Mikula v. Balogh

• Decision Date: 20 January 1965
• Parties: , 38 O.O.2d 311 MIKULA, Appellee, v. BALOGH, Appellant.
• Court: Ohio Court of Appeals

Page 250

9 Ohio App.2d 250

224 N.E.2d 148, 38 O.O.2d 311

MIKULA, Appellee, v. BALOGH, Appellant.

Court of Appeals of Ohio, Second District, Montgomery County.

Jan. 20, 1965.

Baggott & Ernst, Dayton, for appellee.

Altick & McDaniel, Dayton, for appellant.

CRAWFORD, Judge.

Defendatn, appellant herein, appeals a verdict and judgment against her for $20,000 recovered by the plaintiff, appellee herein, for personal injuries.

The petition alleged that on February 20, 1960, at about 11:30 p. m. plaintiff was a passenger in an automobile parked off the highway at a gasoline pump in front of 2506 Old Troy Pike when the defendant drove her automobile off the highway and into the rear of the one occupied by plaintiff, severely injuring her, and that the injuries are permanent. It also alleges necessary and reasonable medical and hospital expenses and lost earnings.

The answer admits that a collision occurred between the two automobiles at the time and place alleged. Defendant avers that prior to the collision she had taken certain madicine, that as she proceeded northwardly she suddenly became sleepy and turned to her right to drive off the highway and stop, and that she then became unable to operate the automobile and the collision occurred while she was in that condition. She denies for want of knowledge that plaintiff was injured, incurred expense for treatment and lost wages, and denies generally all other allegations of the petition.

There are eight assignments of error containing many branches and sub-branches.

Assignment of error No. 1 is the admission of certain evidence offered by the plaintiff. Elmer Oren, a witness for plaintiff, testified to the weight of the two Buick automobiles involved in the collision. In giving this testimony he referred to annual books published by the Buick Division of General Motors Corporation and distributed to and used by Buick dealers. This testimony was objected to as hearsay.

Plaintiff responds that such publications dealing with facts rather than opinion and generally accepted in a trade or business form exceptions to the hearsay rule. Pittsburgh, C., C. & St. L. Ry, v. Sheppard, 56 Ohio St. 68, 46 N.E. 61, 60 Am.St.Rep. 732; Bluebird Baking Co. v. McCarthy, Ohio App., 36 N.E.2d 801, 19 Ohio Law Abst. 466, at p. 470; 21 Ohio Jurisprudence 2d 583, Evidence, section 567.

The rule excluding hearsay evidence is based upon unreliability of such evidence and the impossibility of crossexamination. Exceptions to the rule are found in cases of necessity or where reliability of the evidence is established. The latter reason supports the admissibility of the evidence here challenged. Furthermore, the evidence is such as is subject ot verification. Yet we find in the record no attempt to disprove it. It was properly admitted, and no prejudice to the defendant is shown.

Plaintiff's witness, Raymond Hieber, is a professor of physics who gave his opinion as to the speed of defendant's automobile, based upon his examination of the physical facts. Defendant objected that violation of speed laws was not charged. However, this evidence was admitted and was admissible, as the court stated, for establishing the severity of the impact and the consequent seriousness of the injury. Hall v. Burkett, 117 Ohio App. 527, at p. 528, 193 N.E.2d 167. The court's general charge on the speeding statute is not involved at this point.

Defendant claims it was error to admit the evidence as to loss of earnings in excess of the amount pleaded. Evidence is not inadmissible merely because it proves more than is pleaded. However, here there is a question of the admissibility of proof of loss of earnings for a period of time not alleged in the original petition. This was filed on December 13, 1961. It alleged that plaintiff 'has lost earnings in the sum of three thousand one hundred sixty-two dollars and sixteen cents ($3,162.16).'

It also specifically alleged hospital and medical expense of $1,082.96 and prayed for judgment in the total sum of $79,573.16.

On May 21, 1962, defendant filed her answer, to which she attached certain interrogatories. On October 9, 1962, plaintiff answered these, including Interrogatory No. 6 which read:

'State the dates on which you were unable to perform your employment as a result of injuries received in the accident described in your petition.'

The answer to that question sets forth dates and hours lost from the week ending October 22, 1960, to September 29, 1962, inclusive. On October 31, 1962, plaintiff filed an amended answer to this interrogatory, stating that she had inadvertently failed to set forth the fact that she lost time from work from the date of her injury on February 20, 1960, to October 17, 1960, with a loss of earnings of $3,474.80, making a total loss of earnings of $7,488.84. Then, on October 25, 1963, between the entering of the verdict and the judgment, plaintiff filed an amended petition alleging loss of earnings of $4,491.18, and again prayed for judgment in the same amount as in the original petition, namely, $79,573.16.

Section 2309.45, Revised Code, rovides that answers to interrogatories, so far as they contain competent testimony on the issues made, may be used by either party.

Perhaps a supplemental petition should have been filed before the trial, alleging the entire loss of wages from the time of injury to the time of trial. However, the original petition pleaded loss of wages and permanent injuries. The cause of action was not changed. The court did not exceed its broad power to permit amendments in furtherance of justice as conferred by Section 20309.58, Revised Code, nor commit abuse of discretion. See Masterson v. George F. Alger Co., Ohio App., 143 N.E.2d 749, 78 Ohio Law Abst. 89.

Assignment of error No. 2 is the exclusion of evidence offered by the defendant. This consisted of a number of life-expectancy tables and the life expectancy of a female of plaintiff's age as therein set forth.

Plaintiff's counsel had, with the assent of defendant's counsel, stated the average expectancy of a female of plaintiff's age according to the U. S. Life Tables, 1949 to 1951, published by the U. S. Department of Health, Education and Welfare.

Plaintiff objected to the tables offered by the defendant because they were not up to date. He cited 19 Ohio State Law Journal 240.

The court ruled admissible all tables compiled during and after 1940 and excluded others because of recent increases in female life expectancy.

The court's ruling was reasonable and not prejudicial to the defendant.

Assignment of error No. 3 challenges portions of the court's charge.

,(a) The jury was instructed that plaintiff claimed compensation for hospital and madical care, drugs and orthopedic appliances. It is objected that these are not recoverable by plaintiff, a married woman, unless paid for or obligated to be paid for out of her own separate property.

The charge clearly stated the conditions upon which such items are recoverable. There is ample evidence that plaintiff was employed and enjoyed her separate income, and that she individually paid these obligations. There was opportunity for crossexamination. We believe the evidence is sufficient to submit the question to the jury.

(b) The court instructed the jury that plaintiff claimed defendant was negligent in that, having taken sedative medication one to three and a half hours before the collision, she then drove the automobile, did not and was unable to keep a lookout ahead, left the black-top portion of the highway, and operated the automobile at a speed greater than was reasonable and proper in view of the medication, and instructed them to consider whether she could reasonably have foreseen that the medication would affect her ability to stop within the assured clear distance ahead.

Defendant argues that those issues were not in the case because not pleaded in the petition.

Plaintiff's allegations of negligence are general. They state simply that 'defendant drove her automobile off the highway and into the rear end of the automobile occupied by the plaintiff.' There are no specifications of negligence. There was no motion to have the petition made definite and certain in respect to specific elements of negligence. Proof of any negligence within the general scope of the allegation was competent. Evidence on these various subjects being in the case, the charge was proper. 39 Ohio Jurisprudence 2d 761, Negligence, Section 163.

(c) The defendant by her answer injucted into the case the subject...