Wise v. Timmons

• Decision Date: 24 June 1992
• Docket Number: No. 91-601,91-601
• Citation: 64 Ohio St.3d 113,592 N.E.2d 840
• Parties: WISE, Admr., Appellant and Cross-Appellee, v. TIMMONS, Admx., Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

Page 113

64 Ohio St.3d 113

592 N.E.2d 840

WISE, Admr., Appellant and Cross-Appellee, v. TIMMONS, Admx., Appellee and Cross-Appellant.

No. 91-601.

Supreme Court of Ohio.

Submitted Feb. 19, 1992.

Decided June 24, 1992.

On June 4, 1986, plaintiff's decedent Terry Wise, a disabled twenty-one-year-old who lived with his father, brother Scott and sister Vicki, was a passenger in a motor vehicle being driven by David Timmons. The vehicle went left of center, struck a guardrail, recrossed and left the roadway, hit an embankment and became airborne for forty-three feet, turned over three times and landed on its wheels, travelling approximately six hundred seventy feet. Terry Wise was killed immediately and David Timmons died in the hospital shortly after the accident. Terry's father Clayton Wise, in his capacity as administrator of Terry's estate, brought suit under Ohio's wrongful death statute, R.C. Chapter 2125, against David Timmons's estate for damages on his own behalf and on behalf of Terry's brother Scott and his sisters Pamela and Vicki. Clayton Wise died before trial and Charles Wise was substituted as administrator.

Before trial the parties stipulated that the accident caused the death of Terry Wise. At trial the investigating officer, Sergeant Harold G. Hopkins, a deputy sheriff for the Pickaway County Sheriff's Department, testified as to his investigation of the accident. He said the accident was caused because the vehicle was out of control. He was not asked for an opinion as to why the vehicle went out of control. Sergeant Hopkins was able to locate and interview two eyewitnesses who had observed part of the accident, but had not seen what caused the accident and were not called as witnesses at trial.

At the close of the evidence, the trial court granted plaintiff's motion for a directed verdict on the issue of negligence only. According to the trial court, this left two questions for the jury: whether David Timmons's negligence was the proximate cause of the death of Terry Wise and, if so, the amount of damages. The trial court instructed the jury that loss of support, loss of services, loss of society and mental anguish were proper elements of the damages, as well as reasonable burial expense. Counsel for defendant objected to the instruction that next of kin, in this case siblings, might recover for loss of society and mental anguish. The jury sent out one question during deliberations: "Does the law require the jury to find a minimum dollar value (other than funeral expenses) for compensation?" The trial court answered "No." The jury subsequently returned a verdict finding the issues in plaintiff's favor and assessed damages in the amount of $3,260.32, funeral expenses only.

Pursuant to Civ.R. 59, plaintiff moved for a new trial and the trial court, in a written opinion, stated: "The Court * * * is of the opinion that the damages awarded in this case are inadequate and are not sustained by the weight of the evidence and is [sic ] contrary to law and, therefore, said motion for new trial will be granted and ordered in this case."

Defendant appealed, assigning four errors, three of which are pertinent to this appeal:

"I. The trial court erred in granting plaintiff a new trial on the basis that the jury's verdict and damages awarded in the case are inadequate and not sustained by the weight of the evidence.

"II. The trial court erred in admitting evidence of damages allegedly sustained by the surviving siblings of plaintiff's decedent.

"III. The trial court erred in directing a verdict upon the issue of negligence and liability against defendant."

The Court of Appeals for Pickaway County concluded that the evidence was insufficient to submit the issue of loss of support to the jury. Sustaining defendant's second assignment of error, the court held that the jury should not have considered whether next of kin (here, siblings) suffered damages for loss of society and mental anguish. It was therefore an abuse of discretion for the trial court to order a new trial on those issues. The court found, however, that it was against the manifest weight of the evidence to conclude that Terry Wise's services had no value, and a new trial on that issue was proper. Defendant's first assignment of error was therefore sustained in part and overruled in part.

As to the third assignment, the appellate court held that it was error for the trial court to direct a verdict for plaintiff on the negligence issue. The court stated that the only evidence of negligence adduced was the accident itself, and that in the absence of evidence of acts and omissions on David Timmons's part, there must be a presumption of due care. The trial court's judgment was affirmed in part and reversed in part, and the cause was remanded for further proceedings consistent with the opinion. Plaintiff appealed and defendant cross-appealed on the issue of the necessity for a new trial on the matter of damages for loss of services.

The case is before us on the allowance of a motion and cross-motion to certify the record.

Gary R. Dumm and Stephen E. Carter, Circleville, for appellant and cross-appellee.

Fosson, Mann & Preston and Mark A. Preston, Chillicothe, for appellee and cross-appellant.

HERBERT R. BROWN, Justice.

The issues before us are, first, whether the trial court erred in directing a verdict for plaintiff on negligence; second, whether siblings may recover damages for loss of society and mental anguish under R.C. 2125.02(B)(3) and (5) when a spouse, minor child or parent survives the decedent; and third, whether the trial court abused its discretion in ordering a new trial because the verdict was inadequate and against the manifest weight of the evidence.

For the reasons that follow, we conclude that the trial court erred in directing the verdict on negligence. For that reason a new trial must be held on all issues. For the trial court's direction on remand, we also reach the second issue, holding that the jury was properly instructed as to damages for loss of society and mental anguish. We need not decide whether the trial judge abused his discretion in setting aside the jury verdict and ordering a new trial, since that determination is fact-specific and, on remand, there will be new evidence, and new findings by the jury.

I Directed Verdict

The only evidence in the record offered to prove that David Timmons was negligent is the accident's occurrence under circumstances from which an inference of negligence can be drawn. Those circumstances include the vehicle traveling left of center, leaving skid marks totalling three hundred eighty-nine feet, traveling airborne for forty-three feet, and turning over three times. Although Sergeant Hopkins did not offer his opinion as to the cause of the vehicle's loss of control, from these circumstances the jury could have inferred that David Timmons was traveling at an excessive rate of speed. The only living eyewitnesses to the accident did not see the automobile until after it went out of control. The only other witnesses who might have been in a position to know...