O'Day v. Webb

• Decision Date: 22 March 1972
• Docket Number: No. 71-209,71-209
• Parties: , 58 O.O.2d 424 O'DAY, Appellee, v. WEBB, Appellant.
• Court: Ohio Supreme Court

Page 215

29 Ohio St.2d 215

280 N.E.2d 896, 58 O.O.2d 424

O'DAY, Appellee, v. WEBB, Appellant.

No. 71-209.

Supreme Court of Ohio.

March 22, 1972.

Syllabus by the Court

1. When a trail court has specified as the reason for granting a new trial its error in submitting an issue to the jury, the question before the appellate court on review is one of law, not of abuse of discretion; and the appellate court has the duty to decide whether, as a matter of law, the trial court erred in correcting itself by granting a new trial.

2. The fact that a question of law involves a consideration of the facts or the evidence, does not turn it into a question of fact or raise a factual issue; nor does that consideration involve the court in weighing the evidence or passing upon its credibility.

3. A motion for directed verdict or a motion for judgment notwithstanding the verdict does not present factual issues, but a question of law, even though in deciding such a motion, it is necessary to review and consider the evidence.

4. It is the duty of a trial court to submit an essential issue to the jury when there is sufficient evidence relating to that issue to permit reasonable minds to reach different conclusions on that issue, or, conversely, to withhold an essential issue from the jury when there is not sufficient evidence relating to that issue to permit reasonable minds to reach dfferent conclusions on that issue.

Adams, Wolske & Blue, and Mark K. Merkle, Jr., Columbus, for appellee.

Sebastian, Durst & Marsh, and Rick E. Marsh, Columbus, for appellant.

SCHNEIDER, Justice.

The automobile accident giving rise to this case occurred on a privately-owned shopping center parking lot. The situation can best be described by reference to the following diagram:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Defendant was proceeding at about 15 to 20 m. p. h., looking for a place to park. She observed what she thought was a parking space, but which in fact was part of an intersecting taffic lane immediately perpendicular to her direction of travel. She started to head into what she thought was a parking spece and struck the right rear fender of plaintiff's automobile which was traveling from plaintiff's left to right on the intersecting lane. There was no indication of any further damage to plaintiff's automobile.

Defendant admitted that she failed to see, not only plaintiff's vehicle until the impact, but also the word 'STOP' clearly painted in large letters on the pavement at the end of her lane of travel.

Plaintiff's petition alleged negligence on the part of the defendant and sought recovery for personal injuries only. (A companion suit for expenses was filed by plaintiff's husband. It was not tried jointly and is not the subject of this appeal.) Defendant's answer admitted that a collision took place but denied all other matters.

At the close of all the evidence, plaintiff orally moved for a directed verdict 'in regard to the negligence and proximate cause.' (Since the argument on the motion was not recorded, it is not clear if plaintiff's counsel was asking for a directed verdict upon all the issues except damages.) The trial court overruled the motion and submitted the issues of negligence, contributory negligence and proximate cause to the jury which returned a general verdict, untested by interrogatories, for the defendant.

Thereafter, plaintiff moved for a new trial, which the trial court allowed upon the basis that as a matter of law defendant's negligence proximately caused the collision. But, in its written decision, the trial court further concluded that it had properly submitted the issue of contributory negligence to the jury 'since the (sic) reasonable minds might reach different conclusions with regard to' that issue. (The trial judge's memorandum indicates that plaintiff timely objected to the submission of her contributory negligence to the jury. In any event, plaintiff did not cross-appeal the decision on that issue. Nor did the defendant appeal the trial court's conclusion that the 'two-issue' rule did not apply to this case.)

In affirming the trial court, in a written opinion, the Court of Appeals stated, in part:

'Where there is a motion for a new trial, which involves consideration of the evidence, whether or not the motion is bottomed on the particularly phrased premise that the verdict is against the manifest weight of the evidence a duty devolves upon the trial court to review the evidence, weigh it, and pass upon the credibility of the witnesses. This, it is clear from the reading of its decision, the trial court did in the case here for review.

'. . .

'The motion for a new trial presented to the trial court required the exercise of sound discretion. The judgment of the trial court granting a new trial is reversible only upon a showing of abuse of that discretion. . . .'

The court then found no abuse of discretion.

Since this statement is the crux of the appellate court's opinion, we allowed the motion to certify solely for the purpose of correcting a misreading on that court's part, or at best a misapplication to this case, of our decision in Rohde v. Farmer (1970), 23 Ohio St.2d 82, 262 N.E.2d 685.

The immediate question on review of a trial court's ruling allowing a motion for a new trial is not what the 'motion is bottomed on,' but what that court has specified in writing as the cause for which the new trial was allowed pursuant to R.C. § 2321.17, now superseded by Civ.R. 59. In the instant case, the trial judge expressly specified, in effect, that on reconsideration he had 'erred in overruling plaintiff's motion (for a directed verdict) and submitting the issue of defendant's negligence to the jury.'

It is not the law of Ohio that a motion for a new trial involving consideration of the evidence requires the trial court to weigh the evidence and pass upon credibility. As we made clear in the third sentence of the third paragraph of the syllabus in Rohde v. Farmer, supra (23 Ohio St.2d 82, 262 N.E.2d 685), such duty devolves upon the trial court 'in ruling on a motion for a new trial on the basis of a claim that the judgment 'is not sustained by sufficient evience. . . . " That phrase, the court said, at page 91, 262 N.E.2d at page 691 in the opinion, 'is synonomous and interchangeable with the phrase 'against the weight of the evidence,' or a like phrase.'

The trial court having specified as its reason for granting a new trial its error in submitting defendant's negligence to the jury, he question on review before the appellate court was one of law. Thus, the second, ^* not the first, paragraph of the syllabus of Rohde v. Farmer, supra (23 Ohio St.2d 82, 262 N.E.2d 685), applied, and the appellate court was charged with the duty of deciding whether, as a matter of law, the trial court erred in submitting the issue of defendant's negligence to the jury, or in correcting itself by granting a new trial at which that issue, instead of being submitted to the jury (assuming that the same evidence will be adduced), will be resolved against defendant by an instruction for a directed verdict.

Perhaps the confusion which apparently lingers on, even after Rohde v. Farmer, supra (23 Ohio St.2d 82, 262 N.E.2d 685), stems...