Opinion
No. 38107
Decided March 4, 1964.
Two forms of verdict submitted to jury without objection — Not error, when — Tort action against defendants jointly — One defendant in default for answer and appearance — Damages and liability — Submission to single jury.
1. Where A brings an action in tort against B and C jointly; B, though duly served with summons, is in default for answer and appearance; the action comes on for trial upon A's petition and C's answer; the court, without objection, submits to the jury two forms of verdict, i.e., (1) against both defendants B and C and (2) against B alone; and the jury returns its verdict against both defendants; the submission of the two forms of verdict to the jury does not constitute error.
2. Even though a defendant is in default for answer and appearance, he is entitled to have the damages, alleged to have been incurred by plaintiff as a proximate result of the negligence of the defendants, established by appropriate proof before the trier of the facts, and, where such defendant is joined with another party defendant in an action in tort, it is not error for the court, under proper instructions, to submit the question of damages and liability to a single jury impaneled to try the action against the joint defendants.
APPEAL from the Court of Appeals for Cuyahoga County.
There has arisen some confusion in the designation of the parties on appeal by reason of the reversal of the judgment of the trial court by the Court of Appeals, hence the parties here will be referred to as plaintiff and defendants as they appeared in the court of origin.
This action was brought by Robert E. Burton, plaintiff, in the Cleveland Municipal Court on January 16, 1960, against Pauline Deloney and Oscar Bell, defendants.
Plaintiff prayed for judgment for property damage and personal injury as a proximate result of the joint negligence of the defendants, Deloney and Bell, in a chain-reaction automobile collision on January 18, 1958.
Defendant Bell, although duly served with summons, failed to enter his appearance by plea or answer, hence the issues were joined upon the petition of the plaintiff and the amended answer of defendant Deloney.
The cause came on for trial before a court and jury on February 26, 1962. The jury returned its verdict in the sum of $3,000 against both defendants, Deloney and Bell, and in favor of the plaintiff, Burton.
The court granted a remittitur of $1,500 which was accepted by plaintiff, and, after certain motions of defendant Deloney were overruled, judgment was entered for the sum of $1,500 against the defendants, Deloney and Bell, and in favor of the plaintiff, Burton.
Defendant Deloney appealed to the Court of Appeals, which reversed the judgment and remanded the cause to the Municipal Court for further proceedings.
The cause is now before this court upon the allowance of a motion to certify the record of the Court of Appeals.
Messrs. Cozza Steur and Mr. Robert C. Buck, Jr., for appellant.
Mr. Frank D. Celebrezze and Mr. Louis F. Chapek, for appellee.
The final entry of the Court of Appeals reveals that it reversed the judgment of the trial court for two reasons:
"(1) The trial court neglected to furnish the jury with a form to cover a verdict for the defendant, Deloney, and
"(2) That the trial court erroneously instructed the jury that it was required to bring a verdict against the defendant, Bell, because of the fact that defendant, Bell, was in default of answer and was not present at the trial."
Did the Court of Appeals commit prejudicial error by reason of the above-quoted ruling? That is the question here.
On January 18, 1958, plaintiff was driving his automobile westerly on Woodland Avenue in the city of Cleveland, and, as he approached its intersection with East 66th Street, the traffic light turned red against him and he brought his car to a stop. "Immediately" thereafter his car was "hit" and "knocked" or "pushed" through the light. His car was then "hit" a second time and "possibly" a third time. When the cars came to rest, the car that defendant Deloney was driving was behind plaintiff's car, and Bell's car was behind defendant Deloney's automobile. Plaintiff heard no impact prior to being struck the first time.
There was evidence of damage to plaintiff's automobile and that he suffered some personal injuries in the collision.
Bell was convicted of the offense of driving a motor vehicle while intoxicated, by reason of his condition at the time of the occurrences herein. There was sufficient evidence to submit the issues in the case to a jury for its determination.
Only a general exception was taken to the charge by counsel for defendant Deloney.
It was agreed by counsel for the parties, when the cause was argued before this court upon the merits, that six forms of verdict had been prepared and submitted to the court and counsel for consideration privately, and that among these forms of verdict was one for defendant Deloney. There was objection by counsel to the various forms submitted, but not as of record. The court finally submitted two forms of verdict to the jury — (1) against both the defendants, Deloney and Bell, and in favor of the plaintiff and (2) against Bell alone and in favor of the plaintiff. There was no objection to this procedure.
The jury returned its verdict against both defendants, Deloney and Bell, and in favor of the plaintiff. There was no objection to this verdict by counsel for defendant Deloney or to either of the forms of the verdicts submitted or to the return of its verdict by the jury.
Section 2315.10, Revised Code, provides:
"Either party may require the jury to be polled, which shall be done by the clerk of the court, asking each juror if it is his verdict. If on polling the jury more than one fourth of the jury answers in the negative, or if the verdict in substance is defective, the jury must be sent out again for further deliberation."
Counsel for defendant Deloney did not take advantage of any of the rights and privileges granted by the foregoing section of the Revised Code.
Section 2315.11, Revised Code, states:
"If the disagreement of more than one fourth of the jury is not expressed and neither party requires the jury to be polled, or in the polling three fourths or more of the jury answers affirmatively, the verdict is complete and the jury shall be discharged from the case. When the verdict is defective in form only, with the assent of the jurors and before their discharge the court may correct it."
There was no objection by counsel under the provisions of this section of the Code. Lengyel v. Brandmiller et al., Commrs. of Mahoning County, 139 Ohio St. 478, in the second paragraph of the syllabus, has the following to say:
"Where, in an action brought against two defendants, the trial court, without objection, submits two forms of verdict to the jury, one for use in the event the finding should be for the plaintiff and against both defendants, the other for use if the finding should be for both defendants, and both to be used if the finding should be for the plaintiff against only one defendant — and the court explains such verdict forms to the jury which later returns a general verdict for the plaintiff on one of the forms submitted, counsel for the defendants may not thereafter complain that the verdict forms and the verdict were indefinite."
In the opinion, at page 483, Zimmerman, J., speaks as follows:
"If counsel were not satisfied with the verdict forms as submitted, they should have made timely objection, and if they were in doubt as to the intention of the jury in the verdict returned, they could have polled the jurors."
We find no error in the forms of verdict submitted to the jury.
Coming now to a consideration of the second ground upon which the Court of Appeals rests its judgment, it is generally recognized that proper procedure requires that proof of damages in a tort action, either to the person or to property, must be established by appropriate evidence in order to reach a just verdict or judgment, even where such judgment is against a defendant who is in default. We see no error in submitting to the jury the proof of the amount of damages established in this case.
We find no error in the record prejudicial to the rights of defendant Deloney. It follows that the judgment of the Court of Appeals should be, and it hereby is, reversed, and the judgment of the Cleveland Municipal Court is affirmed.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, O'NEILL and GRIFFITH, JJ., concur.
GIBSON, J., concurs in the syllabus and judgment only.
MATTHIAS, J., not participating.