Alter v. Shearwood

• Citation: 151 N.E. 667,114 Ohio St. 560
• Decision Date: 13 April 1926
• Docket Number: No. 19413.,19413.
• Parties: ALTER v. SHEARWOOD.
• Court: Ohio Supreme Court

114 Ohio St. 560
151 N.E. 667

ALTER
v.
SHEARWOOD.

No. 19413.

Supreme Court of Ohio.

April 13, 1926.

Error to Court of Appeals, Hamilton county.

Action by Robert Shearwood, a minor, etc., against Robert S. Alter. Judgment for plaintiff was affirmed in amount remaining after remittitur by the Court of Appeals (151 N. E. 805), and defendant brings error. Dismissed for want of jurisdiction.-[By Editorial Staff.]

In the trial court the minor secured a verdict and judgment for personal injuries sustained, in the sum of $9,000. The Court of Appeals, finding that the judgment was excessive, with the consent of the plaintiff remitted the sum of $2,000, reduced the judgment to the sum of $7,000, and affirmed the judgment in that amount. This judgment of affirmance was entered on October 15, 1925.

The plaintiff in error thereupon filed his motion to certify the record to the Supreme Court. The motion to certify was overruled by this court on December 22, 1925. On that day plaintiff in error filed in this court his petition in error, presenting an alleged constitutional question arising under section 2, article IV, of the Ohio Constitution, claiming that he had been deprived of his right to trial by jury, and that the proceedings below were in contravention of the due process clause of the United States Constitution.

Syllabus by the Court

In a suit for personal injuries, wherein it is alleged that plaintiff has lost a weekly salary or compensation in a definite amount, and no proof of such amount has been offered on the trial, it is not error for the court to charge that ‘the measure of damages is compensation for the injuries received as shown by the evidence, and in determining this amount, if any, you will take into consideration the nature and extent of his injuries, the effect of these injuries upon his ability to work and earn a living.’

A reviewing court, upon finding a verdict and judgment excessive, may, the plaintiff consenting to remit a part of the judgment, affirm the judgment for the balance. Pendleton St. R. R. Co. v. Rahmann, 22 Ohio St. 446,Schendel v. Bradford, 140 N. E. 155, 106 Ohio St. 387, and Silverglade v. Von Rohr, 140 N. E. 669, 107 Ohio St. 75, approved and followed.

The action of the appellate court, requiring such consent remittitur as a condition for affirmance and of refusing a new trial, neither violates due process nor the provisions of section 5, art. 1, of the Ohio Constitution, authorizing the right of trial by jury.

The procedure of the Court of Appeals, affirming the reduced judgment, does not authorize the filing of a petition in error as a matter of right; nor does it involve any question arising under the state or federal Constitution. In such case a petition in error can only be filed upon an order directing the Court of Appeals to certify its record.

A proceeding may be dismissed by the court at any stage of the case wherein want of jurisdiction of the subject-matter appears.

[Ohio St. 562]Harmon, Colston, Goldsmith & Hoadly, of Cincinnati, for plaintiff in error.

Jones, Shook, Morrissey & Terry, of Cincinnati, for defendant in error.

JONES, J.

Plaintiff in error first attempted to invoke the appellate jurisdiction of this court by filing his motion to certify the record under the provisions of section 2, article IV, of the Ohio Constitution. This court overruled the motion to certify, but on the same day he filed his petition in error as a matter of right, claiming that he had a case ‘involving questions arising under the Constitution of the United States or of this state.’

[1] In order to understand the basis of plaintiff in...