*Belmont, Carroll, Columbiana, Harrison, Jefferson, Mahoning, Monroe and Noble Counties*

*Hon. Joseph Donofrio, P.J., Hon. Edward A. Cox, Hon. Joseph E. O'Neill*

#### Norris v. Barker

*[Cite as 4 AOA 227]*

*Case No. 673*

*Monroe County, (7th)*

*Decided June 6, 1990*

*Allan Sherry, 316 South Main Street, Woodsfield, Ohio 43793, for Plaintiff-Appellant.*

*Paul T. Theisen, P.O. Box 739, 424 Second Street, Marietta, Ohio 45750, for Defendant-Appellee.*

O'NEILL, P.J.

This cause originated in the trial court when the appellant filed a complaint alleging that the appellee had negligently operated an automobile, striking the plaintiff, knocking her to the ground and causing her to sustain severe permanent and disabling injuries that required medical treatment. The prayer of the complaint was for the amount of $50,000.00. The cause eventually came on for trial and, prior to trial, the appellee admitted liability for the accident.

Dr. Michael A. Baum, a medical doctor, was called as a witness in behalf of the appellant. Dr. Baum testified that he treated the appellant for her injuries suffered in the accident. It was his diagnosis that the appellant, as a result of the accident, suffered from multiple contusions, abrasions, cervical strain, neck strain and back strain (Tr. 104). Dr. Baum went on to testify that, as a result of the accident and these injuries, in his opinion, it was necessary that the appellant incur expenses involved in x-rays, hospitalization and physical therapy. During her treatment by Dr. Baum, the appellant incurred the expenses of $142.00 for x-rays by Mandrake X-Ray, Inc, Barnesville, Ohio; $471.05 to the Barnesville Hospital Association, Inc; and $217.00 to the Barnesville Medical Center, Inc; for a total of $830.05. Neither Dr. Baum's expert opinion nor the expenses incurred were contradicted at trial.

During their deliberations, the jurors sent a question to the trial judge:

> "Q. Did Mrs. Kirkbride get a insurance settlement from Mr. Barker?" (Tr. 180).

The trial judge proposed that he would answer this question by stating:

> "The question you have asked is not relevant to the issues and therefore cannot be answered." (Tr. 182).

The appellant objected to this, contending that it was counsel's feeling that the answer posed by the trial judge gave the jury the feeling and the impression that the plaintiff had received some funds, some monies for her injury (Tr. 82). The trial judge overruled appellant's objection and answered the question as he had originally recommended the answer to be. Subsequently, the jury returned a verdict assessing damages in the amount of $500.00 in behalf of the appellant. A timely notice of appeal was filed with this court.

Under the circumstances and the evidence, the verdict of the jury certainly cannot be reconciled with the items of damage which made up the appellant's claim. Where it is apparent that the jury failed to include all the items of damage making up plaintiffs claim, the judgment entered on such verdict may be set aside by a reviewing court as being manifestly against the weight of the evidence and contrary to law. *The Toledo Railway & Light Co.*v. *Mason*(1910), 81 Ohio St. 463. The *Toledo Railways*theory was cited as authority by the Court of Appeals for Williams County. In its ruling, in Syllabus 2, of *Sherer*v. *Smith*(1949), 85 Ohio App. 317, that syllabus reads as follows:

> *228"In an action to recover damages, where the amount of the general verdict for plaintiff cannot be reconciled with the undisputed evidence in the case, or where it is apparent that the jury failed to include all the items of damage making up plaintiffs claim, the judgment entered on such verdict may be set aside by a reviewing court, as being manifestly against the weight of the evidence and contrary to law."

This court has repeatedly adopted and approved the law of *Sherer*v. *Smith*in the unreported cases of *Edge*v. *Lightner*(C.A. 7, 1981), Case No. 80-B-2, Unreported; *Proctor*v. *Smith*(C.A. 7, 1987), Case No. 85-C-53, Unreported; *Parcell*v. *Doe Miller & Sons, et al*(C.A. 7, 1987), Case No. 86-B-4, Unreported.

*Judgment reversed and cause remanded.*

COX, J., and GWIN, J., concur.