COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71370 RICHARD HODOROWSKI : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION BRAXTON RAYFIELD : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: JULY 24, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-293725 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: F.M. APICELLA (#0001730) MARY JANE TRAPP (#0005315) APICELLA & TRAPP 1200 Bond Court Building Cleveland, Ohio 44114 For Defendant-Appellee: MARILLYN FAGAN DAMELIO (#0015242) RICHARD A. DiLISI (#0042148) 323 Lakeside Avenue, West Suite 410 Cleveland, Ohio 44113 - 2 - SPELLACY, J.: Plaintiff-appellant, Richard Hodorowski ("appellant"), appeals the amount of damages awarded by the jury in his negligence cause of action. Appellant assigns the following errors for our review: I. THE TRIAL JUDGE FAILED TO EXERCISE EXECUTIVE CONTROL OVER DEFENDANT'S COUNSEL DURING OPENING STATEMENT AND CLOSING ARGUMENT BY PERMITTING ARGUMENT THAT WAS IMPROPER, INFLAMMATORY, AND PREJUDICIAL, APPEALING TO THE PASSION AND PREJUDICE OF THE JURY, EXPRESSING PERSONAL OPINIONS AS TO THE CASE, AND PERMITTING ARGUMENT RELATIVE TO EVIDENCE THAT HAD BEEN EXCLUDED, THE CUMULATIVE EFFECT OF WHICH DEPRIVED PLAINTIFF-APPELLANT OF A FAIR TRIAL. II. THE TRIAL COURT ERRED IN ADMITTING OVER PLAINTIFF'S OBJECTION INADMISSIBLE AND PREJUDICIAL CHARACTER AND/OR HABIT EVIDENCE PERTAINING TO PLAINTIFF'S LOST WAGE CLAIM AND PAST WORK HISTORY OF MEDICAL LEAVES, OVERTIME REFUSAL, AND ABSENTEEISM IN ORDER TO PROVE THAT PLAINTIFF FAILED TO WORK AFTER THE DATE OF THE INJURY IN CONFORMITY WITH HIS PAST HISTORY AND NOT DUE TO HIS INJURY. III. THE TRIAL COURT ERRED IN DENYING PLAIN- TIFF'S MOTION FOR A MISTRIAL AND/OR REQUEST FOR AN ADEQUATE CURATIVE INSTRUCTION UPON THE INTRODUCTION BY DEFENSE COUNSEL IN FRONT OF THE JURY OF THE FACT THAT THERE HAD BEEN A RULE 29 ARBITRATION IN THIS CASE. IV. THE TRIAL COURT ERRED AS A MATTER OF LAW IN REFUSING TO GIVE IN ITS GENERAL CHARGE TO THE JURY AN INSTRUCTION AS TO COLLATERAL BENEFITS, AS REQUESTED IN PLAINTIFF'S SPECIAL REQUESTS IN WRITING TO CHARGE THE JURY, AS PREJUDICIAL EVIDENCE THEREOF WAS ADMITTED OVER OBJECTION. V. THE VERDICT WAS CONTRARY TO THE WEIGHT OF THE EVIDENCE, PARTICULARLY BECAUSE THE - 3 - AMOUNT OF THE VERDICT WAS LESS THAN THE UNCONTROVERTED SPECIAL DAMAGES. Finding appellant's appeal lacks merit, the judgment of the trial court is affirmed. I. On August 11, 1995, appellant and his wife, Donna Hodorowski, filed a complaint in the Cuyahoga County Court of Common Pleas against defendant-appellee, Braxton Rayfield ("appellee"). Count I of appellant's complaint alleged that appellee had negligently operated his vehicle causing appellant to sustain severe and disabling injuries, as well as loss of compensation for time missed from work. Count II of appellant's complaint set forth a claim for loss of consortium. On December 1, 1995, the case was referred to arbitration. On June 6, 1996, appellant was awarded six thousand ($6,000.00) dollars by the arbitration panel. Subsequently, appellee appealed the arbitration award de novo on June 20, 1996. On August 26, 1996, a jury trial was held. At trial, Donna Hodorowski's complaint for loss of consortium was dismissed with prejudice. On September 4, 1996, a jury verdict in the amount of two thousand ($2,000.00) dollars was returned in favor of appellant. II. On February 23, 1994, appellant, on his way home from his job at the Ford Motor Company, was stopped at a light at the intersection of Brook Park Road and Rocky River Drive when - 4 - appellee, going approximately five to six miles an hour, bumped into his vehicle. Upon impact, appellant's seat belt snapped across his chest preventing him from hitting the dashboard or steering wheel. Following the impact, appellant exited from his vehicle and attempted to exchange insurance information with appellee. (Tr. 47). At trial, appellant stated that he asked appellee to go to the police station and fill out a police report, but appellee said "he wasn't paying for anything," got into his vehicle and left. (Tr. 47-48). Appellant also testified that after the accident appellee was rude and belligerent. Appellee testified at trial as well and stated that, after the accident, appellant got out of his vehicle and immediately asked appellee if he had insurance. Appellee stated, however, that appellant never asked him to go to the police station and that appellant left the scene of the accident first, stating "I'll forget about it this time." (Tr. 100). Kurt Ludwig, custodian of records at Ford Motor Company, testified at trial on behalf of appellant. Mr. Ludwig testified that appellant missed, including overtime and bonus hours, 196.75 hours of work from February 24, 1994 through March 16, 1994. (Tr. 27). Mr. Ludwig further testified as to appellant's work history and medical time off and stated that in a thirteen month period of time, appellant refused 171.50 hours of possible overtime. (Tr. 39). - 5 - III. In his first assignment of error, appellant contends that the trial court failed to exercise executive control over appellee's counsel during opening statement and closing argument by permit- ting argument that was improper, inflammatory, and prejudicial, thus, appealing to the passion and prejudice of the jury. Appel- lant further contends that the trial court erred in permitting appellee's counsel to express his personal opinions as to the case and argue evidence that had been excluded therefore depriving appellant of a fair trial. The general rule is that counsel in closing argument may comment upon evidence adduced at trial. Drake v. Caterpillar Tractor Co. (1984), 15 Ohio St.3d 346, 347. However, it is improper for counsel to comment on evidence which was excluded or declared inadmissible by the trial court or otherwise make statements which are intended to get evidence before the jury which counsel was not entitled to have the jury consider. Id. In the context of misconduct of counsel in opening statement, the Ohio Supreme Court stated in Maggio v. Cleveland (1949), 151 Ohio St. 136, at paragraph two of the syllabus: "'Counsel should be accorded latitude by the trial court in making his opening statement, but when he deliberately attempts to influence and sway the jury by a recital of matters foreign to the case, which matters he knows or ought to know cannot be shown by competent or admissible evidence, or when he makes a statement through accident, inadvertence or misconception which is improper and patently harmful to the opposing side, it may consti- - 6 - tute the basis for ordering a new trial or for reversal by a reviewing court of a judgment favorable to the party represented by such counsel.'" Drake, supra. The decision set forth in Maggio, supra applies equally to closing arguments. Id. In the present case, appellant objects to various comments made by appellee's counsel during opening statement. In particular, appellant contends that the trial court erred in allowing appellee's counsel to make the following statements in his opening statement: As I was getting ready for trial over the weekend, I was asking myself, "Why am I doing this? Why am I dragging Mr. Rayfield down here? Why does he have to sit through all this?" * * * And the evidence will show you that what he [appellant] wants is nothing more than money for nothing. (Tr. 13). Appellant further objects to appellee's counsel's inference during closing argument that appellant's counsel was hiding something by presenting Dr. Kapoor's testimony via a transcript rather than by video. An examination of the record reveals that appellant failed to object to the above statements made by appellee's counsel during his opening statement and closing argument. Furthermore, although appellant made a general objection to any permanent opinions made by appellee's counsel and asked the court for a cautionary instruction, we are unable to determine from the record exactly - 7 - what appellant's counsel was objecting to. Ordinarily, in order to support a reversal of a judgment on the ground of misconduct of counsel in his opening statement and closing argument to the jury, it is necessary that a proper and timely objection be made to the claimed improper remarks so that the court may take action thereon. Snyder v. Stanford (1968), 15 Ohio St.2d 31, paragraph one of syllabus. Therefore, except where counsel, in his opening statement and closing argument to the jury, grossly and persistently abuses his privilege, the trial court is not required to intervene sua sponte to admonish counsel and take curative action to nullify the prejudicial effect of counsel's conduct. Stephen's Jewelry, Inc. v. Admiral Ins. Co. (1989), 63 Ohio App.3d 213, 217. From an examination of the record, we are unable to conclude that the remarks of appellee's counsel set forth in his opening statement and closing argument, though possibly improper, consti- tuted a gross and persistent abuse of privileges and prevented appellant from receiving a fair trial. Appellant further contends that it was improper for appellee's counsel to show the jury a large blown up photograph of appellant's vehicle during opening argument and later make reference to the picture during closing argument, even though the picture was never properly admitted into evidence. In the present case, appellee's counsel, during opening statements and before the trial court ruled on the admissibility of - 8 - various evidentiary material, made reference to blown up photographs of appellant's vehicle and the damage done to the vehicle. Appellee's counsel also referred to the photographs and showed them to appellant during the course of the trial. The photographs, however, were not admitted into evidence by the trial court. Even though the photographs were not admitted into evidence by the trial court, both appellee's counsel, as well as appellant's counsel, referenced the photographs during their closing arguments. In particular, appellant's counsel, during her closing argument, indirectly made reference to the photographs when she stated the following: Now, you're going to say why, if the impact was hard enough to jam this safety restraint, to send a cigarette flying and to move his body back and forth against the seat, why is there so little damage to the rear end of his car? The material of that bumper is dent resistent. * * * But it can't prevent the force of forward impact from traveling through the car. It's the nature of the bumper material, not the nature of the impact, as the Defendant would have us believe. * * * * * * Unfortunately, we all now know of bulletproof vests. Our new police cadets were just sworn in in Cleveland, first class. Every one of them get issued bulletproof vests. The material that makes up that bulletproof vest is strong enough to keep a bullet from piercing it, but the impact of the bullet upon that vest sends the officer flying when he or she is shot. He or she knows that they've been hit, but - 9 - there's not much evidence of it on the vest. (Tr. 121-122). Appellee's counsel also referenced the photographs during closing argument when he stated: Again, there is no damage to the plaintiff's car, there's no damage to my client's car. You see Miss Trapp hiding the pictures back there. (Tr. 129). It is our belief that the actions of appellee constitute harmless error within the purview of Civ.R. 61. Civ.R. 61 states in pertinent part: [t]he court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. In the case sub judice, appellant has failed to demonstrate to this Court that any of his substantial rights were violated by any action or comment made by appellee's counsel during opening statement or closing argument. Furthermore, this Court has reviewed the entire record, as well as all arguments of counsel, and even though the remarks and opinions of appellee's counsel may have been improper at various times, there is no showing of any error prejudicial to appellant. Moreover, appellant's counsel also referenced the photographs during her closing argument. Futher, sufficient evidence was admitted at trial to support the jury's verdict. Thus, in the absence of a showing of prejudicial error, we can only conclude that any error was harmless. Accordingly, appellant's first assignment of error is - 10 - overruled. IV. In his second assignment of error, appellant contends that the trial court erred in admitting, over objection, inadmissible and prejudicial character and/or habit evidence pertaining to his lost wage claim and past work history of medical leaves, overtime refusal, and absenteeism in order to prove that he failed to work after the date of the injury in conformity with his past history and not due to his injury. In the present case, appellant brought in Kurt Ludwig, custodian of records for Ford Motor Company, to testify regarding the number of work and overtime hours appellant missed between February 24, 1994, the date of the accident, and March 16, 1994, the date appellant returned to work after taking a medical leave of absence. Mr. Ludwig testified that appellant had missed one hundred ninety-six and three quarters hours due to injuries sustained during the accident. On cross-examination, appellee's counsel questioned Mr. Ludwig about appellant's work history and medical leaves taken from 1989- 1996. Appellee's counsel also questioned Mr. Ludwig about appellant's history of accepting overtime hours. Mr. Ludwig responded that appellant was "not inclined to take advantage of every overtime opportunity presented to him" and concluded that appellant had, in fact, refused approximately one hundred and seventy-one hours of overtime in a thirteen month period of time. - 11 - (Tr. 38-39). Appellant argues that the testimony elicited from Mr. Ludwig on cross-examination was impermissible character evidence under Evid.R. 404(B), the only purpose of which was to show that appellant would not have worked the overtime hours available to him during the time he was physically unable to work due to the injuries sustained in the motor vehicle accident. Evid.R. 404(B) provides that "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." The testimony of Mr. Ludwig regarding appellant's work history was not presented to prove the character of appellant. Therefore, Evid.R. 404(B) is inapplicable. A trial court has the discretion to exercise reasonable control over the examination of witnesses, Baker v. Cuyahoga Cty. Court of Common Pleas (1989), 61 Ohio App.3d 59, 64, including the direct examination of witnesses. Rhude v. Ed. G. Koehl, Inc. (1948), 85 Ohio App. 223, 226. Likewise, the scope of cross- examination rests within the sound discretion of the trial court. O'Brien v. Angley (1980), 63 Ohio St.2d 159. Accordingly, a court's decision on the examination of witnesses will not be reversed absent a clear and prejudicial abuse of discretion. Id. It must first be noted that a review of the transcript reveals appellant's counsel "opened the door" to questions regarding the amount of work and overtime hours appellant missed as a result of - 12 - the accident. Appellant's counsel questioned Mr. Ludwig about the number of hours appellant missed due to the injuries he sustained in the accident as an attempt to prove the amount of damages appellant incurred. Furthermore, testimony elicited from Mr. Ludwig on direct examination reveals that Mr. Ludwig stated appellant did not always work overtime hours available to him. In particular, Mr. Ludwig stated: I wrote back in December of '95 that indicating his rate, that he was our employee, that -- what the cost of living was at the time, and that I also generated the document from our computer system, which speaks to the time frame that the -- Mr. Hodorowski was off of work, and I went through and compared that to his write- up, and concluded that he had accurately recorded the hours that he was charged absences and charged overtime for hours that he might have worked overtime, but which he didn't. (Emphasis added). (Tr. 23). In light of the testimony elicited from Mr. Ludwig on direct examination, as well as the fact that the evidence regarding the number of hours, both regular and overtime, missed by appellant go directly to the issue of damages, we believe the trial court did not err in permitting appellant's counsel to elicit testimony from Mr. Ludwig on cross-examination regarding appellant's work history. The matter is subject to the court's discretion and we agree with the trial court's assessment that counsel's questions were relevant and not unfairly prejudicial to appellant. See Evid.R. 402, Evid.R. 403. Thus, we find that the trial court did not abuse its discretion. - 13 - Accordingly, appellant's second assignment of error is overruled. V. In his third assignment of error, appellant contends that the trial court erred in denying his motion for a mistrial and/or request for an adequate curative instruction upon the introduction by appellee's counsel in front of the jury that there had been a Rule 29 arbitration hearing. In the present case, appellee's counsel, during cross- examination of appellant, made reference to an arbitration hearing which had been conducted prior to the trial. Appellant objected to appellee's reference to the arbitration hearing and the trial court sustained appellant's objection. Appellee's counsel continued to make comments referencing the arbitration hearing. Subsequently, appellant requested that the trial court grant a mistrial, or in the alternative provide a curative instruction to the jury. The trial court overruled appellant's motion for a mistrial but did, during its instructions to the jury, state the following: * * * Evidence does not include testimony to which an objection was sustained; testimony which has been ruled out, or testimony which you were told to disregard. You should disregard any comments, answers or questions concerning arbitration. (Tr. 155). Appellant's third assignment of error will be addressed in two parts. First, this Court will address appellant's request, and the trial court's subsequent denial of appellant's request, for a - 14 - mistrial. Second, this Court will address the trial court's jury instructions as they pertain to any comments made regarding the arbitration hearing. The standard of review for ruling on a motion for mistrial is abuse of discretion. State v. Simmons (1989), 61 Ohio App.3d 514. In order to find an abuse of discretion, we must determine that the trial court's decision was unreasonable, arbitrary or unconscio- nable and not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. We must look at the totality of the circumstances in the present case, and determine whether the trial court acted unreasonably, arbitrarily or unconscionably. The record in the instant case shows that after appellee made reference to the arbitration hearing, appellant's counsel promptly objected. The trial court sustained appellant's objection and issued a curative jury instruction. Therefore, considering the material in the record before us, we cannot say that appellee's remarks, followed by the court's curative instruction rises to the level of an abuse of discretion. Thus, the trial court's denial of appellant's motion for a mistrial was not error. Next, we must consider the curative instruction given by the trial court. In the present case, appellant failed to object to the instructions given by the trial court to the jury. Civ.R. 51(A) requires that: On appeal, a party may not assign as error the giving or failure to give - 15 - any instruction unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury. In light of Civ.R. 51, appellant's assigned error can only be reviewed by this court under exceptional circumstances to prevent a manifest miscarriage of justice. Cleveland Elec. Illum. Co. v. Astorhurst (1985), 18 Ohio St.3d 268, 275. After a complete review of the record before us, we conclude that the instant case does not present a situation in which the doctrine of "plain error" should be invoked. Furthermore, "[a] jury is presumed to follow the instructions, including curative instructions, given by a judge." State v. Garner (1995), 74 Ohio St.3d 49, 59. The jury reached a verdict within the confines of the evidence and the law applicable thereto. Id. Accordingly, appellant's third assignment of error is overruled. VI. In his fourth assignment of error, appellant contends that the trial court erred in failing to give in its general charge to the jury an instruction as to collateral benefits. At trial, appellant's attorney elicited testimony from its own witness, Mr. Ludwig, regarding accident and sickness benefits provided by Ford Motor Company's insurance carrier John Hancock. (Tr. 28). Thus, appellant "opened the door" to any further - 16 - testimony relating to disability benefits offered by Ford Motor Company. However, the trial court sustained a subsequent objec- tion to, and refused to permit any further evidence regarding the John Hancock disability benefits when appellee attempted to question Mr. Ludwig on cross-examination. Furthermore, although appellant's counsel requested that the trial court give the jury a special instruction regarding collateral benefits, which the court declined to do, the trial court specifically instructed the jury to disregard, as evidence, any objection which had been sustained by the court. In considering whether specific portions of the trial court's instructions complained of were improper, the instructions as a whole must be reviewed. Wagenheim v. Alexander Grant & Co. (1983), 19 Ohio App.3d 7, 16, citing Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207, 210. So long as the law is clearly and fairly expressed to the jury so that they are able to understand it as it applies to the facts in the case at hand, then no reversible error has been committed. Id. Even if reversible error is found in the charge, it must also be shown that the substantial rights of the party complaining of the charge have been directly affected and to his prejudice before a reversal can be justified. Id., citing Ohio Farmers Ins. Co. v. Cochran (1922), 104 Ohio St. 427, paragraph four of the syllabus. With this principle in mind, we find that appellant has failed to show that the trial court's refusal to specifically instruct the - 17 - jury on collateral benefits was prejudicially erroneous. Further, we conclude the trial court's instructions accurately and completely explained what evidence the jury could consider in determining the amount of damages to award to appellant. Accordingly, appellant's fourth assignment of error is without merit. VII. Appellant, in his fifth assignment of error, contends that the verdict of $2,000.00 was against the manifest weight of the evidence. We disagree. The Ohio Supreme Court in Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, set forth the standard to be used in determining whether a verdict is against the manifest weight of the evidence. The Supreme Court stated: "'Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence.'" C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. Seasons Coal Co., supra at 80. Furthermore, it has been held that a jury determination of damages will not be set aside unless the amount is so manifestly against the weight of the evidence as to indicate that the jurors misconceived their duties. Craig Wrecking v. Loewendick & Sons, Inc. (1987), 38 Ohio App.3d 79, 84. In the present case, two issues were presented to the jury for its determination, proximate causation and damages. Appellant, contends, herein, that it was the jury determination of damages - 18 - which was against the weight of the evidence and which is now before this Court on appeal. We cannot say, however, based on the record before us, that the jury's verdict was so manifestly against the weight of the evidence as to require reversal. Clearly, there was competent and credible testimony given, as well as evidence submitted to the jury for its consideration, to the effect that appellant did not take advantage of overtime hours offered to him. Testimony was also offered as to the nature and extent of appellant's physical injuries sustained as a result of the accident. Moreover, the jury was instructed by the trial court that, only if they determined that appellee's negligence was the proximate cause of appellant's injuries alleged to have been received by appellant, were they to consider the issue of damages. Thus, it would be difficult to find that the jury did not clearly comprehend their duty in this regard. Accordingly, appellant's fifth assignment of error is not well-taken and is, therefore overruled Judgment affirmed. - 19 - It is ordered that appellee recover of appellant his costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TERRENCE O'DONNELL, P.J. and DIANE KARPINSKI, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .