text:
    Rabin, Appellant, v. Horstman, Appellee.
    (No. 2273
    Decided April 8, 1954.)

      Mr. A. W. Schulman, for appellant.

      Messrs. Curtner, Brenton & O’Hara, for appellee.
   Hornbeck, J.

This is an appeal on questions of law from a judgment sustaining a motion of the defendant to dismiss the amended petition of plaintiff and award judgment to him for costs.

The action was originally instituted against Charles M. Horstman, and, after an amended petition had been filed by the plaintiff, the defendant answered. Thereafter, the defendant having died, the action was revived against Richard Freck, executor of the estate of the deceased, as defendant. The cause of action of plaintiff was for the recovery of damages claimed to have been sustained to the person and property of plaintiff by reason of a collision between an automobile driven by plaintiff and one driven by an employee of defendant, Horstman. The answer filed by the executor set up two defenses, the second of which was res judicata by reason of a judgment of the Municipal Court of the City of Dayton between the same original parties and growing out of the same collision.

In replying to the second defense of the answer, the plaintiff denied that a judgment was recovered in the case in the Municipal Court in favor of defendant’s decedent and against the plaintiff and averred that the Municipal Court in that case rendered a judgment against this defendant, plaintiff therein, denying his claim for damages on the ground that the agent of the plaintiff therein, driver of this defendant’s automobile, was guilty of negligence contributing proximately to his injuries. Plaintiff further says that in that action he filed no claim or cross-petition seeking any recovery against defendant or asserting any claim for damages or recovery as set forth in this action. He also avers that the Municipal Court was without jurisdiction to render the judgment for the reason that the amount of plaintiff’s claim was beyond the jurisdiction of the Municipal Court of Dayton.

Defendant demurred to the reply of plaintiff, as being insufficient in law to constitute an answer to the defense of res judicata asserted in the amended answer. Upon consideration, this demurrer was overruled. Thereafter, the cause came on to be heard on the motion of the defendant to dismiss plaintiff’s amended petition and to render final judgment in favor of the defendant. To get the matter before the court there was offered, by stipulation, the pleadings, decisions and judgment entry in the Municipal Court of Dayton in the case wherein Horstman was the plaintiff and Rabin the defendant. The court made an order which sustained the motion dismissing plaintiff’s amended petition. It is from this order that the appeal is prosecuted.

Plaintiff assigns three errors:

(1) Error in entering judgment upon the claim of res judicata.

(2) Error in entering final judgment against the plaintiff.

(3) That the court, having rendered a judgment overruling plaintiff’s motion during the April 1953 term, which is duly docketed, had no jurisdiction to enter the second judgment on defendant’s motion at a subsequent term of court.

Upon the first error assigned we must hold against the appellant. In the action in the Municipal Court, which is set up as res judicata of the issues in the instant cause, the primary issue was the negligence of Rabin proximately causing the collision and damages. Unless and until this issue was determined, any contributory negligence of Horstman was of no concern. The negligence of Rabin as a cause of plaintiff’s injuries was found and specifically carried into the judgment, and with it Horstman’s agent was found to be contributorily negligent. No cross-petition was required to test the question whether Rabin was negligent. One of the essentials of res judicata is that the subject matter in the judgment set up be the same as that involved in the case where such defense is asserted. Here the subject matter, common to both eases, is the negligence of Rabin. The fact that different damages, as to amount or character, were involved did not affect the validity and force of the adjudication of the initial issue common and controlling as to both.

We do not consider it necessary or advisable to discuss this question at greater length. We have been favored with the written opinion of Judge Crawford, who passed on the question of res judicata in the trial court. We are fully in accord with it and the reasons and the cases cited to support it, and we adopt them.

The second assignment of error depends upon the determination of the first and third assignments of error.

The third assignment of error is predicated upon the proposition that the overruling of the demurrer first made by the defendant to the reply, testing the sufficiency of the reply as an answer to the claim of res judicata, precluded the final judgment of the court, which judgment was contrary to the action on the demurrer.

Independent of the right of the court to change its position respecting the sufficiency of the demurrer to the reply, we can not say the court was wrong in overruling the motion, or that the judgment finally entered was inconsistent with that action. At the time the court passed on the demurrer to the reply, it had before it only the averment of the reply that’ no judgment was recovered against the plaintiff in the Municipal Court. True, there is a statement that plaintiff’s 'claim was denied upon a finding that plaintiff’s driver was chargeable with contributory negligence, which implies that defendant had also been negligent, but there is no specific admission of that fact. Then, too, the reply left open the question of whether the court may not have decided the case upon the theory that no damages had been shown to have been suffered by the plaintiff. The reply did not clearly project into the record the full import and effect of the judgment in the Municipal Court. In that judgment there was a specific finding to the effect that the defendant was guilty of negligence directly and proximately resulting in the accident and damages to plaintiff’s automobile. This was not included in the reply.

We are satisfied that the court did not err in entering judgment notwithstanding the former ruling on the demurrer to the reply.

It follows that the second assignment of error is not well made.

The judgment is affirmed.

Judgment affirmed.

Wiseman, P. J., and Miller, J., concur.


source: Caselaw Access Project

author: Fess, J.

license: Public Domain

text:
    In re Appropriation by Ohio Turnpike Commission: McKarns et al., Appellants, v. Ohio Turnpike Commission, Appellee. Lehman et al., Appellants, v. Ohio Turnpike Commission, Appellee. Stacey et al., Appellants, v. Ohio Turnpike Commission, Appellee.
    (Nos. 325, 326, 327 and 328
    Decided November 9, 1953.)

      Messrs. Newcomer, Newcomer & Shaffer, for appellants.

      Mr. Frank C. Dunbar, Jr., Mr. James L. Stegmeier, Mr. Ray O’Donnell and Mr. Lorin L. Rogue, for appellee.
   Fess, J.

This opinion deals with four separate but related appeals in turnpike condemnation proceedings. No. 325 is taken by J. Russel] McKarns and others from an order dismissing a demurrer, an answer and a cross-petition of such owners; No.

326 is taken by Edith B. Lehman and others from a similar order; No. 327 is taken by Millard C. Stacey and others from a similar order; and No. 328 is an appeal taken by Millard C. Stacey from an order overruling his motion seeking a vacation of an order assigning the cause for hearing on October 22, 1953, and for a stay of further proceedings pending determination of appeal No. 327. On October 20, 1953, this court found that the order from which such appeal was taken was not a final order and, on motion of appellee, dismissed such appeal. Although there is some variation in the several motions and pleadings filed in the cases from which appeals Nos. 325, 326 and 327 are taken, the questions to be determined in each appeal are substantially the same. Appeal No. 325 is, therefore, more extensively dealt with herein. In all these cases the Ohio Turnpike Commission has made application for the assessment of compensation for appropriation of property. The owners appeal on questions of law from orders striking from the files a demurrer, an answer and a cross-petition.

In this appeal, the owners have filed also a motion seeking an order restraining the commission from proceeding in the trial of the case below and for a writ prohibiting the trial judge from assigning the case for trial pending determination of the questions raised upon this appeal. This court has no original jurisdiction to grant injunctive relief, and the motion for injunction is, therefore, denied.

Although this court has original jurisdiction to issue writs of prohibition upon a petition therefor, we have discovered no authority for obtaining such a writ in an appeal on questions of law by a motion therefor incidental to the appeal, and such motion is overruled.

Appellee has moved to dismiss the appeal on the ground that it is not taken from a final order. Appellee takes a somewhat inconsistent position in also filing, on October 20, 1953, a cross-appeal from orders entered on July 25, 1953, and August 12, 1953. The order of July 25 overruled a motion of the applicant to strike the answer and cross-petition from the files. The order of August 12 overrules applicant’s motion to strike the answer and grants in part, and overrules in part, applicant’s motion to strike the cross-petition. Appellee filed also cross-assignments of error relating to the foregoing orders. The owners moved to strike the cross-appeal on the ground that it was not taken within the time provided by law. Regardless of whether a cross-appeal may be taken under the Appellate Procedure Act,. the notice thereof was not filed within the twenty-day period provided by law. The motion to dismiss the cross-appeal is, therefore, sustained.

With respect to the cross-assignments of error relating to the orders of July 24 and August 12, any error which might have been committed by the trial court has been cured by the order of the court, entered July 25, 1953, striking the pleadings from the files, from which order the owners appeal. Such cross-assignments of error are, therefore, not well taken.

The first question presented for determination by this court is whether the order striking the pleadings from the files is a judgment or final order within the meaning of the terms employed in Section 6, Article IV of the Ohio Constitution. In reaching a conclusion, we are required to determine whether, in a proceeding to assess compensation brought by the Ohio Turnpike Commission, the owner whose property is appropriated has the right to demur, answer or cross-petition for independent relief.

The answer in the instant case denies that the commission endeavored for a reasonable time to agree with the owners with respect to the amount of compensation and damages. The cross-petition, to which a number of interrogatories are appended, raises as issues the authority of the commission to appropriate, the necessity of the taking, the power to appropriate an easement, fault on the part of engineers in the plans of construction of the highway, the right to divert a watercourse and the legality of such diversion, the damming of the natural flow of water, and whether the commission should be compelled to appropriate additional property or rights. The owners pray that the several questions presented be determined by the court prior to the determination of compensation and damages.

Under Section 5537.04, Revised Code (Section 1205, General Code), the commission is empowered to acquire in the name of the state, by purchase or by the exercise of the right of condemnation, lands, or rights therein, rights of way, property rights, easements and interests, as it may deem necessary for carrying out the provisions of the act.

Section 5537.06, Revised Code (Section 1208, General Code), specifically empowers the commission to acquire by appropriation any land, rights, rights of way, franchises, easements or other property necessary or proper for the construction or the efficient operation of any turnpike projects, and outlines the procedure to be followed.

The first step in the procedure outlined by Section 5537.06, Revised Code, is provided in subsection (A), that the commission shall endeavor to agree with the owner as to the compensation to be paid for the property. Subsection (B) provides that if the commisson is unable to agree with any owner within a time considered by the commission to be reasonable, it shall declare, by resolution, that fact and the necessity of appropriating the property and direct that proceedings to effect such appropriation shall be begun, prosecuted and conducted as therein set out. Subsection (C) provides that such proceedings shall be begun and prosecuted either in the Probate Court or in the Common Pleas Court by filing an application, to which the resolution shall be attached. Subsection (D) provides for notice to the owners and the manner of giving the same. Such subsection provides further that, when it appears that such notice has been given or waived, the court shall set the date for the assessment of compensation by the jury not earlier than five days after the return of notice, “and the jury shall proceed as in all civil cases.” Subsections (E) to (O) relate to a view of the premises, appointment of guardians ad litem, assessment of compensation and damages, offer to confess judgment, writ of possession, etc. The last paragraph of subsection (O) is as follows:

“All proceedings brought under this section shall be governed by the law applicable in civil actions in the Court of Common Pleas except as otherwise provided in this section, shall be advanced as a matter of immediate pubic interest and concern, and shall be heard in all courts at the earliest practicable moment.”

It should be noted that the limitation, “except as otherwise provided in this section,” refers to the advancement of the case for hearing and not to the preceding clause.

With respect to appropriation of private property by corporations under Chapter 2709 of the Revised Code, the proceeding is by petition (Secton 2709.06), and under Section 2709.10, preliminary questions are to be determined. But Chapter 2709 does not apply to proceeding's by state, county, township, district or municipal corporation authorities. Section 2709.46.

In State, ex rel Kauer, Dir., v. Defenbacher, Dir., 153 Ohio St., 268, 91 N. E. (2d), 512, the Supreme Court held that the turnpike commission is a public organization created for a public purpose. Although the court did not decide whether the commission is a corporation or not, it was held that Section 4 of Article VIII of the Constitution, forbidding the granting of credit in aid of a corporation, did not prohibit the highway department from granting monetary aid to the turnpike commission. Since the commission is a public organization created by the state of Ohio for a public purpose, it is a state authority within the meaning of the term as used in Section 2709.46, and Chapter 2709 of the Revised Code, does not apply to its proceedings to appropriate property.

It is to be observed that the Turnpike Act makes no provision for pleadings directed to its application to appropriate property. The proceedings for appropriation of property and assessment of compensation are analogous to those provided for condemnation by a municipality. With respect to the appropriation of private property by a municipality, Section 719.08, Revised Code (Section 3683, G-eneral Code), provides that, after notice of the application, the court shall set a time for the assessment of compensation by a jury, and that the jury shall be drawn and the trial proceed as in other civil actions. In Neff v. City of Cincinnati, 32 Ohio St., 215, it is stated in the opinion that no pleadings were filed by the parties nor was an issue of fact in any form submitted to the jury.

In sustaining the right of a railroad to seek an injunction against a municipality about to appropriate its property, the Supreme Court, by way of obiter dictum, said, in P. C. C. & St. L. Ry. Co. v. City of Greenville, 69 Ohio St., 487, 69 N. E., 976, that a proceeding to assess compensation is a special proceeding strictly regulated by statute and the owner has no right to file an answer and cross-petition, because no provision is made for the making or trial of an issue raised by such pleading. In Cleveland & Pittsburgh Rd. Co. v. City of Martins Perry, 92 Ohio St., 157, 110 N. E., 642, in paragraph three of the syllabus, the court held that, upon proper pleading by the city tendering the issue as to whether the appropriation will not unnecessarily interfere with the use of the property, the court may, in the same proceeding, hear and determine all questions arising under Sections 3677 and 8899, General Code. In the opinion, at page 162, the court refers to the Greenville case, but apparently distinguishes it in saying:

“While the suit in which it may be determined whether a crossing shall be at the same or separate grade is in the nature of a special proceeding, regulated by statute, it is therein provided that the rights of the parties to plead shall be the same as in civil actions. There is, therefore, no reason apparent why all the questions arising under Sections 3677 and 8899, General Code, may not be heard and determined in the same proceeding, if brought in the Court of Common Pleas. However, it is incumbent upon the city to present such issue.”

But Section 4957.30, Revised Code (Section 8898, General Code), specifically provides that fin grade-separation cases the rights of defendants to plead shall be the same as in civil actions.

In Martin v. City of Columbus, 101 Ohio St., 1, 127 N. E., 411, the eoui’t held in the syllabus that an action brought by a municipality to condemn property is a proceeding in rem; that there are no formal pleadings or definite issues; and that the jury acts merely as an appraising or assessing board, determining the fair market value of the property taken.

In Sargent v. City of Cincnnati, 110 Ohio St., 444, 144 N. E., 132, the court approved the principle decided in the Green-ville case, and held that the only issue to be tried in a municipal condemnation case is the value of the property, and that the owner’s remedy is by an independent action for injunction.

In Emery v. City of Toledo, 121 Ohio St., 257, 167 N. E., 889, the court again held that the only issue in municipal appropriation proceedings relates to the value of the property, and that the determination by the municipality of the fact and public need and the use to which the property is to be subjected may not be questioned in the appropriation proceeding.

It will be observed that the Supreme Court has not deviated from the principle announced in 1877 by Judge Day in Neff v. Cincinnati, supra. Harsh as the principle may be, the owner is relegated to a suit in injunction to adjudicate questions such as are raised in the cross-petition herein.

Appellate cites City of East Cleveland v. Nau, 124 Ohio St., 433, 179 N. E., 187, but this case related to an independent suit for injunctive relief and does not deal with the right to obtain such relief in the appropriation proceeding itself. Wheeling & Lake Erie Rd. Co. v. Toledo Ry. & Term. Co., 72 Ohio St., 368, 74 N. E., 209, 106 Am. St. Rep., 622, also cited by appellant, relates to appropriation by a private corporation, in which the court, in denying injunctive relief, held that the questions presented by the petition for injunction could be raised and determined upon the petition to appropriate the property, in limine.

It is, therefore, our conclusion that upon an applicaton by the Ohio Turnpike Commission for the assessment of compensation the owner is not entitled to formally answer or otherwise plead to such application. Having no right so to plead, the order striking the demurrer, the answer and the cross-petition from the files did not affect a substantial right in a special proceeding. The order from which the appeal is taken is, therefore, not a final order and the motion to dismiss the appeal is sustained.

In reaching this conclusion, we do not overlook the fact that it is incumbent upon the commission to prove at the trial for the assessment of compensation that it has complied with the provisions of subsection (A) of Section 5537.06, Revised Code, requiring it to endeavor to agree with the owner as to the compensation. The commencement of the proceedings is contingent upon the commission making such effort. Whether the commission has complied with the statute is a preliminary question to be determined by the court, and a decision thereon adverse to the owner is not a final order, but is a matter which may be ultimately reviewed on an appeal taken on questions of law from the judgment entered on the verdict of the jury. Dayton & Union Rd. Co. v. Dayton & Muncie Traction Co., 72 Ohio St., 429, 74 N. E., 195; Ornstein v. Chesapeake & Ohio Ry. Co., 123 Ohio St., 260, 174 N. E., 772.

The several motions for injunction and writs of prohibition in appeals Nos. 325, 326 and 327 are denied and the several appeals are dismissed at appellants’ costs. Appeal No. 328 has been heretofore dismissed at appellant’s costs.

Judgments accordingly.

Conn and Deeds, JJ., concur.


author: Fess, P. J. Deeds, J.,

text:
    Solether, Appellant, v. Ohio Turnpike Commission, Appellee.

      (No. 790
    Decided January 18, 1954.)

      Messrs. Bowman, Hanna & Middleton, for appellant.

      Messrs. Avery & Avery, for appellee.
   Fess, P. J.

Defendant’s demurrer to the petition on the ground that the facts therein stated do not constitute a cause of action was sustained and the petition was dismissed. Plaintiff appeals on questions of law.

The petition alleges that the defendant seeks to appropriate “all rights to erect on any of the aforesaid remaining lands any billboard, sign, notice, poster, or other advertising device, which would be visible from the travelway of Ohio Turnpike-Project No. 1, and which is not now upon said lands.”

Plaintiff alleges further “that the same is not a necessary part, or required in, the construction, maintenance and operation of said Ohio Turnpike by the defendant commission”; that defendant’s petition in the condemnation case seeking to deprive plaintiff of her right to erect signs and other advertising devices upon her lands is in violation of Section 19, Article I of the Ohio Constitution, in that such rights are taken from plaintiff for purposes other than for the making or repairing of roads which should be open to the public without charge;. and that the defendant is seeking to appropriate the right to prevent her from constructing or maintaining signs, etc., upon her lands, “which right is denied the defendant commission under the Constitution of Ohio, as said right is not being taken for a public use, for highway purposes, or in time of war or other public exigencies apparently requiring the immediate seizure of said right.”

Plaintiff prays for an injunction restraining defendant from the acquisition of the rights she may have to signs and other advertising devices sét forth in the condemnation proceeding.

In reaching a decision in this case we are, of course, limited to a consideration of the allegations of the pleading, the Constitution of Ohio, the Turnpike Act and the authorities relating to the exercise of the power of eminent domain. Under the rule of liberal construction, the petition alleges in effect that the commission is seeking to appropriate all rights of the plaintiff owner to erect on all her property any advertising device visible from the turnpike (not now upon her property); that the acquisition of such rights is not necessary for the construction, maintenance or operation of the turnpike; and that the property right or easement is not to be taken for a public use. Upon demurrer thereto, these allegations must be taken as true.

Merely because the language employed is inartificial or involves conclusions of law does not afford a basis for sustaining a demurrer. -If the language of an allegation, according to its ordinary meaning, contains a fact presenting an issue, it is good as against demurrer. Trustees v. Odlin, 8 Ohio St., 293; Stoutenburg v. Lybrand, 13 Ohio St., 228; Railroad Co. v. Hutchins, 37 Ohio St., 282; McGill v. Worland, 25 Ohio App., 297; Green v. Carter, Treas., 28 Ohio App., 492, 162 N. E., 814.

That the Turnpike Act is a valid constitutional enactment is established. State, ex rel. Kauer, Dir., v. Defenbacher, Dir., 153 Ohio St., 268, 91 N. E. (2d), 512; State, ex rel. Allen, v. Ferguson, Aud., 155 Ohio St., 26, 97 N. E. (2d), 660; State, ex rel. MacDonald, v. Ferguson, Aud., 155 Ohio St., 46, 97 N. E. (2d), 671; State, ex rel. Ohio Turnpike Commission, v. Allen, Secy.-Treas., 158 Ohio St., 168, 107 N. E. (2d), 345, certiorari denied, 344 U. S., 865, 97 L. Ed., 671, 73 S. Ct., 107.

Among the broad powers conferred upon the commission by the act is the power to acquire by condemnation, in the manner therein specifically provided, such public or private lands, or parts thereof or rights therein, rights of way, property, rights, easements, and interests as it deems necessary for carrying out the provisions of the act, Section 1205(i), General Code (Section 5537.04[I], Revised Code), and to do all acts and things necessary or proper to carry out the powers expressly granted in the act. Section 1205(o), General Code (Section 5537.04[O], Revised Code). It may be of some significance that Section 1207, General Code (Section 5537.07, Revised Code), empowers the commission to acquire by purchase (not condemnation) such property rights as it deems are necessary or convenient for the construction and operation of the turnpike. The word “necessary” has no fixed character peculiar to itself. “It admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports.” Chief Justice Marshall, in McCulloch v. Maryland, 17 U. S. (4 Wheat.), 316, 414, 4 L. Ed., 579, 603. The word “necessary” in acts relating to eminent domain does not mean “absolutely necessary or indispensable,” but “reasonably necessary to secure the end in view.” Sayer v. City of Orange (N. J.), 67 A., 933; Chicago, I. & L. Ry. Co. v. Baugh, 175 Ind., 419, 94 N. E., 571; State v. Whitcomb, 94 Mont., 415, 22 P. (2d), 823; Aurora & Geneva Rd. Co. v. Harvey, 178 Ill., 477, 53 N. E., 331, 334; Commissioner of Parks v. Moesta, 91 Mich., 149, 51 N. W., 903, 904; People v. Fisher, 190 N. Y., 468, 83 N. E., 482, 485; Department of Public Works v. Lewis, 411 Ill., 242, 103 N. E. (2d), 595, 597.

Section 19 of Article I of the Constitution provides that private property shall ever be held inviolate but subservient to the public welfare and, with certain exceptions, where private property shall he taken for public use, a compensation shall first be made in money, etc. Neither Section 19, Article I, nor Section 5 of Article XIII, confers the power of eminent domain. Giesy v. Cincinnati, Wilmington & Zanesville Rd. Co., 4 Ohio St., 308, 327. Statutes delegating authority to exercise the right of eminent domain must be strictly construed and the powers granted by the Legislature must be strictly pursued. Pon tiac Improvement Co. v. Board of Commissioners, 104 Ohio St., 447, 135 N. E., 635, 23 A. L. R., 866. And there is no right to take private property for public use unless the taking is necessary.

“But there must be a public necessity for the use, it is said, to justify taking private property for it. The words of the Constitution are, ‘public welfare,’ but I have no objection to the term ‘necessity,’ provided that it be not used as synonymous with ‘indispensable.' ” . Shaver v. Starrett, 4 Ohio St., 494, 499.

‘ ‘ * * * the necessity upon which the proper exercise of the power depends, relates rather to the nature of the property and the uses to which it is applied, than to the exigencies of the particular case in which it is exercised.” Giesy v. Cincinnati, Wilmington & Zanesville Rd. Co., supra, 326.

See, also, Malone v. City of Toledo, 34 Ohio St., 541, 546; Railroad Co. v. Village of Belle Centre, 48 Ohio St., 273, 295, 27 N. E., 464; State, ex rel., v. Ferguson, supra.

The Ohio Turnpike Commission having determined that it is necessary for it to acquire by condemnation the right of the plaintiff to erect signs upon the remainder of her property, can a court of equity inquire into the necessity of the taking and whether such rights are to be taken for a public use? In private corporation appropriation proceedings, the question of necessity is determined by the court as a preliminary question, and an appeal from such determination may be taken by the owner upon the entry of the final order. But no provision is made for the raising or determination of such issue in the Turnpike Act, and the owner is relegated to an independent action in equity to determine such issue. In re Appropriation by Ohio Turnpike Commission, ante, 221.

The overwhelming weight of authority makes clear beyond any possibility of doubt that the question of the necessity or expediency of a taking in eminent domain lies within the discretion of the Legislature and is not a proper subject of judicial review. 1 Nichols on Eminent Domain (3 Ed.), 373, Section 4.11. But while necessity is not primarily a judicial question, there may be such absolute lack of necessity as to render the proceedings void, and it necessarily follows that an owner who alleges such lack of necessity is entitled to have the question passed upon by a judicial tribunal. 1 Nichols on Eminent Domain (3 Ed.), 379, Section 4.11 [2], citing City of Cincinnati v. Louisville & Nashville Rd. Co., 88 Ohio St., 283, 102 N. E., 951.

“In saying that the exercise of this power properly belongs to the General Assembly, and not to the judiciary, I do not intend to express a doubt, that in cases where its limits have been exceeded, or its spirit and purpose abused, a judicial remedy may not be afforded. If the Legislature, by a direct exercise of authority, should undertake. to appropriate property for purposes beyond the scope of this power; or if any subordinate agency, under a power properly conferred, should abuse the authority by using it irregularly, oppressively, or in bad faith, there can be no doubt of the power of the courts to furnish an effectual remedy against such illegal acts.” Giesy v. Railroad, supra, 326.

In the Qiesy ease the court proceeded to determine upon the record whether the acquisition of land for a depot was necessary.

In Wheeling & Lake Erie Rd. Co. v. Toledo Ry. & Terminal Co., 72 Ohio St., 368, 74 N. E., 209, 106 Am. St. Rep., 622, the court quotes with approval from Lewis’ on Eminent Domain:

“ ‘But, when the statute does not designate the property to be taken, nor how much may be taken, then the necessity of taking particular property is a question for the courts.’ ”

The court, at page 382, quotes also from Judge Freeman in a note to Lynch v. Forbes (161 Mass., 302, 37 N. E., 437, 42 Am. St. Rep., 402), as follows:

“ ‘* * * where the Legislature has only authorized the taking of such property as is necessary, the question of the necessity for taking is a judicial one which must be determined either by a court, jury, or some quasi-judicial tribunal designated in the statute.’ ”

In Sargent v. City of Cincinnati, 110 Ohio St., 444, 144 N. E., 132, the court says, at page 451:

“All these legislative functions relate to the necessity and exigency of the taking, but owners of private property may judicially inquire whether- the specified use is a public use or whether such use will justify or sustain the compulsory taking of private property, and even though the legislative authority has declared the use to be a public one, the courts may properly inquire into the good faith of such declaration and whether there has been a manifest abuse of power.” (Emphasis added.)

In Emery v. City of Toledo, 121 Ohio St., 257, 167 N. E., 889, the court holds that in appropriating private property to municipal uses, the determination of the municipality of the fact and extent of the public need and the uses to which the property shall be subjected is legislative and political, and may not be questioned in the appropriation proceedings, but an owner whose property is being appropriated may invoke the aid of a court of equity to determine whether the use is a public one.

Section 10 of Article XVIII of the Ohio Constitution provides that a municipality appropriating property for public use may, in furtherance of such public use, appropriate an excess over that actually to be occupied by the improvement, and may sell such excess with such restrictions as shall be appropriate to preserve the improvement made. This is a rather broad grant of discretion. But in City of Cincinnati v. Vester (1929), 33 F. (2d), 242, the United States Circuit Court of Appeals holds that condemnation of property in excess of that actually required for the widening of a street, for the purpose of selling at a profit and paying for the improvement, is not for a public use and constitutes a denial of due process. The court holds also that whether the use for which the property is condemned is public or private is a judicial question to be determined, necessarily, upon the facts relating to the subject matter involved. In this connection, it may be observed that no specific authority is granted the Ohio Turnpike Commission by the act to acquire advertising rights or to acquire excess property. Specific provision for condemnation of excess property unnecessary for the improvement would present a serious question as to its validity under the Constitutions of Ohio and of the United States. Whether the attempted taking of advertising-rights herein is justified under the police power is not presented in this case. The power to enact the Turnpike Act is derived from Section 19, Article I. Cf. Pontiac Improvement Co. v. Commissioners, supra, 463, 466.

In City of East Cleveland v. Nau (1931), 124 Ohio St., 433, 179 N. E., 187, the court holds that under Section 10, Article XVIII, a municipality acquiring excess property must sustain the purpose of such acquisition by proof of its necessity, and that while a court may not disturb the reasonable discretion exercised by municipal authorities as to the amount of excess property necessary to be appropriated in furtherance of a public use, it will not sanction an arbitrary or unreasonable taking of private property in furtherance of the contemplated use.

Determination of the location of the route of the highway, the approaches thereto, the designs, plans and specifications thereof, and the selection of material, are within the discretion of the commission. State, ex rel. Shafer, v. Ohio Turnpike Comm., 159 Ohio St., 581, 113 N. E. (2d), 14. It is to be'observed, however, that even in that case an extensive record was made upon the issues raised in the mandamus action which was reviewed by the Supreme Court in reaching the conclusion that the relator failed to carry the burden of proof and to establish any bad faith or abuse of discretion on the part of the commission. In that ease, the petition did not charge fraudulent conduct, bad faith or specifically charge abuse of discretion. The purport of the charge was that the commission acted arbitrarily and, therefore, “without discretion.” (Page 591.)

Based upon the above authorities, a majority of this court conclude that an owner whose property rights are sought to be appropriated by the Ohio. Turnpike Commission has the right to institute an action for a judicial determination upon the evidence adduced at the trial thereof — (1) whether the taking of such rights is reasonably necessary to the operation of the turnpike, and (2) whether such rights are to be taken for a public purpose. It is observed that the petition fails to allege that the action taken by the commission is unreasonable, arbitrary or capricious, but a majority of the court is of the opinion that such an allegation would add nothing to the materiality of the pleading. If the evidence should disclose that the taking is unnecessary or not for a public use, it follows that such attempted taking is unreasonable and unlawful. Inasmuch as the petition alleges that the taking of the rights is not necessary and is not for a public use, it cannot be determined as a matter of law that the taking is necessary or that it is for a public use. In so holding, we do not determine in favor of or against the issues raised by the petition. We merely find that the petition states a cause of action presenting issues which must be determined upon evidence adduced at the trial.

It may well be asserted that this conclusion conflicts with the recent decision of this court, without opinion, in Ellis v. Turnpike Commission. In the Ellis case our attention was focused upon the interpretation of the- statute with respect to the broad powers conferred upon the commission, and the procedural principle that the allegations of a petition must be construed in their most favorable aspect to the pleader may have been overlooked. ,

The judgment is reversed and the cause remanded for further proceedings.

Judgment reversed and cause remanded.

Conn, J., concurs.

Deeds, J.,

dissenting.

As I view the record on this appeal, the demurrer of the commission to the petition of the plaintiff presents the definite question as to whether the court may substitute its opinion for that of the commission, respecting the necessity for the appropriation of certain property rights of the plaintiff.

All the available facts relevant and necessary to a determination of that question are presented to the court by the allegations of the petition.

It is necessary; only to apply the established rules of law to the facts and the conclusion seems clear that the petition does not contain facts sufficient to entitle the plaintiff to an injunction which would prevent the commission from the exercise of its discretion as duly authorized by the Legislature of the state.

The pertinent allegations of the petition of the plaintiff, referring to the right to erect any billboard, sign and advertising device, which right is sought to be appropriated, are “that same is not a necessary part, or required in, the construction, maintenance and operation of said Ohio Turnpike by the defendant commission,” and, also, “as said right is not being, taken for a public use, for highway purposes or in time of war or other public exigencies apparently requiring the immediate seizure of said right.”

Certain provisions of the Ohio Turnpike Act define clearly the authority and discretionary powers of the commission; applicable to the situation presented in this case as follows:

Section 5537.02, Revised Code. “There is hereby created a commission to be known as the ‘Ohio Turnpike Commission.’ Such commission is a body both corporate and politic in this state, and the exercise by it of the powers conferred by Sections 5537.01 to 5537.23, inclusive, of the Revised Code, in the construction, operation, and maintenance of turnpike projects shall be held to be essential governmental functions of the state, but the commission shall not be immune from liability by reason thereof. ’ ’

Subsections A, E, H, I, J and 0 of Section 5537.04, Revised Code:

“(A) Adopt bylaws for the regulation of its affairs and the conduct of its business;
i Í * * #
“(E) Construct, maintain, repair, police, and operate turnpike projects, and establish rules and regulations for the use of any such turnpike project;
« Í Í # # *
“(H) Acquire, hold, and dispose of real and personal property in the exercise of its powers and the performance of its duties under Sections 5537.01 to 5537.23, inclusive, of the Revised Code;
“(I) Acquire, in the name of the state, by purchase or otherwise, on such terms and in such manner as it deems proper, or by the exercise of the right of condemnation in the manner provided by Section 5537.06 of the Bevised Code, such public or private lands, including public parks, playgrounds, or reservations, or parts thereof or rights therein, rights of way, property, rights, easements, and interests as it deems necessary for carrying out Sections 5537.01 to 5537;23, inclusive, of the Bevised Code, and full compensation shall be paid for public lands, playgrounds, parks, parkways or reservations so taken;
“ (J) Designate the locations, and establish, limit, and control such points or ingress to and egress from each turnpike project as are necessary or desirable in the judgment of the commission and of the director of highways to insure the proper operation and maintenance of such projects, and prohibit entrance to such project from any point not so designated, and, at its cost, at all points of ingress and egress, cause to be erected large and suitable signs, facing traffic from each direction on the toll road, which shall designate the number and other designations of all United States or state highways of ingress or egress, the names of all Ohio municipal corporations with a population of five thousand or more within a distance of seventy-five miles on such roads of ingress or egress, and the distance in miles to such designated municipal corporations;
( ( * *
“(0) Do all acts necessary or proper to carry out the powers expressly granted in Sections 5537.01 to 5537.23, inclusive, of the Bevised Code.”

Section 5537.07, Bevised Code. “The commission is here- * by authorized and empowered to acquire by purchase, whenever it deems such purchase expedient, any land, property, rights, rights of way, franchises, easements, and other interests in lands as it deems are necessary or convenient for the construction and operation of any turnpike project, upon such terms and at such price as it considers reasonable and can be agreed upon between the commission and the owner thereof, and take title thereto in the name of the state.”

It is significant that the petition of the plaintiff contains no allegations charging the commission with either fraud or an abuse of discretion or that it is acting arbitrarily or in bad faith.

The petition does contain a complete description of the property of the plaintiff and the manner in which it will be traversed by the turnpike and sets out a portion of the resolution of the commission which describes the specific advertising rights which the commission is seeking to appropriate, as follows :

“All rights to erect on any of the aforesaid rémaining lands any billboards, sign, notice, poster, or other advertising device which would be visible from the travelway of Ohio Turnpike Project No. 1, and which is not now upon said lands.”

The principle of law is well established in this state that “in the absence of fraud, bad faith, or abuse of discretion, a court of equity will not attempt to substitute its judgment for the judgment of an administrative or executive officer or board when acting within limits of discretion vested in them by law.”

Lattsco, Inc., v. Mutual Mortgage & Investment Co., 33 Ohio Law Abs., 644, 6 Ohio Supp., 102; Gall v. City of Cincinnati, 18 Ohio St., 563; Braden v. Commrs. of Logan County, 31 Ohio St., 386; Thompson v. Love, 42 Ohio St., 61; Katz v. Linder, 17 C. C. (N. S.), 518, 32 C. D., 260, affirmed 88 Ohio St, 549, 106 N. E., 1064; State, ex rel. Landis, v. Board of Commrs. of Butler County, 6 Ohio App., 440, affirmed 95 Ohio St., 157, 115 N. E., 919; Brannon v. Board of Edn. of Tiro Consolidated District, 99 Ohio St., 369, 124 N. E., 235; Snyder v. Board of Park Commissioners of Cleveland Met. Park Dist., 125 Ohio St., 336, 181 N. E., 483; Bloch v. Glander, Tax Commr., 151 Ohio St., 381, 86 N. E. (2d), 318; State, ex rel. Gerspacher, v. Coffinberry, 157 Ohio St., 32, 104 N. E. (2d), 1.

The Supreme Court of the state has determined in State, ex rel. Ohio Turnpike Commission, v. Allen, Secy.-Treas., 158 Ohio St., 168, 107 N. E. (2d), 345, that:

"The Turnpike Act, Sections 1201 to 1222, General Code, is a constitutionally valid legislative enactment. (State, ex rel. Kauer, Dir., v. Defenbacher, Dir., 153 Ohio St., 268; State, ex rel. Allen, v. Ferguson, Aud., 155 Ohio St., 26, and State, ex rel. MacDonald, v. Ferguson, Aud., 155 Ohio St., 46, approved and followed.) ”

The Supreme Court has, in other decisions, made announcements in defining and interpreting the authority and discretionary power granted the commission under the provisions of the Turnpike Act, which it seems to me control a decision of the questions presented on this appeal.

In State, ex rel. Allen, v. Ferguson, Aud., 155 Ohio St., 26, 97 N. E. (2d), 660, the ninth paragraph of the syllabus is as follows:

“Subject to constitutional limitations, the General Assembly may ordinarily grant to an agency of the state power to do or authorize others to do anything which an individual might lawfully do and which such agency deems necessary to construct, maintain and operate a public project that the state itself would have authority to undertake. In such an instance it is not necessary, in order to avoid a delegation of legislative power, for the General Assembly to specify or define the particular action which may be taken or authorized or to limit such power in any way, other than by relating it to the construction, maintenance and operation of such public project.”

In State, ex rel. Shafer, v. Ohio Turnpike Commission, 159 Ohio St., 581, 113 N. E. (2d), 14, in the opinion of the court announced by Middleton, J., the principles of law applicable in this case are set forth clearly, and in my opinion are decisive of the issues presented. In the opinion in the Shafer case, supra, it is stated, at page 588, as follows:

“The only restraint upon the exercise of discretion by the commission is that which the law imposes upon all administrative bodies, viz., that it act in good faith and not in abuse of its discretion.”

From the opinion in the Shafer case, supra, we find further statements concerning the exercise of discretion and the meaning of “abuse of discretion,” which are applicable and persuasive in the case before us, as follows:

“ The rule is generally accepted that, in the absence of evidence to the contrary, public officers, administrative officers and public boards, within the limits of the jurisdiction conferred by law, will be presumed to have properly performed their duties and not to have acted illegally but regularly and in a lawful manner. All legal intendments are in favor of the administrative action. 42 American Jurisprudence, 680, Section 240; Bloch v. Glander, Tax Commr., 151 Ohio St., 381, 86 N. E. (2d), 318; State, ex rel. Gerspacher, v. Coffinberry et al., Industrial Commission, 157 Ohio St., 32, 104 N. E. (2d), 1; Wheeling Steel Corp. v. Evatt, Tax Commr., 143 Ohio St., 71, 54 N. E. (2d), 132.

“Abuse of discretion by the commission is not specifically charged, but the charge of acting ‘arbitrarily’ and ‘without the exercise of discretion’ means ‘abuse of discretion’ if anything. Eeference to a few of the many available decisions will suffice to demonstrate the general understanding of abuse of discretion.

“ ‘The exercise of an honest judgment, however erroneous it may seem to be, is not an abuse of discretion. Abuse of discretion, and especially gross and palpable abuse of discretion, which are the terms ordinarily employed to justify an interference with the exercise of discretionary power, implies not merely error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency. ’ People v. N. Y. C. Rd. Co., 29 N. Y., 418, 431, quoted from in Alliance v. Joyce, 49 Ohio St., 7, 22, 30 N. E., 270, by Dickman, J.

“ ‘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 unreasonable, arbitrary, or unconscionable attitude on the part of the court. ’ Steiner v. Custer, 137 Ohio St, 448, 31 N. E. (2d), 855.

“ * * * must ke kept in mind that the term “abuse of discretion means more than an error of law or error of judgment * * It means “a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence” * * *. Where the court does not exercise a discretion in the sense of being discreet, circumspect, prudent and exercising cautious judgment, there is an abuse of discretion. * * * The term has been defined as “ a view or action that no conscientious judge, acting intelligently, could have honestly taken.” ’ State, ex rel. Wilms v. Blake et al., Industrial Commission, 144 Ohio St., 619, 624, 60 N. E. (2d), 308. A similar statement appears in State v. Ferranto, 112 Ohio St., 667, 676, 148 N. E., 362.”

The commission has determined and declared by resolution that the property rights, in question, of the plaintiff are necessary in the construction and operation of the turnpike, and has provided for full compensation to the plaintiff for those property rights.

Therefore, it is my view that the judgment of the Court of'Common Pleas to the effect that the petition of the plaintiff failed to state a cause of action for an injunction should be affirmed.

      In State, ex rel. Bruestle, v. Rich, 159 Ohio St., 13, 110 N. E. (2d), 778, the Supreme Court holds that property taken for “the public welfare” is regarded as property “taken for public use.” The people, in the adoption of the section, must have intended a distinction between “public welfare” and “public use.” It would seem to follow that the taking of private property for public use is to be regarded as in furtherance of the public welfare and that the people did not intend that private property could be taken for the public welfare except as taken for public use. Neverthless, we are bound to respect and apply the definition as declared in the syllabus of the case.

      Reversed, Ellis v. Ohio Turnpike Commission, 162 Ohio St., 86.


author: Ross, J.

text:
    Staley et al., Appellants, v. Scheck, Exr., et al., Appellees.
    (No. 7963
    Decided December 20, 1954.)

      Mr. Robert Adair Black and Mr. John M. McCaslin, for appellants.

      Mr. Robert C. Porter, Jr., for appellees.
   Ross, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton County.

The trial court overruled a motion by plaintiff to make a party defendant and sustained the motion of defendant to dismiss a petition to contest a will.

No bill of exceptions is presented here, nor was any filed in the trial court.

This court is confined to the allegations of the petition, sworn to only on belief, to ascertain the facts presented to the trial court, upon such motions. Passing the question whether sueh source is sufficient to present the necessary facts required to consider this appeal, it appears from such allegations that Stella L. Staley, mentioned in the petition, was the guardian of her children, who were related to the testatrix, and was a legatee under the will of such testatrix, but was related to such testatrix only by marriage to Luke A. Staley, a nephew of the testatrix, who predeceased the testatrix. Such legatee was served in her official capacity only, as guardian of her children. As such legatee she was a necessary party to the will contest. Section 2741.02, Revised Code. No summons was attempted to be issued to her personally until after the six months statutory period. (Section 2741.09, Revised Code.) The plaintiff contends that proper issuance of summons to her colegatees is sufficient to cause commencement of the action to contest the will by virtue of the provisions of Section 2305.17, Revised Code (Section 11230, General Code).

This court has held that such section has no application to actions other than those predicated upon the sections of the Code mentioned in Section 2305.17, Revised Code. Coughlin v. Passionist Monastery of The Holy Cross, 59 Ohio App., 433, 18 N. E. (2d), 496. This position is not sustained by decisions of the Supreme Court to the contrary. McCord v. McCord, 104 Ohio St., 274, 135 N. E., 548; Draher v. Walters, 130 Ohio St., 92, 196 N. E., 884; Case v. Smith, Admx., 142 Ohio St., 95, 50 N. E. (2d), 142 (note the dissent of Judge Zimmerman therein); and Peters v. Moore, 154 Ohio St., 177, 93 N. E. (2d), 683.

Judicial subordination requires this court to conform its conclusions to those decisions of the Supreme Court.

If, therefore, Stella L. Staley is “united in interest” with other colegatees to whom summons has been issued (Section 2703.01, Revised Code), the action to contest the will has been commenced by virtue of the provisions of Section 2305.17, Revised Code, so held to be applicable, and she may be made a party as necessary to such will contest. All her colegatees are also either heirs or next of ldn of the testatrix. She is only related to the testatrix by marriage to a husband who predeceased the testatrix. If the contest of the will were successful, she would take nothing from the testatrix under an intestate distribution. Her colegatees, on the contrary, would share in such estate under the statutes of descent and distribution. She is a necessary party and no summons was sought to be issued to her personally until after the elapse of the six months statutory period of limitation for a will contest.

It appears, therefore, that there is a defect of parties required under Section 2741.02, Revised Code, since, not being “united in interest” with colegatees to whom service has been issued, the issuance of summons to them is ineffective to commence- the action to contest the will. It was too late to have her made a party and cause summons to issue to her, the six months statutory period having elapsed before application therefor was made. The motion to make her a necessary party was properly overruled, and there being a defect of parties required by Section 2741.02, Revised Code, the motion to dismiss the petition was properly granted.

The judgment of the Court of Common Pleas is, therefore, affirmed.

Judgment affirmed.

Matthews, P. J-, and Hildebrant, J., concur.


author: Putnam, P. J.

text:
    Fox, Appellant, v. Industrial Commission of Ohio, Appellee.
    (No. 775
    Decided December 8, 1953.)

      Mr. Thomas F. Joseph and Mr. Harold E. Gottlieb, for appellant.

      Mr. C. William O’Neill, attorney general, and Mr. Chalmers R. Wylie, for appellee.
   Putnam, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Muskingum County directing a verdict for the defendant at the close of plaintiff’s evidence.

The assignments of error are:

1. The court erred in the rejection of evidence offered by plaintiff-appellant.

2. The court erred in directing the jury to return its verdict for the defendant.

The plaintiff was a regular employee of The Ohio Power Company in Muskingum County, Ohio, on and prior to November 15, 1943, and on that date sustained an injury in the course of and arising out of his employment, viz., he sprained his ankle by stepping on a stone. Upon application to the defendant, he was awarded compensation for such injury, and later such compensation was made on a permanent partial disability basis. Later, in July 1948, plaintiff made a further claim to the defendant for additional compensation for additional disability, a heart disease, due to such injury. On August 31, 1948, the defendant entered an order admitting that the plaintiff had a heart disease but holding that it was not the result of the injury of November 15, 1943. Application for a rehearing was filed and allowed, and, on February 11, 1952, the claim was again disallowed. Plaintiff then appealed to the Common Pleas Court. A jury was impaneled and sworn, and a verdict was directed at the close of plaintiff’s evidence.

As á preliminary to a discussion of the question involved we make the following observation as to the type of testimony necessary to establish the plaintiff’s ease. In the case of Stacey v. Carnegie-Illinois Steel Corp., 156 Ohio St., 205, 101 N. E. (2d), 897, in support of the first paragraph of the syllabus, it is stated, at page 213, as follows:

“There are two types of industrial injury cases, one in which the testimony of lay witnesses does have probative value in establishing the probability of proximate causal relationship between accident and resulting injury, and the other where the testimony of lay witnesses is without probative value to establish a proximate causal relationship between the injury and the result claimed and where medical testimony is absolutely essential to prove such relationship. Each case must be decided upon its own facts in reference to this question.”

It is our judgment that the instant case falls within the second category, above mentioned. Consequently, any lay testimony in the record must be disregarded and the issue decided upon the medical testimony alone.

In the case of McNees v. Cincinnati Street Ry. Co., 152 Ohio St., 269, 89 N. E. (2d), 138, the sixth paragraph of the syllabus states:

“An injury does not arise out of the employment, within the meaning of the Workmen’s Compensation Act, unless there is a proximate causal relationship between the employment and the injury.”

At page 274, the following language appears:

“However, the answer to the interrogatory does not establish that there was any -proximate causal relationship between decedent’s employment and either the mental strain and excitement or the coronary thrombosis or his death.

“This raises the question whether an injury must be a proximate result of the employment in order to co.me within the definition of injury set forth in the last paragraph of Section 1465-68, General Code.

“Although there is no statutory provision requiring a proximate causal relationship between a compensable injury and a death for which compensation is sought, this court has frequently held that it is necessary for a death claimant to establish that such an injury was the proximate cause of the death.” (Authorities cited.)

And, at page 277, the court stated:

“There is certainly nothing in the language of the General Assembly which would require this court to determine that the General Assembly intended there should be any award of compensation for an injury in an instance where the employment was only a remote cause of the injury. If the language used by the General Assembly is construed, as this court has construed it, so as to require that the consequences of an injury have a proximate causal relationship to the injury, it would not be reasonable to construe the language of the General Assembly so as to require a mere causal relationship between the injury and the employment.”

There can be no doubt in our minds, from the holding in that case, that the plaintiff’s medical testimony must show a proximate causal relationship between a compensable injury and the condition for which the claim is made. The essential issue is as to how that fact is to be elicited. Bearing in mind that the hearing in the Common Pleas Court is upon only the record made below and subject to renewed objections to the testimony, it becomes extremely important that the questions be properly asked.

In the instant case the plaintiff called two doctors, Dr. Busoff and Dr. Minthorne. To each of these doctors only one hypothetical question was propounded. In the trial below the court sustained an objection to those questions. Answers were proffered and, thereafter, the verdict was directed.

In the case of Dr. Busoff the hypothetical question ended as follows:

“Now, assuming all the information in this hypothetical question to be the facts, also taking into consideration your findings and diagnosis at the time of your examination, do you have an opinion as to whether or not there is a causal relationship between the injury to the ankle and the symptoms which followed as described in this question and the heart involvement which you found at the time of your examination, considering, of course, your findings and diagnosis from your examination as related by you here today?”

To this question counsel for the defendant objected. In sustaining the objection the trial court said:

“Sustained for the reason that the question concludes with an inquiry as to a causal relationship without qualifying it as to being the proximate or direct causal relationship which the Aiken case, 143 Ohio St., 113, requires. McNees case, 152 Ohio St., requires that any answer to which you might be entitled be predicated upon the proposition of the direct or proximate, and not what otherwise would be a matter of possibility or remote, there is nothing which limits what is inquired of from the doctor of the language of the question to a proximate or direct-causal relationship as required by law.

“Counsel for Plaintiff: May we be heard on it in the absence of the jury?
“The Court: You may dictate your—
“Counsel for plaintiff: We especially call the court’s attention to the case of Hallworth v. Republic Steel [153 Ohio St., 349, 91 N. E. (2d), 690] and to the first branch of the syllabus thereof. We further feel that the question of proximate cause is one for the jury to determine from the charge of the court and from the evidence adduced. There is no indication on the part of the doctor in this case to speculate or to enter into any conjecture whatever but the answer definitely states that there is a causal relationship. We wish to proffer the answer ‘Yes, sir. ’
“Q. What is your opinion?
“Counsel for defendant: Objection.
‘ ‘ The Court: Sustained.
“Counsel for plaintiff: Proffer the answer. ‘I believe there is a causal relationship.’
“Q. Now, if you will, doctor, I wish you would explain to us through what reasoning you arrived at the conclusion that the heart involvement at the time of your examination is causally related to injury to which this man sustained in November, 1943?
“Counsel for defendant: Objection.
“The Court: Sustained.
“Counsel for plaintiff: Proffer the answer. ‘Mr. Fox, in November of 1943, sustained a definite injury to his left ankle. This injury to the left ankle has resulted in definite arthritic changes in that left ankle and osteoporosis or decalcification of bone with the symptoms of pain and swelling that have been given me in the hypothetical question, and it appears from the facts given me in the hypothetical question, that Mr. Fox became quite nervous, that he had considerable pain, that he had swelling when he was on his feet without any bandage on the foot, and ankle. Pain, nervousness, difficulty sleeping, all are factors in producing or precipitating heart failure. I do not say the heart failure was caused by the injury but I believe that the factors subsequent to the injury are factors in the precipitation of the heart failure and perhaps hastened it.’ ”

It is our judgment that neither the hypothetical question and the proffered answer thereto nor the question following.it and the proffered answer contained the essential element of Iiroximate causal relationship, as required. Consequently, the court did not err in sustaining the objection thereto or in reconsidering the same after the answers were proffered. With these questions and answers out, the further testimony of Dr. Rusoff in the record falls far short of the probative testimony necessary to take the case to the jury.

In sustaining such holding of the trial court, we do not mean to hold that, in all cases where medical testimony is based upon hypothetical questions, the original question must include all the elements of a probable proximate causal relationship to a reasonable medical certainty. There are and may be cases where certain preliminary questions may be asked as to a causal relationship, followed by other questions which include the proximate causal connection. However, in a case such as this which is heard on the record, made on rehearing, where only the one question is asked and that question falls short of the requirements and cannot thereafter be supplemented, the defect is fatal.

We now come to the testimony of Dr. Minthorne. The hypothetical question propounded to him was sustained for a different reason. It did not contain the defect which was in the question propounded to Dr. Rusoff, in that Dr. Minthorne was asked whether there was any direct causal relationship; nor did the proffered answer have the defect contained in the answer of Dr. Rusoff. Dr. Minthorne’s proffered answer contained the positive statement that there was a direct causal relationship, as did his explanation as to the reasons for such statement. The defect in that hypothetical question was that it contained assumptions which the doctor was required to make which were directly contrary to the findings he had made upon his examination. It contains also statements which were contradictory to the statement made by the claimant in his examination. It is our judgment, as it was the trial court’s, that such discrepancies vitiated the question. In another type of case, had such a question been sustained in the first instance, a new one might have been propounded eliminating the objectionable features; in a case such as the instant one that cannot be done.

It has been argued to this court in this case that the requirement of incorporating in a question the probable proximate cause to a reasonable medical certainty is not proper because it usurps the ultimate question and issue which the jury has to answer. This is true in other cases, but where such questions depend only upon expert medical testimony the only ultimate question for a jury is to choose between the credibility of the various medical witnesses for plaintiff and defendant.

The judgment is affirmed.

Judgment affirmed.

Montgomery and McClintock, JJ., concur.


author: McClintock, J. Montgomery, J.,

text:
    In re Appropriation of Easement for Highway Purposes.
    (No. 727
    Decided January 31, 1954.)

      Mr. A. B. Mabee and Mr. C. H. Henkel, for appellants.

      Mr. C. William O’Neill, attorney general, and Mr. Hugh E. Kirkwood, Jr., for appellee.
   McClintock, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Richland County. The facts briefly are as follows:

L. C. Mabee and Doris E. Mabee, who are the appellants in this action, were the owners of certain real estate in Springfield Township, Richland County, Ohio, and the Shiloh Savings Bank Company, Shiloh, Ohio, also named in the proceeding, had a mortgage upon said premises. The Director of Highways of the state of Ohio desired to acquire an easement in a portion of the premises and accordingly entered on the journal of the Department of Highways a finding that it was necessary to appropriate such property, and on January 2, 1952, filed a copy of such resolution and finding in the Common Pleas Court of Rich-land County, in accordance with Section 1178-37, General Code. Notice was served on the owners. The owners were not satisfied with the amount as fixed by the director for the easement, and within ten days after the service of the notice filed their written petition setting forth their intention to appeal from the amount so fixed by the director, as required by Section 1178-38, General Code, and in accordance with said section did file a bond in the amount as fixed by the court.

The cause was submitted to a regular jury panel and a verdict was rendered in favor of the appellants herein in the sum of $350 as compensation for the land taken, and $630.50 as special damage, the total sum being $980.50. Judgment was entered on the verdict by the court below, and the journal entry of the judgment in part reads as follows:

“On April 22, 1953, A. B. Mabee the attorney of record for the appellants, the owners of the land taken, requested the court to especially assign this case and to submit same to the regular jury panel in the approaching May term of court. On April 25, 1953, the court communicated A. B. Mabee’s request for such assignment to the Attorney General and the Director of Highways and obtained the consent and approval of Mr, Mabee’s request upon the condition that this case be the first case submitted to said jury; on the same date attorney A. B. Mabee assented to this condition imposed by the Attorney General and thereupon the cause was assigned for trial for May 18, 1953.

‘ ‘ On May 18 and May 19, 1953, this cause came on duly to be heard for the determination of compensation of land taken and assessment of damages to the residue. Thereupon a jury was duly impanelled and sworn, being composed of members of the regular jury panel for the May term of this court; and such issues as to compensation and damages were duly submitted to said jury. Thereupon, after due deliberation said jury duly returned a verdict for three hundred fifty dollars ($350) as compensation for the land taken, six hundred thirty dollars and fifty cents ($630.50) as damages to the residue, such verdict thus being for the total sum of nine hundred eighty dollars and fifty cents ($980.50).

“During the trial counsel stipulated and agreed upon the date of May 24, 1952, as the time of the taking of the land and that the said land owners are entitled to interest at the legal rate of six (6%) per cent per annum from said date until the date of May 19, 1953, the date of the verdict. The amount of the verdict being nine hundred eighty dollars and fifty cents ($980.50), it is therefore ordered, adjudged and decreed that the said landowners are entitled to interest at the rate of six (6) per cent per annum on the said sum of nine hundred eighty dollars and fifty cents ($980.50) in the sum of fifty eight dollars and nineteen cents ($58.19).

“It is therefore, ordered, adjudged and decreed that the said proceedings be and the same are hereby approved and confirmed by the court and that the Director of Highways of the state of Ohio shall deposit in this court a sum sufficient, to wit, nine hundred sixty four dollars and sixty nine cents ($964.69) which when added to the original deposit herein, to wit, seventy four dollars ($74) will equal the said sum of nine hundred eighty dollars and fifty cents ($980.50) with interest of fifty eight dollars and nineteen cents ($58.19) which shall be paid by the clerk to the landowners herein, as their interests may appear in an order for distribution made by the court.”

Motion for new trial was filed by the appellants and overruled by the court below and thereafter appellants appealed to this court on questions of law, and for their assignments of error allege:

“1. Irregularities in the proceedings of the court, by reason of which the appellants were prevented from having a fair trial:
“(a) That the procedure to impanel a jury and the sub-' mission of the matter was contrary to and in violation of the provisions of the statutes of the state of Ohio, especially Section 1178-38 of the General Code of Ohio;
“(b) The property of the owners-appellants was taken without due process of law under the Constitution of the United States of America and the Constitution of the state of Ohio;
“2. Error in the court’s general charge to the jury;
“3. Grossly inadequate damages — it appearing from the facts proved that the jury must have omitted to take into consideration some of the elements of damage properly involved in the owners-appellants’ claim:
“(a) The jury failed to consider all uses for which the land might be suitable, including the most valuable uses to which it could reasonably and practically be adapted;
“(b) The jury failed to give consideration to any allowances for damages to the residue after the appropriation of the easement;
“(c) The jury did not consider the limited access to the highway by the owners-appellants;
“4. The verdict and judgment are contrary to law;
5. The overruling of the motion of the owners-appellants for a new trial.”

In a consideration of assignments of error Nos. 1, 4 and 5, we find from Section 1178-38, General Code, the necessary procedural steps where property is appropriated by the state Director of Highways. Said section, in part, provides first that if the owner of property appropriated by the director is not satisfied with the amount as fixed by the director, the property owner may within ten days after the service of notice file a written petition in duplicate in the court, setting forth his intention to appeal from the amount so fixed by the director. The court shall thereupon fix the amount of bond to be given by the appellant and cause an entry thereof to be made on the journal of the court, and the appellant within five days after the fixing of the amount of the bond shall file a bond in the amount so fixed, and upon bond being filed and approved, the court shall fix a day, not exceeding five days thereafter, for the hearing of all preliminary questions and motions and for the examination of papers, and on the day so fixed all preliminary motions and questions arising upon said appeal shall be heard and determined, and if the court finds the proceedings are irregular or the appeal is not perfected according to law, he shall dismiss the same, and if the court finds that said appeal has been properly perfected and that the proceedings are substantially regular, the court shall forthwith transfer to the Director of Highways the money deposited in the court for the use and benefit of the appellant, and the court shall fix a day, not more than twenty days after it has determined that said appeal has been properly perfected, for the trial of the case by jury.

The commissioners of jurors shall forthwith be notified by the court and cause to be drawn from the jury wheel, in the manner provided by law, the names of sixteen persons as jurymen. Additional names may be drawn as required. The court shall deliver the venire to the sheriff who will serve it within five days thereafter and make return of such service. On the trial the court shall take the list of jurymen, as certified by the clerk, and call the names in the order they appear. The court below did not follow the procedural requirements in this action. He did not fix a date within twenty days after the appeal had been perfected for the trial of the case by a jury. Jurors were not drawn within the time or manner provided by law and the court did not issue a venire commanding them to appear, and no date or hour had been set for trial, and the jury that heard this case was not summoned or qualified as provided in Section 1178-38, General Code, but the same was assigned for trial to a regular jury on May 18, 1953, and was tried on May 18 and May 19, 1953.

It is our opinion that it was necessary to comply with the conditions precedent, as specified in Section 1178-38, before the court and jury had jurisdiction of the subject matter. For authorities in this matter we cite the following:

18 American Jurisprudence, 961, Section 317:

“To the maintenance of condemnation proceedings it is essential that all preliminary steps prescribed by the statute be taken, for such steps are jurisdictional and may not be disregarded.”

20 Corpus Juris, 888, Section 315:

“Conditions Precedent — 1. In General. The statutes commonly prescribe various conditions precedent to the right to exercise the power of eminent domain, and these must be complied with or the proceedings will be void. ’ ’

29 Corpus Juris Secundum, 1150, Section 222:

“In General. Failure to comply with statutory provisions imposing conditions precedent to the acquisition of property by proceedings to condemn or appropriate usually renders the proceedings invalid.”

Martin v. City of Columbus, 101 Ohio St., 1, 127 N. E., 411, the syllabus of which is as follows:

“1. An action brought by a municipality to condemn private property under the Constitution and laws of Ohio is a proceeding in rem.
“2. In such proceeding, there are no formal pleadings or definite issues, which admit of affirmation upon one side and denial upon the other, and hence the doctrine of ‘burden of proof’ has no application.
“3. The jury acts merely as an appraising or assessing board, determining the fair market value of the property from all the evidence submitted.”

Also, on page 6:

“The plaintiff, relying upon the right of eminent domain, is obliged to set the machinery of the law in operation in conformity to the constitutional requirement and the statutes pursuant thereto, in order to secure the title and possession of the property. The property owner need not even appear. The Constitution and the laws protect him as to ‘full compensation or just compensation for the value of the property taken.’ ” Also, on page 7:

“Those who seek to dispossess others of their constitutional right of private property, under the provisions of the extraordinary power of eminent domain, should have cast upon them the burden of proving to the satisfaction of the court and jury that they have performed, or are willing to perform, their full constitutional and statutory duty in the premises touching such full or just compensation. Such provision is special and in derogation not only of the common law but also of the general provision of the Constitution, and therefore should be strictly construed.”

That case was distinguished in Tennessee Gas Transmission Co. v. Wolfe, 159 Ohio St., 391, 112 N. E. (2d), 376, the syllabus of which is as follows:

“In an action for the condemnation of land, the owner has the burden of proving claimed special damage to residue, such as that to underlying minerals. (Martin v. City of Columbus, 101 Ohio St., 1, distinguished.) ”

Otherwise the case follows the one just cited.

Also, 6 Nichols on Eminent Domain, 18, Section 24.2:

“It is well settled that, in such a case, if there are in effect general provisions of statute prescribing the procedure for taking land for public use and the method of ascertaining the damages, such provisions are by implication made a part of the law granting the authority to exercise eminent domain in a particular case, and the method of procedure authorized by the Legislature in such case is thus made clear, so- that there can be no question in respect to the jurisdiction of the tribunal by which the power is sought to be exercised.”

At page 28, Section 24.2 [3] :

“When land is taken or damaged in the course of the construction' of a public improvement by authority of a valid statute and in compliance with all the essential requirements of law, and the statute which authorizes the taking provides a process which may be instituted by the owner of the land for determining and recovering compensation or damages, the statutory remedy is exclusive and the owner cannot enforce the payment of compensation or damages in any other form of action.”

At page 46, Section 24.6:

“Conditions precedent to the exercise of the power of eminent domain which are set forth in statutes investing certain public and private entities with such power, or in the procedure in connection therewith, must be complied with to give validity to the subsequent proceedings. ’ ’

At page 82, Section 25.1 [1]:

“In the states in which condemnation proceedings are considered judicial, a party seeking to take land by eminent domain must first satisfy the court that it has been authorized by the Legislature to exercise the power, that the statute purporting to grant such authority is constitutional, that the conditions exist under which it was provided that the authority might be exercised, and that the condemnor has complied with the requirements of the statute. All of these objections are also open to an owner of land taken by eminent domain in a state in which condemnation proceedings are considered administrative and not judicial, and he is constitutionally entitled to a hearing thereon before a judicial tribunal; but he must raise such objections in certiorari or other appropriate proceedings instituted by himself, rather than in defending proceedings instituted by the condemnor. ’ ’

At page 109, Section 26.111:

“The allegations of the petition must show compliance with the statute under which the proceeding is brought. All jurisdictional facts must be set forth.”

At page 147, Section 26.121 [2]:

“It is well settled that an owner of land sought to be taken, who has not received the notice of the proceedings required by statute or upon whom process has not been served in the manner provided by law, by appearing before the court or board with which the petition was filed, waives the defect in the service, and the tribunal in question acquires jurisdiction over him and his property. If, however, the tribunal has no jurisdiction of the subject matter, the owner merely by appearing and answering does not waive his right to object to the jurisdiction even in a collateral proceeding. ’ ’

At page 257, Section 26.72:

“A fortiori, when the condemnation of land is effected by judicial proceedings, in which the owner may appear and insist upon the observance of every substantial requirement of law before his title is divested, once a final judgment of condemnation has been entered, sneh judgment cannot be attacked collaterally in any other form of action, except for lack of jurisdiction, fraud, or where such judgment is otherwise void.”

At page 260, Section 26.72:

“The jurisdiction of courts over eminent domain proceedings is wholly statutory, and no court has jurisdiction in such matters except and in so far as it is given jurisdiction by the provisions of statute. If a statute gives a certain court authority to lay out highways upon proceedings originating with a petition signed by ten adult residents, it may well be argued that such court has no jurisdiction to act on a petition signed by nine adults and one minor. If it has authority to act after the lapse of a certain specified number of days from the return day, it has no jurisdiction to act earlier. There is almost no irregularity in procedure so trivial that it cannot be plausibly argued that it is fatal to the jurisdiction. ’ ’

It is claimed by the appellee that since the appellants did not make objection to this panel by a challenge to the array of jurors, they waived this defect. Section 11419-50, General Code, on challenge of array reads as follows:

“A challenge to the array may be made and the whole array set aside by the court, when the jury, grand or petit, was not selected, drawn or summoned, or when the officer who executed the venire, did not proceed- as prescribed by law. But no challenge to the array shall be made or the whole array set aside by the court, by reason of the misnomer of a juror or jurors; but on challenge, a juror or jurors may be set aside by reason of a misnomer in his or their names; but such challenge shall only be made before the jury is impaneled and sworn, and no indictment shall be quashed or verdict set aside for any such irregularity or misnomer if the jurors who formed the same possessed the requisite qualification to act as jurors.”

This section of the Code clearly has no application in the case under consideration. The section clearly states in its own language that it relates to cases where the array was not properly drawn, selected or summoned, because of some irregularity in drawing the name of a juror or a misnomer of a juror.

Jurisdiction has been defined as the legal right to hear and determine a cause. Clearly, this regular jury panel was not authorized by law to hear and determine this cause. It is true that counsel and the parties agreed to have the matter heard before the regular jury panel. However, neither the parties nor counsel by their acts could confer jurisdiction.

The conditions precedent required to be performed in an appropriation case are part of the law of such case, and these conditions are made for the benefit and protection of both the property owner and the political subdivision making the appropriation. The appellants were entitled to have the question of compensation and damages for the taking of their property submitted to a special jury and the right to have the question submitted to and determined by a jury especially chosen, as provided by law for that purpose. Any other procedure in violation of the conditions precedent and the requirement for a special jury would deprive the appellants of due process and would result in the taking of their property in violation of their constitutional rights.

For the reasons herein stated, assignments of error Nos. 3, 4 and 5 are well taken, and the court below committed prejudicial error in not compelling the parties and counsel to follow the procedure laid down in Section 1Í78-38, General Code.

As to assignments of error Nos. 2 and 3, we find in the record as to the court’s charge the following:

“Now it has been admitted that one side of damages requested and upon which evidence has been introduced must find its way into your verdict, that is the item of $630.50. It is admitted by the state of Ohio that these property owners are entitled to that much damage as a result of the pipe line which they were required to install.” -

And the court said further:

“And as damages to the residue of the owners’ land — a blank space — now in that blank you will insert what you determine to be the damages to the residue, keeping in mind that it must be at least $630.50 — and that goes in on that line.”

For special damage the sum of $630.50 was allowed. It has no relation to damages to the residue and should not have been so connected in the charge of the court as a part of the damages to the residue. It was misleading and erroneous on the part of the court in its charge. There was substantial evidence in the record as to the damages to the residue, and we are of the opinion that the amount of damages allowed in the court below was inadequate and was manifestly against the weight of the evidence.

For these reasons assignments of error Nos. 2 and 3 are well taken, and the judgment of the Court of Common Pleas is reversed and the cause is remanded to that court for further proceedings according to law.

Judgment reversed.

Putnam, P. J., concurs.

Montgomery, J.,

concurring in the judgment.

I concur in the reversal of the judgment. However, I am unwilling to approve Judge McClintock’s position in view of the record before us.

The situation of which appellants now complain was produced by their attorney of record, who, it was stated in court, is the father of the chief appellant. Because the result obtained by the decision of the jury did not meet the expectation of those who invoked the action, they should not be heard when they now complain.

However, the award was grossly inadequate. It was inadequate for the land taken. Nothing was allowed as damages to the remainder. Certainly an agreed amount for the restoration of a destroyed water line cannot be construed as damage to the land.