STEINER v. CUSTER

Appeal — Granting motion for new trial not final order, when — Abuse of discretion connotes more than error of law or of judgment.

1. The granting of a motion for a new trial is not such a final order as may be reviewed on appeal, unless it clearly appears that the court granting such motion abused its discretion in so doing.

2. The meaning of the term "abuse of discretion" in relation to the granting of a motion for a new trial connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the court.

ZIMMERMAN, J.

There was apparently no studied or deliberate design on the part of the jurors complained of to respond falsely to the question asked, and their accident experience was not a factor entering into their deliberations and verdict. In the mishaps described by two of the jurors, no other motorists were implicated. As to the third juror, whose wife was injured, any predilections he might have had would have been favorable to the plaintiff, and he so stated in his deposition.

We are in agreement with many of the things said by the Court of Appeals in its opinion. The orderly and prompt administration of justice is not served when motions for new trials are granted upon inconsequential or insubstantial bases. And while parties are entitled to fair trials, attempts to impeach verdicts in the manner pursued here should be examined with care and treated with discernment.

However, the granting or refusing of a motion for a new trial rests largely in the sound discretion of the trial court, and it has often been held by the courts of this state that the setting aside of a general verdict and the granting of a motion for a new trial is not such a final order as may be reviewed, unless it clearly appears that the trial court abused its discretion. Hoffman v. Knollman, 135 Ohio St. 170, 183, 20 N.E.2d 221, 227; 2 Ohio Jurisprudence, 728, Section 651.

The meaning of the term "abuse of discretion" in relation to the present controversy connotes something more than an error of law or of judgment. Black's Law Dictionary (2 Ed.), 11. Such term has been defined as "a view or action 'that no conscientious judge, acting intelligently, could honestly have taken.' " Long v. George, 296 Mass. 574, 579, 7 N.E.2d 149, 151.

Even under a less severe definition ( State v. Ferranto, 112 Ohio St. 667, 676, 148 N.E. 362, 364) there is nothing here to indicate that the judge of the Common Pleas Court was motivated by any unreasonable, improper or arbitrary consideration. He thought he was following opinions in which Courts of Appeals had announced that the failure of a juror to disclose a material matter on his voir dire examination required the granting of a new trial at the instance of the complaining party.

Our conclusion is that there was no final order properly reviewable by the Court of Appeals. Consequently, its judgment is reversed and the cause remanded to the Court of Common Pleas for further proceedings.

Judgment reversed and cause remanded.

WEYGANDT, C.J., DAY, WILLIAMS, MATTHIAS and HART, JJ., concur.

TURNER, J., dissenting.

I am of the opinion that the judgment of the Court of Appeals should be affirmed, because the trial court committed a gross abuse of its discretion in sustaining the motion for a new trial and in relying upon depositions of jurors respecting not only their voir dire examinations but in respect also of their jury-room deliberations.

No foundation by evidence aliunde was laid for the introduction of such depositions. Nothing in the depositions showed any prejudice to the plaintiff. The admission of such depositions was arbitrary.

The voir dire examination of the jurors was not reported at the trial. At the hearing by another judge, on the motion for a new trial, some general statements of some of the questions were made and acquiesced in. However, the jurors whose depositions were taken do not agree fully with the statements of the questions by counsel, and each of the jurors says under oath in substance that he understood the question pertaining to prior accidents was whether or not he or any relative had been involved in any accident resulting in litigation. Taking the depositions at full face value, no prejudice to the plaintiff was shown.

There is no clear and convicing proof that any juror withheld any information on the voir dire examination. Nothing was disclosed by the depositions which showed any grounds for the sustaining of a challenge for cause or suspicion of prejudice.

I agree with the statement contained in the first memorandum opinion of the Court of Appeals, to wit: "We have carefully examined these affidavits and depositions, and from an examination of the record, we find no outside testimony. We are of the opinion that there is nothing in these affidavits or depositions to show that any of the jurors was partial, biased, or prejudiced to the extent that would warrant a removal of any one of the jurors from the panel."

I am unable to find in this record any evidence of misconduct of the jury, but I do find a gross abuse of discretion in granting the motion for a new trial. See, inter alia, Schwindt v. Graeff, 109 Ohio St. 404, 142 N.E. 736; Lund v. Kline, 133 Ohio St. 317, 13 N.E.2d 575; and Muskingum Watershed Conservancy Dist. v. Funk, 134 Ohio St. 302, 306, 16 N.E.2d 454.