Smith v. Flesher

• Decision Date: 27 December 1967
• Docket Number: No. 41122,41122
• Citation: 41 O.O.2d 412,12 Ohio St.2d 107,233 N.E.2d 137
• Parties: , 41 O.O.2d 412 SMITH, a Minor et al., Appellees, v. FLESHER et al., Appellants.
• Court: Ohio Supreme Court

Page 107

12 Ohio St.2d 107

233 N.E.2d 137, 41 O.O.2d 412

SMITH, a Minor et al., Appellees, v. FLESHER et al., Appellants.

No. 41122.

Supreme Court of Ohio.

Dec. 27, 1967.

Syllabus by the Court

1. In order to support reversal of a judgment, the record must show affirmatively not only that error intervened but that such error was to the prejudice of the party seeking such reversal. (Paragraph one of the syllabus of Ohio Life Insurance and Trust Co. v. Goodin, 10 Ohio St. 557, approved and followed.)

2. Error in refusing to give a special request to charge before argument must be prejudicial in order to support reversal of a judgment rendered against a party complaining of such error. (McFadden v. Galena Shale, Tile & Brick Co., 10 Ohio St.2d 70, 225 N.E.2d 229, approved and followed; Chesrown v. Bevier, 101 Ohio St. 282, 128 N.E. 94; Washington Fidelity National Ins. Co. v. Herbert, 125 Ohio St. 591, 183 N.E. 537, and Bradley v. Mansfield Rapid Transit, Inc., 154 Ohio St. 154, 93 N.E.2d 672, explained and distinguished.)

This is an action to recover for personal injuries received in an automobile accident at or just east of the intersection of Sullivant Avenue with Oakley Avenue in Columbus.

Plaintiff, who was between seven and eight, was endeavoring to cross Sullivant Avenue, a four-lane street, from the south to the north, when he was hit by defendant's automobile, which was proceeding easterly at about 20 to 25 miles per hour in the eastbound lane next to the center of Sullivant Avenue.

The jury rendered a verdict for defendant.

The judgment on that verdict was reversed by the Court of Appeals which, in its order of reversal, stated that 'the court finds, per its opinion, that the appeal is well taken in part and overruled in part.'

The opinion, the concurring opinion and the dissenting opinion indicate that the only error found by a majority of the Court of Appeals was the failure of the trial court to give before argument plaintiff's special instruction A.

In the opinion, it is stated:

'Since Chesrown v. Bevier (1920), 101 Ohio St. 282, 128 N.E. 94, the statutory right to request a special instruction has been held to create a mandatory duty upon the court. The Supreme Court made its position very explicit in Washington Fidelity National Ins. Co. v. Herbert (1932), 125 Ohio St. 591 (183 N.E. 537) * * *.

'The Chesrown and Herbert cases are cited and followed on this point in Bradley, an Infant, v. Mansfield Rapid Transit, Inc. (1950), 154 Ohio St. 154 (93 N.E.2d 672).

'The mandatory reversal rule can be quite harsh in its consequences. Many judges, including the members of this court, would prefer to apply the usual test which requires an error to be prejudicial before it can justify a reversal. We can and do invite the Supreme Court to overrule the Chesrown doctrine. However, we are presently controlled by it. The instruction here being proper, relevant, complete and not abstract, the failure to give it requires a reversal.'

The concurring opinion reads in full:

'The law as it exists today permits the lawyers to try the trial judge, rather than the case, with their special instructions. Believing the requested instruction on contributory negligence to be a correct statment of the law, we must find the error to be prejudicial.'

The dissenting opinion, which found no error in the refusal of the trial court to give plaintiff's special instruction A or in any other respect, stated in part:

'* * * I agree most heartily with my colleagues invitation to the Supreme Court to reverse the Chesrown doctrine and substitute therefor the usual test that requires an error to be prejudicial before it can justify reversal.'

Subsequently, the Court of Appeals found 'its decision and judgment * * * in conflict with that of the Third Appellate District in the case of Zink v. Contris (1961), 116 Ohio App. 95 (186 N.E.2d 865),' and therefore certified the record to this court pursuant to the part of Section 6 of Article IV of the Ohio Constitution which provides that 'whenever the judges of a court of appeals find that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by any other court of appeals of the state, the judges shall certify the record of the case to the supreme court for review and final determination.'

Volkema, Redmond & Wolske, Russell H. Volkema and Finneran, Finneran & Finneran, Columbus, for appellees.

Sebastian, Fais & Durst and Rick E. Marsh, Columbus, for appellants.

TAFT, Chief Justice.

In Zink v. Contris, supra (116 Ohio App. 95, 186 N.E.2d 865), it was held that an error in refusing to give a special request to charge before argument would not support a reversal unless it affirmatively appeared that the appellant was prejudiced by that error; and that, since the error there involved related only to the issue of contributory negligence and there was 'no showing of error in the submission of the issue of defendant's negligence to the jury' and the jury's 'general verdict was consistent with a determination of the jury * * * that the defendant was not negligent,' there was no affirmative showing that the error had prejudiced appellant.

From the final order of the Court of Appeals and the three opinions of that court in the instant case, it is clear that the Court of Appeals unanimously determined that, even if there was error in refusing plaintiff's special instruction A, that error was not prejudicial.

Therefore, the question certified to us is whether the error of a trial court in refusing to give a correct special request to charge before argument must be prejudicial in order to support a reversal.

The Court of Appeals held that such an error would require a reversal even if it was not prejudicial and refers to this as the Chesrown doctrine, an apparent reference to the case of Chesrown v. Bevier, supra (101 Ohio St. 282, 128 N.E. 94).

It is an elementary proposition of law that an appellant, in order to secure reversal of a judgment against him, must not only show some error but must also show that that error was prejudicial to him. As stated in paragraph one of the syllabus of Ohio Life Ins. and Trust Co. v. Goodin (1860), 10 Ohio St. 557:

'In order to justfy the reversal of a judgment or decree upon error, the record must show affirmatively, not only that error intervened, but that it was to the prejudice of the party seeking to take advantage of it.'

See 5 American Jurisprudence 2d 218 and 222, Sections 776 and 780.

As recognized in the opinion of the Court of Appeals in Zink v. Contris, supra (116 Ohio App. 95, 186 N.E.2d 865), the so-called two- issue rule necessarily results from this elementary proposition of law. ^*

Furthermore, Section 2309.59, Revised Code, reads in part:

'In every stage of an action, the court must disregard any error of defect in the * * * proceedings which does not affect the substantial rights of the adverse party. No judgment shall be reversed or affected by reason of such error or defect. * * * In case * * * (the) reviewing court determines and certifies that in its opinion substantial justice has been done to the party complaining as shown by the record, all alleged errors occurring at the trial shall * * * be deemed not prejudicial to the party complaining and shall be disregarded * * *.' (Emphasis added.)

This does not mean that a reviewing court may easily avoid a reversal where an error has occurred by merely saying that 'substantial justice has been done.' In order to perform its duty and find that 'substantial justice has been done,' so that errors can be disregarded as not prejudicial, a 'reviewing court must not only weigh the prejudicial effect of those errors but also determine that, if those errors had not occurred, the jury * * * would probably have made the same decision.' See paragraph three of the syllabus of Hallworth v. Republic Steel Corp. (1950), 153 Ohio St. 349, 91 N.E.2d 690.

In the instant case, it is apparent that the Court of Appeals has done this. Apparently, the jury was fully and properly instructed in the general charge on the law dealt with in special instruction A, and some of the law dealt with in that special instruction A had also been fully covered in each of two other special instructions requested by plaintiff and given before argument.

Plaintiff's special instruction A was one of ten requests to charge submitted by plaintiff pursuant to Section 2315.01(E), Revised Code, which reads:

'When the evidence is concluded, either party may present written instructions to the court on matters of law and request them to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced.'

Four of these charges were given and six were refused. Also, the one special request by defendant was given.

In holding that an error in refusing to give a special request to charge before argument would require a reversal even if that error was not prejudicial, the Court of Appeals relied upon Chesrown v. Bevier, supra (101 Ohio St. 282, 128 N.E. 94), Washington Fidelity National Ins. Co. v. Herbert, supra (125 Ohio St. 591, 183 N.E. 537), and Bradley v. Mansfield Rapid Transit, Inc., supra (154 Ohio St. 154, 93 N.E.2d 672).

Paragraph two of the syllabus of the Chesrown case states that if 'a written request to charge before argument * * * correctly states the law and is pertinent to one or more of the issues of the case and the same subject has not been covered by other charges given before argument, it is error to refuse to give such charge before argument, even though the language of the charge is not the exact language the court would have selected.' However, it does not necessarily follow that such error would be prejudicial so as to require a reversal; and neither the syllabus nor the opinion will support such a conclusion.

In Washington Fidelity National Ins. Co. v. Herbert, supra (125 Ohio...