Ragone v. Vitali & Beltrami, Jr., Inc.

327 N.E.2d 645, 42 Ohio St. 2d 161, 71 Ohio Op. 2d 164, 1975 Ohio LEXIS 476
CourtOhio Supreme Court
DecidedApril 30, 1975
DocketNo. 74-178
StatusPublished
Cited by70 cases

This text of 327 N.E.2d 645 (Ragone v. Vitali & Beltrami, Jr., Inc.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ragone v. Vitali & Beltrami, Jr., Inc., 327 N.E.2d 645, 42 Ohio St. 2d 161, 71 Ohio Op. 2d 164, 1975 Ohio LEXIS 476 (Ohio 1975).

Opinions

O’Neill, C. J.

The issues presented in this appeal, as reflected in appellant’s propositions of law, are that the trial court erred: (1) In refusing to submit to the jury the interrogatories directed to appellant’s negligence; (2) in refusing to instruct the jury on the “loaned servant” doctrine; and, (3) in giving consideration to the testimony of an expert witness, who testified as to the procedure to be used in operating the pumper, where the expert failed to testify that the method of operation of the pumper used by appellant’s employee was “not in conformity with the standards of the industry.”

The record shows that the trial court’s refusal to submit appellant’s interrogatories was based on the court’s opinion that the court’s instructions to the jury covered the subject, and that submission of both sets of interrogatories “would confuse the jury.”

Civ. R. 49(B) reads:

“The court shall submit written interrogatories to the jury, together with appropriate forms for a general verdict, upon request of any party prior to the commence[165]*165ment of argument. Counsel shall submit the proposed interrogatories to the court and to opposing counsel at such time, but the interrogatories shall be submitted to the jury-in the form that the court approves. The interrogatories may be directed to one or more determinative issues whether issues of fact or mixed issues of fact and law.

“The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict.

“When the general verdict and the answers are consistent, the appropriate judgment upon the verdict and answers shall be entered pursuant to Buie 58. When one or more of the answers is inconsistent with the general verdict, judgment may be entered pursuant to Buie 58 in accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. ’ ’

The wording of Civ. B. 49(B), that the “court shall submit written interrogatories * * * upon request of any party,” is mandatory in character and leaves no discretion in the trial court on the question of submission, upon request, of proper interrogatories to the jury. The rule, however, reposes discretion in the court to pass upon the content of requested interrogatories as they “shall be submitted to the jury in the form that the court approves.”

The Court of Appeals recognized the effect of the wording of Civ. B. 49(B), in its opinion, by stating:

“* * * [T]he use of the words the ‘court shall’ in Civ. B. 49(B) requires the trial judge to test the general verdict by the submission of interrogatories appropriate and proper under all the circumstances. The rule does not render the trial judge a mere conduit who must submit all interrogatories counsel may propose. Authority is still vested in the judge to control the substance and form of the questions, and if the interrogatories are not based on the evidence, are incomplete, ambiguous or otherwise legally [166]*166objectionable, the judge need not submit them to the jury.”

After making the foregoing statements, with which this court is in agreement, the Court of Appeals concluded that the “* * * interrogatories pertaining to its own negligence offered by the appellant were properly denied by the trial court.” As a reason for so concluding, the Court of Appeals found the proposed interrogatories deficient because they did not incorporate the “concept of respondeat superior which was the basis of appellant’s liability # * V’

An examination of the trial court’s instructions to the jury reveals that the jury was instructed that a finding that Tranzo was acting as the agent of appellant would render appellant responsible for the acts of Tranzo and in such case the verdict would be against appellant.

Inasmuch as the trial court instructed the jury on the doctrine of respondeat superior as applicable in this cause, it was not necessary to include references to that doctrine in the interrogatories. In other words, the omission of references to respondeat superior in the proposed interrogatories would not have prevented the jury from understanding the implications of the question whether ‘ ‘ defendant Yitali & Beltrami, Jr., Inc. was negligent * * when that question was considered in light of the trial court’s instructions.

It is appropriate here to note that Civ. R. 49(B) states: “The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict * * As pointed out in the Staff Note to Civ. R. 49, “ * * * The court should be careful to see that the interrogatories, as phrased, are consistent with and responsive to the general instructions to the jury.”

It is the opinion of this court that the reasons given by the trial court for refusing to submit the proposed interrogatories dealing with appellant’s negligence, as well as the reasons specified by the Court of Appeals for approving that refusal, are both without merit and that appellant was entitled to have the proposed interrogatories conceiming appellant’s negligence submitted to the jury.

[167]*167Iii regard to the proposed and submitted interrogatories numbered (2), the Court of Appeals concluded: “Appellant’s interrogatories requiring narrative answers by requesting the jury to ‘ state in what respects ’ the plaintiff or defendant was negligent are improper and should not be used. * *

As appellant points out, those interrogatories “followed the form” of the interrogatories in question in Clevenger v. Huling (1965), 3 Ohio St. 2d 200, 209 N. E. 2d 434. It was there held in paragraph two of the syllabus that:

“Where defendant’s answer in such a case [one involving a jury question on the issue of contributory negligence] contains an allegation that ‘plaintiff was guilty of negligence which proximately contributed to the injuries of which he complained,’ interrogatories in the following form are proper: ‘Do you find from the evidence and a preponderance thereof that the plaintiff was negligent?,’ ‘If the answer * * * is yes, then of what did plaintiff’s negligence consist?,’ ‘Do you find that plaintiff’s negligence proximately contributed to his injuries?’ ”

The Court of Appeals found the Clevenger case “ * # * inapplicable to this case because it interpreted interrogatories in accordance with former R. C. 2315.16 as being founded ‘upon particular material allegations contained in the pleadings controverted by the adverse party.’ ” The court then concluded that: “Inasmuch as former R. C. 2315.16 was repealed and replaced by Civ. R. 49, that requirement no longer exists.”

The question presented then is whether the holding in Clevenger that an interrogatory—“of what did plaintiff’s negligence consist?”—was proper has been affected by the provisions of Civ. R. 49(B).

In Clevenger, the court relied upon paragraph four of the syllabus in Davison v. Flowers (1930), 123 Ohio St. 89, 174 N. E. 137, which reads:

“Two requests for finding upon particular questions of fact were made by the defendant.

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Cite This Page — Counsel Stack

Bluebook (online)
327 N.E.2d 645, 42 Ohio St. 2d 161, 71 Ohio Op. 2d 164, 1975 Ohio LEXIS 476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ragone-v-vitali-beltrami-jr-inc-ohio-1975.