text:
    Spencer, Appellant, v. Miller, Appellee.
    (No. 4159
    Decided October 6, 1948.)

      Mr. Russ Rothwell, for appellant.

      Messrs. Yorys, Safer, Seymour & Pease, for appellee.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin county, dismissing plaintiff’s action for failure to comply with the court’s order to make his petition definite and certain.

The action of the plaintiff, appellant herein, was one for damages arising out of an automobile collision. In his petition, the plaintiff, after alleging acts of negligence, claimed damages as follows: “Penders, hood, radiator, grill, shell, doors, cowl, body knocked out of line, frame bent, and other small parts too numerous to mention. The reasonable value of said destroyed parts was and is $250. ’ ’ Plaintiff alleged also that his automobile depreciated generally in value to the extent of $100.

The defendant, appellee herein, moved the court for an order requiring the plaintiff to make his petition definite and certain by stating the value of the plaintiff’s automobile immediately before the accident and the value of the plaintiff’s automobile immediately after the accident. That motion was sustained. The plaintiff excepting to such order and refusing to comply therewith, the action was dismissed.

The plaintiff contends that the ruling of the trial court was erroneous. Counsel in their briefs discuss the proper measure of damages as applied to the evidence introduced upon trial. The question raised does not involve the proper measure of damages, but a fundamental rule of pleading. It is fundamental that the pleader must allege ultimate facts as distinguished from evidential matter. 31 Ohio Jurisprudence, 544, Section 12. To require the plaintiff to allege the reasonable market value of his automobile before and after the accident would be to require the plaintiff to plead evidential matter.

It is fundamental that general damages need not be specially pleaded but may be recovered under a general allegation of damages. Such damages may be alleged in a lump sum, although the pleader sets out with particularity different items of injuries for which he claims damages. 13 Ohio Jurisprudence, 259, Section 155; 31 ibid., 631, Section 81.

The defendant contends that the judgment of the trial court dismissing an action and entering final judgment against the plaintiff for failure to make his petition definite and certain, as ordered by the court, may not be reversed unless it is clearly shown that the court abused its discretion. In support of that proposition of law, the case of Rudd v. City of Reading, 64 Ohio App., 308, 28 N. E. (2d), 768, is cited. In that case, the reviewing court found that the order requiring the plaintiff to make his petition definite and certain was proper. No abuse of discretion was shown. In the case at bar, in our judgment, the order of the trial court requiring the plaintiff to make his petition definite and certain was improper. To dismiss the action and enter judgment for the defendant was an abuse of discretion.

The judgment is reversed and the cause remanded to the trial court for further proceedings according to law.

Judgment reversed.

Miller and Hornbeck, JJ., concur.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    The Cleveland Concession Co., Appellant, v. City of Cleveland et al., Appellees.
    (No. 20845
    Decided April 19, 1948.)

      Messrs. Spieth, Spring & Bell and Mr. Morton M. Stotter, for the motion.

      Mr. Lee C. Rowley, director of law, Mr. Joseph R. Crowley, Mr. Robert J. Selser and Mr. Robert M. Morgan, contra.
   By the Court.

As we construe the pleadings in this appeal on questions of law and fact, they do not present only questions of law for determination by the court.

The petition is so drawn, that the court cannot know what the operative parts of the contract between appellant and appellees are.

The answer, although admitting certain allegations of appellant’s petition, specifically denies certain portions thereof, and generally denies its averments not admitted.

There are thus created issuable facts, or direct issues, upon material propositions—particularly, performance by appellant—which would require the introduction of evidence by appellant to entitle it to judgment.

In such situation a motion for judgment on the pleadings may not properly be interposed. 31 Ohio Jurisprudence, Pleading, Section 287; 41 American Jurisprudence, Pleading, Section 336.

“2. A judgment upon the pleadings cannot be rendered when issue is joined upon a single material proposition.” Rhoades v. McDowell, Recr., 24 Ohio App., 94, 156 N. E., 526.

The motion of the appellant for judgment on the pleadings is overruled.

Motion overruled.

Doyle, P. J., Stevens and Montgomery, JJ., concur.

Doyle, P. J., and Stevens, J., of the Ninth Appellate District, and Montgomery, J., of the Fifth Appellate District, sitting by designation in the Eighth Appellate District.


author: Wiseman, P. J.

text:
    Ludy, Appellant, v. Ludy, Appellee.

      (No. 4138
    Decided October 6, 1948.)

      Mr. Henry A. Reinhard, for appellant.

      Mr. Lawrence R. Curtis, for appellee.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court, Division of Domestic Relations, Franklin county.

The controversy involves the custody of a child eight years of age. Adah M. (Ludy) Hane and Kenneth R. Ludy are the parents of Sue Ann, the child in question. On October 22, 1945, the parents were divorced and temporary custody of the child was given to Leonard and Florence Corbin, residents of Dublin, Ohio. Florence Corbin is a maternal aunt of the child. In the divorce decree there was no finding of the court with respect to the unfitness of either parent. No finding was made stating the reason for depriving either one of the parents of the care, custody and control of such child. Both parents subsequently remarried.

We give no consideration to the order granting the decree, from which no appeal was taken, except as it affects the mother’s right to an order for a change of custody on the ground of a change of conditions.

On December 8, 1947, the mother filed her motion for an order granting her custody of the child because of a change of circumstances and conditions. On December 19, 1947, the father, who had taken up residence in El Paso, Texas, filed his motion for an -order granting him the custody. Evidence was submitted on the motions. On January 24, 1948, the court ■overruled both motions and made the following order:

“It is therefore ordered, adjudged, and decreed by this court that the custody of such child, Sue Ann, ■remain with Leonard and Florence Corbin until further order of the court.”

Again there was no finding of the court with respect do the unfitness of either parent. From this order this appeal was taken.

The plaintiff, appellant herein, Adah M. (Ludy) Hane, contends the court committed prejudicial error in depriving her of the custody of her child and awarding custody to Leonard and Florence Corbin.

The evidence in this case shows that the mother and her present husband were suitable persons, were able and willing to support and care for such child, and had purchased their own home in which they resided, which was located in a good residential section of Columbus. Likewise the evidence shows that the •Corbins were suitable persons and furnished a good home in which to rear the child.

At the close of the case the trial judge made a statement which appears in the record. The court found that the mother’s second marriage was successful; that a second child had been born to her by her second husband, which child at the time of the hearing was about one year old; and that the mother and her husband were living in a nice residential district. How•ever, in this statement the court said:

“I recognize the right here as asserted by the mother, yet I am convinced very definitely, if we consider strictly and only the well being and future happiness ■and future welfare of this child, that the child would be better off in the home of her aunt and uncle.”

Apparently the court based the order solely on> what it conceived best for the welfare of the child and did not consider the rights of the parents under the-evidence.

Under the provisions of Section 8032, General Code,, when the parents are divorced and the question as to-the custody of their child is brought before the court the parents “shall stand upon an equality as to the-care, custody and control” of their child.

Under the provisions of Section 8033, General Code,, where the question of custody arises between the parents, “the court shall decide which one of them shall have the care, custody and control of such offspring,, taking into account that which would be for their best interests.” If the provisions of this section were applied to the evidence the court would have been required to make an order granting custody of the child to one of the parents. Inasmuch as the father was separated from his second wife and a divorce was-impending, the court would have been justified in denying the father the custody. However, the court decreed the custody of the child to third persons. This-action of the court is controlled by another provision of Section 8033, General Code, which is as follows:

‘ ‘ Provided that if the court finds with respect to any child under eighteen years of age that neither parent is a suitable person to have the custody of such child, the court shall, with the consent of the Juvenile Court, certify a copy of its findings, together with so much-of the record and such further information in narrative form or otherwise, as the court deems necessary or the Juvenile Court may request, to the Juvenile Court for further proceedings according to law, and' thereupon the Juvenile Court shall have exclusive-jurisdiction respecting such child. This section shall apply to pending actions.”

The motions were filed in the original divorce action in the Common Pleas Court, Division of Domestic Relations. The record does not show a certification to the Juvenile Court. The certification can be made only “with the consent of the Juvenile Court.” The record does not affirmatively show that this consent was given. On the state of the record, we conclude that the Common Pleas Court, Division of Domestic Relations, retained continuing jurisdiction.

Under the former provisions of Section 8033, General Code, the court was required to grant custody •to one of the parents unless, “if upon such hearing it should be proved that both parents are improper persons to have the care, custody and control of their children, in its discretion, the court may either designate some reputable and discreet person to take charge thereof, or commit them to a county or district children’s home in which they or their parents have a lega] settlement.” This section was amended effective January 1, 1946. The order granting custody to the Corbins in the divorce decree was made on October 22, 1945, at a time when the provision above quoted was in full force and effect. Under the provisions of this section prior to the amendment, it was held that the custody of the child may not be awarded to any other person than its parent unless a finding is first made of the unfitness of the parent to have such child’s care, custody and control. In Luebkeman v. Luebkeman, 75 Ohio App., 566, 61 N. E. (2d), 638 (Court of Appeals for Montgomery county), the court considered Section 8033, Genera] Code. On page 568 the court says:

“The meaning of this section is plain and in conjunction with Section 8032, General Code, it appears that, primarily, the parties are on an equal footing with respect to the right to the custody of their minor children. Within this limitation the court will take into account that which would be for the best interest of the children. Unless and until the court finds that both parents are unfit persons to have the custody of their children the court may not award their custody to any other person, even though of opinion that the best interest of the children would be subserved by so doing. See 27 Corpus Juris Secundum, 1162, 1168.” (Emphasis ours.)

See, also, Godbey v. Godbey, 70 Ohio App., 450, 456, 44 N. E. (2d), 810; Tanner v. Tanner, 78 Ohio App., 178, 182, 62 N. E. (2d), 654 (Court of Appeals for Franklin county); In re Duffy, 78 Ohio App., 16, 68 N. E. (2d), 842 (Court of Appeals for Franklin county).

The express provision in Section 8033, General Code, prior to the amendment, giving authority to the court to grant the care, custody and control of a child to “some reputable and discreet person” where the court found that both parents were improper persons to have the care, custody and control of such child was not carried over into Section 8033, General Code, as amended. Under the statute as amended there is no express statutory provision giving the court authority to grant the care, custody and control to some person other than the parent of the child.

Under general law the trial court had no authority to give custody to a third person unless and until it made a finding that the parents of the child were unsuitable. In the absence of such finding in the record, the mother, who according to the evidence is a suitable person, was entitled to an order granting her care, custody and control of her child. The welfare of the child is always considered by the court when the ques-lion of custody arises between the parents who stand ■ on an equality, or, when the parents are found to be unfit and the court is required to grant custody to a third person. In the case at bar no such situation was ■presented.

The plaintiff contends that the trial court committed prejudicial error in permitting the witness, Charlotte Martin, the court investigator, to testify as to hearsay evidence. The court called the investigator who, over objection, was permitted to testify to a conservation which she had with Sue Ann shortly before the hearing. Clearly, any statement which Sue Ann made to the witness was hearsay and was inadmissible and in our opinion constituted prejudicial error.

The judgment is reversed.

Judgment reversed.

Miller and Hornbeck, JJ., concur.


text:
    Blubaugh, Appellee, v. The Lincoln National Life Ins. Co., Appellant.
    (No. 4145
    Decided October 14, 1948.)

      Mr. J. Paul McNamara, for appellee.

      Messrs. Wright, Harlor, Purpus, Morris & Arnoldy for appellant.
   By the Court.

This is an appeal on questions of law from the judgment of the Common Pleas Court of' Franklin county, rendered in favor of the plaintiff.

The action is one to recover benefits under a double-indemnity dause of an insurance policy, the defendant having admitted and discharged its liability for the face amount of death benefits of the policy.

The policy of insurance expressly provided that should the insured ‘ ‘ sustain bodily injury, effected directly through external, violent and accidental means * * * exclusively and independently of all other causes, which shall within ninety (90) days of the event causing the accident, result in the death of the insured,” double indemnity would be paid. Thé insured sustained an injury on December 13, 1943, which necessitated a surgical operation which was performed on December 21, 1943. Following the operation the insured contracted pneumonia and died on January 28, 1944.

The case was tried to the court, without the intervention of a jury, on an agreed stipulation and several depositions. The trial court gave judgment for the plaintiff in the sum of $2,000, being- the amount of the -double indemnity benefit.

The defendant, appellant herein, assigns as error that the finding and judgment is contrary to law and the weight of the evidence, and is not sustained by any -evidence.

The record shows that the insured, who was a proprietor of a garage, on the day in question moved a drum of oil weighing about 350 pounds from the front to the rear of the garage and unassisted upended the drum so that the oil pump could be placed in position. The concrete floor of the garage at the place where the drum was upended was oily and slippery. There is no evidence that the insured in moving- or upending the drum slipped, fell or got his body in an unexpected position. A short time after upending the drum the insured went home. On examination he and his wife found a lump near the left groin. Later the same day, he consulted a physician who found the insured had a. protruding hernia in the left inguinal region. By stipulation the record shows that the insured told his physician that the protrusion had developed that day;, that the physician found the protrusion to have been of recent origin; that one of the common causes of' hernia is a strain in lifting; and that a protruding hernia commonly first appears after a strain in the-abdominal region.

From this evidence, the trial court made a finding-as follows:

“Based upon the direct and circumstantial evidence-in this case, the court finds that Blubaugh, the insured,, got his body in an unexpected position resulting in the-hernia injury and his ultimate death through accidental means; and therefore, the plaintiff who was the beneficiary named in the policy of insurance herein is entitled to recover according to the provisions of said policy.”

Was this finding justified under the evidence? In the absence of any evidence that the injury was caused by a slip, twist, or fall, could the court find from the-evidence adduced that the insured “got his body in an unexpected position resulting in the hernia injury and his ultimate death through accidental means”?' In brief, the trial court found that the injury was effected by “accidental means” and based its finding-on direct and circumstantial evidence.

Before an injury can be said to be effected through “accidental means” it must be shown that the means by which the injury was produced was accidental. It is not sufficient that the resulting injury be unexpected,, unforeseen or accidental; the means by which the injury resulted must be shown to be unexpected, unforeseen or accidental. This distinction must be kept in. mind.

In the case at bar, the resulting injury was unintentional, unforeseen and accidental. However, there is no evidence supporting a finding that the means which produced the injury was unintentional, unforeseen or accidental. The insured did voluntarily what he intended to do and in the manner intended. There is no evidence that he slipped, twisted, fell or got his body in an unexpected position, or that anything unexpected or unforeseen took place while moving and upending the drum. The evidence shows proof of an accidental injury and not an injury effected through ‘ ‘ accidental means.” Upon such proof there can be no recovery. The factual situation requires the application of the principle of law established in Mitchell v. New York Life Ins. Co., 136 Ohio St., 551, 27 N. E. (2d), 243. On page 555 the court stated:

“The facts in the instant case clearly show that the ‘means’ which produced the injury and consequent death of decedent was voluntarily and intentionally employed and in the manner intended. Means which are thus employed cannot reasonably be said to be accidental. ’ ’

But it is contended that because injury does not ordinarily result from the act performed by the insured, it may be inferred that the injury was effected through accidental means. Apparently the trial court followed this line of reasoning. It found for the plaintiff on the theory that the insured ‘ ‘ got his body in an unexpected position.” Since there is no evidence supporting this finding it must have been inferred. No inference can be drawn that something unexpected or unforeseen happened to the insured while moving or upending the drum from the fact that the insured sustained an injury while in the performance of the act. What evidence existed from which plaintiff claims an inference may be drawn? It is elaimed the drum of oil was heavy; the drum was circular in shape with flat ends making it an uncommon shaped object and difficult to handle; and the floor was oily and slippery, making the insured’s footing uncertain. The plaintiff contends that from these facts, the eourt may infer that the insured got his body in an unexpected position. These admitted facts in no way explain the injury. This court in the Mitchell case (62 Ohio App., 54, 22 N. E. [2d], 998), held that it may be inferred from the facts showing accidental death that such death was effected through accidental means. The Supreme Court rejected this theory and reversed the judgment of this court giving judgment for the defendant. In discussing this question on page 553 the eourt held:

“It is true that the result produced was not that which was intended, and hence accidental. However, the fact that the result was accidental does not make the means, which produced such result, likewise accidental.”

While other courts hold that an inference may be drawn, as claimed by the plaintiff, our Supreme Court has clearly held that it may not be done. Mitchell v. New York Life Ins. Co., supra. See, also, New Amsterdam Casualty Co. v. Johnson, Admx., 91 Ohio St., 155, 110 N. E., 475, L. R. A. 1916B, 1018.

In applying the law of the Mitchell case to the evidence in the instant case,, we are required to hold that the finding and judgment of the trial court is not sustained by any evidence and is contrary to law. Judgment will be entered for the defendant.

Judgment reversed.

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


author: Doyle, P. J.

text:
    Ruhlin, Appellant, v. East Ohio Gas Co., Appellee, et al.
    (No. 3978
    Decided December 17, 1948.)

      Messrs. Brouse, McDowell, May, Bierce & Wortman, for appellant.

      Messrs. Buckingham., Doolittle & Burroughs, for appellee.
   Doyle, P. J.

This cause was instituted in the Court of Common Pleas of Summit county, seeking to enjoin the East Ohio Gas Company from refusing to serve the petitioner with gas for space heating purposes to replace other fuel.

The trial court dismissed the petition of the plaintiff, on the ground that it had no jurisdiction of the subject of the action. The appeal to this court is on questions of law from this final order, and the sole question presented is the one of jurisdiction.

There appears in the pleadings, the contract between the city of Akron and the East Ohio Gas Company, as well as various emergency orders of the Public Utilities Commission of Ohio, pertinent to the supplying of gas by the East Ohio Gas Company in this area.

In our determination of the question of the jurisdiction of the Court of Common Pleas, we must look necessarily to the question of power, and “its solution must be found in the statutes themselves, since * * * the jurisdiction and power in question are entirely of statutory origin and delegation.” State, ex rel. Ohio Bell Telephone Co., v. Court of Common Pleas, 128 Ohio St., 553, 192 N. E., 787.

The Supreme Court has recently examined the statutes giving power to the Public Utilities Commission and to certain orders of the commission, and in connection therewith, pronounced:

“6. A temporary and state-wide order of the Public Utilities Commission, which is adopted and promulgated after a hearing and upon a finding that such order is essential to protect the health and safety of the people of the state because of a serious shortage of natural gas for consumption and use by Ohio consumers which shortage is due in part to greatly increased demands of consumers for gas to be used in space heating of homes and which order in part requires that ‘no distributing utility shall supply or be required to supply natural gas service to any consumer, present or prospective, in the state of Ohio for equipment designed to furnish the source of space heating that replaces other fuels, or for additional space heating,’ is a valid exercise of the police power of the state and binding on all parties to contracts for the sale and purchase of natural gas, whether municipalities, corporations or individuals.”

In the same case, we find also the following pronouncement :

“3. All contracts are subject to the paramount rights of the public, and all contracts the subject matter of which involves the public welfare will have read into them with the same force and effect, as if expressed in clear and definite terms, all valid public regulations then existing or thereafter enacted, essentia] for the promotion of the health, safety and welfare of the people. The authority of the state to exercise its general police power must be recognized as an implied condition of any such contract.” City of Akron v. Public Utilities Comm., 149 Ohio St., 347, 78 N. E. (2d), 890.

The appellant does not challenge the legality of the commission’s orders now in controversy, but claims, inter alia, “that the Common Pleas Court has jurisdiction * * * upon the issues made by the pleadings and the jurisdiction to try the matters to determine if there has been a violation of the Akron franchise, as altered or amended by the effective emergency orders of the Public Utilities Commission.”

It appears from the pleadings that the emergency orders of the commission govern entirely the rights of the parties in respect to the complaints made in the petition, and, this being so, the commission alone is empowered, under the statutes, to bring action against the utility company to compel the enforcement of its orders, in the event of a claimed violation thereof. Section 614-67, General Code.

It is our conclusion that the Court of Common Pleas has no jurisdiction of the subject of this action, and that the judgment of that court in so finding must be .affirmed.

Judgment affirmed.

Skeel and Httnsicker, JJ., concur.

Skeel, J., of the Eighth Appellate District, sitting -by designation in the Ninth Appellate District.


text:
    Williams Furniture Corp., Appellant, v. Arcade Furniture Store, Appellee.
    (No. 2016
    Decided December 8, 1948.)

      Messrs. Wasserman & Talbot, for appellant.

      Mr. John A. Benjamin, for appellee.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery county, which reversed a judgment in favor of the plaintiff rendered by the Municipal Court of Dayton.

The plaintiff, appellant herein, sold a shipment of furniture to defendant, appellee herein, for the price of $3,120.75. The invoice stated the terms of sale as follows: “Terms — 2% 15 days, Net 30, F. O. B. Sumter, S. C.”

The invoice is dated January 17, 1947. It will be observed that February 1 was the last date on which the two per cent discount could be taken. On February 15, 1947, the defendant mailed to the plaintiff a check dated February 1, 1947, for $3,058.33, which represented the amount of the invoice less a discount of two per cent. The plaintiff returned the check, stating that the discount period had expired when the check was mailed. The defendant again sent the check to the plaintiff, stating that it was unable to explain the difference in the date of the issuance of the check and the mailing thereof. The plaintiff again returned the check to the defendant, calling attention to the terms of sale and that the defendant was not entitled to the discount. The plaintiff claimed the net amount due. The defendant again sent the check and, in a letter to the plaintiff, stated that it was trying to pay the plaintiff rather than avoid payment, offering as an excuse the fact that it had just started in business and that its office force was disorganized. The plaintiff finally accepted and cashed the check and in a letter to the defendant stated that it would attempt to collect the balance.

The defendant set up the defense of accord and satisfaction. The evidence which is largely documentary is not in dispute. The claim of the plaintiff meets the test -of a liquidated demand. 1 Ohio Jurisprudence, 163, Section 8. But a liquidated claim may be disputed or undisputed. Yin v. Amino Products Co., 141 Ohio St., 21, 29, 46 N. E. (2d), 610. Was there a bona fide dispute? The terms of sale were clear and definite. The fact that the check was dated as of the last discount. date indicates that defendant clearly understood the terms of sale and made an effort to get the plaintiff to accept, the discount even though the discount period had expired. On the check itself there was a notation showing the net amount due less two per cent, which was properly calculated and stated to be $62.42. There never was any controversy between the parties as to the amount due. The most favorable construction that can be placed on the evidence in support of the defendant’s contention is that the defendant made an unsuccessful effort to prevail upon the plaintiff to accept the check for the amount due less the discount.

The defendant relies on Seeds Grain & Hay Co. v. Conger, 83 Ohio St., 169, 93 N. E., 892, 32 L. R. A. (N. S.), 380; Toledo Edison Co. v. Roberts, 50 Ohio App., 74, 197 N. E., 500; Bettman v. Sporkin, 6 Ohio App., 23, which hold that where there is a bona fide dispute over an unliquidated demand and the debtor tenders a less amount on the express condition that the less amount shall be in full of the disputed claim, and such less amount is accepted by the creditor, there is an accord and satisfaction. The case at bar does not fall in that category. The evidence does not show that the plaintiff ever agreed to accept the lesser amount in full satisfaction of the net amount due. Furthermore, the payment of a lesser amount in full of a greater amount of indebtedness, where the claim is liquidated or undisputed, does not constitute an accord and satisfaction unless such payment is based on some additional consideration. Yin v. Amino Products Co., supra, 28; 1 Ohio Jurisprudence, 161, 162, Section 8. Moreover, in the case at bar, the evidence does not show that the check for the lesser amount was finally offered in full satisfaction for the greater amount due. We are of the opinion that the evidence does not support the defense of accord and satisfaction.

The judgment of the Common Pleas Court is reversed and the judgment of the Municipal Court is affirmed.

Judgment reversed.

Miller and Hornbeck, JJ., concur.


text:
    Kraus, Appellant, v. W. T. Grant Co., Appellee.
    (No. 4118
    Decided October 4, 1948.)

      Messrs. Gorry, Durfey, Martin & Browne and Mr.. Gollis Gundy Lane, for appellant.

      Messrs. Knepper, White é Dempsey, for appellee.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin county. At the close of the plaintiff’s case,, the court directed a verdict for the defendant. The' several assignments of error are directed to such action of the court.

The action is for damages for personal injuries suffered by the plaintiff in a fall on the floor of the store' of defendant company, which is located in Columbus,. Ohio.

Briefly stated, the facts are:

On November 14, 1944. at about three o’clock, p. m.r plaintiff entered the south front entrance of defendant’s store at 69 North High street for the purpose of making a purchase. The store is located on the west ■•side of the street. At that time there was a drizzling rain, and during the earlier part of the day it had rained. The streets were wet. The plaintiff was accompanied by her husband and preceded him in entering the store. After entering the south entrance of -defendant’s store,.the plaintiff, followed by her husband, proceeded in a westerly direction down an aisle toward the rear of the store. The wooden floor was ■described as being in a mucky condition from the entrance to the place where the plaintiff fell. When the plaintiff and her husband got to a place “quite a ways hack” in the store they encountered a certain Jennings, who was afterwards identified as the manager •of the store, and inquired of him the way to the china ■department. The manager in giving directions told them “to go on a certain number of aisles and down the aisle.” They proceeded a few steps in the aisle in which they were walking and then turned to the right in a cross aisle. After they had walked a few steps 'in this aisle, the plaintiff, who was walking in front of her husband, fell to the floor and was injured. The plaintiff was immediately helped to her feet by her husband and the store manager, the latter stating ■“there was water there, but I haven’t gotten around to mop it up.” At the place where the plaintiff fell "there was a pool of water about 12 inches in diameter. After the fall the plaintiff’s dress and stockings were found to be wet and dirty. The place at which the plaintiff fell was between 50 and 75 feet from the entrance. Neither the plaintiff nor her husband observed anything on the floor or the pool of water prior to the plaintiff’s fall. The general condition of the floor from the entrance to the place of the fall was described as being in a slimy, mucky condition, not ¡liquid in form.

In the determination of this case, the evidence presented must be construed most favorably to the plaintiff. Giving the evidence a construction most favorable to the plaintiff, we conclude that the condition of' the floor was caused by customers entering the store-on a rainy day. It is not clear that the plaintiff was directed to use this particular aisle or that the store-manager knew of the existence of the pool of water-before the plaintiff fell. However, a reasonable inference may be drawn that those were the facts.

A storekeeper is not the insurer of the safety of his-customers. A storekeeper owes to a customer the-duty to exercise ordinary care to have and keep his storeroom in a reasonably safe condition. S. S. Kresge Co. v. Fader, 116 Ohio St., 718, 158 N. E., 174; J. C. Penny Co., Inc., v. Robison, 128 Ohio St., 626, 193 N. E., 401; Sherlock v. Strouss-Hirshberg Co., 132 Ohio St., 35, 4 N. E. (2d), 912; Johnson v. Wagner Provision Co., 141 Ohio St., 584, 49 N. E. (2d), 925.

The instant case does not fall into that category of cases where the floor was found to be in a slippery,, dangerous or hazardous condition. In such class of cases are Union News Co. v. Freeborn, 111 Ohio St., 105, 144 N. E., 595, where the person injured fell on a floor made slippery by soapy water; Johnson v. Wagner Provision Co., supra, where the customer slipped on a greasy substance dropped on the floor by another eustomer; and F. W. Woolworth Co. v. Saxton, 39 Ohio App., 118, 177 N. E., 219; Fox v. Ben Schechter & Co., 57 Ohio App., 275, 13 N. E. (2d), 730; Pazik v. Devine, 24 Ohio Law Abs., 653; and Molnar v. Scott-Burr Stores Corp., 33 Ohio Law Abs., 142, 33 N. E. (2d), 418.

In the instant case, the trial court in directing the-verdict- for the defendant relied on and applied the-rule laid-down in the ease of S. S. Kresge Co. v. Fader, supra, wherein it was held:

“2. The fact that* during a rain-storm some water '■has blown into the front of a store on account of the ■opening of the door to admit customers, and the incoming shoppers during such rain-storm carry in moisture on their clothing and feet and umbrellas, and thereby and only thereby cause the floor inside the door and near thereto to become damp and more slippery than is the dry floor in other parts of the store, will not give rise to a cause of action against the owner or lessee of the store in favor of a later incoming patron who slips or falls on such damp floor and is injured by ■such fall.”

The court, on page 722, in commenting on the con■dition of the floor said:

“There were no defects in the floor itself. No claim is made that it was other than level, or that it was improperly constructed or surfaced in any manner. 'There was no soap or soapy water on the floor; no grease on the floor. There was nothing of any kind ■on the floor except the rain water which got there in the manner stated.

“There was no evidence in the case that the Kresge Company did anything or omitted to do anything which storekeepers of ordinary care and prudence generally, under similar circumstances, omit to do or ■do for the protection of their patrons.”

Beginning on page 723, the court discussed as follows the duty which a storekeeper and owners of buildings owe to customers or persons using such 'buildings:

“Owners or lessees of stores, office building, banks, hotels, theaters, or other buildings where the public is invited to come on business or pleasure, are not in■surers against all forms of accidents that may happen to any who come. Everybody knows that the ¡hallways between the outside doors of such buildings and the elevators or business counters inside the-building during a continued rainstorm are tracked all. over by the wet feet of people coming from the wet sidewalks, and are thereby rendered more slippery than they otherwise would be. The same thing is true-in the hallways of all post offices. It is not the duty of' persons in control of such buildings to keep a large-force of moppers to mop up the rain as fast as it falls or blows in, or is carried in by wet feet or clothing or umbrellas, for several very good reasons, all so obvious that it is wholly unnecessary to mention them-here in detail.”

If we adopt and apply the reasoning of the court in-the S. S. Kresge Co. v. Fader case to the facts in the instant case, the plaintiff cannot recover. It is urged that the case at bar is distinguishable from that case-on the facts in that in the case at bar the place at which the plaintiff fell was 50 to 75 feet from the entrance, whereas in the S. S. Kresge Co. v. Fader case the customer fell a few feet inside the entrance. In-our judgment this fact does not require the application of a different principle of law. In both eases the condition of the floor was the same. The cause of the-condition of the floor was the same, and the degree of care which the proprietor owed to the customer was-the same. In our judgment the trial court properly directed a judgment for the defendant.

We find no error committed by the court in the rejection of testimony offered by the plaintiff. As we find no error in the record, the judgment is affirmed.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


text:
    The State of Ohio, Appellee, v. Anderson, Appellant.
    (No. 4084
    Decided June 11, 1948.)

      Mr. Glenn Kemp, police prosecutor, and Mr. Stanley Schwarts, Sr., for appellee.

      Mr. Abram Cunits and Mr. Roland G. Allen, for appellant.
   By the Court.

This is an appeal from a judgment of the Municipal Court of Columbus in which the defendant, appellant herein, was found guilty of violating Section 6307-109, G-eneral Code.

The automobile in which the defendant was an occupant collided with the rear of a police cruiser on a street in the city of Columbus. The driver of the automobile was immediately arrested and taken to police headquarters where he was charged with violating a traffic ordinance of the city of Columbus. The defendant and the other occupant of the automobile followed the two policemen to headquarters and were present at the time the arresting officer made a report to the desk sergeant. While the report was being made the defendant stated to the desk sergeant that he desired to make a statement relative to the conduct of one of the arresting officers. After the report was completed, the desk sergeant permitted the defendant to make a statement at which time the defendant criticized the conduct of Officer Thomas, one of the arresting officers, stating that “if he represents the police department, it is in a bad way.” After the defendant made that statement, Officer Thomas became enraged and struck the defendant over the head with a blackjack or some similar instrument. Up to that time no charge had been filed against the defendant. Upon the advice of the lieutenant of police, Officer Thomas then filed a charge against defendant, the affidavit stating that “he did unlawfully interfere with, hinder and abuse by using insulting, slanderous and profane language, one officer, Henry Thomas of the Columbus police department who was investigating and making a report on an auto accident at 65 Hamilton avenue in said city, contrary to statute in such case made and provided [, etc.,] (Sec. 6307-109 G. C.).”

In his assignments of error the defendant contends that the trial court erred in finding him guilty as charged, in that the state failed to show that the police officers were attempting to make an arrest under the Uniform Traffic Act of the state of Ohio as charged; and that the court erred in finding defendant guilty as charged under Section 6307-109, General Code, in that the arrest for a violation of the traffic code was complete at the time of the alleged interference by the defendant and the police officers were not then attempting to make an arrest.

Section 6307-109, General Code, provides as follows:

“Whoever resists, hinders, obstructs or abuses any sheriff, constable or other official while attempting to arrest offenders under any of the provisions of this act, or interferes in any way, with any person charged under the provisions of this act with the enforcement of the law relative to public highways, shall be fined not more than fifty dollars, nor less than ten dollars.”

The first part of the above statute makes it a penal offense to resist, hinder, obstruct or abuse a police officer while attempting to make an arrest under the provisions of the state Uniform Traffic Act. The driver was not arrested for violating any provision of that Act, but for violating a traffic ordinance of the city of Columbus. The charge filed against the defendant does not fall under such provision of the statute since it did not specifically charge the defendant with resisting, hindering, obstructing or abusing the police officers while attempting to make an arrest under the act. The statute also makes it a penal offense to interfere in any way with a person charged under the provisions of the act with the enforcement of the law relative to public highways. The affidavit filed against the defendant did not specifically charge him with interfering with the police officer while in the act of enforcing the law relative to public highways.

The evidence shows that the defendant made a complaint to the desk sergeant relative to the conduct of the arresting officer. The complaint in no way interfered with the arresting officer. After giving the evidence a construction most favorable to the state, we fail to see where the evidence showed an offense committed by the defendant in violation of Section 6307-109, General Code.

We are of the opinion that the evidence in this case does not support the charge, that the trial court committed prejudicial error, and that the charge should have been dismissed. It is so ordered.

Judgment reversed.

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


text:
    Walker, Appellant, v. Baltimore & Ohio Rd. Co., Appellee.
    (No. 1988
    Decided November 22, 1948.)

      Mr. Herbert M. Eihenbary, for appellant.

      Mr. P. Eugene Smith, for appellee.
   Wiseman, P. J.

This is an appeal on questions of law from the Common Pleas Court of Montgomery county, which directed a verdict for the defendant at the conclusion of the plaintiff’s case.

Plaintiff, appellant herein,' assigns as error that the verdict was contrary to law and fact; that the verdict was against the manifest weight of the evidence; and that the court erred in taking the case from the jury and directing a verdict for the defendant.

At about midnight on May 30, 1947, plaintiff, while driving his truck in a westerly direction on First street in the city of Dayton, Ohio, was struck at a railroad crossing by a train operated by defendant company which approached the crossing from the south.

Plaintiff charges the defendant company with negligeuce in this, to wit: First, in not keeping a proper lookout for traveling vehicular traffic; second, in not lowering its gates or poles at the time and place and immediately prior to the accident; and in not sounding any bell, whistle, warning, toot, tinkle and without proper headlight.

Admitting the testimony to be true and every inference fairly deducible from it, which we are required to do, the plaintiff has failed to support his claim.

There was no evidence produced of sufficient weight on either of the three specific charges of negligence to require the defendant company to make defense. Assuming, without conceding, that there was some evidence of negligence on the part of defendant company, the evidence shows clearly that the plaintiff was guilty of contributory negligence. The evidence shows that the pole to the gate was down on the side of the street on which the plaintiff was traveling. There was a red lantern on the pole and there were several red lanterns to warn drivers that the street at the crossing was under repair. In order to make the crossing, the plaintiff drove from the right side to the left side of the street and drove his truck around the end of the pole. As the plaintiff approached the crossing he slowed down to a speed of about 15 miles per hour, changed gears, and looked to the south for approaching trains. He testified that after looking to the south he saw no trains approaching, whereupon he started across the tracks and, upon hearing a bell, he stepped on the gas to accelerate the speed of his truck. The rear of the truck was struck by the engine operated by defendant company. The train was traveling at a slow rate of speed and stopped after the impact with the rear of the tender to the engine at the north side of the crossing. Both the plaintiff and the other occupant of the truck testified that when they got on the tracks they heard a bell; that the plaintiff drove over several tracks before being struck; and that the plaintiff was driving at such a rate of speed that the truck could have been stopped within a few feet. The evidence clearly shows that the plaintiff and his guest looked to the south for approaching trains when the plaintiff was a few feet east of the tracks, and that at this place, the plaintiff had a view of the tracks to the south for a distance of about 400 or 500 feet. The plaintiff testified that as he drove across the tracks he heard a train whistle. There was a bright headlight on the engine.

Plaintiff testified that he was familiar with the crossing, and that as he approached the crossing he assumed the watohman was not on duty at that hour of the night. It is clear that the plaintiff did not rely on any warning from a watchman; neither did he heed any warning signal by reason of the pole being down on the right side of the street. Inasmuch as the plaintiff relied on his own observations, and ignored any warning signal given by reason of the pole being down, it makes no material difference if the pole was lowered because of the approaching train or had been down for some time because of the street repair work.

The plaintiff was required to look and listen for approaching trains before attempting to drive over the crossing, and to look and listen at such time and place and in such a manner as to make the looking and listening effective. Detroit, Toledo & Ironton Rd. Co. v. Rohrs, 114 Ohio St., 493, 151 N. E., 714. Without any question the train was near the crossing when the plaintiff started to cross and the plaintiff could have stopped his vehicle in time to avoid the accident. If plaintiff had looked he could have seen the approaching train in time to avoid the accident. The third paragraph of the syllabus in the Rohrs cáse applies with much force to the facts in this case. It reads as follows:

“A driver of a vehicle upon a highway cannot recover damages for an injury received in a collision at a steam railroad crossing, even though he testifies that he looked and listened and neither saw nor heard anything approaching on the railroad track before going upon the crossing, when the only conclusion that can reasonably be reached upon the evidence is that there is no doubt that had be looked he must have seen the danger, that was immediately at hand, in time to avoid injury.”

This proposition of law was adhered to in the following cases: Woodworth, Admx., v. New York Cent. Rd. Co., 149 Ohio St., 543, 80 N. E. (2d), 142; Patton, Admx., v. Penna. Rd. Co., 136 Ohio St., 159, 24 N. E. (2d), 597; Penna. Rd. Co. v. Moses, 125 Ohio St., 621, 627, 184 N. E., 8; Penna. Rd. Co. v. Rusynik, 117 Ohio St., 530, 159 N. E., 826; Cleveland, C., C. & St. L. Ry. Co. v. Lee, Admr., 111 Ohio St., 391, 145 N. E., 843; Baltimore & Ohio Rd. Co. v. McClellan, Admx., 69 Ohio St., 142, 68 N. E., 816; Cleveland, C., C. & I. Ry. Co. v. Elliott, 28 Ohio St., 340. See, also, Columbus, Delaware & Marion Electric Co. v. O’Day, 123 Ohio St., 638, 176 N. E., 569.

The record discloses a state of facts from which reasonable minds could have reached only one conclusion upon all the evidence adduced, that the plaintiff was guilty of negligence as a matter of law which directly contributed to the proximate cause of his injury. The question was one of law and not of fact. The court properly directed a verdict for the defendant. The judgment is affirmed.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


text:
    The State of Ohio, Appellee, v. Liggett, Appellant.
    (No. 175
    Decided June 1, 1948.)

      Mr. Ray Bradford, prosecuting attorney, and Mr. Hugh C. Nichols, for appellee.

      Mr. Charles H. Wilson and Mr. Joseph D. Martin, for appellant.
   By the Court.

The defendant was arrested on a warrant issued by a justice of the peace, charging her with unlawfully and cruelly punishing her stepson, Larry Liggett, a minor under 16 years of age, contrary to Section 12970, General Code. She was bound over, under bond, to await the action of the grand jury. The grand jury returned an indictment against her charging her with unlawfully assaulting Larry Liggett with intent to kill, contrary to Section 12421, General Code. A jury returned a verdict of guilty as charged in the indictment, the court overruled a motion for a new trial, and sentenced her to imprisonment in the Ohio State Penitentiary for Women for not less than one year nor more than fifteen years, and to pay the costs of the prosecution. The case is before this court for review on her appeal from that sentence.

A reading of this record discloses that Larry Liggett is a child in the first grade in the public schools, and, perhaps, between sis and seven years of age. The defendant is the second wife of his father who also had a daughter between seven and eight years of age by the first marriage. The defendant also had a son by a first marriage. These. constituted the family.

All the evidence discloses that Larry Liggett had certain filthy, insanitary habits, and that the defendant and his father punished him in various ways in an effort to correct him of these habits. This is admitted by the defendant. Both defendant and Larry Liggett’s father testified that each of them had inflicted corpora] punishment upon him. The defendant testified that she used her hand and on occasion a hair brush, and that some bruises on his buttock were caused thereby.

When Larry Liggett was examined by the school officials, and by physicians at their instance, it was discovered that there were extensive and severe bruises, cuts and discolorations on both the rear and front parts of his body in various places and that there were bruises on his neck, having the appearance of finger marks. There was substantial evidence of these physical injuries, indicating punishment far in excess of that which the law authorizes one standing in loco parentis to inflict. They were not such, however, as to cause anyone to reasonably anticipate any permanent injury, much less death as a result, and as a matter of fact he was back in school within one week, and was perfectly well at the time of trial, which was six weeks thereafter. The record does not show definitely how long before that he had entirely recovered, but it does show that his recovery was normal for superficial wounds.

There is no evidence in the record that defendant ever made a threat against Larry Liggett that would indicate she had any intention to kill him. There is no evidence that if she had any such purpose she could not have accomplished it. No.one interfered with her at any time. After punishing him, she discontinued of her own volition.

We have searched this record and have failed to find any substantial evidence of any intent to kill.

The trial court submitted the issues in this case to the jury in a charge that fully set forth the applicable law. At the close of the charge, the court asked counsel for defendant whether they desired any further charge, and in response they requested that the jury be instructed “that a parent or person having supervision of a young child have the right to administer corporal punishment commensurate with acts complained of or committed by said child.” The court refused to so charge and we think was correct in so refusing.

Both by common law and by statutes there are bounds set on the right of the parent to discipline a child. In 39 American Jurisprudence, 601, Section 13, it is said:

“But at the same time, the law, in its regard for the safety of the child, has prescribed bounds beyond which parental discipline shall not be carried. In chastising a child, the parent must be careful that he does not exceed the bounds of moderation, and inflict cruel and merciless punishment; if he does, the law will refuse any longer to recognize his parental privilege.”

See, also, 30 Ohio Jurisprudence, .658, Section 83. And by Section 12970, General Code, á parent is subject to a fine and imprisonment for cruelly and unlawfully punishing his child.

While we are of the opinion that the conviction for assault with intent to kill cannot be sustained, we do find that the conviction should be sustained for the lesser and included offense of assault and battery.

For these reasons, the verdict and judgment are modified by reducing them to a finding of guilty of assault and battery, and the judgment, as so modified, is affirmed.

Under authority of Sections 13449-1 and 13459-6, Genera] Code, the cause is remanded to the Common Pleas Court for sentence and further proceedings according to law.

Judgment modified and affirmed.

Matthews, P. J., Ross and Hildebrant, JJ., concur.


author: Miller, J.

text:
    The State of Ohio, Appellee, v. Strain, Appellant.
    (No. 4204
    Decided September 22, 1948.)

      Mr. Ralph J. Bartlett, prosecuting attorney, and Mr. William C. Bryant, for appellee.

      Mr. Henry J. Lmton and Mr. Davicl M. Postlewaiie, for appellant.
   Miller, J.

The defendant, Nathaniel Henry Strain, was tried on an indictment charging him with murder in the first degree, that is purposely killing, (1) in the perpetration of burglary of an inhabited dwelling, (2)-in the perpetration of robbery, and (3) in the perpetration of rape. A jury trial was had which resulted in a verdict of guilty on all three counts and without a recommendation of mercy.

The record discloses that Alice Lauterbach, the deceased, was a physically deformed lady, being a hunchback, 75 years of age; that during the night season her home was burglarized; that practically all her clothes were torn from her body; that she had been raped;, and that death ensued as a result of mental and physical shock. One of the witnesses called was a Sergeant Curtis of the Columbus police department who testified that he had interviewed the defendant at the West Virginia penitentiary located at Moundsville; and that the defendant had made a confession of his participation in the burglary, but denied having ravished her. This statement was taken down in shorthand and later-transcribed, but was not signed by the defendant. Sergeant Curtis testified fully concerning these statements, admitting that he had previously refreshed his-recollection from his written memorandum. The defense then interposed a motion for an order to the-prosecuting attorney to deliver to defendant’s counsel a copy of the transcript which contained all the alleged confession. This motion was overruled and it is to this ruling that the first assignment of error is directed. In support of their position counsel for the defendant cite Sections 13444-1 and 11552, General Code, and the case of State v. Fox, 133 Ohio St., 154, 12 N. E. (2d), 413. We have examined the foregoing authorities and are of the opinion that they have no application to the question at bar.

Section 11552, General Code, refers to taking copy of documents containing evidence; and also provides: on failure to comply with the court’s order the court. may exclude the paper or document if offered in evidence. The case of State v. Fox, supra, refers to a written confession signed by one of the defendants ;and received as direct evidence by the court in the trial of the defendant’s case along with another co-defendant. The transcript in question is not a written confession signed by the defendant and is, therefore, mot competent as evidence. Sergeant Curtis in testifying did not use any transcript or any other paper while on the witness stand to refresh his recollection.

We recently held in the case of State v. Taylor, 83 Ohio App., 76, 77 N. E. (2d), 279, that if the witness uses a paper on the witness stand to refresh his recollection, then the defense has a right to inspect it for cross-examination. And, on the other hand, the witness can examine papers outside the courtroom in order to refresh his recollection and the defense has no right of inspection unless it contains evidence relating to the merits of the action or defense as stated in Section 11552, General Code.

A somewhat similar situation is to be found in the case of State v. Rhoads, 81 Ohio St., 397, 91 N. E., 186, 27 L. R. A. (N. S.), 558, the only difference being that the interview was conducted between a witness and the prosecuting attorney and in this case it was between the defendant and a police sergeant. The first paragraph of the syllabus of the Rhoads case is as follows:

“1. Where a person conducts a private interview with one whp afterwards is called and examined as a witness before the grand jury, which found an indictment against the defendant concerning some matters ■disclosed in said interview, which interview was stenographically taken, written out and subsequently ■delivered to the prosecuting attorney for his use, and ■on the trial the person interviewed is called, and testified for the state in support of the indictment, it is-error for the court, on request of defendant, to order the prosecuting attorney to deliver the transcript of said interview to defendant or his counsel, or to order the prosecuting attorney to allow either of them an inspection of the same.”

In the course of the opinion in that case Judge Price,, in answering the argument that the defendant should, be permitted to see the transcript of an interview stenographically taken, at page 425 says:

“The state cannot compel the prisoner at the harto submit his private papers or memoranda to the-state for use or even examination, for he cannot be required to testify in the case, nor to furnish evidence against himself. Then why should the accused be allowed to rummage through the private papers of the prosecuting attorney? Neither the sublime teachings of the Grolden Rule to which we have been referred, nor the supposed sense of fair play, can be so perverted' as to sanction the demands allowed in this case.”

The papers from which Sergeant Curtis refreshed his recollection were not evidence but were merely memoranda obtained for the use of the prosecuting-attorney. The court did not commit error in overruling defendant’s motion.

The next assignment of error charges that there was-inadvertent misconduct by the prosecuting attorney in arguing to the jury, the prejudicial effects of which were not cured by charge of the court to the jury to disregard same. The record discloses that during the course of his argument to the jury in opposition to a recommendation of mercy the prosecuting attorney referred to the defendant being in the penitentiary at Moundsville, West Virginia, seven years after the date-of the alleged offense. Objection was promptly made' .and the court instructed the prosecuting attorney not to refer to any convictions, but to state the place where the statement was taken. Mr. Bartlett then said:

“Well, anyhow, there was where they first caught up with him, and they don’t get in these penitentiaries if they follow out — •

“Mr. Linton: Now, Your Honor, I say that is misconduct of counsel.

“The Court: Well, members of the jury, disregard the statements between counsel.”

The fact that the defendant was in the Moundsville state penitentiary was in the record without any objection, and we do not find that any reference was made to any conviction. A reviewing court will not reverse a judgment on the ground of misconduct of counsel unless it clearly appears that such misconduct was prejudicial to the losing party. The latitude allowed counsel is in some measure a matter of discretion with the trial court. We are of the opinion that an examination of the whole record discloses that the trial court did not abuse this discretion to the prejudice ■ of the defendant. The jury was' instructed to disregard the remarks of counsel which are complained of, .and the jury is presumed to have followed the instructions of the court. Cleveland Ry. Co. v. Karmasin, 8 Ohio Law Abs., 239; 39 Ohio Jurisprudence, 1073, Section 343. In State v. Fox, supra, Judge Zimmerman, in the course of the opinion in that case, says on page 160:

“A presumption always exists that the jury has ■followed the instructions of the court as to the lawn” The third error assigned is that the court erred by ■failing to charge the jury as to manslaughter, although requested by counsel for the defendant to do so. Coun•sel are agreed, it seems, that where in an indictment for murder in the first degree there is no evidence tending to support a charge of manslaughter, it is not error for the court to refuse to charge on manslaughter. Bandy v. State, 102 Ohio St., 384, 131 N. E., 499, 21 A. L. R., 594. The defense is contending, however, that there is evidence in the record tending to support a manslaughter charge, which is denied by the state. The defense claims that no intent to kill is shown in the record, which is an essential element to-support the charge of murder in the first degree. The record shows that the defendant admitted to Sergeant Curtis his breaking and entering these premises along with two strangers, and the obtaining of some $300^. but he claimed that the physical violence was inflicted by his two associates. Whatever weight may be given to this statement was solely within the province of the jury the same as any other evidence; they may believe that part which charges the prisoner, and reject that which tends to exculpate him. 20 American Jurisprudence,1081, Section 1227; 12 Ohio Jurisprudence, 404, Section 383. In Edinger v. State, 12 Ohio App., 362, at page 364, Shohl, P. J., says:

“After a confession has been declared admissible, it is before the jury for consideration. The jury have no authority to reject it as incompetent. The jury, however, are the sole judges of the truth and of the weight to be given to a confession, as they are of any other fact.”

The force and violence used upon the deceased can be determined only from the condition of the body as-testified to by Dr. Reinhart, who was acting as coroner. He performed the autopsy and testified that the lips and face of the deceased were bruised and bloodstained, a bloody calico rag hung over the left arm, the thighs and pubis were stained with blood, the right thigh and! leg were straight and the left leg was slightly flexed. The left forearm and hand were covered with blood, .and there was an abrasion or break in the skin of this hand near the knuckle. There was some blood draining from the vagina, and this had been draining for some time because there was a pool of blood on the table, and it had drained into a container beneath the table; there was a V-shapéd tear of the posterior wall of the vagina, and smears made by swabbing the vagina, revealed spermatozoa, or germ cells from the male. He also found a hemorrhage in the scalp over the right temporal area.

The doctor testified that this old lady was raped Avhile still alive; that the cause of death was shock, mental and physical, as manifested by the hemorrhage in the scalp and loss of blood; and asphyxia or strangulation as manifested by ecchymosis and bleeding from the lips and mouth due to trauma in the mouth, or placing the hand over the mouth to stifle outcries.

We think that these uncontroverted facts clearly ■establish that there was intentional killing. In the case of Davis v. State, 25 Ohio St., 369, it was held in ‘the third paragraph of the syllabus:

‘ ‘ Where the fact of killing is proven, malice is to be presumed, and a.11 the circumstances of justification, ■excuse, or extenuation must be made out by the ac■cused, unless they appear from the evidence adduced against him.”

We find there are no circumstances of justification, ■excuse or extenuation to be found from the evidence adduced against this defendant. He did not take the witness stand to testify in his oavq behalf, or offer any evidence tending to reduce the degree of the offense. We are of the opinion that there was no evidence in the record tending to support the charge of manslaughter, and the court was correct in refusing to-charge on this offense.

We find no error in the record and the judgment is-affirmed.

Judgment affirmed.

Wiseman, P. J., and Hornbeck, J., concur.


text:
    Taylor, Admr., Appellant, v. Victor Equipment Co. et al., Appellees.
    (No. 4141
    Decided October 4, 1948.)

      Messrs. Cowan (& Adams, for appellant.

      Messrs. Knepper, White S Dempsey, for appellees..
   By the Court.

This appeal is from a judgment of the Common Pleas Court dismissing the cause and reciting that the court had quashed the service of summons on the defendants and denied plaintiff’s motion-to amend and correct the petition, summons and returns, it appearing that the plaintiff could not plead further.

There were a number of procedural steps taken in the cause from the date of the filing of the petition, September 27, 1947, until the final entry, but most of them are not germane to the question presented which is whether the court erred in quashing the service of summons on the defendants, refusing the plaintiff the right to amend the petition, summons and returns and dismissing the cause.

The action was for personal injuries against the named joint defendants. One defendant was served in Franklin county and, if properly served, summons could issue and service could be had on the other defendant in Butler county.

The petition named as one party defendant Victor Equipment Company, with the further averment that it “is a corporation, organized and existing under the laws of Ohio with its principal place of business in Hamilton, Ohio.”

Summons was issued to Victor Equipment Company with notation to serve Ralph W. Sanborn, statutory agent, at 810 Hartman Bldg., 79 E. State St., meaning Columbus. The return discloses service upon “Victor Equipment Company by serving Ralph W. San-born, statutory agent for Victor Equipment Company.” The second defendant named in the petition was Victor Transit Company of Hamilton, Ohio, a common carrier, etc. Summons was issued in accord with the precipe to the defendant, Victor Transit Company and return discloses service on “Victor Transit Company, Hamilton, upon its statutory agent, Howard P. Stalhaber, 199 Pleasant Ave., Hamilton, Ohio.”

Upon the motions to quash, it was made to appear by affidavits in support of the motions that the person served for Victor Equipment Company, a corporation, was the statutory agent for Victor Equipment Corporation and that the person served for Victor Transit Company was the statutory agent for the Victor Transit Corporation. It further appeared that no corporation was licensed by the state of Ohio under the exact name of Victor Equipment Company but that a corporate charter had been issued to the Victor Equipment Corporation and that no corporation with the exact name of Victor Transit Company had been licensed in Ohio but that a corporate charter had been issued in Ohio to The Victor Transit Corporation.

The statement of the names of the defendants as carried in the petition and the true names of the defendant corporations issued corporate charters in Ohio is convincing that the difference in the names is but a misnomer.

It also appears from the petition that the Victor Equipment Company, a corporation, as designated, is a corporation and that its true name is Victor Equipment Corporation and the only difference between the name of the Victor Transit Company as carried in the petition and the true name of the corporate body is in the use of the word “corporation” instead of “company.” It further clearly appears that there are no such corporations in Ohio as Victor Equipment Company and Victor Transit Company, and that the statutory agents served represent the corporations as properly designated, namely Victor Equipment Corporation and The Victor Transit Corporation.

In the situation thus presented there is no doubt that the corporations served are identical with the ■corporations intended to be sued. Service was had upon the right defendants but there was a minor variation in the correct names. As to Victor Equipment Company, the petition avers that it is a corporation which clearly corrects any misconception which could arise as to the word “corporation” carried in the correct title.

When, then, it appeared that the petition intended to make the parties who were served parties defendant and the proper parties were served and the variation was only that of a minor misnomer, the plaintiff was entitled under our liberal rules of permissible amendments to amend the petition, the summons and returns thereon as requested in his motion. The amendment neither substituted any new.defendant nor changed the cause of action.

Without analyzing the many cases cited in Ohio by the parties, we believe they support the conclusion which we have reached. Burton v. Buckeye Ins. Co., 26 Ohio St., 467; State, ex rel. American Union Telegraph Co., v. Bell Telephone Co., 36 Ohio St., 296, 38 Am. Rep., 583; Maloney v. Callahan, 127 Ohio St., 387, 188 N. E., 656; Lyle Publishing Co. v. Wright, 3 Ohio Law Abs., 100.

Outside Ohio, many cases are collated in an annotation to Clevenger, Admr., v. Grover (212 N. C., 13, 193 S. E., 12), in 124 A. L. R., 86, and the authorities there cited are unanimous in supporting the right of amendment. We will not prolong this opinion by discussing these cases but they are interesting and present almost every conceivable variation between defendants named and defendants served and illustrate the liberality which courts, without exception, accord to a party to amend a petition, or process, if it reasonably appears that the person or corporation intended to be sued has, as a matter of fact, been served although he or it may not answer to the identical name as carried in the pleading.

It is further claimed by plaintiff that the proper procedure here should have been by plea in abatement and not by motion to quash, and in support thereof counsel cite Herf & Co. v. Shulze, 10 Ohio, 263; Moodey, Treas., v. Shaw, Tappan, 280 (330); and State, ex rel. American Union Telegraph Co., v. Bell Telephone Co., supra.

We recognize that it is our practice for parties to raise the question here presented by a motion to quash summons and we would not ground a reversal upon any invalidity in the procedure adopted.

It is also urged that the defendants entered their general appearance by a letter which their counsel sent to the judge who passed on one of the motions, but upon this claim we hold against the plaintiff.

The judgment is reversed and the cause remanded in accordance with this opinion.

Judgment reversed.

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


author: McClintock, J.

text:
    The State, ex rel. Hartinger et al., v. Court of Common Pleas of Perry County et al.
    (No. 241
    Decided December 21, 1948.)

      Mr. Chalmers Parker, Mr. Fred W. Crow, Mr. L. ■Grary Davis, Mr. Henry W. Cherrington and Mr. J. L. Meenan, for relators.

      Mr. Dana H. Peoples, prosecuting attorney, and Mr. ■Charles D. Fogle, for respondents.
   McClintock, J.

This is an action originating in this court. The petition of the relators, in substance, Is as follows:

Earl D. Parker is the judge of the Court of Common Pleas of Perry county, sitting by designation of the Chief Justice of the Supreme Court of Ohio in place of U. S. McG-onagle, the duly elected, qualified and acting judge of the Court of Common Pleas of Perry county.

At the May term in the year 1948 of the Court of Common Pleas of Meigs county, the relators were indicted by the grand jury of that county for alleged conspiracy to use and use of a bulldozer belonging to Meigs county, to perform on private property work and labor amounting to nearly $100.

On August 17, 1948, the relators were duly arraigned on the indictment by the Court of Common Pleas of Meigs county, to which indictment the relators pleaded not guilty. On September 23, 1948, the state of Ohio, by Dana H. Peoples, prosecuting attorney, and Charles D. Fogle, assistant prosecuting attorney, filed its motion for a change of venue, that is, to change the trial of this action from Meigs county to some other county in the state of Ohio, for the reason that a fair and impartial trial could not be had in Meigs county.

Affidavits were filed in support of the motion and also in opposition to the motion, and on October 4, 1948, a hearing was had in the Court of Common Pleas of Meigs county before Judge Earl D. Parker, sitting as judge by assignment by the Chief Justice of the Supreme Court of Ohio. Relators were present in person and by counsel and opposed the granting of the motion and objected to the transferring of the cause to any other county in the state of Ohio, for the reason that relators are given and guaranteed the right to be tried, if they be tried at all, in and by an impartial jury of Meigs county and only Meigs county, the county in which the offense charged in the indictment is alleged to have been committed, by reason of their rights set forth in Section 10, Article I of the Constitution of Ohio, which provides that, “In any trial, in any court, the party accused shall be allowed * * * a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed,” and that a transfer of the cause to any other county without their consent would constitute a deprivation of their constitutional rights.

On November 10, 1948, the Court of Common Pleas, by its decision duly rendered, sustained the state’s motion for change of venue and ordered relators to be tried in Perry county by a jury of Perry county in the Perry county Court of Common Pleas, of which the Honorable Earl D. Parker is judge as aforesaid, by designation.

Relators state further that the proof offered in support of the motion failed to show a fair and impartial trial could not be had in Meigs county; that the decision and order of the Honorable Earl D. Parker, judge, was an abuse of the discretion of such judge and court; and that if Section 13427-1, General Code, and related sections of the General Code are to be construed as granting to and conferring upon the state the right to move for and obtain a change of venue in criminal cases involving offenses for which the penalty provided is imprisonment in the penitentiary, then such sections are contrary to the provisions of Section 10, Article I of the Ohio Constitution and are unconstitutional and null and void and of no effect whatsoever.

Relators state further that they have no adequate remedy at law and pray that an alternative writ of prohibition be issued by this court, prohibiting the respondents, the Court of Common Pleas of Perry county and the Honorable Earl D. Parker, as judge of such court, from hearing or determining the case or any matter in connection therewith, or proceeding any further therein towards trying the relators on the indictment filed therein, pending final hearing and determination of this action, and that on final hearing this alternative writ of prohibition be made permanent and perpetual and for such other relief to which, they may be entitled.

To this petition the respondents filed a demurrer, in which they state that the respondents, the Court of Common Pleas of Perry county, and Earl D. Parker, as judge of such court, sitting by assignment, demur to-the petition in prohibition in this cause for the reason that the allegations thereof do not constitute a cause of action.

Issue is made by this demurrer and the question thereby presented is whether the facts stated in the-petition warrant the issuance of this writ of prohibition.

In consideration of this matter, it is necessary for-this court to pass upon two questions: (1) Do the accused, since they objected to the change of venue fromMeigs county, where the alleged crime was committed,, to Perry county, have the right under the Constitution to be tried only in Meigs county? (2) Is prohibition the proper remedy?

Section 10, Article I of the Constitution of Ohio-provides:

“In any trial, in any court, the party accused shall be allowed * * * a speedy public trial by an impartial jury of the county in which the offense is alleged to-have been committed.,, (Italics ours.)

Section 13427-1, General Code, provides:

“If it appear to the court, by affidavit or evidence-in open court, that a fair and impartial trial cannot be had in the county where a cause is pending, such-court shall order that the accused be tried in any-county of the state; and thereupon the clerk of the-court of the county in which the cause is pending shall. make a certified transcript of the proceedings in the-case, which, with the original indictment or information, he shall transmit to the clerk of the court of the-county to which said case is sent for trial, and the-trial shall be conducted as if the cause had originated" in the latter county.”

Section 13427-1, General Code, clearly gives the-right of change of venue upon application of the state-if the court hearing the application finds that the-state cannot get a fair and impartial trial in the county where the offense was committed.

Prior to the constitutional amendments of 1912, the-Constitution provided for trial by a jury of the county or district in which the offense is alleged to have-been committed, and it has been held that the word “district” meant not a judicial district, but the vicinity of the county in which the crime was alleged to have been committed, and it was so construed. (State, ex rel. Snell, v. McCarty, Judge, 52 Ohio St., 363, 39 N. E., 1041, 27 L. R. A., 534.)

Also, in State, ex rel. Hornbeck, Pros. Atty., v. Durflinger, 73 Ohio St., 154, 76 N. E., 291, we find the following :

“Change of venue in criminal cases — May be had' upon application of prosecuting attorney on behalf of state, when — Section 7263, Revised Statutes, not repugnant to Section 10, Article l, Ohio Constitution.

“1. Under authority of Section 7263, Revised Statutes, regulating the change of venue in criminal cases,, the court having jurisdiction of the cause in the county of the offense, if it be made to appear to the court that a fair and impartial trial cannot be had therein,, may, upon application of the prosecuting attorney on-behalf of the state, direct that the cause be tried in an. adjoining county.

“2. Said section thus construed, is not repugnant to Section 10 of Article I of the Constitution of Ohio.” ■(Decided Dee. 22, 1905.)

In consideration of the early history of the change ■of venue, it is stated:

“In England it seems well settled that, where an impartial trial cannot be had in the county where the indictment is found, a change of venue may be made to, or at least the jury may be drawn from, another ■county upon the motion of the prosecutor. Rex v. Harris (1762), 3 Burr., 1330, 97 Eng. Reprint, 858.” 80 A. L. R., 355.

However, the constitutions of the various states of the Union relative to the change of venue are not uniform.

In 56 American Jurisprudence, 54, Section 51, we find the following:

“Validity of Statute Authorizing. The Constitutions of several states expressly or impliedly authorize the legislature to pass statutes providing for a change of venue on the application of the state; others by their express terms or by necessary implication withhold power to change the venue from the county where the crime was committed over the objection of the accused. In the absence of any constitutional stipulation as to the place of trial of persons accused of -crime, the legislature’s power to authorize changes of venue at the instance of the state usually is questioned as a violation of provisions of the bill of rights in the local Constitution guaranteeing the inviolability of the right to trial by jury, or guaranteeing the -accused speedy trial by impartial jury of the county or district in which the offense was committed, or by .an impartial jury of the vicinage. With reference to the power of the legislature in view of such provisions there is considerable conflict of opinion.”

Since the constitutional amendments of 1912, we-find in State v. Chalikes, 122 Ohio St., 35, 170 N. E.,. 653, the following:

“2. A statute which attempts to provide the place-of trial of an offense for which a jury may be demanded in a county other than that in which the offense was-committed is violative of Section 10 of Article I of the-Constitution of Ohio, and, to that extent, is void.”

It has been claimed on behalf of the state that the-right to change the place of trial without the consent of the accused should be sustained on the ground of' necessity. It is said that owing to local prejudice or excitement it is impossible to procure a jury in the-county legally competent to try the offenders, who are-objecting to a change of the venue of the trial and may prevent themselves from being tried at all. This argument might be entitled to great weight in construing-doubtful language, but the language of the Constitution is clear, concise and without any doubt as to its-meaning.

This court has read practically all the cases cited under the general law on this subject and the holdings of the various states are not uniform, but we do find' that the greater weight of authority is to the effect' that under a constitutional provision similar to ours,, the state has not the right to a change of venue incrimina] cases over the objection of the accused.

It is, therefore, the opinion of this court that Section 13427-1, G-eneral Code, so far as it provides for a-change of venue upon application of the state without the consent of the accused is unconstitutional.

The second question to be considered is whether-prohibition is the proper remedy. It is claimed by the-respondents herein that there is an adequate remedy-at law by taking exceptions at the hearing in Perry-county and appealing therefrom. This would certainly be a cumbersome procedure and in our opinion is not an adequate remedy at law.

We find in State, ex rel. Nolan, v. ClenDening, 93 Ohio St., 264, 112 N. E., 1029, the following:

“1. Under the Ohio Constitution of 1912 the writ ■of prohibition was added to the original jurisdiction ■of the Supreme Court.

“2. The writ of prohibition is a high prerogative writ, to be used with great caution in the furtherance ■of justice and only where there is no other regular, ordinary and adequate remedy.

“3. The writ may be invoked against inferior courts ■or inferior tribunals, ministerial or otherwise, that possess incidentally judicial or gwcm-judicial powers, to keep such courts or tribunals within the limits of their own jurisdiction.

“4. If such inferior courts or tribunals, in attempting to exercise judicial or gimsi-judicial power, are proceeding in a matter wholly or partly outside of their jurisdiction, such inferior courts or tribunals are amenable to the writ of prohibition as to such ultra vires jurisdiction.”

Later, in Weenink & Sons Co. v. Court of Common Pleas of Cuyahoga County, 150 Ohio St., 349, 82 N. E. (2d), 730, we find:

“1. The purpose of the remedy of prohibition is to keep inferior courts within the limits of their own .jurisdiction, and to prevent them from encroaching upon the jurisdiction of other tribunals.”

Also, on page 354 of the above cited case, we find:

“In 32 Ohio Jurisprudence, 568, Section 6, it is said:

“ ‘In Ohio the purpose of the writ [of .prohibition] is to keep inferior courts within the limits of their ■own jurisdiction, and to prevent them from encroaching upon the jurisdiction of other tribunals.’ ” (Italics ours.)

Also, in 32 Ohio Jurisprudence, 570, Section 7, we find:

“The object of the writ being to restrain subordinate judicial tribunals of every kind from exceeding their jurisdiction, its use in all proper cases should be upheld and encouraged, since it is of vital importance to the due administration of justice that every tribunal vested with judicial functions should be confined strictly to the exercise of those powers with which it has been by law intrusted.”

In view of these authorities, it is the opinion of this court that prohibition is the proper remedy.

In conclusion and for the reasons herein stated, it is the judgment of this court that the demurrer filed by the respondents is hereby overruled and in the event that respondents do not decide to plead further, the alternative writ heretofore issued out of this court be made permanent, as prayed for in relators ’ petition.

Judgment accordingly.

Putnam, P. J., and Montgomery, J., concur.


text:
    The State, ex rel. Miner, v. Industrial Commission of Ohio.
    (No. 3894
    Decided September 4, 1948.)

      Mr. Robert E. Hall, for relatrix.

      Mr. Hugh 8. Jenkins, attorney general, Mr. R. Brooke Alloway and Mr. Albertus B. Conn, for respondent.
   Wiseman, P. J.

Relatrix filed her petition in mandamus in this court alleging that on April 6, 1943, while regularly engaged in her employment at the Ohio Steel Foundry Company, Lima, Ohio, she suffered a compensable injury; that she presented her claim to the Industrial Commission of Ohio, which allowed her compensation from April 7, 1943, to August 1, 1943, less the first seven days of that period, which compensation has been paid; and that the order of the commission made on January 13, 1944, with respect to her claim for disability subsequent to August 1, 1943, was as follows: ‘ ‘ The commission further finds that the claimant’s disability subsequent to August 1, 1943, is not due to said injury of April 6, 1943. * * * It is further ordered that the claim for disability subsequent to August 1, 1943, be disallowed.”

The relatrix alleges that on October 13, 1944, she filed her motion requesting t,he respondent to amend its order of January 13,1944, by making it definite and certain what disability she had at that time and for what disabilities compensation was being paid; and that the respondent failed and refused to amend its order, and on March 24, 1945, dismissed the motion. The relatrix alleges that “respondent’s order of January 13, 1944, is indefinite and uncertain and does not determine her rights to compensation on the merits of her claim, and does not state the nature of her disability or disabilities or the exact nature of the disability for which compensation was ordered paid; that said order is indefinite, uncertain, arbitrary, unreasonable, and contrary to law.” The relatrix alleges that she has no adequate remedy at law and prays that a writ of mandamus be issued against the commission requiring it to amend its order of January 13, 1944.

■ The respondent admits that the relatrix sustained a compensable injury on April 6, 1943, while in the course of her employment, and that an order was made by the commission on January 13, 1944, as alleged in the petition of the relatrix. The respondent denies that its order of January 13, 1944, is indefinite, uncertain, and contrary to law and specifically denies that relatrix has no adequate remedy at law. For its •■second defense, the respondent alleges that the statements and allegations contained in the amended petition of the relatrix are not sufficient to constitute .a cause of action. For its third defense, the respondent alleges that this court has no jurisdiction of the •subject of this action.

By agreement of counsel the entire file of the commission is presented as a record of the evidence in this case.

That this court has jurisdiction to entertain this action is not open to question. Section 6, Article IY, ■Ohio Constitution. 9

Section 1465-90, General Code, in part, provides:

“If the order of the commission does not state the ground or grounds on which the claim was denied, or if the order of the Industrial Commission is not definite in such regards, the claimant may maintain an ¡action in mandamus against the commission in the ¡Supreme Court of Ohio.”

That provision in the statute does not and cannot ■deprive the relatrix of her right to invoke the original .jurisdiction of the Court of Appeals in mandamus.

The sole question presented is whether the order made by the commission under date of January 13, 1944, is sufficiently definite and certain to comply with the provisions of Section 1465-90, Genera] Code, which in part provides:

“The commission shall definitely and specifically pass upon each and every issue raised in the claim, •necessary for a proper and complete decision there•on.”

That section provides further that, if the claim for •compensation is denied, “the order of the commission shall state the ground or grounds on which the claim was denied.” If the claim is denied on any one of the ■enumerated grounds, the section provides that “the •claimant may within thirty days after the receipt of notice of such finding of the commission, file an .application with the commission for a rehearing of his ■claim, whereupon notice shall be given to the employer and whereupon the former action of the commission thereon shall be vacated.” One of the enumerated grounds set forth in the statute on which a claim may be denied which requires an application for rehearing is “that the claimant’s disability is not the result of the injury.” In the instant case, the order of the commission under date of January 13, 1944, in which the claim of the relatrix for disability subsequent to August 1, 1943, was denied, recites:

“The commission further finds that the claimant’s ■disability subsequent to August 1, 1943, is not due to said injury of April 6, 1943.”

An application for rehearing was filed by the relatrix but not within the statutory time. The application was dismissed by the commission. On October 13, 1944, the relatrix filed a motion to require the commission to amend its order of January 13, 1944. This motion was dismissed by the commission on March 24, 1945. The petition in mandamus was filed in this court ■on February 15, 1946. The order of the commission under date of January 13, 1944, was an appealable order. The relatrix did not comply with the necessary procedural steps to preserve her rights under Section 1465-90, General Code. An action in mandamus will not lie where there is a plain and adequate remedy in the ordinary course of law.

In State, ex rel. Bassichis, v. Zangerle, 126 Ohio St., 118, 184 N. E., 289, it was held:

“Failure of a relator to avail himself of his legal remedy, within the period limited by the statute providing such remedy, does not confer upon him the right to the extraordinary remedy of mandamus.”

Did the commission perform its mandatory duty under the law? We think it did. Under the provisions of Section 1465-90, General Code, the commission is charged with the duty of definitely and specifically passing upon each and every issue raised in the claim. The record shows that the commission performed its duty in this regard. Under that section the commission is charged with the duty of stating the ground or grounds on which a claim is denied. The record in the instant case shows that the commission, with respect to the denial of the claim of the relatrix for disability for the period subsequent to August 1, 1943, performed its duty by stating the ground on which the claim was denied in almost the exact language of the statute.

The relatrix cites the case of State, ex rel. Moore, v. Industrial Commission, 141 Ohio St., 241, 47 N. E. (2d), 767, as authority in support of her contention that the commission failed to perform its full duty as required by law. The first paragraph of the syllabus in that case is as follows:

“* * * In all claims for compensation on account of injury or death resulting therefrom, if the commission denies the right of the claimant to receive compensation or to continue to receive compensation the order of the commission shall state the ground or grounds upon which the claim was denied.” (Emphasis ours.)

In that case the order of the commission disallowing the claim was as follows:

“That the claim be disallowed on rehearing for the reason that decedent’s death was not the result of an injury sustained in the course of and arising out of employment with the employer named therein.”

The words used by the commission in disallowing the claim were almost the exact words used in the statute. No question was raised in that case that the •order failed to properly state the ground or grounds upon which the claim was denied.

In the instant case, the court concludes that the relatrix is not entitled to a writ of mandamus as prayed for.

Writ denied.

Miller and Hornbeck, JJ., concur.