Terry v. Burger , 6 Ohio App. 2d 53 ( 1966 )

This is an appeal on a question of law from the Garfield Heights Municipal Court. In an action for the recovery of money for personal injuries arising out of a collision between automobiles operated by the respective parties, the defendant offered in open court and in the presence of the plaintiff to confess judgment for $500, and costs then accrued. Plaintiff, who sought a recovery to the extent of $7,500, refused defendant's offer. Upon trial before a jury a verdict for defendant was returned.

Defendant seasonably filed a motion to be awarded $200 as her costs incurred after the offer was made. One hundred fifty dollars was for the services of a medical witness at the trial, and the balance was for the services of a court reporter. The trial judge granted the motion and entered judgment accordingly.

The sole question presented for determination is whether the allowance of such items of expense against the plaintiff is authorized by Section 2311.18, Revised Code. Plaintiff, appellant herein, contends that "costs" within the meaning of the statute is not synonymous with "expenses," hence the allowance of such expenses of trial incurred after the offer was made is not permissible. Defendant, appellee herein, urges that such items are "costs of the defendant incurred after the offer was made" and, therefore, are authorized by the statute.

It is settled in Ohio that items of expense incident to litigation can only be taxed as "costs" when authorized by some statute. City of Euclid v. Vogelin (1950), 152 Ohio St. 538;Shuey v. Preston, Dir. (1961), 172 Ohio St. 413. Generally speaking, the word "costs" is understood in reference to litigation to refer to the statutory fees to which officers, witnesses, jurors and others are entitled for their services in an action and which the statutes authorize to be taxed and included in the judgment. State, ex rel Commissioners ofFranklin County, v. Guilbert, Aud. (1907), 77 Ohio St. 333, 338. In the Revised Code, authority for the taxation of such standard items is to be found in Chapter 2323 entitled "Judgment."

The statute in question is found in Chapter 2311, Revised Code, which is variously entitled "Pretrial Procedure" and "Preliminary Provisions." Section 2311.18 reads as follows:

"In an action for the recovery of money, the defendant may offer in court to confess judgment for part of the amount claimed, or part of the causes involved in the action. If, being present, the plaintiff refuses to accept such confession, in full of his demands against the defendant, or having had such notice that the offer would be made, of its amount, and the time of making it, as the court deems reasonable, he fails to attend, and on the trial does not recover more than was so offered to be confessed, with interest thereon from the date of the offer, he must pay all costs of the defendant incurred after the offer wasmade." (Emphasis added.)

The statute was first enacted in 1852 and, except for minor changes in wording and the addition of the clause pertaining to interest, remains unchanged to this day. 51 Ohio Laws 57, 143, Section 498; S C 1095; Section 5141, Revised Statutes; Section 11394, General Code.

After its original enactment, the Supreme Court was soon confronted with the question of its purpose and meaning. Thus, inCarpenter v. Kent (1860), 11 Ohio St. 554, the court stated at page 558:

"The object of the provision, as thus expressed, is clearly, what has been already stated, to narrow down, not the issue in the case, but the cause for incurring further expense in litigating the claim. This is shown from the fact that, if the plaintiff refuse the offer of the defendant, be it ever so liberal, such offer can not be given in evidence to show the justness of the plaintiff's claim for any amount; and as the offer to thus suffer judgment for a given amount, could in no case be used as evidence of an amount due or a cause of action, but rather to buy peace and end litigation, it was not, by the code, required to be reduced to writing."

The provision that the offer to confess judgment shall not in anywise affect the trial still persists as a separate section of the Code. Section 2311.19, Revised Code. In Carpenter, the action was for $100, the offer to confess judgment was for $50, and the verdict was $36. It was held to be error to deny defendant his costs incurred after the offer was made. To the same effect areCourtright v. Staggers, (1864), 15 Ohio St. 511, and Adams v.Phifer (1874), 25 Ohio St. 301.

Where plaintiffs' recovery was only slightly less than defendant's offer in open court the trial court "properly adjudged defendant's costs accrued after the offers against the plaintiffs." Cohoon v. Kineon (1889), 46 Ohio St. 590. In support of its conclusion, the court reasoned as follows, at page 594:

"This construction works out justice between the parties. Had the plaintiffs accepted the offers, they would have had, adding interest, as much money as the verdict entitled them to. The statute is intended to impose the expense of litigation upon the party who wrongfully persists in continuing it. Its purpose is to discourage needless contention by placing on the litigious party the risk of having his final recovery reduced by a liability for his antagonist's costs. The litigation in this case proceeded to determine whether the plaintiffs were entitled to recover a judgment for a greater sum than the amounts offered. The result showed that they were not; that beyond that amount plaintiffs' claim was groundless, and in equity, and upon thereason of the statute, plaintiffs should pay the costs made necessary by so unjustifiably prolonging the litigation." (Emphasis added.)

In Fisher Lanning v. Quillen (1907), 76 Ohio St. 189, the offer was less than a dollar more than the verdict. The trial court awarded plaintiffs their costs to the date of the offer and assessed defendant's costs incurred after the offer against them. The Circuit Court held that plaintiffs were entitled to recover all the costs. The Circuit Court was reversed and the Court of Common Pleas was affirmed, the court observing that, while the general rule as to costs, in actions for money only, is that they shall be allowed, as a matter of course, to the plaintiff upon a judgment in his favor when it is not otherwise provided by statute, the offer-to-confess-judgment statute does otherwise provide.

The rule of the Ohio decisions seems then to be that where the conditions set forth in the statute in question are present the statute is to be applied without reserve. In the instant case all the conditions are present. Defendant is entitled to all her costs incurred after the offer was made. But may such costs include the fee of a medical witness and the charges of a court reporter? This precise question, having to do with items not usually included in cost bills, seems never to have before engaged the attention of the reviewing court. In none of the reported cases dealing with the statute in question has that exact question been dealt with. If costs, other than the usual ones, were involved in those cases, it seems that no issue was made as to whether they should or should not have been included.

Plaintiff's contention is that the word "costs" has a definite meaning in the statutes of Ohio and that its meaning cannot be expanded to accommodate the statute in question. We think this argument is untenable in view of the history of the statute and the doctrine of the cases decided thereunder. If indeed, as the Supreme Court has said, its very purpose is to narrow down the cause for incurring further expense in litigating a claim, and to impose the "expense of litigation" upon the party who persists in continuing it, it is impossible to justly exclude items such as those in question. The testimony of a medical witness is an essential ingredient to the defense of any personal injury case in these times. Equally vital is the employment of a court reporter where the court involved has no official reporter, as in the instant case. No question is raised herein as to the necessity or reasonableness of the items in question. The statute is a remedial one. If it is to be construed as claimed by plaintiff, it is without meaning or purpose for all practical purposes. Interestingly enough the statute works both ways. Section 2311.20, Revised Code, makes its provisions available to the plaintiff as well as the defendant. We are required to give it a liberal construction. Section 1.11, Revised Code. Heeding that mandate, we hold, therefore, that the fees of a medical witness and a court reporter were properly allowed as costs of the defendant incurred after the offer was made. While it may be conceded for the purpose of discussion that the statute is in such broad terms as to lend itself to abuse, we think control against abuse resides of necessity with the trial court in the first instance.

Plaintiff further argues that the conclusion we have reached would place an undue burden upon the assertion of claims in court by plaintiffs and is tantamount to a penalty not authorized by law. This claim is at least partially answered by Section2311.20, Revised Code. An even more conclusive answer would seem to be afforded by the language of the Supreme Court in Symons v.Eichelberger (1924), 110 Ohio St. 224, where it is said at page 238:

"Costs are not at the present time considered as punishment. The modern theory is that costs are allowances authorized by statute to reimburse the successful party for expenses incurred in prosecuting or defending an action or special proceeding. They are in the nature of incidental damages allowed to indemnify a party against the expense of successfully asserting his rights in court. Forbes v. Chicago, R. I. P. Ry. Co., 150 Iowa 177,129 N.W. 810, Ann. Cas. 1912D, 311; Spores v. Maude, 81 Or. 11,16, 158 P. 169; Apperson v. Insurance Co.,38 N. J. Law, 388. Being in the nature of damages, costs do not constitute a penalty."

There are other more recent cases from other jurisdictions which support the modern theory of costs. See 20 Corpus Juris Secundum 338 Costs, Section 82.

It follows that the items awarded to defendant here as her costs incurred after the offer was made, being reasonable and necessary in defending plaintiff's claim, were properly allowed by the trial court.

Judgment affirmed.

WASSERMAN, J., concurs.