Summary
In Durbin v. Humphrey Co., 137 Ohio St. 177, 28 N.E.2d 563, the verdict of the jury was for the plaintiff and defendant moved for a new trial and also for judgment notwithstanding the verdict, having also moved for a directed verdict at the conclusion of the evidence, the latter two motions for judgment being overruled by the trial court.
Summary of this case from Marietta v. NicholOpinion
No. 28031
Decided July 3, 1940.
Jury — Voir dire examination — Failure by prospective jurors to disclose facts — Granting new trial as error but not abuse of discretion — Appeal — No final order.
CERTIFIED by the Court of Appeals of Cuyahoga county.
Former facts in this personal injury action appear in the opinion ( Durbin v. Humphrey Co., 133 Ohio St. 367, 14 N.E.2d 5), wherein it was held that a motion for a directed verdict at the conclusion of the plaintiff's evidence should have been overruled by the trial court and the case submitted to the jury.
After trial upon remand a general verdict was returned for the plaintiff and a motion by defendant for new trial was sustained upon the sole ground that three jurors upon voir dire examination "failed to disclose prior accidents and claims." The court accepted as true statements made by the jurors in depositions filed with the motion for new trial.
All jurors upon voir dire were asked similar questions, such as whether they ever had been in an accident, had sued or were sued, had a claim made against them or made a claim of any kind against anyone for personal or property damage whether litigated or settled, including claims against a street railway, a city or the Industrial Commission. No one of the three answered affirmatively to the different questions propounded on that phase of the examination.
One juror in deposition, upon having her recollection refreshed, admitted she had made and settled a claim against a street railway company less than four years before her jury service. In her deposition she testified that it was so trivial she did not "think it was really an accident," having received $25 to cover a doctor bill and repair of a new coat.
A second juror failed to disclose an accident which took place less than a year before the Humphrey trial when an automobile in which she was riding with her husband collided with another, as a result of which her husband paid damages and in which she received a slight bump on the head. She was also in another accident which occurred about eighteen years before the trial, when she was a passenger in an automobile and received an injury to her back which was followed by a miscarriage two months later. She appeared in traffic court, but did not sue or receive damages. She testified she understood the voir dire question to be whether she had or was sued.
A third juror, a year before the trial, while driving an automobile, ran into a parked car and reported the accident to his insurance company which settled the matter.
The plaintiff perfected an appeal to the Court of Appeals on the ground that the granting of the new trial was a gross abuse of discretion.
The defendant appealed from the refusal of the trial court to grant a directed verdict at the close of all the evidence, from the overruling of the motion of defendant for judgment notwithstanding the verdict and from granting a new trial on only one ground and overruling other grounds.
The Court of Appeals affirmed the judgment of the Court of Common Pleas, finding that there was no abuse of discretion in granting a new trial and that there was no error in overruling the motions of defendant for a directed verdict or for judgment non obstante veredicto. The case was certified to this court for review and final determination on the ground of conflict with the judgment of the Court of Appeals of Knox county in Steiner v. Custer, 63 Ohio App. 440, 27 N.E.2d 160.
Messrs. Harrison Marshman, for appellant.
Messrs. McKeehan, Merrick, Arter Stewart and Mr. Thomas V. Koykka, for appellee.
The granting of a motion for new trial for failure by prospective jurors to make disclosures upon facts such as heretofore related may have been erroneous but it did not amount to an abuse of discretion. The granting of a motion for new trial rests in the sound discretion of the trial court (2 Ohio Jurisprudence, 728, Section 651) and does not constitute a final order unless it clearly appears that the trial court has abused its discretion in granting such motion. Hoffman v. Knollman, 135 Ohio St. 170, 20 N.E.2d 221.
No such abuse of discretion appearing in this case, the action of the trial court in granting the motion for new trial did not constitute a final order, and therefore the appeal by plaintiff to the Court of Appeals should have been dismissed.
The judgment of the Court of Appeals is reversed as to plaintiff's appeal.
Judgment reversed.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MATTHIAS and HART, JJ., concur in the judgment of reversal.
As to the appeal of the defendant below, there not being four judges of this court who are of the opinion that the trial court committed error in overruling the motions of the defendant for a directed verdict and for judgment notwithstanding the verdict, the judgment of the Court of Appeals, affirming the judgment of the Court of Common Pleas in that respect, is therefore affirmed.
ZIMMERMAN and WILLIAMS, JJ., concur in the judgment of affirmance.
WEYGANDT, C.J., MATTHIAS and HART, JJ., are of opinion that the judgment of the Court of Appeals should be reversed and final judgment entered for defendant below on its motion for a directed verdict and for judgment non obstante veredicto.
DAY, J., is of opinion that the judgment of the Court of Appeals should be reversed and judgment entered on the verdict for the plaintiff below.