Whitmer Bros. Funeral Home, Inc. v. Borden Co.

[431] OPINION By GEIGER, J. This matter is before this Court upon á motion of the Borden Company, defendant-appellee, for an order dismissing the appeal filed by the Whitmer Brothers Funeral Home, Inc., plaintiff-appellant. In the Court below an action was brought by the plaintiff to recover damages from the defendant on account of a collision occurring between the ambulance of the plaintiff and the truck of the defendant resulting in damage to the plaintiff’s ambulance. The cause was submitted to a jury which found for the. plaintiff and assessed the plaintiff’s damages in the sum of $1100.00. Defendant moved for a new trial and for judgment notwithstanding the verdict. Thereupon the Court filed what is designated by the appellee as “an opinion” under date of January 24, 1939, to the effect; the motion of defendant for new trial herein is sustained unless both plaintiff and defendant elect to accept a remittitur of the highest amount of damages shown by the evidence for the loss of use of plaintiff’s ambulance in no event less than $200.00, or unless they agree to accept a remittitur for a larger amount. Motion of defendant for judgment notwithstanding the verdict is overruled. Thereupon on the same day plaintiff filed a stipulation agreeing to accept a remittitur of $200.00 of the amount of the verdict of the jury. On the next day, January 25th, the defendant filed a stipulation refusing to accept the remittitur of $200. Thereupon the Court, by its entry of February 8th, sustained the motion for new trial and set aside the verdict of the jury and overruled motion of defendant for judgment nowithst'anding the verdict. The entry recites, “This cause came on to be heard on the motion of defendant for a new trial and for judgment notwithstanding the verdict, and was submitted to the court on briefs and .oral argument, and the court on due consideration thereof, and being fully advised in the premises hereby finds that said motion for a new trial is well taken and hereby sustains same; the motion of defendant for judgment notwithstanding the verdict is not well taken and the court hereby overrules same; exceptions of both plaintiff and defendant are hereby noted.” A deleted bill of exceptions is filed. The only evidence of witnesses that is disclosed is that of a witness for plaintiff and defendant each testifying as to the damage to the ambulanbe. It is stipulated that the so called decision of the court in reference to the $200.00 remittitur, the acceptance by the plaintiff and the refusal to accept by the defendant, are to be incorporated in the bill of exceptions. The real reason for the bill of exceptions is to present to this court the statement of the court below to the effect that unless both plaintiff and defendant elect to accept the remittitur of $200.00 the motion for new trial will be sustained and also to exhibit the stipulation of the respective parties, one to accept the remittitur and the other to reject it. Appellant assigns errors to the effect (1) That the trial court erred in granting a remittitur from the amount of the verdict returned by the jury subject to the acceptance of defendantappellee; (2) That the court erred, after the plaintiff had stipulated to accept the amount of the remittitur froin the verdict,.in granting a new trial. This court in the case of State v Wright, 59 Oh Ap 198. did all that it 'could to sustain the amendment declaring that the sustaining of a motion for new trial is a final order. The Supreme Court in the recent ease of Hoffman v Knollman, 135 Oh St 170 held, [432] . “An order of. a...trial .court setting aside a general, verdict of a jury and granting a new trial is .not a final determination of the rights of the parties and is not therefor a judgment or final order reviewable by. the Court of. Appeals, unless it clearly appears that the trial court has abused its discretion in granting. such order.” This court in the case of State v Wright, supra, had also under examination the question of what is an abuse of discretion to. the effect: “A discretion exercised to an end or purpose not justified and clearly ■ against reason and evidence,-not merely error of judgment, but perversity of will, prejudice; failure of the trial court regularly to pursue its authority, which does not include commission of . errors of law or .mistake in finding of facts; not merely an error in judgment but perversity of will; a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence; a clearly erroneous conclusion and judgment against the . logic and effect of facts presented; * * * While the trial court’s ruling is subject to review on error, the same will not be disturbed unless the abuse of .discretion affirmatively appears. Abuse of discretion will not be presumed, but must appear from the record.” . Apparently the claim of the appellant is that the court abused its discretion by holding that a new trial would be granted unless both plaintiff . and defendant agreed to a remittitur of the amount of the verdict, it being urged that if plaintiff agreed to the remittitur the verdict should have been sustained even though the defendant refused to do so. . One difficulty is that there is no evidence presented by the bill of exceptions upon which the court may have based its decision to require both parties to agree to the remittitur in lieu .of which he would rrant a new trial and no evidence excluding other reasons why the court sustained the motion. We do not feel that, upon the naked statement in the entry granting a new trial that we have anything before us from which we could find that the court’s action was an abuse of discretion. This court has had difficulty in discovering the logic which led the Supreme Court to hold that an order of the court setting aside a general verdict is not a final determination of the rights of the parties because it violates Section 6 of Article IV of the Constitution granting jurisdiction to Courts of Appeal which can not be enlarged or curtailed by legislative action, and then making the exception that if it appears that the trial court has abused its discretion in granting such an order the judgment is reviewable. If the Constitution denies the right to review as a final order the granting of a motion for new trial, it is difficult to understand why the Court should except as not within the prohibition, the case, in which the court has abused its discretion. However, we are bound by the. ruling of the Supreme Court and therefore must conclude if the appellant can show an abuse of discretion in granting the motion that in that event the Constitution shall be suspended. In this view of the matter, we have before us the question whether the Court below abused its discretion by making the granting of a new trial dependent upon the acceptance by both parties of a remittitur. As we have before intimated, there is nothing in the bill of exceptions upon which we may base our judgment as to abuse of discretion except the bare statement that the motion for new trial would be granted unless both parties accepted the remittitur. There may be many other things that led the court to this conclusion which are not revealed to us. As the case stands, the only matter remaining is the question of the appeal from the order of .the court granting a new trial. There is nothing in the assignment of errors about the abuse of discretion, but we assume this is not of importance if it [433] is a matter relied upon and has been proved and appears from the bill of exceptions. Motion to dismiss appeal must therefore be sustained on the ground that there is no final order from which an appeal may be taken and that there is no showing of abuse of discretion. HORNBECK, PJ, and BARNES, J, concur.