Hover v. Inskeep

The plaintiff in error, Clinton A. Hover, was plaintiff, and the defendant in error, Mahlon John Inskeep, was defendant, in the court below, so that as a matter of convenience they will be hereafter referred to as plaintiff and defendant.

The action was brought by the plaintiff against the defendant for damages to an automobile, and for personal injuries alleged to have resulted from a collision between an automobile driven by plaintiff with an automobile driven by defendant on the Dixie highway at a point east of the corporation limits of the city of Lima.

According to the testimony, plaintiff was driving west in his automobile on the Dixie highway from a point east of his home, and the defendant in his automobile was driving west on said highway. Plaintiff turned from the right side of the road to cross the road and enter the driveway leading to his home on the south side of the highway, and just as he was turning to the left to cross the highway, and drive onto his premises, the defendant was approaching from the rear, and turned to go around plaintiff's machine on the left side. Before defendant started to drive around the plaintiff he observed a signal given by the plaintiff, and states he interpreted it as a signal that the plaintiff intended to turn to his right, or to the north. Plaintiff, however, contended that the signal was for the purpose of apprising any one who might be affected that he intended to turn to the left.

The machines collided, and but slight damage was done to either machine, according to all the evidence in the record.

The evidence of plaintiff and that of defendant conflict as to what, if any, injuries were sustained by the plaintiff.

The plaintiff in his petition alleged that his automobile was damaged in the sum of $12.61, and that he sustained personal injuries to his damage in the sum of $5,000, and prayed for judgment in the sum of $5,012.61.

The defendant filed an answer and cross-petition to plaintiff's petition, generally denying the allegations of plaintiff's petition, and making certain charges of negligence against plaintiff, and alleging damage to defendant's automobile resulting therefrom in the sum of four dollars and praying judgment for that amount. The defendant made no claim for damages for personal injury.

The plaintiff filed a reply to the answer and cross-petition of defendant, amounting to a general denial.

The case was submitted to a jury, and by concurrence of all its members it returned a verdict, the findings of which are as follows:

"Finding for the plaintiff on petition. "We, the jury, being duly impaneled, sworn and affirmed, find upon the issues joined by and between the plaintiff and defendant, upon the matters set out in the plaintiff's petition, in favor of the plaintiff and that there is due to the plaintiff from the defendant the sum of ($12.61) Twelve dollars and sixty-one cents for damage to automobile. "Finding for plaintiff on cross-petition. "We further find upon the issues joined between the defendant and the plaintiff upon the matters set up in the defendant's answer and cross-petition, in favor of the plaintiff ``No cause of action.' For personal injury."

Plaintiff filed a motion for a new trial, which the court overruled, and entered judgment on the verdict.

The first ground of error contended for is that the court erred in its charge to the jury on the subject of the right of plaintiff to recover for mere fright. The charge complained of is in the following words: "The court now says to you that plaintiff cannot recover for mere fright. In order to enable the plaintiff to recover for fright, fright must have caused some permanent injury to the plaintiff."

This charge is erroneous, but, for the reasons hereafter mentioned, not prejudicial to plaintiff.

The right to recover for mere fright has been passed upon by the Supreme Court of Ohio in 78 Ohio St. 309, 85 N.E. 499, 18 L.R.A. (N.S.), 949, 125 Am. St. Rep., 699, in the case of Miller v. Baltimore Ohio S.W. Rd. Co. In the third paragraph of the syllabus of this case it is held: "No liability exists for acts of negligence causing mere fright or shock, unaccompanied by contemporaneous physical injury, even though subsequent illness results, where the negligent acts complained of, are neither willful nor malicious."

There is no evidence in the record, and no claim is made by plaintiff, that any of the acts of the defendant, complained of by plaintiff, were willfully or maliciously done, and consequently the jury, in order to make any allowance of damages for fright, had to first find that plaintiff suffered contemporaneous physical injury. The verdict of the jury denying plaintiff recovery other than for damages to automobile conclusively shows that the jury found that the plaintiff had not suffered physical injury, and therefore the question of the liability of the defendant for fright then became unnecessary for consideration by the jury. The court also is of the opinion that the finding in the verdict of "no cause of action for personal injury" is clearly intended to apply to the claim of plaintiff for personal injury, as defendant made no such claim, and the verdict amounts to a special verdict denying the claim of plaintiff for damages for personal injury.

The instruction of the court related exclusively to the right of plaintiff to recover for fright, and as, for the reasons stated above, the question of such liability became unnecessary for the consideration of the jury, the error in the charge was not in any way prejudicial to plaintiff.

The second ground of error is that the verdict is against the weight of the evidence.

Upon an examination of the record in this case we do not feel justified in challenging the conclusion of the jury.

A number of errors, not referred to in the briefs, are raised by petition in error. Under the rules of practice we do not feel obliged to examine into the errors unless they are pointed out in the briefs of counsel. Section 12248, General Code.

While there were a number of occurrences during the trial of the case, in the examination of witnesses, that do not meet with the approval of this court, we do not feel that the same would be grounds to justify a reversal.

The judgment of the court of common pleas will therefore be affirmed.

Judgment affirmed.

CROW and KLINGER, JJ., concur.