Summary
In Hanna, the Ohio Supreme Court ruled that in a jury case, an appellate court may not enter a final judgment based upon the weight of the evidence.
Summary of this case from Walker v. HollandOpinion
No. 73-684
Decided July 3, 1974.
Appeal — Trial to jury — Court of Appeals — Reversal — App. R. 12(D) — Cause to be remanded for new trial, when.
APPEAL from the Court of Appeals for Defiance County.
This case arises out of a motor vehicle accident on or about August 6, 1971, involving an automobile operated by the defendant, Violet J. Wagner, and a truck operated by plaintiff, Louis O. Hanna, Jr. Plaintiff instituted an action in the Court of Common Pleas by the filing of a complaint alleging negligent operation by defendant, and bodily injury and property damage as a result thereof. The issues were joined with the filing of defendant's answer containing a general denial and an allegation of contributory negligence on the part of plaintiff. The cause culminated in a two-day trial to a jury of eight, all of whom returned a general verdict for the defendant.
A motion for new trial was filed by plaintiff on the sole ground that the "judgment is not sustained by the weight of the evidence." The court overruled the motion.
Plaintiff appealed from "the final judgment entry in this action overruling a motion for a new trial" to the Court of Appeals, assigning as error:
1. That the verdict of the jury was against the manifest weight of the evidence and contrary to law.
2. That the trial court erred in overruling plaintiff-appellant's motion for a new trial.
Defendant filed a brief, treating "both alleged assignments of error as one for purposes of argument."
The Court of Appeals' judgment entry includes the following pertinent data:
"Upon due consideration thereof, the court finds error prejudicial to the plaintiff, appellant herein, in that the verdict and judgment of the Court of Common Pleas, Defiance County, Ohio, are not sustained by the evidence and are contrary to law. It is therefore ordered, adjudged and decreed as follows:
"1. That the judgment of the Court of Common Pleas, Defiance County, Ohio, is hereby reversed and vacated, and this court, rendering the judgment that the Court of Common Pleas, Defiance County, Ohio, should have rendered, hereby renders final judgment for the plaintiff and against the defendant on the issue of liability.
"2. That on the issue of damages this cause is hereby remanded to the Court of Common Pleas, Defiance County, Ohio, for further proceedings as provided by law."
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Weaner, Hutchinson, Zimmerman Bacon and Mr. John E. Zimmerman, for appellant.
Messrs. Ryan Borland and Mr. James S. Borland, for appellee.
Appellant and appellee argue the applicability of Civ. R. 50 and 59. We fail to see any relevancy of those rules under the present posture of this case. See Civ. R. 1(C)(1).
We are of the opinion that the resolution of the matter before this court lies in App. R. 12, which has no counterpart rule in the Federal Rules of Appellate Procedure. Appellee in support of the position taken by the Court of Appeals cites App. R. 12(A). Although this rule has application in many situations, it has none here since the appeal taken was from the order of the trial court overruling the motion for a new trial. We find the appropriate paragraph under App. R. 12 to be (D), which reads as follows:
"In all other cases where the Court of Appeals finds error prejudicial to the appellant, the judgment or final order of the trial court shall be reversed and the cause remanded to the trial court for further proceedings."
This rule covers "all other cases," i. e., cases other than those covered in App. R. 12(B). "All other cases" also includes reversals based upon the manifest weight of the evidence when the jury was the trier of the facts, as here. App R. 12(D) makes no provision for the exercise of weighing the evidence and rendering a judgment or final order, as permitted by App. R. 12(C) where the court is the trier of the facts.
Koykka, Ohio Appellate Process 39, Section 4-19(b), deftly phrases appellate procedure in a jury case, as follows:
"In a jury case the Court of Appeals:
"* * *
"(b) May not enter final judgment on the weight of the evidence but must remand the cause for a new trial."
It is obvious that to do otherwise would be the denial of the fundamental right to a jury trial.
The judgment of the Court of Appeals is reversed, and the cause is remanded to that court for compliance with the provisions of App. R. 12(D).
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.