author: Deeds, J.

text:
    Kanoff, Appellee, v. Industrial Commission of Ohio, Appellant.
    (No. 795
    Decided November 29, 1954.)

      Messrs. Winchester & Winchester, for appellee.

      Mr. C. William O’Neill, attorney general, and Mr. George E. Fell, for appellant.
   Deeds, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Wood County. The judgment was entered by that court upon an award by a jury in favor of the plaintiff, appellee herein, as the dependent widow of John Kanoff, deceased, hereinafter referred to as plaintiff, against the defendant, appellant herein, the Industrial Commission of Ohio, hereinafter referred to as the defendant.

The trial to a jury in the Court of Common Pleas was had pursuant to Section 1465-90, General Code (Section 4123.51, Revised Code), upon the transcript of the record on rehearing had before the defendant, the petition of the plaintiff, and the answer of the defendant. Motions by the defendant for a directed verdict at the close of plaintiff’s case and at the conclusion of all the evidence, and motions by the defendant for judgment notwithstanding the verdict of the jury and for a new trial were, respectively, overruled by the trial court.

It is not disputed that on July 21, 1951, the decedent, John Kanoff, sustained compensable injuries while in the course' of his employment with The Libbey-Owens-Pord Glass Company, an employer amenable to and complying with the Workmen’s Compensation Act. It is the claim of the plaintiff that such injuries were a proximate cause of the death of the decedent. Therefore, the question determinative of the ease on this appeal is whether on the record before us there is competent evidence of probative value tending to prove that the injury was a proximate cause of the death of the decedent, John Kanoff.

The injury which it is claimed resulted proximately in the death of the decedent, as described in the application of the plaintiff for payment of money out of the State Insurance Fund for compensation on account of the death, consisted of “contusion of back and right forearm and injured abdomen. ’ ’

The testimony of Dr. Monroe Cronstine, the attending physician, concerning the injuries which he observed in his first examination of the decedent following the accident, on July 23,1951, was as follows:

“A. The history was that he fell while working and hit himself on his left hip two days previously, which was July 21st, and as a result of same he had a contusion to the muscles of his left hip with severely strained abdominal muscles. ’ ’

The condition directly leading to decedent’s death, according to the official death certificate as certified by Dr. B. E. Pet-, coff, was “bowel obstruction following appendectomy.” According to the medical records of the Riverside Hospital at Toledo, where the decedent was a patient at the time of his death and where an emergency operation for acute appendicitis was performed upon the decedent by Dr. Norman B. Muhme on November 16, 1951, following which the decedent died on November 20,. 1951, it appears that the death was the result of “general peritonitis,” with “acute appendicitis” being recorded as a “contributory” cause. It appears also from the medical testimony in the record that the bowel obstruction resulted directly from the condition of peritonitis. It is clear, therefore, from the foregoing that the issue of causal connection between the injury as described and the death of the decedent as a result of the causes enumerated made necessary and involved a scientific inquiry and required competent testimony by qualified medical witnesses in order to establish a causal relationship between the injury and death.

In Stacey v. Carnegie-Illinois Steel Corp., 156 Ohio St., 205, 101 N. E. (2d), 897, the syllabus is as follows:

“1. A condition of bilateral cataracts claimed to have resulted from a small particle which blew into one of the eyes falls within the classification of industrial injury cases where the testimony of lay witnesses is without probative value to establish the probability of a proximate causal relationship between the accident and the claimed resulting physical condition, and in order to prove such relationship medical testimony is essential.
“2. Where a claimant for compensation under the Workmen’s Compensation Act is suffering from bilateral cataracts and claims that the condition in his right eye proximately and directly resulted from a small particle no larger than a pin head which blew into that eye, and where the most favorable medical evidence was testimony that a causal relationship between the particle which blew into the eye and the eye condition was remotely possible, there is no evidence sufficient to justify submission to the jury of the question of causal connection between the claimed accident and the eye condition. (Drakulich v. Industrial Commission, 137 Ohio St.,.82, approved and followed. Bowling v. Industrial Commission, 145 Ohio St., 23, distinguished.) ”

In the opinion of the court in the Stacey case, supra, at pages 210, 211, is a statement pertinent to the subject now under consideration:

“Under the decisions of this court, where an issue in a case involves a question of scientific inquiry which is not within the knowledge of lay witnesses or members of the jury, expert testimony is required to furnish the answers, and, if the issue relates to a causal connection between an injury and a subsequent physical condition which involves only a scientific inquiry, such causal connection must be established by the testimony of medical witnesses competent to testify on the subject, and the proof in such case must establish a probability and not a mere possibility of such causal connection. Drakulich v. Industrial Commission, 137 Ohio St., 82, 27 N. E. (2d), 932; Aiken v. Industrial Commission, 143 Ohio St., 113, 53 N. E. (2d), 1018.

“The syllabus in the Aiken case reads:

‘ ‘ ‘ To entitle the dependents of a deceased workman to participate in the state insurance fund upon a claim that the death of such workman from acute myocarditis was attributable to a compensable knee injury suffered six years before, the proof offered must show such injury was a proximate cause of death and must include evidence by competent medical witnesses that a probable relationship existed between the original accident and the myocarditis. ’

“See, also, Brandt v. Mansfield Rapid Transit, Inc., 153 Ohio St., 429, 92 N. E. (2d), 1.”

From the transcript on rehearing before the defendant it appears that three physicians testified on behalf of the plaintiff, the first medical witness being Dr. Cronstine, the attending physician of the decedent, whose testimony has been quoted to the effect that he first saw and examined the decedent on July 23, 1951, two days following the accident, and who testified further that he thereafter saw and treated the decedent on July 26, August 2, 9, 16, 24 and 27, also on September 5, 12, 19 and 26, and on October 8, the last occasion upon which this physician saw" or treated the decedent being October 24, 1951.

In view of the conclusion which this court has reached on the record in the case now before us for review, it becomes necessary to consider in this opinion the medical testimony which is most favorable to the plaintiff. Also by reason of our conclusion on this appeal it becomes unnecessary and would serve no purpose pertinent to this appeal for the court to comment or pass upon the competency of the several hypothetical questions propounded to the medical witnesses on behalf of the plaintiff.

We do consider the circumstance significant in considering the testimony of the attending physician Dr. Cronstine, that Dr. Cronstine did not see or examine the decedent between the date of October 24 and the decedent’s death, which occurred on November 20, 1951. It appears from the transcript that in answer to a question which, in substance, concerned whether there was any connection between the cause of the decedent’s death and the injury he received on July 21, 1951, for which this attending physician treated him, the witness answered:

“I can’t answer yes or no. It’s probable or possible, let’s put it that way.”

Thereafter the doctor was interrogated further and answered as follows:

“My opinion is that even from the written records here and not from memory, as I have mentioned, I repeat that even from the records that I have from my office on the 23rd of July, 1951, he presented himself at my office and showed evidence of an injury to his left hip and also strained abdominal muscles. Now, it is possible that as a result of some injury to the abdominal muscles that it may have lowered the resistence of the tissues of the abdomen, thereby helping for an appendicitis to come about in that individual. Although I might say that people have appendicitis that never were in an injury and people may have an injury and never have appendicitis. So with that possibility that appendicitis may have been brought about in this individual, but there is nothing factual that can be stated in that direction.”

A complete resume of Dr. Cronstine’s observation and treatment of the decedent was elicited upon cross-examination of the doctor as follows:

“By Mr. Green: Now, Dr. Cronstine, would the following be an accurate statement of your medical history and treatment of Mr. Kanoff as made by you:

“ ‘I first saw the decedent July 23, 1951, and he gave a history of having fallen on his left hip and strained abdominal muscles on July 21, 1951. When I saw him he was complaining of some slight pain over the region of the appendix, was placed on diet and medication; was next seen July 26 and August 2 and he had no abdominal tenderness at all and felt much better. On August 9th he complained of reoccurence of pain in his back and he felt as if he had strain of the abdominal muscles. August 16 he felt much better, except for the fact that he felt greatly fatigued and tired easily. He had lost 13 pounds during the last year. August 24, 1951, had x-ray of the chest and sacroiliac region and lower lumbar vertebrae. X-ray was entirely negative except for pneumoconiosis. Weight loss 13 pounds during preceding year. Blood pressure 118 over 90. Only complaint was extreme fatigue. September 12, 1951, had gained three pounds, weight 148. No complaint of pain and only distress was extreme weakness. September 26, he was seen and examined and said he felt much better and weighed 152 pounds and was to return to work October 8, 1951, but did not return until October 15,1951.’

“Would you say that was an accurate statement of your care and treatment of him? A. Absolutely, that’s my statement without your mentioning him. I have the same facts here on my card that you have read into the minutes here.
“Q. And what I have read to you would be an accurate description of your treatment of him and your findings and so forth? A. That is correct.
“Q. And then you did not see him after — or did you see him after October 15, 1951? A. I saw him on the 8th of October, 1951. He weighed 154 pounds and he stated that he felt better and. that he was to return to work on October 15th.
“The referee: The question is did you see him after that date, Doctor.
Well, I thought he gave a date earlier than “The witness: October 15.
“The referee: No, October 15th.
‘ ‘ The witness: to the hospital? Well, let me make sure. When was he sent
“Q. In November. A. I have a record here that on October 24, 1951, I saw him.
“Q. You saw him? A. Yes, and he weighed 150 pounds then and his statement was that he felt some better.
“Q. That’s the last time you saw him? A. And I was under the impression he was to return to work the following day and that’s the last I saw him. That’s the 24th of October, 1951.”

The surgeon, Dr. Muhme, who performed the operation upon the decedent, testified that he first saw the decedent at Riverside Hospital on November 16, 1951, and diagnosed his condition as acute appendictis and advised immediate surgery.

He testified further that he performed the operation on November 16, 1951, and found a “perforated gangrenous appendix,” which was removed; and that he saw the decedent every day following until his death on November 20, 1951.

This physician was also present at the autopsy performed 19 hours later on November 21, 1951, and he gave “bowl obstruction and peritonitis” as Ms opinion as the canse of death.

In answer to further questions, Dr. Muhme gave the following answers:

“The findings at operation could not be associated with any injury. However, similar cases have followed injury. In my opinion the injury such as described could cause appendicitis.
“Q. Appendicitis such as you found in John Kanoff?
‘ ‘Mr. G-reen: Objection.
‘ ‘ The Referee: Overruled.
“Mr. Green: Exception.
“A. Yes.
Í < # # #
“A. The injury could have lowered the resistance so that at the time of operation that his general condition was such that he could not overcome the appendicitis.”

Another medical witness testifying on behalf of the plaintiff was Dr. Boni Petcoff, who testified that he saw the decedent on the first occasion at decedent’s residence on November 16, 1951, that he was seriously ill, and on the advice of tMs physician the decedent was removed to the hospital. He testified that an examination at the hospital resulted in the conclusion that the decedent was suffering from acute appendicitis, following wMch the operation already referred to in this opinion was performed by Dr. Muhme, with the assistance of the witness Dr. Petcoff.

The writer of this opinion will adopt the testimony of Dr. Petcoff as it appears and is set out in the brief of counsel for the plaintiff, as being the testimony of the witness which is most favorable to the plaintiff, which testimony is as follows:

“Based on this question Dr. Petcoff stated that he felt that this injury, ‘can have a direct effect on the man’s later condition as it developed about November 16th.’
“Dr. Petcoff was then asked, ‘With reference to Mr. Kan-off, state whether or not in your opinion it did have a direct effect upon his condition at the time of operation ? ’
“To tMs Dr. Petcoff answered, ‘Yes, I do think it did.’
“The Doctor was next asked: ‘State whether or not, Doctor, you have an opinion as to whether or not the condition arising from the accident had an effect upon his recovery from the operation for appendicitis.’
“To this the Doctor replied that he had snch an opinion. He was then asked: ‘What, Doctor, is your opinion with reference to that?’
“To this he replied: ‘It is my opinion that it had some bearing on his recovery, yes. It had a deleterious bearing upon it, yes.’
“The Doctor was then asked to state, whether or not he had an opinion as to whether there was a causal connection between the injury that he received and the death of Mr. Kanoff. He answered that he did have such an opinion. When asked his opinion, he stated: ‘I believe that it had a bearing on his (Mr. Kanoff’s) ultimate recovery.’
“He was then asked whether or not the bearing was for good or bad, and the Doctor stated: ‘For bad.’
“The Doctor was then asked: ‘Doctor, you say, “I believe it had a bearing. ’ ’ Will you extend that a little, if you can, sir, as to whether it was beneficial to him or detrimental to him. ’
“To this, Doctor Petcoff answered: ‘I believe that the injury had a detrimental effect on the man’s chance of recovery.’ ”

Following a careful analysis, it is the considered conclusion of this court that there is no medical evidence of probative value contained in the record of the case now under review, tending to establish that the injury sustained by the decedent on July 21 was a proximate cause of the death of the decedent.

In our view, the principles of law applicable and controlling the decision of this court on this appeal have been announced by the Supreme Court of the state in the case of Aiken v. Industrial Commission, 143 Ohio St., 113, 53 N. E. (2d), 1018. The syllabus in the Aiken ease, supra, having already been quoted previously in this opinion as a part of the opinion of the Supreme Court in the case of Stacey v. Carneigie-Illinois Steel Corp., supra, it is unnecessary to again quote same here.

However, in the view of the writer of this opinion, a substantial, part of the opinion of the Supreme Court written by Zimmerman, J., in the Aiken case, supra, and the prior decisions of that court cited in that opinion, are applicable to the evidence in the case now before this court, and he therefore deems it appropriate to quote at some length from the opinion, at pages 116,117, 119, as follows:

“In the case of Gwaltney, a Minor, v. General Motors Corp., 137 Ohio St., 354, 30 N. E. (2d), 342, this court held, as stated in the syllabus

“ ‘To entitle a claimant to recover under the Workmen’s Compensation Act as a dependent of a killed employee, it must appear from the evidence that such employee sustained a physical or traumatic injury in the course of and arising out of his employment, and that such injury was the proximate cause of his death.’
“As to the necessity for showing a direct causal relation between an injury and death, see, also, Weaver v. Industrial Commission, 125 Ohio St., 465, 466, 181 N. E., 894; Peer v. Industrial Commission, 134 Ohio St., 61, 64, 15 N. E. (2d), 772, 774. And compare Industrial Commission v. Brubaker, 129 Ohio St., 617, 196 N. E., 409.
“In the case of Drakulich v. Industrial Commission, 137 Ohio St., 82, 27 N. E. (2d), 932, it was announced that the issue of causal connection between an accidental injury and subsequent death from disease, involves a scientific inquiry and must be determined by the testimony of competent medical witnesses. Furthermore, such testimony must show a probability and not a mere possibility that there was a causal connection between the injury and the death to allow a claimant to participate in the state insurance fund. This pronouncement was approved and followed in the later case of Pfister v. Industrial Commission, 139 Ohio St., 399, 400, 40 N. E. (2d), 671.
“The definition and determination of ‘proximate cause’ in the field of torts is applicable here. While the determination of the proximate cause of an ultimate result sometimes presents a difficult problem in a particular ease, general principles controlling the settlement of • such question are well established. Briefly stated, the proximate cause of an event is that which in a natural and continuous sequence, unbroken by any new, independent cause, produces that event and'without which that event would not have occurred.
“No matter how much, we would like to decide in appellee’s favor because of her situation, she can not prevail when her right to participate in the state insurance fund rests on such a conjectural and speculative basis.
“The rule is well settled by numerous cases that to establish the relation of cause and effect between an injury to a workman and his death so as to justify an award of death benefits under a workmen’s compensation law, the evidence must be such as to remove the case from the realm of speculation and conjecture; there must be competent evidence tending to show a proximate causal connection between the injury and the subsequent death. See Duncan v. Weidman (Neb.), 11 N. W. (2d), 537; Pixa v. Grainger Bros. (Neb.), 12 N. W. (2d), 74; Gilmore v. Hoke County Board of Education, 222 N. C., 358, 23 S. E. (2d), 292; Monahan v. Seeds & Durham, 336 Pa., 67, 6 A. (2d), 889; McBrayer v. Dixie Mercerizing Co., 178 Tenn., 135, 156 S. W. (2d), 408; Cole v. Dept. of Labor & Industries, 200 Wash., 296, 93 P. (2d), 413.”

The Supreme Court of the state has also defined and announced clearly the character of the medical testimony required and considered competent in proof of the causal relationship necessary to be established between the claimed injury and the subsequent death in order that the dependent of a deceased employee be entitled to have the benefits provided by the workmen’s compensation law of this state.

In the case of Brandt v. Mansfield Rapid Transit, Inc., 153 Ohio St., 429, 92 N. E. (2d), 1, the first, second, third and fourth paragraphs of the syllabus are as follows:

“1. As triers of issues of fact a jury is required to determine probabilities.
‘ ‘ 2. Such determination of probabilities can not be based on testimony as to mere possibilities.
“3. The testimony of a physician that there ‘could’ be a causal connection between an injury and a subsequent premature menopause is inadmissible as proof thereof.
“4. To be admissible as proof thereof such testimony must relate to probability.”

From the opinion of the court in the Brandt case, supra, the writer considers as being especially applicable to the case now before this court, the following, at páges 431 and 432:

“The jury was required to base its verdict on probability, and obviously such a verdict could not be based on mere possibility. This court has so held in numerous cases. In the per curiam opinion in the case of Pfister v. Industrial Commission, 139 Ohio St., 399, 40 N. E. (2d), 671, it was said:

“ ‘Medical testimony was introduced to establish trauma and causal connection. However, such testimony was merely to the effect that claimant’s condition could have been or possibly was the result of trauma. As hereto held by this court, the proof must establish a probability and not a mere possibility. Drakulich v. Industrial Commission, 137 Ohio St., 82, 27 N. E. (2d), 932.’ ”

In the third paragraph of the syllabus in the Drakulich case, supra, the court held:

“ ‘Testimony that a person’s death from cancer of the liver could have resulted from a previous injury to his back is insufficient to prove causal connection between such injury and death. The proof in such case must establish a probability, not a mere possibility of such causal connection. ’
“In the syllabus in the case of Drew v. Industrial Commission, 136 Ohio St., 499, 26 N. E. (2d), 793, this court said in part that ‘evidence which shows only that the paralysis could have been the direct result of injury sustained in the fall is insufficient proof to warrant submission of the cause to the jury.’ And in his opinion in that case Williams, J., stated, ‘Proof of possibility is not sufficient to establish a fact; probability is necessary.’ ”

Giving to the medical evidence in the record before us the most favorable consideration possible, we find that it reaches no greater strength as proof of the causal relationship essential for plaintiff’s case than “that the injury could have been a cause” or that “it had a bearing,” or still further, that in the opinion of the doctor it was “detrimental,” “bad,” “deleterious.”

We are compelled to the conclusion that such testimony is conjectural and is entitled as proof to no greater value or weight than mere possibilities, which it is clear is wholly insufficient to meet the requirements of the law as established by the decisions of the Supreme Court of the state. It is clear that the medical evidence in the record now before us does not meet the required test of tending to establish the essential element of causal relationship between the injury and the death of the decedent by proof of probabilities, and that therefore the defendant was entitled to a directed verdict and judgment in its favor in the trial court.

Although the court has considered each of the defendant’s assignments of error, in view of the conclusion which the court has reached as already indicated, comment concerning same becomes unnecessary.

The judgment of the Court of Common Pleas is, therefore, reversed and final judgment entered by this court for the defendant.

Judgment reversed and final judgment for defendant.

Fess and Conn, JJ., concur.


source: Caselaw Access Project

author: Phillips, J.

license: Public Domain

text:
    The City Coal & Supply Co., Appellee, v. American Automobile Ins. Co. et al., Appellants.

      (No. 3706
    Decided November 12, 1954.)

      Messrs. Nadler & Nadder, for appellee.

      Mr. Oscar A. Stephens, for appellants.
   Phillips, J.

The meaning of the word, “upset,” as used in a policy of insurance issued by defendant companies to plaintiff corporation on a concrete-mixer truck, owned and operated by it in its business of selling building supplies and concrete mixed in transit, and damages recoverable under the terms of such policy of insurance under the facts of this case are the questions presented to this court by defendants’ appeal on questions of law from the judgment of the Court of Common Pleas, entered upon the finding of a judge thereof (sitting as the trier of fact, by waiver of trial by jury) for plaintiff in the amount of $1,031.50 in its action against defendants to recover for damage to such concrete-mixer truck.

As plaintiff’s driver backed the insured vehicle within three feet of a cellar excavation, after unloading about one-half yard of concrete, and was preparing to unload the remainder thereof for the foundation of a house, and while the driver was leaving the cab of such truck, the rear wheels on each side of the rear thereof, and the chute with which the concrete had been and was to be delivered, sank into the side of the excavation and to the bottom thereof, and were buried completely. One of the front wheels was lifted- off the ground about a foot and a half and the other about six inches.

After manual efforts and the use of a wrecker, crane and a tractor were unsuccessful in removing it, the concrete-mixer truck was removed from the excavation the next day by a crane and tractor acting in unison, and towed to plaintiff’s supply yard, where the concrete which had hardened in the mixer barrel was removed by plaintiffs at a cost of $72. The truck was repaired, subsequently for $64, and was equipped with two new tires and tubes as replacements for the blown out tires with which it was equipped when it slid into the excavation, at a'"'total expense of $223.19, exclusive of towing and removing, or attempting to remove, the truck from the excavation; all of which, including towing, was done at a cost of $1,031.50.

The provisions of the contract of insurance around which the controversy between the parties revolves are:

“Item 8.
< Í # # *
“E. Comprehensive loss of or damage to the automobile, except by collision (but including fire, theft and windstorm). To pay for any direct and accidental loss of or damage to the automobile, hereinafter called loss, except loss caused by collision of the automobile with another object or by upset of the automobile or by collision of the automobile with a vehicle to which it is attached. ’ ’

“Item 10. Insured’s duties when loss occurs — coverages D, E-l, E-2 and F. When loss occurs, the insured shall:

“(a) Protect the automobile, whether or not the loss is covered by this policy, and any further loss due to the insured’s failure to protect shall not be recoverable under this policy; reasonable expense incurred in affording such protection shall be deemed incurred at the company’s request.”

“Upset” has been defined oftentimes to mean “to overturn, overthrow, or capsize; as, to upset a carriage; to upset an argument ; .to upset the situation. * * * Synonym: * * * Overturn. ’ ’ Webster’s New International Dictionary, Second Edition.

Plaintiff maintains that “when loss occurs, the insured shall ‘protect the automobile, whether or not the loss is covered by this policy, and any further loss due to the insured’s failure to protect shall not be recoverable under this policy; reasonable expense incurred in affording such protection shall be deemed incurred at the company’s request’ ”; and that the vehicle did not upset.

Defendants maintain that the vehicle upset and support their conclusion by citation of the following cases:

Where a vehicle loses its equilibrium and the overturning process corhmences and proceeds beyond the power of those in charge of the vehicle to stop its progress, the vehicle has “overturned” or “upset” within the meaning of a policy insuring against damage to the vehicle upset or overturning. Jack v. Standard Marine Ins. Co., Ltd., 33 Wash. (2d), 265, 205 P. (2d), 351, 8 A. L. R. (2d), 1426.

“Where wheels on right side of truck loaded with fruit sank down to the axle, a distance of two to three feet, in earthen shoulder of highway, causing load to shift its weight, and sideboards of truck were thereby broken and fruit was precipitated to the ground, damage to fruit was caused by ‘overturning’ of truck within policy providing for payment to insured on insured’s liability as private or common carrier for loss or damage to goods caused by ‘overturning of the motor truck and/or trailer’ * *

“Judge Gaston ruled as follows: ‘As to the overturning, the degree of overturning has nothing to do with it. A slight overturning is as much an overturning as a complete overturning.’ ” Moore v. Western Assurance Co. of Toronto, Canada, 186 S. C., 260, 195 S. E., 558.

“Where automobile was driven down a hill and onto a causeway across a river and there was a splash when automobile hit flood- waters and automobile then slid over the causeway or into a chughole in a slanting position and wrecker which attempted to remove automobile could not get it out and the automobile turned over when wrecker turned loose of the automobile, there was a ‘collision’ or ‘upset’ within policy insuring ownér of automobile for damage caused by collision of automobile with another object or by upset of automobile.” Proffitt v. Providence Washington Ins. Co. (Tex. Civ. App.), 234 S. W. (2d), 894.

Where a trailer bed of a truck was lifted by a hydraulic hoist for the purpose of emptying a load of slag, but only slag on one side of the trailer slid out causing the truck to tip over until it rested on the ground thereby damaging the truck and trailer, “damage was caused by upset of the trailer within the meaning of the policy.” Radella v. Bankers Mutual Fire Ins. Co. of Lancaster, 165 Pa. Super., 633, 70 A. (2d), 407.

Further defendant maintains that “plaintiff did not have a contract for coverage ’ ’ for ‘ ‘ towing and other expenses in removing the mixer truck from the excavation,” provision for which is made “under item 8-K, which provides for towing coverage”; that the trial court was in effect writing in the policy issued to the plaintiff coverage which was not extended to plaintiff, “* * * in effect writing a new contract of insurance between the parties, a contract not anticipated at the time the policy was issued to the plaintiff.”

“It is the defendant companies’ contention that under the law and the facts of this case this mixer truck was out of control and the backward fall into the excavation could not be stopped by the driver. Once the mixer truck was in the excavation it could not be removed by its own power. The front wheels were suspended in the air, the bottom resting flat against the walls of the excavation, the cement chute buried into the ground.

“The mixer truck was upset and the plaintiff was not entitled to payment under Policy No. K-2017782.

“There is another question in this case, that is the measure of damages as applied by the trial court. Assuming for the purpose of this question only that the mixer truck was not upset, what damages are covered?”

Counsel for defendant insurance companies admits that if plaintiff’s truck had gone into quick-sand and was entirely submerged to the point that it was impossible to recover then defendants would be liable for the full value of such truck.

It is the contention of defendants’ counsel that it should not have to pay to plaintiff the amount required to salvage the truck because the policy did not cover “towing. ”

However, there is another principle applicable here, and that is that an insured must do everything reasonable to minimize the amount of the loss; and certainly, in this case, what the plaintiff did was for the benefit of the defendant insurer in that it did minimize the loss and relieve the defendants from payment of the full value of the cement mixer which went over the embankment. Having so minimized the loss, we hold that plaintiff was entitled to the amount expended by it for the benefit of the defendant companies in salvaging the cement mixer from the excavation into which it slid.

We have read with interest, care and gratitude the following “list of authorities relating to the question presented” to which our attention was called by the trial judge in his opinion:

5 Insurance Law and Practice — Appleman, 340, Section 3201; 23 A. L. R. (2d), 397, 411-426; 8 A. L. R. (2d), 1433; Aetna Casualty and Surety Co. v. Cartmel, 87 Fla., 495, 100 So., 802, 35 A. L. R., 1013; Mercury Ins. Co. v. McClellan, 216 Ark., 410, 225 S. W. (2d), 931; Great American Mutual Indemnity Co. v. Jones, 111 Ohio St., 84, 144 N. E., 596, 35 A. L. R., 1023; Ferguson v. Farm Bureau Mutual Ins. Co., Inc., 171 Kan., 679, 237 P. (2d), 234; Radella v. Bankers Mutual Fire Ins. Co. of Lancaster, 165 Pa. Super., 633, 70 A. (2d), 407; Proffitt v. Provident Washington Ins. Co. (Tex. Oiv. App.), 234 S. W. (2d), 894; Jack v. Standard Marine Ins. Co., Ltd., 33 Wash. (2d), 265, 205 P. (2d), 351, 8 A. L. R. (2d), 1426; Guaranty Trust Co. v. Continental Life Ins. Co., 159 Wash., 683, 294 P., 585; Granger v. New Jersey Ins. Co., 108 Cal. App., 290, 291 P., 698; Carl Ingalls, Inc., v. Hartford Fire Ins. Co., 137 Cal. App., 741, 31 P. (2d), 414, 416; New Jersey Ins. Co. v. Young (C. C. A., 9th), 290 F., 155; Wetherill v. Williamsburgh City Fire Ins. Co., 60 Pa. Super., 37; Haik v. United States Fidelity and Guaranty Co., 15 La. App., 97, 130 So., 118; Harris v. American Casualty Co. of Reading, Pa., 83 N. J. L., 641, 85 A., 194, 44 L. R. A. (N. S.), 70, Ann. Cas. 1914B, 846; Tinker v. Boston Ins. Co., 106 Okla., 206, 233 P., 1058; St. Paul Fire and Marine Ins. Co. v. American Compounding Co., 211 Ala., 593, 100 So., 904, 35 A. L. R., 1018; 5 American Jurisprudence, 790, 817, 908, Sections 507, 557, 753; Moore v. Western Assurance Co. of Toronto, Canada, 186 S. C., 260, 195 S. E., 558; Orlando v. Manhattan Fire and Marine Ins. Co., 266 N. Y. App. Div., 319, 42 N. Y. Supp. (2d), 228; Long v. Royal Ins. Co., Ltd., 180 Wash., 360, 40 P. (2d), 132, 105 A. L. R., 1423; 43 Words and Phrases (Cumulative Pocket Part, 1955), 135.

As suggested by the trial judge, some of the listed authorities “seem to hold contrary to the opinion” of the trial court, and this court, that the insured vehicle did not upset when it slid into the cellar excavation, nor while being removed therefrom.

However, in our opinion, the weight of authority of those cases, the cases cited by counsel, and those resulting from independent research, support the conclusion we have reached.

The foregoing conclusion compels consideration of the second question presented; namely, the expenses for which plaintiff is entitled to be reimbursed by the terms of the policy of insurance.

We conclude that under the quoted provision of the policy of insurance identified as (a), the plaintiff is entitled to be reimbursed for the amount of damage to the truck and the amount of money expended in removing the truck from the excavation and protecting it from further injury such as hardening concrete and further damage, which amount the evidence discloses to be the amount returned by the jury.

The judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Griffith, P. J., and Nichols, J., concur.


author: Hurd, P. J. Kovachy, J.,

text:
    Gravier et al., Appellants, v. Gluth, Exrx., et al., Appellees.

      (No. 22964
    Decided May 12, 1954.)

      Mr. John J. Tetlow, Mr. William J. Tetlow, Mr. J. J. Sheehan and Mr. F. C. Duffy, for appellants.

      Messrs. Deibel, Elbrecht & Roberts, for appellees.
   Hurd, P. J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of this county, granting a motion to dismiss plaintiffs’ amended petition to contest a will on the ground of want of jurisdiction. The judgment of the trial court was based upon the allegations of the amended petition and the docket and journal entries, there being no bill of exceptions.

Edwin W. Bechler died August 18, 1950, leaving a will in which he named defendant Gluth as the executrix, and defendant Edith M. Boll the sole legatee and devisee. The will was admitted to probate on September 8, 1950. On February 27, 1951, three persons, Leona Gravier, Anna Bechler and Charles P. Bechler, filed a petition to contest the will. They named Catherine Gluth, executrix of the will, and Edith M. Boll, legatee in the will, as parties defendant; and they also named Mary Fredette, Arthur Faenrich and Emil Faenrich as parties defendant.

The petition alleged that the three plaintiffs and the last named three defendants were the only heirs at law and next of kin of the testator. With the petition, plaintiffs filed a precipe directing summons to be issued and served on the executrix and on the legatee-devisee. The precipe was silent as to other three defendants. Summons was issued for and served on the executrix and legatee-devisee, but no summons was served on the other three defendants; neither did the other three defendants, either then, or at any time thereafter, waive service of summons or enter appearance in the case as defendants. There was no constructive service on the unknown heirs at law of the testator; and any known heirs, not above mentioned, were not at any time made parties to the suit.

On January 15, 1953, twenty-seven months after probate of the will, an entry was made on the docket, reading as follows:

“Leave granted plaintiffs to amend caption of petition.”

Pursuant to such leave, there was written in ink in the caption of the original petition the following:

“Additional parties plaintiff: Margaret Bechler, Berlin, Germany; Martha Bechler, Berlin, Germany; Lucy Bechler, Berlin, Germany; Anna’ Bechler, Cullman, Alabama; John Bechler, Cullman, Alabama; Ernest Bechler, Berlin, Germany; Arthur Faenrich, 8216 Rosewood Avenue, Cleveland, Ohio; Emil Faenrich, 10215 Robinson Avenue, Cleveland, Ohio; Mary Fredette, 7719 Detroit Avenue, Cleveland, Ohio; Erika Bechler, Berlin, Germany; Eckart Bechler, Berlin, Germany; Elf a Bechler, Berlin, Germany.”

At the time of such leave and of such amendment of the caption by interlineation, the body of the petition was not amended, either by filing an amended petition, or by interlineation, or otherwise. Nothing then appeared in the petition disclosing whether “additional parties plaintiff” had any interest in the action.

Thereafter, defendant Edith M. Boll moved to require the petition to be made definite and certain to show the interest, if any, of the new parties plaintiff. In amending the caption, the original three defendants, namely, Mary Fredette, Arthur Faenrich and Emil Faenrich, had been transferred from the defendant side of the case to the plaintiff side under the caption of “additional parties plaintiff,” thereby leaving as the only remaining defendants the executrix and the legatee-devisee.

On March 31, 1953, the motion to make definite and certain was granted, and on April 17, 1953, thirty months after the probate of the will, an amended petition was filed. The three original plaintiffs and the three original defendants, plus nine other persons, were then named as plaintiffs. Thereafter, the defendant executrix and the defendant legatee-devisee filed a motion to dismiss the action for want of jurisdiction. The trial court treated the motion to dismiss as a demurrer and sustained the same. On rehearing, the trial court refused to vacate the order of dismissal.

Under this state of the record, the sole question presented for our determination is, “Did the trial court err in dismissing the action for want of jurisdiction?”

Section 2741.09, Revised Code (Section 12087, General Code), so far as applicable, provides:

“An action to contest a will or codicil shall be brought within six months after it has been admitted to probate * * *.” Likewise Section 2107.23, Revised Code (Section 10504-32, General Code) provides:

“If within six months after a will has been admitted to probate no person files an action to contest the validity of a will, the probate shall be forever binding, except * * *.” (Exceptions not material in this case.)

Section 2741.02, Revised Code (Section 12080, General Code), the predecessor of which was enacted in 1878, provides: “All the devisees, legatees, and heirs of the testator, and other interested persons, including the executor and administrator, must be parties to an action under Section 2741.01 of the Revised Code.” (Emphasis supplied.)

Appellants here contend that the principle enunciated in Bradford v. Andrews, 20 Ohio St., 208, 5 Am. Rep., 645, is here applicable, the first paragraph of the syllabus of which reads as follows:

“1. Where a proceeding for the contest of a will is commenced within the statutory period of limitation, although only part of the persons interested in the contest are made parties thereto, the right of action is saved as to all who are ultimately made parties, notwithstanding some of them are not brought into the case until after the period of limitation has expired.”

However, in Peters v. Moore, 154 Ohio St., 177, 93 N. E. (2d), 683, Weygandt, C. J., speaking for a unanimous court, stated at page 182:

“A careful study discloses not only that at the time of the Bradford case decision in the year 1870, Section 12080, General Code, had not been enacted, but that this section was not preceded by any similar statute. Hence, when the section was enacted in 1878, the provisions were new and, of course, were not under consideration in the Bradford case.”

This brings us to a consideration of a series of decisions by the Supreme Court, which, in our opinion, require the affirmance of the judgment of the Common Pleas Court in this case.

In Case v. Smith, Admx., 142 Ohio St., 95, 50 N. E. (2d), 142, the Supreme Court approved and followed the cases of McVeigh v. Fetterman, 95 Ohio St., 292, and McCord v. McCord, 104 Ohio St., 274, as indicated in paragraphs 1 and 4 of the syllabus. For purposes of this discussion, we think it helpful to set forth the syllabus of Case v. Smith, as follows:

“1. No right exists to maintain an action to contest the validity of a will except as it is specifically provided by statute. (McVeigh v. Fetterman, 95 Ohio St., 292, approved and followed.)
“2. The provisions of the statute relative to an action to contest the validity of a will are mandatory; the enjoyment of the right is dependent upon compliance with the conditions and limitations therein contained.
“3. The sole beneficiary, under a will, who is neither an heir at law nor next of kin of the decedent, is not ‘united in interest’ with decedent’s heirs at law or next of kin.
“4. An action to contest the validity of a will is not commenced as to the heirs at law of testator by service of summons upon such sole beneficiary within six months from the date of probate, where such sole beneficiary is neither an heir at law nor next of kin of decedent. (McCord v. McCord, 104 Ohio St., 274, approved and followed.)
“5. In such action where none of the heirs at law or next of kin is served with summons and no person ‘united in interest’ with them is served within six months from the date of probate there is a failure of compliance with Section 12080, General Code, specifying who must be made parties, and the Court of Common Pleas is without jurisdiction to entertain such action.”

The trial court, while commenting on the “logic and good sense” of Bradford v. Andrews, supra, expressed the view that Case v. Smith, supra, is now the controlling authority which should be followed in the instant case.

From the facts above noted, it will be observed that the six months limitation prescribed by Section 12087, General Code (Section 2741.09, Bevised Code), terminated March 8, 1951.

It is here conceded that none of the heirs at law or next of kin was served with summons within the six-month period made a condition of limitation precedent for the right to sue, although three heirs at law were originally named as defendants. As in Case v. Smith, supra, only the sole beneficiary and the executrix were made parties and served with summons. In view of this factual situation, none of the heirs at law could be joined as defendants after the termination of the six-month period because none was united in interest with the sole beneficiary and executrix as provided by Section 11230 General Code (Section 2305.17, Revised Code), which, so far as applicable, provides as follows:

“An action shall be deemed commenced within the meaning of this chapter, as to each defendant, at the date of summons which -is served on him or on a codefendant who is a joint contractor, or otherwise united in interest with him.” (Emphasis supplied.)

Faced with this dilemma, the original plaintiffs then sought to join the three heirs at law originally named as defendants, but not served with summons, together with nine other heirs at law later discovered, as plaintiffs, but long after termination of the six-month period, on the theory that the said plaintiffs are united in interest with the original plaintiffs. This attempt is abortive, because there is no warrant for such action either by statute or at common law.

Section 11230, General Code (Section 2305.17, Revised Code), is unavailing to plaintiffs because by its express terms it is limited to defendants and codefendants. There is no similar statutory provision favoring plaintiffs who may be united in interest. Had summons been issued upon the original heirs at law named as defendants, followed by service upon them, we would be confronted with an entirely different situation by reason whereof the nine heirs at law might be joined as codefendants because united in interest as provided by Section 11230, General Code (Section 2305.17, Revised Code). However, as we do not have this question before us, it is not necessary to discuss or decide it. In any event, we are certain that the obvious jurisdictional defect in procedure cannot be cured by unseasonably transferring the three parties originally named as defendants to the plaintiff’s side of the petition, and belatedly adding other heirs at law as plaintiffs.

We think this proposition has now been definitely and finally established by the Supreme Court precluding this court from holding to the contrary, however much we might think it desirable to give all parties their day in court.

It is our conclusion that under the doctrine and authority of the cases of McVeigh v. Fetterman, supra; McCord v. McCord, supra; and Case v. Smith, supra, and the later cases of Peters v. Moore, supra; and Bynner v. Jones, 154 Ohio St., 184, 93 N. E. (2d), 687, to the same general effect, the Court of Common Pleas did not err in dismissing the action for want of jurisdiction; and the judgment is, therefore, affirmed.

Judgment affirmed.

Skeel, J., concurs.

Kovachy, J.,

dissenting.

The facts are fully stated in the majority opinion.

The case of Case v. Smith, Admx., 142 Ohio St., 95, 50 N. E. (2d), 142, in my opinion, is not factually identified with the instant case. It is true in both cases the heirs at law or next of kin commenced the action to contest the will against the sole beneficiary who was neither an heir at law nor next of ldn of the decedent, and the administratrix in one and the executrix in the other, as parties defendant, and obtained service on these defendants within the time limitation required by law. However, in Case v. Smith, the heirs at law or next of kin entered the lawsuit as parties defendant; whereas, in the instant case, they entered as parties plaintiff.

It seems apparent therefore, in the case of Case v. Smith, that since no heir at law or next of kin was made a party defendant within six months from the date of probate of the will, no party defendant united in interest with the new defendants was in the case and no action with respect to them had been properly commenced as required under Section 12080, G-eneral Code (Section 2741.02, Revised Code), the Court of Common Pleas was without jurisdiction to proceed with the action.

In the instant case, on the other hand, the new parties plaintiff were united in interest with the original plantiffs and the action was commenced in compliance with Sections 12087 and 12080, General Code (Sections 2741.09 and 2741.02, Revised Code), since it was instituted within six months after the date of probate of the will, with all classes of persons enumerated in the latter section made parties to the action either as plaintiffs or defendants, including the executrix.

The rule with respect to adding new parties plaintiff in a situation such as we have here is stated in 8 A. L. R. (2d), 28, paragraph (10), as follows:

“Where the attempt is made to add a new party plaintiff after the statute of limitations has run, the general rule is that where the original plaintiff seeks to enforce an independent right the amendment does not relate back and the defense of the statute of limitations is available against the added plaintiff, but that where the addition of the new party plaintiff is made necessary because of a failure in the first instance to join persons having a joint interest, the amendment relates back to the commencement of the original suit.”

The Supreme Court of Ohio applied the principle herein contended for by plaintiffs, in the case of Snider’s Exrs. v. Young, 72 Ohio St., 494, 74 N. E., 822, and states it in paragraph 1 of the syllabus:

“1. When some of the plaintiffs in a joint judgment are made parties defendant to a petition in error to reverse the judgment and their appearance in the proceeding has been effected by service of process or otherwise, within the statutory limit for commencing proceedings in error, the proceedings must be deemed commenced, not only as to such defendants, but also as to all other persons united in interest with them, so as to stop the running of the statute of limitations in favor of such other persons who are not made defendants.”

See Baughman v. Hower, 56 Ohio App., 162, 10 N. E. (2d), 176.

The new plaintiffs herein were all united in interest with the original plaintiffs, and consequently there was no attempt on their part to enforce an independent right. Their rights were consonant with and identical to those asserted by the original plaintiffs in the petition filed by them in this case. It is fortunate for these original plaintiffs that they were able to obtain the consent of all the new parties to be made plaintiffs, because only by such procedure were they able in this case to bring them into the lawsuit, under authority of Section 11256, General Code (Section 2307.20, Revised Code); since, under the circumstances, they could not have been brought in as defendants after the lapse of six months from the date of probate.

Section 11256, General Code (Section 2307.20, Revised Code), reads:

“Parties who are united in interest must be joined, as plaintiffs or defendants. If the consent of one who should be joined as plaintiff can not be obtained, or, he is insane, and the consent of his guardian is not obtainable, or he has no guardian, and that fact is stated in the petition, he may be made a defendant.”

The Supreme Court has held that rules of pleading not inconsistent with special statutes, are applicable in will contest cases. Morton v. Fast, Exr., 159 Ohio St. 380, 112 N. E. (2d), 385, paragraph 1 of syllabus:

‘ ‘ The rules of pleading generally applicable in a civil action should be applied in a will contest except where they are inconsistent with special statutory provisions relating to such a contest.”

It seems to me, therefore, that the trial court erred in holding that it was without jurisdiction to hear this case under the circumstances and facts therein, and that the judgment rendered by it should be reversed.


author: Per Curiam:

text:
    The State of Ohio, Appellee, v. Mirman, Appellant.

      (No. 4557
    Decided February 14, 1955.)

      Mr. Bernard J. Roetzel, for appellee.

      Messrs. Davis & Lipps, for appellant.
   Per Curiam:

This is an appeal on questions of law from a judgment of contempt.

The appellant, Edward Mirman, was duly summoned to appear before the grand jury of Summit County, Ohio. His counsel appeared for him and gave to the special prosecuting attorney a letter signed by Mirman, wherein he stated he would not appear before the grand jury and give testimony, because such grand jury “is not a legally-constituted body.” Thereafter, a written “motion for contempt” was duly filed, and, at a hearing thereon, after due and proper notice, the trial court found Edward Mirman guilty of contempt. The judgment of contempt in part said:

“It is therefore ordered and adjudged that the said Edward Mirman be sentenced to ten days imprisonment in the county jail and pay a fine of $500 for said contempt. It is further ordered and considered upon the said Edward Mirman’s indication of his present refusal to answer questions before the grand jury or to appear and attend before the grand jury for said purpose, that it' is an act which he can yet perform and which he refuses to perform, and that the court therefore adjudges him guilty of a continuing contempt and orders him imprisoned in the county jail until such time as he is willing to perform said act of giving testimony before the grand jury of Summit County. It is further considered that said term of ten days imprisonment and fine of $500 shall be effective after and when the said Edward Mirman is released by complying with the doing of the act required of him which he can yet perform, to wit, appearing before and testifying in front of said grand jury of Summit County, and that, while said Edward Mirman is confined for his failure to do the act required of him with respect to testifying before the grand jury, no time so spent shall be credited against the ten days sentence and the $500 fine adjudged against him.”

It is this judgment that is now before this court for review. The appellant, Edward Mirman, by way of assignments of error, says the trial court erred:

”1. In failing to discharge eight members of the grand jury who had served more than three consecutive weeks as grand jurors of Summit County, Ohio.
“2. In selecting six members of the grand jury illegally and contrary to the jury code and the rules of the court.
“3. In failing to discharge the grand jury.
“4. In finding appellant guilty of contempt of court for failure to appear and testify before an illegally-constituted body.
“5. In placing appellant in double jeopardy by finding him guilty of and sentencing him twice for the alleged commission of one offense.
"6. In denying appellant due process of law in the respects above mentioned.”

In consideration of these claimed errors, we do not find that the grand jury is an illegally-constituted body. The Revised Code provides, in Chapter 2939, Section 2939.02, et seq., for the organization and selection of a grand jury. Although the length of service of a grand jury is not expressly set out in the statutes, it is said, in Section 2939.04, Revised Code, that “a person who has served as a grand juror at a term of court is prohibited from serving again, either as a grand juror or petit juror, in that jury year in which the service is rendered, or in the next jury year.” (Italics ours.)

We think it clearly apparent, when reading these sections relating to grand juries, that the term of service now provided by law is as it formerly was deemed to be — to wit, one term of court.

A grand jury, by the law of this state, is under the control and direction of the Court of Common Pleas; and unless there is express statutory limitation as to the court’s authority, such court may recess or discharge the jury, as the nature of the matters and business of the county require.

Where a grand jury, after its selection and organization as required by law, is unable to proceed in its work because of the “sickness, death, discharge, or nonattendance” of a member, the statute (Section 2939.16, Revised Code) expressly provides that “the court may cause another to be sworn in his stead. ’ ’

It is not, then, required, even though it may be a salutary way to proceed, that the person or persons selected to act as substitute grand jurors be chosen from the jury wheel, hut the court, having charge of such grand jury, may select qualified talesman to sit as members of the body.

It is provided by Section 2313.38, Revised Code, that: “If the number for a grand jury is insufficient, the court may issue a special venire to the sheriff commanding him to summon the persons named therein to attend forthwith as grand jurors.” (Italics ours.)

Although the sheriff did not summon the jurors in the instant case, we find that, under Section 311.22, Revised Code, such service of summons was properly made.

We believe that the pronouncement of the Supreme Court of the United States on the subject of the right of a witness to challenge the organization of a grand jury, accurately sets forth the law in such matters. That court, in the case of Blair v. United States, 250 U. S., 273, at page 281, 63 L. Ed. 979, at page 983, 39 S. Ct., 468, at page 471, said:

“But, aside from exceptions and qualifications — and none such is asserted in the present case — the witness is bound not only to attend but to tell what he knows in answer to questions framed for the purpose of bringing out the truth of the matter under inquiry.

“He is not entitled to urge objections of incompetency or irrelevancy, such as a party might raise, for this is no concern of his. * * *-

“On familiar principles, he is not entitled to challenge the authority of the court or of the grand jury, provided they have a de facto existence and organization.

“He is not entitled to set limits to the investigation that the grand jury may conduct. The Fifth Amendment and the statutes relative to the organization of grand juries recognize such a jury as being possessed of the same power that pertained to its British prototype, and in our system examination of witnesses by a grand jury need not be preceded by a formal charge against a particular individual. * * * It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime. As has been said before, the identity of the offender, and the precise nature of the offense, if there be one, normally are developed at the conclusion of the grand jury’s labors, not at the beginning. * * *

“And, for the same reasons, witnesses are not entitled to take exception to the jurisdiction of the grand jury or the court over the particular subject-matter that is under investigation. In truth it is in the ordinary sense no concern of one summoned as a witness whether the offense is within the jurisdiction of the court or not. At least, the court and grand jury have authority and jurisdiction to investigate the facts in order to determine the question whether the facts show a case within their jurisdiction.”

We therefore find that this grand jury is a lawfully constituted body.

It is further claimed, as noted in the assignments of error, that the court erred in “finding him guilty of and sentencing him twice for the alleged commission of one offense,” thus placing the summoned witness in “double jeopardy.”

Judgments and orders in contempt cases may be of different kinds and made to different ends. One of the kinds is coercive — to compel a person to obey the lawful summons of a court and to keep him in custody until he does. Section 2705.06, Revised Code, states the power, of the court in the following language: “When the contempt consists of the omission to do an act which the accused yet can perform, he may be imprisoned until he performs it. ’ ’ This code section is coercive rather than punitive, and figuratively places the key to the county jail in the contemnor’s hands, to be used by him for his own release, whenever he sees fit to answer the summons. Without this power in the court, any summoned witness could obstruct the administration of justice and impede the operation of the entire judicial system.

Another séction of the code provides a definite penalty, which is entirely punitive. It may be imposed in the public interest to vindicate the authority of the court and to deter other like derelictions. It is in the following words and phrases: “Upon the day fixed for the trial in a contempt proceeding the. court shall investigate the charge, and hear any answer or testimony which the accused makes or offers. The court shall then determine whether the accused is guilty of the contempt charge. If it is found that he is guilty, he may be fined not more than five hundred dollars or imprisoned not more than ten days, or both.” (Section 2705.05, Revised Code.)

It is argued here that the orders in the judgment of the court overlap and constitute a double punishment for the same act.

In answer to this claim, we need only point to that which is obvious — i. e., the coercive order made under authority of Section 2705.06, Revised Code, need not result in any imprisonment if the accused will submit, as is his duty, to the lawful summons of the court. Any imprisonment under this order is of his own volition, and he cannot here complain of his voluntary acts. Nor does incarceration under this statute necessarily atone for the contempt of which he has been found guilty — i. e., contumacy, which is defined as pertinaceous resistance to authority; willful disobedience to the summons or orders of a court; or willful contempt of court.

There is nothing illogical or inconsistent in a court entering an order requiring a person, subject to it, to perform an act which is capable of being performed (responding to a summons) and committing him to jail until he indicates his willingness to perform it, and then, upon his compliance, require him to suffer a statutory penalty for the contempt which obstructed the administration of justice and impaired the normal operation of the court. The latter is entirely penal, and the former is coercive only.

It has long been recognized in this state that the inquisitorial function of the grand jury and compulsion of witnesses were incidents of state judicial power; and a summoned witness cannot, as stated above, challenge the authority of the court or of the grand jury, provided they have existence either legal or de facto. As an incident of judicial power, a Court of Common Pleas may enforce its orders through the medium of contempt.

We find in the instant case that the court did not abuse its power, and its judgment will be affirmed.

Judgment affirmed.

Hunsicicer, P. J., Doyle and Middleton, JJ., concur.

Middleton, J., of the Third Appellate District, sitting by designation in the Ninth Appellate District.


author: Wiseman, J.

text:
    Permanent Ins. Co. et al., Appellants, v. Cox, Appellee.
    (No. 552
    Decided March 10, 1955.)

      Mr. James P. Jones, for appellants.

      Mr. Dan M. Aultman and Mr. Robert K. Schoecraft, for appellee.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Greene County entered on a verdict directed in favor of the defendant.

Plaintiff Rodgers, while driving his automobile on route 42 near Cedarville, collided with a horse owned by the defendant, which ran across the highway immediately in front of the plaintiff’s automobile. Plaintiffs alleged damage to the automobile caused by the collision, which it is claimed was due to the negligence of the defendant in allowing the horse to run upon the highway. It is alleged that plaintiff Rodgers was insured by the Permanent Insurance Company; that he had been paid his damages, except $50 deductible, according to the terms of the policy of insurance; and that the insurance company became subrogated to the rights of the insured. The insurance company joined as party plaintiff. Plaintiffs prayed for damages in the amount of $280.95.

The defendant filed an answer and cross-petition. The first defense was a general denial, and the second defense alleged that the collision was caused by the negligence of the plaintiff Rodgers. In her cross-petition the defendant claimed damages against the plaintiff in the amount of $500 by reason of the loss of the horse, alleging acts of negligence on the part of plaintiff Rodgers. Summons on the cross-petition was served on the insurance company, but no summons was ever served on the plaintiff Rodgers, the summons being returned “not found.” A motion to quash the service of summons on the insurance company was sustained on the ground that it was not properly endorsed as to the amount claimed. No further service was attempted to be made on the insurance company.

The matter came on for trial before a jury. Before the jury was impaneled the court considered the motion filed by the plaintiffs to dismiss the defendant’s cross-petition for want of service and for the reason that the two-year statute of limitations barred any claim of the defendant. The motion was sustained and exceptions taken. Replies in the nature of general denials were filed by plaintiffs after the two-year statute had run.

After calling the defendant for cross-examination, the plaintiff Rodgers was called to testify. • After testifying relative to the manner in which the collision occurred and with respect to damages to his automobile, counsel for plaintiffs offered in evidence, after proper identification, the subrogation agreement signed by Rodgers in favor of the insurance company, which agreement the court admitted. Thereupon, the plaintiffs introduced an “automobile proof of loss” with “insured’s release,” signed by Rodgers, together with the itemized statement of the repairs to the automobile. Rodgers testified that the company had paid him all the damages to the automobile except $50, which was deductible. At this point the record shows the following:

“Court: Where is the insurance company and the policy?
“Mr. Aultman: If you examine our answer, we just admitted that the insurance company was a corporation.
“Court: Before you can recover, you have got to have the insurance company here and the policy and have some evidence on it. We can’t just suppose.
“Mr. Aultman: He can testify it was covered by insurance.
“Court: You have got to prove it. You have got to have the insurance company here. They are the real party plaintiff in this case. Unless you produce the policy, I am going to take the case from the jury.
“Mr. Aultman: That’s all I’ve got is the subrogation.
“Court: If that’s all you have got, that’s the end of it. Ladies and gentlemen of the jury: This suit was instituted by the Permanent Insurance Company and the plaintiff who is on the stand. He has testified that he has been paid except for fifty dollars. The Permanent Insurance Company hasn’t appeared. We haven’t got the policy. There’s nothing to show so far as the real evidence is concerned that there was a policy ever issued. Therefore, I am going to instruct the jury to return a verdict for the defendant. I will have the clerk bring in the verdict.”

Plaintiffs, appellants herein, assign as errors: Error in directing verdict for defendant (a) for failure to introduce contract of insurance, (b) in ruling that the insurance company was the real party in interest, and (c) for failure of the insurance company to appear; and error in denying the plaintiff Rodgers the right to pursue his cause of action as the real party in interest.

While there are certain well-recognized exceptions (157 A. L. R., 1242), the general rule is: Where an action is brought by the insured against the wrongdoer to recover the entire loss, and where the insurance company paid the insured only a portion of the loss and the insurance company joins as party plaintiff to protect its right of subrogation, the real party in interest in such action is the insured. Cox v. Cincinnati Traction Co., 35 C. D., 824, 32 C. C. (N. S.), 487 (motion to certify overruled by the Supreme Court, November 28, 1922); Croan v. Banner Ohio Transfer Co., 45 Ohio Law Abs., 52, 65 N. E. (2d), 910; Northwestern Ohio Natural Gas Co. v. First Congregational Church of Toledo, 126 Ohio St., 140, 148, 184 N. E., 512.

In the Croan case, the first paragraph of the headnotes is as follows:

“Where the amount of damages in an automobile collision case exceeds the amount due on an existing policy of insurance, the party to bring the action is the owner of the automobile who is permitted to recover the full amount of his damages; the insurer who has paid a part of the damages is a proper but not a necessary party to the action.”

See, also, Barnhill v. Brown, 58 Ohio App., 188, 16 N. E. (2d), 478; Hoosier Condensed Milk Co. v. Doner, 96 Ohio App., 84, 121 N. E. (2d), 100.

In our opinion, the real party in interest was Rodgers, the insured. He had a right to pursue his cause of action independently of any rights of subrogation accruing in favor of the insurance company. The insurance company, being subrogated only to a part of the recovery, was not the real party in interest.

The insurance company did not fail to make appearance. It was a party to the suit, and appeared by counsel. The failure of the insurance company to appear, if true, could not deprive Rodgers of his right to proceed on his cause of action. 2 Ohio Jurisprudence (2d), 496, 501, Sections 1 and 4.

Was the failure of plaintiffs to introduce the contract of insurance fatal to their case? We do not think so. In Schultz v. Meyerholtz, 91 Ohio App., 566, 109 N. E. (2d), 35, the third paragraph of the syllabus is as follows:

“In a case brought by an insurer and insured against a defendant for damages suffered by the insured arising from negligence of the defendant, the defendant is not prejudiced by the failure of the insurer to prove a subrogation agreement, and a recovery may be had in the absence of proof of such agreement. (Northwestern Ohio Natural Gas Co. v. Congregational Church of Toledo, 126 Ohio St., 140.) ”

The court in the Schultz case relied on the case of Northwestern Ohio Natural Gas Co. v. First Congregational Church of Toledo, supra, where the factual situation was similar and the same legal proposition was urged as in the instant case. In that case the court gives the rationale for the controlling principle of law, and we quote at length from the court’s opinion, beginning on page 144, as follows:

‘ ‘ The first question for determination relates to the matter of whether the judgment rendered in favor of the church and the insurance companies was proper.

“The insurance companies joined with the church as parties plaintiff in the case, claiming to have carried certain fire insurance policies on the church property, and asserting the payment of $124,948.71 on the loss sustained by the church.

“The insurance policies were not introduced in evidence. The only evidence given by a witness of payment consisted in the statement by a Mr. Charles A. Langdon that the insurance companies had paid a large amount to the church. No exact figure was specified. Instead, the following stipulation was made by and between counsel for the church and for the insurance companies: this court in the case of the Lake Erie & Western Rd. Co. v. Falk and Phoenix Ins. Co., 62 Ohio St., 297, 56 N. E., 1020. The fourth paragraph of the syllabus held:

“ ‘It is stipulated between the plaintiff, First Congregational Church, and the plaintiff, Insurance Companies in this case, that on February 5th, 1927, the plaintiff Insurance Companies carried insurance policies on the First Congregational Church buildings, and personal property therein in the amount and coverage as set forth in the petition, and that after the explosion and fire referred to in the amended petition, and before the commencement of this action, said insurance companies made payments to the First Congregational Church in the amount and on account of the damage by fire to the said First Congregational Church buildings, and personal property therein set forth in the amended petition. ’
“The gas company now contends that since it did not admit the truth of the allegations of the petition in respect to insurance coverage and payments by the insurance companies, and since it did not join in the foregoing stipulation, it was necessary that strict proof be offered as against it to establish the truth of these allegations.
“Now the purpose and effect of joining the insurance companies in a proceeding of this nature has been clearly stated by
“ ‘In an action brought by the owner against the railroad company to enforce such liability an insurer, having before the termination of the action, made payment to the owner on account of such loss, should intervene for the purpose of being subrogated to the rights of the owner to the extent of such payment, and the amount recovered from the railroad company should be adjudged to the owner and the insurer according to their respective interests. ’
“In the course of the opinion, on pages 306 and 307, it is said:

“ ‘It is true that the insurance company did not allege either that Falk had assigned the policy to it, or that by the terms of the policy it had reserved the right, upon payment, to be subrogated to the right of action of the insured against the company. Neither averment is required by reason or authority. The right of subrogation arises out of the relation of the parties to the subject of the action. Liverpool & Great Western Steam Co. v. Phenix Insurance Co., 129 U. S., 397 [9 S. Ct., 469, 32 L. Ed., 788].

“ ‘Notwithstanding the prayer of the railroad company that the insurance company should be brought into the action, it is now contended that it should not have been permitted to intervene and to assert its right of subrogation in the action brought by the owner against the railroad company. But the subject of the action was the loss sustained in consequence of the destruction of the property. The object of the suit was to recover the value of the property from the party ultimately liable, and to apportion the proceeds of the judgment recovered between the injured parties according to their interests in the amount recovered. The recovery sought was for a single wrongful act and the railroad company could have objected with more force if it had been subjected to two actions by those interested in the recovery. This mode of asserting the rights of parties in the subject of a single cause of action, all being brought into the same suit and each asserting his own interest, is in conformity with the requirements of modern procedure. Swarthout et al. v. Chicago & Northwestern Ry. Co., 49 Wis., 625 [6 N. W., 314]; [Peoria Marine & Fire] Insurance Co. v. Frost, 37 Ill., 333.’

“Discussing the same proposition, this court also said, in Clark, Exr., v. McClain Fire Brick Co., 100 Ohio St., 110, at page 118, 125 N. E., 877: ‘While in the above case the insurance company was nominally a defendant, yet it was to all intents and purposes a co-plaintiff, and the verdict was for the full value of the property, upon which verdict the court rendered judgment and apportioned the same between the owner and the insurance company. ’

“Also, on pages 119 and 120 of the opinion, it is said: ‘If the plaintiffs in this action are able to maintain the allegations of their amended petition by the evidence, they are entitled to a verdict and judgment for the full amount of the injury caused to this property by the wrongful acts of the defendant, and the court will apportion this judgment as was done in the case of [Lake Erie & Western] Railroad Co. v. Falk et al., supra, by awarding to the executor such part thereof as may be necessary to pay the debts of the estate, and the residue to the owners. School Districts v. Edwards et at., 46 Wis., 150 [49 N. W., 968], and Seymour et al. v. Carpenter et al., 51 Wis., 413 [8 N. W., 251].’

“The right of recovery in this case as to all parties plaintiff depended upon the establishment of the claims of negligence. In this connection the rights of the insurance companies were in no wise superior to the rights of the church. Primarily, the purpose of their joinder in the case was to assert as against the church a right to a portion of any recovery had in favor of the church against the gas company.

“The stipulation offered had nothing to do with the maintenance of the charges of negligence. Direct testimony in support of these allegations, in the form of the insurance policies themselves, and evidences of payment thereunder, would have been equally inappropriate for such purpose. The object of the stipulation was to supply the court with information to enable it to adjust the rights of the church and the insurance companies in any recovery had against the gas company. With the matter of the division of any recovery had against it, the gas company had no concern; and it is well settled that the bare fact of payment by the insurer on a loss sustained cannot and does not affect the assertion of a claim against a wrongdoer who has destroyed or injured property covered by insurance. Mobile & Montgomery Ry. Co. v. Jurey, 111 U. S., 584, 4 S. Ct., 566, 28 L. Ed., 527; Cushman & Rankin Co. v. Boston & Maine Rd. Co., 82 Vt., 390, 73 A., 1073, 18 Ann. Cas., 708; Long v. Kansas City, Memphis & Birmingham Rd. Co., 170 Ala., 635, 54 So., 62; Farmers Mercantile Co. v. Seaboard Air Line Ry., 102 S. C., 348, 86 S. E., 678.

“While technically by the general denial in its answer the gas company controverted all allegations in the petition, including the ones pertaining to insurance, such denials were immaterial because in fact it had no interest in the matter of insurance.
‘ ‘ A different result might obtain in a case where a suit was being prosecuted by an insurer without any participation by the insured. The procedure adopted in the instant case, however, serves to fully protect the gas company, and it is difficult to see how it would be prejudiced thereby.”

In the application of the principle of law laid down in that case to the pleadings and the evidentiary situation developed in the instant case, we conclude that the defendant was not and could not be prejudiced by the failure to introduce the contract of insurance. The court committed reversible error in directing a verdict for the defendant and entering judgment on the verdict.

Defendant, appellee herein, filed an assignment of error as follows: The trial court erred as a matter of law in dismissing defendant’s cross-petition on the ground that service of summons had not been made on the plaintiff Rodgers, and that defendant’s cause of action was barred by the statute of limitations. Plaintiffs, appellants herein, contend that the appellee was required to file a cross-appeal, if she desired a ruling of this court on this question. A cross-appeal was not required. The right of the appellee to file an assignment of error is controlled by Section 2505.22, Revised Code (formerly Section 12223-21o, General Code), which provides as follows:

“Assignments of error may be filed on behalf of an appellee which shall he passed upon by a reviewing court before a judgment or order is reversed in whole or in part. The time within which assignments of error on behalf of an appellee may be filed shall be fixed by rule of court.”

The enactment of Section 12223-21a, General Code, became effective September 21, 1945. Cases arising prior to the enactment of this section (State v. Green, 55 Ohio App., 239, 9 N. E. [2d], 625; Jones v. Icenhower, 44 Ohio Law Abs., 520, 63 N. E. [2d], 454) have no application. The case of Adkins v. Addison (1951), 63 Ohio Law Abs., 443, 99 N. E. (2d), 326 which held that errors urged by an appellee could not be considered in the absence of a cross-appeal, was correctly decided. The court points out that it was affirming the judgment. Consequently, this section had no application. The reviewing court is required to pass on assignments of error filed by the appellee only when the judgment is reversed in whole or in part. This court, reversing the judgment of the trial court, is required to pass on appellee’s assignment of error. Under Section 2505.22, Revised Code, such assignment of error must be filed within the time fixed by rule of court. The time for filing is fixed by Rule VII with which appellee has complied.

Appellee contends that when a summons is quashed for lack of proper endorsement as to the amount claimed, the cause of action is commenced when a new summons is issued, citing Section 2305.17, Revised Code, and Crabbe, Supt., v. Jones, 45 Ohio Law Abs., 443. In the case at bar no new summons was issued on which service was made as required by Section 2305.17, Revised Code. An alias summons was issued on Rodgers, properly endorsed, within two years after the cause of action accrued, but service was not completed. Had service been completed, even after the two-year statutory period had expired, the defendant, nevertheless, would have been entitled to assert her claim set out in her counterclaim. In National Retailers Mutual Ins. Co. v. Gross, 142 Ohio St., 132, 50 N. E. (2d), 258, the second paragraph of the syllabus is as follows:

“If a counterclaim is not barred by a statute of limitation at the commencement of the action in which it is pleaded, it does not become so during the pendency of that action.”

In that case there was a strong dissenting opinion by Judge Hart, but we are bound to follow and apply the principle of law announced by the majority. In the instant case the counterclaim was not barred at the commencement of the action and was not barred after the expiration of the two-year period had service of summons been made. Upon retrial of this case the defendant may present her counterclaim against Rodgers if summons is served. Under the state of the record, the court did not commit error in dismissing the counterclaim.

There being error in the record prejudicial to the rights of the plaintiffs, the judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed and cause remanded.

Miller, P. J., and Hornbeck, J., concur.


author: Younger, J.

text:
    The State, ex rel. The Ohio Oil Co., v. City of Defiance et al.
    (No. 184
    Decided April 27, 1955.)

      Mr. John W. Winn, for relator.

      Mr. John E. Zimmerman, for respondents.
   Younger, J.

This is an action in mandamus, originating in this court, to compel the safety-service director of the defendant city to issue a building permit to plaintiff for the erection of a super-service station on two lots on which plaintiff holds an option from the defendants Sutphen. The permit was denied solely on the ground that the land involved was classified as residential under Ordinance No. 1035, enacted March 19, 1935, as an emergency measure by the city council, which so-called zoning ordinance is attacked as being unconstitutional.

This ordinance, which is very short, consists of about two typewritten pages, and incorporates a map of the city on which the different properties used for business purposes as of the date of the ordinance are enclosed within red lines and are classified as business, and the remainder of the city is classified as residential.

It provides that there shall be no business located or building erected, of any nature, excepting residential, in the designated residential area or zone except upon the approval of the planning commission and that there shall be no business building erected or any major alteration made to any building already erected, in the business area or zone, without first obtaining the approval of the planning commission. It provides further that the ordinance shall be enforced by the safety-service director under the rules and regulations of the Board of Zoning Appeals, which is the City Planning Commission.

Zoning legislation is now held to be a valid exercise of the police power held by municipalities and, if in proper form and substance, is constitutional.

It is stated in 42 Ohio Jurisprudence, 807:

“* * * it is now well settled in most jurisdictions, as well as in Ohio, that an ordinance enacted by a municipality, dividing the whole territory of the municipality into districts according to a comprehensive plan which, in the interest of the public health, public safety, and public morals, regulates the uses and the location of buildings and other structures and of premises to be used for trade, industry, residence, or other specific uses, the height, bulk, or location of buildings and other structures thereafter to be erected or altered, including the percentage of lot occupancy, set-back building lines, and the area of yards, courts, and other spaces, and for such purpose divides the city into zones or districts of such number, shape and area as are suited to carry out such purposes, and provides a method of administration therefor, and prescribes penalties for the violation of such provisions, is a valid and constitutional enactment.”

This ordinance does not define the terms “residential” or “business.” It prohibits the use for gasoline stations, super-service stations, auto sales or auto service stations in one particular section and is completely silent on all other pertinent subjects. It does not attempt to differentiate between one-family and multiple-family dwellings or between retail, commercial or manufacturing businesses. It makes no provision whatsoever for parks, churches, schools, libraries, hospitals or hotels. It makes no distinction between business and light or heavy industrial uses.

It neither sets forth a plan nor establishes any standards or regulations. It merely “freezes” the use of all property in the city, however widely scattered, to the use it was found to be in at the date of the ordinance and leaves it in the sole, absolute, uncontrolled and arbitrary discretion of an appointed commission to transfer any property from residential to business, or vice-versa; and without specifically providing so, permits the commission to control the size, shape and height of any new or repaired building, and to determine in its own discretion, the set-back building line, required lot area, percentage of lot coverage, uses permitted, and other important details.

The evidence shows that a large number of applications for transfer and building permits have been approved, and a large number denied, by the safety-service director and the City Planning Commission. However, the record also shows that the Board of Zoning Appeals has never held a meeting.

This court, in a recent case in Hardin County, High School Bd. of Edn. v. Bd. of Edn. of Roundhead Local School Dist., 96 Ohio App., 429, 122 N. E. (2d), 192, held:

“Generally, a law which confers discretion on an administrative officer or board without establishing standards for the guidance of the conferee is a delegation of legislative power and unconstitutional.”

The Court of Appeals of the First Appellate District, in the very recent case of Vandervort v. Sisters of Mercy of Cincinnati, 97 Ohio App., 153, 117 N. E. (2d), 51, stated:

“We, therefore, conclude that if the use of this strip for parking purposes was a matter of policy, the village council could not delegate to the planning commission the determination of that question. If it was not a matter of policy, but was only its application to the subject matter of the policy predetermined by council, then the power could be delegated to the planning commissioner or any other administrative officer or body.”

A pertinent observation on the question here under consideration was made by the court in the ease of Schloss Poster Advertising Co., Inc., v. City of Rock Hill, 190 S. C., 92, 2 S. E. (2d), 392, as quoted in State, ex rel. Central Outdoor Advertising Co., v. Leonhard, 68 Ohio Law Abs., 542, 544, 124 N. E. (2d), 187, as follows:

‘ ‘ ‘ The danger is that it makes possible arbitrary discrimination and abuses in its execution, depending upon no conditions or qualifications whatever, other than the unregulated arbitrary will of the city authorities as the touchstone by which its validity is to be tested. * * * Ordinances which thus invest a city council with discretion which is purely arbitrary, and which may be exercised in the interest of the favored few, are unreasonable and invalid. The ordinance should have established a rule by which its impartial enforcement could be secured.’ ”

In our opinion it would indeed be difficult to write an ordinance which would grant wider latitude to the service-safety director or the City Planning Commission to exercise their own uncontrolled discretion or one which would confer greater power to establish the policy of the municipality as to zoning restrictions and the issuance of building permits.

We therefore hold that Ordinance No. 1035 of the City of Defiance is a delegation of legislative power to an administrative officer or board and is unconstitutional and void. The action, therefore, of the safety-service director and the City Planning Commission, in refusing to issue to plaintiff the building permit applied for because of such ordinance, is contrary to law and null and void.

Ordinance No. 583 of the City of Defiance, passed December 29, 1917, introduced in evidence as relator’s exhibit “R,” was in effect at the time Ordinance No. 1035 was adopted, and is still in effect. It provides for the issuance of building permits by the director of public safety upon payment of the required fee and furnishing a bond if required by said officer.

A writ of mandamus will therefore issue, directing that the defendant Carl A. Sixeas as the Director of Public Safety of the City of Defiance, issue to the relator, The Ohio Oil Company, a building permit in accordance with and under the provisions of said Ordinance No. 583 of the City of Defiance.

Writ allowed.

Quatman, P. J., and Middleton, J., concur.


author: Hurd, P. J.

text:
    In re Cremati.
    (No. 23112
    Decided February 19, 1954.)

      Mr. Louis Fernberg, for petitioner.

      Mr. Frank T. Cullitan, county prosecutor, for respondent.
   Hurd, P. J.

The petitioner invokes this proceeding for the purpose of being admitted to reasonable bail. He is now confined in the county jail in default of bail fixed by the Court of Common Pleas.

The petitioner represents that he is being subjected to “cruel and inhuman punishment by reason of the fact that unreasonable and exhorbitant bail was fixed by the Common Pleas Court in violation of his constitutional right to be admitted to reasonable bail.”

By way of answer, Joseph Sweeney, Sheriff of Cuyahoga County, sets forth the following:

“That Joe Cremati has been committed to the county jail by the Court of Common Pleas of Cuyahoga County, Ohio, following his arraignment under cause No. 63921 of said Court of Common Pleas, Criminal Division, upon certain indictments returned against the said Joe Cremati by the Grand Jury of Cuyahoga County, Ohio, copies of which are marked Exhibits ‘ A’ ‘B’ and ‘C’ and are annexed hereto and made a part hereof.
“Upon arraignment of the said Joe Cremati on the charges set forth in the indictments on February 5, 1954, the Court of Common Pleas fixed the amount of bail at $50,000 and the said Joe Cremati has to date failed to furnish said bond. The sheriff further states that under cause No. 63922 of the Court of Common Pleas of Cuyahoga County, Ohio, Criminal Division, the said Joe Cremati and one Bernabe Lopez were charged in the indictments of the violation of the provisions of Section 2905.14 and Section 2905.27 of the Revised Code of Ohio and that copies of said indictments are annexed hereto, marked Exhibits ‘D’ ‘E’ ‘F’ ‘G’ ‘H’ and made a part hereof. The Court of Common Pleas upon arraignment of the said Joe Cremati and Bernabe Lopez on Feb. 5, 1954, fixed the amount of bond in said cause No. 63922 in the sum of $3,500.
“The sheriff further states that the said Joe Cremati has conferred frequently with counsel while in the county jail and except for the statements herein expressly made, denies the allegations contained in the petition.”

■ The indictments referred to in the foregoing answer and annexed thereto are eight in number, but contain separate counts, six of which charge the petitioner with the commission of felonies, and four of which charge him with the commission of certain misdemeanors.

Without enumerating all the separate counts in the indictments in detail, suffice it to say that the defendant is charged with violation of certain sections of the Revised Code which, with maximum penalties, are as follows:

Section 2905.01 (rape), maximum penalty, 20 years;

Section 2905.02 (rape of female under 12 years), penalty, life imprisonment;

Section 2905.03 (carnal knowledge of female under 16 years), maximum penalty, 20 years;

Section 2903.01 (felonious assault), maximum penalty, 10 years;

Section 2905.14 (keeping house of ill-fame or harboring child therein), maximum penalty, fine and six months;

Section 2905.27 (keeping a place for prostitution), maximum penalty, one year.

From the foregoing partial enumeration of charges and penalties there can be no doubt of the serious nature of the offenses and the severity of the penalties.

We are not here called upon to discuss the guilt or innocence of the accused. Such issues will be determined upon trial of the indictments. The single question presented is whether the total bail in the sum of $53,500 fixed by the trial court is excessive where the charges involve commission of six felonies and four misdemeanors.

Section 9, Article I of the Constitution of Ohio, and the Eighth Amendment to the Constitution of the United States provide that “excessive bail shall not be required.”

In the case of In re Lonardo, 86 Ohio App., 289, 89 N. E. (2d), 502, this court in referring to these constitutional provisions said, at page 291:

“From these constitutional provisions there is derived the general principle governing the allowance of bail that the amount thereof shall be reasonable. The primary purpose of bail is to secure the appearance of the accused at the trial, but in determining the amount of bail, the following factors, among others, may be considered: The nature of the offense, the penalty upon conviction thereof, the character and reputation of the accused, and the probability of his appearance for trial.”

In that case each of the petitioners was charged with being a suspicious person in violation of the ordinance of the city of Cleveland, the maximum penalty on conviction in such case being a fine of $50 and imprisonment for thirty days. The trial court had fixed bail at the sum of $75,000, which was held to be excessive by this court, but bail was required from each in the sum of $15,000. The great difference in the crimes charged in that case and the crimes charged in the instant case is so obvious that a discussion thereof is unnecessary.

In applying the principles set forth in the case of In re Lonardo, supra, this court must take into consideration the fact that the six felonies here charged against the petitioner are most serious offenses, one of which carries a sentence of life imprisonment. It was stated in open court and not denied that concomitant with the indictments brought against the petitioner, seventeen police officers of the city of Cleveland were suspended on charges directly relating to the keeping of a place for prostitution on Prospect Avenue in the city of Cleveland.

In consideration of these circumstances, the serious nature of the offenses, and the penalties provided therefor, this court is of the opinion that bail fixed in the amount of $10,000 for each of the felonies here charged would not be excessive. It is our conclusion, therefore, that under all the circumstances brought out in the hearing on the petition for this writ the amount of bail fixed by the trial court in the total sum of $53,500 is not a violation of the constitutional rights of the petitioner.

In the hearing on the petition there was advanced as a further reason of petitioner for reduction of bail, that he is presently suffering from diabetes and that it is necessary to have the administration of insulin daily. However, the petitioner testified that the nurse at the county jail, under the direction of the county physician, has been administering insulin to the petitioner daily as needed.

It is the conclusion of this court, for the reasons stated, that the relief sought by petitioner should be denied.

Petitioner remanded to custody.

Kovachy and Skeel, JJ., concur.