Opinion
No. 69-768
Decided September 24, 1970.
Charge to jury — Requested instruction — Court "induced" to give — Party requesting foreclosed to assign as error on review.
APPEAL from the Court of Appeals for Mahoning County.
On December 3, 1965, the defendant's decedent, a 79-year-old female motorist, collapsed while driving a motor vehicle. The automobile ran up over a sidewalk and proceeded into an intersection, striking plaintiff's stopped vehicle on the intersecting street, injuring plaintiff.
Appellee's decedent, the operator of the vehicle out of control, was dead on arrival at a hospital. After an autopsy, her cause of death was determined to be "acute coronary insufficiency (sudden) due to coronary sclerosis, severe (chronic)." She had a prior history of hypertension.
The case was tried to a jury in the Court of Common Pleas. The record does not reveal that plaintiff moved for a directed verdict or judgment. However, the court gave to the jury a special instruction requested by plaintiff which is as follows:
"Ladies and Gentlemen of the jury, the court instructs you as a matter of law that the defendant claims that the accident between Vera Nelson and George Hasapes was unavoidable. In order to establish such defense, the burden of proof is on the defendant to show, by a preponderance of the evidence, that such accident was caused by something unforeseeable and over which she had no control, and in order to excuse her failure to comply with the applicable statutes, she must establish that the accident occurred because of uncontrollable circumstances and that compliance with such statutes was rendered impossible."
Ironically, the record indicates that plaintiff's counsel excepted to that instruction. However, there was no request that the instruction be withdrawn.
The jury returned a verdict for the defendant. The judgment of the Court of Common Pleas was affirmed by the Court of Appeals.
The cause is before this court pursuant to the allowance of a motion to certify the record.
Mr. Martin S. Goldberg and Mr. John Jakubek, for appellant.
Messrs. Harrington, Huxley Smith and Mr. Eldon A. Wright, for appellee.
After certification of the record to this court, and review of the record, we find that the posture of the record does not permit appellate review regarding the error about which appellant complains, i.e., whether under the facts of this case the defense — unavoidable accident — is available to defendant.
In order to provide a basis for review the plaintiff would have had to urge the trial court for judgment in his favor for the assigned reason that the defense — unavoidable accident — was not available to defeat plaintiff's right of recovery. In oral argument, appellant's counsel stated that he failed to move for a directed verdict or otherwise move the court for judgment.
Additionally, a special instruction, requested by appellant and given by the court, contains the principle of law which appellant now asserts to be erroneous. Although we are sensitive to the fact that trial tactics often change during the course of the trial, a trial court cannot be placed in a position of having to choose between a party's inconsistent positions. If the reason for this change in plaintiff's position was shown in the record, and the request for the instruction withdrawn, perhaps a reviewing court would know which path the litigant elected to follow. Plaintiff's mere exceptance to his own requested instruction does not remove the badge of inducement which served to precipitate the error. R.C. 2321.03 provides, in part, that "error can be predicated upon erroneous statements contained in the charge, not induced by the complaining party * * *." See Carrothers v. Hunter (1970), 23 Ohio St.2d 99; Rhoades v. Cleveland (1952), 157 Ohio St. 107; State v. Tudor (1950), 154 Ohio St. 249. Under the circumstances, appellant's request for the instruction amounts to an inducement by appellant to the court to make the charge complained of, foreclosing appellate review of the assigned error.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
SCHNEIDER, Acting C.J., STERN, LEACH, HERBERT, DUNCAN and CORRIGAN, JJ., concur.
STERN, J., of the Tenth Appellate District, sitting for O'NEILL, C.J.
LEACH, J., of the Tenth Appellate District, sitting for MATTHIAS, J.