Chester Park Co. v. Schulte
| Decision Date | 27 March 1929 |
| Docket Number | 21196 |
| Citation | 166 N.E. 186,120 Ohio St. 273 |
| Parties | The Chester Park Co. v. Schulte, Admr. |
| Court | Ohio Supreme Court |
New trial - Verdict in action for unliquidated damages cannot be reduced, when - New trial necessary where excessive verdict rendered under passion or prejudice - Remittitur may be ordered in absence of passion or prejudice - Verdict may be reduced, without consent, only for mathematical error - Court of Appeals may order remittitur, with prevailing party's consent, when - New trial necessary when verdict rendered under passion or prejudice.
In an action for unliquidated damages neither the trial court nor any reviewing court has the power to reduce the verdict of a jury or to render judgment for a lesser amount without the consent of the party in whose favor the verdict was rendered to such reduction.
If a trial court in an action for unliquidated damages finds that the verdict is excessive and that it was rendered under the influence of passion or prejudice, it has no alternative except to set it aside and grant a new trial.
If a verdict in an action for unliquidated damages is, in the opinion of the trial court, excessive, but not appearing to be influenced by passion or prejudice, the court may with the assent of plaintiff reduce the verdict by remittitur to any amount warranted by the evidence.
Neither the trial court nor any reviewing court has power or authority to reduce a verdict on any grounds without the assent of the prevailing party, unless the undisputed testimony shows an error in mathematical calculation.
The Court of Appeals has the same unlimited power and control of verdicts and judgments as the trial court and may weigh the evidence and exercise an independent judgment upon questions of excessive damages and when no passion or prejudice is apparent may modify and affirm the judgment by ordering a remittitur with the consent of the prevailing party.
If the Court of Appeals in an error proceeding in an action for unliquidated damages finds that the verdict was rendered under the influence of passion or prejudice it has no alternative except to reverse and remand for a new trial. (Schendel v. Bradford, Admr., 106 Ohio St. 387, approved and followed.)
The facts are stated in the opinion.
Mr. Bert H. Long, Mr. J. A. Culbertson and Messrs. Pogue, Hoffheimer & Pogue, for plaintiff in error.
Mr. Owen T. Taphorn and Mr. Charles B. Elston, for defendant in error.
This is a wrongful death action. Ralph Schulte, a boy of 16 years, met his death while swimming in an artificial lake in Chester Park in the city of Cincinnati. Suit was brought against the park company, claiming that his death was caused by electrocution when he came in contact with an iron pole maintained in said lake for the purpose of carrying electric wires to light the swimming pool in the night season. The swimming pool is one of the attractions of the park, which is maintained as an amusement resort for profit, and an admission fee is charged persons using the pool. The action was brought under the provisions of Lord Campbell's Act, as set forth in Section 10772, General Code, for the benefit of the next of kin.
The evidence is in conflict as to the cause of his death; it being argued in the court of common pleas and in the Court of Appeals that there was no evidence tending to prove negligence on the part of the park company. A motion to direct a verdict in defendant's favor at the close of plaintiff's testimony was overruled by the court, and the motion was renewed at the close of all the testimony and was again overruled. That question is again earnestly argued in this court.
The voluminous record discloses a mass of conflicting testimony as to the cause of his death. Two weeks prior to his death, while playing ball, he was struck on the head by a pitched ball, and the testimony is in serious conflict as to the extent of the injury from that cause, but the jury might well have believed that it was only a temporary concussion, the effects of which had completely disappeared before the date of his death.
The testimony concerning the alleged electrocution is likewise in serious conflict. There was testimony on behalf of plaintiff that he was a good swimmer, and that there was no indication of physical distress prior to his seizing the pole, and that instantly upon coming in contact with the pole his head was thrown back and his body became rigid, and it required much force to loosen his grasp upon the pole. Other persons, who went to his rescue, felt a tingling sensation which they thought was caused by electric current in the water. There was evidence tending to show electrical burns upon portions of his body. On the other hand, the park company adduced evidence to show that the wires attached to the pole were all properly insulated, that the attachments were likewise properly insulated, and that there was no current in the wires during the daytime; and, generally, the park company sought to prove that it was impossible for the pole to become charged with electrical current. There was further evidence tending to show that the wires connecting the pole with other attachments on the shore of the lake were sometimes swayed by the wind and became crossed, and that the insulation was not perfect. There was much expert testimony of physicians, each adducing separate theories of the causes of death. While the evidence was seriously in conflict, there was evidence of a substantial nature upon which a jury could properly render a verdict in plaintiff's favor. The trial court was of the opinion that there was some evidence to submit to the jury. The jury rendered its verdict in plaintiff's favor. The trial court refused to grant a new trial on the weight of the evidence. The Court of Appeals, on the review of the weight of the evidence, did not grant a new trial. This court is required to examine the record in view of the claim that there is no evidence tending to support the allegations of the petition and therefore no evidence to support the verdict itself, and upon such examination this court is of the opinion that there is conflicting evidence which was properly submitted to the jury, and, inasmuch as this court will not weigh the evidence, that feature of the case presents no ground for reversal.
There is another and more important question presented by this record. In the petition in error filed in this court, among many assignments of error, two grounds are stressed: First, "the damages assessed in said verdict are excessive, appearing to have been given under the influence of passion and prejudice"; second, "the said verdict and judgment is not sustained by sufficient evidence." The same assignments of error are found in the petition in error filed in the Court of Appeals, and also in the motion for new trial after rendition of verdict and before entry of judgment. The verdict rendered by the jury was for $20,000. In overruling the motion for new trial, the court made the following statement in an opinion:
In the entry overruling the motion for new trial, we find the following:
"It appearing to the court that the plaintiff and his counsel have agreed to a remittitur of five thousand dollars ($5,000.00) in accordance with the opinion of the court on defendant's motion for a new trial, the court finds that said motion is not well taken."
The Court of Appeals, in affirming the judgment, stated in its opinion:
In the journal entry in that court it is stated:
The subject of excessive verdicts and of remittitur of the excess with the consent of the judgment creditor is one which has been before the courts of Ohio during the entire history of the jurisprudence of the state. The subject was discussed and definite principles laid down before any statute had been enacted to govern the same. In Simpson v. Pitman, 13 Ohio 365, it was held that, in an action for slander, a new trial will not be granted on the ground of excessive damages unless the amount be so large as to evince prejudice, partiality, or corruption in the jury. That principle was so declared upon the authority of many cases cited in the opinion. The...
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