dissenting. I would reverse the court of appeals in all respects. When faced with a general verdict and interrogatory answer which were irreconcilable, the trial court below acted properly and within its sound discretion in sua sponte ordering a new trial. Moreover, the evidence presented at trial does not support a recovery for breach of contract. I must therefore dissent.
As a threshold matter, the court of appeals erroneously, in my opinion, held that appellants had waived any objection that could be made to the verdict by failing to object prior to the court’s discharge of the jury. This case is factually distinguishable from the typical waiver case. The court discharged the jury after affording the parties an opportunity to challenge the jury’s verdict. Then, on its own motion, the court proceeded to consider the consistency of the general verdict and the interrogatory as answered by the jury. The court requested assistance in making this determination, asking each party to brief the issue. Ultimately, the court found the answer to the interrogatory inconsistent with the general verdict and, being unable to reconcile the two, ordered a new trial. Such action was wholly consistent with the discretion granted the court by Civ. R. 49(B). Where the very diet and answer are found to be consistent, the third paragraph of Civ. R. 49(B) mandates that the court shall enter the appropriate judgment pursuant to Civ. R. 58.2 Where, as here, the verdict and answer are inconsistent, the rule grants the court discretion to proceed in one of three alternate ways: (1) enter judgment in accordance with the answers, pursuant to Civ. R. 58, (2) return the jury for further consideration of its verdict and answers, or (3) order a new trial. This discretion is not conditioned upon the filing of an objection or other motion by either party. Rather, the rule speaks solely to the court, guiding the court in the exercise of its inherent authority over entry of judgment. “While the verdict of the jury contributes to the jurisdiction and power of the court to enter the judgment, the act of sovereignty, the authoritative establishment of rights, is performed by the court.” Indus. Comm. v. Rogers (1930), 122 Ohio St. 134, 137, 171 N.E. 35, 36, overruled on other grounds, Indus. Comm. v. Klaff (1931), 123 Ohio St. 451, 175 N.E. 697. This is in contrast to the first paragraph of Civ. R. 49(B) which specifically conditions the submittal of interrogatories to the jury on the request of a party and on submittal *307to the court of such party’s proposed interrogatories. See, also, e.g., Civ. R. 3(C)(1) (change of venue conditioned on timely assertion of defense of improper venue); Civ. R. 19(A) (joinder of a party upon timely assertion of the defense of failure to join a party); Civ. R. 25 (substitution of parties conditioned upon motion therefor); Civ. R. 60(B) (relief from judgment for other than clerical mistakes conditioned on motion).
This is not a waiver case. Neither party initiated the court’s consideration of the consistency issue; the court acted sua sponte. Civ. R. 59(D) provides:
“Not later than fourteen days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party. * * *”
This rule sets forth the inherent power of the court to control the granting of a new trial. Staff Note to subsection (D). Appellant, through its inaction, could not “waive” or divest the court of such power. The question of the consistency of the verdict with the answer to interrogatory one here was properly before the court of appeals.
The trial court below did not err in finding an inconsistency. Appellee Armstrong sought coverage under Article II of the group insurance contract between appellant Aetna and the Ohio Retirement Systems. The contract provided, however, that “[n]o insurance is afforded under any Title of Article II as to charges * * * (6) for custodial care * * *.” Thus, a determinative issue in the case was whether the charges submitted by Staff Builders to Aetna were, in fact, for custodial care. The term “custodial care” was defined in the contract as set forth by the majority, supra. This definition was submitted verbatim to the jury, with a single inapplicable phrase omitted. The jury was asked, considering only the contractual definition, whether the services rendered were primarily for custodial care, to which it answered, “Yes.”3
The majority surmises that the contract did not exclude what it calls “blended services,” and that the interrogatory submitted to the jury encompassed only such “blended services.” This argument fails from its inception, as the contractual definition does contemplate “blended” services, i.e., partially professional and partially for assisting in daily living. The contract states that such services are excluded as “custodial care” where they are primarily for assisting in daily living. Where professional care predominates the exclusion does not apply, as the care is necessarily not “primarily to assist * * * [the patient] in the activities of daily living,” and thus is not “custodial care.” The addition of the word “primarily” in the question to the jury was mere surplusage, neither adding to nor subtracting from the contractual definition, and emphasizing, at most, that custodial care could encompass some professional-type services. The jury’s affirmative answer thereto determined that the care provided to Armstrong was excluded, and was thus inconsistent with its general verdict in Armstrong’s favor. I would thus reinstate the trial court’s order for a new trial on all issues presented herein.
Civ. R. 58 provides, in part:
“Subject to the provisions of Rule 54(B), upon a general verdict of a jury, or upon a decision announced, the court shall promptly cause the judgment to be prepared and, the court having signed it, the clerk shall thereupon enter it. * * *”
The record reveals that the trial court inserted the word “primarily” in the question, over the objection of Aetna, pursuant to Civ. R. 49(B). Furthermore, the jury questioned the court on the purpose for this insertion, and was instructed to consult the insurance policy.