Decided December 24, 1940.
Appeal — Granting motion for new trial not final order, when — Abuse of discretion connotes more than error of law or of judgment.
1. The granting of a motion for a new trial is not such a final order as may be reviewed on appeal, unless it clearly appears that the court granting such motion abused its discretion in so doing.
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.
APPEAL from the Court of Appeals of Knox county.
This case originated in the Court of Common Pleas of Knox county and was tried on the petition of the plaintiff, the answers and cross-petition of the defendants, and replies thereto. It was a tort action in which damages were sought for injuries occurring when two automobiles collided.
Upon voir dire examination each prospective juror was asked whether he or any of his relatives by blood or marriage had been involved in any kind of accident, and whether any claim for damages had been made by reason of any such accident. The question was met by a negative response or silence.
Trial was had and a verdict returned in favor of the defendant on the petition and in favor of the plaintiff on the cross-petition, ten jurors signing.
Subsequent to the verdict, an investigation was conducted by assiduous counsel for the plaintiff and it was discovered that three of the jurors or their relatives had had automobile accidents, and that another had seen one of the automobiles concerned in the present controversy soon after the collision, but did not connect it with the case until photographs of the vehicle were introduced in evidence.
The depositions of these four jurors were taken and presented to the court in support of the plaintiff's motion for a new trial.
The automobile accident in the experience of one of the jurors consisted of slipping on an icy road, and the daughter of another lost control of her car on one occasion. As regards the third juror, the situation was more serious. His wife received a fractured pelvis in an accident involving his automobile, in which she was riding, and another motor car. Settlement was made for this injury, without litigation.
These jurors deposed that they did not comprehend the full implication of the question. Two of them thought it had reference to claims for damage concerning accidents where there were colliding automobiles, and the third — the one whose wife was hurt — said he understood the question to contemplate the bringing of a lawsuit in connection with an accident. All stated they were in no way influenced in the rendition of the verdict by the occurrences referred to.
Finally, the judge who had the motion for a new trial under advisement granted it. His action was based largely on the decision of the Court of Appeals of Cuyahoga county in the case of Cleveland Ry. Co. v. Myers, 50 Ohio App. 224, 197 N.E. 803, and on the decision of the Court of Appeals of Summit county in the case of Kerr v. B. F. Goodrich Co. (1936), wherein the holdings were that the losing party should have been granted a new trial because a juror or jurors upon voir dire examination had failed to make disclosure of material facts concerning which specific inquiry had been made.
An appeal from the ruling granting a new trial was taken by the defendants herein to the Court of Appeals, on the theory that such order constituted a gross abuse of discretion and was therefore a final order reviewable on appeal. The appellate court agreed, holding the lower court to have "committed a gross abuse of discretion in granting a new trial." There was a remand of the cause to the court of first instance, with instructions to enter judgment upon the verdict for the defendant.
The case is here on an order of certification following allowance of the plaintiff's motion therefor.
Messrs. Harrison Marshman, for appellant.
Mr. L. Tate Cromley, for appellees.
There was apparently no studied or deliberate design on the part of the jurors complained of to respond falsely to the question asked, and their accident experience was not a factor entering into their deliberations and verdict. In the mishaps described by two of the jurors, no other motorists were implicated. As to the third juror, whose wife was injured, any predilections he might have had would have been favorable to the plaintiff, and he so stated in his deposition.
We are in agreement with many of the things said by the Court of Appeals in its opinion. The orderly and prompt administration of justice is not served when motions for new trials are granted upon inconsequential or insubstantial bases. And while parties are entitled to fair trials, attempts to impeach verdicts in the manner pursued here should be examined with care and treated with discernment.
However, the granting or refusing of a motion for a new trial rests largely in the sound discretion of the trial court, and it has often been held by the courts of this state that the setting aside of a general verdict and the granting of a motion for a new trial is not such a final order as may be reviewed, unless it clearly appears that the trial court abused its discretion. Hoffman v. Knollman, 135 Ohio St. 170, 183, 20 N.E.2d 221, 227; 2 Ohio Jurisprudence, 728, Section 651.
The meaning of the term "abuse of discretion" in relation to the present controversy connotes something more than an error of law or of judgment. Black's Law Dictionary (2 Ed.), 11. Such term has been defined as "a view or action 'that no conscientious judge, acting intelligently, could honestly have taken.' " Long v. George, 296 Mass. 574, 579, 7 N.E.2d 149, 151.
Even under a less severe definition ( State v. Ferranto, 112 Ohio St. 667, 676, 148 N.E. 362, 364) there is nothing here to indicate that the judge of the Common Pleas Court was motivated by any unreasonable, improper or arbitrary consideration. He thought he was following opinions in which Courts of Appeals had announced that the failure of a juror to disclose a material matter on his voir dire examination required the granting of a new trial at the instance of the complaining party.
Our conclusion is that there was no final order properly reviewable by the Court of Appeals. Consequently, its judgment is reversed and the cause remanded to the Court of Common Pleas for further proceedings.
Judgment reversed and cause remanded.
WEYGANDT, C.J., DAY, WILLIAMS, MATTHIAS and HART, JJ., concur.
I am of the opinion that the judgment of the Court of Appeals should be affirmed, because the trial court committed a gross abuse of its discretion in sustaining the motion for a new trial and in relying upon depositions of jurors respecting not only their voir dire examinations but in respect also of their jury-room deliberations.
No foundation by evidence aliunde was laid for the introduction of such depositions. Nothing in the depositions showed any prejudice to the plaintiff. The admission of such depositions was arbitrary.
The voir dire examination of the jurors was not reported at the trial. At the hearing by another judge, on the motion for a new trial, some general statements of some of the questions were made and acquiesced in. However, the jurors whose depositions were taken do not agree fully with the statements of the questions by counsel, and each of the jurors says under oath in substance that he understood the question pertaining to prior accidents was whether or not he or any relative had been involved in any accident resulting in litigation. Taking the depositions at full face value, no prejudice to the plaintiff was shown.
There is no clear and convicing proof that any juror withheld any information on the voir dire examination. Nothing was disclosed by the depositions which showed any grounds for the sustaining of a challenge for cause or suspicion of prejudice.
I agree with the statement contained in the first memorandum opinion of the Court of Appeals, to wit: "We have carefully examined these affidavits and depositions, and from an examination of the record, we find no outside testimony. We are of the opinion that there is nothing in these affidavits or depositions to show that any of the jurors was partial, biased, or prejudiced to the extent that would warrant a removal of any one of the jurors from the panel."
I am unable to find in this record any evidence of misconduct of the jury, but I do find a gross abuse of discretion in granting the motion for a new trial. See, inter alia, Schwindt v. Graeff, 109 Ohio St. 404, 142 N.E. 736; Lund v. Kline, 133 Ohio St. 317, 13 N.E.2d 575; and Muskingum Watershed Conservancy Dist. v. Funk, 134 Ohio St. 302, 306, 16 N.E.2d 454.