Metzger v. Rogers

11 Ohio Law. Abs. 659, 1932 Ohio Misc. LEXIS 1299

• Court: Ohio Court of Appeals
• Decided: February 18, 1932
• Docket: No 1970
• Status: Published

Opinion

WASHBURN, J.

We hold that the introduction of such evidence was clearly erroneous, and further that it was error to permit the witness to estimate or guess at the amount of said taxes. This error was in no wise corrected in the subsequent proceedings or in the charge of the court, and the language of the court in the charge, in telling the jury what to consider in arriving at the value of the use and occupation of said premises, was such as to permit the jury to consider the evidence in reference to taxes.

We have carefully considered all the evidence for the purpose of determining whether such error was prejudicial, and we find tha,t the two witnesses who testified upon behalf of Metzger as to value testified that such value, without taking into consideration the question of taxes, was between $500 and $600, and there was no testimony to the contrary.

We further find that, in the answer filed by Mary -I. Rogers and which answer was one of the pleadings upon which the case was tried, she specifically admitted “that a fair and reasonable value of the use and occupation of the said premises during the period alleged in plaintiff’s petition is $814.” We further find that in the first answer filed by Oscar J. Rogers he made the same admission, and omitted said omission from a later answer filed by him.

As his first answer was not introduced in evidence, we omit that admission in the consideration of the case, but regardless of that admission, we cannot help but find, upon the whole record, that the error in admitting the evidence in reference to taxes was prejudicial, and for such error the judgment is reversed and the cause remanded.

PARDEE, PJ and PUNK, J, concur.