Videtto v. Marsh
| Decision Date | 08 July 1960 |
| Citation | 16 O.O.2d 75,112 Ohio App. 151,175 N.E.2d 764 |
| Parties | , 16 O.O.2d 75 VIDETTO, Appellant, v. MARSH, Appellee. * |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. A judgment against an infant plaintiff in an action, instituted on his behalf by his father as next friend, to recover damages for personal injuries based on the negligence of the defendant, does not bar the father from maintaining an action against the same defendant to recover for the loss of services and medical and hospital expenses of such son incurred by him, and which arise out of the same occurrence.
2. A declaratory judgment is not a proper mode of determining the sufficiency of legal defenses to a pending action.
3. Where, in an action for money only, the defendant files an answer, setting up legal defenses to the action, and a cross-petition for determination of the same defenses, it is prejudicial error for the court to hear the case on the cross-petition.
Tom Reed, Waverly, and Kent H. Meyers, Cleveland, for appellant.
Arter, Hadden, Wykoff & Van Duzer, C. M. Horn, Cleveland, and Myers & Spurlock, Bucyrus, for appellee.
The plaintiff, Charlie Videtto, is the father of Leonard Videtto, an infant, and on January 12, 1955, he, as next friend of his six-year-old son, commenced an action in the Common Pleas Court of Crawford County against the present defendant to recover for personal injuries which the child had received from the ignition of gasoline taken from a Sohio tank rented by marsh for use in the operation of tractors and other equipment necessary for the performance of his contract with the government in the landscaping of residences occupied by the workmen who constructed the atomic energy plant near Waverly, Ohio. In that case, at the close of the plaintiff's evidence, the trial court directed a verdict for the defendant 'on the ground that the defendant owed no legal duty to the plaintiff which was breached by the defendant.'
An appeal was taken to this court on questions of law, and this court affirmed the judgment of the trial court, without opinion. A motion to certify the record was filed in the Supreme Court of Ohio, which was overruled.
The plaintiff had also, at that time, brought the present action in the same trial court for damages to himself for loss of services, medical and hospital bills, and so forth, against the same defendant, the damages sought to be recovered in both cases having arisen out of the same occurrence.
To the amended petition in the case now before us the defendant filed an answer which sets up among other defenses that the judgment in the child's case, against the child, estops or bars the plaintiff, as father, from maintaining this action for the recovery of his expenses. The defendant below also filed a cross-petition for a declaratory judgment, setting up the adjudication against the child as an estoppel and bar against the father in the instant case. The trial court assigned the case for trial on the issues joined by the cross-petition for a declaratory judgment and the answer thereto. Counsel for plaintiff, appellant herein, filed a written demand for a trial by jury since the action was one for the recovery of money only. A jury trial being denied, written exceptions were filed and a request made of the court to make separate findings of fact and conclusions of law.
The judgment of the trial court is as follows:
'The court finds for the reasons stated in the findings of fact and the conclusion of law that the defendant, Guy Marsh, has established the allegations of his cross-petition.
'It is therefore ordered, adjudged and decreed that judgment be and it hereby is rendered in favor of the defendant, Guy Marsh, and against the plaintiff, Charlie Videtto, and the plaintiff's petition is hereby dismissed, to all of which the plaintiff excepts.'
The plaintiff filed a motion for a new trial, which was overruled. The gist of the motion was that the trial court erred in refusing the plaintiff a jury trial in a money case, that the court erred in its findings of fact and conclusions of law and that the judgment predicated thereon was contrary to law.
In the appeal perfected to this court the plaintiff lists five assignments of error, and in his brief filed herein asserts they resolve themselves into two questions:
(1) Can a defendant, by filing a cross-petition for a declaratory judgment, prevent the plaintiff from having a trial by jury in an action for money only?
(2) Where an infant has brought an action for damages for personal injuries based on the negligence of a defendant, by his father and next friend, and lost, does the adjudication against him estop or bar his father from maintaining an action, for damages for the loss of services and medical and hospital expenses incurred, against the same defendant for negligence arising out of the same occurrence?
We are of the opinion that the action of the trial court in hearing the cross-petition for a declaratory judgment was prejudicial error as to the plaintiff.
It was error prejudicial to plaintiff for the trial court to hear the cross-petition for a declaratory...
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