Rhoades v. City of Cleveland

• Decision Date: 12 March 1952
• Docket Number: No. 82699,82699
• Citation: 105 N.E.2d 2,157 Ohio St. 107
• Parties: , 47 O.O. 91 RHOADES v. CITY OF CLEVELAND.
• Court: Ohio Supreme Court

Page 107

157 Ohio St. 107

105 N.E.2d 2, 47 O.O. 91

RHOADES v. CITY OF CLEVELAND.

No. 82699.

Supreme Court of Ohio.

March 12, 1952.

Syllabus by the Court

Where claimed errors in the charge of the court are errors of omission and not errors of commission, unless counsel has requested the court to supply the omissions, such errors of omission will not ordinarily justify a reversal. Section 11560, General Code, applied.

Plaintiff instituted suit against defendant to recover for personal injuries received when the automobile operated by plaintiff was struck by defendant's streetcar.

In the Common Pleas Court, the first trial resulted in a verdict and judgment for the defendant, a second trial in a verdict and judgment for the plaintiff, and a third trial in a verdict and judgment for the defendant. All three of those judgments have been reversed by the Court of Appeals.

By reason of allowance of a motion to certify, the cause is now before this court on appeal from the judgment of the Court of Appeals reversing the last one of those three Common Pleas Court judgments.

Walter Booth and Harry Clark, Cleveland, for appellee.

Robert J. Shoup and Sheldon Wirts, Cleveland, for appellant.

TAFT, Judge.

According to the journal entry of the Court of Appeals, the judgment of the Common Pleas Court was 'reversed for error of law in failing to separate and define the issues of fact and for failing to charge the law upon such issues * * * no other error appearing in the record.'

Until the supplemental brief was filed by plaintiff in this court, after allowance of the motion to certify and only two days before argument on the merits, plaintiff did not contend that there was any error in anything which the trial court said in its charge to the jury. No such error is referred to by the Court of Appeals either in its journal entry or in its opinion. However, we have considered the belated contention in plaintiff's supplemental brief, that some of the language used by the trial judge represented an erroneous charge with respect to the statutory 'assured-clear-distance-ahead' rule. We are of the opinion that the language referred to was not intended as and cannot be understood as a charge relating to that rule.

The record discloses that, at the end of his charge, the trial judge stated, 'Any suggestions by counsel?,' and that plaintiff's counsel then stated, 'We have nothing to suggest.' The record then indicates a conference between court and counsel, after which the court, apparently at the request of defendant's counsel, gave certain additional instructions to the jury. The record discloses further that 'the plaintiff excepted to the charge of the court, after argument, generally, under the statute.'

As a general rule, in the absence of statutory provisions to the contrary, a party, represented by counsel, may not ordinarily avail himself of an error which was not called to the attention of the trial judge and which could and might have been corrected by the trial judge if it had been called to his attention. Adams v. State, 25 Ohio St. 584.

The reasons for this general rule are stated in the opinion in State v. Tudor, 154 Ohio St 249, at page 257, 95 N.E.2d 385. As pointed out in that case at page 258 of 154 Ohio St., at page 389 of 95 N.E.2d there is an Ohio, by reason of certain statutory provisions, Section 11560, General Code, an exception to this general rule where errors in the charge of the court are involved. See Columbus Ry. Co. v. Ritter, 67 Ohio St. 53, 58, 64, 65 N.E. 613; State v. McCoy, 88 Ohio St. 447, 454, 103 N.E. 136. However, where such errors in the charge of the court are errors of omission and not errors of commission, the general rule applies, and, unless counsel has requested the court to supply the omissions, such errors of omission will not ordinarily justify a reversal. Columbus Ry. Co. v. Ritter, supra (paragraph two of the syllabus); State v. McCoy, supra (paragraph three of the syllabus); Beeler v. Ponting, 116 Ohio St. 432, 156 N.E. 599.

Thus, paragraph two of the syllabus in Columbus Ry. Co. v. Ritter, supra [67 Ohio St. 53, 65 N.E. 613] reads: 'A general exception to the charge of the court, as now permitted by section 5298, Rev.St., is effectual only as to errors of law existing in the charge as given, and does not bring in review on error an omission or failure to give further proper instructions.'

The above general rule and the exception thereto together with the limitations on that exception have, since January 1, 1936, been codified in Section 11560, General Code, as follows: 'An exception shall not be necessary, at any stage or step of the case or matter, to lay a foundation for review whenever a matter has been called to the attention of the court by objection, motion, or otherwise and the court has ruled thereon. Error can be predicated upon erroneous statements contained in the charge, not induced by the complaining party, without exception being taken to the charge.' (Emphasis added.)

However, plaintiff argues and the Court of Appeals held that the general rule does not apply with respect to errors of omission in the charge, where such errors are so flagrant as to amount to a failure by the trial court 'to separate and define the issues of fact and * * * charge the law upon such issues.' The following decisions of this court are cited in support of that argument: Baltimore & Ohio R. Co. v. Lockwood, 72 Ohio St. 586, 74 N.E. 1071; Jones v. People's Bank Co., 95 Ohio St. 253, 116 N.E. 34; Ohio Collieries Co. v. Cocke, 107 Ohio St. 238, 140 N.E. 356; Telinde v. Ohio Traction Co., 109 Ohio St. 125, 141 N.E. 673; Lima Used Car Exchage Co. v. Hemperly, 120 Ohio St. 400, 166 N.E. 364; Simko v. Miller, 133 Ohio St. 345, 13 N.E.2d 914.

Although paragraph one of the syllabus in Baltimore & Ohio R. Co. v. Lockwood, supra, has been generally recognized as dealing with this problem, as to when errors of omission in a charge are so flagrant as to justify a reversal where they have not been called to the trail court's attention, the holding in that case was that the trial court should have directed a verdict for the defendant; and this court therefore rendered final judgment for the defendant. The report of the case does not disclose whether all of the errors of omission there condemned were called to the trial court's attention although the opinion does state that one of them was 72 Ohio St. at page 590, 74 N.E. 1071. No reference is made to Columbus Ry. Co. v. Ritter, supra. In Jones v. People's Bank Co., supra, the opinion 'per curiam' first affirmed the judgment of the Court of Appeals upon the memorandum of opinion of that court which made no reference to this problem. This court then stated that, since there would be a new trial, it would make 'further suggestions of error that would have justified the reversal.' 95 Ohio St. at page 255, 116 N.E. at page 35. After calling attention to several of these, it was pointed out at pages 260 and 261 of 95 Ohio St., at page 36 of 116 N.E. that 'substantial compliance with the doctrine laid down in the syllabus of Baltimore & Ohio R. Co. v. Lockwood,' supra, was called for, but the opinion does not mention whether the errors of omission had been called to the trial court's attention and does not mention Columbus Ry. Co. v. Ritter, supra. This problem is not mentioned in the syllabus in Ohio Collieries Co. v. Cocke, supra. However, in the opinion at page 243 of 107 Ohio St., at page 358 of 140 N.E. it is stated that the trial judge substantially complied with his duty 'to separately and definitely state to the jury the issues of fact made in the pleadings, accompanied by such instructions as to each issue as the nature of the case may require.' Baltimore & Ohio R. Co. v. Lockwood, supra, was cited in support of that duty. This problem is also not mentioned in the syllabus in Lima Used Car Exchange Co. v. Hemperly, supra, but in the opinion 120 Ohio St. at page 405, 166 N.E. at page 366, in discusing other grounds of error not regarded by the court as justifying a reversal, it is stated, 'we may say that in the event of a retrial it would be advisable to give a closer adherence to the rule announced in the cases of Baltimore & Ohio R. Co. v. Lockwood * * * and Telinde v. Ohio Traction Co.'

Paragraph five of the syllabus in Simko v. Miller, supra [133 Ohio St. 345, 13 N.E.2d 914], reads: 'In submitting a case to the jury, it is the duty of the court to separately and definitely state to the jury the issues of fact made by the pleadings, accompanied by such instructions as to each issue as the nature of the case may require.'

Although the court does have such a duty, it does not follow that the omission to perform that duty would be reversible error in the event that counsel had not called such omission to the court's attention. See Beeler v. Ponting, supra; Columbus Ry. Co. v. Ritter, supra; State v. McCoy, supra, 88 Ohio St. 450, 103 N.E. 136. The syllabus in Simko v. Miller, supra, does not state that it would be and the opinion discloses that the judgment of reversal by this court was based not merely upon failure to comply with the 'rule set forth in Baltimore & Ohio R. Co. v. Lockwood' but also upon 'erroneous statements of law contained in the general charge.' At page 358 of 133 Ohio St., at page 920 of 13 N.E.2d. Furthermore, it is significant that Judge Gorman in his opinion italicized the second sentence of Section 11560, General Code, which has hereinbefore been quoted. It may be observed that, prior to January 1, 1936, the corresponding part of that section contained a much broader description of what errors in the charge could be complained of without calling them to the attention of the trial court, when it provided that 'a general exception taken to any charge of any court to a jury shall apply to any and all errors of law which may exist in such charge that are material and prejudicial to the substantial rights...