author: By WISEMAN. PJ.

text:
    BROWN, Plaintiff-Appellee, v. TERNSTEDT DIVISION, GENERAL MOTORS CORPORATION, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5037.
    Decided March 22, 1954.
    Roscoe R. Walcutt and Alfred J. Henney, Columbus, for plaintiff-appellee.
    Vorys, Sater, Seymour & Pease, James O. Seymour, of Counsel, Columbus, for defendant-appellant.
   OPINION

By WISEMAN. PJ.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin County. The plaintiff, Faye Brown, suffered an injury while working for the General Motors Corporation, Ternstedt Division, Columbus, Ohio, which was amenable to the Ohio Workmen’s Compensation Act.

The Industrial Commission allowed the claim of the plaintiff to the extent of granting compensation for medical treatment for the injury, but disallowed the claim for plaintiff’s disability on the ground that the disability was not the result of the injury suffered on May 27, 1949. On application for rehearing evidence was taken before a referee. On the evidence and the record the Industrial Commission, after rehearing, entered the following order:

“It is ordered that the claim be disallowed on rehearing as to claimant’s psychoneurosis for the reason that such condition is neither due to nor the result of the injury in this claim sustained May 27, 1949.”

On appeal to the Common Pleas Court the jury returned a verdict for the plaintiff and judgment was entered on the verdict.

The record shows that three medical experts were called on behalf of the plaintiff and testified that the plaintiff’s disability was caused by the injury suffered on May 27, 1949, but used different medical terms in describing her disability. One medical expert testified that plaintiff was suffering from “cerebral traumatic condition”, or “post-traumatic cerebral syndrome”. He defined “syndrome” as simply a group of symptoms. Another testified that plaintiff suffered from “some form of neuralgia”, with “cerebral psychosis or cerebral injury to the nerves”. Another testified that plaintiff was suffering from psychoneurosis. He testified that psychoneurosis is “a functional nervous disturbance in which there is no actual psychological disturbance to account for the signs and symptoms for which they complain”. He also testified that such condition results in a disability, and that at the time he examined the plaintiff she was disabled.

Two medical experts were called on behalf of the defendant, both of whom testified that there was no causal connection between the plaintiff’s disability and the injury sustained on May 27, 1949. One medical expert testified that the plaintiff suffered from “psychoneurosis, hysterical type”. The other testified that plaintiff suffered from “a psychiatric condition, which existed in the form of a psychoneurosis of the mixed variety, mixed type.”

The jury had the right to believe any part or all of the testimony of the several witnesses. There is substantial evidence in the record supporting the verdict. From the evidence presented the jury could have concluded that plaintiff was suffering from some form of nervous disorder which resulted from the injury sustained on May 27, 1949, or from a form of psychoneurosis which resulted from the injury. There is ample evidence in the record from which the jury could conclude that there was a causal connection between the injury and plaintiff’s disability.

■ The assignments of error relate to the admissibility of evidence, the refusal of the trial court to give three special charges submitted by the defendant-appellant, and the general charge. All the assignments of error involve the basic question presented, on this appeal, which is:

When a claim for compensation as a result of an injury is described by the claimant as: roaring noise in ear, hearing impaired, headaches, dizziness, loss of memory, may the Commission limit the nature of the disability to “psychoneurosis” in disallowing the claim on the ground that the disability was not the result of the injury?

Defendant contends that the trial court proceeded on the theory that the question t-o be determined was whether plaintiff’s present disability was the result of the injury and refused to limit the question as to wether the psychoneurosis was the result of the injury. Accordingly, the court admitted evidence to the effect that plaintiff was suffering from a disability which was not described as “psychneurosis”. The court refused to give three special charges submitted by the defendant limiting the issue to the question as to whether the plaintiff was suffering from psychoneurosis and the causal connection of the psychoneurosis to the injury. In the general charge the court instructed the jury that the question for determination was: “Did said injury directly and proximately cause the disability of which the injured employee complains?” The court also charged as follows:

“The only issue for this jury to decide is whether or not the disability of which the plaintiff, Mrs. Faye Brown, complains, and for which the compensation is sought, is the direct and proximate result of the injury * *
“In other words, is there a causal connection between the injury of May 27, 1949, and the disability of which she now complains?”

At the end of the charge the court instructed the jury as follows:

“There has been a great deal said about psychoneurosis. The court tells you that the issue as submitted to you is not limited to psychoneurosis. The finding of the Industrial Commission under the circumstances must be, in order to have an appeal to this jury, that the claimant’s disability is not the result of the injury, whatever that disability may be.”

From the record it does not appear that the claimant made claim for compensation on the ground that she suffered from psychoneurosis. The term, “psychoneurosis”, was injected into this case at the time of the rejection of the claim by the Industrial Commission. The claimant, in her application, in describing the nature of the injury, stated: “Claimant was struck on left ear with steel plate; cut ear”. In describing her disability the claimant stated:

“Claimant has a roaring noise in left ear, hearing impaired; headaches, dizziness, loss of memory.”

On the state of the record the point is made by the defendant that the Commission has retained the exclusive right to determine the extent of all disabilities claimed by plaintiff with the sole exception of psychoneurosis; that the Commission in this case has a continuing jurisdiction with respect to disabilities other than psychoneurosis. Counsel for defendant cites §1465-86 GC (Sec. 4123.52 E. C.), which in part provides:

“The powers and jurisdiction of the Board over each case shall be continuing, and it may from time to time make such modification or change with respect to former findings or orders with respect thereto, as, in its opinion may be justified.”

Also in §1465-90 GC (§4123.51 E. C.), which in part provides:

“The commission shall have full power and authority to hear and determine all questions within its jurisdiction, and its decisions thereon shall be final, except as provided in this section. The commission shall definitely and specifically pass upon each and every issue raised in the claim, necessary for a proper and complete decision thereon. In all claims for compensation on account of injury, * '* *, if the commission denies the right of the claimant to receive compensation or to continue to receive compensation the order of the commission shall state the ground or grounds on which the claim was denied; and if the claim was denied on any of the following grounds: * * * that the claimant’s disability is not the result of the injury; * * * then the claimant may within thirty days after the receipt of notice of such finding of the commission file an application with the commission for a rehearing of his claim, whereupon notice shall be given to the employer and whereupon the former action of the commission thereon shall be vacated. If the order of the commission does not state the ground or grounds on which the claim was denied, or if the order of the industrial commission is not definite in such regards, and if the commission shall refuse to correct such order after the claimant shall have filed with the commission his application for such correction and shall have therein suggested the particulars in which such order should be corrected, the claimant may maintain an action in mandamus against the commission in the supreme court of Ohio, * *

Counsel for defendant, in support of his position, cites State, ex rel. Depalo, v. Industrial Commission, 128 Oh St 410, and State, ex rel. Rankin, v. Industrial Commission, 67 Oh Ap 229, in support of the proposition urged. In our judgment these cases are not controlling in the instant case where the factual situation and the question presented are dissimilar. These cases are authority for the proposition that the order made by the Commission wherein the claim was denied on jurisdictional grounds was an appeal-able order. Neither do we find State, ex rel. Cline, v. Industrial Commission, 136 Oh St 33, or State, ex rel. Lubens, v. Industrial Commission 143 Oh St 609, applicable.

■ The question here is whether the court erred in extending the scope for the introduction of evidence and in instructing the jury that they were not limited to the issue of psychoneurosis but may consider whether the disability of which plaintiff complains was caused by the injury.

There is nothing in the record from which to conclude that plaintiff did not suffer from a disability of which she complains in her action. On the other hand, there is ample and substantial evidence to support the contention that she suffers from the disability of which she complained at the time of the filing of the application and at the time of the rehearing. There is only one disability involved for which plaintiff seeks compensation. It may be described as a nervous disorder. The plaintiff never sought compensation on the ground that she was suffering from psychoneurosis. Two medical experts pinned that label on her disability; other medical experts described her disability in other terms.

It will be observed that the order of the Commission did not find that plaintiff was suffering from psychoneurosis. It simply states that the “claim of psychoneurosis” is disallowed on the ground that the claimant’s disability was not the result of the injury. The essence of the order was the absence of causal connection. The ground for the disallowance was not “psyconeurosis”, but was the failure to show causal connection; the ground for disallowance is sufficiently stated and meets the statutory requirement. Sec. 1465-90 GC (§4123.51, R. C.). It was the disability, and not the name of the disability given by the Commission, which was to be considered by the trial court. The medical terminology, under the facts here, was immaterial. We cannot conclude that the Commission intended to or had the authority to split the plaintiff’s claim.

Does the Commission have the authority to limit the order to psychoneurosis, and, if so, is the plaintiff bound by it? We must look to the statute for the answer. Sec. 1465-99 GC (§4123.51, R. C.) sets forth in detail the jurisdiction of the Commission and its authority and duties with respect to such orders. The statute mentions “claim” or “disability” After a close examination of all of the provisions of this section we find no authority conferred on the Commission to limit the order to psychoneurosis where the claimant contends that she is suffering from only one disability and where the evidence adduced shows that she is suffering from only one disability, which she did not describe as psychoneurosis. It will be presumed that the Commission intended to dispose of all issues raised as required by §1465-90 GC (§4123.51 R. C.). On appeal the trial court was not limited to the issue of psychoneurosis but could take evidence on the nature of her disability and determine under all of the evidence whether the disability from which she was suffering was the result of the injury. This ruling is supported by Baugh v. Industrial Commission, 63 Oh Ap 142, and State, ex rel. Miner, v. Industrial Commission, 84 Oh Ap 250.

We find no assignment of error well made. Judgment affirmed.

MILLER and HORNBECK, JJ, concur.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    RIGHTER, Plaintiff-Appellant, v. SCHAEFER et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23115.
    Decided November 10, 1954.
    Charles Bradler, Cleveland, for plaintiff-appellant.
    Siegel & Siegel, Cleveland, for defendant-appellee.
   OPINION

PER CURIAM:

In this appeal on questions of law from a judgment in the Municipal Court of Cleveland in favor of plaintiff in the sum of $150.00, plaintiff assigns as error that the judgment is contrary to law and the evidence and that the trial court erred in overruling a motion for a new trial.

While the plaintiff recovered judgment in the sum stated, the complaint in substance is that the judgment in his favor is inadequate and that it should have been entered in the sum of $1080.00 the full amount for which the suit was brought for rental of two lift trucks hereafter described.

In his amended petition, the plaintiff alleges, that on December 3, 1951, he entered into a contract in writing with defendants under the terms of which he rented to defendants one “Clark Yard Lift” (truck) 60, 6000 lbs. capacity at the rate of $3.50 per hour, with a 30-hour per week minimum, and one “Ross” Series 5 (truck) 5000 lb. capacity at the rate of $2.50 per hour with a 30-hour per week minimum. Plaintiff further alleges that

“Said equipment was delivered to said partnership on said date and which said equipment was retained by defendants herein to January 12, 1952.” (emphasis ours)
The defendants by way of answer admit entering into the contract pleaded by plaintiff, but deny “that said equipment was furnished to the partnership on said date and deny that said equipment was retained by said defendants herein to January 12, 1952.”

By way of affirmative defense, defendants allege in substance that at the time of entering into the agreement it was specifically agreed that plaintiff would furnish the equipment when and if needed by defendants and that “the minimum rental provided for in said agreement was to be effective only when and if the equipment was furnished to the job and used.”

An examination of the evidence, as shown by the record, sustains the answer of the defendant because on trial it was not disputed that the equipment remained in the possession of the plaintiff during the entire time for which rental was claimed.

The evidence further shows that while the defendants had signed an order for use of the equipment both copies thereof were retained by plaintiff and it was explained by plaintiff in answer to a question that they kept the contract in blank as they would have to fill in the meter reading at .the time the machine was taken out of their garage and also “that they might use it in our business for an hour or two and we didn’t want to charge them for that time.”

It appears further that the plaintiff did not, through its agent, sign the order until just before suit was commenced. While some of the evidence was in dispute, we cannot find that the judgment of the court in sustaining the position of defendants on these issues was contrary to the manifest weight of the evidence.

But it is claimed by the plaintiff that the contract provided for k minimum rental for a 30-hour week. Upon examination of the contract dated December 3, 1951 (plaintiff’s exhibit 1), we find that it does not contain a provision requiring a minimum rental when not delivered and when not in use. Instead it contains blank spaces to fill in the date and time of “meter out” and “meter in” which together with all the evidence would indicate that the use of the equipment was to be paid for according to meter readings with a minimum for time used, on a rental basis after delivery. This is further borne out by one of the witnesses for plaintiff, corrobative of testimony by defendant, that the defendants had placed an order with other parties for the purchase of similar equipment before the order for rental of this equipment was given, and sustains the testimony of defendants that rental charges were to commence only if and when the equipment was put in use by them. Therefore, while the issue was in dispute, we cannot say that the court erred in finding in favor of the defendants as there was credible evidence in this respect to sustain the judgment of the trial court.

One other question is presented by the record The trial court allowed damages to plaintiff in the sum above stated of “$150.00.” We find no evidence in the record to support such a judgment in favor of plaintiff. This question, however, is not before us as the defendant has not filed a cross-appeal or assigned it as error.

For all the reasons stated, we conclude that the judgment of the trial court must be affirmed. Exceptions noted. Order see journal.

HURD, PJ, KOVACHY, J, SKEEL, J, concur.


author: By HUNSICKER J:

text:
    WERTZ, In Re, Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22978.
    Decided March 10, 1954.
    McConnell, Blackmore, Cory & Burke, Cleveland, for appellant.
    (STEVENS, J, HUNSICKER J, of the 9th District; COLLIER, J, of the 4th District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER J:

On March 10, 1951, Ivan C. Wertz filed an affidavit in the Probate Court of Cuyahoga County, Ohio, alleging that his daughter Bette Z. Wertz (age 24) was “mentally ill and in need of treatment.”

On March 20 1951, a medical certificate signed by “David Sprague. M. D.” was filed in the Probate Court. This certificate indicated that Dr Sprague had examined Bette Z. Wertz at “Windsor Sanitarium,” and that Bette Z. Wertz was then mentally ill. The file of original papers transmitted to this court from the Probate Court also contains a report signed by “Maurice H. Berg, Deputy Clerk.” This report, although not marked filed in the court or included in the official transcript, purports to be a “Case History of Mental Illness” given to Mr. Berg by the mother of Bette Z. Wertz.

Neither the official transcript of the original pleadings in and docket and journal entries of the Probate Court in this matter, nor the Probate Court file of the original papers, contains a notice, a subpoena, or any indication whatsoever, to any witnesses or to Bette Z. Wertz that a hearing on the affidavt was to be held.

On March 20, 1951, the following journal entry was spread upon the records of the Probate Court:

“This day this cause came on to be heard and the said Bette Z. Wertz was brought before the Court. Thereupon, the Acting Probate Judge proceeded with the examination, and having heard the testimony of Dr. David Sprague and being satisfied that said Bette Z. Wertz is mentally ill; and that she has a legal settlement in Cleveland Heights, in Cuyahoga County; and that she has been a resident of the State of Ohio for one year next preceding this date; that her mental illness has occurred during the time she has resided in this State; that her being at large is not dangerous to the community; and that she is a suitable person for treatment at the Hawthornden State Hospital, Ohio. It is therefore ordered that Dr. Sprague,'the medical witness in attendance, make out a medical certificate, setting forth the facts as is provided by law. And it is further ordered that an application be made to the Superintendent of said Hawthornden State Hospital for the admission of said Bette Z. Wertz and that a copy, under seal, of the certificate of said medical witness and of the findings in this case, be transmitted to said Superintendent; and it is further ordered that said Bette Z. Wertz be committed into the custody of Windsor Hospital until she can be admitted into said Hawthornden State Hospital; and this cause is continued.”

Nothing further transpired in this matter until on July 7, 1953, when a petition to vacate the order of March 20, 1951, was filed in the Probate Court by Bette Z. Wertz.

We do not have a bill of exceptions to determine from such document the evidence submitted to the trial court in the hearing on the petition to vacate the finding of mental illness. The petition makes some very definite allegations concerning the situation as it affects Bette Z. Wertz Some of such allegations are to the effect that the petitioner-appellant herein returned to college less than two months after the order finding petitioner mentally ill, thereafter secured employment in the mathematics sections of one of the great technical schools, and that, at the time the petition was filed, she was a candidate for the degree of Doctor of Philosophy in Physics.

The Probate Court on August 14, 1953, entered the following order:

“This day this cause is further heard, and it is by the court ordered that the petition be dismissed at the petitioner’s cost. See opinion.”

An appeal on questions of law from the judgment so entered is before this court, claiming that the Probate Court erred in overruling appellant’s petition to vacate its order of March 20, 1951, adjudging appellant mentally ill.

The appellant, Bette Z. Wertz, presents to this court the following issues:

“(1) Did the court’s failure to give appellant notice and opportunity to be heard at the inquest proceeding render its judgment void for lack of due process?
(2) Was the court’s failure to abide by the provisions of 1890-25 such irregularity as demands the vacation of its judgment?”

The original proceedings herein, to secure the judgment of mental illness, were instituted pursuant to §§1890-23 to 1890-27, inclusive, GC (now §§5123.18 to 5123.23, incl., R. C.)

Sec. 1890-25 GC (now §5123.21 R. C.) provided that:

“No hearing shall be had upon the affidavit provided for in section 1890-23 of this chapter until the probate judge has caused written notice by mail or otherwise as the court may direct to be given to the following persons:
(1) Any one person, whether a relative or not, designated by the person believed to be mentally ill, if such person is considered by the court is competent to make a selection. If the person is considered by the court incompetent to make a selection, then notice shall be sent to the person’s attorney, if any, or to the next of kin or a friend of the person other than the person who filed the affidavit. If the person selected to represent the patient, fails to appear, the court shall appoint a guardian ad litem to act in the patient’s behalf.
“2. Any person or persons that the probate judge determines should have notice of such nearing.
All persons entitled to notice as herein set out shall be permitted to waive such notice, and their failure to appear shall not invalidate any action taken by the court under §1890-27 GC.”

There is nothing in the record before us to show that the above statutory procedure was complied with.

The statutes and the proceeding thereunder, which we must examine herein, have been interpreted in an able opinion by the Court of Appeals of Allen County — State, ex rel Parsons, v. Bushong, Supt., 92 Oh Ap 101. With the reasoning and conclusions in that case we fully agree.

Counsel for the petitioner has, in an excellent brief, presented to this court numerous authorities which uphold the principle that notice is an essential element in such proceedings as are now before us.

See: Simon v. Craft, 182 U. S. 427, 21 Sup. Ct. 836, 45 L. Ed. 1165; Barry v. Hall, 98 Fed. 2d, 222; In re Masters, 216 Minn. 553, 13 N. W. 2d 487; In re Application of Wellman, 3 Kan. App. 100.

The record of the Probate Court of Cuyahoga County in the instant case shows upon its face that the court was without jurisdiction, and, therefore, the judgment that the petitioner was mentally ill, and the commitment made under such order, were illegal and void.

The judgment is reversed as contrary to law, and final judgment entered for appellant.

STEVENS, PJ, COLLIER, J, concur.


author: By HORNBECK, J.

text:
    COLUMBUS (City), Plaintiff-Appellee, v. BALDASARO, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5065.
    Decided October 22, 1954.

      Chalmers P. Wylie, City Attorney, Malcolm M. Prine, Senior Assistant City Attorney (Police Prosecutor), Columbus, for plaintiff-appellee.

      Lynch & Rosenberry, Edward F. Lynch, of Counsel, Columbus, for defendant-appellant.
   OPINION

By HORNBECK, J.

This is an appeal on questions of law from sentence and judgment on conviction of defendant-appellant of the offense of using a dwelling as a rooming house without a permit from the building inspector of the City of Columbus. The premises involved were what is known as 16 West Goodale Street. The ordinance which it was claimed was violated is “Section 616 City Code (Penalty Sec. ID.”

We hereinafter refer to the appellee, as plaintiff and the appellant, as defendant. Defendant tested the validity of the proceedings in practically every way known to the law.

Motion to quash, setting out six grounds, was filed and overruled. A motion to quash reaches only such defects as are apparent upon the face of the record. No one specified in the motion so appears. Motion was properly sustained.

Defendant requested a Bill of Particulars of six separate, detailed statements. Defendant cites in support of his right to request such bill, State v. Hutton, 132 Oh St 461, which it is claimed overruled our opinion in State v. Gutilla, 59 Abs 289, wherein we held that §4576 GC, had no application to the Municipal Court of the City of Columbus. When we are required to decide the effect of State v. Hutton on the Gutilla case, we will have a serious question. We do not reach it here for the reason that, if it be granted that the defendant was entitled to a Bill of Particulars, he was entitled to no one of the detailed statements which are the subject matter of his request. The request was properly refused.

Defendant demurred to the affidavit upon the grounds that the Building Code of the City of Columbus, and particularly Division 14, of Chapter 48, is unconstitutional. Counsel relates the ordinance to no provision of our State or Federal Constitution and it does not appear that the ordinance offends either Constitution. The demurrer was properly sustained.

The cause came on for trial, plaintiff offered its evidence and rested. The defendant moved for dismissal of the affidavit which was overruled. This motion was renewed at the close of defendant’s evidence. These actions of the court are questioned by the assignments of error. We will discuss them later.

The court upon consideration of the evidence found the defendant guilty as charged and sentenced him accordingly. Motion for new trial was filed and overruled and this action is made the subject of one of the assignments of error, which we discuss later. Defendant requested separate findings of fact and conclusions of law “as required by §11421-2 GC, or related criminal statutes”. The section cited relates only to civil actions and there is no like provision in the criminal code of which we have any knowledge. The court correctly denied this request.

Defendant claims that the finding and judgment are not supported by and are contrary to the evidence.

We consider the assignments which we have heretofore reserved.

It is basic, as stated in 28 O. Jur. 492, that,

“Statutory provisions requiring the publication of ordinances are generally regarded as mandatory, and a substantial compliance with such provisions is therefore ordinarily essential to the validity of an ordinance. And by express statutory provision” (§§4233 GC, 731.26 R. C.), “the fact that there was no legal publication or posting of an ordinance constitutes a sufficient defense to any suit or prosecution thereunder.”

Cases are cited supporting the text. Defendant asserts that the ordinance in question and particularly the section under which he is prosecuted is invalid because proper publication of its enactment was not made.

The Municipal Court judge who tried this case and this court are required to take judicial notice of any applicable ordinance of the City of Columbus. Orose v. Hodge Drive-It-Yourself Co., 132 Oh St 607. But he or we are not required to take judicial notice of what procedural steps were followed in the enactment of such ordinances. Such information is available from the record as to two ordinances only, 826-52, passed September 29, 1952, published in the City Bulletin of the City of Columbus, October 4, 1952, and 1116-52, passed December 8, 1952, and published December 13, 1952. The pertinent part of these ordinances evidently was drawn and published to meet the requirement of §4230 GC, as it relates to new matter in city ordinances. Sec. 4230 GC, insofar as applicable, reads:

“* * * A new ordinance so published in book form which has not been published according to law, and which contains entirely new matter shall be published as heretofore required by law, provided however, that if such revision or codification is made by a municipality, and the same contains new matter, it shall be sufficient publication of such codification, including such new matter, to publish, in the manner required by law as to the enactment of the ordinances, a notice of the enactment of such codifying ordinance, containing the title of such ordinance and a summary of the new matters covered by the same. * * *”

From the language of the above mentioned ordinances, it is established that the sections thereof germane to this prosecution and this appeal, contain new matter. To comply with the mandate of §4230 GC, it was necessary for the City to set forth in the publication of the ordinance, 1116-52, implementing the codifying ordinance, 826-52, “the title of such ordinance and a summary of the new matters covered by the same”.

Ordinance No. 826-52 recites its purpose, the adoption of a new revision and codification of the ordinances of the City of Columbus, which has been completed: that all ordinances * * * included in said Code have been duly published * * except * * *, and Chapter 48 relative to the Building Code,

“of which notice of inclusion in the said Code is hereby given in accordance with §4230 GC,”
“That the City Clerk * * is * * authorized and directed to publish a notice of the enactment of this ordinance and a summary of the new matter contained in said Code, as provided by 4230 GC.”

It will be noted that 4230 GC, provides that the publication of title and subject matter of new ordinances shall be made with and at the same time as publication of the codification ordinance. This was not done and the purported summary was not made a part of the Ordinance No. 826-52, passed September 29, 1952, published October 4, 1952, but carried into the subsequent ordinance No. 1116-52, passed December 8, 1952, and published December 18, 1952. If we are correct in our interpretation of the intendment of §4230 GC, the provisions of the former ordinance were not completé. If complete, the publication of the first ordinance on October 4, 1952, was in accord with the requirement of Section 35 of the City Charter of/the City of Columbus, that “Every ordinance or resolution shall be published at least once in the City Bulletin within twenty days after its final passage * *

Did the ordinance, No. 1116-52 and its publication comply with §4230 GC, as it purported to do? Its stated purpose was to accomplish the publication of the new matter contained in the revision and recodification of the Code of the City of Columbus. The pertinent part of the ordinance is as follows:

“Section 1. That in accordance with Ohio General Code, §4230, notice is hereby given of the inclusion in the codification ‘The Code of the City of Columbus, Ohio, 1952, of new matter heretofore unpublished which new matter is more particularly described as follows:

Chapter 1.— * * *

Chapter 48.— The Building Code of the City of Columbus, Ohio.

Article I, Section 1-11, relating to general provisions;

Article X, Sections 464-626, relating to miscellaneous provisions.”

Section 616 of Article X, of the Building Code of the City of Columbus is the basis of the prosecution of the defendant.

“Miscellaneous provisions”, as carried in the ordinance, affords a reader thereof no specific information whatever of the subject matter encom- • passed within the term. Such information is essential to a compliance with the obligation that, the publication contain a summary of new matter in the ordnance. The word “summary” as defined by Webster sets forth its essentials:

“An abridgment or compendium containing the sum or substance of a fuller statement.”

Neither the ordinance or its publication met the requirement of §4230 GC.

Defendant’s motion to dismiss the affidavit and release him should have been sustained when made at the conclusion of the trial because there was no valid ordinance upon which the affidavit could be based. This disposes of a determinative assignment of error but as we are required to pass upon all errors assigned, we consider them.

The section of the ordinance under which defendant was prosecuted provides that no building shall be used as a rooming house unless and until application has been made to the Building Inspector for permission for such use and a permit issued. Further provides, that such permission shall be issued only to persons of good moral character and shall not be transferable to any other person or premises. Appellant claims that the authority granted to the building inspector to make determination of good moral character of an applicant for a permit to operate a rooming house is a delegation of legislative authority which invalidates the ordinance. We do not agree. The standard to determine good moral character is so well recognized that it does not require legislative direction to further define it.

Chapter 48, Section 1 of the applicable ordinance under the heading “Definitions” provides:

“Hotel. — Any building containing ten or more guest rooms intended or designed to be used or which are used, rented or hired for sleeping purposes by guests, and having a public dining room or office and usually maintaining a register of guests, and of a more public character than an apartment house or tenement.”
“Rooming house shall mean and include every dwelling house and other building or structure kept, used or held out to be a place where sleeping or lodging or light-housekeeping rooms are offered for pay for three or more persons.”

If there were no more in the ordinance, definitive of rooming-house than that above quoted, the evidence in the case establishes that the building operated by defendant is a rooming house. But the ordinance continues with its definition of “Rooming house”, Chapter 48, Sec. 1:

“A residence-building, other than a hotel, in which part or parts are kept, used or held out to be a place where sleeping accommodations are offered for pay for three or more persons.”

(Emphasis ours.)

It is evident that the building here in use is not a residence building other than a hotel. It is a hotel. The record establishes that every essential set out in the definition of Hotel, in the ordinance, is found in the building operated by the defendant. There is a dining room in the building, but it is operated separately, but there is an office which meets the requirement of the definition “and having a public dining room or office” in the alternative. It further appears that the premises involved and their operation had been since 1945 up to 1952 licensed by the State Fire Marshall of Ohio as a hotel. No license was issued in 1953 but it was not refused because the place was not a hotel. The definition of a rooming house in the ordinance evinces a purpose to exclude a hotel from its operation.

The finding that defendant was guilty as charged was not supported by and is contrary to the evidence.

The first, third, fourth, fifth, sixth and tenth assignments of error are not well made. The second, seventh, ninth and eleventh assignments are sustained.

The judgment will be reversed, affidavit dismissed, defendant discharged and cause remanded.

WISEMAN, PJ, and MILLER, J, concur.


author: By HURD, PJ. By SKEEL, J.

text:
    IN RE APPROPRIATION OF PROPERTY OF COOLEY ELLIS BY OHIO TURNPIKE COMMISSION.
    Ohio Appeals, Sixth District, Lucas County.
    No. 4777.
    Decided February 17, 1955.

      Bowman, Hanna & Middleton, Bowling Green, for plaintiff-appellant.
    Taylor, Cruey & Kelb, Toledo, for plaintiff-appellant.
    Frank C. Dunbar, Jr., General Counsel, Columbus, and Fuller, Harrington, Seney & Henry, Toledo, for defendant-appellee.
    (HURD, PJ, KOVACHY, J, SKEEL, J, of Eighth District, sitting by designation in the Sixth District.)
   OPINION

By HURD, PJ.

This appropriation case is here appealed on questions of law from a judgment rendered upon the verdict of a jury in the Court of Common Pleas of Lucas County. Plaintiff-appellant is Cooley Ellis the landowner, and the defendant-appellee is the Ohio Turnpike Commission.

This appeal involves a proceeding instituted by the Commission to appropriate a right of way and a permanent easement over lands of Ellis which fronted 645.43 feet on Seventh Avenue in the City of Toledo and extended back to the Wabash Railroad on Radford Road and Ogontz Avenue, 3422.94 feet, or about 2/3 of a mile.-

The jury returned a verdict for Ellis in the sum of $12,265.00 as compensation for the' property taken and $32,081.50 as damages to the residue, or a total sum of $44,346.50 for which judgment was rendered December 1, 1953.

It is claimed by Ellis that the compensation and damages awarded are “grossly inadequate” and that the court erred in many respects set forth in the assignments of error, as follows:

“1. The court erred in its failure to dismiss for want of jurisdiction at the preliminary hearing.
“2. The court erred in excluding from the evidence the plans for development of the tract for apartment houses and the fact that application for F. H. A. financing had been made.
“3. The court erred in the admission of evidence as to the cost of the property in 1947.
“4. The court erred in failing to limit the evidence of the cost of the property.
“5. The court erred in admitting a purported financial statement of Ellis.
“6. The court erred in permitting the witness, Schenck, to testify.
“7. The court erred in permitting evidence as to the cost of other properties.
“8. The court erred in instructing the jury as to the value of testimony of experts.
“9. The court erred in its instructions as to billboard and sign rights, and in failing to charge in relation to abutter’s rights appropriated.
“10. The verdict was manifestly against the weight of the evidence.
“11. There was misconduct on the part of a juror.”

The first assignment of error to the effect that the trial court erred in its failure to dismiss the petition for want of jurisdiction at the preliminary hearing, cannot be sustained, in view of the decision of the Supreme Court in Ellis v. Turnpike Commission, 162 Oh St 86, for further discussion of which see decision and opinion in equity appeal No. 4757, entitled Ellis v. Turnpike Commission, entered by this court November 24, 1954.

Proceeding to the second assignment of error, it is claimed that the trial court erred prejudicially in sustaining objections to the introduction of certain plans for the development of part of the subject property for multiple family dwellings. The record shows that five acres of the tract fronting on Seventh Avenue were zoned for commercial purposes and that the remainder of the tract was zoned for multiple family dwellings or apartment houses. Expert testimony was offered tending to show that the highest and best use of this remainder would be for multiple family dwellings; that because of its location on the Anthony Wayne Trail, which presently is the only limited access express highway in Toledo, the property is excellently situated for a large scale apartment house development.

The record further shows that in the year 1948, long prior to the commencement of the instant proceedings and without any knowledge that tho land would eventually be sought by the State for Turnpike purposes, Ellis had employed one Leonard H. Gerow, an architect of the firm of Gerow & Conklin of Toledo, for the purpose of drafting plans for the construction of 625 apartments to be built on the back 45.93 acres of this tract. The plans thus prepared were offered in evidence by Ellis as Exhibits 12 to 15, both inclusive, to show that the highest and best use of that part of the property would be for multiple family dwellings. The offers were made separately as to each exhibit and overruled as to each. The trial court in sustaining objections to the introduction of these exhibits, said in part;

“* * * It is not permissible, and in our opinion would be error for the court to admit in evidence plans and specifications for any specific project which is not actually in existence on the premises or which is not even under construction.”

That this conclusion was erroneous is clear from an examination of the cases of Railway v. Longworth, 30 Oh St 108; Goodin v. Canal Co., 18 Oh St 169; Sowers Supt. v. Schaeffer, 155 Oh St 454; Langaneau Mfg. Co. v. Cleveland, 159 Oh St 525.

In the case of Railway v. Longworth, supra, it appears that in the appropriation proceedings, the executors for the land owner offered before the Probate Court “to prove to the jury that long prior to the commencement of these proceedings they caused their tract of land in Locland * * to be subdivided and laid off into lots, streets and alleys for the purpose of selling the same and cause a plat of such subdivision to be made of record but which had not yet been recorded and offered to put said plat in evidence to the jury as tending to show the availability of such property for subdivision into small lots and its value thus subdivided.” (emphasis ours.) The trial court ruled “that as defendants’ plot had not been recorded nor represented a town plat, dedicated in pais, it could not be offered in evidence for any purpose, upon the issue before the jury, except to show the general location of the property, the course of the proposed railroad through the same and the availability of the property for subdivision into smaller lots.”

It will be noted that the offer in the Longworth case was allowed for limited purposes only, whereas in the case at bar the offer was rejected in toto.

The Supreme Court, in affirming a judgment of reversal of the Probate Court by the Common Pleas Court and the District Courts, held inter alia, that such plat was admissible and that it was prejudicial error to exclude it.

At page 111, the Supreme Court said in part:

“If it (the land) was more valuable in the particular mode in which it had been subdivided into lots, that fact might also be shown and in connection with such proof a diagram or plat of such subdivision was admissible, though unrecorded not as a town plat but as a diagram or plan for increasing the value of property in the market.” (Emphasis added.)

In the course of the opinion the court cited and quoted with approval from the early case of The Queen v. Brown, L. R. 2 Q. B. 630, in part as follows;

“A jury, whether the dispute be as to the value of land required to be taken by the company, or as compensation for damages by severance, in assessing the amount to which the land owner is entitled, have to consider the real value of the land and may take into account not only the present purpose to which the land is applied, but also any other more beneficial purpose to which, in the course of events at no remote period, it may be applied, just as an owner might, if he were bargaining with a purchaser in the market place. * * *.”

The decision in Railway v. Longworth, supra, stands unreversed and unmodified to this date, although recorded in 1887. In view of this decision, we believe that the argument of counsel for the Commission that “the fact that five years before the owner had employed an architect to prepare plans for multiple dwellings would have no probative value” is untenable, since the analogy between the Longworth case and the instant case is immediately apparent and unmistakable.

The rule in appropriation cases as there stated is that:

“the jury are to take into consideration the real value of land taken and the diminished value to the remainder and may for that purpose take into account not only the purposes to which the land is or has been applied, but any other beneficial purpose to which it may be applied which would affect the amount of compensation or damages.”

See Railway v. Longworth, supra, second syllabus.

This holding is likewise in harmony with the rule stated in the later case of In re Appropriation by Supt. of Public Works: Sowers, Supt. v. Schaeffer, 155 Oh St 454 (1951) as follows:

“The rule of valuation in a land appropriation proceeding is not what the property is worth for any particular use, but what it is worth generally for any and all uses for which it might be suitable, including the most valuable uses to which it can reasonably and practically be adapted.” (Parag. 3 of syllabus) (Emphasis added.)

And at page 458, the court said:

“The true value of anything is what it is worth when applied to its natural and legitimate uses — its best and most valuable uses. Goodin v. Cinn. & Whitewater Canal Co., 18 Oh St 169.” (Emphasis added.)

For a further discussion of the correct interpretation of the Goodin and Schaeffer cases, see our opinion in Ellis v. Turnpike, appeal No. 4778.

The recent case of Langaneau Mfg. Co. v. Cleveland, 159 Oh St 525, (1953) is likewise conclusive on the subject, where the court held as appears in the third syllabus:

“3. It is the duty of the court in an appropriation proceedings to afford the property owner the right to fully show the extent and character of the real estate proposed to be taken and its maximum value for any purpose for which its use is available, including the use which is presently made of it.” (Emphasis added.)

The argument advanced by appellee that oral testimony had been permitted in respect to these matters, does not cure the error of refusing to admit the plans into evidence. Neither is the error cured by the admission in evidence of Ellis' exhibit 11, showing a “grouping plan” of the entire tract. The rule of law which allowed the admission in evidence of Exhibit 11, prepared by the same architects is equally applicable to exhibits 12 to 15, inclusive, which the court refused to admit in evidence. Vissual evidence is of immeasurable value for demonstrative purposes. The familiar saying in journalistic circles that “one picture is worth ten thousand words” is peculiarly applicable here as the expert witnesses for the landowner would have been able to demonstrate by the use of the plans they claim most valuable and best uses of the property and conversely, the expert witnesses for the Commission would have had an equal opportunity to testify as to their opinions in respect thereof. The jury would thus be in a position to relate the visual evidence to the oral testimony on the subject in a most advantageous manner, without prejudice to either party. In any event, the proffered evidence was competent and should have been admitted.

Counsel for the Commission have cited and quoted from cases of many other jurisdictions which are of interest from an academic viewpoint, but which cannot be considered as authority in Ohio, in view of the decision in Railway v. Longworth, and the related cases cited, supra.

It is our conclusion, therefore, that Assignment of Error No 2 must be sustained, holding as we do that the rejection in evidence of the plans offered as Exhibits 12 to 15, both inclusive, constituted error prejudicial to the rights of the party complaining.

We proceed now to a consideration of Assignment of Error Nos. 3 and 4, to the effect that the court erred in the admission of evidence as to the purchase price of the property in question in 1947, and that the court erred in failing to limit the evidence of the cost of the property.

It appears that Ellis acquired the property in 1947 but that the deed was not delivered until January, 1948. The appropriation resolution in this case was adopted September 1, 1953, and the trial was held in November 1953. Thus it appears that trial was had some six years after the purchase of the property.

It is claimed by Ellis that the neighborhood had changed considerably and that the growth of the city was out toward Maumee along the Anthony Wayne Trail, resulting in a change of zoning and that it was error on the part of the trial court to permit counsel for appellee to cross-examine Ellis, over objection of his counsel, as to the price paid for the land. The evidence indicates that the subject premises were unimproved both at the time of purchase and at the time of trial. The trial court in ruling on this issue stated:

“It appears that the property is in the same condition as when it was acquired by Ellis.”

Counsel for appellant have cited cases from other jurisdictions and text authorities to the effect that when in an appropriation case the purchase took place several years prior to the taking, evidence of the price paid for the land is not admissible. On this question there is definitely a division of authority. However, the lav/ in Ohio, while not entirely clear, is apparently contrary to the contention of appellant. The Ohio case upon which appellant relies is Schaaf v. State, ex Waid, 11 Abs 466 (1931) decided by the 5th District Court of Appeals, Dec. 18, 1931 the syllabus of which reads as follows:

“When defendants in an appropriation proceeding put in evidence a deed dated three years previously at which time the land was purchased at judicial sale, for the specific purpose of showing amount and title, it is prejudicial error to allow argument and comment on the price stated therein, since the only issue to be tried is the present value of the property.”

The judgment in that case was reversed by the Supreme Court in Waid, Director of Highways, v. Sehaaf et al, 127 Oh St 274 and the judgments of the Common Pleas Court and the Probate Court were affirmed. The sole reason assigned for reversing the judgment however, was that the deed designated as “Exhibit C” was not introduced in evidence in the Probate Court. An examination of the opinion of the Court of Appeals indicates that the sale of the property in question was a judicial sale from which we infer that it may have been a forced sale which, if true, would not be competent evidence in any event as the rule applies only to voluntary sales.

Counsel for the Commission in support of their contention have cited and quoted from the cases of other jurisdictions and have cited and quoted from 5 Nichols on Eminent Domain, Sec. 21.2; 1 Orgel on Valuation, Eminent Domain, Sec. 36, and also Sec. 136, p. 581, which indicate that the admissibility of such evidence is largely within the sound discretion of the trial court on cross-examination. Counsel also cite and quote from the decision of the Circuit Court of Cuyahoga County in Cleveland T & V. R. R. v. Gorsuch et al, 8 O. C. C. (N. S.) 297, where, in a railroad condemnation proceeding, the defendant was asked on cross-examination what he had paid for the property. In holding that the trial court erred in sustaining an objection to this inquiry, the appellate court said;

“* * * The price paid does not fix the value, nor does the value fourteen months prior to the time at which value is now to be determined, even when fixed, determine the present value but both having a bearing on present value and are admissible in evidence as tending to show present value * *

The judgment of the Circuit Court was affirmed by the Supreme Court without opinion. 76 Oh St 609. It will be noted that the sale in that case was fourteen months prior to the time of the taking which indicates that it was considered to be a recent sale.

It would indeed be difficult to fix an arbitrary rule as to the period of time within which the purchase price of the subject property should be either admitted in evidence or excluded.

Frequently there are many other factors involved, such as changed conditions in the subject property, including buildings and other improvements thereon; also there may be substantial changes in conditions of the surrounding property such as change of character of neighborhood, the economic growth of the area, whether business or residential, all of which would have a bearing upon the probative value of such testimony.

Consequently, the better rule seems to be to admit such evidence if in the sound discretion of the trial court the date of purchase is not so remote in time, and conditions with respect to the property have not changed so materially as to destroy the evidentiary value. This view is supported by respectable authority in other jurisdictions.

In Love v. U. S. decided by the Circuit Court of Appeals Fifth District, April 19, 1944, 141 Fed. 2d, 981 at page 983, the court said:

“The admission in evidence of the 1933 deed is objected to for the reason that it disclosed that the consideration paid for the land in 1933 was only $4,000.00 which appellants say is irrelevant to the issue of market value because too remote in time. The objection fails for two reasons. First, the admissibility of the deed evidencing a purchase of the property seven years before the date of taking was a matter within the discretion of the trial judge. United States v. Becktold Co. 8 Cir. 129 F. 2d 473, 479 * *

In Orgel on Eminent Domain, Sec. 136 p. 581, the Love case among others is cited in a note as follows:

“Where sales of the identical property are offered in evidence, the question generally involved is whether the time of the sale is so remote as to destroy the evidentiary value. The matter is largely in the discretion of the court and considerable latitude is observed in the decisions. Compare Thornton v. Birmingham, 250 Ala. 651, 35 So. 2d, 545, 7 A. L. R, 2d 773 (1948) citing Orgel (sale 2 years before taking); Love v. United States, 141 F. 2d 981 (1944) (sale 7 years before taking); St. Louis v. Paramount Shoe Mfg. Co. 237 Mo. App. 200 168 S. W. 2d, 149 (1943); see also United States v. A Certain Tract or Parcel of Land 47 F. Supp. 30 (S. D. Ga. 1942).”

We think that evidence of purchase price of the indentical property is a matter within the sound discretion of the trial court with proper instructions to the effect that the only issue to be tried is the value of the property at the time of the taking and evidence admitted by the trial court as to the purchase price thereof may be considered only as one factor for whatever probative value it may have, if any, as bearing upon the value of the property at the time of the taking by eminent domain We conclude, therefore, that the trial court did not abuse its discretion in the admission of this evidence and in failing to limit the same, and, therefore, assignments of error Nos. 3 and 4 are overruled.

Proceeding now to a consideration of assignment of error No. 5, to the effect that the court erred in admitting evidence of a purported financial statement of Ellis, it is claimed that the court erred in three respects, namely, (1) that there was no evidence to show that the statement was authorized by Ellis; (2) that the statement, if authorized, was for use only in a divorce suit for the purpose of a property settlement; (3) that the statements were illegally obtained and a violation of privileged communication between attorney and client.

It appears that on the financial statement in question, the cost prices of all the properties which Ellis owned were listed. Among many other properties listed was the property here subject to appropriation and the purchase price and market value thereof r were shown by the evidence to be precisely the same. Counsel for the former Mrs. Ellis testified to the effect that when the statement was given to him, he was told that the figure under the column “market value” merely showed the cost or purchase price and that it was so considered by him. Counsel for Mrs. Ellis further testified that he could not say that the attorney who gave it to him (who was not one of record) represented, or was acting as agent for Ellis, in turning over the statement to him. Counsel for Ellis then called counsel for the Commission as a witness to testify as to where he procured the copy of the financial statement. He declined to answer on the ground of privilege in which declination he was sustained by the court and a motion to exclude the document was overruled. We find no evidence in the record showing that the statement was authorized by Ellis. It appears that the litigation incident to the divorce case between Ellis and his former wife, extended over a period of more than three years and terminated in a divorce in August, 1951, or a little over two years before this appropriation case was instituted in September, 1953. We find that the effect of this evidence was to interject, to his prejudice, the character and reputation of Ellis whereas this being an action in rem, the sole question was the reasonable market value of the land involved and the damage to the residue irrespective of the domestic troubles and financial worth of the owner.

The exhibit appears to be a complete financial statement which includes not only the subject property but other properties, both real and personal, showing an itemization of quick assets, cash, inventory of a business entitled, “Kahler Company” fixed assets, various properties located in Toledo, oil investments, automobiles, 22 buildings described as “New Albany Houses,” Ellistown Houses with assets totalling $1,170,682.03, which after deduction of liabilities, shows net assets of $481,895.92. There can be no doubt that the subject property was shown under “Market Value” at the price Ellis paid for it six years before these proceedings. This appears affirmatively both from the evidence and by the comment of the trial judge at page 416 of the record where he stated:

“The difference is very clear. The fair implication is that he had nothing to do with market value on that.”

Since the price Ellis paid for the property six years before was already in evidence, having been testifed to by Ellis under cross-examination, and since the financial statement was purportedly used in the divorce case to settle the marital difficulties and property disputes between Ellis and his wife, and since the exhibit contained a full financial statement of Ellis, including properties and cash position completely irrelevant to the issue here presented, we conclude that the admission of such an exhibit could have no effect other than to prejudice the jury against Ellis, having no probative value either as an admission against interest or otherwise. In our opinion the predominant character of the document was such as unquestionably to influence the thinking of the jury to the prejudice of Ellis.

It should be remembered that in appropriation cases there are no formal pleadings or definite issues which admit of affirmation upon one side or denial upon the other, as to the value of the property taken. Hence the doctrine of “Burden of Proof” has no application. The jury acts merely as an assessing or appraising board, determining the fair market value of the property from all the evidence submitted. See syllabi in Martin et, v. City of Columbus, 101 Oh St 1. See, also, Gas Transit v. Wolfe, 159 Oh St 391 at page 393. It is essentially a proceeding in rem. See: In re Appropriation: Sowers, Supt. v. Schaeffer, 155 Oh St 454. It should also be noted that an owner of property whether expert or not, is entitled to testify as to his opinion of the value of his property at the time of taking. See Morris v. Huber, 15 Abs 71, Brates v. McDonald, 95 Oh Ap 448.

This being a proceeding in rem and not in personam, the divorce proceedings five years prior thereto, and his financial worth at that time, were completely irrelevant, by reason whereof the admission of such evidence was highly prejudicial and constituted reversible error. Therefore, we find that assignment of error No. 5 is well taken and should be sustained.

Proceeding to a consideration of assignment of error No. 6, to the effect that the court erred in permitting the witness, Schenck, to testify, it appears that the Commission called as a witness, Charles Schenck of Columbus, Ohio, to give his expert opinion as to values of property in Lucas County. The record shows that the witness had never bought or sold property in Lucas County. He had made one other appraisal in Toledo ten years previously but had no other experience with values in Toledo. The record shows that his opinion of values in Toledo and Maumee was not based on experience or actual knowledge but was formulated entirely by an inspection of public records and revenue stamps on deeds.

While there may be some doubt as to the qualification of the witness to testify concerning land values in Toledo, we cannot say that it was error to permit him to testify at all, as his experiences with the Turnpike Commission and as a real estate agent dealer may have qualified him generally as an expert witness. This was a question largely within the sound discretion of the trial court. But in our opinion it was prejudicial error to permit him to testify as to sales and values of other properties based solely and exclusively upon information gleaned from examination of public records and revenue stamps on deeds. Such evidence has been held inadmissible by text writers generally and by authoritative decisions of courts of last resort. Specifically, see Schuck v. West Side Belt R. R. Co. 283 Pa. 152, syllabus 2, and Tiffany v. Deleware L. & W. R. R. Co. 262 Pa. 300, syllabus 1 thereof being as follows:

“1. In eminent domain proceedings to assess damages to a tract of land caused by the condemnation of part thereof for railroad purposes, a witness who has had no direct knowledge of sales .of land in the neighborhood, cannot qualify himself to testify as to the market value of the land by examining the public records of conveyances of land in the neighborhood, for the purpose of ascertaining the consideration named in the deeds.” (Emphasis added.)

In Jahr on Eminent Domain, published in 1953, Sec. 133, p. 205, we find the following:

“Whether the witness, be he expert or otherwise, is sufficiently familar with the property to be entitled to express an opinion, is a question for the trial court or the trial commissioners. However, when the question is presented as to the witness’ knowledge of sales, the courts generally are more exacting and require the expert witness to have personal knowledge. Thus a witness will not be permitted to testify as to value where his sales are based exclusively upon information derived from a reading of a public record, revenue stamp inspections, stamps affixed to deeds that is, and the like.” (Emphasis added.)

Authorities cited in support of the text are as follows:

“Denver v. Quick, 108 Colo. 111, 113 Pac. 2d, 999, 134 A. L. R. 1120: Tiffany v. Delaware L & W R. R., 262 Pa. 300, 302; 105 Atl. 101; Schuck v. West Side R. R. Co. 283 Pa. 152, 155; 128 Atl. 832; Essek Co. Park Comm, v. Brokow, 107 N. J. Law 110, 112; 150 Atl. 387; Chi. & W. I. R. R. Co. v. Heidenreich, 254 Ill. 231; 98 N. E. 567; Annot. Cases 1913C, 266.”

See, also: Nichols on Eminent Domain, 3rd Ed. Vol. 5 Sec. 21.3 Page 278 et seq.

It is held generally that this character of testimony is objectionable from many points of view, being mere hearsay, unreliable and inadequate proof of the competency of the witness. Furthermore, public documents speak for themselves and if their contents are admissible for any purpose, the best evidence rule requires their production in open court.

While there is some holding to the contrary, we are supported in our view by the greater weight of authority on this subject.

We proceed now to a consideration of assignment of error No. 7, to the effect that the court erred in permitting evidence of sales of other properties claimed to be similar to the subject property. Argument on this assignment of error is divided into three parts; (a) price determined by revenue stamps; (b) sales referred to were not comparable; (c) evidence of other sales was only admissible on cross-examination.

Considering first sub-head (a), it is complained that .valuation witnesses for the Commission — Mayer, Rupert and Schenck — based their testimony on information gained from inspection of public records and from the revenue stamps on deeds.

We have discussed this subject under assignment of error No. 6 where we express the view that the valuation testimony of these witnesses for the Commission, in respect to sales of other properties claimed to be similar, was incompetent where predicated wholly and solely on inspection of revenue stamps on deeds and public records. This holding would not disqualify them, however, as valuation witnesses in respect to the subject property, if otherwise qualified, nor prevent them from testifying as to prices paid for similar lands of which they had direct knowledge.

Under sub-head (b) it is claimed that there was no showing that the properties which were the subject of the sales inquired about, were in any way comparable to the subject property as to zoning, improvements, size, accessibility to major streets and roadways, availability of utilities, typography, etc.

An examination of the record discloses that some of the sales permitted under the general classification of sales of similar properties may have been remote. The record does not clearly show that such properties were so remote as to render such evidence incompetent. Some of the sales evidence included properties very close to the subject property, and being comparatively recent, were properly admitted in evidence.

The court permitted evidence of the sale of an eight-acre tract by county commissioners under sealed bids subject to a waiver of damages accruing from the construction of the Ohio Turnpike. We think this evidence was incompetent as it was in the nature of a public sale, with the property going to the highest bidder, subject to the conditions stated. Forced sales, or sales at public auction, are not competent evidence of sales of comparable or similar property because to be admissible at all, such sales must be voluntary, the test being the price which a willing seller who is not obliged to sell will accept from a willing purchaser who is not obliged to purchase.

While evidence of sales so remote in time and so remote geographically as not to have a probative value on the issues of the value of the particular property sought to be taken should not be permitted, the trial judge must be allowed sound discretion in the admission of evidence of similar sales, being subject to reversal only where it is clear that there has been an abuse of discretion in admitting evidence so remote as to destroy the evidentiary value.

Under sub-head (c) it is the claim of appellant that the court permitted evidence of other sales on direct and redirect examination by the valuation witnesses testifying for the Commission, whereas it is claimed that such testimony under Ohio law can only be adduced on cross-examination and it is claimed that the admission of such testimony on direct and redirect examination constitutes prejudicial error.

In examining the record, we find that in one instance a witness for the Commission, — Mayer,—testified on direct examination as to the sale of twenty-five acres on Byrne Road, the record showing that the witness based his testimony on tax stamps affixed to the deed. We have previously ruled that such testimony predicated solely upon examination of tax stamps is inadmissible.

In another instance, the same witness testified to a sale of twenty acres immediately adjacent to the Ellis property, sold by First Toledo Corporation to the City of Toledo for $19,989.00. Upon objection by appellant and after argument in absence of the jury, the question was withdrawn. There was no request to instruct the jury to disregard the question and answer, and none was given. Inasmuch as the testimony given by this witness as to sale price of the property in question was precisely the same as that given by the appellee concerning the same property, no prejudice resulted.

Another witness for the Commission — Ruppert—testified on direct examination as to his knowledge concerning various other sales but did not at the same time testify as to the sale prices thereof so that no prejudice resulted from his direct testimony. Under these circumstances, we are not here presented with the question of the admissibility under Ohio law of sales prices of other comparable properties elicited on direct examination. However, we do have the question of admissibility of such evidence on redirect examination.

Counsel for both parties concede that there is a division of authority on the question of admissibility of sales prices on direct testimony of valuation witnesses and agree that the question has never been directly passed upon by the Supreme Court.

In DeRose v. Cleveland, 14 Abs 176, a case arising in this district, it was held as appears in the second and third paragraphs of the syllabus:

“2. A witness called to testify as to the value of real estate in an appropriation proceeding, may, after being qualified as an expert, state in his direct examination in chief that, he is acquainted with the values of real estate in the vicinity of the property in litigation and that he knows the sale price of specific parcels, or tracts of similar quality and location, but cannot testify in chief what those sale prices were. See 15 ©. Jur., Eminent Domain, 199.
“3. On cross-examination a witness qualified as an expert in the value of real estate may testify as to the sale price of property similar to that which is' sought to be taken in an eminent domain proceeding, if it is first made to appear that the other property is similarly situated, that the sale was made in an open and fair market, sufficiently near in point of time and that other circumstances relative to value are similar.”

In the later case of Muccino v. B & O. Rd. Co., 33 Oh Ap 102, Washburn, J., at page 105, states:

“As to whether evidence of sale of similarly situated property in the vicinity is admissible on direct examination, there is a conflict in the authorities; one line of decisions called the ‘Massachusetts Doctrine’ favors the admissibility of such evidence and the other known as the ‘New York Doctrine’ rejects such evidence.”

Since the decision in that case, New York has, by statute, changed the rule so that it may be stated that in the New York as well as in the majority of jurisdictions, the sale price of similar property is now admissible on direct examination and not limited to cross-examination. It is stated in a note in 5 Nichols on Eminent Domain, page 278, as follows:

“In New York in the ascertainment of just compensation, the old rule which did not permit evidence of sales on direct examination has been changed by statute and evidence of sales prices is now admitted on direct examination, and not limited to cross or redirect examination, and undue delay and surprise in the trial is now avoided.”

In Village of Lawrence v. Greenwood, 300 N. Y. 231 at page 236, 90 N. E. 2d, 53, the court said:

“The objection interposed by appellants on the hearing and now urged upon this appeal, is that expert witnesses called for the purpose of proving value may not testify on direct examination as to sale prices of other comparable property in the neighborhood because we are told such evidence presents collateral issues involving a variety of considerations. We are mindful that such was the rule — and such was the reason given for that rule — in Robinson v. New York Elev. R. R. Co. 175 N. Y. 219, 222 (citing other cases) * *" *. We no longer adhere to the rule which was decisive in the Robinson case supra * *

We think that Ohio should eventually be in accord with the majority of the States which adopt the so-called Massachusetts Rule. We discuss this problem only because we are confronted with the question here of the competency of testimony as to sales of similar properties on redirect examination. Undoubtedly, witnesses who are cross-examined as to sale prices of comparable properties may be examined on redirect in respect of such properties. In the instant case, however, on redirect examination, testimony was given showing prices of properties not inquired into or testified to on cross-examination.

Upon due consideration we have reached the conclusion that no error, prejudicial to the rights of the appellant, resulted from such redirect examination. See Lorain St. Ry. Co. v. Sinning, 17 O. C. C. Rep. 649.

Proceeding now to a consideration of assignment of error No. 8. This assignment of error relates to a special charge No. 2 wherein the jury was instructed concerning the weight to be given to testimony of witnesses. While there may be some doubt as to the correctness of a charge instructing the the jury to view with caution the testimony of witnesses having an interest in the cause, we find that counsel for appellant withdrew his objection to the charge when a change was made therein, as suggested by him, so that the issue raised by assignment of error No. 8 is not before us for determination.

Assignment of error No. 9 relates to a claimed error in the court’s instruction .on billboard, sign rights and abutters’ rights. On this question the resolution of the Turnpike Commission contained a provision appropriating all rights to erect on any of the remaining lands of the owner billboard sign notices or posters and the court so charged,

At the time of the trial the Supreme Court had before it on appeal the case of Ellis v. Turnpike Commission, but since then has rendered a decision in favor of Ellis, holding that the Commission was without authority to acquire the billboard rights of the owner in the remaining lands, by reason whereof the appellant lost nothing by the charge complained of, the question now being moot. See Ellis v. Turnpike Commission, 162 Oh St 86. Consequently, the claimed error in this respect cannot now be sustained As to the question of abutters’ rights, other than billboard rights, the record shows that the court charged that compensation to which the owner is entitled included the fair value of all abutters’ rights.

We proceed now to a consideration of assignment of error No. 10, to the effect that the verdict of the jury was contrary to the manifest weight of the evidence. The jury awarded $12,265.00 for the land actually taken, or approximately $1500.00 an acre. There were 8-1/10 acres in parcel 51-G, and 51-G-l taken by the Commission. It is contended by appellant that for property in this vicinity and of the size taken, the verdict was a ridiculously low figure. It is claimed also that the natural advantages of the property in view of its location and accessibility to other parts of Lucas County; its size; typography; the neighborhood in which it is situated, are such as to require a much higher valuation for the land taken and for the damages to the residue.

The record shows as contended by plaintiff, that three of the Commission’s expert witnesses, Rupert, Mayer and Schenck, placed a higher valuation on the land taken than that allowed by the jury, the witness. Schenck, placing a valuation of $16,170.00 on the land as against the award of the jury in the sum of $12,265.00.

It should be noted, however, that other witnesses for the Commission placed a valuation lower than that allowed by the jury and that there is a variation in the appraisals allowed for the damge to the residue. The record also shows that the valuation testimony adduced by the appellant placed a very much higher value on the land taken, as well as damage to the residue, so that there was a wide variation between the valuations oí the expert witnesses testifying for the respective parties.

In view of this evidence, the three judges are unable to agree that the verdict of the jury was manifestly against the weight of the evidence.

We proceed now to a consideration of Assignment of Error No. 11, in which it is claimed that the court erred in refusing to grant a motion for a new trial because of the misconduct of a juror. It appears that during the trial of the case and after some of the evidence had been received, but long before arguments of counsel or the charge of the court, a juror discussed the case with two persons, both strangers to the lawsuit, at the plant where all three were employed. To one of these employees he said, in reference to the case:

“it is just a matter for the jury to decide how much was paid for the property to begin with, and whether or not Mr. Ellis was trying to profiteer.” (emphasis added.)

Undoubtedly the juror was guilty of misconduct in discussing the case in violation of the court’s instructions. His statement also shows a complete misconception of the applicable law and a prejudicial attitude toward Ellis. The fact that this juror was later' elected foreman of the jury magnifies the possibility of baneful influence upon the jury which may have been a contributing factor in arriving at a verdict. In any event, it raises a serious doubt as to the juror’s impartiality and possibly the impartiality of the other jurors in their consideration of the case. There is no denial of the misconduct of the juror, and no evidence to show whether it did or did not influence the other members of the panel.

The parties have cited many cases in support of their respective contentions but we have found no cases directly in point.

In the case of Pearl v. Jones, 159 Oh St 137, Middleton J. speaking for a unanimous court, said at page 140:

“The basic and underlying principle of the right of trial by a jury is that such trial shall be heard and determined by a jury of persons completely unbiased and uninfluenced by extrinsic considerations. It is universal practice in American courts to surround juries with safeguards to insulate them from influence of every kind. Any extraneous contact with a jury or any member thereof which would tend to influence the verdict in the slightest degree has been universally condemned.”

Paragraph 3 of the syllabus of that case, reads:

“3. Where a juror during the trial of the case in which he is so serving, is offered any valuable thing to influence him with respect to the discharge of his duty as such juror and such offer is not reported to the trial iua >< until after the verdict is rendered and the jury is discharged, a motion for new trial must be granted,”

We must, however, distinguish the Peart case from the instant case on the facts, because there is no evidence here that any of the appellee’s agents had approached the juror and there is no evidence that his fellow-employees engaged the juror in a conversation designed to have a tendency to influence the conclusion of the juror.

We have reached the conclusion, however, that this incident of misconduct of the jury foreman, when considered together with the other errors of a prejudicial nature discussed herein, such as the admission of evidence prejudicial to the rights of appellant, and the rejection of evidence to which appellant was clearly entitled, all prevented the appellant from having a fair trial and requires that a new trial be granted.

It is our conclusion, therefore, that the judgment be reversed and the cause remanded for further proceedings according to law. A journal entry may be drawn accordingly. Exceptions noted.

KOVACHY, J, concurs,

SKEEL, J, dissents. (See dissenting opinion.)

DISSENTING OPINION

No. 4777.

Decided February 17, 1955.

OPINION

By SKEEL, J.

(Dissenting)

This appeal, on questions of law, deals as has been stated by the majority opinion, with the value of the land of Ellis (designated in the proceedings as the Seventh Avenue tract) taken as part of the right of way for the Ohio Turnpike by the Ohio Turnpike Commission. The tract, in its entirety, consists of about fifty acres situated on the northwesterly side of the intersection of Detroit Avenue and the Anthony Wayne Trail. The Turnpike is taking approximately eight acres of the fifty-acre tract, running diagonally through the easterly, or perhaps more correctly described as the southeasterly end of the property with an extension of Devonshire Road which now dead ends on the northeast side of the Ellis property, through the

Ellis property to meet Crystal Road on the west.

The result of the Turnpike development leaves the Ellis Seventh Avenue property with 4-1/2 acres of land facing on Seventh Avenue, zoned for commercial use, with Seventh Avenue coming to a dead end at the Turnpike, where before it extended through to Detroit Road. The remaining property between the Turnpike and the 4-1/2 acre tract zoned for commercial purposes, is a triangular tract of 4-3/4 acres zoned for multiple family dwelling. To the north of the Turnpike running to the extension of Devonshire Road is a triangular piece of land consisting of a little less than three acres and the balance of the tract contains about 30 acres to the northwest of the said extension which is now zoned for multiple family dwellings. The southwesterly line of the property is the southwesterly line of the City of Toledo, except for a very small part at the southwesterly corner which is in the Village of Maumee.

The aerial views introduced in the record show the development around the property, both in Toledo and to the northeast, and in Lucas county to the southeast, and to the north, to be alloted and sparsely occupied with pm ail suburban homes and a considerable expanse of farm land with a shopping center at the corner of Detroit Road and the Anthony Wayne Trail, and an occasional multiple family dwelling.

The property was purchased by Ellis in 1948 for $20,000.00, or at the rate of about $400.00 an acre. The verdict of the jury as compensation for the eight acres taken was $12,265.00 or about $1533.00 an acre, and damage to the residue of $32,081.50 or about $750.00 an acre, leaving Ellis with 42 acres of land and a judgment for $44,346.00 or about $9000.00 more than the average of the value and damage testified to by the Commission’s expert witnesses.

This last fact is mentioned only because the defendant argues at length on the alleged fact that the verdict of the jury was less than that given as the opinion of damage by Turnpike Commission experts.

The majority opinion overrules all of the plaintiff’s assignments of errors except Nos. 2, 5 and 6. As to assignment of error No. 11 dealing with the conduct of a juror, it is stated that when considered with the other errors held prejudicial to the rights of Ellis it must be included as one of the grounds for reversal.

I am in full agreement with the reasons for overruling assignments of error Nos. 1, 3, 4 and 7 to 10 inclusive, as stated by the majority opinion. As to assignment of error No. 11, the circumstances being one not induced by either party and there being nó showing of prejudice to Ellis because of the juror’s statement, it should be overruled.

Error No. 2 is sustained by the majority opinion because of the rejection of exhibits Nos. 12 to 15 inclusive, said exhibits being plans of some 600 multiple family dwelling units which Ellis testified he was considering as an improvement for that part of the Seventh Avenue property zoned for multiple family use.

There is no dispute but that the court did admit into evidence exhibit No. 11, which was the plan of street layout and building lines for the proposed apartments. The only thing excluded was the floor and elevation plans and specifications. There is no dispute in the evidence but that a property like the Seventh Avenue property of Ellis could be adapted and was suitable for commercial use in part and in part for multiple family dwellings. The witnesses for the Commission and for Ellis were given full opportunity to give their opinions as to its availablility for such uses and its value when considered for such purposes, together with all other purposes to which it might be reasonably adapted.

The elevation and floor plans for a project that was drawn up but progressed no further for a period of five years before the taking, could add little for the jury’s consideration of the present value of the property, except, perhaps, that the proposed development was at least a little ahead of the then needs of the community. The question for the jury to decide was the value of the property taken and the damage to the residue when considered in the light of all uses for which it might be suitable, including the most valuable use to which, under all the surrounding circumstances, it was reasonably adapted at the time of the taking. Sowers v. Schaeffer, 155 Oh St 454.

The expert witnesses for both sides testified fully as to their opinions of the value of the land taken and the damage to the residue when considered for the best use for which they considered it was then reasonably available, there being some dispute only as to what such uses might be.

It was claimed by Ellis that the purpose for offering the plans was so that “the appraisers, the ones who will value the property, will be able to say they inspected the plans when they put a value on it. That is all we are asking.”

If this be the purpose for which the exhibits were offered, the court was clearly right in rejecting such evidence as attempting to fix a value for a specific use independent of all other uses for which the property is suitable.

Ellis, under this assignment of error, relies upon Cincinnati & Springfield Ry. Co. v. Longworth, 30 Oh St 108. The facts of the Longworth case are clearly distinguishable. There, while the plat of a subdivision through which plaintiff was condemning a right of way, had not been recorded, yet several lots had been sold according to the plat before the appropriation proceedings had been filed. Here, the exhibits attempted to spell out proposed buildings that may never be built. Their admission into evidence could be effective only in fixing a proposed single special specific use to which the property might be devoted. And in this connection, it must be remembered that the proposed street layout and building lines as exemplified by Exhibit 11 and upon which the buildings, as shown by the tendered Exhibits, were to be built, was received into evidence thus fully complying with the rule of the Longworth case. The court did not commit error in excluding exhibits 12 to 15 inclusive.

Error No. 5 is concerned with a financial statement claimed to have been created or authorized by Ellis in which he set forth, together with his other assets and liabilities, the cost of the Seventh Avenue property and his estimate of its value (which on this exhibit was the same as the cost) it being claimed that the exhibit was created in the summer of 1951. The evidence supports the claim that the exhibit was created to be exhibited to the attorney for Ellis wife as a basis for negotiating a propertly settlement between Ellis and his wife in a divorce case. The claim that the exhibit was a privileged communication is not, therefore, supported by the evidence. It was meant to be exhibited to the attorney for Ellis’ wife and a copy of it was produced from his files. The dispute as to its authenticity, that is that it was created by Ellis or at his direction, was a jury question.

The purpose of presenting the exhibit was two-fold. First, as a declaration against interest, and second, as it might affect the credibility of Ellis as a witness when testifying to the value of his property taken for turnpike purposes. The property has but one value, and if in fact Ellis attempted to claim a value for one purpose and a wholly different value of other purposes, it certainly was admissibile under the circumstances of this case.

Error No. 6 is concerned with the qualifications of “Schenck” one of the expert witnesses for the Commission, to testify as an expert witness. Said assignment of error, together with assignment of error No. 7 also deals with the manner in which the consideration received in sales of comparable property within a reasonable time prior to the taking of a part of Ellis’ property for turnpike purposes was obtained by this expert witness.

The record discloses that the witness had had many years experience in the field of real estate appraisals but had never before made a study of Toledo real estate values.

The jury was fully informed as to the witness’ background. His ability to be helpful in seeking out the value of the Ellis property taken and the damage to the residue was for the consideration of the jury. The objection presented in error No. 6 goes to the weight to be given to the testimony of the witness rather than its admissibility particularly where the court has a wide discretion in admitting opinion evidence.

While there is some authority which seems to reject the right of an expert witness in making a study of real estate values to examine the record of deeds in sales transactions of comparable property and to ascertain the consideration paid for the property from Federal Revenue stamps attached to the deed, yet there seems no justification for such a rule. What .more accurate information could thus be given as to the consideration for such transaction? In any event, whether the witness’ testimony is credible, is a jury question and the court is without authority to take the place of the jury and reject the witness’ opinion evidence under the circumstances here presented. Error No. 6 is not well taken.

This case is one in which the sole issue is the value of the Ellis property taken for turnpike purposes, and the damage to the residue because of such taking.

There is no question but that the jury’s verdict is supported by credible evidence, —evidence to which Ellis could not take a valid objection and which was as legally admissible as that which he himself presented. The difference between the vaiués claimed for the property involved; the part taken, and the damage to the residue by the contending parties,, is so far apart that the jury could find no middle ground but was in a position where in its best judgment the evidence of one side or the other would have to be the basis for its verdict.

The appraiser, Jack Haley, called by Mr. Ellis, appraised the 4-1/2 acres zoned for commercial purposes fronting on Seventh Avenue at $97,700.00, that is about $22,000.00 an acre, and the remaining land zoned for multiple family dwellings at $444,600.00, or at a rate of about $10,000 an acre (in this last tract there was about 1/10 of an acre in the commercial zone) making a total value for the 50-acre tract of $542,300.00.' The other two witnesses for Ellis are in substantial agreement with these figures and Ellis also accepted them as his opinion of the value of his land.

The Commission’s witnesses put a total value on the 50-acre tract of from $75,000.00 to $90,000.00, that is about $4000.00 an acre for the commercially zoned 4-1/2 acre tract and $1500.00 an acre for the remaining 45-1/2 acres. The Commission’s appraisers are in a measure, supported by actual sales transactions in this neighborhood and elsewhere in Toledo. Ellis purchased a 46-acre tract diagonally across Detroit Road, known as Storer Field, three years before the trial, for $870.00 an acre. It was then zoned in part for residence purposes but no difficulty was experienced in changing the zoning to whatever classification the owner desired, as is shown by the record.

The Town & Country Shopping Center directly across the highway from the Seventh Avenue property was purchased in two parcels, one being 4.7 acres for $4808.00 an acre, and 8.8 acres adjacent to it for about $6000.00 an acre.

The foregoing sales were in 1952, or less than one year from the date of this trial. Other sales between 1950 and 1953 of property zoned for residence use and multiple family dwellings and apartments in the Toledo area, developed that the highest price paid for acreage of this type was about $2,000.00. While sales as such, are not conclusive in fixing value because there are never two properties exactly alike, yet they are in fact a guide which an appraiser considers in determining what a willing seller would take when under no compulsion to sell, and a willing buyer not under the necessity of buying, would pay, or in other words, the appraiser’s judgment as to the true market value of the subject property.

The verdict of the jury shows that they gave greater credence to the evidence of the expert witnesses for the Commission than to those presented. by Ellis. This was a matter entirely within their province. The verdict also shows that if there was error in withholding elevation and floor plans of the proposed 600 multiple dwellings or in submitting the financial statement of Ellis or the evidence of Schenck, such error in no way influenced the verdict.

Sec. 2309.59 R. C., provides in part that where it is disclosed upon the record that substantial justice has- been done the party complaining, an appellate court shall not reverse a judgment because some error may have intervened. This section is applicable here.

The judgment of the trial court should be affirmed.