Montanari v. Haworth

• Decision Date: 22 May 1923
• Docket Number: 17667
• Citation: 140 N.E. 319,108 Ohio St. 8
• Parties: Montanari v. Haworth.
• Court: Ohio Supreme Court

140 N.E. 319

108 Ohio St. 8

Montanari v. Haworth.

No. 17667

Supreme Court of Ohio

May 22, 1923

Negligence-Pleading-Affirmative defence construed-Burden of proof- Charge to jury-Automobile Collision Violation of speed law-Attachment for criminal liability-Section 11819, General Code-Argument to jury-Misconduct of counsel.

1. In an action for damages claimed to have been caused by the negligent act of the defendant, his answer, which, in addition to a general denial, contained an averment that whatever injuries plaintiff sustained were caused by the negligence of a third party therein named, does not state an affirmative defense, and an instruction of the court which places upon the defendant the burden of proving the negligence Of such third party, and that such negligence was the proximate cause of Plaintiff's injury, is erroneous and prejudicIal to the defendant.

2. Where damages are caused by the owner and driver of an automobile as the result of his violation of a criminal law et the state, and an action is brought by the person injured to recover therefor, such liability was criminally incurred and an order of attachment is authorized by paragraph 10 Section 11819, General Code.

This action was instituted in the court of common pleas of Muskingum county by the filing of a petition by Elizabeth Haworth, as plaintiff, wherein she sought to recover from William Montanari damages which she claimed to have sustained by reason of injuries caused by the negligence of Montanari in driving his automobile on the public highway. In this statement, and in the opinion, the parties will be referred to as plaintiff and defendant as they appeared in the trial court.

The plaintiff at the time in question was riding in an automobile owned and driven by one T. Glenn Denny, whose guest, with others, she then was. That automobile and the automobile of the defend ant met in collision, and it was charged in the petition that such collision was the result of the negligent acts of the defendant in driving his automobile at a speed more than 30 miles an hour in violation of the laws of the state, driving at a speed greater than was reasonable or proper having regard for the width, traffic, uses, and the usual rules of the road, and driving on the wrong side of the highway, that is, on the north instead of on the south side thereof, the latter being the defendant s right side of the road.

Pursuant to the direction of a precipe, summons was issued directed to the sheriff of Franklin county, and an order of attachment and garnishment was also issued to the sheriff of Muskingum county. Thereafter, on October 28, 1920, an amendment to the petition was filed, wherein it was averred that at the time of the injury the plaintiff was and still is a resident of Muskingum county, and that the defendant was at the time of the injury, and still is, the owner of the motor vehicle which he was then driving, as described in the petition.

The defendant by answer admits the residence of the plaintiff to be in Muskingum county; that on the date stated plaintiff was riding in the automobile of T. Glenn Denny as his guest, and that said automobile and the automobile of the defendant collided, and the plaintiff was injured. Then follows this paragraph:

"The defendant denies each and every allegation contained in said petition not herein expressly admitted, and says further that the collision of said automobiles was caused wholly without any fault on the part of defendant, and that whatever injuries the plaintiff sustained were caused by the negligence of the said T. Glenn Denny in operating the automobile in which plaintiff was riding or by the act of plaintiff contributed thereto."

The reply of the plaintiff was a general denial. The trial resulted in a verdict for the plaintiff, upon which judgment was rendered, and that judgment was affixed by the Court of Appeals.

The order of attachment was issued upon the ground that the defendant "has fraudulently or criminally contracted the debt, or incurred the obligations for which suit is about to be or has been brought." The automobile had been taken and received from the defendant by Fred Arter as bailiff of the municipal court, from which court a warrant had been theretofore issued for the arrest of the defendant on a charge of operating his automobile at an unlawful rate of speed, and Fred Arter was named as a garnishee in the attachment proceeding in this case. At the same time that this judgment was rendered in the court of common pleas that court also heard and overruled the motion of the defendant to discharge the attachment, and found the same to be a valid lien upon the property of the defendant, but found further that further consideration and determination of that question should be postponed, as it appeared from the return of the writ of attachment and garnishment and the answer of the garnishee that the property sought to be attached, and which was garnisheed in the hands of Fred Arter, was thereafter taken out of the possession of the garnishee under a writ of replevin in an action pending in the same court, wherein the question of the priority of the lien of the plaintiff over that claimed by the plaintiff in the replevin suit was in issue.

Mr John C. Bassett, for plaintiff in error.

Messrs. O'Neal, Pugh, Ribble Bainter, For defendant in error.

MATTHIAS J.

Notwithstanding the averment of the answer that "whatever injuries the plaintiff sustained were caused by the negligence of the said T. Glenn Denny in operating the automobile in which plaintiff was riding, or by the acts of plaintiff contributed thereto," the burden of proof devolved upon the plaintiff, and before she was entitled to a verdict it was incumbent upon her to prove by a preponderance of the evidence in the case that the defendant was negligent in the operation of his automobile as charged in the petition, and that such negligence was the proximate cause of the injury sustained by the plaintiff.

In the answer there was no admission of negligence on the part of defendant, no confession and avoidance. The averment that the injury was caused, not by the defendant, but by a third party, does not constitute an affirmative defense. Admittedly from the statements of the pleadings the injury resulted from the collision of the two auto mobiles, and there was contention as to whose negligence caused the collision, that of T. Glenn Denny, the owner and driver of one of the automobiles, or the defendant, the owner and driver of the other. But the ultimate question was not who was negligent, or whose negligence caused the injury, but was the defendant negligent in a manner proximately causing the injury? The attitude of the defendant under the pleadings was defensive. The issue was made by general denial, and the further averment, above quoted, did not change the issue or in any wise change or affect the burden of proof. The plaintiff held the affirmative of the proposition throughout the trial of the case, and the burden of proof did not shift. McNutt & Ross v. Kaufman, 26 Ohio St. 127; Klunk v. Hocking Valley Ry. Co., 74 Ohio St. 125, 77 N. E., 752; List & Son Co. v. Chase, 80 Ohio St. 42, 88 N. E., 120, 17 Ann.Cas. 61; Ginn, Admr., v. Dolan, 81 Ohio St. 121, 91 N. E., 1123, 135 Am.St. 761, 18 Ann.Cas. 204; Newman Mfg. Co. v. Fisler, 81 Ohio St. 499, 91 N. E., 1135, and Dykeman v. Johnson, 83 Ohio St. 126, 93 N. E., 626.

This principle, which is well established, was disregarded by the trial court in the general charge when it used the following language:

"An issue raised by...