May v. Mauger ( 1964 )

Teoop, J.

Plaintiff, Robert E. May, filed an action in the Court of Common Pleas of Franklin County, which arose out of an automobile accident on August 23, 1960. A collision occurred between a 1958 Lincoln, driven by the plaintiff, moving west on State Route 33, and a 1955 Dodge driven by the defendant Tony Howard Mauger, a minor, going north on Bowen Road, which intersects State Route 33 near the Franklin County line. Mrs. Howard B. Mauger is joined as a party defendant, having signed the application of the minor, Tony Mauger, for a driver’s license. Rather consistently throughout the papers in the case reference is to only one defendant, Tony Mauger, and we shall likewise refer to the one defendant.

The petition of the plaintiff recites several basic facts, but fundamentally the claim is that the defendant suddenly and without warning drove his Dodge into the path of plaintiff’s automobile and that his negligent conduct caused the injuries suffered by the plaintiff and the damage to his Lincoln. Defendant, Tony Mauger, answered. He admitted his driving and the collision but denied any negligence and alleged negligence on the part of the plaintiff.

To further complicate the pleadings picture the defendant filed a cross-petition along with his answer. The cross-petition alleges that the plaintiff swerved his car to the right and struck the Dodge, driven by the defendant, at a point 10 feet north of the intersection of Bowen Road and State Route 33. Defendant summarizes his claim that plaintiff was negligent, and the proximate cause of his injuries, by two specifications of negligence. He says that plaintiff drove at an excessive rate of speed, 70 miles per hour, and failed to keep his vehicle under control.

Appropriate answering pleadings were filed, and the case was properly at issue and ready for trial. A jury was impanelled. Trial was had, and at the close of all of the evidence the court directed a verdict in favor of the plaintiff on the cross-petition of the defendant. The jury was told that the motion was sustained because the defendant was negligent as a matter of law and that the case was before them solely upon the petition of the plaintiff, the answer of the defendant, and the reply of the plaintiff.

The jury returned a verdict for the defendant. An entry following the verdict was filed May 8,1963. Following a recital of formal matters the entry speaks, as follows:

“Now, therefore, it is ordered, adjudged and decreed by the court that the defendant, Tony Mauger, does not recover in the premises on his cross-petition against the plaintiff, Robert May, and the plaintiff, Robert May, does not recover on his petition against the defendant, Tony Mauger.”

Three motions were filed following the court’s entry of May 8, 1963. Defendant, Tony Mauger, made a motion to vacate the judgment entry dismissing his cross-petition and to grant him a new trial. The court overruled the motion.

Simultaneously, the plaintiff made two motions. One was a motion asking the court to vacate the judgment entered in conformity to the verdict of the jury and for judgment in the plaintiff’s favor notwithstanding the verdict. The other motion made by the plaintiff was a request to vacate the judgment and for a new trial.

Plaintiff’s motion for judgment notwithstanding the verdict was sustained by the trial court. The entry indicates that the plaintiff was entitled to the judgment in his favor based upon the evidence adduced even though the jury found otherwise. It was ordered that the case be sent to a jury to ascertain and assess damages. Likewise, the trial court sustained the plaintiff’s motion for a new trial, but only upon the condition that the judgment against the verdict might be reversed.

Defendants, both of them, appealed from the order of the trial court entered June 7,1963, which was the order of the court overruling the motion of the defendant and sustaining the two motions of the plaintiff. The first assignment of error is addressed to the order setting aside the jury’s verdict in favor of the defendant and entering judgment for the plaintiff notwithstanding.

A trial court is authorized under Sections 2323.18 and 2323.181, Revised Code, to enter judgment for a party notwithstanding a contrary finding by a jury. Section 2323.181, Revised Code, also provides, if a motion for a new trial is also sustained, as follows:

“* # * the journal entry shall provide that a new trial shall be had only in the event of a reversal of the judgment on the motion provided for in Section 2323.18 of the Revised Code * * #

At first glance it would appear that the trial court has proceeded properly and according to the provisions of applicable statutes. It is significant that the trial court provided in its order “that the case be sent to a jury to ascertain and assess the damages due plaintiff from defendants. ” It is obvious that the “judgment” or order from which this appeal is taken is not in final appealable form. A final judgment in a negligence action must resolve all the elements involved in such an action. It is necessary to determine that the defendant owed a duty to the plaintiff which was breached by a negligent act of the defendant, the act being the proximate cause of injury to the plaintiff, and, in addition, the plaintiff being free of negligence, the extent of the damage to the person or property of the plaintiff must be ascertained and the amount of the damages to compensate must be determined. The matter of compensation by way of money judgment is missing in the court’s order in the instant case.

Text materials and case law make frequent reference to the common characteristics present in the use of a motion for a directed verdict and in a motion for judgment notwithstanding the verdict. The state of the evidence being the common test for the use of both. (31 Ohio Jurisprudence [2d], 662 Section 209, and McNees v. Cincinnati Street Ry. Co. [1949], 152 Ohio St., 269.)

In the instant case a motion for a directed verdict would have permitted the trial court to have reached the same conclusions as it reached when deciding the motion for judgment notwithstanding the verdict. At the close of all of the evidence, and in response to a motion, the trial court could have instructed the jury as to the negligence of the defendant if it chose. The question of proximate cause and the determination of damages could then have been determined by the jury under appropriate instructions. This procedure would have resolved all of the elements necessary to be determined in a negligence case.

The “judgment” as it now stands is in effect an interlocutory order, analogous to the partial or interlocutory judgment as provided in summary judgment matters under Section 23-11.041, Revised Code. The trial court determined the issue of negligence, and in effect the matter of proximate cause, although there is the genuine issue of damages remaining unresolved. As a practical matter the court is obliged to impanel a jury to which it must submit the case. When all the issues are resolved a judgment of the court, reciting the determination of all of the issues, will be in appealable form.

The first part of the entry upon which this appeal is grounded is at best an interlocutory order and not a final judgment and is not, therefore, appealable. Further, in sustaining plaintiff’s motion for a new trial, the court expressed itself as being in error in its instructions on contributory negligence. If it were in error then that error can only be corrected by granting a new trial and not by sustaining a motion for judgment notwithstanding the verdict.

Furthermore, nothing in the record or proceedings indicates an abuse of discretion on the part of the court in granting a new trial in response to plaintiff’s motion. The second assignment of error raised by the defendant is not, therefore, well taken.

The appeal is dismissed and the cause remanded to the trial court for a new trial.

Appeal dismissed.

Duefy, P. J., and Duepey, J., concur.

(Decided February 18, 1964.)