author: By McNAMEE, District Judge.

text:
    UNITED STATES OF AMERICA, Plaintiff, v. PIERCE, Defendant.
    United States District Court N. D. Ohio, E. D.
    No. 21114.
    Decided August 11, 1954.

      Sumner Canary, U. S. Atty., Eben H. Cockley, Asst. U. S. Atty., Cleveland, for the United States.
    Thaddeus.C. Toudor, Chicago, Ill., Marc J. Wolpaw, Cleveland, for defendant.
   OPINION

By McNAMEE, District Judge.

In a trial to the court without a jury the defendant was convicted of the charge of making an unlawful purchase of ten ounces of heroin in violation of Title 26 U. S. C. A. §2553. Police officers who searched the defendant’s traveling bag without a warrant, found therein ten glassine envelopes each of which contained approximately one ounce of heroin. The search was made shortly after and incident to the arrest of the defendant without a warrant at about 5:45 a. m., November 5, 1953, in the Cleveland Union Terminal. The defendant was arrested upon his arrival by train from Chicago, Illinois as a result of information obtained by police officers and a government narcotic agent through listening to telephone conversations between the defendant and an informer named Grant Washington.

In his motion for a new trial the defendant attacks the validity of the search, and renews the arguments made on the hearing of his motion to suppress the evidence and at the trial. As a statement of facts will disclose, the lawfulness of the arrest and the validity of the search cannot be seriously questioned, unless the testimony of the iaw-enforeement officers in respect of the telephone conversations heard by them was improperly received in evidence. The important issue raised by this motion is whether this testimony is prohibited by Section 605 of the Federal Communications Act, 47 U. S. C. A. §605.

The essential facts are:

' In the late afternoon of November 4, 1953 detectives of the Cleveland Police Department arrested Grant Washington and another person in whose room narcotic drugs were found. A slip of paper bearing a Chicago telephone number was found upon the person of Washington. He told the police officers that the ’phone number was that of a man then known to him only as Jesse, from whom on several occasions he had procured deliveries of heroin. Washington expressed his willingness to call Jesse by 'phone and order heroin and permit the police officers to listen to the conversation between them. The Cleveland Police Department had no funds with which to make long distance calls, and arrangements were made with the Federal Narcotics Bureau to have the call made by that agency. Washington was brought to the office of the Narcotics Bureau in the Federal Building, and at about 7:00 p. m. on November 4 he called Jesse’s number in Chicago. In the conversation that followed, Washington told Jesse that he wanted ten pieces, meaning ten ounces, of heroin, and Jesse replied in substance that he would see what he could do and call Washington later that evening. Police officers Savage and Cobb listened to the telephone conversation between Washington and Jesse on two extensions of the connection over which Washington spoke, and a narcotic agent of the government heard the conversation by placing his ear close to the receiver used by Washington. After this conversation was completed, Washington was taken to his home by agent Fialkewicz and officer Cobb, who remained there with him. About 11:00 o’clock that evening Washington made a second call to Jesse but was unable to reach him. However, a few minutes later the long distance operator connected him with Jesse. At that time Jesse told Washington that “he had made connections,” that a cab was waiting outside his home and that he was leaving for Cleveland in about forty minutes. There was no extension ’phone in Washington’s home, but both officer Cobb and agent Fialkewicz testified that by placing themselves in proximity to the receiver of Washington’s ’phone, they heard the above statements made by Jesse. The officers then checked the schedules of all available means of transportation between Chicago and Cleveland and learned that a train due to arrive in Cleveland at 5:37 a. m. was leaving Chicago about forty minutes after the second telephone conversation above noted. Shortly before the arrival of the train, four narcotic agents and four police officers accompanied by Washington, went to the Cleveland Union Terminal. As Jesse came up the stairway from the train shed to the concourse of the station he was recognized by two of the officers as the man whom Washington had described. As officer Savage stated, he matched Washington’s description “perfectly.” The defendant was stopped by the officers and, upon inquiry, he told them that his name was Jesse Pierce and that he came from Chicago. He was then asked for further identification through his draft registration card, which he exhibited to the officers. After showing this card, he was placed under arrest. Meanwhile Washington, who was some distance away from the arresting officers, pointed to the defendant as the man with whom he had talked over the telephone. The defendant was told to open his baggage, but he stated that he had left the keys in Chicago. The officers then took him to the Central Police Station and there one of the officers opened Pierce’s traveling bag with one of the keys found in Pierce’s possession. As indicated above, the ten ounces of heroin were found in the traveling bag.

In view of the cooperation of the state and federal officers and the prosecution of the defendant in this court, the legality of the search must be determined by the same principles that would be applicable if the arrest of the defendant and the search of his traveling bag had been ma’de solely by federal agents.

It is fundamental that not every search and seizure made without a warrant is illegal. As the Supreme Court said in United States v. Rabino-Witz, 339 U. S. 56, 60, 70 S. Ct. 430, 432, 94 L. Ed. 653:

“Yet no one questions the right, without a search warrant, to search the person after a valid arrest. The right to search the person incident to arrest always has been recognized in this country and in England. Weeks v. United States, 232 U. S. 383, 392, 34 S. Ct., 341, 344, 58 L Ed. 652.”

See also Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543.

State law determines the validity of arrests without warrant. United States v. Di Re, 332 U. S. 581, 68 S. Ct. 222, 92 L. Ed., 210. Sec. 2935.04 R. C. provides:

“When a felony has been committed, or there is reasonable ground to believe that a felony has been committed, any person without a warrant may arrest another whom he has reasonable cause to believe is guilty of the offense, and detain him until a warrant can be obtained.”

Certainly the facts and circumstances within the knowledge of the officers were sufficient in themselves “to warrant a man of reasonable .caution in the belief” that the defendant was guilty of a felony in the unlawful possession of narcotic drugs in violation of §3719.02 R. C., and Section 2553 of Title 26 U. S. C. A. Indeed, the only fair and reasonable inference to be drawn from the defendant’s appearance in the railroad station in Cleveland in the early morning of November 5, 1953 is that he was there to deliver narcotic drugs to the informer, as he indicated he would in the telephone conversations heard by the officers but a few hours before. There was abundant justification for the arrest of the defendant without a warrant. Nor can any question arise concerning the practicability of obtaining warrants for the arrest or search. It was not until about 11:00 p. m. on November 4 that the officers received definite information that the defendant was leaving Chicago for Cleveland to deliver the heroin. All other considerations apart, it appears clearly that it would have been impracticable if not impossible to obtain warrants between the hours of 11:00 at night and 5:00 a. m. the following day.

The argument that error was committed in the hearing on the motion to suppress in permitting the officers to give hearsay testimony relating to Washington’s statements about his illegal dealings with the defendant merits only passing notice. It is well settled that hearsay testimony, coupled with testimony based on the officers’ personal knowledge, may be received at hearings on motions to suppress evidence. United States v. Bianco, 3 Cir., 189 F. 2d 716; United States v. Li Fat Tong, 2 Cir., 152 F. 2d 650; Gilliam v. United States, 6 Cir., 189 F. 2d 321. However, the issue whether the testimony of the officers relative to the telephone conversations heard by them is prohibited by Section 605, Title 47 U, S. C. A., merits more extended comment. The pertinent part of Section 605 reads:

“* * * and no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person; * *

Wire tapping and the divulgence of information obtained by such means is prohibited by the above quoted language of the statute. Nardone v. United States, 302 U. S. 379, 58 S. Ct. 275, 82 L. Ed. 314. See also Nardone v. United States, 308 U. S. 338. 60 S. Ct. 266, 84 L. Ed. 307; Weiss v. United States, 308 U. S. 321, 60 S. Ct. 269, 84 L. Ed. 298.

The Supreme Court has not passed upon the precise question here presented. But in United States v. Polakoff, 112 F. 2d 888. 889, the Second Circuit Court of Appeals had before it facts that were essentially identical. There the prosecuting witness talked with the accused through a telephone in the office of the F B. I. The conversations were recorded upon a machine attached to an existing extension in another room. As noted by the Court of Appeals in that case, the governing principles of law would have been the same if the conversations merely had been listened to instead of being recorded. In holding the recordings to be inadmissible as evidence, Judge Learned Hand defined “intercept” by saying:

“* * * anyone intercepts a message to whose intervention as a listener the communicants do not consent; the means he employs can have no importance; it is the breach of privacy that counts.”

The Second Circuit Court of Appeals was aware of the definition of “intercept” as stated in United States v. Yee Ping Jong, D. C., 26 F. Supp. 69, but refused to accept it. The opinion in the Polakoff case, written by one of the greatest living judges, is entitled to the utmost respect. However, its precedential value is to be determined not only by the prestige of the author and the reasons supporting the decision; consideration must be given to the exceptionally able dissenting opinion of Judge Clark in that case and to the pertinent statements of the Supreme Court in Goldman v. United States, 316 U. S. 129, 62 S. Ct. 993, 86 L. Ed. 1322. in defining the term “intercept.” Account must be taken also of the concurring opinion of Judge Chase of the Second Circuit Court of Appeals in Reitmeister v. Reitmeister, 162 F. 2d 691, and finally to Judge Learned Hand’s own language in Reitmeister, in which he apparently modifies substantially his definition of “intercept” as stated in Polakoff.

As indicated in his dissenting opinion in the Polakoff case Judge Clark was persuaded that the definition of “intercept” as stated by Judge Gibson in Yee Ping Jong, supra, was correct. In this connection Judge Clark said:

“As pointed out in U. S. v. Yee Ping Jong, D. C. W. D. Pa., 26 F. Supp. 69, the verb ‘intercept’ means ‘to take or seize by the way, or before arrival at the destined place’ (Webster’s New International Dictionary, 2d Ed.), and does not aptly refer to a communication which has reached its intended destination and is recorded at one end of the line by one of the participants or, it should be added, by his direction. Reasons of policy justify the making of telephone communications privileged for the two parties involved; they do not justify making them so privileged to one party as against use by the other.”

Judge Clark also pointed out that under the construction of the statute by the majority not only would law-enforcement officers be seriously handicapped in ferreting out crime but such construction would serve to make criminal offenses of many of the normal and natural uses of telephone conversations by private individuals. Section 501 of Title 47 U. S. C. A. provides that any person who knowingly and willfully does anything prohibited by this act is guilty of an offense. Thus, under the holding in Polakoff. a private secretary could not listen to transcribe and later divulge a telephone conversation between her employer and another; a person would not be able by such means to protect himself against misconstruction of his statements; and one who had been blackmailed and threatened in a telephone conversation would be denied the right to offer corroborative evidence in support of his own testimony in respect of the threats received in this manner. It is unreasonable to suppose that Congress intended any such undesirable results to flow from the enactment of Section 605.

The definition of “intercept” in Yee Ping Jong, supra, also received the approval of the Supreme Court in Goldman v. United States 316 U. S. 129, 62 S. Ct 993, 995, 86 L. Ed. 1322. In that case statements made by Shulman into the transmitter of a telephone were recorded upon a detectaphone set against the wall of an adjoining room. In commenting upon the meaning of the term “intercept” the Supreme Court said:

“The same view of the scope of the Communications Act follows from the natural meaning of the term ‘intercept.’ As has rightly been held, this word indicates the taking or seizure by the way or before arrival at the destined place. It does not ordinarily connote the obtaining of what is to be sent before, or at the moment, it leaves the possession of the proposed sender, or after, or at the moment, it comes into the possession of-the intended receiver.” (Emphasis supplied.)

The court then cited Yee Ping Yong, supra, in a footnote. The Supreme Court also said in Goldman that:

“The protection intended and afforded by the statute is of the means of communication and not of the secrecy of the conversation.” 316 U. S. at page 133, 62 S. Ct. at page 995.

In Judge Chase’s concurring opinion in Reitmeister v. Reitmeister, 2 Cir., 162 P. 2d 691, 697, he refers to the above quoted statements of the Supreme Court, and the opening statement of his opinion is:

“Because I do not believe that our decision in United States v. Polakoff, 2 Cir., 112 P. 2d 888 has survived that of the Supreme Court in Goldman v. United States, 316 U. S. 129, 62 S. Ct. 993, 86 L. Ed. 1322, * *

Of particular interest is the language of Judge Learned Hand in Reitmeister following his comment on the Goldman case. In this connection Judge Hand said:

“There was no doubt that the ‘deteetaphone’ had ‘intercepted’ Shulman’s message as he spoke it into the receiver in the same sense that an eavesdropper would, who was hidden in a closet; but the court held that the section did not apply to such a situation. The message must be ‘intercepted’ by some mechanical interposition in the transmitting apparatus itself, for the message, though sent over the wire, is not immune from disclosure; but only the interjection of an independent receiving device between the lips of the sender and the ear of the receiver.”

An interception which must be accomplished “by some mechanical interposition in the transmitting aparatus itself” is not the same as the “interception” defined in Polakoff, where the means employed were said to be of “no importance.” These later expressions of the courts in opposition to Polakoff seem clearly to forecast general judicial acceptance of Judge Clark’s well reasoned dissent in that case as constituting a correct construction of Section 605.

In all cases except one where the District Courts have decided or discussed the issue here presented, it has been held that the testimony of officers who listened to or recorded conversations, was admissible. United States v. Guller, D. C., 101 F. Supp. 176; United States v. Sullivan, D. C., 116 F. Supp. 480; United States v. Yee Ping Jong, supra. Contra: United States v. Stephenson, D. C., 121 F. Supp. 274, 277. In the Stephenson case, Parsons, who was the receiver of the message, attached a device to the wiring in the bell box of his telephone and in this manner recorded the conversation between himself and the defendant. Judge Pine held that this constituted an “interception,” stating that “both in space and time, the taking in this instance was before the arrival of the communications at the destined place.” There was no third person involved in the recording of the conversation in the Stephenson case, but Judge Pine took the view that the words “no person” as used in Section 605 included the intended receiver of the telephone message. No comparable situation is presented here. In this case there was no interference with the means of communication. The conversations were heard by the officers “at the moment” they came “into the possession of the intended receiver.” There was no interception as that term has been defined by the Supreme Court in Goldman.

There can be no doubt that one of the purposes of the statute is to protect the privacy of telephone conversations against interference with the means of communication. But the statute defines no duties of the communicants, each to the other, in relation to messages received by wire. Telephone conversations have not been raised to the status of privileged communications as that doctrine is recognized in the law of evidence. There is no prohibition in Section 605 against disclosure of the content or purport of a telephone message by either party to the conversation. Nor does the section proscribe the disclosure of a conversation by a third party who listened to it through the regular channels of reception with the permission of the recipient of the message. But even if the statute were construed to sustain a privilege against disclosure of unintercepted communications by one party without the consent of the other, or the more limited privilege against disclosure by one who had listened to the conversation with the consent of one of the communicants, such privileges would not survive in the factual context shown by the record in this case.

It is well settled that the highly favored privilege granted to confidential communications between attorney and client is withdrawn whenever the subject matter of the communication involves plans or preparations for the commission of crime. 58 Am. Jur., p. 288, sec. 516: Wigmore on Evidence, 3rd Ed. Vol. VIII, Sec. 2298; Clark v. United States, 289 U. S. 1, 53 S. Ct. 465, 469, 77 L. Ed. 993. In the Clark case Mr. Justice Cardozo said that the privilege protecting communications between attorney and client “takes flight if the relation is abused.” He added: “A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told.” Those considerations of public policy which are of sufficient weight to deny the privilege attached to the confidential communications between attorney and client are relevant in a consideration of the issue whether testimony relating to telephonic communications involving fraud and criminality ought to be suppressed. It is true that in the first Nardone case [302 U. S. 379, 58 S. Ct. 277] the Supreme Court expressed the view that “Congress may have thought it less important that some offenders should go unwhipped of justice than that officers should resort to methods deemed inconsistent with ethical standards and destructive of personal liberty.” But that case involved the issue of the admissibility of testimony obtained through an interference with the means of communication which was expressly prohibited by Section 605 and which also constituted a criminal offense However, there is no warrant for imputing to Congress a purpose to protect violators of the law from the exposure of their criminal designs as revealed in telephone conversations, if the means employed in listening to those conversations do not constitute an unlawful interception.

As shown by the record, the facts here present a case of eavesdropping with the permission of one of the parties to the conversation. In principle, the eavesdropping of the officers in this case is indistinguishable from the eavesdropping of the public officials in Goldman v. United States, 316 U. S. 129. 62 S. Ct. 993, 86 L. Ed. 1322, and On Lee v. United States, 343 U. S. 747. 72 S. Ct. 967, 96 L. Ed. 1270, where it was held that the information obtained by such means was admissible in evidence. Section 605 subjects the offender to a criminal penalty and. upon well settled principles, that section ought not to be enlarged by construction to interdict procedures and practices not expressly or by clearest implication prohibited by the language employed.

I find nothing in the terms of the statute or in any considerations of public policy that forbids the reception in evidence of testimony of the officers who, with the consent of Grant Washington, listened to the telephone conversations between him and the defendant.

The motion for a new trial is overruled.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    STATE, Plaintiff-Appellee, v. WILSON, alias PRICE, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2197.
    Decided December 15, 1952.

      Mathias H. Heclc, Pros. Atty., Fred M. Kerr, Herbert M. Jacobson, Asst. Pros. Attys., Dayton, for plaintiff-appellee.
    Canny, Stewart & Cromer, Clarence J. Stewart, of Counsel, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal on questions of law from the judgment of the Common Pleas Court of Montgomery County, Ohio. The defendant was inmdicted, tried, convicted and sentenced on the charge of “maliciously shooting at one J. Hugh Pendergrass with intent to wound.”

The defendant admitted shooting at the said Pendergrass. Malice is presumed by an intentional act on the part of the defendant. The defendant’s defense was one of “self defense.” Self defense is an affirmative defense and the burden is on the defendant to support such defense by a preponderance of the evidence. The Court has examined very closely the entire record, which is considerable, to determine whether the evidence produced was sufficient to justify a conviction.

The only error assigned is that the verdict of the jury and the judgment of the court is against the manifest weight of the evidence. There was evidence introduced supporting the defendant’s plea of self defense. It was within the province of the jury to believe this evidence and reject the evidence presented by the state. Likewise, there was evidence of a substantial and creditable character presented to prove all the elements of the crime charged and which, if believed by the jury, would have required the jury to reject the defendant’s plea of self defense. The record shows that prior to the shooting, an argument followed by an encounter, took place between the parties in the presence of a number of persons in a small room in a rooming house. By applying the statement of law with respect to self defense to the issue presented here, the jury was required to determine whether the defendant in the careful and proper exercise of her faculties bona fide believed and had reason to believe that she was in imminent danger of death or great bodily harm, and that her only means of escape from such danger would be by committing the act for which she is charged, even though in fact she was mistaken as to the existence or the imminence of the danger. The court properly instructed the jury relative to the issues presented. The jury was the ludge of the credibility of the witnesses and the weight to be attached to the testimony of each and every one. Apparently the jury believed the evidence presented by the state and rejected the evidence presented by the defendant, which was within its province. Inasmuch as there is evidence in the case to justify the verdict of the jury, we cannot say as a reviewing Court' that the verdict and judgment of the trial court is manifestly against the weight of the evidence. Judgment affirmed.

HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.


author: By BARTLETT, J.

text:
    STATE, Plaintiff, v. KEARNS et, Defendants.
    Common Pleas Court, Franklin County.
    Nos. 34976, 34979.
    Decided February 17, 1955.

      Robert E. Albright, Justin L. S'illman, R. Rush Warren, Columbus, for the Btate.
    James E. Britt, Milton L. Garber, John J. Chester, Columbus, for defendants.
   OPINION

By BARTLETT, J.

1. THE MOTION IS SUSTAINED, TO QUASH ALL THE COUNTS OF THE INDICTMENT IN EACH OF THE INSTANT CASES.

2. THE OMISSION IN EACH COUNT OF ANY AVERMENT OF THE MATERIAL ELEMENTS OF THE OFFICIAL CAPACITY OF FRANK H. KEARNS AS PROSECUTING ATTORNEY, AND HIS ALLEGED RECEIPT OF THE MONEY IN QUESTION BY VIRTUE OF HIS SAID OFFICE. ARE FATAL TO THE VALIDITY OF BOTH INDICTMENTS AND EACH COUNT THEREOF.

3. WHERE A VITAL AND MATERIAL ELEMENT IDENTIFYING AN OFFENSE HAS BEEN OMITTED FROM THE INDICTMENT. SUCH OMISSION CANNOT BE CURED BY AMENDMENT. SINCE THE CONSTITUTION OF OHIO REQUIRES SUCH INDICTMENTS FOR FELONIES SHALL BE RETURNED BY THE GRAND JURY.

4. THE RESUBMITTING OF THE INSTANT CASES TO THE GRAND JURY IS ORDERED HELD IN ABEYANCE UNTIL FURTHER ORDER OF THE COURT.

Each of the defendants has challenged the sufficiency of the indictments herein by motion to quash both indictments and each count thereof.

The indictment in case No. 34979 consists of eleven counts identical in form; and each count charges in general terms, without further particulars, that on or about a certain date Frank H. Kearns and Fred W. Selby did embezzle money belonging to Franklin County in a certain sum. The indictment in Case No. 34,976 consists of six counts in the same identical form as the counts in Case No. 34,979, except that Frank H. Kearns alone is named as the defendant.

The indictments were filed January 7th, 1955, and thereafter on January 10th, 1955. counsel for the state applied for and secured an order of the court, amending each count of both indictments, by adding thereto the averments in substance, that Frank H. Kearns was the duly elected and acting prosecuting attorney of said county, then and there charged with the receipt, safekeeping and disbursement of said public money, which then and there came into his possession by virtue of his office, under and by virtue of §325.12 R. C.; and in the one indictment, further added thereto, that Fred W Selby was the duly appointed and acting secret service officer or county detective and employee of said prosecuting attorney, appointed by him in accordance with the law, and said Fred W. Selby then and there knowing the same was public money belonging to Franklin County, received said money by virtue of his office and employment.

“3. If any material element or ingredient of an offense, as defined by statute, is omitted from an indictment, such omission is fatal to the validity of the indictment.

“4. Secs. 13437-28 and 13437-29 GC, authorizing correction in the form or substance of an indictment, apply to an indictment which as drawn is sufficient to charge an offense, but they do not contemplate the making of a good indictment out of one which states no offense. There must be something effectual on which §§13437-28 and 13437-29 GC, can operate to render them available.” State v. Cimpritz, 158 Oh St 490.

(Secs. 13437-28 and 13437-29 GC, have now become §§2941.29 and 2941.30 R. C.)

“4. While the court recognizes and will apply the liberal provisions of the Criminal Code (§13437-4 et seq, GC [now §2941.05 R. C.J) it will uphold the constitutional right of an accused to be advised in the indictment of the nature and cause of the accusation he is expected to meet. And if a vital and material element identifying or characterizing the offense be omitted from such indictment, the indictment is insufficient to charge an offense and cannot be cured by the court.” Syl. 4, Harris v. State, 125 Oh St 257

“The indictment is insufficient to charge an offense and cannot be cured by amendment since a vital and material element identifying or characterizing the offense is omitted from such indictment * * *

“It follows that the court may not supply words essential to the description of an offense, without which no violation is charged.” Per curiam opinion, State v. Parker, 150 Oh St 22, 26.

Embezzlement by a public officer is the fraudulent appropriation to his own use by such officer of something of value that has come into his possession by virtue of his office.

It is, therefore, necessary that every material element pertaining to the offense of embezzlement of public money, must be contained in each count of the two indictments under consideration. One of these material elements being that Frank H. Kearns at the time was the duly elected prosecuting attorney of Franklin County, and another such material element being that the money charged to have been embezzled, came into, the possession of said Frank H. Kearns by virtue of his said office aforesaid. See instructions of Bigger, J., of this court, the verdict in which case was affirmed in the case of State v. Baxter, 89 Oh St 269.

There is an entire absence in each of the counts of the two indictments before us, of any reference to the official capacity of Frank H. Kearns, as well as the alleged receipt of the money in question by virtue of his said office. The same is also true of Fred W. Selby; but the Court considers the office of Mr. Kearns as the controlling factor in the instant case.

It is well established in Ohio, by the decisions of our Supreme Court heretofore cited, that the recital of the material elements as to the official capacity of Frank H. Kearns, and his alleged receipt of the money in question by virtue of his said office, having been omitted in these respective counts, the two indictments before us are insufficient to charge the offense of embezzlement by said Frank H. Kearns and Fred W. Selby of the public money mentioned in each of said counts: and cannot be cured by amendment since the Court may not supply the words essential to the description of such offenses in an indictment, which the Ohio Constitution requires shall be returned by a Grand Jury.

“If the facts stated in an indictment or information are insufficient to charge an offense, objection may be raised thereto before trial by motion to quash or demurrer, and, after verdict, by a motion in arrest of judgment ” 21 O. Jur., Indictment and Information, Sec. 108, p. 808; State v. Cox. 11 N. P. (N. S.) 305; Stahl v. State, 11 C. C. 23, 34.

The Court, therefore, sustains the motions to quash the two indictments under consideration, and each and every count therein contained.

Sec. 2941.58 R. C., provides:

“When a motion to quash or plea in abatement is adjudged in favor of the accused, the trial court may order the case to be resubmitted to the grand jury, if then pending, or to the next succeeding grand jury.”

The trial court feels, however, that the various complaints lodged against the defendants Kearns and Selby should not be considered by the grand jury in fragments, but that justice requires that if such complaints are to be resubmitted, the grand jury should have the opportunity to look into the entire matters involved in such complaints.

This trial court, therefore, orders that the cases involved in these two indictments ordered quashed, shall be held in abeyance until the further order of the Court, so that the objections as to the sufficiency of the other indictments pending against said defendants may be passed upon, before any order is made to resubmit such cases, to the grand jury.


author: By CASE, J.

text:
    SMITH, Admrx., Plaintiff, v. CITY OF WASHINGTON COURT HOUSE et, Defendants.
    Common Pleas Court, Fayette County.
    No. 21650.
    Decided February 28, 1955.

      Harvey Crow, Cleveland, for plaintiff.
    William M. Junk, City Solicitor, W. S. Paxson, Washington C. H„ for defendants.
   OPINION

By CASE, J.

Plaintiff’s original petition herein was filed on August 5, 1953. The defendants subsequently filed thereto a motion to strike certain allegations as being irrelevant, immaterial and redundant. Said motion was sustained In part and overruled in part and, on June 25, 1954, plaintiff filed her amended petition which is now before the court upon defendants’ demurrer thereto.

The Plaintiff administratrix through her amended petition seeks to recover a judgment against the City of Washington and two certain policemen for damages for what she claims to have been the wrongful death of Clayburn Earl Smith, decedent.

Plaintiff’s amended petition alleges in part as follows:

“The Plaintiff further says that the defendant, the city of Washington Court House, Ohio, is a municipal corporation, duly organized and existing under the laws of the state of Ohio.
“The Plaintiff further says that the defendant Robert Williams at the time alleged in this petition was an employee and agent of the city of Washington Court House, Ohio. That at said time he was employed as a police officer of said city.
“The plaintiff further says that Walter Marshall at the time and place mentioned in this petition was an employee and agent of the city of Washington Court House, Ohio, and at said time was employed as a police officer of said city.
“The plaintiff further says that the defendants Robert Williams and Walter Marshall were on duty as such police officers at the time and place here in after mentioned as employees and agents of the city of Washington Court House, Ohio, and performing their duties as such police officers for said city.
“Plaintiff further says that in the early hours in the morning of June 14, 1953, at about 3:30 o’clock, decedent Clayburn Earl Smith was driving nis 1951 Ford automobile on the streets of Washington Court House, Ohio, in a legal and lawful manner when he became afflicted and sick from a neart attack. That said heart attack caused Clayburn Smith (Eari) to lose control of his car and damage the same. That he was in a weak physical condition when the defendants Robert Williams and Walter Marshall, police officers of the city of Washington Court House, Ohio, arrived at the scene of said accident, arrested Clayburn Earl Smith, took him to the city jail where he died.
“That upon arriving at the scene of said accident the defendants Robert Williams and Walter Marshall were informed by said decedent that he was sick and needed medical care. That said police officers willfully and maliciously refused to give or permit said Clayburn Earl Smith to have medical care. That said police officers willfully and maliciously refused to give or permit decedent Clayburn Earl Smith to have medical care at that time or _any time. That instead of taking said Clayburn Earl Smith to the hospital they forcefully, maliciously and willfully took him to the city jail, placed him in jail where he died.
“Plaintiff further says that as a result of the negligence and carelessness of the defendants Robert Williams and Walter Marshall as agents and employees of the city of Washington Court House the plaintiff and those who were dependent upon said Clayburn Earl Smith have been damaged.
“Plaintiff further says that Clayburn Earl Smith left surviving him his mother and father, who were dependent upon, him, the said Mr. and Mrs. Oscar Smith of Washington Court House, Ohio, for whose benefit this action is brought.
“Plaintiff further says that the defendants wrongfully and negligently in a careless manner and without any just cause confined the decedent m the Washington Court House city jail where said decedent died. That the proximate cause of said death was the wrongful and negligent, careless acts of the defendants and in the alternative the willful and intentional acts of the defendants in refusing to permit or give to the decedent Clayburn Earl Smith the medical care that was required at that time
“That the defendants knew or should have known that the failure to give medical care required at that time after having been informed by the decedent that he was ill and needed such care might or would cause death.
“Plaintiff further says that the defendant the city of Washington Court House was lax and careless and negligent in having on their police force as employees and agents of said city the defendants Robert Williams and Walter Marshall whose conduct and acts were the proximate and direct result of the death of Clayburn Earl Smith.
“Plaintiff further says that she was forced to incur expenses of a funeral and other expenses connected with a funeral service. That the plaintiff’s decedent died as a direct result of the defendants acts and left surviving him Mr. and Mrs. Oscar Smith, the next of kin for whose benefit this action is brought and who by reason of such death have been damaged in the sum of one hundred thousand dollars ($100,000.00).”

To plaintiff’s amended petition, the defendants filed the following demurrer and memorandum:

“Come now the defendants and demur to the amended petition filed herein for the reason that it appears on the face of said amended petition that there is a misjoinder of parties defendant.”
“MEMORANDUM
“26 O Jur., p. 671, Sec. 661; French v. Construction Co., 76 Oh St 509; Schulz v. Brunhoff, 22 Oh Ap 220; Stevenson v. Hess, 10 Abs 43; Losito v. Kruce, 136 Oh St 190; Herron v. Youngstown, 136 Oh St 190.”

Sec. 11309 GC, provides in part as follows:

“The defendant may demur to the petition only when it appears on its face either:
“5. That there is a misjoinder of parties plaintiff or defendant;”

Sec. 2309.08 R. C., provides in part as follows:

“The defendant may demur to the petition only when it appears on its face that:
“(E) There is a misjoinder of parties plaintiff or defendant;”

It is noted that defendants cite 26 O. Jur., page 671, Section 661, in support of said demurrer; and that the authority so cited reads as follows;

“No. 661. — Joinder of Master and Servant. — Although the view taken by a majority of the courts is that employer and employee are jointly liable and suable for the employee’s wrongful act, in Ohio, an action cannot be maintained jointly against master and servant for the wrongful and negligent act of the latter, if, in the particular case, the master’s liability for such wrongful and negligent act arises solely from the relationship between them, under the doctrine of respondeat superior, and not by reason of the master’s personal participation in the wrongful or negligent act. To warrant the joinder of the master as defendant in such an action, the negligent act must be, either in fact, or by legal intendment, the joint or concurrent act of the master and servant.” (Emphasis by the court.)

It, therefore, follows that the court must next consider whether or not plaintiff’s petition sets forth any operative facts which could impose any liability upon the City of Washington, for the alleged wrongful and negligent acts of said police officers, arising solely from the relationship between the city and said police officers under the doctrine of respondeat superior; and whether or not such alleged negligent acts could be, either in fact, or by legal intendment, the joint or concurrent act of the alleged master and servant relationship.

In 28 O. Jur., pages 959 and 960, Section 605, it is stated as follows;

“The creation and maintenance of a police department by a municipality are done in the exercise of its governmental functions, and the municipality is not, in the absence of statutory provision, liable in damages for injuries resulting from the negligence of such department, or any of its members. Under this rule, a municipality is not liable for injuries resulting from the negligent operation of a police patrol wagon, or from the act of a mounted policeman in negligently riding down a pedestrian, or for torts committed by police officers in making arrests, or for assaults upon prisoners in their custody.”

One of the leading cases in Ohio is Aldrich v City of Youngstown, 106 Oh St 342, wherein our Supreme Court stated the law of Ohio to be as follows:

“1. The creation and maintenance of a poiice department by a municipality are done in the exercise of its governmental functions. The performance of an act by an official of such department is not the performance of a ministerial act for which a municipality becomes liable under the maxim, respondeat superior.
“2. A municipal corporation is not, in the absence of a statutory provision, liable in damages to one injured for the negligent acts of its police department, or any of its members. (Fowler, Admx. v. City of Cleveland, 100 Oh St 158, overruled: Frederick, Admx. v. City of Columbus, 58 Oh St 538, and Wheeler v. City of Cincinnati, 19 Oh St 19, followed and approved.)”

At page 344, in Aldrich v. Youngstown, supra, the Supreme Court stated in part as follows:

“* * * without citing specific cases upon the subject which sustain the rule announced, we will content ourselves with citing some of the texts under which these authorities may be found:
“ ‘A municipal corporation can under ordinary conditions incur no liability by reason of the defaults of its police department. The prevention of crime is a purely governmental function, undertaken for the benefit of the public at large, and, if police officers are appointed and paid by the various municipalities, this is done merely as a matter of convenient administration. Their duties are ordinarily prescribed by law. and they are public officers and not the servants or agents of the city or town in which they serve.’ 19 Ruling Case Law, 1119, Section 399.”

The Court of Appeals for Franklin County, which is also the Court of Appeals for Fayette County, has consistently cited and followed the law as declared by the Supreme Court in the case of Aldrich v. Youngstown, supra. In the case of Schmolzer v. Columbus, 2 Abs 329, our Court of Appeals held:

“1. The determination of this case is controlled by the decision of the Supreme Court in the Aldrich case, 106 Oh St 348. The municipality is not liable for injuries growing out of the exercise by the municipality of its governmental power, and there is no distinction between a case where the municipality acts under a statute and a case where it acts under its charter as in the instant case.”

In the case of Wittenbrook, Admx., v. Columbus, 33 Abs 586, decided February 13, 1941, our Court of Appeals held:

“1. The maintenance of a county jail by a municipality is a governmental function.
“2. No liability exists against a municipality except where the act complained of was in the performance of a ministerial function, or if a governmental function, where a statutory remedy is provided.
“3. There being no statutory remedy provided for the death of a prisoner due to lack of medical care in a county jail maintained by a municipality, and the maintenance of such jail being a governmental function. the city is not liable for the prisoner’s death.”

In arriving at its decision in the Wittenbrook case, supra, at page 588, our Court of Appeals stated in part as follows:

“The principle of law is handed down from the common law founded on the ancient doctrine ‘that the king can do no wrong.’
“The principle is very generally followed throughout the United States. It is provided under the Constitution of Ohio that the state may not be sued except as provided by law. The Legislature of Ohio has not exercised its privilege except in one instance.
“The courts have held that since counties are subdivisions of the state they may not be sued except the right is granted by a statutory enactment. Municipalities receive their existence by legislation and are granted powers, some of which are governmental and others ministerial. In all matters relating to municipal functions, rights of action exist against municipal corporations the same as private corporations, but acts which partake of the nature of governmental functions are not actionable except as authorized by statutory law. These principles of law are as old as the state itself, with occasional modification of the rules through legislative' enactment. * * *”

Judge Barnes, who wrote the opinion in the Wittenbrook case, supra, analyzed the issues involved with the utmost clarity and applied the established principles of law to the facts therein with enviable precision and brevity ‘ which this court cannot presume to improve upon.

These same principles of law were cited with approval by the Supreme Court of Ohio in Davis v. Shutrump Co., 140 Oh St, 89, at page 96, wherein Judge Hart stated in part as follows:

“Accordingly, the rule almost universally recognized is that in the absence of statutory provision to the contrary there can be no recovery against a municipal corporation occasioned by its negligence or nonfeasance in the exercise of functions essentially governmental in character. City of Akron v. Butler, supra; City of Wooster v. Arbenz, supra; City of Portsmouth v. Mitchell Mfg. Co., 113 Oh St 250, 148 N. E., 846; 43 A. L. R., 961; Selden v. City of Cuyahoga Falls, 132 Oh St 223, 225, 6 N. E. (2d), 976; Aldrich v. City of Youngstown, 106 Oh St 342, 140 N. E., 164, 27 A. L. R., 1497. * *

In plaintiff’s memorandum contra defendants’ demurrer herein, plaintiff contends in part as follows:

“Our petition claims that the city was careless and negligent in placing the other defendants in a place of authority, which might be abused and was abused by an irresponsible officer.
“Power and authority improperly used and abused might be as dangerous as any other dangerous instrumentality. If death results from both, what difference how — the man is still dead.
“Our petition claims that the city knew or should have known, that their agents were not able to exercise the good judgment of a prudent person, because of their employing as their agents, persons with inadequate training and incompetent individuals.
“The City of Washington C. H. cannot avoid liability when they hire . police protection for the public and arm them with the strong arm of the law, when such individuals are unfit, untrained, uneducated and unprepared for such a job.
“If said officers are incapable of performing their duties and lack the experience necessary for the job and while in the course of their duty, damages are sustained by a third party, such negligence is the combined negligence of all the defendants and theirs is a joint liability.”

With respect to these contentions so made in plaintiff’s memorandum, it is significant that no statutory or case law is cited in support thereof and this court has been unable to find any statute of Ohio or any decision rendered by the courts of this state which would support the claims so made by plaintiff. Nor do there appear to be in plaintiff’s petition any allegations claiming “that the city knew or should have known, that their agents were not able to exercise the good judgment of a prudent person, because of their employing as their agents, persons with inadequate training and incompetent individuals.” And, even though such allegations might have been set forth in plaintiff’s petition, there appears to be no statutory or case law in Ohio which would operate to impose such liability upon the City of Washington under the facts and circumstances otherwise set forth in plaintiff’s petition.

Therefore, it must be concluded that the contentions set forth in plaintiff’s memorandum contra defendants’ demurrer herein are without merit in law and fact.

For more than thirty years since the decision of the Supreme Court of Ohio in the Aldrich case, supra, it has been the established law of Ohio that, in the absence of a statutory provision, “police officers appointed by a city are not its agents or servants in such a sense as to render it responsible for their unlawful or negligent acts in the discharge of their public duties as policemen.” (106 Oh St 342 at 345.)

It is the duty and obligation of this court to apply established principles of law to the operative facts alleged in plaintiff’s petition and, upon due consideration of those facts and circumstances so alleged and the law applicable thereto as hereinabove set forth and discussed, the court finds that there is a misjoinder of parties defendant; and that, by reason thereof, defendants’ demurrer herein is well made and should be sustained.

The court further finds that counsel for defendants should prepare an entry accordingly with appropriate notation therein of exceptions on behalf of plaintiff and thereupon submit same to counsel for plaintiff and to this court for approval within ten days.


author: Per CURIAM:

text:
    McCREA, Plaintiff-Appellee, v. McCREA, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22487.
    Decided September 22, 1952.

      Baker & Baker, Cleveland, for plaintiff-appellee.
    Hyman J. Blum, Cleveland, for defendant-appellant.
   OPINION

Per CURIAM:

This case has been appealed to this Court on questions of law from a decision of the Common Pleas Court of Cuyahoga County m which the plaintiff wife was granted a divorce from her husband, the defendant appellant herein, and was granted custody of an eight year old daughter.

The transcript discloses that the petition for divorce and custody was filed on February 6, 1950, and personal service was made upon the defendant a few days thereafter. On February 15, 1950, an answer and cross-petition was filed by the defendant and personal service was obtained upon plaintiff, The transcript further shows that the case came on for hearing in the trial court on December 12, 1951 and evidence was presented. The defendant was personally present in court with counsel, but his answer and cross-petition was withdrawn prior to the hearing. No journal entry was signed by the court until January 14, 1952, but the court indicated at the hearing on December 12, 1951, that a divorce would be granted the plaintiff and custody of the minor child awarded to her. On January 5, 1952. prior to signing of a journal entry by the court, a motion was filed by the defendant requesting the court to state in writing its conclusions of fact found separately from the conclusions of law. The transcript reveals that counsel representing defendant in this motion of January 5, 1952, was not the same counsel who had originally filed the answer and cross-petition in behalf of -defendant. We may also add that plaintiff appellee in this court is likewise represented by counsel different from the counsel representing her at the trial on December 12, 1951.

The transcript shows that on Janupary 14, 1952, a journal entry was -filed in the trial court granting a divorce to plaintiff and custody of the child born of the marriage. An award of $70.00 per month was also made to plaintiff for the support and maintenance of the child. The journal entry signed by the court was approved by the then attorney for plaintiff and also apparently by the firm of attorneys who originally represented defendant. The journal entry fails to state in writing the conclusion of fact found separately from the conclusions of law. As to whether the journal was actually presented to new counsel for defendant who had filed the motion for the separate findings of fact and conclusions of law, is not shown in the transcript, but at the time that present counsel for defendant filed the motion for separate findings of fact and conclusions of law on January 5, 1952, two other motions were filed by this attorney, one to vacate the entry granting a divorce to plaintiff and to reinstate defendant’s answer and cross-petition and the other a motion for new trial. Each of the three motions bears endorsement stating that a copy was left at the office of the attorney of record for plaintiff. The transcript fails to show any ruling by the trial court at any time on any one of the three motions.

On February 2, 1952, a notice of appeal was filed by counsel for defendant from the judgment of the trial court of January 14. 1952, the appeal being based on questions of law. Five assignments of error on the part of the trial court are charged, but a decision on the first two assignments of error appears to us to be determinátive of the case.

The first assignment of error on the part of defendant appellant is that the trial court erred in failing to state in writing the conclusions of fact found separately from the conclusions of law.

The second assignment of error is that the trial court’s refusal to make separate findings of fact and law were prejudicial to the rights of the defendant appellant herein.

We believe that the law is too well settled upon this point for us to need to state it at length. We call attention to the case of Bittman v. Bittman, 129 Oh St 123, declaring that under §11421-2 GC, a request for separate findings of fact and conclusions of law made after submission of the case and after the trial court has announced its decision, but before the journal entry is signed by the court, is seasonably made. The case also holds that §11421-2 GC, applies as well to actions for divorce as to other civil actions. This case states the present law of Ohio. See, also, Levick v. Bonnell, 131 Oh St 453, declaring that §11421-2 GC, confers a substantial right and that the denial of that right constitutes error, requiring reversal of the judgment unless it can be determined that the party requesting the separate findings of fact and conclusions of law was not prejudiced by the failure of the court to comply with the seasonable and proper request of counsel under the statute. Since there is no bill of exceptions in the case, defendant appellant has clearly been prejudiced by the failure of the trial court to comply with the timely request for separate findings of fact and conclusions of law.

Holding the view expressed, we find it necessary to reverse the judgment of the trial court and to order a retrial and it becomes unnecessary for us to pass upon the other assignments of error alleged.

The judgment of the trial court is reversed and the cause remanded for further proceedings according to law. Exceptions noted. Order see journal.

SKEEL, PJ, HURD, J, THOMPSON, J, concur.


author: By DOYLE, PJ.:

text:
    GROSSER, Admrx., Plaintiff-Appellee, v. ARMET ALLOYS, INC., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22581.
    Decided March 2, 1953.

      Harrison, Spangenberg & Hull, Cleveland, for plaintiff-appellee.
    McConnell, Blackmore, Cory & Burke, Cleveland, for defendant-appellant. .
    (DOYLE, PJ, STEVENS, J, HUNSICKER, J, of the Ninth District sitting by designation in the Eighth District.)
   OPINION

By DOYLE, PJ.:

This case involves the application of principles of law governing judicial control during term over the verdict of a jury in the form of granting a motion for a new trial pursuant to a general verdict for a defendant.

The action was for wrongful death and was brought in the Court of Common Pleas of Cuyahoga County by Mary Bernadette Grosser, administratrix of the estate of Fred Grosser. Jr. The alleged tort-feasor. Armet Alloys, Inc., was charged with negligent conduct claimed to have proximately resulted in the death of plaintiff’s decedent.

At the conclusion of the plaintiff’s case and again at the close of all of the evidence, the defendant company moved for a directed verdict in its favor. These motions were each overruled. The jury later returned a general verdict for the defendant. The plaintiff then filed her motion for a new trial and claimed:

“1. The verdict is contrary to law.
“2. The verdict is contrary to the evidence * * *.
“3. The verdict was the result of, and caused by, the misconduct of the defendant, and of counsel for the defendant, especially in the following respects: * * * (there is here set forth six separate claimed instances of misconduct).
“4. Errors of law in rulings on evidence, and in the instructions given to the jury; and especially in the instruction that the violation of the ordinance set forth in the petition was not negligence per se, but only evidence of negligence.
“5. Accident or surprise, which ordinary prudence could not have guarded against.”

After oral argument on the motion, the trial court granted the same, and ordered a new trial.

In the appeal to this court, the appellant company has assigned the following errors, which it asserts entitled it to a reinstatement of its judgment on the verdict:

“1. The trial court abused its discretion in granting a new trial for misconduct of defendant’s counsel, because no misconduct occurred, and plaintiff failed to complain of misconduct until filing her motion for new trial.
“2. The trial court abused its discretion in failing to grant defendant’s motion for a directed verdict, and later in setting aside the verdict for defendant which was supported by the weight of the evidence.
“3. The trial court abused its discretion by demonstrating prejudice against the defendant, and in making rulings grossly wrong.”

1. It must be first observed that; although the legislature of this state in 1947, by amending §12223-2 GC, declared that “an order vacating or setting aside a judgment and ordering a new trial, is a final order,” the courts have declared the legislation unconstitutional, and the rule now in force is well stated by Hildebrant, J., in Green v. Acacia Mutual Life Ins. Co., 88 Oh Ap 67 (affirmed, 156 Oh St 1), as follows:

“3. An order of a trial court during term vacating and setting aside a pro forma judgment and verdict of a jury and granting a new trial is not a final determination of the rights of the parties, and is not, therefore, a judgment or final order, reviewable by the Court of Appeals, unless it clearly appears that the trial court has abused its discretion in granting such order.”

2. To the question of an abuse of discretion, we direct our attention. We assume jurisdiction of the appeal for the purpose of determining whether the order appealed from was entered through an abuse of discretion; for, in the absence thereof, this court lacks jurisdiction to “review, affirm, modify, set aside or reverse” the order of the Court of Common Pleas in granting a new trial. Art. IV, Sec. 6, Constitution of Ohio.

No reasons were given by the trial court for the granting of the motion. In fact, no request was made that the court state its reasons. We are asked, by the appellant, to indulge the presumption not only that the court acted upon the grounds set forth in the motion for new trial, but that the “court considered and acted upon only the three grounds in the motion which were actually argued.”

We categorically refuse to yield to this request. It is a fact that §11579 GC, provides that “written grounds” be filed at the time of making the motion. However, the statutes are silent on the question of whether the court must consider only the “written grounds.” It is stated by Rugg, C. J., in Wright v. Apikian, 270 Mass. 302, that, in the absence of statutory regulation, there is no restriction at common law of the power of the judge to set aside, of his own motion, a verdict for any cause deemed by him to be sufficient.

It is true that, in some states, by virtue of local statutes, courts are confined to the causes set forth in the written motion. Illustrative of this statement is Wright v. Apikian, supra. The Massachusetts statute reads in part that a “verdict shall not be set aside except on written motion by a party to the cause, stating the reasons relied upon in its support.” (Emphasis ours.)

However, as stated above, there is nothing in the statutes of this state which restrict the common law right of a trial judge to set aside a verdict and grant a new trial, on any ground which he deems proper in the administration of justice, after a motion is filed. In the absence of a regulating statute, inherent, common law powers exist in the Court of Common Pleas — a court of general common law jurisdiction — to set aside during term a verdict and to grant a new trial.

The Ohio General Code in §11576 GC also sets forth certain causes for which a new trial shall be granted. These statutory grounds are not exclusive. A trial court, in the interest of justice, may grant a new trial on grounds other than those set out in the statute.

We therefore do not indulge the presumption that the trial court acted only on grounds “actually argued” (nothing in the record indicates that the movant abandoned any of the grounds asserted), or that it acted only on the grounds set forth in the motion. In fact, from the record before us, we have no way of knowing upon what ground or grounds the court acted. It may have acted upon the grounds argued. We therefore direct our attention to them.

The appellant asserts that “the only grounds seriously assigned by plaintiff were that the court erred in construing the ordinance, and that counsel for defendant was guilty of misconduct which prejudiced the minds of the jurors.” The appellant further asserts: “It is our contention that in fact the court contemplated but one legal reason for ordering a new trial — misconduct of Armet’s counsel. It is our contention that the court did not grant plaintiff’s motion because it thought it erred in construing the ordinance. Its construction was correct.”

If one of the premises urged by the appellant is assumed to be correct —namely, that “the court contemplated but one legal reason for ordering a new trial — misconduct of Armet’s counsel,” nevertheless, the court exercised its judicial discretion, and at the most it committed only an error of law; which of itself does not constitute an abuse of discretion. In the foregoing statement we have in mind the rule stated in 39 O. Jur., Trial, Sec. 114, pg. 691, to the effect that if opposing counsel fails to object to misconduct under circumstances which do not constitute gross misconduct resulting in manifest prejudice, the failure to object constitutes a waiver of the misconduct, and the rule as stated in 30 O. Jur., New Trial, Sec. 31, p.g. 65, that “it is too late to urge” such misconduct “for the first time upon a motion for a new trial.”

Apposite the thoughts expressed in the foregoing paragraph, if the court believed that it had erroneously charged the jury on the legal effect of the ordinance and granted a new trial for that reason, nevertheless, whether it was right or wrong in applying the ordinance to the factual setting, the court was exercising a discretion, and did not commit an abuse of discretion, even though it may have committed an error of law

In the conclusions reached above, we find support in several recent Ohio cases. In Steiner v. Custer, et al., 137 Oh St 448, the paragraphs of the syllabus are as follows:
“1. The granting of a motion for a new trial is not such a final order as may be reviewed on appeal, unless it clearly appears that the court granting such motion abused its discretion in so doing.
“2. The meaning of the term ‘abuse of discretion’ in relation to the granting of a motion for a new trial connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the court.”

In a case arising in Summit County and heard on appeal by the judges now constituting this court, the Supreme Court of Ohio, in affirming the judgment there rendered, speaking through Zimmerman, J., said:

“Did the trial court abuse its discretion in granting defendant’s motion for a new trial? In connection with the granting of such motion the trial judge made certain findings in writing. He reached the conclusion, as expressed in his memorandum, that ‘that part of the charge, to the effect that the defendant’s' failure to comply with the P. U. C. O. safety regulations as to lights and reflectors, would constitute negligence’ was prejudiciously erroneous, and cited Matz v. J. L. Curtis Cartage Co., 132 Oh St 271, 287, 7 N. E. (2d) 220, 228. Assuming, for the purposes of this discussion, that the trial judge was wrong in his conclusion, it would seem plain that he was chargeable with no more than an error of law or of judgment. With respect to such matter this court announced the following rules in the syllabus of Steiner v. Custer, 137 Oh St 448, 31 N. E. (2d) 855; * * * " Klever v. Reid Bros. Express, Inc., et al., 154 Oh St 491, at p. 495.

Further commenting on the assignments of error — while the claimed failure “to grant defendant’s motion for a directed verdict,” and the claimed unlawful “setting aside the verdict for defendant which was supported by the weight of the evidence,” may have constituted errors of law, nevertheless, as stated above, such errors (if they actually occurred) do not per se constitute an abuse of discretion. Nor does the record reveal prejudice of the trial court against the defendant, including the claim that it made “rulings grossly wrong.”

In conclusion, we summarize by saying:

(1) We have no way of knowing upon what ground or grounds the trial judge acted in sustaining the motion; (2) We indulge no presumption that he acted only on the grounds argued; (3) The court was not confined to those grounds set out in the motion, nor to those grounds enumerated in §11576 GC; (4) A trial judge during term can review, upon motion, his own acts and those of counsel and the jury, and in the exercise of judicial discretion can grant a new trial, if, in his honest belief, there existed acts or conduct on his part or on the part of counsel or the jury which materially affected the substantial rights of the losing party; (5) An error of law does not per se constitute an abuse of discretion; (6) The jurisdiction of the Court of Appeals cannot be invoked without a sufficient showing that the order from which the appeal is taken comes within the purview of the law expressly granting jurisdiction. Green v. Acacia Mutual Life Ins. Co., supra.

Whether a trial judge in the Court of Common Pleas can sua sponte grant a motion for new trial during term, as indicated by the Massachusetts case cited above, we do not decide. In the case before us, a motion for a new trial was actually filed.

The appeal will be dismissed.

STEVENS, J, HUNSICKER, J, concur.


author: By MILLER, J.:

text:
    HUBLER, Plaintiff-Appellee, v. MOCK et, Defendants-Appellants, and GROFF, Defendant-Appellee
    Ohio Appeals, Second District, Darke County.
    No. 720.
    Decided November 9, 1954.

      Marchal & Marchal, Greenville, for plaintiff-appellee.
    Spidel, Staley & Hole, Greenville, for defendants-appellants.
    William A. Swaney, Dayton, for defendant-appellee.
   OPINION

By MILLER, J.:

This is- a law appeal from the judgment of the Common Pleas Court rendered in favor of the plaintiff upon the verdict of a jury. The action was one on account for labor and materials furnished on certain farm buildings owned by the defendants. The answer denies the indebtedness, denies the employment of the plaintiff to do the work performed by him, but admits some material and labor were furnished which was not authorized and added no value to the defendant’s property.

A cross-petition was also filed alleging certain damages caused by the plaintiff, all of which was denied generally.

The first two errors assigned relate to the admission and rejection of evidence. The brief on these two assignments covers only the subject of wrongfully admitting into evidence the account of the plaintiff, which was designated as Plaintiff’s Exhibit No. 5. Our examination on this assignment will therefore be limited to this one question: The appellant urges that this exhibit was not a record of an original entry and therefore should not have been admitted. The argument is grounded on the fact that the plaintiff’s time book, which showed the names of the plaintiff’s employees and number of hours worked each day, was made from slips of paper at the end of each day. Under this factual situation we think the time book became a book of original entries and therefore the temporary slips were not required to be produced. We find no error in this assignment.

The appellant next urges that the court erroneously charged that if the jury found from a proper degree of proof that the plaintiff performed any portion of the alleged materials and labor, then the jury should return a verdict for the full amount prayed for in the petition. We cannot arrive at such a conclusion from the following portion of the charge touching on the question presented:

“The first question or issue thus made up by the pleadings for your determination is the amount due the plaintiff, if any, from the defendant for materials and labor as claimed by the plaintiff in his account attached to his petition. It is essential that plaintiff furnish such materials and labor, or some portion thereof, to the defendant at his request; and, if plaintiff did so, then the defendant would be obligated to pay for the same. The defendant denies that he owes anything on the account by his answer.”
“The burden of proof is upon the plaintiff to establish by a preponderance of the evidence, that is, the greater weight of the evidence, that he furnished said alleged materials and labor, or some portion thereof, to the defendant at the defendant’s request, and the amount, if any, remaining unpaid thereon; and, if plaintiff has done so, then he would be entitled to a verdict on his petition in the amount you determine by a preponderance of the evidence to be owing by the defendant to the plaintiff.” (Emphasis ours.)

It appears to us that in using the term “or some portion thereof” the court was covering a situation where the jury might find that some of the materials and labor were furnished pursuant to a contract and that possibly some of it was not, and therefore it was up to the jury to determine what portion of the materials and labor were performed pursuant to the agreement. A reading of the entire charge discloses that it was full and complete and without any ambiguity. We therefore find no error in this assignment.

We have carefully examined the entire record and And that the evidence supporting the verdict is quite substantial; hence the charge that it is against the manifest weight of the evidence is not well made.

Finding no error in the record, the judgment will be affirmed.

WISEMAN, PJ, HORNBECK, J, concur.


text:
    LUCAS, Plaintiff-Appellant, v. BURT W. KEMMERLING CO., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22787.
    Decided October 26, 1953.

      Barragate, Wedren, Gottermeyer & Fahrenbach, Cleveland, for plaintiff-appellant.
    Conners & Clarke, Cleveland, for defendant-appellee.
   OPINION

Per CURIAM:

This appeal comes to this court on questions of law from a judgment directed for the defendant at the close of plaintiff’s case. The action is for damages because of the alleged breach of warranty in.the sale of a second hand 1945 Dodge truck which the plaintiff purchased from defendant for $600.00. It is alleged by plaintiff that he bought the truck under an oral contract, it being represented to him that said truck was in A-l condition.

The evidence shows that plaintiff was induced to visit defendant’s place of business and purchase said truck because of a newspaper advertisement which offered the truck for sale as a completely reconditioned truck. It is alleged that the truck was not in A-l condition and that plaintiff was compelled to return it immediately after delivery for repairs to put it in proper condition for which he paid $226.03. He also alleges that he had a contract for the use of said truck but because of its state of disrepair he was unable to use said truck for such purpose for a period of eight weeks to his damage, in not being able to carry out his obligations under said contract in the sum of $480.00.

Upon trial, the plaintiff introduced the newspaper advertisement and told of the oral representations made by defendant’s salesman, that is that the truck was in A-l condition. He also testified that when he first used the truck it broke down, requiring him to return it to the defendant for repair. He also testified that on two subsequent occasions within a two month period after the purchase, he was compelled to return the truck for further repairs and that on these occasions he agreed to and did pay one-half of the repair bills in the total sum of $226.03.

As a part of the cross-examination of the plaintiff, the defendant introduced into evidence a written contract signed by plaintiff for the purchase of said truck in which it was provided that no verbal agreements would be recognized as modifying the written agreement and no warranty would be recognized unless in writing. The defendant in its answer did not plead the written contract. Its introduction as part of the cross-examination of the plaintiff (where he claimed a verbal contract of purchase) was proper as tending to challenge the plaintiff’s credibility. In any event, such written contract, except as it challenged the credibility of plaintiff’s testimony, did not materially affect the plaintiff’s contention as to the effect of the advertisement as an inducing cause of his purchase of said truck.

In the case of Meyer v. Packard-Cleveland Co., 106 Oh St 328, the second paragraph of the syllabus reads as follows:

“2. The language of a written order or contract of sale — ‘all promises, verbal agreements, or agreements of any kind pertaining to this purchase not specified herein, are hereby expressly waived’ — does not exempt such contract from the force and effect of such general advertisement touching the character and quality of a truck in process of rebuilding when such contract was executed.”

The plaintiff’s evidence in this case shows a complete compromise of any claim for damages as to the value of the truck, by reason of the claimed breach of warranty. Under §8449 GC, one who claims a breach of warranty must pursue one of three remedies: — rescission, recoupment, or counterclaim. Certainly, rescission and recoupment were not claimed, so that the remedy which is here pleaded must be construed as being on the theory of counter-claim. This action is an original one by the buyer seeking damages for breach of warranty so that his damages, if established, would be the difference between the value of the truck, if it had been as represented, and its value as received. The plaintiff having voluntarily agreed to pay, and having paid one-half of the cost of repair on the last two occasions when the truck was returned for repairs, cannot now claim damages for any alleged breach of warranty.

The petition, however, does claim special damages under the provisions of §8450 GC, because of the loss of use caused by the alleged breach of warranty. Some evidence was presented on this question so that the court, in directing a verdict for the defendant, committed error prejudicial to the rights of the plaintiff.

It should be stated for the purpose of guiding the trial court upon retrial, that the amount the plaintiff was to receive for specific trips, less his estimate of the cost of labor and gasoline, to be expended thereon, while it might be some evidence of the damage occasioned by plaintiff’s inability to use such truck, yet the better practice should require competent testimony as to the reasonable value of the loss suffered from plaintiff’s inability to use said truck because of defendant’s breach of any promise inducing the sale.

Judgment of the Municipal Court reversed and cause remanded for further proceedings according to law. Exceptions noted. Order see journal.

HURD, PJ, KOVACHY, J. SKEEL, J, concur.


text:
    HERCULES TROUSER COMPANY, Plaintiff, v. ZARET, Defendant.
    Common Pleas Court, Fayette County.
    No. 21195.
    Decided February 23, 1955.
    Collis Gundy Lane, Richard Huggard, Columbus, for plaintiff and Federal Insurance Company.
    Benoy & Sebastian, Columbus, for defendant.
   OPINION

By CASE, J.

The plaintiff (Hercules Trouser Company) filed its original petition herein on March 24, 1951, seeking damages in the alleged amount of its entire loss arising out of a collision between its motor vehicle and that of defendant on January 26, 1950; and, on September 25, 1953. by leave of court, plaintiff filed its amended petition herein seeking damages for all iosses suffered by it as a result of said collision.

On October 3, 1953, defendant answered plaintiff’s amended petition and, for his second defense therein, asserted:

“For his second defense, the defendant says, that the plaintiff is not the real party in interest for the reason it has assigned all or part of its claim to some other person or corporation.
“Interrogatories are attached hereto to be answered under oath by an officer of the plaintiff.”

The interrogatories so attached to defendant’s answer read as follows:

“State whether or not plaintiff has assigned its right of action to recover for damages sustained by the tractor and trailer involved in the collision referred to in the amended petition, to any person, firm or corporation either in whole or in part.
“If your answer to interrogatory No. 1 is that said cause of action has been assigned, either in whole or in part, state to what person, firm or corporation said cause of action has been so assigned.”

On October 26, 1953, the court scheduled and assigned said matter for jury trial on March 23, 1954.

On March 4, 1954, plaintiff (Hercules Trouser Company) filed the following motion: “Plaintiff moves the court for an order making the Federal Insurance Company, a party plaintiff herein; and for leave to file a Second Amended Petition”; and attached thereto an affidavit which reads as follows:

“Richard Huggard, being first duly sworn, says that he is attorney for plaintiff; that at the time of the collision described in the amended petition filed herein, the Hercules Trouser Company carried a fifty Dollar f$50.00) Deductible Collision Policy with the Federal Insurance Company; that as a result of said collision and said policy, the Federal Insurance Company paid to the Hercules Trouser Company the sum of Six Hundred Ninety and 18/100 ($690.18) Dollars and that the Federal Insurance Company is a necessary party to the determination of this cause.”

On March 24, 1954, this court made and issued its decision denying plaintiff’s motion to make the Federal Insurance Company a party plaintiff herein (53 O. O. 214, 67 Abs 595, 118 N. E. 2d 701); and, as stated in the headnotes of Hercules Trouser Company v. Mitchell L. Zaret, 53 O. O. 214, this court held:

“1. The express provisions of a contract for indemnity and subrogation are essential matters of record to determine the real party or parties in interest.
“2. When an insured has brought action within the statutory period as the real and sole party in interest and, after defendant’s answer has been filed denying such interest, such insured seeks the addition of an insurer as a real party in interest, such motion and affidavit in support thereof should clearly show the express provisions of the contract by which the alleged insurer acquired or derived an interest and whether such acquisition attached before or after said action was commenced.
“3. When it appears from the record that the statutory period has run against such alleged insurer and the facts of record further show that such insurer has failed, for over a period of four years, to exert any effort to intervene with respect to such claim, the court may consider such facts to be indicative of the dilatory purpose and intent of such motion.
“4. When defendant’s answer set up a specific defense directed to the real interest of the insured plaintiff, under the facts and circumstances above set forth, the court should find that the granting of said motion would impair and substantially change defendant’s defense, and would be contrary to the purpose and intent of §2307.05 and §2309.58 R. C.”

On August 14, 1954, the Federal Insurance Company filed its motion to be made a party herein in the following language:

“Motion To Be Made Party Plaintiff
“The Federal Insurance Company hereby moves the court for an order to be made a party plaintiff herein.
“Alternative Motion To Be Made Party Defendant.
“In the event the court should overrule the foregoing Motion. Federal Insurance Company moves the court for an order making it a party defendant herein.”

Attached thereto and in support thereof was an affidavit which reads as follows:

“Richard Huggard, being first duly sworn, says that he is attorney for the Federal Insurance Company; that at the time of the collision described in the amended petition filed herein, the Hercules Trouser Company carried a One Hundred Dollar ($100.00) Deductible Collision Policy with the Federal Insurance Company; that as a result of said collision and said policy, the Federal Insurance Company on or about March 9, 1950, paid to the Hercules Trouser Company the sum of Six Hundred Ninety and 18/100 ($690.18) Dollars; that the Federal Insurance Company is entitled to and by Motion which this affidavit supports, is seeking subrogation to the extent of its said payment, and that the Federal Insurance Company is a necessary party to the determination of this cause.”

The Federal Insurance Company also attached thereto the tender of answer which reads as follows:

“The Federal Insurance Company herewith tenders an answer to be filed in the event the court should sustain its alternative motion to be made party defendant.
“In the event the court should sustain its motion to be made party plaintiff, the Federal Insurance Company then adopts and tenders the second amended petition heretofore tendered to this court.”

And, the Federal Insurance Company also attached thereto the following answer:

“Defendant, the Federal Insurance Company avers that at all times mentioned in plaintiff’s amended petition, it was a corporation admitted to the State of Ohio for the purpose of transacting a general fire insurance business, including the insuring of automotive equipment against the hazard of loss by collision; that on or about the 26th day of October, 1949, it issued its policy of insurance No. CUFW 4190322 to plaintiff whereby it agreed, among other things, to pay plaintiff for any loss or damage caused by collision of any automobile insured thereby with another object, and said policy further provided that in the event of any payment thereunder the Federal Insurance Company should be subrogated to all of plaintiff’s rights of recovery thereafter against any person or organization and that plaintiff should do whatever necessary to secure such rights; that one of the automobiles thereunder was the tractor and trailer described in plaintiff’s amended petition; that said policy was in full force and effect on January 26, 1950; that as a result of the collision described in plaintiff’s amended petition, the Federal Insurance Company was obliged to and did on March 9, 1950, pay to plaintiff the sum of Six Hundred Ninety and 18/100 ($690.18) Dollars, taking therefor at said time, a subrogation receipt and assignment from plaintiff on March 9, 1950.
“WHEREFORE, the Federal Insurance Company prays that it may be subrogated to any recovery had herein by plaintiff to the extent of Six Hundred Ninety and 18/100 ($690.18) Dollars.”

The aforesaid motion, of the Federal Insurance Company to be made a party herein, was also supported by a memorandum, filed on August 14, 1954, which concluded with the following language:

“For the information of the court and counsel, there is pending in the Court of Appeals for this District, the case of Markel v. Mitchell, No. 5049. This cáse involves a state of facts presenting questions very similar to that presented here, and a decision in that case might well be dispositive of this. We are informed that this case will be assigned at the September call of the docket of the Court of Appeals.
“We submit that denial of these motions would be both prejudicially erroneous and an abuse of discretion.”

On the 27th day of October, 1954, the Court of Appeals of Franklin County rendered its opinion, in the case of Glen R. Markel, Plaintiff-Appellant, v. Okey O. Mitchell, Defendant-Appellee, No. 5049, which reads as follows:

“On March 10, 1951, the plaintiff, Glen R. Markel, was the owner of a 1950 Chevrolet on which he had a $50.00 deductible policy of collision insurance with the Motors Insurance Corporation. His car was involved in a collision with the defendant’s automobile on this date and damaged, requiring repairs in the amount of $497.78. Plaintiff paid his $50.00 deductible feature on the repair bill and the insurance corporation paid $447.78. Plaintiff executed a Loss and Damage Agreement to the insurance corporation in which he subrogated the insurance corporation to the extent of $447.78.
“On July 3, 1951, plaintiff in his name alone filed suit against the defendant in the Common Pleas Court of Franklin County for $600.00 damages to his automobile, the said claimed amount being the difference between the value of the automobile immediately before the collision and the value immediately after the collision. On August 15, 1951, the defendant filed his answer and cross-petition. The second defense in his answer reads:
“ ‘Defendant is informed, and therefore alleges that at the time of the collision alleged in plaintiff’s petition, the plaintiff was insured by the Motors Insurance Corporation, for all loss or damage to his automobile in excess of $50.00, caused by collision with another automobile.
“ ‘Defendant says that prior to the commencement of this action by the plaintiff the said Motors Insurance Corporation paid for all loss or damage to plaintiff’s automobile, in excess of $50.00, and thereby said Motors Insurance Corporation became subrogated to all right, title and interest in any cause of action plaintiff might have, to the extent of the loss or damage payment made by the said Motors Insurance Corporation, and thus, at the time of the commencement of this action, said Motors Insurance Corporation was, and still is, the real party in interest, and therefore a necessary party to this action.’
“On September 15, 1951, plaintiff demurred to the second defense of the answer for the reason that it did not set forth facts sufficient to constitute a defense to the plaintiff’s action. On April 7, 1952, the demurrer was overruled. On May 6,1953, this case came on to be heard upon its merits. Prior to the impaneling of the jury counsel for the plaintiff made a motion to make the Motors Insurance Corporation a party defendant to the action and for leave to file its answer instanter. The Court refused this request and overruled his motion on the grounds that the application was not timely made. The bill of exceptions on page 3 discloses a series of admissions on the part of counsel for the plaintiff. The demurrer of the plaintiff to the second cause of action in the answer of the defendant having been overruled, admits the truth of the facts therein stated and properly pleaded. The Court ordered that the plaintiff’s petition be dismissed and proceeded to trial upon the amended cross-petition of the defendant and the amended answer thereto filed by the plaintiff. A jury was impaneled and at the conclusion of the defendant’s evidence the Court directed the jury to return a verdict in favor of the plaintiff upon' the amended cross-petition of the defendant and entered judgment against the defendant.
“The first assignment of error is,
“ ‘The trial court erred in overruling the motion of the plaintiff-appellant to make the Motors Insurance Corporation a party defendant to this action.
“Counsel’s admissions in open court on May 6, 1953 disclose that the insurance company had paid $447.78, being the total amount of the repairs not counting the $50.00 deductible interest, and the insurance company became subrogated to the amount which it paid.
“From the face of the pleadings it appears that the accident happened on March 10, 1951, and the application to make the insurance company a party defendant was made on May 6. 1953, over two years after the accident. The insurance company’s rights cannot be enforced against the defendant by reason of the statute of limitations. How can the plaintiff be prejudiced by the Court’s refusal to make the insurance company a party defendant? In the refusal of the Court to permit the insurance company to be made a party defendant the Court did not err. When the petition was filed by the plaintiff the insurance company was a necessary party, §11341 GC, and under §11356 GC, providing that,
“ ‘Parties who are united in interest must be joined as plaintiffs or defendants.’
“The plaintiff Markel and his insurer were united in interest in the chose in action and required to be joined as parties plaintiff or defendant, and the plaintiff did not do this until the case was called for trial. The Court was in error in dismissing the plaintiff’s petition. It should have submitted to the jury the issues joined with instructions that the recovery, if any, must be limited to the difference between $600.00, the amount of the plaintiff’s claim, and the amount paid to the plaintiff by the insurance company, to wit, $447.78.
“Judgment reversed. Cause remanded.”

Since the Court of Appeals of Franklin County is also the Court of Appeals of Fayette County, and since the application to make the Federal Insurance Company a party defendant in the instant case was made on August 14, 1954, over four years after said accident, this Court must follow the pronouncement of its Court of Appeals in the case of Markel v. Mitchell, supra, to the effect that said insurance company’s rights cannot be enforced against-the defendant by reason of the statute of limitations.

Therefore, for the reasons and upon the grounds already set forth and discussed by this court in Hercules Trouser Co. v. Zaret, 53 O. O. 314, 67 Abs 595, 118 N. E. 2d 701, in its decision heretofore rendered on March 24, 1954, and in conformity with the decision of Court of Appeals for this District, in the case of Markel v. Mitchell, No. 5049, dated October 27, 1954. as hereinabove quoted and set forth, this court finds that the aforesaid motions of the Federal Insurance Company, to be made a party herein, are not well made and should be overruled.

The court further finds that counsel for defendant should prepare an entry accordingly, reaffirming and readopting this court’s former decision of March 24. 1954, as if fully rewritten therein, together with appropriate notation of exceptions on behalf of plaintiff (Hercules Trouser Company) and also the Federal Insurance Company, and thereupon submit same within ten days to counsel for plaintiff and the Federal Insurance Company and to this court for approval.


author: By DOYLE, PJ.

text:
    ALTMAN FURNITURE CO., Plaintiff-Appellant, v. SCARSO, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23189.
    Decided October 27, 1954.
    Herman Fishman. Cleveland, for plaintiff-appellant.
    Frank Mancino, Cleveland, for defendant-appellee.
    (DOYLE, PJ, STEVENS, J, HUNSICKER, J, of the 9th District sitting by designation in the 8th District.)
   OPINION

By DOYLE, PJ.

The Altman Furniture Company sued Carmelo Scarso for the balance due on a promissory note given by her to the furniture company in payment for a cooking stove and other articles of merchandise.

The defendant Scar so, denied the balance due and further pleaded in substance that when she purchased the stove she was “given a warranty and a one-year guaranty;” that at the time of delivery and installation the stove was defective, unsafe and dangerous to anyone using it for the purpose for which it was furnished; that the plaintiff company was immediately notified of the unsafe and dangerous condition of the appliance by the defendant purchaser and was requested “to comply with the terms of the warranty and guaranty and to either replace the stove or to place-it in a good, safe and workmanlike condition, so that it could be safely and efficiently used for the purpose for which it was manufactured and sold, but that the plaintiff has failed and refused to do so.”

The pleading of the defendant further stated that the actual market value of the stove at the time of the purchase was $236.85, but that due to its defective condition and its unfitness for the purpose for which it was sold, it was reasonably worth but $100.00. Prayer was made for the difference, to-wit, $136.85 in damages.

Pursuant to trial to the court, judgment was entered for the defendant in the sum of $44.00. Prom this judgment, appeal was made to this court by the plaintiff and the following errors assigned:

(1) The judgment is manifestly against the weight of the evidence.

(2) Errors of law on the question of waiver.

It appears from the scant narrative bill of exceptions and the admissions in the pleadings that the cooking stove was purchased with a partial payment on Dec. 11, 1950, and was delivered and installed January 18. 1951; soon thereafter the defendant purchaser was injured as a result (according to her testimony! of its defective condition; immediate notice was given to the seller and a request made that compliance be made with the terms of the warranty or that the stove be replaced. Thereafter the defendant negotiated with the plaintiff for the purchase of other articles of merchandise and in payment thereof executed her promissory note for an amount equal to the cost of the new purchase and the balance due on the sale price of the stove. This purchase was made and the new note executed on March 9, 1951, several weeks after the defendant’s discovery of the defects in the stove.

It is claimed that this conduct of defendant amounts to a waiver of the claimed breach of warranty and an accord and satisfaction.

It is the rule in this state under factual situation such as is presented in this case, that the retention of goods and the payment of the purchase price, or the giving of a promissory note for the purchase price with knowledge of a breach of warranty, does not as a matter of law bar an action for the breach. Whether or not the purchaser by giving the price or the giving of notes therefor waives his right to damages is a question of fact for the determination of the trier of the facts.

See: 35 O. Jur., 913, parag. 718; Metal Forms Corp. v. Clemens, 39 Oh Ap 324; Herbrand Co. v. Lackawanna Steel, 250 Fed. 11; Secs. 1315.16, 1315.50 and 1315.70 R. C.

In the case under review, we indulge the presumption that the trial court understood the law of waiver and in consideration thereof determined that the purchaser by her conduct had not waived her right to claim a breach. And we do not find that such conclusion is manifestly against the weight of the evidence.

In further consideration of the record before us, we cannot say that the judgment rendered is manifestly against the weight of the evidence or that errors of law appear which are prejudicial to the rights of the seller.

As stated before, the bill of exceptions is in narrative form and it is difficult, if not almost impossible, to obtain a clear picture of the trial and the exact evidence introduced. However, it is incumbent upon the appellant to demonstrate prejudicial error and from the record before us we cannot say that it is established. We draw attention to an unfortunate statement by the trial judge through which it is claimed by the appellant that extraneous evidence was considered by the court in his determination of the issues. In considering this claim we do not find the fact established. We indulge again the presumption that the court understood and followed the rules of evidence.

The judgment will be affirmed. Exceptions noted. Order see journal.

HUNSICKER, J, STEVENS, J, concur.