author: Cushing, J.

text:
    NUNC PRO TUNC ENTRY CAN NOT SUPPLY PLACE OF ONE NEVER MADE OR ORDERED MADE.
    Court of Appeals for Hamilton County.
    Catherine Reynolds v. George J. Reynolds.
    Decided, November 3, 1919.

      Service of notice of Hearing of Motion and Return Thereon — When Authority of Attorney to Bind Client Ends — necessity of Action of a Court being Indicated by the Record.

    1. When notice of the hearing of a motion is required the form, substance, service and return of service on such notice are prescribed in Sections 11372 and 11374 of the General Code. Compliance with the provisions of these sections is necessary to give the court jurisdiction to bind the parties to the action.
    2. The authority of an attorney of record employed in a divorce case to act for, receive service of notice and to bind his client, ends on the entering of judgment. That part of the judgment awarding the custody of minor children and fixing periodical payments for their support until the further order of court does not change the rule as to the ending of the attorney’s employment.
    3. When a court must act itself and act directly, that act must be evidenced by the record. After the term, a court may not, by an order entered nunc pro tunc, enter of record an order that it might have made or intended to make, but which in fact was not made, attempted or directed to be made.
    W. F. Fox, for plaintiff in error.

      Frank & Franks, contra.
   Cushing, J.

This cause is heard on error. The facts are:

.October 21, 1916, Catherine Reynolds filed an action for divorce against George J. Reynolds. October 30, 1916, Reynolds filed an answer and cross petition, had summons served and asked for divorce from Catherine Reynolds. April 23, 1917, a divorce was' granted George J. Reynolds. The custody of the minor children was given to Mrs, Reynolds, He was ordered, to pay $10 a week for their support. November 20, 1918, a motion was made to modify that order. December 2, 1918, the following entry was made:

“This cause coming on the 30th day of November, 1918, to be heard on the motion filed herein by defendant on the 20th day of November, 1918, to modify and discontinue the payment of money for the maintenance of the minor children of the parties hereto, for the reason that said children are now self-supporting and are. not dependent upon defendant for their maintenance, and the evidence, and plaintiff’s attorney of record having been, notified a reasonable time before the hearing, to-wit: on the. 20th day of November, 1918, and in appearing in open court and in disclaiming authority, the court, on consideration thereof, does hereby grant said motion, and hereby orders, adjudges and decrees that payment of money for the maintenance of the minor children of the parties hereto be discontinued immediately, for the reason that said children are self-supporting and are not dependent upon defendant for their maintenance.”

December 31, 1918, the following order was made:

‘ ‘ This cause coming on to be heard on the motion filed herein by defendant on the 21st day of November, 1917, for an order to modify the original decree entered herein on the 23rd day of April, 1917, in so far as the maintenance of the minor children of defendant were concerned, and to reduce said amount from Ten ($10.00') Dollars per week to Three ($3.00) Dollars per week, and the evidence, the parties herein having been duly and legally served with notice of the filing of said motion and the date of the hearing thereof, and appearing in open court with counsel, the court, on consideration thereof, hereby modifies its original order of Ten ($10.00) Dollars per week, and hereby orders defendant to pay into this court for the maintenance of his said minor children the sum of Seven and 50/100 ($7.50) Dollars per week until further order of the court, and hereby makes this entry nunc pro tunc as of January 25th, 19.18, the date of the hearing of said motion and of the judgment and order of the court. To all of which plaintiff excepts.”

Two questions are presented by the record. First. The kind and service of notice on Catherine Reynolds as to the hearing of December 2, 1918. The entry recites that “plaintiff’s' attorney, of record, having been notified a reasonable time before the hearing, to-wit on the 20th day of November, 1918, etc.” The record does not disclose the form of notice or by whom served. The transcript of the docket and journal entries recites that the attorney disclaimed authority to represent Catherine Reynolds. Section 11372 provides that such notices must be in writing, contain the names of the'parties, the place where and the day on which it will be heard and the nature and terms of the order applied for. The notice required by the statute was not served.

The record shows and it is admitted in argument that there was no service on the plaintiff other than the notice given to William F. Fox, who had been her attorney in the original action, in which the judgment of April 23, 1917, was rendered. There is no presumption that the lawyer who had represented her up to the time of the judgment was authorized to receive summons for her at the time of the motion to modify the original decree and the subsequent notice. The authority of an attorney ordinarily ends with the rendition of a final judgment or decree. See 2-Mechera. on Agency (2 ed.), Sec. 2315; Weeks on Attorneys (2 ed.), Sec. 218; 3 A. & E. Encyl. of Law (2 ed.), 329; 4 Cye., 952.

In the ease at bar, after the judgment was rendered, the de¿ fendant was to pay the money into court and plaintiff’s attorney had no further duties to perform. Even apart from his disclaimer of authority to represent plaintiff, defendant was chargeable with knowledge that he was without authority to receive summons for her. Kalmanowitz v. Kalmanowitz, 108 App. Div. N. Y., 296; Conklin v. Conklin, 113 App. Div. N. Y., 743.

As the notice to the opposite party to vácate a judgment at a subsequent term is .jurisdictional, an order without notice to the other party is void.- The attorney for plaintiff could not bind her by an unauthorized appearance at a term subsequent to the rendition, of final judgment. Owen v. Smith, 155 Ia., 463, 136 N. W., 114; Scott v. Scott, 174 Ia., 740, 156 N. W., 834; and Berthold v. Fox, 21 Minn., 51. See also Nye v. Stillwell, 12 C. C., 40; 5 Circ. Dec., 35.

The power of an attorney to represent a party is fully executed by the accomplishment of its purpose when a judgment is obtained. The authority given by the appointment ends when nothing remains to be done in pursuance of it. The notice therefore served upon Mr. Fox did not constitute notice to plaintiff. The order based thereon was void.

January 25, 1918, the court heard a motion to modify its former order allowing $10.00 per week for the support of the minor children. On that day the court mailed counsel a memorandum that the amount would be $7.50 per week. The clerk was not directed under Section 1641, General Code, to enter the order on the journal, nor was the court’s memorandum filed with the clerk. There was no record made, directed or instructed to be made at that time, nor during that term of court.

December 31, 1918, after three terms of court had expired, an order nunc pro tunc, was made as of January 25, 1918. The question presented is: May a court enter an order nunc pro tunc to take the place of one it might have intended to make, but which was not made nor ordered?

This court in the case of Shober v. Tbe State quoted with approval Bullitt County v. Washer., 130 U. S., 132, 149, as follows:

“The well settled maxim that a court of record can act only through its orders made of record, when applied to judicial proceedings, means that where the court must act itself, and act directly, that action must always ‘be evidenced by the record.”

The rule as to orders, nunc pro tunc is well stated in Gardner v. People, 100 Ill. App., 254, 257:

“Courts can, by nunc pro tunc orders, supply ommissions in the record of what was actually done in the cause at a former time, and by mistake or neglect of the clerk was not entered in the clerk’s minutes or the court’s records; but when the court has failed to make an order which it could have made and in fact intended to malte it can not subsequently make the sáme nunc pro tunc so as to make it binding on the parties to the suit from the date it was intended to have been so entered.” See also Cleveland Leader Printing Co. v. Green, 52 O. S., 487.

The written memorandum of the court was no part of the record in the case. State, ex rel, v. Hoffman, 95 O. S., 149.

For the errors stated .the cause will be reversed.

Shohl, P. J., and Hamilton, J., concur.


source: Caselaw Access Project

author: Kunkle, J.

license: Public Domain

text:
    HABEAS CORPUS FOR RELEASE OF ONE CONVICTED OF HOMICIDE.
    Court of Appeals for Franklin County,
    Preston E. Thomas, Warden, etc., v. William Harrison Cowdrey.
    Decided, March 8, 1920.

      Habeas Corpus — Judgment Discharging a Prisoner Reviewable — Writ Will be Granted only Where Prisoner is Held under a Void Judgment — Sentence for Murder in the Second Degree by Administration of Poison not Open to Collateral Attach.

    1. A judgment of the court of common pleas in a habeas corpus case discharging the petitioner, is reviewable by the court of appeals in a proceeding in error.
    2. A writ of habeas corpus will not be allowed in a case where the petitioner is held under a judgment which is merely voidable. Habeas corpus is an appropriate remedy only in cases where the judgment is void.
    3. Where an indictment charges murder in the first degree by the administration of poison and a verdict of murder in the second degree is returned -by the jury and sentence is imposed by the court thereon, such verdict and sentence are not void and can not be collaterally attacked in a habeas corpus proceeding.

      John G. Price, Attorney General; Isaac C. Baker, Prosecuting Attorney of Butler county; and Ben A. Bickley, Special counsel, for plaintiff in error.

      James C. Nicholson, contra.
   Kunkle, J.

This is an action in habeas corpus. Defendant in error, William Harrison Cowdrey, seeks to obtain his release from the Ohio Penitentiary. The habeas corpus proceeding was brought in this county. Defendant in error, Cowdrey, was indicted in Butler County, Ohio, and charged with murder in the first degree. The indictment was in three counts and charged murder in the first degree by the administration of poison.

Defendant in error was convicted of murder in the second degree under the third count of the indictment and was sentenced to life imprispnment in the Ohio Penitentiary.

The third count of the indictment charged that the defendant:

“Did unlawfully, purposely and of deliberate and premeditated malice with the intent one Lorel Wardlow unlawfully, purposely and of deliberate and premeditated malice and by means of poison to kill and murder did give and administer etc. * * * a large quantity of poison called arsenic, etc., which arsenic was put in water” etc., etc.

After being convicted by a jury in the Butler county court of common pleas defendant in error Cowdrey, filed a motion in such court asking for his discharge and also a motion for a new trial.

Both motions were overruled and as above stated defendant in error was sentenced to the Ohio Penitentiary for life.

It was admitted by counsel in the argument of this ease that the judgment of the lower court upon such motions was affirmed by the court of appeals of Butler county; that no bill of exceptions was filed in such court and that the Supreme Court refused a motion for leave to file a petition in error.

The court of common pleas of Franklin county sustained the petition in habeas corpus and ordered defendant in error discharged from the Ohio Penitentiary,

A petition in error has been filed in this court for the purpose of reviewing such judgment and the order discharging defendant in error from the Ohio Penitentiary has been suspended pending the hearing and determination of this proceeding in error.

A motion has 'been filed in this court to quash the proceedings in error upon the ground that this court has no jurisdiction .to review a judgment of the court of common pleas in a habeas corpus proceeding.

It has been held in the case of Henderson v. James, Warden, 52 O. S., 242, that a judgment of the court of Common Pleas in a habeas corpus proceeding is reviewable on error and we think such judgment is also clearly reviewable under Section 6, Article 4 of the Constitution as amended in 1912.

The motion to quash will, therefore, be overruled.

The next question for consideration relates to the jurisdiction of the common pleas court of Franklin county, Ohio, in the habeas corpus proceeding.

It is clearly settled in this state that the writ of habeas corpus can not be made a substitute for a proceeding in error.

In the case of Ex parte Stephen M. Shaw, 7 O. S., 81, the first paragraph of the syllabus is as follows:

“A habeas corpus can not be used as a summary process to review or revise errors or irregularities in the sentence of a court of competent juridiction. Imprisonment under a sentence can not be unlawful, unless the sentence is an absolute nullity. If clearly unauthorized and void, relief from imprisonment may 'be obtained by habeas corpus; if voidable, a writ of error is the appropriate remedy.” See also Ex parte Joseph Vanhagan, 25 O. S., 426.

In the case of In re George Winslow, 91 O. S., 328, the court says:

‘ ‘ If the court in sentencing him did not act under this statute, but sentenced him under another statute, which for the purpose of this case may be conceded to have been invalid, the sentence was erroneous and voidable but not void. The error was not a jurisdictional one and it can not be reviewed in a proceeding in habeas corpus.” See also 91 O. S., 315; 94 O. S., 110; 96 O. S., 519; 25 O. C. C. (N. S.), 388; 80 O. S., 402.

From a consideration of the authorities cited we are of opinion that where the complainant is detained under a sentence which has been imposed by a court that a writ of habeas corpus can not be allowed unless there is an absolute want of jurisdiction upon the part of the court imposing such sentence.

For errors or irregularities which may have occurred in the proceedings, in a court having jurisdiction, the law provides a remedy for the correction of such errors or irregularities by a proceeding in error and not by habeas corpus.

Where error is prosecuted from the judgment of the lower court the reviewing court may set aside the conviction in a proper case and remand the case for new trial or for a new sentence.

In a habeas corpus case if the writ is allowed the necessary result would be to discharge the accused.

The courts, particularly in our own state, have, therefore, strictly limited the jurisdiction in a habeas corpus case so as to prevent an improper application of the writ in cases where the accused should be retained foi a new trial or to be resentenced, instead of being discharged.

In the case at bar it is conceded that the court of common pleas of Butler county had jurisdiction of the person of the defendant in error and that there was a valid indictment against defendant in error of murder in the first degree.

This conferred upon the court of common pleas of Butler county jurisdiction of the subject matter involved in the indictment.

It is claimed by counsel for defendant in error that the indictment upon which Cowdrey was tried and convicted gave the Butler county court of common pleas no jurisdiction except to convict or acquit the defendant in error of murder hi the first degree and that the verdict of murder in the second degree and the judgment and sentence thereon, of the court of common pleas of Butler county, were not merely voidable but were absolutely void.

The indictment was based upon Section 12400 of the Code which provides as follows:

“Whoever, purposely and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate rape, arson, robbery or burglary, kills another is guilty of murder in the first degree,” etc.

Section 12403, G. C., provides that:

“Whoever, purposely and maliciously kills another, except in the manner described in the next three preceding sections, is guilty of murder in the second degree and shall be imprisoned in the penitentiary during life.”

Section 13692, among other things provides that:

“When the indictment charges an offense including different degrees, the jury may find the defendant not guilty of the degree charged and guilty of an inferior degree thereof. If the offense charged is murder, and the accused .is convicted by confession in open court, the court shall examine the witnesses, determine the degree of the crime, and pronounce sentence accordingly.” .

Section 13583 provides that:

“In an indictment for murder in the second degree or manslaughter, the manner in which, or the means by which the death was caused need not be set forth. It shall be sufficient in an indictment for murder in the second degree to charge that the defendant did purposely and maliciously, and for manslaughter that the defendant did unlawfully, kill the deceased. ’ ’

In the ease of Robbins v. State, 8 Ohio State Reports, page 131 in the last paragraph of the syllabus it is held that:

“The statute having required that, ‘in all trials for murder/ the jury shall, if they find the defendant guilty, ascertain from the evidence before them the degree of the homicide, it is error for the court to instruct the jury, on the trial of an indictment for murder in the first degree by means of poison, that, in this kind of a ease, murder is not of different degrees, and that, therefore, if they find the defendant guilty as he stands charged in the indictment, they must return a verdict for murder in the first degree.”

This decision was rendered by a divided court,' but it has never been overruled nor modified by any subsequent decision of our Supreme Court.

In some jurisdictions this decision has been criticised and disapproved and in others it has been followed.

Counsel for defendant in error claims that our statutes have been materially changed since the decision in the Robbins casé.

At the time of the decision of our Supreme Court in the Robbins case the statute providing for a conviction upon included offenses applied to trials in murder cases.

The statute was subsequently amended so as to apply to all cases of included offenses.

We do not think this amendment changed the effect of the law as to murder cases.

The Robbins case was approved in the case of Adams v. State, 29 O. S., 412, and it was there held that:

“Under Section 39 of the crimes act, it is within the lawful province of the jury, in all crimes for murder, to determine the grade of the crime.”

The case of Lindsey v. State, 69 O. S., 215, was a case wherein the defendant was indicted for murder in attempting to commit a robbery and it was held in the third paragraph of the syllabus that:

“An indictment, which charges, in proper form, an attempt to commit robbery, and then avers that the defendant, with others, in such attempt, did unlawfully and purposely, by means of a revolver loaded with gunpowder and a leaden bullet, shoot the deceased, with intent to unlawfully and purposely kill and murder him, and did, by means of the shooting, strike, penetrate, and wound him, with intent unlawfully and purposely to kill and murder him, thereby giving him a mortal wound from which he instantly died, and that by these means, they did unlawfully, purposely, and in an attempt to perpetrate a robbery, kill and murder the deceased, sufficiently charges murder in the second degree, although the word malice is not employed in the indictment in describing the act.”

In a collateral proceeding of habeas corpus, jurisdiction is determined from the scope of the indictment in the original case. We do not have the evidence taken in the trial in the Butler county case before us nor do we know from the record what occurred in the trial of that case. We do know, however, that a sufficient indictment was returned against the defendant in error in Butler county, Ohio, for murder in the first degree and that he was convicted and sentenced in Butler county, Ohio, for murder in the second degree.

Various cases have been cited which involve the charge of the trial court upon the evidence in cases involving murder by poison and also in eases involving murder in the perpetration of robbery.

We think the case at bar is distinguishable from cases where the trial court, hearing the evidence, is required to submit an appropriate charge upon the evidence which has been introduced.

We have not been referred to any case where a verdict of' murder in the second degree under an indictment similar to the one under consideration has been held to be a nullity.

The ease of Dresbach v. State, 38 O. S., 365, is relied upon by counsel for defendant in error. In this ease it is held that:

“On the trial of an indictment for murder in the first degree, charging the accused with purposely billing another by administering poison, the evidence tending to show no other grade of offense, it is error to charge the jury to the effect that if they find the accused guilty their duty will be fulfilled by convicting of murder in the first or second degree, or manslaughter. And where the verdict is returned for a lower grade of homicide than murder in the first degree, a new trial should be granted, where it appears from the evidence that a verdict of acquital might have been rendered had the jury been properly instructed.”

The Dresbach ease involved the irregularity of the trial.

There was a conviction of murder in the second degree in the Dresbach case and in the syllabus and also in the opinion of that case it is clearly held that the verdict of murder in the second degree was ground for a new trial:

In order to sustain the contention of counsel for defendant in error the court in the Dresbach case should have held that the verdict of murder in the second degree was a nullity and should have discharged the defendant. We think the fact that the court in the Dresbach case ordered a new trial is a sufficient answer to the claim of counsel for defendant in error that such verdict and sentence thereon were null and void.

The case of State v. Shafer, 96 O. S., 215, is a case which arose upon the evidence. The court held that where the death of the party struck by the automobile was instantaneous there was no element of assault and battery.

On page 228 of this decision, the Lindsey case above referred to, is mentioned but the same is not disapproved or even criticised insofar as different degrees of murder are concerned.

We have carefully examined the authorities cited in the very exhaustive briefs which have been filed by counsel but will not attempt to discuss or review such authorities in detail.

It should be noted, that error was prosecuted to the court of appeals of Butler county from the conviction and sentence of the common pleas court of Butler county.

The judgment of the court of common pleas was affirmed -by the court of appeals.

An application to file a petition in error seeking the reversal of the judgment of the court of appeals of Butler county was presented to the supreme court and such application was rejected.

The fact that the supreme court refused leave to file a petition in error from the judgment of affirmance of the original case is some indication of the views of the supreme court upon the validity of the sentence in question.

From a careful consideration of all the authorities cited by counsel we are of opinion that the verdict of murder in the second degree and the sentence thereon were not absolutely void, and therefore that a writ of habeas corpus should not be allowed.

The judgment of the court of common pleas of Franklin county will be reversed, and final judgment will be rendered in favor of plaintiff in error.

Allread and Ferneding, JJ., concurring.


author: Patterson, J.

text:
    WHEN A STATUTE MAY BE REGARDED AS REPEALED BY IMPLICATION.
    Court of Appeals for Stark County.
    Cott-Mohrman Co. v. Massillon Foundry & Machine Co. et al.

    Decided, October 27, 1919.

      Repeals — Acfs Must he Harmonized if that can he Done hy a Reasonable Construction■ — Mechanics Liens — Must he Filed Within Sixty Days.
    1. Repeals by implication are not favored, and in the absence of an express repeal, the courts will not consider former legislation as repealed by implication where the former and later acts may be harmonized by a reasonable construction so as to continue both in operation; but a subsequent act revising the whole subject-matter of the former act and evidently intended as a substitute for it although it contains no express words to that effect, operates as a repeal of the former act.
    2. The mechanic’s lien law, as found in 103 O. D., 369-379, and amended and supplemented in 106 O. L., 522-534, is the exclusive method by which a mechanic’s lien may be secured against a private individual, firm or corporation, and the same must be filed within sixty days, as provided therein.

      Floyd & Yutzey, for plaintiff in error.

      Pomerene, Ambler & Pomerene, and R. W. MeCaughey, for defendants in error.

       Motion to require the Court of Appeals to certify 'its record in this case overruled by the Supreme Court, December 22, 1919.

   Patterson, J.

Heard on error.

This canse comes into this court on error to the judgment and finding of the court of common pleas, and the sole question presented for consideration is whether the act of April 16, 1913 (103 O. L., 369), provides the only method whereby a mechanic ’s lien may be perfected as between private individuals, firms or corporations.

The plaintiff in error attempted to secure a lien on the property of the Massillon Foundry & Machine Company by virtue of Sec. 8324, G. C., et seq., the record disclosing the fact that the last item of labor performed or material furnished was July 13, 1917, and that the lien was filed with the county recorder October 20, 1917; that is to say, the lien was filed within four months but not within sixty days of the date of the last item.

The provisions relating to mechanics’ liens are found in Sec. 8308 to 8342, G. C., inclusive. On April 16, 1913 (103 O. L., 369-379), the General Assembly passed an act the title of which is as follows:

“■An act to create a lien in favor of contractors, sub-contractors, laborers and material men, and to repeal Secs. 8308, 8310, 8311, 8312, 8313, 8314, 8315, 8316, 8317, 8318, 8319, 8320, 8321, 8322, 8323, 8330, 8333, 8334, 8335, 8336, 8337, and 8338 of the General Code.”

The laws were further amended and supplemented May 27, 1915 (106 O. L., 522-534), in an act entitled:

“An act to amend Secs. 8312, 8313 and 8314 of the General Code; and to further supplement Section 8321 of the General Code by the enactment of an additional section to be known as Section 8321-1 (103 O. L., page 369, at pages 370; 372, 374'and 376), relative to the mechanic’s lien law.”

An examination of the above acts discloses that Sees. 8309, 8324, 8325, 8326, 8327, 8328, 8329, 8331, 8332, 8339,- 83.40,-.8341 and 8342 were not specifically repealed by either of -the above enactments. .

It is claimed on the part of the plaintiff in .error that there are now two distinct methods whereby -a lien can be secured against a private individual firm or corporation, viz., by the method in' force before the enactment of the above two amendments, and by the method prescribed in the above amendments. In this ease plaintiff in error pursued the former course, and claims thereby to have secured a lien on the property of the defendant in error.

An examination of the amendments and of the statutes that were unrepealed leads us to the conclusion that the General Assembly has attempted to provide two separate and distinct methods of taking liens, upon two separate and distinct subjects, the one for private contracts and the other for public contracts.

The rule as found on page 118 in Thorniley v. State, 81 Ohio St., 108 (90 N. E., 144), is well recognized:

“It is also true that repeals by implication are not favored, the meaning of which is, and it must be, only that a court will not, in the absence of an express repeal, consider former legislation as repealed by implication when the former and later act may be harmonized by reasonable construction so as to continue both in operation. It is consistent with the elementary rule, always of the written law, that the present will of the Legislature is found in its latest expression.”

"While repeals by implication are not favored, there is still another rule of construction, which will be found quoted with approval in the Lorain Plank Road Co. v. Cotton, 12 Ohio St., 263, at page 272:

“A subsequent statute revising the whole subject matter of the former act, and evidently intended as a substitute for it, although it contains no express words to that effect, operates to repeal the former.”

The holding of the court in Shelby Co. Comrs. v. Frego & Binkly, 26 Ohio St., 488, is to the same effect.

The title of the act of April 16, 1913, is “To create a lien in favor of contractors,” etc., not to provide them with an additional remedy. An examination of the entire act shows that it furnishes a complete remedy, and it is evident that the General Assembly intended this act as a substitute for all existing laws relative to mechanics’ liens as between private individuals, firms or corporations. It is the present will of the Legislature as found in its latest expression.

It is contended that Sec. 8324 is not specifically repealed, and that it refers to Secs. 8308, and 8316, both of which sections have been specifically repealed, and that this reference still leaves them unrepealed to all intents and purposes. However, we are of the opinion that that part of this section which refers to Secs. 8308 and 8316, is repealed by implication and is inconsistent with the later enactments.

The method of perfecting a lien is prescribed in' the amended acts; it is an exclusive one; the plaintiff in error not having followed this method its lien is void.

The judgment and finding of the court of common pleas will be affirmed.

Houck and Shields, JJ., concur.


author: Farr, J.

text:
    APPEAL FROM REFUSAL OF COMPENSATION TO INJURED WORKMAN.
    Court of Appeals for Jefferson County.
    Joseph Valacek et al v. The Industrial Commission of Ohio et al.

      Workmen’s Compensation Law — Appeal from Refusal of Industrial Commission to Allow .Compensation — Appeal—How Perfected— Employer Required to he Made Defendant — When Employer May he Made Defendant After More than Thirty Days from Date of Filing Appeal.

    1. Where an employee was injured on the 1st day of April, 1917, in the service of an employer who had elected to pay compensation directly to its injured employees and upon refusal of the employer to pay compensation, a claim for an allowance was filed with the Industrial Commission which also denied compensation and on the first day of March, 1918, notified claimants that: “Compensation is denied,” and an appeal is tafeen to the court of common pleas within thirty days from the date of final action hy the Commission, the act or amendment óf 1917 (107 O. L., 157-162) passed March 20, 1917, effective June 28, 1917, applies with reference to whom should he made defendant, rather than the act or amendment of 1913 (103 O. L., 88, Section 43; Section 1465-90, General Code), and therefore the employer instead of the Industrial Commission should be made defendant, although the cause of the action arose under the act of 1913.
    2. An appeal from the final action of the Industrial Commission is perfected under Section 1465-90, General Code, when within 30 days after notice of rejection by the Commission a claimant files his notice or declaration of appeal in the Court of Common Pleas showing the refusal of such Commissinn to allow compensation.
    3. Where an appeal is filed hy a claimant for compensation, within 30 days after notice of final action hy the Commission under the act or amendment of 1917 (107 O. L., 157-162) and the commission instead of the employer is made defendant and later, on motion, is dismissed, the appeal is effective against the employer who may, by proper amendment, be made defendant hy leave of court, and out of rule, as in other civil actions, and more than thirty days from the date of filing the appeal.

      R. G. Porter and F. M. Coleman, for plaintiffs in error.

      John G. Price, attorney general, R. R. Zurmehley, special counsel, and Boy B. Carpenter, prosecuting attorney, for the Industrial Commission of Ohio.

      A. C. Lewis, for the U. S. Coal Company, a defendant in error, error.
   Farr, J.

Heard on error.

The action in the court below was to recover for personal injuries resulting in the death of one Frank Yalacek on the first day of April, A. D. 1917, while in the employ of the U. S. Coal Company which had elected to pay compensation directly to its .injured employees, or their dependants under the provisions of the workmen’s compensation law of Ohio. Application was accordingly made by the plaintiffs in error to the company, which was refused, and thereupon application was made to the Industrial Commission of Ohio to fix compensation, which was likewise refused and notice of such refusal was served on claimants on the first day of March, 1918. On the 21st day of March, 1918, notice or declaration of appeal was filed in the court of common pleas of this county against the Industrial Commission and on the same day a waiver of summons was filed or an appearance entered for the commission by the prosecuting attorney, of Jefferson county. On the 17th day oE April, 1918, a petition was filed against the commission to recover compensation for the death of the decedent. On October 10, 1918, plaintiffs filed an amended petition, making the United States Coal Company a party defendant, and summons duly issued. On December 11, 1918, a demurrer was filed to the petition by the coal company and sustained as to the sixth ground.

A motion was made by the commission asking to be dismissed as a party defendant, which was sustained. On January 3, 1919, an amended petition was filed, to which a demurrer was later filed, and sustained, and judgment was entered for the defendant company, to which error is prosecuted here upon two grounds.

First. That the court below erred in sustaining the motion of the commission to be dismissed as a party defendant.

Second. That the trial court erred in sustaining the demurrers and entering judgment for the defendant coal company.

As to the first assignment for error, it is urged that since the injury occurred on the first day of April, 1917, that the act of February 26, 1913, approved March 14, 1913, 103 O. L., 72, 92 Secs. 1465-1A to 1465-106, G. C., relating to the powers, duties, etc., of the State Liability Board of Awards controls rather than the amendment to that act, 107 O. L., 157-172, which was passed March 20, 1917, approved March 29, 1917, but which it is urged did not become effective until the expiration of the referendum period, June 28, 1917, about two months after the death of Frank Valacek,

It is contended therefore that the latter act does not apply because not in effect at the date of the death of decedent, and for that reason, it is claimed that the Industrial Commission should not have been dismissed as a party defendant because the act of 1913 provides (103 O. L., 88, Sec. 43, Sec. 1465-90, G. C.) that in case of an appeal to the court of common pleas, the appellant shall file his petition in the ordinary form “against such board.” One of the amendments made, and the one of importance here, in the act of 1917, is that in case,

“Said commission denies the right of claimant or claimants to receive or to continue to receive compensation from an employer who .has duly elected to pay compensation, medical, hospital and nursing, services and medicines and funeral expenses direct to his injured and the dependants of his injured employees * * * the claimant or claimants shall have the right to appeal to the common pleas court of the county in the same manner as in claims against t'he state insurance fund * * * except that the employer shall be the defendant in such proceedings.” 107 O. L, 163, Sec. 1465-90.

The material change made by the amendment, therefore so far as the instant case is concerned, is that the employer, instead of the commission, shall be the defendant in such proceedings, this change, however, relates wholly to the procedure, and not to a substantive cause of action, and it is not material if the right of action did arise in the case at bar under the act of 1913, because it is not a question of whether or not there is a right or cause of action, but of whom should be made defendant, of what constitutes or is required to perfect 'an appeal, and whether the coal company was properly made a party defendant. There was no right of appeal until compensation was refused by the commission and the applicant must ctimply with the law then in force as to procedure and not with a former statute.

March 1st, 1918, notice was given claimants by the commission that: “compensation is denied.”- The act of 1917, effective June 28, 1917 (107 O. L., 157-162), was therefore in effect so far as procedure was concerned; consequently the employer rather than the commission must be made defendant and the court below properly sustained the motion to dismiss the commission. The next and last assignment for error is that the trial court erred in sustaining the demurrers to the amended petitions and entering judgment for the defendant company which had been made a party defendant by amendment to the petition. The demurrers were doubtless sustained, upon the theory that' the appeal as to the coal company had not been perfected within the statutory period of thirty days after the notice of final action 'by the commission, March 1, 1918.

On March 21, 1918, claimants filed their notice or declaration of appeal in the court of common pleas against the Industrial Commission and on the same day a waiver of summons or an appearance was entered by the prosecuting attorney of Jefferson county, and within thirty days thereafter, on April 17, 1918, a petition was filed as provided in said amended Sec. 1465-90, G. C. The amended petition making the United States Coal Company a party defendant was filed October 10, 1918, and summons issued. "Was the notice or declaration of appeal filed in the instant case sufficient to invest the court of common pleas with jurisdiction? Said Section 1465-90, G. C., as amended 107 O. L., 162-163, provides that:

“The claimant, within thirty (30) days after the notice of final action of such commission, may, by filing his appeal in the common pleas court * * * be entitled to trial in the ordinary way. * * * Within thirty days after filing his appeal, the appellant shall file a petition in the ordinary form.”

The above Section 1465-90, G. C., uses the words “appeal” and “petition” and fixes the time within which each shall be filed; therefore they were evidently not intended to mean one and the same thing; it was obviously the legislative intent that the filing of notice or declaration of appeal by a claimant in the court of common pleas, within the statutory period after notice of the final action of the commission, should constitute an “appeal” within the meaning of the statute; if it were otherwise, the Legislature could just as well have omitted the separate provision as to “appeal” and simply have provided that the petition be filed within thirty days after notice of- final action- by the commission, and that the same should constitute or perfect an appeal; and the workmen’s compensation law being remedial should be liberally construed as held in Roma v. Industrial Commission, 97 O. S., 252, 253, where Nichols, C. J., observes:

“We feel that if he be defeated by a technicality, although a proper and just one, it would be quite out of harmony with the underlying objects, the General Assembly had in view in enacting the law. The state of Ohio, by the very terms of the law, becomes in fact the representative, if not the champion of the claimant to the extent of seeing that exact justice is done him, and it is quite manifestly the intention of the law that the ordinary rules of procedure, although wise and fair in the abstract, must give way, if, in adhering to them, any conclusion even savoring of injustice would result. Sec. 1465-91, G. C., provides that ‘such board (the board of awards) shall not be bound by the usual common law or statutory rules of evidence or by any technical or formal rules of procedure other than as herein provided.’ It is the conception of this court that the section of the law just quoted is, in a sense, binding on the courts that may review these investigations. Whenever it may be made to appear that by a strict adherence to technical rules the substantial rights of the party are in jeopardy, it is the plain duty of the courts * * * to disregard such rules.”

The foregoing is in harmony with the legislative intent as declared in the law itself and as indicated in above Sec. 1465-91, G. C.

Therefore, clearly the filing of notice or declaration, such as was filed in the case at bar was sufficient to perfect the appeal and to invest the court of common pleas with jurisdiction of the subject matter; but was it effective as to The United States Coal Company which was made a party defendant by the amended petition filed as above stated on October 10, 1918, upon which summons was issued and returned properly served? On December 11, 1918, the coal company filed what might well be termed a general demurrer, setting out some six different grounds, the last of which was that the petition did not state facts sufficient to constitute a cause of action, and which relates only to matters of substance and which distinguished the general from a special demurrer at common law, the distinct offices of which were there recognized, but which are not retained in the new procedure, except that convenience and common usage are sufficient warrant for their adoption.

The demurrer was sustained and the petition was amended, to which a similar demurrer was filed and sustained and judgment entered for the defendant company. Such demurrers are by the Code, Sec. 11303, G. C., made pleadings, and were sufficient to enter the appearance of the coal company. In Wilson v. Wilson, 30 O. S., 372, it is said:

“We think the defendant voluntarily submitted himself and the new cause of action to the jurisdiction of the court, by demurring only on the ground that the petition did not state facts sufficient to constitute a cause of action. It would have been otherwise had he demurred specially on the ground that the court had no jurisdiction of the subject of the action. But by demurring generally and subsequently answering to the merits, he waived ail right to object to the jurisdiction which he had himself invoked.”

The court clearly holds in the foregoing that an appearance was entered by the general demurrer. However, there is another reason why the appeal was effective against the coal com-party. The court of common pleas had been invested with jurisdiction of the subject matter of the action by the appeal, and might, therefore, properly permit the company to be made a party defendant if necessary to a determination of the issues, dependent of course, upon a proper amendment and possibly service of summons. Just as the filing of a transcript on appeal from the docket of a justice of the peace invests the court of common pleas with jurisdiction and thereafter any person necessary to a determination of the issue may be made a party. The proceeding in the instant case is purely statutory and since the right of appeal is provided and was perfected by filing' notice or a transcript and it is also provided that the employer instead of the commission shall be made defendant, the appeal was effective against the coal company although the commission was by mistake primarily made defendant, and it is doubted whether service of summons was necessary; the appeal itself was notice to the company just as an appeal is notice in other civil actions. The petition was not filed within thirty days from the appeal, but the court gave leave to file an amended petition out of rule just as leave is granted in other civil actions. The statute fixes the status of the employer as defendant, which relation practically exists before the commission because if an award be made it would be against the employer. Therefore, since the court of common pleas had been invested with jurisdiction of the subject matter of the action, and the coal company was made a party defendant and filed a general demurrer, the conclusion must be that jurisdiction attached at the time of filing the appeal, and that it was effective as against the defendant coal company, and the demurrer, therefore, should have been overruled. It follows that the judgment of the court below must be reversed, and it is so ordered.

Metcalfe, P. J., and Pollack, J., concur.


author: Vickery, J.

text:
    SUBMISSION TO DEFENDANT OF PANEL FOR JURY IN FIRST DEGREE MURDER CASE.
    Court of Appeals for Summit County.
    Caferelli v. State of Ohio.

    Decided, November 13, 1919.

      Criminal Laic — Statutory Provisions Mandatory as to the Summoning and Impaneling of Juries in First Degree Murder Cases — Submission to Defendant of Incomplete Panel of Jury in Violation of Ms Rights —Error in Refusing to Grant Continuance for Examination of the Panel by Defendant.

    1. In prosecutions for first degree murder -the forms of law should be strictly followed, and the provisions of statutes conferring rights in favor of the accused in the method and manner of summoning and impaneling juries are mandatory.
    2. Section 13648, General Code, providing that a copy of the panel of the jury shall be delivered to the accused at least three days before his trial for homicide, is mandatory and confers a right upon the defendant, which if denied constitutes prejudicial error justifying a reversal of a judgment of conviction.
    3. A copy of a panel required to be delivered to the accused in accordance with Section 13648, General Code, should contain the names of thirty-six qualified persons who have been served and returned by the sheriff.
    4. Where the trial has .proceeded by the examination and acceptance of one juror, it is error for the court to refuse a defendant a continuance of three days in which to examine the qualifications of persons summoned by an additional venire issued under Section 13643, General Code, although the defendant has been duly served before trial with a copy of the sheriff’s return containing less than thirty-six names on a venire issued under Section 13642, General Code.

      J. V. Zottarelli and Hole & Hole, for plaintiff in error.

      C. G. Roetzel, Pros. Atty., for defendant in error.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, December 22, 19-19.

   Vickery, J.

Heard on error.

This canse comes into this court on a petition in error to the common pleas court of Summit county to reverse a judgment of the court of common pleas entered upon a verdict of first-degree murder found by the jury, and without recommendation for mercy. The defendant, Peter Caferelli, was sentenced to be electrocuted, which sentence was suspended pending error proceedings in this court.

' Some eight assignments of error are set forth in the petition in error, many of which it will not be necessary for us to consider in view of the conclusion that we have reached respecting one of the assignments of error. Suffice to say that we would be unableto agree with the claims of the plaintiff in error that the verdict was not sustained by sufficient evidence; nor do we think there was any error in the refusal of the court to allow a change of venue, for whether a court will grant such a motion and allow such a change of venue is largely a matter of discretion of the court and we can not find from this record that the court abused such discretion. Nor do we find any error that is prejudicial in the court’s refusal to charge as requested by the defendant below, inasmuch as those requests were contained in the written propositions to charge before argument, and there being &t that time, if there is at present, no duty of the court requiring that it should grant the requests before argument either for the state or for the defendant. Nor do we find any error prejudicial to defendant in the general charge of the court.

But we are met with a situation at the very threshold of the trial which challenges our attention, which is directed to the second assignment of error, to-wit, the failure of the court to grant a continuance of the cause on motion. The assignment of error in the overruling of the motion relates to the manner in which the jury was empaneled.

Section 13642, G-. C., provides:

“When a person indicted for a capital offense pleads not guilty, the clerk, on the precipe of the prosecuting attorney, shall draw from the jury-box, as in other cases, thirty-six ballots, and issue to the Sheriff a venire for the persons whose names are so drawn, for the day fixed for the trial; such venire shall be served and returned by such sheriff at least fifteen days before the day so fixed. If a person named therein is dead,, insane, absent, removed from the county, or not an elector thereof, or has been convicted of felony and not pardoned, the sheriff shall note the fact in his return.”

Section 13643, provides:

“If it appear to the clerk, by the return of the sheriff, that a person named in the venire is dead, insane, absent, removed from the county, or not an elector thereof, or has been convicted of a felony and not pardoned, the clerk shall draw from the box a number of ballots equal to double the number of such persons dead, absent or so disqualified, and issue to the sheriff a venire for them, for the day fixed for the trial. The sheriff shall serve and return such venire as soon as possible, in the manner provided in the next preceding section. If it appear to the clerk, from such return, that the names of thirty-six qualified jurors are not in the venires, he shall draw ballots and issue venires, to be served and returned in like manner, until the required number thereof are summond.”

Section 13644 provides:

“The first thirty-six jurors answering to their names at the trial, and without the disqualifications named in the next preceding section, shall constitute the panel. If it appears to the court upon the impanelling of such jury that there are not thirty-six jurors summoned and present, without such disqualifications^ the court may, and, upon motion of the defendant, shall order the clerk to draw from the box, as in other cases, a sufficient number of ballots to make thirty-six competent jurors.”

Section 13648 says:

“A copy of the panel of the jury returned by the sheriff shall be delivered to a person so indicated at least three days before the day of trial.”

Now, referring to Sec. 13644, where it says that “the first thirty-six jurors answering to their names * * * shall constitute the panel,” it is perfectly evident that when, in Sec. 33618, it says, “A copy of the panel of the jury returned * * * shall be delivered to a person so indicted at least three days before the day of trial,” it must mean that a copy of the entire list of jurors, to-wit, thirty-six that the sheriff has been able to locate and return under the various ways and venires designated and provided in the preceding section of the statute, shall be the list of names that are served upon the defendant.

In the case at bar thirty-six names were drawn from the wheel as the statute requires, upon a precipe of the prosecuting attorney, and were given to the sheriff by the clerk. • The sheriff served all these men with the exception of three. Thereafter a new venire was issued for six names, and these were served, or enough of them were served to make the thirty-six names. The record shows that the sheriff served a copy of his return upon the defendant, that three of the men named in the first venire were not found and that subsequently the new venire was issued and a copy of that return was served on the defendant by the sheriff; but the record does not show that the entire panel was served upon the defendant at any time before trial.

It appears that the first thirty-three names were served upon the defendant within the time allowed by the statute, but that after the trial had proceeded, by starting to impanel the jury, one man having been selected, a copy of the writ summoning three to fill up the panel was served upon the defendant. It was then that an application was made for time in accordance with the statute, which ultimately resulted in a motion by the defendant in open court for a continuance for three days in order to have time to examine into the qualifications of these three names. Whereupon the court stated that the defendant should have ample time to examine these three names, but insisted upon going forward with the examination of the other men still unexamined, who constituted. the first thirty-three names of the panel, all of which was done over the objection of the defendant, and exceptions properly taken.

Finally the court inquired how much time the defendant wanted, and he insisted, through his counsel, that he was entitled to the three days and would not consider any other proposition. The court said he felt disposed to give him. from eleven o’clock until half-past one that day, and when the defendant insisted upon the three-day continuance the court said he would not give any such time and counsel might as well proceed with the trial.

The trial was proceeded with over the objection of the defendant, and the exception was saved in the record.

Now, then, the question is, whether this failure to have the panel of thirty-six names served upon the defendant within at least three days before the trial is such error as would warrant a reversal of this judgment.

We have long since got by the day when cases should be reversed for mere technicalities, and, unless a right of the defendant was abridged by the failure to have the proper panel served upon him, it was merely a technical error and should not be considered by the court; if a right was abridged the contention is warranted.

We are of the opinion that in so grave a case as one of the first-degree homicide, where a man’s very life is at stake, the forms of law should be strictly followed, and that the method pointed out by the statute is not merely directory but mandatory.

“Generally, when no rights will be impaired, provisions, with no negative words or implications, concerning the time and manner, and more especially the time, in which official persons shall perform designated acts, are directory. * •* * And largely the statutes relating to the time and manner of summoning and bringing in jurors are of this class. (Citing State v. Pitts, 58 Mo., 556; State v. Gillick, 7 Iowa, 287; State v. Smith, 67 Me., 328, and other cases.) The same is true of those providing for other steps in a judicial cause. But a provision of this or any other sort which, though in the nature of a command to an officer or court, confers rights on parties, is generally or always mandatory.” Bishop, Statutory Crimes (3 Ed.), Sec. 225, citing Ex parte Jordan, 94 U. S., 248; People v. Livingston, 68 N. Y., 114; Wendel v. Durbin, 26 Wis., 390, and State v. Cooper, 45 Mo., 64.

We think defendant had a right to have a copy of the panel of the jury delivered to him at least three days before the day of trial; in other words, that Sec. 13648 conferred upon such person a right, and made the method of procuring the panel mandatory, and that defendant was entitled to have all the names of the entire panel in time to examine them and inquire into their qualifications, or biases, or prejudices, 'before being compelled to submit his life to their judgment.

In the case of McGill V. State, 34 Ohio St., 228, it was held, reading from the first proposition of the syllabus:

“Where, in a capital case, a person not summoned as a juror personates one who was returned on the venire, sits at the trial and joins in a verdict of guilty, the verdict will be set aside and a new trial granted, it appearing that neither the accused nor his counsel was guilty of laches.”

It appeared in that case that one Eli Stephenson, whose name was on the venire, was regularly summoned and returned by the sheriff as a juror for the trial of the cause. At the trial the father of the juror so summoned, but bearing the same name in full, appeared, and, when the name of Eli Stephenson was called, answered to the same, stepped forward, took his seat in the jury box, and sat at the trial. The discovery that he was not the juror summoned was not made until after the trial was over, when a motion for a new trial was made, by the accused on the ground that he had not been tried by a legally constituted jury. The motion was overruled, upon which action of the court error was predicated. Judge Boynton, speaking for the court, takes up at length the question here under discussion and on page 236 says:

“The statute (74 O. L., 345, Sec. 7), requires a copy of the panel of the jury returned by the sheriff to be delivered to the accused at least three days before the day of trial. This requirement was complied with in the present ease. The plaintiff was, therefore, apprised that one Eli Stephenson was one of the regular jurors summoned for his trial; and when such juror was called, a person by that name appearing and answering thereto, we think he might well assume such person to be the regular juror. If the person so appearing had borne another líame, and had personated the absent juror, this clearly, under the authorities, would have been ground for a new trial, if the fact of such personation was unknown to the accused in time to correct the error before he was' prejudiced thereby.”

The court quotes this to show that the party had the right to have a panel served upon him, and, that, inasmuch as a man bearing the same name as the man in the panel answered to the name, the defendant was not guilty, of laches, and, therefore, had waived none of his rights, but the court says, page 237:

“The irregularity being such as materially to affect a substantial right of the accused, and by which he was prevented from being tried by a legally constituted jury, the verdict should have been set aside and a new trial granted.”

We draw from this that the right to have a copy of the panel served upon the defendant at least three days before the trial was a substantial right of the defendant, and that that didn’t mean a part of the panel but the entire panel of thirty-six names.

If this was a right that the defendant had, then of course a departure from the statutory method would be a violation.

In the case of Cantwell v. State, 18 Ohio St., 477, it is said at page 480, that when the Legislature has clearly evinced a purpose to distinguish the practice in criminal trials from that allowed in civil cases, and to prohibit in one class of trials what is permitted in the other, the provisions must be regarded as mandatory.

Now it will be noticed that the Legislature has seen fit to provide a particular way for procuring a jury in first-degree homicide cases, different from that in all other criminal cases, and when it marked out the manner in which that panel should be selected, and provided for the issuing of various venires to obtain the result, the law must have been mandatory and for the very purpose of conferring a right upon the defendant; which, of course, he might waive. But in this ease he didn’t waive, so when he insisted, by his attorneys, that he have three days from the time the completed panel was served upon him, he was clearly within his rights.

In Thurman v. State (4 C. C., 141, 2 Circ. Dec., 466), it is held that where a copy of the panel is served less than three, days before the time set for trial, and the case is then laid over to a future day more than three days after the defendant receives a copy of the panel, there is no error.

Again, in Williams v. State, 11 C. C. (N. S.), 4, in the first proposition of the syllabus, it is held:

“A verdict of conviction will not be set aside on the ground that a true copy of the panel as returned by the sheriff was not delivered to the accused as required by See. 7273, R. S., where the irregularity complained of is not carried into the bill of exceptions but is brought to the attention of the court by an affidavit to which is attached a paper writing and what purports to be a copy of the jury panel.”

In Williams v. State it was attempted to show by affidavit outside of the record that a true copy of the panel as returned by the sheriff was not delivered to the defendant, and the court held that it was powerless to consider matters outside of the record, and in respect to the affidavit that it did not bring the matter into the record at all and was not in condition to be considered by the court. The inference from the ruling of the court in this case is clear, that if this objection was made at the time and a proper exception taken, and it was properly in the record, then the failure to deliver a true copy of the panel would have been a fatal error which would have warranted the reversal of the court below. ' Judge Taggart, rendering the opinion of the court, cited several authorities in Ohio and outside of the state to show what was properly a part of the record and could be considered by the court.

From these authorities, and many others to which our attention has been directed, we are clearly of the opinion that the defendant had the right to have this panel of thirty-six names served upon him at least three days before the trial, and that he objected to the fact that it was not so served upon him and carried it into the record and took a proper exception, so that it can not be said that he waived his rights in any way whatever. We are therefolre obliged, under the authorities, much as w.e dislike to do SO' — for we have not only considered this record, but the record in the case in which his associate, Vincent Damico, was convicted — and we believe the two records show conclusively that the jury were warranted in rendering the verdict they did — we are therefore obliged, and under the circumstances we say we regret that we are to reverse this ease and remand it to the court of common pleas for a new trial.

Just who is to blame for having this situation brought about it is not for us to ¡say. Suffice it to say that when a man is charged with the gravest of all offenses, for which his life is the forfeit, he is entitled, nay, is guaranteed by the Constitution of the state of Ohio and the Constitution of the United States, to have all the safeguards of the law thrown around him, and it will not do for the officers who have charge of the enforcement of the law to neglect or refuse to obey the plain mandates of the law as to the manner and method of selecting the instruments through which the law must be carried into effect.

In a recent decision, which reverses this court, in the case of Cleveland Ry. v. Brescia, 100 Ohio St., 267, the Supreme Court of Ohio has tightened up the lines on the selection of jurors even in civil cases, and has ruled the method of selection of jurors mandatory, where hitherto the courts have been constrained to hold it directory merely. I cite this to show that in spite of the modern trend of the judiciary to avoid mere technicalities, and to hold much as directory which otherwise would -be mandatory, here is the lást announcement of our Supreme Court on that proposition holding the officers whose duty it is to select jurors to a strict adherence to the law.

We are therefore constrained to come to the conclusion that the court erred in refusing to grant the postponement as requested by the plaintiff in error; that the error is such that the plaintiff in error’s substantial rights were interfered with; that-he did not, and could not under such conditions, have such a trial as was guaranteed to him by the law; that the court for this reason should have granted the motion for a new trial; and that the refusal to do so was error so prejudicial to the defendant that the case should be and is hereby reversed and remanded to the court of common pleas for new trial.

Dunlap and Washburn, JJ., concur.


author: Washburn, J.

text:
    QUESTION OF NEGLIGENCE IN ATTEMPTING TO ALIGHT FROM A SLOWLY MOVING CAR.
    Court of Appeals for Cuyahoga County.
    Cleveland Railway v. Hill.

    Decided, May 29, 1919.

      Negligence — Woman Boards Gar — Then Finding her Companion Failed-to get on she Attempts to Alight and is Injured — Proper Instructions to the Jury in such a Case.

    1. Negligence as a matter of law is not established by the mere fact that a passenger attempts to board or alight from a street car which is slowly moving; but it is a question of fact for the jury whether a person exercising ordinary care under the circumstances could have alighted without danger of being injured.
    2. In an action for damages for injuries received by a passenger in attempting to alight from a street car,, it is not error to refuse to charge the jury that damages can not be recovered if the jury find that plaintiff fell from the car under circumstances different from the allegations of the petition, where unimportant, as well as important and essential circumstances are alleged.
    3. In such an action it is not error to refuse to charge the jury that plaintiff can not recover unless the jury find that the car was standing still when plaintiff attempted to alight and was thereafter suddenly moved forward, where the petition contains other allegations of negligence -in the operation of the car, which if established would entitle plaintiff to recover damages.

      Squire, Sanders é Dempsey, for plaintiff in error.

      Payer, Winch, Minshall & Karch, for defendant in error.

      Motion to require the Court of Appeals to certify its record in this i case overruled by the Supreme Court, October 21, 1919,

   Washburn, J.

Heard on error.

Tbis is a proceeding in error brought by the Cleveland Railway to reverse a judgment rendered in the common pleas court against it and in favor of Eva M. Hill, defendant in error.

The claim of Mrs. ITill in the court below was that she boarded a car of the company and 'became a passenger, but, noticing that her companion had failed to board the car, she made known that fact to the conductor, who opened the door for her to alight, and, while she was in the act of alighting, the conductor caused the ear to start forward, thereby throwing her to the pavement and injuring her. She claimed that she was not given a reasonable time and opportunity to alight in safety.

The company answered, admitting its corporate existence and its ownership and operation of the street railway, and denying all the other allegations of the petition.

The company did not plead contributory negligence or set forth its claim of how the accident happened.

At the trial there was a sharp conflict in the evidence as to whether the ear started while Mrs. Hill was alighting, or whether it was moving when she started to get off and she therefore voluntarily got off while it was in motion.

It is established that the car was standing on an incline, and that it started forward, but stopped after going somewhere between three and ten feet, and it is apparent that if it was moving when she started to alight it was moving very slowly. It was a side entrance car and the step was near the pavement, and the situation and circumstances were such that a person exercising ordinary care in doing so could step off without very great danger of being injured. The circumstances were such that the mere fact that the car was moving when she started to alight, if that was the fact, would not constitute her act of stepping off an act of negligence as a matter of law. Ashtabula Rapid Transit Co. v. Holmes, 67 Ohio St., 153.

There was evidence that she stepped off backwards and in other particulars did not exercise ordinary care in alighting, and the evidence raised the issue of her contributory negligence, but no claim is made in brief or argument that the court did not properly charge the law on the subject of contributory negligence in instructions before argument, and in the general charge. It is, however, claimed that the court committed error in refusing to instruct the jury before argument as follows:

“8. If you. find from the evidence that the plaintiff boarded the car just as it started, or as it was in motion, and thereafter voluntarily left it by stepping from it while in motion, and fell, she can not recover and your verdict must be for the defendant.”
‘ ‘ 15. If you find from a preponderance of the evidence that the plaintiff got aboard the ear, and after reaching the first step suddenly changed her mind and attempted to alight therefrom while the same was in motion, she can not recover and your verdict should be for the defendant.”

If these requests properly stated the law, and were not covered by other instructions given before argument at the request of the company, it was error not to have given them, and such error could not 'be cured by properly charging the law in the general charge.

It is likewise settled that if the requests were in any respect incorrect, it was not error to refuse them. It will be noticed that none of the eireumstainces bearing on the manner of her alighting or her care or lack of care in alighting were embodied in the requests except the mere fact that the ear was moving and that her act was voluntary.

As we understand the law, it is not negligence as a matter of law under all circumstances to alight from a moving street ear. That question is for the jury to determine after a consideration of all the circumstances. We hold that the requests were properly refused because they made the mere voluntary stepping from the car while in motion conclusive of her right to recover.

It is also urged that the court erred in refusing' to give the following instruction before argument:

“7. The plaintiff is entitled to recover upon the allegations of the petition; and if you find that she fell from the car under circumstances different from the allegations of the petition, she can not recover and your verdict should he for the defendant.”

A sufficient reason why this request was properly refused is because it is entirely too broad and general.

Under it, if plaintiff failed to prove one slight circumstance in connection with her fall from the car just as she had alleged it in her petition, she would be turned out of court.

That is an entirely too technical view of the law. Many circumstances were alleged, and some were important and essential, and failure of proof in some unimportant particular would not be fatal, as a matter of law, to her right of recovery.

It is further claimed that there was error in the court’s refusal to give instruction No. 14 before argument, which was as follows:

“14. Unless you find from a preponderance of the evidence that the car was standing still when the plaintiff attempted to alight therefrom, and was thereafter suddenly mover forward, causing her to be thrown, she can not recover in this action and your verdict should be for the defendant. ’ ’

It is claimed that the plaintiff, having alleged that the car was standing when she attempted to get off, and that it started just as she was stepping from the car, must prove such allegation, or fail in her action, because she is confined to the allegations of her petition for a recovery. This contention, in effect, makes her case depend upon one allegation. Was that allegation the all-important and controlling question in the case ?

The plaintiff alleged that the car was standing still when she got on, and the record sustains that allegation. She also alleged that the car was moving at the instant she left the car, and that is not disputed. It therefore started after she got on, and before she" got off. The record establishes that she got off almost immediately after she got on. When she landed on the pavement the car at most had gone a very short distance, and her acts of boarding the ear and alighting from the car were very closely connected in point of time. The door of the ear was necessarily open when she got on and also open when she got off. It is true that she alleged that the car started just as she was stepping from the car, but that is not the only allegation in the petition.

The petition also alleged that the defendant, by its agents and servants, so carelessly and improperly managed and controlled said ear that 'the- plaintiff was not allowed the proper and reasonable time, attention and opportunity to safely alight therefrom, and that by reason of such carelessness and negligence the plaintiff, without fault on her part, was thrown to the pavement and injured.

In the light of these circumstances it seems to us that the ease could not be properly narrowed down to and made to turn upon the exact instant the car started. The plaintiff charged improper management and control of the car, and that she was not allowed proper and reasonable time and opportunity to safely alight. The starting of the car at a particular time was one of the items or acts of negligence which the plaintiff claimed prevented her from having a proper and reasonable time and opportunity to safely alight, an important act or item to be sure, but not the only one, nor necessarily the controlling one; it was, therefore, not error not to charge that if she failed to establish the exact time of the starting of the car just as she had alleged she could not recover.

It is true that the issues of a case are defined by and confined to the pleadings, but the plaintiff is not confined to one issue or one act of claimed negligence. The whole transaction was set- forth. Other circumstances were alleged, such as that the conductor opened the door for her to alight and ordered her to get off, and it was charged that when all the circumstances were considered the company was guilty of negligent conduct in failing to allow Mrs. Hill proper and reasonable time and opportunity to safely alight from one of its ears, and that she was thereby injured.

"When these requests to charge before argument were refused, the court, at the request of the railway company, gave the following instructions, among others, to-wit:

“3. Negligence is never presumed, and in this case before the plaintiff is entitled to recover she must establish negligence ■by a preponderance of the evidence, and if she has failed to do so, your verdict must be for the defendant.
“4. Before the plaintiff can recover in this action, she must have established by a preponderance of the evidence three things: first, that the defendant company was negligent in some one or more of the particulars charged in the petition, and which the court has submitted to you; and, second, that such negligence was the direct and proximate cause of her injury; and, third, that her present condition as established by the proof, is the proximate result of that injury — for unless you find there is a direct connection between the injury and the condition, she can not recover for that condition.”
‘ ‘ 10. If you find from a preponderance of the evidence that the defendant was negligent, and you further find from a preponderance of the evidence that the plaintiff herself was negligent, or you find from the plaintiff’s own testimony an inference of negligence which she has failed to remove, and you further find that the negligence of each was concurrent with the negligence of the other and acted together in producing the accident, there can be no recovery 'by the plaintiff in this ease, and your verdict should be for the defendant.
"11. If the plaintiff by a preponderance of the evidence has established that the defendant was negligent in some one or more of the particulars charged in the petition and submitted to you by the court, and she has further established by a preponderance of the evidence that the same was the direct and proximate cause of her injury, nevertheless, if from her own evidence an inference of her own negligence causing or directly contributing to cause her injury has arisen, and she has failed to remove that inference, she can not recover, and your verdict should be for the defendant.
‘112. No matter how negligent the defendant may be proved to have been, if from all the evidence there is a preponderance of proof showing that the plaintiff herself was negligent, no matter how slight, and that such negligence on her part caused or directly contributed to cause her injury, she can not recover and your verdict should be for the defendant.”

For the reasons indicated we hold that under all the circumstances disclosed by the record it was not error to refuse said requests 7, 8, 14 and 15.

We can not say that the judgment is manifestly against the weight of the evidence', or that it is excessive.

Judgment affirmed.

Dunlap, P. J., and Vickery, J., concur.


author: Jones, Oliver B., J.

text:
    SWITCHMAN KILLED BY FAILING TO OBSERVE APPROACHING TRAIN.
    Court of Appeals for Hamilton County.
    Norfolk & Western Railway Co. v. Cramer, Admx., et al.
    Decided, January 29, 1917.

      Negligence — Switchman Guilty of Contributory Negligence — In Stepping from Engine Upon Parallel Track — Without Looking for Approaching Train.

    An employee of one railroad, who is familiar with, the tracks and passage of other trains and who steps off the running board of an engine upon which he is riding, immediately in front of an approaching train of another road on adjoining tracks, without first looking.to see whether he is safe in so doing, and after a warning of the approaching train has been given by both the engineer of the engine upon which he was riding and of the other train, is guilty of contributory negligence.

      Hollister & Hollister, for plaintiff in error.

      Fred J. Oeltmann; Littleford, James, Ballard & Frost and Maxwell & Ramsey, for defendants in error.
   Jones, Oliver B., J.

Heard on error.

The defendant in error Louise Cramer, administratrix, as plaintiff below, recovered a verdict and judgment against the plaintiff in error,-which was one of the defendants in the ease below. The action was for the benefit of the next of Mn of Robert F. Cramer because of an accident which resulted in his death.

Robert F. Cramer was in the employ of The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, and had been in such employ for at least six years. On the particular morning of the accident he was engaged in switching and making up a train of freight cars west of Beechmont avenue. In that locality the railroad has four main tracks, the two o-utside being for passenger trains and the two middle tracks being for freight trains. The Norfolk & Western Railway Company had a track-age agreement with The P., C., C. & St. L. Ry. Company under which it had the use of the tracks of the latter road. The two south tracks carried east-bound trains and the two north tracks carried west-bound trains. To the west of the switch near which Cramer met his death the south tracks curve outwardly in such a way as to admit of a number of spur tracks, which wére used for separating freight cars and making up freight trains. The time of the accident was in the neighborhood of nine o’clock on the morning of December 11, 1913, a bright, cold day.

Plaintiff’s intestate was engaged, with others of his crew, in making up a freight train, and the engine, just before the accident, having shunted some cars upon the west-bound freight track, was by him switched over on to the east-bound freight track to go forward and pass around such cars and be switched back upon the west-bound freight track. After throwing the west switch Cramer stepped upon the running board or step in front of the pilot of the engine with which he was working, for the purpose of riding upon it to throw the east switch in order to enable the engine to pass over to the west-bound freight track. He stood upon this step or running board until the engine was about at the location of the switch, looking forward to the northwest across the track. "While his engine was so proceeding the Norfolk & Western mail train came along the east-bound passenger track on its regular run, at a speed, much greater than that of the engine on which Cramer was riding. This speed has been estimated by different witnesses at from twenty to fifty miles per hour, the engineer and conductor on the passenger train fixing it from twenty-five to thirty miles an hour. Just as the freight engine reached the eastern switch, Cramer, without looking backward, stepped off the engine upon which he had been riding, and was immediately struck by the pilot of the passenger engine on the track alongside and was thrown in the space between the two tracks and picked up dead.

The allegation of negligence in plaintiff’s petition is stated in the following terms:

“The defendant, the Norfolk & "Western Railway Company through its agents and servants failed to sound a bell, whistle or warning, as it rounded the curve and approached decedent, and the fireman on said engine failed to keep a proper lookout at all at this particular point and time, and left his post and failed to ring his bell or give warning or signal of the approach of his train, although the engineer, on account of the length of the engine, could not see the point near the track where decedent was; that said train was late and was proceeding at a high and dangerous rate of speed, to-wit, forty miles and hour, and could not be stopped until it had gone eight hundred feet beyond the point where decedent was struck.”

The defendant Norfolk & Western Railway Company in its amended answer states its defense and allegations of negligence against the plaintiff’s decedent in the following language:

“That plaintiff’s decedent placed himself in a dangerous position by alighting from an engine of the defendant, The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company upon or so near the track upon which the defendant Norfolk & Western Railway Company was operating its train as to be struck by the same, and before thus placing himself in a dangerous position he failed to look and listen to ascertain if. a train of the. said defendant Norfolk & Western Railway Company were approaching; that before alighting from said engine, he did not heed the danger signals warning him of the approach of a train of said defendant Norfolk & Western Railway Company, which signals were given by the blowing of the engine whistle by the engineer of the defendant, The Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, upon which engine decedent was riding; that the decedent alighted from the said engine next to the track which the train of the said defendant Norfolk & Western Railway Company was approaching, when, in the , reasonable and proper performance of his duties, he should and could have alighted from the other side of said engine; that decedent failed to heed the warning of the bell which was being rung by the fireman of the engine of the said defendant Norfolk & Western Railway Company.”

The evidence shows that as Cramer leaned out preparing to step off, the engineer of the freight engine noticing the approach of the passenger train gave what is known as a danger signal with his whistle, being a succession of short sharp blasts, for the purpose of warning Cramer of his danger, but that Cramer apparently paid no attention to the warning, and did not look around or realize the approach of the passenger train. This passenger train ran daily along that track, at the same hour every morning, and on this occasion it was a few minutes late. The deceased had worked in that locality for some little time and was undoubtedly familiar with these facts.

While one of the allegations of negligence of the defendant company was that the fireman failed to keep a proper lookout, the evidence shows that he had not been negligent in that respect, and had kept a continuous lookout, except when, the engineer having shut off the steam from the passenger engine because of a green light shown at a signal station just before they reached the point of the accident, his duty required him to reach down and open the fire door and a blower valve in order to kill the smoke of the engine, which required but a few seconds.

The testimony also shows that the engineer of the passenger train gave the usual crossing whistle for Beechmont avenue at the regular point some little distance west of the accident, and that the bell of his engine was constantly ringing up to the time of the accident. There were witnesses, however, who testified that they did not remember whether or not the bell was rung, and that they had not heard it.

It is not necessary to determine whether or not a case of negligence was made out against the defendant; because the evidence clearly shows that plaintiff’s intestate was guilty of negligence in stepping from the running board as he did immediately in front of the approaching passenger train without first looking to see whether he was safe in so doing. A proper course, which could easily have been pursued by him, was to have moved across the running board of his engine and to have stepped off from its left side, upon the freight track, where there could have been no possibility of being struck, and where he would have been nearer to the switch he was about to throw.

The trial court, in its opinion overruling motion for a new trial, after discussing the evidence as to the negligence of plaintiff’s intestate, arrived at this conclusion:

“It seems to the court that there can be but one inference from these circumstances, namely, that the deceased was guilty of a want of ordinary care — negligence—in alighting as he did from his engine.”

But notwithstanding this conclusion of the trial court he sustained the verdict in favor of the plaintiff, and entered judgment thereon under what is known as the doctrine of “last chance,” as laid down in the cases of Railroad Co. v. Kassen, 49 Ohio St., 230, and L. S. & M. S. Rd. Co. v. Schade, Admr., 15 C. C., 424, and in 2 Thompson on Negligence, Section 1629, as quoted in Drown v. Northern Ohio Traction Co., 76 Ohio St., 234, at page 247.

We think that the court below was in error in resting its decision upon this doctrine of last chance, in which he felt sustained by the cases of Steubenville & Wheeling Traction Co. v. Brandon, 87 Ohio St., 187; West, Recr., v. Gillette, 22 C. C. (N, S.), 369, and Greve v. Cincinnati Traction Co., 21 C. C. (N. S.), 231, 2 Ohio App., 486. These three cases related to street traffic, and did not involve the doctrine of last chance, and can not coctrol the case at bar.

It was conceded by all of the witnesses that after plaintiff’s intestate had left the place of safety on the running board of his own engine, and put himself in a place of danger in front of the approaching passenger engine, it was impossible for the engineer or brakeman on the passenger train to have done anything to avoid the injury. The engine already had the steam off for the purpose of slowing up to be under control for the block signal which they expected at Rendcomb Junction, and yet was running at such a rate that it was impossible to stop or in any way signal Cramer to prevent the accident. He had received the signal from his own engine whistle and had failed to observe it. There can be no question but that his own negligence caused his -unfortunate death. Wabash Rd. Co. v. Skiles, 64 Ohio St., 458, and Bejac v. C., P. & E. Ry. Co., 23 C. C. (N. S.), 475, are cases which, involve the same principle oflaw.

The verdict of the jury is clearly against the manifest weight of the evidence, and the motion for a new trial should have been granted by the court below.

Judgment reversed, and cause remanded.

Jones, E. H., P. J., and Gorman, J., concur.


text:
    AS TO THE LATITUDE TO BE ALLOWED COUNSEL IN ARGUMENT.
    Court of Appeals for Greene Cunty.
    Miami Conservancy District v. Mitman et al.

    Decided, April 22, 1919.

      Appropriation under the Conservancy Act — Three-fourths Jury Yer-dict Yalid — Misconduct of Counsel — Discretion of Court.

    1. The statute which provides for the rendering of a verdict by the concurrence of three-fourths of the members of a jury, applies to proceedings under the Conservancy Act, where an appeal has been taken from the award of the appraisers, in an action to appropriate real estate for conservancy purposes.
    2. The latitude allowed counsel in the argument of a case rests to a certain extent in the direction of the trial court, and when the record does not affirmatively and clearly show that the trial court abused its discretion in that respect a reviewing court is not justified in granting a new trial upon the ground of misconduct of counsel.

      McMahon & McMahon, O. B. Brown, M. A. Broadstone, J. K. Williamson and Morris D. Rice, for plaintiff in error.

      Marcus Shoup and H. D. Smith, for defendants in error.

       Affirmed by the Supreme Court, July 8, 1919.

   Kunkle, J.

Heai’d on error.

This is an action wherein plaintiff in error seeks to appropriate certain real estate belonging to defendant in error, O. P. Hitman, for the purpose of making certain improvements under the Conservancy Act of Ohio (104 O. L., 13). It appears from the petition that the property in question was appraised in the conservancy proceedings at $7,500.

Defendant in error, O. P. Hitman, the owner of the property, excepted to such appraisement. His exceptions were overruled by the conservancy court and he then appealed to the court of common pleas of Greene county, under Section 34 of the Conservancy Act (Sec. 6828, G. C.). Trial was had in the court of common pleas of Greene county and the jury returned a verdict in favor of defendant in error in the sum of $8,500. The verdict was signed by ten members of the jury.

Hotion for a new trial was overruled, judgment was entered upon the verdict, and from such judgment plaintiff in error prosecutes error to this court.

Counsel for plaintiff in error insist that the trial court erred in instructing the jury that they might return a verdict by the concurrence of nine or more members of the jury, and also erred in accepting the verdict which was signed by only ten members.

It is claimed that while the Constitution, Art. I, Sec. 5, as amended, authorizes the enactment of a law for the rendering of a verdict by the concurrence of not less than three-fourths of the jury, in civil cases, nevertheless, the Legislature by the enactment of Section 11455, G. C., only extended the authority for rendering a verdict by the concurrence of three-fourths of the jurors to civil actions.

Section 34 of the Conservance Act provides that an appeal from the award of the appraisers as to compensation or damages shall be filed in the court of common pleas in the county in which the lands sought to be appropriated are stituate, and that the proceedings shall be in accordance with the statute regulating appropriations by other than 'municipal corporations.

While the appeal of the landowner from the appraisal is taken to the court of common pleas, nevertheless the procedure in that court is required to be in accordance with the statutes governing appropriations in the probate court (Part Third, Title 3, Chapter 5).

It is urged by counsel that a condemnation case of this nature is a special proceeding and not a civil action.

Counsel for plaintiff in error rely upon the ease of the Pittsburgh, C. & T. Ry. v. Todd, 72 Ohio St. 156 [74 N. E. 172] and Dayton & U. Ry. v. Dayton & M. Trac. Co., 4 C. C.(N.S.) 329, affirmed by the Supreme Court, 72 Ohio St., 644.

If it be conceded that the appeal provided in Section 34 of the Conservancy Act is a special proceeding, rather than a civil action, nevertheless 'See. 11048 G. C. provides that:

“The owners of each separate parcel, right,, or interest, are entitled to a separate trial by jury, verdict, and judgment. They shall hold the affirmative on the trial, which must be conducted, evidence admitted, and bills of exceptions allowed as provided in civil actions.”

This section of the code, by reference, makes applicable the procedure in- civil -actions.

The case of Niemes v. Niemes, 97 Ohio St. 145 [119 N. E. 503], involved the contest of a will.

The code denominates actions of that character as civil actions, and the Supreme Court says, in Niemes v. Niemes, at page .160, “That such proceeding is a civil action is not a debatable matter. ’ ’

While the statute in question does not expressly denominate appropriation proceedings as civil actions, yet such cases are .controlled by the procedure in civil actions, and we think the decision in the Niemes case is applicable to the case at bar.

It is also claimed that Sec. 11058 G. C., which provides that the verdict shall be signed by the foreman of the jury, essentially preserves, at least by inference, the unanimous verdict. We think that -Secs. 11058, 11048 and 11455 should be read and construed together.

We are of opinion that Sec. 11058, which goes to the form of the verdict, is not inconsistent with the statute providing for a three-fourths verdict.

It is true the three-fourths jury law does not by its terms apply to the probate court, but the probate act, by reference to the procedure in civil actions, would make the statute in regard to the three-fourths jury part of the probate code, in so far as the same applies to appropriation cases.

In this case the verdict was signed by ten members of the jury and we think that constitutes a substantial compliance with the statute.

We are supported in this view by the decision of the court of appeals of the fifth district, in the case of Smith v. Craig, 9 Ohio App., 316; 29 O. C. A., 236.

Objection is also made that the testimony of the witness Owens was not ruled out.

This witness clearly qualified upon his direct examination. (Page 18 of the record.) The admissions of the witness on cross-examination did to some extent discredit his testimony given on direct examination as to his qualification to express an opinion upon the value of the property. We think the cross-examination merely reflected upon the credibility of the witness, and the credibility of a witness is a question for the consideration of the jury. We do not think his testimony is incompetent.

It is also urged that one of counsel for defendant in error was guilty of misconduct in the closing argument to the jury. The record does not contain the remarks made by counsel' for plaintiff in error. We are therefore not advised as to whether the remarks complained of were or were not provoked by anything which counsel for plaintiff in error may have stated to the jury. The rule governing reviewing courts in this respect is well stated in the ease of Ohio & Western Pennsylvania Dock Co. v. Trapnell, 88 Ohio St. 516 [103 N. E. 761], in the opinion of which the court say, at page 521:

“Remarks of this kind are wholely improper in the trial of a case and it is the duty of the trial court to see that they aré not made, or at least not persisted in, but something must be left to the discretion of a trial court, otherwise w,e would never reach an end to litigation, and a reviewing court ought not to reverse unless it clearly appears that such misconduct was of such character and so persistent as to preveut a fair trial .of the cause. While this court will sustain a trial court in compelling counsel to properly conduct their cause and to refrain from all side remarks and unprofessional conduct, either by directions to the jury to disregard these remarks and the punishment of counsel if they persist in offending, or by granting a new trial therefor, yet it wdll not reverse the judgment until it clearly appears that such conduct was prejudicial to the losing party.”

Applying the above rule to the case at bar we are of opinion that the record does not show such a state of facts as would justify this court in reversing the judgment of the lower court on the ground of misconduct of counsel in the closing argument.

We have carefully considered all of the errors urged by counsel for plaintiff in error, but finding no error in the record which we consider prejudicial to plaintiff in error the judgment of the lower court will be affirmed.

Judgment affirmed.

Allread and Fernding, JJ., concur.