Price v. McCoy Sales & Service, Inc.

• Decision Date: 05 May 1965
• Docket Number: No. 38494,38494
• Parties: , 31 O.O.2d 229 PRICE, Appellant, v. McCOY SALES & SERVICE, INC., et al., Appellees.
• Court: Ohio Supreme Court

Page 131

2 Ohio St.2d 131

207 N.E.2d 236, 31 O.O.2d 229

PRICE, Appellant, v. McCOY SALES & SERVICE, INC., et al., Appellees.

No. 38494.

Supreme Court of Ohio.

May 5, 1965.

Syllabus by the Court

1. The granting of a motion for a new trial is a final appealable order as provided in Section 2505.02 of the Revised Code. (Green v. Acacia Mutual Life Ins. Co., 156 Ohio St. 1, 100 N.E.2d 211, overruled; Yongstown Municipal Ry. Co. v. City of Youngstown, 147 Ohio St. 221, 70 N.E.2d 649, approved and followed.)

2. The trial court must specify in writing the causes for which a new trial is granted. (Section 2321.17, Revised Code.)

3. Where a jury determines that the independent concurrent negligence of one of two defendants was the proximate cause of the injury complained of, such defendant is not prejudiced by a verdict of the jury finding that the independent concurrent negligence of the other defendant was not a proximate cause of the injury.

James L. Price, plaintiff, appellant herein, brought this action against the McCoy Sales & Service, Inc. (hereinafter referred to as McCoy), and Charles W. Chase, defendants, appellees herein, in the Court of Common Pleas of Huron County to recover damages for personal injuries alleged to have been suffered by Price in a motor vehicle collision on the Ohio Turnpike at about 1:30 a. m. on May 2, 1959.

Price, with a passenger, was driving westerly on the turnpike when the motor of his automobile ceased to function. The car was pushed over on the north berm of the highway, headed west.

In about ten or fifteen minutes, an employee of McCoy, one Sanders, arrived driving a 'wrecker.' He was unable to give any meaningful assistance at the time as he was on his way to anotehr call. However, he did call McCoy's office and reported the position of Price's car and his misfortune. Another McCoy 'tow-truck' arrived at the scene in response to Sanders' call. The driver, David Bundschuh, was inexperienced in this type of work and was in substance undergoing a training course. He determined to hook his truck onto the east end, or rear, of Price's car, execute a U-turn and then proceed westerly with the tow. Bundschuh had never performed this type of operation before. He was required to wait six or seven minutes before the flow of traffic permitted him to begin his proposed U-turn. He knew that this maneuver would block the westbound traffic lanes of the turnpike for more than one minute.

Price, with his passenger, got into his car. Sanders returned from his other call and assisted Bundschuh with the hookup. Prior to moving Price's automobile, the two employees of McCoy tied the steering wheel and the left front door of the automobile.

As McCoy's tow truck had almost crossed the westbound highway going from the north side to the south side, Bundschuh, driver of the tow truck, found that there was no space to clear the south guardrail of the turnpike to complete the U-turn, and that it would be necessary to back up both vehicles in order to execute the turn. At that time, the two vehicles completely blocked the westbound lanes of the turnpike. The tow truck did not have any equipment which would direct light towards approaching traffic when the tow truck was perpendicular to the westbound lane of travel.

A few seconds later, and while the vehicles were still stationary and blocking the entire highway, Bundschuh saw Chase's car approaching from the east. The truck was equipped with warning devices such as fusees and reflectors, but neither of the employees of McCoy displayed such devices on or about the vehicles.

Chase, traveling at a speed of 60 to 65 miles an hour, did not see the standing vehicles until they were illuminated by his headlights. He applied the brakes and slowed the speed of his car, but nevertheless it struck Price's automobile. The collision occurred on the west side or face of a downhill incline.

At the conclusion of the taking of testimony, the court instructed the jury that Chase was guilty of negligence as a matter of law but left the determination of the question of proximate cause to the jury. The jury returned a unanimous verdict in the amount of $10,000 against McCoy alone, there being no finding against Chase. Judgment was entered on the verdict. McCoy's motion for judgment notwithstanding the verdict was overruled.

On June 3, 1963, the trial court sustained McCoy's motion for a new trial, stating, as follows, the reason in its entry, pursuant to the provisions of Section 2321.17 of the Revised Code.

'(1) The final judgment is contrary to law, and the jury, in determining the issues failed to properly apply the law to the facts and came to an unwarranted conclusion in rendering its verdict;

'(2) Error of law occurring at the trial in that the court should have declared defendant Chase's negligence a proximate cause of the injury;

'(3) Reasonable minds could only have concluded that defendant Chase's negligence was a proximate cause of plaintiff's damages;

'(4) Such unreasonable conclusions prejudiced the defendant McCoy Sales & Service, Inc.'

Price perfected his appeal to the Court of Appeals for Huron County, which found that there was no abuse of discretion by the trial court in granting the motion of McCoy for a new trial, held that the granting of the new trial was not a final appealable order and dismissed the appeal.

Allowance of Price's motion for an order to certify the record brings the cause before this court for review.

Sindell, Sindell, Bourne & Markus and Richard M. Markus, Cleveland, for appellant.

Thomas B. Hayes, Sandusky, Merle M. Agin, Wadsworth and Richard D. Dickey, Columbus, for appellees.

HERBERT, Judge.

The question for determination presented by the record in this action may be stated as follows:

Was the order entered by the trial court setting aside the jury verdict and granting the motion for a new trial, filed by McCoy, a final appealable order?

If it was, the judgment of the Court of Appeals should be reversed. If it was not a final appealable order, then the judgment of the Court of Appeals should be affirmed, and the cause remanded to the trial court for a new trial.

It is an understatement to say that this court has experienced considerable difficulty during the past years in relation to the matter of review of an order setting aside a verdict of a jury, vacating a judgment thereon and granting a motion for a new trial without opportunity of appeal from such order. The problem had its origin in the Constitutional Convention of 1912. Prior thereto, appellate jurisdiction had been lodged in the Circuit Court by the General Assembly under its then constitutional authority. In 1912, our present Courts of Appeals were created by amendment to the Constitution (art. 4 § 6) which granted them 'appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify, or reverse the judgments of the courts of common pleas, superior courts and other courts of record within the district as may be provided by law.'

This court, in construing this constitutional grant of power, decided that the Courts of Appeals derived their jurisdiction solely from the Constitution, and that the General Assembly had no power, right or authority to enlarge, limit or change such jurisdiction of the Courts of Appeals.

The General Assembly, in 1937, enacted an amendment to Section 12223-2 of the General Code (now 2505.02, Revised Code), providing that '* * * vacating or setting aside a general verdict of a jury and ordering a new trial, is a final order' and therefore appealable.

This court, in Hoffman v. Knollman (1939), 135 Ohio St. 170, 20 N.E.2d 221, decided that this enactment by the General Assembly was in conflict with Section 6 of Article IV of the Constitution and of no effect. This decision re-established the principle of law previously announced by this court that the granting of a motion for a new trial upon a general verdict of a jury was not a final order and, therefore, was not appealable.

An amendment to Section 6, Article IV of the Constitution, was submitted to the people and adopted by them on November 7, 1944, which, in part, provided:

'The courts of appeals shall have * * * such jurisdiction * * * as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders of boards, commissions, officers, or tribunals, and of courts of record inferior to the courts of appeals within the district * * *.'

It is unnecessary to discuss at length the developments in the differences between the General Assembly and this court in respect to the jurisdiction of the Courts of Appeals. Suffice it to say that following the adoption of the amendment to Section 6, Article IV of the Constitution in 1944 (effective January 1, 1945), the General Assembly enacted legislation of far-reaching importance in respect to its power to change the appellate jurisdiction of the Court of Appeals. Section 11575 of the General Code, now 2321.17, Revised Code, as amended in 1957, provides that the trial court must specify in writing the causes for which a new trial is granted. Section 11578 of the General Code (now 2321.19, Revised Code), Section 11599, General Code (now 2323.15, Revised Code) and Section 12223-2, General Code (now 2505.02, Revised Code) were duly enacted. The latter section having been declared unconstitutional by this court in Hoffman, supra (1939), it was amended by the General Assembly (1947) to read in part:

'* * * 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 retrial * * *.' (Emphasis added.)

Youngstown Municipal Ry. Co. v. City of Youngstown (1946), 147 Ohio St. 221, 70 N.E.2d 649, was the first case in which this court was called upon to construe Section 6 of Article IV of the Constitution, as amended by the people on November 7, 1944. The first paragraph of the...