“where a specific action, ruling or order of the court is required as a matter of law, involving no discretion, that test of ‘abuse of discretion’ should have no application”
How later courts described this case
- “where a specific action, ruling or order of the court is required as a matter of law, involving no discretion, that test of ‘abuse of discretion’ should have no application”
- “The concept of ‘abuse of discretion’ as the basis for determining ‘error’ of the trial court connotes the right to exercise a sound discretion.”
- “[A]n abuse-of-discretion standard implies that trial courts have discretion to abuse.”
Written by the judges who cited it.
The opinion
Leach, J.
The ultimate question presented for determination by this court is whether the trial court erred in sustaining defendant’s motion for a new trial.
In approaching the solution to this question we are confronted, first, with the question of whether our holding in Price v. McCoy Sales & Service (1965), 2 Ohio St. 2d 131 (that the granting of a motion for new trial is a “final appealable order”), overruled, modified or in any way affected our holding in Poske v. Mergl, supra ( 169 Ohio St. *87 70 ) (that the granting of not more than one new trial on the basis of insufficient credible evidence rests solely in the “sound discretion” of the trial court and “is not reviewable unless there has been an abuse of that discretion”).
Prior to Price , it generally was held that the granting of a motion for new trial was not a “final order,” subject to appeal to the Courts of Appeals, within the purview of Section 6 of Article IV of the Ohio Constitution. Hoffman v. Knollman (1939), 135 Ohio St. 170 ; Green v. Acacia Mutual Life Ins. Co. (1951), 156 Ohio St. 1 . But see Youngstown Municipal Ry. Co. v. Youngstown (1946), 147 Ohio St. 221 . During such time, however, this court recognized certain exceptions to the general rule. Many of the cases involving these exceptions were discussed by Hart, J., in his opinion in Hoffman v. Knollman (1939), 135 Ohio St. 170, 184-186 . Among such exceptions were the holdings that where there was an “abuse of discretion” by the trial court in granting a motion for new trial, the action of the court was “ reviewable. ” Dean v. King & Co. (1871), 22 Ohio St. 118 ; Smith v. Bailey (1874), 26 Ohio St. 1 ; Wagner v. Long (1937), 133 Ohio St. 41 .
In Steiner v. Custer (1940), 137 Ohio St. 448 , this court held, in paragraph two of the syllabus:
“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.”
Paragraph two of the syllabus of the Steiner case was approved and followed in paragraph two of the syllabus of Klever v. Reid Bros. Express (1951), 154 Ohio St. 491 .
The first two paragraphs of the syllabus in Poske v. Mergl, supra ( 169 Ohio St. 70 ), read:
“1. Where the evidence in the trial of a case is such that the case must be submitted to a jury to find for either the plaintiff or defendant, and where the trial court after its review of the evidence on a motion for a new trial is convinced that there is insufficient credible evidence to sustain a judgment upon the verdict of the jury, such court *88 may, in its discretion, grant not more than one new trial for that reason.
“2. Such action on the part of the court rests solely within its sound discretion, and it is not reviewable unless there has been an abuse of that discretion.”
Those holdings in the Poske case were applied and followed in opinions by the court in Thompson v. Titus (1959), 169 Ohio St. 203 , and Berry v. Roy (1961), 172 Ohio St. 422 .
We come now to Price v. McCoy Sales & Service, supra ( 2 Ohio St. 2d 131 ). It is important to note that Price did not involve a situation where a new trial had been granted on the weight or sufficiency of the evidence, or on the basis of an erroneous charge to the jury. In that case, there were two defendants, McCoy and Chase. The court instructed the jury that Chase was negligent as a matter of law, but left to the jury the determination of whether the negligence of Chase was a proximate cause of the accident. The jury returned its verdict only against McCoy. The motion for new trial, which was sustained by the trial court, was not filed by plaintiff; it was filed by defendant McCoy, who claimed that the court erred in not instructing the jury as a matter of law that defendant Chase’s negligence was a proximate cause of plaintiff’s damages. No claim was made in that motion of any error as to the judgment obtained by plaintiff against McCoy.
In Price , the error of the trial court was one of laio, i. e., in granting a new trial in violation of the legal principle that “a party who is severally liable for the whole damage may not complain of the good fortune of a code-fendant who is not held liable.”
The majority opinion in Price made no reference, direct or indirect, to the question of what criteria or yardstick is to be employed by a trial court in granting a new trial on the weight or sufficiency of the evidence, or in granting a new trial on any other basis which involves the exercise of a sound discretion; nor was reference made to the question of what criteria should be employed by an appellate court in reviewing the order of the trial court granting a new trial where the exercise of discretion was involved.