Opinion
No. 21270.
1947-08-21
MORSE v. WISE.
Wayne E. Davis, of Willoughby, for plaintiff. Tuttle & Hubbard and E. R. Ostrander, all of Painesville, for defendant.
Action by Harvey Morse against Glenn R. Wise for damages arising out of an automobile collision. On defendant's motion for a new trial.
Motion denied.Wayne E. Davis, of Willoughby, for plaintiff. Tuttle & Hubbard and E. R. Ostrander, all of Painesville, for defendant.
SLOCUM, Judge.
This case is now before the Court upon the defendant's motion for a new trial containing some ten grounds. The counsel for the defendant argued, however, only:
1. The damages given by the jury are excessive and appear to have been given under influence of passion or prejudice.
2. Misconduct of the prevailing party through his counsel.
10. ‘Irregularity’ in the proceedings of the Court, and by the plaintiff through his counsel, by which the defendant was prevented from having a fair trial.
Boiled down to its simplest terms the plaintiff's petition stated that on or about 1:00 o'clock a. m. on the 30th day of May, 1946, the plaintiff was driving his automobile in an easterly direction on the south side of Lake Shore Boulevard, in Willoughby Township, Lake County, Ohio, and that when his car was on the bridge which crosses the Chagrin River, on his own right-hand side of the road he was struck by the defendant's car which was on its left or wrong side of the road, and that he sustained substantial personal injuries and his 1937 Willys automobile having a value of $300 was completely demolished, so that it was necessary for the plaintiff to sell it as salvage. He received therefor the sum of $45, resulting in loss to him in the amount of $255. He prayed for judgment against the defendant for damages in the amount of $25,905 and costs of suit.
The defendant's answer admitted in substance:
The existence of Lake Shore Blvd. and that it extended in a generally easterly and westerly direction through Willoughby Township, Lake County, Ohio. He then denied the allegations of the plaintiff's petition and alleged that if it should be found that he was in any respect negligent, which he denied, then plaintiff's own negligence and his failure to use ordinary care to observe and avoid the automobile of the defendant directly and proximately contributed to whatever injuries he sustained.
The evidence to the Court's mind was sufficient beyond a reasonable doubt to show that the plaintiff was on his own right-hand side of the road and that the defendant collided with him while driving on his left or wrong side of the road.
Counsel for the plaintiff upon questioning the jury on voir dire elicited the information from one juror, that she had a prejudice against people driving a car while under the influence of intoxicating liquor, but she stated in substance that she would be guided solely by the evidence and the law as given her by the Court. No objection was made to her, either for cause or by peremptory challenge. However, counsel for plaintiff in his opening statement stated that the evidence would show the defendant was in a state of intoxication and this statement was strenuously objected to at the time by counsel for the defendant since the plaintiff's had made no such allegation in his petition. However, see in this connection 17 Ohio Jurisprudence, Section 161, pp. 208, and also the first syllabus of the Cincinnati Traction Co. v. Baron et al., 3 N.P., N.S. 663, which reads as follows: 1. ‘In an action for damages on account of injury to a street car passenger in collision with a wagon, an averment in the petition that the motorman negligently, carelessly and unskillfully permitted his car to run into the wagon, is sufficiently broad to make competent testimony to the effect that the motorman was in a state of intoxication five hours before the accident occurred.’
See also Laub v. Murphy, 16 O.L.A., 186. The first syllabus of the case reads as follows: ‘Evidence of the intoxication of the driver of an automobile involved in a collision is competent in an action for damages growing out of such collision, though not pleaded.’
During the course of the trial the only evidence of intoxication was to the general effect that the defendant by his admission on cross-examination had had two glasses of beer about 6:30 that evening, he did not drink hard liquor, and one of the witnesses smelled the odor of liquor on his breath at the scene of the collision. There was no evidence that he was intoxicated and the Court carefully instructed the jury that they should ignore this evidence and that there was no evidence that the defendant was intoxicated. The Court also upon objection of Counsel for the defendant at the time plaintiff's counsel was arguing this case, further instructed the jury concerning this matter and reproved counsel for the plaintiff for referring in his argument to this evidence of the beer drinking. The Court therefore feels that there was no prejudicial error committed.
Counsel for the plaintiff in cross-examining the defendant concerning defendant's statement to the Sheriff of Lake County, brought out, unintentionally, in the opinion of the Court, the fact that defendant had made a statement to his insurance company. The defendant volunteered the information in this regard and his statement was not necessary to answer the questions put to him. The line of questioning of defendant by plaintiff's counsel at no time suggested the matter of insurance, nor was it apparently framed for the purpose of eliciting such information. The Court therefore feels that there was no prejudicial error in this regard. See in this connection Ruffo v. Randall, 72 Ohio App. 396, 52 N.E.2d 750, 751, the fifth syllabus of the case, in which the opinion was rendered by Judge Nichols reading as follows: ‘Where counsel for plaintiff in such case, in developing the reason for the appearance of certain witnesses for defendant, bared the fact that an insurance agent had interviewed the witnesses and had agreed to see that they were compensated for their time and expenses, no prejudicial error was committed, when no bad faith was shown.’
Counsel for the defendant also argued that the verdict was excessive and was influenced by the fact that the jury learned that there was an insurance company representing the defendant. The Court feels that there was sufficient testimony to sustain this verdict of $7000. The evidence showed that he sustained a permanent disability to his leg, that his blood pressure has been low since the accident, that he tires easily, and that he had some 27 stitches taken in his scalp, and that this portion of the scalp is now numb. He also sustained a considerable loss of wages and his power to labor and earn a living is still, to some extent, impaired. His doctor testified there would be some residual effects: he would be subjectto headaches and fatigue and weakness of the ligaments of his knee would bother him if he stood any length of time. The evidence was uncontradicted that his automobile was a total wreck. With this evidence in mind, the Court is of the opinion that the verdict is not excessive and was not induced by passion or prejudice on the part of the jury. The Court feels that substantial justice was done the parties.
The Court is, therefore, of the opinion that the Motion for a New Trial is not well taken and that there should be no remittitur of the verdict. Prevailing counsel will, therefore, draw a Journal Entry in accordance with this opinion and submit the same to opposing counsel and the Court for approval, noting proper exceptions.