Senn v. Lackner

• Decision Date: 17 January 1951
• Citation: 91 Ohio App. 83,100 N.E.2d 419
• Parties: , 59 Ohio Law Abs. 449, 46 O.O. 331 SENN v. LACKNER.
• Court: Ohio Court of Appeals

Page 83

91 Ohio App. 83

100 N.E.2d 419, 59 Ohio Law Abs. 449, 46 O.O. 331

SENN v. LACKNER.

Court of Appeals of Ohio, Montgomery County.

Jan. 17, 1951.

Rehearing Denied March 8, 1951.

Estabrook, Finn & McKee, Dayton, for plaintiff-appellee.

Iddings, Jeffrey, Weisman & Rogers, Dayton, for defendant-appellant.

WISEMAN, Judge.

This is an appeal on law from the Common Pleas Court of Montgomery County from a judgment entered on a verdict rendered in favor of the plaintiff. The action is one for wrongful death arising out of an automobile accident which occurred on U. S. Highway No. 25 near the boundary line between Warren and Butler Counties.

The defendant-appellant was engaged in the sale of both new and used automobiles in the City of Miamisburg, Ohio. The driver of defendant's automobile had been employed as a salesman by the defendant on March 15, 1949. The accident occurred on April 23, 1949, at about 8:30 o'clock in the morning. The salesman resided in Cincinnati, Ohio, and was using an automobile owned by the defendant to travel from his residence to the defendant's place of business at the time the accident occurred. The salesman's hours of employment were from 9 a.m. until 5:30 p.m.

The salesman was driving in a northerly direction and the plaintiff's decedent was driving in a southerly direction at the time of the collision. There is evidence supporting the claim that when the two automobiles were sixty yards apart two dogs started to cross the highway from the east side of said highway; that the salesman's automobile struck the first dog and that he at that time swerved his automobile from the northbound traffic lane across the center line of the highway and collided with the automobile being driven by plaintiff's decedent in the southbound traffic lane.

In her amended petition plaintiff alleges five specifications of negligence:

(1) In causing and permitting defendant's said automobile to run into and collide with the automobile of plaintiff's decedent;

(2) In failing to keep defendant's automobile under control;

(3) In operating defendant's automobile at a high rate of speed, to-wit: 55 miles per hour, a speed greater than is reasonable and proper under the circumstances there and then existing;

(4) In failing to change or divert the course of defendant's automobile after defendant's agent saw, or in the exercise of ordinary care ought to have seen, the dangerous and perilous position of the automobile of plaintiff's decedent;

(5) In failing to keep defendant's automobile on the right side of the road.

The defendant filed an amended answer denying the allegations of negligence and specifically denying that the driver of the automobile owned by the defendant was his duly authorized agent as alleged or that he was acting in the service of or on the business of the defendant, and as a further defense pleaded contributory negligence on the part of the plaintiff. To the amended answer the plaintiff filed a reply denying each and every allegation set forth in the amended answer inconsistent with the averments of plaintiff's petition.

The appellant in his brief states that there are two principal issues presented: The agency of the driver of defendant's automobile, and whether the negligence of defendant's driver, if any, was the proximate cause of the collision.

Fourteen errors are assigned. The first, second and third errors assigned relate to the admission and exclusion of evidence. One of the plaintiff's witnesses, an occupant of the automobile driven by plaintiff's decedent, testified that 'As he was getting closer and closer, and we were getting closer to the dogs the first dog was near the center of the roadway, and about this time the on-coming car, in an attempt to avoid hitting the second dog, swerved into our lane, hitting the first dog.' Defendant's counsel interposed an objection and moved to strike. The record is none too clear whether the entire answer was sought to be stricken, or only the words 'in an attempt to avoid hitting the second dog.' In his brief counsel for defendant contends the entire answer should be stricken. The objection and motion were overruled. The words last quoted should have been stricken, but we find no prejudicial error resulting. The remainder of the answer was competent, relevant and material.

The plaintiff's decedent was a classified civil service employee at Wright Field, Dayton, Ohio, and was rated as 'Radio Engineer, P-4' at an annual salary of $5,232. There was testimony introduced to show that from 1942 to the date of his death, plaintiff's decedent had received ten promotions, stepping up his annual salary from $1,800 to $5,232. His service record, which was 'excellent', was placed in evidence. Several witnesses were permitted to testify for the plaintiff relative to the chance of promotion of decedent. One witness was the immediate superior of the decedent, another in charge of the administrative work of the laboratory and responsible for carrying out the proper pay schedule at Wright Field, and the other witness was employed at Wright Field as Chief of Aircraft Radiation Laboratory and familar with the evaluation process that governs the efficiency ratings entered on service records and the time factors controlling promotions. All three witnesses were acquainted with the plaintiff's decedent and familiar with the work performed by him. All three witnesses testified, in answer to a hypothetical question, that a person with decedent's qualifications and service record had a good opportunity for promotion. Was this testimony admissible? The appellee contends that in determining the pecuniary injury suffered by the next of kin of the decedent the jury had the right to consider not only the earnings of decedent at the time of his death, but, also, the reasonable expectancy of earnings in the future. That this is the established measure of damages is conceded. Grotenkemper v. Harris, Adm'r, 25 Ohio St. 510; Schendel v. Bradford, 106 Ohio St. 387, 391, 140 N.E. 155; N.Y.C. & St. L. Ry. Co. v. Roe, Adm'r, 4 Ohio Cir.Ct.R.,N.S., 284; Acker v. Columbus & Southern Ohio Electric Co. Ohio App., 60 N.E.2d 932; Bartlebaugh v. Pennsylvania Rd. Co., Ohio App., 78 N.E.2d 410. But is testimony on the part of a witness relative to the prospects of decedent for promotion competent? In Hesse, Adm'x v. Columbus S. & H. Rd. Co., 58 Ohio St. 167, on page 171, 50 N.E. 354, on page 355, the court held: 'Against the objection of the defendant the trial court permitted witnesses to testify that the plaintiff's intestate was in the line of promotion when he received the fatal injuries. The jury were otherwise fully informed as to the intestate's habits, health, position, and capacity to earn. These and other like circumstances constituted the existing facts from which the jury were to determine the amount of damages which they should assess. The evidence to which the objection was made was introduced to show a supposed probability that his capacity to earn would have become greater in the future. It started an inquiry which could have no other effect than to consume time unduly, and to introduce speculative considerations into the assessment of damages. Brown [Adm'r] v. Chicago, R. I. & Pac. Ry. Co., 64 Iowa 652, 21 N.W. 193.'

We are unable to determine from the opinion in that case the source of information of the witnesses, or whether the witnesses were properly qualified to testify on the subject. That case cannot be considered a precedent on the question raised here. In the instant case the testimony was in the nature of opinion testimony given by witnesses qualified as experts. The witnesses were given a hypothetical set of facts and asked to state what chances such a hypothetical person possessed for promotion. The general rule is that an opinion or conclusion of a witness is incompetent and inadmissible. The reason for such exclusion is that it invades tha province of the jury as triers of the facts. However, exceptions to the general rule have been found to be necessary to the proper administration of justice. A well recognized exception is where scientific and specialized knowledge or experience is required in a particular art, science, trade or business and for which the general common sense and practical experience of the jury are inadequate. Vol. 17 O.Jur. page 421, Section 331. Any evidence which would assist the jury in fixing the reasonable expectancy of future earnings was competent. The work in which the plaintiff's decedent was employed was of a highly technical character in a field concerning which the public and the jury would have little knowledge, and the system under which promotions were granted was likewise complicated and technical. It therefore was the obligation, as well as the privilege, of the plaintiff to offer any probative testimony as to the probable future earnings of plaintiff's decedent. In our opinion this evidence was competent.

In this type of action it is proper to introduce by a qualified witness the cost of purchasing a simple annuity based on the life expectancy of the decedent and yielding two-thirds of his annual salary at the time of his death, which was conceded to be the amount contributed toward the family support. Bartlebaugh v. Pennsylvania Rd. Co., 150 Ohio St. 387, 82 N.E.2d 853.

Photographs of the highway at the place of collision, taken the day after the accident, were properly admitted as the evidence shows that the marks on the highway shown on the photographs existed immediately after the collision. There was evidence to support the conclusion that the photographs clearly represented the condition immediately after the collision and therefore were admissible. Vol. 17 O.Jur page 579, Section 472; Vol. 39 O.Jur. pages 626, 627, Section 49.

Prior to the trial the deposition of the defendant's salesman was taken and on cross examination at the trial plaintiff's counsel questioned the salesman...