The specific question for decision before us, succinctly stated, is whether the word "costs" as used in Section 2311.18, Revised Code, includes the private, professional fee of a medical expert witness for attendance at the trial in the sum of $150, and a court reporter's fee for attendance at trial in the amount of $50.00.
The majority, for the reasons given in the opinion, answer this in the affirmative. I am compelled to dissent from their conclusion and judgment of affirmance on the grounds hereafter stated.
The section under consideration is found in the subchapter titled "Tender and Offer to Confess Judgment," Sections 2311.14 through 2311.20, Revised Code. The first five of these sections relate to situations where tender or offer is made and provide how costs are affected thereby. Costs, in Ohio and elsewhere, are generally defined as the statutory fees to which officers, witnesses, jurors, and others are entitled for their services in an action or prosecution and which the statutes authorize to be taxed and included in the judgment or sentence. Costs were unknown to the common law. They are assessed only by authority of a statute. Expenses are not synonymous with costs and expenses are costs only when made so by statute.
It is inconceivable to this member of the court that the legislative intent in connection with Section 2311.18, Revised Code, was to include the professional witness fee of a medical expert as an item of costs, or the professional witness fee of any other expert. If such was the intention of the lawmakers, what rule would govern the amount of such a fee? One outstanding medical expert might easily establish the reasonableness of *Page 59 several times the requested fee of Dr. Plotkin for being taken away from his practice to attend a trial as a witness. Who is to pass on such question of reasonableness? Traveling expenses for out-of-town witnesses often become essential in lawsuits, and would such be a proper item of costs in the instant case? Nonprofessional factual witnesses are usually paid for lost time from their occupations while in attendance as witnesses. Would such items of expense be assessed as costs if presented in the instant case? Unquestionably, attorneys' fees are the greatest item of expense in connection with litigation. Under our factual situation, could such expense incurred after the offer was refused by plaintiff be properly assessed as an item of costs against plaintiff?
Under certain circumstances the court is called upon to decide the legal issue of the admissibility of an expert witness's testimony. In such a situation, where the court rules such testimony inadmissible, and this occurs after an offer and confession of judgment has been made by one party and refused by the other, may the traveling expenses and witness fee of the professional expert be properly assessed as costs against the party refusing the offer if he fails to recover more than was so offered to be confessed?
The answer to each of these questions, posed here for the purpose of this dissenting opinion, is that such expenses may not be properly taxed as costs. Any other interpretation would create nothing but chaos in Ohio litigation.
The medical witness or any other witness receives a statutory fee which is to be taxed as part of the costs in the case by virtue of the provisions of Section 2335.06, Revised Code, "Witness fees in civil cases," which reads:
"Each witness in civil cases shall receive the following fees:
"(A) Three dollars for each day's attendance at a court of record, or before a judge of a County Court, mayor, or person authorized to take depositions, to be taxed in the bill of costs. Each witness shall also receive five cents for each mile necessarily traveled to and from his place of residence to the place of giving his testimony to be taxed in the bill of costs; on demand a witness shall be paid one dollar by the party at whose instance he is subpoenaed before being required to answer *Page 60 said subpoena which shall be considered a part of any fees to which said witness is entitled;
"* * *."
The Municipal Court of Garfield Heights is governed as to costs by Section 1901.26, Revised Code, "Costs," which provides in part as follows:
"Costs in a Municipal Court shall be fixed and taxed as follows:
"(A) The Municipal Court, by rule, may establish a schedule of fees and costs to be taxed in any action or proceeding, either civil or criminal, which shall not exceed the fees and costs provided by law for a similar action or proceeding in the Court of Common Pleas.
"* * *
"(D) In any civil or criminal action or proceeding, witnesses' fees shall be fixed in accordance with Sections2335.06 and 2335.08 of the Revised Code.
"* * *."
This last section does not include by specific mention other fees for a professional medical witness or fees for the attendance of a court reporter. Neither does the record before us reflect that fees for such services have been established by rule of the Municipal Court to be taxed as costs in the action. Further, in the view of this member of the court, a Municipal Court, in establishing a schedule of fees and costs pursuant to Section 1901.26, Revised Code, may not tax as part of the costs in any proceeding the fee of a medical doctor for attendance at trial as an expert for the defense. Section 2335.06, Revised Code, sets the only statutory fee provided for such witness.
Other instances where fees allowed as costs are assessed by virtue of a statute are found in Section 2101.07, Revised Code, fees of a special master commissioner in Probate Court; Section2315.36, Revised Code, compensation of referees in Common Pleas Court; Section 2315.43, Revised Code, compensation of a master commissioner; Section 2333.27, Revised Code, compensation of referees, receivers and witnesses in proceedings in aid of execution to be taxed as costs; Section 2335.01, Revised Code, fees of commissioners and appraisers.
If the plaintiff in this case is to be saddled with these expenses, incurred by defendant, because he refuses, for whatever reason, to accept defendant's offer and confession of judgment *Page 61 in a tort case, namely, a lawsuit in which plaintiff seeks to recover compensation for injuries sustained as a result of the alleged negligence of defendant arising out of an automobile accident, another important question is posed. What thereby becomes of plaintiff's right to a trial by jury under the Ohio Constitution, Section 5 of Article I, which provides:
"The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury."
In this regard, the second paragraph of the syllabus of Gibbs v. Village of Girard (1913), 88 Ohio St. 34, states:
"The right of trial by jury, being guaranteed to all our citizens by the Constitution of the state, cannot be invaded or violated by either legislative act or judicial order or decree."
Is plaintiff to be coerced by the ominous specter of an expensive costs buildup of witnesses by the other side because he justly evaluates his cause of action at a higher settlement figure than the offer and confession of judgment? Is plaintiff to be subjected to the foreboding anxiety of achieving a Pyrrhic victory in his lawsuit if he does not accept the opposing side's offer? If the interpretation applied to the statute under consideration here by the majority of this court is permitted to stand, then the answer to these last two queries is in the affirmative. In that case, in the opinion of this member of the court, Section 2311.18, Revised Code, is unconstitutional as being an interference with plaintiff's right under Ohio's Constitution to have his trial by jury in this case kept sacred or inviolate. Any pretrial procedure, such as this provided for in such section, which restricts this constitutional guarantee, is violative thereof. Of tantamount importance would be the infringement of plaintiff's rights as guaranteed by Article VII, Amendments, United States Constitution, which provides:
"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law."
For these reasons, in my opinion, the judgment of the court below should be reversed and the case remanded with instructions to overrule the motion to tax costs filed by defendant. *Page 62