author: Skeel, P. J.

text:
    Burt, Appellant, v. City op Cleveland et al., Appellees.

      (No. 19709
    Decided April 23, 1945.)

      Messrs. McKeehan, Merricli, Arler & Stewart, for appellant.

      Mr. Lee Howley, director of law, Mr. Samuel T. Gaines and Mr. Robert J. Shoup, for appellee Transit Board.

      Messrs. Thompson, Hiñe & Flory, Mr. Felix Hebert, Mr. G. W. Sellers and Mr. R. M. MacArthur, for appellee Firemen’s Mutual Insurance Company.
   Skeel, P. J.

The city of Cleveland, during the month of April, 1942, purchased and, since that time, has operated the street-ear system situated in greater Cleveland. The charter of the city of Cleveland, as amended by Section 113-2, to provide for the purchase of the railway system, establishes a Transit Board of three men to direct its operation. The Cleveland Railway Company, the predecessor owner of the system, carried fire and extended coverage insurance with the defendant the Firemen’s Mutual Insurance Company. This policy was issued on the basis of a blanket coverage without coinsurance. The expiration date of the policy was March 1, 1943. The city of Cleveland, as indicated, acquired the property in April, 1942. The effective date of this insurance was extended to May 1, 1943, by agreement between the Transit Board and the insurance company, to allow sufficient time in which to purchase another policy of insurance to take the place of the policy which was expiring.

The Transit Board, by resolution passed on January 29, 1943, directed that bids be advertised for insurance to provide the needed coverage. Thereafter specifications were prepared, bids were received and opened and on March 9, 1943, the board, by resolution, awarded the contract to the Firemen’s Mutual Insurance Company.

Thereafter, some question was raised as to whether “Firemen’s,” the successful bidder, met the requirements of the specifications, and, as a result, on March 18, 1943, the Transit Board rescinded its award to “Firemen’s,” rejected all bids and directed that bids be again advertised for, after amending the specifications.

On March 31, 1943, and on April 7,, 1943, the purpose of the Transit Board to purchase insurance, in accord with the established specifications, was advertised and bids were received, the last filing date for such bids being fixed as of April 16,1943.

On April 9, 1943, in answer to a request for further information by one of the bidders, the following notice was sent to all registered bidders:

“Notice to all bidders on fire and extended coverage insurance: Explanation is hereby made with respect to inquiries raised in connection with proposal for fire and extended coverage insurance due April 16, 1943: * " * (a) With reference to omission of a bid under item I of the proposal sheet, on a flat rate (no coinsurance) basis, you are hereby advised that bids covering both flat rate and coinsurance are requested from each bidder. The omission of the flat rate in any bid may be cause for rejection of the bid, in accordance with paragraph 14, page 3 of the specifications.”

The foregoing explanation of the specifications was made necessary because such specifications provided in part:

“Form of proposal: All bids * * * shall be on the basis of (1) flat rate (no coinsurance), blanket * * *; (2), ninety percent (90%) coinsurance on schedule A blanket * * *; One hundred (100%) percent coinsurance on schedule B blanket * * V’

One of the bidders had made an inquiry as to whether a bid that included only one of the alternatives would be considered.

On April 30, 1943, the Transit- Board, upon opening the bids, again awarded the contract to “Firemen’s” and this action seeks to enjoin the entering into of such contract, because it is claimed:

1. That the specifications prevented competitive bidding inasmuch as the stock companies are unable to issue blanket coverage policies on the property of the system on a no coinsurance basis without first having filed a deviation with the rating bureau as provided by Section 9592-9, General Code.

2. That the specifications provided that each bidder should accompany his bid with the form of policy he proposed to issue, and therefore there could not be competitive bidding where the terms of the policy are not fixed by the transit system.

3. That the contract, which the board proposes to enter into with “Firemen’s,” is npon the mutual insurance basis and requires the system to incur a contingent liability of not more than five times the amount of the premium deposit and, by the provisions of Section 9575, General Code, the insurer is accorded the right to perfect a lien on all the property of the system to the amount of such contingent liability; and that the Transit Board is without power to grant such a lien on the property of the system.

4. That by the provisions of Section 113-4 of the city charter, the system is without power to enter into a contract calling for the expenditure of an amount in excess of $10,000 unless authorized so to do by the city council; that the amount to be expended in the proposed contract is in excess of that amount; and that the council has not authorized the Transit Board to incur a contingent liability such as will result by awarding the contract to “Firemen’s.”

5. That the making of a deposit of $109,982.59, as required by the proposed contract with “Firemen’s,” is unlawful.

6. That Sections 106 and 109 of the city charter, which require a certification that the funds to be expended are available in the proper fund, have not been complied with because there has been no such certification as to the necessary funds to cover the contingent liability of $549,912.95.

7. That the bid of “Firemen’s” was incapable of acceptance by the Transit Board for want of definiteness, because of the contingent liability.

8. That the bid of “Firemen’s” was not the lowest bid because it was subject to such contingent liability.

The ability of a stock fire insurance company to write “blanket coverage no coinsurance” is nowhere questioned. Also, it is brought out clearly by the record that the Transit Board concluded that that kind of coverage was better suited to the needs of the system than an insurance policy which required the system to assume a part of the-risk in event the amount of insurance placed should fall below 90% of the value of the property in question.

The published specifications, from the very begin7 ning, included both coverage with and without coinsurance, which indicated clearly that bids on both kinds of coverage were requested. Therefore, all bidders, even if it be admitted that notice of a deviation would be required as provided by Section 9592-9, General Code, had plenty of time to file such notice fifteen days before the effective date of the risk.

From the undisputed evidence, the stock companies had not, through their rating bureau, placed a rate on the property of the Cleveland Transit System on the basis of blanket coverage, flat rate, no coinsurance. This being so, there was no need for filing a deviation. Until a rate on the basis of no coinsurance has been established, a deviation would be impossible.

The appellant further claims that the fact that the specifications required the bidders to file the form of the policy which the bidder proposed to use prevented competitive bidding. Such a contention cannot be sustained. The transit system had by its specifications set forth the kind and character of insurance required. It was, therefore, the specifications that controlled the requirements of the system’s insurance needs and the only possible purpose of requiring the filing of the form of the bidder’s policy was to make sure that the bidder would fulfill the requirements set forth in the specifications.

It is next contended that the Transit Board is without power to grant a lien on the property of the system to the extent of the contingent liability that may arise when a property is insured under the “mutual plan.”

Section 9575, General Code, provides:

“All buildings insured by a mutual company must be pledged to such company, together with the right and title of the assured in the lands upon which they are situated, to the amount of the premium note or contingent liability, and the company shall-have a lien thereon to- the amount of such note or liability, but the lien shall not take effect until the company files with the recorder of the county in which the property insured is located, a certificate, stating the date, number, and amount of premium notes, or contingent liability, and such a description of the property insured as will enable a person readily to identify it.”

Section 6 of Article VIII of the Constitution of Ohio provides as follows:

“No laws shall be passed authorizing any county, city, town or township, by vote of its citizens, or otherwise, to become a stockholder in any joint stock company, corporation, or association whatever; or to raise money for, or to loan its credit to, or in aid of, any such company, corporation, or association: provided, that nothing in this section shall prevent the insuring of public buildings or property in mutual insurance associations or companies. Laws may be passed providing for the regulation of all rates charged or to be charged by any insurance company, corporation or association organized under the laws of this state, or doing any insurance business in this state for profit.”

From the foregoing constitutional provision it is clear that a political subdivision is empowered to insure public property in a mutual insurance association or company. If this be so, there is no difficulty in concluding that such power includes the right to do all -things necessary to meet the statutory requirements for that kind of insurance coverage.

It is further a logical conclusion that, when the city council, on February 15, passed an ordinance authorizing the Transit Board to contract for “fire and supplemental insurance protection” of the property of the system for a period of three years, by contracting therefor with the lowest responsible bidder, no restriction was intended as to whether such contract should be with an old line or a mutual company or association. This matter was left to the sound discretion of the Transit Board, restricted only by the necessity of contracting with the lowest responsible bidder and empowering the board to do all things necessary to effect a valid contract with such bidder.’ If it be granted that “Firemen’s” was the lowest responsible bidder proposing to furnish the type of coverage which the Transit Board had determined was for the best interests of the system coming within the terms of the published specifications, the contract proposed was one which the board in the exercise of the power granted it, under the Constitution of the state and the enabling ordinance of the city of Cleveland, was authorized to enter into.

It is contended further that the deposit of the premium, in consideration for which “Firemen’s” agreed to furnish the transit system the insurance required, constituted an illegal deposit of public funds. The answer to such contention is that the money paid for the insurance was not, in fact or law, a deposit such as would create a debtor-creditor relationship. Under no circumstances could the transit system call upon “Firemen’s” to return any part of such deposit. The only possible way in which any of the premium deposit could be returned to the transit company would be in the form of a dividend, the amount of winch could not be determined until the losses and cost of doing business for the premium year had been determined. As was said by the Supreme Court in the case of State, ex rel. Atty. Genl., v. Monitor Fire Assn., 42 Ohio St., 555, at page 566:

“The ‘annual deposit,’ required, is but another name for annual premiums. If these annual deposits exceed the necessary expenses and losses, during a given year, they are treated as ‘savings’ out of which dividends are made to those who may then be members.”

We come now to the question whether the contract is illegal' because, as claimed by appellant, the requisite certificate that the funds were available in the proper account was not made and the bid which was accepted was not the lowest bid.

The first of these contentions is based upon the theory that the certificate, furnished by the comptroller of the system, that there were sufficient funds available in the proper account to meet the expenditure of $109,982.59 for fire and extended coverage insurance, was not sufficient and not in compliance with section 106 of the city charter, because the total financial obligation of the transit system under the proposed contract was $659,895.54. Such figure is arrived at by adding the premium requirements of the policy to the so-called contingent liability of $549,912.95. Section 106 of the city charter reads as follows:

“Section 106: No contract, agreement or other obligation, involving the expenditure of money, shall be entered into, nor shall any ordinance, resolution or order for the expenditure of money be passed by the council, or be authorized by any officer of the city, unless the director of finance first certify to the council or to the proper officer, as the case may be, that the money required for such contract, agreement, obligation or expenditure is in the treasury, to the credit of the fund from which it is to be drawn, and not appropriated for any other purpose, which certificate shall be filed and immediately recorded. The sum so certified shall not thereafter be considered unappropriated until the city is discharged from the contract, agreement or obligation.”

All that is required under this section, if it be conceded that a certificate is necessary where the funds to be expended were not derived by taxation, is that “the money required for such contract” be certified as available. By the overwhelming weight of the evidence, the certificate made complies fully with the charter requirements. One hundred and nine thousand, nine hundred and eighty-two dollars and fifty-nine cents ($109,982.59) was what the transit system was paying for the policy of insurance. No other expenditure of money was even remotely possible and, under the theory of the case of Walsh Construction Co. v. City of Cleveland. 271 F., 701, the certificate was “the closest possible compliance” with the charter provision.

The debt that is contracted for in this purchase of fire and extended coverage insurance is á necessary part of the conduct of the transit system. The funds to be expended therefor are those derived from the revenue received from its operation and in no way involve moneys received by the city from taxation. Section 106 of the city charter is therefore not applicable and a certificate of the comptroller is unnecessary.

In the case of Kerr v. City of Bellefontaine, 59 Ohio St., 446, 52 N. E., 1024, the Supreme Court had under consideration the applicability of Section 2702, Revised Statutes (old Section 3806, General Code, now part of Section 5625-33, General Code, which was copied into the Cleveland charter as Section 106 in its original form without change) with regard to the purchase of materials for the operation of the city’s gas plant. The city managed its plant through “gas trustees” and in the .operation of the business the trustees purchased meters and valves and other equipment necessary for the successful operation of the business without procuring a certificate as provided by the statute. Upon this subject the court on page 463 of the opinion adds:

“Nor are the trustees in the exercise of this authority restricted by the provisions of Section 2702 of the Revised Statutes that ‘no contract, agreement or other obligation, involving the expenditure of money shall be entered into, nor shall any ordinance, resolution or order for the appropriation or expenditure of money be passed by the city council or by any board or officer of a municipal corporation, unless the auditor of the corporation, and if there is no auditor, the clerk thereof, shall first certify that the money required for the contract, agreement or other obligation, or to pay the appropriation or expenditure, is in the treasury to the credit of the fund from which it is to be- drawn, and not appropriated for any other purpose * * V Not only was this requirement of the statute designed to place a restriction upon the increase of municipal indebtedness but its terms are inapplicable to a contract of this character. The requirement is that the certificate must show that the money required for the contract is in the treasury to the .credit of the fund and not appropriated for any other purpose. The fund.from which the plaintiff is entitled to satisfaction of his demand is not raised by taxation. It is derived from the operation of the gas works and made subject to the order of the board whose authority is so limited that they can make valid contracts only for appliances and supplies for the gas works to which the fund is devoted. The fund can be appropriated to no other purpose, and the trustees can contract for no other purpose.” See, also, Insurance Co. v. Wadsworth, 109 Ohio St., 440, 452, 142 N. E., 900, 33 A. L. R., 711.

This court, in the case of Sweeny v. Stapleton, 38 Ohio Law Abs., 213, 49 N. E. (2d), 707, decided October 13, 1942, has expressed the same theory with regard to monies expended by a political subdivision, other than monies which are derived from taxation. We conclude, therefore, that the Transit Board was authorized to enter into this contract of insurance without a certificate from the comptroller as provided by Section 106 of the city charter.

And finally, it is the contention of the appellant that the bid accepted by the Transit Board was not the lowest bid.

The appellant’s contention upon this point is that the bid of another stock company on blanket coverage no coinsurance basis, of $149,195.60 'net, without the possibility of reduction of cost by a dividend, is less than “Firemen’s” bid of $109,982.59 with the right of a reduction in cost by dividend at the conclusion of the contract, because of the assumption as required by the contract of the contingent liability not to exceed five times the premium deposit which with the premium deposit would total $659,895.54.

The undisputed evidence as to the improbability of the transit system’s being called upon to pay to “Firemen’s” more than the premium deposit is almost conclusive. During the course of the trial, the following facts were stipulated by and between the parties:

1. The Firemen’s Mutual Insurance Company has been in existence and conducting the business of mutual fire insurance continuously for ninety years.

4. As of April 30, 1943, it had never levied an assessment against its policyholders pursuant to the contingent liability provisions of its policies of insurance.

5. Since April 30, 1943, and prior to March 1, 1944, the date of this stipulation, the Firemen’s Mutual Insurance Company had not levied ah assessment against its policyholders pursuant to the contingent liability provisions of its policies of insurance.

6. The Firemen’s Mutual Insurance Company premium deposit return or so-called dividends to policyholders over the past thirty years have never been less than 90% of the premium deposits on one-year policies, and 70% on three-year policies.”

Certainly the Transit Board had the right in the light of the undisputed facts, in the exercise of sound judgment, to conclude that the bid of “Firemen’s” was the lowest responsible bid received on its proposal for fire insurance with extended coverage.

For the foregoing reasons a decree will be entered for the defendants, appellees herein, the same as was entered in the Court of Common Pleas.

Decree for appellees.

Lieghley and Morgan, JJ., concur.


source: Caselaw Access Project

author: Sherick, J.

license: Public Domain

text:
    Westropp, Appellant, v. The E. W. Scripps Co. et al., Appellees.

      (No. 19757
    Decided December 13, 1944.)

      Messrs. Harrison & Marshman, for appellant.

      Messrs. Baker, Hostetler & Patterson, Mr. William F. Marsteller, Mr. Thomas J. Edwards and Mr. Charles D. Johnson, for appellees.
   Sherick, J.

Judge Lillian Westropp, one of the duly elected judges of the Municipal Court of the city of Cleveland, in her amended petition, claims to have been libeled by the Cleveland Press and its editor, Louis B. Seltzer, in a cartoon published on August 14, 1942; a quarter million copies of which were distributed in its editions of that day.

This cartoon is titled “One on the House.” ' It depicts a bar room scene. Two persons are present. The mirror in the back bar bears the legend “Lil’s Lil Place.” The front bar is labeled “Judge Lillian Westropp’s Bar of Justice.” Behind this bar stands a woman shaking a cocktail shaker labeled “Liquor Law Acquittals.” Her apron bears the word “Lil.” Seated before the bar .is a convivial character with a bulbous nose. The back of his coat says “Liquor Law Violator.” This character is saying “Gimme one o’ your ‘not fit for human consumption’ acquittal specials, Lil,” and “I know your pal, Gerald Doyle.” The facial expression of both characters exhibits mirth. The front bar, minus its foot rail, resembles a small court room judicial bench.

The amended petition contains the statement that the picture intended it to be understood that plaintiff was personally immoral and corrupt; and that, as a judge, she was corrupt, a bribe taker and willing to sell justice and discharge liquor law violators. Further, it is pleaded specifically that the intended innuendo deducible from the cartoon’s title and back bar legend is that plaintiff’s court room is a disreputable place or house of ill fame, like unto that of the notorious literary character known as “Diamond Lil”; that the front bar legend intends to convey the idea that her court is corrupt and a place wherein injustice is judicially administered; and that the words attributable to the bar patron were intended to mean that, in a recent liquor case tried before plaintiff, she had for corrupt and wicked reasons acquitted a law violator whose trial counsel was her intimate friend.

Next it is averred that the cartoon was intended to cast hatred, contempt, ridicule and scorn upon her, exhibit her unfitness for a position of honor, impair her reputation for probity, morality, honesty and ability as a citizen, lawyer and judge, and to forestall her future re-election. She further pleads that the several legends, meanings and innuendoes were wickedly false and untrue, known by the defendants to be such, and were published with calculated malice with intent to cause grievous harm to plaintiff and to advance the newspaper’s pecuniary interests; and that she has sustained serious and irreparable harm to her reputation as a citizen, lawyer and judge, and suffered great embarrassment and humiliation by reason thereof.

Defendants jointly answer plaintiff’s pleading. After admitting its formal averments and publication of the cartoon, they proceed to say that on August 2d, a notorious character, one Weinzimmer, together with others, were arrested and charged with operating a place where whiskey was sold in violation of city ordinance and state law; that Weinzimmer was to have appeared before the court the next morning, but that his counsel, Gerald Doyle, procured of plaintiff a continuance to August 11th, at which time Weinzimmer’s case proceeded to trial; and that on conclusion of the state’s case, plaintiff, as judge, discharged Weinzimmer on his counsel’s motion, because the prosecution had failed to prove that the liquid charged to have been possessed and sold “was fit for beverage purposes.” Defendants further plead that prior to and concurrently with the publication of the cartoon, the E. W. Scripps Company published certain news articles in its editions, regarding the occurrences in the Weinzimmer case, and that each of such articles truthfully represented the happenings in a case publicly heard in a branch of the Municipal Court: Copies of those articles are attached to and make part of their answer. They further say that Weinzimmer’s counsel, Gerald Doyle, was plaintiff’s friend, and that he had been active in plaintiff’s judicial campaign. It is averred “that the cartoon fairly portrayed the justifiable opinion of the Cleveland Press, based upon facts occurring in the Weinzimmer cases and the actions of the plaintiff therein, and that said facts had been theretofore or were concurrently truthfully published.”

As a second defense, defendants say that publication of the cartoon “was the publication of a fair and honest discussion of comments on or criticisms of a matter of public interest and that such publication was made only after due diligence had been exercised by defendants to ascertain the truth of the facts on which the comment or criticism was based and that such publication is therefore privileged.”

A third defense states that publication “was made after due diligence to ascertain the truth on which the comment was based with good motives and for justifiable ends and was fair comment on the official conduct of a public officer and is therefore privileged.”

The fourth defense avers .that publication “was based upon information received from sources which it believed to be reliable.”

The reply admits that defendants published the articles pleaded, but denies that they truthfully and fairly repeat the circumstances or events of the Weinzimmer hearing and trial, or that they fairly portray the justifiable opinion of the Cleveland Press.

So stood the issues at trial. The jury returned a verdict in defendants’ favor, upon which verdict judgment was entered and from such judgment' plaintiff now appeals on numerous questions of law, nearly all of which go to the trial court’s theory of the law applicable and its charge to the jury.

Plaintiff complains of the court’s general charge in six respects. And inasmuch as the fifth specification thereof is in the main determinative of the preceding four, we shall consider it first. Plaintiff would have it that the court should have instructed the jury that the cartoon was libelous per se, that is, as a matter of law, and that when it submitted that question to the jury as a matter of fact, it grievously erred. It will be recalled from plaintiff’s petition that the claimed libel is predicated solely upon the cartoon, and thereafter innuendo is resorted to, to charge falsity, malice, intent to defame and special damage, all four of which are inferable if the picture'’is libelous in and of. itself. Or is it only libelous per quod? If the latter be true, then the trial court did not err.

The general rule is found stated in 33 American Jurisprudence, 220, Section 241, that “since the office of the innuendo is merely to explain, the authorities agree that it cannot be used to aver a fact, introduce new matter, or alter, enlarge, extend, or restrict the import of the language theretofore set out.” It is therefore our judgment that when plaintiff resorted to explanation by innuendo to establish her version of the intent of the cartoon with its legends, she conceded that different minds might draw different conclusions therefrom. In other words, she admitted ambiguity therein. As is said in Shaw Cleaners & Dyers, Inc., v. Des Moines Dress Club, 215 Iowa, 1130, 245 N. W., 231, 86 A. L. R., 839:

“Words which are libelous per se do not need an innuendo, and, conversely, words which need an innuendo are not libelous per se.”

Defendants’ evidence, which comports with their pleading, tends to establish an entirely different aspect to such innuendoes as are reasonably deducible from the cartoon and its legends.

The trial court charged the jury that there was a total absence of proof of any immorality on the part of Judge Westropp or that her court room was a disreputable place. The record substantiates this fact and the correctness of the court’s instruction. A further matter testified to by plaintiff and not subject to dispute, is that she attempted to follow what she considered as a precedent set by her superior, the Eighth District Court of Appeals, whose personnel is now completely changed, in Hendershot v. State; 14 Ohio App., 430. With these two observations in mind, together with the fact that the other district appellate courts in the state, as evidenced by their reports, were then far more liberal in the quantum of proof necessary to establish that liquor illegally possessed and sold was “fit for human consumption,” we now propose to analyze defendants’ evidence with respect to the innuendoes deducible from the cartoon as they say were intended.

Defendants proved that the prosecution in the Weinzimmor case had offered proof that he was a law violator; that the place was unlicensed; that the liquid, possessed and served a crowd of patrons when the raid was made, smelled and tasted like whiskey; that some exhibits were seized and analyzed and found to contain alcohol in excess of that allowed to be sold without permit; and that the bartender proceeded to destroy evidence; but when the city chemist stated that he had not examined the state’s exhibits for poisons allergic to the human body, the court proceeded to discharge Weinzimmer upon his counsel’s motion for the reason that the state had failed to prove that the liquid was fit for human consumption.

Defendants claim that their evidence in substance establishes that they, through the medium of the Cleveland Press and its cartoon, were fairly and honestly attempting to ridicule, criticize and correct the rule of the Hendershot ease as applied by Judge Westropp in the Weinzimmer case because it was an unsound precedent, inimical to law enforcement and public welfare; and that in so doing, even if it did lampoon Judge Westropp, they were performing a public service under a qualified privilege. Hence it is perceivable that the cartoon is susceptible of an entirely different innuendo than that claimed and explained by plaintiff. In the recent case of Gartman v. Hedgpeth, 138 Tex., 73, 157 S. W. (2d), 139, 138 A. L. R., 666, it is held that:

"If the language actually used by the defendants * * * admits of no ambiguity, the innuendo averments were of no avail * * *. If it presents ambiguity, it is tested by what effect the language would have upon the mind of the ordinary reader and it would be for the jury to determine whether to such ordinary mind it suggested what plaintiff, in his innuendo averments, claims it suggested.”

Lancour v. Herald & Globe Assn., 111 Vt., 371, 17 A. (2d), 253, 132 A. L. R., 486, conforms to this rule wherein the court says that:

"If such language is ambiguous and admits of more than one meaning, it is, when necessary to ascertain the meaning, for the jury to say what it means; but if the language is not ambiguous, and does not admit of more than one meaning, it is for the court to say what it means.”

We therefore hold that the cartoon and its legends were not libelous per se, and that the court properly submitted this question of mixed law and fact to the jury.

Specifications of error one to four complain in that the court charged the jury that the burden of proof was upon plaintiff to establish falsity, intent, damage and malice. It is, of course, the general rule that he who affirms must prove, unless, as in libel per se, one is advantaged by presumptions which spring from libelous documents which are clearly so, without explanation or innuendo. If, as in the present instance, the libelous matter is susceptible of more than one understanding and is therefore ambiguous, the presumptions disappear and the general rule ought to and does apply. We believe that this understanding is generally held to be true in the matter of proof of malice and damage. These subjects are considered in 33 American Jurisprudence, 247 et seq., Sections 266 and 282. Therein the author states that:

“In actions for defamation, the courts ordinarily indulge a prima facie presumption that defamations which are actionable per se are malicious. In the case of defamations which are actionable only per quocl, malice is not implied in law, but must be shown. ’ ’
“Where the defamation is actionable only per quod, proof of the special damages * * * and the burden of showing such damages ® * * rests upon the plaintiff.”

The burden of proof upon the issue of falsity in libel per quod is less generally settled, due in part to a failure to distinguish between civil and criminal libel wherein any such presumption is or ought to be countered by a presumption of innocence; and to a failure of some jurisdictions to perceive any distinction between actions per se and per quod,; or to take cognizance of the fact that where a defendant has made out a case of qualified privilege, undisturbed by any proof of express malice; or in those jurisdictions where truth is made a complete defense to such charges. To us, however, it seems the better rule that the general one be followed in per quod cases where proof has been made by a defendant which tends to establish the defense of qualified privilege. Why ought this not to be so? If a plaintiff is permitted to recover he should do so upon the strength of his own case. He should prove the issues that are essential to his right of recovery. We see no sound cause for extension of the rule’s exception in per quod cases when the reason therefor in eases per se is no longer present.

Plaintiff argues strenuously that it is ridiculous to require a plaintiff to prove falsity and at the same time place the burden of proving truth upon, the defendant. It is true that each is the converse of the other, and that it does seem strange that one party be required to prove the affirmative and the other litigant to prove the negative of the same issue. But is it not the fact that plaintiff loses sight of the jury’s prerogative in cases based on innuendo which are ambiguous to determine whether the defamatory matter is actionable per se or per quocl? If it should find the former, then falsity is presumed and plaintiff need not prove it; but if defendant proves qualified privilege plaintiff may not recover unless plaintiff proves express malice. Neither may plaintiff recover if defendant proves the defamatory matter to be true. But if in such a case the jury find the matter to be libelous per quod, plaintiff must prove falsity to insure recovery. However, if defendant cannot establish privilege, he still has a second defense, that is, the truth of the matter published. Truth is an affirmative defense. Its interposition is not compulsory. If defendant would avail himself. thereof, he should be made to prove the issue. In the final analysis, the jury must weigh all the evidence and find whether plaintiff’s evidence proved ■ falsity or defendant’s evidence proved truth. It cannot find both to be true. If it find falsity proven, the defendant’s issue of truth must of necessity be resolved negatively and plaintiff will prevail. We do not perceive anything incongruous in such a course. The jury herein seems to have encountered no difficulty.

With respect to the claimed error in the court’s charge that the burden was improperly placed upon plaintiff to prove that defendants published their' cartoon in furtherance of an intent to injure her character and reputation it must be kept in mind that plaintiff in six of the eight paragraphs of her stated cause of actioil specifically charged that all of which she complained was done by defendants and “intended” by them to injure her. A seventh paragraph infers a like motive. She not only prays for compensatory damages but for punitive damages as well. The element or issue of intentional injury is of considerable importance in the award of punitive damages. It may and should play an important part in determining the amount thereof. Plaintiff vehemently stressed that charge and made it an issue which defendants were compelled to meet. We do not think that plaintiff should be heard now to complain of that which she provoked. The- rule is that where a litigant leads a court into commission of error, that party may not be heard thereafter to complain thereof. A second reason suggests itself. Surely where one relies on innuendo, that which was intended to be inferred therefrom is so closely related to the issuable elements of libel as to be inseparable therefrom.

Neither does this court find that the trial court erred in failing to separate and define the issues of the case. There was no mere reading of the pleadings. We think the court, in view of a dirth of Supreme Court precedent, did a creditable job in its instructions to the jury on the law which should govern its deliberation. It correctly defined the issue. If it is subject to any criticism it is one of sequence rather than a non-conformance to the rule of the Lockwood case. Counsel were asked at the conclusion of the charge if they had any suggestion. The replies to the query were, “None, your Honor.”

Plaintiff next complains of the court’s refusal to give plaintiff’s special requests Nos. 2, 6 and 7 before argument. Request No. 2 is rather long. It has to do with plaintiff’s theory that if the jury found the cartoon was intended to depict Judge Westropp as a corrupt judge devoid of judicial integrity the jury’s verdict must be for plaintiff. It is predicated on plaintiff’s theory that she need not prove falsity, which is contrary to what this court has hereinbefore held, and that defendants could be relieved from liability only upon proof of the defense of truth. It entirely ignores the issue of qualified privilege, proof of which would likewise require a verdict in defendants’ favor For the two reasons indicated, we hold the request to have been refused properly.

Request No. 6 reads: “With respect to the defense of privilege, which is pleaded by the defendant, I say to you that there is no privilege with respect to the report of a judicial proceeding, unless the report is accurate and impartial in its account of what actually occurred in the proceeding.” This charge was refused correctly for several reasons. The only defamatory matter of which plaintiff complained was the cartoon, which is clearly not a report of a judicial proceeding. She did not aver that the prior and contemporary news articles, which defendants claimed and proved were a true and unbiased report of a judicial decision, were libelous. What the defendants actually did plead was that the cartoon fairly portrayed the justifiable opinion of the Cleveland Press upon the facts of the Weinzimmer case and the court’s action thereon, and that it fairly and honestly exhibited its criticism on a matter of public interest and was fair comment on the official conduct of a public officer.

Request No. 7 is in this language: “While it is the right of the press, as it is of individuals to freely criticize and comment upon the official action and conduct of a public officer, false and defamatory words spoken or published of him as an individual, are not privileged on the ground that they related to a matter of public interest, and were spoken or published in good faith.” This request is a correct statement of law where a plaintiff has pleaded and proved that defamatory matter has been published of a public officer in Ms individual capacity. It is true that plaintiff pleaded that the cartoon libeled her in that an innuendo deducible therefrom depicted her as an immoral' and corrupt woman conducting her court room in a disreputable manner as a house of ill fame. No tendered evidence in proof of any such innuendo was received in evidence. No proof of the pleaded issue having been made, it should be clear that the request was not responsive to an issue that the jury must solve. It was therefore properly refused. We note that, the court in its general charge specifically cautioned the jury to disregard the matter of personal defamation for the reason no proof had been made thereof.

Plaintiff, however, further urges that this request was proper because of another error committed by the trial court. During the course of trial, evidence was introduced to establish how the cartoon came into existence. It was shown that a free lance artist drew it. When first offered to the Cleveland Press the legend on the back bar read'“ Diamond Lil’s Place.” Editor Seltzer refused to purchase and publish it until the word “Diamond” was removed, because he wanted the cartoon directed exclusively to the court and no place else. It further appears that a motion picture, starring an actress specially talented in emotional roles, and known as “Diamond Lil,” had previously been shown in Cleveland. This picture, so plaintiff says, showed bar room scenes where prostitutes congregated and depicted “Diamond Lil” as its proprietor; and the Cleveland Press advertised and commented unfavorably upon this picture.

It is apparent that plaintiff was seeking-by this line of evidence to develop her pleaded innuendo and make proof thereby that the cartoon was defamatory of her character as an individual. It is equally clear that in order to accomplish this purpose, plaintiff as a fact must write into the cartoon’s back bar legend the word “Diamond,” which does not appear in the picture, and which Editor Seltzer refused to purchase and publish until the word was deleted therefrom. This last fact is not controverted.

Here is a definite attempt to use the office of an innuendo, not merely to explain, but to enlarge and extend the import of the claimed defamatory language, contrary to the general rule hereinbefore quoted from 33 American Jurisprudence, 220, Section 241. Except as to proof of origin of the cartoon, the court instructed the jury to disregard this evidence. We think that the court was right in so doing.

It is maintained that the trial court committed further error in its refusal to permit the introduction of a subsequent editorial which plaintiff claims exhibits defendant’s malice towards plaintiff. This editorial has been made the subject of a second independent action. It concerns an entirely unrelated matter. It is styled “Blood on our Judges.” It reproaches and criticizes four municipal court judges, one of whom is Judge Westropp, for granting continuances in a criminal case against one Spruiel, a notorious Cleveland vice figure. During the course of these continuances, Spruiel killed one person and wounded a police officer. If this editorial exhibits malice, even though it be in an unrelated matter, it was of course admissible for that purpose. The trial court exhibited a knowledge of the fact that our Supreme Court had so held. See pages 90 to 94 of the record. When these pages are examined, it appears that during the statement of plaintiff’s case by her counsel, reference was made to the “Blood on our Judges” editorial. Whereupon defense counsel stated that they were not ready to try the second case, and if this evidence was to be admitted, then defendants were asking for a continuance. The record is not explicit; however, it is reasonably clear that the court was disposed to grant a continuance. Counsel for plaintiff evidenced an intention to waive the point and trial proceeded:

The record discloses that plaintiff’s- counsel proceeded to state he again wished the record to show he renewed his application to the court for permission to show for a limited purpose only of establishing malice, the “Blood on our Judges” editorial. Defendants objected and the court sustained the objection.

To this claimed error, oiir first comment is that it is' totally inconsistent with plaintiff’s prior claim on the burden of proof on the issue ,of malice in the court’s general charge. Second, plaintiff’s counsel seemingly acquiesced in the court’s conclusion made during plaintiff’s statement of her case; at least the court and opposing counsel were so led to believe. This being true, it was hardly proper that plaintiff again insist upon the editorial’s competency. To our notion that had ceased to be the major question. It had become one of court ethics. We think the court was entirely within* its rights in refusing its admission.

Defendants inform us that there is but one reported case, Gambrill v. Schooley, 95 Md., 260, 52 A., 500, 63 L. R. A., 427, which considers the question of admissibility of a prior or subsequent defamatory statement for the purpose of proving malice, when it is the subject of an independent pending action for defamation. We find no other. The conclusion expressed by the Maryland court that such is not admissible appeals to this court as a fair exception to the general rule adopted by our Supreme Court, which has never considered the precise point confronting this court.

If plaintiff is permitted to insist upon the document’s admissibility, then two or more libel actions may, without consolidation, be tried in each of the two or more’ cases: At least the principal issue of malice may be so tried. It might well inflame the juries and result in unconscionable verdicts which a court’s cautionary charge could remedy only by entering remittiturs or by granting new trials. It would also promote confusion. It would require the trial court to find as a matter of law that the subject matter of the second pending action not then being tried was libelous per se in advance of trial. If it were not defamatory on its face without the aid of innuendo, it could hardly be fair proof of malice. There are a number of instances when tendered evidence is competent and relevant to the point in issue, but is not received in evidence for obvious sound reason.

It is finally urged that the verdict is against the weight of the evidence and that a new trial should have been granted. We do not so find.

Wo find no error in this case prejudicial to the rights of the plaintiff (appellant). The judgment may be affirmed.

Judgment affirmed.

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

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


author: Carpenter, J.

text:
    The State, ex rel. VanStone et al., v. Carey et al.

      (No. 4083
    Decided December 18, 1944.)

      Messrs. Yager, Bebout é Stecher, for relator.

      Mr. Joel 8. Bhinefort, prosecuting attorney, Mr. Charles H. Brady, Mr. Harold W. Fraser and Mr. Francis J. Gallagher, for respondents.
   Carpenter, J.

This is an action in mandamus originating in this court to require the judges of the Court of Common Pleas to enter on the journal of that court an order overruling-'a motion for a new trial and a final judgment on a verdict returned in favor of the relator in an action to contest a will. To the petition the respondents have filed a general demurrer.

The petition alleges that the relator is the principal .beneficiary under, and the executrix of, the last will and testament of Ethel D. VanStone, and that Katherine VanStone Mayer filed the action to contest that will. On December 4, 1943, a verdict sustaining the will was réturned by the jury after a trial at which Judge Herman A. Krueger presided. A motion for a new trial was duly filed by the contestant, and on April 6, 1944, Judge Krueger “entered and recorded on the motion docket in said cause the following with respect to said motion for a new trial: ‘ Overruled; See J. E. Krueger.’ ”

The petition further alleges that on “April 7, 1944, counsel for relator, in conformity with the rules of. practice of the Court of Common Pleas, prepared and submitted to counsel for plaintiff # ’X! * a journal entry entering judgment upon the aforesaid decision of the trial judge; that counsel declined to approve said entry, assigning as a reason therefor the then illness of the court reporter who had officiated at the trial of said cause, and counsel requested counsel for relator to withhold filing said journal entry until the condition of health of said court reporter could be more definitely ascertained, which request was granted.”

On May 16, 1944, the reporter died, and on July 10, 1944, Judge Krueger died. The petition alleged “that at that time his decision overruling said motion for a new trial remained unvacated and unmodified on the record of said cause.”

On September 1, 1944, relator filed “a motion for entry of judgment pursuant to the aforesaid decision of the trial judge overruling the motion for a new trial, ’ ’ which three of the respondents, acting for that court, overruled- and, instead, granted the motion for a new trial for error in the charge to the jury.

The sole question now before this court is whether the notation Judge Krueger made on the motion docket of the Court of Common Pleas is such evidence of his decision overruling contestant’s motion for a new trial that the respondents as his successors in authority can now be compelled by mandamus to put upon the journal of that court an entry overruling that motion and entering a final judgment on the verdict.

The answer to this is found in the statutes of Ohio relating to the entry of judgments and orders and the decisions of the Supreme Court ' construing them. Counsel for relator cite the decisions of many outside jurisdictions, but an examination of all of them fails to yield any help on our specific question due to the differences in the controlling statutes or practice of the courts.

The first statute to claim attention is Section 11599, General Code, which tells lohen a judgment is to be entered and is as follows:

“When a trial by jury has been had, judgment must be entered by the clerk in conformity to the verdict, unless the verdict is special, or the court orders the case to be reserved for future argument or consideration immediately after the time for the filing of a motion for a new trial if it has not been filed. AVhen a motion for a new trial is filed, then such judgment shall be entered only when the court has sustained such verdict by overruling the motion. Upon such overruling it shall immediately be entered.”

This provides for two types of action. If no motion for a new trial is filed and no reserve order is made by the court, it is the duty of the clerk to enter judgment on the verdict. This is a ministerial duty. AVhen such motion is filed or reserve order is made, a judicial duty devolves upon the court and a judgment cannot be entered until the court, exercising its discretion on the questions presented, has performed that duty by overruling the motion.

• Section 2878, General Code, tells ivhere entries shall be made by providing what record books the clerk must keep; among them is a trial docket and a journal. No provision is made for a motion docket. Some courts, and it can be inferred from the allegations of the petition that the Common Pleas Court was one of them, keep motion dockets for their own convenience.

Section 11604, General Code, tells how entries shall be made:

“All judgments and orders must be entered on the journal of the court, and specify clearly the relief granted or order made in the action. The entry must be written into the journal as soon as the entry is filed with the clerk or directed by the court and shall be journalized as of the date of the filing of said entry or of the written direction by the court.”

That a court speaks only through its journal has been said by the Supreme Court many times. State, ex rel. Indus. Comm., v. Day, Judge, 136 Ohio St., 477, 26 N. E. (2d), 1014, and cases there cited. The latest decision is that of State, ex rel. Curran, v. Brookes, Jr., 142 Ohio St., 107, 50 N. E. (2d), 995.

In the recent decision in Krasny v. Metropolitan Life Ins. Co., 143 Ohio St., 284, 54 N. E. (2d), 952, that court said:

“A judge’s trial docket is not a part of the record of the court and a notation thereon by the trial court as to its decision or judgment does not constitute a ‘decision’ within the purview of Section 11564, General Code.”

If a trial docket, which is mentioned in Section 2878, General Code, “is not a part of the record of the court, ’ ’ surely a motion docket which is mentioned nowhere in the code is not a part of the record of the court, and an entry in it has no force as a “decision.” It may be evidence as to what the judge thought when he made it. The notation made by Judge Krueger— “Overruled; See J. E.” and the time that elapsed before his death with nothing more done by him indicates that he knew, and surely the parties knew, that a formal entry of the court’s action would have to be filed to give it effect, as a judgment. The fact that the relator brought this action indicates that she still recognizes this.

While Judge Krueger lived he had the power, acting for the court, to determine the judgment to be entered; he might have approved and filed a journal entry the converse of the notation he had made on the motion docket. That power was not personal to him; it did not die when he did; it still resided in the court; it had not been exercised. As that is a power the use of which requires discretion, how it shall be exercised can not be controlled by mandamus. Appeal affords an adequate remedy for errors, if any, committed in the exercise of that discretion.

The demurrer to the petition is sustained.

Demurrer sustained.

Lloyd and Stuart, JJ., concur.


author: Jackson, J.

text:
    Weis, Appellee, v. Weis et al., Appellants.
    (No. 351
    Decided December 13, 1945.)

      Mr. Rex W. Hanna and Mr. Alfred F. Brindley, Jr., for appellee.

      Mr. Roy Warren Roof and Mrs. Rernedette R. Hines, for appellants.
   Jackson, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hardin county, Ohio.

The only pleading in the Common Pleas Court is the petition, which was followed by an entry of the court reciting in substance that no issue having been made up by the pleadings the issue is made that the issue of fact be submitted to and tried by the jury, to wit: “Is the writing produced the last will of Fred S. Weis, deceased?,” which is in accordance with the provisions of Section 12082, G-eneral Code.

After four days trial the jury returned a verdict signed by eleven members thereof, finding that the proffered paper writing was not the valid last will and testament of decedent, Fred S. Weis. Motion for a new trial was filed and overruled and judgment was entered on the aforesaid verdict. In due course, an appeal on questions of law was taken to this court.

The undisputed facts are that the testator, Fred S. Weis, oil May 20, 1943, at approximately 10:30 a. m., entered the San Antonio Hospital at Kenton, Ohio; that on June 7, 1943, while in the hospital and on the 18th day in the hospital, he signed the purported last will and testament in the presence of his personal physician, Dr. E. S. Protsman, and the attorney who drafted the document, Bernedette R. Hines, as attesting witnesses; that the testator occupied room number 321 in the hospital until June 6, 1943, when ho was removed to room number 210 in the same hospital; and that the testator died at 7:20 p. m., on June 15, 1943, the 26th day of his confinement in the hospital.

The assignments of error consist of 14 specifications.

No prejudicial error occurred in the overruling of the motion for a new trial, or in the charge of the court to.the jury, and the verdict is not contrary to law, not contrary to the evidence or is it against the manifest weight of the evidence. This disposes of assignments of error Nos. 1, 7, 10, 11 and 12.

The arguments of counsel to the jury after the completion of the evidence are not contained in the record, for which reason assignment of error No. 8 is overruled, no consideration being given thereto.

The defendants failed to renew their motion for a directed verdict after the close of all the evidence, for which reason assignment of error No. 13 is not well taken.

Within the general issue as made up by the record there may be included and generally are included a number of issues special in their nature, which are: 1. That the testator was lacking in mental capacity. 2. That the testator was unduly influenced as that term is defined by law. 3. That there was a defective signing or attestation. 4. That the testator was not of legal age. Niemes v. Niemes, 97 Ohio St., 145, 150, 119 N. E., 503.

Also, there is the issue as to the capacity of the plaintiff to bring the action, as well as to what his relationship might be to the testator.

In consideration of the fact that the plaintiff in the eas'e was the adopted son of testator it was proper for him to show this relationship by the records of the court wherein the adoption proceeding occurred. Since the adoption documents were identified and were offered to prove that fact, it was proper that as an exhibit it should go to the jury during its deliberations. There is no merit in assignment of error No. 14.

There was no prejudicial error or abuse of discretion on the part of the court as to assignment of error No. 9, for which reason it is overruled.

Assignments of error Nos. 2 and 5 are not well taken and are overruled.

A specially qualified witness is one who has had special opportunities for observation and who testifies as to facts based thereon, as distinguished from the true expert who has the knowledge, skill, experience, and training adequate to make his judgment an intelligent one helpful to the jury and who testifies upon the basis of assumed facts stated in a hypothetical question. Agler v. Schine Theatrical Co., Inc., 59 Ohio App., 68, 17 N. E. (2d), 118, 27 Ohio Law Abs., 194.

Assignments of error Nos. 3, 4 and 6 pertain to the admission of the hospital records and the evidence adduced therefrom by the testimony of various witnesses in connection with such hospital records.

Effective September 6, 1939, Section 12102-23, General Code, was passed by the Legislature, and reads as follows:

“A record of an act, condition or event, shall, in so far as relevant, be competent evidence if the custodian or the person who made such record or under whose supervision such record was made testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.”

The trial court must have been of the opinion that the sources of information, method and time of preparation were such as.to justify their admission because the hospital records of San Antonio Hospital were admitted.

The records consist of the entrance slip, the physician’s directions, urine and blood analyses and the daily charts of the general nurses who had.charge of the testator as a patient from the time of his entrance into the hospital until his decease. There were no special nurses. The records do not show any prognoses or diagnoses by the attending physician.

In addition to the admission of the hospital records, as above noted, the doctor and the various nurses testified orally and were cross-examined at length as to the records.

The two questions which present themselves to this court in consideration of assignments of error Nos. 3, 4 and 6, are: 1. Are hospital records, as such, proper evidence by virtue of Section 12102-23, General Code? 2. If admissible, what effect has Section 11494, General Code, upon the hospital records’ admissibility?

Section 11494, General Code, is the privileged communication section, wherein a physician shall not be permitted to testify concerning a. communication made to him by his patient in that relation, or his advice to his patient.

The contention is made that the hospital records, as such, even though made by the nurses, are subject to the general supervision of the physician of the testator and therefore become privileged communications, and should be excluded.

The courts have had some difficulty with this problem. In the case of Prudential Ins. Co. v. Heaton, 20 Ohio Law Abs., 454, the Court of Appeals for the Third Appellate District, found that hospital records are at the most only memoranda of the facts, and not public records and are inadmissible under the privileged communication rule, although they may be used to refresh the recollection of a witness having knowledge of the facts shown. This decision was prior to the effective date of Section 12102-23, General Code.

Hospital graphs showing a patient’s temperature, pulse and respiration while in the hospital and other records as to the patient’s condition, showing medication and treatment, all made by nurses in attendance, where limited in effect to statements of fact and excluding opinions and diagnosis, were admitted as sufficiently worthy of credence and of sufficient trustworthiness to be admitted in evidence under the “shop book” rule exception to the hearsay rule. Steiger v. Coca Cola Bottling Co., 31 Ohio Law Abs., 215; Kellogg v. Industrial Commission, 60 Ohio App., 22, 28, 19 N. E. (2d), 511; Contra: Lamarand v. National Life & Accident Ins. Co., 58 Ohio App., 415, 16 N. E. (2d), 701.

Those cases were decided before September 6, 1939.

“Shop book” records, when the original entries are made at the time of the transaction, become a part of the res gestae of the transaction to which they relate and as such are competent where the transactions themselves are in issue. Leonard, Jr., v. State, 100 Ohio St., 456, 127 N. E., 464.

In the case of Eikenberry v. McFall, 33 Ohio Law Abs., 525, 36 N. E. (2d), 27, decided on January 14, 1941, after the effective date of Section-12102-23, General Code, the court sustained the exclusion of hospital records and also found that Section 12102-23, General Code, does not inferentially repeal Section 11494, General Code, nor may it be considered as an exception to the general' provisions of such general privilege statute, and that an attending physician’s report concerning a patient in a hospital is privileged notwithstanding it is contained in the hospital record offered in evidence.

In Lumpkin v. Metropolitan Life Ins. Co., 75 Ohio App., 310, 62 N. E. (2d), 189, the court held that a record made in a general public hospital showing diagnoses and treatment of an insured, and identified by the custodian of the official records of the hospital, made in the regular course of the operations thereof, may be introduced in evidence. That case was certified to the Supreme Court as a conflict case with the cases of Eikenberry v. McFall and Lamarand v. National Life & Accident Ins. Co., supra.

However, in Lumpkin v. Metropolitan Life Ins. Co., as reported in 146 Ohio St., 25, 64 N. E. (2d), 63, the Supreme Court found it neither necessary nor proper to interpret Section 12102-23, General Code.

The modern rules with reference to the admission of hospital records, as formulated from the decisions of other states, are as follows:

If the hospital records are admissible a witness may use them to the fullest extent, incorporating the records with his testimony and delivering it as an exhibit to the jury as a part thereof. The entries then become no longer hearsay but are adopted by the witness on the stand and he is subject to the fullest cross-examination on that as on all other parts of his testimony. 5 Wigmore on Evidence (3 Ed.), Section 1560.

The medical records of patients at a hospital, organized on the usual modern plan, should be admissible on the identification of the original by the keeper. The calling of all the individual attending physicians and nurses who have co-operated to make the record, even of a single patient, would be a serious interference with the convenience of hospital management. Hence arises the necessity therefor. There is also a circumstantial guarantee of trustworthiness in these records, for the records are made and relied on in affairs of life and death. Moreover, amidst the day-to-day details of scores of hospital cases the physicians and nurses can ordinarily recall from actual memory few or none of the specific data entered. They themselves rely upon the record of their own actions. Hence, to call them to the stand would ordinarily add little or nothing to the information furnished by the record alone. The occasional errors and omissions occurring in the routine of a large staff are no more an obstacle to the general trustworthiness of such records than are the errors of witnesses on the stand. And the power of the court to summon for examination the members of the recording staff is a sufficient corrective, where it seems to be needed and a bona fide dispute exists.

Accordingly, in some states such hospital records have by statute been made admissible. Such statutes should receive universal sanction. 6 Wig-more on Evidence (3 Ed.), Section 1707.

In view of the conflicting holdings of the Ohio courts existing at the time of the adoption of Section 12102-23, General Code, with reference to the admission of hospital records in evidence, and the modern trend to admit such records in evidence, it would seem clear that the Legislature, in the adoption of such section, intended to prescribe that notwithstanding such records may contain matters which would otherwise be privileged, such records are nevertheless admissible by virtue of the provisions of the section, and we so hold.

Blit assuming that notwithstanding the provisions of Section 12102-23, General Code, the hospital records admitted in the instant case contained matters which were privileged under the provisions of Section 11494, General Code, the physician employed by the testator was an attesting witness to the will and was called to the stand by the defendants and was examined by them generally as to the mental and physical condition of the testator, the course of treatment prescribed by him for the testator, the hospital records, and other facts in issue in the case. The testator, by procuring him to sign as a subscribing witness to his will, waived the provisions of Section 11494, General Code, and consented to him testifying to matters which had a bearing on his capacity to make a will, and any other fact affecting the validity of the will. Nicholl, Exr., v. Bergner, 76 Ohio App., 245; Knepper v. Knepper, Exr., 103 Ohio St., 529, 134 N. E., 476.

And the defendants by calling the physician as a witness and examining him generally, as above mentioned, waived any claim they may have had under the provisions of Section 11494, General Code, as to the privileged character of the communications of the physician that might appear in the hospital records. Consequently, in any view that may he taken of the matter, the hospital records were properly admitted in evidence.

The nurses were properly ■ examined as specially qualified witnesses.

For the reasons mentioned, no errors in the partic-’ ulars assigned by defendants, appellants herein, having intervened, the judgment of the lower court will be affirmed without penalty.

The judgment and reasons therefor being in conflict with the cases of Eikenberry v. McFall, supra, and Lamarand v. National Life & Accident Ins. Co., supra, this case is certified to the Supreme Court of Ohio.

Judgment affirmed.

Guernsey and Metcalf, JJ., concur.

Metcalf, J., of the Fourth Appellate District, sitting by designation in the Third Appellate District.