This action arose out of a collision between the plaintiff's automobile and the defendant's tank truck, and came on for trial before a judge and jury in the Court of Common Pleas of Franklin County. A verdict was rendered for the plaintiff in the amount of $1,500.
The plaintiff made a motion for a new trial claiming that the verdict and the judgment were inadequate; and that the defendant's cross-examination of the plaintiff, in which he questioned him concerning 18 prior traffic convictions and the penalty and sentences given in those cases, prejudiced the jury and prevented him from having a fair trial and obtaining adequate damages for the injuries received as a result of the collision. The trial judge granted the motion for a new trial, stating in his opinion that the jury's assessment of damages was grossly erroneous and too low.
From the sustaining of the motion on the ground of the inadequacy of the verdict, the defendant has appealed to this court *Page 292 and has assigned as error that the trial court abused its discretion in granting plaintiff's motion for a new trial on the sole ground of the inadequacy of the damages awarded by the jury. The defendant does not argue against the right of the trial court to grant a new trial on the grounds of the inadequacy of the damages found by the jury, but states that in the absence of passion or prejudice, such power is restricted to those cases in which the jury clearly committed error in omitting or misapprehending the elements of damage to which the prevailing plaintiff was entitled. They cite the case ofToledo Railways Light Co. v. Mason (1910), 81 Ohio St. 463, as being the leading case. The first paragraph of the syllabus of that case reads:
"In an action to recover damages for personal injuries, a new trial may be granted on the ground of the inadequacy of the damages found by the jury, when it appears on the facts proved that the jury must have omitted to take into consideration some of the elements of damage properly involved in the plaintiff's claim."
The defendant contends that the jury considered every element of damage presented by the plaintiff, Garland, and even during the course of its consideration asked for an itemized list of all expenses incurred by the plaintiff in connection with his accident. By agreement of counsel those expenses were furnished to the jury. They were $121.28 for loss of wages, $354 for medical and hospital expenses, and $376.06 for damage to the automobile. Those expenses totaled $851.34. The defendant contends that the $648.66 balance of the judgment of $1,500 adequately compensated the plaintiff for the injury, pain, and suffering, and that the court, in granting a new trial, was substituting its own judgment for that of the jury.
From a reading of the transcript and testimony, it appears that the defendant questioned the plaintiff about 15 previous traffic convictions during the years 1953 to 1962, which included seven convictions for driving while intoxicated or under the influence of intoxicating liquors. While the case of State v.Murdock, 172 Ohio St. 221, appears to permit the questioning of a witness about his previous convictions of crimes in order to affect the credibility of the witness, the trial judge has the responsibility of seeing that the jury does not improperly use such information to the prejudice of either one of the parties. *Page 293 In this case it was the plaintiff himself whose credibility was being tested, and the trial judge apparently felt that more than credibility was affected. Further, four times the counsel for the defendant included in the question about a previous conviction the sentence of the court and the length of time his driver's license was suspended, and only the fourth time did the court find the question to be improperly asked. While we find it hard to believe that a conviction of a traffic offense affects the credibility of a person, the Murdock case should not be extended to include the action of the court in sentencing a traffic violator.
In view of the improper questions and the cumulative effect of all questions as to prior convictions, we cannot say the trial court abused his discretion in awarding the plaintiff a new trial. The judgment will be, and hereby is, affirmed.
Judgment affirmed.
BRYANT and TROOP, JJ., concur.