Opinion
No. 19664
Decided April 14, 1965.
Pleading — Action for damages — Allegations of petition — Motion to make definite and certain — Specifications of negligence and conclusions — Charge to jury — Facts to be considered.
1. Petition for damages for the doing of an act that resulted in actionable injury need contain only a concise statement of the occurrence, injury and claim, such as will in law entitle a party to an action, with prayer for judgment. (For examples, see "Report of Commissioners," page 249 "For Injury to the Person"; Swan's "Pleading and Precedents," Form 51, "For Driving a Carriage over Plaintiff," and U.S. Code, Title 28, Rule 84, Form 9: "Complaint for Negligence.")
2. Motion to make such pleading definite and certain must be overruled, as precise nature of charge is apparent, and such motion is not to be used to replace the statutory discovery procedures.
3. Specifications of Negligence and Conclusions in Petition based upon such an act are prolix, and are irrelevant and superfluous, and must be stricken from petition, upon, or without, motion to strike.
4. Such petition furnishes the predicate for proof of all such incidental facts, of omission and commission, as fairly tend to establish the negligence of the primary act complained of.
5. The rule of N. Y., C. St. L. RR. Co. v. Kistler, 66 Ohio St. 326, in opinion and paragraphs 1 and 2 of syllabus, requiring the setting forth the acts of commission and omission relied upon, in the petition, must be confined to that case, and disregarded as precedent for form of a petition.
6. The rule set out in B. O. RR. Co. v. Lockwood, 72 Ohio St. 586, that it is error to refuse to charge the jury that it should not consider any other negligence than that charged in the petition must be confined to that case, as it failed to consider the variance statutes.
Mr. Robert B. Brewer, for plaintiff.
Mr. Frederick J. Buckley, for defendant.
On Motions to Strike phrases from Second Amended Petition.
The petitions have stated that the corporate defendant was holding a Farm and Farm Equipment Exhibition, to which plaintiff had paid an admission fee and that while he was observing, a farm machine hurled an object that hit and injured his left eye. He alleges medical expenses, lost wages, pain and suffering and seeks money judgment.
The present petition also alleges that "defendant failed to exercise reasonable care —," etc., with specifications of negligence and conclusions, to all of which these motions are directed. Heretofore, other specifications and conclusions had been ordered stricken.
All systems of judicature require a statement of his case from each contending party, and the present general laws as to such pleadings, in the Revised Code of Ohio, are:
Section 2309.04, Revised Code — the petition by the plaintiff — must contain — a statement of facts constituting a cause of action in ordinary and concise language; —
Section 2309.13, Revised Code. The answer shall contain — a statement in ordinary and concise language of new matter constituting a defense or counterclaim; —
These come, with little change, from the original Code of Civil Procedure, 51 Ohio Laws 56, effective July 1, 1853:
Section 85. The petition must contain — a statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition: —
Section 92. The answer shall contain — A statement of any new matter constituting a defense, counterclaim or setoff, in ordinary and concise language and without repetition.
How did these become our basic rules of pleading?
"Judicial proceedings according to the course of common law" was a provision in the Ordinance of 1787. Only one system of courts was created to hear matters of both law and equity by 1 Laws N.W. Territory 7, and by the Constitution of Ohio of 1802, P. B. Wilcox's "Ohio Forms and Practice" (1848) gives ten Common Law Actions that were commonly used for redress of civil injuries, tacitly adopted from the Common Law of England, and, also, proceedings in equity, practically all of these being modified in Ohio by legislation.
The Supreme Court was required to sit once a year in each county and its judges and those of Common Pleas Courts were appointed by the General Assembly. As 1850 approached, Ohio had almost two million population (the third in the nation), with many new counties. Such annual Supreme Court sessions created increasing delays and dissatisfaction with this, with the many law actions and fictions, and with other things led to demand for revision of the Constitution. The electors voted almost 3 to 1 for holding a Convention to make changes; one of 108 delegates was created by law, and the elected delegates, including 42 judges and lawyers, met for a total of 135 days.
The Constitutional Convention met in Columbus from May 6 to July 8, 1850, and in Cincinnati from December 2, 1850 to March 10, 1851. Among the Judges and lawyers were: Hon. Peter Hitchcock, Burton, Geauga County, Chief Judge of the Supreme Court (on that Bench for 26 years since 1819) (see 20 Ohio Reports); Judge Sherlock J. Andrews, Cleveland, of its Superior Court; and three President Judges of Courts of Common Pleas: A. G. Brown, Athens; George Collings, West Union; and Richard Stilwell, Zanesville. Also five former President Judges: Reuben Hitchcock, Cleveland; George B. Holt, Dayton; William Kennon, St. Clairsville; Joseph R. Swan, Columbus; and Elijah Vance, Hamilton; and two former Associate Judges of Courts of Common Pleas: Hugh Thompson, Sidney, and John Chaney, Carroll, Fairfield County. And, also, Henry Stanberry, Columbus, Attorney General. (Among laymen Delegates were Joseph Vance, Urbana, former Governor of Ohio, and former Associate Judge Samuel Morehead, Greene, Harrison County. Perhaps other laymen had been Associate Judges, no inquiries were made upon that question.)
The 1846 Constitution of New York provided for an appointment of commissioners to revise and abridge pleadings and practice in courts of record, and one named was reformer David Dudley Field. Their report, with a few changes, became law as a Code of Civil Procedure, that met with almost instant disapproval by its Courts and Bar.
A somewhat similar proposal for Commissioners to simplify forms and procedure, with uniform code of pleading, without reference to distinction between law and equity, was introduced in the Ohio Constitutional Convention and was well debated: 1 Debates, Ohio Convention, 338, 551-577; 2 Debates, Ohio Convention, 314-326, 331. The proposal, as amended, became Article XIV of the proposed Constitution, that, approved by the voters, became effective September 1, 1851. Three prominent lawyers (two had been delegates, with one a former President Judge, also), were appointed and confirmed as Commissioners.
The three Commissioners appointed by Governor Reuben Wood, and, on March 12, 1852, confirmed by the Senate were: William Kennon, St. Clairsville, a former President Judge; William S. Groesbeck, Cincinnati (both had been delegates to the Constitutional Convention), and Daniel O. Morton, former Mayor of Toledo.
The "Report of Commissioners" to the General Assembly completely covered Civil Procedure, and included their comments, reasons, and explanations that are very important in fully understanding the Code, as enacted, and as still in effect, with some few changes.
The Commissioners stated that the age "will have truth, plainness and good common sense in its courts" and said (pages 52-53):
"Pleadings should be plain and truthful. * * * We do not aim to make pleadings a system of dialectics, nor to lay the foundation for a new and cunning science of disputation. On the contrary, the aim is to avoid such a result and confine pleading within its proper bounds, making it a mere auxiliary in the administration of justice, never defeating it. We would not allow it to 'impede the cause of justice, by deciding causes, not upon their merits, but by its rules which are sometimes only ceremonial.'"
And in summarizing the method of pleading, they said (page 56):
"The mode of pleading provided — is this: the party is to state the facts only upon which his right to relief depends; this provision excludes, in every case, a detailed statement of the evidence, by which the facts are to be proved. The party should not set forth the circumstances, by which he expects to establish his claims."
To their Report, they attached "Appendix — Forms for Illustration," and among "Pleadings," on page 249, is the followings:
FOR INJURY TO THE PERSON
Plaintiff says that on the defendant being the owner of a stage coach, the plaintiff took passage therein at to be carried to that the stage was upset by the carelessness of the driver in the service of the defendant, and the plaintiff thereby had his arm broken, and was otherwise injured, in consequence of which he had to expend dollars for medical services, and was otherwise damaged; and says that he has sustained damage to the amount of dollars.
Whereupon he asks judgment for dollars.
These basic facts were probably taken from a verbose form in 2 Chitty's Pleadings (Tenth American Edition, from Sixth London Edition) (1847) 362.
Ohio was an exception to the general hostile reception of the Codes. Several of the Convention delegates became Judges, of the Supreme Court: William Kennon (a Commissioner) (See 37 Ohio St. v.), Rufus P. Ranney (49 Ohio St. v.) and Joseph R. Swan (42 Ohio St. v.) seven, of Courts of Common Pleas, and two, of the Probate Court.
Judge and lawyer delegates who later became Judges of Courts of Common Pleas were: John L. Green, Chillicothe, and later Columbus; Reuben Hitchcock, Cleveland; Samuel Humphreville, Medina; Simeon Nash, Gallipolis; Shepherd F. Norris, Batavia; George J. Smith, Lebanon; and Richard Stilwell, Zanesville; and those who became Judges of Probate Courts were: Flavius Case, Logan; and George Cummings, West Union. (Some laymen may have become Probate Judges, but no search was made as to them.) The Convention Chairman, lawyer William Medill, Lancaster, became the second Governor under the new Constitution.
Most histories state that Delegate Josiah Scott, Cadiz, was later on the Supreme Court. However, Delegate Scott, 48 years old, born in Pennsylvania, had been in Ohio 40 years, Prosecuting Attorney of Harrison County, 1834-38, and was elected as delegate from district of Harrison and Jefferson counties. Judge Scott (34 Ohio St. vii), born in Pennsylvania in 1803, came to Ohio 1829-30, settled and practiced law in Bucyrus, moved to Hamilton in 1851, was elected to Supreme Court, moved back to Bucyrus about 1868, and was later appointed to the Supreme Court Commission. Both had been in the House of Representatives of the General Assembly at the same time, 1840-1841, one (later Delegate Scott) from Harrison County; the other (later Judge Scott) from District of Delaware, Marion and Crawford Counties. Question of relationship was not searched. These two men of the same name, without any middle initial, have been confused by all historians.
Judge Simeon Nash, Gallipolis, who as a delegate talked and voted against Article XIV, wrote the first book on Ohio Code Pleading: "Nash's Pleading and Practice, under the Codes of Ohio, New York, Kansas and Nebraska, with appropriate forms" (1856). His form 175, First Edition (Form 202, Fourth Edition, 1874), "For Negligence in Driving a Carriage," is apparently taken from 2 Chitty's Pleadings 708. His comment, Fourth Edition, Vol. 1, pages iv-v, is very important:
— if I copied the substance of a common-law declaration or plea, I knew that I gave a form that could be relied on. These old forms — discriminate between what is evidence and what is fact. The code, like pleading at common law, requires facts, not evidence, to be stated, and hence the necessity of discriminating between the two. This is clearly done in all common-law forms of pleading; * * *
Hon. Joseph R. Swan wrote "Swan's Pleading and Precedents" (1860) (republished 1867), that is outstanding, and its forms can easily be changed to fit the modern world. His Form 51, pages 322-323, "For Driving a Carriage over Plaintiff," after venue and caption, reads:
The Plaintiff says:
1. On the ___ day of ___, the defendant was possessed of a certain carriage, and two horses drawing the same; and a servant of the defendant had the management and direction of said carriage and horses.
2. The defendant, by his said servant, took so little and bad care of the horses so drawing said carriage, that the said servant, negligently and carelessly, with violence, drove the said carriage against and over the plaintiff, as the plaintiff was then crossing over a certain street and common highway, whereby the ribs of the plaintiff were broken, his hip bone dislocated, his arms and head, and other parts of his body fractured and bruised, and he and thereby lamed and sick, and for ___ weeks disabled from following his business, and laid out the sum of ___ dollars, in setting and healing of the said injuries and curing the same. To the damage (etc.).
The 1885 "In Memoriam" to him (42 Ohio St. v.) stated that the Bench and Bar were influenced by this work and led to construe the Code in the spirit of the Code itself, that he made the Civil Code in fact a reformed system for administering justice and that the questions of pleading and practice before the Supreme Court were few.
He said as to "Facts" and as to pleadings, page 145, et seq:
"Some of the judges of the courts in New York — have endeavored to evoke a technical rule of pleading out of this word 'facts.'
"There is, really, no word in the English language that is more free from technicality or artificial legal meaning, than the word 'facts.' A statement of facts is a statement of events, things done, acts. The Code has not defined its meaning. It cannot, therefore, be held to have been used in the Code as a technical term, or to indicate physical facts, or real facts, or subjective or objective, as distinguished from other facts. To thus limit it, or to give it a new meaning, is to interpolate new rules of pleading not contained in the Code.
"The rule of pleading — does not provide how a cause of action or defense shall be stated, or what particularity or certainty of statement shall be made * * *
"* * * independent of all rules of pleading, the general principles of law require a certain state of facts to exist to entitle a party to his action and the relief he seeks, or to constitute a defense, — and these only — the Code requires to be stated in the pleadings. * * *
"It is obvious — that a work upon Code pleading, defining what facts should be stated in a petition, as a cause of action, or in a defense, would be a treatise upon civil jurisprudence."
Prof. Philemon Bliss, wrote "Bliss on Code Pleading" (1879) and in Second Edition (1887), Sections 211, 211a said as to "Negligence":
"The general allegation of negligence is allowed as qualifying an act otherwise not wrongful. It is not the principal act charged as having caused the injury, but it gives color to the act, makes it a legal wrong; it is the absence of care in doing the act. The injury may be the result of accident, of intent, or of negligence. As, one's carriage strikes that of his neighbor; if the collision is unavoidable there is no liability; if intentional it is a trespass, if the result of careless driving or other neglect of duty, the liability is for the collision as caused by negligence. Negligence is one of the facts to be pleaded, — an issuable, a substantive fact, to be inferred from evidential facts."
Among Code books by Ohio lawyers are: Clement Bates' "Ohio Pleadings, Parties and Forms under the Code" (1881), Alfred Yaple's "Code Practice and Precedents" (1887), Edgar B. Kinkead's "Code Pleading" (1895), and W. H. Whittaker's "Forms of Pleading under the Codes of Civil Procedure" (1900). In pleading negligence, all used short forms, with general words creating an issuable substantive fact, as "carelessly," "negligently," or "wrongfully," or other forms of these words, in describing the act of the wrongdoer.
Davis v. Guarnieri, 45 Ohio St. 470, 4 Am. St. Rep. 548 (1887), described the act of defendant, by agent, in selling poisonous drug for non-poisonous one ordered, as "carelessly and negligently put up said medicine" and that "the same was wrongfully, negligently, and carelessly sold and delivered." The trial Court charged upon the "poison" labeling law (not in petition) (see "V" of opinion), and in affirming judgment for plaintiff, the Supreme Court opinion said:
"The allegation in a pleading that the party complained against negligently committed the particular act which led to the injury whose redress is sought, furnishes the predicate for the proof of all such incidental facts and circumstances both of omission and commission as fairly tend to establish the negligence of the primary fact complained of.
"This rule of pleading is abundantly established by authority. * * *
"To plead specially all the facts and circumstances from which the negligence could be inferred, would be to plead evidence instead of facts."
Paragraph 5 of syllabus related to this case, and paragraph 4, the rule:
4. It is not necessary to allege in the petition in an action for negligently doing an act which resulted in an actionable injury, all the facts which contributed to the primary act complained of, or which tend to establish the negligence of such act.
This case is unreversed. N. Y., C., St. L. RR. Co. v. Kistler, 66 Ohio St. 326 (May 13, 1902), was opinion after second trial on same pleadings. Circuit Court opinion (case with same name), 16 C. C. 316, 9 C. D. 277 (see opinion), well stated the facts and petition. Plaintiff, injured in railroad crossing accident on June 2, 1892 made four claims of negligence, two being that defendant, by agents, "negligently and carelessly approached and crossed said highway with said locomotive and train of cars at a high, immoderate and dangerous rate of speed" and "negligently and carelessly operated and handled its said locomotive and train of cars." Defendant's motion that petition be made definite and certain and to strike out words was overruled February 7, 1893, Answer (with no interrogatories annexed) filed with denials, and claim of contributory negligence, that was denied by Reply.
Trial, January 22-30, 1894, resulted in verdict and judgment for plaintiff. On error, Circuit Court raised question as to the quoted claims of negligence, and reversed on ground the verdict was not sustained by sufficient evidence and was contrary to law.
Second trial, October 11-22, 1898, upon same pleadings (13 witnesses, including some of train crew, for defendant), again resulted in verdict and judgment for plaintiff. Error to Circuit Court, where for the first time, there was a claim of error as to the (1893) overruling of motion to petition, mentioning only the two quoted phrases; this Court ordered a remittitur, that plaintiff accepted, and judgment was affirmed.
Error to Supreme Court. Circuit Court briefs and original brief of Railroad in Supreme Court were not found, and railroad's Reply Brief does not mention the Motion. Therefore, the Kistler Answer Briefs were examined, as to this claim of error, and these show that the Railroad claimed it was prejudiced by the ruling, because evidence was introduced, over objection, relating only to question whether company, after it saw or ought to have seen her on the track, could, by slackening speed, have prevented the collision. And one of her Answer Briefs also stated:
"And it comes with doubtful grace, from Counsel for plaintiff in error to claim as they do, that they have been misled by scantiness of pleading, upon the last trial.
"They say they had no chance to make defense."
(Apparently, from the record, the deposition of plaintiff, as upon cross-examination, was never taken by the defendant.)
The Supreme Court, now, after the first trial (January 1894) had fully disclosed plaintiff's claims and evidence, in this error proceeding from the second trial (October 1898) found error in the (1893) overruling of motion to make petition definite and certain, in that the company, on this second trial, had no notice of what acts of commission or omission would be attempted to be proved or relied upon. That the petition should have stated those things, and on trial, the evidence confined to such acts so averred, and stated; "this is in accordance with the rule of pleading laid down in Davis v. Guarnieri, 45 Ohio St. 470." The syllabus, in first paragraph, stated the general finding of error in the overruling of motion, and, in second paragraph, said that a petition, in action upon negligence, should state the acts of commission or omission, and then aver that "such acts were carelessly or negligently done or omitted." (Note; other than the section as to making a pleading definite and certain, the other pleading statutes were completely ignored in opinion and syllabus.)
After Mandate of reversal was filed in trial Court, an Amended Petition, by leave of Court, was filed, with same claims of negligence, reworded, and setting out in evidential detail the specific acts of commission and omission, claimed as negligent. Defendant's counsel filed motion to vacate and set aside such leave to file, with one ground that such leave was "oppressive and unjust to the defendant." Motion was overruled, followed by various proceedings, and without a third trial, finally, after costs had been paid, on March 23, 1904 the cause was dismissed by consent of parties.
Prof. Robert Kovach, in "Problems of Plaintiff in Pleading Negligence," 23 Ohio State Law Journal 435, discussed Guarnieri and Kistler, but did not mention the time sequence in Kistler.
It is plainly seen that the Supreme Court in Kistler was not following Guarnieri. The rule in second paragraph of Kistler syllabus was not good Common Law as used in Ohio and was not good law under the Code of Civil Procedure. The opinion and first and second paragraph of Kistler should be confined to that case alone. By such opinion and such paragraphs of syllabus, the Supreme Court attempted to make a Motion to make petition definite and certain take the place of the statutory discovery proceedings by interrogatories and cross-examination of opposing party by deposition. Such replacement of these statutory rights was not enacted by the General Assembly, and the Kistler theory of pleading must be rejected.
In The B. O. RR. Co. v. Lockwood, 72 Ohio St. 586 (1905), the Supreme Court used the obiter dicta in Kistler opinion: "Upon the trial the evidence should be confined to the acts of negligence so specifically and definitely averred in the petition" as its sole Ohio authority, and upon this, it said in syllabus:
"2. It is error to refuse to charge the jury that it should not consider any other negligence than that charged in the petition."
The Court completely ignored the statutes as to variance, then Sections 5294 and 5295, Revised Statutes, originally enacted as Sections 131 and 132 of Code of Civil Procedure (later, Sections 11556 and 11557, General Code, and now Sections 2317.49 and 2317.50, Revised Code, with slight change in wording). It also ignored Hoffman v. Gordon Bro., 15 Ohio St. 211 (1865), then, and now, unreversed.
Study of "In Memoriam" tributes to Judges of Supreme Court on Bench at time of Guarnieri (1887), of Kistler (1902) and of Lockwood (1905), reveals differences in approach to questions. At time of Guarnieri, apparently they care "more for good reasons than precedents," at time of Kistler, they "lent an attentive ear to precedents * * * as the accumulated wisdom of the law," plus in Lockwood "familiar with precedents."
Ohio had few cases interpreting the Code; New York had a vast number of such cases as its Courts (aided by its Bar) had gone to great lengths to defeat the letter and spirit of the Code, so great was the dislike for the reformer Field, who was held personally responsible for it.
The exact precedents for Kistler and Lockwood were not shown in the opinions; they were not from Ohio, probably from New York, or from a State following New York decisions, or also opposed to its Code. Perhaps the Court was using the strictness of unmodified Common Law as precedent in Lockwood; the Code abolished such strictness; whatever the precedent for Lockwood, it was not current Ohio law. John Norton Pomeroy (Rochester, New York) in "Remedies and Remedial Rights" (1879) 39, approved the Codes and mentioned the confused pleadings in States where the Code principles had been overlooked, neglected, and abandoned. Judge Edgar B. Kinkead (the author) in Brook v. Columbus Ry. Light Co., 30 O. D. (N. P.) 611, 13 N. P. (N.S.) 501, (1912), said that pleading facts, then specifications of negligence, resembled the common law method in a neighboring State, not naming it. Such form of pleading was never part of the common-law system of pleading and procedure in Ohio.
Delegate Rufus P. Ranney (later, on the Supreme Court), in speaking of elimination of forms and technicalities, in law, said that this "was the very thing to cut down all quackery in the profession." (1 Debates, Ohio Convention 557.)
Judge Swan said in Irwin v. Bank of Bellefontaine, 6 Ohio St. 81, 87, that:
Prominent among the objects of the code was to prevent the rights of a suitor, or the merits of his case, from being sacrificed to technical rules, or to the omissions or mistakes of his attorney.
The alien principles of Kistler and Lockwood may have been, and probably were, satisfactory and proper in the areas or States where developed and in use, in accordance with the history there, but they were outside the orderly development of Ohio procedural law. Ohio had begun early to ameliorate the strictness of common-law procedure, and was probably one of the most advanced States at the time of the adoption of the Code, which undoubtedly was one reason why it was so generally accepted by the Ohio Bench and Bar.
Kistler and Lockwood, and all cases based on, or following them, must be limited to the particular case or cases alone, and disregarded as precedents, as they were not and are not in accordance with Ohio procedural law.
Streamlined civil procedure, with simple pleadings, adopted in Ohio in 1853, was, some 85 years later, in 1938, adopted for the Federal Courts. Similar to, but modern and still shorter than, the two forms already given, is Form 9 "Complaint for Negligence," in U.S. Code, Title 28, Federal Rules for Civil Procedure, Rule 84, said to have come from Chitty through Massachusetts (see 13 Cincinnati Law Review 46), that reads:
1. Allegation of jurisdiction.
2. On June 1, 1936, in a public highway called Boylston Street, in Boston, Massachusetts, defendant negligently drove a motor vehicle against plaintiff who was then crossing said street.
3. As a result plaintiff was thrown down and had his leg broken and was otherwise injured, was prevented from transacting his business, suffered great pain of body and mind, and incurred expenses for medical attention and hospitalization in the sum of one thousand dollars.
Wherefore plaintiff demands judgment against defendant in the sum of ten thousand dollars and costs.
Notice the general similarity of all three forms and also of this Form 9 and Swan's Form No. 51, in general allegations.
Use of specifications of negligence is not pleading material allegations in simple form, as shown by the three examples, and in the Second Amended Petition herein, they could be stricken and there would still remain the basic facts, as briefly set out early in this opinion. Such wording is irrelevant and superfluous, adding nothing to the present petition. Ohio Courts have ruled many times upon such specifications and conclusions, stating that they violate the Ohio pleading statutes.
Motion of defendant to strike all specifications of negligence and conclusions from Second Amended Petition must be sustained. Prolixity in pleadings has always been subject to being stricken out under the inherent power of Courts, and, if motion had not been filed herein, this Court would have been under the duty of striking out all these matters, thus leaving the pleading complying with the statutes.
Third Amended Petition is to be drawn in ordinary and concise language, as in the forms herein, as such pleading of negligence is legal and proper. Such short form was undoubtedly intended by the General Assembly, in enacting the Code, and as far as is known, no other type of form for pleading negligence has ever been before that or any other General Assembly. The words "negligently," or "carelessly," "wrongfully" or other forms of such words, may be used when necessary, as in the forms herein, to briefly state an issuable fact or a substantive fact.
Ohio, in its Revised Code, has many sections, to be noticed:
Motion for Order to make such a petition definite and certain (Section 2309.34, Revised Code), if filed, must be overruled and denied, as the " precise nature of the charge" would be apparent, and such motion is not to be used in place of discovery action or procedure, and such general allegations, as in the forms, are all that are necessary.
Motion to strike words from such a petition (Section 2309.33, Revised Code), if filed, must be overruled, as there could not be any possible showing that defendant was prejudiced by any of such wording.
Any answer with statement of any new matter constituting a defense or counterclaim must also be in simple, general language.
If either party desires more information that he, or it, through officers or agents, now has, Ohio has ample discovery statutes, such as: by interrogatories annexed to pleadings (other than demurrer) (Section 2309.43, Revised Code), by other interrogatories, or by cross-examination orally, by deposition (Section 2317.07, Revised Code), by right of inspection and to make copies of books, papers and writings containing evidence relating to the merits of action or defense (Section 2317.33, Revised Code), and numerous other sections relating to discovery of or proof of, evidence, before trial.
On the trial, under such general allegation of negligent commission of the act that led to the injury whose redress is sought, the plaintiff may offer evidence of all such incidental facts and circumstances both of omission and commission as fairly tend to establish the negligence of the primary act complained of.
Many Ohio Courts, including this Court, have an unwritten, or a written, rule, similar to Rule 30 (January 14, 1962), of Montgomery County Court of Common Pleas: "Pleadings will not be read by counsel to the Jury nor submitted to the Jury by the Court."
Variance from pleadings is allowed upon trial, unless it has actually misled the adverse party to his prejudice (which must be proved to satisfaction of the court), in maintaining his action or defense upon the merits (Section 2317.49, Revised Code), and when not material, "the court may direct the fact to be found according to the evidence, and order an immediate amendment." (Section 2317.50, Revised Code.)
Before or after judgment, in furtherance of justice, the court may amend any pleading, process or proceeding, by adding or striking out certain matters, or "when the amendment does not substantially change the claim or defense, by conforming the pleading or proceeding to the facts proved." (Section 2309.58, Revised Code.) And "in every stage of an action, the court must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party." (Section 2309.59, Revised Code.)
The whole Code of Civil Procedure was enacted upon the principle of doing justice to the parties (and its amendments have been to the same effect), and this was well expressed in Swan's "Pleading and Precedents," 129:
When a suitor appeals to the public tribunals for justice, no subtlety of the lawyer of his adversary should be permitted to evade an inquiry into the merits of the case, and no mistake of his own lawyer should be an excuse for denying to him an inquiry into the real injury he may have sustained.
The outside influences and rules brought into Ohio procedure in civil actions, as shown, must be entirely rejected. Pleadings are to be, as intended, "plain and truthful," "in ordinary and concise language."
Entry in accordance with this opinion.