Opinion
No. 6660
Decided May 20, 1946.
Judgments — Motion for, on special verdict — Court without power to grant, when — Motion for new trial granted — Answers to special interrogatories contradictory — Appeal — Special charge not considered, when — Not made a part of record.
1. Where it appears that the court granted a new trial for error in giving a special charge but the special charge was not made a part of the record, the appellate court cannot determine to what extent such charge may have affected the finding of the jury in answer to a special interrogatory.
2. Where the answers to two special interrogatories are contradictory, no judgment can be based on either.
3. Where a motion for new trial is granted, the court has no power to grant a motion for judgment on a special verdict. It is only where the motion for new trial is overruled that the court has such power.
APPEAL: Court of Appeals for Hamilton county.
Messrs. Graydon, Head Ritchey and Mr. John W. Warrington, for appellee.
Mr. Fred L. Hoffman and Mr. Joseph D. Martin, for appellant.
This is an action to recover damages for injuries resulting from a collision between two automobiles. The defendant filed a cross-petition in the action. Each party attributed the collision to the negligence of the other.
The jury returned a general verdict for the plaintiff and answered several special interrogatories, one of which was: "Was the defendant guilty of contributory negligence?" To such interrogatory an affirmative answer was given. Another interrogatory elicited the answer that the collision did not result proximately from the negligence of both plaintiff and defendant.
The defendant filed a motion for judgment on the answer to the first interrogatory, claiming that contributory negligence imports negligence by the plaintiff, and also filed a motion to set aside the general verdict and for a new trial.
The court overruled the motion for judgment and granted the motion for a new trial "for the reason that the court was in error in submitting at the request of plaintiff special charge No. 3A to the jury."
This appeal is by the defendant from the order overruling his motion for judgment.
There is no bill of exceptions and, of course, we are not advised as to the content of special charge No. 3A, for error in giving which the new trial was awarded. For this reason, this court cannot say that the charge was such as to affect the validity of the answer to the interrogatory as to whether the defendant was guilty of contributory negligence. Furthermore, the answer to the other interrogatory, that the collision did not occur by reason of the negligence of both, is contradictory of and neutralizes the answer to the first interrogatory and would prevent the court from basing a judgment upon it.
Counsel have cited cases where special verdicts have been returned. Those cases are inapplicable. A general verdict was returned in this case. However, the same result would follow. In Globe Indemnity Co. v. Schmitt, 76 Ohio App. 35, 63 N.E.2d 169, this court pointed out that even where a special verdict alone is returned and a motion for a new trial is filed, the court has no jurisdiction to enter a judgment on such special verdict unless and until the court has overruled the motion for a new trial, and where the motion for new trial was granted, the power to enter judgment did not exist.
On this record, prejudicial error does not affirmatively appear.
For these reasons, the order of the trial court, overruling the motion for judgment, is affirmed.
Order affirmed.
HILDEBRANT, P.J., MATTHEWS and ROSS, JJ., concur in the syllabus, opinion and judgment.