176 N.E. 571 | Ohio | 1931
The legal question in this case is as to the effect of the special verdict of the jury rendered at the trial in the court of common pleas. This special verdict reads as follows:
"We, nine or more of the jury in the above entitled cause, do find as follows: On September 27th, 1925, plaintiff was riding in defendant's automobile, being then and there driven by Angelo Delmul, plaintiff's brother, at defendant's request — to which plaintiff did not object. They were returning from a place in Ashtabula county, coming west on Euclid avenue, toward Cleveland in the roadway reserved exclusively for west bound traffic. It was raining slightly.
"At about Stop 212 east of Cleveland, after passing three automobiles proceeding in the same direction at about 25 miles per hour, said passing being to the left of said automobiles, the left wheels of the defendant's automobile left the pavement on the left side and in trying to regain the pavement said automobile skidded immediately to the right and the right side of the automobile struck a telephone pole located just north of the northerly or right hand side of the pavement, which was twenty feet wide.
"At the time of said occurrence the driver of said automobile was keeping a sufficient lookout, was driving *650 at a reasonable rate of speed, had his car under proper control until he began to skid and neither theretofore nor thereafter was there anything he could have done in the exercise of ordinary care to avoid the accident. He was unable to divert the course of the automobile after it suddenly began to skid. If, upon these facts, the Court is of the opinion that plaintiff is entitled to recover, we do find that plaintiff has been damaged in the sum of no compensation. Signed by ten."
Exceptions were taken to this verdict by counsel for plaintiff, upon the ground that it set out conclusions of law, and did not constitute a finding upon the facts in the case. Upon motion of the defendant, judgment was entered in favor of the defendant upon the special verdict. The Court of Appeals, however, reversed this judgment, upon the ground that the jury did not find upon all of the issues, and for the further reason that the verdict was in form and effect a general verdict for the defendant. This requires a consideration of the purpose and effect of special findings. The special verdict was filed under Section 11462, General Cod, which reads as follows:
"When requested by either party, the court shall direct the jury to give a special verdict in writing, upon any or all issues which the case presents."
It is urged by the defendant in error, plaintiff below, that this statute was adopted verbatim from the state of Indiana, that it had received a settled construction in the state of Indiana at the time of its adoption, and that under the Indiana decisions the special findings cannot sustain the judgment. It is true that Section 5201, Revised Statutes, from which *651
Section 11462, General Code, was derived, as it appears in 91 Ohio Laws, 298, enacted in 1894, is almost a verbatim copy of the statute enacted in Indiana in 1852. Of its eleven lines, the first eight lines are, with a few entirely immaterial variations, identical with the Indiana Statute. Revised Statutes of Indiana 1852, vol. II, page 114. The section appears also in exactly the same form in 2 Bates Revised Statutes of Ohio (1906), 2780. The per curiam opinion in Gale
v. Priddy,
The special verdict then, under plaintiff's own authorities, is not vitiated by the presence of conclusions of law if as a matter of fact it contains the findings of essential facts from which the court as a matter of law may properly draw, and is in fact compelled to draw, a conclusion as to legal liability. The special verdict does contain such essential facts. The first two paragraphs contain findings of fact only. The special verdict then states that the driver of the automobile was driving at a reasonable rate of speed. While this is a qualified statement, it is a statement of fact. The special verdict then states that the driver of the automobile was unable to divert the course of the automobile after it suddenly began to skid. This is a finding of fact. The claimed *653 liability of the defendant rests upon the hypothesis that the plaintiff's brother was the defendant's agent. These findings of fact in the special verdict, however, warranted and required the court to enter judgment for the defendant.
We disagree with the Court of Appeals upon the proposition that a special verdict is invalid unless there is a finding of ultimate facts upon all the issues. This is not the law of Indiana, upon which defendant in error relies so strongly. ThusGraham v. State, ex rel. Bd. of Commrs. of Jefferson County,
Section 11462 specifically states that the jury may find upon "any or all issues." While this was not the precise point upon which the case of Pennsylvania Rd. Co. v. Vitti, Admr.,
We conclude that the Court of Appeals erred in its *654 view that the special verdict constituted a general verdict for the defendant. The Court of Appeals grounded its view of this matter evidently upon the proposition that the jury found that the plaintiff was entitled to no compensation. This, however, was also a finding of fact as to the amount of damages. Under the statute, Section 11465, the jury is entitled to assess the amount of recovery only when by the verdict either party is entitled to recover money from the adverse party. Since by the special verdict the plaintiff was not entitled to recover money from the defendant, the jury was not entitled to assess the amount of recovery; but its finding upon that point constituted, not a general verdict, but a finding of fact upon the all-important question of compensation.
It follows that the judgment of the Court of Appeals must be reversed and the judgment of the court of common pleas affirmed.
Judgment of Court of Appeals reversed and that of common pleas affirmed.
MARSHALL, C.J., MATTHIAS, DAY, KINKADE and ROBINSON, JJ., concur.
*655JONES, J., not participating.
