Schwartz v. Wells

• Decision Date: 06 January 1982
• Parties: , 5 O.B.R. 1 SCHWARTZ et al., Appellants, v. WELLS et al., Appellees.
• Court: Ohio Court of Appeals

Page 1

5 Ohio App.3d 1

449 N.E.2d 9, 5 O.B.R. 1

SCHWARTZ et al., Appellants, v. WELLS et al., Appellees.

Court of Appeals of Ohio, Twelfth District, Warren County.

Jan. 6, 1982.

Syllabus by the Court

1. R.C. 2315.02, which permits the court to have jurors visit the scene, does not mandate that visit even if requested.

2. The admissibility of evidence collateral to the issue being tried and pertinent only with respect to the credibility of a witness' testimony is a matter ordinarily within the discretion of the trial court.

3. So long as there is a real conflict in the evidence in the sense that reasonable men might honestly vary in their conclusions as to whether, on the whole record, the judgment rendered below is or is not supported by the evidence, such judgment will not be disturbed by the reviewing court.

Lindhorst & Driedame and Leo J. Breslin, Cincinnati, for appellants.

Kohnen & Kohnen and W. Andrew Patton, Cincinnati, for appellees.

PER CURIAM.

This cause came on to be heard upon appeal from the Court of Common Pleas of Warren County.

Plaintiffs-appellants brought this action for personal injuries and loss of consortium arising out of a motor vehicle accident. After five days of trial, the jury rendered a general verdict in favor of all defendants-appellees. In due time appellants moved for a new trial, which motion was overruled. This appeal asserts a single assignment of error, to-wit: the overruling of the motion for new trial.

In their briefs appellants contend that the trial court erred in five respects in failing to sustain their motion for a new trial:

"1. In a case where the facts are complicated as to position of vehicles immediately prior and after a collision, and the jury would have been substantially aided by viewing the scene of the accident, it is error for the trial court to refuse a view of the scene.

"2. It is prejudicial error for the trial court not to admit evidence of a witness' criminal record and his prior inconsistent statements made during deposition concerning his criminal record to impeach the credibility of the witness.

"3. It is prejudicial error for a trial court not to prevent misconduct of counsel asking improper questions which it knows to be prejudicial or to correct the impression given by prejudicial questions through proper instructions.

"4. It was prejudicial error by the trial court in granting an improper charge on assumption of risk which allowed the jury to draw an incorrect inference from the facts in the case.

"5. The jury verdict created a manifest injustice because it was against the manifest weight of the evidence."

The first, third and fourth claims of error for the trial court's refusal to grant a new trial may be disposed of with brief comment. None of them is well taken for essentially the same reason.

It cannot be said that the trial court refused to authorize the jury to visit the scene of the accident, simply because there is nothing in the transcript of proceedings before us that indicates the trial judge was ever asked by counsel for any party to grant a view of that scene. The judge cannot be expected to know the trial tactics of counsel, or to be sufficiently familiar before trial with the facts of the case to be able to determine on his own motion whether a view would in any way assist the jury. If such a visit is desired, the parties, through their counsel, have a duty to request it, which was not done here.

We observe also that R.C. 2315.02, which permits the court to have the jurors visit the scene, does not mandate that visit even if requested. Case law generally has held that the granting of a visit is discretionary with the court, 52 Ohio Jurisprudence 2d 531-532, Trial, Section 52. There certainly can be no abuse of discretion if a visit to the scene was not even requested.

As to the third claim, the record does establish that counsel for the appellees, in examining a police officer, did indeed ask a clearly improper question, one which may be assumed to have prejudicial implications. Counsel for appellants promptly objected, and that objection was sustained. After the objection was sustained, counsel did not either move for a mistrial or request cautionary instructions. Counsel for appellees did not pursue that line of questioning, and the trial proceeded without any further reference to the improper subject.

The rule of law applicable is found in Stores Realty v. Cleveland (1975), 41 Ohio St.2d 41, at 43, 322 N.E.2d 629 :

"Ordinarily, errors which arise during the course of a trial, which are not brought to the attention of the court by objection or otherwise, are waived and may not be raised upon appeal."

It is well settled that if error is committed in the trial of a case, the trial court should be given the opportunity at the time to correct that error. That was not done here, and thus the claimed error is held not to be well taken.

The fourth claim questions the propriety of a charge to the jury on assumption of risk. We do not need to determine whether that charge was proper or not since we are governed by the provisions of the second paragraph of Civ.R. 51(A):

"A party may not assign as error the giving or the failure to give any instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. * * * "

The transcript before us does not reveal whether any conference regarding the substance of the court's charge to the jury took place before that charge was given. It does establish that shortly before the charge was concluded the court asked whether counsel for either side had any comments for the record. The record does establish that some kind of side-bar conference took place, all of which was off the record. The record does not show any objections to the charge having been made by appellants' counsel. We must therefore conclude that the claimed error cannot now be asserted.

The second claimed error involved the trial court's refusal to permit appellants' counsel to cross-examine the appellee Oakes regarding an inconsistent statement made in a previously taken deposition. On cross-examination at the trial Oakes was asked if he had ever been convicted of a state or federal offense, to which question he replied in the negative. When counsel sought to impeach this testimony via a previously taken deposition, opposing counsel objected, at which point the transcript indicates that an off-the-record side-bar conference took place. The transcript does not indicate that the judge ever ruled on the objection, and the reference to the side-bar conference is followed immediately by a proffer. The proffer included the following:

" * * * Referring to your deposition of December 29, 1978, were you asked the question * * * 'Anything else? Do you know what I mean by a crime, a State crime?' Answer: 'Yeah, No, except once for a check, that was it.' * * * Question: 'When was the check charge?' Answer: 'Oh, God, that goes back about 1956.' Question: 'Were you convicted of--' Answer: 'I had about $45,000 in checks out and the company took me for $65,000, their check bounced on my account, so I made up $45,000 in checks that was no good by selling equipment. * * * ' "

If the judge had admitted this evidence, he would not have erred. Harper v. State (1922), 106 Ohio St. 481, 140 N.E. 364; State v. Murdock (1961), 172 Ohio St. 221, 174 N.E.2d 543 . The question is whether he erred prejudicially by his exclusion of such evidence. In support of their claimed error, appellants rely primarily on Kornreich v. Industrial Fire Ins. Co. (1936), 132 Ohio St. 78, 5 N.E.2d 153 , where a reversal was ordered because of the exclusion of evidence regarding a successful plaintiff's prior confession of his participation in a conspiracy to commit arson.

Kornreich was a suit to recover on a fire insurance policy. One of the insurance company's defenses was that the plaintiffs had engaged in a conspiracy to defraud the company. While recognizing that the questions regarding Kornreich's confession were collateral to the issue of the case, the court held they were competent as a means of testing his credibility. The reason for reversal is stated in Kornreich, supra, at 92, 5 N.E.2d 153:

"Ordinarily this court does not concern itself with questions of credibility, being content to leave such questions to the court below, where they properly belong; but, where a ruling of a court of inferior jurisdiction, if permitted to go unnoticed, would operate as a shield for the evil-minded, the furtherance of justice requires a court of last resort to announce the true rule of law, even where the question involved is no more serious than that of credibility."

From the above quotation, it is apparent that the Supreme Court considered the admissibility of evidence collateral to the issue being tried and pertinent only with respect to the credibility of the witness' testimony to be a matter ordinarily within the discretion of the trial court. Whether or not a refusal to receive such evidence constitutes an abuse of discretion depends upon whether under the general factual posture of the case tried it can be said the complaining party was denied a fair trial. Assuming the trial court erred in its evidentiary ruling, the totality of the facts of the particular case under review must be examined to determine whether the error was prejudicial. See Civ.R. 61.

Kornreich is readily distinguishable from the case at bar on its facts. There the claim was against an insurance company for a fire loss, the defense alleged a fraudulent conspiracy, and the rejected credibility testimony involved a previous confession of the witness as to his having committed arson. The close connection between arson and an insurance claim for a fire loss is readily apparent. Further, it does not appear that the Kornreich witness could be otherwise effectively...