Cleveland Electric Illuminating Co. v. Astorhurst Land Co.

480 N.E.2d 794, 18 Ohio St. 3d 268, 18 Ohio B. 322, 1985 Ohio LEXIS 415
CourtOhio Supreme Court
DecidedJuly 24, 1985
DocketNo. 83-1968
StatusPublished
Cited by101 cases

This text of 480 N.E.2d 794 (Cleveland Electric Illuminating Co. v. Astorhurst Land Co.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cleveland Electric Illuminating Co. v. Astorhurst Land Co., 480 N.E.2d 794, 18 Ohio St. 3d 268, 18 Ohio B. 322, 1985 Ohio LEXIS 415 (Ohio 1985).

Opinions

Holmes, J.

In presenting its case to this court, CEI argues that specific jury instructions are no longer required to be given by a trial court in that Civ. R. 51(A) has abolished such instructions, and that the law applicable to the case is to be set forth by the trial court in its general charge to the jury. Appellant essentially contends that in a land appropriation action involving a partial taking, a sufficient charge is one which generally informs the jury that the property owner is entitled to be compensated for any loss in value to the residue of his property caused by the taking as well as the condemnor’s use of easement rights acquired; and, further, that it is not error for the court to refuse to instruct the jurors that they may consider one or more specific elements of potential damage which the property-owner claims will diminish the value of the residue.

Conversely, on cross-appeal, Astorhurst argues that a trial court commits plain error when it instructs that eight, rather than nine, members of a twelve-member jury are sufficient to sign a jury verdict. Astorhurst also claims error in the trial court’s refusal to allow cross-examination of the CEI witness relative to the amount of compensation that he received for an earlier power line easement.

I

CEI’s Appeal

CEI correctly points out that the law prior to the enactment of the Civil Rules required the trial court, upon request of counsel, to give a [272]*272special jury instruction, if correct, and a failure to do so constituted reversible error when such error was prejudicial to the complaining party. See Washington Fidelity Natl. Ins. Co. v. Herbert (1932), 125 Ohio St. 591; Smith v. Flesher (1967), 12 Ohio St. 2d 107 [41 O.O.2d 412], paragraph two of the syllabus. This rule of law was nullified by the enactment of Civ. R. 51(A). See Presley v. Norwood (1973), 36 Ohio St. 2d 29, 32 [65 O.O.2d 129]. This procedural rule provides in pertinent part:

“At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. Copies of such requests shall be furnished to all other parties at the time of making such requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. * * *”

The Civil Rules are applicable to land appropriation proceedings except to the extent that such rules would, by their nature, be clearly inapplicable. Civ. R. 1(C).

It is this court’s belief that the function of the trial court’s general charge to the jury is the same now as it was prior to the enactment of the Civil Rules, i.e., to state clearly and concisely the principles of law necessary to enable the jury to accomplish the purpose desired. See Pickering v. Cirell (1955), 163 Ohio St. 1, 4 [56 O.O. 1].

In an appropriation case, one of the issues for jury determination is that of damages to the residue estate. It is essential for the court generally to instruct the jury on the nature and the elements which comprise this type of injury. In an effort to assist the trial courts of this state, the Ohio Judicial Conference has promulgated jury instructions relative to these elements in 3 Ohio Jury Instructions (1973) 23, Section 301.21.

In comparison to Section 301.21, a review of the appropriate portions of the trial court’s charge here relative to damage to the residue clearly shows that the charge encompassed the main thrust of the Ohio Jury Instructions. The court informed members of the jury that they could take into account “any present or future damage that you may find are [sic] reasonably certain to occur, that affect the present market value.” Coupled with this rather broad instruction, the court had previously permitted appellee’s counsel to include the suggested elements of damage in his closing argument to the jury. Accordingly, counsel did in fact dwell upon the dangers which would allegedly exist with the installation of the power transmission lines and any adverse effects resulting to the residue of Astorhurst’s golf course.

It is apparent that the trial court appropriately determined that the special instructions requested by counsel for Astorhurst would unduly emphasize and draw the jury’s attention to the factors suggested within such instructions. For the court to instruct on such specific items might have unduly emphasized those elements at the expense of other evidence presented to the jury.

[273]*273Additionally, we underscore the fact that the trial court gave counsel the opportunity to argue the major points of his proposed instructions so no resulting prejudice to Astorhurst occurred even if it could be concluded that the court erred in not giving the requested instructions. Therefore, we reverse the judgment of the court of appeals on this issue.

II

Astorhurst’s Cross-Appeal

Turning to appellee’s cross-appeal, the trial court clearly erred in its instruction concerning the number of jurors required to sign the verdict form. However, the difficulty presented on appeal is the absence of an objection by counsel. A review of the scenario surrounding this issue discloses that after the matter was submitted to the jury, counsel for CEI awakened to the fact that the court’s statement was in error, and he accordingly called counsel for Astorhurst. During the conversation, it was agreed that counsel for CEI would call the court and suggest that the bailiff inform the deliberating jury that the concurrence of at least nine jurors was needed to return an otherwise lawful verdict. Counsel promptly called the court but was informed that the judge was in conference. He left a message for the judge to return his call. Several minutes later, however, he was told by a secretary in his office that the court had called to advise him that the jury had reached a verdict and he should return to the courthouse. When counsel for both parties arrived at the courthouse, they immediately proceeded to chambers and advised the judge of the problem. The judge sent a court employee to determine how many jurors had signed the verdict. The employee returned to advise that nine jurors had placed their signatures on the verdict form. It was then agreed by the court and counsel that the jury should be brought into the courtroom to announce its verdict. The verdict was in fact signed by nine jurors including the foreman.

Under these circumstances, we hold that the court of appeals was correct in concluding that Astorhurst was precluded from claiming this error on appeal. There was neither an objection when the instructions were initially given nor at any time subsequent to the submission of the issues to the jury.

Civ. R. 51(A) mandates a timely objection to any erroneous instruction given by the trial court. The rule states as follows:

“A party may not assign as error the giving or the failure to give any instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.”

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Cite This Page — Counsel Stack

Bluebook (online)
480 N.E.2d 794, 18 Ohio St. 3d 268, 18 Ohio B. 322, 1985 Ohio LEXIS 415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cleveland-electric-illuminating-co-v-astorhurst-land-co-ohio-1985.