Mikula v. Tailors

• Decision Date: 14 October 1970
• Docket Number: No. 69-324,69-324
• Parties: , 53 O.O.2d 40 MIKULA, Appellant, v. Slavin TAILORS, Appellee.
• Court: Ohio Supreme Court

Page 48

24 Ohio St.2d 48

263 N.E.2d 316, 53 O.O.2d 40

MIKULA, Appellant, v. Slavin TAILORS, Appellee.

No. 69-324.

Supreme Court of Ohio.

Oct. 14, 1970.

Syllabus by the Court

1. A 'false in one thing, false in everything' instruction is permissible, if at all, only where an apparent conscious falsity is uttered by a witness as to a material fact or circumstance.

2. Biographical facts concerning a 25-year period of the plaintiff's life, which occurred prior to the events of, and are unrelated to any issue in, a case, do not constitute material facts or circumstances.

3. Seemingly contradictory utterances of a witness do not, per se, establish a conscious falsity.

4. Where an inference of contributory negligence arises from the plaintiff's case, the plaintiff has the burden of counterbalancing that inference. (Ziebro v. Cleveland, 157 Ohio St. 489, 106 N.E.2d 161; Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Lee, 111 Ohio St. 391, 145 N.E. 843, followed.)

5. Where an owner in control of a business parking area has notice, actual or constructive, that a natural accumulation of snow thereon has, by reason of covering a hole in the surface thereof, created a condition substantially more dangerous to a business invitee than that normally associated with snow, such owner's failure to correct the condition constitutes actionable negligence.

6. A jury instruction in a general charge to the effect that an injured business invitee may recover if the invitor is found to have negligently permitted a dangerous and unsafe condition to exist on his premises due either to an 'improper accumulation of ice and snow' or to 'many holes of varying width and length' is erroneous only to the extent that it omits a definition of an 'improper accumulation,' which is equivalent to natural accumulation of ice and snow which creates a condition substantially more dangerous than the invitee should reasonably have anticipated from his knowledge of weather conditions prevailing generally in the area.

Mary G. Mikula fell while traversing the snow-covered parking lot of the defendant. An eye-witness to her fall testified that Mary stepped into a hole in the parking lot about seven inches deep which was covered with snow.

Mary was taken to the emergency room of the Huron Road Hospital where, according to an emergency room report, she stated that she had fallen on an icy walk. Two weeks later and one week after she left the hospital, Mary signed a statement which was written out by an insurance investigator to the effect that she slipped on the snow and fell.

Mary then commenced this action, alleging in her petition that defendant was negligent in the following manner:

'* * * it did negligently and carelessly permit a dangerous and unsafe condition due to an improper accumulation of snow and ice to exist and to remain at the aforementioned area for a considerable time after notice, actual and constructive; it did negligently and carelessly permit an unsafe and dangerous condition due to many holes of varying width and length to exist and to remain at the aforementioned area for a considerable time after notice, actual or constructive.'

By deposition, plaintiff testified as to biographical facts concerning a 25-year period of her life which occurred prior to, and is not related to, the present suit. She expressly denied ever having been in a religious order.

At the trial, plaintiff testified that she had been a nun during all of the 25 years covered in her deposition. Defense counsel confronted Mary with her deposition testimony to attack her credibility. Mary then admitted that she had failed to reveal the fact that she was a nun for personal reasons.

Plaintiff also testified at the trial that she had fallen because her foot 'went into something and truned my ankle,' but that she did not 'remember exactly how' she fell. She explained that when she made the prior statements she was sick with pain and confused.

Defendant's case consisted only of testimony as to the condition of the premises.

After the reception of evidence, the trial court gave certain requested special instructions, and refused others. The two controverted special instructions are reproduced in the opinion in connection with the discussion thereof.

After oral argument, the trial judge, in his general charge, read the entire petition to the jury including the portion quoted hereinabove. He then instructed the jury that one of the issues was whether the defendant was 'negligent in the maintenance of this parking area in any one or more of the respects claimed by the plaintiff in her petition.' (Emphasis supplied.)

The jury returned a verdict for the plaintiff. The Common Pleas Court entered judgment on the verdict. The Court of Appeals reversed and remanded the case for a new trial.

Lucey & Lucey and Edward C. Lucey, Cleveland, for appellant.

Jamison, Ulrich, Burkhalter & Hesser, Robert F. Hesser and William E. Armstrong, Cleveland, for appellee.

I.

SCHNEIDER, Justice.

The defendant unsuccessfully requested the trial court to give the following special instruction concerning false testimony of a witness:

'I hereby charge you that if you find from the evidence that any witness has wilfully testified falsely to any material fact, you are free to assume that he or she testified falsely about all matters to which he or she testified, and you are at liberty to disregard the whole or any part of the testimony of such witness.'

A falsus in uno, falsus in omnibus instruction is permissible, if at all, only where an apparent conscious falsity is uttered by a witness as to a material fact or circumstance. See 3 Wigmore, Evidence (3 Ed.), 680 and 683, Sections 1013 and 1014. Cf. Mead v. McGraw (1869), 19 Ohio St. 55, the report of which omits the testimony which gave rise to the instruction held to be proper.

Although Mary's testimony concerning her past life suggests a conscious falsity, the biographical facts concerning a period of time totally unconnected with the issues in the case are not material.

In his general charge, following the usual instructions on determining the credibility of witnesses, including the language that 'you may disbelieve all of the testimony of a particular witness,' the trial judge referred specifically to plaintiff's biographical testimony, explained that it was 'not material to any issue of this particular case,' and limited its purpose to the credibility and weight of her testimony. As a whole, that portion of the charge was nearly tantamount to the refused special instruction and was more than defendant was entitled to.

The seeming contradiction between Mary's testimony as to what caused her fall and how she fell, her reputed statement in the hospital record and her signed statement prepared by the insurance investigator, is also not of a character to require the giving of the falsus in uno instruction. Seemingly contradictory utterances of a witness do not, per se, establish a conscious falsity. 3 Wigmore, Evidence (3 Ed.), 681, Section 1013. Something more must appear which will permit the jury reasonably to believe that perjury was committed. Annotation, 4 A.L.R.2d 1077, 1104, Section IV.

Whether, in this case, plaintiff's versions of how she fell are contradictory is a matter of interpretation. Viewed at their worst, however, they do not support a conclusion that she perjured herself.

The trial court's refusal to give the special instruction was proper. The Court of Appeals, therefore, erred in reversing on this issue.

II.

The Court of Appeals accepted defendant's contention that the trial court committed prejudicial error when it gave a plaintiff-requested special instruction which placed the burden of proof of the issue of contributory negligence on the defendant without qualification.

That special instruction read as follows:

'I charge you as a matter of law that contributory negligence is an affirmative defense and therefore the burden of proof as to such a defense is upon the defendant, and it is necessary for the defendant to prove by a preponderance of the evidence two things:

'First, the defendant must prove that the plaintiff was negligent;

'Second, that such negligence on the part of the plaintiff proximately contributed to the injuries and damages which she sustained.

'The failure of the defendant to prove either one of the two elements stated means that any defense of contributory negligence must fail. In other words, even though you might find from the evidence that the plaintiff was herself negligent, yet such finding will not defeat plaintiff's right to recover unless you further find that such negligence on the part of the plaintiff contributed to her injuries and damages.'

The record indicates that the only place where the issue of contributory negligence could arise was in the plaintiff's case. The defendant offered no evidence as to the knowledge or acts of plaintiff.

It is clear then that plaintiff did have the burden to counterbalance any inference of contributory negligence which arose during her case. Ziebro v. Cleveland (1952), 157 Ohio St. 489, 106 N.E.2d 161; Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Lee (1924), 111 Onio St. 391, 145 N.E. 843. See Snyder v. Stanford (1968), 15 Ohio St.2d 31, 43, 238 N.E.2d 563. For this reason, the trial court should not have given plaintiff's requested special instruction, which did not qualify the defendant's burden of proof. Greenawalt v. Yuhas (1947), 83 Ohio App. 426, 84 N.E.2d 221, approved.

However, the special instruction in question was erroneous only because it was incomplete. It contained no positive error of law. The jury heard nothing wrong.

Furthermore, the general charge contained a complete and accurate statement of law. It qualified the defendant's burden of proof by instructing that any inference of contributory negligence arising from plaintiff's case must be counterbalanced by the plaintiff. We fail to find...