Miller v. Lint

• Decision Date: 21 May 1980
• Docket Number: 79-1097,Nos. 79-1087,s. 79-1087
• Citation: 16 O.O.3d 244,404 N.E.2d 752,62 Ohio St.2d 209
• Parties: , 16 O.O.3d 244 MILLER, a Minor et al., Appellees and Appellants, v. LINT, Appellant and Appellee.
• Court: Ohio Supreme Court

Page 209

62 Ohio St.2d 209

404 N.E.2d 752, 16 O.O.3d 244

MILLER, a Minor et al., Appellees and Appellants, v. LINT, Appellant and Appellee.

Nos. 79-1087, 79-1097.

Supreme Court of Ohio.

May 21, 1980.

The plaintiffs, Donald E. Miller, Delores M. Miller, and Patrick L. Miller, a minor, by his mother and next friend, Delores Miller, commenced this negligence action against the defendant, Gladys A. Lint, as a result of personal injuries sustained by Patrick Miller when he was struck by an automobile being driven by defendant as Miller was crossing Orchardview Drive in Stark County on January 5, 1976.

The complaint, which alleged that the defendant was negligent in the operation of her motor vehicle, was filed on February 4, 1977, and service of summons and a copy of the complaint, complete with interrogatories, was made on the defendant by certified mail on February 9, 1977.

No responsive pleading or request for an extension was filed within rule, and on April 13, 1977, with no answer having been filed by the defendant, the plaintiffs filed a motion for a default judgment.

On April 14, 1977, the defendant filed her answer, and across the top of the pleading, handwritten in ink, appeared the following legend: "Leave to file, Morris." On October 19, 1977, the plaintiffs filed a motion to strike the answer, but this motion was summarily overruled on November 16, 1977, and the cause proceeded to trial on September 28, 1978.

At the trial, the only eyewitness to the accident, one Gary Fenstermaker, testified on behalf of the plaintiffs, and during cross-examination by the defendant, the following exchange took place:

"Q. (Mr. Meekison) Alright, Mr. Fenstermaker, have you related to the ladies and gentlemen of the jury everything that you told the deputy sheriff at any time during the accident investigation?

"A. Yes.

"Q. Well in order to refresh your recollection Mr. Fenstermaker isn't it true that right there in the area where you were showing the deputy sheriff Patrick's footprints that you told the investigating deputy sheriff that there was nothing Gladys Lint could have done to have avoided this accident?

"A. I don't remember saying that to the deputy.

"Q. Do you deny it sir?

"A. That I told him there was nothing she could do?

"Q. Yes.

"A. Yes.

"Q. You deny it?

"A. Yes.

"Q. Thank you. Several months following the accident a representative of Mrs. Lint's called you at your home and talked to you about this accident is that not true?

"A. Yes.

" * * *

"Q. (Mr. Meekison) And is it not true Mr. Fenstermaker that in the latter part of February 1976, in a telephone recorded interview with you at your home by a Mr. Gary Wade that you told him that there was nothing Mrs. Lint could have done to have avoided this accident?

"A. I don't remember saying that.

"Q. Do you deny it sir?

"A. Yes."

Thereafter, during the defendant's case, one Claude Keaton, Jr., who was the investigating officer, testified as follows:

"Q. (Mr. Meekison) Now in addition to Mr. Fenstermaker giving a written statement did Mr. Fenstermaker also orally describe to you what he observed?

"A. Yes sir.

"Q. Did Mr. Fenstermaker at the accident scene on January 5, 1976, tell you whether the lady driver of the car could have avoided the accident?

"(Mr. Russell) Objection your honor.

"(The Court) Overruled.

"(Mr. Meekison) You may answer sir.

"A. Something was stated that the driver of the vehicle that was going west did everything possible to avoid the accident."

Another defense witness, one Larry Hodges, was permitted to testify along similar lines as follows:

"Q. (Mr. Meekison) Did you overhear any conversation between the deputy sheriff of Stark County and the driver of the pick-up truck?

"A. Yes sir.

"* * *

"Q. Sir right there when the deputy was talking to the driver of the pick-up truck in the area where the tracks were can you tell this jury whether the driver of the pick-up truck said anything about whether the driver of the car could have avoided the accident?

"(Mr. Russell) Objection.

"(The Court) Overruled, you may answer.

"A. I remember something said about she didn't have a chance to stop, the witness telling the sheriff.

"(Mr. Meekison) Thank you Mr. Hodges."

The jury rendered a verdict in favor of the defendant, and from the judgment thereupon entered in the Court of Common Pleas of Stark County, the Millers appealed to the Court of Appeals which held that the trial court committed reversible error in allowing in evidence prior statements of opinion which were inconsistent with the testimony of the witness at trial for purposes of impeachment. In its decision, however, the Court of Appeals overruled an allegation of the plaintiffs that the trial court also erred in permitting the defendant to file her answer on April 14, 1977.

As a result of these rulings, the plaintiffs, in case No. 79-1097, and defendant, in case No. 79-1087, filed separate notices of appeal, and the causes are presently before this court pursuant to the allowance of motions to certify the record. The causes have been consolidated herein for purposes of review and final determination.

Russell & Marini and Ronald Lee Russell, Alliance, for appellees and appellants.

Vogelgesang, Howes & Lindamood and Peter Zawaly, Jr., Canton, for appellant and appellee.

I.

PER CURIAM.

The issue for determination in case No. 79-1087 (defendant's appeal) is whether a prior statement of opinion by an eyewitness, not a party to the action, upon the ultimate fact in issue and inconsistent with the testimony of such witness at the trial, is admissible for the limited purpose of impeachment.

In Schneiderman v. Sesanstein (1929), 121 Ohio St. 80, 167 N.E. 158, at paragraph three of the syllabus, this court succinctly responded to a similar question, holding as follows:

"A witness who testifies as to facts cannot be discredited by evidence of the expression of an opinion relative to the merits of the case."

Likewise, in the case of Cottom v. Klein (1931), 123 Ohio St. 440, 175 N.E. 689, which has some factual characteristics similar to those of the present case, this court, in paragraphs one and two of the syllabus, held as follows:

"In a suit against a defendant for personal injuries to the plaintiff arising out of an automobile collision the declaration of an eyewitness, who was not a party to the suit, that the accident was caused, not by the defendant's fault but by the fault of the plaintiff, is but the expression of an opinion upon an ultimate issue to be determined by the jury.

"Such declaration made by the eye witness is not competent, either as original or impeaching evidence; and, because of its prejudicial character, its admission for the purpose of impeaching the witness constitutes error."

Defendant concedes that this court must overrule Schneiderman and Cottom in favor of what she claims is the majority view in the United States in order to sustain her position, but on balance and after careful consideration, we fail to perceive how time has had any undermining influence upon the rationale expressed many years ago in Cottom, at pages 444, 447, 175 N.E. at pages 690, 691, where the court stated as follows:

"While the court stated that the declarations were admitted for the purpose of impeachment, and 'not to establish any liability or determination of whose fault the accident was,' the undoubted tendency of the admitted testimony was to exculpate the defendant from blame and to place the blame upon the child; and to do this by a mere expression of opinion. The ultimate question to be decided was, who was negligent or at fault? That was a question of fact to be determined by the jury, and should be determined, not by the conclusion or by the opinion of the witness, but by testimony detailing facts and circumstances from which the jury could determine the issue of negligence.

"Certainly it cannot be denied that the defendant, in proving his case, would have been precluded from making Cottom his witness and obtaining his opinion as to the cause of the accident. Since he could not have introduced such opinion as original or substantive testimony, he could not do so by way of indirection under the guise of impeaching the witness."

In our view, the engrossing nature of the opinion evidence admitted over objection in the present case completely overshadowed its usefulness for impeachment purposes, and, accordingly, we must decline the invitation to overrule the previous holdings of this court in the Schneiderman and Cottom cases. The judgment of the Court of Appeals in case No. 79-1087 is affirmed.

II.

The issue before the court for determination in case No. 79-1097 (plaintiffs' appeal) is whether the trial court abused its discretion in allowing the defendant to file her answer beyond rule date without regard to the requirements of the Ohio Rules of Civil Procedure.

Civ.R. 12(A)(1) expressly provides that "(t)he defendant shall serve his answer within twenty-eight days after service of the summons and complaint upon him." Hence, the defendant in this case was required to file her answer or to request an extension on or before March 9, 1977, but the record discloses that she did neither.

In the absence of any action by the defendant, and pursuant...