De Tunno v. Shull

• Court: Ohio Supreme Court
• Writing for the Court: HERBERT; WEYGANDT; BELL
• Citation: De Tunno v. Shull, 143 N.E.2d 301, 166 Ohio St. 365 (Ohio 1957)
• Decision Date: 15 May 1957
• Docket Number: Nos. 34833,34834,s. 34833
• Parties: , 2 O.O.2d 281 DE TUNNO, a Minor, Appellee, v. SHULL, Appellant. DE TUNNO, Appellee, v. SHULL, Appellant.

Page 365

166 Ohio St. 365

143 N.E.2d 301, 2 O.O.2d 281

DE TUNNO, a Minor, Appellee, v. SHULL, Appellant.

DE TUNNO, Appellee, v. SHULL, Appellant.

Nos. 34833, 34834.

Supreme Court of Ohio.

May 15, 1957.

Syllabus by the Court

Ordinarily a jury may not consider as items of damage the amounts of indebtedness claimed to have been incurred for hospital and medical services, in the absence of any testimony as to the necessity and reasonable value of such services

On April 13, 1951, Thomas DeTunno, a minor, then about 14 years of age, was riding as a passenger in an automobile which was stopped for a traffic light when it was struck in the rear by an automobile being driven by Norman O. Shull, hereinafter referred to as defendant. An action was brough in the name of Thomas DeTunno, by his mother, to recover for his alleged injuries which are claimed to be the direct and proximate result of defendant's negligence. Simultaneously, the minor's father, Harry DeTunno, brought an action against defendant, claiming that he incurred expenses for hospital and medical treatments for his son and also suffered loss of services.

By agreement these two cases were consolidated for trial and were heard together. The jury rendered verdicts for the defendant in both cases, upon which judgments were entered. In the minor's case (No. 34833 in this court) the trial court sustained plaintiff's motion for a new trial. In the father's case a similar motion for new trial was overruled. Defendant appealed from the order granting a new trial in the minor's case, and the father appealed from the final judgment rendered against him in favor of defendant.

In the minor's case, the Court of Appeals dismissed defendant's appeal from the order granting a new trial, holding that there was no abuse of discretion and therefore it was not a final order. It then reversed judgment and remanded the cause in which the father was the plaintiff, holding that the trial court crred in taking from consideration of the jury items of medical and hospital expenses other than the cost of certain back braces.

In each case, a motion to certify the record was allowed, and the cases were heard and submitted together here. Further pertinent facts are set forth in the opinion.

Donald S. McNamara and Keith McNamara, Columbus, for appellees.

Knepper, White, Richards, Miller & Roberts and John B. Hennessey, Columbus, for appellant.

HERBERT, Judge.

The facts as to the circumstances which led to the minor's alleged injuries are undisputed and are well summed up as follows in the opinion of the Court of Appeals:

'The automobile in which the minor was a passenger in the rear seat while stopped for a traffic light, was struck in the rear by the automobile driven by the defendant. Defendant admitted that the car in which the minor was a passenger was stopped by traffic; that defendant had had some bar beer and pleaded guilty to a charge of operating his motor vehicle under the influence of liquor.'

In the minor's case, the defendant raises three questions of law, the first two of which are interrelated and discussed later herein. The third question is directed at the discretion of the trial judge in sustaining a motion for a new trial for the reason that 'the verdict and judgment are contrary to the weight of the evidence.' The defendant contends that the trial judge abused his discretion in so ruling, after having submitted a form of verdict to the jury permitting it to render a verdict in favor of the defendant, which the jury did.

It would be repetitious and would serve no useful purpose to review in detail the many cases in which is considered and discussed whether the sustaining of a motion for a new trial after verdict and judgment is an appealable final order. A large number of them are cited in the cases of Hoffman v. Knollman, 1939, 135 Ohio St. 170, 20 N.E.2d 221, and Green v. Acacia Mutual Life Ins. Co., 1951, 156 Ohio St. 1, 100 N.E.2d 211. When the Hoffman case was decided, Section 12223-2, General Code, provided in substance that an order vacating or setting aside a general verdict of a jury was a final order subject to review. This section had been enacted long before the amendment, effective January 1, 1945, to Section 6 of Article IV of the Ohio Constitution, which amendment reads as follows:

'The courts of appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders of boards, commissions, officers or tribunals, and of courts of record inferior to the Court of Appeals within the district.' (Emphasis added.)

Following this constitutional amendment, Section 12223-2, General Code (Section 2505.02, Revised Code), was amended to provide that 'an order vacating or setting aside a judgment and ordering a new trial is a final order.' This section as it was then in effect was held invalid in the Green case, supra. Two judges wrote dissenting opinions, in one of which a third concurred, but the holding in that case has been followed in a number of subsequent decisions by this court.

In this case, the Court of Appeals, discussing 'abuse of discretion' in its opinion, had this to say:

'The boy was taken to the hospital in an ambulance. He was examined in the emergency room at the hospital within an hour or so after the accident and complained of 'pain, right ear, after blow on side of head following auto accident.' The diagnosis was 'contusion of scalp and pinna.' It is thus apparent that plaintiff, as a result of the collision, sustained some, if slight, injury for which he would be entitled to at least nominal damages.' Citing Cooper v. Hall, 5 Ohio 320, 321.

Apparently it was not noted that the plaintiff's petition does not contain any allegation relating to injuries to the scalp and pinna, nor was it amended at any time during the trial.

In this respect the trial court correctly stated in its charge to the jury, 'The plaintiff, Thomas DeTunno, is not entitled to recover any damages for injuries which have not been set forth in the allegations of the petition.' In that respect, the instant case differs from the case of Haines v. Cleveland Ry. Co., 141 Ohio St. 523, 49 N.E.2d 172, relied on by defendant, wherein the nominal injury was pleaded.

However, within the scope of the rulings discussed above and the facts of this case the trial court may well have believed that there was evidence of some pain and suffering as alleged. It is not necessary here, therefore, to go into the logic of a rule which treats the granting of a new trial as a final order in one instance and as not a final order in another instance. This court is of the opinion that the Court of Appeals properly found that there was not such an abuse of discretion as to justify reversal of the order sustaining the motion for a new trial as a final order.

In respect to cause No. 34834, the major issue raised is whether a jury may consider items of hospital and medical expenses allegedly incurred, where there was no testimony introduced with respect to the reasonable value of such services, or as phrased by plaintiff, 'was there sufficient evidence of the reasonable value of hospital and medical expenses before the jury which, combined with matters of common knowledge, was sufficient to permit the jury to return a verdict for the plaintiff in the amount of such hospital and medical expenses.'

Upon examination of the record, we are impressed with the statement in plaintiff's brief that 'the question of law raised in this case is in reality a question of fact.'

The mother testified that the minor 'went to Dr. Klopfer, Dr. Brown, and he was at White Cross Hospital for treatments, and Dr. Clybourne.' Of these three only Dr. Klopfer and Dr. Clybourne were called as witnesses. Dr. Clybourne testified that he was not employed to treat the minor but solely to examine him, evaluate his condition and report to counsel. He saw him in 1952 and 1954.

Dr. Brown did not testify, and the record is silent as to the necessity and nature of his treatments, although the mother testified as to three or four visits ending in April 1952.

This brings us to Dr. Klopfer. He testified that he first saw the minor on August 14, 1951 (four months after the accident), and four times later, namely October 12, 19, and November 2, 12, 1951. He rendered a bill for $41 for medical and X ray services. Following the boy's first visit, he referred him to Dr. Brown. Dr. Klopfer is a specialist in internal medicine. He also stated that 'Dr. Brown suggested we use physical therapy which we did without results and I referred him back to Dr. Brown for further treatment.' With reference to the alleged bone injury, Dr. Klopfer testified to the effect that he noticed from X rays taken on the first visit a 'questionable lesion' consisting of a 'small questionable chipped fracture' of the vertebra.

He testified further:

'Q. It may not even be a chipped fracture? A. That is right.

'Q. It may be a perfectly normal condition? A. That is right, shall we say not a normal condition but at least it may not be due to an injury.

'Q. That is right, so that, as we understand each other, we cannot make a positive finding in this case that this boy had any demonstrable bone injury. A. I do not make such a finding, no, sir.

'Q. Now the short wave treatment about which you spoke was designed to relieve the tenseness in the muscles and the soreness of which the patient was complaining? A. That is right.'

Miss Green, physical therapy supervisor at White Cross Hospital, testified that the minor was sent by Dr. Brown and was given nine treatments over a period of a month beginning in January 1952, and that the charge was $4 a treatment. She testified also that the purpose of the treatments was to loosen the muscles and relieve pain and not to affect the bony structure....