Summary
holding qualification of jurors "is a discretionary function of the trial court"
Summary of this case from Haywood v. HarrisOpinion
No. 89-212
Submitted February 7, 1990 —
Decided August 29, 1990.
Courts — Jurors — Determination of whether prospective juror should be disqualified for cause pursuant to R.C. 2313.42(J) is a discretionary function of trial court — Determination not reversed on appeal absent an abuse of discretion.
O.Jur 3d Jury § 169.
The determination of whether a prospective juror should be disqualified for cause pursuant to R.C. 2313.42(J) is a discretionary function of the trial court. Such determination will not be reversed on appeal absent an abuse of discretion. ( Maddex v. Columber, 114 Ohio St. 178, 151 N.E. 56, approved and followed.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 54455.
On October 3, 1985, plaintiff-appellee Anne Berk was jogging in a westerly direction opposite traffic on the south side of South Woodland Avenue in Shaker Heights, Ohio. As appellee approached the intersection of South Woodland Avenue and Attleboro Road, the traffic signal was green in her direction and vehicular traffic on Attleboro Road was stopped. At this time, a motor vehicle operated by defendant-appellant Bernard Matthews was in the front of a line of automobiles stopped for the red light in the northbound lane of Attleboro Road. As appellant turned right to proceed east on South Woodland Avenue, his automobile struck and injured appellee as she was about to cross the intersection.
On January 16, 1987, appellees Anne and Arthur Berk instituted the present action in the Cuyahoga County Court of Common Pleas alleging negligence on the part of appellant in the operation of his motor vehicle. It was further alleged that, as a result of such negligence, appellee Anne Berk incurred bodily injuries, medical expenses and loss of income, and that appellee Arthur Berk was "deprived of the love, affection, companionship, assistance, and society of his Wife."
On August 5, 1987, voir dire of potential jurors was conducted. In the course of voir dire the following exchange took place between the court and a potential juror:
"THE COURT: * * *
"Mrs. Logerwell, is there anything, ma'am, that you want to discuss that might affect your jury service in this case?
"MRS. LOGERWELL: Well, frankly, I don't think joggers — don't think joggers belong in the street.
"THE COURT: If I told you that the law permits a party to jog in the street under certain conditions, would you follow the law if that comes to pass, if I give you an instruction concerning that?
"MRS. LOGERWELL: Well, I have almost hit joggers, so I think I would be prejudice [ sic].
"THE COURT: Accordingly, could you put that prejudice aside and decide this case on the facts presented, whatever they might be, and the law as I give it to you?
"Let me give you an illustration. All of us dislike murder, but nonetheless, we ask people to come in and sit on a criminal case, and although you may dislike murder, you still have to follow the law and determine the facts and make a judgment. You have a personal disposition apparently or a feeling against jogging in the street. All right. There's nothing wrong with that.
"I will tell you the applicable law, and if it differs with your opinion, can you keep your opinion outside the deliberation room and base your decision on the facts as you determine them to be, and the law as I give it to you?
"MRS. LOGERWELL: Yes."
During a later conversation between the prospective juror and counsel for appellee the following exchange took place:
"MR. KAMPINSKI: Mrs. Logerwell, you indicated that you almost hit joggers?
"MRS. LOGERWELL: Well, I live near the Metropark, and I live in Berea and I see no reason they have to be in the street when we have a Metropark.
"MR. KAMPINSKI: Do you think it is wrong to be in the street?
"MRS. LOGERWELL: I understand they run three abreast sometimes and it is very annoying.
"MR. KAMPINSKI: You don't think that's appropriate for them to get in the way of cars?
"MRS. LOGERWELL: Right.
"MR. KAMPINSKI: And you feel you would have some predisposition to rule against somebody that —
"MRS. LOGERWELL: I wonder if I would.
"MR. KAMPINSKI: It is important to my client that we be able to obtain a fair trial, and do you feel that you could be able to rule in her favor despite your reservations against joggers?
"MRS. LOGERWELL: After hearing the complete details, I could.
"MR. KAMPINSKI: And if she was jogging in the street when she was hit —
"MRS. LOGERWELL: I heard you say something about a red light. I was wondering if she was in the crosswalk —
"MR. KAMPINSKI: Would that matter to you?"
"MRS. LOGERWELL: Well, that would change my opinion.
"MR. KAMPINSKI: In other words, if the person was turning right on red —
"MRS. LOGERWELL: That's right.
"MR. KAMPINSKI: Would it matter if she was running close to the curb or not?
"MRS. LOGERWELL: Well —
"MR. FARRALL: I am going to object.
"THE COURT: The objection is sustained.
"MR. FARRALL: Thank you.
"MR. KAMPINSKI: You mentioned that joggers troubled you when they run three abreast sometimes?
"MRS. LOGERWELL: Yes.
"MR. KAMPINSKI: Are there other joggers that don't run close to the curb that don't bother you?
"MRS. LOGERWELL: They all bother me. They wear stereos and they don't always hear horns.
"MR. KAMPINSKI: Do you still think you could be fair and impartial even with that view?
"MRS. LOGERWELL: I believe if I heard all the details, particularly when you mentioned right on red turn, I was wondering.
"MR. KAMPINSKI: What is it that you were wondering?
"MRS. LOGERWELL: If she was crossing the street.
"MR. KAMPINSKI: What if she wasn't across the street, but jogging in the street at an intersection?
"MRS. LOGERWELL: I would have trouble not being prejudice [ sic].
"MR. KAMPINSKI: You would be prejudice [ sic]. May we approach the bench?
"THE COURT: She said she would have trouble not being —
"MR. KAMPINSKI: Would you be prejudiced against her?
"MRS. LOGERWELL: Yes, I think so.
"MR. KAMPINSKI: I would move to excuse this juror for cause, Your Honor."
Following a bench conference with counsel for both parties, the challenge for cause was denied. Voir dire of the prospective juror resumed and the following discussion took place:
"MR. KAMPINSKI: In light of what you have said earlier about joggers, do you think you could be fair and impartial and listen to the evidence in this case and make a decision based upon the facts and try to put aside what you believe about joggers in the street?
"MRS. LOGERWELL: I believe I could because of the location of where this happened. I live near Metroparks and there's no excuse to be in the streets. Perhaps there's no place else to jog.
"MR. KAMPINSKI: You're saying because of the nearness of the park, the joggers bother you?
"MRS. LOGERWELL: Yes. The lady maybe had no other place to jog.
"MR. KAMPINSKI: Thank you.
"MRS. LOGERWELL: I can listen to it all.
"THE COURT: Mr. Farrall, on behalf of the Defendant?
"MR. FARRALL: Thank you, Your Honor. Thank you for bringing that to our attention. You understood the thrust of the earlier questions that were asked and everybody wants to start equal and that includes the Plaintiff as well as the Defendant.
"You are willing to listen to all of the evidence in the case?
"MRS. LOGERWELL: Yes.
"MR. FARRALL: You're willing to listen to the Court when he instructs you on the law?
"MRS. LOGERWELL: Yes.
"MR. FARRALL: You are willing to make a decision based on the facts as you understand them from the witness stand and based on the law as the judge gives it to you?
"MRS. LOGERWELL: Yes.
"MR. FARRALL: You want to be fair to both sides?
"MRS. LOGERWELL: Yes.
"MR. FARRALL: And to do the right things as you understand them to be?
"MRS. LOGERWELL: Yes."
The jury was thereafter impaneled. Trial commenced on that afternoon. On August 7, 1987, at the conclusion of the trial, the jury was instructed on comparative negligence. The court addressed the issue in the following manner:
"The plaintiff claims the defendant was negligent, and the defendant was the proximate cause of the injury to the plaintiff. The defendant claims the plaintiff was negligent and that plaintiff's negligence, known as contributory negligence was a proximate cause of the injury to the plaintiff.
"Each person is required to use ordinary care to avoid injuring another person, and to avoid injuring himself or herself. Ordinary care is the care that a reasonably prudent person would use under the same or similar circumstances.
"Negligence is a failure to use ordinary care to avoid injuring another person.
"Contributory negligence is a failure to use ordinary care to avoid injuring oneself.
"Proximate cause is an act which in the natural and continuous sequence directly produces the injury, and without which it would not have occurred.
"Cause occurs when the injury is the natural and foreseeable result of the act. There may be more than one proximate cause when a negligent act or failure to act of one party combines with the negligence of another to produce an injury. The negligence of each is a cause.
"Plaintiff has the burden of proving by a preponderance of the evidence that defendant was negligent, and that defendant's negligence was a proximate cause of the injury to the plaintiff.
"The defendant has the burden of proving by preponderance of the evidence that the plaintiff was contributorily negligent and plaintiff's contributory negligence was a proximate cause of the injury to the plaintiff.
"I have already instructed you as to the definition of preponderance.
"The plaintiff may recover if you find that the defendant was negligent, and that the defendant's negligence was the proximate cause of the injury to the plaintiff.
"Furthermore, if you find that the plaintiff was contributorily negligent, and the plaintiff's contributory negligence was a proximate cause of her injury, plaintiff may only recover if her negligence does not exceed the negligence of the defendant.
"Where both defendant's negligence and plaintiff's negligence — contributory negligence are proximate causes of plaintiff's injury, and plaintiff's contributory negligence does not exceed defendant's negligence, the Court will adjust the damages approximately [ sic] resulting from the defendant's negligence by the plaintiff's percentage of the combined negligence and contributory negligence of both defendant and plaintiff, and that of course is depending on your finding.
"Very simply stated, and this will become obvious to you, we are a comparative negligent [ sic] state as it relates to this particular case. Depending upon your finding, if you would find, and please don't draw any inference from what I'm saying, if you would find that each party did something either by way of doing a negligent act, or failure to act, or if you would find that the plaintiff was contributorily negligent, we get to the interrogatories which are at the end of the charge, you will determine the negligence of each and if you would find that each party was negligent in their own regard, their negligence must be calculated out in a percentage. I think all this sounds confusing, but when we get to the interrogatories, you'll understand it.
Interrogatories Nos. 1 through 7 were as follows:
"1. Do you find that Defendant, BERNARD S. MATTHEWS, was negligent?
"2. If the Answer to Interrogatory No. 1 was `YES', do you find that the negligence of Defendant, BERNARD S. MATTHEWS, was a proximate cause of the collision with Plaintiff[?]
"3. Do you find that Plaintiff, ANNE BERK, was negligent?
"4. If the answer to Interrogatory No. 3 was `YES', do you find that the negligence of Plaintiff, ANNE BERK, was a proximate cause of the collision with Defendant's vehicle?
"5. If you found that both Plaintiff, ANN [ sic] BERK, and Defendant, BERNARD S. MATTHEWS, were negligent and that the negligence of both proximately caused the collision, set forth the percentage of negligence you apportion to each.
"6. What do you find to be the total amount of damages suffered by Plaintiff, ANNE BERK, due to the accident in question, regardless of whose negligence caused the accident?
"7. What do you find to be the total amount of damages suffered by Plaintiff, ART BERK, due to the accident in question, regardless of whose negligence caused the accident?"
"* * *
"In the event that your verdict is for the plaintiff, you will not in your verdict access [ sic] separate amounts for these separate elements of damages. But you will compute the total sum which will constitute the fair and just compensation for all of the injuries and damages which you find that the plaintiff has suffered as the direct result of the automobile accident in which the plaintiff, Anne Berk was injured."
Thereafter, the trial court reviewed the interrogatory forms with the jury. Prior to discussing the contents of each form the court remarked as follows:
"You will execute the verdict forms, and you will also execute the interrogatories, which are questions that will be posed to you.
"The interrogatories are in succession, and the reason for that, and I mentioned this earlier, it will explain to you when you go through the interrogatories how you make determinations depending upon your findings, relative to comparative negligence."
With respect to the Interrogatory No. 5, the court observed as follows:
"* * * When you get on the bottom of this interrogatory, again, depending upon your findings, there are two lines, and you'll insert percentages. They must equal a hundred.
"I'm not trying to comment one way or the other on what your finding ought to be, or not, but in the event you find each to be negligent, for instance, if you find ten percent and 90 percent, it has to be like that, so it adds up to a hundred. You cannot find 10 percent and 80 percent because that would not equal a hundred percent. Again, there are eight signature lines on the bottom."
In the course of reviewing the contents of Interrogatory No. 6 regarding the total damages incurred by appellee, Anne Berk, the trial court observed as follows:
"* * * There is a blank space with a dollar sign. You will insert your findings as it relates to your determination relative to damages. Again, there are eight signature lines on the bottom, and six of the eight of you must agree."
The jury was thereafter instructed on the procedure to follow should any questions arise regarding how to proceed. The trial court stated in this regard:
"If there are any communications between the jury as a body, and this Court, those questions must be directed to me. I think we'll supply you with paper and pens, and whatnot, and it must be signed by the foreman or forelady. If it is possible to answer your questions in writing I will do so, but I will ask that you keep both the question and the answer, because that, like everything else, becomes part of the record, and it will be a record, of course, of the proceedings here.
"* * *
"If there would be a contradiction between the verdicts, and the interrogatories, and if you don't understand how to figure those out, don't worry about it. If you come into court you can either do it by question, we'll send you back and I can instruct you how to clear up any instructions as to any interrogatories and verdict. * * *"
Following these instructions the court inquired of both counsel whether any additions to or deletions from the charge to the jury were desired. Counsel responded in the negative.
In its final remarks to the panel, the trial court further explained the respective functions of judge and jury regarding the calculation of the amount of damages:
"As it relates to the interrogatories, regardless of your findings you will complete those interrogatories.
"Also, don't be concerned about the determination of, or the calculation or computation of damages as it relates to comparative negligence. If you get to that point I'll calculate that for you.
"You will be called upon, depending upon your finding, and regardless of your finding, to determine the plaintiff's damages as it relates to comparative negligence. If you find that either or both sides are negligent, just complete that interrogatory and I'll figure out the rest for you. I think it will be self-explanatory when you find yourself in the jury room."
Once the jury retired, the court inquired again regarding any objections by counsel to the jury instructions. The following exchange between the court and counsel for appellee took place:
"THE COURT: Anything on behalf of the plaintiff?
"MR. KAMPINSKI: I will object to the charge on comparative negligence, at least I don't believe there was any evidence of negligence on Mrs. Berk's part.
"THE COURT: Okay. Your objection is noted. * * *"
After the jury had retired for its deliberations but prior to reaching a verdict, certain questions were addressed to the trial judge.
The questions and the responses thereto by the trial judge are as follows:
The jury: "We have filled out top form #5. Are we to fill out and sign the various attached interrogatories?"
The judge: "Regardless of your verdict complete all the interrogatories."
The jury: "Six of the eight jurors agreed on the same percentage of negligence. Do all of the jurors or only the six who agreed to the percentage, sign the other interrogatories?" (Emphasis sic.)
The judge: "Six of eight jurors must agree on the verdict as well as the interrogatories. Any six jurors of the eight are required."
The jury: "Also, Do we fill out the civil action papers?"
The judge: "Complete the general verdict forms."
The jury: "Please define `proximate' on interrogative [ sic] #2 and #4."
The judge: "See jury instructions on proximate cause."
The jury: "What do we base our percentage on on this interrogative [ sic] #7 for Mr. Burke [ sic]?"
The judge: "Percentages, if any, are applicable to Anne Berk and Bernard Matthews only. Percentage is not applicable to a consortium claim."
Later that day, after the jury emerged from its deliberations, the trial court remarked as follows:
"THE COURT: It's my understanding that the jury has reached a verdict.
"Will you return the verdict forms and the interrogatories to my bailiff, please.
"* * *
"THE COURT: Ladies and gentlemen, there are some inconsistencies, and I'm well aware of the fact they were somewhat confusing by the questions that you posed to me. I understand now why you posed the questions.
"As it relates to the verdict forms these are the two general verdict forms. Only one of these two ought to be completed, all right, depending upon your finding.
"If your finding is for plaintiff you will complete the plaintiff's. If your findings [are] for the defendant you would complete the defendant's.
"The interrogatories that you have answered, you have found, and you can correct this or change this if you want to, but as it relates to the percentages of responsibility you found the plaintiff 80 percent responsible, you found the defendant 20 percent responsible. If that is your determination then of course you return a general verdict form on behalf of the defendant. These two interrogatories likewise I'm going to send back with you.
"This is number six, `What do you find the total amount of damages suffered by plaintiff, Anne Berk due to the accident in question, regardless of whose negligence caused the accident?' On this particular interrogatory you have to put a dollar amount as opposed to a percentage amount. So I am going to send this back with you along with the verdict form.
"* * *
"I am going to ask you to return to the jury deliberation room. I'm going to give you the matters I just discussed, along with the other interrogatories, and I'm going to ask you that you go back in and complete the interrogatory forms, as well as the general verdict."
After the jury had retired for further deliberations the following discussion between the court and counsel took place:
"THE COURT: Mr. Farrall, on behalf of the defendant, please.
"MR. FARRALL: Your Honor, on behalf of the defendant I would like the record to reflect that I object to sending the interrogatories back to the jury, first of all.
"Second of all —
"THE COURT: All of the interrogatories?
"MR. FARRALL: All of the interrogatories dealing with the issue of liability, not with the interrogatories dealing with the question of damages.
"And secondly I object to the Court's sending the verdict forms back. I think what the Court should have done is simply enter judgment consistent with the answers to the interrogatories. The interrogatories should have control.
"THE COURT: I understand, and I agree that the specific answers do override the general verdict form, and depending upon what they do by way of completion, which I don't think will take very long, by the way, we may very well address that issue.
"Anything on behalf of the plaintiff?
"MR. KAMPINSKI: No, your Honor.
"THE COURT: There were questions that were asked of the Court. They were signed and likewise were sent back in writing. I showed them to the attorneys at the side bar here. I'm going to turn them over to the Court Reporter to become part of the record."
After further deliberations, the jury returned a general verdict in favor of appellant, Bernard Matthews. A review of the interrogatories again disclosed that the jury found the defendant Matthews to be twenty percent negligent and plaintiff Anne Berk eighty percent negligent in causing the accident. Prior to discharging the jury, the court asked the attorneys whether there was "[a]nything further on behalf of the parties?" Counsel for both appellant and appellee responded in the negative.
Once the jury had been discharged the following discussion between the trial judge and counsel took place:
"THE COURT: After the jurors were sent back into the jury room there were some communications with the court * * *."
The court then reviewed additional questions which the jury had asked during its second deliberation, of which counsel had been unaware.
The second group of questions and answers was as follows:
The jury: "If we award Art Berk 50,000, are we to assume he is to get 20% of this or $10,000?"
The judge: "You are to assume nothing. Complete the interrogatories based on your findings and the instructions of law."
The jury: "Can you make available some dollar amount to base our decision on for both #6 7[?]"
The judge: "You have heard all the evidence on damages. You have the court's instructions on damages. Continue your deliberations. I cannot make available a dollar amount."
The jury: "Will the dollar amounts we put on Interrogatories #6 #7 be awarded to plaintiff or does our 20%-80% verdict come into play?"
The judge: "The Court will do computations if any. Your 20%-80% finding will come into play."
"Do the attorneys care to see the interrogatories and/or the verdict form?
"MR. KAMPINSKI: Yes, your Honor.
"And I would like to make a statement at this point.
"I would object to the Court having responded to the interrogatories without informing the attorneys and having our input.
"I believe that one of the responses that Court made is misleading.
"THE COURT: Which one?
"MR. KAMPINSKI: The one that you just read indicating that the 20, 80 would in fact come into play, implying that there would be some dollar award for the plaintiffs."
Following further discussion, the objections of counsel for appellee were noted for the record.
On September 11, 1987, appellees instituted an appeal of the judgment to the court of appeals. On December 8, 1988, the court of appeals reversed, concluding that the trial court erred in failing to remove the juror for cause and in communicating with the jury out of the presence of counsel.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Charles Kampinski Co., L.P.A., and Charles Kampinski, for appellees.
Reminger Reminger Co., L.P.A., and Nicholas D. Satullo, for appellant.
I
It is the initial contention of appellant that the court of appeals erred in reversing the judgment below because a potential juror should have been removed for cause. This court has previously observed that the decision to disqualify a juror for bias is a discretionary function of the trial court. See Maddex v. Columber (1926), 114 Ohio St. 178, 183, 151 N.E. 56, 57. See, also, State v. Bedford (1988), 39 Ohio St.3d 122, 128, 529 N.E.2d 913, 920. Where a trial court is vested with such authority, reversal on appeal is justified only if its exercise thereof constitutes an abuse of discretion. See Martin v. Martin (1985), 18 Ohio St.3d 292, 294-295, 18 OBR 342, 344, 480 N.E.2d 1112, 1114; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 218, 5 OBR 481, 482, 450 N.E.2d 1140, 1141. In State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O. 3d 169, 173, 404 N.E.2d 144, 149, the applicable standard of review was defined as follows:
The challenge was predicated upon R.C. 2313.42, which provides in relevant part:
"The following are good causes for challenge to any person called as a juror:
"* * *
"(J) That he discloses by his answers that he cannot be a fair and impartial juror or will not follow the law as given to him by the court.
"Each challenge listed in this section shall be considered as a principal challenge and its validity tried by the court."
"The term `abuse of discretion' connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. * * *"
Consequently, when applying this standard, an appellate court is not free to substitute its judgment for that of the trial judge. See Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67, 554 N.E.2d 83, 87; Holcomb v. Holcomb (1989), 44 Ohio St.3d 128, 131, 541 N.E.2d 597, 599; Lorain City Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 261, 533 N.E.2d 264, 267; Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, 94, 518 N.E.2d 1197, 1199.
In the case sub judice, the trial court had the opportunity to observe the demeanor of the prospective juror and evaluate firsthand the sincerity of her responses to questions. On nine separate occasions the juror assured the court and counsel for the parties that she could be fair and impartial and would follow the law as it was given to her by the judge.
In reversing the decision below rejecting the challenge for cause, the appellate court disregarded the assurances given by the juror and, in essence, substituted its judgment for that of the trial judge. By so doing, the court of appeals failed to apply the appropriate standard of review.
We therefore hold that the determination of whether a prospective juror should be disqualified for cause is a discretionary function of the trial court. Such determination will not be reversed on appeal absent an abuse of discretion.
II
The court of appeals further concluded that the decision of the trial court to respond to certain inquiries of the jury without the participation of counsel constituted reversible error. We disagree.
Although counsel had no opportunity for objection until after the jury was discharged, we must nevertheless conclude that appellees have failed to demonstrate that the trial court committed prejudicial error. We observe at the outset that the only post-verdict objection advanced by appellees relates to the trial court's response to the jury's question about the allocation of damages. The question and response thereto were as follows:
"Will the dollar amounts we put on Interrogatories #6 #7 be awarded to plaintiff or does our 20%-80% verdict come into play?"
"The court will do computations if any. Your 20%-80% finding will come into play."
The response given by the trial court is wholly consistent with the charge given the jury before it began its initial deliberations. Moreover, even if this court were to indulge in the assumption of appellees that the response was confusing to the jury, it is beyond question that it had no effect on the outcome of the case. The jury concluded that appellant was twenty percent responsible for the injuries sustained by appellee and that appellee was eighty percent responsible. This conclusion was the same both before and after the jury retired for further deliberations. The explanation given by the trial judge that any percentages assigned by the jury would have an effect on appellees' ultimate recovery was a correct statement of the law. However, the explanation was in response to a question concerning the total damages sustained by appellees. Whatever the final outcome may have been regarding the assessment of total damages by the jury, appellees recovery would have been barred by the jury's previous percentage determination. Pursuant to R.C. 2315.19 (C), where a plaintiff's responsibility for her injuries exceeds fifty percent, recovery is denied. Accordingly, the jury's prior determination that appellee was eighty percent negligent was dispositive of the case.
Moreover, when the jury first returned answers to interrogatories disclosing that appellee was eighty percent negligent, the trial court was empowered to enter judgment for appellant. Civ. R. 49(B). Where there exists a conflict between the general verdict and the interrogatories, the trial court may determine that the answers to the interrogatories prevail. The jury initially returned verdict forms finding in favor of both appellant and appellees. While the trial court could have entered judgment for appellant at that point, it decided, over objection by appellant, to permit the jury to resume its deliberations. The jury thereafter returned a verdict in favor of appellant and consistent with its earlier responses to the interrogatories. Nevertheless, the trial court would have been free to reach a similar result based on the findings made by the jury prior to the inquiries it directed to the court and prior to receiving the responses thereto.
The judgment of the court of appeals is therefore reversed and the cause remanded for entry of judgment.
Judgment reversed and cause remanded.
MOYER, C.J., HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.