Porter v. Norris

285 N.E.2d 14, 30 Ohio St. 2d 255, 59 Ohio Op. 2d 330, 1972 Ohio LEXIS 433

• Court: Ohio Supreme Court
• Decided: June 21, 1972
• Docket: No. 71-374
• Status: Published

Opinions

Per G'uriam.

The Court of Appeals reversed the judgment of the Common Pleas Court upon two bases: (1) that “neither [interrogatory] was a material allegation from the pleadings controverted by an adverse party” (R. C. 2315.16), and (2) that the inclusion of the words “original claim” in the interrogatory was prejudicial in that it could mislead the jury to believe it “meant the amount of the prayer” of the petition prepared by Norris but never filed, which petition the Court of Appeals concluded had been erroneously introduced in evidence on behalf of the defense “without permitting cross-examination” and “in spite of a pretrial order in which the parties agreed that defendant would have no exhibits.”

R. C. 2315.16, in force and effect at the time of trial, provided for a written finding “upon particular material allegations contained in the pleadings controverted by an adverse party.” The Court of Appeals apparently interpreted the language of R. C. 2315.16 as requiring that no interrogatory could be submitted except in the express language contained in the pleadings.² We do not agree. In our opinion, interrogatories submitted under R. C. 23-15.36 were not limited to the literal language of the pleadings (haec verbae). As stated in the concurring opinion of Taft, C. J., in Clevenger v. Huling (1965), 3 Ohio St. 2d 200, 204, the purpose of the 1955 amendment to R. C. 2315.-16 was “to codify and approve the law as previously declared by our court.”

In the instant case, the amended petition seeking judgment against Norris contained a specific allegation that “due to the negligence of Mazza’s Restaurant she was damaged in the sum of $50,000.” Since the basis of plaintiff’s claim for damages in the malpractice action against Norris is his failure to file a petition against the Mazzas, thus precluding her from recovering from the Mazzas (the statute of limitations having run), and that Norris, therefore, is legally responsible to her in the same amount she otherwise would have recovered against the Mazzas, it is clear that such was a “particular material allegation contained in the pleadings”; and since such allegation was denied by the answer filed by Norris, such allegation was also “controverted by an adverse party.” Moreover, contrary to the interpretation made in the dissenting opinion herein, this allegation as to the amount of damages was not a part of the “prayer” of the petition.

Thus, an interrogatory seeking a specific finding by the jury as to what recovery, if any, plaintiff would have had against the Mazzas, had she been able to proceed against them, was authorized by R. C. 2315.16, and such an interrogatory was not required to be phrased haec verbae in the language of the petition.

Had no other error intervened and had the interrogatory been properly phrased, it is clear that a special written finding that plaintiff would only have recovered $5,000 against the Mazzas is inconsistent with a general verdict against Norris in the sum of $17,750. In such event, under the provisions of then existing R. G. 2315.17, the special finding would control over the general verdict and judgment would be rendered accordingly.³

In the instant case, however, the Court of Appeals concluded that other error had intervened and that the language actually employed in the interrogatory, when combined with the other error, could lead the jury to an erroneous conclusion. Prom a review of the entire record, it would appear that the Court of Appeals was justified in coming to this conclusion. Such, however, could not serve as a basis for vitiating the interrogatories, and the answers made in response thereto. Instead, it can only serve as a basis for a remand for new trial.⁴ We therefore reverse the judgment of the Court of Appeals and remand the cause for a new trial.

Judgment reversed.

O’Neill, C. J., Stern, Leach and Brown, JJ., concur. Schneider, Herbert and Corrigan, JJ., dissent.

2 In support of its holding, the Court of Appeals cited its own decision in Justice v. Shelby Ice & Fuel Co. (1969), 18 Ohio App. 2d 197. There, the majority opinion stated, at page 204, that under the provisions of R. C. 2315.16 “a practitioner may consult the pleadings before trial with confidence that his eyes will not see interrogatories go to the jury except in express language which his eyes perceive to be set forth in the pleadings, and then only if the proposition has been controverted.”

3 See, also, Harsh v. Klepper (1876), 28 Ohio St. 200; Schaefler v. Sandusky (1877), 33 Ohio St. 246; Board of Commrs. v. Deitsch (1916), 94 Ohio St. 2; Central Gas Co. v. Hope Oil Co. (1925), 113 Ohio St. 354; C. D. & M. Electric Co. v. O’Day (1931), 123 Ohio St. 638; and Ohio Fuel Gas Co. v. Ringler (1933), 126 Ohio St. 409. Cf. Fox v. Conway (1938), 133 Ohio St. 273; McNees V. Cincinnati Street Ry. Co. (1949), 152 Ohio St. 269; and Perry v. Baskey (1952), 158 Ohio St. 151, wherein it was held that the answers to interrogatories were not irreconcilable with the general verdict.

4 By more specific jury instructions at retrial, it may be made plain to the jury that the measure of damages against Norris is not necessarily the monetary amount plaintiff would have reeovered against the Mazzas, had the trial been held at this time, but instead the amount she would have recovered had her petition been filed before the running of the statute of limitations and had the trial been had at the time it would have been reached under those circumstances.