Sims v. Norfolk & Western Ry Co.

Plaintiffs in error, Sims, Exr., et al., being the plaintiffs in the lower court, claim in their petition that the defendant Norfolk Western Railway Company unlawfully entered upon their premises and *Page 396 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 *Page 397 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 *Page 398 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.