In Re Appropriation , 120 Ohio App. 273 ( 1963 )

In my opinion, the error relied upon in the majority opinion is not prejudicial.

The witness, a real estate appraiser, testified that the fair market value of the land taken was $6,003; that the fair market value of residue prior to appropriation was $108,912 and after appropriation was $105,212; that the residue was therefore reduced $3,700; and that, therefore, the remaining property was reduced $9,703 in value. The witness's testimony in this regard was clear, explicit and in proper form.

The Assistant Attorney General, in summarizing, then asked, "then in your opinion what would be total, just and fair award?" The witness started to answer, and said, "$97 — ," but stopped his answer when objection was made. The court overruled the objection and an exception was saved. The witness was then asked, in question form, "$9703?," to which the witness answered, "Right." Admittedly, the question was improper, and if this question and the witnesses's response to it were his only testimony upon the subject I would hold it to be prejudicial, but since the witness had previously testified in proper form and the value he gave in response to such questions was in the same amount as the answer to this question I do not see how a jury could be prejudiced. After all, the question called for an opinion based upon his previous testimony and not for a conclusion or statement of an absolute fact.

I think there is a distinction between this case and the case of Fowler v. Delaplain, 79 Ohio St. 279, relied upon by the majority. The first sentence in the opinion of the court states:

"The trial court, over the objection of the plaintiff, allowed the defendant to propound to several witnesses this question, `What buildings or structures were necessary to be placed upon this lease in order that the same might be properly operated for oil and gas?'" (Emphasis added.)

This was one of the ultimate facts which it was the province of the jury to answer, and as far as I can gather from the opinion in that case this was the only evidence submitted to the jury upon which it could make a finding of the facts.

In the instant case, there were a number of appraisers who testified, both for the landowner and for the state, and there was abundant testimony given in proper form for the jury to reach a proper conclusion as to the amount of damages.