Pierson v. Hermann

• Decision Date: 28 September 1965
• Citation: 3 Ohio App.2d 398,210 N.E.2d 893
• Parties: , 32 O.O.2d 533 PIERSON, Appellant, v. HERMANN, Appellee.
• Court: Ohio Court of Appeals

Page 398

3 Ohio App.2d 398

210 N.E.2d 893, 32 O.O.2d 533

PIERSON, Appellant, v. HERMANN, Appellee.

Court of Appeals of Ohio, Tenth District, Franklin County.

Sept. 28, 1965.

Volkema, Redmond & Wolske and Russell H. Volkema, Columbus, for appellant.

Dresbach, Crabbe, Newlon, Bilger, Brown & Jones, Charles E. Brown and Wilbur W. Jones, Columbus, for appellee.

TROOP, Judge.

Plaintiff in the trial court, Ralph Pierson, appellant here, received a judgment against the defendant in the trial court, Earl M. Hermann, and then filed a motion for a new trial which was overruled. This appeal by the plaintiff is from that judgment and final order. The judgment is predicated upon the verdict of a jury.

The cause of action arose out of an automobile accident, the plaintiff claiming property damage, personal injury, and aggravation of an existing injury as a result of the negligence of the defendant. A jury trial resulted in a verdict for the plaintiff in the sum of $142 for the amount of the property damage prayed for, and allowing nothing for personal injury or aggravation to existing injuries.

Seven assignments of error are advanced to support the appeal. The first two can be considered together. They are that the court erred in overruling the motion of the plaintiff for a directed verdict in his favor and in permitting the jury to consider the issue of contributory negligence. Assume that the court was in error. It cannot be said that the error was prejudicial when the jury returned a verdict for the plaintiff. The plaintiff won the lawsuit and the jury had to find the defendant negligent, and certainly with that result, did not find the plaintiff contributorily negligent. 4 Ohio Jurisprudence 2d 355, Section 1035, sets out the following rule:

'* * * where the court might properly have rendered judgment for one party on the pleadings but instead submitted the case to the jury, any error in the instruction will be regarded as immaterial if the jury render a verdict for the same party. Similarly, where the court should have directed a verdict, error in the instructions given which otherwise would be prejudicial is rendered harmless if the jury finally renders the verdict which should have been directed.'

The first two assignments of error are not well taken.

Plaintiff's third and fourth assignments of error have to do with a comment made by counsel for defendant in the course of his final argument. It is urged that the comment constituted prejudicial misconduct sufficiently serious to entitle the plaintiff to a new trial, particularly since the trial court failed to charge the jury especially to disregard the statement. The objectionable comment is as follows:

'* * * we have been in cases before where people have tried to put soemthing over on somebody, but this is the most ridiculous I have ever seen.'

It is difficult to locate tests relative to the propriety of comments. It is clear that there are limits beyond which counsel may not go without risking a reversal. Some descriptive terms used in the older cases to describe the improper are 'vicious,' 'reprehensible,' 'grossly abuses his privilege,' and 'scurrilous.' It is not uncommon to find 'persistent' 'gross abuse' in cross-examination and argument criticized and the basis for a new trial or reversal.

Some more recent decisions emphasize the element of sound discretion in determining the propriety. The third paragraph of the syllabus in the case of Hall v. Burkert (1962), 117 Ohio App. 527, 193 N.E.2d 167, reads as follows:

'In argument to the jury in a negligence action, counsel may persuade and advocate to the limit of his ability and enthusiasm, so long as he does not misrepresent evidence or go beyond the limits of propriety set upon his arguments by the trial court in its sound discretion.'

Misconduct of counsel in argument is soundly criticized and the necessity of prompt intervention of the trial court in instances of abuses is emphasized in Golamb v. Layton (1950), 154 Ohio St. 305, 95 N.E.2d 681. Nevertheless, the place of sound discretion is recognized. Paragraph four of the syllabus is as follows:

'Such matters often rest in the cound discretion of the trial court and where it is apparent from the peculiar facts and circumstances of the particular case that such discretion has not been abused a reviewing court will not ordinarily interfere.'

A proposition announced in 4 Ohio Jurisprudence 2d 213, Section 964, seems to have particular application in the instant case. It reads as follows:

'* * * A judgment will not be reversed because counsel in his argument used language which was not entirely justifiable, because he overstepped the bounds of professional conduct and the trial court neglected its official duty in permitting him to do so, * * * where the reviewing court is unable to conclude that the verdict was influenced thereby or that a different verdict would have been rendered if the improper language had not been used.'

It is noted that the verdict in this case was for the plaintiff. The record reveals that the Industrial Commission paid the hospital bills and surgeons' fees in an operation to correct ruptured discs in plaintiff's vertebrae due to an industrial accident prior in time to the accident out of which this cause of action arose, and which the jury could have believed was the sole cause of the injuries suffered by the plaintiff, which makes it difficult to be sure that the verdict would have been different if the improper language had not been used. The third and fourth assignments of error are not well taken.

Assignment of error number five is addressed to special instructions given and not given. The court gave a special instruction on contributory negligence offered by the defendant and refused to give one holding the defendant negligent per se offered by the plaintiff. In addition to the comments made in connection with assignments of error one and two, which are pertinent here, attention is called to the case of Miller v. Johnson (1953), Ohio App., 123 N.E.2d 61, 68 Ohio Law Abst. 513, decided by this court when the Second District, and which bears a close resemblance to the instant case.

Paragraphs one and two of the headnotes, on page 514, read as follows:

'1. A failure to give requested charges based on the question of the negligence of defendant as a matter of law could not have been prejudicial to plaintiff where the verdict of the jury was in favor of plaintiff and was grounded upon the negligence of defendant.

'2. The improper charging of the jury on contributory negligence could not have been prejudicial to plaintiff where the verdict indicates that the jury found plaintiff was not guilty of contributory negligence.'

As pointed out above, a verdict for the plaintiff means that the jury must have found the defendant negligent and the plaintiff free of contributory negligence.

Objection to the special instruction relating to the claimed aggravation to existing injury is not so easily resolved. Defendant's special instruction numbered seven, which the court gave to the jury, says that the jury is not to award damages for aggravation unless the defendant proved 'by a preponderance of the evidence, that such aggravation, if any, was substantial.' Objection is strenuously made to the use of the word 'substantial.' Counsel for the defendant rely upon the language used in the appropriate instruction suggested in 2 Ohio Jury Instructions which contains the word 'substantial.' The instruction suggests as an alternate term the word 'appreciable.'

Webster defines appreciable as 'capable of being perceived and recognized or of being weighed and appraised.' Substantial means 'something of moment' or 'an important or material matter, thing or part.' The second paragraph of the syllabus in Lopresti v. Community Traction Co. (1954), 160 Ohio St. 480, 117 N.E.2d 2, states:

'In a wrongful death action, where it is claimed that the death was accelerated by the wrongful act of the defendant, recovery can be had only where it is shown by the evidence that death was accelerated by an appreciable period of time as a direct result of the wrongful act.'

In our opinion, a concept of 'substantial' injury is not appropriate in determining liability under negligence law. It invites a jury to distinguish between a small, little or...