Miller v. McAllister, 35778

• Decision Date: 15 July 1959
• Docket Number: No. 35778,35778
• Citation: 169 Ohio St. 487,8 O.O.2d 485,160 N.E.2d 231
• Parties: , 8 O.O.2d 485 MILLER, Appellee, v. McALLISTER, Appellant.
• Court: Ohio Supreme Court

Page 487

169 Ohio St. 487

160 N.E.2d 231, 8 O.O.2d 485

MILLER, Appellee, v. McALLISTER, Appellant.

No. 35778.

Supreme Court of Ohio.

July 15, 1959.

Syllabus by the Court

1. Sections 2315.12, 2315.14, 2315.15, 2315,16 and 2315.17, inclusive, Revised Code, as amended in 1955 and dealing with the subjects of special verdicts and interrogatories, establish the following principles: (1) A jury may not render a special verdict of its own volition; (2) a special verdict form must be submitted by a court to a jury in writing when requested by either party to an action and must be as directed by the court; (3) in rendering a special verdict a jury is required to find separately 'upon each determinative issue'; (4) there is no provision for a narrative form of verdict.

2. Under Section 2315.16, Revised Code, written interrogatories shall be submitted to a jury upon request of either party in either a special or general verdict case and are to be confined to findings 'upon particular material allegations contained in the pleadings controverted by an adverse party'; and such interrogatories are to test the correctness of the verdict returned and contemplate essentially findings on controlling questions of fact.

3. In a negligence action, a jury returning a special verdict must find separately on each 'determinative issue.' Ordinarily, such findings in response to questions should embrace separately the subjects of 'negligence,' 'contributory negligence,' where it is an issue, and 'proximate cause,' and in an appropriate case, 'assumption of risk'; and, where the issues are determined for plaintiff, the verdict should include the amount of recovery agreed on, leaving nothing for the court to do but to enter the judgment called for by the findings made in the special verdict returned, provided they are supported by the required degree of proof.

4. Where in a negligence action the defendant contemplates requesting a special verdict and relies on the affirmative defenses of contributory negligence and assumption of risk, the better and safer practice is to set out such defenses separately in the answer.

5. In a special verdict case, the instructions to the jury, special and general, should be largely the same as those which would be given in a case where a general verdict is to be returned, with such additions and adaptations as may be appropriate.

6. In a negligence action, the so-called 'emergency doctrine' applies only where there was a sudden and unexpected occurrence of a transitory nature which demanded immediate action without time for reflection or deliberation and does not comprehend a static condition which lasted over a period of time.

In this action originating in the Court of Common Pleas of Stark County, Alvin L. Miller, plaintiff, seeks to recover damages for personal injuries against Clarence I. McAllister, defendant, on the claim that such injuries were directly attributable to the negligence of McAllister's employee while acting in the course of his employment.

The answer, after certain formal admissions, denies generally the allegations of the petition and then avers that the injuries sustained by plaintiff 'occurred directly and proximately as a result of the negligence, carelessness and heedlessness of the plaintiff and by reason of his lack of ordinary care for his own safety.'

Trial of the cause was before the court and a jury and was submitted to the jury on a special verdict form prepared by the court. In such special verdict, Miller's damages were fixed at $38,300, and the court entered judgment for that amount, overruling the motions of McAllister for a directed verdict and for judgment in his favor.

An appeal to the Court of Appeals on questions of law resulted in a reversal of the judgment below and a remand of the cause for new trial. One judge concurred in the reversal but was of the opinion that McAllister should have final judgment on the basis of the jury's answer to question number four of the special verdict.

Allowance of McAllister's motion to require the Court of Appeals to certify the record places the cause here for decision on the merits.

As disclosed by the bill of exceptions, Wednesday, March 3 1954, was a cold, snowy and blustery day with poor visibility. Miller was part owner and operator of a garage located about two miles south of U.S. Route No. 30 in the western part of Stark County. Early on the afternoon of the day mentioned, Miller received a telephone call requesting assistance in starting a truck stalled in a snow bank on the Stanwood-North Lawrence Road west of Massillon and a half mile or so north of the Miller garage. On Miller's second trip in a pickup truck to the scene with a helper, he parked his truck facing the stalled truck with the front bumpers of the two vehicles only a few feet apart. A snowplow had cleared the road to a width of approximately 10 feet and there were snow banks on either side of the cleared space. In working around the motor of the stalled truck, plaintiff assumed a position between the two trucks. A school bus, engaged in the early transportation of children to their homes because of the bad weather and being driven in a blinding snowfall by McAllister's employee, approached from the south at slow speed and collided with the rear of Miller's truck, propelling it forward and pinning Miller between the bumpers of the two trucks, whereby his right leg was so badly crushed as to require amputation at the knee.

Day, Cope, Ketterer, Raley & Wright, Canton, and Don W. Montgomery, Celina, for appellant.

Amerman, Burt, Shadrach, McHenry & Jones, Canton, for appellee.

ZIMMERMAN, Judge.

In this court McAllister's assignments of error relate (1) to the failure of the trial court to direct a verdict in his favor on the evidence, particular acts being enumerated wherein Miller was claimed to have been negligent; (2) to error on the part of the Court of Appeals in refusing to enter judgment for him on the strength of the jury's answer to question number four in the special verdict; (3) to error by the Court of Appeals in holding that assumption of risk is not presented by the evidence; (4) to error by the Court of Appeals in determining that, when contributory negligence and assumption of risk are shown by the evidence to have existed, they must be presented by separate and distinct questions in a special verdict; and (5) to error on the part of both lower courts in invoking the sudden-emergency doctrine to excuse Miller's negligence.

Since the institution and trial of this cause occurred in 1956, it is conceded that the new remedial sections of the Code covering special verdicts, effective October 4, 1955, are applicable. See Smith v. New York Central Rd. Co., 122 Ohio St. 45, 170 N.E. 637.

These new sections were enacted after the decision of this court in Landon v. Lee Motors, Inc., 161 Ohio St. 82, 118 N.E.2d 147, and they changed materially the then existing law relating to special verdicts. For a better understanding of the discussion which follows, we think a comparison of the old and new sections, set out in parallel columns, will be helpful. Old

§ 2315.12 Verdict of jury.

'The verdict of a jury must be either general or special.

'Unless otherwise directed by the court, a jury may render either a general or a special verdict, in all actions.'

§ 2315.14 Special verdict.

'A special verdict is one by which the jury finds facts only as established by the evidence; and it must so present such facts, but not the evidence to prove them, that nothing remains for the court but to draw, from the facts found, conclusions of law.'

§ 2315.15 Court to direct a special verdict.

'When requested by either party, the court shall direct the jury to give a special verdict in writing, upon any issues which the case presents.'

§ 2315.16 Finding on questions of fact; journal entry.

'When either party requests it, the court shall instruct the jurors, if they render a general verdict, specially to find upon particular questions of fact, to be stated in writing, and shall direct a written finding thereon. The verdict and finding must be entered on the journal and filed with the clerk.'

§ 2315.17 Special finding of facts to control.

'When a special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court may give judgment accordingly.'

New

's 2315.12 Verdict of jury.

'The verdict of a jury must be either general or special.

'Unless otherwise directed by the court, a jury shall render a general verdict.'

§ 2315.14 Special verdict.

'A special verdict is one by which the jury finds separately upon each determinative issue tried by the jury so that nothing remains for the court but to render judgment in accordance with such findings.'

§ 2315.15 Court to direct a special verdict.

'When requested by either party, the court shall submit in writing each determinative issue to be tried by the jury and direct the jury to give a special verdict.'

§ 2315.16 Finding on material allegations; journal entry.

'When either party requests it, the court shall instruct the jurors, if they render a general or special verdict, specially to find upon particular materrial allegations contained in the pleadings controverted by an adverse party, and submitted by the court in writing, to the jury, and shall direct the jury to return a written finding thereon. The verdict and finding must be entered on the journal and filed with the clerk.'

§ 2315.17 Special finding of facts to control judgment.

'When a special finding under section 2315.16 of the Revised Code is inconsistent with the verdict, the former shall control the latter, and the court may give judgment accordingly.'

It will be observed that under the new sections:

1. A jury may not render a special verdict of its own volition. Section 2315.12, Revised Code.

2. A special verdict form must be submitted by the court in writing when requested by either party (...