Petition — Pisel v. ITT Continental Baking Co.

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1979

No. €9-1959

DAVID E. PISEL AND EVELYN PISEL

Petitioners,

ITT CONTINENTAL BAKING CO. AND

ROBERT BRUBAKER,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT OF THE

STATE OF OHIO

ALFRED J. TOLARO

Zidar, Morgan and Tolaro

75 Public Square, Suite 810

Cleveland, Ohio 44113

(216) 621-4636

Attorneys for Petitioner

EIR SEE UETINT «

Washington, 0.C. e CLB PUBLISHERS’ e LAW PRINTING CO. e (202) 393-0625

(i)

TABLE OF CONTENTS

Page

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I I ids oo eigen 4 bes) 000s one wR |

PN as Ss chen i cb dcs $heedleabnweauees 2

GPRPEDPE PUES PUMIO TEED. oo once tecccevcusevscdeevucs 2

CONSTITUTIONAL PROVISIONS AND STATUTES

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SIATEMEN.T OF THE CASE. ..... 0... ccccncccccntcccs 3

REASONS FOR GRANTING THE WRIT.............. 5

I 6 fn Sie aad t va Gee a waned sau eseuns Coe 12

APPENDIX A -

Opinion of the Supreme Court of Ohio................ 2a

Entry Denying Petitioners’ Motion For Rehearing. ..... 12a

APPENDIX B -

Amended Complaint of the Petitioners................ 2b

Excerpts from Ohio Jurisprudence 2d on the Two

TT ONC Te Oe pe DUT are TNT AN 5b

(ii)

TABLE OF AUTHORITIES CITED

Cases

Buell v. N.Y. Cent. Rd. Co.,

NT NG, ccc cc cccccccccccccccecs 3

Cooper v. Aaron,

(1958) 358 U.S. 1, L.Ed.2d 5,78 S.Ct 1401....... 10,11

Frost v. Corporation Com. of Oklahoma,

(1929) 278 U.S. 515, 73L.Ed. 483, 49 S.Ct. 235....... 10

Louisville Gas & Electric Co. v. Coleman,

(1928) 277 U.S. 32, 72 L.Ed. 770, 48 S.Ct. 423..... 9,10

Michalec v. Hutchison,

(1931) 123 Ohio St. 494...........¢........0.0. cee eee 3

Saunders v. Shaw,

(1917) 244 U.S. 317, 61 L.Ed. 1163, 37 S.Ct. 638.. 5,6,7

Tracy v. Ginzberg,

(1907), 205 U.S. 170 at 178, 51 L.Ed. 755 at 760,

SCE id dbs ccnscvccnsccccscccccccecccccece 8,9

Y&S Ry. Co. v. Faulk,

(1928) 118 Ohio St. 480........... 000, 3

| Treatise

4 Ohio Jurisprudence 2d §831 (Appendix B)........ 4,8,11,5b

Constitutional Provision

U.S. Constitution Fourteenth Amendment........ 2,5,7,8,9,10

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1979

No.

DAVID E. PISEL AND EVELYN PISEL

Petitioners,

ITT CONTINENTAL BAKING CO. AND

ROBERT BRUBAKER,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT OF THE

STATE OF OHIO

INTRODUCTORY STATEMENT

David E. Pisel, and his wife, Evelyn Pisel, petition this

Court for a writ of certiorari to review a judgment of the

Supreme Court of the State of Ohio.

OPINION BELOW

The opinion of the Supreme Court of the State of Ohio is

reported at 61 Ohio State 2d 142, appended hereto as

Appendix A, pages 2a-1 1a.

2

JURISDICTION

The decision of the Supreme Judicial Court of the State of

Ohio was entered on the 14th day of March, 1980, and is

appended hereto as Appendix A, p. 12a. Jurisdiction of

this Court is conferred by 28 U.S.C. §1257.

QUESTION PRESENTED

Whether the Ohio Supreme Court deprived petitioners of

due process and denied them equal protection of laws by

1. reversing the lower Court’s denial of respondent’s

motion for directed verdict on one of two pleaded

alternative theories of liability, and

2. reversing the lower Court’s judgment on the jury verdict

rendered for petitioners on both theories of liability and

entering final judgment on all issues for respondents, in

contravention of, and without abandoning, Ohio’s

common law Two Issue Rule.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Fourteenth Amendment to the Constitution of the

United State provides at Section 1:

“No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.”

3

STATEMENT OF THE CASE

On November 1, 1973, petitioner David E. Pisel collided

with respondents’ truck resulting in amputation of his left leg.

Petitioners charged the respondents with negligence, wanton

misconduct, and wilful misconduct. The petitioners’

Amended Complaint is found in Appendix B, pp. 2b-5b.

The trial court instructed the jury that the petitioner,

David E. Pisel, was guilty of contributory negligence as a

matter of law and under Ohio law could only return a verdict

for the petitioners if they found the respondents guilty of

either wanton misconduct or wilful misconduct.!

The jury returned a general verdict? in favor of petitioners

in the sum of Two Hundred Fifteen Thousand Dollars

($215,000) which was therefore on the basis of either

wanton misconduct or wilful misconduct.

The appellate court (Ohio Court of Appeals) affirmed the

judgment with a unanimous decision on December 22,1978.

The Ohio Supreme Court then reversed the Court of

Appeals with a 4-3 decision but the “per curiam” decision

addressed itself to only one of the two issues, i.e. wanton

misconduct.

There were two separate and distinct issues submitted to

the jury, either of which could sustain the verdict.

The Ohio Supreme Court has followed the Two Issue

‘In Ohio, proof of wilful or wanton misconduct overcomes con-

tributory negligence, which, at the time of petitioners’ trial, was

ordinarily an absolute bar to recovery by a tort claimant.

Michalec v. Hutchison (1931) 123 Ohio St. 494

Y&S Ry. Co. v. Faulk (1928) 118 Ohio St. 480

Buell v. N.Y. Cent. Rd. Co. (1926) 114 Ohio St. 40

*The jury was not polled, nor were interrogatories propounded to the

jury to determine the basis of their verdict. Thus, the verdict was a

general one.

4

Rule in appellate procedure for over one hundred years and it

is still in full force and effect and has not been abandoned.’

Yet the Ohio Supreme Court has chosen to ignore this well

established principle of law to deprive this petitioner of his

jury verdict of $215,000 which was a property right to these

petitioners.

On February 6, 1980, the Supreme Court of the State of

Ohio, in a “per curiam’’ decision of only four of the seven

justices, reversed the lower Court and entered judgment for

respondents on their motion for directed verdict. The

Opinion, however, addressed only the issue of wanton

misconduct, and not wilful misconduct, the alternate theory

of liability submitted to the jury. The briefs of the parties

addressed fully the issue of the Two Issue Rule. The “per

curiam” opinion of the Ohio Supreme Court, however, failed

in any way to take account of the Two Issue Rule. The issue

was addressed only in a lengthy dissenting opinion.

On February 15, 1980, petitioners moved the Ohio

Supreme Court for the reconsideration of its decision

because of its failure to recognize the petitioners’ alternative

theory of liability upon which the jury was charged, and its

failure to account for, by recognition, application, dis-

approval or overruling, the Two Issue Rule on Constitu-

tional grounds. A copy of petitioners’ motion for recon-

sideration is found in Appendix B, pp. 19b-42b. On March

17, 1980, the Court denied the motion for reconsideration

without opinion, and remanded the case to the Richland

County Court of Common Pleas for reversal and judgment

for respondents. The Court’s entry is found in Appendix A,

p. 12a.

‘In Ohio, as in nearly every other State of the Union the Two Issue

Rule provides that when a jury renders a verdict upon two separate

alternative theories of liability, and the verdict is general, and not specific

to either issue, error as to one such theory does not destroy the soundness

of a judgment on the verdict. See Appendix B, pp. 5b-18b.

5

REASONS FOR GRANTING THE WRIT.

I.

THE WRIT SHOULD BE GRANTED BE-

CAUSE THE DECISION OF THE OHIO

SUPREME COURT DEPRIVED THE PE-

TITIONERS OF PROPERTY WITHOUT

DUE PROCESS OF LAW.

The basis for the Fourteenth Amendment guaranty of due

process is the great concern expressed in the Fifth Amend-

ment that the exercise of governmental power, whether

executive, legislative or judicial, should not be arbitrary or

Capricious, but grounded in law. This concerr: has its roots in

the determination of the builders of our nation to create a

government of laws and not a government of men.

Although due process issues have traditionally arisen

from legislative exercises of power, it is clear that exercises

of power in other branches of government may infringe the

due process rights of a person when, for example, he is

deprived of a property right or a liberty interest by such

exercise without reason and without an opportunity to

meaningfully contest such exercise; that is, arbitrarily and

without access to a remedy or a forum in which to pursue it.

Certainly, that the possession of a cause of action is a

property interest, and that access to the courts is a liberty

interest, are beyond dispute.

An example of such a case is Saunders v. Shaw (1917)

244 U.S. 317, 61 L. Ed. 1163, 37 S. Ct. 638. The petitioner

there was a water drainage district tax collector who had

been made a party defendant to an action to enjoin his

collection as to a property owner who claimed his property

6

was not benefited by the district. In that case the Louisiana

Supreme Court, on a motion for rehearing, reversed a lower

court decision for the petitioner which had been affirmed by

the intermediate appellate court and even by itself on initial

hearing. The basis of its decision on rehearing was an offer of

proof by the respondent tax collector in the record, which

was held inadmissible below, and which for that reason was

unrebutted. The Louisiana Supreme Court then entered

judgment on rehearing for the respondent tax collector. The

U.S. Supreme Court held that the action of the State

Supreme Court denied the petitioner due process in that it

foreclosed his ability to prove facts upon which he could

have prevailed below. Petitioner did not attempt to prove

these facts below because he had no duty to do so in view of

the legal holding rendering inadmissible the evidence offered

by the respondent. The U.S. Supreme Court held that the

petitioner was not required to do what he had no duty to do.

Applying the Saunders holding to the case of petitioners

herein, it would appear that here there are even stronger

reasons for a similar holding. Here there was already proof

of facts upon which petitioners could have prevailed, and did

prevail below. This proof was wholly ignored by the Ohio

Supreme Court, along with the theory of liability at which the

proof was aimed, without opinion or comment abandoning

or disapproving wilful misconduct as a cause of action. Thus,

the legal and beneficial result of petitioners’ proof below was

foreclosed by the action of a State Supreme Court seemingly

blind to the record and to the common law of the State. For

these reasons, the decision of the Ohio Supreme Court was

unreasonable, arbitrary and capricious, and constituted a

denial of petitioners’ due process rights.

Saunders also addresses the issue of when a Constitu-

tional claim must be made to be “in time” to serve as the

7

basis of a petition to the U.S. Supreme Court. In Saunders,

the due process issue was first raised in a sé¢cond motion for

rehearing. It could not have been made earlier since the issue

only arose when the Louisiana Supreme Court reversed all

lower decisions, including its own, on the first motion for

rehearing. The U.S. Supreme Court held that the issue was

timely raised and pursued, as follows:

The question remains whether the writ of error can be

maintained. The record discloses the facts but does not

disclose the claim of right under the Fourteenth

Amendment until the assignment of errors filed the day

before the Chief Justice of the State granted this writ. Of

course, ordinarily, that would not be enough. But when

the act complained of is the act of the Supreme Court,

done unexpectedly at the end of the proceeding, when

the plaintiff in error no longer had any right to add to the

record, it would leave a serious gap in the remedy for

infraction of constitutional rights if the aggrieved party

in such a way could not come here. The defendant was

not bound to contemplate a decision of the case before

his evidence was heard and therefore was not bound to

ask a ruling or take other precautions in advance. The

denial of rights given by the Fourteenth Amendment

need not be by legislation. {citation deleted] It appears

that shortly after the Supreme Court had declined to

entertain the petition for rehearing the plaintiff in error

brought the claim of constitutional right to the attention

of the chief justice of the state by his assignment of

errors. We do not see what more he could have done.

Saunders v. Shaw (above) 244 U.S. 317 at 320.

In the case of petitioners herein, the Constitutional issue

was first raised in the motion for reconsideration because, as

in Saunders, it could not have been raised earlier. Pe-

titioners were not in a position to do more than they did.

In Ohio as in nearly every other State, there exists a

common law principle known as the Two Issue Rule. This

8

rule provides that when a jury renders a verdict upon two

separate alternative theories of liability, and the verdict is

general, and not specific to either issue, error as to one such

theory does not destroy the soundness of a judgment on that

verdict. This rule has long standing in the common law of

Ohio, as shown in Appendix B, pp. 5b-18b.

In the case of petitioners herein, the Two Issue Rule has

clear applicability. The verdict was rendered on charges of

both wanton misconduct and wilful misconduct, and re-

versible error with respect to wanton misconduct should not

have destroyed the verdict. Precisely the effect, however, of

the decision of the Ohio Supreme Court was to destroy the

verdict. This was done in a manner inconsistent with the

common law as enunciated in Ohio for more than one

hundred years, without opinion or comment abandoning or

disapproving that rule. The Two Issue Rule is still in force

and effect in Ohio, and has not been abandoned.

The U.S. Supreme Court has defined and given meaning

the phrase “deprived of property without due process” in

similar circumstances as follows:

... Within the meaning of the[ Fourteenth] Amendment,

a deprivation of property without due process of law

occurs when it results from the arbitrary exercise of

power, inconsistent with “‘those settled usages and

modes of proceeding existing in the common and statute

law of England before the emigration of our ancestors,

and which are shown not to have been unsuited to their

civil and political condition by having them acted on by

them after the settlement of this country.” [citation

deleted]

Tracy v. Ginzberg (1907), 205 U.S. 170 at 178, 51

L.Ed. 755 at 760, 27 S.Ct. 461.

Although the Ginzberg case holds contrary to the holding

sought here, it is important to point out that the U.S.

9

Supreme Court recognized there that the state court in fact

respected “those settled usages and modes of proceeding’’.

Further, the decision reviewed in Ginzberg was attended by

findings of fact and conclusions of law. Here no law or reason

was given for the contravention of the Two Issue Rule, nor

was that rule even commented upon in the “‘per curiam”’

opinion of the Ohio Supreme Court. Neither the Two Issue

Rule, nor the common law tort wilful misconduct was

abandoned or disapproved. Under the language of Ginzberg,

and its analysis of circumstances similar to those of pe-

titioners herein, in light of the Fourteenth Amendment due

process clause, it would appear that the Ohio Supreme Court

has engaged in an arbitrary exercise of power which has

denied petitioners the lawful consequence of their day in

court; that is, the Ohio Supreme Court has denied petitioners

their right of due process.

Il.

THE WRIT SHOULD BE GRANTED BE-

CAUSE THE DECISION OF THE OHIO

SUPREME COURT DENIED THE PE-

TITIONERS EQUAL PROTECTION OF

THE LAWS.

The concept of equal protection of laws arises out of the

Same concern as the concept of due process, that our

government should be one of laws and not of men. The

meaning and the purpose of equal protection is simply stated:

‘Lhe equal protection clause of the Federal Constitu-

tion means that the rights of all persons must rest upon

the same rule under similar circumstances, and applies

to the exercise of all the powers of a State which can

10

effect the individual or his property. . . .”

Louisville Gas & Electric Co. v. Coleman (1928)

277 U.S. 32, 72 L. Ed. 770, 48 S.Ct. 423

“The purpose of the clause in the Federal Constitution

in respect to equal protection of laws is to rest rights of

all persons upon the same rule under similar cir-

cumstances.”

Frost v. Corporation Com. of Oklahoma (1929) 277

U.S. 515, 73 L.Ed. 483, 49 S.Ct. 235.

It is clear that the requirement of state action, the

prerequisite of any claim under the Equal Protection Clause,

is met here, as in other cases, by the acts of the judicial

branch of a state government. Cooper v. Aaron (1958) 358

U.S. 1, 3 L.Ed. 2d 5, 78 S.Ct. 1401. Although the Cooper

Case concerned racial discrimination, where the rigor of the

test applied is substantially different, many of the principles

it comments upon are applicable to any equal protection

problem. The Cooper opinion provides as follows on the

issue of “state action”:

“The controlling legal principles are plain. The

command of the Fourteenth Amendment is that no

“State” shall deny to any person within its jurisdiction

the equal protection of the laws. A State acts by its

legislative executive, or its judicial authorities. It can

act in no other way. The constitutional provision,

therefore, must mean that no agency of the State, or of

the officers or agents by whom its powers are exerted,

shall deny to any person within its jurisdiction the equal

protection of the laws. Whoever by virtue of public

position under a State government . . . denies or takes

away the equal protection of the laws, violates the

constitutional inhibition; and as he acts in the name and

for the State, and is clothed with the State’s powers, his

act is that of the State. This must be so, or the

constitutional prohibition has no meaning.” [citation

deleted] Thus the prohibitions of the Fourteenth

Amendment extends to all action of the State denying

equal protection of the laws; whatever the agency of the

State taking the action, [citations deleted] or whatever

the guise in which it is taken, [citations deleted].”

Cooper v. Aaron (1958) 358 U.S. 1 at 16, 3 L.Ed. 2d5

at 16, 78 S.Ct. 1401. (emphasis supplied)

In the case of petitioners herein, the action of the Ohio

Supreme Court fits easily into the meaning and purpose of

the Equal Protection Clause. Petitioners have been denied

the equal protection of two common law principles of long

standing in the State of Ohio. Théir complaint sounding in

tort included the common law tort of wilful misconduct. At

the trial of the issues, evidence was offered and admitted on

wilful misconduct, along with wanton misconduct the jury

was charged on wilful misconduct, and a verdict thereon was

obtained. The Ohio Supreme Court reversed the judgment of

the trial court, as affirmed by the intermediate appellate

court, and entered judgment in all respects for respondents.

The effect of the reversal by the Ohio Supreme Court was

to deny to petitioners the benefit and protection of Ohio laws

with respect to wilful misconduct, without the merest

indication of an abandonment or disapproval of those laws.

Today in Ohio the laws respecting wilful misconduct are still

in force and effect, and are being applied and given effect in

courts of law for the benefit of other Ohio residents before

them in similar circumstances. Petitioners have been singled

out, among other citizens of the State, for different creatment

under the State’s laws respecting wilful misconduct.

Petitioners have been likewise denied by the Ohio Su-

preme Court’s reversal the benefit and protection of the Two

Issue Rule, discussed above. (See footnote no. 3, and

Appendix B pp. 5b-18b.) Again, the Supreme Court failed to

indicate an abandonment or disapproval of the Rule. Today

in Ohio, the Two Issue Rule is still in force and in effect, and

12

is being applied and given effect in courts of law for the

benefit of other Ohio residents before them in similar

circumstances. Petitioners have been singled out, among all

other citizens of the State, for different treatment under the

State’s Two Issue Rule.

Although under prior decisional law of the U.S. Supreme

Court, a state’s supreme court is the final arbiter of that

state’s common law, that is not this case. The Ohio Supreme

Court has not, in petitioners’ case, or any other, altered Ohio

common law with respect to wilful misconduct or the Two

Issue Rule. Were that the case, petitioners acknowledge that

they would have no grounds for this petition. Similarly, if this

court accepts certiorari and remands the case to the Ohio

Supreme Court for rehearing, and if that Court abandons

wilful misconduct or the Two Issue Rule, petitioners would

similarly lack the grounds outlined herein.

Even when the least stringent test of denial of equal

protection is applied to these facts, it is clear that such denial

has been perpetrated. Clearly, there is here no rational

relation whatever between the singling out of these pe-

titioners for special treatment under the laws of Ohio and any

conceivable legitimate or appropriate judicial interest or

goal.

CONCLUSION

For all of the reasons stated above, the questions raised by

petitioners’ case beg to be heard. The judiciary of each State

in the Union is entitled to great deference when under the

scrutiny of the Federal judiciary, considering the traditional

and continuing importance of the ideal of Federalism. In this

case, however, the Ohio Supreme Court has exceeded the

13

bounds of such deference in openly and wholly ignoring Ohio

law applicable to these petitioners.

Petitioners respectfully request that the U.S. Supreme

Court accept jurisdiction of this controversy.

Respectfully submitted,

ALFRED J. TOLARO

ZIDAR, MORGAN and

TOLARO

75 Public Square, Suite 810

Cleveland, Ohio 44113

(216) 621-4636

Attorneys for tne Petitioners

Appendix A

OPINION OF THE SUPREME COURT OF OHIO

AND

ENTRY DENYING PETITIONERS’ MOTION

FOR REHEARING

2a -

JANUARY TERM, 1980.

Opinion Per Curiam.

PISEL ET AL., APPELLEES, v. ITT CoNTINENTAL BAKING

COMPANY ET AL., APPELLANTS.

[Cite as Pisel v. Baking Co. (1980), 61 Ohio St. 2d 142.]

Negligence—Motor vehicles— Wanton misconduct, construed

—Directed verdict—Erroneously denied, when.

(No. 79-201—Decided February 6, 1980.)

APPEAL from the Court of Appeals for Richland County.

This cause arose from an action instituted by appellees

herein, David E. and Evelyn Pisel, against appellants, ITT

Continental Baking Co. and Robert Brubaker, seeking

damages resulting from a collision occurring between David

Pisel’s motorcycle and the baking company’s truck driven by

its employee, Brubaker. At the close of appellees’ case, ap-

pellants moved for a directed verdict. The trial court denied

appellants’ request and submitted the cause to the jury,

which found in appellees’ favor. Judgment was entered upon

the verdict.

The Court of Appeals for Richland County affirmed the

judgment of the trial court, and the cause is now before this

ee to the allowance of a motion to certify the

record.

Messrs. Zidar, Morgan & Tolaro and Mr. Alfred J.

Tolaro, for appellees.

Messrs. Baran & Baran, Mr. Gregory C. Baran and Mr.

Edward C. Baran, for appellants.

Per Curiam. Appellants’ major challenge in the cause

at bar stems from the trial court’s refusal to grant their mo-

tion for a directed verdict. Appellants argue that the trial

court erred when it submitted the instant cause to the jury on

the question of whether Brubaker’s (hereinafter ‘‘appellant’’)

behavior amounted to wanton misconduct.

A perusal of the evidence in the manner required by Civ.

R. 50(A)(4) * demonstrates that on November 1, 1973, at

* Civ. R. 50(A)(4) provides:

“(A) Motion for directed verdict. * ** .

(4) When granted on the evidence. When a motion for a directed verdict has

been properly made, and the trial court, after construing the evidence most strongly

in favor of the party against whom the motion is directed, finds that upon any deter-

3a

PISEL v. BAKING CO.

Opinion Per Curiam

about 7:15 p.m., after darkness had descended, David Pisel

(hereinafter ‘‘appellee’’) was operating his motorcycle

westerly on U. S. Route 30 in Mansfield, Ohio. Route 30 is an

unlighted four-lane highway separated by a concrete barrier.

Appellee was traveling in the left lane, and was wearing a

helmet with an amber-tinted face mask. Appellee testified

that the mask had the effect of ‘‘darkening”’ lights when he

wore it at night. His speed was approximately 50 miles per

hour and his lights were on. As appellee approached his in-

tended exit, he glanced backward over his shoulder in order

to move into the right lane. He was unable, however, to

change lanes due to the traffic in that lane. When he again

focused his vision forward, appellee observed a truck resting

sideways in his lane. Unable to stop in time, appellee crashed

into the truck and sustained injuries which resulted in the am-

putation of his left leg.

During trial, the evidence demonstrated that approx-

imately ten to fifteen minutes prior to appellee’s collision, ap-

pellant’s truck had been involved in an accident with an

automobile. Although the truck was operable, appellant did

not remove it from the westbound, left lane of travel. Both

vehicles were left in the highway until the police could arrive

to prepare an accident report. After the collision, however,

the truck’s headlights, tailights, and clearance lights were

left on by appellant. When a witness arrived at the scene, ap-

pellant requested that the police be summoned. While

awaiting arrival of the authorities, appellant remained with

the vehicles and began to direct the flow of traffic around the

wreckage. The evidence is in dispute with respect to whether

appellant was using a flashlight to direct other travelers as

appellee arrived at the scene. When appellant observed ap-

pellee’s motorcycle approaching, he began waiving his arms

in an attempt to warn him of the obstruction.

‘‘Wanton misconduct” has most recently been discussed

by this court in Hawkins v. Ivy (1977), 50 Ohio St. 2d 114, 363

N.E. 2d 367, wherein the syllabus states:

‘Where the driver of an automobile fails to exercise any

minative issue reasonable minds could come to but one conclusion upon the evidence

submitted and that conclusion is adverse to such party, the court shall sustain the

motion and direct a verdict for the moving party as to that issue.”

4a

JANUARY TERM, 1980,

Dissenting Opinion, per W. Brown, J.

care whatsoever toward those to whom he owes a duty of

care, and his failure occurs under circumstances in which

there is great probability that harm will result, such failure

constitutes wanton misconduct.* **”’ (Emphasis added.)

Applying this rule to the facts at bar, it is clear that ap-

pellant’s actions did not amount to “wanton misconduct.”’

The defendant in Hawkins failed to exercise any care what-

soever. In the instant cause, appellant acted to protect other

motorists from the potential danger of the blocked thorough-

fare. Baab v. Shockling (1980), 61 Ohio St. 24 55,—N.E. 2d—.

The judgment of the Court of Appeals is reversed and

final judgment is entered for appellants.

Judgment reversed.

HERBERT, LOCHER and HOLMES, JJ., concur.

P. BROWN, J., concurs in the judgment.

CELEBREZZE, C. J., W. BROWN and LYNCH, JJ., dissent.

LYNCH, J., of the Seventh Appellate District, sitting for

SWEENEY, J.

WILLIAM B. Brown, J., dissenting. In the instant

cause, the majority does not merely apply Hawkins y. Ivy

(1977), 50 Ohio St. 2d 114. Rather, it sanctions a somewhat

different approach to the issue of wanton misconduct with

which I disagree. In Hawkins, we held that where the prob-

ability of harm was great, a tortfeasor’s complete failure ‘‘to

exercise any care whatsoever” constituted wanton miscon-

duct, entitling a plaintiff to a directed verdict. Here, the ma-

jority reads Hawkins to imply that a similar tortfeasor is

himself entitled to a directed verdict where such a complete

failure to exercise any care is absent.

I agree with Hawkins insofar as it establishes that an ap-

propriate demonstration of a tortfeasor’s complete failure to

exercise any care is sufficient to direct a verdict for a plaintiff

on the issue of wanton misconduct. I do not agree with the

majority that a plaintiff should be required to offer evidence

tending to show a tortfeasor’s complete failure to exercise

any care in order to survive a tortfeasor’s motion for a

directed verdict. In the majority’s view, a tortfeasor need on-

5a

PISEL v. BAKING CO.

Dissenting Opinion, per LYNCH, J.

ly show that he lifted a finger in order for his motion for a

directed verdict to be granted. Surely, the issue of wanton

misconduct cannot be determined without considering the

precise interests compromised by the tortfeasor’s conduct.

Moreover, the approach that the majority adopts makes

it virtually impossible for a plaintiff to prevail on this issue.

Contributory negligence has thus become, in effect, a defense

to ‘“‘wanton”’ misconduct, as well as to negligence. It should

not be so easy for tortfeasors to escape liability.

CELEBREZZE, C. J., and LYNCH, J., concur in the forego-

ing dissenting opinion.

LYNCH, J., dissenting. The majority opinion’s decision

is based on the sole question of whether the behavior of

defendant Brubaker amounted to wanton misconduct. The

trial court properly charged the jury on wanton misconduct,

pursuant to Hawkins v. Ivy (1977), 50 Ohio St. 2d 114, but it

also gave the following charge on wilful misconduct:

‘‘Wilful misconduct is intentionally doing that which is

wrong or intentionally failing to do that which should be

done. The circumstances must also disclose that the defen-

dant knew or should have known that such conduct would

probably cause injury to the plaintiff. Wilful misconduct im-

plies an intentional disregard of a clear duty or of a definite

rule of conduct; a purpose not to discharge such duty, or a

purpose to perform wrongful acts with knowledge of the

likelihood of resulting injury. It is purposeful action or pur-

poseful failure to act as differentiated from neglect to act.”’

Defense counsel made no objection to the trial court’s

charge on wilful misconduct; therefore, it is the law govern-

ing this question in this case.

A construction of the evidence adduced at trial most

strongly in plaintiffs’ favor, pursuant to Civ. R. 50(A)(4),

shows that the subject accident occurred at approximately

7:15 P.M. on November 1, 1973, after darkness had descend-

ed, on U.S. Route 30 in Mansfield, Ohio, which was an

unlighted limited access, divided four- lane highway; that ten

to fifteen minutes prior to subject accident, defendants’ truck

had been involved in a minor accident with an automobile and

was operable; that, during this time, defendants’ truck was

6a

JANUARY TERM, 1980.

Dissenting Opinion, per Lyncu, J.

left parked sideways across the left passing lane of such

highway in violation of R. C. 4511.68(P); that although the

lights on defendants’ truck were left on, they were not discer-

nible to approaching traffic because such lights were directed

away from approaching traffic because of the position of

defendants’ truck on such highway; that defendants’ truck

was not equipped with either flares, reflectors or fusees in

violation of R. C. 4518.27; that defendant Brubaker did not

place either lighted fusees, red electric lanterns or red reflec-

tors at the traffic side of his vehicle, and at a distance of 40

paces or approximately 100 feet from his vehicle on the traffic

side in violation of R. C. 4513.28; that defendant Brubaker did

not exhibit a white or amber light on the roadway side that

was visible from a distance of 500 feet to the front of his vehi-

cle and a red light visible 500 feet to the rear, in violation of

R. C. 4513.10; that when defendant Brubaker saw plaintiff's

motorcycle approaching, he began waiving his arms in an at-

tempt to warn plaintiff of the obstruction in the highway

caused by his truck; that defendant Brubaker was so close to

his truck while doing this that plaintiff saw defendants’ truck

before he saw Brubaker; that plaintiff’s speed was approx-

imately 50 miles per hour and his lights were on; that when

plaintiff saw defendants’ truck, he was unable to stop in time

and crashed into the truck; and that plaintiff sustained in-

juries which resulted in the amputation of his left leg.

This court has held that the leaving of a motor vehicle at

night across or in the travel lane of a highway, where the

driver thereof fails to exercise any care whatsoever to other

users of the highway, is a reckless and inexcusable disregard

of the rights of other motorists on such highway. Hawkins v.

Ivy, supra; Kellerman v. J. S. Durig Co. (1964), 176 Ohio St.

320; Reserve Trucking Co. v. Fairchild (1934), 128 Ohio St.

519.

The majority opinion apparently attaches no significance

to the fact that the subject accident occurred on a limited ac-

cess highway. The writer believes that this fact is pertinent to

the decision in this case.

A limited access highway is one especially designed for

through traffic, over which abutters have no easement or

right of access, so as to eliminate cross traffic of vehicles

7a

PISEL v. BAKING CO.

Dissenting Opinion, per LYNCH, J.

(R. C. 5585.02, 4511.01[CC]). Access to such highway may be

allowed only at highway intersections designated by the

Director of Transportation (R. C. 5511.02). Pedestrians, ex-

cept in emergency situations, and slow vehicles are pro-

hibited within the limits of a freeway (R. C. 4511.051). Ex-

cept for some specific exceptions which are not applicable to

this case, no person shall park a vehicle on the roadway por-

tion of a freeway, expressway or thruway (R. C. 4511.68[P]).

A limited access highway is designed and constructed at

a considerable cost to the general public so that reasonably

prudent drivers on such highways can drive at a higher rate

of speed than can be done on ordinary roads because of the

elimination of cross traffic and of slow vehicles from such

highways. This is a considerable advance in the technology of

building roads from the two-lane roads that generally existed

at the time this court decided Smiley v. Arrow Spring Bed

Co. (1941), 188 Ohio St. 81. There are still many two-lane

roads in Ohio, and the Smiley case is still valid law as applied

to accidents arising on such highways. However, the effect of

the Smiley case is to slow down traffic in anticipation of

recognized traffic hazards. The design of limited access roads

is intended to eliminate as many of the recognized traffic

hazards as possible. The writer believes that a comparable ad-

vance in the technology of the law in its application to motor

vehicle accidents on limited access highways requires a

recognition of an inherent conflict with the legal principle

enunciated in the Smiley case and the legislative intent of the

applicable statutes to limited access highways.

Thus, the facts of cases involving motor vehicle accidents

on limited access highways should be distinguished from the

facts of the Smiley case. The writer’s opinion is that a new

principle of law applicable to such cases should be developed.

In the instant case, the trial court instructed the jury that

plaintiff was negligent as a matter of law; that plaintiff's own

negligence in the operation of his motorcycle was a direct

cause of the subject accident, and that the only question

before the jury was whether defendants were liable because

of wilful and wanton misconduct, of defendant Brubaker.

In this case, plaintiff was driving his motorcycle on a

limited access road at a speed of approximately 50 miles per

8a

JANUARY TERM, 1980.

Dissenting Opinion, per Lyncu, J.

hour, which was a lawful and reasonable rate of speed for this

highway. Plaintiff had the right to assume that defendants

would obey the laws and would either remove defendants’

truck from its dangerous position on the highway or place

warning lights of such brightness or at such a distance from

the truck so as to adequately warn approaching motorists

(such as = ) of the obstruction in the highway caused by

the truck being parked across such highway. In this case

defendant Brubaker did not comply with such statutes, and

did not warn plaintiff in sufficient time to enable plaintiff to

stop his motorcycle at the speed at which he was traveling.

Although the issue is not before this court, the writer

believes that there is a serious question of whether plaintiff's

negligence was the proximate cause of such accident. Under

the facts of this case, the writer’s opinion is that the most

probable cause of such accident was the action of defendant

Brubaker in leaving his operable truck parked sideways

across the passing lane of a limited access highway without

complying with the statutory requirements of warning ap-

proaching traffic by visible lights. The writer concurs with

Justice William B. Brown's dissent from the majority opinion

on the application of Hawkins v. Ivy, supra, on the issue of

wanton misconduct to the facts of this case. However, the

writer further concludes that such actions of defendant

Brubaker were grossly irresponsible and amounted to wilful

misconduct.

Defendant Brubaker admitted that he knew that the posi-

tion of his truck on an unlighted, limited access highway was

dangerous and hazardous. In effect, he admitted that the

position of his truck on such highway created a situation

where there was a great probability that approaching traffic

would run into his truck, resulting in serious personal injury,

death or damage.

After his first accident, Brubaker had sufficient time to

remove his truck from its dangerous position on the highway

as he was required to do pursuant to R. C. 4511.68(P).

Brubaker made the deliberate decision not to remove his

truck from this highway but to await the arrival of the police

whom a witness, who arrived at the scene, summoned on his

C. B. radio. R. C. 4549.02 requires a person involved in an ac-

9a

PISEL v. BAKING CO.

Dissenting Opinion, per LYNCH, J.

cident to stop at the scene of the accident and to supply cer-

tain information, but there is no statutory requirement that a

motor vehicle involved in an accident remain in the same posi-

tion until the police arrives. To do so is helpful for the police

accident report and to the party involved in the accident, but

in the instant case the leaving of defendants’ truck parked

across the passing lane of a limited access highway was not

done with any consideration of the rights of approaching

motorists.

When Brubaker made this decision not to remove his

truck until the police arrived, he knew that he was on a

limited access highway where drivers would drive at a

greater speed than on ordinary roads; that his truck did not

have either flares, reflectors or fusees as required by R. C.

4513.27 and that he could not comply with R. C. 4513.28.

His final and dangerous misconduct was his failure to

comply with the statutory requirements to warn oncoming

traffic of the obstruction of the highway by the presence of

his truck on such highway. He had the choice to turn his truck

so that the lights faced oncoming traffic, rather than being

directed away from such traffic, or to walk down the highway

with a flashlight or some other discernible light to a sufficient

distance so as to warn oncoming traffic of such obstruction.

It is to be noted that R. C. 4513.28 requires that lighted

fusees, red electric lanterns or red reflectors be placed at a

distance of 40 paces or approximately 100 feet from a disabl-

ed truck. This is the only statutory standard that has come to

the writer’s attention for this purpose.

The writer is aware that standing on a limited access

highway waving a flashlight at night is hazardous to the per-

son doing so for the same reason as leaving a truck parked

across the travel lane of such highway. However, the statutes

impose a duty on a person whose truck is parked on a travel

lane of a limited access highway to either remove such vehicle

or to adequately and timely warn other motorists ap-

proaching such vehicle of the presence of the obstruction on

such highway caused by the parking of such truck on such

highway.

The writer’s conclusion is that the overwhelming motiva-

tion for the actions of defendant Brubaker was his concern to

10a

JANUARY TERM, 1980.

Dissenting Opinion, per Lyncu, J.

protect the property interest of his employer, defendant ITT

Continental Baking Company, rather than any actual care for

approaching traffic. His decision to leave his operable truck

parked across the travel lane of an unlighted limited access

highway until the police arrived clearly supports this conclu-

sion. Defendant Brubaker had time to talk to the driver of the

automobile with whom he had the first accident to obtain in-

formation from her but he did not utilize the available ten to

fifteen minutes to comply with the applicable statutes as to

warning approaching traffic by placing lights of sufficient

brightness or at a sufficient distance from his truck to allow

approaching traffic to stop in time to avoid a collision with his

truck. Instead, he stood in the vicinity of his truck. As plain-

tiff was approaching defendants’ truck at a rate of speed at

which he was unable to stop in time to prevent his crashing

into the truck, defendant Brubaker waved his arms to attract

plaintiff's attention to the obstruction caused by his truck on

the highway: By that time plaintiff had already seen the

obstruction and Brubaker’s action in waving his arms was in-

effectual in preventing the subject accident. The only effect

of such action by Brubaker was that plaintiff turned his

motorcycle to the right and hit the front bumper of defen-

dants’ truck instead of hitting such truck broadside, thus

minimizing the damage to defendants’ truck.

The number of highway accidents in Ohio resulting in

serious personal injuries and death is a matter of general

knowledge and concern. Regardless of what decisions courts

make regarding highway accident cases, highway accident

casualties will continue. However, judges play a role in shap-

ing the law so as to exercise some control! over highway ac-

cidents. This court enunciated the legal principle in the

Smiley case in an effort to prevent accidents.

However, in the writer’s opinion the strict application of

the Smiley case to the facts of this case will cause more ac-

cidents rather than prevent them. In the writer’s opinion the

action of defendant Brubaker in leaving his operable truck on

an unlighted limited access highway, when he had sufficient

time to remove such truck, without complying with the ap-

plicable statutes as to placing warning lights directed to ap-

proaching traffic predictably would result in an accident such

4

lla

as occurred in this case. The writer submits that the proper

test is the question of what was the proximate cause of such

accident. Under the present state of the law and under the

facts of this case, the writer agrees with both the trial court

and the “ourt of Appeals that the question of whether

Brubaker s actions amounted to wilful and wanton miscon-

duct was properly submitted to the jury.

12a

THE SUPREME COURT OF THE STATE OF OHIO

THE STATE OF OHIO, 1980 TERM

City of Columbia.

David E. Pisel et al., To wit: March 14, 1980

Appellees,

VS. No. 79-201

ITT Continental Baking Co.,

et al., REHEARING

Appellants.

It is ordered by the court that rehearing in this case is

denied.

I, THOMAS L. STARTZMAN, of Clerk the Supreme

Court of the State of Ohio, do hereby certify that the

foregoing entry was correctly copied from the records of

said Court, to wit, from Journal No. Page___

IN WITNESS WHEREOF, I have hereunto subscribed

my name and affixed the seal of the Supreme Court

this 14th day of March 1980

THOMAS L. STARTZMAN

Clerk.

By Deputy.

Appendix B

AMENDED COMPLAINT OF THE PETITIONERS.

EXCERPTS FROM OHIO JURISPRUDENCE 2d

ON THE TWO ISSUE RULE.

PETITIONERS’ MOTION FOR RECONSIDERA-

TION.

2b

IN THE COURT OF COMMON PLEAS

RICHLAND COUNTY, OHIO

DAVID E. PISEL, and * Case No. 75-313

EVELYN PISEL

2112 Springmill North Road aoe

Mansfield, Ohio

oe

Plaintiffs

OOH

-VS-

*

ITT CONTINENTAL BAKING CO.

West Fourth Street oe

Mansfield, Ohio

4

and

tok we

ROBERT BRUBAKER Amended Com-

2793 Hillcrest Drive * plaint and Jury

Mansfield, Ohio Demand With New

*** Parties Defendant

and

+

BARBARA SHABAN

1567 Evergreen Avenue oes

Mansfield, Ohio

ob tok

Defendants

—

and

B & S PLASTICS, INC.

11433 Phillips Highway oe

Jacksonville, Florida

and

3b

JOSEPH A. ARMSTRONG f.d.b.a.

UNITED MOTOR SALES °

586 Michigan Avenue

Mansfield, Ohio aad

New Parties Defendant *

CLAIM I

(1) After having first duly obtained leave of court to file

his Amended Complaint and make New Parties Defendant,

Plaintiff David E. Pisel says that on or about November 1,

1973, in the night season, he was operating his Honda motor

vehicle in a westerly direction on State Route 30 in the City

of Mansfield, Ohio, when suddenly and without warning, a

motor truck owned by the Defendant, ITT Continental

Baking Co., appeared in his path of travel, parked

perpendicular to the roadway in the high speed lane of the

highway.

(2) Plaintiff says further that the truck had been operated

by Robert Brubaker in the course and scope of his employ-

ment with the ITT Continental Baking Co., and that it had

become disabled as a result of the negligence of Defendant,

Barbara Shaban, in colliding with it, and willfully and

wantonly left by the Defendants blocking the high speed

passing lane of the highway without warning devices in

violation of Section 4513.28 of the Ohio Revised Code and

without regards of the safety and rights of others lawfully

using the roadway.

(3) Plaintiff says further that at the time of the within

incident, he was wearing an amber colored shield that was

produced and distributed by Defendant, B & S Plastics, Inc.,

and sold by the Defendant Joseph A. Armstrong, and that

they were negligent in failing to give warning to their ultimate

om

4b

consumer and user that these shields were not fit for use at

night inasmuch as they cause dim objects to be less

discernable and therefore created a safety hazard to the

wearer.

(4) As a direct and proximate result of Defendants’

negligence and willful and wanton misconduct, Plaintiff

collided with the said motor truck sustaining great injury to

his mind and body and great economic loss in the form of

hospital and medical expenses and loss of income, It further

resulted in the amputation of his left leg which has

diminished his loss of enjoyment for life, all to his damage.

CLAIM II

(1) Plaintiff Evelyn Pisel for her claim realleges the facts

set forth in Claim I and says further that she is the duly

wedded wife of Plaintiff David E. Pisel and that as a

proximate result of Defendant’s negligence and willful and

wanton misconduct has been deprived of her husband’s

consortium,

WHEREFORE, Plaintiff David E. Pisel demands Judg-

ment against the Defendants in the sum of One Million Five

Hundred Thousand Dollars ($1,500,000.00) on his claim

and Plaintiff Evelyn Pisel demands Judgment against the

Defendants in the sum of Three Hundred Thousand Dollars

($300,000.00) plus the costs of this action and for a trial by

jury.

ALFRED J. TOLARO

Attorney for Plaintiffs

510 Leader Building

Cleveland, Ohio 44114

771-7250

Sb

SERVICE

Acopy of the within Amended Complaint has been served

upon the Defendants ITT Continental Baking Co., and

Robert Brubaker by mailing a cop’ of same to their attorney,

Edward C. Baran, 505 Richland } ~ust Building, Mansfield,

Ohio; and Defendant Barbara Shaban by mailing a copy to

her attorney, Micki Chattman, 44 Park Avenue W.,

Mansfield, Ohio, this day of :

1975 by ordinary United States mail, postage prepaid.

ALFRED J. TOLARO

Attorney for Plaintiffs

OHIO JURIS PRUDENCE 2d

§831. Error Affecting Only One of Several Issues; the

“Two-Issue” Rule.—It is well settled that where the jury

returns a general verdict in a case involving two or more

issues, a finding upon any one of which in favor of the

successful party would entitle him to judgment, if the record

does not disclose affirmatively by answers to interrogatories

or otherwise upon which issue such verdict was based, the

judgment will not be reversed if no error appears as to any

one or more of them although there may be error as to other

issues. '® This is known in jurisprudence as the “‘two-issue”’

'9Sites v. Haverstick, 23 OS 626; Tod v. Wick Bros. 36 OS 370;

Beecher v. Dunlap, 52 OS 64, 38 NE 795, followed without op in

Cummings v. Ritter, 52 OS 673, 44 NE 1134, and National Union v.

Rothner, 57 OS 679, 50 NE 1131; McAllister v. Hartzell, 60 OS 69, 53

NE 715; Goldenberger v. Ryan, 62 OS 643, 58 NE 1099; State ex rel.

Lattanner v. Hills, 94 OS 171, 113 NE 1045, LRA1917B684; Niemes

v. Niemes, 97 OS 145, 119 NE 503; Jones v. Erie R. Co. 106 OS 408,

140 NE 366: Ochsner v. Cincinnati Traction Co. 107 OS 33, 140 NE

644: Hubert v. Kessler, 108 OS 584, 142 NE 38; Petrich v.

(continued)

6b

(footnote continued from proceeding page)

Pennsylvania-Ohio Electric Co, 109 OS 636, 144 NE611; Fourth& C.

Trust Co, v. Rowe, 122 OS 1, 170 NE 439; Knisely v. Community

Traction Co, 125 OS 131, 180 NE 654; Binder v. Youngstown Munici-

pal R. Co, 125 OS 193, 180 NE 899; Kihlken v. Barber, 129 OS 485,

196 NE 164, 2 O Ops 483; Swoboda v. Brown, 129 OS 512, 196 NE

274, 2 O Ops 516 (recognizing general principle, but holding two-issue

rule inapplicable to save the general verdict in the instant case);

Youngstown Municipal R. Co. v. Mikula (1936) 131 OS 17, 1 NE2d

135, 5 O Ops 288; Will v. McCoy (1939) 135 OS 241, 20 NE2d 371,

14 O Ops 85; Leonardi v. A. Habermann Provision Co. (1944) 143 OS

623, 56 NE2d 232, 28 O Ops 511; Bushv. Harvey Transfer Co, (1946)

146 OS 657,67 NE2d 851, 33 O Ops 154; Soltz v, Colony Recreation

Center (1949) 151 OS 503, 87 NE2d 167, 39 O Ops 322; Brown v.

Dusha, 1 O App 232, 20 OCC NS 310, 35 OCC 437, affd without OP

89 OS 403, 106 NE 1047; Fruit Dispatch Co. v. Lisey, 4 O App 300, 22

OCC NS 7, 38 OCC 496; O’Grady v. Newark, 6 O App 388,27 OCA

247,39 OCC 95; A. F. Waite Taxi & Livery Co. v. McGrew, 16 O App

219; O’Day v. Shouvlin, 17 O App 62, affd 104 OS 519, 136 NE 289,

25 ALR 980; Franklin Bond & Invest. Co. v. Long, 18 O App 235, 21

OLR 507; Buschelmann v. Cincinnati, 18 O App 346; State Sav. & T.

Co. v. Grady, 20 O App 385, 153 NE 238, mco 21 OLR 153;

Hirshberger v. Sinning, 21 O App 17, 152 NE 908; Mulvihill v.

Frohmiller, 21 O App 210, 153 NE 115; Kronenberg v. Whale, 21 O

App 322, 153 NE 302, mco 23 OLR 609; Tillman v. Toledo, 23 O App

442,157 NE 120, mco25 OLR97; Remix v. Sisler, 24 O App 162, 156

NE 240, mco Remix v. Cleveland Trust Co. 24 OLR 456; Hodnicki v.

Pere Marquette R. Co. 25 O App 124, 158 NE 496; Jasionowski v.

Industrial Commission, 25 O App 319, 158 NE 195, mco25 OLR1 75;

Cleveland R. Co. v. Duralia, 30 O App 389, 165 NE 358, 28 OLR 231 :

mco Feb. 20, 1929; Matis v. Woodruff, 31 O App 73, 166 NE 203, 6

OL Abs 118, mco March 28, 1928; Harris v. Stoley, 31 O App 533, 166

NE 428; Columbus R. Power & L. Co. v. Lombard, 33 O App 47, 168

NE 619; Bruce v. Cook, 34 O App 563, 171 NE 424: McCombs v.

Landes, 35 O App 164, 171 NE 862: Weaver v. Mt. Vernon, 36 O App

358, 173 NE 249; Dayton Biscuit Co. v. Aerni, 40 O App 49, 177 NE

775, 34 OLR 346, 10 OL Abs 344, settled and dismd May 13, 1931;

Armour & Co. v. Yoter, 40 O App 225, 178 NE 596, 35 OLR 355, 11

OL Abs 186, mco Dec. 23, 1931; Graham & Wagner v. Ridge, 41 O

App 288, 179 NE 693, 11 OL Abs 518; Steele v. Rail & River Coal Co.

42 O App 228, 182 NE 552, 12 OL Abs 424: Allen v. Leavick, 43 O

7b

(footnote continued from proceeding page)

App 100, 182 NE 139, 12 OL Abs 381: Barkacv. Russell, 44 O App87,

184 NE 400, 13 OL Abs 290; Ohio Exch. for Educational Films Co. v.

P. & R. Amusement Co. 45 O App 10, 186 NE 746, 38 OLR 270, 13

OL Abs 510, mco March 8, 1933; Woodward v. Gray, 46 O App 177,

188 NE 304, 39 OLR314, 16 OL Abs 138, mco Oct. I 1, 1933; Witham

v. Kroger Grocery & Baking Co. 51 O App 499, 1 NE2d 949,3 O Ops

387, 20 OL Abs 382; Fineberg v. Lincoln-Phelps Apartment Co. 55 O

App 402, 9 NE2d 1011, 9 O Ops 107, 19 OL Abs 81; Rickabaugh v.

Youngstown Municipal R. Co. (1936) 55 O App 431,9 NE2d900,9 O

Ops 129, 23 OL Abs 544, mco Jan. 20, 1937: Norris v. Mingo Junction

(1937) 55 O App 288, 9 NE2d 742, 9 O Ops 66, 24 OL Abs 272; Gaus

v. Pennsylvania R. Co. (1937) 56 O App 299, 10 NE2d 635, 9 O Ops

389, 25 OL Abs 24; Fries v. Cincinnati Street R. Co. (1941; App) 35

NE2d770, 33 OL Abs 654, affd 138 OS 537, 37 NE2d 193,21 O Ops

420; Karle v. Cincinnati Street R. Co. (1942) 69 O App 327, 43NE2d

762, 24 O Ops 102, 37 OL Abs 164; Furnis v. Industrial Commission

(1942) 71 O App 146, 45 NE2d 782, 250 Ops 507, 37 OL Abs 125,

mco Dec. 9, 1942; Coldren v. May (1942) 72 O App 484, 52 NE2d

528, 27 O Ops 425, 39 OL Abs 182: Edwards v. Benedict (1946) 79 O

App 134, 60 NE2d 471, 34 O Ops 494, 47 OL Abs 473; Moody v.

Vickers (1947) 79 O App 218, 72 NE2d 280, 340 Ops 544, 48 OL Abs

353; Rinkes v. Tyler(1949) 86 O App 8, 89 NE2d 694, 40 O Ops 450:

bolser v. Smalley (1951) 89 O App 161, 101 NE2d 147,45 O Ops 426;

Lavell v. Raskin Hotel Co. (1951) 90 O App 185, 102 NE2d611,470

Ops 145,60 OL Abs 258; Dull v. American Teleph. & Teleg. Co. ( App)

1 OL Abs 750; Laschiacza v. Bloomington (App) 2 OL Abs 12: St.

Louis, T. & E. R. Co. v. Cincinnati, N.O. & T. P.R. Co. (App) 5 OL Abs

501; Reed v. Boone (App) 6 OL Abs 21: Cuyahoga Baking Co. v.

Thomasouska (App) 6 OL Abs 195; Chima v. Galusca(App) 6 OL Abs

276; Van Canfort Co. v. Morris( App) 6 OL Abs 507; Doran v. Hempey

(App) 6 OL Abs 622; Counts v. Wortman (App) 8 OL Abs 478:

Nicastro v. Youngstown Municipal R. Co. (App) 9 OL Abs 244; Pohl v.

McAfee (App) 10 OL Abs 555; Biechler v. Jewett (App) 11 OL Abs

245; Hawes v. William (App) 12 OL Abs 98; Poppas v. New Boston

(App) 12 OL Abs 234; Tailford v. Herold (App) 12 OL Abs 470;

Hoffman v. Pittsburg & L. E. R. Co. (App) 13 OL Abs 153; Baumeister

v. Nevin Bus Lines (App) 13 OL Abs 224; Thompson v. Goodyear Tire

& Rubber Co. (App) 13 OL Abs 615, mco April 5, 1933; Fincher v.

Summit Beach Park Co. (App) 13 OL Abs 665; Pompano Realty Co. v.

Whitefort (App) 14 OL Abs 361; Chambers v. Holtcamp (App) 14 OL

8b

(footnote continued from proceeding page)

Abs 413; Jones v. Coombs (App) 19 OL Abs 27; Schmidt v. Kinney

(App) 19 OL Abs 269; Singleton v. Polster (App) 19 OLAbs 531;

Monnett v. Producers Co-op. Commission Asso. (App) 19 OL Abs 581;

Accordino v. McKay( App) 22 OL Abs 93; Hines v. Office (1936; App)

21 OL Abs 553; Haughn v. Detroit, T. & I. R. Co. (1937; App) 25 OL

Abs 123, mco Dec. 22, 1937; Parker v. Cincinnati (1937; App) 25 OL

Abs 359, mco Nov. 24, 1937; Fitzgerald v. Umbaugh (1937; App) 26

OL Abs 405; Wolfel v. Union County (1938; App) 27 OL Abs 87; Price

v. Times-Press Co. (1938; App) 28 OL Abs 501; McKay v. McKay

Tire Stores (1938; App) 29 OL Abs 304; Crawford v. Tarvin (1939;

App) 29 OL Abs 697; Roeckers v. Lawrence (1939; App) 30 OL Abs

127; Harper v. McQuown (1939; App) 30 OL Abs 389; Kozlowski v.

Cleveland R. Co. (App) 27 OLR 254; Mergenthaler v. Dorman (App)

36 OLR 241,11 OL Abs 198; McAllister v. Bright (App) 36 OLR 460,

12 OL Abs 129 (holding that the two issue rule applied where issues of

negligence and agency of the driver of an automobile were not

commingled and overlapping, but were distinct and separable);

Mossholder v. Head (App) 37 OLR 372, 13 OL Abs 421; Weaver v.

Liberty Cabs (1936; App) 33 NE2d 853, 7 O Ops 123, 21 OL Abs 563;

Sharpsteen v. Cincinnati Street R. Co. (1938; App) 31 NE2d885, 120

Ops 287, 27 OL Abs 202; Sprung v. E. I. DuPont de Nemours & Co.

(1939; App) 34 NE2d 41, 16 O Ops 364, 30 OL Abs 278 (opinion on

rehearing), dismd for want of debat q 136 OS 94, 23 NE2d 947, 16 O

Ops 368; Titus v. Stouffer (1941; App) 40 NE2d 178, 35 OL Abs 145,

mco Dec. 31, 1941; Chevalley v. Degar (1943; App) 52 NE2d 544, 39

OL Abs 301; Berger v. Grandview Bldg. Co. (1944; App) 59 NE2d 759,

42 Ol Abs 99; Acme Meter Serv. Corp. v. Olentangy Village Housing

Corp. (1944; App) 68 NE2d 389, 45 OL Abs 636; American Nat. F.

Ins. Co. v. Western Ohio Pub. Serv. Co. (1947; App) 75 NE2d 72, 48

OL Abs 457; Bachman v. Ambos (1947; App) 79 NE2d 177, 50 OL

Abs 97.

A general verdict for the defendant in an action on a demand note in

which there was a general issue as to the plaintiff's character as a holder

in due course, and also the special one as to whether the note was

negotiated an unreasonable time after its demand, cannot be disburbed

by the reviewing court if one of such issues was tried without error.

Daugherty v. W. W. Wilson & Son(App) 14 OL Abs 655, mco Nov. 29,

1933.

When the general verdict and special findings of the jury can be

reconciled upon one decisive issue, the general verdict must be sustained

9b

rule and is a rule of policy”® designed to simplify the work of

(footnote continued from preceding page)

even though there may be error in the findings on other issues. Neill v.

Franklin County (App) 1 OL Abs 800.

If a general verdict in favor of the plaintiff is sustained by a special

finding which is supported by evidence upon one cause of action, it is

immaterial whether the trial court erred in overruling a demurrer to

another cause of action. Snyder v. Schardt, 9 OCC NS 615, 29 OCC

714,

Claimed errors relating solely to issues other than defendant’s

negligence will not justify reversal of a judgment rendered on a general

verdict for the defendant where: (a) the jury’s verdict should be for the

defendant if defendant was not negligent, (b) the issue of the defendant’s

negligence was properly submitted to the jury, (c) the plaintiff did not

request the court to submit any interrogatories to the jury, and (d) the

answers of the jury to interrogatories submitted at the defendant’s

request and without objection of the plaintiff are consistent with the

finding that the defendant was not negligent. Soltz v. Colony Recreation

Center (1949) 151 OS 503, 87NE2d 167, 39 O Ops 322.

*Knisely v. Community Traction Co. 125 OS 131, 180 NE 654;

Bush v. Harvey Transfer Co. (1946) 146 OS 657, 67 NE2d 851, 33 O

Ops 154; Red Star Yeast & Products Co. v. Engel (App) 21 OL Abs 537

(“‘the rule is not one of error, but of policy”); Jones v. Armour & Co.

(1937; App) 24 OL Abs 129.

‘This rule has prevailed for approximately sixty years in all the courts

of review of this state, and, while it has not met with universal favor, it has

nevertheless been a settled rule, and in proper cases universally

applied.” H. E. Culbertson Co. v. Warden, 123 OS 297, 175 NE 205.

A verdict of the jury in a negligence case will be affirmed under the

two-issue rule, where it may have been reached upon one of two theories,

one of which was claimed erroneous, the other not, and the latter theory

was not illogical, where the verdict was not searched by interrogatories.

Lacey v. Heisey (1936) 53 O App 451, 5 NE2d 699, 7 O Ops 284, 22

OL Abs 594, mco Oct. 14, 1936.

A judgment for defendant will be affirmed by application of the two-

issue rule where, in an action by an insurance company, subrogee of the

insured, against the bailee from whom an automobile was alleged stolen,

the trial court, although it announced an unsound rule at law, found that

the plaintiff failed to prove that the car of the insured was in the garage

(continued)

10b

trial courts and to limit the range of proceedings on review. !

The basis of the general “‘two-issue” rule is, of course, the

presumption in favor of the validity of the judgment and the

duty of the party seeking to overthrow it to show affirmatively

that error has occurred to his prejudice.’ If at first thought it

(footnote continued from preceding page)

when stolen and that defendant was negligent, but found nothing relative

to the contract of bailment, or as to whether the car was taken from the

garage on the day it was stolen by anyone authorized to take it, since as to

these vital facts, the reviewing court must assume that the trial court

found for the defendant, and so doing, upon the whole record, it cannot be

said that the trial court erred in maing the finding it did. North River Ins.

Co. v. Ohmer(1939) 63 O App 346, 26 NE2d 767,170 Ops 97, 30 OL

Abs 53. .

'Kinsely v. Community traction Co. 125 OS 131, 180 NE 654:

Crawford v. Tarvin (1939; App) 29 OL Abs 597.

?American Nat. F. Ins. Co. v. Western Ohio Pub. Serv. Co. (1947;

App) 75 NE2d 72, 48 OL Abs 457.

Where the verdict of a jury may be supported upon one issue and no

finding of facts was returned through which a reviewing court may be

advised as to which issue the jury based its verdict upon it will be

presumed that the jury made its finding upon the issue wherein no errors

affirmatively appear. Sidney Dairy Products v. Boyer (1938; App) 28

OL Abs 135.

In an action by a real-estate broker for commissions, the judgment

rendered for the defendant will not be disturbed where a general verdict

was returned for the defendant, no request for a special verdict was made,

no interrogatories were submitted, and it is not disclosed upon which

defenses, the general denial or affirmative defense of release, the verdict

was based, and if any presumption is to be indulged, it would be that the

verdict is not based upon a defense which was not supported by any

evidence whatever. Esselburn v. Adams (1939; App) 34 OL Abs 532.

In State v. Figuli(1938; App) 36 NE2d 19, 13 O Ops 363, 28 OL Abs

214, dismd for want of debat q 134 OS 495, 17 NE2d 920, 13 O Ops

376, wherein a conviction for murder in the first degree was sustained,

the court, holding that if the evidence relating to one count of the

indictment is adequately supported the verdict must stand even though

the evidence as to the other count cannot be sufficient to support a verdict

of first-degree murder or any included crime, said in the opinion: “It may

11b

may seem that injustice might result from its enforcement

under some circumstances, it is to be remembered that the

remedy is always in the hands of counsel, since he may, in any

such case, if he deems it advisable, request a special verdict

upon any or all of the issues presented in the case,’ or may

submit interrogatories to be answered if the jury returns a

general verdict by which the basis of such verdict will be

disclosed.‘ In this connection it may be said that the courts

construe a “finding of the issues joined in the cause”’ in favor

of one of the parties as a finding in his favor of all the issues. °

(footnote continued from preceding page)

be contended that under a general verdict such as was returned in the

instant case it is impossible to ascertain whether or not the jury intended

to return verdicts of guilty as to both counts or if only one, which one.

Under the situation in the instant case we have presented the well-

recognized two-issue rule. If a verdict is responsive to an issue of the case

upon which no error presents itself, such verdict will not be set aside

because of manifest prejudicial error as it relates to other issue or issues.

This rule is founded upon the principle that prejudicial error must

affirmatively appear, and unless the losing party has preserved his record

soas to show the manifest error every presumption will be indulged to

sustain the verdict.”

’American Nat. F. Ins. Co. v. Western Ohio Pub. Serv. Co. (1947;

App) 75 NE2d 72, 48 OL Abs 457.

See RC §2315.15 (GC §11420-16).

“American Nat. F. Ins. Co. v. Western Ohio Pub. Serv. Co. supra.

See RC §2315.16 (GC §11420Z-17).

‘Sites v. Haverstick, 23 OS 626; Tod v. Wick Bros. 36 OS 370.

Courts have occasionally refused to apply the two-issue rule where the

jury verdict recites that the jury “found in favor of the defendant,”’ not

that it found for the defendant ‘“‘on the issues joined.”’ See Cleveland R.

Co. v. Masterson, 126 OS 42, 183 NE 873, 92 ALR 15; Bowman v.

Delaney, 46 O App 109, 187 NE 788, 14 OL Abs 337.

But in Kihlken v. Barber, 129 OS 485, 196 NE 164, 2 O Ops 483, it

was pointed out that what was said in the Masterson Case, supra, in this

respect was dicta, and that the decision denying application of the two-

issue rule turned on other grounds; and in the Kihlken Case, the court

held that the two-issue rule applied, even though the verdict did not

contain the phrase ‘‘on the issues joined.”

12b

Situations calling for the application of this rule arise most

frequently where two or more defenses are interposed in an

answer, the establishment of any one of which would require

or justify a judgment for the defendant. The statement of the

rule in many of the cases goes no further than is necessary to

cover such a situation, and it has been contended, and

occasionally stated, that it should not be extended to cases in

which the judgment was in favor of the plaintiff.° This

position finds some support in an old decision by the Supreme

Court to the effect that ‘“‘where a verdict for the plaintiff may

have been rendered upon either of two causes of action, but it

does not appear upon which, a refusal to give a proper

instruction on behalf of the defendant, as to either cause of

action, will entitle him to a new trial,”’ but other cases,

including both early and late intermediate court decisions,

have concluded from the statement of the rule and the

reasoning underlying it, that there seems to be no reason why

it should not be applied to uphold . verdict in favor of a

plaintiff in a proper case, notwithstanding that it has

commonly and usually been applied to uphold a verdict in

favor of a defendant. ®

°Red Star Yeast & Products Co. v. Engel (App) 21 OL Abs 537.

The two-Issue rule is not applicable in a negligence case where the

verdict is for the plaintiff. Cincinnati Street R. Co. v. Keehan, 45 O App

75, 186 NE 812, 14 OL Abs 374.

’Pennsylvania Co. v. Miller, 35 OS 541, 35 Am Rep 620, overruled

on another point in Toledo & O. C. R. Co. v. Bowler & B. Co. 63 OS

274, 287, 58 NE 813.

*Zimmerman v. Second Nat. Bank, 24 O App 48, 157 NE 157, mco

Schaaf v. Second Nat. Bank, 25 OLR 97; McKay v. McKay Tire Stores

(1938; App) 29 OL Abs 304; Berger v. Grandview Bldg. Co. (1944;

App) 59 NE2d 759, 42 OL Abs 99 (where the court held that there was

no good reason why the two-issue rule should be stricted to benefit

defendants only, and held that it could be applied to uphold a verdict in

favor of a plaintiff; this conclusion was reached notwithstanding

(continued)

13b

The late Ohio cases have settled the point that the “two-

issue”’ rule is applicable where the only separate issues are

those of negligence and contributory negligence,® provided

(footnote continued from preceding page)

Pennsylvania Co. v. M."er, 35 OS 541, 35 AM Rep 620, supra, which

the court characterized as “‘disturbing,” and pointed out that it had not

been “directly overruled” on this point); Cleveland City R. Co. v.

Powell, 22 OCC NS 305, 43 OCC 581. See also A. F. Waite Taxi &

Livery Co. V. McGrew, 16 O App 219, in which the rule was applied to

sutain a verdict for the plaintiff.

The two-issue rule applies in an action to set aside a will on the ground

of mental incapacity and undue influence, where the verdict was for

plaintiff and no interrogatories were submitted to the jury. Olney v.

Schurr (1936; App) 21 OL Abs 630, dismd for want of debat q131 0S

398, 3 NE2d 43, 6 O Ops 98.

*Knisely v. Community Traction Co. 125 OS 131, 180 NE 654

(leading Supreme Court decision laying down principle stated); Binder

v. Youngstown Municipal R. Co. 125 OS 193, 180 NE 899: Kihlken v.

Barber, 129 OS 485, 196 NE 164,20 Ops 483; Swoboda v. Brown,

129 OS 512, 196 NE 274, 2 O Ops 516 (recognizing general principle,

but holding two-issue rule inapplicable to save the general verdict in the

instant case); Youngstown Municipal R. Co. v. Mikula (1936) 131 OS

17, 1 NE2d 135, 5 O Ops 288; Leonardi v. A. Habermann Provision

Co. (1944) 143 OS 623, 56 NE2d 232. 280 Ops 511; Bush v. Harvey

Transfer Co. (1946) 146 OS657,67 NE2d851.330 Ops 154; Matis v.

Woodruff, 31 O App 73, 166 NE 203, 6 OL Abs 118. mco March 28,

1928; Woodward v. Gray, 46 O App 177, 188 NE 304, 39 OLR 314,

16 OL Abs 138, mco Oct. 11, 1933: F ineberg v. Lincoln-Phelps

Apartment co. 55 O App 402, 9 NE2d 1011.90 Ops 107, 19 OL Abs

81; Norris v. Mingo Junction (1937) 55 O App 288, 9 NE2d 742,90

Ops 66, 24 OL Abs 272: Gaus v. Pennsylvania R. Co. (1937) 56 O App

299, 10 NE2d 635, 9 O Ops 389, 25 OL Abs 24: Lavell v. Raskin Hotel

Co. (1951) 90 O App 185, 102 NE2d 611,470 Ops 145, 60 OL Abs

258; Poppas v. New Boston (App) 12 OL Abs 234: Tailford v. Herold

(App) 12 OL Abs 470; Thompson v. Goodyear Tire & Rubber Co.

(App) 13 OL Abs 615, mco April 5, 1933; Fincher v. Summit Beach

Park Co. (App) 13 OL Abs 665; Singleton v. Polster (App) 19 OL Abs

531; Accordino v. McKay (App) 22 OL Abs 93: Haughn v. Detroit, T.

& I. R. Co. (1937; App), 25 OL Abs 123, mco Dec. 22, 1937: Parker v.

14b

that the issue of negligence was correctly submitted, '°

(footnote continued from preceding page)

Cincinnati (1937; App) 25 OL Abs 359, mco Nov. 24, 1937; Fitzgerald

v. Umbaugh (1937; App) 26 OL Abs 405; Price v. Times-Press Co.

(1938; App) 28 OL Abs 501; Crawford v. Tarvin (1939; App) 29 OL

Abs 697; Harper v. McQuown(1939; App) 30 OL Abs 389; Sharpsteen

v. Cincinnati Street R. Co. (1938; App) 31 NE2d 885, 12 O Ops 287,

27 OL Abs 202; Fries v. Cincinnati Street R. Co. (1941; App) 35 NE2d

770, 33 OL Abs 654, affd 138 OS 537, 37 NE2d 193, 21 O Ops 420;

Chevalley v. Degar (1943; App) 52 NE2d 544, 39 OL Abs 301.

The two-issue rule applies where negligence and contributory

negligence are submitted to the jury, a general verdict for the defendant is

returned, no claim is made that the issue of negligence was not submitted

properly and without error, and no interrogatories are submitted. Fries v.

Cincinnati Street R. Co. (1941; App) 35 NE2d 770, 33 OL Abs 654,

affd 138 OS 537, 37 NE2d 193, 21 O Ops 420.

The rule is well settled that where a case presents issues of both

negligence and contributory negligence, and error intervenes in only one

of these, a verdict for the defendant will not be disturbed. Woodward v.

Gray, 46 O App 177, 188 NE 304, 16 OL Abs 138, mco Oct. 11, 1983.

Where an action is brought for wrongful death on account of the

alleged negligence of the defendant and the question of contributory

negligence arises from the evidence, although not plead as a defense,

there are two separate and distinct issues to which the so-called two-

issue rule has full application. Crawford v. Tarvin (1939; App) 29 OL

Abs 697.

‘Bush v. Harvey Transfer Co. (1946) 146 OS 657, 67 NE2d 851, 33

O Ops 154 (where the court said in the opinion that in no instance in

Supreme Court decisions had the two-issue rule ever been applied where

prejudicial and reversible error occurred in the submission of the issue of

negligence and not in the issue of contributory negligence); American

Nat. F. Ins. Co. v. Western Ohio Pub. Serv. Co. (1947; App) 75 NE2d

72 48 OL Abs 457.

The Supreme Court decision in the Bush Case, supra, renders

inoperative previous decisions of lower courts which had held that the

two-issue rule would save a general verdict for the defendant, provided

that the issue of contributory negligence was properly submitted,

notwithstanding that there may have been error in submission of the issue

of negligence. Among the decisions which may no longer be safely

considered as authoritative, see Rickabaugh v. Youngstown Municiipal

1Sb

Some of the recent Ohio cases have indicated a disinclina-

tion to extend the operation of the “‘two-issue rule.'! Of

course it cannot be applied where the circumstances are such

that the general verdict could not be a finding for the success-

ful party on all the issues,'? where the error affects the entire

matter to be submitted to the jury, '’ or relates to or might have

(footnote continued from preceding page)

R. Co, (1936) 55 O App 431, 9 NE2d 900, 9 O Ops 129, 23 OL Abs

544, mco Jan. 20, 1937; Karle v. Cincinnati Street R. Co. (1942) 69 O

App 327, 43 NE2d 762, 24 O Ops 102, 37 OL Abs 164; Hoffman v.

Pittsburg & L.E.R. Co. (App) 13 OL Abs 153; Jones v. Coombs (App)

19 OL Abs 27; Hines v. Office (1936; App) 21 OL Abs 553; Wolfel v.

Union County (1938; App) 27 OL Abs 87; Roeckers v. Lawrence

(1939; App) 30 OL Abs 127; Weaver v. Liberty Cabs (1936; App) 33

NE2d 853, 7 O Ops 123, 21 OL Abs 563.

"HLE. Culbertson Co. v. Warden, 123 OS 297, 175 NE 205;

Swoboda v. Brown, 129 OS 512, 196 NE 274, 2 O Ops 516 (holding

that there is no inclination to extend further the application of the two-

issue rule, and that if prejudicial error is committed in the submission of

an issue which it clearly appears, by answer to an interrogatory

submitted upon request of defendant, was decided by the jury against the

plaintiff, the verdict will not be sustained, although it is possible the

finding upon some other issue submitted without error may also have

been against the plaintiff); Bush v. Harvey Transfer Co. (1946) 146 OS

657, 67 NE2d 851, 33 O Ops 154; Red Star Yeast & Products Co. v.

Engel (App) 21 OL Abs 537; Kushlan v. P. & O. Coach Lines (App) 33

OLR 642, 9 OL Abs 78.

See Readnour v. Cincinnati Street R. Co. (1950) 154 OS 69, 93

NE2d 587, 42 O Ops 145, approving and following H. E. Culbertson

Co. v. Warden, 123 OS 297, 175 NE 205, supra.

'2Masters v. Cincinnati Traction Co. 16 O App 99, mco 2 OLR 136.

"Gross v. Ohio sav. & T. Co. 116 OS 230, 156 NE 205; Cowley v.

Bolander, 120 OS 553, 166 NE 677; Acrey v. Bauman (1938) 134 OS

449, 17 NE2d 755, 13 O Ops 39 (holding that the two-issue rule does

not apply where testimony is admitted as to one issue, which has the

natural tendency of engendering racial prejudice against the losing party

as to all issues, and the presumption will be indulged that such testimony

influenced the general verdict of the jury, requiring reversal of ajudgment

based thereon); Bush v. Harvey Transfer Co. (1946) 146 OS 657, 67

NE2d 851, 33 O Ops 154; Westropp v. E. W. Scripps Co. (1947) 148

OS 365, 74 NE2d 340, 35 O Ops 341.

16b

influenced the determination of all the issues in the case,'4

where there are various errors some of which relate to one

issue and some to the other so that no issue was tried without

error,'* or where there is in fact only a single issue. '®

“Scioto Valley R. & Power Co. v. Rutter, 112 OS 500, 147 NE 910;

Tresise v. Ashdown, 118 OS 307, 160 NE 898, 58 ALR 1476; Cowley

v. Bolander, 120 OS 553, 166 NE 677; Cleveland R. Co. v. Masterson,

126 OS 42, 183 NE 873, 92 ALR 15; Acrey v. Bauman, 134 OS 449,

17 NE2d 755, 13 O Ops 39; Westropp v. E. W. Scripps Co. (1947) 148

OS 365, 74 NE2d 340, 35 O Ops 341; Masters v. Cincinnati Traction

Co. 16 O App 99, mco 20 OLR 136 and 22 OLR 6; Palm v, Community

Traction Co. 32 O App 89, 167 NE 604; Sharp v. Russell, 37 O App

306, 174 NE 617, 9 OL Abs 445, mco Feb. 11, 1931 (holding that

where prejudicial error intervenes in submission of one or more issues

joined, and the verdict is general, the judgment must be reversed when

there can be no finding in favor of the defendant logically arrived at on all

the other issues in the case); Petrey v. Liuzzi (1945) 76 O App 19, 61

NE2d 158, 31 O Ops 347, 43 OL Abs 337; Kinney v. Schmidt (App) 13

OL Abs 582 (erroneous instruction as to burden of proof which could

apply to both issues in case); Helvie v. Ratta (App) 14 OL Abs 40;

Thomas v. Heer (App) 17 OL Abs 201.

The two-issue rule has no application where improper and prejudicial

cross-examination and argument to the jury based thereon are such as to

engender passion and prejudice against the losing party and adversely

affect him as to all the issues in the case and influence the general verdict

of the jury. Plas v. Holmes Constr. Co. (1952) 157 OS 95, 104 NE2d

689, 47 O Ops 86, approving and following Acrey v. Bauman (1938)

134 OS 449, 17 NE2d 755, 13 O Ops 39.

'SGallup v. Toledo Terminal R. Co. 26 O App 447, 160 NE 493;

Mccombs v. Landes, 35 O App 164; 171 NE 862; Mulcahy v. Deitrick,

39 O App 65, 176 NE 481 (action for alleged slander of plaintiff in his

occupation as a school teacher); Hamilton v. Gilkey (1937) 56 O App

438, 10 NE2d 1014, 9 O Ops 458, 25 OL Abs 164, mco June 16, 1937.

The two-issue rule does not apply whether neither of the two issues of

negligence and contributory negligence is submitted free of error.

Hamilton v. Gilkey, supra.

Although an error in a charge reflects only upon the issue of plaintiff's

contributory negligence, the multiple issue rule does not apply to a case

to prevent reversal and remand for a new trial where, upon the issue of the

(continued)

17b

(footnote continued from preceding page)

negligence of defendant, the jury verdict is found to be against the

manifest weight of the evidence. Ransom v. Feeney (1947) 81 O App7,

76 NE2d 908, 36 O Ops 334.

‘CH. E. Culbertson Co. v. Warden, 123 OS 297, 175 NE 205;

Gottesman v. Cleveland (1944) 142 OS 410, 52 NE2d 644, 27 O Ops

353 (holding that the two-issue rule does not apply in an action for

wrongful death of a child between the ages of four and five years,

grounded on nuisance, in which the answer in effect pleads a general

denial and sole negligence of the decedent, since there actually is only

one issue which can be presented to the jury); Taylor v. Cincinnati

(1944) 143 OS 426,55 NE2d724, 155 ALR44, 28 O Ops 369 (holding

that a claim by a defendant that plaintiff's injuries were incurred when an

automobile in which he was a passenger collided with an elm tree located

a few inches outside the paved portion of a road and were proximately

caused solely by the negligent acts of a third person, the driver of the

automobile, is only another form of a general denial, does not create a

separate issue, and does not furnish any basis for application of the two-

issue rule); Jasionowski v. Industrial Commission, 25 O App 319, 158

NE 195, mco 25 OLR 175; Bowman v. Delaney, 46 O App 109, 187

NE 788, 14 OL Abs 337; Petrey v. Kiuzzi (1945) 76 O App 19, 61

NE2d 158, 31 O Ops 347, 43 OL Abs 337; Cox v. Waltz( App) 13 OL

Abs 364 (verdict for plaintiff based upon the one issue that the

negligence of the defendant was the sole proximate cause of the

accident); Friedman v. Labos (1936; App) 23 OL Abs 217; Marchal v.

Frankman (1943; App) 58 NE2d 679, 41 OL Abs 336. See Augusta v.

paradis (1939) 61 O App 323, 22 NE2d 578, 15 O Ops 218, mco April

26, 1939.

“The rule declared in Sites v. Haverstick, 23 OS 626, has no

application to specifications of negligence, separately stated and

numbered, but which in fact constitute a single negligent act resulting ina

single loss and damage.” H. E. Culbertson Co. v. Warden, 123 OS 297,

175 NE 205; Gutterman v. Bohm (App) 20 OL Abs 69, mco Dec. 26,

1935; Behrens v. Warrick (1940; App) 32 OL Abs 437. To the same

effect, see Readnour v. Cincinnati Street R. Co. (1950) 154 OS 69, 93

NE2d 587, 42 O Ops 145, affg 87 O App 85, 93 NE2d 412, 42 O Ops

311,57 OL Abs 43; Klever v. Reid Bros. Express, Inc. (1951) 154 OS

491, 96 NE2d 781, 43 O Ops 429.

The two-issue rule is not applicable to different elements or items of

damage resulting from a single tortious act. Stemper v. Campbell (1951)

155 OS 1, 97 NE2d 25, 44 O Ops 24.

18b

The Ohio “two-issue” rule will not be applied in a case

arising in the federal courts of Ohio, because it impinges on

the Federal Rules of Civil Procedure, Rule 49 (a) and(9).!7It

has been held, however, to apply in an action in a state court

to enforce a liability arising under a federal statute even

though contrary to the rule followed by the federal courts, '8

(footnote continued from preceding page)

The question of punitive damages in a breach of promise action is not a

separate issue justifying application of the two-issue rule. Friedman v.

Labos (1936; App) 23 OL Abs 217.

The two-issue rule applies only where one issue has been properly

submitted, and not where there exist errors in the charge of the court on

the question of compensatory damages, as well as punitive damages, ina

breach of promise action. Friedman v. Labos, supra.

The two-issue rule does not apply to a general denial constituting one

defense only, although it permitted proof that some other person was the

guilty party. Gutterman v. Bohm (App) 20 OL Abs 69, mco Dec. 26.

1935.

In Cleveland R. Co, v. Kozlowski, 128 OS 445, 191 NE 787, the

court stated in the opinion, per Stephenson. J.: ‘‘ An admission of liability

in a personal injury case sends the pleadings to the four winds, except as

to the nature and scope of the injuries, on the one side, and the denial

thereof, on the other. Negligence and proximate cause go out of the case

as if by magic, and nothing remains for the jury to do except to fix the

amount of damage. This is the sole and only issue left in the case. In the

face of the admission of liability in this case the ‘two-issue rule,’ as

announced in Sites v. Haverstick, 23 OS 626, is not involved.”

The two-issue rule will not be applied to sustain a judgment for plaintiff

where the issues contended for are not clearly independent. Red Star

Yeast & Products Co. v. Engel (App) 21 OL Abs 537.

"Williams v. Powers (1943; CCA 6th Ohio) 135 F2d 153,26 O Ops

359 (where the court pointed out that the power to prescribe the practice,

pleadings, forms, and modes of proceeding in the courts of the United

States is lodged in Congress and cannot be abrogated or diminished by

the states without the consent of the lawmaking power of the central

government, and that Congress has the right to delegate to the Supreme

Court and other federal courts authority to make rules not inconsistent

with the statutes or Constitution of the United States governing the rules

of practice and procedure in the federal courts).

'*Jones v. Erie R. Co. 106 OS 408, 140 NE 366.

19b

NO. 79-201

IN THE SUPREME COURT OF OHIO

Appeal From the Court of Appeals

of Richland County, Ohio

Fifth District

DAVID E. PISEL, et al.,

Plaintiff-Appellee

VS.

ITT CONTINENTAL BAKING COMPANY , et al.,

Defendants-Appellants

MOTION FOR RECONSIDERATION

AND REQUEST FOR ORAL HEARING

Alfred J. Tolaro

ZIDAR, MORGAN and TOLARO

75 Public Square, Suite 810

Cleveland, Ohio 44113

Gregory G. Baran (216) 621-4636

a. a Attorney for Plaintiff-Appellee

500 Richland Trust Building

Mansfield, Ohio 44902

(419) 524-6682

Attorneys for Defendants-Appellants

20b

TABLE OF CONTENTS

MOTION FOR RECONSIDERATION AND

REQUEST FOR ORAL HEARING.................

APPENDIX:

EXHIBIT A- AMENDED COMPLAINT.........

EXHIBIT B - CHARGE TO JURY...............

EXHIBIT C - ASSIGNMENT OF ERROR IN

COURT OF APPEALS ............

EXHIBIT D- APPELLANT’S PROPOSITION

CA Ne Nk cla hese ec andes es

EXHIBIT E - APPELLEE’S SUPREME

SAE EY i vata rsscecanaonns

EXHIBIT F - OPINION, PER LYNCH, J. .......

UY 55 dn 55 ue diye ocean vecona ddeoen eeees

TABLE OF AUTHORITIES

Cases:

Sites v. Haverstick,

ME a c's occa eos oe ee ee

Centrello v. Basky,

SN bs iad aes oko woe hed eee

21b

Tighe v. Diamond,

RE EEA Onan en ake

Bailey v. Brown,

IE hess ks abs bs een bolenbesSaercivek

Hawkins v. Ivy,

ss 655 hob ch <ntensedivuovwdicd,

Bouie v. Columbia,

378 U.S. 347, 12 Law Ed. 2d 894................

Books:

4 O. Jur. 2d 26 Appellate Review §831...............

22b

No. 79-201

IN THE SUPREME COURT OF OHIO

DAVID E. PISEL, et al., )

Plaintiff-Appellee )

)

VS. ) Appeal From The Court of

) Appeals of Richland County,

ITT CONTINENTAL ) Ohio, Fifth District

BAKING COMPANY, _)

et al., )

Defendants-Appellants )

MOTION FOR RECONSIDERATION

AND REQUEST FOR ORAL HEARING

Now comes the plaintiff-appellee by his attorney, Alfred

J. Tolaro, and respectfully moves this Honorable Court to

reconsider its reversal of the judgment of the Court of

Appeals and entering final judgment for the appellant for the

reasons set forth in the attached Brief.

ZIDAR, MORGAN and TOLARO

By /s/ Alfred J. Tolaro

ALFRED J. TOLARO

Attorney for Plaintiff-Appellee

23b

BRIEF

The per curiam decision of this learned court in this case is

So patently deficient and incomplete that it constitutes a

gross denial of the plaintiff's constitutional right to due

process and equal protection of law and runs contra to a

principle of Ohio law that has been followed in this state for

over one hundred years.

By virtue of the per curiam decision in this case, this

ordinarily judicious and learned court has completely

abrogated and nullified a rule of law so firmly entrenched in

our appellate system as to give every lawyer and student of

the law confusion and frustration as to the meaning of the

TWO ISSUE RULE.

Shockingly and suprisingly this court in the per curiam

opinion states that this case involves, “The question of

whether Brubaker’s (hereinafter appellant’) behavior

amounted to wanton misconduct.”

It is with great humility, but yet with professional

obligation that I suggest to this court that the “per curriam”’

has completely and absolutely failed to consider the correct

issue presented to them in this case.

The question is not whether the appellant’s behavior

amounted to wanton misconduct, but rather whether his

behavior amount to wilful or wanton misconduct and

whether the TWO ISSUE RULE is applicable in this case.

It is a legal impossibility for this court to make a final

ruling in this case without first considering the TWO ISSUE

RULE in respect to the second issue of wilful misconduct.

The TWO ISSUE RULE was first adopted by the

Supreme Court in Sites v. Haverstick, 23 O.S. 626 and was

followed consistently by the Ohio Supreme Court in some

twenty-four (24) reported decisions, most recently in

Centrello v. Basky, 164 O.S. 41, wherein the Court held in

Syllabus 4 as follows:

24b

““Where a general verdict is returned for one of the

parties, and the mental processes of the jury are not

tested by special interrogatories to indicate which issue

was determinative of the verdict, it will be presumed

that all issues were resolved in favor of the prevailing

party, and where a single determinative issue has been

presented free from error, error in presenting another

issue will be disregarded.”

The plethora of Supreme Court and Appellate Court

decisions supporting the TWO ISSUE RULE in Ohio are

too numerous to cite in this brief.

The Supreme Court has acknowledged the importance of

the TWO ISSUE RULE by the adoption of Ohio Civil Rule

49 wherein provision is made for testing the verdict by

special interrogatories.

Under the law of Wilful Misconduct, a defendant cannot

escape liability if all other elements of the tort are present

upon establishing that “‘some”’ was used by the defendant to

avoid injury. The Supreme Court defined Wilful Misconduct

in Tighe v. Diamond 149 O.S. 520 at page 527 as follows:

“* *Wilful Misconduct’ implies an intentional deviation

from a clear duty or from a definite rule of conduct, a

The Court further noted at page 527 as follows:

** “Wilful Misconduct’ on the part of a motorist, within

the contemplation of the Guest Statutes similar to the

Ohio Guest Statute, is either the doing of an act with

specific intent to injure his passenger, or, with full

knowledge of existing conditions, the intentional

execution of a wrongful course of conduct which he

knows should not be carried or the intentional failure to

do something which he knows should be done in

25b

connection with his operation of the automobile, under

circumstances tending to disclose that the motorist

knows or should know that an injury to his guest will be

the probable result of such conduct.”

The Supreme Court clearly established “wilful Miscon-

duct” and wanton misconduct as separate and distinct torts

in Syllabus 1 and 2 of Bailey v. Brown, 34 O.S.2d. 62, as

follows:

1. “Wilful misconduct,” as used in the Ohio guest

Statute (R.C. 4515.02), implies an intention or

purpose to do wrong, an intentional deviation from a

clear duty or from a definite rule of conduct, and not

a mere error of judgment. (Paragraph three of the

syllabus in Tighe v. Diamond, 149 Ohio St.520,

approved and followed.)

2. “Wanton misconduct” is such conduct as manifests

a disposition to perversity, and it must be under such

surrounding circumstances and existing conditions

that the party doing the act or failing to act must be,

etc.

The TWO ISSUE RULE is so firmly entrenched and

established in the law of Appellate Review in Ohio that it can

be categorized as irrefutable authority binding the Appellate

Courts system. It is well settled that where the jury returns a

general verdict in a case involving two or more issues, the

finding upon any one of which in favor of the successful party

would entitle him to judgment, “If the Record does not

disclose affirmatively by answers to interrogatories or

otherwise upon which issues such verdict was based, the

judgment will not be reversed if no error appears as to any

one or more of them although there may be error as to other

issues. This is known in jurisprudence as the ‘Two Issue

Rule’---.” 4 O.Jur.2d.26 Appellate Review §831.

The decision of the majority in this case reversing the

26b

judgment below for the plaintiff and entering final judgment,

absent any consideration by the court whatsoever of the

issue of wilful misconduct by the defendant, is an abrogation

of the TWO ISSUE RULE in Ohio, or a denial of plaintiff's

right to due process and equal protection of law.

Pisel filed his complaint against the Baking Co. alleging

that he lost his leg as a result of the wilful and wanton

misconduct of the defendant. (See Exhibit A). These are two

separate issues.

The jury was charged by the trial judge on the issue of

wilful or wanton misconduct of the defendant and no

objection was made to the charge. (See Exhibit B).

A general verdict was rendered in favor of the plaintiff and

there is no way of knowing whether it was based on

defendant’s wanton misconduct or wilful misconduct

inasmuch as no interrogatories were submitted to the jury on

that question.

The question of wilful or wanton misconduct was pre-

sented to the court of appeals in Arguments III, IV and VI

(see Exhibit C), and judgment for the plaintiff was affirmed.

Then the Supreme Court allowed a motioin to certify on

appellant’s proposition of Law No. 1 (See Exhibit D), which

involved the question of wilful or wanton misconduct, but for

some reason this court considered only the question of

wanton misconduct, and completely ignored the issue of

wilful misconduct. What happened to the issue of wilful

misconduct? What wasn’t it considered? When did plaintiff

lose the right to be upheld on the issue of wilful misconduct?

Does the TWO ISSUE RULE no longer apply in Ohio?

Did the jury award the plaintiff his judgment on the basis of

wilful misconduct or wanton misconduct? If the majority of

this court feels that it wasn’t wanton misconduct, then in all

probability the judgment was rendered on the basis of wilful

27b

misconduct as argued in plaintiff's Supreme Court Brief at

Page 11. (See Exhibit E).

In Hawkins v. Ivy, 50 O.S.2d.114, there was no question

raised on the issue of wilful misconduct because that issue

was never raised in the complaint. The only issue was

wanton misconduct. In the within case both wilful and

wanton are in issue and always have been, and still are.

Thus, the basis of plaintiff's within motion is that this

court’s decision is incomplete and erroneous. Before a final

determination can be made in this case, it must consider both

the issues of wilful misconduct which is still before the Court

in this case, as well as wanton misconduct, by virtue of the

TWO ISSUE RULE.

It is apparently the feeling of the majority of this court that

if a defendant uses “some care” then he cannot e charged

with wanton misconduct as a matter of law. What is “some

care’’, isn’t it really a jury question?

But turning to the other issue of wilful misconduct, the

majority of this court must also determine whether reason-

able minds can differ on the question of whether the facts

may constitute wilful misconduct. The defendant inten-

tionally left his vehicle blocking the passing lane of a high

speed highway. This is an intentional wrongful act. He didn’t

negligently leave the truck in that dangerous position. He did

So intentionally so he would benefit from the police investi-

gation of the accident. He further admitted that he knew the

truck was in a dangerous position, so he thus could conclude

that probability of harm to others would be great. He also did

so knowing that he did not set out flares in the road and that

his truck was not disabled. If the jury is not permitted to find

the defendant guilty of wilful misconduct on these facts, then

maybe the law of wilful misconduct should be eliminated in

Ohio.

28b

Justice Lynch in his dissenting opinion already agrees that

the defendant was guilty of wilfu/ misconduct, he stated so in

his opinion (see Exhibit F). How can it now be said that

reasonable minds cannot differ on whether the facts consti-

tute wilful misconduct?

This honorable court granted appellant’s Motion to

Certify because it felt this case was of great public interest.

Apparently, it is of great public interest as there were two

dissenting opinions written by this court.

This case is important. It is important to the young

plaintiff who lost his leg, and his family, and it is important to

the motoring public of the State of Ohio.

In addition, it is important to all the lawyers of the State of

Ohio who rely on the decisions of the Supreme Court for

precedence and to the many law school instructors who will

use it as a landmark case to help define wanton misconduct

to new law students.

The eyes of many legal minds will scrutenize this decision

for many years to come and all Ohio courts will rely on its

rule of law for precedence.

It is apparently the feeling of the majority of this court that

if a person creates a dangerous condition knowing there is a

great probability that it will cause harm to others, that he will

not be guilty of wanton misconduct if he uses some care

regardless of how little or how effective it is. Isn’t this really a

question of fact for the jury?

Regardless as to how you stand on the issue of wanton

misconduct, it is not dispositive of this case.

It is an obvious and absolute duty of this honorable court

in following the law of Ohio to reach a decision and rule on

the issue of wilful misconduct in conjunction with the TWO

ISSUE RULE before making a final judgment in this case.

It is appellee’s further contention that the reversal of the

judgment herein for the plaintiff by the Ohio Supreme Court

29b

in total disregard of the TWO ISSUE RULE is an unconsti-

tutional denial of the plaintiff's right of due process and equal

protection of law as guaranteed by both the Federal and

State constitutions.

The Trial Court, properly and correctly, charged the jury

on the issue of Wilful Misconduct. No objection was made to

that charge. There is no requirement in the law of Wilful

Misconduct of “failure to exercise any care whatsoever

under the circumstances.” Hence, the Trial Court had no

right or authority to grant the defendant a directed verdict on

the issue of exercising some care under the circumstances.

Article I, Section 16, of the Ohio Constitution provides

that every person shall have remedy by due course of law and

shall have justice administered without denial or delay.

Both the Fifth and Fourteenth Amendments of the

Federal Constitution provide due process rights to the

citizens of the United States whereby property cannot be

taken from them without due process of law.

The plaintiff-appellee within appeared in this Court with a

valuable property right, i.e. the judgment against the

defendant-appellant in the sum of Two Hundred and Fifteen

Thousand Dollars ($215,000.00).

We submit that plaintiff-appellee had a constitutionally

protected right to have his case considered under the

equivocally and firmly entrenched doctrine of law which

exists in the State of Ohio, known as the TWO ISSUE

RULE. This is in fact a rule of law adopted for the purpose of

protecting the rights of a litigant who receives a favorable

verdict in a jury trial in a situation where the verdict could

have been rendered on the basis of one of two issues, where

there was error by the trial court on one of such issues. It is a

rule of law related to a judicial procedure whereby a litigant

can determine by special interrogatories upon which of two

or more issues the prevailing party in the case was success-

30b

ful. We contend that plaintiff-appellee’s constitutional right

of due process of law was denied when the decision below

was reversed and final judgment entered for the defendant-

appellant in a manner whereby a long, consistent line of

procedural decisions on the TWO ISSUE RULE were over-

ruled.

In Bouie v. Columbia, 378 U.S. 347, 12 Law Ed. 2d 894,

the Supreme Court held as follows:

“A state court which overrules a consistent line of

procedural decisions, with the retroactive effect of

denying a litigant a hearing in a pending case, thereby

deprives him of due process of law and its primary sense

of an opportunity to be heard and defend his substantive

right.”

In conclusion, the decision of the majority in this case

cannot be sustained unless the TWO ISSUE RULE has

been abrogated by the Supreme Court. Not once in the

decision of the majority was wilful misconduct mentioned,

nor was the tort wilful misconduct briefed and argued by

appellant. The decision of the majority cannot be sustained

under all principles of appellate procedure in Ohio because it

reviews only the law of wanton misconduct. Nobody knows

whether the jury decided the case on that issue. No error has

been established by the Court on the issue of wilful

misconduct and until that issue is considered, there has been

an absence of justice in this case.

Appellee respectfully requests an oral hearing.

Respectfully submitted,

ZINDAR, MORGAN and TOLARO

By /s/ Alfred J. Tolaro

ALFRED J. TOLARO

Attorney for Plaintiff-Appellant

31b

EXHIBIT A

AMENDED COMPLAINT

CLAIM I

(1) After having first duly obtained leave of court to file

his Amended Complaint and make New Parties Defendant,

Plaintiff David E. Pisel says that on or about November 1,

1973, in the night season, he was operating his Honda motor

vehicle in a westerly direction on State Route 30 in the City

of Mansfield, Ohio, when suddenly and without warning, a

motor truck owned by the Defendant, ITT Continental

Baking Co., appeared in his path of travel, parked per-

pendicular to the roadway in the high speed lane of the

highway.

(2) Plaintiff says further that the truck had been operated

by Robert Brubaker in the course and scope of his employ-

ment with the ITT Continental Baking Co., and that it had

become disabled as a result of the negligence of Defendant,

Barbara Shaban, in colliding with it, and willfully and

wantonly left the Defendants blocking the high speed

passing lane of the highway without warning devices in

violation of Section 4513.28 of the Ohio Revised Code and

without regards of the safety and rights of others lawfully

using the roadway.

(3) Plaintiff says further that at the time of the within

incident, he was wearing an amber colored shield that was

produced and distributed by Defendant, B & S Plastics, Inc.,

and sold by the Defendant Joseph A. Armstrong, and that

they were negligent in failing to give warning to their ultimate

consumer and user that these shields were not fit for use at

night inasmuch as they cause dim objects to be less

discernable and therefore created a safety hazard to the

wearer.

32b

(4) As a direct and proximate result of Defendants

negligence and wilful and wanton misconduct, Plaintiff

collided with the said motor truck sustaining great injury to

his mind and body and great economic loss in the form of

hospital and medical expenses and loss of income. It further

resulted in the

Kk kk &

EXHIBIT B

CHARGE TO JURY

[463]

xe kK &

his liability for any injuries to the plaintiff.

Defendant Robert Brubaker will be liable only for injuries

caused by wilful or wanton misconduct of the defendant

Robert Brubaker.

I will define Wilful Misconduct for you. Wilful miscon-

duct is intentionally doing that which is wrong or inten-

tionally failing to do that which should be done. The

circumstances must also disclose that the defendant knew or

Should have known that such conduct would probably cause

injury to the plaintiff. Wilful misconduct implies an inten-

tional disregard of a clear duty or of a definite rule of

conduct; a purpose not to discharge such duty, or a purpose

to perform wrongful acts with knowledge of the likelihood of

resulting injury. It is purposeful action or purposeful failure

to act as differentiated from neglect to act.

What is Wanton Misconduct—I will define that for you.

Where a driver of a vehicle fails to exercise any Care whatso-

ever toward those to whom he owes a duty of care, and his

failure occurs under circumstances in which there is great

33b

probability that harm will result, such failure constitutes

wanton misconduct.

For there to be wanton misconduct there must be a failure

to exercise any care whatsoever. It is of no

xk eh &

EXHIBIT C—Page |

APPELLANT’S ASSIGNMENT OF ERROR IN

COURT OF APPEAL

skh kk &

affirmatively shows that a trial court has been fully

apprised of the correct law goveerning a material issue

in dispute and that the complaining party has unsuc-

cessfully requested the inclusion of that law in the trial

court’s charge to the jury, that party cannot be said to

have waived his objections to the court’s charge by

failing to formally object after the charge is given.

Having determined that defendants-appellants were

entitled to a directed verdict on the issue of negligence, we

then turn to the issue of willful and wanton misconduct, the

second branch of their motion.

Ii. IT IS ERROR FOR THE COURT TO REFUSE

TO DIRECT A VERDICT IN FAVOR OF

DEFENDANTS ON THE ISSUE OF WILL-

FUL OR WANTON MISCONDUCT WHERE

THE EVIDENCE SHOWS THAT DEFEN-

DANTS EXERCISED SOME CARE

TOWARD THOSE TO WHOM THEY OWED

A DUTY OF CARE.

The sole liability issue as presented to the jury in this case

was the willful or wanton misconduct on the part of the

34b

defendant, Robert Brubaker. One may quickly draw the con-

clusion that there was no hint of willful misconduct, which,

as defined in Bailey vs. Brown, 34 Ohio St.2d 62 (1973),

implied an intention or purpose to do wrong, an intentional

deviation from a clear duty or from a definite rule of conduct,

not a mere error in judgment. The record shows no hint of

such an intention on the part of defendants. Therefore, the

only consideration left is that of wanton misconduct and it is

submitted that there wasn’t any of that either.

The most recent decision on wanton misconduct,

Hawkins

[-18-]

*e k * *

EXHIBIT C—Page 2

APPELLEE’S ASSIGNMENT OF ERROR IN

COURT OF APPEALS

[-12-]

*k ek *

RESPONSE TO APPELLANT’S ARGUMENT III.

Defendant’s third assignment of error involves two

theories of law, willful misconduct and wanton misconduct,

each of which terms have recently been redefined. Willful

implies intentionally doing an act, and wanton implies failing

to do an act.

In Bailey v. Brown, 34 OS 2 62 (1973), the court said the

term willful misconduct implied an intention or purpose to

do wrong, an intentional deviation from a clear duty or froma

definite rule of conduct, not a mere error in judgment.

35b

The defendant’s leaving his truck parked sideways on the

passing lane of a four (4) lane divided highway in a dark area

for ten minutes without the truck even being disabled (T.74,

Ex 13,14,15;T.216,368) may not be willful misconduct but

rather a mere error in judgment.

But, the defendant had a clear duty to carry flares or

fussees in his truck (R.C. §4513.27) and he knew it but

didn’t do so. (T.193,194), and the testimony was further that

no flares, fussees or other warning devices were displayed in

accordance with R.C. §4513.28 (T.322,355,75). These

additional facts now constitute more than a mere error in

judgment, it now becomes a question for the jury as to

whether his conduct was an intentional deviation from a

clear duty or from a definite rule of conduct, and whether

they could imply an intention to do wrong.

For this reason, it was proper for the court to refuse to

direct a verdict for the defendants on the issue of willful or

wanton misconduct.

kkk K &

EXHIBIT D

APPELLANT’S PROPOSITION OF LAW NO. 1

[4]

xe KK &

A timely appeal was prosecuted to the Fifth District Court

of Appeals which affirmed. Thereafter, a Memorandum in

Support of Jurisdiction, allowed as to proposition of law

number one, was brought before this Court which now has

before it the merits of this controversy.

36b

ARGUMENT

PROPOSITION OF LAW NUMBER ONE:

Where evidence adduced from plaintiff and the wit-

nesses for plaintiff established that following a motor

vehicle accident a defendant did, in fact, exercise some

care toward the motoring public by leaving on the

delivery truck headlights, taillights and running lights,

summoning the police and attempting to direct traffic

past the accident site, the conduct of the defendant is

neither wilful nor wanton, and the negligence of a motor-

cyclist plaintiff proceeding in the passing lane, overtaking

traffic slowing to pass the accident scene, who minutes

after the first accident strikes the delivery truck, bars his

recovery.

Kormos v. Cleveland Retail Credit Men’s Co., 131 Ohio

St. 471 (1936)

Roszman v. Sammett, 26 Ohio St. 2d 94 (1971)

Kellerman vy. J. §. Durig Co., 176 Ohio St. 320 (1964)

Bailey v. Brown, 34 Ohio St. 2d 62 (1973)

Hawkins v. Ivy, 50 Ohio St. 2d 114 (1977)

Rule 50(A)(4) Ohio Rules of Civil Procedure

O'Day v. Webb, 29 Ohio St. 2d 215 (1972)

Peters v. The B. & F. Transfer Co., 7 Ohio St. 2d 143

(1966)

*ek KK

37b

EXHIBIT E

APPELLEE’S SUPREME COURT BRIEF

*k# kk &

WILLFUL MISCONDUCT

In addition to charging on wanton misconduct, the trial

court correctly charged the jury on willful misconduct.

(R.431)

The judge instructed the jury as follows:

“Willful misconduct is intentionally doing that which is

wrong or intentionally failing to do that which should be

done. The circumstances must also disclose that the

defendant knew or should have known that such

conduct would probably cause injury to the plaintiff.

Willful misconduct implies an intentional disregard of a

clear duty or of a definite rule of conduct; a purpose not

to discharge such duty, or a purpose to perform

wrongful acts with knowledge of the likelihood of

resulting injury. It is purposeful action or purposeful

failure to act as differentiated from neglect to act.”

Applying the facts in our case to the instruction of willful

misconduct that was given to the jury, itis quite apparent and

obvious that the jury could have returned its verdict on the

basis of willful misconduct as well as on wanton misconduct.

Taking the charge on willful misconduct sentence by

sentence, we will apply the facts of our case.

The first sentence of the charge says, “Willful misconduct

is intentionally doing that which is wrong or intentionally

failing to do that which should be done.” In our case, the

defendant knew he was to carry flares and intentionally

failed to do so. Therefore, the natural and probable con-

sequence of his failure to carry flares was his inability to set

38b

out flares when the necessity arose as it did in our case.

He also intentionally left his truck parked in the passing

lane, which was wrong, and he intentionally failed to remove

his truck from that hazardous position because he wanted to

protect himself by a police report on the previous accident.

Under the circumstances of the case, this also was wrong.

The next sentence is, “The circumstances must also

disclose that the defendant knew or should have known that

such conduct would probably cause injury to the plaintiff.”

The defendant testified that he knew his truck was in a

dangerous and hazardous position. (R.242) Not only did he

have actual knowledge but, being a professional driver for

ten (10) years, he should have known that his action and

inaction would in all probability cause injury to someone on

the highway.

The next sentence says “Willful misconduct implies an

intentional disregard of a clear duty or of a definite rule of

conduct; a purpose not to discharge such duty, or a purpose

to perform wrongful acts with knowledge of the likelihood of

resulting injury. It is purposeful action or purposeful failure

to act as differentiated from neglect to act.’’ Under Ohio

Revised Code § 4513.27, truck drivers have a clear duty

imposed upon them to carry flares and to set out flares when

their vehicle is disabled on the highway. This is a definite rule

of conduct required of them for the safety of the motoring

public. They have a further duty not to park their truck on the

passing lane of a high-speed highway.

Failure to carry flares and to place flares on the highway is

an intentional disregard of a clear duty or definite rule of

conduct. Leaving his truck on the highway was not in-

advertence, it was a purposeful act for his own benefit.

The facts of this case fit squarely within the definition of

willful misconduct and there is no doubt that reasonable

39b

minds could differ as to whether the facts constitute willful

misconduct.

Bailey v. Brown, 34 OS2d 62, cited by the defendant in

his brief in support of his argument, is a perfect example of

the distinction between mere negligence and willful mis-

conduct. In that case, the young defendant inadvertently

made a left turn in front on an oncoming vehicle and collided

with that vehicle. He testified that he did not remember

seeing the vehicle. This is inadvertence or simple negligence

and I feel the court was correct in holding that it was not

willful or wanton misconduct. That case in no way is

analagous to our case but rather is consistent with the

distinction between negligence and willful or wanton mis-

conduct. :

In Payne etc. v. Vance, 103 OS 59, the third Syllabus

States:

“Willful tort involves the element of malice or ill-will

but it is not necessary to show actual malice or ill-will. It

may be shown by indifference to the safety of others

after knowledge of their danger, or failure after such

knowledge to use ordinary care to avoid injury.”

Again, the facts in our case would meet the requirements

of Payne v. Vance and the jury could have found that the

defendant Brubaker was guilty of willful misconduct as well

as wanton misconduct.

TWO ISSUE RULE

On page 431 of the Record, the judge properly charged the

jury that the defendant would be liable only for injuries

caused by willful or wanton misconduct of the defendant.

The court went on to define willful misconduct and then

40b

defined wanton misconduct. There is no claim by the

defendant that the charge was incorrect or erroneous in any

respect.

There are, therefore, two separate and distinct issues in

the case regardless of defendant’s contention that willfull

misconduct did not play any part in the accident which was

the subject of the trial and if the evidence supports a verdict

on either willful misconduct or wanton misconduct, the

verdict can be supported on either of the two issues and thus

REASONABLE MINDS CANNOT DIFFER

By virtue of Sec. 50(A)(4) of the Ohio Rules of Civil

Procedure, a motion for summary judgment or direct verdict

shall

xx ** *

EXHIBIT F

OPINION, PER LYNCH, J.

[148] JANUARY TERM, 1980. [061 Ohio St. 2d

Dissenting Opinion, per LYNCH, J.

*k* kk *

hour, which was a lawful and reasonable rate of speed for this

highway. Plaintiff had the right to assume that defendants

would obey the laws and would either remove defendants’

truck from its dangerous position on the highway or place

41b

warning lights of such brightness or at such a distance from

the truck so as to adequately warn approaching motorists

(such as plaintiff) of the obstruction in the highway caused

by the truck being parked across such highway. In this case

defendant Brubaker did not comply with such statutes, and

did not warn plaintiff in sufficient time to enable plaintiff to

stop his motorcycle at the speed at which he was traveling.

Although the issue is not before this court, the writer

believes that there is a serious question of whether plaintiff’s

negligence was the proximate cause of such accident. Under

the facts of this case, the writer’s opinion is that the most

probable cause of such accident was the action of defendant

Brubaker in leaving his operable truck parked sideways

across the passing lane of a limited access highway without

complying with the statutory requirements of warning

approaching traffic by visible lights. The writer concurs with

Justice William B. Brown’s dissent from the majority

opinion on the application of Hawkins v. Ivy, supra, on the

issue of wanton misconduct to the facts o! this case.

However, the writer further concludes that such actions of

defendant Brubaker were grossly irresponsible and

amounted to wilful misconduct.

Defendant Brubaker admitted that he knew that the posi-

tion of his truck on an unlighted, limited access highway was

dangerous and hazardous. In effect, he admitted that the

position of his truck on such highway created a situation

where there was a great probability that approaching traffic

would run into his truck, resulting in serious personal injury,

death or damage.

After his first accident, Brubaker had sufficient time to

remove his truck from its dangerous position on the highway

as he was required to do pursuant to R.C. 451 1.68(P).

Brubaker made the deliberate uecision not to remove his

42b

truck from this highway but to await the arrival of the police

whom a witness, who arrived at the scene, summoned on his

C.B. radio. R.C. 4549.02 requires a person involved in an

ac-

seek &

SERVICE

I hereby certify that a copy of the within Motion For

Reconsideration and Request for Oral Hearing and attached

Brief was served upon Gregory Baron, Esq., attorney for

defendants-appellants by depositing same in the U.S. Mail,

postage prepaid, this 13 day of February, 1980.

ZIDAR, MORGAN AND TOLARO

By /s/ Alfred J. Tolaro

ALFRED J. TOLARO

Attorney for Plaintiff-Appellee