
    Sims, Exr., et al. v. Norfolk & Western Ry. Co.
    (Decided November 14, 1933.)
    
      Mr. Henry G. B'vrnis, for plaintiffs in error.
    
      Mr. James I. Boulger, Mr. Louis Bannon and Mr. Harry G. Weaver, for defendant in error.
   Kunkle, J.

Plaintiffs in error, Sims, Exr., et ah, being the plaintiffs in the lower court, claim.in their petition that the defendant Norfolk & Western Railway Company unlawfully entered upon their premises and destroyed a certain frame building to their damage in the sum of $2500. The defendant, The Norfolk & Western Railway Company, for answer filed a general denial. An issue was thus raised by the pleadings, and the case was submitted to a jury with the result that the jury found in favor of the plaintiffs in the sum of $500, with interest at 6 per cent, per annum from June, 1928, or a total amount of $637.50.

Motion for new trial was filed both by the plaintiffs in error and by the defendant in error.

. Both of these motions were overruled by the trial court and judgment entered upon the verdict.

Error is prosecuted to this court by the plaintiffs in error. The only error complained of relates to the trial court’s permitting the witness Garner, a deputy county auditor, to testify as to the tax valuation of the property in question. This witness testified that the property in question was carried for taxation purposes on the duplicate in the year 1928 at $420.

This testimony was objected to and exception noted, and subsequently a motion to strike out was made and overruled and exception taken to such ruling. The testimony of this one witness upon this one subject constitutes the record that is presented to us for review.

It appears from the statements of counsel that a number of witnesses were examined, but no other testimony is brought before us in the bill of exceptions. The petition in error states that plaintiffs in error were prejudiced by the rulings of the trial court in the following respects:

(1) Error in overruling plaintiffs’ motion for a new trial.

(2) Error in the admission of evidence over the objection and exception of plaintiffs in error.

(3) Error in the admission of tax records from the county auditor’s office showing the assessed value of the property in question duly objected and excepted to by plaintiffs in error.

We cannot escape the conclusion that counsel have presented to this court purely a moot question, as the petition in error does not claim that the verdict of the jury is inadequate.

The rule is well settled in Ohio that a reviewing court may not disturb the judgment of a lower court unless the record contains error which is prejudicial to plaintiff in error. It is not sufficient that the record contains erroneous rulings, but such erroneous rulings must have resulted in prejudicing the rights of plaintiff in error. Unless the reviewing court so finds it is without authority to reverse. A few of the many authorities that could be cited upon this proposition are Hendrickson Machine Co. v. Schumacher Co., 31 O. L. R., 381, 7 Ohio Law Abs., 732, decided by the Court of Appeals of the Fifth Appellate District. The second paragraph of the syllabus of above case reads:

“2. .It is hardly possible that some error will not occur in a warmly contested case, but a reversal cannot be based on such error unless it clearly appears that a wrong verdict was returned.”

In the case of State v. Driscoll, 106 Ohio St., 33, 138 N. E., 376, Chief Justice Marshall, in rendering the opinion of the court, uses the following language on page 42:

“The modern tendency in the courts is away from technicalities toward the substance, and the farther this trend is developed the more respect the people will have for the courts. It was formerly the view of the courts that any technical error was reversible because it might have prejudiced the appellant. The modern view is that it should be shown that it probably did prejudice him before a reversal is justified. ’ ’

If the entire record was before us we might think the verdict of the jury was inadequate. Upon the other hand, we might think the verdict of the jury was manifestly excessive. We do not know what the testimony was upon the question of the value of this building.

We cannot escape the conclusion that the jury was not affected by the testimony in question. This testimony shows that the tax valuation of the property was $420. Under our statutes the taxing authorities are required to return the property for taxation at its true value in money. In this respect our statute differs from that of many other states. The jury, as above stated, found in favor of plaintiffs in error in the sum of $500, with interest from June, 1928, or a total finding by the jury of $637.50. In our opinion whether the testimony in question was properly or improperly admitted becomes immaterial for the reason that it was not prejudicial to plaintiffs in error, as it is apparent from the verdict that the jury was not controlled by this testimony. The verdict of the jury is in excess of the amount suggested in the answer of the witness Garner.

Finding no error in the record which we consider prejudicial to plaintiffs in error, or which would warrant a reviewing court under the state of the record in reversing the judgment of the lower court, the same will be affirmed.

Judgment affirmed.

Hornbeck, P. J.,

concurring. I concur in the judgment for the reason that in my judgment the tax valuation of the property was competent evidence. It had some weight on the ultimate question for determination.

Barnes, J.,

dissenting. Regretfully I find myself unable to concur with my associates in their affirmance of the judgment of the trial court. To my mind the two major propositions involved require a reversal by this court.' The vital question to be determined by the jury was the value of the real estate involved. The defendant in error, over the objection of plaintiffs in error, called as a witness the county auditor and through him identified the tax records and presented in evidence the tax value of the real estate. Motion was interposed to rule out this evidence, which was overruled and exception noted. In my judgment this evidence was incompetent.

Wigmore on Evidence, Section 1640, is cited in support of the admissibility of this evidence. There is language in the text so indicating, but the citations under the notes absolutely fail to support the text.

17 Ohio Jurisprudence, 221, Section 172 (Evidence), states the general rule to be that the assessed valuation of property is not evidence of its value for any other than tax purposes. In support of this text the note refers to notations under 17 A. L. R., 170. We have no reported cases directly on the point in Ohio. This same announcement will be found in 22 Corpus Juris, 178.

An examination of the cases cited in the notes and from which the text is formulated will show that the overwhelming weight of authority in other jurisdictions denies the admissibility of the evidence.

To adopt a rule favorable to admissibility takes away the right of cross-examination.

The writer of the majority opinion holds to the view that there was no prejudicial error.

I am unable to see how that conclusion can be arrived at. This evidence was presented by the defendant in error for the purpose of being considered by the jury on the question of value, and it is not in the power of the court to know what weight was given to it. The fact that the jury returned a verdict $80 in excess of the tax value should not lead to the inference that the jury gave no weight to this evidence. It is very unusual indeed for juries when fixing values to return a verdict in the identical figures of any witness. They are expected and instructed to give consideration to all the testimony, and from snch consideration to return the verdict in such amount as to them seems proper under the evidence.

The record as presented not containing all the evidence we have no means of knowing what other testimony was presented on this issuable fact. It is not within our province to determine whether or not the amount returned by the jury was adequate. If the evidence is incompetent, and if of a character directed to a vital issue in the case, a reversal is demanded unless it appears from the record and transcript before us that there was no prejudice.

In other words, it does not devolve upon the plaintiffs in error to affirmatively show that this improper evidence affected the verdict. This will be presumed in the light of the issue and the character of the evidence. There is nothing in the record before us curing the error, and we must so find before we can overlook the presentation of this incompetent evidence.  