
    The Aetna Casualty & Surety Co., Appellant, v. Niemiec, Admx., et al., Appellees, et al.
    (No. 36659
    Decided March 15, 1961.)
    
      
      Messrs. Kinder, Kinder dt Kinder, for appellant.
    
      Messrs. Thornburg & Thornburg, for appellees.
   Weygandt, C. J.

A study of the record in this case discloses several reasons why a second trial is necessary.

The simplest and most obvious reason is the controlling fact that the jury failed to discharge its duty to return a verdict as required by law.

Before the trial judge delivered his charge to the jury, the five interrogatories were submitted with a request that the jury be instructed to answer them. The trial judge complied with this request. Instead of answering the interrogatories, the jury merely wrote the words, “Don’t know,” after each question.

Amended Section 2315.16, Revised Code, reads as follows:

“When either party requests it, the court shall instruct the jurors, if they render a general or special verdict, specially to find upon particular material allegations contained in the pleadings controverted by an adverse party, and submitted by the court in writing, to the jury, and shall direct the jury to return a written finding thereon. The verdict and finding must be entered on the journal and filed with the clerk.”

That the unambiguous requirements of this statute are mandatory is beyond cavil — mandatory as to both the court and the jury. The trial judge recognized this fact as to himself by receiving the five interrogatories and instructing the jury to answer them. However, he subsequently accepted the jury’s general verdict and also the interrogatories which were left unanswered by the jury except by the words, “Don’t know,” written after each question, all of which related to the important issue of contributory negligence.

Both the trial judge and the Court of Appeals held that the interrogatories were not answered by the jury in conformity with the mandatory requirements of the statute. One indication of the correctness of this view is the provision that “the verdict and finding must be entered on the journal and filed with the clerk.” And that the answering of the interrogatories is even more important than the general verdict is shown by the requirement of Section 2315.17, Revised Code, that “when a special finding under Section 2315.16 of the Revised Code is inconsistent with the verdict, the former shall control the latter, and the court may give judgment accordingly.”

The function of a jury is to decide the questions of fact. Until this has been accomplished the trial has not been completed and the case must be retried. The general rule has been summarized as follows in 39 Ohio Jurisprudence, 1172, Section 439:

“The answer or finding of the jury in response to the interrogatories submitted should, of course, be definite and certain, either in the affirmative or in the negative. It is not sufficient for the jury, in answer to interrogatories, to state that they do not know regarding the facts inquired about. It is their duty to make direct answers, whether the evidence is conflicting or not.”

The plaintiff cites but does not discuss the decision of this court in the case of Bloor v. Platt, 78 Ohio St., 46.

However, that case clearly is not controlling or even applicable here. This court did not hold that the answer, “Don’t know,” to the interrogatories there submitted was a compliance with the statutory requirement. The holding was simply that that expression by the jury was “not inconsistent with the general verdict” under the particular circumstances in that ease. In the opinion it was said: “The interrogatories are not as broad as the case. There are other issues in the case besides those involved in these questions, for example, mental capacity, undue influence, fraud, the existence of the will unrevoked at and after the death of the testatrix and its loss, any one of which, if established in favor of the plaintiff’s contention would set aside the probate of the will and justify the verdict. Hence, if we give to the answers by the jury the utmost possible effect, and assume that they found that the will was properly signed and witnessed, there were still other grounds upon which the jury might have been, and doubtless was, satisfied that this paper was not the last will and testament of Charlotte Spice.”

Under the circumstances in the instant case, the trial judge obviously was correct in ordering a new trial, and the judgment must be affirmed.

The plaintiff complains that the defendant’s motion for a new trial was not seasonably filed. One difficulty with this contention is. that, with or without a motion for a new trial, a new trial was necessary since the first trial never was completed.

Judgment affirmed.

Zimmerman, Matthias, Bell and Herbert, JJ., concur.

Taft and O’Neill, J.J., concur in the judgment.

Taft, J.,

concurring. There are two reasons why I cannot concur in paragraphs two, three and four of the syllabus or in the majority opinion, which is based upon the conclusions that a “don’t know” answer by a jury to an interrogatory is not an answer thereto and that, where a jury gives such “don’t know” answers to interrogatories, there must be a mistrial notwithstanding a general verdict of such jury. These two reasons are:

(1) The majority opinion ignores the contention of plaintiff appellant that the defendant appellees, by permitting the jury to be discharged without requesting that it be required to answer interrogatories, waived any error predicated upon a failure to answer interrogatories. See Leach, Admx., v. Nanna (1955), 100 Ohio App., 26, 135 N. E. (2d), 451, which is cited and quoted from extensively in plaintiff appellant’s brief and which is distinguished in defendant appellees’ brief only on the ground that the interrogatories in the Leach case “were not answered * * * in any manner” instead of in some manner as in the instant case. See State v. Glaros (1960), 170 Ohio St., 471, 166 N. E. (2d), 379, and especially paragraph one of the syllabus thereof.

(2) The unanimous decision of this court and paragraph two of the syllabus in Bloor v. Platt (1908), 78 Ohio St., 46, 84 N. E., 604 (reinstating judgment on general verdict although jury gave “don’t know” answers to special interrogatories), appear to he directly contra to paragraph four and possibly to paragraphs two and three of the syllabus in this case and to the portions of the majority opinion purporting to give reasons for the judgment of affirmance.

The trial court in the instant ease granted defendants’ motion for new trial on the sole ground that “the verdict is not sustained by sufficient evidence.” The principal contention of plaintiff appellant is that the trial court could not do this because that motion for new trial was not filed “within 10 days after the journal entry of a final order, judgment or decree * * * approved by the trial court in writing and filed with the clerk of the court for journalization” as required by Section 2321.19, Revised Code.

The jury had returned its verdict for plaintiff and been discharged on June 9, 1958; and defendants had filed their motion for new trial on June 10. However, the trial court did not approve in writing and file with the clerk for journalization its journal entry of judgment on the verdict until June 20.

In my opinion, Section 2321.19, Revised Code, as its words indicate, merely specifies a time within which a motion for new trial must be filed, i. e., within 10 days after the judgment is. rendered. That 10 days did not expire in the instant case before June 30, ten days after the judgment of June 20. Having been filed on June 10, the motion for new trial in the instant case had been filed “within” the time specified in the statute.

The statute contemplates an “application [or motion] for a new trial.” No reason is apparent as to why such an application or motion cannot be made at any time after the trial has been completed. Certainly, the trial is completed when the jury has rendered its verdict and been discharged.

It follows that a motion for new trial, filed after the verdict and discharge of the jury and hence after the trial, should not be regarded as ineffective merely because it is filed before the judgment on the verdict.

As the trial judge pointed out, “the motion was on file at all times * * * it was a continuing motion for a new trial and everything seems to be regular except the manual act of refiling the same” after the journal entry of the judgment.

There is no inconsistency between this conclusion and the recent holding of this court (in which I did not concur) in Cohen v. Karavasales (1960), 171 Ohio St., 16, 167 N. E. (2d), 768. That case held that a notice of appeal from a final order of a Common Pleas Court could not be effective if filed before the court had made that final order. It is technically arguable that such conclusion was required by Section 2505.05, Revised Code, stating that “the notice of appeal * * * shall designate the order, judgment, or decree appealed from.” Until that order, judgment or decree has been made, it would be difficult to “designate” it as the statute requires. However, the fact that a judgment has not been rendered on a verdict that ended a trial obviously does not prevent an application, motion or other request for a new trial.

Therefore, I concur in the judgment because I am of the opinion that the trial court was authorized to rule on the motion for a new trial.

0’Neill, J., concurs in the foregoing concurring opinion. 
      
      Three lines after the quotation from Ohio Jurisprudence set forth in the majority opinion, it is stated:
      “An indefinite finding, ‘Can’t answer,’ etc., to an interrogatory is in legal effect a denial of the existence of the facts embraced in the interrogatory and operates against the party whose case needs their support.” (In the instant case against defendant since admittedly all five interrogatories related only to the issue of contributory negligence.)
      See also paragraph two of syllabus of Noseda v. Delmul (1931), 123 Ohio St., 647, 176 N. E., 571, 76 A. L. R., 1133 (“* * * special yerdict ♦ * ♦ not invalid because * ♦ * not * * * finding * * * on all ♦ * * issues. * ♦ * issues * * * not determined ♦ * * regarded as not proved by ♦ * * party which has * * ♦ burden of proof upon those issues”).
     