Summary
In Edelstein v. Kidwell (1942), 139 Ohio St. 595, the Supreme Court held that a cause could not be remanded on the issue of damages separately from the issue of liability.
Summary of this case from Hanna v. WagnerOpinion
No. 28847
Decided April 29, 1942.
New trial — Jurisdiction of Common Pleas Court — Section 11576, General Code, and Section 4, Article IV, Constitution — Court to vacate entire verdict and retry case on all issues.
The jurisdiction of the Common Pleas Court to grant a motion for new trial is provided by Section 11576, General Code, as authorized by Section 4, Article IV of the Constitution, and, omitting the grounds for such motion, is stated as follows: "A former verdict, report, or decision, shall be vacated, and a new trial granted by the trial court on the application of a party aggrieved, for any of the following causes affecting materially his substantial rights * * *." Under the jurisdiction thus provided, the court, in vacating a verdict and granting a new trial, is required to vacate the entire verdict of the jury and the new trial must proceed de novo as to all the issues in the case.
APPEAL from the Court of Appeals of Franklin county.
The parties will be referred to as they were designated in the Common Pleas Court.
The plaintiff, as administratrix, filed her petition against the defendant for damages for causing the wrongful death of her husband, George Edelstein. The petition alleges that on August 14, 1939, her decedent was a passenger in a truck owned by the defendant and operated by the defendant's agent, Nelson Frances; that the brakes on the truck were defective and would lock one or more of the wheels when forcibly applied; that when the truck was rounding a curve near the village of Thurman, Ohio, defendant's agent applied the brakes causing the truck to strike a culvert; that the trailer thereupon buckled with the tractor portion of the truck causing it to run into a ditch beyond the culvert; and that a gasoline tank was broken open causing a fire in the driver's cab which inflicted severe burns on the body of plaintiff's decedent, as a result of which he died on December 29, 1939.
The petition further alleges that decedent was 30 years of age at the time of his death and left as dependents, the plaintiff, as his widow, and a son, one year of age.
To this petition, the defendant filed an answer admitting the capacity of the plaintiff, the death of the decedent, and that a widow and child survived, but denying the other allegations of the petition.
The case was tried to a jury. On motion of the plaintiff, at the close of all the evidence, the court directed a verdict for the plaintiff on the issue of liability, and submitted to the jury only the question of damages. The jury returned a verdict for the plaintiff in the sum of $2,500. The defendant moved for judgment notwithstanding the verdict which motion the court overruled. The plaintiff first filed a motion for a new trial on the grounds that the verdict was not sustained by sufficient evidence and that the amount of damages allowed in the verdict was inadequate. Later, plaintiff filed an amended motion for new trial moving the court to vacate the verdict of the jury and to grant a new trial solely upon the issue of the amount of damages found in the verdict for the reasons that the verdict was not sustained by sufficient evidence, and that the amount of damages allowed was grossly inadequate. Plaintiff also moved alternatively that "in the event that the court overrules the above motion, plaintiff moves the court to grant a new trial generally in this action, or upon such issues as the court may find proper for the reasons hereinabove set forth."
The court, on consideration of plaintiff's amended motion, found that the "verdict was so grossly inadequate that it was not sustained by sufficient evidence and that the same was manifestly against the weight of the evidence; wherefore, said amended motion is hereby sustained and it is hereby ordered that a new trial be had solely upon the issue of the amount of damages to be awarded." (Italics ours.)
Upon appeal by the defendant to the Court of Appeals, that court affirmed the orders of the trial court, entered final judgment upon the question of liability in favor of the plaintiff against the defendant, and remanded the case to the Common Pleas Court for resubmission to the jury to assess the amount of damages to the plaintiff. Later, on motion of the defendant for reconsideration of its ruling, the Court of Appeals modified its judgment by adding the following language:
"Provided, that if an amended answer is tendered by the defendant, the court may in its discretion, determine whether or not said new trial shall proceed also upon another issue which is not made upon the original pleadings."
The case is now in this court for review by reason of the allowance of a motion to certify the record.
Mr. D. Curtis Reed and Mr. Joseph F. Hogan, for appellee.
Mr. Alex S. Dombey and Mr. George M. Austin, for appellant.
Conceding that the court was justified by the state of the record in granting a new trial to plaintiff because of the inadequacy of the verdict, could the court grant a new trial without vacating the entire verdict of the jury?
There are many cases in common-law jurisdictions which hold that it is within the power of the trial court, where there is more than one issue of fact in the case and such issues are distinct and separable in their nature, to order a new trial of one issue and refuse it as to the others. 27 Am. Eng. Ann. Cas., 365; 46 Corpus Juris, 74, Section 24; Zaleski v. Clark,
46 Conn. 397; Yazoo Miss. Valley Rd. Co. v. Scott, 108 Miss. 871, 67 So. 491, L.R.A. 1915E, 239, annotations at 250; 98 A. L. R., 941, annotation; 2 Ruling Case Law, 287, Section 241.
It is to be observed, however, in the study of these authorities, that the courts recognize much opportunity for confusion and injustice in adopting and applying this practice. For instance, one authority says:
"Before such a partial new trial is granted, however, it should clearly appear that the matter involved in the particular issue is entirely distinct and separable from the matters involved in the other issues, and that the new trial can be had without danger of complications with other matters." 27 Am. Eng. Ann. Cas., 365.
Another authority says the practice may be followed when " 'it is clear that the course can be pursued without confusion, inconvenience or prejudice to the rights of any party.' " 98 A.L.R., 941, annotation.
In Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 75 L.Ed., 1188, 51 S.Ct., 513, the court significantly holds in a case where certain issues related to the claim of the plaintiff and certain other issues related to a counterclaim of the defendant, "that in reversing the judgment as to the counterclaim and directing a new trial with respect to the amount of damages because of error in the instructions concerning the measure of damages under it, it was not necessary to disturb the judgment on the main cause of action; but there should be a retrial of all the issues raised by the counterclaim, because * * * the question of damages could not be submitted to a jury independently of the question of liability without confusion and uncertainty." (Italics ours.)
But the decision of this question in Ohio calls for an examination of the constitutional and statutory provisions of this state relating to the jurisdiction and procedure of the Common Pleas Court in the trial of civil actions.
Section 4, Article IV of the Constitution, provides that "the jurisdiction of the Courts of Common Pleas and the judges thereof, shall be fixed by law," that is, by legislative enactment. The Constitution authorizes the Legislature to confer jurisdiction on the court and the Legislature has acted under this authority. Mattone v. Argentina, 123 Ohio St. 393, 175 N.E. 603.
As a part of the jurisdiction of the Common Pleas Court, the Legislature has provided when and how new trials shall be granted. Section 11576, General Code, provides that:
"A former verdict, report, or decision, shall be vacated, and a new trial granted by the trial court on the application of a party aggrieved, for any of the following causes affecting materially his substantially rights * * * (Italics ours.) Then follows the enumeration of the eight separate grounds upon which new trials may be granted.
There are holdings by this court, and by several of the Courts of Appeals, that when the trial court vacates a verdict and grants a new trial under the statute above referred to, it has exhausted its jurisdiction in that regard. Apparently, the court has no authority or power to vacate only a part of a verdict or to attach other conditions upon the retrial of the action de novo. Dayton Union Rd. Co. v. Dayton; Muncie Traction Co., 72 Ohio St. 429, 74 N.E. 195; Wheeling Lake Erie Ry. Co. v. Richter, 131 Ohio St. 433, 3 N.E.2d 408.
In the case of Dayton Union Rd. Co. v. Dayton Muncie Traction Co., supra, involving the question as to when the motion for new trial must be filed to have a review of the preliminary questions in an appropriation suit, Chief Justice Davis said:
"A new trial, if granted, goes to the whole case. It must be retried from the beginning and upon all the issues of fact which are involved in the case."
In the case of Wheeling Lake Erie Ry. Co. v. Richter, supra, relating to new trial procedure, Judge Zimmerman, in his opinion at page 437, said:
"Unlike the Supreme Court or the Courts of Appeals, 'the jurisdiction of the Courts of Common Pleas, and of the judges thereof, shall be fixed by law.' Article IV, Section 4, Constitution of Ohio. The powers and authority of the Courts of Common Pleas are therefore largely dependent on legislative action. Allen v. Smith, 84 Ohio St. 283, 95 N.E. 829, Ann. Cas. 1912C, 611. * * *
"Section 11575, General Code, insofar as this case is concerned, defines a new trial as 'a reexamination, in the same court, of an issue of fact, after a verdict by a jury.' And this court has indicated that this signifies a rehearing of the case from the beginning. Dayton Union Rd. Co. v. Dayton Muncie Traction Co., 72 Ohio St. 429, 435, 74 N.E. 195, 196.
"The statutory definition is in substantial conformity with those generally contained in judicial pronouncements, and there is no reason to believe that it was intended to be a departure from the meaning given the term at common law. There, 'new trial' was used in the sense of a complete retrial of a cause on the facts."
In the case of Cullen v. Schmit, 137 Ohio St. 479, 30 N.E.2d 994, involving the question as to when a motion for new trial is duly filed, this court, with opinion by Chief Justice Weygandt, held:
"A motion for a new trial is duly filed only when, if granted, it would result in a reexamination of the issues of facts presented by the pleadings."
The amended motion for new trial in this case seeks to have the court amend what seems to be the statutory procedure as to such motions. This is not the function of the court but that of the Legislature. In the trial of a civil action, liability and damage are so closely related that in the absence of statutory authority the court should not undertake to separate them. To do so is not only unauthorized, but in many cases might result in injustice.
The judgments of the Common Pleas Court and of the Court of Appeals are reversed and the cause is remanded to the Common Pleas Court for further proceedings not inconsistent with this opinion.
Judgment reversed.
WEYGANDT, C.J., TURNER, WILLIAMS, MATTHIAS and ZIMMERMAN, JJ., concur.
BETTMAN, J., not participating.