Opinion

Jenkins v. Clark

  • 7 Ohio App. 3d 93
  • 7 Ohio B. 124
  • 454 N.E.2d 541
  • 1982 Ohio App. LEXIS 11111
Court
Ohio Court of Appeals
Filed
Mar 2, 1982
Status
Published
Author
Kerns
On the bench
Brogan, Kerns, Wilson
Cited by
95 cases
Authority
More cited than 43.2%

Court found that the standard instruction was correct as it "clearly informed the jury that the medical care required is that of reasonably careful physicians or hospital emergency room operators, not that of interns or residents."

How later courts described this case

  • Court found that the standard instruction was correct as it "clearly informed the jury that the medical care required is that of reasonably careful physicians or hospital emergency room operators, not that of interns or residents."
  • To overcome the presumption of impartiality, the appellant must show bias, prejudice, or that the trial judge prodded the witness to elicit partisan testimony.
  • "It is well established that a trial court has broad discretion in instructing the jury."
  • “Where a party has not made an ‘appearance’ in an action he is not entitled to notice of the default proceedings.”

Written by the judges who cited it.

The opinion

Kerns, P.J.,

concurring. I concur in the judgment of reversal, but hasten to add that the reversal does not

necessarily

contemplate any disturbance of the conclusion reached by the trial court in its judgment entry of August 11,1980. After a hearing is held to determine whether “excusable neglect” for failing to plead did, in fact, exist, the trial court may enter a new judgment reaffirming its former judgment and permitting the appellant to supplement the record with the evidence presented at the hearing; in the alternative, it may find no evidence of excusable neglect and grant the default judgment. However, in no event does the reversal of the judgment contemplate another jury trial on the merits. Authority for this type of limited reversal may be found in

State

v.

White

(1968), 15 Ohio St. 2d 146 [ 44 O.O.2d 132 ], See, also,

State

v.

Goode

(April 24, 1979), Greene App. No. CA 1025, unreported.

In other words, the final determination must await a remand to the court of common pleas for a hearing to determine whether the granting of leave to file an answer contravened the Civil Rules and/or otherwise constituted an abuse of discretion as that term is defined in law.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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