, in the absence of the jury, the court had expressly advised counsel that the only issue to be determined was the nature and extent of the injuries, if any, sustained by the plaintiff and that the question of whether the defendant was intoxicated was removed from the case.

The court said: "The only issue now is the question of money damage."

The purpose of pleadings is to define the issues to be determined, to inform the respective parties of the claims of each and the nature and scope of the trial. Gerend v. City of Akron, 137 Ohio St. 527, 30 N.E.2d 987. The plaintiff, by propounding the question relating to defendant's intoxication, not only attempted to inject an immaterial and inflammatory issue into the case, under the pleadings, but violated the instructions of the court in regard to the issues to be submitted to the jury. Regardless of the...