Opinion
No. 23385
Decided June 15, 1932.
Charge to jury — Instruction upon all statutory lawinvolved, not required, when — General charge may be propounded in interrogatory form — Interrogatories may incorporate specific allegations of negligence — Special request upon contributory negligence, bars complaint issue not in case — Failure to charge that special instructions and general charge constitute law — Not error, in absence of special request thereon.
1. The trial court is not required to charge all the statutory law involved in an action at law, in the absence of a specific request so to do.
2. There is no law prohibiting the trial court from propounding a part of his general charge to the jury in interrogatory form, and no infirmity is injected into such charge by reason of the fact that he incorporated in the interrogatories the specific allegations of negligence.
3. Where counsel requests the court before argument to charge specifically on the issue of contributory negligence, and the court so charges, counsel will not be heard to afterwards complain that the issue is not in the case.
4. If the trial court fails to inform the jury that the special instructions given in writing before argument, taken in connection with the general charge of the court given after argument, constitute the law by which the jury will be governed in its deliberations on the case, he has committed no error in the absence of a request to so charge.
ERROR to the Court of Appeals of Muskingum county.
This is an action for damages for wrongful death, brought by Walter Eppley as administrator of the estate of Herbert Eppley, deceased, defendant in error here, against Walter Varner, plaintiff in error. The action was instituted in the court of common pleas of Muskingum county and a verdict was returned by the jury in favor of the administrator, in the sum of six thousand five hundred dollars. Error was prosecuted to the Court of Appeals, which court affirmed the judgment of the trial court, and error is now prosecuted to this court to reverse the Court of Appeals and the court of common pleas.
It appears from the record that on April 25, 1930, between the hours of six and seven o'clock p. m., Herbert Eppley, the deceased, was driving his Ford coupe in an easterly direction on the National Highway, about three miles west of the city of Zanesville, Ohio, and that Walter Varner was driving a Studebaker sedan in a westerly direction on said highway, at said time and place; that this highway is a much-traveled highway and consists of an eighteen-foot, hard-surface concrete road, with a berm of approximately eight feet or more constructed on each side of the improved road; that defendant's automobile collided with the automobile driven by Herbert Eppley; that the right front part of defendant's automobile struck the rear right side of the car driven by Herbert Eppley, and by reason of such collision Herbert Eppley was thrown out of the right door of his car with such force that his head struck the concrete pavement, from which he suffered a fractured skull and as a result of which he died on April 29, 1930.
The plaintiff charges that Herbert Eppley's death was caused wholly and solely through the carelessness, recklessness and negligence of Varner, in the following respects:
First, by driving and operating his Studebaker sedan automobile at a speed greater than was reasonable or proper, having due regard for the traffic, surface width and conditions of said highway then existing; second, in driving and operating said Studebaker sedan automobile upon said highway at said time and place at a greater speed than would permit him to bring said automobile to a stop within the assured cleared distance ahead; third, in passing on the left side of said highway, and in passing the automobile driven by Herbert Eppley on the left side.
Defendant below denies that he was in any wise careless, reckless or negligent, or guilty of any unlawful conduct, and alleges that the collision was incurred and brought about by the sole negligence, carelessness and recklessness of Herbert Eppley, deceased.
The administrator denies that his decedent was in any wise negligent.
Messrs. Meyer Crossan, for plaintiff in error.
Messrs. Graham Graham, for defendant in error.
There are eleven assignments of error made by the plaintiff in error. The first, fourth, fifth, sixth, seventh, eighth, ninth and tenth allege that the court failed to charge certain law germane to the case. In the second assignment, it is claimed that the court erred in attempting to define the issues by propounding three interrogatories, using practically the exact language of the three special charges of negligence. The third assignment alleges that the trial court erred in that in propounding the three interrogatories to the jury the court found and determined the ultimate facts, instead of leaving it to the jury to find the facts from the evidence.
From an examination of the record we find that plaintiff in error, defendant below, requested the court to give to the jury, in writing, before argument, twelve special instructions, and the court gave each and all of them. The defendant below requested the court, in special instructions numbers 1, 2, 3 and 12, to charge on the issue of contributory negligence; and now he complains that the court erred in charging on the issue of contributory negligence in his general charge, first, insisting that the issue is not made by the pleadings, and, second, that if such an issue was made in the case, the court's charge on contributory negligence was erroneous.
Whether the issue was made by the pleadings or not, it was injected into the case by plaintiff in error when he requested the court to charge on the issue, and he can not now complain that the issue was not made. The court had a right to charge on contributory negligence in his general charge, so long as the general charge on such issue did not in any wise change or modify the special instructions given before argument upon the issue of contributory negligence.
Plaintiff in error further insists that the court failed to instruct the jury to the effect that the special instructions given in writing, before argument, constituted a part of the law to govern them in their deliberations.
The record does not show that the court charged specifically upon this proposition; neither does the record show that he was requested so to charge. We find in the record that the court used the following language: "Ladies and gentlemen of the jury, counsel for the defendant has requested the court to give you certain instructions as to the law of this case before the arguments of counsel are given. So, I now charge you as a part of the law applicable to this case and which you are bound to follow, the following several and separate propositions of law."
Then we find in the record the following language: "Ladies and gentlemen of the jury, you have heard the evidence in this case, special instructions as to the law given you before argument, the argument of counsel, and it now becomes my duty to further instruct you generally upon the law of the case which it is your duty to follow."
We think the court sufficiently indicated to the jury in this charge that the special instructions did constitute a part of the law of the case, by which they should be governed in their deliberations. Suppose the court did not so charge, and was not requested so to do? A general exception to the charge would not raise this question.
We are not impressed with the contention that it is absolutely necessary for the trial court to charge all the statutory law involved in a case, in the absence of a specific request so to do. Such a holding would impose not only a stupendous, but an unnecessary, burden upon the trial court.
As to all the matters complained of by counsel for plaintiff in error as to which the court failed to charge, there can be no error as no request was made that the court charge upon these several propositions. In so holding, we are following the case of State v. McCoy, 88 Ohio St. 447, 103 N.E. 136.
We find no prejudicial error in this case, and the judgment of the Court of Appeals will therefore be affirmed.
Judgment affirmed.
MARSHALL, C.J., JONES, MATTHIAS, DAY, ALLEN and KINKADE, JJ., concur.