author: Hornbeck, J.

text:
    Shearer, Appellant, v. State Medical Board of Ohio, Appellee.
    (No. 4412
    Decided June 14, 1950.)

      Mr. Herbert 8. Duffy, attorney general, and Mr. Joseph F. Ford, for appellee.

      Mr. Waymoh B. McLesJcey, for appellant.
   Hornbeck, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court affirming the action of the appellee, State Medical Board of Ohio, in suspending for one year the certificate of appellant, Shearer, to practice osteopathic medicine and surgery.

Twelve errors are assigned. The numbered headings in the assignments of error are not conformed to in the brief of the appellant which sqts up the questions presented under seven headings, as follows:

1. Was William Henning “an illegal practitioner of medicine” in Connection with the alleged treatment of Dwight Williams ?

2. If so, did the appellant have any “professional connection with” Henning?

■ 3. If not, did appellant lend his name to Henning?

4. Was the conduct of Dr. J. H. J. Upham as a member of the board prejudicial to the appellant?

5. Was appellant given a fair hearing by the board within the meaning of Article I, Section 16 of the Ohio Constitution, and the Fourteenth Amendment to the Constitution of the United States?

6. Did the Common Pleas Court err as to the basis of its decision?

7. Was the fact that the appellant was not served with a certified copy of the order of suspension prejudicial?

We will not discuss categorically the questions propounded in appellant’s brief.

The charge may be divided into two parts:

1. That on or about June 7,1946, Ernest F. Shearer, D. 0., induced one Dwight B. Williams, a patient of Dr. Benedict’s to go to William Henning for treatment and that on June 7, 1946, and at various times thereafter, William Henning prescribed and treated Dwight B. Williams, for which treatments he wTas paid.

2. That other patients of Dr. Benedict were induced by Ernest F. Shearer, D. 0., to go to "William Henning for treatments.

Number 1 is completely covered and supported by the testimony of Williams. Number 2 is supported only by hearsay testimony which was not objected to and, therefore, has some probative value. Number 1 alone, in our judgment, is sufficient to constitute a violation of Section 1275, General Code.

It is asserted that it does not appear in the occurrence, the subject matter of the charge against the appellant, that he had any professional connection with or lent his name to Henning, an illegal practitioner. It was amply proven that Henning was an illegal practitioner; that, assuming the truthfulness of Williams’ testimony, he had connection with Shearer that was professional in its character and was upon the advice of Shearer taken to Henning for professional diagnosis and treatment; and that, pursuant to this connection, Dr. Henning did treat and administer medicine to Williams. This, if established by the requisite degree of proof, in our judgment, meets the intendment of the language of Section 1275, General Code, “having professional connection with” an illegal practitioner of medicine.

It appears that during the hearing Dr. J. II. J. Up-ham, a member of the State Medical Board, passed one or two notes to Mr. Ford, counsel for the plaintiff. One note only was found. It is made part of the record and reads:

“Did not Shearer testify that Mrs. Holmes worked "exclusively for him?”

We cannot say that this act on the part of a member .of the board indicated prejudice against appellant. It does not appear that the note-was passed secretly. There is nothing in the question which indicates any animus or feeling on the part of the writer. The information sought was germane to the factual matters to be determined. The writer could himself have made the inquiry of the witness. There would have been no impropriety if he had orally requested either counsel to propound the question. In all the action was neither erroneous nor prejudicial.

It is urged that because of the composition of the board, mostly medical doctors, it was impossible for the appellant, an osteopath, to have a fair trial and that the hearing before this board as constituted was a denial of the due course of law provision of the Bill of Rights of the Ohio Constitution and the ‘ ‘ due process” clause of the Fourteenth Amendment to the federal Constitution. Academically there is some logic in this argument, but we shall not hold at this late date that the medical act is unconstitutional. It has been tested as to its constitutionality. Shaw v. State, 101 Ohio St., 507, 130 N. E., 939; Nesmith v. State, 101 Ohio St., 158, 160, 128 N. E., 57; Williams v. Scudder, 102 Ohio St., 305, 131 N. E., 481.

It is claimed also that the order of the board is invalid because no certified copy thereof accompanied the notice of suspension contained in the letter from the board to Dr. Shearer. In view of the obvious fact that Dr. Shearer had full and complete notice of the action of the.board and was enabled to avail himself of all remedies set up by law to test the validity of its action, it is our judgment that, this failure to send the certified copy of the order of suspension did not invalidate the order of the board.

It is. assigned that the Common Pleas Court erred as to the basis of its decision in the finding that the ap-pellee “has not been guilty of an abuse of discretion or acted arbitrarily or capriciously. ’ ’

The judgment entry in the Common Pleas Court reads, in part:

‘ ‘ The court on consideration thereof, and being fully advised in the premises, finds that the action taken by the State Medical Board is in conformity with the law and the said appellee has not been guilty of an abuse of discretion or acted arbitrarily or capriciously. ’ ’

In the written opinion of the common pleas judge he used this language:

“We have no right to disturb the conclusions and findings reached by the board unless such findings and conclusions disclose that the board was guilty of an abuse of discretion, i. e. that the board upon the record before it acted arbitrarily and capriciously. We are unable to say that the board in its finding was guilty of an abuse of discretion or that its action was unreasonable and oppressive.”

Under the provisions of the controlling statutes (Sections 154-67 to 154-71, inclusive, General Code), together with the Supreme Court’s interpretation of Section 154-73, General" Code, in the case of Farrand v. State Medical Board, 151 Ohio St., 222, 85 N. E. (2d), 113, where the appeal from the State Medical Board’s decision was perfected to the Common Pleas Court, that court was required to follow the rules of civil procedure by weighing the evidence and placing upon the State Medical Board the burden of proving the charges by a preponderance of the evidence: Hence, one of the questions before the Common Pleas Court was whether the action of the State Medical Board was against the manifest weight of the evidence. There is a difference between action which is an abuse of discretion and action which is against the weight of the evidence.

Judge Zimmerman in the opinion and the court in the syllabus recognize this differentiation in Steiner v. Custer, 137 Ohio St., 448, 31 N. E. (2d), 855, the second paragraph of the syllabus of which reads, as follows:

“The meaning of the term ‘abuse of discretion’ in relation to the granting of a motion for a new trial connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the court. ’ ’

The test by the reviewing court to be applied to the order of the board was whether the order was against the manifest weight of the evidence. Inadvertently, no doubt, the trial judge failed to test the order by the correct principle of law.

We have observed in some of our opinions that certain acts of administrative boards are to be tested as upon abuse of discretion, and as recently as March 10, 1950, in the case of Strohm v. Board of Liquor Control (unreported), Franklin county, No. 4333, we said that “the department did not abuse its discretion in rejecting the application on the ground of location of the business.”

The Strohm case involved -an action of the Board of Liquor Control in rejecting the application of the appellant for renewal of certain liquor permits. There was no dispute as to the fact upon which the board predicated its ruling. Our observation in that situation was correct. So, in the instant case, if the board, upon the application of the preponderance of the evidence rule, properly found either charge against the defendant to have been proven then, in the exercise of its discretion, it could determine what punitive measures should be taken under the applicable law.

We have purposely expressed no opinion on the question of whether the board acted against the weight of the evidence in making its finding that the charges against the appellant were proven. That prerogative in the first instance should be exercised by the Common Pleas Court on the appeal to it. The judgment will be reversed and the cause remanded to the Common Pleas Court for determination of that one question. We have passed on all other errors assigned. The judgment entry should provide that no assignment of error is established except No. 6, and that the Common Pleas Court erred as to the basis of its affirmance, viz., that the board did not abuse its discretion in finding the charges against the defendant to be proven.

Some observation is made in appellant’s brief of the dissent in this court in State v. Henning, 83 Ohio App., 445, 78 N. E. (2d), 588. It will be observed that State v. Henning was a criminal prosecution and, also, that the charges here against the defendant are more specific than in the Henning charge. Some observation is also made as to Farrand v. State Medical Board, supra. The courts inferior to the Supreme Court will, of course, accept the adjudication in this case but we are satisfied that amplification will be required when an appeal reaches the Supreme Court, in which the Common Pleas Court of Franklin County has granted a request for the admission of additional evidence, and it has been received. How shall such evidence be considered inasmuch as the board did not have that evidence before it and, therefore, had no opportunity to pass judgment upon it? Is there any other manner, in which the Common Pleas Court can consider and determine the newly discovered evidence except as upon de novo hearing? If not, then we have the anomoly of the court reviewing some of the testimony as upon questions of law and some as upon questions of fact. Section 154-73, General Code, is a hybrid in the law and difficult to classify, without qualification, under either of the recognized types of appeal.

Judgment accordingly.

Miller, P. J., concurs.

Wiseman, J., concurs in the judgment.


source: Caselaw Access Project

author: Phillips, P. J.

license: Public Domain

text:
    The State, ex rel. Patrick, Jr., Appellee, v. Baldine et al., Appellants.
    (No. 1249
    Decided March 7, 1951.)

      Mr. Reed Battin, for appellee.

      Mr.'Leo Luchette, village solicitor, for appellants.
   Phillips, P. J.

On July 7,1950, respondent Baldine, Mayor of the village of Hubbard, orally suspended relator, an appointed member of its police department, for 30 days commencing July 10, 1950, without lodging any written or oral charge against him.

On July 15, 1950, respondent wrote relator as follows :

“Joseph G. Patrick, Jr.

‘ ‘ 27 W. Park Avenue

“Hubbard, Ohio

“Dear Mr. Patrick:

“Kindly be advised effective as of July 11, 1950, you are hereby being suspended thirty days for disciplinary reasons. Also turn in your badges and other police credentials to Police Chief Earl Greer.

“Respectfully yours,

“Joseph J. Baldine

“Joseph J. Baldine, Mayor.”

During the suspension relator requested but was refused a statement of charges against him. Whereupon he instituted an action in mandamus in the Court of Common Pleas, after due notification to respondents, seeking to compel respondent Baldine to return him to active duty or to file charges against him with the council of such village, the members of which he made parties respondent.

By alternative writ, issued on July 21, 1950, respondent Baldine was ordered by the trial judge to file written charges against relator forthwith. Respondent councilmen were ordered to set such charges for hearing at the next regular meeting of that body, which respondents did on August 7, 1950. As the result of the hearing relator was reinstated to duty by respondent councilmen.

Thereafter respondents appealed to this court on questions of law from the order of the Court of Common Pleas entered “on the 21st day of July, 1950, granting an alternative, writ of mandamus against the respondents,” and simultaneously applied for and were granted by a judge of this court a stay of the order of the Court of Common Pleas.

By assignments of error respondents contend that the trial judge erred to their prejudice “in using a writ of mandamus to control a discretionary power of the mayor and council of the village of Hubbard,” and “in ruling that the mayor of the village has no power to temporarily suspend a village policeman.”

Counsel for respondents contends that it is a long established rule in Ohio that a writ of mandamus cannot be issued to compel the doing of a discretionary act, and cites as authority for that statement McGannon v. State, ex rel. Dennis, 27 C. D., 245, 23 C. C. (N. S.), 301; State, ex rel., v. Crites, 48 Ohio St., 460, 28 N. E., 178; State, ex rel. Grace, v. Lockland City Bd. of Edn., 25 Ohio Law Abs., 90, 1 Ohio Supp., 139; State, ex rel. Barstow, v. Summit County Commrs., 15 Ohio Law Abs., 31; Western Union Telegraph Co. v. Tax Commission, 21 F. (2d), 355; State, ex rel. City of Middletown, v. City Commission, 140 Ohio St., 368, 44 N. E. (2d), 459. There is no question concerning this contention. Respondents argue that since disciplinary action against relator is obviously a discretionary act of respondent Baldine, neither the court nor relator could order him to prefer charges against relator nor grant a hearing on his suspension, and that express provision for immediate suspension of relator, a village police officer, is made solely in Section 4262, General Code.

This section of the Code provides:

“The mayor shall supervise the conduct of all officers of the corporation, inquire into and examine the grounds of all reasonable complaints against any of them, and cause all their violations or neglect of duty to be promptly punished or reported to the proper authority for correction. ’ ’

Respondents contend further that the order of the trial judge denied respondent Baldine the powers granted by Section 4262, General Code, and left the village of- Hubbard without immediate control of or power to suspend relator, such as given to city chiefs of police by Section 4379. et seq., General Code, over such officers.

Counsel for relator takes the position that the issues in this case are:

“1. Whether or not the trial court erred in issuing a writ of mandamus directing the mayor to file charges against the relator and for council of village of Hubbard to hear the same.

“2. Whether or not the trial court erred in ruling that the mayor of a village has no power to suspend a patrolman without first filing charges and council hearing the same.”

The duties specifically enjoined upon respondent Baldine to file charges against relator, and respondent councilmen of the village of Hubbard to hear such charges, duties resulting from their respective offices, were imposed upon them by law. It appears that such duties were not discharged prior to relator’s suspension nor prior to the order of the Court of Common Pleas.

Mandamus has been variously defined as a writ commanding a public board or official to perform an act which the law specifically enjoins as a duty resulting from an office, trust or station; a remedy to compel public officers, and private individuals, in matters relating to the public, to perform their public duties;, a remedy to enforce the performance of an official act-by a public officer; a proceeding to command the performance of an act which the law has specifically enjoined upon an individual or official board; a proceeding to compel an officer to act in accordance with required construction of a statute or show cause to the contrary; and a proceeding to compel the exercise of discretion but not to control it.

If a public officer or board refuses to perform a duty which is imposed upon him or it by law, as is respondents’ duty in the case we review, a party who is entitled to have such duty performed, as is relator in the case we review, has no adequate remedy at the ordinary course of law unless there is some legal remedy other than mandamus, as there was not in such case to compel respondents to perform in effect the specific act which the law requires them to perform. See State, ex rel. Merydith Construction Co., v. Dean, Aud., 95 Ohio St., 108, 116 N. E., 37.

By the action in mandamus relator did not seek to control the discretionary power of respondents, which can not be done by an action in mandamus. Rather he sought to compel them to exercise their discretionary power, and this they can be compelled to do by an action in mandamus.

Acting as he did, under the facts and the law applicable thereto, the trial judge did not err to respondents’ prejudice in granting “an alternative writ of mandamus against respondents,” as is urged in this appeal.

Now we come to dispose of respondents’ contention that the trial judge erred to their prejudice “in ruling that the mayor of the village has no power to temporarily suspend a village policeman.”

“The mayors of villages have only .such jurisdiction, power and authority as is given them by the General Assembly of Ohio.” Ex Parte Joseph Rhein, 26 N. P. (N. S.), 325, 327.

“The mayor of a municipality cannot suspend or remove another officer thereof in the absence of authority duly conferred by statute or ordinance for such purpose.” 28 Ohio Jurisprudence, 324, Municipal Corporations, Section 190.

“Pending any of such proceedings [for removal of relator], such person may be suspended by a majority vote of all members elected to council, but such suspension shall not be for a longer period than fifteen days, unless the hearing of such charges is extended upon the application of the accused, and in such event the suspension shall not exceed a period of thirty days.” Section 4265, General Code.

For appointment, preferment and hearing of charges, and removal of police officers and marshals of villages see Sections 4263, 4264, 4265, 4384" and 4384-1, General Code.

In our opinion, respondent Baldine had no power to suspend relator when he did, and, therefore, the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Griffith, J., concurs in opinion.

Hurd, J., concurs in judgment.

PItjrd, J., of the Eighth Appellate District, sitting by designation in the Seventh Appellate District.


author: Doyle, J.

text:
    Dollar Savings & Trust Co., Appellant, v. Sydah, d. b. a. Sydah Vending Co., Appellee.
    (No. 4211
    Decided December 12, 1951.)

      Mr. Richard B. Wills and Mr. Harold L. Infield, for appellant.

      Mr. Harry F. Clarke and Mr. Duane W. Alexander, for appellee.
   Doyle, J.

In this action in replevin, instituted by the Dollar Savings & Trust Company against one George Sydah, doing business as the Sydah Vending Company, the Court of Common Pleas of Summit County determined by its judgment that “the right of property and the right of possession at the commencement of the action” of four automatic coin-operated music machines was in the defendant, Sydah.

There is evidence tending to prove that the plaintiff bank held a chattel- mortgage on a number of the music box machines owned by the G. I. Music Com-, pany, and the debt secured by the mortgage was in default for payments. The defaults arose because of the inability of the mortgagor to sell a sufficient number of its music machines to make a profit. In view of these circumstances, it was agreed between the bank and the financially tottering Music Company to have the instruments moved from Youngstown, Mahoning county, Ohio (the place where the mortgage was filed and recorded), to Cleveland, Cuyahoga county, Ohio, where they would be offered for sale. This was done, and they were displayed for sale to the general public.

The defendant, George Sydah, as a part of the general public, without notice or knowledge of the Ma-honing county recorded mortgage, purchased four of the machines off of the sales floor in Cleveland from the Music Company and paid the full price for the merchandise.

Pursuant to further financial difficulties of the Music Company and further delinquency in its loan to the bank, the present suit in replevin was instituted by the bank against the buyer, Sydah, and the claim for recovery was predicated upon the chattel mortgage held by the bank.

We find from the record sufficient evidence to justify the ruling of the trial court that the right of property and the right of possession was in the defendant, Sydah, at the commencement of the action.

In concluding this phase of the case, we agree with the trial court in its declaration that the bank “gambled” with the Music Company that it “would do nothing wrong” and placed it “in a position to sell to an innocent purchaser for value”; and that, ‘ ‘ as between the bank, the one who put it in the hands of the other to defraud,” and Sydah, the innocent party, “the innocent party should prevail # * *.”

Continuing now to the second phase of the case, we find that the court awarded to the defendant damages in the amount of $1,000.

In view of the fact that a redelivery bond was furnished, the merchandise never left the possession of the defendant, and apparently no damage for loss of possession of the machines ensued. It thus appears that the court awarded damages for the following items, set forth and requested in the defendant’s motion: expense of travel to New York and elsewhere of defendant’s attorneys, stenographic fees in connection with depositions taken by the defendant, fees charged by two attorneys in connection with their representation of the defendant in the litigation, and the cost of a redelivery bond.

Are these items of expense of the defendant legitimate elements of damage under the statutes?.

By the common law, if the plaintiff in replevin did not prevail in his suit, the defendant had judgment for a return of the property; and by the statute of Westminster, 2 C. 2, the sheriff executing the writ of replevin was required to take pledges, not only for prosecuting the suit, but for a return of the property if a return should be adjudged. Whether the common law in this respect or the statute of Westminster ever prevailed in this state, we do not decide. Suffice it-to say that presently by our practice there may, under certain circumstances, be given a judgment for damages to the defendant in the same suit which he defends and wins in replevin. However, the Ohio statutes entirely govern such proceedings.

Examination of the statutes permitting damages in actions in replevin reveals none specifically controlling the present factual situation. As noted heretofore, the case was tried in a court of competent jurisdiction, and conflicting evidence presented; at the conclusion of the trial, the court, on the evidence, resolved the issues in favor of the defendant and entered its judgment accordingly. It will further be remembered that the defendant at all times was in possession of the property through the furnishing of a redelivery bond.

In the statutory action in replevin, the possession of property may be obtained before trial by the plaintiff if he furnishes a bond in compliance with Section 12056, General Code, “to the effect that * * * [he] will duly prosecute the action, and in case the judgment be against him, return the property taken or pay the value so assessed at the election of the defendant ; also pay the damages assessed for its taking, detention and injury, with costs of suit.”

If the defendant desires to keep or remain in possession of the property, he must furnish a bond in compliance with Section 12059, General Code, “conditioned that in case the judgment be against him, he will return the property taken or pay the value assessed, at the election of the plaintiff, and also pay the damages assessed for its taking, detention and injury, with costs of suit.”

In the case before us, both bonds were furnished and the property was- not moved from the possession of the defendant.

In connection with the statutes noted above, there must be considered Section 12060, General Code, which provides for an action against the bondsmen for damages growing out of the successful party’s interest in the property occasioned by his loss of the property or its possession: “for its detention, including all profits, direct or indirect, which the defendant or plaintiff as the case may be, derived from or through such property.”

Other provisions of the Code provide for the recovery of damages under certain circumstances. For instance, Section 12069, General Code, is - as follows : “When the property is delivered to the plaintiff, or remains in the hands of the sheriff, as hereinbefore provided, if, upon issue joined, the jury finds for the defendant, they also shall find whether he had the right of property, or the right of possession only, at the commencement of the suit. If they find either in his favor, they shall assess to him such damages as they think are* proper, for which, with costs of suit, the court shall render judgment in his favor.”

The instant case cannot be governed by this section in an award of damages, because the recovery mentioned is predicated upon property having been delivered to the plaintiff or else placed in the hands of the sheriff.

It is claimed by appellee that Section 12067, General Code, permits the award of damages under this factual situation. This section is as follows:

“When judgment is rendered against the plaintiff on demurrer, or he fails to prosecute his action to final judgment, on application of the defendant, the court shall assess to him proper damages, including damages for the right of property or possession, or both if he proves himself entitled thereto, or cause it to be done by a jury, for which,, with costs of suit, the court shall render judgment for the defendant.”

As appears in the brief: “Counsel [for appellee] interprets this to mean that if the action is not prosecuted to final judgment in favor of the plaintiff, damages shall be allowed and assessed.” Of course, this is not what the Legislature said, and this court cannot read something into a statute which pronounces an unequivocal rule which would extend the statute’s application to an entirely different factual situation. The words “demurrer” and “failure to prosecute an action to final judgment” have definite legal meanings. In the instant case, there was no failure to prosecute the action to final judgment. It was prosecuted to the very end — in fact, to the judgment in favor of the defendant, from which the present appeal was taken.

It is the conclusion of this court that there is no law in this state which permits an award of damages of any kind in an action in replevin which is prosecuted to a final judgment in favor of the defendant, where the property remained at all times in the possession of the defendant by virtue of the giving of a redelivery bond. This being so, whether attorney fees and other expenses may be considered as an element of damage in a proper case, we do not decide. On the general subject of attorney fees as an element of damage, reference is made to “Editorial Notes” in 15 University of Cincinnati Law Review, 313. And it may be, as stated by the author (at p. 319), that there is a defect “in the American System of justice which needs a remedy, * * # by the legislatures. ’ ’

Deciding specifically the claimed erroneous award of damages, we conclude that it was prejudicially erroneous to the appellant. The judgment will therefore be affirmed in part and reversed in part.

Judgment affirmed in part and reversed in part.

Hunsicker, P. J., and Stevens, J., concur.


author: Thompson, J.

text:
    Schmotzer, a Minor, Appellant, v. Sixt, a Minor, et al., Appellees. Schmotzer, Appellant, v. Sixt, a Minor, et al., Appellees.
    (Nos. 22326 and 22327
    Decided February 18, 1952.)

      Messrs. Enclress <& Endress, for appellants.

      Messrs. Bulhley, Butler & Rini, for appellees.
   Thompson, J.

The two companion cases before this court on appeal on questions of law were tried at the same time to the trial judge and jury in the Common Pleas Court. One case involves a suit by a minor, by his mother and next friend, to recover for personal injuries suffered when thirteen years of age and while riding a bicycle; the other suit is by the mother in her own behalf for loss of services and for expenses. Defendants in each case are a minor and his mother, the minor being the operator of a motor vehicle with which the minor plaintiff collided. A separate verdict was returned in favor of defendants in each case and a judgment in accordance therewith was thereupon rendered by the court.

Various errors are alleged in this court, the principal errors asserted being misconduct of the jury, misconduct of the prevailing parties, and error of the trial court in overruling a motion for new trial in each case, based on the 'alleged misconduct, and other claimed errors.

We have examined the record in these cases with care. It becomes unnecessary to discuss the facts relating to the accident itself. Important, so far as alleged misconduct of the jury and of the prevailing party in each case is concerned, is the fact that during the course of the trial, which commenced on J une 13,1951, a view of the premises by the jury was requested by defendants’ counsel, and such view was granted by the ' court pursuant to Section 11420-2, General Code. Upon return of the jury from a view of the premises on June 15th, the bill of exceptions shows no exceptions taken by the parties to any events transpiring on that occasion. It appears, however, from various affidavits filed by attorneys for plaintiffs in connection with their motions for new trials, that certain events occurred during the inspection of the premises, to which we are required to give attention.

At the hearing of - the motion for new trial in each case, the bailiff in charge of the jury testified that at the scene of the accident counsel for plaintiffs in the presence of counsel for defendants complained that the minor defendant was talking to the jurors. The bailiff then stated:

“So I went up and I told the defendant he cannot speak to the jury: told him that was orders from the court, and thén I asked jurors No. 1 and 5 if he had talked to them and they says he did but they paid no attention to him.

“Q. But they did say he had talked to them? A. Yes, but they paid no attention to him; didn’t know what he said.”

The bailiff stated also that these facts were made known informally to the trial judge in his chambers by counsel after return from the view of the premises. No cross-esamination of the bailiff was had.

An affidavit of juror Bridget Murray was also presented at the time of the motions for new trial, in which the juror stated that while viewing the premises she overheard the minor defendant remark to his mother, the second named defendant, that “they are trying to prove that I was cutting this way instead of out further. ’ ’

A deposition of the defendant, mother of the defendant minor, was also introduced in evidence to substantiate further the motion for new trial, in which she stated that her son did not speak to members of the jury while viewing the premises. She stated that her son was talking to her and not to the jury at the time of the remarks complained of. The deposition of the minor defendant, also offered in evidence for purpose of the motion for new trial, denied that he talked to the jury at the scene of the accident. The testimony of juror Henry Woloszynek was also offered. This juror, when asked whether defendants talked to him during inspection of the premises, replied: “they did talk to some one. They didn’t talk to me.”

The affidavit of juror Yiola Riedel was also offered, and in this affidavit she declared that at the time of viewing the premises she overheard the minor defendant say “this is where it happened.” She testified also that defendant, in making the remarks quoted, pointed to a spot around the bend in the road. The witness declared further that she heard the bailiff instruct the defendant not to talk to anyone, and that the bailiff at the same time cautioned the jurors not to talk to the defendant. Affidavits of both attorneys for plaintiffs were also submitted, stating that the jury was talked to by the defendant at the scene of the accident, that both attorneys at once called the bailiff’s attention thereto, and that the bailiff immediately instructed defendants and the jurors to refrain from speaking to each other.

We have recited substantially the entire evidence before the trial court on this phase of alleged misconduct relating to conversations (by the minor defendant at the scene of the accident. This court is committed to the well recognized principle that the verdict of a jury is not to be impeached except by evidence aliunde. Wicker v. City of Cleveland, 150 Ohio St., 434, 83 N. E. (2d), 56. The extent of this principle was discussed by this court in a recent case. Hutchinson, Admx., v. Laughlin, Jr., 90 Ohio App., 7, 102 N. E. (2d), 875, a decision referred to by counsel in argument. That case appears to us inapplicable to the circumstances outlined, since any misconduct at the time of the viewing of the premises was that of the defendant and not that of the jurors. The remarks of the minor defendant, whether for the benefit of the other defendant or for that of the jurors, are in no sense to be approved. His conduct was wholly improper and it emphasizes once more the necessity for utmost caution on the part of a trial judge and most explicit instructions by him in delivering a jury into the care of a bailiff in connection with any viewing of premises • authorized under Section 11420-2, General Code.

We are confronted with the question whether the conduct recited on the part of the minor defendant requires, without more, that a new trial be granted in these eases. In deciding that question, we note that all the circumstances transpiring at the scene of the accident were known to counsel at the time. The bill of exceptions discloses the point at which the court adjourned on the third day of the trial in order to permit the jury to visit the scene of the accident. When court resumed, the bill of exceptions is silent as to any incident during the visit to the premises. We would not now, as a reviewing court, have any information as to what transpired at the scene of the accident were it not for the motions for new trials and the testimony there introduced. That testimony discloses that the circumstances first formally complained of at the time of the argument of the motions for new trials were previously reported to the trial judge informally by counsel, upon return from the scene of the accident. No formal exception, however, was taken by counsel for plaintiffs at the time. Can counsel now formally urge in this court misconduct of one of the parties, where no exception was entered in the record when the irregular incident occurred? It is unnecessary for us to decide here whether the testimony might have warranted the declaration of a mistrial or whether a motion for withdrawal of a juror, if immediately requested, should have been granted. We find that any error was waived by failure to make formal objection at the time. On this point, see 30 Ohio Jurisprudence, 65, “New Trial,” Section 31, as follows:

“Misconduct of a party and Ms counsel during the progress of the trial, if deemed prejudicial by the opposite party, and known to him when it occurs, should be brought to the attention of the court at the time it is observed; it is too late to urge it for the first time upon a motion for a new trial.”

In Roos-Meyer-Hecht Co. v. Ball, 12 Ohio Law Abs., 619, during a. view of the premises, one of the employees of the defendant made certain demonstrations for the benefit of the jury. Although counsel called the alleged misconduct of the employee to the attention of the court, no formal objection was made and counsel for plaintiff proceeded with their case. A motion for new trial subsequently urged by counsel for plaintiff, citing misconduct by the defendant, was overruled. The Court of Appeals of the Second Appellate District commented with reference to the failure of counsel for plaintiff to object to the misconduct at the time of the occurrence, as follows:

“* * * With full knowledge as to what had transpired, if they desired to rely upon this misconduct of the jury, they should then have asked the court to withdraw a juror. In other words, counsel, with full knowledge of what had transpired could not take a chance upon a verdict of the jury and when this chance turned out to be unfavorable, then complain of such misconduct upon the part of the jury. The misconduct of the jury was waived by counsel by proceeding with the trial of their case.”

See, also, Newport & Cincinnati Bridge Co. v. Jutte, 6 C. C. (N. S.), 189, 17 C. D., 541, affirmed in 74 Ohio St., 442, 78 N. E., 1133.

Other grounds of misconduct’were urged upon the trial court in argument of the motions for new trial. These errors appear to us more substantial,' and, in order to appreciate their seriousness, it becomes essential that we examine further into the facts with reference to the verdict rendered in the first case at about 4:15 in the afternoon of June 20th, and the verdict rendered in the second case at about 10:30 o ’clock the next morning.

Examination of the court’s charge to the jury shows that both cases were submitted to the jury at the same time, and that proper forms of verdict covering each case were delivered to the jury. When the jury returned in the late afternoon with the verdict in the first of the two cases, that of the minor for his personal injuries, counsel for the parties were not present in court and the only party present was the minor defendant. The trial judge received the verdict of the jury. The testimony subsequently introduced at the hearing of the motions for new trial reveals that the trial judge, in accepting the verdict in favor of defendants in the suit for personal injuries, announced the result and then suggested that the minor defendant might like to thank the jury, which he then proceeded to do.

The court obviously was either not aware’that verdicts had not been returned in both cases, or forgot that two cases had been submitted to the jury. The judge made no inquiry about the second case. As the jurors left the court room they met the minor defendant in the hall and there ensued considerable conversation between the minor defendant and several members of the jury. The deposition of the minor defendant, introduced on the hearing of the motions for new trial, admitted that he conversed with the jurors in the corridor of the court house after the verdict, although he denied having made some of the statements attributed to him in affidavits of the jurors. According to the affidavit of one juror, defendant was asked where the wheels of his motor vehicle were with respect to the left edge of the pavement, a matter as to which there had been conflicting testimony. The minor defendant gave information on this point according to the affidavits of at least two of the jnrors. The affidavit of one of the jurors also alleged that the defendant was interrogated as to whether there was insurance and that defendant stated there was insurance and that his insurance company had paid all the plaintiff’s medical and hospital bills. The affidavit of one of the jurors further stated that subsequently on the courthouse steps, as they were leaving the courthouse, two of the jurors were offered a ride by the minor defendant. Counsel for defendants have urged that no harm was intended by this latter act. This invitation by defendant, however intended, and the conversation of jurors and the defendant while the second case remained undecided constituted misconduct on the part of defendant, conduct prejudicial to plaintiff’s rights to a fair trial, in view of the fact that no verdict had yet been rendered in the second case.

That the court and the jury were under the possible misapprehension that the second case had been decided when the court dismissed the jury cannot cure this error clearly prejudicial to plaintiff’s rights in the second case. Since the verdict had already been rendered in the first case, the discussions of the minor defendant with the jury could not affect- the case already decided and we therefore find no error in the trial court’s overruling of the motion for new trial in the suit for injuries by the minor plaintiff.

As to the second case, the trial court abused its discretion in overruling the motion for new trial. The glaring nature of the misconduct in this case is manifest when we note that the trial court, upon discovering that the jurors had failed to reach a verdict in the second case, sent them back to the jury room the next morning to consider a verdict, and that they deliberated for an hour or an hour and a half before reaching a verdict in favor of defendant in the suit by plaintiff’s mother for loss of services and for expenses. There is nothing in the record to indicate that the jury had in fact reached a verdict .in the second case on the previous day, and we can only assume from the absence of further instructions by the court that the jury in fact deliberated and rendered its verdict in the second case the next morning, as stated in the affidavits and as shown by the transcript.

It is to be noted that the affidavits of jurors presented at the motion for new trial were supplemented by independent testimony on the part of defendant himself with respect to his misconduct. We, therefore, do not have here a case of attempted impeachment of a verdict of a jury by evidence of • its own misconduct in the jury room. We have a case of misconduct on the part of the prevailing party. Some of the jurors may have thought that they had disposed of both cases when they asked the defendant questions in the corridor. Whether, however, the misconduct be considered that of the party alone or misconduct also of the jury, the testimony of defendant furnished such evidence aliunde of improper and detrimental conversations as to establish misconduct prejudicial to plaintiff in the second case. The trial court should have considered the testimony sufficient' to require the granting of the motion for new trial in the second case.

In Hutchinson, Admx., v. Laughlin, Jr., supra, this court recently declared as follows:

“* * * we reaffirm the wisdom of the rule against impeachment of the verdict of a jury by testimony of one. of its members, unless corroborating testimony is produced from sources other than the deliberations in the jury room.”

The instant facts present the corollary of the proposition.' The testimony of jurors may be considered and the jury verdict impeached where there is corroborative testimony of misconduct by litigants or jury from sources other than the deliberations in the jury room.

Counsel for defendant have suggested that the judgment in the second case for loss of services should be affirmed on the score that the judgment in favor of defendant in the first case necessitated a finding in favor of defendant in the second case. We do not understand this to be the law. The verdict of the jury in the first case may have been reached because of sole negligence of plaintiff, because of contributory negligence of plaintiff, ,or because the jury found neither party negligent. The plaintiff in the second case, in her suit for loss of services, was entitled to have her case considered on its own merits.

See 39 American Jurisprudence, 728, and cumulative supplement (1951 Pocket Parts) declaring as follows:

“A parent, in an action brought to recover for the expenses incurred, loss of services, etc., as a result of injuries to his child, is not bound upon the theory of res judicata, by the determination of negligence made in an action for the benefit of the child in which the parent appeared as next friend.” See, also, Annotation in 133 A. L. R., 201, 202.

In view of our conclusion that the failure of the trial court to grant a motion for new trial in the second case on the ground of misconduct of the prevailing party amounted to an abuse of discretion and our decision to reverse and remand the case with instructions to grant the motion for new trial, it becomes unnecessary to discuss other errors raised by the plaintiff-appellant, with respect to the second case.

Judgment is affirmed in the case of Leonard T. Schmotzer, a Minor, v. Willis Edward Sixt, and in the case of Evelyn Schmotzer v. Willis Edward Sixt, the judgment is reversed for error of law In failing to grant the motion for new trial, and the case is remanded with instructions to the trial court to vacate the entry overruling the motion for new trial and for further proceedings according to law.

Judgments accordingly.

Skeel, P. J., and Hurd, J., concur.


author: Doyle,-J.

text:
    The State, ex rel. Lehner, v. Sullivan, Aud.
    (No. 4239
    Decided January 16, 1952.)

      Messrs. Herberich, Rowley & Taylor, for plaintiff.

      Mr. Alan D. Sophrin, city solicitor, for defendant.
   Doyle,-J.

This is an action in mandamus, brought originally in this court, in which the plaintiff asks for an order against the auditor of the city of Cuyahoga Palls, Ohio, requiring him to issue a salary voucher to the relator herein, in payment of claimed salary for the office of director of public safety of the city, for a period of time during which the relator was on ‘ ‘ leave of absence” from his official duties.

There is little dispute in the facts, and none of consequence in relation to those facts which must control the judgment to be here entered.

Relator, Frank C. Lehner, was, on January 1, 1950, appointed to the office of director of public safety of the city of Cuyahoga Falls, Ohio, under authority of Section 4367, General Code.

On June 10, 1950, he directed a letter to the mayor of the city (the appointing authority), in which he described certain public “charges and countercharges” resulting from his investigation and activities in connection with vice conditions in the city. He stated: “by the trend and nature of the tactics employed by this known gambler and his associate, and with their deliberate attempt to smear and damage my personal reputation, as well as the city of Cuyahoga Falls, I feel that pending this litigation * * * I should be relieved of my duties as safety director until such time as the true and honest facts are developed by my attorney.” The letter continued by relating his official work against vice conditions, and then concluded as follows: “In the interest of the public, until the true facts are known, I respectfully and sincerely request that I be relieved of my duties in order that I may give my full time to making the true facts known.”

On the same day — June 10, 1950 — -the mayor responded as follows: “I concede in your wishes to relieve you of your duties as safety director of the city of Cuyahoga Falls, temporarily. The acceptance of your request does not in any way infer misconduct on your part. On the contrary, and after a personal survey, it is my opinion that you have done a difficult task well. * * * I shall assume your duties, temporarily, until you have had the opportunity to bring out the truths in your antigambling campaign.”

On December 28, 1950, the mayor wrote the relator as follows: “The outcome of the recent trials has certainly vindicated you of any influence of misconduct. I have always retained confidence- and respect for your administration of the office of safety director. -We are coming into a new year. Is have been happy to ‘carry on’ while you have been on ‘leave.’ However, it is my personal wish that I be informed of your intentions to return on a more active status. If you wish more time, I shall, of course, grant a reasonable extension. What are your wishes in the matter? Please advise me as early as possible as to your intentions,”

On December 30, 1950, the relator replied to the letter of the mayor. He expressed appreciation for the “leave of absence” and asked for an additional 30-day leave. The “leave” was granted.

On February 7, 1951, the relator, not having resumed his duties at any time, sent to the mayor a formal notice of resignation, which, on the following day, was formally accepted.

On June 18, 1951, the relator, through counsel, demanded payment of his salary from June 10, 1950, to February 8, 1951.

It appears to be factually established that: if the nelator is entitled to be paid, it should be in the amount of $1,391.24, as fixed by municipal law; the city auditor is authorized to issue warrants for the salaries of department heads, including that of safety director, with the countersignature of the city treasurer; relator’s bond was not cancelled until the acceptance of his resignation on February 8, 1951; during the period for which salary is demanded, no one was appointed to perform the duties of director of public safety, and no salary for the office was paid to anyone; and whatever work was performed in this connection apparently was done by the appointing authority — the mayor himself.

As heretofore noted, the action before us is in mandamus. On the authority of State, ex rel. Clinger, Pros. Atty., v. White et al., County Commrs., 143 Ohio St., 175, 54 N. E. (2d), 308, we entertain the case on its merits?

The office of director of public safety in the city of Ouyahoga Falls is a public office, and the holder thereof is a public officer. The salary, legislated by council to be paid the office, is fixed in amount.

We do not disagree with the following genóral principle :

“* * * The right to the compensation attached to a public office is an incident to the title to the office and not to the exercise of the functions of the office; * * * the fact that officers have not performed the duties of the office does not deprive them of the right to compensation, provided their conduct does not amount to an abandonment of the office.” 46 Corpus Juris, Officers, Section 233.

See, also, 67 Corpus Juris Secundum, Officers, Section 83; 43 American Jurisprudence, Public Officers, Section 379.

However, as shown above in the statement of facts, the relator voluntarily withdrew from his official functions, for reasons that were entirely personal to him. His subsequent conduct amounted to, in fact, a permanent relinquishment of his office through his formal resignation at the end of the term of the “leave of absence. ’ ’

Under these circumstances, we recognize an exception to the general requirement for payment of the salary of a public officer, and we agree with the late decision (1945). of the Court of Appeals of New York in a similar case. The court said:

“As matter of conceded fact, the withdrawal by the plaintiff from his official functions was at his own request and for reasons that were entirely his own. It is not possible to read into that arrangement a stipulation that the payments theretofore made to the plaintiff from public moneys would be kept up for the duration of such outright relinquishment by him of his office. Whatever right he had during that intermission was manifestly not a right to salary. ” Hirschberg v. City of New York, 294 N. Y., 55, 60 N. E. (2d), 539.

Judgment for the defendant.

Hunsicker, P. J., and Stevens, J., concur.


author: Metcale, J.

text:
    Culwell, Admr., Appellee, v. Brust, Appellant.
    (No. 144
    Decided June 21, 1949.)

      ■ Mr. Frank DeLay and Mr. M. M. Carlisle, for ap-pellee.

      Mr. Harry B. Reese and Messrs. Benoy & Sebastian, for appellant.
   Metcale, J.

Plaintiff’s decedent, Willard Culwell, a boy approximately six and two-thirds years of age at the time of his death, was a pupil in Beaver Rural School District, Jackson county, and was being conveyed from the school to a point near his home in a school bus owned, operated, and driven by the defendant under contract with the board of education as provided by law.

The bus was being driven in an easterly direction along state route No. 124, when it stopped on its right or the south side of the traveled portion of the highway for the purpose of discharging decedent and six other pupils, four of-whom lived on the south side of thp road. The decedent, his brother, and another pupil lived on the north side of the highway. Decedent ’s' brother and the one other pupil passed in front of the bus to the north side of the highway while the bus was in a standing position. The decedent started around the bus to the south or right side of the highway with the other, four pupils who lived on that side and disappeared from the view of the defendant, who thereupon closed the door of the bus and started it in a forward direction. The record indicates that at such time plaintiff’s decedent was behind the bus, perhaps pushing thereon, and that, when the bus reached a place opposite decedent’s companions who had crossed the road, decedent started to cross. While crossing the road he was struck by an automobile approaching the bus from the opposite direction. From the injuries received, Willard Culwell died within an hour or so.

Fred Culwell, the father of the boy, acting in his fiduciary capacity, brought this action in the Court of Common Pleas against the bus driver for wrongful death. A jury was waived, a trial was had, and judgment was rendered in favor of the plaintiff for the benefit of the heirs at law and next of kin of the decedent in the sum of $4,000, from which judgment this appeal on questions of law was perfected.

All counsel agree, and this court is in accord, that the only question involved in this appeal is whether the defendant, as shown by the record, was negligent in a respect which contributed to or proximately caused the injuries resulting in the death of plaintiff’s decedent. Simplifying the proposition further, was the act of the defendant, in starting the bus in the face of oncoming traffic, actionable negligence, when he knew, or in the exercise of ordinary care should have known, that plaintiff’s decedent had not yet crossed the highway to his home side thereof.

The statutory provision applicable here is Section 6307-73, General Code, which reads:

“The driver of a vehicle, when approaching the front or rear of a school bus that has come to a stop upon a highway outside the limits of a municipal corporation, while in the act of receiving or discharging any school child shall stop such vehicle not less than ten feet from such school bus and keep such vehicle stationary until such child has entered said bus or has alighted and reached the side of such highway. No school bus driver shall start his bus until after any child loho may have alighted therefrom shall have reached a place of safety.” (Emphasis supplied.)

While in conflict, the record discloses ample and sufficient evidence to establish that the oncoming car which, struck the child was in plain view of the defendant bus driver when the bus was placed in motion. It is clearly established also that the bus driver knew the. decedent had not crossed the highway with his older brother and the other pupil. The driver of the ill-fated car which struck decedent testified that when he was within approximately 540 feet of it he saw the standing bus, the children on both sides of the road, and one or two children just leaving the bus; that,he was traveling at a speed of 35 miles per hour; that he slackened his speed to approximately 20 miles per hour and prepared to'stop; that when .he was within approximately 140 feet of the bus, the defendant started it; and that he proceeded to pass the bus at a point approximately 40 feet from where it had been standing. The distance the bus-had traveled is fixed by the bus driver as being somewhat farther.

In Tipton v. Willey, 47 Ohio App., 236, 191 N. E., 804, a case decided by this Court of Appeals on January 29, 1934, it was held:

“The driver of a school bus, who discharges a six year old pupil from the bus and permits him to step into a dangerous lane of traffic, without warning him of such danger, cannot be said as a matter of law to be free from actionable negligence. ’ ’

This court, as then constituted, speaking through Máuck, J., in the course of the opinion at page 240, said:

“Here was a child too young to appreciate the hazards of crossing the highway. He was too immature to be charged with negligence himself. The defendant was increasing his peril by requiring him to leave the safety of the bus at a point unnecessarily remote from the plaintiff’s home. The child was required to cross the roadway. There were moments when this could be done with safety. There were other moments when to step into the path where traffic flowed meant serious, perhaps fatal injury. The boy himself was incapable of picking out the periods of safety from the periods of danger. Some one had to do that for him, and we find that the bus driver was such person. It was negligent for such driver to direct the boy to alight, and to afford, him the opportunity to step in front of approaching traffic, without exercising ordinary care to ascertain whether the way was safe or not and advise the child accordingly.”

These words are as applicable today, in the instant case, as they were when written. Here, too, was a child in' his first term of school and slightly more than six years old running around behind the bus to cross the highway when he should have been crossing in front of the bus. The defendant admits he knew of this situation; nevertheless, he started the bus. Starting the bus was a signal for other traffic to proceed, Such signal being acknowledged by all vehicular traffic and being justified under the terms of the above-quoted statute. The starting of the bus under the circumstances then existing is the “pole star” of this case. It is difficult to conceive of anything that could have been more dangerous than for the defendant to place the bus in motion when traffic was approaching, before this child had “reached a place of safety.” This defendant will not be heard to say that he did not see the approaching car, or that it was not in view when he started the bus, because the physical evidence establishes the contrary. If defendant had looked he would have seen the approaching car. If he did not see it he did not look and in either event he was guilty of negligence in starting the bus. Such negligence directly contributed to the proximate cause of the injury and death of plaintiff’s decedent. So long as the bus remained standing, all traffic was stopped by reason of the statute, but the moment the bus started this statutory safeguard, enacted for the purpose of protecting school children, was of no avail. Willard Culwell was a mere child in no way capable of appreciating the danger of crossing the highway. One moment before his fatal injury the crossing was safe, and the next instant his attempt to cross resulted in his death. What changed this situation? Not vehicles upon the highway which were obeying the law hereinabove quoted, but the signaling of the bus driver that all was clear by his act of starting the bus. This court cannot distinguish between the instant case and the Tipton case so far as the negligence which put in motion the force that caused the injury and death is concerned.

The defendant had discharged this child from this bus many times before; he knew where the child lived, and that he must cross the road at the place where the bus stopped in order to reach a place of safety. The words, “place of safety,” used in the statute cannot, under the facts in the instant case, be construed as covering the whereabouts of this child at the time the bus was put in motion.

By whatever name it may or should be called, the degree of care required in the instant case on the part of the defendant was of such nature that he was forced to take into consideration the childish instincts and impulses of this boy.

Complaint is made that plaintiff was erroneously allowed to amend his petition at the close of all the testimony. The amendment, in the opinion of this court, was in line with the evidence adduced and, further, the petition as filed substantiates the relief sought.

The trial court made a separate finding of fact and conclusion of law: which this court has carefully examined and believes to be substantiated by the record. That court sitting as a jury was the sole judge of the facts and the credibility of the witnesses, and under the state of the record a reviewing court cannot disturb that finding.

We have carefully examined and considered all the assignments of error and find none of them well taken.

Accordingly, the judgment is affirmed.

Judgment affirmed.

McCurdy, P. J., and Gillen, J., concur.


text:
    The State of Ohio, Appellee, v. Lovely et al., a Partnership, d. b. a. Lovely & Brell Lumber Co., Appellants.
    (No. 4401
    Decided June 7, 1950.)

      Mr. Herbert 8. Duffy, attorney general, and Mr. Charles T. Kays, for appellee.

      Mr. Clinton D. Boyd, for appellants.
   Hornbeck, J.

This is an appeal from a judgment in favor of the plaintiff ag’ainst the defendants, based on an award in favor of Floyd Shouse. The defendants did not carry workmen’s compensation insurance but it was the claim of the state that they were amenable to the provisions of .the Workmen’s Compensation Act because they had three employees regularly employed in their business. The award made to Shouse was based upon his claim that he received an injury by having one of his hands amputated while working on a planer in a lumber yard operated by the defendants, and that the injury arose out of and occurred in the course of his employment. The defendants asserted .that they did not regularly employ three men in their business and that the injury which Shouse suffered did not occur in the course of his employment.

The cause was tried to a jury. The award of the Industrial Commission was offered in evidence, after which the defendants produced their testimony and the state produced its testimony. Upon submission of the cause, the jury returned a verdict for the plaintiff in accord with the award made by the Industrial Commission.

Defendants moved for a judgment notwithstanding the verdict and, that being overruled and judgment entered on the verdict, moved for a new trial, which, also, was overruled. On appeal to this court, nine errors are assigned.

' Except as to assignments Nos. 6 and 8 we are satisfied to say, without discussion, that they are not well made. Seven of the assigned errors were discussed Tby Judge Leach in his opinion overruling the motion for judgment non obstante veredicto, and we are in accord with his conclusions and reasons therefor. See State v. Liff, 86 Ohio App., 396, 87 N. E. (2d), 917.

The sixth assignment of error is that the court erred in refusing to give special request No. 4 before argument, as requested by defendants, and the eighth assignment is that the court erred in overruling the motion of the defendants for a new trial. If assignment No. 6 is well taken, so, also, is assignment No. 8.

Defendants’ requested special instruction No. 4 is:

“The court charges you that if Floyd Shouse was injured while operating a planing machine, which was no part of his duties and against the express order or orders of his employer, the defendants are not liable and your verdict must be for the defendants. ’ ’

If this charge embodied a correct statement of the law applicable to a material issue in the cause, it was prejudicial error for the trial judge to refuse to give it to the jury. Chesrown v. Bevier, 101 Ohio St., 282, 128 N. E., 94.

William Lovely, one of the partners, testified that Shouse’s duties were to keep lumber back, probably meaning from'the end of the planer opposite the cutting tool, and to load, unload and truck lumber. John Brell, the other partner, said that when Shouse went to work for the partnership “he was hired for just one thing, trucking and hauling lumber, the planer costs — too much money is involved to have somebody run it that didn’t know how to operate it,” and that “he was never supposed to operate the planer.” Miss Brell said that shortly before the accident she heard her father tell Shouse not to use the planer.

The testimony of Shouse is in direct conflict with that of these witnesses.

It is the claim of the defendants that, assuming the testimony of these witnesses for the defense to be true, the jury could not find that Shouse’s injury arose out of or occurred in the course of his employment because the operation of the planer was not one of his duties, that he was hired for a specific purpose which did not require the use of the planer, and that he was expressly instructed not to use it.

The plaintiff asserts that the charge is ambiguous in that it might be construed to mean that the court was saying as a fact that the operating of the machine was no part of plaintiff’s duties.

In support of the refusal to give the charge, plaintiff cites Laudato v. Hunkin-Conkey Construction Co., 135 Ohio St., 127, 19 N. E. (2d), 898, the first paragraph of the syllabus of which is:

“An employee who receives an injury while engaged in doing work he is employed to do, during the course of which he violates rules of his employer dealing with the method or manner of performing the work, will, notwithstanding such violation, be deemed to have been injured in the course of his employment.”

The distinction between the cited case and the instant case is that here, upon the testimony of the defense, the employee when injured was not engaged in doing the work that he was employed to do. He did not merely violate a rule respecting the use of the planer; he disregarded the duties which he was engaged to perform.

In the Laudato case Judge Day recognized the right of an employer to limit and define the scope of employment of his workmen, and at pages 130 and 131 made this observation:

“A distinction must be drawn between rules which define the sphere of employment and those which merely direct the manner in which work within the sphere is to be done. ‘There are prohibitions which limit the sphere of employment, and prohibitions which deal only with conduct within such sphere. A transgression of a prohibition of the latter class leaves the sphere of employment where it was, and consequently will not prevent recovery of compensation. A transgression of the former class carries with it the result that the man has gone outside the sphere.’ 1 Honnold on Workmen’s Compensation, 390 et seq., Section 113.”

Here, if Shouse was employed only to truck and haul lumber, and there had been no change in the terms of the employment by permissive practice, he was outside the sphere of his employment if he operated the planer. We do not understand the expression, “sphere of employment,” to be so limited as to preclude such a holding. In the Laudato case, at the time of his injury the injured workman was engaged in the performance of a service clearly within the scope of his employment, although in so doing he may have been violating a rule of his employer. Here, upon the testimony of defendant’s witnesses, the employee, at the time of his injury, not only was violating an express instruction but was also engaging in an operation which did not arise from or occur in the course of his employment, which operation was not contemplated in the contract of employment.

The latest applicable case in Ohio is Georgejakakis v. Wheeling Steel Corp., 151 Ohio St., 458, 86 N. E. (2d), 594. The employee involved in that case, a common laborer whose principal duty consisted of transporting materials in and about the plant and sweeping floors of his employer, during a temporary, absence of an operator of a pressing machine attempted to operate such machine. In so doing, the fingers of his left hand were caught in the machine and severely injured. It is stated that some degree of skill and proficiency is required to operate a pressing machine, as is the case with a planer. The Supreme Court affirmed the judgment on a directed verdict for the defendant.

Judge Zimmerman, writing the opinion, on page 459, said:

“Here, the claimant was a laborer whose duties in and about the industrial plant where he was injured were limited in scope. When he voluntarily, deliberately and without authority or necessity stepped out of the orbit of his employment by attempting to operate the pressing machine — an undertaking altogether foreign to the work he was hired to do — he engaged in a pursuit and exposed himself to a hazard not contemplated by his employment as a laborer. His behavior constituted a material deviation and departure from his assigned tasks.”

Although Judge Hart dissented, he emphasized that: “Here, the claimant assumed without direction or authority the performance of work for which he had not been specifically employed. Neither had he been forbidden to operate the machine.”

In this latter particular the instant case is stronger in its facts than the cited case.

Outside Ohio an interesting case with facts analogous to ours is that of Eugene Dietzen Co. v. Industrial Board of Illinois, 279 Ill., 11, 116 N. E., 684, Ann. Gas. 1918B, 764. There are nine propositions in the syllabus, all of which are applicable to our question and might well be quoted, but to avoid undue length to this opinion we will not do so. That opinion is well written and can profitably be read.

The second paragraph of the syllabus of Industrial Commission v. Ahern, 119 Ohio St., 41, 162 N. E., 272, 59 A. L. R., 367, is:

“Under Section 35, Article II of our Constitution, and the law enacted pursuant thereto, the phrase, ‘in the course of employment,’ connotes an injury sustained in the performance of some required duty done directly or incidentally in the service of the employer. ’ ’

Unfortunately for the defendants, the charge, as framed, is ambiguous. The parenthetical phrase, ‘ ‘ which was no part of his duties, ’ ’ etc., if- given by the court, could have been construed as being an unqualified assertion that the operating of the planer was no part of the duties of Shouse and against the express order or orders of his employer. The charge should have clearly permitted the jury to resolve the disputed facts in a way essential to a verdict for the defendants.

The judgment is affirmed.

Judgment affirmed.

Miller, P. J., and Wiseman, J., concur.


author: Fess, J.

text:
    Heyman et al., Appellees and Cross-Appellants, v. City of Bellevue, Appellant and Cross-Appellee.

      (No. 618
    Decided July 2, 1951.)

      Messrs. Young & Young and Mr. F. J. Hilts, for appellees and cross-appellants.

      Mr. G. Ray Craig and Mr. Arthur W. Lee, for appellant and cross-appellee.
   Fess, J.

This is an appeal by defendant and cross-appeal by plaintiffs on questions of law from a judgment entered upon a verdict for plaintiffs in the sum of $2,500.

In their petition, after reciting that the defendant is a municipal corporation, plaintiffs make the following allegations:

“Plaintiffs further say that in 1945 the defendant purchased from them 9.137 acres of land from Lyme township, Huron county, Ohio, and erected thereon a reservoir which was part of a tract of land of about 143 acres; that the acquiring of such and the making of the reservoir was with the full knowledge of the city of Bellevue, and the method of building the same was not and is not known to these plaintiffs. That in connection with said work, and in addition thereto the defendant in 1946 placed a pipe line through plaintiff’s lands, and undertook to connect the plaintiff’s existing tile drainage system thereto, (1) but that defendant failed to complete and cover the pipe line, (a) and in violation of their agreement suffered and permitted the line to be open so that the land around the same washed aioay, and (3) the tile belonging to the plaintiffs fell down and the said drainage system has been so damaged that the entire farm has been depreciated in value in at least the sum of eleven thousand, dollars; that the defendant agreed and warranted that the use of said premises would not injure the residue of any of said property and that they would so build, maintain and construct the reservoir thereon and the pipe line aforesaid that the same would not ■ damage or injure the residue of the property of these plaintiffs.” (Italics supplied.)

Some confusion and error arising at the trial could have been avoided had plaintiffs been required to make the amended petition definite and certain.

The answer admits that in 1945 defendant purchased the land from plaintiffs and erected the reservoir on a portion thereof ;■ that in 1946, in connection with the construction of the reservoir, defendant placed a pipe line through a part of plaintiffs’ lands; and that in an easement granted by plaintiffs for the purpose of laying a 24-inch pipe line across a part of their lands, it was provided that defendant would compensate the plaintiffs for all damages occasioned from the construction and operation of said pipe line. Defendant expressly denies that the location, construction and maintenance of the pipe line occasioned any damage to plaintiffs, except for crops for which defendant bad offered to pay and for which payment was refused.

As we construe the petition, it seeks recovery of three separate items of damages as indicated in the italicized portion of the quotation from the petition. Over objection of the defendant, evidence was admitted tending to show damage" from water' flowing or splashing over the bank of the reservoir onto plaintiffs’ land. Although the evidence on this point was slight and would not support a finding thereon, it was not in support of any issue raised by the pleadings and should have been excluded.

Evidence was also erroneously admitted disclosing erosion and ruts extending down the bank of the reservoir.

Over objection, testimony was admitted also as to the condition and value of the land before and after the reservoir was constructed, tending to show that as a result of the construction of the reservoir, aside from the pipe line, damage was suffered and that the land depreciated in value.

Testimony was admitted relating also to the value of the entire farm of the plaintiffs before and after the construction of the pipe line and reservoir. A substantial portion of the farm lies north of the highway intersecting the farm, and there was no evidence indicating any possible damage to this portion of plaintiffs’ land. In the charge, the court excluded consideration of any claimed damage to the land north of the highway, but such exclusion came too late to cure the error incident to the admission of the testimony.

During the charge, the court undertook to comment upon the evidence, and in the course of his remarks regarding the disturbance of drainage interjected the phrase, “and this is dangerous, you watch it to see if I am right.” No doubt the court had in mind the danger of error in commenting upon the evidence, but the jury could well have been misled by the comment. The court also told the jury that if it found that water percolated through the reservoir upon plaintiffs’ lands, the measure of damages would be the difference in the value of the land before and after the percolation, The court also submitted to the jury the claim of the plaintiffs that they were damaged by the washing of water over the banks of the reservoir and flooding the lands.

It is the duty of the court to separately and definitely state to the jury the issues of fact made by. the pleadings, accompanied by such instructions as to each issue as the nature of the case may require. Simko v. Miller, 133 Ohio St., 345, 13 N. E. (2d), 914. Cf. Ribarin v. Kessler, 78 Ohio App., 289, 70 N. E. (2d), 107. Reference to the testimony in a charge is a delicate and difficult task to avoid giving undue prominence to part of the testimony, and, also, to avoid indicating to the jury the view of the court on a particular issue of fact. Juries are prone to catch the least note from the judge concerning his view of the issue; hence the importance of a correct statement of the testimony, where the court undertakes to give it, can not be exaggerated. Wuest, a Minor, v. Baltimore & Ohio Southwestern Rd. Co., 5 C. C. (N. S.), 619, 17 C. D., 365.

As to the amount, the verdict is manifestly against the weight of the evidence.

Assignments of Error on behalf of Plaintiffs as Cross-Appellants.

Plaintiffs sought to introduce evidence relating to the value of lands in the vicinity before and after the construction of the reservoir, to which objection was properly sustained. The testimony was inadmissible (1) because there is no claim asserted in the petition for damage resulting from the construction of the reservoir, and (2) even though it be made an issue, testimony regarding the value of land generally in the vicinity of an improvement is too remote to prove damage to a particular parcel of land.

Evidence tending to show that the pipe line was improperly laid on land adjoining plaintiffs’ property was also properly refused. Since this testimony was not in rebuttal, its exclusion was within the discretion of the court.

Plaintiffs also sought to introduce testimony that persons representing the defendant told one of the plaintiffs, prior to the sale of the land, that the reservoir would not harm or damage plaintiffs’ land. In the absence of a showing that the individuals in question had authority to make binding representations on behalf of the municipality, such testimony was not admissible. Furthermore, the parol evidence rule applies to deeds as well as other written instruments. Long v. Moler, 5 Ohio St., 272; Jones v. Timmons, 21 Ohio St., 596. There is no allegation that the alleged conversations related to an additional consideration for the deed. Cf. Ayres v. Cook, 140 Ohio St., 281, 43 N. E. (2d), 287.

Plaintiffs also' assign as error the rejection of articles in a Cleveland newspaper stating that the reservoir was kept only half full because the waves threatened the walls, causing them to break down. Such evidence is hearsay of the remotest character and its exclusion was proper.

Upon request, the court gave defendant’s special charge No. 3 to the effect that the mere construction and existence of the reservoir was not a basis for damage. Plaintiffs also assign as error the court’s instruction that plaintiffs were not entitled to recover for any claimed damage to their lands north of the highway. There was no evidence to support any such claim and the physical facts were such as to indicate no basis whatsoever for such a claim. Plaintiffs contend that the entire farm should be treated as a unit in determining and computing damages, analogous to the procedure in condemnation cases. .In appropriation proceedings it is well established that the landowner is entitled to compensation for the land taken and also damages, if any, to the remaining property or residue as a result of the taking. Whether the residue, consisting of several parcels or lots, was used for one common purpose, so as to constitute a single tract, is a factual matter for the jury. Deercreek Local Bd. of Edn. v. Payne, 86 Ohio App., 319, 88 N. E. (2d), 226. But in the instant case there was no taking of plaintiffs’ property. Plaintiffs, for a consideration in money, deeded some nine acres to the city in 1945, and in 1946 granted it the easement to lay the water line'. Whether there could be a claim for damage to the residue under such circumstances, no such claim was asserted in the petition. .

For errors prejudicial to the defendant, the judg- . ment is reversed, and the cause is remanded for a new trial.

Judgment reversed,.

Carpenter and Conn, JJ., concur.


author: Montgomery, J.

text:
    In re Adoption of Kane: Kane, Jr., et al., Appellants, v. Thorpe et al., Appellees.

      (No. 2485
    Decided February 19, 1952.)

      Mr. Robert Reed and Messrs. Amerman, McHenry, Jones & Morgan, for appellant petitioners.

      Messrs. Black, McCuskey, Souers & Arbaugh, for appellant next friend.

      Mr. J. B. Blumensteil and Mr. William J. Allen, for appellees.
   Montgomery, J.

This appeal to this court is from a denial by the Probate Court of Stark County of a petition by the individual appellants for the adoption of a minor child.

There is presented to us first a motion by the appellants to require the Probate Court to file as a part of the transcript, the next friend’s report of investigation provided for by Section 8004-5, General Code.

This next friend, appellant, was appointed by the Probate Court, under the provisions of Section 8004-4, General Code, and according to the representation made to us, filed the report of its investigation, as directed by Section 8004-5, General Code. A portion of this section provides:

“The reports of the investigation required by divisions (B), (C), and (D), shall not be filed with the other papers in the adoption proceedings, but shall be filed separately and shall be available for inspection only upon the personal direction of the probate judge. ’ ’

The writer of this opinion has just finished reading the recent volume by Roscoe Pound, entitled “Justice According to Law.” In the course of his discussion, directed primarily toward administrative agencies, he calls attention to the tendency “to make determinations on the basis of consultations with witnesses in private or reports not divulged.5 ’

This tendency on the part of administrative agencies has been extended to courts of domestic relations and juvenile courts. The tendency generally is deplored but not condemned by Pound.

Here the tendency, as in this particular kind of case, is carried into positive statutory law, and this law specifically provides, as quoted, that the report “shall be available for inspection only upon the personal direction of the probate judge.” We are not asked to hold this law unconstitutional. We are asked to order something done that the statute says need not be doné.

We suspect that nobody is prejudiced by the failure to submit this report because the agents and representatives of this service society testified, and presumably their oral testimony would be consistent with their report.

But, in any event, this report was not offered in evidence, and the record shows that there was no demand that it be produced in the Probate Court. Not being a part of the record in that court, there is certainly no authority on our part to order it made a part of the record.

The motion is overruled.

As to the facts in this case, we quote directly from the opinion of the probate judge, who has stated them clearly and consistently with the record, and we can not improve upon his statement. It is:

“Barbara Hantz married Donald Mohr August 14, 1948. (Barbara was then 16.)

“Barbara Hantz was divorced from Donald Mohr September 22, 1949, in Stark County, Ohio. No mention was made of the child, Michael.

“Michael Arthur Hantz was born in Cleveland, Ohio, December 24, 1949.

“Birth record shows Barbara Ann Hantz (age 17) as the mother and sole parent.

“Barbara Hantz married James Thorpe August 20, 1950.'

“Permanent surrender -was given to the Family Service Society and Children’s Bureau by the parents, James E. Thorpe and Barbara Hantz Thorpe, on September 29, 1950.

‘ ‘ The child was placed in the home of the petitioners on November 17,1950.

“Petition of Thomas and Ruth Kane to adopt Michael Arthur Kane was filed April 26, 1951.

“Answer and consent of the Family Service Society was filed April 26, 1951.

“Motion of natural parents to withdraw surrender was filed May 22, 1951.

“Hearing was set for May 29, 1951.

“Hearing had June 29,1951; July 23, 1951, and August 31, 1951.

“This cause has given the court much concern. Many legal questions have been raised.

‘ ‘ The facts show that the mother, age 17 years, gave birth to this child about three months after her first husband divorced her. Then she waited eight months and married Jarp.es Thorpe, who claims he is the father of said child. About one month later, she and James Thorpe signed the permanent surrender. Two months later, the agency placed said child in the petitioners’ home and five months later the petition to adopt said child was filed in this court.”

And again discussing the question of the- revoking of the surrender of the child by the natural parents he says:

“The court believes it was done May 22, 1951.”

As we view it, there need be no discussion of other questions when two propositions are determined. They are:

First, .was the surrender revocable and was it in fact revoked?

Second, would the proposed adoption be to the best interest of the child?

We must answer the first question in the affirmative and the second question in the negative.

As to the first question, it seems to us that we need go no further than to extend slightly the propositions announced by this court in the case of French v. Catholic Community League, 69 Ohio App., 442, 44 N. E. (2d), 113. The writer of this opinion concurred in the opinion in that case, written by Judge Sherick, and his views have not changed. In the French case, however, the agency had not moved “to place the care and custody of the child in the hands of another by adoption.” In the instant case the move had been made, but the adoption had not been completed. It was not necessary in the French case to go further than was done. In the instant case we simply extend the doctrine and say that in our judgment there may be a withdrawal of consent or revocation at any time prior to the actual order of adoption, and taking this position, in view of the facts as stated hereinbefore, the conclusion is inevitable.

Now, as to the second question, what is' to the best interest of the child? That is a serious and debatable thing, and no man can be sure in coming to a decision that such decision is right.

Under the record there can be no question about the qualification and capacity of the petitioners; nor can there be any question about the fitness of the natural parents, except as that might be questioned by their early indiscretion. The record shows that the petitioner, Thomas L. Kane, Jr., has an average annual income of $30,000. The record shows that the natural father, Thorpe, now has a good position with an income of $250 a month, or $3,000 a year, with prospects of promotion. It cannot be said with any assurance that a child is necessarily better placed in a family with a $30,000 per year income than with another family with a $3,000 per year income.

On the opposite walls of the library in the home of the writer of this opinion there are two large steel engravings.

On the one side is one labeled:

“La Fille Adoptive

La Separation”

It portrays a gracious lady, obviously in beautiful surroundings and with wealth. It also portrays the peasant mother, having delivered her child, disappearing, bowed with grief. The look upon the child’s face is one of bewilderment.

On the other wall is one labeled:

“La Vraie Mere

Le Retour”

There this child, now grown to young womanhood and beautifully garbed, returns to see her peasant mother, obviously in very modest circumstances. But the expressions on the faces of this mother and daughter are those of sheer joy.

For more than forty years these two pictures have been before the writer of this opinion whenever he entered his library.

The judgment is affirmed.

Judgment affirmed.

MoClintook, P. J., and Putnam, J., concur in the judgment.