Moore v. McCarty's Heritage, Inc.

dissents from the judgment of reversal and the finding that defendant's first and third assignments of error *Page 97

are well taken, but concurs in the finding that defendant's second assignment of error is not well taken and that plaintiff's two assignments of error, in its cross-appeal, are not well taken.

My dissent from the finding that defendant's first and third assignments of error are not well taken is based on the following facts and reasons. These assignments were predicated upon an error contained in the jury instruction on the matter of damages. The court instructed the jury that the cost of repairs was limited by the diminution in market value. The error was harmless or nonprejudicial in the context of these facts. The defendant in his trial brief requested the trial judge to give this instruction. The trial judge gave the instruction as part of his general charge in the exact language requested by the defendant. The jury verdict of $13,500 is in exact conformity and harmony with the correct rule of damages, i.e., the costs of repairs, and the verdict indicates that the jury disregarded the incorrect portion of the charge concerning a limitation to a diminution in market value. The highest figure from any witness as to the diminution in market value is $5,000. At the completion of the general instructions given to the jury, the trial judge asked counsel for both parties if they had any suggestions or additions. Defense counsel made a specific objection only to the negligence- per se instruction concerning building code violations. No objection was voiced concerning the measure-of-damages instruction.

The instruction given on the measure of damages, limiting damages to a diminution in value, i.e., $5,000, was prejudicial only to plaintiff and not to the defendant. How could the defendant be harmed by a jury instruction which told the jury for practical purposes to limit the verdict to $5,000, the diminution in value, when the correct measure, the cost of repairs, was $13,500?

On the principle of invited error, a party (the defendant herein) cannot predicate an error in an instruction given at his own request. A party cannot attack a judgment for errors which he has induced the trial court to commit and for which he is responsible. Hasapes v. Drake (1970), 24 Ohio St. 2d. 1; Carrothers v. Hunter (1970), 23 Ohio St. 2d. 99; Lester v. Leuck

(1943), 142 Ohio St. 91 ; 3 Ohio Jurisprudence 2d 641, Appellate Review, Section 693 and 696. *Page 98

A party cannot complain of a jury instruction, even if it is incorrect, where the instruction is too strong in its favor, or is one that he has no right to ask, or the instruction is prejudicial only to the other party. Elser v. Parke (1943), 142 Ohio St. 261 ; Parish Bingham Corp. v. Jackson (1921), 16 Ohio App. 51 , 59 ; 3 Ohio Jurisprudence 2d 638, Appellate Review, Section 690.

Under the harmless error rule, the appellate court must disregard any error or defect in a trial proceeding which does not affect the substantial rights of the parties. Civ. R. 61; Smith v. Flesher (1967) 12 Ohio St. 2d. 107; 4 Ohio Jurisprudence 2d 18, Appellate Review, Section 829, and Supplement, Section 828.1.

Errors in jury instructions should be regarded by the reviewing court as harmless where the fact that the jury was not misled appears affirmatively from the verdict rendered. 4 Ohio Jurisprudence 2d 353, Appellate Review, Section 1035.

Lastly, defendant, by completely failing to object to the general jury instructions concerning the measure of damages, waived a right to claim an error concerning that instruction by reason of the specific mandate of Civ. R. 51(A), which provides, in part:

"A party may not assign as error the giving or the failure to give any instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury." *Page 99