Snyder v. Stanford

• Decision Date: 19 June 1968
• Docket Number: No. 41232,41232
• Citation: 15 Ohio St.2d 31,44 O.O.2d 18,238 N.E.2d 563
• Parties: , 44 O.O.2d 18 SNYDER, Appellant, v. STANFORD, Appellee.
• Court: Ohio Supreme Court

Page 31

15 Ohio St.2d 31

238 N.E.2d 563, 44 O.O.2d 18

SNYDER, Appellant, v. STANFORD, Appellee.

No. 41232.

Supreme Court of Ohio.

June 19, 1968.

Syllabus by the Court

1. Except where counsel, in his opening statement and closing argument to the jury, grossly and persistently abuses his privilege, the trial court is not required to intervene sua sponte to admonish counsel and take curative action to nullify the prejudicial effect of counsel's conduct. Ordinarily, in order to support a reversal of a judgment on the ground of misconduct of counsel in his opening statement and closing argument to the jury, it is necessary that a proper and timely objection be made to the claimed improper remarks so that the court may take proper action thereon.

2. Where, in an action to recover damages for personal injuries grounded on negligence, the evidence raises the issue of contributory negligence, the court should charge on that subject regardless of the pleadings. (Fries v. Cincinnati Street Ry. Co., 138 Ohio St. 537, 37 N.E.2d 193, approved and followed.)

3. Reversible error ordinarily can not be predicated upon one paragraph, one sentence or one phrase of the general charge to the jury. Where the court's charge to the jury, considered as a whole, is not prejudicial to the objecting party, no reversible error results from a misstatement or ambiguity in a portion thereof. (State v. Porter, 14 Ohio St.2d 10, 235 N.E.2d 520, approved and followed.)

4. Where claimed errors in the charge of the court are errors of omission and not errors of commission, ordinarily in order to support a reversal of the judgment, the aggrieved party must, at the proper time bring such omission to the trial court's attention and request the court to supply such omission. (Rhoades v. City of Cleveland, 157 Ohio St. 107, 105 N.E.2d 2, approved and followed.)

This is an action in which the appellant is attempting to recover damages for personal bodily injury in the form of severe burns which she alleges resulted from a fire caused by the appellee's negligence in the installation, alteration and repair of electric circuitry in the apartment owned by the appellee and rented by the appellant.

The appellee in her answer denies that the fire started as the appellant contends and denies that she was negligent in any respect.

After trial, the jury returned a general verdict for the appellee. The judgment of the trial court was affirmed by the Court of Appeals.

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

Metzenbaum, Gaines, Krupansky, Finley & Stern, Samuel T. Gaines, Horold H. Sayre and M. L. Jacobs, Cleveland, for appellant.

Weston, Hurd, Fallon, Sullivan & Paisley and Frank Seth Hurd, Cleveland, for appellee.

C. WILLIAM O'NEILL, Judge.

The principal ground upon which the appellant relies for reversal is the alleged misconduct of the appellee's counsel in his opening statement and closing argument to the jury.

The cause of the fire which injured the appellant was disputed throughout the trial. The appellant contends that the appellee's counsel, in his opening statement and closing arguments knowingly and wilfully made statements with reference to the cause of the fire, which statements were based on inadmissible evidence, and that these statements prejudiced the jury against the appellant. That portion of the opening statement of counsel for the appellee, upon which the appellant relies for her position, reads as follows:

'The fire was put out. The fire department officials were there. They made an examination of the premises, as they do in any fire, interested in determining the cause of the fire. They observed what could be observed as to the electrical system, the wires, of course, which had been burned, along with everything else, with the insulation burned off, and so on. And the evidence will be that, in the considered opinion of the fire department, the cause of this fire was careless smoking.'

That portion of the closing argument made by counsel for the appellee, upon which the appellant bases her position, reads as follows:

'There was an investigation of this fire. An investigation was conducted by the fire department. They weren't allowed to tell you their opinion, and I am not allowed to mention it or tell you what it is either; but they had an opinion as to what caused the fire. There was an investigation made of this.'

This paragraph refers to an investigation conducted by the fire department officials after the fire was over. Two fire officials testified, one a battalion chief in the Cleveland Fire Department, and the other a lieutenant of the Cleveland Fire Prevention Bureau, Division of Fire. The battalion chief testified that he responded to the fire alarm and that he was on duty, as battalion chief, at the fire. He testified, without objection, that when a fire has been extinguished he tries 'to determine the cause of the fire and-.' By reason of objection of counsel for appellant he was permitted only to answer a few questions concerning his investigation of this fire, although he was asked:

'Q. All right. Now-in due deference to his Honor-based upon your experience of 31 years of fighting fires and investigating fires, and based upon the observations that you made at the scene of this fire, do you have an opinion as to the probable cause of the fire?'

Appellant's counsel objected to this question and the court sustained the objection, but permitted appellee's counsel to proffer the following answer: 'Will you have the record show that the witness, if permitted to answer, would say that he did have an opinion; and if asked for his opinion, would have answered, 'careless smoking."

Likewise, the lieutenant of the Fire Prevention Bureau testified concerning his investigation of the premises where the fire in the instant action occurred, but was not permitted, by reason of objection of appellant's counsel, to answer the following question:

'Q. Now, I would like to ask you, based upon your experience with the Fire Prevention Bureau and your observations and inspections at the scene of this fire on the 29th day of July, 1960, do you have an opinion as to what was the cause, the most probable cause of the fire in this instance?'

Appellant's objection to the question was sustained and appellee's counsel proffered the answer:

'(* * * Thereupon the following was dictated to the reporter by Mr. Hurd:) Let the record show that if the witness were permitted to answer, he would have said that he had an opinion; and if asked further what his opinion would be, would have stated that in his opinion the most probable cause of the fire was careless smoking.'

The question which this court must determine is whether the statements made by appellee's counsel, in his opening statement and his closing argument to the jury, constitute misconduct which is prejudicial error requiring a reversal of the judgment.

Counsel for appellant did not make any objection to the opening statement nor to the closing argument.

This court, in paragraph two of the syllabus of Maggio v. City of Cleveland (1949), 151 Ohio St. 136, 84 N.E.2d 912, held:

'Counsel should be accorded wide latitude by the trial court in making his opening statement, but when he deliberately attempts to influence and sway the jury by a recital of matters foreign to the case, which matters he knows or ought to know cannot be shown by competent or admissible evidence * * * it may constitute the basis for ordering a new trial or for reversal by a reviewing court of a judgment favorable to the party represented by such counsel.' See Plas v. Holmes Construction Co. (1952), 157 Ohio St. 95, 104 N.E.2d 689; Ohio Turnpike Commission v. Ellis (1955), 164 Ohio St. 377, 131 N.E.2d 397, appeal dismissed, 352 U.S. 806, 77 S.Ct. 51, 1 L.Ed.2d 39.

In the instant case, however, assuming the statements of appellee's counsel were objectionable, appellant failed, at the time the statements were made, to object or otherwise apprise the court of the allegedly prejudicial effect of the comments so that any curative action warranted could have been taken by the trial court. Having failed to make proper and timely objections, appellant is precluded from relying on the alleged misconduct of opposing counsel as a basis for reversal of the judgment. Walsh v. J. R. Thomas' Sons (1915), 91 Ohio St. 210, 110 N.E. 454; Byrd v. Baltimore & Ohio Rd. Co. (1966), 10 Ohio App.2d 187, 227 N.E.2d 252; Yerrick v. East Ohio Gas Co. (1964), 119 Ohio App. 220, 198 N.E.2d 472; Gulf Colorado & Santa Fe Ry. Co. v. Giun (1938), 131 Tex. 548, 116 S.W.2d 693, 116 A.L.R. 795; Parkert v. Dept. of Public Works (1936), 131 Neb. 346, 267 N.W. 925; Cleveland, Cincinnati, Columbus & St. Louis Ry. Co. v. Hadley (1907), 170 Ind. 204, 82 N.E. 1025, 84 N.E. 13. See Hayes v. Smith (1900), 62 Ohio St. 161, 56 N.E. 879; 1 Wigmore, Evidence (3 Ed. 1940), Section 18; McCormick, Evidence (1964), Section 52.

In Walsh v. J. R. Thomas' Sons, supra, this court said, 91 Ohio St. at pages 217 and 218, 110 N.E. at page 456:

'The argument of counsel in this connection was wholly improper and beyond the field of legitimate argument. * * * An examination of the record, however, will disclose that opposing counsel did not make any objection at that time. * * * In view of the fact that the court's attention was not directed at the time to the improper remarks, so that the court might take proper action thereon, this question is not available to plaintiff in error.'

Appellant urges that his failure to object is not dispositive of the issue because the trial court, sua sponte, should have intervened.

In support of this proposition appellant relies on Hayes v. Smith, supra. In the Hayes case, however, objection by counsel was made at the time of the improper statements. As a result the court concluded that 'the defendants * * * did not waive any of their rights; and * * * the defendants had...