text:
    The State, ex rel. Pennington, Appellee, v. Barger, Appellant.
    (No. 867
    Decided November 10, 1943.)

      Mr. Maxwell Finkleman, for appellee.

      Mr. Clinton Egbert, for appellant.
   Ross, P. J.

This appeal to this court is upon questions of law and fact. A motion, it is stated by the relator, has been filed to dismiss the appeal both as to fact and on questions of law. No motion appears among the papers. The matter was argued as if such motion were filed and the court passes upon the matter as if such were the ease.

The matter originated by the filing of a warrant to arrest issued by the Municipal Court of the city of Middletown, Ohio, in which the respondent was charged to be the putative father of the child of the relator..

Bond was executed, conditioned upon the respondent appearing in such Municipal Court. Later, a recognizance was executed, conditioned upon the appearance of respondent in the Juvenile Court of Butler county to answer the accusations of relator that the respondent was the putative father of her child.

Thereafter, it appears that a trial before a jury was had in such Juvenile Court, which resulted in a verdict, in part, as follows:

“We, the jury, being duly impaneled and sworn, find that the defendant Cecil Barger is guilty in manner and form as he stands charged in the original complaint. ’ ’

A motion for new trial was filed and overruled. Judgment was entered finding the respondent to be the father of the child in question and ordering:

“That he stands charged in the sum of $100, which sum the court finds to be necessary for the support and maintenance and expenses incurred, by the said complainant in the premises, and that the same be paid in monthly instalments of $20 each and every month until said sum of $100 is fully paid.

“It is further ordered that said Cecil Barger give bond in the sum of $200 that said order will be performed, and pay the costs of this proceeding; and if said Cecil Barger shall fail or refuse to make the bond herein ordered, or pay said costs, he shall be committed to the jail of said county and to remain therein until he complies with the order of the court or his discharge as provided by law.”

Thereafter, the Juvenile Court of Butler county accepted a recognizance containing the following provisions :

“Whereas, in a certain prosecution in the Juvenile Court of said county, said Cecil Barger has been convicted of an offense, and has given notice to said court of his intention to file, or apply for leave to file, a petition in error to the Court of Appeals of said county.

“The condition of this recognizance is such, that if the above bound Cecil Barger will prosecute such error proceedings without delay, and abide the judgment or sentence of the court; then this recognizance shall be void; otherwise it shall be and remain in full force and virtue in law.”

Thereafter, the Juvenile Court, on May 5,1943, made the following order:

“This day this cause came on to be heard on the motion of the plaintiff requesting the court for an order fixing the amount of money due for the support and maintenance of the minor child of the plaintiff, the father heretofore having been found to be the putative father of said child; and after due consideration thereof both parties being present and in open court, the court finds that said motion is well taken; and should be sustained; and that the defendant should pay the sum of four dollars ($4) per week for said minor child.

“It is therefore ordered, adjudged and decreed that the defendant pay to the plaintiff the sum of four dollars ($4) each and every week for the support of the minor child of the plaintiff, the first payment thereof due on Saturday, May 8, 1943, and to continue each Saturday thereafter until the further order of the court. It is further ordered that said payments be payable through the office of the Juvenile Court of Middletown, Ohio, to which judgment of court defendant excepts.”

Notice of appeal was filed on May 18, 1943, “from the final judgment rendered in this cause.”

On June 14, the relator filed a motion to strike the “supersedeas bond” hereinbefore noted as a recognizance for a petition in error.

A bill of exceptions was filed within forty days from the overruling of the motion for new trial.

This proceeding was originated under and by virtue of the provisions of Section 12110 et seq., General Code. The respondent was recognized to appear before the Juvenile Court of Butler county by virtue of Section 12115, General Code, and the entry of judgment in the Juvenile Court, was as authorized by Section 12123, General Code.

This is not a chancery case and the appeal on questions of law and fact must be at least reduced to an appeal on questions of law.

It is asserted, however, by the relator that this appeal must also fail since the provisions of Section 1639-51, General Code, were not followed. This section provides:

“The provisions of the law relating to appeals on questions of law from the Court of Common Pleas, including the allowance and signing of bills of exceptions shall apply to prosecutions of adults under this chapter, and from such prosecutions an appeal on a question of law may be taken to the Court of Appeals of the county under laws governing appeals in other criminal cases to such Court of Appeals. An appeal shall not be. taken to the Court of Appeals except upon good cause shown, upon motion and notice to the prose-outing attorney, as in civil cases, or unless such motion is allowed by such court.”

The chapter thus identified is Chapter 8 of Title IV of the General Code, relating to the Juvenile Court, and the section refers to “prosecutions of adults” as may be provided for in such chapter.

A proceeding perfected under the provisions of Section 12110 et seq., General Code, is not a prosecution provided for in Chapter 8, Title IY of the General Code.

A bastardy proceeding' while having some characteristics of a criminal prosecution is essentially a civil action, governed in trial and appeal by the law applicable thereto. 5 Ohio Jurisprudence, 543, Section 5; Reams v. State, ex rel. Favors, 53 Ohio App., 19, 4 N. E. (2d), 151; Durst v. Griffith, 43 Ohio App., 44, 182 N. E., 519; Schneider v. State, ex rel. Shorf, 33 Ohio App., 125, 168 N. E., 568.

For this reason, the motion to dismiss the appeal on questions of law is overruled. It appears that such appeal has been properly perfected as to the judgment of the court entered on May 5, 1943, this being the “final judgment” of the court. Although this judgment does not specifically vacate the judgment entered on May 3, 1943, it evidently, being in the same term of court, in effect accomplishes this purpose to the extent that the judgment of May 5 is a modification of the judgment of May 3.

Motion overruled..

Hildebrant and Matthews, JJ., concur.


source: Caselaw Access Project

author: Metcalf, J.

license: Public Domain

text:
    The State, ex rel. Rose, v. Board of Education of Ohio Rural School District. (Two cases.) The State, ex rel. Church, v. Board of Education of Ohio Rural School District. The State, ex rel. Duncan, v. Board of Education of Ohio Rural School District. The State, ex rel. Pollitt, v. Board of Education of Ohio Rural School District.

      (Nos. 191, 192, 193, 194 and 195
    Decided March 6, 1944.)

      Mr. Robert M. Switzer and Mr. Perry C. Bailes, for relators.
    illr. R. M. Betz, prosecuting attorney, and Mr. A. J. Lay-ne, for respondent.
   Metcalf, J.

These five cases are original actions in mandamus, separately brought by relators, Frances G. Rose, Donald Rose, Emmett W. Church, Mildred Duncan and Margaret E. Pollitt, against the respondent, the Board of Education of Ohio Rural School District in Gallia county, wherein all of the relators are teachers, seeking writs compelling the respondent board to tender and execute the type of contract to which they claim to be entitled under the ‘ ‘ Ohio Teachers ’ Tenure Act” (former Sections 7690-.1 to 7690-8, General Code, 119 Ohio Laws, 401), passed by the General Assembly of Ohio on May 15, 1941, approved by the Governor on June 2, 1941, and effective September 1, 1941.

This act provides that contracts for the employment of teachers shall be of two types; limited contracts and continuing contracts, and further it makes provision for the type of contract that shall control in districts of under eight hundred pupils relative to beginning teachers and new teachers.

A continuing contract is defined as a contract which shall remain in full force and effect until the teacher resigns, elects to retire or is retired, or until it is terminated or suspended as provided in the act, and such contracts shall be granted only to teachers holding professional, permanent or life certificates. The act further provides (former Section 7690-2, now Section 4842-8 of the General Code) that on or before September 1, 1941, a continuing contract shall be entered into by each board of education with each teacher so certificated who at the time of the passage of the act was completing five or more consecutive years of employment by the board. Others, not having attained continuing contract status elsewhere, in order to be eligible in any school district shall be those teachers qualified as to certification, who have taught for at least three years in the district. As to those teachers the act provides:

“Upon the recommendation of the superintendent of schools that a teacher eligible for continuing service status be re-employed, a continuing contract shall be entered into between a board of education and such teacher unless the board by a three-fourths vote of its full membership rejects the superintendent’s recommendation.” (Section 4842-8, former Section 7690-2, General Code.)

The school district represented by respondent board is one of under eight hundred pupils and in such a district the act sets forth the following contract system that shall control relative to beginning and new teachers:

“a. Beginning teachers * .* * shall be hired for one year.

“b. New teachers, who have had at least one year’s experience as teachers in other schools, shall be employed * * * for [not] more than five years.

“c. Upon re-employment after the termination of the first contract, the new contract shall be for not less than three years nor more than five years provided that the teacher’s educational qualifications have been fulfilled and the teacher’s work has been satisfactory.

“d. Upon re-employment after the termination of the second contract, the teacher’s contract shall be for five years and subsequent renewal thereof shall be for five year periods, or the board of education may at any time grant a continuing contract.” (Section 4842-8, former Section 7690-2, General Code.)

Former Sections 7805-1 to 7805-7, inclusive, of the General Code (now Sections 4857-1 to 4857-7) divide and classify the various types of certificates. A provisional certificate is one valid for four years, a professional certificate is one valid for eight years, and, of course, the terms permanent and life certificate are self-explanatory.

The validity and constitutionality of the “Teachers’ Tenure Act” were established by the Supreme Court in the case of State, ex rel. Bishop, v. Board of Education of Mt. Orab Village School Dist., 139 Ohio St., 427, 40 N. E. (2d), 913, and as therein enunciated this “court has nothing to do with the policy or wisdom of a statute. That is the exclusive concern of the legislative branch of the government.”

It will be observed, for the purpose of clarification, that the 95th General Assembly of Ohio in House Bill No. 217 recodified the school laws of Ohio, amending some of the sections, repealing others and renumbering them all, which act became effective September 16, 1943, prior to the filing of the petitions herein.

In this bill two minor amendments were made affecting former Section 7690-2, now Section 4842-S, as relates to the cases before us, the first-being that the three year qualification must be within the last five years and the second amendment applies to districts of under eight hundred pupils, wherein paragraph “c” is amended so that the new contract upon re-employmeut of a beginning teacher or new teacher, after the termination of the first contract, shall be for not less than two years nor more than five years: The causes' of action on which the respective claims of relators are predicated existed at the time of this amendment and repeal and are not affected thereby, the amendment and repeal not otherwise expressly providing. Section 26, General Code; 37 Ohio Jurisprudence, 430, Sections 180, 181; State, ex rel. Price, v. Huwe, 103 Ohio St., 546, 134 N. E., 456.

The five cases are necessarily divided into three classes as respects the relief sought under the provisions of the law.

Frances G. Rose and Donald Rose each hold professional certificates effective September 1, 1942, and September T, 1941, respectively. Both were completing more than three consecutive years as teachers in the respondent district and were both recommended by the county superintendent of schools as eligible for continuing contract status at the end of the school year 1942-1943. The respondent board of education, without rejecting this recommendation as provided in the act, refused to grant either of these relators a continuing contract and on August 19, 1943, employed Frances G. Rose as a teacher for a term of one year, being for the school term 1943-1944. The same action was taken on September 17, 1943, as to the relator Donald Rose for the same and like period. Both relators entered upon their respective duties, at the commencement of the school term, as teachers in respondent’s district and are continuing to teach therein.

The relator Emmett W. Church completed more than three consecutive years as a teacher in respondent’s district at the end of the school year 1942-1943 and is the holder of a life elementary certificate effective June 12, 1931. There is no evidence as to the recommendation of the county superintendent of schools as to the relator’s eligibility for. continuing contract status. The respondent board, however, employed this relator on September 6, 1943, as a teacher for the school year 1943-1944 and pursuant thereto relator entered upon his duties as a teacher. In addition to the three year provision this relator claims that he is entitled to a continuing contract under the proviso affecting those teachers who were completing five or more consecutive years of employment by respondent board at the time of the passage of the “Teachers’ Tenure Act.” The evidence shows that this relator was completing more than five consecutive years as teacher in respondent district at the time of the passage of the act in 1941. However, the board re-employed him on a one year contract for the school year 1941-1942 and he has been so re-employed each year since to and including the present school year.

The other two cases, Mildred Duncan and Margaret E. Pollitt, constitute the third classification. They come within that provision of the act. relative to beginning teachers or new teachers in districts of under eight hundred pupils. Relator Duncan was first employed by respondent board June 5, 1941, as a teacher, never having taught before. She has been re-employed each year since on a one year contract and was so employed for the school year 1943-1944 on August 19, 1943, and entered upon her duties and is teaching pursuant thereto. She is a holder of. a provisional certificate valid as of September 1, 1941, and claims she is entitled to a five year limited contract.

Relator Pollitt was first employed on a one year contract for the school year 1942-1943, this contract ending-on the 5th day of May, 1943. On September 6, 1943, she was re-employed for the school year 1943-1944 on a one year contract and entered upon lier duties and is teaching thereunder. She holds a provisional certificate valid as of September 1, 1940. The evidence is not clear as to whether she was a beginning teacher or a new teacher but is definite as to her first employment with respondent board. She maintains that she is entitled to a limited contract for not less.than three years.

The respondent board filed separate answers to each of the petitions of relators, its defense being common to all the cases. It claims that the teachers have waived their respective rights by accepting one or more limited contracts since September 1, 1941; that they have not taught the required time entitling them to the contracts sought; that they have not shown themselves entitled thereto; and that the respondent board has no authority to grant them the contracts demanded. In addition to the answers an agreed statement was entered in the record and testimony was offered substantiating the facts as herein related.

The Supreme Court in the Bishop case, supra, and in affirming the judgment of this court in State, ex rel. Thurston, v. Board of Education of Wheelersburg Rural School Dist., 140 Ohio St., 512, 45 N. E. (2d), 604, established that it was mandatory on the part of the respondent here to tender relator Church a continuing-contract on September 1, 1941, the effective date of the act, or within a reasonable time thereafter. The respondent board not only refused to do this but on October 6, 1941, by a unanimous vote placed upon the record a blanket resolution rejecting any and all continuing contracts for teachers. Respondent now contends that this rejection applies not only to relator Church but to all the teachers reaching continuing contract status. There may have been some excuse for the board assuming this attitude in opposition to continuing contracts in October of 1941, prior to the decision of the Supreme Court in the above eases. This court appreciates that until those decisions, there was much confusion generally throughout the school districts of Ohio but that resolution can serve no useful purpose, either then or now, to defeat the provisions of the “Teachers’ Tenure Act.”

Likewise, when the superintendent made his recommendations, at the end of the school term 1942-1943, that relators Frances G. Rose and Donald Rose were eligible for continuing service status and that they be re-employed, it was mandatory on the part of the board of education to enter into a continuing contract with these two relators unless the board by a three-fourths vote of its full membership rejected the superintendent’s recommendations as provided in the act. The superintendent never withdrew his recommendations, did not recommend re-employment under another limited contract and the board did not reject his recommendation but re-employed these two relators without entering into a continuing contract. This action by the board and all the surrounding circumstances indicate that the work of these teachers was satisfactory, that the board desired their re-employment and did so re-employ them but has failed and still refuses to tender them continuing contracts as provided by law.

Relator Duncan, although employed three days after the passage of the act but prior to the effective date thereof, was, as determined by the Supreme Court in the Bishop case, supra, a beginning teacher for the school year 1941-1942 in respondent’s district and as such upon re-employment after the termination of her first contract she should have been re-employed for not less than three years nor more than five years as provided in paragraph “c” of Section 7690-2, General Code. While it was not mandatory for the board to re-employ her it did so and it seems clear that it was mandatory for the school board to tender her a contract for not less than three years. We can not agree with her claim that because the board ignored the law and granted her another one year contract of reemployment for the school year 1942-1943 that she thereby became eligible for a minimum contract of five years when she was re-employed on the completion of the second school year. The intent of the law at that time was not to compel the board of education to employ a beginning teacher for a minimum of five years, until they had taught at least four years in the district. To follow the argument of this relator would be to circumvent this provision and permit her to obtain a five year contract with only two years of teaching. In the event the teachers’ work has been satisfactory and they have the necessary educational qualifications the law gives the board the right to hire them, or did before amendment, for a period of not less than three nor more than five years. This teacher meets the educational qualifications and her work must have been satisfactory since she was re-employed. Therefore, when she was re-employed at the end of her first year she should have been re-employed under that provision wherein the board, in its discretion, could make the contract for not less than three nor more than five years as provided in the law. The minimum contract it could tender and execute was one for three years effective for the school year 1942-1943 and the succeeding two school years.

Relator Pollitt was first employed for the school year 1942-1943 and when she was re-employed on the 6th day of September, 1943, she should have been tendered a contract for not less than three years nor more than five years because, as in the Duncan case, the act of re-employing her is presumptive that her work had been satisfactory in the absence of evidence to the contrary, and the record discloses that she meets the necessary educational qualifications.

Counsel have moved to amend the petitions in the last two cases to conform to the facts proven and this will be granted.

Counsel for respondent strongly urge that, since Section 7691 of the General Code was in force and effect at the time of the employment of the relators, it was lawful to hire them thereunder, ignoring the specific provisions laid down by the Legislature in the “Teachers’ Tenure Act.” We can not subscribe to this argument for to do so would nullify the “Teachers’ Tenure Act” not only relating to those teachers eligible for continuing contract status but to the last two relators who are entitled, as beginning or new teachers, to the type of contract the Legislature has said shall control in districts of under eight hundred pupils. Any contract of employment entered into with these teachers was subject to the requirements of the act. See State, ex rel. Nobles, v. Bienville Parish School Bd., infra.

After a careful consideration of all the evidence and the law this court is convinced that relators are entitled to the benefit of the provisions of the act in the event they have not waived their statutory rights by accepting and teaching under yearly contracts.

This identical question has not been before the Supreme Court although in the case of Stale, ex rel. Ford, v. Board of Education of City School Dist. of Cleveland, 141 Ohio St., 124, 47 N. E. (2d), 223, 145 A. L. R., 1075, a teacher who was entitled to a continuing contract under the first proviso of the act was held to have waived her rights' thereto by voluntarily accepting a contract for the balance of the school year and at about the same time tendering her resignation operative at the close of such year, where such resignation was accepted. As pointed out in that case, the principle of law is well established that one is free to waive the rights and privileges which are due him, whether secured by contract, conferred by statute or guaranteed by the Constitution, so long as there is no violation of public policy. 40 Ohio Jurisprudence, 1235, Section 3. A careful reading of that case leads this court to conclude that it was the act of resigning on the part of the teacher that 'waived her rights and not the acceptance of or the teaching under a one year contract. “Waiver” as used in connection with cases of this type is assumed to import its traditional definition as a voluntary relinquishment of a known right. 40 Ohio Jurisprudence, 1233, Section 2. In the Ford case there was dissatisfaction with the teacher’s work and there was a voluntary and intentional act done by the teacher in entering into the arrangement to resign and in the resigning that terminated a continuance of her existing status.

In 145 A. L. R., 1079, in the annotation of the Ford case, it is said that “It is generally recognized that the voluntary resignation or abandonment of a teaching position constitutes a waiver or relinquishment of a teacher’s status or rights under the Teachers’ Tenure Laws.” Citing Merman v. Calistoga Joint Union High School Dist. (1936), 5 Cal. (2d), 438, 55 P. (2d), 195.

A resignation by a teacher has been held to waive his or her rights under the “Teachers’ Tenure Law” in California, Indiana, Louisiana, New Jersey, Oregon and Wisconsin. For citations see A. L. R., supra. But in the same jurisdictions the courts have uniformly held, as pointed out in the same annotation, that “because school systems are invariably maintained upon a short-term basis, the mere making of employment contracts for such terms cannot be construed as a waiver of the status or rights conferred by or acquired under teachers’ tenure statutes, being, for the most part, designed for the successful and convenient operation of the schools, and necessary to conform to the school laws.”

In the case of La Shells v. Hench (1929), 98 Cal. App., 6, 276 P., 377, the court held that a permanent tenure teacher did not relinquish any rights which she had previously acquired by entering into yearly contracts with the school authorities which contract was inconsistent with the “Teachers’ Tenure Act.”

In State ex rel. Black, v. School Commrs. (1933), 205 Ind., 582, 187 N. E., 392, the court held that a teacher who had taught for the number of years required to establish permanent tenure did not forfeit her rights as a permanent teacher by entering into a new contract in the absence of a clear expression of an intention of the parties to the contrary, and this was true even though the statute provided that the indefinite contract shall remain in force unless succeeded by a new contract, pointing out that to hold otherwise would frustrate the purpose of the statute to establish permanent tenure. Again in the case of Spice Valley Sch. Twp. v. Rizer (1938), 214 Ind., 528, 15 N. E. (2d), 390, the court held that the execution of two definite contracts, each for a term of one year, after a teacher had acquired tenure rights by teaching for the required five consecutive years, did not abrogate the teacher’s permanent indefinite contract. To the same effect is the ease of Stiver, Trustee, v. State, ex rel. Kent (1936), 211 Ind., 370, 1 N. E. (2d), 592, 7 N. E. (2d), 181, which holds that the making of a new contract did not terminate the tenure of a teacher who had taught for more than five consecutive years required to establish a permanent tenure.

The court in State, ex rel. Nobles, v. Bienville Parish School Bd. (1941), 198 La., 688, 4 So. (2d), 649, held that:

‘ ‘ The Teachers ’ Tenure Act and the act authorizing school board to employ teachers by the month or by the year are not inconsistent, and any person employed as regular teacher of school enters into school system and becomes subject to all laws pertaining to teachers, regardless of whether he is hired to teach by the month or by the year, and statutory provisions are read into his contract and form part thereof.”

The court on page 651 of the Southern Reporter used these pertinent words:

“The fact that the school board employed the plaintiff by the year or for a period of a year is of no moment. To conclude otherwise would defeat the purpose of the Teachers’ Tenure Act.”

See, also, Long v. Wells (1938), 186 Ga., 602, 198 S. E., 763.

Further, in the case of Wesenberg’s Appeal (1943), 346 Pa., 438, 31 A. (2d), 151, the court in construing the school code of Pennsylvania held that a new contract confirming an increase in salary did not amount to the relinquishment of any statutory seniority rights such as would result from a voluntary resignation and rehiring at a later date.

The Supreme Court of Ohio in the case of Allenbaugh v. City of Canton, 137 Ohio St., 128, 28 N. E. (2d), 354, involving a civil service employee, held that before he “may waive any right he has as such under the law, in order to establish a waiver the evidence must be sufficient to warrant a court in saying that his intent to waive is unmistakable.” In the same case the court held that a right conferred by statute need not constantly be asserted in order to be preserved. Measured by this standard no waiver exists in any of the five cases before us.

All the facts and surrounding circumstances in the instant cases indicate there was never any intention on the part of the teachers to relinquish the rights conferred upon them by statute. The acceptance of employment from year to year is not inconsistent with claiming the benefits of .the tenure act. There has been no abandonment on the part of the teachers of the beneficial statutory provisions provided for them and in no way can the respondent board maintain that it has been misled or prejudiced by the teachers teaching under the only contract of employment the board was willing to grant. The board of education created the condition it now complains of as constituting a waiver on the part of the teacher. No benefits have accrued to the teachers herein such as we find in the' Ford case, supra.

To hold under the circumstances that these teachers voluntarily waived their statutory rights by accepting employment from year to year would be tantamount to holding that by going ahead and performing their duties as teachers in the schools that they intended thereby to surrender their respective rights under the statute and be forever deprived of its benefits. No such intention can be inferred from the act and conduct of the respective relators in continuing to teacii. Much more commendable is such conduct on their part than standing by and refusing to begin the school year until the desired contract was forthcoming.

The'Supreme Court in the Bishop case, supra, quoted with approval the remarks of the Supreme Court of Alabama relative to that state’s Teachers’ Tenure Act in the case of Board of Education of Marshall County v. Baugh, 240 Ala., 391, 199 So., 822, 825, and that quotation is so pertinent here that it merits repetition.

‘ ‘ The very laudable purpose of this act was to insure to the teachers some measure of security in their important work and to free them, at least to a measurable extent from the ‘vicissitudes of politics’ or the likes or dislikes of those charged with the administration of school affairs.

‘ ‘ Such being the manifest purpose of the act it should be liberally construed in favor of the teachers, who constitute the class designated to be its primary beneficiaries.”

It is our conclusion that when the county superintendent of schools recommended that relators Frances G. Rose and Donald Rose, teachers eligible for continuing service status, be re-employed and the respondent board, not having rejected this recommendation by a three-fourths vote of its full membership, reemployed them, it was mandatory on the part, of the board to tender and execute a continuing contract and that they are therefore entitled to the respective writs prayed for, which are allowed; that relator Church is and has been entitled to a continuing contract since the effective date of the act under the first proviso thereof and is therefore entitled to the writ prayed for, which is allowed; that relator Duncan is entitled to at least a three year contract effective as of the beginning of the school year 1942-1943, and a writ is allowed accordingly; and that relator Pollitt is entitled to a. contract for not less than three years effective as of the beginning of the school year 1943-1944. A writ is allowed as prayed for.

Writs allowed accordingly.

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


author: Guernsey, P. J.

text:
    Anderson, Appellee, v. Industrial Commission of Ohio, Appellant.
    (No. 327
    Decided October 7, 1943.)

      Messrs. Unverferth S Unverferth and Mr. T. J. Duffy> for appellee.

      Mr. Thomas J. Herbert, attorney general, and Mr. Robert E. Hall, for appellant.
   Guernsey, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Henry county, Ohio, in an action wherein Florence Anderson, the appellee, was plaintiff, and the Industrial Commission of Ohio, the appellant, was defendant, finding in favor of the plaintiff’s right to participate in the state insurance fund, and making a certificate thereof accordingly to the Industrial Commission.

The application to the Industrial Commission for an award of compensation was made by the plaintiff, Florence Anderson, widow of J. S. Anderson, deceased, on behalf of herself and Helen Anderson the daughter of plaintiff and decedent.

The transcript of the proceedings had before the Industrial Commission shows that upon .rehearing duly granted, the claim was submitted to the Industrial Commission upon certain testimony not material for consideration of this appeal, and the following stipulation, to wit:

“It is stipulated and agreed by and between counsel for the. claimant and counsel for the state insurance fund that on February 4, 1941, John S. Anderson, the decedent in this case, was serving as county superintendent of the Henry County Board of Education, and that on that date the Henry County Board of Education had complied with the requirements of the Workmen’s Compensation Law, and had paid premium into the state insurance fund. It is further stipulated and agreed that the decedent was appointed by said Henry County Board of Education, and began work as county superintendent on August 1, 1940.

“It is further stipulated and agreed that on February 4, 1941, the decedent while in the performance of his duties as county superintendent of schools was required to attend meetings of the board of education at Liberty Center, and the Board of Education of South Ridge Special, and after finishing his duties at the meetings of the above mentioned boards of education he started for his home in an automobile, and was proceeding by the shortest and most direct route when he was struck by a railroad train at a crossing and was so injured that he died on the same date as a result of said injury. It is further stipulated and agreed that the venue of the case is Henry county, Ohio.

“It is further stipulated and agreed that at the time of his death Florence Anderson was his wife, and was living with him at the time of death, and that there was also a daughter, Helen, who was living with the decedent and his wife at the time of death, and whose age at that time was seventeen (17), and that she was attending school at Florida, Henry county, Ohio. Further stipulated and agreed that Mrs. Florence Anderson was wholly dependent upon the decedent at the time of his death.

“It is further stipulated and agreed that the only issue involved in this case is whether or not a county superintendent of schools is an employee or a public official, within the meaning of the Workmen’s Compensation Law, and whether or not the widow or dependents of a deceased county superintendent who has met death in the course of his employment is entitled to the benefits of the Workmen’s Compensation Law. That is, whether or not a county superintendent of schools is excluded from the provisions of the Workmen’s Compensation Law.

“It is further stipulated and agreed that the claimant within the statutory period filed an application for payment of compensation on behalf of herself and daughter, Helen; that the Industrial Commission of Ohio heard said application and subsequently disallowed the claim, and thereafter an application for rehearing was filed within the statutory period, and the claim was assigned for hearing pursuant to which order this claim comes on for hearing today.”

It further, appears from such transcript that on such hearing the Industrial Commission disallowed the claim, the disallowance being based upon an opinion of the Attorney General, No. 5168, published by the office of the Attorney General, May 27, 1942, to the effect that a county superintendent of schools (appointed under the laws of Ohio) is an official and not an employee, workman or operative, within the meaning of Section 1465-61, General Code, and is therefore excluded from the provisions of the Workmen’s Compensation Law.

Appeal was duly taken from the order of the Industrial Commission disallowing the claim, to the Common Pleas Court of Henry county, and upon the cause being duly submitted to such court without the intervention of a jury, the judgment, from which this appeal is taken, was rendered.

While a number of assignments of error are made, the sole contention of the appellant under such assignments is that as a matter of law, the decedent in his capacity as county superintendent was a public official and not an employee of the Henry County Board of Education, within the meaning of Section 1465-61, General Code, and was therefore excluded from the benefits of the Workmen’s Compensation Law.

Section 1465-61, General Code (114 Ohio Laws, 28), defined the terms “employee,” “workman” and “operative” as used in the Workmen’s Compensation Act, as follows:

“1. Every person in the service of the state, or of any county, city, township, incorporated village or school district therein, including regular members of lawfully constituted police and fire 'departments of cities and villages, under any appointment or contract of hire, express or implied, oral or written, except any official of the state, or of any county, city, township, incorporated village or school district therein. * * *”

As used in this provision the word “official” means any one who holds or is vested with a public office of the state or any of the designated political subdivisions thereof.

The tests for determining whether a position is a public office, and consequently whether the incumbent thereof is a public officer, are stated in the opinion in the case of State, ex rel. Landis, v. Bd. of Commrs. of Butler County, 95 Ohio St., 157, at pages 159, 160, and 161, 115 N. E., 919, to be as follows:

“The usual criteria in determining whether a position is a public office are durability of tenure, oath, bond, emoluments, the independency of the functions exercised by the appointee, and the character of the duties imposed upon him. * * * while an oath, bond and compensation are usually elements in determining whether a position is a public office they are not always necessary. # * * The chief and most-decisive characteristic of a public office is determined by the ■ quality of the duties with which the appointee is- invested, and by the fact that such duties are conferred upon the appointee by law. If official duties are prescribed by statute, and their performance involves the exercise of continuing, independent, political or governmental functions, then the position is a public office and not an employment. * * * ■

“To constitute a public office, * * * it is essential that certain independent public duties, a part of the sovereignty of the state, should be appointed to it by law. * * * the functional powers imposed must be those which constitute a part of the sovereignty of the state.

“If specific statutory and independent duties are imposed upon an appointee in relation to the exercise of the police powers of the state, if the appointee is invested with independent power in the disposition of public property or with power to incur public obligations upon the part of the county or state, if lie is empowered to act in those multitudinous cases involving business or political dealings between individuals and the public, wherein the latter must necessarily act through an official agency, then such functions are a part of the sovereignty of the state.”

Under the provisions of Section 7702, General Code (118 Ohio Laws, 668), in effect during the service of the decedent as county superintendent of schools as aforesaid, but since repealed, the general duties of a county superintendent of schools were defined as follows :

“Such superintendent shall be in all respects the executive officer of the board of education and shall visit the schools under his charge, direct, assign, and assist teachers and all other educational employees in the performance of their duties, classify, assign, and control the promotion of pupils, and perform such other duties as such board determines. ’ ’

Further duties of a county superintendént of schools are prescribed in other sections of the General Code, but' are of the same general character as the duties prescribed by former Section 7702, General Code.

The fact that former Séction 7702, General Code, prescribed that “such superintendent shall be in all respects the executive officer of the board of education,” is not determinative of the question as to whether the superintendent is a public officer, for, under the rules hereinbefore mentioned, it is the quality of the duties with which the employee is invested rather than the description of the office which is determinative of such question.

The duties invested in a superintendent by former Section 7702, General Code, to “direct, assign, and assist teachers and all other educational employees in the performance of their duties, classify, assign, and control the promotion of pupils,” are of such character that if exercised independently by the superintendent, would constitute the exercise of functions which are a part of the sovereignty of the state, and would constitute the superintendent, within the terms of the definition hereinbefore set forth, a public officer.

Our next inquiry therefore is whether it is the legislative intent that such functions are to be exercised independently by such superintendent.

Section 4728, General Code (109 Ohio Laws, 242), and Section 4744-1 (115 Ohio Laws, pt. 2, 94), were in pari materia with Section 7702, General Code, above mentioned, and to determine the proper interpretation and construction to be placed on the provisions of Section. 7702, General Code, such sections must be read, interpreted and construed together.

Section 4728, General Code, prescribed:

“Each county school district shall be under the supervision and control of a county board of education composed of five members, who shall be electors residing in the territory composing the county school district and who may or may not be members of local boards of education.”

Section 4744-1, General Code, among other things, prescribed:

“The salary of the county superintendent shall be fixed by the county board of education to be not less than twelve hundred dollars per year, and shall be paid out of the county board of education fund on vouchers signed by the president of the county board.”

It will be noted that under the provisions of Section 4728, Genera] Code (109 Ohio Laws, 242), “supervision and control” of a county school district was vested in the county board of education.

Essential to the exercise of such supervision and control by the county board of education, is supervision and control over the persons designated by law to execute the educational functions of such school district, and such supervision and control necessarily comprehends supervision and control of the performance by the superintendent of the county school district, of the duties vested in or imposed upon such superintendent by statute, or by action of the board pursuant to statute. Consequently such duties as are invested in or imposed upon the superintendent by statute, or pursuant to statute, are subject to the general supervision and control of the county board of education, and the county superintendent does not independently exercise any sovereign functions, and, not independently exercising such functions, is not a public officer, but is merely an employee of the board of education.

The construction we have adopted is in harmony with the provisions of Section 20, Article II of the Constitution, and in conformity with the rule that where there are two possible interpretations to be placed upon a statute, one of which will render it valid and the other invalid, the court should adopt the former so as to bring the statute in harmony with the Constitution.

Section 20 of Article II of the Constitution prescribes :

“The General Assembly, in cases not provided for in this constitution, shall fix the term of office and the compensation of all officers; but no change therein shall affect the salary of any officer during his existing term, unless the office be abolished.”

In the case of State, ex rel. Godfrey, v. O’Brien, Treas., 95 Ohio St., 166, 115 N. E., 25, the Supreme Court held that the General Assembly of Ohio cannot delegate the authority conferred upon it by Section 20 of Article II of the Constitution, to fix the compensation of officers.

It will be noted that Section 4744-1, General Code (115 Ohio Laws, pt. 2, 94), prescribed that the salary of the county superintendent should be fixed by the county board of education.

If the provisions of former Section 7702 and other cognate sections of the General Code should be construed as conferring on the county superintendent the independent exercise of sovereign functions constituting him a public officer, the provisions of former Section 4744-1, General Code, above mentioned, would constitute a delegation by the General Assembly of Ohio to the county board, of the authority conferred upon it by Section 20 of Article II of the Constitution to fix the compensation of officers, and would therefore be unconstitutional and void.

For the reasons mentioned, we find no error in the particular specified, and the judgment will be affirmed at costs of appellant, and the cause remanded for execution.

Judgment affirmed.

Jackson and Middleton, JJ., concur.


author: Carter, J.

text:
    Krovosucky, Appellee, v. Industrial Commission of Ohio, Appellant.
    (No. 776
    Decided May 27, 1943.)

      Mr. Orman G. Terry and Mr. Thomas F. Joseph, for appellee.

      Mr.. Thomas J. Herbert, attorney general, and Mr. Robert E. Hall, for appellant.
   Carter, J.

Tliis is an appeal from the Court of Common Pleas of Belmont county, wherein the trial court, sitting as a jury, found in favor of claimant; the Industrial Commission having found and determined claimant was not injured in the course of and arising out of his employment. Motion for new trial was overruled.

It is urged that the judgment of the trial court should be reversed and final judgment rendered in favor of the commission. The operative facts are incorporated in an agreed statement which is as follows:

“It is stipulated and agreed that Paul Krovosucky was on January 7,1941, working on the day shift which begins at 8 o’clock; that the men customarily go into the mine and toward their working place about 7:15 when working on this shift; that Paul Krovosucky drove his own automobile to work and parked his car on land owned by the employer, The Y. & 0. Goal Company; that he got out of his car and walked around it and reached into the back part of his car to obtain’ his dinner pail and reaching into the back end of the car, stepped into an icy rut and fell, sustaining injuries described as a comminuted fracture of the left patella.

“It is further stipulated and agreed as a fact in this ease that the ground where Paul Krovosucky parked his car on the morning of January 7, 1941, was rough and uneven, having many ruts in it, and that on this morning the ground was frozen hard.

“It is further stipulated and agreed that mutual exhibit ‘A’ is an accurate representation of the area surrounding the entrance to the Florence mine of The Y. & 0. Coal Company; that mutual exhibit' ‘A’ may appear in evidence without objection by either party. It is further stipulated and agreed that the point marked ‘X’ on this map, directly to the left of the garage building, is the approximate point where Paul Krovosucky’s automobile was parked and where his accident occurred; that all of the property shown and designated by the mutual exhibit ‘A’ with the exception of that indicated by the railroad track and the public roadway, is owned by The Y. & 0. Coal Company. It is further stipulated and agreed that automobiles are parked to both sides of what is designated on mutual exhibit ‘A’ as the public road; that The Y. & 0. Coal Company does not maintain a parking lot or exercise any supervision as far as parking is concerned on the ground, but that employees and others who have occasion to be on the property are permitted to park their cars in these areas.

“It is stipulated and agreed that Paul Krovosucky’s employment with The Y. & 0. Coal Company was that of coal loader; that his duties as such were entirely within the Florence mine.”

For many years, under numerous holdings, the Supreme Court has held that a compensable injury within the Workmen’s Compensation Act must be accompanied by two elements; first, the injury must occur in the course of employment, and second, it must arise out of the employment. There can be no question and it is conceded by the commission that the injury received by claimant in the case at bar arose out of his employment.

The real question involved is: Did the injury occur in the course of his employment? If so, the trial court was not in error in the finding and judgment rendered. Cases of the character involved are not always easy of solution. However, we are of the view that the courts of highest resort in this state have held under situations similar to the one herein presented that claimant was injured in the course of his employment and entitled to.recover.

It is urged that claimant was not in the course of his employment for the reason that the time had not arrived when he had assumed or was to assume duties on behalf of his employer; that he had not arrived within the zone of his employment when injured; that claimant was not performing any required duty as would connote a causal relationship between the conditions, activities and environments of employment; that there were no hazards to which he was subjected un- , der which the employer had agreed to assume any control; and that the hazard was one assumed by the employee and one which was no greater than if the employee had elected to have parked his car upon and along the public highway or some other piece of property entirely disassociated with the property which happened to be owned by the employer.

It must be remembered that claimant came to the parking place which was very near the place where he entered upon his active duties. The sketch introduced in evidence indicates such to be the case, and claimant had not only parked his car near the place where his active duties began but upon the property owned by and under the control of the company. True, a highway and railroad separated the place, where claimant parked, from the entrance to the Florence mine wherein his duties were to be performed. However, claimant was not injured in the highway and that question is not before us. We are of the view that the fact that a highway separated the parking place from the mine, which highway was in close proximity to the parking place and also the mine entrance, is not the controlling factor.

The real question is: Was claimant at the time of injury in the zone of employment? If so, he was injured in the course of his employment.

In the case of Merz v. Industrial Commission, 134 Ohio St., 36, 15 N. E. (2d), 632, the Supreme Court has defined “zone of employment” as follows:

“It is the place of employment and the area thereabout, including the means of ingress thereto and egress therefrom, under control of the employer.”

The court in that case referred to the case of Gregory v. Industrial Commission, 129 Ohio St., 365, 195 N. E., 699, in the following language:

“* * * an employee, wdio was on his employer’s premises, but about two hundred yards from the place of active employment, was held to be within the zone of employment.”

Reference is also made to the case of Kasari v. Industrial Commission, 125 Ohio St., 410, 181 N. E., 809, 82 A. L. R., 1040, and other eases to the same effect, and cited in the Merz case.

We think claimant was in the zone of his employment at the time of his injury, and for that reason the trial court was not in error in finding in favor of claimant. We are unable to say as a matter of law that such was not the case. Under the facts as hereinbefore recited at least a jury question was presented and the court, sitting as a trier of the facts, was fully justified in finding claimant’s injuries arose out of and in the course of his employment. As bearing on these conclusions, we cite the following: Outland v. Industrial Commission, 136 Ohio St., 488, 26 N. E. (2d), 760; Merz v. Industrial Commission, supra; Industrial Commission v. Baker, 127 Ohio St., 345, 188 N. E., 560; Kasari v. Industrial Commission, supra; Industrial Commission v. Henry, 124 Ohio St., 616, 180 N. E., 194; Industrial Commission v. Barber, 117 Ohio St., 373, 159 N. E., 363; Industrial Commission v. Weigandt, 102 Ohio St., 1, 130 N. E., 38; Adams v. Industrial Commission, 65 Ohio App., 74, 29 N. E. (2d), 228; Bremner v. Industrial Commission, 63 Ohio App., 387, 27 N. E. (2d), 164; Taylor v. Industrial Commission, 13 Ohio App., 262; Leyman v. Industrial Commission, 35 Ohio Law Abs., 214, 39 N. E. (2d), 616; and Fisher v. Industrial Commission, 55 Ohio App., 524, 9 N. E. (2d), 884.

Judgment affirmed.

Phillips, P. J., and Nichols, J., concur.


author: Skeel, J.

text:
    The State of Ohio, Appellee, v. Weisberg, Appellant.
    (No. 19417
    Decided December 6, 1943.)

      Mr. Thomas A. Burke, Jr., director of law, for appellee.

      Messrs. Boycl, Brooks & Wickham, for appellant.
   Skeel, J.

The defendant was found guilty, by the verdict of a jury in the Municipal Court of Cleveland, of a violation of Section 13106, General Code.

The defendant was the manager of The American Meat Company’s store located at 5901 Broadway in the city of Cleveland. Two inspectors of the city of Cleveland, employed in the city sealer’s office, called at the store in question on Saturday morning, May 22, 1943. One of the inspectors went to the meat counter where beef and veal were displayed for sale. She first purchased a piece of -beef for which she was charged 87 cents. She then asked the clerk the price of veal. She was told that the price was 28 cents per pound. She then pointed out one of the pieces of veal in the showcase, upon which was a tag indicating the price at 28 cents. When the clerk weighed this piece he was told it was more than she wanted and she pointed out another piece which she testified was in the same pile but which the clerk insists was some few inches removed from the place where the first piece had been in the showcase. When the clerk weighed this piece, the inspector was told it would cost 87 cents. The inspector said she would take it and so it was wrapped up and a price tag given with which to pay the cashier. The piece of veal actually weighed three pounds. The evidence as to the manner in which the sale was made is not in dispute. The inspector pointed out the piece of veal she wanted and after weighing it the clerk charged her 87 cents. No mention of the weight was made either by the clerk or by the inspector. After the sale the inspector identified herself and upon a re-weighing of the veal it was found to weigh three pounds but it was claimed there was a short weight given because three pounds at 28 cents per pound would come to 84 cents and not 87 cents, the price charged. The scales were tested and found to be correct.

The defendant, manager of the store, was not present when the sale was made and the clerk who made the sale was not a regular butcher. He was, in fact, employed as a sign painter and helped out behind the counter on Saturdays when the store was busy. The defendant, when his attention was called to the transaction and he examined the veal purchased by the inspector, declaréd that it was not “whole shoulder” for which the price on that day was 28 cents per pound, as was the first piece weighed, but was “round shoulder” a more expensive cut, for which the store was charging on that day 31 cents per pound, and therefore" the inspector not only was not overcharged, but she was in fact undercharged and received more meat by weight than she was entitled to.

There is no evidence in the record to dispute in the slightest that the meat purchased was a more expensive cut than was being sold for 28 cents per pound. The inspector did testify as indicated above that this piece was in the same pile with the first cut selected, upon which there was a 28-cent tag. This testimony is in sharp conflict with all the other evidence on this subject.

At the conclusion of the taking of testimony and during the prosecutor’s opening argument to the jury he said:

“In these weight cases, if a person is going to overcharge, they overcharge them a little bit and put it on each customer.” (Italics ours.)

This sentence was uttered after a number of attempts on the part of the prosecutor to go outside the record and explain why the amount of one and three-fourths ounces, which was the amount of the claimed short weight that formed the basis of the state’s case, was so small. The bent of these statements, all far afield from the record, was that if a considerable overcharge for the weight given was made the customer would be far more likely to question it than where the overcharge or short weight was only an insignificant amount, thus implying that this defendant used this scheme in the general practice of short-weighing his customers. The court had sustained defendant’s objections to each of these attempts, whereupon the prosecutor came forth with the sentence above quoted, to which defendant entered his objection.

The defendant presents three claims of prejudicial error:

1. That the affidavit does not state a crime as against this defendant.

2. That there being no proof that defendant directed or knowingly permitted his employee to commit the act complained of, he could not be found guilty because of the absence of criminal intent.

3. Misconduct of the prosecutor.

We will first give consideration to the claims of the defendant, appellant, that the affidavit does not set forth sufficient facts to constitute a cause of action against the defendant and that intent or knowledge on the part of the defendant is a necessary element of the crime.

An examination of the affidavit will disclose that although the allegations are not in the words of the statute, yet all of-the necessary elements of the crime, as defined by Section 13106, General Code, are fully and completely set forth.

The contention of defendant is that the words “directing or permitting” require the allegation of knowledge or notice on the part of an employer that his employee is in fact cheating a customer by means of short weights. We hold that this is not a true construction of the legislative intention as expressed by the language of this section.

If we were to consider the statute as if the arrest had been of the employee who made the sale and not of the employer, certainly the reading of the statute would not indicate that knowledge or intent on the' part of the defendant that he was giving a short weight would be a necessary element of the crime. The reading of the statute as it would apply to a defendant under these circumstances would be as follows:

“Whoever, in buying or selling any property * # * makes or gives a false or short weight or measure * * * shall be fined * * *.”

If knowledge on tlie part of the defendant is a necessary element of the crime as thus defined, it must become so by judicial construction. And were it not for the case law of Ohio, it might well- be so construed because of the almost universal rule at common law that there cannot be a crime without a criminal intent and that where the statute is silent on the question the Legislature must have intended to include knowledge and intent as an element of the crime defined.

It is, of course, within the power of the Legislature to make an act criminal without regard for the element of knowledge or intent. There are many acts which are so destructive of the social order, or where the ability of the state to establish the element of criminal intent would be so extremely difficult if not impossible of proof, that in the interest of justice the Legislature has provided that the doing of the act constitutes a crime, regardless of knowledge or criminal intent on the part of the defendant. -

In these cases it is tlie duty of the defendant to know what the facts are that are involved or result from his acts or conduct. Statutes punishing the sale of adulterated foods or prohibiting the sale of intoxicating liquor to minors are most frequently found in this class of cases. The use of false weights could well come within this field of the law. But, as indicated above, unless it is made clearly to appear that the Legislature intended to omit the element of guilty knowledge or intent, it will generally be held to be a necessary part of the crime.

The rule is well stated in Clark & Marshall on Crimes, (3 Ed.), paragraph 39 at page 50:

“No principle of the common law is better settled or more generally applicable than the principle that an act is not a crime if the mind of the person doing the act is innocent.”

And in interpreting a statute, when this question is presented, the rule generally to be applied and as recognized by the great weight of authority is well stated in 22 Corpus Juris Secundum, 85, Section 30:

“The legislature may make an act criminal without regard to the intent or knowledge of the doer. Whether it has done so is to be determined from the language and purpose of the statute. Where the statute is silent, knowledge and criminal intent are generally essential if the crime involves moral turpitude, but not if it is malum prohibitum.”

The use of short weights and measures clearly involves moral turpitude. In fact the use of false weights and measures and the use of false tokens was an indictable offense at common law at a time when all other acts of obtaining property by false pretense were not punishable at all and resulted only in the right to a civil action.

In the case of Rex v. Wheatly, 2 Burr., 1125, decided in 1761, which involved the making of false representation as to the number of gallons of malt liquor involved in a sale, Lord Mansfield stated the law as it was then interpreted as follows:

“The offense that is indictable must be such a one as affects the public. As if a man uses false weights and measures, and sells by them to all or to many of his customers, or uses them in the general course of his dealing; so, if a man defrauds another, under false tokens. For these are deceptions that common care and prudence are not sufficient to guard against. So, if there be a conspiracy to cheat; for ordinary care and caution is no guard against this.

“ Those cases are much more than mere private injuries: they are public offences. But here, (referring to the case before the court) it is a mere private imposition or deception * *

But, as above indicated, the case law of Ohio clearly holds that where an act is prohibited by statute, without including therein the element of knowledge or intent, the courts will not, by judicial construction, include such element as a necessary part of the crime, even though it be such an act as is mala in se. Zent v. State, 3 Ohio App., 473. State v. Kelly, 54 Ohio St., 166, 178, 43 N. E., 163.

Concluding, therefore, that if the employee had been the defendant in this action, the element of intent or knowledge would not have been a necessary part of the state’s case, do the provisions of the statute make it a necessary part of the state’s case to show knowledge or intent on the part of the manager or employer who has been charged with a violation of such statute because of the acts of one of his employees? The reading of the statute as it has application to the employer, is as follows:

“Whoever, in buying or selling any property, or directing or permitting an employee so to do, makes or gives a false or short weight * *

The phrase “directing or permitting” has to do with and refers to the phrase “buying or selling,” by an employee and does not refer to the subsequent phrase, “makes or gives a false or short weight, * *

The elements of the crime so applied to the employer who sells through a clerk or agent, insofar as the need for showing knowledge and intent, are the same as where the one who actually makes the sale is the defendant.

We hold, therefore, that the affidavit was sufficient and stated a good cause of action against the defendant and that knowledge and intent are not necessary elements of the state’s case. In this conclusion all of the members of this court concur.

Coming now to the error claimed because of the alleged misconduct of the prosecutor. The majority of this court finds that the argument of the prosecutor constituted prejudicial error and deprived the defendant of a fair trial.

As indicated in the statement of facts above set forth the prosecutor told the jury why, in his opinion, storekeepers who give short weights do so in small amounts, in such a way as to imply that defendant indulged continuously in such practice. This was completely outside the record. The court sustained a number of objections to this line of argument and if the prosecutor, when so warned by the court not to go outside the' record, had complied with the court’s direction, the prejudice to defendant’s case which resulted would not have occurred. Not only did the prosecutor fail to heed the court’s rulings and admonitions but he went further afield and said:

“In these weight cases, if a person is going to overcharge, they overcharge them á little bit and put it on each customer.”

There is not one syllable of .testimony in the record that would justify such a statement as applied to defendant in the general conduct of his business and which was undoubtedly said for the purpose of producing a feeling in the minds of the jurors against defendant, beyond anything that could possibly result from the evidence. It would directly indicate that this defendant was in the practice of short weighing his customers. In doing this, a majority of this court holds that the rights of defendant to a fair and impartial trial were prejudiced.

For the above reasons the judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

Morgan, P. J., concurs.

Liegi-iley, J., dissents.


author: Stevens, P. J.

text:
    Vance et al., Appellants, v. The Hower Corp., Appellee. The Hower Corp., Appellee, v. Vance et al., Appellants.
    (Nos. 3635 and 3636
    Decided March 10, 1944.)

      Mr. E. F. Mooneyham, for appellants.

      3ir. M: Louis Pahnieri, for appellee.
   Stevens, P. J.

These two appeals on questions of law were heard and submitted together.

The first appeal is from a judgment of dismissal, entered in the Court of Common Pleas in an action brought to enjoin the enforcement, in the Common Pleas Court, of a purported judgment of the Municipal Court of Akron, Ohio.

The second is from an order and judgment of the Court of Common Pleas which overruled a motion by which the defendants attempted to have that court declare to be null and void a certificate of judgment filed in the Court of Common Pleas upon a purported judgment of the Municipal Court of Akron.

The facts from which the appeals arise are as follows :

On May 16, 1940, The Hower Corporation brought action against Fred S. Vance and Ollie Vance in the Municipal Court of Akron, seeking the recovery of money in the sum of $75, with interest thereon from May 16, 1940.

As appears from the docket, the defendants were served by mail on May 18, 1940.

On May 23, 1940, the following minute was made on the half sheet of said court in said case:

“Case called, defendant not appearing. Default judgment for plaintiff for $75, and also $5.85 costs of suit. ’ ’

In the left-hand column of the half sheet, under the legend “Judge,” appears “Powers, J.” No entry upon any journal of the court was made, nor was any separate journal entry, prepared, approved by the court, and filed with the clerk of the Municipal Court.

On August 14, 1943, a “certificate of judgment” was issued by the clerk of the Municipal Court of Akron, wherein he certified that a judgment was rendered in favor of The Hower Corporation and against Fred P. Vance and Ollie Vance for $75, and for $6.20 costs, with interest at the rate of 6% from the 23rd day of May, 1940.

This certificate further stated: “Said judgment is recorded in docket No. 395, page 203088, of the records of the Municipal Court of the city of Akron, Summit county, Ohio * *

On August 16, 1943, said certificate of judgment was filed in the office of the clerk of the Common Pleas Court of Summit county, Ohio, and was by the clerk recorded in judgment docket 4, page 347, of the records of the court, and numbered JL-2430.

Upon such judgment, so entered, an execution was caused to be issued by The Hower Corporation, which was 'by the sheriff returned unsatisfied.

An affidavit in aid of execution was then filed in the Court of Common Pleas on said certificate of judgment, and an order issued to the Firestone Tire & Rubber Company to appear and answer respecting its indebtedness to Fred S. Vance.

The Firestone Tire & Rubber Company, pursuant to order of the Court of Common Pleas, has withheld from the earnings of Fred S. „Vance certain money owing to him, and it is stipulated that The Hower Corporation will proceed to enforce the purported judgment unless restrained from so doing.

The legislation creating the Municipal Court of Akron (Section 1579-497 et seq., General Code) prescribes in Section 1579-497, General Code:'“That there shall be, and hereby is established in and for the city of Akron a municipal court, which shall be a court of record * * (Italics ours.)

It will be noted that the statute makes no distinction, so far as the court’s being one of record, between large and small, or what are designated in Rule 2 of the Municipal Court as first- and second-class, cases.

Section 1579-536, General Code, provides:

“The clerk shall have power to administer oaths and take affidavits; and acknowledgments; to issue executions upon judgments rendered in the municipal court, including judgments for unpaid costs; to issue and sign all writs, process and papers issuing out of the court and to affix the seal of the court thereto; and to approve all bonds and recognizances required by law or fixed by the court or any judge thereof, except as otherwise provided herein. He shall make, file, and safely keep all journals, records, books and papers belonging or appertaining to the court, including records of its proceedings and shall perform all other duties which the court may require. * * *” (Italics ours.)

Section 2898, General Code, provides:

“The provisions prescribing the duties of clerks of the Court of Common Pleas shall, so far as they are applicable, apply to the clerks of other courts of record. ’ ’

Section 2880, General Code, provides:

“The clerk shall keep the journals, records, books and papers appertaining to the court and record its proceedings.”

It seems apparent from the foregoing statutes that it is the duty of the clerk of the Municipal Court to keep a journal, and to record therein the proceedings. of the court.

Section 11604, General Code, provides:

“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.”

This section requires the clerk to enter all judgments and orders of the court upon the journal of the court and fixes the time for so doing.

Section 1579-516, General Code, provides:

“* * * 4_ ¶0 expele the business of the court and promote the ends of justice, the judges from time to time shall adopt, publish and revise rules relating to matters of practice and procedure not otherwise provided for in this act.”

Under such rule-making power, the following rule pertaining to its journal was adopted by the court:

“Rule 4, Dockets and Records.

“The clerk shall prepare and keep the following dockets and books, which shall be the public records of the court: s * *

“(5) A ‘journal,’ in which shall be recorded the orders of the court, made in cases wherein extended records are ordered to be made, or are demanded by a party. In the former case the expense of said records is to be taxed as costs in the case, and in the latter case the expense is to be prepaid by the party demanding the same and not taxed as costs.

“In all first-class cases a journal entry, together with a copy of the same, shall be furnished by the attorney to the clerk, who, after filing the same, shall cause the original to be entered in the journal provided for that purpose and the copy to be included in the files in the case.”

The foregoing rule excepts from journalization, judgments in all second-class cases, except those included within the class “cases wherein extended records are ordered to be made, or are demanded by a party. ’ ’

The above rule clearly contravenes Section 11604, General Code, and likewise the statutes with reference to the assessment of costs, and accordingly was not within the power of the court to enact, is void and of no effect.

The Municipal Court of Akron being made by statute a court of record as to all cases therein, and the clerk’s duties being fixed by statute, an invalid rule of court cannot relieve the clerk of the performance of those duties which the statutes enjoin upon him.

It was and is therefore the duty of the clerk of that court to enter the judgments of the court upon its journal when such judgments have been duly rendered, and this applies to second-class (cases involving loss than one hundred dollars) as well as to first-class cases (involving one hundred dollars or more).

In the case under consideration, was there a judgment rendered?

The only minute of a conclusion by the court, favorable to the plaintiff, was the notation (above set out) on the “half sheet,” which was likewise copied into the docket of the court.

It was held in Yost v. Stewart, 19 Ohio Law Abs., 364, that “the entry of the decision of a Municipal Court upon the ‘half sheet’ is equivalent to the entry of a jury verdict upon the docket in the Common Pleas Court.”

See, also, Pittsburgh Coal Co. v. Hamburg, 22 Ohio Law Abs., 283.

The Supreme Court of Ohio has declared, in Industrial Commission v. Musselli, 102 Ohio St., 10, 130 N. E., 32, that a judgment is not rendered until it is reduced to a journal entry; and in Amazon Rubber Co. v. Morewood Realty Holding Co., 109 Ohio St., 291, 142 N. E., 363, the Supreme Court stated:

“Where the decision of a court has been reduced to a journal entry, approved by the judge and counsel for the interested litigants, and the same has been filed for record with the clerk, such filing becomes an ‘ entry of the judgment’ within the meaning of Section 12270, General Code #

To prove the existence of a judgment, the common law as well as the statutes thereon governing courts of record require that either the entry of such judgment on the journal of the court, or a certified copy thereof, be produced.

In the instant case there v^as no judgment rendered because the decision of the court (the equivalent of a jury verdict) was not reduced to a journal entry, and there was no judgment entered, because of failure to meet the requirements set forth in Amazon Rubber Co. v. Morewood Realty Holding Co., supra.

We have examined many authorities in our investigation of this question, some of which are as follows:

11 Ohio Jurisprudence, Courts, Section 150; State v. Allen, 117 Ohio St., 470, 159 N. E., 591; State, ex rel. Industrial Commission, v. Day, Judge, 136 Ohio St., 477, 26 N. E. (2d), 1014; Cox v. Cox, 108 Ohio St., 473, 141 N. E., 220; Morewood Realty Holding Co. v. Amazon Rubber Co., 18 Ohio App., 201; Brown v. Cray, Mayor, 88 Conn., 141, 89 A., 1123; Kennedy v. Citizens’ National Bank of Knoxville, 119 Iowa, 123, 93 N. W., 71; 1 Freeman on Judgments (5 Ed.), Judgments, Section 49; 34 Corpus Juris, Judgments, Section 182.

Inasmuch as a court of record speaks through its journal (State, ex rel. Industrial Commission, v. Day, Judge, supra), it is our conclusion that the trial court erred when it refused to issue the injunction sought by plaintiffs, for the reason that there was no judgment of the Municipal Court upon which a certificate of judgment could properly be issued.

Moreover, had there been a valid judgment rendered, the purported certificate of judgment which was issued by the clerk of the Municipal.Court did not conform to the requirements of Section 11656, General Code, because it certified “Said judgment is recorded in Docket 395, page 203088, of the records of the Municipal Court of the city of Akron,” whereas the statute requires the clerk to certify “the volume and page of the journal entry thereof.” (Italics ours.)

The judgments of the trial court in each of said appeals are reversed; and this court, proceeding to enter the judgments which the trial court should have rendered, orders that the injunction as prayed for in Common Pleas Court case Ño. 143820 issue, and that the motion of the defendants below to declare the certificate of judgment filed in the Common Pleas Court as No. JL-2430 to be null and void, be sustained, with exceptions to appellee (The Hower Corporation) in each of the cases.

Reversed and final judgment for appellants in each case.

Judgments reversed.

Washburn and Doyle, JJ., concur.


author: Carpenter,,J.

text:
    Hendershot, Appellee, v. Ferkel; Motorists Mutual Ins. Co., Appellant.

      (No. 404
    Decided June 21, 1943.)

      Messrs. Schtvab £ Hinton and Mr. Glenn P. Bracy, for appellee.

      Messrs. Stahl, Stahl £ Stahl and Mr. Wilbur E. Benoy, for appellant.
   Carpenter,,J.

By supplemental petition filed under Section 9510-4, General Code, the plaintiff obtained a judgment against the supplemental defendant, Motorists Mutual Insurance Company, requiring it to pay her the judgment for $2,750 which she had previously been awarded against the principal defendant Clarence Ferkel, a resident of California, on a substituted process under Sections 6308-1 and 6308-2, General Code.

From that judgment against it, the insurance company appealed on questions of law and herein challenges the validity of the judgment against Ferkel on the ground that summons was not served upon him as required by Section 6308-2.

The statutes, being in derogation of common law, must be strictly followed to invest the court with jurisdiction. Donnelly v. Carpenter, Exrx., 55 Ohio App., 463, 9 N. E. (2d), 888; 5 American Jurisprudence, 830, Section 591.

Section 6308-2, General Code, is as follows:

“Such process shall be served, by the officer to whom the same shall be directed or by the sheriff of Franklin county, who may be deputized for such purposes by the officer to whom the service is directed, upon the Secretary of State of the state of Ohio, by leaving at the office of said secretary, at least fifteen (15) days before the return day of such process, a true and attested copy thereof, and by sending to the defendant, by registered mail, postage prepaid, a like true and attested copy thereof, with an endorsement thereon of the service upon said Secretary of State, addressed to such defendant at his last known address. The registered mail return receipt of such defendant shall he attached to and made a part of the return of service of such process(Italics ours.)

Two objections are made to the service as shown by the record:

1. That the address to which it was directed was not Ferkel’s “last known address”; and

2. That no “return receipt of such defendant” was “attached to and made a part of the return of service of.such process.”

The facts material to the decisions of these questions are undisputed. Plaintiff had filed an earlier case which was dismissed for want of prosecution after the return of summons, which had been served in San-dusky county, had been quashed on an affidavit.of Ferkel dated September 27, 1937, stating that he then resided at 2024 Sherbourne Dr., Los Angeles, California. On September 24, 1938, one year less three days later, the petition herein was filed, and, without any investigation as to what the then address of the defendant was, the praecipe directed the issuance of summons to the sheriff of Sandusky county for

“Clarence Ferkel, 2024 Sherbourne Dr., Los Angeles, California, to be served in accordance with the provisions of Section 6308-2 of the General Code of Ohio.”

The sheriff’s return states that summons was served on the Secretary of State and a copy was mailed, registered, to Ferkel at the address given “which registered mail was returned by the postal department, endorsed, ‘unknown at address.’ ”

In this trial, Ferkel by deposition testified that about October 20, 1937, he came to the Sherbourne Dr. residence and found it quarantined and left hastily without leaving a forwarding address, and that during the following year he had several different addresses.

The parents testified that at all times they knew Clarence’s address, arid that neither the plaintiff nor any one for her ever inquired of them for it. Counsel for plaintiff knew that Ferkel’s parents lived near Clyde in Sandusky county and could easily have made such inquiry of them.

This was not compliance with this phase of the statute. Speaking of “last known address” as used in a statute similar to this, it was said in State, ex rel. Cronkhite, v. Belden, Judge, 193 Wis., 145, 211 N. W., 916, 57 A. L. R., 1218:

“This must mean not his last address known to the plaintiff, but plaintiff is required to ascertain at his peril the last known address of the defendant as a matter of fact, and his failure to do so will amount to a failure to comply with the statute and render the service invalid.”

To the same effect is Hartley v. Vitiello, 113 Conn., 74, 154 A., 255.

The statute makes no exception to the requirement that “the registered mail return receipt of such defendant shall be attached to and made a part of the return of service of such process.”

That this means just what it says was the decision in Dwyer v. Shalck, 232 App. Div., 780, 248 N. Y. S., 355.

The language is mandatory. It is no different than the requirement of personal service upon a defendant in an Ohio divorce action when a judgment in personam for alimony is to be had.

For these reasons, the judgment against Ferkel is void; hence the plaintiff did not have a cause of action against the insurance company and its motion for judgment should have been granted. The judgment appealed is reversed and final judgment for the defendant Motorists Mutual Insurance Company is ordered.

Judgment reversed and final judgment for appellant.

Lloyd and Stuart, JJ., concur.


author: Stuart, J.

text:
    Homlar, Appellee, v. The Great Lakes Towing Co., Appellant.

      (No. 4020
    Decided February 7, 1944.)

      Messrs. Doyle dt> Lewis, for appellee.

      Mr. Ralph Emery and Mr. George H. Lewis, for appellant.
   Stuart, J.

This case is before this court on appeal on questions of law from a judgment of the Court of Common Pleas of Lucas county, Ohio, entered upon the verdict of a jury in the sum of $10,000 rendered against the defendant.

The defendant, in its assignment of errors, claims that the court erred upon the trial, as follows:

1. In admitting evidence on behalf of plaintiff over the objection of defendant.

2. In rejecting evidence offered by defendant.

3. In overruling the motions of defendant for a directed verdict in its favor, in refusing defendant’s request number one, and in overruling defendant’s motion for judgment notwithstanding the verdict.

4. In instructing the jury in accordance with plaintiff’s request number one.

5. In its charge to the jury.

6. In not granting the motion of defendant for a new trial, particularly on the ground of excessive damages.

7. In that the verdict is not sustained by sufficient evidence and is contrary to law.

The action was for damages resulting from-a collision of motor vehicles in the state of Michigan, on the highway between Monroe, Michigan, and Toledo, Ohio, on the evening of January 7,1942. Plaintiff was driving his automobile in a northerly direction on the easterly side of the highway, going toward Monroe, and Ralph B. Millard, the district manager of the defendant’s Toledo and Detroit division, was driving his automobile in a southerly direction on the westerly side pf the highway, going to his home in Toledo, while returning from a business engagement in Detroit, on behalf of the defendant, which he had completed about two o’clock that afternoon.

Millard testified that he was proceeding at a speed not exceeding 25 or 30 miles an hour; that it was dark; that the road was icy in spots; that he saw a car several hundred feet ahead of him and started to apply his brakes; and that he was on the westerly, his right, side of the road until his car skidded on an icy spot and the rear end went over the center line of the road about eighteen inches, and the left rear end collided with the left front end of the plaintiff’s car approaching from the south, causing damage to it and breaking the plaintiff’s right hand.

The plaintiff’s occupation was physiotherapy or massaging, and the result of the fracture was a shortening of the middle finger of his right hand, causing that finger to double under occasionally when he attempted to use it in his profession.

Plaintiff testified, over the objection of the defendant, that immediately after the accident ‘ ‘ Mr. Millard said that we better move my car off the road because the traffic was passing through there continually, busy highway, and he drove his car off the side of roád. I went into a house to call the state police and the house had no telephone, so I flagged the first driver coming along and asked him to stop at the corner and phone the police, and it'was very cold and my hand was feeling numb. I took off a heavy glove; my finger was depressed underneath the other fingers and it was impossible to get the glove back on, and Captain Millard suggested we get into his car because the heater was on and we would wait, and in the car Captain Millard was very much of a gentleman.”

When asked to state just what - Millard said, the plaintiff answered: “lie was very sorry that the accident happened, but it was unfortunate and might happen to anyone, and he was sure it would be taken care of all right.”

Over the objection of the defendant, the plaintiff repeated in almost the same words his last answer as to what Millard had said to him.

These statements having been made some time after the collision and after the plaintiff had left the scone and had returned thereto, were not spontaneous and were too remote. They related only to the question of responsibility and not to the manner in which the collision occurred, were not made by the employee while engaged in the business of his employer or in the course of his employment, and therefore were not part of the res gestae. Bake v. Industrial Commission, 135 Ohio St., 627, 22 N. E. (2d), 130; Dugan v. Industrial Commission, 135 Ohio St., 652, 22 N. E. (2d), 132.

The trial court denied the defendant the right to cross-examine the witness, who repaired plaintiff’s automobile, as to the charge made for and the cost of such repairs. This witness had given his opinion as to the value of the car immediately before and immediately after the collision and it would seem that the cost of these repairs might very well have been considered by the jury in determining the weight to be given to his opinion as to value. The court should have permitted such examination. American Gypsum Co. v. Lake Shore & Michigan Southern Ry. Co., 7 Ohio App., 145, 153; Ford Motor Co. v. Potomac Ins. Co., 27 Ohio App., 279, 281, 161 N. E., 230; North River Ins. Co. of New York v. Ohmer, 63 Ohio App., 346, 354, 26 N. E. (2d), 767.

Inasmuch as defendant’s request number one, to charge the jury before argument, contained the statement “that if he had started back to Toledo promptly af-ter he had completed the transaction of any business of said company on account of which he went to Detroit he would have returned to Toledo in the daytime, and that when the collision occurred he was returning to his home after dark,” which facts would not have relieved the defendant of responsibility if the other elements were present, the trial court was not in error in refusing to give it.

The court gave the jury before argument, plaintiff’s request number one, which is as follows:

‘ ‘ The law applicable to this case requires ‘ the driver of a vehicle shall drive the same upon the right half of the highway’; if you find by a preponderance of the evidence that Ralph Millard’s car was operated on the left or east side of the highway ivithout any legal excuse therefor, and that he was then and there acting as defendant’s agent in the scopo of his employment by defendant and engaged in the course of his duties connected with his employment by defendant, then I charge you that defendant was guilty of negligence as a matter of law. If you further find by a preponderance of the evidence that said negligence was a direct and proximate cause of plaintiff’s injuries and that plaintiff was free from negligence contributing thereto in the slightest degree, then your verdict must be for the plaintiff.”

This instruction was incomplete in that it did hot explain to the jury what would be a “legal excuse therefor,” nor did the court do so in its general charge to the jury. Kohn, Admx., v. B. F. Goodrich Co., 139 Ohio St., 141, 38 N. E. (2d), 592.

“1. Although under the statute a mandatory duty devolves upon the court to give an instruction requésted in writing before argument which contains a correct statement of the law pertinent to the issues involved, and applicable to the particular set of facts to which it is intended to apply, such instruction must state the law clearly and correctly and be complete in itself. The court may properly refuse to give requested instructions before argument which are indefinite, uncertain or ambiguous, or otherwise misleading.” Scott, Admx., v. Hy-Grade Food Products Corp., 131 Ohio St., 225, 2 N. E. (2d), 608.

In charging the jury, the trial judge read the pleadings to the jury and did not otherwise define the issues. This was erroneous. B. & O. Rd. Co. v. Lockwood, 72 Ohio St, 586, 74 N. E., 1071; Lima Used Car Exchange Co. v. Hemperly, 120 Ohio St., 400, 405, 166 N. E., 364; Uncapher v. B. & O. Rd. Co., 127 Ohio St., 351, 188 N. E., 553; Simko v. Miller, 133 Ohio St., 345, 352, 13 N. E. (2d), 914; Netzel v. Todd, 30 Ohio App., 300, 304, 165 N. E., 47.

In the Simko case, the Supreme Court, at page 352, at length defines the duties of the trial judge in charging the jury.

The charge in the instant case contained the following statement:

"The aforesaid negligent acts were in violation of the statutes of the state of Michigan then and there in full force and effect.”

While this was probably an allegation read from the petition, it appears in the charge as a statement of law by the court and was misleading. Kohn, Admx., v. B. F. Goodrich Co., supra.

"The test of a master’s liability is not whether a given act was done during the existence of the servant’s employment, but whether such act was done by the servant while engaged in the service of, and while acting- for the master, in the prosecution of the master’s business.” Lima Ry. Co. v. Little, 67 Ohio St., 91, 65 N. E., 861. See, also, Morrow v. Hume, Admx., 131 Ohio St., 319, 326, 3 N. E. (2d), 39.

These errors prejudicial to the defendant would require reversal and remand for a new trial, but in this case the undisputed evidence is that Millard had completed his duties for his employer and was returning- to his home. His employer had no control over him at the time. He was at liberty to begin his return journey at whatever time, in any manner and by any route he chose. At the time of the collision he was not acting for his employer nor engaged in his employer’s business. The judgment is reversed and final judgment rendered for defendant.

Judgment reversed.

Lloyd and Carpenter, JJ., concur.