
    Ellison, Admr., v. Seelbeede et al.
    (No. 121509
    Decided January 7, 1965.)
    
      
      Messrs. Marshall & Smith and Altick & McDaniel, for plaintiff.
    
      Messrs. Harshman, Young, Colvin & Alexander, for defendants.
   Mills, J.

This canse is before the court for consideration of the motion of defendants for an order vacating the judgment entered herein for the plaintiff and to grant judgment for the defendant notwithstanding the verdict of the jury.

The court is overruling the motion of defendant by reason of Grieser, Admr., v. Huntington National Bank, 176 Ohio St. 291.

This cause comes on further for consideration of the motion for new trial of defendants.

Both counsel for plaintiff and defendants have submitted exhaustive briefs to the court.

The court held in the case of Simpson v. Springer, 143 Ohio St. 324:

‘ ‘ The fact that only eight or nine jurors who concurred in and returned a general verdict for the defendant joined in an answer to a special interrogatory also submitted to the jury, did not vitiate the general verdict so returned and received by the court, no objection having been offered or request made by counsel for plaintiff that the jury be required to continue its deliberations until the interrogatory was answered by all the jurors joining in the general verdict.”

The above case was reported May 24, 1944.

Another case cited by counsel for plaintiff is Kubeck v. Fairview Park Hospital, 84 Ohio Law Abs. 585, where an affidavit was furnished by a juror. The court held the juror could not impeach his own verdict by an affidavit. The Common Pleas Court of Cuyahoga County held in this case that the fact only eight of the nine jurors who concurred in the general verdict joined in the answers to special interrogatories does not vitiate the general verdict where no objection was made or request made that the jury be required to continue their deliberations until the interrogatories were answered by all the jurors joining in the general verdict.

In Leach v. Nanna, 100 Ohio App. 26, the court says:

“ "Where particular questions of fact are submitted to a jury and a party allows the jury finding a general verdict to be discharged without asking the court to have the questions answered, he is deemed to have waived the right to have such questions answered.”

That is a decision of our own Second District Court of Appeals.

In the Simpson v. Springer case the court held that the case could be based upon other questions than upon the one of negligence of defendant. However, there has been a recent case, Plaster v. Akron Union Passenger Depot, decided by the Court of Appeals of Summit County as of September 14, 1955, reported in 101 Ohio App. 27, where the court held:

‘ ‘ The purpose of a special finding is to test the correctness of a general verdict in the light of that finding.
“A requested finding of fact cannot be regarded as answered where the answer is signed by less than three fourths of the jurors.
“In order to make a complete verdict for the plaintiff, where the only basis for recovery is the alleged negligence of the defendant, at least nine of the same jurors who agreed to the requested finding of fact finding the defendant guilty of negligence, must agree and sign the general verdict.”

Judge Hunsicker, in writing the opinion said:

“We do recognize that the jury is a body, a unit and not separate individuals, but our statute requires the jurors who agree, to not only sign the verdict but also the special interrogatories submitted to such jury. Our statute permits a jury to be polled at the request of counsel for either party, and by such manner indicate their separate and individual affirmation that the verdict is concurred in by each separate juror so signing the verdict.
“The fact that we permit a verdict to be approved by less than a unanimous vote is an indication that we recognize the separate individuality of each juror, for a vote by nine members is the report of the jury but not of all twelve members.
“When a juror, therefore, votes ‘no’ or refused to vote ‘yes’ to an interrogatory involving the question of negligence of the defendant in an action such as that before us (where the only liability claimed against the depot company, or which conld he claimed against sneh company, is based upon the negligence of the depot company), it is difficult to conceive how the juror can then sign a general verdict for the plaintiff in that negligence action.”

Now in the case at bar, the general verdict was signed by nine of the twelve jurors. Interrogatory No. 1, which was submitted to the jury for answer, reads:

“Do you find by a preponderance of the evidence that either Herbert B. Seelbrede, Jr., or John S. Pourman was negligent in any way that was a direct or proximate cause of the death of JoAnette Ellison?”

The answer is “yes.” Two of the nine jurors who signed the general verdict did not sign this answer to Interrogatory No. 1, being Margaret B. Smith and Helen Gibson, although nine jurors signed the answer to the interrogatory.

Interrogatory No. 2 submitted to the jury reads:

“If your answer to Question No. 1 is ‘yes’ of what did such negligence consist?”

The answer was “Evidence shows a lack of proper inspection of vent pipe.”

The same two jurors mentioned above, who had signed the general verdict, did not sign this answer, although nine jurors signed the answer to the interrogatory.

Interrogatory No. 3 asks for the basis of the amount of damages, and the answer itemizes the damages. This interrogatory as answered is signed by all jurors who signed the general verdict.

On the final day of the trial the case was submitted to the jury at 2:30 p. m., they deliberated until 6:00 p. m., when the court adjourned with the proper admonition; the jury returned the following day at 9:30 and were in session until 4:00 p. m. with an hour break from twelve to one for lunch, and returned their verdict at 4:00 p. m.

The court requested the clerk to poll the jurors as to the general verdict and as to the interrogatories. He did so and the jurors responded.

The court finds there were only seven of the jurors who signed the general verdict who signed Interrogatories 1 and 2. No request was made by either counsel for plaintiff or for defendants for further instructions to the jurors ... in fact discovery was not made until the second day following the verdict.

This court is of the opinion there would have been error committed if the court had, upon request, instructed the jury. What could the court have told them ? That the verdict was not complete? Had the court told them to reconcile their answers to the interrogatories with the verdict, it is this court’s opinion it would have been error.

The case of Plaster v. Akron Union Passenger Depot was appealed to the Supreme Court and was decided without opinion on May 9, 1956, and all seven members of the Supreme Court entered the following order: “It is ordered and adjudged that this appeal, as of right be, and the same hereby is dismissed for the reason that no debatable constitutional question is involved.” This entry is found in 165 Ohio St. 289.

The cause being remanded to the trial court for further proceedings, judgment for the plaintiff in the Common Pleas Court was reversed; the opinion of the Court of Appeals was sustained by the Supreme Court and this court is of the opinion that is the law in this case.

Following the law laid down by the Supreme Court in 165 Ohio St. 289, the court will sustain the motion and grant defendants herein a new trial.

Motion for new trial granted.  