Levy v. Coon

• Decision Date: 08 December 1964
• Citation: 229 N.E.2d 747,11 Ohio App.2d 200
• Parties: , 40 O.O.2d 367 LEVY, Appellant, v. COON, Appellee.
• Court: Ohio Court of Appeals

Page 200

11 Ohio App.2d 200

229 N.E.2d 747, 40 O.O.2d 367

LEVY, Appellant, v. COON, Appellee.

Court of Appeals of Ohio, Tenth District, Franklin County.

Dec. 8, 1964.

Syllabus by the Court

1. Ohio Workmen's Compensation awards are like general insurance payments and cannot be deducted and treated by the defendant as an offset against claims for damages in an action by an injured employee against a third person who caused him injury. (McDowell v. Rockey (1929), 32 Ohio App. 26, 167 N.E. 589.)

2. The collateral source rule in Ohio includes workmen's compensation payments, and questions by the defense intended to elicit testimony as to payment of such awards, and medical payments or hospital expenses made in connection therewith, are properly excluded upon timely objection.

3. Asking questions relative to payments from collateral sources and reference to compensation awards may produce prejudicial error resulting in a mistrial or the granting of a new trial as the trial court may determine, and the decision of the trial court should not be disturbed unless the resulting verdict and judgment are clearly and plainly prejudiced thereby.

4. Inquiry as to irrelevant and incompetent collateral source payments is improper and may warrant admonition from the trial court even though the trial court may refuse the immediate granting of a new trial.

5. Examination of the entire record is necessary to determine whether the improper question prejudiced the jury, producing a biased and inadequate verdict and award for damages.

James W. McGuire and Lane, Huggard & Alton, Columbus, for appellant.

Dresbach, Crabbe, Newlon & Bilger, Charles E. Brown and James L. Graham, Columbus, for appellee.

TROOP, Judge.

This action was begun in the Court of Common Pleas of Franklin County. It arose out of a collision between a Mercury automobile driven north on Wilson Avenue, in the City of Columbus, by the defendant, Coon, and an unmarked Chevrolet police car, owned by the City of Columbus, in which the plaintiff, Levy, was riding, being driven west on Mound Street. The accident occurred at the intersection of the two streets.

The case was tried to a jury. At the time the case was submitted to the jury the trial court held that the defendant was negligent as a matter of law and that his negligence was the proximate cause of injuries to the plaintiff. The trial court so instructed the jury, directing them to find for the plaintiff. In fact, the trial court submitted only one form of verdict to the jury. Apparently defendant acquiesces in this point, raising no objection to the holding either in brief or oral argument. A verdict of $500, favorable to the plaintiff, was returned by the jury, judgment was entered accordingly and later plaintiff's motion for a new trial was overruled. It is from the judgment and final order of the trial that this appeal is taken on questions of law.

Four assignments of error are urged by the plaintiff-appellant, that the trial court erred in overruling plaintiff's motion for a mistrial, in the admission of certain evidence objected to by plaintiff, and in overruling the motion for a new trial, and finally, that the judgment rendered was inadequate and against the weight of the evidence as to amount.

Much of plaintiff's argument, both oral and in brief, in support of the first two assignments of error, centers about a question directed to Dr. Beattie, inquiring as to payment of his medical bill, for treatment rendered the plaintiff, by the Industrial Commission of Ohio, and the presentation in evidence of a claim, made to the Industrial Commission, arising out of an accident to the plaintiff in 1957. Objection is most strongly urged against the display before the jury of a voluminous file, covering the 1958 accident, and the claim arising therefrom, to establish the 1957 claim. It is noted that objection to the question concerning payment of the medical bill was sustained and no answer permitted.

It is strongly urged that it was irregular to ask the question of Dr. Beattie because counsel for the defendant-appellee, who asked the question, knew that the plaintiff was entitled to recover his medical expenses under the law of Ohio, even though he had been reimbursed for them. In his own behalf counsel for the defendant takes the position that the collateral source rule in cases involving payments from the Industrial Commission of Ohio is unsettled, and being so, he was entitled to ask the question. To resolve the question presented we examine the rule as applied in Ohio using such material as is available.

The case of McDowell v. Rockey (1929), 32 Ohio App. 26, 167 N.E. 587, has a fact pattern closely resembling the one in the instant case. Plaintiff, a salesman, was injured due to the negligence of a defendant innkeeper who sought to avoid or reduce his liability because the plaintiff had been paid from the State Industrial Compensation Fund. Basing its opinion upon the case decided by the Supreme Court, Trumbull Cliffs Furnace Co. v. Shachovsky (1924), 111 Ohio St. 791, 146 N.E. 306, the court held, at page 30 of 32 Ohio App., at page 590 of 167 N.E., as follows:

'* * * the workmen's compensation allowance is an occupational insurance, and, like general insurance, cannot be deducted and treated as an offset for claims for damages in an action by in injured employee against a third party who caused his injury.'

The Trumbull Cliffs Furnace Co. case, supra, which appears to be a principal case, is not identical in fact pattern with the instant case nor with the McDowell case, supra, which the court relies upon. In Trumbull, the negligent third party is also an employer and contributing member of the workmen's compensation system. In the syllabus, the emphasis in the holding of the court is on the conclusion that the third party, the owner of the premises, is not the employer of the injured workmen employed by the independent contractor. 111 Ohio St. at page 796, 146 N.E. at page 308, however, the language of the court provides the foundation for the rule followed in the McDowell case, supra. It is as follows:

'* * * the compensation provided by the Workmen's Compensation Law is in the nature of an occupational insurance and, like general insurance, cannot be deducted and treated as an offset for claims for damages for wrongful injury or death. * * *'

A decision by the United States District Court, E. D. Wisconsin, in Powell v. Wagner, Exr. (1959), 178 F.Supp. 345, 83 Ohio Law Abst. 158, assumes that the rule is clearly established in Ohio by the McDowell case, supra. The court first generalizes saying that in the absence of subrogation the only parties concerned with an accident insurance policy are the beneficiary and the insurer, and that the insurer cannot look to the insured or the tortfeasor for reimbursement. Further, then, the court observes the neither Ohio nor Wisconsin has by legislation provided for the right of recovery, by subrogation, for payments made under Workmen's Compensation and then, 178 F.Supp. at page 347, 83 Ohio Law Abst. at page 160, states the rules as follows:

'Where the Ohio courts treat Ohio Workmen's Compensation awards as general insurance and do not permit such payments as offsets to the liability of the tort-feasor, and where Wisconsin similarly treats payments received either gratuitously or pursuant to insurance coverage, the workmen's compensation awarded to plaintiff herein does not inure to the benefit of the defendants and may not be considered to diminish the amount awarded by the jury.'

Unless and untile the Trumbull and McDowell cases, supra, are overruled by the Supreme Court, they represent, in Ohio, the collateral source rule as applied to workmen's compensation payments and controal in the instant case. In 16 Ohio Jurisprudence (2d), 256, Section 119, the text authors suggest that the collateral source rule is 'well settled' in Ohio as to insurance payments and the same rule is held to apply 'to compensation awarded under the Ohio Workmen's Compensation Law' and that recovery against the person causing the injury is not to be reduced by any payments or awards made under the act.

The author of an article in Vol. 21, the Ohio State Law Journal (1960), page 238, suggests that Ohio follows the general rule when he says:

'Compensation awarded under workmen's compensation laws are not available generally in mitigation of damages to the tort feasor under the collateral source rule. * * *' The article suggests also the philosophy underlying the rule. At page 240 it reads as follows:

'* * * It is true, in many cases, that a double recovery is thus permitted by the liberality of the courts in interpreting this rule, but this is consistent with the view of our courts that it is better to permit the claimant to 'accumulate his remedies' than to grant the tort feasor the benefits of payments that come to the claimant from 'collateral sources.' The wrongdoer, the courts feel, is not entitled to such an 'undeserved windfall.'

Counsel for defendant defends his position in directing the controversial question to Dr. Beatti by arguing that the collateral source rule relative to workmen's compensation awards is unsettled in Ohio. We have flat-footedly held that it is not unsettled but established by the decision in the McDowell case, supra. What then is the effect of the asking of the question? It is recalled that objection was made to the question which was sustained and the question remained unanswered.

The federal court in his decision in the Powell case, supra, infers that Section 4123.93, Revised Code, covers the matter and says, 178 F.Supp. page 346, page 159 of 83 Ohio Law Abst. that 'hospital and medical expenses, may not be called to the attention of or be considered by the jury in a personal injury action.' That section covers only actions in workmen's compensation claims. The language used limits references to matters covered in 'Sections...