Opinion
No. 561
Decided June 6, 1959.
Appeal — Final order — Granting new trial — Not abuse of discretion, when — "Abuse of discretion" defined — Paternity suit — Voir dire examination of jury — Juror previously defendant in paternity suit — Remains silent on examination.
1. The question for the reviewing court on an appeal from the granting of a new trial after verdict and judgment, is not whether the reviewing court would have granted a new trial on the facts and evidence presented, but whether the trial court abused its discretion in granting a new trial.
2. "Abuse of discretion" in the granting of a new trial means the display of an unreasonable, arbitrary or unconscionable attitude on the part of the trial court.
3. The granting of a new trial in a bastardy case is not an abuse of discretion as being unreasonable, arbitrary or unconscionable, where, after verdict and judgment, it is discovered that one of the jurors had previously been a defendant in a paternity suit and had remained silent when the jury was asked on voir dire examination whether any one of them had ever "been involved in a paternity case."
APPEAL: Court of Appeals for Clark County.
Mr. Fred W. Booth, for appellee.
Mr. William T. Hicks, for appellant.
This is an appeal from an order of the Common Pleas Court of Clark County sustaining a motion for a new trial on the ground of misconduct of a juror. The motion was directed to a verdict for the defendant in a bastardy case.
At the outset, it is apparent that no useful purpose may be served by reviewing in detail the many cases which discuss whether the sustaining of a motion for a new trial after verdict and judgment is a final appealable order.
Suffice it to say that the most recent legislative attempt to imbue such an order with finality (Section 12223-2, General Code [122 Ohio Laws, 754], now Section 2505.02, Revised Code) was thwarted by the Supreme Court of Ohio in the case of Green v. Acacia Mutual Life Ins. Co., 156 Ohio St. 1, 100 N.E.2d 211. See, also, Johnson v. O'Hara, 156 Ohio St. 117, 100 N.E.2d 223; Mele v. Mason, 156 Ohio St. 118, 100 N.E.2d 224; Lawrence v. Moore, 156 Ohio St. 375, 102 N.E.2d 595; Hiboluk v. Pozniakow, 107 Ohio App. 102, 156 N.E.2d 755; Choate v. Jackson, 104 Ohio App. 392, 149 N.E.2d 267.
Our authority is thereby limited in the instant case. The question is not whether the members of this court would have granted a new trial on the facts and evidence presented to the trial court, but whether the trial court, in so acting, abused its discretion.
The term, "abuse of discretion," has been defined as follows in the cases of Steiner v. Custer, 137 Ohio St. 448, 31 N.E.2d 855, and Klever v. Reid Bros. Express, Inc., 154 Ohio St. 491, 96 N.E.2d 781:
"2. The meaning of the term `abuse of discretion' in relation to the granting of a motion for a new trial connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the court."
That definition has been repeatedly adopted by the Appellate Courts of Ohio, and its rather extreme connotation no doubt explains their reluctance to interfere with the discretionary power of trial courts.
In this case, the trial court found "that the plaintiff was entitled to have her case heard and the verdict returned by jurors who are not prejudiced for or against either party." This finding was based on the following facts.
On voir dire examination, counsel for the plaintiff, appellee herein, asked the jury the following question:
"And more specifically, I would like to ask whether any of you, either yourself through friends or relatives, have ever been involved in a paternity case so that that information or prejudice would tend to disqualify you as a juror?"
This question elicited no response, but after verdict and judgment it was discovered that one of the jurors had been a defendant, some years before, in an action involving the paternity of an illegitimate child.
It does not seem to follow necessarily that this juror would be prejudiced against the plaintiff any more than the defendant, without some speculation on human behavior. However, in granting a new trial, the court must have concluded that that juror should, at least, have exposed himself to further inquiry and possible challenge.
And in view of the verdict signed by ten jurors, the trial court must have considered the possibility that the juror, because of his own experience, might have wielded some influence upon the deliberations of other jurors.
From the record presented, we cannot say that the trial court displayed an unreasonable, arbitrary or unconscionable attitude, and, there being no final order in this proceeding, the appeal will be dismissed.
Appeal dismissed.
WISEMAN, P. J., and CRAWFORD, J., concur.