46 Ohio St. 2d 539 | Ohio | 1976
Lead Opinion
Before the advent of the Ohio Buies of Civil and Appellate Procedure the case law of this state clearly held that the reversal and vacation of an erroneous verdict for damages required á trial de novo as to all issues in the ease. See Edelstein v. Kidwell (1942), 139 Ohio St. 595; Markota v. East Ohio Gas Co. (1951), 154 Ohio St. 546.
It is the opinion of a majority of this court, however, that App. B. 12 (D), in conjunction with Civ. B. 42(B), authorizes a Court of Appeals to order the retrial of only those issues, claims or defenses the original trial of which resulted in prejudicial error, and to allow issues tried free from error to stand.
App. B. 12(D) vests the court with the necessary authority to order a trial court to exercise its powers under Civ. B. 42(B) to separately try any claim or issue, when such separation is “in furtherance of convenience or to
Accordingly, for the foregoing reasons,- the certified question is answered in the affirmative, and the cause is remanded to the Court, of Appeals with instructions to remand the cause to the Court of Common Pleas for a re-, trial upon only the issue of damages.
Judgment accordingly.
Concurrence Opinion
concurring in part and dissenting in part.
I agree that the cause be remanded. However, I am of the opinion that, in remanding the cause, it should be retried on all issues, on the basis of Markota v. East Ohio Gas Co. (1951), 154 Ohio St. 546, and Edelstein v. Kidwell (1942), 139 Ohio St. 595.
