Suchy v. Moore

• Decision Date: 16 February 1972
• Docket Number: Nos. 71-214,71-343,s. 71-214
• Citation: 29 Ohio St.2d 99,279 N.E.2d 878
• Parties: , 58 O.O.2d 194 SUCHY, Appellee, v. MOORE, Appellant. ROBERTS, Appellee, v. BOHN, Appellant.
• Court: Ohio Supreme Court

Page 99

29 Ohio St.2d 99

279 N.E.2d 878, 58 O.O.2d 194

SUCHY, Appellee, v. MOORE, Appellant.

ROBERTS, Appellee, v. BOHN, Appellant.

Nos. 71-214, 71-343.

Supreme Court of Ohio.

Feb. 16, 1972.

Syllabus by the Court

1. When, in a trial concluded before the ammouncement of Pryor v. Webber (1970), 23 Ohio St.2d 104, 263 N.E.2d 235, upon cross-examination of a plaintiff who testifies on direct as to all of several issues in his tort action, defendant, improperly and over objection, elicits from plaintiff that he has received collateral benefits, plaintiff nonetheless cannot be said to have been palpably prejudiced as a matter of law where (1) reference to such evidence is not made elsewhere at the trial except in argument; (2) the record fails to show the extent to which such evidence is utilized in argument; (3) the jury is instructed not to consider such evidence in assession damages; and (4) the jury to which multiple issues have been submitted returns a general verdict, untested by interrogatories, for defendant.

2. In a trial concluded before the announcement of Pryor v. Webber (1970), 23 Ohio St.2d 104, 263 N.E.2d 235, error in the admission of evidence of collateral benefits in a tort action is harmless where (1) the plaintiff is a witness only as to the issue of damages; (2) the jury, by a general verdict, untested by interrogatories, resolves all issues in favor of the defendant; and (3) the defense does not attack plaintiff's credibility in general.

3. Skid marks of 35 feet, produced by a motor vehicle involved in an accident, are not probative evidence that its speed immediately prior to the accident exceeded 25 miles per hour, in the absence of expert testimony of speed based on the skid marks.

Each case represents an action for personal injuries arising out of an automobile collision, wherein the issues of negligence, proximate cause and damages were submitted to a jury which returned a general verdict, untested by interrogatories, for the defendant.

At each trial, the opposing parties adduced conflicting evidence as to the circumstances surrounding the collision.

On direct examination, each plaintiff testified as to his weekly wage and that he was away from his job as a result of his alleged injuries for a given period. During the cross-examination of each plaintiff, each defense counsel, over objection, subjected plaintiff to interrogation which revealed that plaintiff had received wages from his employer for most of the period in question. In each case, defense counsel commented on that revelation during argument.

In Suchy, the trial court instructed the jury in its general charge pertaining to damages as follows: 'There has been some evidence in this case, ladies and gentlemen, that the plaintiff has received salary during the time of his being incapacitated. In the event you should find in this case that the plaintiff would be entitled to recover as a result of this accident, you would not consider the compensation or wages that he has received in diminishing (sic) by way of damages. The same, ladies and gentlemen, would be true on behalf of the defendant. If the defendant has received any wages or salary during the time he was incapacitated, you would not be warranted in diminishing any award which you might make in this case to the defendant as a result of this accident.' (A cross-petition had been filed by defendant and the verdict included a finding in favor of plaintiff thereon. However, no collateral source evidence against defendant was alluded to by plaintiff.)

In instructing the jury in Roberts, the court stated:

'You may consider . . . loss of earning power which she has suffered in the past . . . should you award damages to the plaintiff, she is not entitled to be enriched thereby, and that such damages, if awarded, shall be only those which will fairly compensate her and put her in the same position in which she would have been had the accident not occurred.'

The correctness of those instructions is not before the court in either case.

The Court of Appeals reversed Suchy 'for the reason that . . . where reference is made to a 'collateral source' grounds exist for a new trial as a matter of law and without reference to the entire record to determine whether or not the jury was prejudiced and the verdict was biased . . ..' Roberts was reversed by the same court in words of similar impact.

Thomas & Thomas and Harold B. Thomas, Bridgeport, for appellee Suchy.

Kinder, Kinder & Kinder, Gordon T. Kinder and Frazier & Sommer, Martins Ferry, for appellant Moore.

Pfau, Comstock & Springer and William E. Pfau, Jr., Youngstown, for appellee Roberts.

Harrington, Huxley & Smith, and John C. Litty, Jr., Youngstown, for appellant Bohn.

SCHNEIDER, Justice.

'In Ohio, as elsewhere, it is a rule of universal application that in a tort action, that the measure of damages is that which will compensate and make the plaintiff whole.' Pryor v. Webber (1970), 23 Ohio St.2d 104, 263 N.E.2d 235. The exception to the general rule that evidence of compensation from a source other than the tortfeasor, or persons in privy with him, cannot diminish the damages for which he is liable, was first recognized judicially in this state in Klein v. Thompson (1869), 19 Ohio St. 569.

The receipt of collateral benefits is irrelevant and immaterial on the issue of damages. Not only are the benefits not deductible, but their receipt should not be admitted in evidence, over objection, or otherwise disclosed to the jury. The admission is error. At least after the announcement of Pryor v. Webber, supra 23 Ohio St.2d 104, 263 N.E.2d 235, an attempt at disclosure of such matters, on counsel's part, could only be motivated by mischief bordering on misconduct, for which a motion for mistrial ought to be granted. However, these case were tried, appealed to the Court of Appeals, and decided by that court, 26 Ohio App.2d 50, 269 N.E.2d 53, before the announcement of that case.

Each defendant contends, therefore, that a new trial should not be granted the plaintiff unless the record affirmatively shows that the error was prejudicial. In these cases, we agree. Smith v. Flesher (1967), 12 Ohio St.2d 107, 233 N.E.2d 137; State v. Stanton (1968), 15 Ohio St.2d 215, 239 N.E.2d 92; Tighe v. Diamond (1948), 149 Ohio St. 520, 531, 80 N.E.2d 122; Ochsner v. Cincinnati Traction Co. (1923), 107 Ohio St. 33, 140 N.E. 644; and Ohio Life Ins. & Trust Co. v. Goodin (1860), 10 Ohio St. 557.

In arriving at the conclusion that the introduction and admission on cross-examination of collateral source evidence was prejudicial in Pryor v. Webber, supra, 23 Ohio St.2d 104, 263 N.E.2d 235, the court reviewed the entire record in order to ascertain whether the erroneous admission could reasonably be expected to prejudice a jury on the issue of plaintiff's overall credibility.

As stated in the opinion, at page 116, 263 N.E.2d at page 243:

'The admission in evidence of the receipt of collateral benefits, after the testimony as to lost wages, strongly suggested to the jury that Mrs. Pryor had lied to the jury and was, in fact, attempting to collect twice as to that item of damage. The injury claimed by Mrs. Pryor was such that acceptance by the jury of her testimony as to subjective symptoms was extremely critical to her case. Additionally, it appears from the record that her credibility was also important in the establishment of liability. We note also that, based upon the disclosure of such benefits, the credibility of Mrs. Pryor was attacked in argument to the jury.' (Emphasis supplied.)

In the instant cases, neither plaintiff testified on direct examination that his wages were 'lost,' but the probable effect of his testimony was to lead the jury to that conclusion. Thus, the revelation, over objection on cross-examination, that the conclusion would be incorrect could result in an impeachment of plaintiff's overall credibility.

However, despite the potentiality that the jury may become biased against a plaintiff by such cross-examination, we hold that prejudice did not automatically infect these records.

Where, as in each case, negligence, proximate cause and damages are presented as separate, genuine and determinative issues, free from error, and are resolved by a general verdict untested by interrogatories, error with regard to presentation of the damages is harmless unless it is affirmatively shown by the party against whom the verdict is rendered that the error 'palpably prejudiced' the jury against the entire case of the losing party. Sherer v Smith (1951), 155 Ohio St. 567, 99 N.E.2d 763; Centrello v. Basky (1955), 164 Ohio St. 41, 128 N.E.2d 80.

Cf. Plas. v. Holmes Construction Co. (1952), 157 Ohio St. 95, 104 N.E.2d 689 (plaintiff impeached with contents of two divorce petitions alleging his bad temper and rule conduct; 'the prejudicial effect of the denumication of the plaintiff was sweeping and all pervasive, resulting in unmistakable prejudice to the entire case of the plaintiff and depriving him of a fair trial upon all issues involved in the case'), and Acrey v. Bauman (1938), 134 Ohio St. 449, 17 N.E.2d 755 (two-issue rule inapplicable where testimony on one issue engenders racial prejudice).

In assessing whether plaintiff was 'palpably prejudiced,' a court must evaluate the impact, in each case, of cross-examining plaintiff as to the receipt of collateral benefits.

The immediate objective, of course, is to mitigate damages to the extent of the benefits received. This may be defeated by curative instructions. Thus, in Suchy, the court's warning not to consider compensation or wages received for the purpose of diminishing damages ought to have been sufficient to avert the prejudicial effect of the error as it relates solely to the issue of damages. In Roberts, no such 'curative' instruction was given. To the contrary, the court charged that damages allowable to plaintiff were only those which would compensate...