Opinion
No. 24860
Decided June 12, 1935.
Charge to jury — Reversible error to impose upon party greater burden than law requires — Correct and incorrect rules stated upon same subject — No presumption jury followed correct rule and error deemed "prejudicial — Workmen's compensation — Proof of permanent disability.
1. It is prejudicial and reversible error for a court to place a condition upon a party's right to recover which the law itself does not impose.
2. Where the court states a correct rule, and in another portion of the charge states an incorrect rule upon the same subject, and nothing further is stated to indicate to the jury which rule is to be followed, and there is nothing in the verdict of the jury to indicate which rule was in fact followed, no presumption arises that they have followed the correct rule, and the error will therefore be deemed to be prejudicial.
ERROR to the Court of Appeals of Defiance county.
The parties herein appear in an order the reverse of that occupied by them in the trial court, and throughout this opinion the Industrial Commission, plaintiff in error, will be referred to as the commission, and Henry Ripke, defendant in error, as the plaintiff.
Plaintiff sustained an injury on October 1, 1924, in the course of his employment while working for the Department of Public Works of the state of Ohio. Such department came under the provisions of the Ohio Workmen's Compensation Act by reason of being a contributor to the State Insurance Fund. Plaintiff filed a claim for compensation and the commission awarded him the sum of $48.01 for temporary total disability to October 29, 1924, and additional compensation for partial disability, and certain medical expenses up to and including September 30, 1929, amounting to an aggregate sum of $2,061.71.
Thereafter plaintiff filed an application for modification of the award, contending that he was disabled following September 30, 1929, but his application was rejected and he was denied the right to receive further compensation. He appealed to the Court of Common Pleas of Defiance county, Ohio, and alleged in his petition, among other things, that on account of his injuries he has been, "since said date of October 28, 1928, almost, if not totally and permanently disabled," and that he verily believed that he would "be so permanently and totally disabled during the remainder of his life." He prayed for a judgment against the commission in the sum of $15.00 per week "from October 28, 1928, to the present time," and that the same be continued for the rest of his life and "for such other and further relief as he may be entitled to in the premises."
The answer of the commission admitted that plaintiff was employed by the state on the date alleged; that he sustained an injury in the course of his employment; that he had applied for and received on account thereof compensation out of the State Insurance Fund; but entered a general denial to the rest of the allegations of plaintiff's petition.
At the trial of the case the court read the pleadings in full to the jury as part of the general charge, and several times thereafter instructed them to the effect that before plaintiff could recover he had the burden of proving by a preponderance of the evidence that he was permanently disabled.
The jury returned a verdict for the commission and judgment was rendered thereon accordingly. The Court of Appeals reversed the judgment for prejudicial error in the court's charge to the jury.
The matter is now before this court upon allowance of a motion to certify.
Mr. John W. Bricker, attorney general, and Mr. R.R. Zurmehly, for plaintiff in error.
Mr. H.B. Mullholand and Mr. Stanley S. Stewart, for defendant in error.
This case was tried under the Workmen's Compensation Act as it existed prior to July 15, 1925. No question of appealability or jurisdiction was raised at any time.
The Court of Appeals found prejudicial and reversible error "in those portions of the charge making it necessary to any recovery by plaintiff that he prove permanent total disability."
To reverse the judgment of the Court of Appeals the commission prosecutes error to this court and urges that the trial court did not err; that the charge was warranted by the issues raised by the pleadings; that if error intervened it was harmless; that the court submitted to the jury three forms of verdict and fully explained each in the light of statutory provisions governing the allowance of compensation for temporary total disability, impairment of earning capacity and permanent total disability; and that in view thereof the jury could not have been misled.
One portion of the charge complained of is as follows: "Now, ladies and gentlemen of the jury, the admissions in the answer to the petition of the plaintiff and the denials in the answer practically places in issue in this case but one question for you to determine, and that is this: whether or not the plaintiff who was injured on the first day of October, 1924, while employed by the public works department of the state of Ohio, in the construction of the Independence dam across the Maumee river in Defiance county, Ohio, has by reason of said injury become and is disabled and will continue to be so disabled during the rest of his life, and therefore the plaintiff in this case is entitled to participate in the insurance fund established by the Workmen's Compensation Act of Ohio."
Later in the charge the court again reminded the jury that "before the plaintiff can recover a verdict at your hands finding that he is entitled to participate in the insurance fund * * * he must establish by a preponderance of the evidence these facts: That the plaintiff, by reason of the injury received on the first day of October, 1924, * * * has become and is disabled and will continue to be so disabled during the rest of his life, in accordance with the sections of the law that I have hereinbefore designated" (these being Sections 1465-79, 1465-80 and 1465-81, General Code, covering awards for temporary disability, partial disability, and permanent total disability).
These and other portions of the charge substantially placed upon the plaintiff as a condition precedent to any recovery the burden of proving that he was permanently injured. Such is not the legal requirement. For a court to place a condition upon plaintiff's right to recover which the law itself does not impose is prejudicial error. "Where the court imposes upon an aggrieved litigant a greater burden of proof than the law requires, prejudice will be presumed." Cleveland Ry. Co. v. Goldman, a Minor, 122 Ohio St. 73, 170 N.E. 641.
The commission's claim that the charge complained of was justified by the pleadings is not well taken. The jury was not, limited by the pleadings to a consideration of the permanency of plaintiff's injuries. Under the law governing this case the jury had a right to find and make an award either for temporary total disability, impairment of earning capacity or permanent total disability, exactly as reflected by the three forms of verdict handed by the court to the jury. It is argued that the court explained these forms of verdict as well as the statutes applicable thereto. This did not, however, cure the error. There still remained in the charge the erroneous instruction that before plaintiff could recover he had the burden of proving that he was permanently injured. The court charged that "before the plaintiff can recover a verdict at your hands * * * he must establish by a preponderance of the evidence * * * That * * * by reason of the injury received on the first day of October, 1924, * * * [he] has become and is disabled and will continue to be disabled during the rest of his life * * *." It is reasonable to suppose that the jury inferred from this that plaintiff had no right to recover at all if it did not find permanent disability. The erroneous portions of the charge received emphasis through reiteration. They unquestionably impressed themselves upon the minds of the jury and, no doubt, influenced its deliberations. No positive attempt was made by the court to remove their prejudicial effect from the minds of the jury. The jury was at no time told which of the inconsistent instructions it was to follow and which to disregard. "The jurors are not presumed to be able to determine which of two conflicting declarations of the law by the court is correct." Cleveland Ry. Co. v. Goodman, a Minor, supra, at page 80.
In Marcoguiseppe v. State, 114 Ohio St. 299, at 301, 151 N.E. 182, the opinion states: "It has been repeatedly declared by this court, that, where the court states a correct rule, and in another portion of the charge states an incorrect rule upon the same subject, and nothing further is stated to indicate to the jury which rule is to be followed, and there is nothing in the verdict of the jury to indicate which rule was in fact followed, no presumption arises that they have followed the correct rule, and the error will therefore be deemed to be prejudicial, and the verdict and judgment will therefore be reversed."
The following authorities are to the same effect: Pendleton St. Rd. Co. v. Stallmann, Admx., 22 Ohio St. 1; Pittsburgh, Cincinnati St. Louis Ry. Co. v. Krouse, 30 Ohio St. 222; Aetna Ins. Co. v. Reed, 33 Ohio St. 283; Little Miami Rd. Co. v. Wetmore, 19 Ohio St. 110, 2 Am. Rep., 373; Cincinnati, Hamilton Dayton Ry. Co. v. Frye, 80 Ohio St. 289, 88 N.E. 642, 131 Am. St. Rep., 709; Montanari v. Haworth, 108 Ohio St. 8, 140 N.E. 319.
Consequently, we affirm the judgment of the Court of Appeals, holding that the trial court committed prejudicial and reversible error in its charge to the jury.
Judgment affirmed.
WEYGANDT, C.J., STEPHENSON, WILLIAMS, MATTHIAS and ZIMMERMAN, JJ., concur.
JONES, J., not participating.