Klein v. Bendix-Westinghouse Automotive Air Brake Co.

• Decision Date: 06 March 1968
• Docket Number: No. 40834,BENDIX-WESTINGHOUSE,40834
• Parties: , 42 O.O.2d 283 KLEIN, d. b. a. Coin Valet Plaza, Appellee, v.AUTOMOTIVE AIR BRAKE CO., Appellant.
• Court: Ohio Supreme Court

Page 85

13 Ohio St.2d 85

234 N.E.2d 587, 42 O.O.2d 283

KLEIN, d. b. a. Coin Valet Plaza, Appellee, v. BENDIX-WESTINGHOUSE AUTOMOTIVE AIR BRAKE CO., Appellant.

No. 40834.

Supreme Court of Ohio.

March 6, 1968.

Syllabus by the Court

An abuse of discretion by the trial court does not, of itself, render final and hence appealable an otherwise interlocutory order.

Barney Klein, doing business as Coin Valet Plaza, appellee herein, filed a petition in the Court of Common Pleas of Lorain County against the defendant, Bendix-Westinghouse Automotive Air Brake Company, appellant herein, based on a breach of warranty. Plaintiff alleges that he purchased a coin-operated dry cleaning machine which contained defective component parts manufactured by the defendant, and that the defectiveness of these parts rendered the machine worthless.

After the issues were joined, the defendant made a motion that the machine in question be produced by the plaintiff for inspection and testing. The trial court granted this discovery motion, adopting without remonstrance a journal entry prepared by the defendant to establish the manner in which the discovery would be undertaken.

The plaintiff filed a notice of appeal from that order, and the defendant filed in the Court of Appeals a motion to dismiss the appeal on the ground that the order appealed from was not a final order, and therefore was not within the jurisdiction of the Court of Appeals. The Court of Appeals overruled the motion to dismiss, holding that the abuse of discretion, asserted by the plaintiff, rendered the discovery order reviewable.

Upon a hearing, the Court of Appeals reversed the order of the Common Pleas Court, holding that the order, as framed by the trial court, constitutes an abuse of discretion in that it contains no directions limiting the tests and inspections so as to safeguard the interest of the plaintiff in the return of the machine in an unchanged condition.

The cause is now before this court on appeal pursuant to the allowance of a motion to certify the record.

Ignatius B. Trombetta, Cleveland, for appellee.

Hauxhurst, Sharp, Mollison & Gallagher, Cleveland, and James G. Gowan, Lakewood, for appellant.

PAUL W. BROWN, Judge.

The sole question for determination is whether a discovery order of a trial court is subject to immediate appellate review. We hold that it is not.

The appellate jurisdiction of the Courts of Appeal does not extend beyond judgments and final orders. Section 6, Article IV, Ohio Constitution. Since no judgment is involved, a final order is required for the Court of Appeals to have jurisdiction.

The attitude of this court has long been that the definition of final orders is within the judicial province. Hoffman v. Knollman, 135 Ohio St. 170, 20 N.E.2d 221; Price v. McCoy Sales & Service, Inc., 2 Ohio St.2d 131, 207 N.E.2d 236. By constitutional declaration, it is within the legislative province to specify which final orders are appealable. Section 6, Article IV, Ohio Constitution. The case of Youngstown Municipal Ry. Co. v. City of Youngstown, 147 Ohio St. 221, 70 N.E.2d 649, holds that all orders falling within this court's definition of final orders are appealable until the General Assembly acts to modify the jurisdiction of the Courts of Appeal.

Only since Price v. McCoy Sales & Service, Inc., supra, has section 2505.02, Revised Code, been an accurate legislative restatement of this court's definition of a final order. It reads, in part, as follows:

'An order affecting a substantial right in an action which in effect determines the action and prevents a judgment, an order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order vacating or setting aside a judgment and ordering a new trial is a final order which may be reviewed, affirmed, modified, or reversed, with or without trial.'

In the first part of his two-part argument, the plaintiff argues that the discovery order in this case falls within the first category of final orders described above, because a substantial right is affected by which the action is determined. He argues that the return of the machine in a changed or damaged condition, which is a possibility because of the lack of safeguards in the discovery order, would, in effect, 'end the case.'

We agree that the return of the machine in a materially altered condition would confront the plaintiff with a problem of proof as to its condition before and after the inspection. We also agree that the trial court should, upon request by a party against whom a discovery order has been made, limit the order so as to minimize the possibility of such damage to so important an item of evidence. However, we disagree that even the complete destruction of the machine by the defendant would determine the action and prevent a judgment. Both of those elements are required by the particular definition of 'final order,' to which the plaintiff alludes.

Discovery orders have long been recognized as interlocutory. Collins v. Yellow Cab Co., 157 Ohio St. 311, 105 N.E.2d 395; State v. Smith, 135 Ohio St. 292, 20 N.E.2d 718; Steele v. True Temper Corp., Ohio App., 193 N.E.2d 196, 31 O.O.2d 185; Gates v. Big Boy Beverages, 93 Ohio App. 331, 113 N.E.2d 749; Kleybolte v. C. H. & I. R. R. Co., 11 Ohio Dec. 817 (Sup.Ct.1896); annotation, 37 A.L.R.2d 586, 615. We find that the order involved in this case is no exception.

In the second part of his argument, the plaintiff argues as the Court of Appeals held, that even an interlocutory discovery order may be rendered final, and therefore appealable, if...