author: By WATTERS, J.

text:
    GRIFFIN, Plaintiff-Appellant, v. RENKERT et al, Defendants-Appellees.
    Common Pleas Court, Summit County.
    No. 180351.
    Decided March 31, 1954.

      Paul Weick, Kenneth Mason, Akron, for plaintiff-appellant.
    Edward Erickson, Law Director, Akron, for defendants-appellees.
   OPINION

By WATTERS, J.

This matter is before the court upon an appeal by the appellant, John Griffin, an Akron City police officer, who was removed in early March, 1951, and which removal was affirmed by the Municipal Civil Service Commission, all under old §486-17a GC.

The appeal, of course, is upon the record and testimony before the Commission, and no trial de novo was had where evidence or further evidence was taken, as the Supreme Court finally determined, while this case has been pending, that no trial de novo can be had.

Until the decision of Sorge v. Sutton (1953), 159 Oh St 574, that question of procedure was in a state of confusion.

The mayor, who was also the safety director, charged the officer with some six or seven violations in great detail, involving dishonesty, failure of good behavior, insubordination, neglect of duty, violation of Civil Service Regulations, malfeasance, and failure to obey the police regulations.

But all charges grew out of the incident that the court will set forth in detail. Up to that time it is shown by the uncontradicted evidence, and conceded that the officer had been on the police force for nineteen years and eight months and had an excellent character and service record. Nothing to the contrary was claimed or even hinted at nor can it be inferred. Also his right to retire on pension was but a few years distant.

The record of the evidence shows that on March 2, 1951, one Mose Avery pleaded guilty to two charges, to-wit, speeding and possession of lottery slips (number tickets). He was sentenced by Judge Zook of the Municipal Court to five days and costs on the former, and fifteen days and $150.00 fine and costs on the latter charge, the time part to run concurrently or together in the County Jail.

At that time the evidence shows that his counsel moved orally for a modification of said sentence requesting that it be cut down or at least the defendant would be released during certain hours so he could carry on his business as a pool room operator.

The judge took said motion under advisement for future ruling.

The evidence showed that over the years from 1937 the said Mose Avery had been convicted of possession of lottery tickets or like misdemeanors upwards of seventeen times, but had never been sentenced to serve time except on a few occasions of not more than three days (See City’s Exhibit B), nor had he been compelled to pay any considerable fine.

This time he got-fifteen days and $150.00 in fine. The evidence does not show that he was “hot” as the Commission found or a “big shot” in the numbers operations. His past sentences would show he was a “small fry” writer.

On the night of said day, to-wit, March 2, 1951, Officer Griffin received a phone call from someone that Mose Avery wanted to see him, and Griffin, who was then a member of the detective force assigned to the subversive squad, which investigated Communism and like matters, went to see him in jail.

Mose Avery asked Griffin to see what he could do for him, whereupon Griffin, who testified he had used Avery in the past in detective work for information and tips, said he would try to help him if Avery, who was active in certain colored circles, would aid him in his subversive work in checking Communism among such group.

Following that, the next day, the officer went to Judge Zook’s chambers and, according to Judge Zook’s testimony, informed the judge that he believed Avery could be of assistance to him in his work on the subversive squad in checking Communistic activity and asked the court to release him during certain hours for said purposes. (See Judge Zook’s testimony on pages 2 & 3, etc., of the record.)

Griffin also claims he told the Judge of Avery’s past assistance to him as an informer or “stool pigeon” so-called in his work as a detective. There is no doubt that he did because Sgt. Jack Carlton, Griffin’s superior, who went along on the March 6th or second visit to the Judge, says in his report to the Chief that he heard Griffin at that time so tell the judge and that he, Carlton, knew Avery had been helpful in said respects to Griffin in the past, and that he, Carlton, so informed the judge. He also stated in his report that he knew Avery had asked Griffin to help him.

The Judge in his report to the Mayor (see his letter, Pros. Exhibit A) says that he did not remember Griffin saying anything about Avery’s past aid as a stool pigeon, but says he interpreted Sgt. Carlton’s presence with Griffin as his joinder in the request for modification of Avery’s sentence. That was natural as Sgt. Carlton was Griffin’s superior officer and knew what the purpose of the second visit was without question in his own admission in his report to Chief Lynett.

In his letter to the Mayor, Judge Zook recognized the necessity and practice in detective work of working with so-called stool pigeons and informers when he wrote:—

“In fairness to the officers, however, I should remind you that detective work must frequently be carried on through stool pigeons: that such persons usually are not admirable characters and .will not work through patriotic motives, and that since our police department is seldom in a position to employ such persons for hire they must secure their help by doing such favors as may from time to time be in their power. I have in the past attempted to co-operate with the police department along these lines and shall do so again when it seems to me to be proper.”

See also The New Century Dictionary, 1927, distributed by Collier & Son, New York City, where the term “stool pigeon” is defined as follows:—

“One who acts as a spy for the police.”

In this court’s opinion, Judge Zook’s statement to the Mayor was a frank and candid recognition of the situation as he knows it to be from his many years of experience on the Municipal Court.

On the first visit to the judge, he and the judge went over to the clerk’s office to see the arrest tickets and journal entries of the cases, and while over there ran into the Beacon Journal reporter who was informed that it was under contemplation to let Avery out to help Griffin on the subversive squad and that he had helped Griffin in his work as a detective. Both Griffin and the judge so testify. (See the record, pages 15 and 16 of Judge Zook’s testimony.)

The reporter then said something to the effect that he would have to inform his City Editor, whereupon Griffin told the judge that publicity would destroy Avery’s value and to leave him in. Thereupon the Judge informed Griffin to see him in five days and he would let him know.

It is obvious there was no attempt at secrecy, and it is obvious the judge considered it a routine matter and not unusual, and it had been discussed freely with the reporter.

Thereafter on March 6, 1951, Griffin, joined later by his superior officer, Sgt. Carlton, appeared again before the Judge in chambers in the presence also of the Police Prosecutor who was there on other matters.

At that time there was further conversation about the release of Avery, part of which has been related. The Judge called Avery’s counsel and asked him if it was all right to release Avery.

Thereupon the court called an employee in the Clerk’s office and dictated the journal entry of release and instructed her to sign his name thereto which is as follows:—

“The motion for a new trial and modification herein is heard, and said sentence is modified and defendant is ordered to pay a fine of $150.00 and costs in the amount of $6.50 and serve five days in the Summit County Jail.

“It appearing that the defendant has now served said five days in the Summit County Jail, it is ordered that he be released from further custody upon payment of said fine and costs.”

Thereafter Griffin secured said entry and he and his superior officer, Sgt. Carlton, went to the County Jail where Avery was released.

In other words, the court had by the record sustained Avery’s counsel’s motion for modification of sentence, and the defendant was released.

The court had had time during the interim of the first contact with Griffin to consider the matter. He had the opportunity to contact the police prosecutor, who was actually present on other matters when Griffin and Carlton were present in his office on said March 6, 1951, before the release of Avery.

It is complained that Griffin violated Rule 26 — Section 22, on page 78 of the Police Rules in Evidence.

In the court’s opinion this rule applies to an officer who is involved in the arrest of the accused and is instrumental in bringing him before the court. Attention is called to the words “for any criminal or person who has suffered by his act,” which means the officer’s act.

Attention is also called to the end of said rule, to-wit, “any member having knowledge concerning such compromise or arrangement, and failing to inform his superior officer thereof, shall be subject to charges.”

Sgt. Carlton knew what was going on and there is no claim he notified his superior officer and no charge was filed against him. This shows the court Sgt. Carlton did not consider that anything irregular was going on, and he was Griffin’s superior officer, and an officer of excellent standing.

Many rules of a Police Department are ineffective on this subject. See 123 Oh St 456, State ex rel Christian v. Barry.

The next rule claimed violated by Griffin is Police Rule 40, Section 43, page 120, as follows:

“Officers are forbidden to appeal to the court or its attaches for leniency in any case pending before the court, except by express permission of the prosecutor and then only in open court.” (See City’s Exhibit C.)

Technically, under this rule Griffin should probably have consulted the police prosecutor and'asked his permission, but he went directly to the judge who had the motion for modification under advisement, and who had the full opportunity to consult the prosecutor if he deemed it necessary. In fact, as stated before, the police prosecutor was present while Griffin and Sgt. Carlton were in the court’s chamber just before the release of Avery, but he was not consulted by the court.

In good faith Griffin went to the court in control of the matter. The court had full opportunity in the interim to check the matter with the police prosecutor and other authorities but chose otherwise, and in his best and sound judgment and discretion did what he did, and in this court’s opinion his conduct was proper and legal.

He relied on Officer Griffin and what he and his superior officer, Sgt. Carlton, had told him, and followed the usual routine procedure in such matters.

It is interesting to note that Griffin offered to tell the Commission in private the reason he thought Avery could aid him in the work on the subversive squad, but the Commission chose not to hear it.

And then the Commission held in its finding that: — “Also no specific evidence was offered in open hearing to substantiate the belief that Mose Avery was in position to supply useful information with respect to subversive activity in the Wooster Avenue area.”

The Commission’s ruling in refusing to hear this evidence was probably due to the general belief at that time that on appeal to the Common Pleas Court the trial would proceed De Novo, that is, where all the evidence would again be presented anew together with any further evidence. But in the meantime the Supreme Court ruled that the appeal should be tried on the evidence below as is.

But having refused to hear the evidence offered by Griffin, the Commission was in error when it found toward the end of its decision as follows: — “These facts in our judgment strongly convince us that the officer’s actions were impelled by certain urgent and compelling motives other than those related.”

In Hawkins v. Steubenville, 135 Oh St 468, the court held that the Common Pleas Court on appeal from the Civil Service Commission’s affirmance of the removal of the officer under §486-17a GC, is confined to the rendition of a judgment of affirmance or disaffirmance in toto,' and the court is without authority to modify the same.

This case was followed by Kearns v. Sherill, 137 Oh St 468, which approved the latter case and held that the jurisdiction of the Common Pleas Court (and, of course, any higher court) is limited to determining the sufficiency of the cause of removal.

To the same effect see 159 Oh St 574, which decided the method of procedure in the Common Pleas Court, as explained before herein, the doubt concerning which accounts for the delay on the hearing in this court.

Referring back to the case of Hawkins v. Steubenville, 134 Oh St 468, on pages 472 and 473, the Supreme Court definitely stated its interpretation of the law of such cases as the one at bar as follows:—

“The question now arising is whether the court was bound to affirm the decision of the civil service commission in view of the court’s finding that appellee was proven guilty of the several charges preferred against him, namely, that he had been guilty of discourteous treatment of the public, neglect of duty and insubordination.
“Sec. 486-17a GC, provides that any officer, employee or subordinate in the classified civil service of the state, the counties, cities and school districts thereof, holding a position under the provisions of the civil service act ‘may be removed for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of the provisions of this act or the rules of the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance or nonfeasance in office.’.
“It will be noted that the statute employs the words ‘may be removed.’ Under this language, removal by the director of public safety, or by the civil service commission, of a police officer upon a finding of guilty of the offenses listed in the statute, is not made mandatory. By the same token, if the Court of Common Pleas finds that the officer was guilty of one or more of the statutory charges preferred against him, but is of the opinion that there is not sufficient cause for removal, it is not mandatory upon the court to affirm the commission.
“That part of the journal entry which finds ‘that there is not sufficient cause for the removal of William M. Hawkins from his position as patrolman in the police department of the city of Steubenville’ falls within the scope and extent of the court’s jurisdiction and states the judgment of the court, which is one of disaffirmance. However, that part of the journal entry in which the court finds that disciplinary punishment should be adjudged, and proceeds to impose the punishment of suspension, does not fall within the court’s jurisdiction, is mere opinion, and is not controlling.
“We find no error in the rendition of the judgment.” (Emphasis by the court.)

Attention is specifically called to the cross examination of Officer Griffin. It was highly inflammatory, full of innuendoes and argument and could have no other effect than to prejudice the Commission adversely.

The matter was blown up beyond all proportions to the evidence and the result was inevitable.

In the opinion of this court, the evidence wholly failed to substantiate the charges and there was not sufficient cause for the removal and Officer Griffin is entitled to be reinstated to his position as a police officer according to law, and it is so ordered.

An entry may be drawn accordingly with exceptions and full rights of appeal.


source: Caselaw Access Project

author: Per CURIAM.

license: Public Domain

text:
    MORGAN, Jr., Plaintiff-Appellee, v. ESPOSITO, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3552.
    Decided March 27, 1953.
    Eldon S. Wright, Youngstown, for plaintiff-appellee.
    W. L. Countryman, Youngstown, for defendant-appellant.
   OPINION

Per CURIAM.

Defendant appealed to this court on questions of law from a judgment of the Municipal Court of Youngstown entered upon a finding for plaintiff, made by a judge of that court sitting as a jury by agreement of counsel, in plaintiff’s action to recover from defendant for damages to his automobile sustained as the result of the alleged negligence of defendant in operating his automobile into collision with plaintiff’s parked unlighted automobile.

About 7:30 o’clock on the night of November 21, 1951, during the season of darkness, plaintiff’s unlighted automobile was parked on the southerly side of Midlothian Boulevard, which portion thereof is situated in Boardman Township, and the northerly portion of which is situated in the corporate limits of the city of Youngstown, Mahoning county.

Defendant here, claims that as his automobile, which he was operating in an easterly direction on the southerly side of Midlothian Boulevard, a much travelled, duly dedicated, improved and accepted highway, approached plaintiff’s parked automobile, and was within a car’s length of it, the second of three automobiles approaching from the east attempted to pass the first automobile and crossed the center line of Midlothian Boulevard.

Defendant claims that to avoid a collision with that automobile he operated his automobile to the right onto the southerly side of Midlothian Boulevard, as the result of which it collided with plaintiff’s parked unlighted automobile, damaging it.

Defendant contends that the trial judge erred to his prejudice in refusing to admit evidence offered by him that such second of the three west bound automobiles, to which reference has been made, invaded the southerly lane of traffic of Midlothian Boulevard, then being travelled by him Defendant’s counsel claims such evidence was competent to show an emergency under which he acted to avoid an apparent head-on collision with the automobile which turned into the southern half of Midlothian Boulevard, and furnished an excuse for defendant’s collision with plaintiff’s parked unlighted automobile.

There is nothing in the record to relieve the defendant of the duty to observe the assured clear distance ahead statute. If the evidence tendered by defendant had been admitted it would not have constituted an excuse for violation of the assured clear .distance ahead statute. Therefore the court was not in error in refusing its admission.

Next defendant urges that plaintiff’s contributory negligence in parking his car without lights outside a municipal corporation defeated his right to recover from defendant, and that the trial judge erred to his prejudice in overruling his motion to dismiss plaintiff’s action against him.

Assuming that the plaintiff in allowing his car to remain on the public highway without lights was guilty of negligence, or as having failed to exercise that degree of care which an ordinarily prudent person would have exercised under the same or similar circumstances, nevertheless the evidence being clear that defendant violated the assured clear distance ahead statute the question then was for the court, sitting as a jury, to determine whose negligence was the proximate cause of plaintiff’s damages. See Smith v. Zone Cabs, 135 Oh St 415. We are unable to disturb the finding of the court, sitting as a jury, upon the issue of proximate cause.

The question whether plaintiff’s failure to comply with the duty imposed by law upon him not to park an uniighted automobile at the place he did, and whether his act was the sole, direct and proximate cause of his damage barring recovery by him, were questions presented for the determination of the trial judge, sitting as a jury, who correctly found for plaintiff. See Smiley v. Arrow Spring Bed Company, 138 Oh St 81.

In oral argument counsel for defendant has urged that defendant was entitled to final judgment in this case because there was no evidence upon which the jury could properly determine the amount of plaintiff’s damages. We examined the record in this respect and find abundant evidence to sustain the verdict. There is no merit in this claim.

The judgment of the trial court is affirmed.

GRIFFITH, PJ, PHILLIPS and NICHOLS, JJ, concur.


author: By JONES, Chief Judge.

text:
    PROTEAU, In re.
    United States District Court N. D. Ohio, E. D.
    No. 65163.
    Decided March 17, 1952.
    Harvey E. Ellsworth, Cleveland, for bankrupt.
    Hugh Wells, Edw. I. Wallaeh, Jos. Dembe, Cleveland, for trustee.
    Kenneth S. Thompson, Cleveland, trustee.
    Herberich, Rowley & Taylor, Akron, for Herberich-Hall-Harter Co.
   OPINION

By JONES, Chief Judge.

This matter came on for hearing upon the petition of the Herberich-Hall-Harter Company for review of the referee’s order of May 22, 1951. The referee awarded judgment to petitioner in the sum of $1,766.42, with interest, this being the balance found to be due on petitioner’s loan No. B-833 to the bankrupt.

Petitioner complains of the allowance by the referee of a set off of alleged usurious interest against its claim, and his overruling of several motions.

After careful consideration of the oral arguments of counsel, the briefs and the certificate of review, and adhering to the recognized rule and order respecting review of findings of fact by a referee, the following conclusions have been reached for disposition of the matters presented.

The referee’s finding that petitioner performed no compensable services for the bankrupt to justify the so-called “commission,” in connection with loan B-833, is approved. This finding is supported by substantial evidence in the record.

The referee’s conclusions, based upon this finding, that the loan was usurious within the purview of §8303 and §8306 GC (§§1309.01, 1309.04 R. C.) and that the usurious payments could be deducted from the balance remaining due on the loan, were proper. Independent Foods, Inc. v. Lucas County Savings Bank, Oh Ap, 70 N. E. 2d 139; New York Credit Men’s Assn. v. Schnur, 2 Cir., 89 F. 2d 681. See cases collected in Pushee v. Johnson, 123 Fla., 305, 166 So. 847, 105 A. L. R. 795 and Ferguson v. Grand Rapids Land Contract Co., 242 Mich., 314, 218 N. W. 685, 63 A. L. R. 823. Sec. 8306 GC (§1309.04 R. C.); Widdifield v. Aetna Live Stock Ins. Co., 3 Ohio Dec., 276; Columbus Postal Employees Credit Union, Inc. v. Mitchell, 63 Oh Ap 281, 17 O. O. 55, 26 N. E. 2d 593. It is no defense that the payments were voluntary. Sec. 8307 GC (§1309.05 R. C.); Independent Foods, Inc. v. Lucas County Savings Bank, supra; Widdifield v. Aetna Live Stock Ins. Co., supra.

However, it is my considered judgment that the referee’s ruling was clearly erroneous in allowing a set off of alleged usurious payments in closed transactions against the amount remaining due in the open transaction.

Any usurious payments in the transactions here may not be recovered as a separate and distinct claim. The Ohio statutes do not contemplate a separate recovery of usurious interest. Colston v. Hastings, 11 Ohio Dec., 125; Clutch v. Ebright, 5 Oh Ap 449; Mallon v. Munson, 2 Handy, Ohio, 97. Thus, any usurious payments in the closed transactions may not be made the subject of a set oH on the basis that they are separate and distinct claims. Nor may they, under the undisputed facts presented, be deducted now on the basis that there was here a continuing transaction, which it clearly was not.

The Ohio courts have allowed a credit of all usurious payments made against the principal claimed to be due only where it was in truth a continuing transaction, i. e., where the same principal debt had been “in reality never paid as such,” but had been “kept up and continued as the ground and basis of usurious exactions.” Mallon v. Munson, supra; Widdifield v. Aetna Live Stock Ins. Co., supra; Beals v. Lewis, 43 Oh St 320, 1 N. E. 641.

(Decided under Section 3183 of Revised Statutes of 1848, the forerunner of the present statute.)

Independent Foods, Inc. v. Lucas County Savings Bank, supra, relied upon by the trustee, can be explained thus. There the loans were carried forward into a continuing balance. Interest, including renewal fees, was charged on this balance and measured by it.

Our case is distinguishable. The undisputed facts show that all of the notes in question ran for a stated period at a specified yearly rate of interest. After maturity, they drew interest at six percent, no rate being specified to cover this contingency. Sec. 8305 GC (§1309.03 R. C.). They were not kept up in a balance, or otherwise, for the purpose of exacting further usurious payments.

It may be the fact, as counsel for the trustee represents, that in the Independent Food case, “the excess interest on the executed transactions was credited against the principal and legal interest on the executory transaction,” — but that is not the same as crediting excess interest on closed transactions against the principal and interest on the only remaining unpaid note, as the trustee seeks to do here.

In Independent Foods there were executed notes with outstanding and continuing unpaid balances, — here there were executed notes, but they were paid and canceled before the critical time.

In this view of the matter, the referee's computation must be modified as follows:

Strike out the first debit item:

$4,270 (commission adjudged usurious)

$1,210.16 (interest thereon at 6%).

Debit only:

$300 (commission on loan B-833 adjudged usurious)

$86.05 (interest thereon at 6%).

This results in judgment for the petitioner in the sum of $6,860.53, without interest.

The referee’s rulings on petitioner’s motions are confirmed. Section 39, sub. c, Bankruptcy Act, 11 U. S. C. A. §67, sub. c, and Rule 7(a).


author: By THOMAS, J.

text:
    FEINSTEIN, Plaintiff, v. CLEVELAND (City), Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 643920.
    Decided October 2, 1953.
   OPINION

By THOMAS, J.

In an action for personal injuries plaintiff claims that while a passenger on a bus of defendant city she was hurt when the bus was negligently brought to a stop with a sudden, violent and unusual jerk.

As one of her specifications she alleges that the defendant city through “its agents and servants, failed to keep a lookout for vehicles on said street.”

Joined as a defendant is “John Doe,” the unknown operator of an automobile, who is charged with negligently changing “the mode of operation and speed of his automobile” without giving warning.

Plaintiff asserts that she was injured through the concurrent and combined negligence of both defendants. To her petition plaintiff attaches three interrogatories, which read:

1. State whether or not defendant’s motor coach bus on which plaintiff was a passenger came in contact with or in close proximity to any other vehicle or vehicles at the time and place referred to in plaintiff’s Amended Petition.

2. If the answer to interrogatory No. 1 is in the affirmative, state whether the name and address or license number of the owner or operator of such vehicle or vehicles is known to the defendant corporation.

3. If the answer to interrogatory No. 2 is in the affirmative, state the name and address or license number of such person or persons.

Defendant city’s demurrer to these interrogatories was overruled. Defendant city moves for a rehearing.

By §2309.43 R. C. interrogatories may be attached to a pleading which are “pertinent to the issue made in the pleadings.” This is construed to mean that the interrogatory can seek information which may be relevant to any issue of the action and to all sides of the case. Sloan v. Kresge Company, 43 O. O. 407.

In overruling the demurrer reasons have been given for concluding that plaintiff’s interrogatories are pertinent to the issues of this action. They are reaffirmed but will be supplemented.

If the answer to the first interrogatory is “yes” such answer is exceedingly relevant. For if another vehicle was involved in this accident, and the defendant is able to show that the other vehicle was negligent, and that such lack of due care was the sole cause of the claimed sudden stop of the bus, circumstances would warrant recovery for the defendant city. Schreiber v. National Smelting Company, 157 Oh St 1.

If the defendant city answers the first interrogatory “yes," questions 2 and 3 become relevant as a means of verifying that affirmative answer.

These interrogatories are relevant on' another score. Plaintiff has sued John Doe and claims that in operating the other vehicle such unknown person was negligent and that such negligence was a concurrent cause of plaintiff’s injuries.

The plaintiff is entitled to use any available legal means to identify the person sued as “John Doe” in order to make him a party and to serve him in this action. She can secure this information through written interrogatories propounded by a petition for discovery under §2317.48 R. C., or attached to her petition under §2309.43 R. C. Compare Collins v. Yellow Cab Co., 157 Oh St at 316.

Though the defendant city is a municipal corporation it must answer interrogatories the same as an individual party. For §2309.43 R. C., specifies that interrogatories

“shall be plainly and fully answered under oath by. the party to whom they are propounded, or if such party is a corpora;tion, by the president, secretary or other officer thereof, as the party propounding requires.” (Emphasis added.)

Since “corporation” is not qualified either as private or public it is deemed to include both types.

In the very nature of a corporation the knowledge of the city is derived from and coincidental with that of its bus driver, and other agents and employees. Accordingly as Judge Jones of the United States District Court for Northern Ohio recently held in construing the comparable language of Rule 33 (Interrogatories) of the Federal Rules of Civil Procedure

“A corporation cannot avoid answers by an allegation of ignorance, if it can obtain the information from sources under its control, although it may qualify its answers to show its source in order to avoid admission of something which it does not admit.”

Hornung v. Eastern Automobile Forwarding Co. 15 Fed. Rules Service 582.

So far it has been seen that the object of an interrogatory must be a fact which may be relevant to the issues of the action; and that corporate parties, private and public, as well as individual parties must respond to interrogatories.

There is one additional attribute of a proper interrogatory.

A reasonable reading of the interrogatory provision, §2309.43 R. C., and the privileged testimony statute, §2317.48 R. C. indicates that these sections should be construed conjunctively, and that the former is modified by the latter.

Hence it is concluded that an interrogatory cannot invade-privileged information.

In moving for a rehearing on its demurrer to plaintiff’s interrogatories the defendant relies on the defense of privileged communication. It argues that the plaintiff would have no right to subpoena the accident report because it was “made by the operator immediately after the accident as a result of the accident and which is a report from defendant’s operator to defendant’s general counsel and his assistants and his aids, for the purpose of defending against possible litigation.”

It is true the Supreme Court has held that accident reports, thus prepared,

“are privileged communications, and that no one can be required to produce them in an action relating to such accident and brought by and against said party.”*

In Re: Story, 159 Oh St 144 at 147.

From this position defendant argues that “it necessarily follows that the plaintiff cannot ask for information which is found only in the accident report.”

Thus defendant city’s argument is that since the entire accident report has been held to be a privileged communication a fortiori each part of the report must also be a privileged communication. Does this conclusion follow the premise? Analysis indicates not.

An accident report may contain matters regarded as privileged communications. For instance, if after the claimed sudden stop of his bus the bus operator obtained, as possible witnesses, the names of passengers or any onlookers, the inclusion of these names in an accident report would be clearly privileged on authority of In Re Shoup, 154 Oh St 221.

Collaterally it may be noted that if this defendant were sued in Federal Court by a citizen of another state both parties would have to furnish the other side, on subpoena or by interrogatory, “the identity and location of persons having knowledge of relevant facts.” (Rules 26b and 33 of the Federal Rules of Civil Procedure.)

Further if the accident report contains a statement of the bus operator, taken for use by the attorneys of defendant city in the event of litigation, such statement would be privileged from production.

If an accident report embracing either the names of witnesses, or a statement of the bus operator prepared for use in litigation, or any other equally privileged communications between attorney and client, were subject to production by subpoena, it is evident that upon the production of the entire document, included privileged matters would thereby be revealed.

Therefore to shield the privileged portions of an accident report it is necessary to privilege the entire report from production.

But an accident report may also contain information which is not privileged.

Thus the number or other identification of the bus on which the plaintiff was riding, and the identity of the bus driver are unprivileged facts which do not become privileged by being incorporated in an accident report, which is customarily turned over to counsel for the defendant city. In Re Keough, 151 Oh St 307.

The identity of another vehicle to this occurrence, if another one existed, is a similar relevant physical fact, whose lack of privilege can be easily demonstrated.

If the bus operator on deposition or at trial were asked the names of witnesses secured after the occurrence he would not have to divulge them because such information is regarded as privileged.

But if he were asked about the existence or the identity of another vehicle he would most certainly have to testify concerning such a centrally relevant fact.

Thus the existence and identity of the other vehicle considered apart from the accident report stand boldly as unprivileged physical facts of this occurrence.

Unprivileged in character, and vitally essential to a just determination of the plaintiff’s claim, such a public fact cannot be made the private property of either party by labeling it a confidential communication between client and attorney.

Physical facts include tangible evidence. Tangible evidence illustrates how justice would be thwarted if physical facts could be privileged from disclosure.

If the plaintiff in this case had been standing and fell and her fall was in part the result of excessively high heeled shoes such shoes would clearly be relevant physical evidence in this case. Manifestly such shoes would not be rendered immune from compulsory production because the plaintiff turned them over to her attorney in a communication between client and attorney.

Secondly, if it were believed that this bus stopped suddenly because of a defective brake, that brake could not be saved from mandatory inspection because the brake was removed from the bus and turned over to counsel for the defendant city in a confidential communication.

The foregoing considerations necessitate the conclusion that one of the rules of discovery should be that all relevant physical facts within the knowledge or under the control of one party should be subject to disclosure either through deposition or interrogatory procedure brought by the adverse party, and this is true even though proof of such facts may have been placed in the hands of counsel for the first party in connection with or as part of accident reports or other communications which may be privileged.

Applying this rule in this situation the motion for rehearing will be overruled.


author: By BIRRELL, J.

text:
    MISTAK et, Plaintiff, v. TRIMBUR, County Auditor et al., Defendants.
    Common Pleas Court, Trumbull County.
    No. 62232.
    Decided February 11, 1953.

      Sieman & Sieman, David Sieman, Warren, on behalf of plaintiffs.
    D. J. Del Bene, Warren, on behalf of defendant Shultz.
    J. D. Campbell, Warren, on behalf of William C. Trimbur, Auditor.
   OPINION

By BIRRELL, J.

Plaintiffs bring this action to enjoin the Trumbull County Auditor and the Trumbull County Treasured, respectively, from placing on the Tax Duplicate, and from collecting the assessment of the cost of a partition fence constructed by order of the Gustavus Township Trustees. Paul E. Schultz had requested the Trustees to cause his neighbor to construct the neighbor’s share of the partition fence between their farms, and had advised the Trustees that Andrew and Mary Mistak were the owners. These parties were only purchasing the farm from Lafayette and Bertie Burnett on Land Contract. The Trustees gave no notice to the Burnetts but went forward with the assigning of portions of the fence and ultimately let a contract for the construction of the Mistak portion to Schultz himself on his bid of $541.50. It is the collection of the amount of this bid, plus the Trustees’ costs which the Mistaks seek to enjoin.

The power of the Trustees of Gustavus Township to cause the assessment of the expense of constructing a partition fence depends entirely,upon their strict compliance with the Statutes of the State of Ohio. Sec. 5910 GC provides that the Trustees “after not less than ten days written notice to the adjoining land owners” etc., may proceed with the viewing and assigning of portions of a partition fence to each adjoining land owner for construction and repair. It will be noticed that the present Statute requires “written notice to all adjoining land owners.”

The older Statute which permitted the interpretation placed thereon in the case of Moore v. Given, 39 Oh St 661, was amended some years after the decision in that case to require “written notice to all land owners.” This accounts for the opinion of the Attorney General reported at 1928 Opinions p. 1766 No. 2366, although his Opinion does not indicate the date or reference to the Amendment of this Statute (95 v 53, 97 v 139).

The Statute as interpreted in Moore v. Given required notice “to all parties who may have an interest in the title or possession of said premises and the repair or construction of said fence.” This former Statute describes the present Plaintiffs perfectly for they surely are parties “who have an interest in the title or possession of (the) premises and, the repair or construction of the fence.” But the present Statute requires “written notice to all adjoining land owners,” without qualifying whether or not they have an interest in the title or possession and in the repair or construction of the fence. The present Plaintiffs are at most “equitable” owners, and their interest in' the title or possession of the property and in the repair or construction of the fence has no place in their qualifications to receive the notice required by this Statute.

Where the Legislature changes a Statute it is presumed that it had some reason for the change, and meant to use the amending words in their normal sense and meaning. By leaving out the phrases describing the person to whom notice must be given as being a person who may have “an interest in the title * * * and the * * * construction of the fence,” and substituting therefor solely the term “owner,” it may be naturally assumed that it meant that persons with such qualifications were not required to receive the notice. Their use of the term “all owners” in the present Statute would also imply that where there were more than one person who qualified as an owner of the land, the notices must be given to “all owners” both legal and equitable. Considering the history of the former Statute which the present section amended, the use of the adjective “all” would indicate a positive requirement in order that the notices be properly served.

Likewise at the time when this old Statute was amended to its present form (97 v 139), a new section was added which under the numbering of the old Revised Statutes was designated as No. 4243-b (97 v 140) entitled “Meaning of term ‘owner.’ ” This section by further revision (98 v 149) has become our present §5919 GC and reads as follows:

Sec. 5919 GC. Meaning of term “owner.” In this chapter, the term “owner” shall apply to the owner of such land in fee simple, of estate for life or rights of way * * *, but these proceedings shall not bind the owners unless notified as provided herein.

In this case no notice was given to the “owner of such land in fee simple,” Lafayette Burnett and Bertie Burnett. At most it is claimed that notice was given to only the equitable owners, Andrew Mistak and Mary Mistak. Since §5919 GC specifically provides “these proceedings shall not bind the owner unless notified as provided herein,” of course the owners, Lafayette Burnett and Bertie Burnett, are not bound in any manner by the action of the Township Trustees. The mere fact that Lafayette Burnett may have been present and observed the proceedings, or that he later signed some paper admitting that he “did not object to said fence then or at any other time to the assessment,” has no effect upon the validity of the action of the Township Trustees against him or as against the Plaintiffs herein, Andrew and Mary Mistak.

Likewise by reason of the specific definition of the term “owner” against whom assessments only may be levied, the equitable owners, Andrew Mistak and Mary Mistak are not affected by the proceedings of the Trustees even though they received the written notice of the proceedings. It would be impossible for the County Auditor to place assessments upon land not in the names of the Plaintiffs.

Consequently the Plaintiffs in this case should be entitled to equitable relief and the Defendants restrained from placing an assessment upon the property described in the petition.

The Court however entertains the belief that adjoining farmers should both build and keep their fences in repair (§5908 GC). Having at earlier times chased cows which escaped from enclosures by reason of defective fences, the Court is far from sympathetic with an adjoining owner of property who fails to keep his fences in repair. There is an old maxim of the law especially applicable to equity cases to the effect that “he who seeks equity must do equity.” In this case the Plaintiffs having invoked the equitable powers of the Court should be required to “do equity.”

In the view of the Court the Plaintiff should pay the cost of construction of the fence which was constructed by Paul Schultz, the adjoining land owner, for whose benefit this Statute was enacted. The Statute ought to be obeyed as a condition to the decree and judgment of this Court in this case.

The cost of construction of this 541 feet of fence includes the following items according to the testimony in this case:

Cost of wire, 2 rolls ® $27.00 ------------------$54.00

Cost of posts, 34 posts @ .85c__________________28.90

Cost of common labor 4 days @ $10.00

($1.25 per hrj__________________________----40.00

Cost of skilled labor, including management, planning, tools and over-sight of work________50.00

Total $172.90

With regard to the fees of the Township Trustees, it is impossible under the Statutes for them to collect their fees from the Plaintiffs. But the Trustees are not to be blamed for their failure to serve the written notice upon the “fee-simple” owners of the property. The application to the Trustees for the view of the partition fence was made by Paul E. Schultz. He specifically advised them that “Andrew Mistak and Mary Mistak are the owners of (the) adjoining lands” * * * and “the partition fence * 4 * which he ought to build and repair.” There is nothing in the Statute that requires the Trustees to search the records to determine who is the owner of adjoining lands. In this instance they had every reason to suppose that the man who requested them to make the view and assign portions of the fence to the adjoining owners knew what he was requesting. The fact, therefore that the written notice was not served 'upon the proper party was not their fault. Whatever work they did in their attempt to comply with the wishes of Paul Schultz was done solely at his specific request. They are, therefore entitled to collect their fees from the person who caused them to incur such expense. Neither can Paul Schultz be reimbursed for his failure to collect the amount of his bid of $541.50 for construction of this fence. It is granted that he had the right to bid whatever amount he was willing to bid upon this construction. Any other person, likewise had a right to bid upon the contract and offer to construct the fence for whatever amount that person was willing to undertake such project. Perhaps to the people of the vicinity who knew of the opportunity to bid upon this contract, it was worth this amount of money to build this fence at that particular time. With the bid, and with the acceptance thereof by the Trustees, the Court finds no fault, but cannot require Plaintiff to pay.

However, the Court is interested in the equitable cost of construction of this fence. The measure of this value is believed to be the actual cost of the items required and used in the construction, together with the labor, both skilled and unskilled required therein, which as above indicated amounts to $172.90.

An Entry may be drawn in accordance with the views expressed herein, to the effect that the RESTRAINING ORDER MAY BE GRANTED AND MADE PERMANENT upon payment by the Plaintiff to Paul E. Schultz of the amount of $172.90. The cost herein may be divided equally between the Plaintiff and Defendant Paul E. Schultz.


text:
    KERWIN et, Plaintiffs, v. BOARD OF EDUCATION OF ASHTABULA COUNTY SCHOOL DISTRICT, Defendant.
    Common Pleas Court, Ashtabula County.
    No. 40998.
    Decided January 7, 1953.

      Harold W. Murphy, Carl A. Weinman, Steubenville, for plaintiffs.
    Roland Pontius, Tom R. Bailey, Ashtabula, for defendant.
   OPINION

By THOMAS, J.

This is an action to permanently enjoin the defendant Ashtabula County School Board from proceeding further in creating and establishing the Geneva Area Local School District, a consolidation of the territory now comprising the four local school districts of Geneva. Geneva-on-the-Lake, Geneva Village and Harpersfield; and further to enjoin the defendant board from attempting to create a new local school district from said territory for such period of time as to the court seems reasonable and proper under the circumstances.

Paul Kerwin, a resident and elector of the Geneva Local School District, is one of the plaintiffs and brings this action on his own behalf and on behalf of all other residents and electors of the four previously named local school districts “who are similarly affected and situated and, all the members of the Spencer Club, an unincorporated association of residents and electors of the Geneva Local School District, interested in the public schools of said district.”

Plaintiffs E. J. Hannenan, Howard Walcott, O. W. Berry, O. D. Phelps and S. Weintz, J., are the duly elected, qualified, and acting members of the Board of Education of the Geneva Local School District.

Defendant Board of Education of Ashtabula County School District at the time here concerned was comprised of defendants George F. King, F. D. Loomas, Nelson L. Leonard, L. G. Dean and James J. Greene, and will be subsequently referred to as the defendant board. Defendant L. H. Finley who was dismissed from the case at the end of all the evidence is the duly appointed, qualified and acting clerk of the defendant board and is the duly appointed and acting superintendent of the Ashtabula County School District.

It Is undisputed that on May 1, 1951, the defendant board officially moved to create the Geneva Area Local School District out of the territory composing the four previously named local school districts.

It is undisputed that within 30 days thereafter on June 1, 1951, remonstrance petitions protesting the action of the defendant board and containing 2,083 signatures were filed with the defendant board. Each petition read:

“TO: Ashtabula School Board of Education, Jefferson.
“WE, the undersigned, a majority of the qualified electors residing in the Geneva Village local school district, the Geneva local school district, the Geneva-on-the-Lake local school district, and the Harpersfield local school district, voting at the last general election to wit: the election held on November 7, 1950, remonstrate and protest against the creation of a new local school district consisting of the merger of the four above mentioned local school districts.
“By placing our signatures on this written remonstrance each of us agrees with the other signatories on this remonstrance that any action on our part either in withdrawing our names from the remonstrance or in signing any petition of contrary purpose or intent shall not become effective until the circulator of this remonstrance shall have' been notified in writing of such withdrawal or expression of such contrary purpose or intent. This remonstrance is made in accordance with §4831-1 GC.”

It is undisputed that at the general election held in November of 1950, 3,525 persons voted in the territory making up the four affected local school districts.

It is agreed that the right to file remonstrance petitions is granted and governed by §4831-1 GC which provides:

“A county board of education may create a new local school district from one or more local school districts or parts thereof, and in so doing shall make an equitable division of the funds and indebtedness between the newly created district and any districts from which any portion of such newly created district is taken. Such action of the county board of education shall not take effect if a majority of the qualified electors residing in the territory included in such newly created district voting at the last general election shall within thirty days from the time such action is taken file with the county board of education a written remonstrance against it.”

On July 13, 1951 the defendant board rejected the remonstrance petitions and proceeded to complete the organization of the new consolidated Geneva Area Local School District. Its action is reflected in the following minutes of that meeting:

“Regular meeting of the Ashtabula County Board of Education was held in the Board of Education Office on the above date with the following members present: George F. King, President, F. D. Loomas, Vice-Pres., Nelson L. Leonard. The County Superintendent reported that a number of questions had been submitted in writing concerning signatures on the remonstrance petitions in connection with the creation of the Geneva Area Local School District. In accordance with the instructions given at the last meeting of the County Board of Education, these were presented to the Prosecuting Attorney for an opinion. The Prosecuting Attorney, Roland Pontius, gave an opinion in writing and this opinion was read.
“A summary of the situation was given as follows: A number of names on the remonstrance petition after the recheck, which was made in accordance with instructions given at the June meeting, was 1,787. The opinion of the Prosecuting Attorney recommended that five names be added to this total and 30 names be withdrawn from the total given above, making the net number of names 1,762. The total number required to represent a majority of electors voting at the last general election was reported to be 1,763.
“The board members held a general, discussion concerning the remonstrance petitions. It was moved by L. G. Dean and seconded by F. D. Loomas that the County Board of Education accept the recommendation of the Prosecuting Attorney in determining the status of the remonstrance petitions.
“Roll call. Motion carried. As this recommendation meant that the remonstrance petitions were insufficient to block the creation of the new district, the Board proceeded to complete the organization.
“It was moved by Nelson L. Leonard, seconded by F. D. Loomas, that the clerk of the County Board of Education notify the clerks of the various school districts included in the newly created Geneva Area Local School District to make a list of funds and indebtedness. A check for the funds on hand made payable to the clerk of the Geneva Area Loeal School District is to be forwarded to the clerk of the County Board of Education. This transfer of funds will be in order as soon as the newly created district has organized and the newly elected clerk has filed a bond as required by law. Motion carried.”

The board thus accepted 1,762 of the 2,085 signatures, concluded that 1,763 (that is one more than half of the 3,525 who voted in the 1950 general election of the affected territory) were needed to block consolidation, and accordingly overruled the remonstrance petitions and proceeded with the creation of the new consolidated district.

In their petition plaintiffs allege that in accordance with §4831-1 GC, a written remonstrance containing 2,083 signatures was filed with defendant Board.

They allege further that “notwithstanding the duty enjoined by law and in defiance and contrary to said written remonstrance and the statute in such case made and provided, said defendant board unlawfully and illegally appointed a new local school board for said newly created school district and is proceeding further with its creation and intends taking other action in connection with the creation and establishment of said new local school district notwithstanding the fact that said written remonstrance is sufficient to nullify and defeat said action and the creation of said new school district.”

Plaintiffs further allege that “unless said defendants are enjoined and restrained by this court from so doing, the defendant school board will eliminate the foregoing four local school districts over and against the valid and lawful protest of said electors signing said remonstrance; and said defendants are now acting without any authority at law and by their conduct in the respects herein alleged, these plaintiffs and others similarly situated on whose behalf this action is brought, will be irreparably damaged and injured; and plaintiffs say they have no adequate .remedy at law in the premises.”

In its answer defendant board admits that unless enjoined by an order of this court it “will proceed in the manner provided by law to do all things necessary to establish, create and complete a new local school district comprising the territory of the local school district set forth in plaintiffs’ petition.”

Further answering defendant board contends that “any paper writing filed with the defendant board of education attempting to remonstrate against the action of said defendant board of education * * * is insufficient in law for the reason that the same, at the time of the expiration of 30 days from the date said defendant board of education took said action, did not contain the valid signatures of a majority of the qualified electors residing in the territory included in such newly created district voting at the last general election.”

Defendant board further says “that any such writing as was filed with such board of education was a nullity and was void for the reason that the signatures of a large number of the said persons signing said writing were obtained by misrepresentation and fraud practiced upon said persons so signing-same, and that therefore, said paper writing was not legally sufficient to prevent the action of said defendant board of education in creating said Geneva Area Local School District from taking effect.”

The first question to be considered is the motion of defendant board made at the conclusion of all the evidence for a dismissal of plaintiffs’ petition and for judgment for the defendant.

This motion rests first on the contention that the right to contest the action of a county school board in disallowing a remonstrance petition is controlled by State ex rel. Gongwer v. Graves, 90 Oh St 311, which holds that “elections belong to the political branch of the government and not to the judicial, and are not per se the subject of judicial cognizance, but are matters for political regulation” and that a determination of the sufficiency of initiative and referendum petitions is “final, unless such decision has been fraudulently or corruptly made or procured, or unless he has been guilty of an abuse of discretion.”

It is urged that plaintiffs neither plead nor prove that the defendant board here acted fraudulently, corruptly, or that it abused its discretion, and that accordingly the motion of dismissal and judgment should be granted.

To file a remonstrance under §4831-1 GC, is in effect to hold a referendum relative to the action of the county school board in creating a new school district. If the remonstrance is sufficient it operates to nullify or repeal the action of the board. The authority of the Graves case, supra, is therefore apt and applicable.

It follows that those actions of the defendant board in this situation which are discretionary may only be enjoined upon a showing that board fraud, corruption or abuse of discretion intervened.

Nevertheless a concurrent concept is equally pertinent.

If public officers operate contrary to law, they act beyond and apart from any power of discretion; and against an illegal act of a public officer, persons with a sufficient legal interest may secure injunctive relief.

Ordinarily it is a taxpayer who “may maintain an action to enjoin public officers or a public commission from the commission of acts in excess of legal authority, which contemplate the expenditure of public money.” Green v. Commission, 90 Oh St 252.

Here it is the claim of the plaintiffs in substance that the acts already committed and the further acts about' to be taken by the defendant board are contrary to §4831-1 GC. If true, restraining relief against such illegal conduct may be obtained by persons having legal interest.

The existence of such a right of action in connection with §4831-1 GC and its antecedent sections was employed in Board of Education v. Board of Education, 112 Oh St 108 and Iddings v. Board of Education, 155 Oh St 287, 44 O. O. 294.

Since the presently contested action of the defendant board, if not checked, will destroy the plaintiff local school board and will disestablish the Geneva Local School District in which the plaintiff has a substantial and direct interest, both as a resident and qualified elector of that district for himself and on behalf of others similarly situated, the plaintiffs possess sufficient legal interest to institute and prosecute this action for injunctive relief.

Defendant board places its motion for dismissal and judgment also on the ground that the remonstrance petitions, plaintiffs’ exhibits 29 through 161, were inadmissible.

These exhibits were identified and offered in the course of the testimony of L. M. Finley, the clerk of the county school board.

“Q. I hand you now papers that have been marked for identification as plaintiffs’ exhibits 29 through 161 inclusive, and I ask you to state to the court what they are.
“A. These are petitions which by their assertion were filed in remonstrance and protest against the creation of the Geneva Area Local School District, does that answer the question?
“Q. With whom were they filed?
“A. They were filed with me as clerk of the Ashtabula county board of education.
“Q. On June 30th or on what date?
“A. On June 1, 1951, which is the same date I believe I testified before.
“Q. I offer into evidence plaintiff’s exhibits 29 through 161 inclusive.,
“Defendants counsel: No objection.
“Court: They will be received.”

Though the remonstrance petitions were first received without objection, a later objection was made to their introduction and plaintiffs expressly agreed that the tardiness of the objection would not be raised.

Defendant’s objection to the introduction of the remonstrance petitions relies on the claim that plaintiffs have failed to prove the genuineness of the signature on the petitions.

It is true that with some few exceptions there is no direct evidence which authenticated the 2,083 signatures appearing on the petitions.

The affidavits of the circulators appearing on the petitions and stating in substance that the signatories signed in the presence of the circulators, can add no probative force to the petitions inasmuch as these affidavits are not rendered admissible either by §11532 GC, or by §4831-1 GC, which makes no provision for verification of the written remonstrance.

In fact, §4831-1 GC, affords no specifications at all for the form or sufficiency of a written remonstrance.

Counsel for the defendant cdgently note the contrast, in this respect, between §4831-1 GC and §4227-4 GC, which latter section in spelling out municipal initiative and referendum procedure provides for the verification of petitions and specifies that such petitions “and signatures upon such petitions shall be prima facie presumed to be in all respects sufficient.”

However, even in the absence of a statutory presumption of a petition’s sufficiency it has been held in connection with the filing of a local option petition that “a petition for or against the sale of intoxicating liquor in a residence district is itself prima facie evidence that the signers thereof are resident-electors of the districts, qualified to sign the petition, and in the absence of evidence tending to show that a signer is not such an elector, it is not error to count his name in determining the sufficiency of the petition.” In re Petition to Prohibit Sale of Intoxicating Liquors, etc. 20 Ohio O. C. C. (N. S.) 26.

However, neither §4227-4 GC, nor the local option law as construed by the Cuyahoga County Circuit Court in In re Petition to Prohibit Sale, supra, is sufficiently similar to §4831-1 GC, for the principle of either to here control.

The admissibility of the instant remonstrance petitions must be decided in accordance with the applicable statute. §4831-1 GC. Impliedly but inescapably under this section the duty devolves upon the county board of education to determine in the first instance whether or not the signatures on the “written remonstrance” are genuinely those of, or authorized by persons who, on the 30th day following the defendant board’s action were “qualified electors residing in the territory included in such newly created district voting at the last general election,” and who constitute a majority of such class of qualified electors. Such duty of the county board is similar to another described in State v. Board of Education, 18 Abs 217.

The task of the county board of education under §4831-1 GC, is thus both procedural and substantive.

First the county board of education must determine if the signatures are genuinely, those of or authorized by the persons whose names they purport to be.

Secondly, the county board of education must decide whether the signatures found to be authentic constitute the specified majority.

Defendant board upon the receipt of plaintiff’s exhibits 29 through 161 proceeded to check all signatures against the appropriate poll books and to determine the validity of the signatures.

It is apparent from the propeedings of the defendant board taken on July 13, 1951, that 1,762 signatures of the written remonstrance were accepted, leaving a total of 321 that were not. The minutes of the July 13, 1951 meeting do not expressly indicate the composition of the rejected signatures.

But from all the evidence it appears that the 321 rejects included the following categories:

92 signatures were rejected because they represented names of non-voters at the November 1950 general election.

187 signatures were rejected because such persons signed a counter-petition before the expiration of the 30th day, that is on June 1, 1951.

18 signatures were rejected because they represented names of persons who voted at the November 1950 general election from the affected territory but subsequently and prior to June 1, 1951, changed their residence and moved out of the territory.

13 signatures were rejected because they represented names of persons who had previously signed the remonstrance petitions.

Seven signatures were rejected because the defendant board believed that they represented names of persons who were induced to sign the written remonstrance because fraud or misrepresentation was practiced upon them.

Three signatures were rejected because the board concluded that they represented names of persons who did not reside in the affected territory on June 1, 1951, although they then and there owned a dwelling in which they lived a part of. the time.

It was stipulated at the trial that the signature of W. E. King was not authorized.

Defendant board offered testimony which tended to show that James Miller had not authorized his mother to sign for him, though his mother testified that he had given her authority. Harry Buff and Edward J. Lye, though they did not personally sign, authorized their wives to sign for them, the preponderance of the evidence shows.

Hence it is established that the defendant board in its investigation and determination of the sufficiency of plaintiffs’ exhibits 29 through 161 treated as authentic all but four of the entire number of 2,083 signatures on said exhibits. This affirmative acceptance of 1,762 signatures constitutes an express finding by the defendant board that such signatures were authentic, which action may here be substituted for direct evidence to that effect.

Furthermore, defendant board’s rejection of no more than four of 2,083 signatures because of lack of authenticity permits the- inference that the remaining signatures were authentic.

Such inference is here available in meeting the plaintiffs’ burden of proving that the signatures on the written remonstrance are genuine.

To thus give probative effect to the actions of the defendant board in conducting its investigation and in determining the sufficiency of the instant written remonstrance seems entirely consistent with and in furtherance of the principle already found applicable that the present action of the defendant board is open to question only upon a showing that the board acted fraudulently, corruptly, with an abuse of discretion or contrary to law.

If the defendant board rejected any signature because it was not authentic it was bound to say so. Had the board so acted, the plaintiffs would then have had to shoulder the burden of showing that such action constituted an abuse of discretion.

Since the board was bound to accept or reject all signatures in order to determine the sufficiency of the written remonstrance, the board’s failure to find that a signature lacked authenticity operates as a finding, by inference, that any such signature is authentic.

Finally, if the defendant board in the course of its proceedings accepts ^a signature as valid once the board jurisdiction has been superceded by court action, the board thereupon becomes estopped from disclaiming or disavowing its former action. A board finding that a signature is valid becomes binding on the board in any later court review.

Such a construction of the procedural requirements of §4831-1 GC, seems entirely in keeping with the manifest intent of this section to afford a real and not an illusionary right to remonstrate against the creation of a new school district.

Accordingly the defendant board’s objections to the introduction of plaintiff’s exhibits 29 through 161 are overruled and defendant board’s motion for dismissal and judgment is likewise overruled.

The question which now arises is whether or not the defendant board acted in any respect contrary to law.

It is agreed that the defendant board in determining what constituted a majority necessary to block its action in creating the Geneva Area Local School District used 3,525 as the total of those voting in the November 1950 general election in the territory involved. Hence its decision that the necessary majority was 1,763.

Was this computation in accordance with §4831-1 GC?

This section as amended in September, 1947, provides that “such action of the county board shall not take effect if a majority of the qualified electors residing in the territory included in such newly created district voting at the last general election shall within 30 days from the time such action is taken file with the county board of education a written remonstrance.”

A study of the statutory antecedents of §4831-1 GC, is helpful in determining the majority contemplated by §4831-1 GC.

In the law which established county school boards in 1914, full power to create school districts was vested by §4736 GC, in county school boards. It was accordingly held that a board’s decision creating a new school district was discretionary and could be overturned only in the presence of fraud, or an abuse of discretion. Cline v. Martin, 5 Oh Ap 90, Wogoman v. Board of Education, 5 Oh Ap 306.

But in 1915 §4736 GC, was amended (105-106 v. 396 at 397) to grant a popular right through written remonstrance to nullify the creation of a new district.

In 1919 the same right expressed in different language was continued by a further amendment to §4736 GC (108 v. 704 at 707). This section which remained in effect until 1943 stated:

“Such action of the county board of education shall not take effect if a majority of the qualified electors residing in the territory affected by such order shall within 30 days from the time such action is taken file with the county board of education a written remonstrance against it.”

It is noteworthy that this same wording is now substantially repeated in §4831-1 GC, except for the present addition of the clause “voting at the last general election,” immediately before the words “shall within 30 days, etc.”

In 1943 pursuant to a considerable revision in the school laws of the state, §4736 GC, was repealed but the right through written remonstrance to check the action of a county school board in creating a new school district was granted by entirely different language in §4831-3 GC, and as amended in 1945 (121 v. 620) continued until 1947. It reads:

“Any group of electors, qualified to vote in territory within the territorial boundary lines of the county school district, may, at any time prior to the second Monday in * * * March following the adoption of the plan of organization by the county board of education, file with the county board of education a protest relating to proposed change * * * in the boundary lines of any local school district within the county school system, wherein said electors reside.
“Such protest shall be in writing, signed by the electors making such protest specifically setting forth the nature of the protest together with the reasons therefor and shall be in duplicate.
“If such protest so filed be signed by 51% or more of the electors of the local school district or districts so affected, then the county board of education and the superintendent of public instruction shall not have the authority to adopt the plan of reorganization proposed so far as the said local school district or districts are concerned.”

Plainly by §4831-3 GC, those given the right to protest against the action of a county school board in changing the boundary lines of any local school district were the electors qualified to vote in the local school district or districts so affected. It was upon the basis of this total that the majority of 51 c/o was computed.

In 1947 the provision giving the right to protest the action of a county school board in creating a new school district was shifted from §4831-3 GC, to §4831-1 GC.

Under §4736 GC, as it was in force from 1919 to 1943 required two conditions to be entitled to remonstrate.

First, a person had to be a qualified elector in the territory affected.

Secondly, he had to reside in such territory.

To these two conditions of eligibility to sign a written remonstrance §4831-1 GC, as amended in 1947, adds the third that one must have actually voted in the last general election. Iddings v. Board of Education, supra.

Moreover, the Supreme Court in construing antecedent §4736 GC, holds in Board of Education v. Board of Education that the right to join in or withdraw from a written remonstrance continues throughout the 30-day period in which the written remonstrance may be filed with a county board of education.

The principle is thus established that the significant time for determining the majority required under §4831-1 GC, becomes the 30th day of this allowable period.

It, therefore, follows that those who have a right to remonstrate under §4831-1 GC, are those who, on the 30th day of the allowable period (a) are qualified electors, (b) reside in the territory involved and (c) have actually voted at the last preceding general election.

It is readily apparent that the third group would invariably be the smallest. A county board of education in determining the total eligible to sign the remonstrance on which the majority should be computed should therefore first ascertain the persons who actually voted in the last general election. Next, it should subtract from that list all those persons who. either because of decease or departure, did not live in the territory involved on the 30th day; and finally, it should subtract from the list anyone who voted in the last general election but who, on the 30th day, was no longer a qualified elector of the territory involved.

Though it is true that such procedure will require considerably more work than to merely take the list of those actually voting in the last general election, to take the latter step alone ignores statutory provisions (a) and (b) above and gives effect only to provision (c).

In employing the full list of those who actually voted in the November 1950 general election (3,525 in all) as the total upon which the majority of 1,763 was computed, and in failing to subtract therefrom those voters who, on June 1, 1951, did not reside in the territory involved either by reason of decease or change of residence, the defendant board unmistakably violated the provision of §4831-1 GC, that those eligible to remonstrate had to reside in the territory involved.

Moreover, the defendant board compounded its erroneous interpretation of §4831-1 GC, by proceeding to hold ineligible some 18 signers of the written remonstrance who actually voted in the November 1950 general election but who did not reside in the territory on June 1, 1951, the last day of the 30-day period.

To include non-residents who actually voted in determining the total while denying voters who subsequently became non-residents, the right to sign the written remonstrance employs a double standard of statutory interpretation which is' manifestly discriminatory.

Such a procedure is also arithmetically fallacious. If “A” has five apples and two oranges, and “B” has four apples, it would be clearly wrong to say that there is a total of 11 apples between “A” and “B” and that “A” has five — or one less than half. The two oranges should not be included in the apple total any more than they should be added to “A’s” apple count. Obviously the correct answer is that “A” has five, or one more than half of the apple total of nine held by both “A” and “B.”

The foregoing interpretation of §4831-1 GC, in determining the total on which a majority is based conforms to a 1949 opinion of the Attorney General of Ohio, 1949 volume, p. 842.

The Attorney General there concluded:

“that when an eligible signer dies, or moves from a district, he ceases to meet the qualifications required by §4831-1 GC, supra, and the total signers required by said section is reduced in like manner.”

It, therefore, becomes necessary to determine whether on June 1, 1951, any of the 3,525 persons who actually voted in the affected territory had either died or moved from the territory.

The evidence reveals that on June 1, 1951, 24 voters at the 1950 general election in the territory affected had died and that 40 who voted in the 1950.general election in the territory affected no longer resided in said territory on June 1, 1951. (Plaintiffs’ evidence showed 22, and defendant’s evidence 18.)

Thus the total eligible to sign the written remonstrance on June 1, 1951, was not more than 3,523 less 64.

Based on the resulting total of 3,461, the majority necessary under §4831-1 GC, to join in an effective written remonstrance against the action of the defendant board was 1,731, whereas the defendant board actually accepted 1,762 valid signatures, 31 more than a bare majority.

Since the ground upon which the petition was rejected was illegal and contrary to law, the act of the board in so doing is enjoinable.

Though this conclusion meets the consideration of any further questions in the case, in the event of an appeal, the court’s opinion on them might become essential and, therefore, will be ■ given.

Plaintiffs contend that under the terms of the written remonstrance, supra, subscribers thereby became obligated' to give written notice, of an intention to withdraw to the circulator of the remonstrance to validate any withdrawal therefrom. Accordingly it is claimed that only 62 of the 187 withdrawals are effective.

But in view of Board of Education v. Board of Education, supra, which holds that eligible persons can add their names to or withdraw their names from a written remonstrance throughout the 30-day allowable period, any attempted contractual limitation of that right is against public policy and ineffectual.

By the same token it was permissible for the plaintiffs to obtain from several who signed the withdrawal petitions further written authority cancelling their previous withdrawals. In other words, not only is a counter-petition permissible but also a counter-counter-petition.

Next to be considered is whether or not the defendant board committed an abuse of discretion or acted contrary to law in rejecting certain individual signatures. From the fact that the defendant board presented these individuals as witnesses in its case, it is assumed, though nowhere expressly does it appear, that the signatures of these individuals were part of the 321 signatures excluded by the defendant board.

It should be emphasized that it is not believed to be the function of this court to substitute its judgment for that of the defendant board in each of these cases. Rather, only if it is found that the evidence shows that the defendant board abused its discretion or based its rejection on an erroneous rule of law should the action of the defendant board be disturbed and a different conclusion reached.

First to be taken up is the group of signatures where it is claimed that fraud or misrepresentation intervened.

With referrence to the signatures of Isaac Butcher, Mrs. Edith Butcher, Una Zurhide, William Susa, Edna Susa, Christine Zito and Tracy Love, the testimony of these persons in substance was that each believed that he was signing a petition for consolidation rather than against. Each further testified that had he known it was a petition against consolidation, he would not have signed it. Certain misrepresentations are said to have induced their signatures.

Each of these persons could read and enjoyed his full faculties, “A person of ordinary mind cannot say that he was misled into signing a paper which was different from what he intended to sign when he could have known the truth by merely looking when he signed. DeCamp v. Hamma, E. Y. R., 29 Oh St 467. If this were permitted, contracts would not be worth the paper on which they are written. If a person can read and is not prevented from reading what he signs, he alone is responsible for his omission to read what he signs. MacAdams v. MacAdams, 80 Oh St 232, 240, 241, 88 N. E. 542.”

This statement announced in Dice v. Railroad Co., 15 Oh St 185, undoubtedly is still the general law of Ohio, even though the decision was reversed by the United States Supreme Court because it was found to contravene a federal statute, 96 L. Ed. 285.

Since it is concluded that the aforementioned individuals by failing to read the petition were alone responsible for their signing, it is concluded that the rejection of their signatures was based on an erroneous principle of law. Their names should have been counted.

With reference to the signatures of George Hagler, Rena Bell Hagler, Erwin Hagler and Mary Love, these persons testified in substance that they knew that they were signing a petition against consolidation. Several said they signed because they were told their children would have to go to the Spencer School, the children then attending Geneva Village School. At least one other said that she was told that the local school would be boarded up but that the people would continue to pay taxes on it. Though these representations related to future conditions, they nevertheless constituted present facts which reasonably may have induced these persons to sign. The defendant board did not abuse its discretion in not counting these signatures.

There is also a group of signatures involving persons who owned property both in the territory involved and outside the territory. Several of these owned homes in Florida where they filed affidavits of residence in order to obtain tax exemptions. Several others resided in other parts of Ashtabula County but spent their summers at Geneva-on-the-Lake.

This group included William Heasley, Mrs. William Heasley, Laurel L’Homme Dieu, Pauline L’Homme Dieu, William Regner, Mrs. William Regner and Mae Welton.

The defendant board had to decide the intent of each of these persons with reference to what home was regarded as the person’s residence. Such question was factual. On the facts presented it does not appear that the defendant board violated its discretion in excluding any of these signatures except those of Laurel L’Homme Dieu and Pauline L’Homme Dieu.- Mr. L’Homme Dieu categorically testified that on May 29, 1951 he deemed Geneva-on-the-Lake as his residence, and the other facts do not contradict that intent.

There is also a group of persons each of whom did not personally sign the written remonstrance but whose authority to have another sign for him was the question which the defendant board had to decide.

By stipulation the signature of W. E. King admittedly was not authorized.

But on all the evidence it seems clear that the signatures of Harry Buff, Edward J. Lye, and James V. Miller were authorized.

Ruling on the inclusion of defendant’s exhibit “I” was reserved. It is received. Rulings on questions and answers of George Hagler, Rena Bell Hagler and Donald Welton were reserved. These objections are overruled.

Coming then to the question of what relief is appropriate, the action of the defendant board taken on July 13, 1951, is contrary to law and will be permanently enjoined.

It is further concluded that the county school board under §4831-1 GC, should not be enjoined from proceeding with the creation of a new school district beyond the next general election following its action. Inasmuch as the 1952 general election has ensued, the plaintiffs are not entitled to any prospective injunctive relief.

An appropriate order is being entered.


author: By VAN BUREN, J.

text:
    RYCHENER v. LA CHOY FOOD PRODUCTS DIVISION OF BEATRICE FOODS CO.
    Common Pleas Court, Fulton County.
    No. 13298.
    Decided December 3, 1953.
    James L. Frey, James W. Williamson, Wauseon, for appellant.
    C. William O’Neill, Atty. Gen. John W. Hardwick, Asst. Atty. Gen., Columbus, for Bureau of Unemployment Compensation.
   OPINION

By VAN BUREN, J.

This is the third case involving the same defendants and basically the same questions of fact and law submitted to this Court, November 30, 1953, on appeal from a decision of the Board of Review of the Ohio Bureau of Unemployment Compensation.

As in the other two cases, namely, the Nofzinger case, Nofzinger v. LaChoy Food Products, Ohio Com. Pl., 67 Abs 404, 116 N. E. 2d 773, and the Schroeder case, Schroeder v LaChoy Food Products, Ohio Com. Pl., 116 N. E. 2d 775, the appellant had been laid off by the LaChoy Pood Products Divisiun of the Beatrice Foods Company at the Archbold plant during a slack time.

After a hearing before a referee of the bureau, he decided the claimant had not made a diligent search for other employment after she was laid off, and disallowed her claim for benefits. An appeal was taken to the Board of Review of the bureau, and the Board of Review affirmed the decision of the referee, although one of that board dissented. From that decision, an appeal was taken to this Court, as provided by §4141.28 E. C. (formerly §1346-4 GC).

As in the other cases, just decided, and to which reference is here specifically made, the appellee, the LaChoy Food Products Division of the Beatrice Foods Company, was represented by a firm of so-called “consulting actuaries,” who appeared at the hearing before the referee and participated in the examination and cross-examination of the claimant. Claimant in this case was not then represented by counsel Hence, it appears to this Court that the pattern of the three cases is precisely the same.

Here too the claimant, Laura Rychener, a housew-ife residing in Pettisville, Ohio, a small hamlet located half-way between the Villages of Archbold and Wauseon, worked for the LaChoy concern at Archbold at seasonal times from September, 1949, until November 21, 1952, when she was separated from that employment due to lack of work. From then on, she asserts, and the record clearly shows, she was actively seeking further employment.

She testified (Record page 3) that in the LaChoy plant, most of her work had to do with the canning of seasonable farm produce, and that

“Sometimes I had four or five things (to do) in one day.”

She testified further (Record page 3):

“Sometimes we were out on the track in the box car. putting cans on the track; sometimes beside the box car, putting cans on the track; sometimes making boxes. * * * We would be there maybe a half-hour, and then maybe called somewhere else.”

She was paid 75 cents an hour.

Her testimony also shows that she went to work with several other people from Pettisville, Ohio, who also were employed in the LaChoy plant in Archbold. “Occasionally. I drove” she said, but usually “I rode with several others that were employed there.” Pettisville to Archbold “is a distance of about five miles,” she said.

In seeking other employment after the LaChoy lay-off, she contacted the “wire factory” in Wauseon, when in Wauseon making her weekly reports to the office of the Bureau of Unemployment Compensation.

She also sought work in a restaurant in Pettisville, a dry goods store there, and several other places in Pettisville and Wauseon. For several weeks, she contacted at least one possible place of employment each week, and after that, two a week. She said (Record page 6)

“All the factories were laying off here in town at the time we were laid off.”
“Here in town” means to the Court the Village of Wauseon, as her testimony was there taken.

Again (Record page 8) she said:

“Q. In your opinion is contacting one employer a week an active search for work? A. Well, the way all the factories were laying off during that time, it sort of seemed, well, 1 don’t know, no point in asking where they were laying off, but that’s what you had to do, because this isn’t like a city. There are not too many places open for employment.” (Emphasis mine.)

Work in canning factories, and in many other places of employment mentioned by claimant are obviously seasonal, and it seems to the Court that claimant in this case did all she could reasonably be expected to do in seeking other employment. To require claimant to walk up and down the Main Streets of the local villages each week seeking work and to make repeated calls at the few, so-called, factories in' this rural area would be an unreasonable requirement for employment benefits to which she was otherwise entitled.

Like the muted voodoo drums of the jungles in the tropics, gossip and news travels fast in the small towns in this rural county. If work was available, all hands would know about it instantly. Likewise, if the trend was toward further unemployment, that also would be generally known.

It is important also to note that the local office of the Bureau of Unemployment never gave claimant any information as to further job possibilities in this area (Record page 7).

“Q. Did the Ohio Employment Service tell you of any job opportunities? A. No.”

Hence it is the opinion of the Court that Mrs. Rychener, appellant in this case, made every possible and reasonable effort to find employment after the LaChoy layoff, and that the findings of the referee and the Board of Review of the Bureau of Unemployment Compensation, refusing to allow her claim for benefits, are unreasonable, unlawful and against the manifest weight of the evidence.

Judgment will be given, therefore, in this case, as in the others, in favor of the appellant.


author: By DOYLE, J.

text:
    SHIRA, Appellant, v. B. F. GOODRICH CO., Appellee.
    Ohio Appeals, Ninth District, Summit County.
    No. 4238.
    Decided February 20, 1952.
    Merrill D. Brothers, for appellant.
    Wise, Roetzel, Maxon, Kelly & Andress, Akron, for appellee.
   OPINION

By DOYLE, J.

The appeal before this court is on questions of law from a judgment of the Court of Common Pleas of Summit County, entered upon a directed verdict for the defendant, The B. F. Goodrich Co., at the conclusion of the plaintiff’s evidence. The trial court found “that the plaintiff did not have the right to participate in the benefits of the Workmen’s Compensation Act of the state of Ohio,” and “accordingly directed a verdict for the defendant” and entered judgment thereon.

The action in the court below was a proceeding under authority of §1465-90 GC, growing out of an order of the Industrial Commission’s finding that claimant’s disability was not the result of an injury sustained in the course of and arising out of his employment.

It is the assertion of the claimant in his petition and in his testimony that he was injured in the course of his employment through exposure to poisonous gases while working on fuel cells for aircraft bombers at the defendant company. The injury is claimed to have occurred on the 27th day of July, 1941. It is further claimed that, by reporting to the defendant’s dispensary and other conduct by both the claimant and the defendant, the claimant, on March 24, 1942, satisfied the statute requiring application for compensation to be made within two years from the time of the injury. It is admitted that written application was not made within two years from the date of the injury, and the fact is that the first written claim was made on August 27, 1947.

On July 27, 1941 (the date of the alleged injury), §1465-72a GC, provided:

“In all cases of injury or death, claims for compensation shall be forever barred, unless, within two years after the injury or death, application shall have been made to the industrial commission of Ohio or to the employer in the event such employer has elected to pay compensation direct ”

It will be noted in the above section of the Code that written application was not required; and it may be that, if the statute had not been amended, claimant’s conduct might be found to have constituted an application for compensation.

However, effective September 4, 1941, the Code section above was amended to read as follows:

“In all cases of injury or death, claims for compensation shall be forever barred, unless, within two years after the injury or death, written application shall have been made to the industrial commission of Ohio or, in the event the employer has elected to pay compensation direct written notice of injury shall have been given to the industrial commission or compensation shall have been paid under §§1465-79,1465-80, 1465-81 GC within two years after the injury or written notice of death shall have been given to the industrial commission or benefits shall have been paid under §1465-82 GC within two years after the death.
“The industrial commission of Ohio shall provide printed notices quoting in full the last preceding paragraph and each and every employer who is authorized to pay compensation direct to injured employees or dependents of killed employees shall be required to post and maintain at all times one or more of such notices in conspicuous places in the workshop or places of employment.”

In the opinion of the members of this court, the time requirement for the written application for compensation in the above amended statute is mandatory and jurisdictional.

See: State, ex rel. Caton, v. Industrial Comm., 76 Oh Ap 249.

State, ex rel. Fruehauf Trailer Co., v. Coffinberry, et al., etc., 154 Oh St 241.

State, ex rel. Carr, v. Industrial Comm., 130 Oh St 185.

Assuming, but not deciding, that the claimant’s assertions have legal substance — that application for compensation was made on March 24, 1942 — our first problem is to determine which statute applies — the one in effect on July 27, 1941 (not requiring written application within the two-year period), or the amended section in effect on March 24, 1942 (requiring written application within two years). It will be remembered that no written application was made until August 27, 1947.

In deciding this question, attention is directed to §26 GC. It is in the following terms:

“Effect of amendment or repeal on pending actions. Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed, nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.” (Emphasis ours.)

It is our view that §1465-72a GC, before and after the amendment effective September 4, 1941, was and is remedial in operation on rights, obligations, duties and interests already existing: that it does not create and define substantive rights. Under these circumstances, §26 GC, supra, requires us to apply the statute (§1465-72a GC), as amended, to the present controversy. And in applying it, we determine that the Industrial Commission at no time acquired jurisdiction of the claim, for the obvious reason that the only application in writing was made more than six years after the cause arose, and the claimed application, not in writing, was not sufficient to confer jurisdiction on the Commission.

Under §26 GC, “The Legislature has provided in terms that, when the amendment * * * relates to the remedy, it shall not affect pending actions, unless so expressed. In this present controversy no action had yet been brought. Sec. 26 GC does not expressly provide that it shall not in remedial matters affect existing causes of action upon which suit had not been begun at the time the amendment or repeal went into effect. Was this an oversight? If so, it can make no difference in judicial interpretation, if the language is plain, clear, and unambiguous.”

Smith v. N. Y. C. Rd. Co.. 122 Oh St 45, at p. 52.

We find the language in the statute, as did the Supreme Court, “plain, clear, and unambiguous”; and we find that on the effective date of the amendment to the statute there was no “pending action.” There is a vast difference between a “pending action,” and a “cause of action” upon which suit has not been commenced.

In summary of our conclusion, we say that, regardless of whether an oral application for compensation had been made within two years from the date of the injury, nevertheless, such application, when made after the effective date of the amendment to the statute, was of no effect, for the reason that the amended statute controlled, and, in the absence of a written application, the Industrial Commission acquired no jurisdiction.

It is the further conclusion of this court that it is within the power of the courts to reverse or affirm the action of the Industrial Commission in accepting jurisdiction of a claim. See: State, ex rel., v. Coffinberry, et al., 154 Oh St 241.

This opinion could properly terminate at this point. However, in consideration of the two grounds given by the trial court in entering judgment for the defendant — viz., (1) an application in writing was not made within the statutory period, and (2) “the plaintiff did not suffer an accidental injury in the sense in which that term is used in the Workmen’s Compensation Law,” we not only affirm the action of the trial court on the basis of its first ground, but likewise find that the second ground is amply sustained by the evidence.

Judgment affirmed.

HUNSICKER, PJ, STEVENS, J, concur.