Decided April 1, 1959.
New trial — Evidence warranting submission of case to jury — Insufficient credible evidence to sustain judgment on jury's verdict — Granting new trial discretionary with trial court — May find answer to interrogatory against weight of evidence.
1. Where the evidence in the trial of a case is such that the case must be submitted to a jury to find for either the plaintiff or defendant, and where the trial court after its review of the evidence on a motion for a new trial is convinced that there is insufficient credible evidence to sustain a judgment upon the verdict of the jury, such court may, in its discretion, grant not more than one new trial for that reason.
2. Such action on the part of the court rests solely within its sound discretion, and it is not reviewable unless there has been an abuse of that discretion.
3. Where a court finds a verdict not sustained by sufficient evidence, it may likewise find an answer by the jury to an interrogatory to be against the weight of the evidence.
APPEAL from the Court of Appeals for Cuyahoga County.
On August 17, 1954, appellant herein, Paul W. Poske, hereinafter designated plaintiff, instituted an action in the Court of Common Pleas of Cuyahoga County against appellee herein, George Mergl, hereinafter designated defendant.
Plaintiff's petition prays for damages for personal injuries and property damage suffered in an automobile collision which occurred at about 11 p.m. on July 5, 1954.
Plaintiff was operating an automobile east on Bratenahl Freeway adjacent to Memorial Shoreway in the city of Cleveland. At the place of the collision, the freeway was a two-lane broadly curved road divided by a white center line.
Defendant was operating an automobile in a westerly direction on this roadway. The left fronts of the two vehicles came into collision.
Plaintiff's evidence is to the effect that defendant suddenly came over onto plaintiff's half of the roadway and caused the collision, and that plaintiff's lights were on prior to the impact.
Defendant's evidence is to the effect that prior to the impact he was driving on his right side of the road, that his automobile was pulled sideways across the white line after the impact, and that the lights of plaintiff's vehicle were not on prior to the impact.
There is testimony to the effect that the lighting conditions on the highway enabled one to see a car in front of him, even though such car's lights were not on, although it was testified that such a car could not be seen coming around the curve when the lights were off.
The jury returned a verdict for the defendant and wrote upon the verdict form, "We believe that there was negligence on the part of both parties to this accident."
The jury answered in the negative the following interrogatory:
"Interrogatory No. 1. Do you find by the evidence that the headlights on the motor vehicle driven by the plaintiff were lighted at the time of its collision with the motor vehicle driven by this defendant?"
Plaintiff filed a motion for a new trial, which was granted, the trial court making the following entry:
"Plaintiff's motion for new trial is granted. The verdict was manifestly against the weight of the evidence. The defendant's negligence was the sole proximate cause of the collision and plaintiff's injuries. * * *
"Donald F. Lybarger, Judge."
Upon appeal to the Court of Appeals, that court rendered judgment as follows:
"This cause came on to be heard on an appeal on questions of law from the order of the Court of Common Pleas of Cuyahoga County granting plaintiff's motion for a new trial, and was argued by counsel; on consideration whereof, the court finds error prejudicial to appellant in that:
"The jury having found both parties guilty of negligence as stated in the general verdict, and there being substantial and credible evidence to support the jury's conclusions, including plaintiff's negligence in answer to interrogatory No. 1, the court having submitted the question of proximate cause to the jury in its general charge, the granting of a motion for new trial and the stating in the entry granting such motion that the plaintiff's injuries were the sole proximate result of the defendant's negligence, thereby directly contradicting the jury's conclusions in interrogatory No. 1, and in the verdict, constitutes an abuse of discretion. The judgment of the court granting a new trial is reversed on the ground that the granting of such motion constitutes an abuse of discretion and the cause is remanded with instructions to reinstate the judgment."
The cause is before this court on appeal as the result of an allowance of a motion to certify the record.
Mr. A.H. Dudnik, Mr. Fred Weisman and Mr. Otto The-mann, for appellant.
Mr. James A. Chiara, for appellee.
The sole error assigned in this court is that "the Court of Appeals erred in reversing the judgment of the trial court for the reason that the granting of a new trial by the trial court was not an `abuse of discretion.'"
Plaintiff states that the question of law presented to us is, "Was the granting of a new trial to the plaintiff by the trial court a clear abuse of discretion which showed an unconscionable and arbitrary attitude?"
To solve the question presented to us, it is necessary to define the rights and duties of a trial court with reference to granting a new trial upon the weight of the evidence.
Section 2321.17, Revised Code, reads in part as follows:
"A new trial is a re-examination, in the same court, of the issues after a final order, judgment, or decree by the court.
"A final order, judgment, or decree 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:
"* * *
"(F) That the final order, judgment, or decree is not sustained by sufficient evidence, or is contrary to law * * *."
Section 2321.18, Revised Code, reads as follows:
"The same trial court shall not grant more than one new trial on the weight of the evidence against the same party in the same case, nor shall the same court grant more than one judgment of reversal on the weight of the evidence against the same party in the same case."
It is seen from the foregoing statutes that a trial court is authorized to once review the evidence in a trial after a judgment and to grant a new trial if it finds that such judgment is not sustained by sufficient evidence.
It is obvious that a motion for a new trial with reference to the weight of the evidence is addressed to the sound discretion of the court, and this has been the law of Ohio from an early date. Conord v. Runnels, 23 Ohio St. 601, and Smith v. Board of Education of Bucyrus, 27 Ohio St. 44.
It follows that, where there is a motion for a new trial upon the ground that the judgment is not sustained by sufficient evidence, a duty devolves upon the trial court to review the evidence adduced during the trial and to itself pass upon the credibility of the witnesses and the evidence in general. It is true that, in the first instance, it is the function of the jury to weigh the evidence, and the court may not usurp this function, but, when the court is considering a motion for a new trial upon the sufficiency of the evidence, it must then weigh the evidence. A court may not set aside a verdict upon the weight of the evidence upon a mere difference of opinion between the court and jury. Remington v. Harrington, 8 Ohio, 507; McGatrick v. Wason, 4 Ohio St. 566. See Abernethy v. Wayne County Branch of State Bank of Ohio, 5 Ohio St. 266. But, where a court finds a judgment on a verdict manifestly against the weight of the evidence, it is its duty to set it aside. Cleveland Pittsburgh Rd. Co. v. Sargent, 19 Ohio St. 438.
Where the evidence is such that a case must be submitted to a jury to find for either the plaintiff or defendant, and where the trial court after its review of the evidence on a motion for a new trial is convinced that there is insufficient credible evidence to sustain a judgment upon a verdict, such court may grant not more than one new trial for that reason. Since such an action on the part of a court rests solely within its sound discretion, it is not reviewable except upon the question of an abuse of that discretion.
It is contended that the granting of a new trial upon the weight of the evidence amounts to a substitution of the finding of the trial court for that of the jury, but a careful consideration of this contention demonstrates its fallacy. If a court finds a judgment to be against the weight of the evidence and thereupon enters a judgment contrary to a verdict of a jury, where there is evidence sufficient to send the case to a jury, such action amounts to a substitution of the finding of the court for that of the jury and is highly erroneous. However, in granting a new trial, no judgment is substituted for one on a verdict of a jury but simply another trial must be had.
A common example exemplifies the soundness of the foregoing proposition.
Ever since the case of Pendleton Street Rd. Co. v. Rahmann, 22 Ohio St. 446, this court has followed the syllabus in that case, which reads as follows:
"Where the damages assessed by a jury are excessive, but not in a degree to necessarily imply the influence of passion or prejudice in their finding, the court, in the exercise of a sound discretion, may make the remittitur of the excess the condition of refusing to grant a new trial."
Now, if a court grants a remittitur upon the ground that the amount of the verdict is against the weight of the evidence and, without the consent of the one who secured the verdict, enters a judgment in the reduced amount, that constitutes a substitution of the finding of the court for that of the jury and is erroneous. However, where the court makes the acceptance of the remittitur a condition to not granting a new trial upon the weight of the evidence, such action has been uniformly held to be a proper exercise of its function by a court and not a substitution of the court's finding for that of the jury.
From what we have said, it follows that, in order to reverse the action of a court in granting a new trial upon the weight of the evidence, it is necessary to show an abuse of discretion upon its part, and we have held that the meaning of the term, "abuse of discretion," in relation to the sustaining of a motion for a new trial implies an unreasonable, arbitrary or unconscionable attitude upon the part of the court. 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.
Assuredly this holding is sound as it relates to the sustaining of a motion for a new trial upon the weight of the evidence.
In the present case, we can not see where the trial court abused its discretion in sustaining the motion for a new trial. It is true that in its entry, after reciting that the verdict was manifestly against the weight of the evidence, there is the additional statement that the defendant's negligence was the sole proximate cause of the collision and plaintiff's injuries. Although such a statement is superfluous, it simply indicates the earnestness of the court's conclusion that upon a review of the evidence there was not sufficient credible evidence to justify the verdict and does not of itself indicate an unreasonable, arbitrary or unconscionable attitude of the court.
It is contended that, because the jury answered an interrogatory to the effect that the headlights on the motor vehicle driven by the plaintiff were not lighted at the time of its collision with the motor vehicle driven by the defendant and because the jury wrote on its verdict form, "We believe that there was negligence on the part of both parties to this accident," the court was foreclosed from reasonably setting the verdict aside. However, what the jury wrote on the verdict form, as quoted above, was entirely superfluous, and where the court finds that the verdict is not sustained by sufficient evidence, it may likewise find the answer to the interrogatory to be against the weight of the evidence.
It is true that under Section 2315.16, Revised Code, a jury, where either party requests it, must specially find upon particular questions of fact, but where the evidence concerning such a fact is such that it must be submitted to the jury, the court may, in its sound discretion, find the jury's answer to an interrogatory on such issue to be against the weight of the evidence, upon the same reasoning as it finds a general verdict to be against such weight.
Since there is no showing in the present case that the trial court showed any unreasonable, arbitrary or unconscionable attitude on its part in sustaining the motion for a new trial, the Court of Appeals was in error in finding an abuse of discretion upon the part of such trial court. Therefore, the judgment of the Court of Appeals is reversed, and the cause is remanded to the Court of Common Pleas for a new trial.
Judgment reversed and cause remanded.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.