Miller v. Loy

• Decision Date: 23 March 1956
• Citation: 140 N.E.2d 38,101 Ohio App. 405
• Parties: , 1 O.O.2d 331 MILLER, Appellee, v. LOY, Appellant.
• Court: Ohio Court of Appeals

Page 405

101 Ohio App. 405

140 N.E.2d 38, 1 O.O.2d 331

MILLER, Appellee, v. LOY, Appellant.

Court of Appeals of Ohio, Clark County.

March 23, 1956.

Syllabus by the Court

1. Unless the record discloses an abuse of discretion on the part of the court during the voir dire examination and qualification of jurors, no ground for reversal of the subsequent judgment upon the verdict exists.

2. A party has a right to have his cause submitted to a fair and impartial jury, but it is not material that a particular juror should be seated upon the substitution of one whose qualifications have not been questioned.

3. In a personal injury case it is not erroneous to admit mortality tables for consideration of the jury under appropriate instructions of the court.

4. The extent to which a blackboard sketch may be employed during the progress of a trial lies within the discretion of the court.

Cole & Cole, Springfield, for appellant.

Robert G. Bayley, Springfield, for appellee.

FESS, Judge.

This is an appeal on questions of law from a judgment entered on a verdict for plaintiff in the sum of $8,500.

Upon the voir dire, one of the jurors, Fussnecker, stated that he carried automobile liability insurance in the Motorists Mutual Insurance Company. (It appears from the briefs that this company carried the insurance upon the defendant.)

Challenge by the plaintiff for cause was sustained. The error assigned is not that the interrogatory relating to liability insurance was improper; but defendant contends that inasmuch as the plaintiff could have exercised a peremptory challenge, the challenge for cause should have been overruled. Since a qualified juror replaced the discharged juror, it is difficult to perceive how the defendant was or could be prejudiced by the sustention of the challenge for cause. Unless an abuse of discretion is clearly shown with regard to rulings on the selection and qualification of jurors, they do not constitute ground for reversal. Thus, the determination of a challenge on suspicion of prejudice or partiality will not, unless there be a clear abuse of discretion by which a party has been deprived of his right to an impartial jury, be regarded as a ground of reversal of the judgment, whether such challenge be sustained or overruled. 3 Ohio Jurisprudence 2d 741, 742, Section 763; 4 Ohio Jurisprudence 2d 156, 157, Section 923; Dew v. McDivitt, 31 Ohio St. 139; Lingafelter v. Moore, 95 Ohio St. 384, 117 N.E. 16; Pearson v. Gardner Cartage Co., Inc., 148 Ohio St. 425, 76 N.E.2d 67; Lake Shore & M. S. Ry. Co. v. Reynolds, 21 Ohio Cir.Ct.R. 402, 11 Ohio Cir.Dec. 701; Weaver v. Gale, Ohio App. 91 N.E.2d 808; Nardi v. Reliable Trucking Co., 85 OhioApp. 122, 81 N.E.2d 411; Sutfin v. Burton, 91 Ohio App. 177, 104 N.E.2d 53. An 'abuse of discretion' connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the court. Steiner v. Custer, 137 Ohio St. 448, 31 N.E.2d 855; Klever v. Reid Bros. Express, Inc., 154 Ohio St. 491, 96 N.E.2d 781. Furthermore, as stated by Shauck, J., in Loudenback v. Lowry, 1889, 4 Ohio Cir.Ct.R. 65, 2 Ohio Cir.Dec. 422, 'The plaintiff's right was to have his cause submitted to a competent jury. It was not material that this particular juror should sit, and his place was filled by one whose legal qualifications have not been questioned.'

Error is assigned also to the admission of testimony of a deputy clerk of the Probate Court relating to the life expectancy of the plaintiff based upon the American Experience Table. Mortality tables are frequently employed in wrongful death cases and to appraise loss of earnings in personal injury cases wherein injuries are shown to be permanent. Such tables are not conclusive, and the jury should be so instructed. 25 C.J.S., Damages, § 81, p. 594. However, the failure of the...