Gannett v. Booher

CourtUnited States Court of Appeals (Ohio)
Citation12 OBR 190,465 N.E.2d 1326,12 Ohio App.3d 49
Parties, 12 O.B.R. 190 GANNETT et al., Appellees, v. BOOHER et al., Appellants. *
Decision Date17 June 1983

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12 Ohio App.3d 49
465 N.E.2d 1326, 12 O.B.R. 190
GANNETT et al., Appellees,
BOOHER et al., Appellants. *
Court of Appeals of Ohio, Sixth District, Huron County.
June 17, 1983.

Syllabus by the Court

1. In a will contest action, opposing affidavits regarding the testator's mental powers are sufficient to put the testator's mental capacity directly and squarely in issue and thus, summary judgment on that issue would be improper. (Civ.R. 56[C] and 56[E], applied.)

2. The test in determining the admissibility of testimony of a witness offered as an expert is whether that witness will aid the trier of fact in search of the truth rather than whether the proposed expert witness is the best witness on the particular subject.

3. A testator's treating physician's opinion is competent in an action where the testator's mental strength and weakness are in issue; however, that opinion is not conclusive as a matter of law.

4. Notwithstanding Evid.R. 704, an expert may not give an opinion on the ultimate issue if that opinion is essentially a bare conclusion lacking in supporting rationale or otherwise inadmissible pursuant to

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Evid.R. 702 and 403.

5. An objection to a question put to a witness and an exception to the overruling of such objection are not sufficient to raise the question of error in admitting or letting stand an improper answer, if the question itself was proper. There must be a motion to strike the answer.

6. In order to assign as error the exclusion of certain testimony on direct examination, unless the substance of the excluded testimony is apparent, the aggrieved[465 N.E.2d 1329] party must have offered the substance of the excluded testimony to the trial court. (Evid.R. 103, applied.)

7. The order admitting a will to probate is prima facie evidence of the validity of the will. The burden of proof in a will contest is upon and never shifts from the contestants of the will. The contestants must produce evidence which furnishes a reasonable basis for sustaining their claim.

F.L. Bemiller and Jeffrey L. Molyet, Mansfield, for appellants.

William W. Owens, Norwalk, for appellees.


This case is before the court on appeal from judgment of the Huron County Court of Common Pleas, Probate Division, wherein that court, after a will contest action tried to the court, set aside the last will and testament of Thomas Norman Gannett ("testator") executed on March 1, 1978. The trial court found the will not to be valid based on that court's findings that at the time the will was executed, the testator did not have testamentary capacity and that said will was the result of the testator having been unduly influenced. 1

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Appellants, as their first assignment of error, state that:

"1. The trial court erred as a matter of law by denying appellants' motion for summary judgment when appellees failed to offer any evidence to counter the evidence offered by the appellants."

The Supreme Court recently has commented in Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 2-3, 433 N.E.2d 615 [24 O.O.3d 1], that:

"Summary judgment is a procedural device to terminate litigation and to avoid a formal trial where there is nothing to try. It must be awarded with caution, resolving doubts and construing evidence against the moving party, and granted only when it appears from the evidentiary material that reasonable minds can reach only an adverse conclusion as to the party opposing the motion.

"A successful motion for summary judgment rests on the two-part foundation that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. [Citations omitted.]"

Appellants supported their summary judgment motion with numerous affidavits and other evidentiary material, which, if appellees had not responded, appear to have been sufficient to support appellants' motion for summary judgment. See Rainey v. Harshbarger (1963), 7 Ohio App.2d 260, 264-265, 220 N.E.2d 359 [36 O.O.2d 374]. As stated in Civ.R. 56(E):

" * * * When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response * * * must set forth specific facts showing that there is a genuine issue for trial. * * * "

See Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 375 N.E.2d 46 [8 O.O.3d 73]; Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St.2d 241, 249, 374 N.E.2d 146 [7 O.O.3d 403].

However, Civ.R. 56(C) provides that the non-moving party is entitled to have the moving party's evidentiary material construed most strongly in favor of the non-moving party. Stemen v. Shibley (1982), 11 Ohio App.3d 263. Although the non-moving party is entitled to this favorable construction of the movant's evidence, if the non-movant does not respond, the moving party's affidavits are accepted as true. Stemen, supra; Jones v. Halekulani Hotel, Inc. (C.A.9, 1977), 557 F.2d 1308, 1310.

[465 N.E.2d 1330] Appellants do not dispute that appellees responded by affidavit to appellants' motion for summary judgment and the evidentiary material submitted in support thereof. Appellants do contend, however, that the affidavits submitted by appellees were not sufficient to counter the evidentiary material which appellants had submitted in support of their motion. Appellants' evidentiary material consists of affidavits from the testator's housekeeper, the attorney who drafted the will, and the witnesses who were present on March 1, 1978, when the testator executed the will. Essentially, each of these affidavits states that, based on the affiant's personal observations, the testator knew of his property and of his children, and that the testator was able to discuss both of these clearly and intelligently. In direct contrast to these affidavits submitted by appellants are the affidavits submitted by appellees. These affidavits, with appellees as affiants, state that the testator "was unable to comprehend the nature and extent of his property, did not know on numerous occasions the members of his family when they came to

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visit or their relationship to him." The affidavit of the testator's grandson stated that on many occasions when the grandson had visited the testator, the testator "appeared to be out of touch with reality" and that the testator did not know the grandson. Appellees also submitted the affidavit of the testator's neighbor, who stated that on several occasions the testator's perception "would fade in and out."

Obviously, from examining the affidavits submitted by both appellants and appellees, the testator's mental capacity was put directly and squarely in issue. Appellees' affidavits are precisely the type contemplated by the Supreme Court in Harless, supra, 54 Ohio St.2d at 65, 375 N.E.2d 46, by this court in Stemen, supra, and by Civ.R. 56(E). Thus, based on the affidavits presented, there existed a genuine issue of material fact concerning the testator's capacity, and summary judgment would not have been proper. Accordingly, appellants' first assignment of error is found to be not well-taken.

As their second assignment of error, appellants state:

"2. The trial court erred by allowing a witness to give an opinion as to the ultimate issue in the case when the witness has not been proffered or qualified as an expert and when the opinion given by the witness is outside the specialized knowledge of the witness."

The test in determining the admissibility of the testimony of a witness offered as an expert is whether that witness will aid the trier of fact in search of the truth (see Ishler v. Miller [1978], 56 Ohio St.2d 447, 453, 384 N.E.2d 296 [10 O.O.3d 539], and Evid.R. 702), rather than whether the expert witness is the best witness on the particular subject. Alexander v. Mt. Carmel Medical Center (1978), 56 Ohio St.2d 155, 159, 383 N.E.2d 564 [10 O.O.3d 332]. Considering this test, we recognize that the opinion of a physician concerning questions of mental strength or weakness is competent in cases where those matters are in issue. Vetter v. Hampton (1978), 54 Ohio St.2d 227, 230, 375 N.E.2d 804 [8 O.O.3d 198]. The weight to be given this evidence, however, should be determined by the trier of fact just as it determines the weight to be given the testimony of other witnesses. Further, "[t]he testimony of a physician as to mental competency is not necessarily conclusive * * * 'as a matter of law.' " 2 Hampton, supra, at 230, 375 N.E.2d 804; Bahl v. Byal (1914), 90 Ohio St. 129, 135-136, 106 N.E. 766.

The expert witness herein, Larry L. Hadley, M.D., testified that he was the testator's physician from June 1968 through February 1981, a period of nearly thirteen years. During this time, Dr. Hadley acquired his complete knowledge and familiarity with the physical and mental condition of the testator. As such, Dr. [465 N.E.2d 1331] Hadley was competent to give his opinion regarding the mental state and condition of the testator. Bahl, supra, at 135-136, 106 N.E. 766.

In the instant case, as in Bahl, supra, the doctor fully described the gradual, well-defined, and constant decline in the mental and physical powers of the testator. Likewise, as in Bahl, supra, the doctor had the opportunity to observe the testator's mental condition, as the doctor was the testator's treating physician over a significant period of time. As such, it is clear that Dr. Hadley was competent to testify as to the mental state and capacity of the testator.

Appellants also contend that the question posed to Dr. Hadley and the answer which Dr. Hadley gave to that question were prejudicial and not permitted by the Ohio Rules of Evidence. We disagree. Appellants essentially pose two arguments in support of their contentions: (1) that absent an actual proffer in the record of Dr.

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Hadley's medical expertise, and absent a specific finding of fact or...

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