Althouse Brown Motor Co. v. Wilcox , 19 Ohio Law. Abs. 417 ( 1935 )

OPINION

By CARTER, J.

The issues having been thus joined, the cause came on for trial to the court and jury, and a verdict was returned in favor of the plaintiff for $20,000. Motion for new trial was filed, overruled and judgment rendered on the verdict, and from this verdict and judgment error is prosecuted to this court. The chief errors relied upon, as set out in brief of plaintiff in error, are:

First: Misconduct on the part of counsel for plaintiff below in making certain inquiries of prospective jurors relating to liability insurance.

Second: That the verdict of the jury is against the manifest weight of the evidence and contrary to law.

Third: That the court erred in overruling defendant’s motion at the close of plaintiff’s case and at the close of all the evidence to direct the jury to return a verdict for the defendant.

Fourth: That the verdict is excessive.

Fifth: Passion and prejudice, denying defendant a fair and impartial trial.

Sixth: Error in the trial court permitting incompetent and prejudicial evidence to be offered on behalf of plaintiff.

Seventh: Error in the general charge of the court.

Eighth: That the trial court failed to properly charge the jury.

Ninth: That the court erred in overruling defendant’s motion for a new trial.

These claimed errors will be taken up in the order in which they are above enumerated. The facts, stated briefly, are as follows: On the 20th day of February, 1933, Leroy Wilcox resided with his wife at Damascus, Ohio; that shortly after his death a child was born as a result of such marriage; that about four miles from Salem, on the Salem-Garfield Road, and on the left hand side thereof, when traveling toward Garfield, this being the south side of the road, was the home of decedent’s father, who was living thereat; that about six-thirty o’clock in the evening of the 20th day of February, plaintiff’s decedent left the home of his father, where he had been for a short visit, and had with him at the time a quart bottle of milk, which he had obtained from the Stanley home, this being a home near the father’s residence; that the home of the deceased was west of the father’s home, and south; that later on in the evening, after the visit of the son to the father’s home, and on the south side of the road, in the ditch, was found the body of the decedent. An automobile was in the field a considerable distance from the road, and about one hundred feet or so west of where the body was found; that about ten or eleven o’clock that evening, Ray Pearce, funeral director, went to the scene of the accident, rescuing the body of the decedent; that the body was lying about twelve or fifteen feet south of the southerly line of the road; that the body was on its back and the head to the east; that he was still alive at the time and died twenty-four hours later; that Paddy Hayden, a deputy sheriff, went to the scene of the accident and found a glass on the highway; that he went to the Wilkinson home and took him to Salem, where he was locked up in jail; that during the day on which this occurred. Wilkinson was performing services on behalf of the defendant company; that after this accident occurred, Mr. Althouse, of the defendant company, was called by Mrs. Wilkinson; that he came to the Wilkinson home, and from there they proceeded to the scene of the accident, located the ear and found th© body lying in the ditch; that later Wilkinson was indicted for manslaughter, pled guilty and was placed on probation.

Now, as to the claimed error on the part of comuel for plaintiff in making inquiries of prospective jurors relative to their possible connection with any liability insurance company, the inquiries were as follows:

‘■Do any of you, as a side line, solicit insurance, automobile liability insurance for any insurance company? Have any of you ever worked as a solicitor for insurance cr solicited insurance for automobiles, accidents and so on? Do any of you own any stock in any automobile insurance company, or do you have any relatives that are employed as agent or solicitors or in any capacity for any insurance company?”

Thereupon Mr. Stephens, counsel for defendant, stated:

“Defendant objects and excepts to that line of question.”

It will be observed by an examination of the record that no ruling was made by the court on this objection and exception to this line of questioning. It was stated in argument that no audible objection was made to the court, but that counsel for defendant nodded his head to the stenographer to enter this objection and exception. This was denied by defendant at the time of the hearing in this court. However, we can give no consideration to these statements., as such are not a part of the record before us, and in the absence of the record showing anything to the contrary, we must assume that the objection and exception was directed to the court. Were these inquiries misconduct on the part of counsel for the plaintiff? At the time of the trial of this case, such inquiries were proper. See Pavilonis v Valentine, 120 Oh St, 154.

Shortly after the trial of this case, but prior to the overruling of the motion of the defendant for a new trial, such inquiries were held by the Supreme Court of the state to be improper. See Vega, Admrx. v Evans, 128 Oh St, 535. The court in that case held that inquiry of prospective jurors relating to their connection with liability insurance companies was not only error, but prejudicial error.

Now, it is claimed that the record does not indicate that the court ruled upon defendant’s objection to this line of questioning, and therefore that error could not be predicated thereon; that before error may be predicated upon an objection, the court must rule thereon and exceptions taken. This court has spent considerable time on this important phase of the case, have examined the cases cited by counsel for plaintiff and defendant, and many others, and find that the courts of this state have held in some instances that objection must be made at the time, a ruling of the court thereon and exception saved, in order to predicate error thereon. However, in the case of Hayes v Smith, 62 Oh St, 161, which case is quoted with approval in 124 Oh St, 8, the court holds:

“It is a duty of the trial court which is not merely discretionary, when counsel grossly abuses his privilege to the manifest prejudice of the opposite party, to interpose and admonish the offending counsel, and to instruct the jury in regard thereto, and if it failed to do it, it is ground for a new trial. The form in which an objection to such an abuse of privilege is brought to the notice of the tidal court is not material, and when the record shows opposing counsel addressed his objection and exception directly to the court, and the full record being before the reviewing court, it does not appear that the trial court took any notice thereof, nor that it acted thereon, it will be presumed to have refused to rule out the objectionable matter, and such failure and refusal would be ground for reversal.”

In Thatcher v Penn-Ohio. & Det. R. D. Co,. 33 Oh Ap 242, the third paragraph of the syllabi is as follows:

“Arguments of counsel should be confined to question in issue, and evidence received relating thereto, and if misconduct of counsel in argument improperly influences the jury, even though objection is not made or exception taken thereto, trial court should grant a new trial.”

An examination of the transcript and journal entries shows that the trial of this case began on May 20th, 1934; that on the 11th day of May, 1934, the verdict of the jury was returned; that on May 14th, 1934, a motion for new trial was filed, and on October 3rd, 1934, the motion for a new trial was overruled and judgment entered on the verdict. The Vega case, supra, was decided on June 20th, 1934, so that it is clear that at the time the motion of defendant for a new trial was overruled, the new ruling of the Supreme Court was in effect. The court refused to grant a new trial, and we must assume that the court had knowledge of the holding of the Supreme Court in the 128 Oh St case, supra. The court in the Vega case held that such inquiries were not only error but prejudicial error, and granted a new trial in that case’.

The majority of this court has come to the conclusion that these inquiries were improper and that the same constituted prejudicial error.

Now, as to the second and third grounds of error, that the verdict of the jury is against the manifest weight of the evidence and contrary to law, and that the court erred in overruling defendant’s motion at the close of plaintiff’s case and at the close of all the evidence to direct the jury to return a verdict for the defendant, this entire record has been read, and in the light of the evidence introduced in this case we are satisfied that questions of fact were presented for determination by the jury. From the statements made by Mr. Alt-house, of the defendant company, to one of the officers; the statements made by the driver of the automobile shortly after the occurrence, his entering a plea of guilty to manslaughter, and all the surrounding circumstances, we can not say that the court should have directed a verdict in favor of the defendant either at the conclusion of the plaintiff’s testimony or at the conclusion of all the testimony, or that the finding of the jury was manifestly against the weight of the evidence.

As to the claim that the verdict of the jury, and judgment entered thereon, is excessive, inasmuch as this case will be again tried, there is noi necessity of passing upon this ground of error.

The same observation may be made as to the fifth ground of error, “that the jury were under .the influence of passion and prejudice, denying defendant a fair and impartial trial.”

It is claimed by the plaintiff in error that the trial court erred in permitting incompetent and prejudicial evidence to be offered on behalf of the plaintiff below, over the 'objection and exception of defendant. We have examined this record with this claim in view, and it is to be observed that in most instances the court sustained the objections. However, there were some questions propounded wherein the objection was overruled, or where the court failed to pass thereon, but we do not find such to have been prejudicial.

Seventh, that the trial court erred in its general charge to the jury, and that he failed to properly charge the jury, thus denying defendant a fair trial. We have examined the charge of the court and find no prejudicial error therein. If there were matters of omission, they should have been brought to the court’s attention in order that the same might have been corrected or his charge augmented.

Ninth, that the trial court erred in overruling the defendant’s motion for a new trial. As heretofore stated in this opinion, it is the view of the majority of the court that for reasons herein set forth the court erred in refusing to grant the defendant a new trial.

Judgment reversed and remanded for new trial.

ROBERTS, J, concurs. NICHOLS, J, dissents.