Holt v. Hartschuk , 96 Ohio App. 491 ( 1953 )

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Crawford County, in an action wherein the appellant, James D. Holt, was plaintiff, and the appellees, Hermine Hartschuk and others, were defendants.

The action is one for damages for personal and other injuries alleged to have been sustained by the plaintiff in a collision between the automobile operated by him and the automobile operated by the defendant Hermine Hartschuk, caused by the negligence of said Hermine Hartschuk.

The case was tried to a jury in the Common Pleas Court, which returned a verdict against the plaintiff and in favor of the defendants. Judgment was duly entered upon this verdict dismissing the plaintiff's petition at his costs. From that judgment this appeal is taken.

Plaintiff assigns error in a number of particulars which we have carefully examined and considered, but which, with the exception of one assignment of error, we find wholly without merit.

That one assignment is error in the admission of the testimony of one Dr. Heer relating to a physical examination made by him of the plaintiff, pursuant to an order of court made upon motion of the defendants, and the conclusions as to the nature and extent of plaintiff's injuries reached by him from such examination, which conclusions he testified were partially based upon a history of plaintiff's physical condition given by plaintiff to a nurse employed by Dr. Heer, and transcribed by her, X-ray photographs of plaintiff taken by one Dr. Bowen at the request but not under the supervision of Dr. Heer, and upon a report of a physical examination of the plaintiff by a Dr. Dawson. Neither the history of plaintiff's physical condition, as transcribed by the nurse, nor the X-ray photographs, nor the report of Dr. Dawson, above mentioned, are in evidence.

Dr. Heer would have been warranted in partially basing his opinion as to the nature and extent of plaintiff's injuries, upon said written history, in the event such written history had been properly identified by the nurse who transcribed the same as the history related to her by plaintiff, and truly transcribed by her, and properly admitted in evidence in the cause and identified by Dr. Heer as the history upon which his opinion was partially based; and Dr. Heer would have been warranted in partially basing his opinion upon the X-ray photographs, in the event such photographs had been properly identified by Dr. Bowen, the doctor taking the same, as true X-ray photographs of the parts of plaintiff's body they appear to portray, taken by Dr. Bowen at the request of Dr. Heer, and properly admitted in evidence, and identified by Dr. Heer as the X-ray photographs referred to by him in his testimony; and Dr. Heer would have been warranted in partially basing his opinion upon the report of Dr. Dawson, which Dr. Dawson testified had been in writing, in the event said report was properly identified by Dr. Dawson as the report made by him, and properly admitted in evidence and identified by Dr. Heer as the report referred to by him in his testimony.

None of the conditions essential to warrant Dr. Heer to base his opinion upon said written history, X-ray photographs, and written report of Dr. Dawson were fulfilled.

The admission of the testimony of Dr. Heer, above referred to, under the circumstances mentioned, was clearly erroneous and prejudicial to the plaintiff.

The defendants, however, contend that although the admission of such testimony may have been erroneous, the issue of contributory negligence on the part of the plaintiff, raised by the pleadings and the evidence, was submitted to the jury without the intervention of error, and that under the multiple-issue rule the judgment must be affirmed notwithstanding the error mentioned which did not relate to the issue of contributory negligence.

In the case of Knisely v. Community Traction Co., 125 Ohio St. 131,180 N.E. 654, it was held:

"In a suit to recover damages for personal injuries on the ground of negligence, the allegation of defendant's negligence in the petition, and the allegation of plaintiff's contributory negligence in the answer, constitute separate and distinct issues to which the so-called two-issue rule, as defined inSites v. Haverstick, 23 Ohio St. 626, and subsequent cases, has full application."

In the opinion it is stated:

"This court has not yet in any reported case declared that the rule is applicable where the only separate issues are those of negligence and contributory negligence. That the issue of contributory negligence is separate and distinct from the issue of defendant's negligence is undeniable. Defendant's negligence must be pleaded and proven by the plaintiff. Contributory negligence is an affirmative issue, which, though not necessary to be pleaded by the defendant, must nevertheless be proven by the defendant as an affirmative issue. There can therefore be no question that they constitute separate and distinct issues."

It further appears from the opinion that the Supreme Court declined to consider claimed error in the admission of the issue of contributory negligence, inasmuch as no error had been found in the submission of the issue of defendant's negligence, and affirmed judgment in favor of defendant.

The rule established by the case of Sites v. Haverstick,23 Ohio St. 626, and other cases referred to in the above-quoted holding, is that where the jury returns a general verdict in a case involving two or more issues, a finding upon any one of which in favor of the successful party would entitle him to judgment, if the record does not disclose affirmatively by answer to interrogatories or otherwise upon which issue such verdict was based, the judgment will not be reversed if no error appears as to any one or more of them although there may be error as to other issues. 2 Ohio Jurisprudence, 1187, Section 616.

It was held in the syllabus in the case of State, ex rel.Morgan, v. Rusk, Dir., 37 Ohio App. 109, 174 N.E. 142, that:

"4. There is no ``negligence' unless it be actionable negligence.

"5. ``Negligence' is term used on which, if it exists, action can be predicated to recover."

We approve the foregoing holding as a correct statement of the rule.

Considering the above-quoted holding in the Knisely case,supra, in the light of the foregoing rule, it is clear that the word, "negligence," as used therein, is used in its legal sense of "actionable negligence."

In the case of Elliman v. Gombar, 86 Ohio App. 352,91 N.E.2d 801, it is held:

"To constitute actionable negligence, there must concur three essential elements; a duty of care owing to the complaining party, a breach of that duty by a negligent act or omission, and an injury proximately resulting therefrom."

See, also, Harriman v. Railway Co., 45 Ohio St. 11, at page 20, 12 N.E. 451, 4 Am. St. Rep., 507; 38 American Jurisprudence, 643, Negligence, Section 2; 29 Ohio Jurisprudence, 384, Negligence, Section 4.

We approve this holding as a correct statement of the law.

Considered in the light of the foregoing holdings, the phrase, "issue of defendant's negligence," as used in theKnisely case, supra, comprehends the three essential elements of (1) a duty of care owing to the complaining party, (2) a breach of that duty by a negligent act, and (3) an injury proximately resulting therefrom.

This being the case, the erroneous admission of evidence reflecting upon any of said elements constitutes an erroneous admission of evidence reflecting upon the issue of defendant's negligence within the purview of the so-called two-issue rule.

Within the purview of the so-called two-issue rule, contributory negligence as a defense to a cause of action for negligence exists only where there is actionable negligence.

A judgment in a negligence action is not subject to affirmation under the so-called two-issue rule where the issue of contributory negligence is submitted without error intervening but the issue of actionable negligence is erroneously submitted.Bush, Admr., v. Harvey Transfer Co., 146 Ohio St. 657,67 N.E.2d 851.

In the case at bar, the issue of actionable negligence was erroneously submitted by reason of the admission of the testimony of Dr. Heer, hereinbefore mentioned, as to the nature and extent of plaintiff's injuries and for this reason the judgment is not subject to affirmation under the so-called two-issue rule.

The defendants further contend that the answer of the jury to the special interrogatory submitted to it by the plaintiff, to the effect that the jury found from the evidence and from the instructions given to it by the court, as to the law, that the plaintiff did not have the right of way at the time the accident occurred, requires the affirmance of the judgment in favor of the defendants rendered upon the general verdict of the jury.

In support of this contention they urge that said answer is consistent with the general verdict of the jury and that when it is considered in connection with the facts and circumstances in evidence in the case it is obvious that the general verdict of the jury is based upon a finding that the plaintiff, at the time of the collision, was proceeding in an unlawful manner, thereby contributing to cause the injuries sustained by him, and not upon a finding that the plaintiff did not sustain any injuries.

The determinative issues in the case are, one, actionable negligence on the part of the defendant; and, two, contributory negligence on the part of the plaintiff.

The finding upon the issue as to whether the plaintiff had the right of way did not in and of itself entitle the defendants to a judgment against the plaintiff.

The record of the finding upon such interrogatory does not disclose affirmatively whether the general verdict of the jury was based upon the nonexistence of actionable negligence on the part of the defendants or was based upon the existence of negligence on the part of the defendants and of contributory negligence on the part of the plaintiff.

The fact that the answer to the interrogatory is consistent with the general verdict did not constitute it as the basis of the general verdict.

So far as the record discloses, the jury may have based its general verdict upon a finding that the plaintiff did not sustain any injuries, which the jury would have been warranted in finding if it believed the testimony of Dr. Heer, hereinbefore mentioned.

An inspection of the record, as a whole, does not disclose any facts or circumstances affirmatively appearing of record tending in any manner to support the contention of the defendants.

For the error in the admission of the testimony of Dr. Heer, hereinbefore mentioned, which was prejudicial to the plaintiff, the judgment of the Common Pleas Court is reversed and the cause is remanded for new trial and further proceedings according to law at the costs of appellees.

Judgment reversed.

MIDDLETON, J., concurs.