Pryor v. Webber

Decision Date23 September 1970
Docket NumberNo. 69-414,69-414
Parties, 52 O.O.2d 395 PRYOR et al., Appellants, v. WEBBER, Appellee.
CourtOhio Supreme Court

Syllabus by the Court

1. In a tort action the measure of damages is that which will compensate and make the plaintiff whole.

2. The collateral source rule is an exception to the general rule of compensatory damages in a tort action, and evidence of compensation from collateral sources is not admissible to diminish the damages for which a tort-feasor must pay for his negligent act.

3. Under the collateral source rule, benefits in the form of diminished wages, received by a plaintiff from his employer during the period he is not able to work because of a tort-feasor's negligent act are collateral benefits and are not admissible on the issue of damages. However, if the tort-feasor claims that benefits received are not collateral but are direct benefits, the burden of establishing that such benefits are direct benefits, and therefore admissible on the issue of damages, is on the tort-feasor.

4. Where, on direct examination of a plaintiff in a negligence action, plaintiff testifies that during the period of disability when she was unable to work due to the wrongdoer's act, she 'lost' wages in a specified amount, the admission, on cross-examination and over objection, of evidence that during such period she received diminished wages in an unspecified amount from her employer, for the purpose of affecting her credibility, either by impeachment of her testimony that wages were 'lost' or by affecting the weight of her testimony by presenting a motivation, other than injury, for not working, constitutes prejudicial error.

This is an action instituted in the Common Pleas Court of Franklin County to recover damages for personal injuries allegedly suffered by Ark E. Pryor and Joann M. Pryor, husband and wife, by reason of a collision between an automobile operated by Ark E. Pryor, in which Joann M. Pryor was a passenger, and an automobile operated by defendant, John J. Webber. The petition alleges three causes of action, two on behalf of Ark E. Pryor, to recover damages for his personal injuries and for medical and hospital expenses incurred by his wife and for loss of services and consortium, and a third cause of action by Joann M. Pryor to recover damages for her personal injuries, pain and suffering, loss of earnings and impairment of earning capacity.

The case was tried to a jury, and Mrs. Pryor testified as a witness on her own behalf. The following questions and answers were given on direct examination:

'Q. How long were you off work?

'A. Approximately 90 days.

'Q. Was this the result of this injury?

'A. Yes, it was.

'Q. How much were you earning per day?

'A. Approximately 1760 a day.

'Q. And how much does this total up to, if you know?

'A. Approximately $1,684.

'Q. So, in other words, then, you lost 1600 and how many dollars?

'A. Approximately 84.'

On cross-examination of Mrs. Pryor, after preliminary questions reiterating the above testimony over the objection of her counsel, the following testimony was given:

'The Reporter: (Reading) Question: Well, now, my question is did you lose it-as Mr. Volkema asked the question, did you lose that sum of money?

'A. I would say yes.

'Q. Well, now, Mrs. Pryor, you were paid during the time you were off, weren't you?

'A. Not all the time, no.

'Q. You were paid up until the time that your company's doctor said you were able to work, weren't you?

'Mr. Volkema: We'll object again. This is her own policy, her own money that is paid for any time that she's off.

'Mr. Graham: She said she lost the wages, and the fact is she did not.

'Mr. Volkema: If the Court please, we'll object. Anything she received was something that she had paid into the company under her own contract and is not to go to the benefit of the defendant.

'The Court: Of course, members of the jury, if this was a matter where-of an insurance policy or some insurance between company and employee for loss of work due to injury or accident, she would be entitled to collect this money anyway, but, of course, the explanation-she would be entitled to collect that because that's a collateral matter entirely, you see, but I'm permitting them to cross-examine her previous testimony because that is the duty of the attorney to do that. You may go ahead and proceed.

'Mr. Graham: Thank you, your Honor, I don't want to belabor this.

'The Court: That's all right.

'Q. (By Mr. Graham) The fact is that the witness testified she lost the money, and, Mrs. Pryor, isn't it the true fact that you received your regular salary during the time you were off right up until your company's doctor said you were able to work?

'Mr. Volkema: Object again.

'Q. (By Mr. Graham) Now, isn't that the truth?

'The Court: The objection will be overruled and the court has already explained to the jury the matter.

'A. I was paid so much, but I did not get my full pay.

'Q. All right. So the fact is you did not lose this sum of money that Mr. Volkema asked you about yesterday?

'A. Not all of it, no.'

At the conclusion of all the evidence, the trial court instructed the jury that the defendant was negligent as a matter of law. The questions whether the collision was the proximate cause of plaintiff's injuries and the nature and extent of the injuries and damages were submitted to the jury.

The jury returned a verdict in favor of the defendant. Upon appeal, the Court of Appeals affirmed the judgment. The cause is now before this court pursuant to the allowance of a motion to certify the record.

Volkema, Redmond & Post and Russell H. Volkema, Columbus, for appellants.

Crabbe, Newlon, Potts, Schmidt, Brown & Jones and Graham & Dutro, Columbus, for appellee.


The principal contention of appellants in this appeal is that prejudicial error was committed by the trial court in allowing the defense to elicit, on cross-examination of plaintiff, over objection, that payments of money were made to plaintiff by her employer during the period she was unable to work as a result of the accident. It is urged that such was in violation of the collateral source rule.

The collateral source rule has been defined as 'the judicial refusal to credit to the benefit of the wrongdoer money or services received in reparation of the injury caused which emanates from sources other than the wrongdoer.' Maxwell, The Collateral Source Rule in the American Law of Damages, 46 Minn.L.Rev. 669, 670.

In Ohio, as elsewhere, it is a rule of universal application in a tort action, that the measure of damages is that which will compensate and make the plaintiff whole. Lawrence Rd. Co. v. Cobb, 35 Ohio St. 94; Mahonin Valley Ry. Co. v. DePascale, 70 Ohio St. 179, 71 N.E. 633. To such general rule the collateral source rule is a recognized exception. 25 C.J.S. Damages § 99(1), p. 1012; Cunningham v. Rederiet Vindeggen, 2 Cir., 333 F.2d 308.

'* * * Thus the plaintiff who has been paid his salary or a pension during disability, or had his medical expenses paid for by another, or out of the proceeds of an accident insurance policy, may still recover full damages for these items from a defendant who is liable for the injury. To this extent, plaintiff may get double payment on account of the same items. The defendant wrongdoer should not, it is said, get the benefit of payments that come to the plaintiff from a 'collateral source' (i. e., 'collateral' to the defendant).' 2 Harper and James, The Law of Torts, 1343, Section 25.22.

This court, without identification of the rule as such, has refused to allow a defendant tort-feasor the benefit of a surgeon's bill incurred as a result of the defendant's act, which bill was voluntarily paid by township trustees before trial. Klein v. Thompson, 19 Ohio St. 569. In Trumbull Cliffs Furnace Co. v. Shachovsky, 111 Ohio St. 791, 146 N.E. 306, this court allowed a plaintiff to recover damages for personal injuries from a third party tort-feasor, even though the plaintiff had previously received workmen's compensation benefits for his injuries. In the opinion, at page 796, 146 N.E. at page 308, it is stated:

'* * * the compensation provided by the Workmen's Compensation Law is in the nature of an occupational insurance, and, like general insurance, cannot be deducted and treated as an offset for claims for damages for wrongful injury or death.'

Lower courts in Ohio have also had occasion to consider and apply the rule, although the rule has not always been identified as such. Levy. v. Coon, 11 Ohio App.2d 200, 229 N.E.2d 747 (workmen's compensation benefits); Thompson v. Ohio Fuel Gas Co., 11 Ohio App.2d 212, 229 N.E.2d 756 (workmen's compensation benefits); Rigney v. Cincinnati Street Ry. Co., 99 Ohio App. 105, 131 N.E.2d 413 (wages); Sherer v. Smith, 85 Ohio App. 317, 88 N.E.2d 426 (medical expenses); McDowell v. Rockey, 32 Ohio App 26, 167 N.E. 589 (workmen's compensation benefits); Ohliger v. Toledo, 20 Ohio Cir.Ct.R. 142 (gratuitous physician's fees); Dernham v. Cincinnati Traction Co., 21 Ohio N.P., N.S., 418 (medical expenses paid by brother).

Since, by the collateral source rule, the receipt of collateral benefits is deemed irrelevant and immaterial on the issue of damages, if follows, as a necessary concomitant, that not only are the benefits not to be deducted but that the receipt of such benefits is not to be admitted in evidence, or otherwise disclosed to the jury. Ridgeway v. North Star Terminal & Stevedoring Co. (Alaska), 378 P.2d 647; Miller v. Schafer, 102 Ariz. 457, 432 P.2d 585; Ashley v. American Automobile Ins. Co., 19 Wis.2d 17, 119 N.W.2d 359; Wolfe v. Whipple, 112 Ill.App.2d 255, 251 N.E.2d 77; Palandro v. Bollinger, 409 Pa. 296, 186 A.2d 11; Lobalzo v. Varoli, 409 Pa. 15, 185 A.2d 557; Graves v. Poe (Tex.Civ.App.), 118 S.W.2d 969; Greyhound Corp. v. Ford (Fla.App.), 157 So.2d 427. See, also, Walker v. Missouri Pacific...

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