author:
Carpenter, J.
      Conn, J.,

text:
    Cassidy, Appellee, v. The Ohio Public Service Co., Appellant.

      (No. 603
    Decided November 10, 1947.)

      Messrs. Murray & Murray, for appellee.

      Messrs. Flynn, Py £ Kruse and Mr. F. H. Buckingham, for appellant.
   Carpenter, J.

This appeal on questions of law by the defendant followed a judgment for plaintiff for $75,000 for injuries resulting from serious burns and shock from a current of electricity coming from defendant’s lines while plaintiff was engaged in laying large sewer pipes across the intersection of Mills and Buchanan streets in Sandusky. That work was being done by plaintiff’s employer, The Kalill Company.

This 'matter has been in this court on two earlier appeals. . The first, Cassidy v. Ohio Public Service Co., 74 Ohio App., 355, 58 N. E. (2d), 802, related to preliminary matters in an earlier case in which the petition was dismissed.

An appeal, Cassidy v. Ohio Public Service Co., 78 Ohio App., 221, 69 N. E. (2d), 648, followed a judgment on a directed verdict for defendant. That judgment was reversed with a remand for a new trial. (A motion to certify the record was overruled by the Supreme Court June 12, 1946.)

In the report of the latter decision by this court, the issues and most of the facts are stated and will not he repeated here. In that trial the verdict was directed at the close of plaintiff’s case; in this case', there was an evidence defense which disputed every fact question. These disputes the jury resolved in favor of the plaintiff.

One of the assignments of error is that the verdict was against the weight of the evidence on both the issues of liability and of damages. This contention is not sustained, nor is the kindred one that the amount, of the verdict indicates that it was influenced by passion and prejudice.

In this appeal, the defendant assigns as error the failure of the court to dismiss the petition because the action was barred by the statute of limitations. The plaintiff was injured on February 10, 1941. On July 7, 1941, he filed an action for damages. On July 30, 1943, on motion, the court ordered certain parts of the petition stricken out, and, plaintiff refusing to file an amended petition, the court dismissed the cause. On that phase of the order, the journal entry says:

“And the court having been advised by the plaintiff that he refuses to abide by the order of this court in relation to filing a third amended petition complying with the sustaining of defendant’s specifications numbers 3, 4 and 5 of the motion to strike, for the reason that said plaintiff intends to appeal the rulings of this court in relation to said specifications numbers 3, 4 and 5, it is therefore ordered, adjudged and decreed that plaintiff’s petition be dismissed. Exceptions to plaintiff saved.”

That order was affirmed by this court (74 Ohio App., 355) on October 11,1943. This case was filed on April 26, 1944, which was less than one year from July 30, 1943, the date of the dismissal of the first case, but more than two years from February 10, 1941, the date of injury.

The defendant contends that the plaintiff voluntarily dismissed his first case, hence, that he is not entitled to the protection of Section 11233, General Code, which provides' in part that “if the plaintiff fails otherwise than upon the merits, and the time-limited for the commencement of such action at the-date of' * * * or failure has expired, the plaintiff * * * may commence a new action within one year.”

From the record of the trial court in the first action,, and the report of the decision of this court, it does not appear that either court treated, or was warranted in treating, that dismissal as voluntary on the part of' plaintiff. It was the action-of the court, as pointed out by Judge Lloyd in the opinion of this court, and plaintiff failed “otherwise than upon the merits.”

Again it is urged that the ordinance of the city of Sandusky requiring electric lines to “be covered with a waterproof insulation” was not applicable here. In the former review (78 Ohio App., 221) this court discussed that phase of the case and it is content with what was said and done on that subject. It was there said that “As these defenses are factual in character, they can not be considered and determined on the present record.”

In this trial, defense evidence on this subject was presented and it raised fact questions, particularly as to whether the failure to insulate the wires was the proximate cause of the damages. That question was fairly submitted to the jury.

Several assignments of error relate to incidents in the trial concerning two specifications of negligence alleged in the amended petition, as follows:

“3. In that although there was a clear view to and from the intersection of Mills and Buchanan streets and defendant’s substation, and defendant could have and should have seen the machinery which The Kalill Company was operating, and the direction in which said machinery was proceeding, and that it would come within proximity to its high tension wires, said defendant failed and neglected to make arrangements to shut off its current or to shut off its current at such time when this machinery would be in the vicinity or near to these high tension wires.” (Italics added.)

“5. In that although this defendant had actual knowledge of the presence of machinery which was so constructed and which in its operation must necessarily come within range of its high tension wires, it failed and neglected to make arrangements to shut off its current or to- shut off its current at such times when this machinery would be in the vicinity or near to these high tension wires.” (Italics added.)

Plaintiff offered no evidence to sustain these charges of negligence, that defendant “failed and neglected to make arrangements to shut off its current.” Notwithstanding this state of the evidence, the defendant, perhaps assuming that the matter of “arrangements to shut off its current” was peculiarly within its knowledge, called as a witness its general line foreman and inquired of him about a conversation he had in behalf of defendant with Kalill, the sewer contractor, when his work was “a couple hundred feet” from the Mills and Buchanan street intersection. To this plaintiff objected for the reason that he was not present. His objection was sustained.

The defendant then offered to prove that the witness told Kalill “that when they got to using the big crane near the power lines, Mr. Kalill should call the Ohio Public Service Company and they would then take the lines out of service.”

The “big crane” referred to the equipment used in placing in the trench the large six-foot by six-foot concrete tile and by which the contact was made with the current which caused plaintiff’s injuries as he guided the tile with his hands. Another type of equipment called a £ back-hoe ’ ’ was used to dig the thirteen-foot-deep trench. It also appears that when the trench work got to that intersection, it was necessary to lower the water pipe on Mills street before the sewer trench could be dug across it. This delayed the sewer work two or three days.

After plaintiff’s injury, the defendant’s lines were taken out of service before the sewer work was completed under them. To do this, the currents over them had to be literally detoured, which was quite a complicated procedure and required several hours work by a crew of linemen, and had to be done at a time and in such way that service to defendant’s patrons would be inconvenienced as little as possible.

Whether the defendant “failed and neglected to make arrangements to shut off its current” was a question raised by plaintiff in his amended petition. How could such £ £ arrangements ” have been made but by such verbal acts of the representative of the defendant and sewer contractor, as stated in the proffered evidence ? Certainly it could not have been made with plaintiff, who had no authority in the matter. He was not even a foreman on the sewer job. The question was not the truth of the statements made, but was an arrangement made? The verbal acts of the line foreman speaking with the contractor about “shutting off the current” was primary evidence on an issue in the case. It was not merely a part of the res gestae.

The evidence principle was stated in 6 Wigmore on Evidence (3 Ed.), 185, Section 1770, as follows:

“Where the utterance of specific words is itself a part of the details of the issue under the substantive law and the pleadings, their utterance may be proved without violation of the hearsay rule, because they are not offered to evidence the truth of the matter that may be asserted therein.”

In another way, it is stated in 22 Corpus Juris, 287, Section 313:

“An unsworn statement may not only furnish circumstantial evidence of relevant facts, or constitute part of a transaction or occurrence,- but it may also, in and of itself, bring about, or assist in bringing about, a legal result, in which case proof of the statement is necessarily relevant, because the fact of making the statement is an issue in the case.”

A later statement of this is found in 31 Corpus Juris Secundum, 1012, Section 260.

A similar situation arose in Blanchard v. Child, 73 Mass. (7 Gray), 155. That was an action to replevin an omnibus. The defendant claimed to have purchased it at a judicial sale to satisfy the debt of the one in possession of the bus. The plaintiff offered a witness to a conversation he had with that judgment debtor to the effect that the debtor had possession under a conditional sale contract. As in this case, the defendant objected for the reason he was not present at the conversation. The court said:

“The evidence offered to prove the agreement- of sale was clearly competent. It was not hearsay, but legal proof of a contract of which there was no other or better evidence. It was evidence of a fact, and not of a mere conversation or declaration. It being necessary to prove the agreement, of which there was no written evidence, it might be shown by the testimony of any one who was present when it was made.”

To like effect are Hankins v. Young, 174 Ia., 383, 156 N. W., 380; Liberty Bank v. Ernst, 93 Cal. App., 560, 269 P., 959; Cannon v. Chadwell, 25 Tenn. App., 42, 150 S. W. (2d), 710; Patterson-Stocking, Inc., v. Dunn Bros., 201 Minn., 308, 276 N. W., 737; Twedell v. Treasure (Mo. App.), 44 S. W. (2d), 216.

Subsequent incidents in the trial made the rejection of this tendered evidence highly prejudicial. At the close of all of the evidence, the defendant moved the court to withdraw from the consideration of the jury various specifications of negligence, including 3 and 5, and expressly referred to the language “failed and neglected to make arrangements to shut off its current.” The reason given for the motion was that there was no proof that such arrangements were not made. The plaintiff opposed this motion, and reiterated his objection to the tendered testimony, and the court overruled the motion. That having been done, the court in its charge, in stating the issues, consistently included these specifications of negligence; and in its summation it told the jury if it found the defendant negligent “in one or more of the ways set forth in the plaintiff’s petition,” etc. “your verdict will be for the plaintiff.” There being no proof on that question, the court should have granted the defendant’s motion to withdraw it, but not having done that, the defendant should have had the benefit of its tendered evidence on the subject.

For this error, the judgment is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded.

Stuart, J., concurs.

Conn, J.,

dissenting. The issue in the instant case is whether the negligence charged in the amended petition was the proximate cause of plaintiff’s injury and damage. The amended petition of plaintiff contains nine specifications of negligence. The verdict of the jury may rest on negligence charged in one or moré of the several specifications, as it is not disclosed by the record whether one only, or two or more of the alleged acts or omissions of defendant were found by the jury to be sustained by a preponderance of the evidence.

The assignment of error held to be prejudicial to the defendant was the rejection of certain testimony offered by it in relation to the alleged negligence of defendant set up in specifications 3 and 5 of the amended petition.

■ Plaintiff alleged, in these specifications, that defendant “failed and neglected to make arrangements to shut off its current or to shut off its current” at such times when the machinery of the construction company would reach a point near its high tension wires, although defendant had a clear view from its substation and could have and should have seen that the machinery of the construction company was in close proximity to its high tension wires and that it had actual knowledge of the proximity of the construction work to these wires.

Plaintiff did not offer any evidence in support of his charge of negligence that defendant “failed and neglected to make arrangements” to shut off its current. Notwithstanding the want of proof as to this specification, plaintiff did not ask leave" to amend his petition by striking out this averment of negligence and neither did the trial court withdraw this averment from the consideration of the jury, as it might well have done, either at the conclusion of plaintiff’s evidence, or at the conclusion of all the evidence and when expressly requested so to do by the defendant.

The defendant nevertheless undertook to show that some arrangement had been made to shut off its power, by asking its witness, the general line foreman, to relate a conversation he had had prior to plaintiff’s injury with Kalill of the construction company. Over the objection of plaintiff, this testimony was not received and its rejection is held to be prejudicial to the defendant.

It seems to me that the material averments of negligence in each of the specifications 3 and 5 are the alleged failure of the defendant to shut off its power as the equipment of the construction company, in the progress of the work, came in close proximity to its high tension wires. The defendant had knowledge of the character of the work and of the type of equipment employed by the construction company. A few days before, it had raised on the poles its 2,300 voltage line at this street intersection where plaintiff was injured, in anticipation of possible harmful contact being made as the construction work progressed in the direction of its high tension wires.

In view of these circumstances and the further consideration that the admission of this testimony would have resulted in opening a wide door in order to receive a conversation between two persons, neither of whom were parties to this action, and concerning which plaintiff had or shared no responsibility, I feel that the sustaining of plaintiff’s objection to the admission of this evidence was within the sound discretion of the trial judge and that its rejection was not prejudicial to the defendant.

On the other hand, if this evidence were competent and if it were error to exclude it, it seems to me that no prejudice in legal contemplation could have resulted to the defendant, as it was offered on a collateral or immaterial issue and an issue upon which plaintiff had offered no evidence.

The material issue raised on specifications 3 and 5 was the. alleged failure of the defendant to shut off its power, having knowledge of all the facts and circumstances relative to the progress of this construction work and the kind of equipment used, and being chargeable with the corresponding duty to exercise ordinary care which this knowledge imposed. It appears this issue was fairly submitted to the jury.

It seems to me the record shows that the parties have had a fair trial and that the judgment should be affirmed.


source: Caselaw Access Project

author: Hurd, P. J.

license: Public Domain

text:
    The State, ex rel. Shaker Heights Public Library, v. Main, Clerk.
    (No. 21014
    Decided March 1, 1948.)

      Mr. Ralph W. Jones, for relator.

      Messrs. Snyder, Seagrave, Roudebush & Adrion, for respondent.
   Hurd, P. J.

This is an action in mandamus originating in this court on the relation of the Shaker Heights Public Library against the clerk of the Board of Education of the Shaker Heights School District to require the clerk to offer for sale certain notes authorized by the school board to be issued to provide funds for constructing a library building.

The action is heard on the petition of the relator, the answer of respondent and a demurrer to the answer. The relator demurs to the answer on the ground that on its face it is not sufficient in law.

The material facts as set forth in the pleadings are not in dispute and are as follows:

In 1921, there was created under authority of Section 7643-1 et seq., General Code, as then in effect, the Cuyahoga County Library District. This library district consisted of taxing districts in Cuyahoga county, not then furnished with tax-supported public libraries, and excluded the school districts of Cleveland, Lakewood, East Cleveland and Cleveland Heights, all of which had tax-supported public libraries prior to 1921.

The Cuyahoga County Library District as so created included all the territory of the Shaker Heights School District, which was then a village school district but became a city school district in 1930.

A board of library trustees was duly organized for the county library district, (and that board proceeded to provide public library service for the county library district, including a portion of that district within the Shaker Heights School District.

In 1937, the Board of Education of the Shaker Heights.School District, acting under the authority of Section 7635 et seq., General Code (115 Ohio Laws, pt. 2, 278), established a public library for the inhabitants of that school district, and created a board of library trustees which under the statute (Section 7638-1) is designated “The Shaker Heights Public Library.” The budget commission of Cuyahoga county immediately allocated to the Shaker Heights Public Library (under the authority of Section 5625-24, General Code) a share of the classified property taxes collected in Cuyahoga county with which taxes (together with certain other funds) the Shaker Heights library trustees have established and operated a public library in the Shaker Heights School District.

So that at present two library boards are maintaining library facilities in Shaker Heights — the county library district board and the Shaker Heights board— and this condition has existed since the Shaker Heights board commenced operations shortly after its creation in 1937.

In 1945, the Shaker Heights library board caused to be submitted to the electors of the Shaker Heights school district the question of issuing bonds for $150,-000 for constructing a library building. The procedure for issuing such bonds and using their proceeds is governed by Section 4005-2 et seq., General Code, which provide that a public library board may request its taxing authority (in this case the Shaker Heights board of education) to submit to the electors the question of issuing the bonds, and that if a favorable vote is secured, the board of education shall issue the bonds and turn the proceeds over to the library board which shall use them to construct the library building. The sections provide also that the library board shall determine whether temporary notes shall be issued in anticipation of the issuance of bonds; and in this case the Shaker Heights library board determined that such notes should be issued.

The electors of the Shaker Heights school district approved the issuance of these bonds by an 80 per cent majority (greatly in excess of the required 65 per cent).

On January 5, 1948, the Shaker Heights board of education adopted a resolution for the issuance and sale of anticipatory notes in an amount of $150,000, which resolution directed the clerk of the board to sell the notes at private sale, which method of sale is authorized by Section 2293-28, General Code. The clerk refused to offer the notes for sale or to sell them, although it is alleged that they could readily be sold if offered.

The clerk’s only reason for refusal, as stated in his answer, is that, at the time the Shaker Heights public library was established, there was and there still is in lawful existence and functioning, a county library district including within its limits all the territory of the Shaker Heights school district.

There are two issues raised by the demurrer:

1. Whether the Board of Education of the Shaker Heights School District had jurisdiction in 1937 to establish the Shaker Heights Public Library, under the provisions of Section 7635, General Code, as it then existed.

2. Whether the repeal of Section 7635, General Code, and the contemporaneous enactment of new Sections 4840-1 to 4840-5, inclusive, General Code (122 Ohio Laws, 166), either expressly or by implication terminated the existence of the Shaker Heights Public Library.

It is clear that if the Shaker Heights board of education lacked jurisdiction in 1937 to establish a public library because of the existence of the county library district, or, if the Shaker Heights library was lawfully established but its existence subsequently terminated by changes in the law applicable to such libraries, then there is no lawfully existing library board which could have initiated the proceedings to issue bonds and notes or could receive the proceeds thereof if they were sold, and the clerk would be right in refusing to sell them. On the other hand, if the Shaker Heights Public Library was lawfully established and had continued in lawful existence, the clerk is under a duty specially enjoined by law by reason of his office to sell the notes and the writ here prayed for ought to issue.

Coming now to a consideration of the first question, the statute under which the Shaker Heights board of education proceeded to organize the Shaker Heights Public Library is Section 7635, which in 1937 read as follows:

‘ ‘ The board of education of any city, village or rural school district, by resolution, may provide for the establishment, control and maintenance in such district, of a public library, free to all the inhabitants thereof. It shall provide for the management and control of such library by a board of trustees to be elected by it as herein provided, which board shall hold title to all such library property. Such boards of education shall also have the power for such purpose or purposes to purchase, erect, construct, enlarge, extend or improve a building or buildings for library purposes, including a site or sites therefor, and equipping and furnishing the same.”

A careful analysis of this section clearly indicates a grant of power to the board of education of any city, village or rural school district to establish, control and maintain in such district a free public library. In pursuance of such purpose there is a further grant of power to purchase, construct and maintain buildings, including sites therefor.

It would be difficult indeed to define a more comprehensive and all-embracing grant of power free from restrictions or limitations. It is true that as contended by the respondent the provisions are permissive and not mandatory. The argument of the respondent raises the question of whether the General Assembly, by the various enactments pertaining to libraries, intended that townships, municipal corporations, school districts and counties might all have overlapping libraries and stresses the fact that under Section 3403 et seq., General Code, municipal corporations may likewise have libraries; that under Section 7635, General Code (115 Ohio Laws, pt. 2, 278), school districts may also establish libraries;‘ and that under Section 2976-11, General Code, the same authority is granted to counties.

It is conceded that these sections confirm the jurisdiction of these respective taxing units to establish libraries. Provisions are also found for levying taxes to support them, as well as other provisions for issuing bonds to provide funds to construct buildings. It is argued, however, that the services provided for are overlapping and that it is illogical that there should be such overlapping services.

It is not within the province of the judicial branch of the government to question the wisdom of legislative enactments or even to question their logic. The primary purpose in the interpretation or construction of statutes is to give effect to the intention of the Legislature, as gathered from the provisions enacted, by the application of well settled rules of interpretation, the ultimate function being to ascertain the legislative will.

As stated in 37 Ohio Jurisprudence, 514, Section 278, “the right of the courts to interpret a duly en•acted statute is based upon some apparent uncertainty •of meaning, some apparent ambiguity of terms, or some apparent conflict of provisions. Where the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation. 'To interpret what is already plain is not interpretation, but legislation, which is not the function of the courts, but of the General Assembly.”

It appears to this court that the language contained in the statutes above cited is generally so plain, clear •and unambiguous that resort to accepted rules of judicial construction and interpretation is unnecessary.

With particular reference to Section 7635, General ■Code (115 Ohio Laws, pt. 2, 278), granting authority for the establishment, control and maintenance of a free public library by the board of education of any •city, village or rural school district for the inhabitants thereof, we repeat that the grant of power is clear and unequivocal and without limitation or qualification. Furthermore, as stated in the relator’s brief, the General Assembly has at no time indicated any intention that the operation of a school library shall be exclusive in any territory. That is easily demonstrable not •only by the language of the sections in question but ■also by the history of library statutes in Ohio.

At the time the formation of county library districts was first authorized by the enactment of Section 7643-1, ■General Code, in 1921, at least four kinds of political ■subdivisions already were authorized to establish free public libraries for their inhabitants.

Townships were so authorized by Section 3403 et seq., General Code, municipal corporations by Section 3620, school districts by Section 7635 et seq., and counties by Section 2976-11 et seq. In none of the stated sections of the General Code was there any restriction on the genera] powers of the subdivisions to provide library service, and, for all that appears in the several acts, all four kinds of libraries might exist in the same area as freely as counties, townships, municipalities and school districts have always so existed.

We conclude, therefore, in answer to the first question posed, that the Board of Education of the Shaker Heights School District did possess in 1937 jurisdiction to create the Shaker Heights Public Library and that such library was lawfully established.

We come now to consider the second question whether there was a repeal of the grant of power or a termination of the authority either expressly or by implication by the repeal of Section 7635, General Code, and the enactment of new Sections 4840-1 to 4840-5, inclusive, General Code.

The statutes under which the Shaker Heights library and county district library were respectively created (Section 7635 and Section 7643-1) remained unchanged from 1937 to 1947. In 1947, the General Assembly enacted a recodification and revision of laws relating to public libraries, which materially changed the law on this subject. Such legislation is known as House Bill 125 (122 Ohio Laws, 166). It was passed May 14,1947, approved June 2, 1947, filed in the office of the Secretary of State on June 5, 1947, and became effective September 4, 1947.

One of the principal changes effected by House Bill 125 was the termination of authority for the creation of township, municipal school district and county libraries.

Section 3403, General Code, authorizing the creation of township libraries, Section 7635, authorizing the creation of school district libraries, and Sections 2976-11 to 2976-17, inclusive, authorizing the creation of county libraries, were all repealed. Section 3620, authorizing the creation and maintenance of municipal libraries, was so amended as to eliminate the authority to establish such libraries.

As the statutes now stand, no kind of public library except a county district library can be created. Therefore, the Shaker Heights board of education cannot today create a school district public library as it did in 1937.

An examination of the new provisions of the General Code, with respect to school district libraries, as set forth in Sections 4840-1 to 4840-5, inclusive, indicates a clear intendment of the General Assembly to continue the existence of school district libraries created before the effective date of such provisions.

Pertinent parts of Section 4840-1 read as follows:

“In any school district in which there has been established, by resolution duly adopted by the board of education of such school district, prior to the effective date of this act, a free public library, such library shall be under the control and management of a board of library trustees consisting of seven members. No one shall be eligible to membership on such board of library trustees who is or has been for a year previous to his appointment a member of a board of education making such appointment. Such trustees shall be qualified electors of the school district and shall be appointed by the board of education of the school district. Such trustees shall serve for a term of seven years and until their successors are appointed and qualified. All vacancies on such board of trustees shall be filled by the board of education by appointment for the unexpired term. The members of such board of trustees shall serve without compensation # * *. Such board of library trustees shall have the control and management of the school district free public library. * * * Nothing in this section shall be construed to affect the term of any member of a board of library trustees of a school district free public library appointed prior to the effective date of this act.” (Emphasis added.) .

An examination of this section shows a clear intention upon the part of the General Assembly to recognize free public libraries established in any school district prior to the effective date of the act. This is again indicated by the provisions of Sections 4840-2, 4840-3, and 4840-4, General Code, and is further emphasized by Section 4840-5, which reads as follows:

“The board of education of any city, exempted village or local school district in which there has been established by resolution duly adopted by such board of education, prior to the effective date of this act, a free public library may purchase, erect, construct, enlarge, improve, equip or furnish a building or buildings for the purpose of rendering free public library service to the inhabitants of said school district. (Emphasis supplied.)

By the section, authority is given expressly to the board of education of any city or local school district, prior to the effective date of the act, to purchase, erect, construct or maintain buildings for free library purposes.

An analysis of all these statutes leads to the inevitable conclusion that although the General Assembly intended to prevent the creation-of any more school district libraries, whether within or without county library districts, it intended equally to continue the existence of school district libraries already established.

In view of the very clear express provisions of the statutes, we think it unnecessary to discuss the proposition that the law generally does not favor repeal by implication, which with sustaining authorities has been presented to us both by way of oral argument and by way of brief.

Respondent has adverted to the proposition that we are here in a large industrial center where energetic groups and taxing districts are more apt to be active and undertake the aggressive use of all these statutes than in more rural or scattered counties, and argues that it should be borne in mind that these legislative •enactments were adopted by the General Assembly and not by Cuyahoga county alone, and, therefore, they should be interpreted in the light of state-wide conditions rather than local.

It appears to us that, whether considered upon the local level or state-wide level, the statutes in question perforce must have equal application and uniform operation throughout the state. The educational and cultural benefit of free public library service is inestimable. The imparting of knowledge and the diffusion of learning through schools, libraries and other ■cultural agencies are matters of equal concern of the state whether the instrumentalities authorized are ■established in industrial or rural centers.

We are convinced that the General Assembly by the recent enactments did not intend to change the status ■quo, and that to hold otherwise would be doing violence to the clearly expressed legislative intent.

It is our conclusion, therefore, that there was no repeal of the grant of power or a termination of the authority either expressly or by implication by the repeal of Section 7635, General Code, and the enactment of the provisions of House Bill 125, including Sections ■4840-1 to 4840-5, inclusive, General Code.

On a consideration of the whole case, therefore, we hold that the relator’s demurrer to the answer of respondent should be sustained.

It appearing that the respondent does not desire to plead further, there being no factual issues involved, the writ in mandamus is allowed.

Writ allowed.

Morgan and Skeel, JJ., concur.


author: Guernsey, J.

text:
    Greenawalt, Admr., Appellee, v. Yuhas, Appellant.

      (No. 920
    Decided April 8, 1947.)

      Messrs. Light & Siferd and Mr. Sylvan Wise, for appellee.

      Messrs. Garling, Kuhn, Marsh & Garling and Mr. A. M. Rodgers, for appellant.
   Guernsey, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Allen county, in an action wherein the appellee herein, Walter Greenawalt, administrator of the estate of Robert Greenawalt, was plaintiff, and the appellant herein, Steve Yuhas, was defendant.

The action is one for damages for the wrongful death of plaintiff’s decedent, which death occurred on July 15, 1945, and was originally brought for the benefit of the father, the mother, the two sisters and the brother of the decedent, but during the trial of the cause in the Common Pleas Court and before its submission to the jury counsel for plaintiff informed the court that plaintiff limited his claim to recovery for the use and benefit of the father and mother of the decedent and not for the use and benefit of decedent’s-other next of kin, and the court so charged the jury.

On the trial, the jury returned a verdict in favor of plaintiff in the sum of $5,000, and, motion for new-trial having been duly filed and overruled, judgment for the amount of the verdict was duly entered, and! that is the judgment from which this appeal is taken*

In his petition the plaintiff alleges his appointment and qualification as administrator, his bringing the-action in such capacity, the death of his decedent, the names of his parents, sisters and brother, and that, the action -is brought for their use and benefit.

Plaintiff alleges further the following facts:

On July 15, 1945, at about 9 p. m., Robert Greenawalt, plaintiff’s decedent, who was seventeen years of age, was driving an automobile, the property of Waiter Greenawalt, in an easterly direction on West Grand avenue in the city of Lima, Ohio. As the automobile driven by plaintiff’s decedent was reaching the intersection where North McDonald street crosses West Grand avenue, an automobile, the property of the defendant, being operated in a southerly direction on North McDonald street by the defendant, or one-Lillian Barto as agent for the defendant, in a careless- and negligent manner, struck the automobile driven by the plaintiff’s decedent throwing him out of the-automobile to the pavement and injuring him so seriously that he died within a few minutes as a direct result of the injuries so suffered. There was no-police officer at the intersection who could have directed defendant to proceed, and there was no traffic control signal there.

West Grand avenue is a much traveled public street and thoroughfare in the city of Lima, and North McDonald street is a public street crossing West Grand avenue.

By the provisions of Sections 44 and 74, Article V, and Section 104, Article VIII, Schedule V of ordinance No. 66-39 of the city of Lima, Ohio, passed July 24, 1937, West Grand avenue where it crosses North McDonald street is a through street and all vehicles travelling on North McDonald street are required by the ordinance to stop before crossing Grand avenue.

The sections of the Lima city ordinance above referred to, are as follows:

“Article V. Operation of vehicles.

“Section 44. Stop before entering a through street..

“(a) Those streets and parts of streets described in Schedule V, Article VIII herein, are hereby declared to be through streets for the purpose of this section.

“(b) When stop signs are erected upon highways intersecting a through street at the entrance thereto or at the entrance to any intersection, every driver of a vehicle shall stop at every such sign or at a clearly marked stop line before entering the intersection except when directed to proceed by a police officer or traffic control signal.

“Section 74. Vehicle entering through highway or stop intersection. The driver of a vehicle shall stop as required by this act at the entrance to a thoroughfare and shall yield the right-of-way to other vehicles which are traveling on the thoroughfare.

“Article VIII, Section 104, Schedule V.

“For the purpose of enforcing the road regulations referred to in this schedule, the main thoroughfares shall be understood to mean all sections of public roads and highways on which busses are operated for the carriage of passengers for hire, along a fixed and regular route under authority granted by the city of Lima, Ohio, in which, the public road or highway lies. Also, the following streets, or parts of streets: Grand avenue, from Union street to Main street, from Main street to Delphos avenue.”

The ordinance set forth above was the law at all times mentioned in the petition, and at all times mentioned herein there was a stop sign erected by the city of Lima on McDonald street at the entrance of the intersection of the street with Grand avenue.

The defendant was guilty of negligence in the following respects:

1. In operating the automobile at the time and place aforesaid at an unlawful rate of speed in violation of the state statutes, to wit, at a speed of more than thirty-five miles per hour within the city limits of Lima.

2. In entering the intersection of Grand avenue from McDonald street without stopping at the stop sign erected by the city of Lima at the intersection, thereby violating the ordinance.

3. In failing to yield the right of way to the vehicle of plaintiff’s decedent which was traveling on Grand avenue, a thoroughfare, thereby violating the ordinance.

4. In that he saw plaintiff’s decedent approaching upon the street and in a position where he was liable to be endangered by the operation of such automobile and failed and neglected to check and control the speed of his automobile so as to have the same under control and to avoid coming into collision with the automobile driven by plaintiff’s decedent.

5. In that knowing that Grand avenue was a through street or thoroughfare he failed to bring his automobile to a stop before entering the thoroughfare, thereby endangering the life of plaintiff’s decedent.

6. In that after he saw the automobile driven by plaintiff’s decedent approaching on Grand avenue, he drove his automobile into the intersection.

The decedent was at all times in the exercise of proper care and his injury and death were caused solely by the negligence and carelessness of the defendant in the manner hereinbefore set forth.

Robert Greenawalt was an intelligent and healthy young man, and by reason of his wrongful death his parents and next of kin have been injured and damaged in the sum of $30,000.

The prayer of the petition is for damages in the sum mentioned, together with the costs of the action.

In his answer to the petition the defendant admits that at the time charged in -the petition plaintiff’s decedent was driving an automobile in an easterly direction on West Grand avenue in the city of Lima; that at approximately the same time and place the defendant was operating an automobile on North McDonald street at or near the intersection of North McDonald street and Grand avenue; and that a collision occurred between the automobile driven by plaintiff’s decedent and the automobile driven by defendant.

Defendant denies that such collision was caused by any negligent act of the defendant; that he was negligent in any other respect set forth in the petition of plaintiff; and each and every, all and singular, the allegations in the petition which are not in his answer expressly admitted to be true.

For his second defense to the petition of plaintiff, defendant embraces all the admissions and denials in the first defense as if fully rewritten at length ■therein, and further says that, if it should be found on the trial of the case that the defendant was negligent in the premises, which negligence defendant expressly denies, nevertheless, the plaintiff’s decedent was guilty of carelessness and negligence which contributed to and caused the collision and damage described in the petition of the plaintiff.

For his reply to the answer of the defendant, the plaintiff denies each and every allegation in the answer, except such as are admissions of the allegations •contained in the petition.

Such of the evidence introduced on the trial of the •cause as is essential to the consideration of the case will be discussed in connection with the several assignments of error.

The defendant assigns error in the following particulars :

1. That there was misconduct of counsel for plaintiff in the conducting of the voir dire examination of the jury, which prevented defendant from having a fair trial.

2. That the court erred in admitting evidence offered by plaintiff over the objection of defendant.

3. That the court erred in giving the three special charges submitted by the plaintiff before argument, over objection of defendant.

4. The court erred in refusing to give the special charges submitted by the defendant before argument.

5. The court erred in its general charge to the jury in the following particulars:

(a) In charging the provisions of the ordinances of the city of Lima pleaded in the petition and denied by defendant in his answer, when such ordinances were not offered in evidence.

(b) In reading to the jury the petition of the plaintiff containing certain words and phrases which had been previously obliterated therefrom.

(c) In charging that all traffic lawfully moving in either direction on Grand avenue had the right of way over traffic approaching Grand avenue on McDonald street, where the ordinance purporting to establish Grand avenue as a main thoroughfare was not offered in evidence.

(d) At the conclusion of the charge and upon the court’s attention being called by plaintiff to the fact that the ordinance of the city of Lima pleaded in the petition had not been introduced in evidence, and upon plaintiff’s request, withdrawing from the consideration of the jury any allegation in the petition or reference.in the court’s charge as to the ordinance of the city of Lima, and then giving to the jury the following instruction: “ * * * which leaves the case standing under the provisions of the state statute, which covers practically the same ground in the manner that the court has covered that subject in the general charge.”

(e) In first instructing the jury that under the provisions of Section 6307-21, General Code, it is prima facie lawful for the operator of a motor vehicle to operate the same at a speed not exceeding twenty-five miles per hour, and then at the conclusion of the charge, at the request of plaintiff, giving the following instructions to the jury: “Ladies and gentlemen, one thing more: in quoting to you from the speed regulations as they are set forth in 6307-21 of the General Code of Ohio, which among other things sets up the prima facie speed limit for highways in different situations, the court indicated that it was a provision that the speed limitation at this particular place was twenty-five miles per hour. Now, the actual provision that seems to apply to this case is the provision of thirty-five miles per hour, so that the statute as it should have been read would be to the effect that ‘it shall be prima facie lawful for the operator of a motor vehicle to operate the same at a speed not exceeding the following: thirty-five miles per hour on state routes or through highways within municipalities outside of business districts.’ In other words, the thirty-five mile speed limit.”

6. That the verdict upon which the judgment was based is against the weight of the evidence and is contrary to law.

7. That the verdict upon which the judgment was based is excessive as to the amount of damages awarded and appears from the record to have been given under the influence of passion and prejudice.

8. That there are other errors of law which prevented defendant from having a fair trial, as is apparent upon the face of the record.

1. The misconduct complained of under this assignment of error is that during the voir dire examination of the jury Fitzpatrick entered the courtroom, whereupon Light, of counsel for plaintiff, called the attention of the jury to him, pointing him out to the members of the jury, and inquired of all the members of the jury whether any of them were acquainted with Fitzgerald, and inquired of talesman Mabel Parlette if she was acquainted with Fitzgerald, who sat in the back of the room, and pointed out Fitzpatrick.

No objections were made by the defendant to those questions and the defendant made no suggestion to the court that the questions mentioned were improper, so that no foundation was laid by the defendant in claiming error in respect to those questions.

Furthermore, it appears from the briefs of the parties that Fitzpatrick, to whom plaintiff’s counsel had referred as Fitzgerald, was the agent for the insur.ance company defending the action, and under those circumstances the questions asked were proper.

2. In his briefs filed herein, defendant has failed to point out where any evidence offered by the plaintiff was erroneously admitted over the objection of defendant, so it is unnecessary to consider this assignment.

3. The three special charges submitted by the plaintiff, and given by the court, to which this assignment refers, are as follows:

“Plaintiff’s special request No. 1.

“I charge you, ladies and gentlemen of the jury, that in this case, it was the duty of the defendant, Steve Yuhas, to yield the right of way at the intersection of McDonald street and Grand avenue to Robert Greenawalt, if Robert Greenawalt was driving in the lawful manner; and so driving, Robert Greenawalt had the right to assume that Steve Yuhas would yield the right of way to him.”

“Plaintiff’s special request No. 2.

“The defendant in this case charges Robert Greenawalt with contributory negligence. The burden is upon the defendant to establish this defense by a preponderance of the evidence, and likewise, to further establish that such contributory negligence contributed to the injuries sustained by Robert Greenawalt.”

“Plaintiff’s special request No. 3.

“It was prima facie lawful for Robert Greenawalt to drive his automobile at a speed of as much as .thirty-five miles per hour immediately before and at the time of the collision.”

Defendant contends that each of these special charges violates the rule that a preargument request to charge must not only state the law correctly and clearly within itself and be pertinent to at least one of the issues to be determined in the case, but should be complete in itself — a complete statement of law on the question involved in it and should contain every element belonging to the proposition.

With reference to the first special request, defendant contends that it violates the rule mentioned for the reason that it does not contain the essential qualification that, if the driver having the right of way discovers that the driver of the other vehicle is not yielding the right of way and has thereby placed himself in a perilous situation, it becomes the duty of the former to use ordinary care not to injure the latter after becoming aware of his perilous position.

The qualification suggested would reflect only upon the issue of the contributory negligence of the plaintiff, raised by -the defense in the answer.

In the case of Swing, Trustee, v. Rose, 75 Ohio St., 355, 369, 79 N. E., 757, 760, the Supreme Court held that subdivision 5, Section 5190, Revised Statutes (Section 11420-1, General Code), pertaining to instructions before argument, “does not contemplate that such written instruction should cover every branch and feature- of a case on trial, including the effect of an affirmative defense of payment, settlement or release.”

And in the case of Makranczy v. Gelfand, Admr., 109 Ohio St., 325, 338, 142 N. E., 688, the Supreme Court held that the defenses of the negligence or contributory negligence of the decedent are affirmative defenses, and, applying the doctrine of the Swing ease, that “the instructions complained of would not be objectionable even though they did not cover the issues raised by such affirmative defenses as claimed by defendant, present plaintiff in. error.”

Following those decisions, we hold that the failure-to add the qualification suggested, to the first special charge as submitted to the jury did not render such special request incomplete or improper.

The defendant contends further that the words,, “and so driving,” imply the existence of a material-fact not disputed and infer that plaintiff’s decedent, was driving in a lawful manner which fact was very much in dispute.

The phrase mentioned, as used, clearly refers back to the last clause preceding it, i. e., ‘‘ if Robert Greenawalt was driving in the lawful manner,” and does not' have the implication the defendant has attributed to-it. As used, it is a correct statement of the law applicable to the issues in the case and does not render this special charge erroneous.

With reference to the second special request, the defendant contends that it also violates the rule above-mentioned for the reason that the request does not contain the essential qualification that, if plaintiff’sown evidence raises a presumption of contributory-negligence on the part of the decedent, the burden is-upon plaintiff to counterbalance this presumption.

The evidence introduced on behalf of plaintiff tended to prove that plaintiff’s decedent was six feet, four inches tall, weighed 180 pounds, and wore a number-12 shoe; that there were two adult girls riding with plaintiff’s decedent in the front seat of plaintiff’s decedent’s automobile at the time the collision occurred; that previous to the collision they were all engaged in conversation; and that neither of the girls-saw the Yuhas car until a split second before the collision.

Other evidence introduced on behalf of plaintiff tended to prove other facts and circumstances connected with and surrounding the collision, the place-of impact and the locations to which the respective automobiles had proceeded immediately following the collision, but not showing contributory negligence as a matter of law but from which the jury might infer as a fact that the negligence of plaintiff’s decedent had contributed to cause the collision and plaintiff’s decedent’s resulting injuries and death.

Under the provisions, of Section 6307-68, General Code, a person is negligent in riding in an automobile when there are seated in the front seat such number of persons as to obstruct the view of the driver to the front or sides of the vehicle or as to interfere with the driver’s control of the car.

There was no evidence in this case to indicate that the front seat of the automobile in which plaintiff’s decedent was riding was of unusual width, or that the adults. riding in the seat were less than normal size. To the contrary, the evidence showed that the front seat of the car in which plaintiff’s decedent was riding was two inches less in width than the front seat of the other automobile involved in the collision, and that at least one of the adults riding in the front seat was of unusual size.

In the case of Sheen v. Kubiac, 131 Ohio St., 52, 57, 1 N. E. (2d), 943, it was held that whether the presence of three persons in the front seat of an automobile furnishes a basis for a charge of negligence must depend, in the absence of statute or ordinance, upon the particular circumstances of the case, and, where there is no evidence in the case to indicate anything in this respect other than an ordinary automobile seat and three adults of normal size, it is not error for the court to consider the situation as one. for submission to the jury on the questions of contributory negligence and proximate cause.

In the case of Cleveland Ry. Co. v. McCoy, 28 Ohio App., 318, 162 N. E., 699, it was held that a charge of the court on contributory negligence must be a complete charge showing both what the duty of plaintiff is respecting the burden of proof and what the duty of defendant is in respect to burden as to contributory negligence.

In the opinion in that case, it was stated that it was not error for the court to charge upon contributory negligence, where in so charging, the court charged fully upon the subjects of burden of proof in case the plaintiff’s evidence raised a presumption of contributory negligence, and the burden, that rests upon the defendant. The court held also that the question whether this presumption was raised was a question for the jury.

In the case of Springfield v. Wyatt, 11 Ohio Law Abs., 116, it was held:

“The burden of showing contributory negligence is upon the defendant, unless an inference of contributory negligence may fairly arise from the plaintiff’s own testimony, in which case such inference must be removed by the plaintiff by a fair consideration of all the evidence, and a failure to so charge on the issue of contributory negligence is prejudicial error.”

While the trial court would not have been justified in saying that contributory negligence of plaintiff appeared as a matter of law, the jury might have said that it was to be found as a matter of fact upon consideration of all the circumstances in the case. Darling v. Younker, 37 Ohio St., 487, 41 Am. Rep., 532.

In Eckroate v. Bauders, 41 Ohio App., 361, 180 N. E., 76, it was held that an instruction that the burden was on defendant to establish plaintiff’s contributory negligence is erroneous as limiting defendant to his own evidence.

Where the evidence introduced on behalf of a plaintiff administrator is of such character that the court as a matter of law or the jury as a matter of fact may find therefrom that the negligence of plaintiff’s decedent contributed to cause his injury and death, such contributory negligence on the part of plaintiff’s decedent, if found to exist, constitutes an infirmity in plaintiff’s cause of action which it is unnecessary to attack by an affirmative defense of contributory negligence oh the part of plaintiff’s decedent. Consequently, the rule set forth in the Makranczy case, that a special request before argument need not cover every feature of the case on trial, including the effect of affirmative defenses such as negligence or contributory negligence, has no application to a case such as the instant case where a jury may find from the evidence introduced by plaintiff that the negligence of plaintiff’s decedent contributed to cause his injuries and death.

For these reasons, and following the authorities mentioned, we find that the court erred in submitting plaintiff’s special request No. 2 to the jury, for the reason that the same was incomplete under the rules above mentioned, in not being qualified by a further instruction to the effect that “unless upon the evidence introduced by plaintiff an inference fairly arises that plaintiff’s decedent was negligent and that such negligence contributed to his injuries and resulting death, in which event the burden is upon the plaintiff to counterbalance such inference.”

The defendant contends that special request No. 3 is likewise incomplete and misleading in that it picks out only a part of the statute and omits the most important provision thereof which requires that motor vehicles be operated at a speed neither greater nor less than is reasonable or proper.

That request was based on one of the provisions of Section 6307-21, General Code. The first provision of this section prescribes:

“ (a) No person shall operate a motor vehicle, * * * in and upon the streets and highways at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface and width of the street or highway and of any other conditions then existing, and no person shall drive any motor vehicle, * * * in and upon any street or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead.”

. The provisions of this section, on which the request to charge is based, are a qualification of the portion of the section above quoted, and it is essential for the court to charge the quoted provision in order for the jury to properly understand the provision of the section on which this special charge was based, and the court erred in submitting this special request which did not comprehend the quoted provision. However, this error was cured in the general charge, by the court fully charging the applicable provisions of the section mentioned, so that this error was not prejudicial. The correct statement in the general • charge cured the giving of the requested instruction which was a correct but incomplete statement of the applicable rules of law. 2 Ohio Jurisprudence, 989, Section 789; Makranczy v. Gelfand, supra (fourth paragraph of the syllabus); Evans v. Bruggeman, 7 Ohio Law Abs., 536.

4. The defendant does not point out or argue in his brief any error of the court in refusing to give the special charges submitted by the defendant before argument, and consequently this assignment of error will not be considered.

5. (a) The only purpose which could have been accomplished by the introduction in evidence, of the provisions of the ordinance of the city of Lima, pleaded in the petition, was to establish that Grand avenue is a “through highway” at the entrance to which, under the statutes of Ohio, vehicular traffic from intersecting highways is required by law to stop before entering or crossing the same, and that stop signs were posted at the entrance to this “through highway” on McDonald street.

The defendant, Yuhas, in his testimony admitted that traffic on Grand avenue had the right of way over traffic on McDonald street and that McDonald street was a stop street and Grand avenue a through street. It also appears from the record that stop signs were posted on McDonald street at the entrances to Grand avenue. These admissions established that Grand avenue was a “through highway” as defined in Section 6307-2, General Code, at the entrances to which vehicular traffic from intersecting highwrays is required by law to stop before entering or crossing the same, so there was no occasion to offer the ordinance in evidence. The court cured the error in charging the provisions of the ordinance and their application to the issues in the case by withdrawing the ordinance and that part of the charge with reference to the application thereof from the consideration of the jury.

(b) The words and phrases which had been ordered obliterated from the petition, but were read to the jury through oversight, were words and phrases terming the conduct of defendant as reckless, unlawful, and so forth, and were inconsistent with the allegations of the petition charging defendant with negligence, as they implied wanton or wilful misconduct rather than negligence. These words and phrases would have constituted the basis for a charge on wanton and wilful misconduct, which is governed by different rules 'than negligence, particularly in that contributory negligence is not a defense to wanton and wilful misconduct. Although the judge read the words and phrases mentioned, he did.not charge on wanton and wilful misconduct, and the mere reading of the words and phrases, without basing a charge thereon, was not prejudicially erroneous.

(c) As the admission of defendant established that Grand avenue was a “through highway” and that McDonald street was not, the court properly charged that all traffic lawfully moving in either direction on Grand avenue had the right of way over traffic approaching Grand avenue on McDonald street.

(d) The portion of the charge complained of under section (d), while not in the best possible form, properly stated the law applicable to the situation with reference to withdrawing from the consideration of the jury any allegations in the petition or reference in the charge of the court as to the ordinance of the city of Lima and was not misleading or erroneous.

(e) The court improperly charged the speed limitation in the first part of his charge, and his correction of the same and his instructions with reference to the proper speed limit, while not in the best possible form, did correctly state the law applicable to this situation and the proper speed limit applicable, the undisputed evidence establishing that the collision occurred in a residential section of the city of Lima.

6. While the evidence in this case sharply conflicts in many instances, there is substantial credible evidence to support the verdict, and the verdict is not against the weight of the evidence or contrary to law.

7. In a case of this character the amount of damages to be awarded is almost wholly within the discretion of the jury and it does not appear from the record that the damages awarded were given under the influence of passion and prejudice, or were excessive.

8. The defendant does not point out or argue in his brief any errors under this assignment of error, and consequently the same will not be considered.

For the error of the court, above mentioned, in submitting to the jury plaintiff’s special request to charge No. 2, the judgment will be reversed and the cause remanded for a new trial and further proceedings according to law, at costs of plaintiff.

Judgment reversed.

Jackson, P. J., and Middleton, J., concur.


author: Miller, J. Hornbeck, J.,

text:
    The State of Ohio, Appellee, v. Henning, Appellant.
    (No. 4044
    Decided March 10, 1948.)

      Mr. Glenn Kemp, police prosecutor, for appellee.

      Mr. Robert M. Draper, Mr. Eldon R. Young and Mr. Robert B. Gosline, for appellant.
   Miller, J.

The defendant, appellant herein, William Henning, was found guilty, by a jury in the Municipal Court of Columbus, of the offense of unlawfully practicing medicine and surgery without a license. The Common Pleas Court affirmed the judgment, and it is from the judgment of affirmance this appeal is prosecuted.

The first assignment of error is directed to the affidavit which charges that the defendant “did unlawfully practice medicine and surgery, before he had obtained a certificate from the State Medical Board of the state of Ohio, in the manner prescribed by law, to wit, that he, the said William Henning, did then and there examine or diagnose, prescribe, advise, recommend, administer and dispense for a fee or compensation to him paid direct or indirect by Mrs. Ruth Linn, a certain drug or medicine, appliance, application, operation or treatment for the cure or relief of a bodily injury, infirmity or disease of Mrs. Ruth Linn, to wit, female organs out of place * *

The defendant is contending that the affidavit is a blunderbuss affair which does not sufficiently set forth facts to enable the defendant to determine with what he is charged.

The record discloses that a motion was filed requesting a bill of particulars, which was later withdrawn and the following stipulation was made and agreed upon by counsel for the respective parties:

“1. The affidavit and information filed herein and upon which the prosecution of the defendant William Henning is based, is intended to and does charge the said defendant with the illegal practice of medicine as such, and not any branch or limited branch thereof, as the same are designated or differentiated in the General Code of Ohio. * * *”

We think that the affidavit is sufficiently definite and certain to inform the defendant of the charge. We find nothing ambiguous contained therein. All the elements constituting the offense charged are sufficiently set forth. It is apparent that some of the words used in the affidavit were copied from Section 1286, General Code, which words could properly have been omitted, but this fact alone does not invalidate the affidavit.

The stipulation sets forth further that the defendant is charged with the illegal practice of medicine, which is certainly clear and should have been understood by the defendant.

Before trial, a written challenge was filed to the array of the jury, which challenge the court overruled. It is stipulated in the record that the jurors were drawn from the jury wheel of the Municipal Court of Columbus in conformity with Section 1558-66, General Code, which section limits the members of the jury to residents of Columbus.

The defendant contends that this is not in accord with general law, as Section 13424-1, General Code, provides:

“In prosecutions before a magistrate, when imprisonment is a part of the punishment, if a trial by jury is demanded, the magistrate, not less than three days nor more than five days before the time fixed for trial, shall certify to the clerk of the Court of Common Pleas of the county that such prosecution is pending before him. Failure to demand a jury as in this section provided, shall be deemed a waiver of the same.”

An examination discloses that that section became effective July 22, 1929, while Section 1558-66, General Code, became effective September 2, 1939. It is, therefore, apparent that the General Assembly intended to modify Section 13424-1, General Code, if it was ever applicable to the Municipal Court of Columbus, by the enactment of the later statute. The defendant urges that Section 1558-66 has application only to jury trial in civil cases and not to criminal cases. The statute does not provide this, for its says, “jurors in the Municipal Court shall be chosen and summoned as hereinafter provided * * It is apparent that that section refers to all jury trials in the Municipal Court and had the General Assembly meant otherwise it would have so stated.

The defendant contends further that, since the jurors were limited to residents of Columbus, Section 10, Article I of tbe Ohio Constitution, was violated.

That section provides:

“* * * In any trial, in any court, tbe party accused shall be allowed to appear and defend in person *, and to have * * # a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed * *

It was stipulated and agreed by counsel that the city of Columbus is in Franklin county, hence the jurors were from the county in which the alleged offense was committed. It is true the jurors were not selected from the entire county and they were limited to only residents of Columbus, but Section 10, Article I, does not proceed further and require the selection to be made from all the townships and municipalities of the county. We are of the opinion that there was no violation of that constitutional provision.

Another assignment of error is that the verdict is manifestly against the weight of the evidence and contrary to law. Briefly, the record discloses that a Mrs. Linn testified that she went to the defendant’s office, suffering with a pain in her leg; that she was examined first by a Mr. Good in the defendant’s office, after which she was in consultation with both the defendant and Good. The defendant then prescribed certain medicine for her, consisting of thyroid tablets,' a box of capsules and several other different kinds of medicine. She was told also that her glands did not function properly, and oxygen was injected into her leg by means of a hypodermic needle. She said that Henning prescribed the medicine for her and she paid him $10 for the examination, and the medicine was $16. This money was paid to the defendant.

The defendant admits giving her the oxygen treatment; that all the office equipment belonged to him; and that all money received from patients was turned over to him. Defendant contends that he was not engaged in the practice of medicine as defined by Section 1286, General Code, which provides as follows:

“A person shall be regarded as practicing medicine, surgery or midwifery, within the meaning of this chapter who uses the words or letters, ‘Dr.,’ ‘Doctor,’ ‘Professor,’ ‘M. D.,’ ‘M. B.,’ or any other title in connection with his name which in any way represents him as engaged in the practice of medicine, surgery or midwifery, in any of its branches, or who examines or diagnoses for a fee or compensation of any kind, or prescribes, advises, recommends, administers or dispenses for a fee or compensation of any kind, direct or indirect, a drug or medicine, appliance, application, operation or treatment of whatever nature for the cure or relief of a wound, fracture or bodily injury, infirmity or disease. The use of any such words, letters or titles in such connection or under such circumstances as to induce the belief that the person who uses them is engaged in the practice of medicine, surgery or midwifery, shall be prima facie evidence of the intent of such person to represent himself as engaged in the practice of medicine, surgery or midwifery.”

The defendant contends that he was practicing naturopathy which is not medicine or any of its branches within the purview of Section 12694, General Code. We are not interested in what name or title the defendant gives his profession, but we are interested in whether what he did constituted the practice of medicine as defined by Section 1286, General Code. It was admitted that the defendant was not licensed by the state of Ohio. There is testimony in the record to the effect that he examined, prescribed and dispensed for a fee certain medicines, and that he gave a treatment by means of the oxygen needle. The defendant contends that what he gave to Mrs. Linn was neither a drug nor a medicine. Winston’s Universal Reference Library defines medicine as being “any drug or remedy for the treatment and cure of disease.”

Medicine, therefore, may not be only a drug but also a remedy. The statute may be violated by the dispensing of a remedy as well as a drug. On some of the state’s exhibits received by Mrs. Linn at defendant’s office, we find the warning, “To be used only by or on the advice of a doctor.” On another we find, “Active ingredient thyroid. To be used only by or on the prescription of a physician. It is not safe to take thyroid except under the supervision of a physician. ’ ’

We are, therefore, of the opinion that there was ample evidence in the record to support the verdict of the jury and it is not against the manifest weight of the evidence.

Another error assigned is that the court erred in rejecting evidence offered by the defendant by which he attempted to explain the difference between medicine and- naturopathy. This evidence was properly rejected, we think, because as we stated previously we are not interested in what constitutes naturopathy, but only in what constitutes the practice of medicine. This testimony was properly rejected by the trial court.

A further objection was made to the following charge of the court to the jury:

“I further charge you as a matter of law, that it constitutes practicing medicine or surgery in the state of Ohio to do any or all of the following acts or things, before having obtained a license or certificate from the State Medical Board of Ohio, to wit: To use the words or letters ‘Dr.,’ ‘Doctor,’ ‘M. D.,’ ‘M. B.,’ or any other title in connection with one’s name which in any way represents one as engaged in the practice of medicine or surgery in any of its branches.”

The affidavit charges the defendant with practicing medicine. The quoted portion of the charge related to a separate offense of advertising. These are separate offenses. State v. Parrish, 27 N. P. (N. S.), 242. This charge was, therefore, improperly given. However, we are of the opinion that the defendant was not prejudiced by this charge, and the defendant was not thereby prevented from having a fair trial. See Section 13449-5, General Code.

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

Judgment affirmed.

Wiseman, P. J., concurs.

Hornbeck, J.,

dissenting. I dissent from the judgment for the reason that the charge against the defendant does not meet the requirements of the law,- and the stipulation did not relieve the infirmity. There is no offense of illegal practice of medicine.

The prosecution. should allege and be prepared to prove a specific offense. Here, the affidavit simply copies two-thirds of Section 1286, General Code, in terms, and charges the defendant with a’violation of everything therein contained. Manifestly, the testimony supported no verdict of guilty of all those offenses.

There was no attempt to show that the articles which were given to the prosecuting witness to use 'by another than the defendant were drugs. Nor was defendant permitted to prove what they were. It may be said that it was not necessary for the prosecution to prove that a drug was administered, because the administration of medicine was sufficient, but the defendant was charged with both and found guilty of both.

The only treatment which it appears the defendant administered was that of injecting oxygen into the leg of the prosecuting witness and yet he is charged with diagnosing, prescribing, advising, recommending, administering and dispensing for fee or compensation a drug or medicine, appliance, application, operation or treatment for the cure or relief of a bodily injury, infirmity or disease.

The charge put too much of a burden on the defendant instead of placing it where it belonged, upon the state. Did the prosecuting witness suffer from bodily injury, infirmity or disease? Certainly she was not afflicted with all. Did the defendant prescribe, administer or dispense? Was that which he administered a drug or a medicine? Did he receive a fee or was it compensation? Was it paid to him directly or indirectly? The essential elements of the .offense, which the state charged, should have been segregated and specified so that the defendant could have been put on notice as to what he would be required to meet. There was a general verdict of guilty and the defendant stands convicted of all of the things with which he was charged. Buck v. State, 1 Ohio St., 61. This could not be true under the evidence.

It would not be difficult to recognize that a murder indictment would be improperly drawn if it charged a defendant with killing another with deliberate and premeditated malice, by means of poison, and in perpetrating or attempting to perpetrate a rape, arson, robbery and burglary. Such an indictment would be comparable to the complaint upon which the defendant was required to go to trial here and upon which he was found guilty generally.


author: Wiseman, P. J.

text:
    Kleinhans, Appellant, v. The American Gauge Co., et al., Appellees.

      (No. 1933
    Decided April 26, 1948.)

      Mr. Clement V. Jacobs, for appellant.

      Messrs. Coolidge, Becker & Wall, for appellees.
   Wiseman, P. J.

This is an appeal on questions of law from the Common Pleas Court of Montgomery county. The action-was tried to a jury which returned a. verdict for the defendant, The American Gauge Company, on which the court entered judgment.

In his petition plaintiff, appellant herein, alleges he was employed by the defendants, The American Gauge Company and Alfred A. Anglemyer, the principal officer and shareholder of the corporation, to survey the factory of The American Gauge Company, obtain orders, estimate costs, supervise engineering, counsel with defendants upon matters relative to sales and requirements for products which could be manufactured by defendants, supervise the production and assist in obtaining priority ratings and materials. Plaintiff alleges that for his services the defendants agreed to-pay the plaintiff the sum of $300 per month beginning with the month of March 1944, and, in addition thereto, a further sum equivalent to 3 per cent of all gross sales, orders or contracts entered into by defendants during the continuance of the arrangement and all such sales, orders or contracts subsequently obtained by the defendants by reason of the efforts of the plaintiff. Plaintiff claims that, by reason of his service and efforts, orders and' contracts were obtained by the defendants amounting to $457,461.90 upon which amount the plaintiff is entitled to 3 per cent or $13,-723.85. Plaintiff alleges that $2,100 was paid to him by the defendants at the rate of $300 per month from March 1944 through September 1944, his services being terminated on October 3,1944.

The American Gauge Company in its answer admits that on or about March 2,1944, it employed plaintiff to act as liaison man on its government contracts with the Material Command, Wright Field, Dayton, Ohio, and with its suppliers, for which service it agreed to pay plaintiff $300 per month, which was paid to plaintiff, his services being terminated on October 2, 1944. Such defendant denies each and every other material allegation in plaintiff’s petition.

The plaintiff in his reply denies that he was employed as liaison man and alleges that he was employed by defendants after he had fully informed them of the rates of commission charged by him for such service for other clients, and that the defendants knew that plaintiff held himself out as a responsible and dependable individual offering such service to industries, such as that of the defendants, upon a monthly retainer plus the agreed percentage of gross sales resulting from orders obtained through the efforts of the plaintiff or in furtherance of his efforts.

The principal issue in this case is raised by the petition of the plaintiff and the answer of The American Gauge Company. The reply raises no material issue other than a denial that plaintiff was employed to perform liaison work. The plaintiff rested „his case on an express verbal contract of employment at $300 per month and 3 per cent commission 'on gross sales obtained by him for defendants or by the defendants by reason of the efforts of the plaintiff. The company admits an express contract of employment, admits its agreement to pay plaintiff $300 per month for his services but denies any agreement to employ plaintiff as a salesman and to pay 3 per cent commission on orders or contracts secured by him or orders and contracts received by the company through his efforts. The issue to be determined by the jury was simply this: Was the plaintiff to receive 3 per cent commission on orders or contracts received by defendant company through the efforts of the plaintiff?

Plaintiff has filed 12 assignments of error some of which are not specific and have not been urged by counsel for the plaintiff.

We discuss separately the principal errors assigned.

Plaintiff claims the court erred in requiring him to' make an election against which defendant he would proceed. The record shows that, before any evidence was produced, counsel for plaintiff voluntarily made an election to proceed against the corporation. The record does not show that the court required an election.

We find no error committed by the court in instructing the court reporter to read to the jury the testimony of one of the witnesses,when requested by the jury after it began its deliberations. The witness whose testimony was read was called by the plaintiff.

At the end of plaintiff’s case, he asked leave to amend his petition by increasing the amount claimed. An amendment of this nature could not be made without new service being had and a continuance granted. That was neither agreed to nor requested. The amendment was properly denied.

We find no error in the admission or exclusion of evidence prejudicial to plaintiff.

Plaintiff offered the testimony of two witnesses to show the type of work performed by him at Wright Field, where he at one time had been employed, and his ability to perform the service he claims he was employed to perform by the company as claimed in his petition and reply. As we view it, neither the petition nor reply raised a material issue on that matter. With respect to allegations in the petition respecting the nature of his services, the defendant company denied he was employed to perform such services. His capability was not made an issue. The evidence which was sought to be introduced and which was later proffered was neither relevant nor material to the issue presented. The record shows that such evidence was excluded at that time as being out of order. The court did not rule out this testimony, but it was understood the witnesses could be recalled later, which plaintiff did not see fit to do. Prejudicial error did not result from the ruling of the court.

The plaintiff claims “the court erred in confining the issue to an express contract and conversely in failing to allow appellant to offer evidence upon an implied quantum meruit for the value of service rendered under an express contract. ’ ’

The plaintiff sued on an express contract. At no time did plaintiff move to amend. It is easily understood why a motion to amend to conform to the proof was not made. There was no evidence introduced from which a contract of employment could be implied whereby the basis of compensation would be the reasonable value of services rendered. Throughout the trial, plaintiff and his counsel contended that an ■express contract was entered into on March 2, 1944, whereby the defendant company agreed to pay to the plaintiff 3 per cent commission on orders obtained by him. The defendant company consistently denied that the contract of employment included a 3 per cent commission. On July 28, 1944, a dispute arose between the plaintiff and the company as to whether plaintiff was entitled to a 3 per cent commission on sales made by him. At that time the plaintiff claimed such a commission on a certain order, and the defendant company denied that there was any commission due the plaintiff. Negotiations between the parties-continued up to October 3, 1944, on which date the-services of the plaintiff were terminated. During these negotiations the rights and obligations of the parties under the contract of employment entered into March' 2, 1944, were discussed. Evidence of an implied contract cannot be extracted from these conversations.. The record is voluminous and contains repeated assertions by plaintiff and his counsel that they were-relying on an express contract under date of March 2, 1944.

At the end of his direct examination, the plaintiff' testified as follows:

“Q. I will ask you whether or not the 3% is the same as you claim was agreed upon on March 2d and March 30th, or thereabouts, 1944? A. I said my agreement with Mr. Anglemyer March 2d was for a retainer of $300 per month and 3% of the business that I was-able to secure for him. At the end of March Mr. Anglemyer said that he would pay me 10% on his standard items, in addition to the 3% and the $300’ monthly retainer fee.

*****

“Q. Now Mr. Kleinhans, I will ask you whether or not there was any change made in your agreement at any time with Mr. Anglemyer following that March-2d meeting ? A. With this difference: That as of the-■end of March he said he would pay me 10% on his .standard items, in addition to the 3% on the work that I was to get for him.”

No claim is made for 10 per cent on standard items .as no sales of standard items were made.

When an objection was interposed, the record shows .a statement of counsel as follows:

‘ ‘ Mr. Becker: Are you relying on a contract made in September or in March? Can we understand what jour claim is ?

“Mr. Jacobs: Contract in March. He agreed to pay it several times.”

To have admitted evidence relative to an implied ■contract and to have charged the jury in regard thereto would have been erroneous. This case was tried ■on the theory of an express contract the terms of which were in dispute. Where there is an express contract, between the parties, none can be implied. Creighton v. City of Toledo, 18 Ohio St., 447, 452; Hawkins v. United States, 96 U. S., 689, 697, 24 L. Ed., 607; Linn v. Wehrle, 35 Ohio App., 107, 111, 172 N. E., 288; Cale v. Kiner, 44 Ohio Law Abs., 407, 63 N. E. (2d), 839; 9 Ohio Jurisprudence, 243, Section 9.

In Creighton v. City of Toledo, the first paragraph •of the syllabus is as follows:

“Where there is an express contract between parties, none can be implied. The maxim expressum facit ■eessare taciturn applies in such cases.”

In Hawkins v. United States, the court on page 697 •said:

“Implied promises or promises in law exist only when there is no express promise between the parties, —expressum facit eessare taciturn.”

The instant case does not fall in that category of ■cases where the action is one of general assumpsit and permits evidence of an express or an implied contract. Columbus, H. V. & T. Ry. Co. v. Gaffney, 65 Ohio St., 104, 61 N. E., 152; Cincinnati & S. Bell Tel. Co. v. Cincinnati Street Ry. Co., 48 Ohio App., 195, 200, 193 N. E., 230; Wampler v. Staley, 41 Ohio Law Abs., 592, 595, 59 N. E. (2d), 65.

The court did not commit prejudicial error in confining the issue to an express contract and in failing to charge the jury relative to the plaintiff’s right of recovery on an implied contract. Furthermore, the record does not show that plaintiff presented a definite charge on an implied contract. Only a general exception was taken to the charge. Reversible error cannot be predicated upon the failure of the court to charge on a particular phase of the case, if the charge as given is correct and not misleading to the jury, unless such omission is called to the attention of the court, and such other instructions are specifically presented and refused. Columbus Ry. Co. v. Ritter, 67 Ohio St., 53, 65 N. E., 613; State v. McCoy, 88 Ohio St., 447, 103 N. E., 136; State v. Driscoll, 106 Ohio St., 33, 138 N. E., 376; Portney v. Frank, 77 Ohio App., 357, 65 N. E. (2d), 290; Hubbard, Admx., v. C., C. & C. Highway, Inc., 81 Ohio App., 445, 50 Ohio Law Abs., 78, 76 N. E. (2d), 721; 39 Ohio Jurisprudence, 1008, Section 297.

Plaintiff contends the charge limited his right of recovery to a commission on orders secured by him. In the petition, he alleged that he was entitled to 3 per cent commission on orders secured by him and, also, on orders secured by the defendants by reason of the efforts of the plaintiff. However, the evidence did not support the latter part of that allegation. The plaintiff, both on direct and cross-examination, testified repeatedly that he was to receive a 3 per cent commission on orders secured by him. The charge very properly conformed to the evidence.

Under the issues and in view of the evidence presented, it was not error for the court to charge the jury that it could return a verdict for the plaintiff for a less amount than that claimed in his petition. If the jury believed that the plaintiff was entitled to a commission on orders secured by him it might have found that he was entitled to a commission only on •one or two of the four orders involved.

The charge as given was correct and fully covered the issues in the case. We do not believe the charge in any respect was misleading to the jury. It cannot be claimed that the charge was misleading from the faet that the jury, after it began its deliberations, returned to question the court in regard to the jury’s authority in arriving at a verdict. At best, such fact showed that the jury was in doubt as to its full duty. The question whether the charge as given was misleading must be determined by the charge itself in view of the issues made and the evidence presented. After additional instructions were given, the foreman of the jury answered, “Yes, that is clear to me. * * * That .makes it clear.” From the record it may be assumed the jury clearly understood the instructions and its authority and it was not misled thereby.

Plaintiff claims the verdict of the jury was contrary to the evidence. There was a definite and direct conflict in the evidence on the principal issue in this case, to wit, was the plaintiff to be compensated at the rate of 3 per cent on gross sales made by him. The defendant company claimed plaintiff was to be compensated for all his services at the rate of $300 per month. At the end of each month the plaintiff rendered a written statement to the defendant company for $300, in which he itemized the services he performed for the defendant company during the current month. Those statements show that some of the services for which he was compensated at the rate of $300 per month were in making contacts at Wright Field for the purpose of obtaining an order or contract for defendant company. The statement for services rendered between May 2 to June 2, .1944, states, “.Contact and preliminary ground work in connection with production of C-I,. Head, Pilot Bomb Sight.” Cther statements were for “liaison work.” This was the type of work which defendant company claimed the plaintiff was employed to do and for which he was to be compensated at the rate of $300 per month. The record shows that at the end of each month the plaintiff was paid $300 by defendant company.

The verdict of the jury was general, without interrogatories. After a consideration of the entire record, 'we cannot find that the verdict is against the manifest weight of the evidence, or contrary to law. There was ample evidence to support the verdict.

As we find no error in the record prejudicial to the plaintiff, the judgment is affirmed.

Judgment affirmed.

Mtt.t.er, and Hornbeck, JJ., concur.