Burchfield v. Omar, Inc.Burchfield v. Omar, Inc.
OPINION
This is а law appeal from the judgment of the Common Pleas Court sustaining the mоtion of the defendant, Omar Bakery, for a new trial on the following grounds:
(1) Exсessive damages appearing to have been given under the influence of passion and prejudice.
(2) That the final order, judgment or decree is not sustained by sufficient evidence and is contrary to law.
The action was one for damages arising out of the death of an eighteen month old female child caused by a bakery truck of the defendant, Omar Bakery, while backing out of a private driveway. A verdict was rеturned in favor of the plaintiff in the sum of $20,000.00.
The first question for consideration is whether the order sustaining the motion for a new trial is a final order since а motion to dismiss has been filed by defendant-appellee. The latеst pronouncement on this question by our Supreme Court is found in the case of Green v. Acacia Mutual Life Insurance Co., 158 Oh St 5, which holds that it is not such unless the Court abused its discretion in so doing. The meaning of the term “abuse of discretion” 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 actiоn ‘that no conscientious judge, acting intelligently, could honestly have taken.’ ” Long v. George,
The term is defined in the case of Steiner v. Custer, 137 Oh St 448, second paragraph 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 unreasonаble, arbitrary or unconscionable attitude on the part of the сourt.”
We have examined the lengthy opinion of the trial court and find that he has carefully analyzed the Ohio authorities with reference tо the amount of compensation that has been allowed in similar сases, and after so doing, he arrived at the conclusion that the damages were excessive and given under the influence of passiоn and prejudice. We have examined the Ohio authorities on the question also and it is our conclusion that the trial judge was not motivated by аny unreasonable, improper or arbitrary consideration.
In the сase of Immel v. Richards, 154 Oh St 53, our Supreme Court recently gave consideration to a similar question. This case involved an award of only $5000.00 for the death of a male child, nine months of age, and coming from a family whоse social status and financial cir
It is also urged that the trial court should have ordered a remittitur if he thought the judgment was excessive, citing the case of Bartlebaugh v. Pennsylvania Railroad Co., 150 Oh St 387. In this case it appears that the appellаnt sought either a remittitur or a reversal in the reviewing court and it was therе held that a remittitur may be ordered if agreed to by the appellеe. We find nothing in the record to indicate that either party requestеd a remittitur in the trial court; hence, it may not be said that failure to so оrder constituted an abuse of discretion. A remittitur may not be requested in this сourt, for as previously stated, this court has no jurisdiction to entertain the appeal.
The motion to dismiss will be sustained.