author: By BARTLETT, J.

text:
    PAELTZ, a Minor, etc., Plaintiff, v. LEONHER, Defendant.
    Common Pleas Court, Franklin County.
    No. 197660.
    Decided January 21, 1958.

      W. Bruce Jenkins, Asst. City Atty., Farnjer & Rownd, Columbus, for plaintiff.
    Joseph c. Kistler, Lancaster, for defendant.
   OPINION

By BARTLETT, J.

This is a suit by a minor, 17 years of age, by his next friend, for damages alleged to have been caused by the defendant maliciously assaulting and beating the plaintiff. The defendant himself is a minor 19 years of age.

The defendant has been personally served with the summons in this county by the Sheriff, and subsequently residence service of summons was made upon the father and natural guardian of the minor defendant in Fairfield County.

Two motions have been filed to quash the service of summons upon the infant defendant and his father, and to set aside the returns endorsed thereon.

“The validity of service of process depends upon the correctness of the venue of the action as brought, for no defendant is obliged to appear in answer to a summons issued out of the wrong county. Conversely, if the action is brought in the right county, service may be made upon summons issued to any county where the defendant is found, * * *”

“A guardian may be served with summons in a county other than that where the action is brought, if his ward is properly served.” 32 O Jur. p. 407, Process, Sec. 33; Validity of Service as Dependent upon Proper Venue; Norris v. Buchanan, 21 C. C. (N. S.) 497.

Sec. 2307.39 R. C., provides:

“All actions, other than those mentioned in §§2307.32 to 2307.38, inclusive, R. C., must be brought in the county in which a defendant resides or may be summoned, except actions against an executor, administrator, guardian, or trustee, which may be brought in the county wherein he was appointed or resides, in which cases summons may issue to any county.”

Secs. 2307.32 to 2307.38 R. C., have no application to the instant case.

Sec. 2703.04 R. C., provides in part:

“When an action is rightly brought in any county, according to §§2307.32 to 2307.40, inclusive, R. C., a summons may be issued to any other county against one or more of the defendants at the plaintiff’s request; * *
“The effect of these statutes (§2307.39 and §2703.04 R. C.) (supra), and of the venue statutes generally, and the decisions made under them, is that if one defendant is served in the county in which the action is brought, and as to him the venue is proper, service on any other defendant rightly joined in the action may be made upon summons issued to the county where he resides or is found.” 32 O. Jur. p. 409, Sec. 34, Validity of Service outside County of Venue as Dependent upon Service on Co-defendant within such county; see to same effect, Glass v. McCullough Transfer Co., 159 Oh St 505.

Sec. 2307.39 R. C., supra, fixes the venue of the present type of action in the county in which the defendant “resides or may be summoned.” Since the present action was brought in this county and personal service actually made upon the infant defendant in this county, the instant case was rightly brought in this county, under §2307.39 R. C., supra; and summons to another county was proper against the father of the infant defendant, upon whom residence service was obtained.

' “Where a summons is served upon an infant, and, thereafter, a new summons with a later answer day is served upon the parents, the combined service is sufficient to confer jurisdiction over the person of the minor.” Matthews, Admx., v. Vandervoort, 18 Oh Ap 174, motion to certify overruled by the Supreme Court, 22 O. L. Rep. 12.

In the foregoing case, Allread, J., in his opinion for the court on p. 175, says:

“The question, therefore, is whether summons and service solely upon the minor may, before any action is taken by the court prejudicial to the minor, be supplemented and amended by a service upon the father and mother.
“This is a new question in this state, and no direct authority has been found elsewhere. Tracing the history of service upon minors, we find that originally service upon minors over fourteen years of age could be made as upon adults. In 1902 the statute was so amended as to require the service of summons upon all minors to be made not only upon the minor but upon the guardian, parent, or other party with whom the minor resides. We think.that notice to the minor is the dominant purpose of the statute. The notice to the guardian, parents, etc., was supplementary, and intended to promote the interests of the minor. This statute should be construed with a view of promoting the reason and spirit thereof, and not with over-technical nicety. Where the service is upon the minor alone, and where the court has taken no action prejudicial to the minor, we see no reason to prevent the plaintiff from supplementing the defective service on the minor alone by a proper notice to the guardian or parents, as the case may be.”

On page 176 of his opinion, Allread, J„ continues:

“We cannot escape the conclusion that the original summons against the minor, and the supplementary summons against the father and mother, and the service thereon, conferred personal jurisdiction of the minor upon the court, and that the quashing of the service was erroneous.”
# * * * *
“3. The manner and method of service on the principal defendant is the same, whether he be an adult or a minor.”
“4. The guardian of a minor is not a necessary party defendant in an action arising from the minor’s tort, but he is a proper party defendant, and comes within the language of §11282 GC (now §2703.04 R. C., supra).
“5. The guardian may be served with process in a county other than that in which the action for tort was instituted against the minor.” Langan v. Kessinger, 23 Abs 392, motion to certify overruled by the Supreme Court.

In the foregoing case the infant defendant was personally served in the county where the action was brought against him, and subsequently his guardian was served in another county; and, thereupon, counsel for the infant defendant filed a motion to quash the service of summons upon the defendant. The facts and the procedure in the foregoing case are identical with the instant case, except that in the instant case the father, instead of the legal guardian, was subsequently served in another county.

Barnes, P. J., delivering the opinion of the Court in the foregoing case, on p. 394, says:

“The first summons issued was to the Sheriff of Green County, Ohio, and the same was properly served personally on the defendant. So far as this service on the defendant is concerned it appears to be in all respects a compliance with the above §11291 GC (now §2703.13 R. C.).
“* * * The manner and method of service on the principal defendant is the same, whether he be an adult or a minor. * *
“Reliance is placed on §11282 GC (now §2703.04 R. C., supra), which is claimed to be the only section pertinent to this issue. * * *”
“It is claimed that the guardian is not a defendant, and hence does not come within the specific language of the above section. It is true that the guardian of a minor is not a necessary defendant in an action arising from a minor’s tort, but the Supreme Court seems to recognize the propriety of making (him) party defendant. Stuard, Gdn. v. Porter, Admr., 79 Oh St 2.” * * *
“In the sense of seeking any relief against the guardian, there could be no necessity of naming the guardian as a party defendant. However, in the sense that the guardian is the proper person to make a defense for the ward, there is a situation recognized in reason and also under the Code that such a guardian be notified by service of summons of the pending action.
“The case of Stuard, Gdn. v. Porter, Admr., supra, discusses the relation of minor and guardian where suit is brought against the ward. While this case is not directly in point, we think the reasoning is helpful and supports the theory that when an action is properly brought, either the guardian or ward may be served in another county within the state. In any event, it is our conclusion that the situation in the instant case is within the spirit of the law authorizing summons to issue to another county.”

Sec. 2703.13 R. C. (formerly §11291 GC), provides in part:

“When the defendant is a minor the service of summons must be upon him, and also upon his guardian or father * * *. The manner of service must be the same as in the case of adults, and shall be made on such persons in the order named in this section.”

In the light of the decisions in the foregoing cases of Vandervoort and Kessinger by Judges Allread and Barnes, two of the most able appellate judges in the judicial history of Ohio, we conclude that personal service on the infant defendant in this county where the action was Drought, followed by the subsequent service in another county upon his father, meets fully the requirements of §2703.13 R. C., supra, and vests jurisdiction in this court over the person of such minor defendant.

The motions to quash the service of summons upon the minor defendant and his father, and to set aside the return endorsed thereon, are each overruled. Entry accordingly with exceptions by counsel for defendant.


source: Caselaw Access Project

author: Per CURIAM.

license: Public Domain

text:
    STATE, ex rel. RUSSELL, Relator, v. EAST LIVERPOOL CIVIL SERVICE COMMISSION et, Respondents.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 746.
    Decided February 21, 1957.
    • George A. Aronson, East Liverpool, Samuel H. Copperman, Youngstown, for relator.
    Joseph W. Cooper, East Liverpool, for respondents.
   OPINION

Per CURIAM.

This is an action in mandamus commenced in this court seeking an order compelling respondents to permit relator to take the promotional examination to be held for the purpose of filling the office of Chief of the Police Department of the City of East Liverpool, and was submitted to us upon the following stipulations:—

“1. It is agreed and stipulated by counsel for plaintiff and counsel for the defendants that the relator, John L. Russell, was the duly appointed Chief of Police of the City of East Liverpool, Ohio, in 1952 and has regularly served in said position until May 1st of 1956.
“2. That the relator received on April 26th, 1956, the following letter from the Mayor arid the Safety Service Director of the City of East Liverpool, Ohio,:
“ ‘April 26, 1956. John L. Russell, Police Department, City of East. Liverpool, Ohio. Dear Sir: In the past month much criticism has arisen due to the operation of the Police Department and also due to the fact that many robberies have remained unsolved during the last several years.
“ ‘We therefore feel that it would be for the best interests of the Police Department that you should be replaced. To enable this to be done we ask that you accept a demotion from the rank of Chief of Police to that of Lieutenant of Police.
“ ‘We would appreciate an early response to this letter.
Yours very truly,
Arnold W. Devon, Mayor.
William C. Heasley,
Safety & Service Director.’
“3. That the relator on April 26th, 1956, replied by letter as follows:
“ ‘April 26, 1956. Honorable Mayor Arnold W. Devon & Safety & Service Director William c. Heasley, City of East Liverpool, Ohio. Dear sirs:- I am writing this letter in answer to your letter of this date. I am familiar with recommendation made by the Grand Jury of Columbiana County.
“ T have served the Police Department of the City of East Liverpool, as patrolman, Lieutenant, and Chief of Police for a period of 23 years and during that time I feel that I have served the City well and faithfully. It is my belief that the Grand Jury report is based upon misunderstandings in regard to my position.
“ ‘If it is your belief that the best interests of the department and the city require my demotion, as you state m your letter, then not wishing to stand in the way, I hereby accept the demotion from Chief of Police to Lieutenant of Police, effective as of May 1,1956. Yours very truly, John L. Russell.’
“4. No written charges of any kind were ever made by the Mayor or the Safety Director or the Civil Service Commission of East Liverpool, Ohio, against the relator, John Russell, or were served on John Russell or the Civil Service Commission.
“5. No hearing was ever held before the Civil Service Commission pertaining to the reduction in rank or the demotion of relator.
“6. Relator has since May 1, 1956, served as a Lieutenant in the East Liverpool Police Department up until the present day.
“7. An examination for the Chief of Police, East Liverpool, Ohio, was set for August 16th, 1956, by the Civil Service Commission.
“8. Relator made application in proper time and in proper form on August 4, 1956, as set by the Civil Service Commission for August 16, 1956, as per letter dated August 4, 1956, as follows:—
“ ‘August 4, 1956. To the Civil Service Commission of the City of East Liverpool, Ohio. Gentlemen: Having requested application form but not having received one, I hereby make application by this letter, to take the examination for the position of Chief of Police of the City of East Liverpool, Ohio, now set for August 16, 1956.
“ ‘Also attached to this letter is one dollar examination fee.
“ ‘Should there be a refusal may I please have reply in writing. Respectfully yours, John L. Russell.’
“9. The Civil Service Commission replied refusing relator’s application as per letter of August 4, 1956, signed by the Secretary of the Civil Service as follows:
“ ‘Mr. John L. Russell, 151 Main Blvd., East Liverpool, Ohio. Subject: Promotional Examination for Police Chief. Dear Sir: In reply to your letter of August 4, 1956, please be advised that this commission is complying with the City Solicitor’s opinion that you are ineligible to compete in the above examination to be conducted August 16, 1956. This opinion states that your acceptance of demotion for your replacement as Chief of Police will not permit you to be your own replacement. Enclosed is the $1.00 fee which accompanied your letter. Very truly yours, Civil Service Commission, by: R. G. Borger, Secretary.’
“10. At the time the captain’s position in the Police Department was and still is vacant.
“11. Providing the relator was lawfully demoted or reduced in rank to Lieutenant from Chief of Police, then on August 16, 1956, the date set by the Civil Service Commission for the Chief’s examination, and there were and there are at the present time two Lieutenants, being Lieutenant John Russell and Lieutenant Americo Radeschi.
“12. The Civil Service Commission had opened the examination for the Chief’s position set on August 16, 1956, to all police desiring to take said examination below the rank of Lieutenant.
“13. There were no police at the time of the said examination nor are there now any police in a grade higher than Lieutenant.
“14. If the court finds there is now a vacancy in the office of the Chief of Police and if relator is found eligible to take the exámination, then the examination shall be limited to Lieutenant Radeschi and Lieutenant Russell.”

Notwithstanding that the question presented is now and was moot because the date of examination had expired before the appeal was heard, we will proceed to determine that question as though the petition sought to compel the respondent Commission to permit relator to take such examination whenever set by such commission.

Relator argues that respondent contends:—

“* * * that by the appointing authority attempting to demote the relator to the position of lieutenant the entire sequence of promotion was upset and an attempt was made to upset the full force and effect of the Civil Service Statutes."

Relator contends:—

“* * * that he has two issues before this court:
“1. That as Chief of Police on April 26. 1956, he was presented with correspondence from the respondents and that such is set out as Stipulation No. 2 and his reply is Stipulation No. 3. Relator contends that the transaction consisting of Stipulation No. 2 and Stipulation No. 3 is a nullity inasmuch as it was irregular and not in compliance with the law as set out by the Civil Service Statutes of the State of Ohio.
“Secs. 143.01 to 143.48 R. C., provide generally: All reduction * * * in the Civil Service of the * * * cities * * * shall be in accordance with, and governed by, the Civil Service Act and the rules of the State or Municipal Civil Service Commission within their respective jurisdictions. The courts of Ohio have enforced the provisions of this Section.
“State, ex rel. Bay v. Whitter, 110 Oh St 216:
“ ‘The acts upon the part of the respondent as to the suspension do not meet the mandatory provisions of the statute, and the attempted suspension was illegal, void, and of no effect.’ ”

Further relator contends:—

“* * * that any appointment to a vacancy must be made from an eligibility list prepared by the Civil Service Commission and that the offer by the appointing authority to the relator to the position of lieutenant as set out in Stipulation No. 2 was illegal and that the acceptance as set out in Stipulation No. 3 was void and that the entire transaction in its entirety was illegal and a nullity and that the relator is still the Chief of Police of East Liverpool. Ohio.”

Respondents contend:—

“1. That the letter of the Director and the Mayor of the City of East Liverpool to the Relator as set out in Stipulation Number 2 and relator’s-answer thereto as set out in Stipulation Number 3 constitute a valid acceptance of a demotion or reduction in rank on the part of the relator.
“2. That the language used in both letters in Stipulations Number 2 and 3 taken and read together clearly expresses the intent of the parties thereto that the Office of the Chief of Police was to be vacated and John L. Russell, the relator, was to be replaced and therefore relator has rendered himself ineligible to take the examination as part of the terms of his demotion or reduction.
“3. That relator is estopped by his own action to assert his claim to the office of Chief of Police or to take the examination for filling the vacancy created by his reduction in rank.”

The question presented is whether relator is estopped by his own action to assert his claim to the office of Chief of Police or to take the examination for filling the vacancy created by his reduction in rank.

As applicable §143.26 R. C., provides:—

“* * * No chief of police or chief of a fire department shall be reduced in rank, laid off, or suspended, except as provided in §§143.27 and 143.28 R. C., with reference to the removal of any officer or employee in the classified service of the state, counties, cities, and city school districts. * *

Obviously the foregoing section of the Revised Code upon which relator relies controls demotions and reductions forced upon officers by the appointing authority.

Relator was of full age and had many years experience as Chief of the Police Department and the unquestioned legal right to accept demotion, which acceptance legally bound him as well as the Department of Police.

In our opinion relator was demoted legally.

As to the other question presented whether relator has the right to take the examination for the office of Chief of Police, he, as well as officer Radeschi, each being lieutenants are automatically on the eligibility list of candidates for the examination of the office of Chief of Police.

At the time of demotion no provision or condition was attached barring him from taking future promotional examinations.

Clearly he is entitled to take such examination, and we so hold.

Writ allowed.

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


author: By SKEEL, PJ.

text:
    MARKOVICH, Plaintiff-Appellant, v. McKESSON AND ROBBINS, INC., et., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24407.
    Decided April 2, 1958.

      Lawrence E. Stewart, for plaintiff-appellant.
    John R. Kistner, for defendant-appellee.
   OPINION

By SKEEL, PJ.

This appeal comes to this court from a judgment for the defendant entered on the verdict of a jury as directed by the court on defendant’s motion for judgment at the conclusion of plaintiff’s presentation of her evidence. The action is based on plaintiff’s amended petition seeking damages, her first cause of action being in negligence in that defendant manufactured, sold and distributed a chemical product known as “Prom Home Permanent: which was alleged to be unfit and dangerous for human use when applied as directed, and in her second cause of action claiming damages by reason of a breach of warranty made in inducing the sale and use of such product.

It is alleged by the plaintiff that the defendant, Prom Cosmetics (a division of the Gillette Company), manufactures and sells a chemical compound known as “Prom Home Permanent.” Plaintiff says that in selling or causing such preparation to be sold to plaintiff for her personal use and when applied as intended, the defendant warranted that said product was of merchantable quality and fit to be used in the administration of a cold permanent wave and that it “was wholesome, safe and suitable under all circumstances.”

The plaintiff alleges that on June 9, 1954, she purchased from the defendants a package of its “Prom Home Permanent” and used it in an attempt to administer a permanent wave to her hair. Plaintiff then alleges that she followed the directions furnished by the defendants but because such product was unwholesome, injurious, deleterious and unfit for human use, she, as a direct result of the carelessness and negligence of the defendants and by reason of their breach of warranty, which warranty induced the sale, suffered injury to her face and scalp and hair (her hair almost completely falling out).

The defendant, Prom Cosmetics, by answer, entered a general denial. The defendant, McKesson and Robbins, Inc., was dismissed from the case before trial.

The evidence introduced by the plaintiff tends to establish that the plaintiff was a patient of “Sunny Acres,” a' hospital then managed by the City of Cleveland, caring for patients suffering from tuberculosis. That quite some time prior to June 9, 1954, she had been subjected to a pneumotomy operation. Upon permission being given by the hospital authorities for the plaintiff to administer to herself a “home Permanent Wave.” plaintiff, with the help of a nurses aide, shampooed her hair and then had the nurses aide purchase for her immediate use a “Prom Home Permanent” from the concession stand in the hospital. Her testimony on this part of her case was as follows:

“Q. You have indicated to us you received a shampoo; is that correct?
“A. Yes, sir.
“Q. Now, what, if anything, occurred after you had received the shampoo?
“A. Well, I asked Mr. (sic) Liggins if she would give me a home permanent and she told me I would have to get permission for that. She says, T will let you know.’ So she came back later after she gave me the shampoo and she said that T got permission. It would be all right.’ So she asked me what kind of permanent I wanted to get. So I told her I had been listening to Prom ads from my earphones and it seems to be the easiest one, won’t have to go through all of that neutralizing, and everything, so I told her to get the hard to wave Prom. So when she came back she had gentle wave Prom. She told me they didn’t have that one, so she says, T think maybe this one may be better for your hair anyway.’ So I said, ‘Okay,’ and then we — * * *
“Now, what, if anything, occurred when Mrs. Liggins came back to your room with the Prom and the spin curlers?
“Well, we opened the box, it contained a bottle of lotion, some cotton, packages of papers, there may have been two little packages of papers and the direction sheet. So we started to read the directions. I was reading them out loud. She was looking over my shoulder. We read them several times. So I told her, ‘You' might as well take a test curl first and we will start on that,’ because I always get a test curl in any beauty shop I have ever went first. So she took — ”

The directions introduced into evidence contain, among other things, the following:

“Prom Home Permanent — Now—New Easier Method * 15 Minute Timing • Towel Turban Control.
“Prom leaves your hair in better condition than any other waving method because—
“A The clear water rinse removes any unused waving lotion from your hair.
“B Prom’s new Self-Neutralizing is a gentler, more natural action— no separate neutralizer is needed!”

Both the plaintiff and the nurses aide testified that in applying the “Prom Home Permanent.” they read the directions with great care and followed them explicitly. Two test curls were made with apparent success and then they completed the waving of plaintiff’s hair, using all of the waving lotion in complete accord with the instructions. The plaintiff’s hair was then covered with a towel, turban fashion, as directed. After waiting about six hours, the turban was removed and they attempted to remove the spin curlers. The plaintiff testified on this subject as follows:

“Q. And when the six hours had passed, what, if anything, occurred? What did you do?
“A. I removed the towel and I went over to the sink and I could see it wasn’t dry, got scared, so I touched it, felt like melted rubber, something, so I took one curl out, so the hair pulled out of the curler and it looked like lye had eat it up, it was just stringy, that come out in strings, so I got exicted. I turned my light on, so Mrs. Trowbridge came down to my room and answered the light and when she came in she said, ‘What’s the matter?’ So I am crying. By that time she gets a chair there. She said, ‘Here, sit down in the chair.’ She was as excited as I was almost, so she started taking the curlers out and the hair was all falling, then, in strings, melted, and in the sink and she was, in the meantime, trying to pour water over it, trying to get it out to see what is loose, what to do, so I still says, ‘Don’t let all my hair go through the sink.’ I grabbed some of it, threw it up on the sink so I could save it, so she got through and they was a few strains here and there and the test curls that we had taken were hanging so she took the scissors, had to take scissors to get what was left off.
“Incidentally, can you tell us whether or not there was any odor in connection with the Prom Home Permanent lotion? Yes; they were. It had a terrible odor like something burning. I know some permanents they do have an odor to them, but I never smelled one that bad. So bad a patient down the hall she thought the hospital was on fire. She smelled it all the way down to her room, about five doors down.”

The nurse, referred to by the plaintiff, who helped to remove the spin curlers, corroborated in complete detail plaintiff’s description of the results of the loss of her hair by the use of the defendants’ “Prom Permanent” lotion.

There is no direct evidence in the record as to the chemical content of defendant’s “Prom Permanent” wave preparation purchased by the plaintiff for the reason that it was all used as directed by the defendant’s instructions contained in the box in which the lotion was packed. An expert witness (a medical doctor specializing in dermatology), testified with regard to a chemical ingredient (Thioglycolate) contained in the Prom Permanent Wave. This witness, after examining the patient’s head and hair about November 12, 1954, testified:

“My diagnosis was that she sustained a contact dermatitis of the scalp, eyelids, forehead and ears due to the direct, irritating chemical. A contact dermatitis is a dermatitis or inflammation of the skin which results from coming in contact with something that inflames it or irritates it and we speak of these things as contact dermatitis. She also had an injury to the hair itself. One, that she actually had a chemical hair7 cut. The chemical was applied to her hair and resulted in excessive softening of the hair so that when it dried it became brittle and broke, so she had a chemical haircut, actually. The hairs, were still there, just like short grass would be after cutting the lawn. Secondly, she had a quantitative loss of hair where the. hair actually came out of her scalp. That was manifested by the fact that on tugging and pulling it brought out complete hairs, and you could see those little bulbs which I refer to as papilli and it was manifested by the fact that every time she combed her hair it came out. It is also manifested by the fact that her hair was obviously tight in certain areas as compared with the fact of her hair coming out through tugging, loads of hair.”

This witness also testified, in answer to a hypothetical question describing in detail the plaintiff’s use of “Prom” and the results that immediately followed the loss or breaking off of plaintiff’s hair, as follows:

“I believe there is a direct causal relationship between the application of the chemical known as Prom to the events that followed, namely, a reaction on the hair by over-swelling resulting in its increasing-brittleness and breaking off; that there is, further, an injury to the hair throughout its entire length, clear down to its papilla, resulting in a loss of hair on the scalp; and, thirdly, I believe there is a direct relationship between the application of this chemical, called Prom, and the inflammation that followed on the surface of the scalp, the skin involving the scalp, forehead, eyelids and behind the ears.”

As indicated, the court at the conclusion of the plaintiff’s case granted defendant’s motion for judgment and dismissed plaintiff’s petition at plaintiff’s cost for which judgment was entered.

The plaintiff claims “The judgment is contrary to law in that the trial court erred in rendering final judgment against the plaintiff-appellant in favor of the defendant-appellee, on defendant-appellee’s motion for a directed verdict at the conclusion of plaintiff’s evidence.”

If upon the face of the record, the plaintiff was by law entitled to have her case submitted to the jury on one or more of the claims pleaded, if supported by credible evidence, then the judgment must be reversed and the cause remanded.

The plaintiff’s case is based first on negligence, second upon an express warranty, and third, upon an implied warranty.

As to the first of these claims, that is that the defendant was negligent in furnishing a product that could not be safely used in the manner and for the purposes intended, which failure on the part of the defendant was a proximate cause of plaintiff’s injuries, the evidence is clearly sufficient to take the case to the, jury. Almost the identical question was considered by the Supreme Court in the case of Sicard v. Kremer, 133 Oh St 291, 13 N. E. 2d 250, the first paragraph of the syllabus provides:

“1. Where, in an action against the distributor of a hair dye, inherently dangerous, by a purchaser thereof from a local dealer, the evidence shows that the purchaser, in using the hair dye according to directions contained in a leaflet accompanying it, proximately sustained both personal injuries and damages to her business as a beauty parlor operator, it is not error prejudicial to the defendant distributor for the trial court to submit the case to the jury on the issue of negligence.”

And on page 294, the court said:

“In the sale of an article, the seller owes a duty beyond the mere contract. Not only must the goods be according to contract, but if used according to directions they must not carry harm to the buyer. In Clerk and Lindsell on Torts (9 Ed.j, page 2, it is said: ‘There may be a tort which arises out of breach of contract and yet is independent of it.’ In the manufacture and sale of goods, the seller may not include therein, beyond the terms of the contract, anything which, unknown to the buyer, will cause the latter injury. This extra duty to refrain from including in the article any dangerous substance unknown to the buyer may be illustrated in the bestowal of a gift from one to another. Even though there be no purchase price, one has no right to bestow an article containing a hidden danger on another as a gift, knowing that the usé thereof by such other will cause the latter injury. But where there is consideration, the responsibility to refrain from including in any such article any hidden danger is very much greater. There is the obligation that the goods will be fit for the particular purpose intended and the further duty to refrain from including therein any hidden danger unknown to the buyer. Failure to meet the first obligation is a breach of warranty, express or implied; failure to meet the second duty is negligence.”

The second claim, of an express warranty, is also supported by credible evidence sufficient to require the case to be submitted to the jury on that issue. The plaintiff was induced to purchase “From Home Permanent” by defendant’s radio broadcast, urging its use with the statement that a neutralizer other than water was unnecessary, making the application or use of its product much more convenient than those of other manufacturers. The product was purchased because of the warranties published by the defendant. The defendant induced the sale and is liable if the product thus bought does not comply with the representations made and the health of the user, is endangered when the product is - used as directed by the manufacturer.

The Supreme Court, affirming the Court of Appeals (77 Abs 249, 139 N. E. 2d 8711 in the case of Rogers v. Toni Home Permanent Company, 167 Oh St 244, 147 N. E. 2d 612, said in the third paragraph of the syllabus:

“3. Under modern merchandising practices, where the manufacturer of a product in his advertising makes representations as to the quality and merit of his product aimed directly at the ultimate consumer and urges the latter to purchase the product from a retailer, and such ultimate consumer does so in reliance on and pursuant to the inducements of the manufacturer and suffers harm in the use of such product by reason of deleterious ingredients therein, such ultimate consumer may maintain an action for damages immediately against the manufacturer on the basis of express warranty, notwithstanding that there is no direct contractual relationship between them.”

The final claim of the plaintiff is that the evidence presented estab • fished a prima facie case of an implied warranty sufficient to require that question to be presented to the jury under proper instructions by the court. Let it be said at the very outset that, for the most part, an implied warranty is one imposed by law (which is equally true of an express warranty) to impel just results between parties. The Sales Code provides that where goods are sold by description, there is an implied warranty that the goods shall be of merchantable quality. Also, where the buyer makes known the purpose for which the goods are purchased and relies on the seller’s skill or judgment to deliver goods reasonably fit for such purpose (§1315.16 R. C.), there is an implied warranty that the goods thus purchased are reasonably suitable for the purpose intended.

In Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, 116, it is said:

“* * * But when the seller is the maker or manufacturer of the thing sold, the fair presumption is that he understood the process of its manufacture and was cognizant of any latent defect caused by such process and against which reasonable diligence might have guarded. This presumption is justified in part by the fact that the manufacturer or maker by his occupation holds himself out as competent to make articles reasonably adapted to the purposes for which such or similar articles are designed. When, therefore, the buyer has no opportunity to inspect the article, or when, from the situation, inspection is impracticable or useless, it is unreasonable to suppose that he bought on his own judgment, or that he did not rely on the judgment of the seller as to latent defects of which the latter, if he used due care, must have been informed during the process of manufacture. If the buyer relied, and under the circumstances had reason to rely, on the judgment of the seller, who was the manufacturer or maker of the article, the law implies a warranty that it is reasonably fit for the use for which it was designed, the seller at the time being informed of the purpose to devote it to that use.”

We recognize the fact that here the purchaser bought defendant’s product from a sales stand maintained in a public hospital for the convenience of the patients and not directly from the manufacturer. It is true that the Supreme Court of Ohio has held in the case of Wood v. General Electric Co., 159 Oh St 273, 112 N. E. 2d 8, that, without privity, the obligation of an implied warranty cannot be sustained. This rule was followed in Welsh v. Ledyard, 167 Oh St 57, 146 N. E. 2d 299, entirely on the authority of the Wood case, supra. But it is to be noted that in the case of Rogers v. Toni Home Permanent Company, supra, the court said, on page 249:

“Without commenting on the soundness of the holding in the Wood case, in the light of what has been stated above, suffice it to say that should a case come before this court with facts resembling those in the Wood case, it would then be time to re-examine and reappraise that decision.”

Where an implied warranty is imposed by law, words of description used to identify the property which induced the sale, can hardly be distinguished from an express warranty as that term is defined by law, that is, a representation relied upon by the buyer which has the effect of inducing the sale. Under such circumstances where the obligations are imposed by law, it would be most difficult to distinguish between them in attempting to impose “privity” as a necessary element in making out a cause of action. Here the plaintiff ordered the defendant’s product. The McKesson and Robbins, Inc., (the defendant dismissed from the case before trial) and the hospital were the only means by which defendant made its product available to the buyer. When she got delivery, defendant’s product was in the original container and the lotion therein securely corked in a bottle. Neither McKesson and Robbins, Inc. nor the hospital made any representations that had the effect of inducing the sale.

The requirement of privity as a necessary element in the enforcement of a claimed warranty in a sales transaction cannot be understood unless considered in the light of the early development of the warranty obligation. First conceived of as an action in tort, the breach of the warranty representation, thus actionable, in no way qualified the buyer’s duty to receive, pay for and keep the goods. The representations were held to be collateral to the bargain and until a seller directly, by collateral declaration of warranty, represented some particular quality in the goods, the doctrine of caveat emptor applied. From this beginning, the common law developed with the advance of the commercial needs of community life. The need for a collateral declaration was soon abandoned and courts' recognized that the provisions of the contract could be relied upon not only to support an action for breach of an express warranty but that a warranty could be implied from the circumstances and that an action on the contract, as well as in tort, was available. Williston, in his consideration of this question, in paragraph 197, at page 250, of his work on Sales, published in 1909, says:

“Much of the intrinsic difficulty and still more of the divergence of authority which characterize the law of warranty are due to an imperfect recognition of the nature of the obligation imposed by a warranty. As has been seen, the action upon a warranty was in its origin a pure action of tort. There is no doubt that to-day the obligation of a warrantor is generally conceived of as contractual, and there can be no doubt also that a seller may expressly promise to be answerable for some alleged quality of the articles sold, or that if he makes such a promise for good consideration he enters into a contract. This, however, does not either upon authority or reason exhaust the possibilities of express warranties. It should not be the law, and by the weight of modern authority, it is not the law that a seller who by positive affirmation induces a buyer to enter into a bargain can escape from liability by denying that his affirmation was an offer to contract. A positive representation of fact is enough to render him liable. The distinction between warranty and representation which is important in some branches of the law is not appropriate here. The representation of fact which induces a bargain is a warranty. As an actual agreement to contract is not essential the obligation of the seller in such a case is one imposed by law as distinguished from one voluntarily assumed. It may be called an obligation either on a quasi-contract or a quasi-tort, because remedies appropriate to contract and also to tort are applicable. That this is the character of the seller’s obligation was recognized by Blackstone, and that this point of view has been lost sight of by some courts is no doubt due to the fact that assumpsit became so generally the remedy for the enforcement of a warranty. But even at the present time an action of tort for warranty still lies irrespective of any fraud on the part of the seller or knowledge on his part that the representations constituting the warranty were untrue.”

The so-called requirement of privity as a necessary element of an action for breach of warranty, declared during this period of the development of the common law of sales by the courts, found its justification in the fact that the promise, or representation, was, in fact, contained within or concerned with inducing the actual sales contract between the immediate parties. It was logically held that the promise or representation of the first seller became the property of the buyer dealing with him and to whom they were made, and that such promises or representations in no wise induced a sub-purchaser to buy the goods. Nor could it be considered that such first purchaser intended to assign to his sub-purchaser any of his rights acquired by his purchase from the original seller. Under these circumstances, the requirement of privity can be clearly understood. An express or implied warranty was not or even now could not be made out as a property right of a sub-purchaser in that kind of transaction. But even as conditions changed, a warranty, express or implied, continued to be an obligation imposed by law (not necessarily contractually assumed) and was available to an ultimate purchaser when the purchase was induced by the acts of the manufacturer or producer seeking to create a retail market for his goods where a middleman stocks the manufacturer’s goods to meet the demands of the ultimate consumers. The ultimate buyer would not' have become a purchaser of the subject of the sale had it not been for the representations of the manufacturer or producer made to the ultimate purchaser to induce his use of the product. If such representations are such (as requiring a purchase by description or for a particular purpose), the law would imply a warranty under the circumstances and such implied warranty becomes an obligation of the manufacturer or producer inducing the purchase.

Under the circumstances here presented, no distinction between establishing an express or implied warranty should be made. The plaintiff’s case, based on implied warranty, should have been sustained for the consideration of the jury.

Judgment reversed and cause remanded for further proceedings according to law.

Exceptions noted. Order see journal.

HURD and KOVACHY, JJ, concur.


author: By PETREE, PJ.

text:
    COLUMBUS (City), Plaintiffs-Appellees, v. BURRIS, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5844.
    Decided March 25, 1958.
    Russell Leach, City Atty., Bernard T. Chupka, City Pros., Paul A. Scott, Asst. City Atty., Columbus, for plaintiff-appellee City of Columbus.
    Isadore Margulis, Columbus, for defendant-appellant.
   OPINION

By PETREE, PJ.

This is a law appeal from the Municipal Court of Columbus, Traffic Division, where three cases were' heard together.

The bill of exceptions contains the record made in Case No. 15849 and Case No. 15852, both of which were State of Ohio v. Earl Burris and both of which involved driving after revocation in violation of §4507.38 R. C. The bill of exceptions also contains the record in Case No. 15850, wherein Earl Burris was charged with unlawful speed in violation of Section 27.326 of the Columbus City Code.

The jury found the defendant, Earl Burris, guilty on all three charges.

Defendant, appellant herein, filed in this court the following assignments of error:

1. The Municipal Court of Columbus, Ohio, erred in overruling the defendant’s motion for dismissal and to enter judgment for the defendant made at the close of the plaintiff’s evidence, and also erred in overruling the defendant’s motion to dismiss and enter judgment for the defendant at the close of all evidence.

2. The verdict and judgment of the Municipal Court of Columbus, Ohio, is contrary to law.

3. The verdict and judgment of the Municipal Court of Columbus, Ohio, conflicts with the defendant’s Constitutional rights, and the Reviséd Code, sections of the State of Ohio and especially §2945.27 R. C., which is mandatory.

4. The lower Court erred in overruling the defendant’s motion for a new trial.

5. The Corpus Delicti of the crime was not established or proven against this defendant, by proof beyond a reasonable doubt.

One of the complaints made by appellant, which he raised in the lower court also, is double jeopardy in Case No. 15852. A demurrer had been sustained to the charge against appellant involving the same offense alleged to have occurred on or about July 27, 1956, and contained in 1956 Case No. 26665. A copy of this affidavit in Case No. 26665 is shown as defendant’s Exhibit A. The appellant was finally tried on the same set of facts in Case No. 15852.

In view of the statutory authorization to amend indictments and affidavits when done according to law, we feel that this point is not well taken. The record indicates that before the case was presented to the jury, the case was finally amended on the morning of the trial, and Officer Allman was resworn 10/21/57 before J. A. McHale, Deputy Clerk of the Municipal Court.

Another charge was amended in Case No. 15849 to delete certain conclusions of law, so that as the cases went to trial, all three affidavits were in such form as to state an offense.

Another question discussed by the appellant relates to §2945.27 R. C. The record shows that the court required the prospective jurors to be sworn before the voir dire. The record is silent as to any questions propounded by the court. However, there were a number of questions on voir dire by the prosecution. On Page 23 the court stated, “The defense counsel may inquire.” To which Mr. Margulis, attorney for appellant (defendant in lower court), answered, “No inquiry at this time, your Honor.”

On Pages 24 and 25 the following occurred:

“THE COURT: Does the defense have any challenge for cause?
“MR. MARGULIS: None, your Honor.
“THE COURT: Does the prosecution have any preemptory challenge?
“MR. SCOTT: No preemptory challenge.
“THE COURT: Does the defense have any preemptory challenge?
“MR. MARGULIS: None, your Honor.
“THE COURT: The jury will then stand and be sworn.
“(Thereupon the jury was sworn by the deputy clerk.)
“MR. MARGULIS: At this time, your Honor, we’d like the record to show that we aren’t waiving any of our rights under the constitution and laws of the State of Ohio in reference to the picking and impanelling of a jury. We are taking exception to all the rights that we are entitled to.
“MR. SCOTT: What was that?
“THE COURT: Just a minute. Well, at this time, the Court will have a seven minute recess during which time the Court will admonish the jurors not to discuss this case in any way and to allow no one to talk to you about any matter pertaining to this trial. If there should be an attempt to do so, report the matter at once to me.
“MR. SCOTT: Wait a minute, your Honor. I want to get this in the record.
“THE COURT: We’ll consider this at the end of the recess. '
“(And thereupon a recess was taken.)
“AFTER RECESS
“MR. SCOTT: Let the record show that on voir dire examination, there was no examination by the defendant nor was there any preemptory challenges taken — period.”

While the statute, as amended more than a month before this trial, directs the court to examine the prospective jurors under oath or affirmation as to their qualifications to serve as fair and impartial jurors, it would seem that it is the duty of the defendant or his counsel to call the court’s attention specifically to the nature of his objections and that his general statement on Page 24 to the effect that “we aren’t waiving any of our rights under the constitution and laws of the State of Ohio in reference to the picking and impanelling of a jury,” is not sufficient to constitute prejudicial error by putting the court on notice as to the nature of the objections. The record is silent as to counsel’s contentions in the matter, and it does not show that Mr. Margulis even referred to §2945.27 R. €., at this point.

The time to give the opportunity to the court to correct errors was then and there. The failure of appellant’s counsel to point out to the court what specific objection he had, when coupled with his other statements recited above from Pages 24 and 25 when he said that he did not have any challenge for cause or peremptory challenge, makes the error one which was not prejudicial because at most it was an error of omission. Counsel cannot sit idly by and talk generally about the constitutional and statutory rights of the defendant and fail to challenge the array at the end of a rather complete voir dire examination by the prosecutor and then take advantage of an error of omission by the court.

Assignment of error No. 5 is not well taken under the rule laid down in State v. Maranda, 94 Oh St 364, Paragraph 2 of the syllabus.

We find none of the assignments of error well taken; and, therefore, the judgment of the Municipal Court of Columbus will be affirmed and mandate will be sent for the execution of its sentence.

Judgment affirmed.

BRYANT and MILLER, JJ, concur.


author: By PHILLIPS, PJ. By GRIFFITH, J. By NICHOLS, J.

text:
    KETTERER et, Plaintiffs-Appellees, v. RED STAR TRANSIT COMPANY, INC. et, Defendants-Appellants. KETTERER et, Plaintiffs-Appellees, v. RED STAR TRANSIT COMPANY, INC. et, Defendants-Appellants. KETTERER et, Plaintiffs-Appellees, v. RED STAR TRANSIT COMPANY, INC. et, Defendants-Appellants.

      Ohio Appeals, Seventh District, Mahoning County.
    No. 3842.
    Decided June 5, 1956.
    Comus M. Beard, Youngstown, for plaintiff-appellee, Donald Y. Ketterer, A. I. Goldman, Youngstown, for The Providence Washington Insurance Company.
    William E. Pfau, William E. Pfau, Jr., Youngstown, for defendants-appellants.
   OPINION

By PHILLIPS, PJ.

During daylight on the clear day of October 1, 1953, plaintiff Ketterer drove a tractor-trailer outfit, referred to herein as an outfit, loaded with 20,000 pounds of steel, at about forty miles an hour, and William Ray drove Red Star Transit Company’s White tractor and Fruehauf trailer tandum outfit, likewise referred to as an outfit, loaded with empty beer cases weighing 2,700 pounds, south on Route 165 about thirty miles an hour, into collision each with the other on a bridge eighteen feet ten inches wide, situated four miles south of New Springfield, Ohio.

The parties stipulated in the trial court that the damages to Kettererd’s outfit was $3,589.39, and the damage to the Red Star Transit outfit was $4,000.00.

The jury returned a verdict for $3,589.38 for plaintiff Ketterer (and his insurer The Providence Washington Insurance Company, which was subrogated to his rights), upon which verdict the trial judge subsequently duly entered judgment.

Defendants appealed to this court on questions of law from the judgment of the trial court.

Substantially plaintiff Ketterer testified that as he'approached the bridge he noted the sign posted thereon “narrow bridge,” and defendants’ outfit when it was six hundred feet away and he was four hundred feet from the bridge; that while crossing the bridge the left front wheel of defendants’ outfit hit the left dual wheel of the outfit he was driving throwing his outfit out of control causing it to cross the center line of the highway beyond the bridge against the guard rail on the left side of Route 165 and back into the ditch on his right side thereof; that with the load he was hauling and the speed his outfit was traveling the trailer had a tendency to sway; that he did not apply the brakes because application of the brakes then would have a tendency to cause the trailer to sway to a greater extent; that the tractors of each outfit passed without collision, and that he did not see the trailers collide; that he assumed defendants’ outfit would stop before entering on the bridge; that he entered the bridge with his outfit about six inches over the center line, and tried to operate his outfit entirely on his own side of the highway while travelling on the bridge.

The operator of defendants’ outfit testified on cross-examination:—

“Q. It seemed to you as Mr. Ketterer approached the bridge he came over on to his own right hand side of the highway, is that right?
“A. Hugging the line, yes.
“Q. What?
“A. Hugging the line, yes.
“Q. Hugging the line; but he was on his own right hand side?
“A. Yes.
“Q. And he continued that way over on to the bridge, is that right?
“A. I don’t know what he did on the bridge.
“Q. As far as you saw him,, as he was coming on the bridge, he was on his own right hand side?
“A. Yes.”

In their first assigned ground of error defendants contend that the trial judge erred to their prejudice in permitting counsel for plaintiff, over their objection, to attempt to rehabilitate the testimony of plaintiff Ketterer from other questions answered by him on cross-examination when his deposition was taken under the statute, and also on his direct examination on deposition, which defendants’ counsel contends plaintiffs’ counsel had no right to ask: and contends that “this entire rehabilitation testimony, contained in the record from pages 37 to 43 inclusive, was improper, misleading, erroneously admitted, and highly prejudicial to the defendants-appellants.”

The questions and answers in the deposition were proper to show that plaintiff gave the same answers on trial as he did in his deposition. In my opinion the reading of the questions and answers offered by deposition did not prejudice defendants’ rights. No new evidence was introduced in the case. The one question and answer defendant read to the jury was merely explained.

I find no error prejudicial to the defendant in the assigned ground of error under discussion.

In his general charge to the jury, in which defendants claim the trial judge erred to their prejudice the trial judge said “then the defendant, by what is called a cross-petition, and that is simply a device to bring another case into this * *

' The burden of defendants’ argument with reference to the general charge is “that it was so long and laborious that no doubt it was difficult for the jury to attempt to follow it; that the court seemed to take the position that the filing of a cross-petition was some underhanded scheme on the part of the defendant”; that the court did not use an adjective to define the word “device” such as the word “proper” or “proper legal device,” and that by reason thereof “the jury got a wrong impression from the mere fact that a cross-petition was filed as if it were a subterfuge used to attempt to thwart justice.”

The record discloses, as defendant contends, that during his general charge the trial judge said:—

“Then the defendant, by what is called a cross-petition, and that is simply a device to bring another case into this, which arises from the same circumstances, makes an affirmative claim against the plaintiff that its tractor and trailer outfit was damaged in this collision, that the collision was caused by the negligence of the plaintiff in operating his vehicle in a number of respects in most part similar to the claims of the plaintiff against the defendant, namely, failure to keep on the right or proper side of the highway, excessive speed and failure to control the car. Now, that, of course, is denied by the plaintiff.”

Later in his charge the trial judge defined the issues in plaintiff’s petition and said with reference to defendants’ cross-petition:—

“* * * I shall now, therefore, deal with the defendants’ affirmative claim against the plaintiff.
“Now the simplest way to look at that is that the positions, so far as the usual position in a lawsuit is concerned, are completely reversed; this time really the defendant is in the position of a plaintiff; he is asserting an affirmative claim as against the plaintiff, who is defending against the claim. I will not, however, change the names of the parties unless by mistake, but I think what I have just said will perhaps give you a slightly clearer idea of how to approach the problem.”

Plaintiffs claim that there is nothing wrong with the first remark of the judge,

While the use 'of the word “device” unqualified was unfortunate yet studying the charge of the trial judge as a whole it is clear to me that as said in 4 O. Jur.. Second, Section 991, Page 264, “men of ordinary intelligence would not be misled in the performance of their duties as jurors” by instructions given them by the trial judge.

“If the charge sufficiently sets forth the various material questions for the determination of the jury, fairly and substantially states the law in regard thereto and the consequent rights and liabilities of the parties, fully acquaints the jury respecting its province, and contains nothing prejudicially erroneous, it is not ground for reversal that it is not wholly free from inaccuracies, that it could have been improved in form, that it is not elegant in style, that it might have been couched in better or more appropriate language, or that it might have been better to have stated it differently. Even though a charge does not state the issues particularly well, reversal is not required if, taken as a whole, it is not misleading as to the matters in issue between the parties.” 4 O. Jur., Second, Section 991, Page 264.

It appears from the entire charge that a correct statement of the law applicable to the evidence was given in such a manner that the jury could not have been misled, and accordingly I believe no prejudicial error can be held to have resulted from any of the claimed errors of the trial judge with reference to his charge.

Defendants contend that the verdict of the jury and judgment of the trial court entered thereon are against the manifest weight of the evidence. Plaintiffs contend that the sole qúestion for the jury to decide was whether the plaintiffs or defendants, or both, were negligent. The only witnesses were the two truck drivers.

I concur in the statement in the opinion of Griffith, J., that -.this court “can reverse the judgment below only when the verdict of the jury is so manifestly contrary to the natural and reasonable inference to be drawn from the evidence as to produce a result in complete violation of substantial justice,” but conclude that by the verdict of the jury and the judgment of the trial court entered thereon a result has been produced in complete violation of substantial justice. In my opinion the verdict of the jury is so manifestly against the weight of the evidence “as to shock the conscience to permit it to stand,” and for that reason the judgment of the trial court should be reversed as against the manifest weight of the evidence.

However, since the judgment of the trial court cannot be reversed on the ground that it is against the manifest weight of the evidence “except by the concurrence of all the judges of the court of appeals” and one member of the court finds “no error in the record prejudicial to the rights of the appellant” and affirms the judgment of the trial court that judgment must be affirmed.

GRIFFITH, J, concurs in judgment.

NICHOLS, J, dissents.

OPINION

By GRIFFITH, J.

The basic question raised in the trial of this case for the jury to decide was: Which vehicle was being operated over the center line of the highway in violation of law?

The only testimony offered was that of the driver of each outfit. Photographs of the highway at the place of collision, taken the day after the accident, were properly admitted in evidence. These photographs show marks on the highway as they existed immediately after the collision.

Each driver testified that he was on his own right side of the road. The plaintiff, who was driving his own outfit, said that the defendant’s tractor hit the left rear wheel of the plaintiff’s tractor.

The defendant’s driver testified that the two tractors of the outfits passed each other, and he was over to his right as far as he could get without hitting the bridge abutment. Each driver testified that they did not see the impact. The defendant’s driver testified that plaintiff’s trailer, as it approached the place of the collision, was swaying five or six inches but that it seemed to straighten out as it came closer to the culvert, that plaintiff’s outfit was oh his own right hand side of the road as he approached the bridge, but he was hugging the white line. Each driver testified that the cabs of their vehicles were already across the culvert at the time of impact.

Prior to trial, the deposition of plaintiff was taken. On cross-examination of plaintiff, he was asked if at the time his deposition was taken, the following question was not propounded and answer given:—

“Q. Before you and the other truck came together, did you continue towards it with your outfit about six inches over to the left of the center line?
“A. That is right.”

On re-direct examination, counsel inquired of plaintiff:—

“Q. All right. Mr. Pfau asked you this question: ‘So that I understand you correctly, when you first saw the on coming outfit, your outfit was about six inches to the left of the center of the road, is that correct?’ And do you recall this answer? A. Well, six inches on the inside of our lane, I would say, Q. Yes. A. Because it was between the white line and the cement abutment on the bridge whenever it hit me. Do you recall giving me that answer?
“Mr. Pfau: I object.
“Court: He may answer. Has he answered?
"A. Yes.”

This inquiry by plaintiff’s counsel was tied right in with the defendant’s cross-examination. It was an immediate part of the deposition the defendant had used in cross-examination. This was a matter immediate in the deposition to the question singled out by the defendant and was in explanation to that question and answer. It was not a matter of rehabilitating an impeached witness.

The witness admitted making the answer in the deposition but the answer, as brought out in cross-examination, was not the complete answer, and he should be entitled to make a full and complete answer to the single subject of inquiry.

The trial court was correct in permitting the plaintiff to complete his answer.

The defendant complains that the verdict was against the manifest weight of the evidence.

The Court of Appeals, upon an assignment of error involving the weight of the evidence, can reverse the judgment below only when the verdict of the jury is so manifestly contrary to the natural and reasonable inference to be drawn from the evidence as to produce a result in complete violation of substantial justice.

On factual questions, a reviewing court will accept the determination of the fact finding entity, be it jury or court, unless so manifestly against the weight of the evidence as to shock the conscience to permit it to stand.

“We are required as a reviewing court to indulge every reasonable presumption in favor of the validity and regularity of the judgment under review, and if there is substantial evidence in the record from which reasonable minds might reasonably draw different conclusions the judgment must not be disturbed.” Hellebush v. Tischbein Apothecaries, Inc., 53 Oh Ap 162.

Defendant’s third assignment of error goes to the court’s general charge to the jury. The court stated:—

“When the defendant, by what is called a cross petition, and that is simply a device to bring another case into this * *

Undoubtedly, it would have been better had the court used the term, “legal device,” or “proper legal device,” but the language used was not prejudicially erroneous where, in view of the rest of the charge, the jury could not have been misled or prejudiced.

Finding no error in the record prejudicial to the rights of the appellant, the judgment is affirmed.

PHILLIPS, PJ, concurs in judgment.

NICHOLS, J, dissents.

DISSENTING OPINION

By NICHOLS, J.

From my careful examination of the record in this case and consideration of the briefs and arguments of counsel I arrive at the conclusion that reasonable minds can not differ but must find that the drivers of both colliding vehicles are guilty of negligence which was a direct and proximate cause of the collision and resulting damage; wherefore neither party has the right to recover, and that the judgment should be reversed and the action dismissed.


text:
    McFARLAND, Plaintiff-Appellee, v. SHIRKEY, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5737.
    Decided March 18, 1958.
    Tyack & Gertner, Columbus, for plaintiff-appellee.
    John H. Lewis, Columbus, for defendant-appellant.
   OPINION

Per CURIAM.

Frank Shirkey, defendant-appellant, has appealed on questions of law from the verdict and judgment of the Common Pleas Court of Franklin County, Ohio. In that court, $2,000 damages were awarded against Shirkey and in favor of George McFarland, plaintiff-appellee. In the court below, the petition was regarded as setting forth a cause of action for malicious prosecution.

Shirkey lives in Franklin County near Grove City. On the evening of Sunday, November 8, 1953, his home was burglarized and $790 in currency hidden in a box was stolen.

Shirkey discovered the loss early the next morning, made immediate report of it to the Sheriff and two deputies arrived in less than an hour and began the investigation. From that point progress in solving the crime appears to have been slow. At the time, Shirkey was unable to name any suspects, but events occurring subsequent to the burglary and a reappraisal of events and occurrences prior thereto, caused him to suspect and accuse George McFarland and Carl Medders, son-in-law of McFarland, both of whom lived nearby. Shirkey kept the Sheriff’s office fully informed of all clues coming to his attention. Late in December, nearly two months after the burglary, it appeared little progress had been made toward solving the crime. Shirkey was informed if he wanted anyone arrested, he would have* to file an affidavit and he went to a nearby Justice of the Peace and signed an affidavit charging McFarland and Medders with burglary and grand larceny.

When copies of the affidavit and warrant were given to the Sheriff to make an arrest, action was refused on the ground that they were not properly made out. Several weeks more passed by and a conference was held in the office of the Prosecuting Attorney attended by Sheriff’s deputies, a Justice of the Peace, Shirkey and an Assistant Prosecutor. The latter prepared an affidavit alleged to be in correct form. Shirkey signed the same and a warrant was issued thereon and a second time delivered to the Sheriff. It appears that no action was taken on this latest warrant at least for several months.

The new affidavit was filed January 18, 1954 and while the record is not clear as to the dates, it appears that McFarland was in the Sheriff’s office on three occasions. On two of the occasions he received a written notice to appear for questioning. On one of these visits he was questioned and asked if he would furnish a set of his fingerprints. He agreed to this and they were taken. Except for the fact that the questioning occurred in the office of the Sheriff’s deputies in the jail, it does not appear that there was any confinement. McFarland was never placed in a cell nor was he required to furnish bond. He appears never to have been slated in. On the second of the two visits to the County Jail, pursuant to a written order to appear, the procedure seems to have been similar to the first except that McFarland and Medders were asked if they would voluntarily take a lie detector test and both agreed to take such test. On the third visit to the County Jail it appears that McFarland and Medders were transported in a car operated by a deputy sheriff. It would appear that at the end of the questioning the third time, both were permitted to leave the jail voluntarily.

McFarland did not take the lie detector test, being away from home on private business at the time set for the test.

The one other official proceeding occurred during May 1954 when a preliminary hearing was held by the Justice of the Peace before whom the burglary and larceny charges were pending. Present were McFarland, Medders, their attorney, the Justice of the Peace, Assistant Prosecuting Attorney, Shirkey and several prosecution witnesses. At the conclusion of the hearing, the charge was dismissed.

The petition in this case omitting the heading, caption, signatures and other formal parts thereof reads as follows:

“Plaintiff says that on or about the 18th day of January, 1954, the defendant falsely accused said plaintiff of burglary and grand larceny and caused the plaintiff to be imprisoned in the Franklin County Jail in Columbus, Ohio, to which County Jail he was confined and deprived of his liberty.
“Plaintiff says that said accusation was false and that said arrest was without legal proceedings, as was also his said imprisonment. Plaintiff says that in so doing the defendant acted wantonly and without probable cause and with reckless disregard for the rights of the plaintiff, said plaintiff being released by a Court of competent jurisdiction and the charges against this plaintiff dismissed.
“Plaintiff says that at the time and before such arrest, he was generally regarded as a man of good reputation and standing and as a result of such unlawful arrest and imprisonment this plaintiff suffered humiliation, indignities, mental anguish and injury to his business and reputation.
“Plaintiff says that by reason of such unlawful and wrongful acts of the defendant he has suffered damages in the sum of Twenty Thousand Dollars, and further has incurred expenses including attorney fees of approximately Three Hundred Dollars.
“WHEREFORE, plaintiff prays for judgment against the defendant in the sum of Ten Thousand Dollars ($10,000.00) as compensatory damages and for Ten Thousand Dollars ($10,000.00) as punitive damages and, in addition thereto, a reasonable sum for attorney fees and expenses, all for the total judgment of Twenty Thousand Three Hundred Dollars ($20,300.00); together with his costs herein expended.”

As above stated this petition was treated as stating a cause of action for malicious prosecution. For example, in arguing the case to the jury, counsel for plaintiff states (Record, p. 485): “It is what we commonly refer to as a malicious prosecution.” The trial court in his .charge to the jury likewise refer to it as an action for malicious prosecution stating (Record, p. 520): “This is a so-called action for malicious prosecution * * *.”

Reference was made by counsel for appellant to Ohio Procedural Forms as being a source of the form used for the cross-petition. This well-known authority appears also to have been followed in drafting plaintiff’s petition, which appears closely to resemble Form 4605, page 505. Volume 6 (1948 Replacement), of the said Ohio Procedural Forms. While the distinction between forms of action has been largely abolished, it is interesting to note that the form apparently used as the pattern for the petition in this, case was, according to the editors of Ohio Procedural Forms, designed for use in cases of false imprisonment and obviously not for use in cases of malicious prosecution. The said Form 4605 is entitled “Petition for False Imprisonment — Punitive Damages.”

Of course, the matters of interest here are the allegations which are contained in the petition and we note that nowhere in plaintiff’s petition are found such words as “malicious prosecution,” or “maliciously,” or even the word, “prosecuted.” The said Volume 6 of the Ohio Procedural Forms contains several forms appropriate for use in drafting petitions in malicious prosecution actions and every one of them contains the word, “maliciously.” They also describe in detail the “action” which was alleged to have been prosecuted “maliciously.” The reason is clear, for malice is an indispensible element in the action for malicious prosecution. For example, in one of the forms in the said Volume 6, supra, said to be appropriate for a petition when there has been a malicious prosecution of a civil action (Form 4610), there appears this phrase:

“* * * defendant wrongfully, maliciously, and without probable cause, commenced a certain action * * *.”

In another. form designed for a petition for malicious prosecution of a misdemeanor case to wit, speeding (Form 4611), there appear these words:

“* * * defendants falsely and maliciously and without reasonable or probable cause * *

And still another form designed for petitions for damages for malicious prosecution of a charge of larceny (Form 4613), there appear the following words:

“* * * falsely and maliciously, and without reasonable or probable cause therefor, filed an affidavit against the plaintiff before and in the ______________Court of__________, Ohio, charging him with the offense of grand larceny, * *

Referring to Ohio Civil Practice Manual (Baldwin, 6th Edition) there is only one form for use in suits for damages for malicious prosecution, being Form 41-32. Said form reads in part as follows:

“* * * falsely and maliciously and without probable or reasonable cause * * *.”

This becomes revelant in light of the fifth assignment of error, which is as follows:

“The Court erred in overruling Defendant’s Motion for a Directed Verdict.”

It is the contention of defendant that the record fails to disclose a scintilla of evidence of malice and that this is an essential and required element of plaintiff’s case without which said case must fail. No where does the record disclose any evidence that the actions of Shirkey in this case were for an ulterior or improper purpose nor does any one doubt that Shirkey sincerely believed McFarland and Medders were guilty of the offense charged. What we must consider here is not whether the evidence is convincing beyond a reasonable doubt of the guilt of McFarland and Medders, but whether Shirkey did or did not believe in the truth of the charge and if he did so believe whether or not a reasonable man would have been warranted in so believing.

Shirkey’s original suspicion was aroused by the manner and demeanor, first of McFarland, and second of Medders, during separate conversations with them. It was during a casual conversation, according to Shirkey, when he merely stated that he had had bad luck and that his place was burglarized, that both McFarland and Medders changed their demeanor, hung their heads, lowered their voices and were unable to look him in the face.

As before stated the burglary occurred Sunday evening, November 8, 1953. Shirkey testified that he personally had observed McFarland in the immediate vicinity on Friday and Saturday just before the burglary. Shirkey’s daughter, Mrs. Almeda Hahn, had driven out to the Shirkey home on the Saturday night just before the burglary to pick up her daughter. Mrs. Hahn left her daughter with the Shirkeys while she worked at a supermarket and left her place of employment at 10:00 P. M. She stated that by the light of the headlights of her automobile she observed a man prowling in the vicinity of the Shirkey home as she drove up. She testified positively and without equivocation that she knew McFarland when she saw him and that the man who came out of the dark shadows alongside her father’s house at 10:00 P. M. on the day before the burglary and furtively darted across the road, was McFarland. This was on Saturday night, one day before the burglary. When Shirkey reported his suspicion as to McFarland and Medders to the Sheriff’s investigators he was told that they had been questioned and McFarland had stated he was in Chicago having left Franklin County near the middle of October and did not return until the day after the burglary. In light of what Shirkey testified he saw with his own eyes, corroborated by the testimony of the daughter, we cannot find that a reasonable man under the circumstances would have acted in any different manner.

No one disputes the fact that Shirkey’s house was looted. The crime in such case, labeled burglary of an inhabited dwelling in the night season, is denounced and penalized by Ohio criminal law in the severest of terms. It carries with it the penalty, upon conviction, of life imprisonment unless the jury trying the case recommends mercy, when the mandatory penalty becomes five to thirty years. Those convicted of this crime may face a mandatory penalty of life imprisonment. Only murder in the first degree carries a more severe penalty.

It is therefore apparent that there was a total absence of evidence of malice on the part of Shirkey. This was a fatal defect in the evidence offered by plaintiff in support of his cause of action and the motion for a directed verdict should have been sustained. It follows then that the fifth assignment of error is well taken and must be sustained. In light of the holding we have just made, the seventh assignment of error, namely, the overruling of the defendant’s motion for a new trial, likewise is well taken and must be sustained.

Looking at the petition in its most favorable light, it states a cause of action for false imprisonment. False arrest or false imprisonment may occur when the arrest or imprisonment is not authorized by adequate court process. A warrant issued by a court unless utterly void is a complete defense to an action for false arrest or false imprisonment. The petition refers to January 18, 1954, which unquestionably is the date on which the second affidavit was filed with the Justice of the Peace. There is no evidence that an arrest or imprisonment took place on or about that date. Evidence seems to be reasonably clear that nothing was done for about four months until May 1954 when a hearing was had before the Justice of the Peace on the charge and it was promptly dismissed.

Counsel for plaintiff in argument before this court frankly admitted that they did not proceed on the theory of false imprisonment stating that because plaintiff was never placed in a cell, they doubted if they could produce evidence which would sustain such cause of action.

Hence, it is that even though the petition may have been sufficient to allege the elements for an action for false imprisonment, the evidence in support thereof is insufficient to sustain it. What then about an action for malicious prosecution? We have heretofore referred to the absence of evidence of malice on the part of Shirkey. It should be noted that there was a failure to allege malice in the petition and that the entire claim of that document is based upon the deprivation of liberty and the unlawful interference therewith rather than humiliation, embarrassment and damage to reputation, which are the basis of action for malicious prosecution. _•

Plaintiff was asked only one question having to do with the matter of damage to reputation, humiliation or embarrassment arising from the criminal proceedings. In response thereto he stated that at the two feed stores where he bought feed for his horses, they asked him concerning his account or bill. This is difficult to understand in light of plaintiff’s flat unqualified assertion that he never charged such purchases but always paid for them in cash.

We now turn our attention to the first assignment of error made by defendant. It will be remembered that the case was tried to a jury upon the petition of plaintiff, the answer and cross-petition of the defendant. The answer consisted of a general denial. The cross-petition alleged that plaintiff and another had wrongfully taken $790 from defendant’s home and asked damages therefor. When the taking of testimony had been completed and both sides had rested, plaintiff moved to dismiss defendant’s cross-petition. This motion was sustained by the court and the court proceeded on its own motion to instruct the jury to disregard the evidence in support of the cross-petition.

Defendant’s objections thereto are brought up in his first assignment of error, which is as follows:

“The trial court erred in instructing the jury that they were not to consider the Cross Petition or any evidence offered in support of the Cross Petition.”

It is the contention of defendant that the instruction of the court that no evidence offered in support of the cross-petition could be considered by them, took away from the jury all of the evidence offered by way of defense. The principal theory of defendant was that plaintiff .was guilty of the burglary and grand larceny. Much of the evidence offered by the defendant was in support thereof. The stenographic report as to just what took place (Record, p. 484) is as follows:

“THE COURT: You may open the argument, Mr. Tyack. You have thirty minutes on each side.
“Ladies and gentlemen of the Jury, the Court has dismissed the defendant’s cross petition and you will not consider .that cross petition or any evidence offered in support of that cross petition at this time.
“MR. LEWIS: Note an exception to the statement of the Court in that the evidence offered in support of the cross petition is the same evidence that is offered in defense.
“THE COURT: Now, I would have you understand that only the evidence that was offered in support of the cross petition is excluded. Such evidence, for instance, as the unlawful removal of $790.00 from the defendant’s house by George McFarland, and his attorney’s fees for the defense of this case. Those are the two items of evidence which you will disregard.
“MR. LEWIS: Note an exception.
“THE COURT: Proceed with the argument.”

It is, of course, well settled that in such a case as this the defendant has a right to put in issue the question of the guilt or innocence of the plaintiff. The plaintiff in such case was obligated to prove more than the mere filing of the charge and subsequent dismissal. Of paramount importance was the proof with respect to malice on the part of Shirkey and McFarland was also required to show there was a want of probable cause.

On the part of Shirkey, his strongest defense would be to prove that McFarland was in fact guilty of the burglary and larceny. In 25 O. Jur. 939, Malicious Prosecution, §66, it is stated:

“The defendant in an action for malicious prosecution may introduce evidence to prove or tend to prove that the plaintiff was actually guilty of the offense charged, despite his discharge or acquittal. Such evidence is always admissible. * *

In 34 Am. Jur. 788, Malicious Prosecution, §147, it is pointed out that a plaintiff who brings an action for malicious prosecution puts in issue his innocence. It is further stated that defendant may offer competent evidence tending, to prove the actual guilt of the plaintiff. Said section reads in part as follows:

“It has frequently been held that the plaintiff in an action for malicious prosecution must, notwithstanding his acquittal in the original prosecution, always be regarded as tendering the issue of his innocence or freedom from liability, and must fail in his action if that innocence or nonliability can be disproved, whether the prosecutor acted from malicious motives or not, and whether or not he knew of the facts establishing the plaintiff’s guilt or liability. Competent evidence tending to prove the actual guilt or liability of the plaintiff is, therefore, generally held to be admissible in favor of the defendant. In the language of one of the decisions thus holding, the law considers that if a criminal is fortunate enough to escape conviction, he should rest content with his good luck, and not belabor one who suspected his guilt and acted accordingly. * *

Hence, it is clear that the instruction given by the trial court to the jury had the effect of removing from the jury most of the evidence offered by way of defense by Shirkey. Such ruling constituted prejudicial error and the first assignment of error is, therefore, well taken.

Under such circumstances it becomes the duty of this court to render the judgment which the court below should have rendered and (in addition to finding the prejudicial errors herein above referred to), it becomes the duty of this court to reverse the judgment of the court below and to enter final judgment in favor of the defendant.

In light of the conclusions which we have reached, no useful purpose will be served by giving consideration to the other errors assigned.

PETREE, PJ, BRYANT and MILLER, JJ, concur.


author: By PHILLIPS, J.

text:
    ABBOTT et, Plaintiffs-Appellees, v. TRUSCON STEEL CORPORATION et, Defendants-Appellants.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3925.
    Decided April 11, 1957.
    Herschel Kriger, Canton, for plaintiffs-appellees.
    Harrington, Huxley & Smith, Youngstown, for defendant, Truscon Steel Corporation.
    William Saxbe, Atty. Geni., Eugene P. Everhart, Asst. Atty. Geni., Columbus, for defendant-appellant, Administrator, and Board of Review, Bureau of Unemployment Compensation.
   OPINION

By PHILLIPS, J.

This matter comes before us on plaintiffs’ original and supplemental motions to dismiss the appeal of defendant, Administrator, Bureau of Unemployment Compensation.

On January 2, 1957, the court of common pleas reversed and vacated the decision of the Board of Review, Bureau of Unemployment Compenstation denying compensation to plaintiffs. On January 4, 1957, defendant, Truscon Steel Corporation filed a motion for new trial. On January 24, 1957, the trial judge overruled the motion for new trial. On February 13, 1957, defendant, Administrator, Bureau of Unemployment Compensation, filed his notice of appeal.

Plaintiffs claim in their original motion that the proceedings in the court of common pleas were not a de novo proceedings, and accordingly there is no sanction in law for the filing of a motion for new trial so as to extend the twenty day period for appeal from the judgment of January 2, 1957; and that this court has no jurisdiction to hear defendant’s appeal from the order of January 24, 1957, overruling defendant, Truscon Steel Corporation’s, motion for new trial, and accordingly should dismiss the appeal of the Administrator, Bureau of Unemployment Compensation.

Plaintiffs contend by supplemental motion that the appeal should be dismissed on the following grounds:—

“1. The Administrator, having originally held in favor of the claimants herein, is not an adverse party and is without standing to prosecute this appeal;
“2. The Board of Review has not appealed and, in any event, is without standing to prosecute this appeal;
“3. The employer has not appealed.”

By supplemental oral motion made in open court plaintiffs contend that the Administrator did not in any event file a motion for a new trial, and in any event a motion for new trial was a nullity.

Sec. 4141.28 R. C., which governs, confers upon the court of common pleas only the right to review a determination of the Board of. Review, Bureau of Unemployment Compensation. It does not empower that court to render an independent decision as in a de novo proceedings.

The statute qualifies and limits the word “appeal” to a consideration of the certified record filed by the Board of Review, Bureau of Unemployment Compensation.

In 1 O. Jur. (2d), Page 585, Section 192, it is said:—

“New evidence is not permitted to 'be introduced where a statute provides for review ‘upon the evidence contained in such record and no other evidence,’ for an appeal to be heard ‘upon such transcript and the evidence certified by the board,’ or for a ‘consideration of the record.’ ”

In 1 O. Jur. (2d), Page 587. Section 194, it is said:—

“Where a statute provides for an ‘appeal’ from an administrative determination, to be heard upon a transcript of the administrative proceedings, the review is nothing more than an error proceeding and the tiial court cannot hear the appeal de novo, * *

The proceedings in the court of common pleas was an appeal on questions of law, an error proceeding, and not an appeal on questions of law and fact, a proceeding de novo.

There is no statutory authority for filing a motion for a new trial from the appellate proceedings in the court of common pleas where that court was acting in an appellate capacity and no trial de novo was had.

Sec. 2321.17 R. C., provides in part:—

“A new trial is a re-examination, in the same court, of the issues after a final order, judgment, or decree by the court.
“A final order, judgment, or decree shall be vacated and a new trial granted by the trial court on the application of a party aggrieved, for any of the following causes affecting materially his substantial rights: * *

Almost the identical question with which we struggle was presented to the Court of Appeals of Franklin County in the case of Kremer v. Rear, 86 Oh Ap 309. In the opinion written in that case the court said: —

“We are, therefore, of the opinion that the provisions of §12223-7 GC, with reference to the filing of notice of appeal within 20 days after the entry of an order overruling or sustaining a motion for a new trial, means a motion for a new trial in the trial court. Such provisions do not refer to a motion for. a new trial in an appellate court, where the appeal is on questions of law only. Since the notice of appeal was not seasonably filed, the motion to dismiss will be sustained.”

In the matter before us we conclude that the notice of appeal of defendant, Administrator, Bureau of Unemployment Compensation, was not filed within the statutorily provided time.

In 3 O. Jur. (2d), Page 133, Section 254, it is said:—

“The filing of the notice of appeal within the period of time provided by the statute is jurisdictional. If the notice is not filed within such time, the upper court cannot hear the appeal, it fails to be perfected, and it will be dismissed.”

See also State, ex rel. Curran v. Brookes, 142 Oh St 107; Daily v. Dowty, 52 Oh Ap 84; Andrews v. Ackerman Coal Co., 59 Oh Ap 65: Wainscott v. Young, 81 Oh Ap 21; and State, ex rel. Longman v. Welsh, 133 Oh St 244.

While defendant’s notice of appeal recites that the appeal is taken from the order of the court of common pleas overruling the motion for a new trial it is apparent from the face of the motion for new trial that defendant attacks the judgment of January second on the merits.

In distinguishing the case of Roscoe v. Kolb, 93 Oh Ap 352, from a list of cases cited therein, the court at page 357 said:—

“The motions, however, were filed in the Common Pleas Court, which under the situation existing in each of the cases was actually sitting in the role of an appellate or reviewing court. The Kromer case arose in the Municipal Court of Columbus; the McKee and Billman cases each arose in the court of a justice of the peace. There being no provision of law permitting the filing of such motion in a reviewing court, and such court being without power to consider the same, the filing was 'a mere nullity, could not suspend the running of the time in which notice of appeal was required to be filed, and the appeals in those three cases were properly dismissed.”

In the case we review the court of common pleas stands in the position of a reviewing court.

Having disposed of plaintiffs’ motion on the grounds stated we believe it unnecessary to, and accordingly will not, pass upon all the grounds set forth in his motions.

Plaintiffs’ motion to dismiss the appeal of defendant, Administrator, Bureau of Unemployment Compensation, is sustained, and the appeal is dismissed at defendant’s costs.

NICHOLS, PJ, GRIFFITH, J, concur.