COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77146 WILLIAM WHETSEL, et al. : : JOURNAL ENTRY Plaintiffs-Appellants : : AND vs. : : OPINION DAVID P. SOLDEVILLA, et al. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT NOVEMBER 9, 2000 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-352435 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: DANIEL D. DOMOZICK 5555 Mayfield Road Suite 200 Lyndhurst, Ohio 44124 For Defendants-Appellees: THOMAS P. COFFEE 50 South Main Street, Suite 502 Akron, Ohio 44308 CURTIS W. SCOTT, JR. 14650 Detroit Avenue, Suite 450 Lakewood, Ohio 44107 THOMAS E. DOVER 7th Floor Bulkley Building 1501 Euclid Avenue Cleveland, Ohio 44115 TERRENCE O'DONNELL, PRESIDING JUDGE: William Whetsel appeals from a judgment of the common pleas court entered pursuant to a jury verdict in favor of David -2- Soldevilla arising from a rear-end motor vehicle collision which occurred at the intersection of Route 322 and I-271 in the city of Mayfield Heights. On appeal, Whetsel contends that the verdict is against the manifest weight of the evidence; that the court failed to give a requested jury instruction, and that it permitted improper impeachment testimony of Whetsel's previous accidents. After careful review, we reject these contentions and affirm the judgment of the trial court. On April 8, 1996, sixteen-year-old David Soldevilla struck the rear-end of Whetsel's 1986 Ford truck on U.S. Route 322 near the intersection of Interstate 271 in the Village of Mayfield Heights. As a result of the accident, Whetsel sustained $488.00 in damage to his truck. The police report reveals that Whetsel stated that he had not been injured in the accident and when the police arrived at the scene, he declined medical treatment. However, the next day, he went to the MedNet emergency room complaining of neck pain. The emergency room staff treated him with anti-inflammatory medication, a muscle relaxant, and ice. He declined to wear a cervical collar. Whetsel did not receive any additional medical treatment until November 1996, seven months after the accident. Two years after the accident, on April 7 1998, Whetsel sued Soldevilla for injuries he received in the accident. The case proceeded to a jury trial where Whetsel and his wife Candace testified and offered the expert testimony of Dr. John Collis, Jr. Whetsel testified that he is the owner of Procare Restoration Company and that he had been working at the time of the accident. -3- He further testified that following the accident he had filed a worker's compensation claim which delayed any follow-up doctor's care until August 16, 1996; in November 1996, he testified that he visited the Kaiser Hospital Emergency Room because of persisting neck pain. He further testified that in January 1997, he saw Dr. Collis, who performed an MRI on his neck, which indicated a bulging disk. In addition, Whetsel also testified he lost income and offered his company's tax returns to document the losses. On cross-examination, Whetsel admitted that in the eighteen months prior to the accident with Soldevilla, he had been involved in three other automobile accidents, but claimed he had not been injured in any of them. He further admitted to having been involved in another automobile accident in December 1996. Next, Whetsel presented the videotaped testimony of Dr. Collis, who testified that the bulging disc had been a direct result of the April 8, 1996 automobile accident, that Collis performed surgery in April 1997, and that Whetsel had not informed him of his history of other motor vehicle accidents. Whetsel then rested. In its case in chief, the defense presented the testimony of David Soldevilla and the videotaped testimony of Dr. Timothy Gordon. Soldevilla admitted he caused the accident. Dr. Gordon testified that in his opinion, Whetsel's bulging disc had been present for seven or eight years before the April 8, 1996 accident occurred. The defense then rested. The court then charged the jury and gave an instruction regarding expert witness testimony. Plaintiff's counsel requested -4- the court to instruct the jury that a plaintiff's verdict in some amount would be appropriate based upon Dr. Gordon's testimony that Whetsel sustained injuries as a result of the accident. Following deliberations, the jury returned a defense verdict. Whetsel now appeals, and sets forth the following assignments of error for our review: I. THE JUDGMENT IN FAVOR OF DEFENDANT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Whetsel asserts that the verdict in favor of Soldevilla is against the manifest weight of the evidence because Soldevilla admitted negligence and because he presented undisputed evidence of his injuries, medical bills and lost wages. Soldevilla, however, maintains the verdict is a proper one because the jury assessed the credibility of the witnesses presented at trial. Thus, we are concerned with whether the jury's verdict is against the manifest weight of the evidence. In C.E. Morris Co. V. Foley Constr. Co. (1978), 54 Ohio St. 2d 279, the court stated in its syllabus: 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. In this case, the court instructed the jury as follows: To judge the believability, credibility, the reasonableness of each witness, in order to weigh the evidence, you consider the believability of each witness an you use the test of truthfulness and reasonableness that you use every day in your daily lives. * * * Now, you're not required to accept the testimony of -5- any witness simply because he or she was under oath. You're the triers of fact. You have the right to believe and accept all or none or a part of the testimony of any witness. We heard from two doctors on videotape. Their testimony is to be considered according to the same test, credibility and truthfulness that you apply to other witnesses. Whetsel testified on direct that he had lost wages and that worker's compensation had paid approximately $40,000.00 for his medical bills. He admitted on cross-examination that within an eighteen month period beginning June 1995, he had been involved in four motor vehicle accidents, but insisted that he did not injure his neck in any of them. Dr. Collis testified that in his medical opinion, the April 1996 accident caused Whetsel's disc to bulge, necessitating surgery. However, when cross-examined about Whetsel's prior accidents, Dr. Collis stated that he had no knowledge of any of them: Q. So, Doctor, as you sit here today, you were totally unaware that within an 18 month period from June of `95 to this accident in April of `96, that 18 month period, he has been in four motor vehicle accidents? Did you know that? A. I didn't. The defense also cross-examined Dr. Collis on several of Whetsel's medical reports, one of which indicated that degenerative spurs on his neck and degenerative osteoarthritis of the cervical spine had been detected in 1988, supporting his opinion that Whetsel's medical condition had been present prior to the accident with Soldevilla. Dr. Gordon testified that in his medical opinion, Whetsel had -6- been experiencing disc problems seven to eight years prior to this accident. Thus, the record before us contains some competent, credible evidence from which the jury could have concluded that the April 1996 accident did not cause Whetsel's injuries. On this state of the record, we cannot conclude that the jury's verdict is against the manifest weight of the evidence. Accordingly, this assignment of error is not well taken. II. THE TRIAL COURT ERRED IN FAILING TO GIVE A JURY INSTRUCTION REQUESTED BY PLAINTIFF. Based on the testimony of Dr. Gordon, the defense expert, Whetsel believes the court erred by failing to advise the jury to return a verdict for the plaintiff. Soldevilla maintains, however, the court left the question of proximate cause to the jury. The issue, therefore, concerns whether the court should have given the requested instruction to the jury. In Wagenheim v. Alexander Grant & Co. (1983), 19 Ohio App.3d 7, the court stated: In considering whether specific portions of the trial court's instructions complained of were improper, the instructions as a whole must be reviewed. Schade v. Carnegie Body Co. (1982), 70 Ohio St. 2d 207, 210 [24 O.O.3d 316]. 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. 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. Ohio Farmers Ins. Co. v. Cochran (1922), 104 Ohio St. 427, paragraph four of the syllabus. In this case, the court instructed the jury that fault had -7- been admitted, but proximate cause remained an issue for jury consideration. The court further instructed the jury that the issue of witness credibility and weight of testimony were matters for their resolution. The court then provided the jury with both a plaintiff and a defense verdict form. In accordance with Wagenheim andSchade, we have concluded that the court clearly and fairly expressed the law to the jury so that they understood it as it applied to these facts. Therefore, we have concluded that the court did not err in failing to give Whetsel's requested jury instruction. Accordingly, this assignment of error is not well taken. III. THE TRIAL COURT ERRED IN PERMITTING THE IMPEACHMENT OF PLAINTIFF WITH EXTRINSIC EVIDENCE IN VIOLATION OF THE RULES OF EVIDENCE. At trial, Whetsel testified that his passenger had not been injured in a December 12, 1996 accident. On appeal, he urges the court erred by permitting defense counsel to impeach this testimony about his passenger with a letter that he wrote. Soldevilla maintains the court properly admitted Whetsel's letter to State Farm into evidence detailing that his passenger incurred lost wages as a result of the December 12, 1996 accident, thereby impeaching his direct testimony on that issue. Thus, here we are concerned with whether the court erred when it allowed defense counsel to use Whetsel's letter to impeach his testimony. Evid.R. 607(A) states: -8- The credibility of a witness may be attacked by any party * * *. Further, Evid.R. 613(B) states in part: Extrinsic evidence of a prior inconsistent statement by a witness is admissible if both of the following apply: (1) If the statement is offered solely for the purpose of impeaching the witness, the witness is afforded a prior opportunity to explain or deny the statement and the opposite party is afforded an opportunity to interrogate the witness on the statement or the interests of justice otherwise require: (2) The subject matter of the statement is one of the following: (b) A fact that may be shown by extrinsic evidence * * *. At trial, Whetsel testified on direct examination that the December 12, 1996 accident had been minor. Defense counsel, on cross-examination, asked whether the accident had been `pretty serious', and Whetsel denied that it had been. In an effort to impeach him, defense counsel presented defendant's exhibit N , a letter written by Whetsel from his company to State Farm Insurance, indicating that his passenger had been injured in the December 12, 1996 accident and had suffered a wage loss of an amount between $1,800.00 and $1,900.00. Whetsel's letter provides some evidence from which the jury could infer that the accident may have been more than a minor collision. Accordingly, we have concluded that the court properly permitted defense counsel to use this letter for impeachment. Therefore, this assignment of error is overruled and the judgment of the court is affirmed. Judgment affirmed. It is ordered that appellees recover of appellants their costs -9- 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. MICHAEL J. CORRIGAN, J., and PATRICIA A. BLACKMON, J., CONCUR PRESIDING JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(a). .