Opinion
No. 79-1069
Decided June 11, 1980.
Negligence — Court procedure — Charge to jury — On degree of proof — Charge not prejudicial error, when.
APPEAL from the Court of Appeals for Cuyahoga County.
On January 20, 1977, Susan and Eugene Hyneman filed a negligence action in the Court of Common Pleas of Cuyahoga County against The Cash Register Service Company seeking to recover for personal injuries sustained by Susan Hyneman when she tripped over a tool box placed on the floor of a restaurant where she was employed. The tool box belonged to one of defendant's employees.
The case was tried to a jury. Early in its instructions to the jury, the court gave a correct instruction on the preponderance of the evidence standard. Following this instruction, the judge, in discussing the law to be applied, continuously reminded the jurors that they were to use the preponderance of the evidence standard in assessing the evidence.
After concluding his instructions on the applicable law, the court asked counsel for additions, deletions, or corrections, whereupon a discussion at the bench took place. The court then instructed the jury on foreman selection, questions to the court, forms of verdict, and their duties as jurors to discuss the case and to exercise individual judgment. It was during these remarks, that the judge expressed the following instruction to which plaintiffs timely objected:
"Ladies and gentlemen of the jury, you are here for one purpose only, that is to ascertain the truth, the whole truth, and nothing but the truth in this case as nearly as truth in human affairs have been ascertained. The law, in constituting a jury of eight, contemplated that each and every one of you shall give your individual consideration and judgment upon the evidence."
A verdict was returned for defendant. Plaintiffs appealed claiming in part that the remark at the end of the instructions regarding the jury's duty to ascertain "the truth, the whole truth, and nothing but the truth" was prejudicial error. The Court of Appeals affirmed, holding that the jury was not misled when the charge was considered as a whole.
The cause is now before this court upon allowance of a motion to certify the record.
Todia Niehaus Co., L.P.A., and Mr. William C. Todia, for appellants.
Messrs. Arter Hadden and Mr. Hugh M. Stanley, J., for appellee.
The sole issue before this court is whether the trial court, in giving the instruction regarding the duty of the jury "to ascertain the truth, the whole truth, and nothing but the truth***as nearly as truth in human affairs have been ascertained," committed prejudicial error.
This court stated in paragraph three of the syllabus in Cleveland Ry. Co. v. Goldman (1930), 122 Ohio St. 73, that "[w]here the court imposes upon an aggrieved litigant a greater burden of proof than the law requires, prejudice will be presumed." Appellants argue that the instruction regarding the jury's duty to ascertain the truth imposed a greater burden of proof than the law requires and as a consequence was prejudicial error.
In paragraph three of the syllabus in Snyder v. Stanford (1968), 15 Ohio St.2d 31, this court stated:
"Reversible error ordinarily can not be predicated upon one paragraph, one sentence or one phrase of the general charge to the jury. Where the court's charge to the jury, considered as a whole, is not prejudicial to the objecting party, no reversible error results from a misstatement or ambiguity in a portion thereof." This statement was based on a number of earlier decisions including State v. Porter (1968), 14 Ohio St.2d 10; Centrello v. Basky (1955), 164 Ohio St. 41; and Ochsner v. Cincinnati Traction Co. (1923), 107 Ohio St. 33.
Ordinarily under this rule, an instruction which is clearly incorrect as to the law which should be applied cannot be corrected by a proper instruction unless the proper instruction clearly and specifically corrects or replaces the erroneous instruction. Marcoguiseppe v. State (1926), 114 Ohio St. 299, 301; Montanari v. Haworth (1923), 108 Ohio St. 8, 14; see, also, Goldman, supra, at page 80. If the proper instruction does not specifically correct or replace the incorrect instruction and it is impossible to determine which instruction the jury followed in making its decision, the court's charge, considered as a whole, must be found to be prejudicial to the objecting party. Marcoguiseppe, supra.
On the other hand, a misleading, ambiguous instruction can be corrected. It is not necessary to specifically correct or replace it; a proper instruction in and of itself can, under the proper circumstances, be found to have clarified any juror confusion making any error nonprejudicial. Snyder, supra; Porter, supra.
In the case at bar the trial judge was apparently attempting to instruct jurors philosophically as to their role in the judicial process. At worst, the jurors were confused by the remark because of its reference to truth, but such an assumption is speculative.
Consideration of the charge as a whole reveals that any confusion was cured. The remark was clearly set off from the court's remarks concerning the law to be applied in the case; the trial judge had asked for additions, deletions, or corrections, a discussion was had at the side bar, and he had begun to discuss jury deliberation procedure. No mention was made of standard of proof or of the preponderance of the evidence standard during that portion of the charge in which the alleged prejudicial instructions were given.
Appellants contend that the erroneous instruction in the case at bar is similar to the one found to be prejudicial by this court in Cincinnati, Hamilton Dayton Ry. Co. v. Frye (1909), 80 Ohio St. 289. Frye involved an instruction on contributory negligence which stated: "[I]f the defendant has satisfied your minds by a preponderance of the evidence that***the plaintiff was guilty of negligence***the plaintiff cannot recover." This court held that the use of the word "satisfied" placed a higher degree of proof on defendant than the law demands and as a consequence was prejudicial error. The Frye instruction clearly related to burden of proof. In addition, there is no indication that any instruction clarifying the matter was given. This court's disposition of the remark in Frye is inappropriate here.
While we strongly encourage trial courts not to give ambiguous, potentially confusing instructions, we find that the remarks under scrutiny here did not constitute prejudicial error.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.
W. BROWN, J., concurs in the judgment on the basis of paragraph four of the syllabus of State v. Price (1979), 60 Ohio St.2d 136, and fn. 5, page 141.