Opinion
No. 33983
Decided March 2, 1955.
Charge to jury — Special instruction requested before argument — Instruction not pertinent, misleading and confusing, properly refused — Negligence — Quantum of proof.
In an action to recover damages for injuries claimed to be caused by negligence in the operation of a motor vehicle, a requested written instruction before argument that "preponderance or the greater weight of the evidence" does not require the plaintiff to prove any or all his claims with respect to the material issues "beyond a reasonable doubt, or by clear and convincing evidence, or to a mathematical certainty, or by such a weight of evidence as removes all doubt from your mind" is not pertinent to the issues and facts, sets forth a quantum of proof which has no application in such action and in reference to "preponderance of the evidence" is misleading and confusing, and such instruction is, therefore, properly refused.
CERTIFIED by the Court of Appeals for Lorain County.
This action was instituted in the Court of Common Pleas of Lorain County to recover damages as a result of injuries caused by the alleged negligent driving of an automobile into the rear of the automobile in which plaintiff was sitting.
Defendant denies the nature and extent of plaintiff's injuries.
Upon trial of the issues a request by plaintiff for the following written instruction to be given to the jury before argument, pursuant to Section 11420-1 (5), General Code (Section 2315.01 (E), Revised Code), was seasonably refused by the court:
"Before the plaintiff is entitled to recover a verdict in this case she is required to establish her claims, with respect to all of the material issues in this case by what is known as the preponderance or the greater weight of the evidence.
"This does not mean, however, that she is required to prove all or any of them beyond a reasonable doubt, or by clear and convincing evidence, or to a mathematical certainty, or by such a weight of evidence as removes all doubt from your mind.
"In civil cases of this kind, the law deals with probabilities rather than with certainties.
"If, therefore, you find that with respect to each of the issues in this case, it is more probable than not that the claim of the plaintiff is true, then and in such event your verdict must be in her favor, and against the defendant; and this would be true even though upon a consideration of all the evidence in the case, there remains some doubt in your mind upon some or all of such issues in the case."
The case was submitted to a jury which found generally for defendant.
An appeal was perfected to the Court of Appeals for Lorain County, in which was assigned as error the refusal of the trial court to give the above instruction.
The Court of Appeals affirmed the judgment, and the judges thereof certified the case to this court as a conflict case.
Messrs. Harrison, Spangenberg Hull and Mr. Oliver W. Hasenflue, for appellant.
Mr. J.J.P. Corrigan and Messrs. Davis Young, for appellee.
The issue to be determined by this court is whether the refusal to give the instruction constitutes reversible error.
The law of Ohio regarding the general question of special instructions before argument is well stated in the case of Bradley, an Infant, v. Mansfield Rapid Transit, Inc., 154 Ohio St. 154, 93 N.E.2d 672. The fifth paragraph of the syllabus of that case states the general law as follows:
"Where, in a civil action, the court is requested to give a written special instruction to the jury before argument, which is linked to the parties to the action and which correctly states the law applicable and pertinent to one or more of the issues of the case and upon a subject which has not been covered by other special instructions before argument, a mandatory duty devolves upon the court to give such instruction in the form presented, and the failure to do so is reversible error."
This statement of the law is essentially an affirmance of the rule as set out in the case of Washington Fidelity National Ins. Co. v. Herbert, 125 Ohio St. 591, 183 N.E. 537.
Certain limitations have, however, been placed upon the general rule. In the case of Scott, Admx., v. Hy-Grade Food Products Corp., 131 Ohio St. 225, 2 N.E.2d 608, this court held, in the first paragraph of the syllabus:
"Although under the statute a mandatory duty devolves upon the court to give an instruction requested in writing before argument which contains a correct statement of the law pertinent to the issues involved and applicable to the particular set of facts to which it is intended to apply, such instruction must state the law clearly and correctly and be complete in itself. The court may properly refuse to give requested instructions before argument which are indefinite, uncertain or ambiguous, or otherwise misleading." See, also, Deckant v. City of Cleveland, 155 Ohio St. 498, 99 N.E.2d 609.
Instructions to a jury should bring into view the issues in a case and show how the jury should apply the evidence in the various aspects developed at the trial and should state clearly and concisely the issues of fact and the principles of law necessary to enable it to accomplish the purpose desired. 39 Ohio Jurisprudence, 893, Section 232.
"A requested instruction must be calculated to give the jury an accurate understanding of the law, having reference to the phase of the case to which it is applicable. It is, of course, not incumbent upon the trial court to give any requested instruction which is an erroneous statement of the law or is otherwise improper under the facts of the case. The trial court may properly refuse a requested charge which is unintelligible, incomplete, or argumentative, or which might prove misleading or confusing to the jury * * *." 53 American Jurisprudence, 422, Section 525.
The trial court must charge the jury as to the degree of proof required of the person having the burden of proof.
In a criminal case the court must charge the jury as to proof "beyond a reasonable doubt" and is required to read the definition of this term as given in Section 13442-3, General Code (Section 2945.04, Revised Code). In certain types of civil cases the court must charge the jury regarding "clear and convincing" evidence and explain this term, or a similar one if used. In the majority of civil cases, an example of which is the instant case, the court must charge the jury regarding "preponderance of the evidence" and explain the term clearly and concisely.
The introduction of legal terms into an instruction which have no relationship whatsoever to the issues before the court would certainly confuse and mislead a jury. We fail to see the logic of an attempt to define a legal term, denoting quantum of proof, by simply mentioning that it is neither of two others.
Introduction of the terms, "reasonable doubt" and "clear and convincing evidence," into a special instruction before argument defining "preponderance of the evidence" renders the instruction misleading and confusing to the minds of laymen jurors who are entitled to a definition of the latter term which is clear and concise.
Our view of the instruction under consideration can well be expressed by the following quotation from the opinion in Scott, Admx., v. Hy-Grade Food Products Corp., supra, 231:
"The proposed instruction * * * is not a clear, concise or complete proposition of law in concrete form applicable to the issues in this case. In the form presented, it would tend to confuse and mislead rather than aid and instruct the jury."
We hold, then, that the terms, "beyond a reasonable doubt" and "by clear and convincing evidence," have no application to the quantum of proof in this action, and reference thereto in a definition of "preponderance of the evidence" is misleading and confusing.
It follows that this special instruction was properly refused by the trial court, and that the judgment of the Court of Appeals should be and it, hereby, is affirmed.
Judgment affirmed.
WEYGANDT, C.J., HART, ZIMMERMAN and STEWART, JJ., concur.
BELL and TAFT, JJ., dissent.