Opinion
No. 126362
Decided March 27, 1967.
Wrongful death — Pretrial — Plaintiff widow remarried — Use of former name — Remarriage inadmissible — Diminution of damages.
In a wrongful death action before a jury, the widow of the deceased, having remarried, is entitled to a pretrial order that she may be sworn and identified throughout the trial by her former name, and that no reference to her remarriage may be made, in order to prevent an unlawful diminution of damages.
Messrs. Baggott, Logan Gianuglou, for plaintiff.
Messrs. Altick McDaniel, for defendant.
At pretrial duly scheduled and held on the 24th day of March, 1967, counsel for plaintiff orally moved the court that upon the trial of this wrongful death action before a jury, that plaintiff, widow of the deceased, having remarried, when being sworn, be permitted to give her former name of Dorothy Birkhead; that she be so identified throughout the entire trial, and that counsel for defendant be directed not to indicate the remarriage and to refer to the widow by her previous name.
The law of Ohio is clear that remarriage is not admissible in diminution of damages and the motion is predicated thereon to prevent the intent of the rule of law from being subverted.
The court believes that such motion is a reasonable request and accordingly sustains the same in this to wit:
1. That in so far as all counsel for the parties and the parties herein are concerned the plaintiff shall, before the jury, be identified and referred to as "Dorothy Birkhead." She may not be cross-examined to show that her name is not Mrs. Birkhead.
2. Plaintiff's present husband, along with the other parties, will be presented to the jury for the purpose of determining whether the jurors know the present husband, without indicating his identity or in any way disclosing that she has again married.
The foregoing ruling number 1 is to prevent possible diminution of damages as a result of the marriage and the court observes that such a disclosure would in all common probability accomplish just that.
It is equally clear that the jurors must be asked whether or not they know the second husband, because should there be such an acquaintanceship on the part of any juror such juror should be disqualified. Thus every effort will be made to avoid that kind of contingency.
In the event a question of credibility in reference to plaintiff's names arising any time during trial counsel for defendant may not go into it. However, if such question arises which the court believes may be vital to the defense, or be prejudicial to the defendant, then only after consultation with the court, without the hearing of the jury, will the court decide such issue.
In the meantime, counsel for the defendant is to refrain from making any disclosure.
Exceptions to any adverse rulings herein are hereby noted.