488 N.E.2d 238 | Ohio Ct. App. | 1985
The principal question raised by this appeal is whether the concurrent dismissals of both plaintiffs' claim and defendant's counterclaim were proper when the evidence demonstrates the negligence of both parties. We have found no Ohio decision directly on point. We find that the judgment standing alone, without either findings of fact and conclusions of law or an explanatory entry, is insufficient. The only way that the trial court could have reached such a judgment would have been to find that neither party was negligent, and as plaintiffs allege in their single assignment of error, such a finding is against the manifest weight of the evidence presented in this case.
The determinative facts are uncontroverted. Defendant was driving on Shepard Lane, westbound in a parking lane that was separated from the single westbound lane of traffic (travel lane) by a solid white line. Curtis Fields, the father of plaintiff Charlene Love, was driving his daughter's car, also westbound on Shepard Lane, but in the lane of traffic. He was traveling an undisclosed distance ahead of defendant when he made a right turn into his driveway. His vehicle was struck in the rear by defendant's vehicle. There were no personal injuries. Plaintiff Love sustained damages to the right rear quarter of her car in the amount of $1,960.96, of which plaintiff State Automobile Mutual Insurance Company paid $1,860.96, plaintiff Love assuming the $100 deductible amount. The damage to defendant's car exceeded its $650 market value. Plaintiffs' complaint alleged that defendant's negligence was the proximate result of their damages. Defendant, pro se, answered by handwritten note, which was properly considered to be a counterclaim for the damage to his car. After a full evidentiary trial to the court, the trial judge took the case under submission for a week, at the conclusion of which an entry was journalized which reads in full:
"Plaintiffs' complaint is dismissed with prejudice at the plaintiffs' costs; defendant's counterclaim is dismissed with prejudice at defendant's costs."
These "dismissals" must be construed as judgments for the opposing party on both the claim and the counterclaim. Neither party requested separate findings of fact and conclusions of law. We can think of only one basis for the judgment, and that is that the court found that there was proved neither negligence, nor proximate cause nor damages.
If the court had found that both drivers were negligent, but Fields' negligence was greater than defendant's, then plaintiffs could recover nothing, and defendant could recover that percentage of his counterclaim that was not attributable to his own negligence; vice versa, if defendant's negligence had been the greater. R.C.
The only circumstance that would permit no recovery at all, under Ohio's "no greater than" comparative negligence statute, R.C.
We recognize that the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact,State v. DeHass (1967),
Plaintiffs' assignment of error has merit. The judgment of the trial court is reversed and the case is remanded for a new trial.3
Judgment reversed and cause remanded.
DOAN and KLUSMEIER, JJ. concur.
"(A)(1) In negligence actions, the contributory negligence of a person does not bar the person or his legal representative from recovering damages that have directly and proximately resulted from the negligence of one or more other persons, if the contributory negligence of the person bringing the action was no greater than the combined negligence of all other persons from whom recovery is sought. However, any damages recoverable by the person bringing the action shall be diminished by an amount that is proportionately equal to his percentage of negligence * * *."
Finally, both parties proved the extent of their damages, by means of testimony, photographs and repair shop estimates.
Under the comparative negligence statute, a trial court sitting without a jury must indicate on the record its findings about the total damages, what party or parties were negligent and the percentages of negligence. Compare the interrogatories to be submitted to a jury in 1 Ohio Jury Instructions (1983), Section