Opinion
No. 24602
Decided June 20, 1934.
Negligence — Damages sole issue for jury, where liability admitted by defendant — Error to charge jury upon negligence and proximate cause — Charge to jury upon particular injury, minimized other injuries — Prejudice presumed from erroneous charge upon issues and burden of proof — Error properly saved by general exception to charge.
1. Where liability is admitted in a personal injury case, the only remaining issue is the nature and extent of injury as determinative of the amount of damages to be allowed.
2. It is reversible error, where liability is admitted, for the trial court to charge the jury in the following language: "Now, to make out her case she must not only show the negligence which is admitted, but she must show that the injuries, if any, which she sustained were caused as the proximate result of the negligence of defendant."
3. It is likewise reversible error, where different injuries, including a subsequent hemorrhage, are pleaded, and there is some testimony tending to prove their existence, for the trial court to use the following language. "The real question for your consideration is this: Was the accident upon the street car the cause of her having the hemorrhage, if she did have one?" Such a charge unduly minimizes the other injuries.
4. Where the trial court improperly and erroneously defines the issues in a case, or improperly places and defines the burden of proof, substantial rights of the litigant are thereby invaded, prejudice is presumed, and the error is properly saved by a general exception to the charge of the court.
ERROR to the Court of Appeals of Cuyahoga county.
Helen Kozlowski brought an action against the Cleveland Railway Company for damages for personal injury, alleged to have been caused by the negligent operation of one of the company's street cars on which she was a passenger on June 13, 1929, on Broadway Avenue, in the city of Cleveland.
Issue was joined by the answer of the Railway Company to Helen Kozlowski's second amended petition. In this answer the Railway Company admitted its corporate existence, its ownership and operation of a system of street railways in the city of Cleveland, Ohio, including a line on Broadway Avenue. It further admitted that on or about June 13, 1929, Helen Kozlowski was a passenger on one of its Broadway cars, and it denied each and every other allegation contained in her second amended petition.
At the close of all the testimony, we find that the record discloses the following:
"The Court: The record may show that liability is admitted by defendant."
No exception was taken by the Street Railway Company to this order of the court. Because of this admission of liability, we deem it unnecessary to set out the allegations of Helen Kozlowski's second amended petition.
The case was argued to the jury, and the court, among other things in his general instruction to the jury, said:
"I will, in passing, merely define negligence, because liability in this case is admitted, and go to my second point. Negligence means the want of ordinary care. It is the failure to exercise that degree of care which persons of ordinary care and prudence would exercise under like and similar circumstances in any given situation. In this case, as I said, the defendant being a common carrier is required to exercise the highest degree of care consistent with the practical operation of its business towards its passengers, the plaintiff being a passenger. Now, in this case the defendant concedes liability; that being the situation, we go to a consideration of the second point, which is the question of damages * * *.
"Now to make out her case she must not only show the negligence which is admitted, but she must show that the injuries, if any, which she sustained were caused as the proximate result of the negligence of the defendant."
Again in his general charge the court said:
"The real question for your consideration, ladies and gentlemen, is this: Was this accident upon the street car the cause of her having a hemorrhage, if she did have one?"
The record discloses that the hemorrhage in question did not occur until approximately three weeks after the alleged injuries were sustained.
The second amended petition alleged other injuries, together with incidental pain and suffering, and there is evidence in the record tending to support such allegations.
At the conclusion of the general charge of the court, the court said, "Any suggestions, gentlemen?" Whereupon, Mr. Marshman, counsel for the Cleveland Railway Company, said, "Not for us." Counsel for Helen Kozlowski failed to make any suggestion on such extended invitation. Then the court said, "There being no suggestions, then, ladies and gentlemen of the jury, I will turn this case over to you for your consideration."
Thereupon, counsel for Helen Kozlowski excepted generally to the charge of the court.
Verdict was returned in the trial court for the Railway Company. Error was prosecuted to the Court of Appeals of Cuyahoga county, which court reversed the Court of Common Pleas for error in the charge to the jury, and for no other error, and the cause was remanded to the Court of Common Pleas of Cuyahoga county for further proceedings.
Error is prosecuted to this court to reverse the judgment of the Court of Appeals of Cuyahoga county. Reference to the opinion of the Court of Appeals herein makes it plain that the excerpts from the charge of the trial court, set out in this statement of fact, are the only errors taken cognizance of by the Court of Appeals.
Messrs. Squire, Sanders Dempsey and Mr. Donald M. Marshman, for plaintiff in error.
Mr. Charles Auerbach and Mr. William F. Marsteller, for defendant in error.
Counsel for the Railway Company claim that the judgment of the Court of Appeals, wherein it reversed the judgment of the Court of Common Pleas for error in the charge to the jury, was not justified; that such judgment was not justified because at the conclusion of all the evidence the trial court stated to the jury that the Railway Company admitted liability, and thus at the outset of the charge to the jury it was clearly and unequivocably indicated by the trial court that the verdict should be in favor of Helen Kozlowski if she proved that she sustained any injuries of any kind whatsoever as a result of the admitted liability of the Railway Company.
It is further insisted that the Court of Appeals had no right to single out two isolated parts of the charge of the trial court and predicate a reversal thereon; that the charge of the trial court, taken by "its four corners", was clear and non-prejudicial; that Helen Kozlowski's counsel was derelict in his duty when the court at the close of the general charge invited suggestions and he failed to make any suggestion for modification, addition or correction of the charge.
Every action for personal injuries is like the proverbial tub, "It stands on its own bottom." Incidents creep into almost every personal injury case that differentiate it from most personal injury cases.
The trial court entered upon his general charge to the jury with the admission in the record of liability on the part of the street railway company. What was his duty with reference to the scope of his charge? Any admission suggested the elimination process. An admission of liability in a personal injury case sends the pleadings to the four winds, except as to the nature and scope of the injuries, on the one side, and the denial thereof, on the other. Negligence and proximate cause go out of the case as if by magic, and nothing remains for the jury to do except fix the amount of damage. This is the sole and only issue left in the case. In the face of the admission of liability in this case the "two issue rule", as announced in Sites v. Haverstick, 23 Ohio St. 626, is not involved.
It is the duty of the trial court to enumerate and define the issues, and counsel owes no duty to hang on his heels to see that the issues are properly enumerated and defined. Counsel can content himself with a general exception to the charge.
Reviewing courts are restricted by statute in their liberality toward the general charge of the trial court to the jury. Section 11561, General Code, reads:
"A general exception taken to a charge of a court to a jury shall apply to all errors of law which exist in such charge that are material and prejudicial to the substantial rights of the party excepting."
We are in perfect accord with the many holdings of this court to the effect that counsel cannot stand by and watch the court omit germane principles of law from his general charge and save his question by a general exception to the charge of the court. These holdings do not entail upon counsel the duty of standing by while the charge of the court is being delivered, and then immediately pointing out the errors of commission, with a request to the court to cure them. That is just the trouble in the case before us. The error is not predicated upon any error of omission. The error lay in injecting matter of law into the charge that should not have been there.
It is insisted that the charge taken as a whole is not prejudicial to the substantial rights of Helen Kozlowski, and that she cannot get under the wing of Section 11561, General Code.
Let us see. What are her substantial rights? She most assuredly had the right to have the issues in her case pointed out and defined to the jury, and to have the burden of proof properly placed and defined. Negligence and proximate cause were not in the case at all. She was not required to prove facts that were admitted, although the trial court in his charge said that she was. While this may have been a slip of the tongue, it went to the jury and it is a part of the record.
The other alleged infirmity, while not so serious, may have had the effect of misleading the jury. The real issue was the scope and nature of the injuries, so far as Helen Kozlowski was concerned. The court used emphatic language in this regard. He said:
"The real question * * * is this: 'Was this accident upon the street car the cause of her having a hemorrhage, if she did have one?' "
The real question was the question above all others with which the jury was concerned. If the jury could properly ascertain and properly answer the real question, then all other questions would sink into utter insignificance. If there had been no other injuries, this language would not have hurt; but there were.
We think the Court of Appeals gauged this part of the charge correctly when it said in the opinion:
"Certainly the effect of this charge was to minimize unduly the claims of the plaintiff as to the other injuries. The jury, had it not been for this statement of the court, might have found that the hemorrhage was not caused by the accident, but that the plaintiff did sustain, as a direct result of defendant's negligence, other injuries of a lesser nature. We think that in using the above quoted language the court singled out the greater injury claimed and by so doing greatly minimized the lesser injuries and that this was prejudicial error."
We hold that where the trial court in its general charge to the jury improperly and erroneously defines the issues in the case, or improperly and erroneously places and defines the burden of proof, substantial rights of the litigant are thereby invaded, prejudice is presumed therefrom, and the error is saved by a general exception to the charge of the court.
We see no error in the judgment of the Court of Appeals, and its judgment herein is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, BEVIS, ZIMMERMAN and WILKIN, JJ., concur.