Clark v. Stewart
126 Ohio St. 263, 185 N.E. 71 (1933)

STEPHENSON, J. The action was for personal injuries alleged to have been caused by the negligence of the son of the defendant, who at the time was agent for his father, and, while acting within the scope of his employment while operating an automobile, negligently struck plaintiff from the rear, causing the injuries of which he complains.

The first theory of the petition sought to invoke the doctrine of respondeat superior. There were six averments of negligence. There was an additional averment in the petition to the effect that defendant's son at the time of the collision and injury was of about the age of seventeen years and was an inexperienced, careless, reckless and incompetent driver, which fact was well known to the defendant, and that the defendant was careless and negligent in entrusting his motor vehicle to his son on a public highway. This is followed by the averments of earning capacity, injury, damage, and prayer for recovery.

Defendant in answering plaintiff's amended petition admits that, on the date claimed by plaintiff, his son was operating a motor vehicle as his agent and that there was a collision between the motor vehicle and the person of the plaintiff. He proceeds with the affirmative statement that the injuries sustained by plaintiff on said occasion were caused solely by plaintiff's negligence and carelessness, in the particulars therein set out.

It is claimed that error was infused into the case when counsel for plaintiff called the defendant for cross-examination under the statute and propounded the following questions:

Q: Before January 5, 1931, how many automobile accidents had Walter Stewart had? (Defendant objects.)

And thereupon court recessed for a few minutes, the court first admonishing the jury.... And thereupon after the jury returned to the court room the objection was sustained. To all of which the plaintiff excepted.

Q: Had you ridden with Walter when he drove the car?

A: Yes, sir.

Q: You have ridden with him when he drove the car sixty miles an hour, haven't you?

A: No, sir.

Q: Ever ride with him when he run into another car?

A: No, sir.

Q: Were you with him when he--

Mr. Elliott: I object and I think this question is for the purpose of getting around the ruling of the court.

Mr. Harlan, in behalf of plaintiff, objected to misconduct of counsel.

Q: Were you riding with Walter in the latter part of May, 1930, when he was traveling very fast and ran into an automobile at Flenner's Corner? (Defendant objects; overruled; defendant excepts.)

A: Why he never ran into anybody at Flenner's Corner.

Q: (Stenographer reads question.)

A: No, I wasn't.

Q: You make the statement he never ran into any one, how do you know?

A: If he broke the machine or damaged the machine I would know it, wouldn't I?

Q: Didn't he break the machine up some at Flenner's Corner in May, 1930? (Defendant objects; overruled; defendant excepts.)

Q: You say you ought to know if he had damaged the car any--isn't it a matter of fact, don't you know it, that he did? (Defendant objects; overruled; defendant excepts.)

A: No, he didn't.

Q: Didn't he have an accident there and damage your car and didn't David Clark himself bring Walter home?

A: No, he brought the other boy home. This wasn't Walter. This was Roy. The accident didn't happen at Flenner's Corner, either.

Q: It was about at Flenner's Corner, wasn't it?

A: No, the fellows took the machine to Flenner's Corner to have it fixed.

Q: It was in the neighborhood of Flenner's Corner, wasn't it?

A: No.

Q: Where did it happen?

A: In front of Jake Stout's.

Q: That is farther on towards Excello from where you live?

A: Yes, sir.

Q: You say that wasn't Walter?

A: No, it wasn't Walter.

Q: Where is the other boy?

A: At home.

Q: How old is he?

A: Nineteen.

Q: Was that the boy David Clark brought home?

A: Yes, sir.

Q: Wasn't it Walter?

A: No.

Q: Now you say you ought to know if Walter ever had the car broken up, let's see if you know. Didn't he run into somebody at Matson's Corner and have the car broken up? (Defendant objects.)

Court: He may answer if he knows. (Defendant excepts.)

Q: (Stenographer reads question.)

A: Not as I know of.

Q: Not that you know of?

A: Not my car.

Q: Well, whose car was it?

A: I don't know.

Q: Sir?

A: He was driving the milk route for his brother and was coming out of the road and somebody ran into him, that is all.

Q: Were you there?

A: No.

Q: When you say somebody ran into him, then you have no personal knowledge of that, have you--no personal knowledge, have you?

A: Well I heard them talking about it.... (Plaintiff moves to strike out answer; answer stricken out.)

Q: Now the automobile that he was driving that you refer to at Matson's Corner, wasn't that yours?

A: No, sir.

Q: That was another son's?

A: Yes, sir.

Q: Was that Roy's?

A: No, sir, William's....

Q: Was Walter driving your car and ran into another car, just outside of Monroe? (Defendant objects; overruled; defendant excepts.)...

Q: Don't you know Walter had the reputation of driving fifty or sixty miles an hour? (Defendant objects.)

Court: He may answer yes or no, as to whether he knows. (Defendant excepts.)

A: He did not have that reputation.

Q: Do you have any personal knowledge of his running into other automobiles? (Defendant objects; overruled; defendant excepts.)

A: Well, I know he never ran into any other automobiles.

Was the cross-examination proper? What objections would you make to it? Why? Is proof of character or prior occurrences ever proper in civil cases? When? Compare Rule 405.


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