“Defendant was free to accept or dispute plaintiffs medical evidence. He had no obligation to produce a doctor at trial, nor did the fact that he exercised his right of medical examination before trial fasten such obligation upon him. Therefore, he could not be called upon to answer for the absence of such a witness or his failure to call him.”
How later courts described this case
- “Defendant was free to accept or dispute plaintiffs medical evidence. He had no obligation to produce a doctor at trial, nor did the fact that he exercised his right of medical examination before trial fasten such obligation upon him. Therefore, he could not be called upon to answer for the absence of such a witness or his failure to call him.”
Written by the judges who cited it.
The opinion
On Motion for rehearing.
France, J. Appellant, on motion for rehearing, argues only one assignment of error not completely covered by the original opinion of this court: That of the trial court’s special instruction No. 1, which appears in its entirety as follows:
“Ladies and gentlemen of the jury: If you find for the plaintiff in this case you will return a verdict for the full amount of the damages she has sustained. Such verdict should be in such amount as will fairly and fully compensate her for the injury or injuries which she has actually sustained resulting directly from the accident, but in no event can your verdict ex *194 ceed the amount prayed for in the petition, namely, $100,000. This compensation should include the pain and suffering which she has already endured as well as the mental anguish, pain and suffering, if any, she will endure in the future, and the facial scars and disfigurement, if any, as you shall find them to be.
“If any of the injuries sustained by the plaintiff are permanent in their nature, or, if there is loss of usefulness of any part of her body by reason of such injuries, such facts may be considered by you in determining the amount of damages which the plaintiff has sustained. And you have a right to consider not only what the loss has been in these respects in the past, but that which may reasonably be expected to follow in the future. ’ ’
Claim is made that the concluding sentence in each paragraph was erroneous for the reason that future damages were not in express terms limited to those reasonably certain to follow and that our opinion covers only that involved in the second paragraph while it is that in the first paragraph which appellant really objected to.
Concededly the arguments in appellant’s brief covered the claimed objectionable language in each paragraph, although indiscriminately. Since in oral argument he dealt only with that in the second paragraph we were perhaps lured into believing that it was only this one which was relied upon and the other abandoned; consequently it was not commented upon separately in the original opinion.
In support of his contention, the following cases are cited to support the proposition that the charge must limit jury consideration to those reasonably certain by the use of those exact words and no others: Pennsylvania Co. v. Files, 65 Ohio St. 403 ; Ottgen v. Garey, 41 Ohio App. 499 ; Toledo Railways & Light Co. v. Prus, 7 Ohio App. 412 ; Toledo Railways & Light Co. v. Poland, Gdn., 7 Ohio App. 397 ; and Yates v. Irvin, 85 Ohio App. 164 .
We find that close examination of these cases does not support the claim made for them. In the Files case, where the language used was “such prospective damages, if any, as the jury may believe he has sustained or will sustain” the Supreme Court commented, at page 407:
*195 “* * * This, we think, was too broad. The jury in assessing prospective damages should have been confined to such as were reasonably certain to follow from the injury complained of. * * * ” The opinion then goes on to note (the quoted words being in a general charge with only a general exception taken) that:
‘ ‘ * * * if this were the only error, we might not reverse the judgment. ’ ’
In the Poland case, no error was claimed with respect to the charge not limiting damages to those reasonably certain. It dealt with erroneous admission of speculative medical evidence on future damages.
In the Prus case, the language of the charge was “* * * incorporate in your assessment of damages for such future pain and suffering as you find from the evidence is liable to ensue ’ ’; and again, ‘ ‘ any amount which you may find from the testimony she is reasonably liable to incur in the future.” (Emphasis supplied.) The court commented, at page 419:
“* '* * The word ‘liable’ used by the court in the case at bar is no more than the equivalent of ‘may.’ By the use of this word in the charge the jury were justified in considering any damage that might by any contingency or possiblity ensue in the future.”
The court then went on to observe the nature of the claimed injuries and the exceedingly broad and varied resultant diseases and defects which were claimed might result, including insanity, etc., with notations pertinent to extreme and conjectural parades of horribles scarcely pertinent to the case at bar.
In Ottgen v. Garey , the charge in pertinent part, was:
“ * * * in tfiat connection, you may take into consideration the nature of the injuries which he has sustained, the pain and suffering that he has been put to, the likelihood that he will suffer in the future from the injuries * * (Emphasis supplied.) And the court, at page 505, remarked:
“The word ‘likelihood’ imports something less than reasonable certainty. The evidence, to warrant a belief in the likelihood of the happening of a future event or condition, need not be of that degree of probative value required to conclude that such event or condition is reasonably certain to result. * * * >?
In Yates v. Irvin, the quotation is apparently from the en *196 tirety of a special charge reading: ‘ ‘ She is entitled to compensation for the pain suffered in the past and the pain for which she will suffer in the future” — without any qualification that the jury could find that there might be no future pain at all resulting from the injury. The court indicated, at pages 169,170:
“The special instructions given by the court before argument in the instant case do not limit compensation for future damages to those which are reasonably certain to result from the injury. * * *
C i # # #
“We * * * find that the special charge did not correctly state the law, and that the same constitutes prejudicial error.”
In the instant case, we find that the phrase, “mental anguish, pain and suffering, if any, she will endure in the future, and the facial scars and disfigurement, if any, as you shall find them to be,” contrasts favorably, so far as certainty is concerned, with such phrases as “such prospective damages, if any, as the jury may believe he will sustain,” or “such future pain and suffering as you find is liable to ensue,” or “the likelihood that he will suffer in the future, ’ ’ or even the language in the following paragraph “that which may reasonably be expected to follow in the future,” which we found harmless due to the evidence situation. We are therefore of the opinion that, considering the instruction as a whole in the light of the record, the quoted words sufficiently indicate reasonable certainty to us and to a jury.
We have dealt with various language at length, not out of inclination for tautology but from appellant’s relentless insistence on reasonable certainty, “the phrase, the whole phrase and nothing but the phrase” in imitation of the witness’ oath, and because of his apparent belief that once certain words in certain combinations are used in appellate court opinions those words, and only those words, will be acceptable in a jury instruction. As a result of this belief, shared by many, special instructions, and even the general charges, of trial courts have frequently become the reading of successive paragraphs of selected and unrelated, but appeal tested, abstract propositions of law, not particularly applicable to the facts developed on trial; and the art of instructing a jury in language that is understandable and meaningful to it is in danger of being lost. It is *197 already increasingly said among trial judges that “charges are lelivered to satisfy the Court of Appeals, not to instruct the jury. ’ ’
We think that it is far more important that a special instruction, as well as the general charge, be couched in plain, understandable and informative language than that it contain every code word or phrase which has, at some remote time, been judicially approved.
Former judgment adhered to.
Donahue, P. J., and Brown, J., concur.