author: By THE COURT:

text:
    A. H. HAESELER BUILDING AND CONTRACTING COMPANY, Plaintiff-Appellee, v. JOHN J. DUPPS COMPANY, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2282.
    Decided December 28, 1954.
    Pickrel, Schaeffer & Ebeling, Dayton, By William H. Selva, Of Counsel, for plaintiff-appellee.
    Coolidge, Becker, Wall & Wood, Dayton, By Pierce Wood, Of Counsel, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal from a judgment entered upon the verdict of a jury finding for the plaintiff in the sum of $25,007.60 with interest. The action was to recover money claimed to be due plaintiff by reason of its performance of an oral contract between the parties wherein it was averred that defendant agreed to pay to plaintiff a commission of ten per cent on any money received upon any contract entered into between defendant and Toprak Mahsulleri Ofisi, a commission representing the Turkish Government, which we hereinafter refer to as the Turkish Commission. The petition avers that the plaintiff, acting as defendant’s agent, was instrumental in securing a contract with the Turkish Commission whereby the Commission purchased supplies of machinery from the defendant amounting to the sum of $364,831.91. It was stipulated that if any sum was due plaintiff, it was in the amount of $25,007.60

The first defense of the answer admits a promise to pay plaintiff ten per cent commission on any contract which plaintiff was instrumental in securing for the defendant from the Turkish Commission but, after setting forth certain exclusions from the amount to be paid, the answer avers that:

“Defendant promised to pay such commission only upon condition that plaintiff act as its agent in securing certain other specified contracts. Defendant says that plaintiff failed to so aet. Further avers that although it admits that it entered into a contract with the Turkish Commission in the amount set out in the petition, denies that plaintiff acted as its agent in connection therewith and that plaintiff was instrumental in securing a contract for the defendant. Further avers that although it had shipped supplies and machinery pursuant to the contract the Turkish Commission has not accepted all of the equipment contracted for and that the total sum received is $296,561.70. Denies specifically that a contract ever was entered into between plaintiff and defendant.”

Defendant in its brief epitomizes the second, third, and fourth affirmative defenses in its answer, as follows:

“The contract between plaintiff and defendant was contrary to public policy and void, because it contemplated the use of Settlage’s personal influence upon the Turkish Government Officials.

“The ten per cent completion contract between the plaintiff and defendant being identical with the contracts between plaintiff and defendant’s competitors, is void, since the acceptance of conflicting employment constituted a breach of plaintiff’s duties as defendant’s agent.

“Defendant’s contract with the Turkish Government was subject to the Foreign Assistance Act of 1948, as amended, and with the regulations adopted thereunder. Such regulations outlaw contingent fees, except those paid to a bona fide established commercial or selling agency. Therefore, the contract to pay plaintiff a commission for obtaining the Turkish contract was illegal, contrary to public policy, and void ”

All of the evidence was developed through the testimony of C H Settlage, president oí plaintiff company, and John A. Dupps, president of defendant company, and exhibits offered by the parties.

The record discloses that in 1950 (April) the Turkish Commission had come to the United States with the intention of receiving bids on machinery for packing houses to be built by the Turkish Government. Mr. Settlage, on behalf of the plaintiff, said that upon learning of the arrival of the Turkish Commission he contacted a number of American manufacturers who might be interested in submitting bids, among whom was Mr. Jack Dupps of defendant company; that he had theretofore dealt with the father of Mr. Dupps, but had not been in touch with the son; that he, by phone, talked to Dupps; explained to him the situation and asked him if he would be willing to pay a ten per cent commission to plaintiff on any contract which plaintiff was instrumental in seeming for the defendant company from the Turkish Commission. It is testified that in this conversation, Settlage told Dupps that he had a similar arrangement with other prospective suppliers and bidders on the Turkish Government contract. The Turkish Commission placed their entire order for supplies, amounting to $600,000.00, with American manufacturers, the defendant receiving an order in the amount of $364,000.00.

Pursuant to the contract between the defendant and the Turkish Commission, defendant made 74 shipments of material, with each of which it forwarded a completed form known as F. C. A. 280, issued by the Economic Cooperation Administration. On the face of this form is the amount of the invoice, the nature of the shipment, the supplier’s name and address, the importer’s name and address and the names of agents with addresses and “Commission In Invoice Amount.” On each of these forms the plaintiff was listed as the agent, and the amount of commission due was set out.

On the reverse side of the form there is what is headed “Supplier’s Certificate”. Among other statements therein contained, are the following:

“(1) The supplier is entitled under said contract to the payment of the claimed sum, and he will promptly make appropriate reimbursement to the Administrator in the event of his nonperformance, in whole or in part, under said contract, or for any breach by him of the terms of this certificate.”

“(4) The supplier is the producer, manufacturer, processor or exporter of, or a regular dealer in the commodity, or furnishes the service covered by said contract and has not employed any person to obtain said contract under any agreement for a commission, percentage, or contingent fee, except to the extent, if any, of the payment of a commission to a bona fide established commercial or selling agent employed by the supplier as disclosed on the reverse of this form.”

“(10) The supplier has filled in the applicable portions of the invoice — and—contract abstract on the reverse hereof, certifies to the correctness of the information shown therein. * *

These certificates were signed by John A. Dupps.

It was testified that all of the other American manufacturers with which plaintiff had a contract, the same as entered into between the parties, paid the amounts of commission which they had agreed to pay. That defendant not paying, Mr. Dupps was contacted by phone, whereupon he stated that he did not propose to pay the commission.

Mr. Dupps, while admitting that the conversations took place with Settlage, denied that he had any information of the multiple agency contract and upon the facts appearing, claimed that any contract that was secured through the efforts of Mr. Settlage was by reason of his personal influence with the Turkish Commission, which had the authority to contract on behalf of the Turkish Government; and that the plaintiff was not, at the time the contract sued upon was entered into, a bona fide established commercial or selling agency.

The court, by special charges given at the request of the parties before argument, in connection with the general charge, covered all of the issues drawn by the pleadings.

Eleven errors are assigned, the first five of which relate to “E. C. A. Matters”.

It is urged that the court erred in overruling the motion for judgment notwithstanding the verdict, since plaintiff failed to prove that it was a bona fide established commercial or selling agent as required by the E. C. A. regulations.

The trial, judge, at the request of defendant, charged the jury that the constituent elements of a bona fide established commercial agency. The record affords support for the implied findings of the jury that plaintiff was an agent such as was required by the regulations

It is urged that the court erred in allowing plaintiff to attempt to prove that it was a bona fide established commercial agent in 1950 by proof of subsequent acts of the defendant. Such acts as were referrable to the relation of the parties and as reflected upon the respective claims as to the existence or the subsistence of the oral contract were clearly competent.

It is also asserted that the court erred in refusing defendant’s proffered special instructions to the effect that the E. C. A. certificates were not to be considered as evidence bearing upon plaintiff’s claim to have been such bona fide established commercial agent. Manifestly, such certifications in and of themselves could not establish the plaintiff to be a bona fide established commercial agent, if in fact it had not the capacity to so act. However, the certificates were broader and more extensive than the mere statement relative to the agency status of plaintiff. We are not satisfied that the special charge requested by defendant should have been given, without qualification. Incidentally, this is the most difficult and most doubtful assignment of error presented. Of course, the certificates were probative of the bona fides of the parties, and if upon the whole evidence plaintiff was proven to have come within the exception to the warranty, then the certifications as to its status might work an estoppel against defendant. We do not extensively pursue the question of the effect of these certificates on the right of plaintiff to recover in this law suit, because the trial judge and the plaintiff concede that there was a proper issue upon the fourth defense

of the answer and the reply thereto. We* consider and determine this appeal on that hypothesis. To give effect to the certificates is not in conflict with the citation of appellant in 17 O Jur 325.

Appellant cites as error the refusal of the trial judge to give its special instructions and additions to the general charge, so that the jury might be guided in respect to plaintiff’s status in the four Latin-American construction projects on which it relied to show that it was a bona fide established commercial agent, and in refusing to permit cross examination of Settlage, to establish facts further showing that plaintiff was not a bona fide established commercial agent.

The defendant noted no exception to the action of the court in either of the foregoing particulars.

The field of cross-examination, which it is urged was denied appellant, was generally though not specifically explored by the permission of the court. The court denied further cross-examination because of the opinion that the testimony sought to be developed, at pages 210, 211 of the record, had been adduced earlier. Whether or not further cross-examination should have been permitted was largely a matter of discretion, which we can not hold was abused.

Errors are assigned to the overruling of defendant’s motion for a new trial as related to the factual issues on the E. C. A. regulations and as to the illegality of the contracts in the other particulars challenged.

The relation of the parties and the status of defendant with respect to its multiple agency, its special influence upon the Turkish Commission to secure contracts, and particularly as to its agency as set forth in the certificates, was thoroughly explored and developed. Executive Order 9001 — Title 50 ü. S. C. A. App., Sec. 611, insofar as pertinent, provides:

“5. Every contract entered into pursuant to this order shall contain a warranty by the contractor in substantially the following terms:

“The contractor warrants that he has not employed any person to solicit or secure this contract upon any agreement for a commission, percentage, brokerage or contingent fee. Breach of this warranty shall give the Government the right to annul the contract, or, in its discretion, to deduct from the contract price or commission the amount of such commission, percentage, brokerage, or contingent fee. This warranty shall not apply to commission payable by contractors upon contracts or sales secured or made through bona fide established commercial or selling agencies maintained by the contractor for the purpose of securing business.”

The regulations pleaded by the defendant follow very closely the terms of the Executive Order just quoted. This order, in our opinion, does not provide that a contract to pay contingent fees and commissions to other than bona fide established commercial or selling agent, is illegal and void. It does provide that the contractor make the warranty therein set forth, and that breach of the warranty shall give the Government the right to either annul the contract or, in its discretion, to deduct from the contract price or commission the amount of such commission, etc. The Government is not involved in this action, nor does this Order authorize any other to invoke its penalty provisions. The penalty, if invoked, is against the contractor. He is not required to make such a warranty if he comes within the exception. The defendant, to conform to the order and the regulation, made the warranty 74 times that the plaintiff company was entitled to the commission payable to it by the defendant because its contract with the Turkish Government was secured through a bona fide established commercial or selling agent.

What we have said relative to the Order and Regulation is not required by this appeal. If it were, it is apparent that we would not be disposed to follow the decision in Mitchell v. Flintkote Co., 185 Fed. (2d) 1008, and other similar holdings cited by appellant. The appeal in the Mitchell case was predicated on an action instituted in a Federal Court on an oral contract wherein Mitchell sought to recover a commission on defendant’s sales of camouflage paint to the United States Government. The opinion is much broader than was required by the issue presented and upon which the judgment was entered. The court held the contract to be illegal under Executive Order 9001 because the contract entered into by the defendant company with the War and Navy Departments did not, and under the facts could not, properly contain the warranty, or come within the exception. The opinion says that Executive Order 9001 flatly requires that no person be employed on contingent fees to “solicit or secure the contract.” We cannot so read the language of the order. The facts in the cited case, however, and those developed here, are not parallel.

We are more favorably impressed by the. cases of which Gendron v. Jacoby (Mich.) 59 N. W. (2d) 128, is typical.

That the foregoing discussion as to the effect Executive Order and Regulations pursuant thereto is not required or germane to this appeal appears by reason of the view of the law adopted by the court, as contended by appellant, given in Special Charge No. 7, as follows:

“I charge you that an agreement to pay a contingent fee to an agent for securing a contract to be paid for with funds of the Economic Cooperation Administration of.the United States Government is illegal unless the person claiming the contingent fee is a bona fide established or selling agent.”

The verdict in the light of Charge No. 7 is an implicit finding that the plaintiff was an agent, bringing it within the exception as to the warranty, as defined by the court in its Special Charge No. 8, given at the request of defendant before argument.

We are cited to King v. Horton, 116 Oh St 205, where it was developed that the contract upon which the plaintiff sought to recover arose in a bucket-shop transaction, an illegal act, as a matter of law. To like effect is Stone v. Steinan Mfg. Co., 133 N. J. L. 593, 45 Atl. (2d) 486, where there was an express finding that “the substitute agreement,” the basis of the action, “was a mere blind” to cover up culpable fraud on the part of both parties as to the agreement. The basis of the judgments in the foregoing cases is not found here, in view of the submission of the legality of the transactions incident to the contract to the jury and the determination by it favorably to plaintiff.

“Error is assigned in the giving of special instructions to the effect that, notwithstanding plaintiff’s original failure to disclose its multiple agency, it was defendant’s duty after becoming aware of plaintiff’s multiple agency to decline to enter into the contract with the Turkish Purchasing Commission.”

We presume that reference is made to Special Charge No. 3, which does not say that it was the duty of defendant, after becoming aware of plaintiff’s multiple agency, to decline to enter into the contract. The substance of the charge is that though defendant may not have known of the multiple agency of plaintiff when the contract was made, if it later received such information and accepted the benefits thereof, it had thereby acknowledged the agency relationship. The charge, in our judgment, states a correct principle of law applicable to the factual development. United States Rolling Stock Co. v. Atlantic and Great Western R. R. Co., 34 Oh St 450; Annotation to Olson v. Pettibone, 48 A. L. R. 926; Valaske v. Wertz, In re St. Clair, et al., 106 Fed. (2d) 450, 1st Syl.; United States v. Grace Evangelical Church, 132 Fed. (2d) 460; 2 Am. Jur. 214, 223.

Error is asserted in the refusal to give special instruction requested by defendant before argument relating to the duty of disclosure of an agent accepting multiple employment.

The requested instructions relate to jobs other than the one immediately involved in the action on trial, and recited a state of facts under which the jury was required to determine that plaintiff was not on those jobs acting as a bona fide commercial agent. They did not set forth any principle of law that was material decisive of any issue. The instruction was properly refused.

Objection is urged to the refusal of the court to supplement its instructions after the general charge to the jury The trial judge properly held that he had fully charged upon the subject matter of the instructions. No exception was noted to the general charge by defendant.

Other assignments relate to the admission of certain testimony, to the overruling of the motion for new trial because the verdict is contrary to the weight of the evidence generally, and the 11th is that the answer of the jury to Special Interrogatory No 1 was contrary to the general verdict and based on no evidence.

Without extended comment, we hold against the appellant on all these assignments. There were clear-cut, decisive issues in this case upon which the two witnesses, one for the plaintiff and one for the defendant, offered the principal probative evidence. They differed as to the material and controlling facts. The jury, as it had the right to do, accepted the version of developments as asserted by the plaintiff. The case was well tried by the court and counsel. No sufficient reason appears in any error assigned for disturbing the verdict and the judgment. ■

Judgment affirmed.

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


source: Caselaw Access Project

author: By BARTLETT, J.

license: Public Domain

text:
    POWELL, Plaintiff, v. EAVEY COMPANY, Defendant.
    Common Pleas Court, Franklin County.
    No. 190174.
    Decided October 7, 1954.
    R. Brooke Alloway, Joseph M. Millious, Columbus, for plaintiff.
    Hamilton & Kramer, Columbus, for defendant.
   OPINION

By BARTLETT, J.

Motion to strike from petition 1, 2, 3 and 4 overruled Plaintiff predicates his right of action on the alleged violation by defendant company of the pure food laws of Ohio, which were passed by the General Assembly for the purpose of protecting and safeguarding the lives and health of the citizens of Ohio The statutes involved are §3715.08 R. C. prohibiting sale or possession for sale of food “adulterated” within meaning of §3715.02 R. C., (E) if it consists in whole or part of diseased, decomposed, putrid, infected, tainted, or rotten animal or vegetable substance, etc.; §3715.0 R. C. defining food; §3715.11 R. C. prohibits sale of adulterated foods; §3715.21 R. C. requires sellei to make known adulterated food to buyer, subject to fine, etc.

The inhibition of the statutes against the sale of unwholesome food means that only wholesome food may be sold. The sale of food in violation of these statutes constitutes negligence per se. Lack of intent is no defense, nor lack of knowledge of the unwholesome condition is no defense.

Under §1315.16 U. C., such defendant company sells such food, it impliedly warrants its reasonable fitness for its intended use as food. Rubbo v. Hughes Provision Co., 138 Oh St 178; Kurth v. Krumme, 143 Oh St 638; Drock v. Great Atlantic, etc. Tea Co., 61 Oh Ap 291; Leonard v. Habermann Provision Co., 143 Oh St 623; Wolfe v. Great Atlantic etc. Tea Co., 143 Oh St 643.

5, 6 and 7 Overruled. It is true the plaintiff husband’s right of action is for loss of services, medical and hospital expenses, and not an action for pain, suffering; but certainly the resulting mental physical and nervous condition resulting is pertinent to the wife’s inability to perform her services as well as the necessity for hospital and medical care.

The trial judge can take any precautions necessary to avoid any needless prejudicial effect. thereof.


author: By KOVACHY, PJ. HURD, J,

text:
    CLEVELAND TRUST COMPANY, Plaintiff-Appellant, v. KOLAR et, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23,277.
    Decided March 16, 1955.

      Robert M. Skall, Douglas, Stark, Jett & Biechele, Cleveland, for plaintiff-appellant.
    Joseph Saslaw, Cleveland, for defendant-appellee.
   OPINION

By KOVACHY, PJ.

This is an appeal on questions of law from a judgment rendered in the Common Pleas Court of Cuyahoga County granting a petition to vacate a judgment rendered by that Court in a previous term on a cognovit note. The Cleveland Trust Company, a corporation, is the plaintiff-appellant and Mary A. Kolar, the defendant-appellee.

The essential facts are uncontroverted.

1. September 12, 1927, William and Mary Kolar signed a cognovit note due one year after date and mortgage on real estate to secure the same to the Cleveland Trust Company in the sum of $12,000

2. November 6, 1930, last payment made by the Kolars on the note.

3. 1936, The Cleveland Trust Company sued William and Mary Kolar for judgment on the cognovit note and for foreclosure of the property securing the note in Summit County, Ohio.

4. 1937, William and Mary Kolar established permanent residence in Dade County, Miami, Florida.

5. 1938, the action for judgment on the cognovit note was dismissed by The Cleveland Trust Company, the action for foreclosure of the property continued pending.

6. 1941, the foreclosure action was concluded with sale of the property.

7. 1941 — the property under foreclosure sold for $5,334; $441.62 was allocated to current taxes; $125.10 went to court costs; the $4,767.28 remaining was credited to interest due on the cognovit note and carried such interest payments up to January 26, 1936.

8. October 24, 1946, The Cleveland Trust Company, by virtue of the warrant of attorney, took judgment on the note for $14,998.28 with interest at 8% and the costs in the Common Pleas Court of Cuyahoga County, against William A. Kolar and Mary A. Kolar.

9. May 8, 1953, the Cleveland Trust Company filed an action based on the aforesaid judgment in the Circuit Court of Dade County, Florida, against Mary A. Kolar (William Kolar was then deceased)

10. Mary A. Kolar had no notice or knowledge of the judgment against her in Cuyahoga County, Ohio, until sued in the Circuit Court of Dade County, Florida.

11. May 27, 1953, Mary A. Kolar filed a petition to vacate in the Common Pleas Court of Cuyahoga County, Ohio, praying that the judgment rendered against her in that court on October 24, 1946 be vacated.

12. The petition to vacate was verified by affidavit on the part of her attorney, Joseph Saslaw, on authority of §2309.53 R. C.

13. May 28, 1953, Mary A. Kolar filed an answer to the suit in Florida, pleading, inter alia, that “and for the answer to said complaint, defendant says that the plaintiff fails to state a cause of action upon which relief can be granted in that the judgment sued upon was improperly entered, is null and void, and of no force and effect.”

14. December 17, 1953, the Circuit Court of Dade County, Florida, rendered judgment in which it “ordered, considered and adjudged that the plaintiff’s motions for judgment on the pleadings and summary judgment be and that same are hereby granted and that judgment be and it is hereby entered in favor of the plaintiff, The Cleveland Trust Company, an Ohio corporation, and against the defendant, Mary A. Kolar, for the sum of $14,988.28 plus interest thereon from October 24, 1946, computed at 6% interest, amounting to $6,295.08, making a total judgment hereby entered in favor of the plaintiff, the sum of $21,283.26 for which let execution issue forthwith.”

15. March 18, 1954, — hearing had on the petition to vacate in Common Pleas Court of Cuyahoga County.

16; May 25, 1954 — Judgment entry of Common Pleas Court of Cuyahoga County that:

“Petition by the defendant to vacate and set aside judgment, heard and the court finding that the answer presented sets forth a valid defense, petition is granted. Judgment vacated. The judgment vacating judgment is suspended pending trial of the cause on the issues joined and leave granted to the defendant to plead instanter to all of which plaintiff excepts.”

17. May 25, 1954 — answer of defendant filed.

18. The amount of money due on the cognovit note when judgment was sought and obtained in Common Pleas Court of Cuyahoga County was $17,428.67.

19. Defendant appellee based her petition to vacate on the ground that “said judgment was taken for an amount greater than was due; that there was nothing due on the note because the note was barred by the statute of limitations; that in the alternative, there was some money realized from the sale of real estate securing said note and not credited by the plaintiff on said note. All said facts are within the peculiar knowledge of the plaintiff.”

Accordingly, she relied upon §2325.01, par. (1) R. C., for relief in the matter, which reads:

“1. For taking judgments upon warrants of attorney for more than was due the plaintiff, when the defendant was not summoned or otherwise legally notified of the time and place of taking such judgment.”

Plaintiff appellant in its asignments of error claims that the petition to vacate did not comply with §§2325.01 and 2325.05 R. C.; that no evidence at all was introduced sustaining said petition; that the judgment was not sustained by the evidence and was contrary to law.

Was this cognovit note barred by the statute of limitations? The salient facts with respect to this, are that the cognovit note was executed in 1927; that payments were made until 1930; that Mrs. Kolar became a permanent resident of Florida in 1937, and that judgment by virtue of the warrant of attorney was rendered in 1946.

Sec. 2305.15 R. C. (11238 GC) reads:

“When a cause of action accrues against a person, if he is out of the state, or has absconded, or conceals himself, the period of limitation for the commencement of the action as provided in §§2305.04 to 2305.14, inclusive, and §1307.08 R. C-.< does not begin to run until he comes into the state or while he is so absconded or concealed. After the cause of action accrues, if he departs from the state, or absconds or conceals himself, the time of his absence or concealment shall not be computed as any part of a period within which the action must be brought.”

Sec. 2305.06 R. C. (11221 GC) recites:

“An action upon a specialty or an agreement, contract, or promise in writing shall be brought within fifteen years after the cause thereof accrued.”

A note is a promise in writing; a warrant of attorney in this case was an agreement in writing.

On the basis of §2305.15 R. C., the statute of limitations as to the note as well as to the warrant of attorney was tolled from 1937 to the date of judgment rendered on the note on October 24, 1946, because of the absence of Mary A. Kolar from the State of Ohio, during that period of time since the law provides that the time of absence from the state shall not be computed as any part of the period, within which the action must be brought. By 1937 only a part of the fifteen years had run, prescribed by the law as the limit by which an action must be brought on a note and the limit within which authority to confess judgment by virtue of a warrant of attorney in writing must be exercised. The statute of limitations, consequently, had not run on either the note or warrant of attorney, and the power to confess judgment conferred by the warrant of attorney was wholly unimpaired and the balance due on the note fully enforceable. The right to vacate the judgment on this ground was not sustained and could not be invoked as a valid defense to' the action on the cognovit note. The Supreme Court of Ohio, in the syllabus of Loan Company v. Firestine, 148 Oh St 133, states the law applicable to the facts in the instant case, as follows:

“The Ohio promisee and holder of a cognovit note executed in Ohio, suing thereon, may invoke the saving provision of §11228 GC, against the promisor, who had left the State of Ohio and had become a resident of another State for a period of years, notwithstanding such absent promisor had executed a warrant of attorney to confess judgment on the note whereby personal judgment could have been rendered against him in Ohio without service of summons, in an action commenced within the 15-year limitation prescribed by §11221 GC.”

To further establish a ground for vacation, that the judgment of October, 1946, was for an amount greater than was due, Mary A. Kolar claimed that the note was not credited with money realized from the sale of the real estate in 1941 securing the same. The evidence in the bill of exceptions clearly refutes this claim. An officer of the Cleveland Trust Company testified, from their records, that $4,767.28 was credited to interest on the indebtedness after the payment of current taxes and court costs. This testimony was completely unrefuted. When we consider this, with the further clear testimony of this official, that the sum due on the note at the time of the taking of judgment was $17,428.67, instead of $14,998.28, the amount actually entered on the records of the court, it is manifestly clear that no evidence whatever was introduced in the hearing of this cause to sustain the averments of the petition to vacate that the judgment on the note was taken in an amount greater than was due. We conclude that there was no evidence introduced at the hearing on the petition to vacate to support the grounds on which it was founded.

Plaintiff appellant argues in its brief that the defendant appellee, upon entering her appearance in the Florida action against her, filed an answer which raised affirmative defenses similar to those set forth in her petition to vacate in this case and that consequently all her rights with respect thereto were adjudicated in the action in Florida and are now res adjudicata. We do not so construe the Florida case. The journal entry in the Florida case discloses that the motions of the Cleveland Trust Company for judgment on the pleadings and for summary judgment were granted. We interpret that action as a summary proceeding to a judgment in recognition of the judgment rendered in Ohio under the Full Faith and Credit Provision of the Constitution of the United States, and therefore, in no wise determining or affecting any defenses that Mary A. Kolar may have to the original judgment in this county.

Defendant appellee argues most strenuously that the entry of interest to the year 1936 on the note by the Cleveland Trust Company was a fraudulent attempt to make it appear on the face of the note that the statute of limitations had not run, permitting the entering of the judgment on the note despite the fact that the fifteen-year limit of the statute had run and the enforcement of the note had been barred. From our holding above, it must be evident that this notation of interest had no bearing whatever on the matter of the statute of limitations and could play no part in the disposition of the case. We further believe that the testimony presented in this record fully explained the reasons for making this notation by the plaintiff appellant negativing any intent to defraud anyone.

The answer of the defendant appellee was filed on the same day that judgment was rendered on the petition to vacate. It includes this averment which was not included in the petition to vacate:

“Further answering, defendant states that a foreclosure was filed in Summit County on January 3,1935, case No. 19323, consisting of two causes of action; the first cause of action asking for judgment on the note alleged in the petition of the plaintiff, and the second cause of action is to foreclose on land securing said note; that the first cause of action praying for judgment on said note was dismissed on the plaintiff’s motion and that the Cleveland Trust Company agreed that no deficiency judgment would be taken on said note.”

The facts are not in dispute in this case that .such foreclosure action, containing two causes of action, was filed and that the first cause of action was dismissed by the plaintiff, but there is not one word of evidence in the entire bill of exceptions to support the statement “that the Cleveland Trust Company agreed that no deficiency judgment would be taken on said note”. This claim was not before the trial court for consideration on the petition to vacate and could not be a ground for granting the same.

Sec. 2325.06 R. C. reads:

“The court of common pleas or the court of appeals must try and decide upon the grounds to vacate or modify a judgment or order, before trying or deciding upon the validity of the defense or cause of action.”

McCullough et v. Luteman, 15 Oh Ap 207:

“1. In an action to vacate a judgment, the court will first determine whether ground exists for the vacation asked; and if the question is decided in the negative, no necessity will arise for a decision as to whether the answer tendered by the petitioner contained a meritorious defense.

2. In such a case, every reasonable presumption favors the validity of the judgment, whether taken after process issued, by confession or warrant of attorney, and the sanctity which invests the judgment requires that before it can be disturbed the right so to do must be clear, the injury palpable and the evidence convincing.”

See, also, Rabinovitz v. Novak, 4 OO 255.

Even though such matter had been before the trial court for consideration, it would have availed the defendant appellee for naught because the allegation “that no deficiency judgment would be taken on the said note” could not be interpreted as an agreement to cancel the debt and if such interpretation be wrong, it nevertheless fails as an allegation of a defense for the reason that no consideration is averred to support the claimed agreement.

9 O. Jur. 620, Sec 368.

Niswanger v. Staley, 1 Ohio Dec. Repr. 382.

We believe the assignment of error that the petition to vacate did not comply with §§2325.01 and 2325.05 R. C. to be without merit.

The majority of this Court, accordingly, holds that the entire record of this case presents no evidence to sustain the petition filed by the defendant appellee to vacate and set aside the judgment entered against her by the Common Pleas Court of Cuyahoga County, Ohio, on October 24, 1946, and that as a consequence, the judgment entered by the trial court granting the petition to vacate the judgment of October 24, 1946 and suspending the judgment vacating that judgment pending trial of the cause on the issues joined was erroneous and should be and is reversed as contrary to law and thereupon proceeds to render the judgment that the Common Pleas Court should have rendered under the circumstances by entering final judgment for the plaintiff-appellant.

Judgment of the Common Pleas Court reversed and final judgment for plaintiff-appellant.

Exceptions. Order see journal.

SKEEL, J, concurs.

HURD, J, dissents.

DISSENTING OPINION

No. 23277.

Decided March 16, 1955.

HURD, J,

dissenting.

It shoud be emphasized that this appeal is here not on the merits, but only from a preliminary order of the trial court, the effect of which was merely to suspend the judgment previously confessed on a warrant of attorney, pending trial on the merits, the action being predicated upon a petition to vacate filed after term, pursuant to the applicable statutes.

The trial court having found that the answer presented and filed was sufficient in law, and having made an entry temporarily suspending the judgment, it was not within the province of the trial court, nor is it within the jurisdiction of this court, to adjudicate at this time the issues raised on the merits by the pleadings.

This case is distinguishable from Loan Company v. Firestine, 148 Oh St 133, which was decided by the Municipal Court upon a motion, within term, when the court had complete control of its docket, and in overruling the motion to vacate the cognovit judgment, made findings of fact and conclusions of law which were immediately dispositive of the issues there presented and the facts so found were binding upon the appellate court and the supreme court.

The cases of Roberts v. Davis, 66 Oh St 527, and Bank v. Spies, 158 Oh St 499, are more closely analogous. In my opinion the preliminary procedure in the instant case was sufficient to entitle the defendant to a suspension of the judgment and a complete trial of the cause on the issues presented by the pleadings. The judgment of suspension entered by the Court of Common Pleas should be affirmed and all existing liens preserved pending determination of the cause on the merits.


author: By HORNBECK, J.:

text:
    STARR, Admrx., Plaintiff-Appellant, v. GEBHART, Admr., Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2261.
    Decided November 23, 1953.
    McLeran, Kelly & McLeran, Dayton, for plaintiff-appellant.
    Curtner, Brenton & O’Hara, Dayton, for defendant-appellee.
   OPINION

By HORNBECK, J.:

This is an appeal from a judgment of the Common Pleas Court dismissing plaintiff’s fourth amended petition after sustaining a demurrer thereto, plaintiff electing to plead no further.

Four errors are assigned: (1) In sustaining defendant’s motion to strike certain portions of plaintiff’s second amended petition; (2) in sustaining in part defendant’s motion to strike certain portions of plaintiff’s third amended petition; (3) in sustaining defendant’s demurrer to plaintiff’s fourth amended petition, and (4) for other errors apparent upon the record. The first and second assignments of error may not be considered because plaintiff elected to plead after the action of the court in sustaining motions to the second amended petition, and to the third amended petition. Grimm v. Modest, 135 Oh St 275, 20 N. E. (2d) 527; Bingham v. The Nypano Rd. Co. et., 112 Oh St 115; Sterling v. Hanley Motor Sales, Inc., 87 Oh Ap 362.

We then consider the third and fourth assignments of error, namely, the sustaining of the demurrer to the fourth amended petition. In the fourth amended petition plaintiff sets up four specifications of negligence; (1) the operation of defendant’s decedent’s automobile on the left hand or his wrong side of the highway; (2) operation of the automobile to the left of the plainly marked yellow line to the east side of the white line in the center of the highway; (3) failure to have and keep the automobile under control at the time and place of the collision and (4) defendant’s decedent operated his vehicle at an excessive rate of speed, to-wit, eighty miles per hour.

The sufficiency of this petition as against a general demurrer must be determined in the light of the test whether or not the averments permit the conclusion of wanton and willful misconduct on the part of defendant’s decedent. In Vecchio v. Vecchio, 131 Oh St 59, the third syllabus holds that in such action (a guest against the driver of the car in which he was riding) he must plead unequivocally that the operator of the motor vehicle had knowledge of existing conditions, otherwise no liability is fixed. In that case the plaintiff had, in the early part of his petition, charged that the defendant had carelessly and negligently failed to properly and securely close and fasten an automobile door adjacent to the seat where plaintiff was seated, and that the defendant, “well knowing and being in position to know that said door was not closed securely, wantonly put said vehicle in operation and drove it over and upon East Boulevard * * Then followed specifications of negligence, the fifth of which was “Defendant wae careless and wantonly negligent, when in the exercise of ordinary care she knew or ought to have known that in making a sudden sharp turn at such a fast and unreasonable rate of speed, would cause plaintifl to be thrown against the said door of said automobile, so as to cause said door to open, and precipitate plaintiff to the ground.” The Common Pleas Court sustained a demurrer to this petition and Judge Stephenson said in the opinion, which conclusion is carried into the third syllabus, that the narrative part of the amended petition alleging knowledge on the part of the defendant, was neutralized by the seconc specification of negligence wherein it was charged that the defendant in the exercise of ordinary care knew or should have known that the door of the automobile was not closed securely.

In the fourth amended petition, which we are testing on this appeal, there is no averment of knowledge, specific or implied, and the petition does not meet the test set out in the Vecchio case. See, also, Payne, Director General of Railroads, v. Vance, 103 Oh St 59.

It is true that in the second amended petition the plaintiff charged specific knowledge, charged defendant’s decedent with express knowledge of the existence of the hill up which he was traveling, and with knowingly attempting to pass other automobiles and to negotiate said hill at a high rate of speed on the left side of the road, and that such acts were known to him to be highly dangerous to the plaintiff and without regard to her safety. However, the plaintiff did not elect to stand upon this averment and, having pleaded over and failed to make any such averment in the fourth amended petition, may not now avail himself of the former allegation.

The court did not err in sustaining the demurrer to the fourth amended petition. The judgment will be affirmed.

WISEMAN, PJ, MILLER, J, concur.


author: By KOVACHY, PJ.

text:
    SMITH, Plaintiff-Appellee, v. MAYFIELD HEIGHTS (City) et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23251.
    Decided February 23, 1955.

      George J. McMonagle, Cleveland, for plaintiff-appellee.
    Squire, Sanders & Dempsey, Cleveland, for defendants-appellants.
   OPINION

By KOVACHY, PJ.

The Mayor of the City of Mayfield Heights, Ohio, removed the Chief of Police, Clarence A. Smith, plaintiff appellee here, from office after appellee’s explanation of ten specific charges of misconduct, nonfeasance, gross and wilful neglect of duty and incompetence in office had been found unsatisfactory. Upon appeal to the Civil Service Commission of the City by appellee, the order of removal was affirmed after an extended hearing. Appellee then appealed to the Common Pleas Court of Cuyahoga County, pursuant to §486-17a GC (§143.27 R. C.). That court, upon review of the record made before the Civil Service Commission on questions of law, decided:

“That the decision of the Civil Service Commission of Mayfield Heights, Ohio, affirming the removal of Clarence A. Smith as Chief of Police of Mayfield Heights, Ohio, be and is hereby reversed and this cause is remanded to the Civil Service Commission of Mayfield Heights, Ohio, for a new trial,” having found

“that although there was evidence to support the order of removal, the failure to admit defendant’s evidence and other irregularities in said hearing before the Civil Service Commission were so great they prevented the appellant from having a fair hearing and prevented the Commission from considering all the evidence said irregularities consisted of the prejudicial, erroneous exclusion of evidence offered by and material to the plaintiff appellant, and the prejudicial, erroneous admission of evidence duly objected to by the plaintiff appellant * *

The matter before us here is an appeal by the City of Mayfield Heights on questions of law from said judgment of the Common Pleas Court. It claims (1) that the judgment of the Common Pleas Court is contrary to law, and (2) that the Common Pleas Court substituted its judgment for that of the Civil Service Commission. In his answer brief, appellee, the Chief of Police, also assigns an error of law. He claims that the Common Pleas Court erred in failing to reverse the judgment of the Civil Service Commission, and to order the appellee reinstated as Chief of Police and restored to all legal rights lost by his removal.

It is well established in Ohio that the jurisdiction of the Common Pleas Court in appeals from a civil service commission removing a fireman or policeman from office under §486-17a GC (§143.27 R. C.) is special and is limited by the terms of the statute “to determine the sufficiency of the cause of removal. Kearns v. Sherrill, 137 Oh St 468. The power of the court under such jurisdiction is to affirm in toto or reverse in toto. When the latter, its duty is merely to reinstate the officer to his position and restore to him the emoluments of office from the date of his discharge. Hawkins v. City of Steubenville et, 134 Oh St 468. There appears to be no provision of law authorizing the Common Pleas Court in appeals to it by virtue of this statute to remand the cause to the civil service commission for a new trial. We consequently hold that the judgment of the Common Pleas Court in this matter, remanding the cause for retrial to the Civil Service Commission has no sanction in law, is erroneous and must be reversed.

The Common Pleas Court in making the order it did based its conclusions upon a finding that Due Process of Law had not been accorded the Chief of Police in his hearing before the commission. The appellant contends that since a person holding a public office does not have a vested right to same, but rather a right to hold office during good behavior, that such person cannot lay claim to the protection of the constitutional provisions of Due Process with regard to his office. The appellee maintains that he was entitled to the safeguards of Due Process of Law set forth in the provisions of both the Ohio and United States Constitutions in his hearing before the Civil Service Commission. We agree with the appellee. Any hearing involving one’s rights of Whatever nature provided by law must conform to the standards of a fair trial and are subject to the protection of the general rules of fair play which govern society and this is true whether the hearing is before a court of law, an executive or a commission.

While it is true that non-judicial bodies such as commissions are not expected to be held to the same strict conformity to regular rules in the introduction and presentation of evidence as judicial bodies, they, nevertheless, must not disregard fundamentals having to do with the observance of the safeguards provided every person by the constitutional provisions, federal and state, that no person shall be deprived of life, liberty or property without due process of law.

Part of the syllabus in Stuart Jr. v. Palmer, etc. et al, 74 N. Y. 183, reads as follows:

“The constitutional provision declaring that no person shall be deprived of life, liberty or property without ‘due process of law’ is not limited to judicial proceedings, but extends to every proceeding which may interfere with those rights, whether judicial, administrative or executive.”

Just what the expression “Due Process of Law” means, is difficult to define with exactitude. Many eminent jurists, however, have dealt with the question. In the celebrated Dartmouth College case, Webster defined it as follows:

“By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society.”

Another statement reads thus:

“Some legal procedure in which the person proceeded against, if he is to be concluded thereby, shall have an opportunity to defend himself.”

In 35 Abs 97, State, ex Keogh, v. Gilmore, Judge, syl. 4, reads:

“4. Due process of law means the right to be heard.”

While the legislature confined an appeal in these cases to the Common Pleas Court to the determination of the sufficiency of the cause of removal, we believe that every court of law reviewing a proceeding disposing of a substantial right of an individual has the duty to consider and determine whether such person was accorded a hearing conforming to the elemental requirements of Due Process of Law. This concept was well stated by Judge Matthews in the case of Kearns v. Sherrill, 63 Oh Ap 533 on page 541, where he stated:

«* * * We hQjjj that the language of §483-17a GC must be construed to confer upon that court jurisdiction to review the proceedings of the Civil Service Commission to determine whether it had exercised the authority conferred upon it in accordance with the statute and whether Due Process of Law and other constitutional safeguards had been observed, * *

The Supreme Court of Ohio unquestionably had such consideration in mind when it wrote, as follows, in par. 2 of the syllabus of Sorge v. Sutton, 159 Oh St 574:

“2. Under §4S6-17a GC, the ‘appeal’ from a decision of a municipal civil service commission to the court of common pleas, ‘to determine the sufficiency of the cause of removal,’ accorded members of police and fire departments in the classified civil service contemplates only a review of the proceedings before the commission as to their legality and regularity and to determine the sufficiency of the cause of removal and not a trial de novo.” (Emphasis added.)

The able judge who tried this case in common pleas court wrote an opinion which was filed and made a part of the record. In it he made findings of fact and conclusions of law as regards the specific charges brought against plaintiff appellee herein. He found that the record before the Civil Service Commission discloses no competent evidence sufficient to cause the removal of the Chief of Police on all charges except charges three and four. We have read with care the bill of exceptions of the proceedings before the Civil Service Commission and believe that it does not justify a reversal of the holding of the court below with respect to the findings of facts and conclusions of law there indicated. We accordingly affirm his conclusions as to charges Nos. 1, 2, 5, 6, 8, 9 and 10.

Charge No. 3 reads:

“3. In that in the course of a coroner’s inventory had on or about April 20, 1950 of the valuable effects in the home of Lester Hostetler, deceased, a former resident of Mayfield Heights, he, the said Clarence A. Smith, converted to his own use valuable personalty, the property of the estate of said Lester Hostetler, to-wit: one promissory note in the amount of $250.00 which said note was payable to the order of said Lester Hostetler with the maker of said note being one Thomas A. Lanese.”

The answer of the appellee to this charge was as follows:

“I never converted to my own use a promissory note of the estate of Lester Hostetler. On or about April 20, 1950, Mr. J. E. Hostetler, the father of Lester Hostetler, turned over to me a note for $250.00 signed by Patrolman Thomas A. Lanese, and asked me to give this note to Mr. Lanese and tell him to take care of it. 1 did turn this note over tc Patrolman Lanese, as .Mr. J. E. Hostetler had requested, and told Mr Lanese to take care of it. Patrolman Lanese told me that he had paic $125.00 on this note but had no receipt for its payment. I understood that he did take care of his obligation on this note by paying $100.0( to the Estate of Lester Hostetler. As Chief of my department it was customary for me to assist in straightening out any claims against my men. This was not the only time when my assistance was requested ir connection with the debts of Patrolman Thomas A. Lanese.”

Charge No. 4 reads:

“In that on or about April 22, 1950, the said Clarence A. Smitl attempted to obtain $125.00 from a subordinate, to-wit, Patrolman Thomas A. Lanese, in exchange for the promissory note set forth in sub-paragraph 3, which said promissory note said Clarence A. Smith hac converted to his own uses as aforesaid.”

And appellee’s answer to same is:

“I never attempted to obtain $125.00 from Patrolman Thomas A Lanese in exchange for the note referred to as Item 3. This note was never converted to my uses. My possession of it is explained in Item 3.”

The following proceedings during the trial occurred: (Record pages 288 and 289):

“Chief Smith, did you convert to your own use valuable persona, property of the estate of Lester Hostetler, to-wit, one promissory note in the amount of $250.00?

“Mr. Knerly: I object.

“Commissioner Baker: Sustained.

“Mr. McMonagle: (Proffer) The witness, if permitted to answei would have stated that he never did convert to his own use valuable personalty, the property of the estate of said Lester Hostetler, to-wit one promissory note in the amount of $250.00.

“Now, sir, Chief Smith, did you on or about April 22, 1950, or on any date, attempt to obtain $125.00 from Patrolman Thomas A. Lanese in exchange for this promissory note?

“Mr. Knerly: I object to that, too.

“Commissioner Baker: Sustained on the same basis of the previous question.

“Mr. McMonagle (Proffer). The witness, if permitted to answer would have testified that he never did attempt to obtain $125.00 from his subordinate, to-wit, patrolman Thomas A. Lanese, in exchange foi the promissory note.”

On pages 274, 275 and 276, Chief of Police Smith was testifying on direct examination.

“Q. All right. Now, in your taking this note and saying that you would attempt to get it taken care of, was that in accordance with a practice that you followed in the department?

“A. It was.

“Mr. Knerly: Objection and move that the answer be stricken.

“Commissioner Baker: Sustained.

“Mr. McMonagle. (Proffer.) The witness if permitted to answer, would have stated that it was in accordance with an established practice n the department in order to assist in keeping the men in the department from becoming involved by virtue of the debts.

“Q. Have you on any other occasions attempted to facilitate the payment of an indebtedness claimed against Patrolman Lanese?

“Mr. Knerly: Objection.

“Commissioner Baker: Sustained.

“Mr. Monagle. (Proffer.) If the witness were permitted to answer, re would have stated that he had attempted to procure payment on )ther occasions in accordance with the accepted practice in his department.

“Q. And was your handling of this note, in accordance with the iccepted and customary practice you followed in the department in )rder to assist your members?

“Mr. Knerly: Objection.

“Commissioner Baker: Sustained.

“Mr. McMonagle (Proffer): If the witness were permitted to answer, re would have stated that at was in accordance with the accepted practice.”

At the bottom of page 239, and on pages 240, 241 and 242, with rhomas A. Lanese testifying on cross-examination, the following, proreedings were had:

“Q. As a matter of fact, didn’t Chief Smith call you in to see if re couldn’t get you to pay this without garnisheeing your wages?

“Mr. Knerly: I object to this line of questioning, as to being irrelevant. It has nothing to do with the action concerning the note.

“Mr. McMonagle: All right. Our answer before you — with refermce to the note, our answer in these proceedings says this:

“ ‘As Chief of my department, it was customary for me’ — this is rt page 2 of the chief’s answer — ‘This was not the only time my assistmce was requested in connection with the debts of patrolman Lanese.'

“Mr. Knerly: At this time I move that that portion of Chief Smith’s answer be stricken from the record as being irrelevant and havng nothing to do with this note.

“Commissioner Baker: The Commission feels that that has no bearng on the actual charge and should be stricken

“Mr. McMonagle: You mean that the procedure followed by the Shief in the line of the operation of his department has nothing to do with this incident?

“Commissioner Baker: l mean that the reference to other such involvements of Mr. Lanese’s has no bearing on this particular case

“Mr. McMonagle: Exception. (Proffer.) I want the record to =how that if the witness were permitted to answer, he would have stated that the Chief did call him in and requested him to make payments of another debt so that no garnishment may be nad of his wages.”

Due Process requires that a person charged with misconduct of whatever nature or kind in regard to his performance of a public office have the opportunity to be fully heard. The plaintiff appellee as shown above, not only was not allowed to deny under oath the specific charges brought against him, but was prevented from presenting evidence bearing on one of the written affirmative defenses made by him in his answer to the charges, namely, that taking the note of Thomas Lanese was in accordance with an established custom in the police department under which the Chief of Police interceded in matters involving debts of policemen under his command by undertaking to adjust the matter with a party makhig a claim with the view of sparing-embarrassment to the officer, as well as to the department, if these incidents resulted in court action.

The appellee to maintain this indicated defense also presented a witness by the name of John J. Suvak, a Justice of the Peace. The record discloses these proceedings on pages 261, 262 and 263:

“Q. Now, Mr. Suvak, did you contact Chief Smith in an effort to attempt to have him procure the payment of a claim by Dominic Lanese against Thomas A. Lanese?

“Mr. Knerly: Objection.

“Commissioner Baker: Sustained.

“Mr. McMonagle (Proffer): The witness, if permitted to answer, would have stated that he did contact Chief Smith as Chief of the Police Department, in an attempt to ask his assistance in procuring the payment of the indebtedness of Thomas A. Lanese to Dominic Lanese in line with the custom and practice of the Chief of Police which was known to this man.

“Q. Mr. Suvak, did you follow your established practice and the usual practice, as you understood it in the Police Department, in attempting to procure the assistance of Chief Smitn in having Thomas A. Lanese pay an indebtedness due to Dominic Lanese?

“Mr. Knerly: Objection.

“Commissioner Baker: Sustained

“Mr. McMonagle. (Proffer.) The witness, if permitted to answer, would have stated that he was following such practice known to him to be proper.”

This testimony likewise had a direct bearing on the affirmative defense of the Chief of Police as regards the note.

The record discloses that Charges Nos 3 and 4, revolved around Police Officer Thomas A. Lanese. The testimony, .in the main, presented by the City to sustain these charges, emanated essentially from him either by way of direct testimony or testimony of others who related information told them by Thomas Lanese. In resolving this matter, the Commission had the choice of believing Lanese or the Chief of Police. They chose to believe Lanese. In a situation where the testimony of one or the v other of two witnesses becomes critical as to the truth involved, testimony bearing on the motive or credibility of either witness becomes a matter of some importance. The Commission refused to receive testimony bearing directly on these factors with respect to the witnesses ■ indicated above. It even refused to hear testimony involving the Chief of Police of an adjoining municipality and tending to show the motive of Thomas Lanese in testifying against his superior officer as described on pages 27 and 28 of the record.

“Q. Now, sir, you are acquainted with Chief Dixon, are you not?

“A. Yes, I am.

“Q. And he is the Chief of Police of one of the adjoining municipalities here?

“A. That’s correct.

“Q. And you were acquainted with him in November of 1951 were you not?

“A. Yes 1 was.

“Q. You had a conversation with him in about the month of November, 1951, in which you stated that either Smith was going to go, it would be his job or your job, did you not, sir?

“Mr. Knerly: Objection.

“Commissioner Baker: Objection sustained.”

The Common Pleas Court found these irregularities sufficient to declare that the plaintiff appellee herein did not receive a fair hearing before the Civil Service Commission pertaining to Charges Nos. 3 and 4 in contravention of his constitutional rights under the Due Process of Law provisions of both the United States and the Ohio Constitutions We affirm these conclusions. We affirm such conclusions for the reason that the hearing held before the Civil Service Commission with respect to Charges Nos. 3 and 4 denied the appellee the elemental rights guaranteed him under those provisions. We hold further that a hearing in which a party is not accorded the constitutional rights of Due Process of Law is null and void and of no effect. As a consequence, Charges 3 and 4 cannot be the basis for the removal of the Chief of Police by the Civil Service • Commission.

Kessler v. Strecker, 307 U. S. 22, syllabus 5 reads in part:

“* * * an administrative order for deportation of an alien made after fair hearing, based on findings supported by evidence and without error of law is conclusive; .if any of these elements was lacking it is void.”

Also 307 U. S. 22, 34:

“If the hearing was fair, if there was evidence to support the finding of the secretary, and if no error of law was committed, the ruling of the Department must stand and cannot be corrected in judicial proceedings. If, on the other hand, one of the elements mentioned is lacking, the proceeding is void and must be set aside.”

Since we have determined that the hearing in respect to Charges 3 and 4 is null and void and of no effect for the reason that appellee was not afforded due process and further find that the judgment of the common pleas court, when considering the balance of the charges was not sufficient to cause his removal should be affirmed, and since we hold that the Common Pleas Court lacks authority to remand this cause to the Civil Service Commission for retrial, we therefore proceed to enter the judgment which the Common Pleas Court should have made under the circumstances and disaffirm the removal of the Chief of Police by the Civil Service Commission of the City of Mayfield Heights, and order his restoration to all the emoluments of office lost to him, thereby, and remand this cause to the Common Pleas Court to carry this judgment into effect.

Judgment reversed and final judgment for plaintiff appellee. Exceptions. Order see journal.

SKEEL, J, HURD, J, concur.


author: By THE COURT.

text:
    BRUCE, Plaintiff-Appellee, v. BRUCE, Defendant-Appellee, and THE INDUSTRIAL COMMISSION OF OHIO, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5114.
    Decided February 15, 1955.

      John D. Phillips, Columbus, for plaintiff-appellee.
    Gale R. King, Columbus, for defendant-appellee.
    Hon. C. William O’Neill, Attorney General, Paul Tague, Jr., and Blanche E. Krupansky, Assistant Attorneys General, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is an appeal on questions of law from an order of the Common Pleas Court, Division of Domestic Relations, of Franklin County, Ohio.

The plaintiff sued the defendant, Margurite Bruce, for divorce. She cross-petitioned and was awarded a decree together with permanent alimony in the sum of $15.00 per week. She had theretofore been granted temporary alimony which at the time of the entering of the decree had accumulated to the sum of $415.00. At the time that this action was instituted, the cross-petitioner’s husband was in arrears having paid nothing on the alimony orders and had been adjudged to be in contempt. Thereafter, Mrs. Bruce filed a motion consisting of three branches. to make the Industrial Commission of Ohio a party defendant, to order the Commission to withhold one-half the moneys due from the Commission to the plaintiff, Albert J. Bruce, and to order the Commission to pay the money so held to the Cashier’s Office of the Domestic Relations Court of Franklin County, Ohio. This motion was supported by an affidavit. Pursuant to the motion the Court made the order that,

The defendant, the Industrial Commission of Ohio, be made a party defendant, withhold one-half of the plaintiff’s weekly check and pay the same to the Cashier’s Office of this Court until further order of the Court.

The Commission was served with a copy of this order, but was not served with process. Thereafter, the Commission moved to vacate the foregoing entry which motion was overruled and on motion to reconsider the Court made a like order.

Four errors are assigned:

(1) The Court had no jurisdiction over the person of the Industrial Commission of Ohio.

(2) The Court could not make the Industrial Commission of Ohio a party defendant by its order of October 30, 1953.

(3) The court had no jurisdiction to order the Industrial Commission to withhold money due the husband, since the Commission had never received service of process or waived the same.

(4) The decision of the Court is contrary to the Workmen’s Compensation Law and specifically §4123.67 R. C. (§1465-88 GC).

Without comment, we hold against the first and second assignments of error. However, in doing so, we do not want to be understood as saying that the Industrial Commission was properly before the Court as a party defendant.

Upon the third error assigned, without extended citation of authority, we quote briefly from 30 O. Jur. 791 and 792 which, in our judgment, properly states the law controlling:

“In any case where a new party is to be brought in, process should issue against him, requiring him to answer.

When those ‘who have sufficient interest in the result are once brought in as new parties to a suit, the act of the court is not to be regarded as a matter of form only. If they have rights, their status as parties entitles them to set up those rights by cross-petition, answer, or other pleadings. They thus become litigants in the cause, and are to be treated accordingly.”

It will be noted that the defendant Commission was ordered to pay money into Court representative of one-half of regular payments awarded to plaintiff by the Commission If the Commission was a proper party defendant, obviously there was a substantial question as to the right of the Court to require it to pay into Court any part of the award theretofore made to plaintiff and it was its obligation to set up any legal defense to such an order by answer. Had the Commission complied with the order, not having been served with process and not availing itself of the right of answer and thereafter it was found that it had illegally paid said sum into Court, it might again be required to pay that amount.

The third assignment of error is well made because without respect to the authority of the Court to make the order had the Commission been properly brought into Court, it was not before the Court in such status that an order could be made against it.

The most substantial question is raised by the fourth assignment of error.

Appellee contends that by the express language of §4123.67 R. C., the wife of plaintiff is a dependent and is included in the class to whom payment may be made from compensation theretofore awarded to an injuréd employee. This position is strengthened by the citations of Waldron v. Waldron, No. 67094, Franklin County Domestic Relations Division, an unreported case which we do not have before us. Chapman v. Chapman, 29 N. E. 273, attached to appellee’s brief, Oden v. Oden, an opinion on an appeal from Superior Court, Pima County, Arizona, and Hilmantel v. Hilmantel, 282 N. Y. 918, which opinion is also attached to appellee’s brief. We have also been favored with the written opinion of the Judge of the Domestic Relations Branch of the Common Pleas Court, wherein he adopts the theory urged by appellee.

Sec. 4123.67 R. C., formerly §1465-88 GC, was created at the same time as the body of statutes in the Workmen’s Compensation Act. 103 O. L. 72. It must be assumed that the use of the words “employees and dependents”, unless there is something to differentiate them, has the same meaning as where used in other sections of the Act. Rhodes v. Weldy, 46 Oh St 234; Schuholz v. Walker, 111 Oh St 308.

The Industrial Commission is a creature of statute under Constitutional authorization and its power and the extent thereof, are defined by statute. Several provisions of the Code are applicable to the jurisdiction of the Commission to make disbursements from the State Insurance Fund, the beneficiaries to whom awards may be made and the limitations on the authority of the Commission to expend the funds.

Let us look at some of these sections of the Code. Sec. 4123.46 R. C. controls the disbursement of the Insurance Fund.

“The Industrial Commission shall disburse the State Insurance Fund to employees of employer who has paid into said fund the premiums applicable to the classes to which they belong when such employees have been injured in the course of their- employment, * * *, or to the dependents of such employees in case death has ensued.”

Sec. 4123.51 R. C. defining jurisdiction of the Commission and making provision for rehearing and right of appeal:

“The Industrial Commission shall have full power and authority to hear and determine all questions within its jurisdiction, and its decisions thereon are final, except as provided in this section. * * * In all claims for compensation on account of injury, or death resulting therefrom, if the Commission denies the right of the claimant to receive compensation, or to continue to receive compensation, the order of the Commission shall state the grounds on which the claim was denied.”

And §4123.68 R. C. Schedule of compensable occupational diseases, etc.:

“Every employee who is disabled because of the contraction of an occupational disease as provided in this section, or the dependent of an employee whose death is caused by an occupational disease as provided in this section, is entitled to the compensation provided, * * *” etc.

(All emphasis ours)

It seems clear from the foregoing quoted parts of the applicable sections of the Code that there are but two classes known to the Act to which payments may be made from the Insurance Fund, namely, injured employees or their dependents if the employees die as the result of the injury by reason of which compensation or benefits are awarded. Dependents, as such, are not known as- claimants or may not be awarded or receive any portion of the Insurance Fund unless and until the employee from whom they claim has died.

See also, §4123.59 R. C. and §4123.60 R. C.

Sec. 4123.67 R. C. which controls the right to make the order which is considered on this appeal provides:

“Compensation before payment shall be exempt from all claims of creditors and from any attachment or execution, and shall be paid only to the employees or their dependents.”

(Emphasis ours.)

It is our judgment that the terms “employees or their dependents” are used in the same sense and with the same meaning as in the sections from which we have quoted. “Dependents” is limited to the concept of the word as defined in the Workmen’s Compensation Act, and does not include those who in law might be classified as dependents of a living employee to whom an award has been made by the Industrial Commission. Dependents of an employee in life may be other than those who would be so classified upon his death. Those in this latter class are the only dependents to whom the Commission may make payment either upon an original award (§§4123.46, 4123.51 R. C.) or upon the death of an employee to whom an award has been made. Sec. 4123.59 R. C.

This Court stated in the fifth headnote of Pellegrino v. Pellegrino, 7 O. O. 107, that,

“The trial court has no jurisdiction to make any order for payment of alimony effective against the Industrial Commission.”

This pronouncement was necessary in the case because of our statutory obligation to pass upon all errors assigned. In our judgment the same thing has been said by the Supreme Court in the third paragraph of the syllabus of State, ex Caddis v. Industrial Commission, 133 Oh St 553:

“Under the Constitution and laws enacted pursuant thereto, compensation is payable to two classes: To the living employee or to his dependents after death. * * *”

Approving and following Bozzelli v. Industrial Commission, 122 Oh St 201.

We are also cited to Chapman v. Chapman, et al., 29 O. O. 273. The rationale of this opinion is that dependents, as carried in §1465-88 GC, meant dependents at law and was not restricted to dependents to whom an award could be made by the Commission. To arrive at the conclusion reached it is necessary to read §1465-88 GC apart from the other provisions of the Workmen’s Compensation Act.

We also have examined the cited case of Oden v. Oden from Arizona. This is a strong opinion, but an examination of the Workmen’s Compensation Act of Arizona discloses that there is a difference in the controlling section there and in Ohio. Section 1442 Arizona Workmen’s Compensation Act provides:

“Compensation whether determined or not, shall not prior to the delivery of the warrant therefor, be assignable; it shall be exempt from attachment, garnishment and execution and shall not pass to another person by operation of law; * *

The provision against payment prior to the delivery of the warrant has application only to claims for compensation awarded that are assigned and is not as broad as our statute which is that compensation shall be paid only to the employees or their dependents. The New York case, Hilmantel v. Hilmantel, cites Section 33 of the Workmen’s Compensation Law of New York which reads identically as ours. This opinion is in direct conflict with the conclusion which we reach in this case.

We recognize the strength of the claim of the appellee here. She is entitled not only to sympathy but that the order here appealed from be supported if upon a.ny possible interpretation of the Act, it can be done. We regret that we cannot interpret the Act in her favor. If she and others in like situation are to be protected, in our opinion, it can be done only by an amendment to the Workmen’s Compensation Act.

The judgment will be reversed and judgment entered for appellant, the Industrial Commission of Ohio, and the cause remanded.

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


author: By SKEEL, J:

text:
    STATE, Plaintiff-Appellee, v. BEDNARIK, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3463.
    Decided December 20, 1954.

      William Á. Ambrose, Mahoning County Prosecutor, H. H. Hull, Asst. County Prosecutor, Youngstown, for plaintiff-appellee.
    Herbert, Tuttle, Applegate & Britt, Columbus, for defendant-appellant.
    (HURD, PJ, KOVACHY, J, SKEEL, J, of the 8th District sitting by designation.)
   OPINION

By SKEEL, J:

This cause is now before this Court on a motion of the defendant, Bednarik, for leave to appeal his cause to this court on questions of law from a verdict and judgment of guilty entered by the Common Pleas Court of Mahoning County after trial on a charge of murder in the first degree. The jury trying the cause recommended mercy and the defendant is now confined in the penitentiary under a life sentence.

The jury returned its verdict on March 18, 1947. No appeal was taken from the judgment and sentence within the time provided by §2953.05 R. C., but since that time this defendant has, without the aid of counsel, filed applications for leave to appeal, all of which have been overruled.

The “Petition for Leave to Appeal” now before the Court was filed January 22, 1954. The defendant bases his right to have his conviction reviewed on a claimed violation of “Due Process of Law” in depriving him of his liberty in the following particulars:

1. . . . That the convicting court erred in admitting as properly obtained evidence an illegally obtained and concealed confession to murder in the first degree.

2. . . . that a prompt hearing and legal counsel was denied the petitioner at the time of his arrest.

3. . . . that the convicting court erred in its appointment of incompetent counsel for petitioner’s defense.

4. . . . that the verdict was manifestly against the weight of the evidence and contrary to law.

In addition to the foregoing claims, the defendant upon hearing, with the aid of counsel, presented the question of the refusal of the court to instruct the jury on the included offenses of murder in the second degree and manslaughter and also the refusal to furnish the jury with forms of verdict agreeable to such included offenses.

The record before us, by agreement of counsel, consists of a complete transcript of the evidence, the exhibits and the charge of the court, as well as a transcript of the docket entries.

The charge against the defendant and one John Anthony Pruce (they being jointly indicted) is that he purposely killed John Dalton while perpetrating or attempting to perpetrate a robbery.

The evidence discloses in part that on the night or early evening (6:30 to 7:30 P. M.) of November 30, 1947, he had been drinking with his co-defendant with or at the place of a woman named Goldie Sabor. They left her place or company and drove in Pruce’s automobile to “Surack’s” (where beer and wine was dispensed either by the drink or in the bottles for use away from the premises) to buy a bottle of wine. This defendant went in to make the purchase and while there saw the deceased, as this defendant described it, “celebrating again”. According to the defendant it was suggested a short time later, after they had driven away from “Surack’s” place, that they take the deceased home, but on returning to the cafe to get him they found he was not there. The defendants testified that they then decided to go to the home of the deceased to finish off the bottle of wine which by that time had been partly consumed, and did in fact go there for that purpose. The deceased’s home was in an old street car with a shed attached. It was the State’s claim that before going to decedent’s home, they entered into a conspiracy to rob the deceased while he was walking home, but because he had reached home before they could carry out such unlawful purpose they entered his home to complete such unlawful conspiracy. The evidence which supports this claim is contained in the alleged signed confessions of the defendants. The evidence of the defendants further tends to show that when the defendants knocked at deceased’s door they were admitted by the deceased and that thereafter they, with the deceased, proceeded to drink from a common glass the wine brought in by the defendants. Thereafter more wine was needed and the deceased contributed money toward its purchase. Both defendants testified that some discussion took place as to how much money deceased had and after putting his bankbooks on the table he reached for a box back of his bed and took out a gun. Defendants then testified that Pruce grabbed for the gun and took it away from Dalton and that “John (Pruce) mentioned to him, why did you want to do that John, we are here drinking together, all we did was ask you if you wanted to buy another bottle of wine * * The evidence then discloses that this defendant slapped the deceased a few times and then wiped the blood from his face. He then testified that he went outside for a minute or two for a personal matter and as he was returning he heard a shot. He then testified:

“. . .1 ask John, ‘Jesus .Christ, what happened?’

And he said, ‘Honest to God, Joe, I didn’t mean it, he tried to grab the gun away from me; ‘ " *.’ ”

The defendant, Pruce, testified after telling how he took the gun away from Dalton, as follows:

“Well, at that time, as I was saying, Joe was out, he (Dalton) wanted his gun back and I wouldn’t give it back and he jerked for the gun and it happened so fast that all I remember, he grabbed the gun and grabbed part of my hand with both of his hands, part of the gun and I, by instinct, my other hand followed up the way he grabbed. I tried to grab and the way 1 pulled it back Mr. Dalton fell backwards and I heard a shot and I fell this way, the way I jerked to get the gun back. 1 fell down toward the other end of the bed * * “Well, I looked at him; Joe happened to be coming right in. Joe was in the doorway, I believe, when the shot went off, and I say, ‘O, my God, Mr. Dalton;’ Joe said, T guess he is shot or something like,’ I called out his name too in that manner.”

Neither defendant deviated from this account of the shooting under cross-examination and the alleged confessions which defendant claims not to have been correctly transcribed and unlawfully induced, gives no help to the State’s case on its claim of a “purposeful” killing as alleged in the indictment.

It should also be noted that the only suggestions that the defendant’s reason for going to Dalton’s home was to rob him, is contained in the alleged confessions. Both defendants deny making any such statements and the said confessions in describing what occurred when the shot was discharged that killed Dalton gives little or no support to the State’s claim that a robbery was in progress or being attempted.

The court’s charge on the elements of the crime was as follows:

“This indictment is based upon the sections of our law which in part reads; ‘Whoever purposely and either of deliberate and premeditated malice or in perpetrating or attempting to perpretate a robbery, kills another is guilty of murder in the first degree.’ The defendants here are not charged with first degree murder by purposely and of deliberate and premeditated malice killing John Dalton. They, and each of them, are charged in this indictment with first degree murder by purposely killing John Dalton while attempting to perpetrate a robbery. Deliberate and premeditated malice in the killing are not elements of the crime charged in this indictment. In the case of homicide which occurs in the perpetration or attempt to perpetrate any rape, arson, robbery or burglary, the enormity and turpitude of the criminal act in which the offender is engaged at the time supplies the place of the deliberate and premeditated malice, made an element of the first class of homicide defined by the statute as first degree murder.

There are, in the class of homicide charged here, two major elements which are inseparable and essential to the crime of purposely killing John Dalton while attempting to perpetrate a robbery; they are, first, that the deceased John Dalton was purposely killed, and second, that he was killed during an attempt to perpetrate a robbery. Neither of these elements standing alone will support the charge of murder in the first degree. In this case the burden is on the state to prove both these elements beyond a reasonable doubt. They are charged with purposely killing John Dalton in the attempt to perpetrate a robbery.”

At the conclusion of the charge, counsel for both defendants requested that the court include in its instructions a charge on second degree murder, manslaughter and assault and battery, and to furnish verdicts “covering these crimes”. This request was refused by the court and the case submitted to the jury on the crime charged in the indictment without submitting the included offenses.

This action of the court in refusing to charge on the defendants’ theory of the case, there being evidence to support such claim, deprived this defendant of substantial rights to which he was clearíy entitled under the law of this State.

The Supreme Court, in the case of Freeman v. Stone, 119 Oh St 250, had the identical question for consideration. The defendant was charged with murder in the first degree in purposely killing a police officer while acting in the discharge of his duty under the provisions of §2901.04 JR. C. The defendant’s theory of the death was that the shot which killed the officer was discharged by accident. The court refused to charge on the included offenses. In reversing the trial court, the Supreme Court said:

“1. Where a defendant is indicted and tried for ‘purposely and wilfully’ killing an officer under §12402-1 GC, and he offers testimony tending to prove that the killing was not done purposely or wilfully, but in a scuffle and unintentionally, it is the duty of the court to charge a lesser degree than murder in the first degree; if such testimony tends to prove that such killing, although unintentional, was caused by the defendant while resisting arrest, the court should charge the degree of manslaughter.”

This case was followed in the cases of: Glassock v. State, 125 Oh St 75, Malone v. State, 130 Oh St 443 at page 449.

In the case of State v. Cochrane, 151 Oh St 128, the Supreme court said in the second paragraph of the syllabus, in dealing with this subject:

“If, in the trial on an indictment for murder it is possible under the evidence to acquit the defendant of murder in the first degree, of murder in the second degree, and of manslaughter because the evidence fails to establish beyond a reasonable doubt a causal connection between the criminal agency and the cause of death, or because the evidence fails to establish any other esential element of such offenses, it is competent for the jury where the evidence warrants it, to find the defendant guilty of assault and battery only, and under such circumstances it is error to the prejudice of the defendant to refuse a request to charge on the lesser offense of assault and battery.”

And again at page 131 the court said:

“In the case of Marts v. State 26 Oh St 162, this court held:

‘4. On the trial of an indictment for murder it is competent for the jury, where the evidence justifies it, to find the defendant guilty of an assault and battery only, and it is error to the prejudice of the defendant to instruct the jury otherwise.’ Again in the case of Windle v. State, 102 Oh St 439, 132 N. E. 22, this court held:

‘An indictment charging, in separate counts, shooting with intent to kill, and shooting with intent to wound, includes the lesser offenses of assault and battery, and assault, and where, upon trial, the evidence tends to support such lesser offense or offenses, it is the duty of the court to charge the jury with reference to such lesser offense or offenses (State v. McCoy 88 Oh St 447, modified).’ See, also, Freeman v. State, 119 Oh St 250, 163 N. E. 202. In the opinion of this court, the refusal of the trial court to charge on the subject of assault and battery was prejudicial error.”

The duty of the court to charge on the question of an accidental discharge of a firearm thereby causing death, or the conduct of the deceased being the proximate cause of its discharge, is here presented. The defendant, Pruce, testified that he took the gun away from the deceased in self-defense, which he would have had a lawful right to do if he was acting in fear of death or great bodily harm and was himself not the aggressor and not engaged in unlawful conduct toward the deceased. It is his version of the killing that the deceased caused the gun to be discharged in struggling to retake possession of it. This question as well as the law applicable to the included offenses of murder in the second degree and manslaughter should have been submitted to the consideration of the jury.

It remains to consider the question of the duty of this court in passing on the defendant’s application for leave to appeal.

In the case of State ex v. Todaro, 92 Oh Ap 247, the right to appeal was requested because the appellant (who had been found guilty of contributing to the delinquency of a minor) claimed that:

1. The affidavit did not charge an offense.

2. No proof that offense was committed in Ottawa County.

3. Verdict against weight of the evidence.

The court said on page 284:

“Under the circumstances the application for leave to appeal does not appear to be frivolous or a sham and we find good cause shown and the application is allowed.”

The syllabus of the case provides:

“Upon a motion for leave to appeal from a sentence imposed by the Juvenile Court, good cause is shown as that term is employed in §1839-51 GC, when a substantial question relating to the trial, conviction and sentence of the defendant is raised incident to the appeal.”

Also, in the case of State v. McGahan, 86 Oh Ap 283, the second and third paragraphs of the syllabus provide:

“2. In determining whether leave to appeal shall be granted or refused, the court is required to exercise sound discretion.

3. Leave to appeal should be granted only where a refusal of such leave might result in a miscarriage of justice.”

The failure of the court in the instant case to charge on the included offenses of murder in the second degree and manslaughter where the evidence was such as to require such instructions be given is a circumstance which demands that the defendant be permitted to have his case reviewed in this court for the reason that the “refusal of such leave might result in a miscarriage of justice.”

The defendant is therefore granted leave to appeal under the provisions of §2953.05 R. C., and may file his bill of exceptions within thirty days from the date of the journalization of this order under the provisions Of §2945.65 R. C.

The County Prosecutor has, by brief, presented the question of the failure of the defendant to file a notice of appeal in the trial court and a copy thereof in the Court of Appeals with the filing of his (“Petition”) —Motion for Leave to Appeal, here being considered.

Under the provisions of §2953.05 R. C. the filing of such notice was a necessary procedural step in seeking leave to appeal. State v. Nickles, 159 Oh St 353. The defendant failed to file such notice, or notice to the prosecutor at the time he filed his motion for leave to appeal. Since counsel cannot agree on a stipulation to correct the record, this court grants defendant leave to amend his motion for leave to appeal by complying with §§2953.05 and 2953.06 R. C., and when completed then the order herein provided for may be journalized.

HURD, PJ, KOVACHY, J, concur.


text:
    STATE, Plaintiff-Appellee, v. ALEXANDER et, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2298.
    Decided December 28, 1954.

      Mathias H. Heck, Pros. Atty., Fred M. Kerr, Walter A- Porter, Asst. Pros. Attys., Dayton, for plaintiff-appellee.
    Lloyd H. O’Hara, Dayton, for defendant-appellant, Curtis Alexander.
    Albert H. Scharrer, Dayton, for defendant-appellant, Lawrence Austin Dukes.
   OPINION

By THE COURT:

This is a law appeal from a judgment of the Common Pleas Court rendered upon the verdict of a jury finding the defendants guilty on the charge of first degree manslaughter.

Briefly, the pertinent facts disclose that on the night of October 16, 1953, at about 10:00 o’clock, the defendant, Curtis Alexander, came to his home and found a person unknown to him on his premises and throwing a flashlight on the house. This person turned out later to be Dr. Charles R. Price, a practicing physician in the City of Dayton, Ohio. No witnesses were present at this time, so we have only the testimony of the defendant, Alexander, as to what occurred when he arrived at his home. He testified that in attempting to learn the identity of the doctor he was attacked by him and that a fight ensued, after which the doctor escaped to his automobile parked at the curb and drove away. Alexander was then joined by the defendant, Dukes, and both pursued Dr. Price in Alexander’s automobile. When the doctor parked his car in front of his office the defendants approached him in the street, where the fight was renewed. As a result of the injuries received in these altercations Dr. Price died several days later.

The trial consumed approximately two weeks; hence the record is voluminous, and it would serve no useful purpose to cite in detail all the evidence presented.

The first error assigned is that the judgment is contrary to the weight of the evidence as to the defendant Dukes. The evidence is conclusive that this defendant took no part in the first encounter, but there is a conflict in thé evidence as to whether or not he kicked the doctor while he was lying prostrate on the ground. This was a factual question solely for the determination of the jury. Our review of the testimony discloses that the evidence is quite substantial to the effect that Dukes kicked the doctor numerous times while he was lying helpless on the ground, and called him vulgar names. There was a definite conflict in the evidence on this point; hence it may not be said that the verdict is against the manifest weight of the evidence* as to this defendant.

Assignments 2 to 8, inclusive, all relate to alleged errors in the admission and rejection of evidence, most of which pertained to collateral matters. Much of this was immaterial and should not have been admitted, but even so it does not affirmatively appear on the record that it was or may have been prejudicial. Unless it so appears the conviction will not be reversed in any court. Sec. 2945.83 R. C.; State v. Hickman, 77 Oh Ap 479; State v. Farmer, 90 Oh Ap 49; Makley v. State, 49 Oh Ap 359.

The ninth assignment alleges that the court failed to charge on much of the material contained in the 16 special charges which the appellants requested to be given before argument. Counsel admits that special charges in a criminal case need not be given when the law applicable contained in the same is adequately covered in the general charge. We agree with this general proposition of law and our inquiry shall, therefore, be limited to the question of the adequacy and correctness of the general charge. We have carefully examined the special charges submitted and find that the substance of many of them was given. The appellant, Alexander, makes a specific complaint that the court failed to charge on the law as set forth in the eighth special charge, which is as follows;

“The court charges you as the law in this case that it is lawfud for a person to follow another.”

This charge was not complete, for it makes no mention of the intent of the pursuer, which is a most vital element in determining the legality of the pursuit.

The court charged fully on all of the facts which may be considered by the jury in determining whether or not the acts complained of were committed in self defense; hence this assignment of error is not well taken.

The court charged adequately on the subject matter contained in special charges 14, 15 and 16, and failure to give them as submitted was not prejudicial error.

No other omissions in the charge were called to the attention of the court after giving the general charge and any further omissions would not constitute prejudicial error. See State v. Tudor, 154 Oh St 249.

We find none of the exceptions to the general charge well taken when consideration is given to the charge in its entirety. The court’s charge covered some thirty pages of the bill of exceptions, and correctly explained all of the legal principles applicable to the issues presented. Finding no error in the record, the judgment will be affirmed.

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