Rosenberry v. Chumney

• Decision Date: 25 May 1960
• Docket Number: No. 36194,36194
• Citation: Rosenberry v. Chumney, 171 Ohio St. 48, 168 N.E.2d 285, 12 O.O.2d 56 (Ohio 1960)
• Parties: , 12 O.O.2d 56 ROSENBERRY et al., Adm'rs, Appellants, v. CHUMNEY, Appellee.
• Court: Ohio Supreme Court

Page 48

171 Ohio St. 48

168 N.E.2d 285, 12 O.O.2d 56

ROSENBERRY et al., Adm'rs, Appellants, v.CHUMNEY, Appellee.

No. 36194.

Supreme Court of Ohio.

May 25, 1960.

Syllabus by the Court

Instructions given in submitting special interrogatories to a jury are a part of the charge of the court and are subject to review on appeal without the necessity of calling alleged errors of commission therein to the attention of the court by objection in any form.Section 2321.03, Revised Code.(Paragraph two of the syllabus of Kennard v. Palmer, 143 Ohio St. 1, 53 N.E.2d 908, overruled in part.)

Smith, Renner & Hanhart, New Philadelphia, for appellants.

Corsi & Miller, Dover, for appellee.

This is a wrongful death action.It was brought to recover damages for the accidental death of a ten-year-old boy in a farm machinery accident on defendant's farm.

The only question raised is one of procedure, the alleged error being based upon statements made by the trial judge in his charge to the jury relating to the submission of special interrogatories requested by the defendant.

The charge of the trial court, so far as it is pertinent to the issue in the present case, is as follows:

'Now, in connection with the verdict, and that is if you find for the plaintiffs, you will be required to answer the following interrogatories.You will have these interrogatories, and be careful and pay close attention to what the court has to say in connection herewith.* * * Now, these special interrogatories need be answered only if you return a verdict for the plaintiffs in which event you will have to answer these interrogatories, and return them with your verdict.If your general verdict is for the defendant, you need pay no attention to the interrogatories.'(Emphasis added.)

The jury returned a general verdict in favor of the defendant and pursuant to the above instructions, did not answer the interrogatories.

Plaintiffs made no objection to the form, content or the giving of the special interrogatories and did not at any time request that such interrogatories be answered or call the matter to the attention of the court.

Plaintiffs appealed to the Court of Appeals, which court reversed the judgment of the trial court on the ground that the segment of the charge of the court relating to the submission of interrogatories was prejudicially erroneous.

The cause is before this court pursuant to the allowance of a motion to certify the record.

MATTHIAS, Judge.

The single question raised by this appeal is whether plaintiffs, by their failure to object thereto, waived their right to rely upon the error of the trial court in its submission of the special interrogatories.

The determinative issue, as will subsequently appear, is whether special interrogatories submitted constitute a part of the charge of the court within the meaning of Section 2321.03, Revised Code.

It must be noted at the outset that the court committed prejudicial error in the submission of the interrogatories when it instructed the jury that it need only answer the interrogatories if its verdict was for the plaintiffs.This question was determined in the case of McFadden v. Thomas, 154 Ohio St. 405, 96 N.E.2d 254, 255, the first paragraph of the syllabus of which reads as follows:

'Where proper interrogatories are submitted to a jury under Section 11420-17, General Code [Section 2315.16, Revised Code], the jury is required to answer them if it renders a general verdict, and it is error to instruct a jury to answer such interrogatories only if it finds a verdict in favor of a particular party.'

It is the contention of the defendant, however, that the conduct of the trial court did not constitute prejudicial error because plaintiffs failed to interpose an objection or exception to the manner in which the court submitted the interrogatories.

It must be pointed out that, while the word, 'exception,' is used in the statutes and the cases, such word does not presently have the connotation that it had under the old rules of practice.Such exceptions to rulings are, by statute, no longer necessary.The word, 'exception,' as used in modern practice is defined by Section 2321.02, Revised Code, as 'an objection taken to a decision of the trial court upon a matter of law.In other words, 'exception' in modern practice means an objection or the calling of an error to the attention of the court in some manner.

It is of course the general rule that errors which arise during the course of the trial of a cause which are not brought to the attention of the court by objection, or otherwise, are waived and may not be urged for the first time on appeal.

This rule, however, does not apply to errors of commission in the charge of the court.

Section 2321.03, Revised Code, reads as follows:

'An exception is not 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.'

In Simko v. Miller, 133 Ohio St. 345, 13 N.E.2d 914, we said in the third paragraph of the syllabus:

'Under the provisions of Section 11560, General Code(116 Ohio Laws 104), erroneous statements of law in a charge, not induced by the complaining party, can be reviewed without exception being taken to the charge.'

Thus, where there are errors of commission in the charge of a court, not induced by the complaining party, a failure to object thereto does not constitute a waiver of the error, and such error may be relied upon in an appeal of such case.

Therefore, if special interrogatories submitted constitute a part of the charge of the court within the meaning of Section 2321.03, Revised Code, plaintiffs did not, by their failure to interpose an objection, waive their right to urge such error on appeal.

Thus the determinative issue is whether special interrogatories submitted constitute a part of the charge of the court within the meaning of Section 2321.03, Revised Code.

The word, 'charge,' is defined by Bouvier (8 Ed.) as follows:

'The exposition by the court to a petit jury of those principles of the law which the latter are to apply in order to render such a verdict as will, in the state of facts...