“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
Herbert, J.,
concurring. In my opinion, this court should not foreclose the possibility that a trial judge, by his actions of record subsequent to the verdict, can so taint the exercise of his discretion that his view of the credibility of the witnesses and his granting of a new trial upon the weight of the evidence are not entitled to the near “carte blanche” acceptance by a reviewing court which appears to emerge from the majority opinion.
The judgment of the Court of Appeals in this case should be affirmed because a prejudicially erroneous instruction was given to the jury. Myers v. Lawson Milk Co. (1968), 14 Ohio St. 2d 111 , 236 N. E. 2d 542 ; Bahm v. Pittsburgh & Lake Erie Rd. Co. (1966), 6 Ohio St. 2d 192 , 217 N. E. 2d 217 ; Mills v. Pennsylvania N. Y. C. Transp. Co. (1968), 16 Ohio St. 2d 97, 104 , 243 N. E. 2d 99 , footnote 1. Cf. Schweinfurth v. C., C., C. & St. L. Ry. Co. (1899), 60 Ohio St. 215 , 54 N. E. 89 , and Wellston Coal Co. v. Smith (1901), 65 Ohio St. 70 , 80, 61 N. E. 143 .