author: By THE COURT. By THE COURT.

text:
    NATIONAL SURETY CORPORATION, Plaintiff-Appellee, v. BLACKBURN, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4421.
    Decided March 31, 1950.
    Samuel Luper, Columbus, for plaintiff-appellee.
    Roy C. Blackburn, acting for himself.
   OPINION

By THE COURT.

Submitted upon motion of the plaintiff-appellee seeking an order dismissing the appeal for the following reasons:

1. The order of the lower court entered October 14, 1949 is not a final order from which an appeal can be taken.

2. The notice of appeal was filed more than twenty days from the orders which are being appealed.

3. The order of the lower court entered December 22, 1949 is not a final order from which an appeal can be taken.

4. No brief, transcript, or assignments of error was filed by defendant-appellant within fifty days of the filing of notice of appeal dated November 1, 1949.

The record discloses that on November 22, 1948, a default judgment was rendered against this appellant in the sum of $11,506.80; that on May 25, 1949, a petition was filed to vacate the default judgment and subsequent thereto the appellee filed a motion to strike from the files the petition to vacate for failure to tender therewith an answer alleging that there was a valid defense to the action as required by §11637 GC.

On October 14 the motion was sustained and the petition to vacate was ordered stricken from the flies. On November 1, 1949, notice of appeal was filed directed to the ruling of October 14, 1949, and also to the judgment of November 22, 1948.

The question immediately presented is whether the order striking the petition from the files is a final order as defined by §12223-2 GC. We are of the opinion that this is not such a final order and it would seem that the appellant was also of the same opinion for after said date numerous motions were filed by him.

In State v. Gilman, 126 Oh St 379, the court dismissed the petition in error for the reason that the sustaining of a motion to strike the amended petition from the files was not a final order or judgment from which error proceedings could be prosecuted. We are therefore of the opinion that the order of October 14, 1949, was not a final order from which an appeal could be taken. Should we be wrong in this conclusion,’then the 4th branch of the motion is well grounded since the assignment of errors and brief were not filed until March 2, 1949, which is more than fifty days after the filing of the notice of appeal.. The appeal of November first should therefore be dismissed for failure to comply with Rule VII of this Court.

'The record discloses further that on December 22, 1949, a judgment was rendered overruling all the defendant’s motions then pending before the Court. To this ruling a second notice of appeal was filed. The judgment was in response to several motions filed subsequent to the judgment of October 14, seeking a reversal of the judgment for various reasons and also for a separate finding of conclusions of law and fact. The overruling of a motion for a new trial is not a final order. Young v. Shallenberger, et al. 53 Oh St 291; Smith v. Bailey, 26 Oh St 1; Wells, Jr., v. Wells, 105 Oh St 471. Neither is the judgment overruling the motion for a separate finding of law and fact a final order but merely an interlocutory one to which error may be assigned when the case is properly before the Court.

It will be noted further that the notice of appeal filed November 1, 1949, was directed also to the judgment rendered on November 22, 1948. As to this judgment, the notice of appeal was not timely filed as §12223-7 GC requires that it be filed within 20 days after the judgment entry, no motion for new trial having been filed.

The motion to dismiss will be sustained.

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

ON MOTION FOR REHEARING

No. 4421. Decided April 14, 1950.

By THE COURT.

Submitted upon motion by the defendant for a rehearing, for an extension of time for the filing of briefs and for a separate Finding of Fact and Conclusions of Law. Since the rules of this Court do not provide for the filing of an application for a rehearing and nothing is set forth which would in any way cause this Court to change its former ruling, the application will be denied. As we stated in our previous opinion, the appellant’s brief and assignment of errors were not filed within rule, which was a second reason for the sustaining of the motion to dismiss the appeal. The first and prime reason for the dismissal was that the appeal was not from a final order, which is a prerequisite before this Court can acquire jurisdiction. This being true, it would serve no useful purpose to permit the filing of assignment of errors and brief out of rule. This motion will therefore be overruled.

The request for a separate Finding of Facts and Conclusions of Law is not in order, as this Court heard no facts in this case. It was submitted and decided upon questions of law only. This motion will also be overruled.

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

ON APPLICATION FOR EXTENSION OF TIME

No. 4421. Decided May 24, 1950.

By THE COURT.

Submitted on application of appellant for “extension of time before filing of journal entry for filing of objection in writing.” The opinion upon which the journal entry was prepared responded to a motion of the appellee to dismiss the appeal. The entry was submitted to appellant acting for himself and he noted in his own handwriting exception thereto. The Court thereupon approved the entry and it was spread on the record.

Rule VIII cannot be given application to an entry which is plain and not involved and which counsel has seen and acted upon. No good purpose could be served in considering written objections that would be filed to an entry wherein the finding is genera] and responds only to a motion to dismiss.

The application for extension of time, etc., will be denied.

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


source: Caselaw Access Project

author: By PHILLIPS, PJ.

license: Public Domain

text:
    MASTRAN CONSTRUCTION COMPANY, Plaintiff-Appellant, v. MAHONING EXPRESS COMPANY, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3294.
    Decided January 16, 1950.
    R. G. Mock, A. H. Rheuban, Youngstown, for plaintiff-appellant.
    McKain, Ohl & Swanner, Youngstown, for defendant-appellee.
   OPINION

By PHILLIPS, PJ.

The parties to this appeal, both Ohio corporations, who will be referred to in this opinion as they stood in the court of common pleas, executed a paper writing, dated “the — day of -,” whereby plaintiff leased lands and buildings, which buildings were approximately 35 years old, situated in Youngstown, Mahoning County, Ohio, to defendant for the term beginning July 19, 1946, and ending October 18, 1947, which defendant used as an office and a warehouse.

In the first cause of action of its petition, filed in the •court of common pleas, plaintiff sought a money judgment against defendant for “the unlawful and malicious destruction” by removal of partitions, wiring, plaster, lighting fixtures, service pipes, and in other respects not necessary to recite; ■and repair of the leased premises, which costs of repair the plaintiff’s evidence discloses was $4602.73. In its second cause •of action plaintiff sought a money judgment for the rental for the admitted storage of concrete pipes for a period of about eleven months, on a parcel of land owned by defendant but not described in the lease.

Eleven members of the jury returned a verdict for the plaintiff in the amount of $165.00, upon which the trial judge subsequently duly entered judgment. Plaintiff appealed to this court from that judgment on questions of law.

By assignments of error defendant contends that “the trial judge committed error in the admission of testimony over the objection of counsel for the plaintiff”; abused his “discretion in the rejection of testimony offered by plaintiff in rebuttal”; that “defendant’s counsel was guilty of misconduct in cross-examination of witness Donald Mastran”; that “the trial court failed to charge upon the issues involved, as required by law,” and committed error in his charge to the jury; and finally that “the verdict of the jury is contrary to law and against the weight of the evidence.”

Both parties introduced evidence in their attempts to support the allegations of their respective pleadings, not necessary to state here further in order to understand the questions presented for our consideration and determination by plaintiff’s assignments of error.

Saying to the jury “if this testimony is not connected up we will rule it out,” and after the discussion of such testimony “then I want it followed through in the manner indicated,” the trial judge permitted defendant to introduce testimony pertaining to negotiations between the parties prior to the execution of the lease involved in the case we review, and to conferences and statements made between various lawyers who were in the negotiation of a new lease, too lengthy to even attempt to detail here; and allegedly carried on “an ■entire discussion in the presence of the jury pertaining to the contents of” a letter, which was part of the evidence :he permitted to be introduced, which defendant claimed constituted prejudicial and reversible error.

We have read this record, and I have reread it with this assigned ground of error in view, and the conclusion is reached' that the trial judge cannot be charged with reversible error in this respect.

In its case in chief plaintiff corporation called witness. Wilt, president and operating manager.of defendant corporation, for cross-examination, and inquired of him if he had received a letter dated April 17, 1947, which he admitted-receiving by registered mail. In that letter plaintiff called defendant’s attention to the fact that certain posts which had been damaged previously had been repaired and placed in the building in question after the execution of the lease. Also in that letter reference was made to damage to the-building during the term of the lease in litigation.

Witness Wilt, who had not testified in defendant’s case, was subsequently called by plaintiff upon rebuttal in an endeavor to offer in evidence the letter to which' reference is made. The trial judge said “it is in evidence.” Mr. Mock (counsel for plaintiff) remarked “no it is not.” Whereupon the trial judge replied “it doesn’t state causes. The plaintiff’s exhibit number 3 is rejected at this time.” Counsel claims that this conduct on the part of the trial judge constituted an abuse of discretion.

By brief counsel for the plaintiff states “counsel realizes control of rebuttal testimony is in the hands of the trial court.”'

We agree with that statement, and, as the result of thorough consideration of this assigned ground of error, we can not reach the conclusion at which counsel for the plaintiff asks us to arrive that the trial judge abused his discretion in rejecting this evidence in this case.

Counsel for plaintiff contend that counsel for defendant were guilty of misconduct in the cross-examination of the witness Donald Mastran, secretary of plaintiff corporation, by creating “a condition which was prejudicial to the rights of the plaintiff in that he persisted in asking questions on the theory that he was going to connect up and follow through this testimony by, I presume, the introducing of testimony as to what the lawyers said they had received by way of negotiation.” We presume counsel contends that the introduction of such evidence constituted prejudicial error and reversible error.

It is settled law that:—

“The common-law rule that confidential communications between client and attorney are privileged and protected from inquiry when the client is a witness as well as when the attorney is a witness is fully recognized in this state, and a client cannot be compelled to disclose communications which his attorney is not permitted to disclose.” In re Martin, Jr. 141 Oh St 87.

It -has been held that:—

“When the record shows that an attorney persistently pursued a clearly improper course of interrogation over the objection of opposing counsel and the adverse rulings of the court, the conclusion is irresistible that his conduct was not due to an error of judgment, but to a determination to present the improper matters to the jury in spite of both court and opposing counsel. Such conduct should neither be tolerated nor excused by the trial court. No litigant should be permitted to profit by such a practice. Louisville & N. R. Co. v. Payne, 133 Ky. 539.” 109 A. L. R. 1089.

The record discloses that some of the questions to which counsel for plaintiff objected were sustained, and others overruled. As counsel for defendant suggests by brief, this phase of the examination was so lengthy “it would be useless to set out every question and answer in this brief,” which of course we will not attempt to do in this opinion.

Accordingly we must content ourselves by saying that as a result of a careful analysis of this phase of the evidence we conclude that neither the trial judge, nor counsel for the defendant, can be charged with error, nor misconduct; (since in our opinion the evidence does not warrant the application of the cases of In re Martin and Louisville & N. R. Co. v. Payne, supra, to which reference is made supra).

Counsel for plaintiff contend:—

“The entire charge to the jury was so confusing that counsel at the close of the charge called the court’s attention to the fact that he did not understand the charge on the second cause of action and he would like to have him clarify the matter or in the alternative to direct a verdict for the plaintiff on the second cause of action, which the court refused to do.
“* * * The charge is a contradictory charge, one that is not based upon the issues in the case. The issues are very simple. First, was there damage caused to the premises for the period from July 19, 1946 to October 18, 1947, such damage being damage which was not caused by the usual wear and tear on said building but was caused by wilful and malicious destruction of property, and if the jury found there was such destruction of property then the reasonable value for the repair or replacement of said property.
“The issue as to the second cause of action was simply that-the defendant was required to pay a reasonable rental value-for the property upon which it had stored these concrete pipes. The trial court assumed that the plaintiff had no-right whatever to recover on the first cause of action unless the covenants of the lease had been breached which resulted in damage to the plaintiff and at r. p. 192 he said: ‘* * * If you do not find the respects in which the covenants have been breached, then your duties will be at an end and your verdict will be for the defendant.’ ”

At the conclusion of his general charge to the jury the trial judge inquired of counsel: “Does counsel have anything further to suggest?” Thereupon, as disclosed by the bill of exceptions, the following proceedings were had:—

“Mr. Mock: I would like to make a few suggestions. I would like to request the court at this time to charge the jury that when you refer to the date of the commencing of the occupancy you are referring to July 19th, 1946.
“Court: I have already referred to that; I have specifically covered that by stating—
“Mr. Mock: Secondly, that any recoveries, if any are made, must be between the period of July 1946 and October 19th, 1947. I also request the jury at this time be instructed to disregard any testimony, to any part of that particular part of the testimony involving any discussion with reference to any items prior to July 19th, 1946, which Mr. Swanner said he was going to connect up, and which he did not do. Third, I would like to request the court to charge in accordance with the lease, it was the duty of the lessee to keep all sewer connections free from obstacles.
“Court: That is a provision of the lease, and it is in there, and the lease will be with them in the jury room. I told them that.
“Mr. Mock: Now, Your Honor, I am not clear and I don’t think the jury is clear on this particular item of the concrete pipe, and for that reason I am going to make a motion at this time that the court instruct the jury to render a verdict in favor of the plaintiff, for the reasonable value of the rental for this property for eleven months. Now the court has referred to an implied promise. The court has overlooked that the lease itself provided that the Mahoning Express Company shall remove the pipe. In other words, rather than being an implied contract, it is a written contract.
“The court: That brings it within the terms of the written .contract?
“Mr. Mock: It is part of the lease.
“Court: It is very strong evidence in support of an implied contract, and still does not bring it within the terms • of either an express or written contract, so for that reason I was very careful. If you will go much further—
“Mr. Mock: I was going to request this, Your Honor, in view of. the question involving the rental, the reasonable rental value of this property, that the jury should take into consideration the fact that Mr. Wilt admitted receiving notice .in October of 1946, and that it is specified in said letter ‘at $30,00 a month,’ and they continued to leave the pipe there for a period of eleven months. In arriving at what a reasonable rental should be, they should take that into con- . sideration.
“Court: That is an issue of fact but the court does not dare to tell them to do it. I have tried to give you just a minute to think through what I have said because I have said it without having written it in advance, and I have tried to make it clear to the jury as to the situation of the storage ■ of the pipes. It has been admitted by Mr. Swanner that they did occupy the premises. I have said to the jury that under the circumstances the plaintiff was entitled to a reasonable rental for the period in which those pipes were stored on those premises, and you see it is a matter of how long that period was. I may have my own ideas on it, which again is .a matter of the evidence. I tried to make it as clear as I could. I think I have made it clear to the jury that the •plaintiff is entitled to some rental.
“Mr. Mock: I want an exception to the refusal of the court to grant plaintiff’s motion to direct the jury to return a verdict. General exception.
“Mr. Swanner: We will want an exception to that charge.
“Court: Is there anything further?
“Mr. Swanner: We have nothing further to suggest to the . court.
“Court: Members of the jury, I think you are ready to retire to take up the consideration of the case. Now the thirteenth juror, since all the jurors are safely in their jury room .and ready to take up the consideration of the case, you will return to the jury assembly room, and for the court, may I thank you for your services in the case. I happened to observe that you followed the case very closely, whether it has been interesting or not is beside the point, and we appreciate .your services, and counsel, I am sure, will join me in that expression of appreciation.”

Counsel for plaintiff find so much fault with the general charge of the trial judge that we cannot answer each objection to, nor fault found with, it separately and keep the length of this opinion within reasonable bounds. Accordingly we content ourselves with saying that we And no fault with the charge of the trial judge to the jury in any of the respects-charged by counsel for plaintiff.

We have read the reasonably voluminous bill of exceptions, submitted to us for review, and And no merit in the contention of counsel for plaintiff that the trial judge erred to plaintiff’s prejudice in failing to “charge upon the issues as required by law”; and cannot conclude that the verdict of the-jury and judgment of the trial judge entered thereon are manifestly against the weight of the evidence nor contrary to law.

The judgment of the court of common pleas is affirmed.

NICHOLS, J, BUCKLEY, J, concurs in judgment.


author: By EMMONS, J.

text:
    BOTKIN, Appellant, v. STATE MEDICAL BOARD, Appellee.
    Common Pleas Court, Summit County.
    No. 168744.
    Decided October 7, 1950.

      William H. Rosenfeld, Cleveland, for appellant.
    Charles Linch, for Atty. Geni. Duffy, Columbus, for appellee.
   OPINION

By EMMONS, J.

This cause comes before this Court upon an appeal from “the order of the State Medical Board of Ohio heretofore -entered by it on its journal on October 11, 1948.

The facts in this case are briefly these: On June the 12th, 1946, Earl Botkin, the appellant herein, who holds a state .¡license to practice mechanotherapy, was charged by the State Medical Board with using thiamine chloride, liver extract, ■sulphathiazole ointment, nupercainal, quinocaine, metycaine -and otozole, and that the use of these remedies was in violation of the rules and regulations of the State Medical Board governing limited practices, as provided in §1274-1 GC, and violative of the provisions of §1274-3 GC.

One Lawrence Dietrich, inspector for the Medical Board, testified that on May 21, 1946, he called at the office of Earl Botkin and that there he saw in Botkin’s office bottles labeled thiamine chloride, liver extract, nupercainal, quinocaine, metycaine and otozole, and a jar labeled sulphathiazole -ointment.

He further testified that Botkin told him that he administered thiamine chloride, liver extract, nupercainal by hypodermic injection, the latter as a local anesthetic.

Deitrich also testified that Botkin admitted he used quinocaine as a local anesthetic, and that he used metycaine for -an anesthesia and otozole to treat an ear infection.

Mr. Dietrich testified he asked him if he would discontinue the use of these remedies in his limited practice and that Botkin just shrugged his shoulders.

Botkin at no time during the hearing before the referee, -Clemons Frank, or at any time, testified in his own behalf, nor did he introduce any testimony whatsoever to deny Dietrich’s testimony or the testimony of Doctors Solimán and Platter who also testified at the hearing before the referee; and that thereafter on August 3, 1948, a copy of the opinion of the referee was filed with the State Medical Board, which Board adopted the recommendations of the referee and on October 5th, 1948, entered an order revoking the license issued to Earl Botkin, the appellant herein, to practice that', limited branch of medicine known as mechanotherapy, and-, from which order this appeal is taken.

At the outset it will be noted that the power to revoke, a limited practitioner’s license is governed by §§1274-6 and. 1275 GC.

Sec. 1274-6 GC provides, in part, that:

“In addition to the power of the board to revoke or suspend certificates provided for in §1275 GC, it may also revoke and suspend the certificate of any one to whom a. limited certificate has been issued upon proof of the violation of the rules and regulations established by the board: governing such limited practice.”

Part of the general rules and regulations of the Board1 governing limited practitioners is as follows:

“The certificate does not permit the holder to treat in-factious, contagious or venereal diseases nor to prescribe or-administer drugs or to perform major surgery.”

Sec. 1275 GC provides in part

“The state medical board may refuse to grant a certificate to-a person guilty of fraud in passing the examination or at any time guilty of felony or gross immorality, grossly unprofessional or dishonest conduct, or addicted to the liquor- or drug habit to such a degree as to render him unfit to-practice medicine or surgery.”

24 Oh Ap 154, Seitz v. The Medical Board:

“The term ‘gross immorality’ is descriptive of a conduct.”'

Moore v. Strickling, 46 W. Va. 515:

“Gross immorality must be determined according to the-common understanding of the ordinary law-abiding and reasonable citizen of the community; that the term implies a-, wilful, flagrant or shameful course of conduct showing a moral indifference to the opinions of the good and respectable members of the community.”

Mingo County Medical Society v. Simon, 20 Southeastern Reporter, 2nd Series, 807:

“In a proceeding to revoke the license of a person to practice a profession on the statutory ground of ‘gross immorality’ such term will be measured by the standards of the profession involved in the absence of a statutory definition.”

State Board of Medical Registration and Examination v. Scherer, 46 Northeastern Reporter, 2nd Series, 602:

“A licensed naturopathist, misrepresenting himself to the public as entitled to practice medicine, prescribing drugs and medicine and misrepresenting to patients powers of machine used by him in diagnosis and treatment of diseases is guilty of gross immorality justifying revocation of his license by the State Board.”

The appellant complains about the indefiniteness of the charge made by the Secretary of the Board, but it is an accepted fact that charges made by a ministerial body do not have to be in the same form for exactness and definiteness as do the pleadings in a court of law or equity. The appellant was charged with prescribing and administering certain drugs, and if these, or any of them, are found by substantial evidence to be drugs, and the statute is not invalid for vagueness, or the delegation of the powers to the Medical Board is not unconstitutional, or their orders ultra vires, then the Board could well find the appellant guilty of the violations of the rules and regulations of the Medical Board and also §1275 GC, for the reason that the appellant would have been acting contrary to the rules and regulations of the Medical Board and also acting grossly immorally under the statutes of Ohio, which term, to this Court, means wilfully unjust in his limited practice of medicine or surgery.

The principal questions for the Court’s consideration are as follows:

1. Are the pertinent rules and regulations of the State Board of Medicine invalid, ultra vires or unconstitutional?

2. Are the §§1274-1 and 1274-3 GC invalid for indefiniteness, uncertainty and ambiguity?

3. May the appellant, a duly licensed mechanotherapist, prescribe or administer in the performance of minor surgery any or all of the following: sulphathiazole ointment, metycaine, nupercainal, quinocaine or otozole, and in his limited practice may he prescribe or administer vitamins or liver extract?

The pertinent sections of the Ohio State statutes, or parts thereof, that must be considered in a perusal of this case are as follows:

Sec. 1274-1 GC provides in part that:

“The state medical board shall examine and register persons desiring to practice any limited branch or branches of medicine or surgery, and shall establish rules and regulations governing such limited practice. Such limited practice shall include mechanotherapy.”

Sec. 1274-3 GC at the time this case came into being, provided in part:

“If the applicant passes such examination and upon payment of a fee, the state medical board shall issue its certificate to that effect. Such certificate shall authorize the holder thereof to practice such limited branch or branches of medicine or surgery as may be specified therein, but shall not permit him to practice any other branch or branches of medicine or surgery, nor shall it permit him to treat infectious, contagious or venereal diseases, nor to prescribe or administer drugs, or to perform major surgery.” (Emphasis by the court.)

Sec. 1274-6 GC:

“The provisions of §§1268, 1269 and 1274 to 1281, both inclusive, GC, shall in all respects, in so far as the same may foe applicable, govern the state medical board, all of the ■officers mentioned therein, and the applicants for and recipients of such limited certificates; provided, however, that in addition to the power of the board to revoke and suspend certificates provided for in §1275 GC it may also revoke or suspend the certificate of any one to whom a limited certificate has been issued upon proof of violation of the rules or regulations established by the board governing such limited practice.”

Sec. 1295 GC:

“The secretary of the state medical board shall enforce the provisions of law relating to the practice of medicine or surgery H* H*

ARE THE PERTINENT RULES AND REGULATIONS OP THE STATE MEDICAL BOARD INVALID AND ULTRA VIRES OR UNCONSTITUTIONAL?

This question was asked and an attempt made to answer it in the appellant’s brief wherein he cites numerous cases, all of which are untenable because in his cited cases the’ inherent police power was not present, while in this case it is.

102 Oh St 305, William v. Scudder:

“The dimensions of the police power of the state are the dimensions of the public need, save only such exceptions as are imposed by our written constitution.”

31 OLE 672:

“It has been uniformly held that there is no unlawful delegation of legislative power by vesting such board with the power to make rules and regulations.”

42 New York Supplement, section 379, In Re Deyo’s Estate:

“Regulations of the secretary of treasury governing registration of United States government bonds with authority conferred upon the secretary by Congress have the force and effect of Federal law.”

41 American Jurisprudence 174:

“It is within the police power of the state to delegate to some board or tribunal which it has empowered to grant-licenses the power to revoke them and vest such tribunal with the power to investigate and try charges for the revocation of a license, such delegation is consistent with the constitutional guaranty of due process of law.”

272 U. S. 581, Lambert v. Yellowlyn:

“There is no right to practice medicine which is not subordinate to the police powers of the state.”

The right to practice limited or unlimited branches of medicine or surgery is not an inherent or God-given right,, nor is it a right once obtained that is perpetual. It is a. right given to some one who, because of his training, education and experience, has been found to have the qualifications: to perform in his respective field, subject, however, to the laws and rules and regulations governing that right. When one is given a license to practice in a limited branch of medicine or surgery, that one impliedly agrees to conform to and abide by the laws, rules and regulations prescribed for his particular branch of medicine or surgery, the nonperformance of which will result in disciplinary measures such as suspension or revocation of license.

State ex rel Copeland v. The Medical Board, 107 Oh St 20:

“In considering this question it must be borne in mind that the state medical board has a most important function imposed upon it, that of safeguarding the public against the ministrations of those who are not qualified by proper training, education and experience to minister to those affected by functional or organic diseases or are the unfortunate victims of accidents.
“If any determination of fact is necessary it must necessarily be made by the state medical board, and for this purpose the board must be held to have such implied powers as are necessary to carry into effect the express powers and duties enjoined upon it by virtue of the above quoted statutes and other related statutes.”

102 Oh St 315, William v. Scudder:

“The act of the general assembly further regulating the practice of medicine and surgery by authorizing examination and registration of practitioners in the limited branches thereof is a constitutional and valid exercise of Legislative power.”

17 Oh Ap 210, Meeker v. Scudder:

“Sec. 1274-1 to §1274-7 GC regulating the practice of limited branches of medicine and surgery are valid and constitutional.”

119 Connecticut 667, Sage-Allen Co. v. Wheeler:

“In the furtherance of the general purpose to regulate in the public interest the practice of optometry and to carry out the details of its plan of regulation, the legislature may properly vest an administrative board with the power to make regulations reasonably adapted to insure the competency of the optometrists and to prevent conduct on their part which 'would tend to harm the public.’

134 Oh St 122, Thompson v. City of Marion:

“As a general rule, a law which confers discretion on an executive officer or board without establishing any standards for guidance is a delegation of legislative power and unconstitutional.”

132 Oh St 271, Matz v. Curtis Cartage Co:

“It is the general rule that in order to confer the power to make rules and regulations upon a commission the legislature must establish the policy of the law by adopting standards as have been heretofore stated with reference to conferring official discretion. The discretion conferred must not be unconfined or vagrant but must be canalized within banks that keep it from overflowing.”

Counsel for the appellant contends that §1274-1 GC, which states that the Medical Board shall establish rules and regulations governing such limited practice, shall rightly be construed to mean that the board shall have the right to establish rules and regulations for the administration rather than «enlarging or restricting the statutory laws.

“Govern” means to regulate by authority.

Did the Board in this instance enlarge or restrict the statutory laws? What do we find in this case?

It is to be noted that the last paragraph in §1274-3 GC and the rules and regulations of the State Medical Board are practically the same. They both set out a prohibition therein whereby limited practitioners cannot use drugs or practice major surgery, so that by reading the intention of the legislature into the rules and regulations of the State Board it makes it a violation for using drugs, and is such a violation .that the practitioners license could be revoked, and it is not conferring a vagrant or unconfined discretion upon the State Medical Board for the legislature has established a standard of practice and canalized that Board’s discretion.

The right given by the legislature by statute to the Medical Board was a right that was a proper grant under the exercise of police powers, and such as is a constitutional investment, and the rules and regulations pertaining to the instant case are valid and not ultra vires.

ARE §§1274-1 and 1274-3 GC INVALID FOR INDEFINITENESS, UNCERTAINTY AND AMBIGUITY?

The appellant claims that since the term “drug” is not defined in the statute or in the rules and regulations the term then becomes vague, indefinite, uncertain and ambiguous.

It is the contention of the appellant that the evidence clearly indicates that a great uncertainty exists even in the minds of medical men, and then proceeded to quote the testimony of Dietrich, who is the inspector for the Medical Board, but he is not qualified to speak on the subject of drugs since he is not a doctor, pharmacist or a chemist. In this instance Dietrich was expressing a personal opinion as an investigator, and the Court does not consider this testimony effective as the questions propounded to him, in fact, are such as would make him interpret the rights of a mechanotherapist under the law, which province is not his.

It is true that Dr. Platter, the secretary of the Medical Board, testified that a chiropodist under the rules and regulations of the Board prior to the amendment of §1274-3 GC, was permitted to use drugs in his limited practice, however, the Court is not passing upon the right that they had at that time, whether it was under the proper exercise of police power or whether the Board arbitrarily discriminated against the other branches of limited practitioners — that question is not before the Court. So regardless of an added right that the-chiropodist formerly had under the rules and regulations of the Board, the rights of Botkin would not be decreased or increased.

The term “drug” is defined under the pharmacy laws of this state. Sec. 1296-1, paragraph 2, GC, is as follows:

“The term ‘drug’ or ‘pharmaceutical preparation’ means (a) articles recognized in the official United States Pharmacopoeia, or official National Formulary, or any supplement to either of them, intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or animals; and (b) all other articles intended for use in the diagnosis, cure, mitiga-, tion, treatment or prevention of disease in man or other animals; and (c) articles (other than food) intended to affect, the structure or any function of the body of man or other-animals; and (d) articles intended for use as a component or any articles specified in clause (a), (b), or (c); but does not. include devices or their components, parts or accessories.”

The term “drug,” as this Court views it, cannot have a different and varying definition under the heading of Pharmacy Laws than it would have under the Medical Board laws. One works in conjunction with the other, as the druggist supplies the doctor, and the definition of the term “drug” should be compatible one with the other.

The Court is not obligated to read only the sections of the statute that are contained under a separate heading and to reconcile them alone, but all statutes incident to and which have any bearing on a question should be read together and interpreted in the light of common understanding and reason. ;So while the Medical Practice Act does not have the term “drug” defined, neither do we find a definition for it under the rules and regulations of the State Medical Board, the Court does have the right to accept and should recognize the •definition of that term under the Pharmacy Laws of this state, as that section is in pari materia with the provisions •of the Medical Practice Act, and legislation is presumed to be consistent and harmonious in the enactment of these laws.

Assuming for the purpose of argument that there was no definition of the word “drug” appearing in the statutes of Ohio or in the rules and regulations of the State Board, the Court must look then to the common conception and meaning ■of that word as it is understood in the profession in which that word is commonly and professionally used.

Dr. Solimán, a professor emeritus of Western Reserve University and a man recognized as one well qualified to speak in medical circles, defines drug as “a substance that is used in the treatment or prevention or diagnosis of disease.” This definition is of substantial clarity that no confusion could result, nor is that definition unlike the definition contained in the statute under the Pharmacy section.

The Court, therefore, cannot agree with the appellant that §1274-1 and §1274-3 GC are invalid for indefiniteness, uncertainty or ambiguity.

MAY THE APPELLANT, A DULY LICENSED MECHANOTHERAPIST, USE ANY OF THE FOLLOWING REMEDIES IN THE PERFORMANCE OF MINOR SURGERY: BUT.PH A - THIAZOLE OINTMENT, METYCAINE, NUPERCAINAL, QUINOCAINE OR OTOZOLE, AND MAY HE PRESCRIBE OR ADMINISTER VITAMINS OR LIVER EXTRACT?

The fact that the appellant is charged with administering or prescribing all of the above styled items does not make it necessary that all such facts be established. Were the fact established by evidence that he administered one or prescribed one of the above remedies, and that that one item was a drug, the charge against the appellant would be sufficiently proved.

It must be remembered that the appellant did not take the stand to deny the fact that he told Dietrich that he had administered or prescribed all of these items to his patients, and therefore that fact, standing unrebutted, the Referee and the Board had the right to accept this testimony of Dietrich’s as the truth.

Were these remedies or materials “drugs” such as were intended by the legislature and the Medical Board?

Dr. Solimán testified unequivocally that sulphathiazole ointment, metycaine, liver extract and thiamine chloride were drugs but that the other substances were not known to him. His testimony, as the Court has already indicated, was not rebutted.

At first blush to say that a limited practitioner of medicine' or surgery should not be allowed to prescribe or administer vitamins or liver extract for a physical deficiency seems rather farcical, for immediately one realizes that these items can be purchased generally without prescription. Upon meditation, however, one must necessarily conclude that this prohibition is not an absurdity, for some one in whom you place your future health and in whom you put your trust should be a person who is qualified to speak, to comprehend the nature of your deficiency and to know the necessary prescription therefor. Since Botkin is a limited practitioner it is presumed that he is not qualified or versed in the use of vitamins or liver extract, even though he may well be. However, the line must be drawn somewhere, and the legislature has seen fit, from the standpoint of public safety, to say by legislation that practitioners of mechanotherapy shall not administer or prescribe drugs, regardless of their knowledge. And since the Court concludes that vitamins and liver extract are drugs, such then cannot be prescribed or administered by limited practitioners.

United States v. Forty-eight Dozen Packages, 94 Federal, section 46:

“A gauze bandage intended for use in the cure, prevention and medication of disease is a drug under the Pure Food and Drugs Act defining drug as including all medicines and preparations recognized by the United States Pharmacopoeia or National Formulary for internal or external use, and any substance or mixture of substances intended to be used for the cure, mitigation or prevention of disease in either man or other animal.”

In 33 W. C. Q. B. R. 537 it was held that even peppermint lozenges came prima facie within the term of drugs. (This is a Canadian case.)

By statute §1274 GC osteopaths were given the express authority to use anesthetics and antiseptics, and §1274-3 GC as amended gave chiropodists the right to use such drugs as are necessary to such practice as are set out in the rules and regulations of the State Board. Thus, if by implication one would say that the mechanotherapist had the right to use drugs to perforin minor surgery, that thought is definitely expelled by making an exception by giving osteopaths and chiropodists that right, but no others of the limited practice.

31 Federal Supplement 206, Georgia Association of Osteopaths v. Allen:

“An implied authority cannot prevail over an express prohibition.”

The appellant suggests that since his practice was limited only by the prohibition not to prescribe or administer drugs or perform major surgery he could, therefore, perform operations for all minor surgery.

To perform various types of minor surgery it was testified that local anesthetics and antiseptics were a necessary adjunct to successful operations, and therefore Botkin concluded that since he is entitled by implication to perform minor surgery, and a necessary adjunct to some cases of minor surgery is local anesthetics and local antiseptics, he therefore by law is permitted to use them in his limited practice.

State v. Jones, 164 Southeastern 2nd, 85:

“In prosecution of chiropractor for unlimited practice of medicine defendant was not entitled to instruction to acquit if medicine furnished by defendant to complaining witnesses were such as are generally used by the public without prescription, dispensation and administration by persons licensed to practice medicine and surgery.”

Bartley v. United States, 264 Federal 79:

“Where a claimant shipped mineral water in interstate commerce under label representing that it possessed curative and alleviating qualities he could not deny that it was a drug within the meaning of the Food and Drug Act.”

Sec. 1274-3 GC provides in part that:

“Such certificate shall authorize the holder thereof to practice such limited branch or branches of medicine or surgery as may be specified therein, but shall not permit him to practice any other branch or branches of medicine or surgery.”

What then can the appellant herein do by way of minor surgery?

He- is a mechanotherapist, and mechanotherapy is defined in the rules and regulations of the State Medical Board as being the use of manual, physical or mechanical measures for the treatment of disease, but such physical or mechanical measures shall not include the use of X-ray or radium for therapeutic purposes. That definition in itself sets out just how far the appellant can go in his practice.

170 Washington 354, State v. Lydon. The defendant because of right to practice mechanotherapy claimed to have the right to practice surgery. The Court said:

“These terms mean simply a remedial treatment consisting of manipulation in part, or the whole of the body, with the hand or by mechanical means. In plain English they mean massage, manually or mechanically performed. They certainly do not include the practice of surgery in any form.”

In the Medical Dictionary for Lawyers we find mechanotherapy defined:

“(Gr. Mechane, machine — therapeia treatment.) The treatment of disease by mechanical means as by movements produced by special machines.”

State v. Gleason 148, Kansas 1:

“Osteopathic physicians are entitled to perform surgery under the provisions of the osteopathic statute, if the surgery is confined to surgery as it was taught and used as a part of the osteopathic system of healing, which in the main was by manipulation, but are not entitled to enter into the general field of operative surgery with surgical instruments.”

It impresses the Court that the mechanotherapist, under the right by implication given by statute, is allowed to practice minor surgery, but must be such as is accomplished by massage or other similar means, either manually or mechanically, and he can go no further.

Legislative enactments must be so construed as not to present an absurdity.

Can a court conscientiously say that while the legislature by fiat has prohibited limited practitioners the right to prescribe or administer drugs, but since they might practice some minor surgery that therefore the legislature, even though it has spoken clearly, did not mean what it said and that drugs ean be used, since in some instances they are considered a necessary adjunct to minor surgery? This Court believes that such a pronouncement would be unconscionable and erroneous, and it would be establishing a right by implication in the face of expressed legislative restriction and prohibition.

Farrand v. Medical Board, 151 Oh St 222:

“The word ‘appeal’ as used in §154-73 GC means the proceeding whereby a court reviews the action or decision of an administrative agency and confirms, reverses, vacates or modifies an order of the agency complained of in the appeal. The court may not substitute its judgment for that of the agency but is confined to determining the right of the parties in accordance with the statutes and other law applicable.”

4 Northeastern 2nd 602:

“Where a ministerial board conforms to the statutory procedural methods in granting or revoking a license and its decision is supported by substantial evidence, its finding and determination will not be disturbed.”

Botkin is presumed to have known the law and, therefore, the limits of' his practice as a mechanotherapist, and if he were dissatisfied with these limits he should have qualified for an unlimited practice, but as long as he has only a limited license he cannot transgress in to the field of unlimited practice.

The unlimited medical profession guard zealously their legal rights against the trespass and encroachment of others, and rightfully so, for they sacrificed many years of their lives in qualifying for this very highly skilled profession and if that right were not guarded by law or the profession, the health and welfare of the people of Ohio would be constantly in jeopardy.

Here we are dealing with the very lives of people, generally treasured above all things, and the legislature, by its exercise of police power, has the right to adopt precautionary measures governing the practice of medicine and surgery to the end that, in so far as humanly possible, the lives and health of the citizens of this state will be given the greatest possible safeguard.

It is therefore the conclusion of this Court that a licensed mechanotherapist must not prescribe or administer drugs of any kind in performing minor surgery; that minor surgery which he is permitted to perform must be an operation within the limits of mechanotherapy; and that vitamins and liver extract, as well as sulphathiazole ointment and metycaine, are drugs within the meaning of the statutes of the State of Ohio; and that the order of the State Medical Board is supported by sufficient evidence and is not contrary to law; and that the rules and regulations of the State Medical Board of Ohio pertinent to the within action are not invalid or repugnant to the provisions of the constitution of Ohio and are not contrary to the laws of this state, and that the statutes drawn in question in this action are not invalid for indefiniteness, ambiguity or uncertainty and are not repugnant to the provisions of the Ohio constitution and the laws of the State of Ohio.

This Court therefore finds that the appeal is not well taken and affirms the judgment of the State Medical Board in toto.


author: By McNAMEE, J:

text:
    RABB, FRANKLIN NATIONAL INSURANCE CO., Plaintiffs-Appellants, v. RAILWAY EXPRESS AGENCY INC., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21846.
    Decided October 30, 1950.

      Miller, Davis & Folk, Cleveland, for plaintiffs-appellants.
    Burgess, Fulton & Fullmer, Cleveland, for defendant-appellee.
   OPINION

By McNAMEE, J:

On June 7, 1946, plaintiff appellant, Ida Rabb, delivered a mink coat which she owned, to the defendant appellee, Railway Express Agency, Inc., for shipment to Schulman & Menzoff oí New York City. The coat, apparently lost or stolen in transit, was not delivered to the consignee. Plaintiff appellant, Franklin National Insurance Company, the insurer of the coat, paid Mrs. Rabb the face amount of its policy of $1800.00. Thereafter both appellants instituted suit in Common Pleas Court against the defendant Express Company to recover the full value of the coat which plaintiffs claim was $3800.00.

Defendant admits receipt of a package for shipment and its failure to deliver to the consignee. Defendant also claims that its liability was limited to the declared or released value of $100.00. The jury returned a verdict of $100.00 in favor of plaintiffs upon which judgment was rendered.

This appeal upon questions of law is predicated upon two assigned errors: (1) that the trial court erred in charging the jury that it might find for plaintiff in the sum of $100.00, whereas it ought to have instructed the jury to find for plaintiffs for the full value of the coat. (2) Other errors in the charge of the court.

Under the facts as developed by the evidence, the principal issue to be determined is whether the defendant was entitled to have a jury consider its asserted defense of limited liability.

The record discloses that in 1943 Ida Rabb purchased a mink coat in New York City at the wholesale price of $1800.00 The coat was thereafter insured by her with The Franklin National Insurance Company for the amount of the purchase price. On June 7, 1946 Mrs. Rabb delivered the coat to her husband, Ben P. Rabb, for shipment to Schulman & Menzoff of New York City for cleaning and summer storage. The coat was enclosed in a box and addressed to the consignee in New York City. Mr. Rabb, an attorney, took the coat to his office in the Society for Savings Building and instructed his seeretary to call the Railway Express Agency to “pick up” the coat.

In response to the call of Mr. Rabb’s secretary, Bernard Oros, a uniformed driver for the Express Company came to Rabb’s office. It is undisputed that Rabb and his secretary asked Oros for a receipt before delivering the coat to him and that the latter was unable at the time to give an official receipt, having left the blank forms in his parked truck. Both Rabb and his secretary testified that they gave the coat to Oros after taking his badge number and upon his promise to make out a receipt upon returning to his truck and to deliver it to Rabb’s office. Also these witnesses testified that Oros was instructed to insure the coat for $3800.00. Oros, however, testified that he was told, either by Rabb or his secretary, that the package contained a cloth coat valued at $100.00. He further testified that Rabb was in a hurry, and instead of waiting for the driver to go to his truck and return with the receipt, Rabb apparently was satisfied with the notation made of the driver’s badge number. Upon reaching his truck with the package Oros made out a uniform receipt in quadruplicate. The first carbon of the receipt was placed upon the package and the second and third carbon copies were delivered to the defendant. Oros did not deliver the original to Rabb or his secretary, nor did he give it to anyone for delivery to either of them. Oros admitted that the original of the uniform receipt which is designed for delivery to the shipper and contains the prescribed agreement limiting the carrier’s liability, was destroyed by him.

On June 21,1946, upon learning that the coat had not been received by the consignee, Rabb wrote to the defendant notifying it of that fact and requested that a search be made for the coat. Three days later on June 24, 1946, a lady named Heinish, an employee of defendant, came to Rabb’s office for the purpose of collecting the express charges. She had with her the payment receipt which is the second carbon copy of the original. This copy has a blank space below the sub-caption “Declared Value.” In this space there was written “$100.00.” This second carbon of the receipt did not contain the language prescribed by Interstate Commerce Commission respecting limitation of liability which appears on the original of the uniform receipt.

Upon requesting payment of the express charges amounting to sixty-seven cents (.67) the collector submitted the payment receipt to Rabb. Thereupon as testified to by the latter, the following occurred:

“A. She handed it to me. She stamped it. She had the rubber stamp, marked it and then as she handed it to me I took and looked at it and I said, ‘This is a receipt for the coat?’ I says, ‘But’ I says, T didn’t give any valuation of $100.00 on here. Where did you get it?’ Then I told her, the lady, that the coat was missing, so I says, T don’t have the other receipt.’ So she says, ‘Well, you had better pay this anyhow and take this receipt so you will have some evidence that the coat was shipped,’ she says, ‘otherwise you haven’t even got a receipt that the coat was shipped.’ So, I realized there was something to that and I paid the woman the 67c and got the receipt.”

The foregoing quoted testimony constitutes all that appears in the record in respect of the circumstances surrounding the delivery of the payment receipt to Rabb. The collector did not testify, nor was her failure to do so explained.

On July 2, Rabb again wrote to the defendant, advising that on June 7, 1946, he had shipped a mink coat valued at between $2000.00 and $2500.00 to Schulman & Menzoff, 150 West 30 Street, New York City; that the same had not been delivered to the consignee and he requested that a “tracer be put in to locate the coat.” Thereafter suit was instituted by both plaintiffs, The Franklin National Insurance Company, claiming to be subrogated to the extent of $1800.00 paid by it to Mrs. Rabb and the latter asserting a claim for the value of the coat in excess of that amount.

The trial court charged the jury in substance that if on June 7, 1946, a declaration of value in the amount of $100.00 was given as contained in the receipt accepted by Rabb seventeen days later then the plaintiff could recover only that amount.

A common carrier’s right to assert a limited liability for loss of goods received by it for transportation in Interstate Commerce is governed by U. S. C. A. Title 49, Sec. 20, Parag. II (known as the Second Cummings Amendment to the Interstate Commerce Act) which provides in part as follows:

“Any common carrier * * * receiving property for transportation from a point in one State * * * to a point in another State * * * shall issue a receipt or bill of lading therefor, shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it * * * and no contract, receipt, rule, regulation, or other limitation of any character whatsoever shall exempt such common carrier * * * from the liability hereby imposed; and any such common carrier * * * shall be liable to the lawful holder of said receipt or bill of lading or to any party entitled to recover thereon, whether such receipt or bill of lading has been issued or not, for the full actual loss, damage or injury to such property caused by it * * * notwithstanding any limitation of liability or limitation of the amount of recovery or representation or agreement as to value in any such receipt or bill of lading, or in any contract, rule, regulation or in any tariff filed with the Interstate Commerce Commission; and any such limitation, without respect to the manner or form in which it is sought to be made, is hereby declared to be unlawful and void. Provided, however, that the provisions hereof respecting liability for full actual loss, damage or injury notwithstanding any limitation of liability or recovery or representation or agreement or release as to value and declaring any such limitation to be unlawful and void, shall not apply * * * to property * * * received for transportation concerning which the carrier shall have been or shall hereafter be expressly authorized or required by order of the Interstate Commerce Commission to establish and maintain rates dependent upon the value declared in writing by the shipper or agreed upon in writing as the released value of the property, in which case such declaration or agreement shall have no other effect than to limit liability and recovery to an amount not exceeding the value so declared or released.”

Admittedly there was no written declaration of value by the shipper in this case. The sole issue arising on defendant’s asserted defense of limited liability is whether under the facts as disclosed by the evidence there was a written agreement of released value as required by the proviso of the Interstate Commerce Commission Act. The burden of establishing such an agreement is upon the carrier.

In the absence of a written declaration of value by the shipper an agreement in writing as to the released value of the property is an essential prerequisite to the carrier’s right to claim a limitation of liability for less than the full amount of the loss. Although the statute clearly contemplates action in writing by the shipper his signature is not essential. The shipper’s receipt of and assent to the terms of a written agreement prepared by the carrier is sufficient to make such an instrument the written agreement of the shipper and the carrier. American Railway Express Inc. v. Lindburg, 260 U. S. 584.

It has been held also that where a uniform written receipt containing prescribed language constituting an agreement as to value was delivered by the carrier to an agent of the shipper at the time the property was received for transportation and retained by the shipper without protestation until after the loss was discovered, the shipper is bound by the agreement. Feinberg v. New York Exp. Co, 163 Fed. (2) 998.

Similarly, in Wolfe v. American Express Co. 197 N. W. 24, where a receipt was delivered to the shipper the day after the shipment was made but before the loss occurred, it was held that the shipper was bound by the terms of the written agreement. The court held that the shipper’s acceptance of the receipt under the facts in that case “operated to give it the same status and effect it would have had if delivered to and accepted by him at the time the shipment was accepted by the defendant.” However, the authorities are uniform in holding that the rights of a carrier and shipper under the terms of the uniform receipt or bill of lading issued by the former are to be determined by the action of the parties before the loss occurred. Caten v. Salt City Movers Storage Co. 149 Fed. (2d) 428. Vanderbilt v. Chelsea Storage Warehouse, 80 N. Y. S. 300, 80 S. (2d) 302. Hunter v. American Ry. Exp. Co. 4 S. W. (2d) 847; Stricker v. C & N W R. R. Co. 40 N. W. (2d) 30; Smith v. Pippin, 51 S. E. (2d) 159.

In Caton v. Salt City Movers Storage Co., supra, the court said:

“The statutes make it abundantly clear that the carrier’s common law liability for full actual damages, whether or not caused by its negligence, is imposed when it accepts goods for carriage, unless a certain specified agreement limiting that liability has been made as the result of an equally certain specified action by the shipper in respect to a voluntary valuation of his goods.”

The following comment by the Court in the Caten case also is pertinent:

“Unless the carrier can comply with the requirements of the statute merely by putting into writing what the shipper has told it orally and then keeping that writing without giving the shipper a chance to verify it and acquiesce in it, if found correct, or to repudiate it if found incorrect, there was no compliance shown here. Obviously no such loose interpretation of the statute is permissible.”

In Vanderbilt v. Chelsea et al, supra, the shipment originated' in New York and was consigned to the shipper in Connecticut. The shipper signed a shipping order and bill of lading and; paid the freight charges as consignee before the delivery of the goods to her in Connecticut. In denying the carrier’s, claim of limited liability the court said:

“These charges were such that in a proper case the defendant’s liability might have been curtailed; but the documents-had been prepared by the defendant in New York and were-presented to the plaintiff for signature after the defendant, had already completed its duty to carry and there remained1 only its duty to deliver. It is idle to contend that in those-circumstances the plaintiff agreed to any curtailment of the-defendant’s liability or that she had any choice in the matter at all.”

We find no dissent from the general rule that a uniformi receipt or bill of lading limiting the liability of a carrier for damages must be delivered to the shipper at the time the-goods are accepted for transportation or promptly mailed to the shipper in due course of business unless there is an agreement that such instrument shall be delivered at a later time. Harris v. Great Northern R. R. 96 Pac. 224; Clubb v. Hetzel, 198 Pac (2d) 142, 165 Kan. 594; Behrends v. Chic. Rock Island Pac. Ry. 198 Ill. App. 236.

The foregoing authorities give effect to the plain terms of the statute which make the rates of transportation dependent, upon the written agreement or declaration of value thus requiring the written declaration or agreement to be made or intended by the parties to become effective before the actual-, transportation of the goods is undertaken.

In the case under review, two weeks after delivery of the-coat to the carrier, Rabb notified defendant that it was. missing. At that time neither plaintiff, Mrs. Rabb, nor her agent, had received a uniform receipt or bill of lading or any written agreement of value from the carrier. Three-days after Rabb’s letter of June 21, 1946, the express charges were paid by him but it is undisputed that the payment was-made and the second carbon of the receipt accepted upon the-advice of defendant’s collector, that this be done to enable the-shipper to procure written evidence that the goods had been delivered to the carrier. As hereinabove noted, the testimony of Rabb in this regard was not challenged or impeached by the-defendant and it does not appear that the company’s collector was unavailable as a witness.

The attempt of defendant to make the charges collected on .June 24 applicable to the valuation that appeared in the second carbon copy of the receipt, which was delivered to the shipper after the loss occurred, was not a compliance with -the terms of the Interstate Commerce Act. The receipt given •on July 24, 1946, was for payment of the express charges only. It was not a receipt for the coat nor did it contain the terms •of an agreement of value upon which the rate of transportation was to be fixed. The original of the receipt embracing the 'terms of such agreement was destroyed by defendant’s agent instead of being delivered to the shipper as contemplated by the regulations of the Interstate Commerce Commission.

Whether Rabb orally placed a value of $3800.00 or $100.00 •on the coat is immaterial. The statute mandatorily requires .a written agreement of value. The purpose of this, among other things, is to remove the uncertainty and difficulty of proof that results from. attempting to determine wherein the 'truth lies in respect of conflicting testimony on oral state.ments of value. In the nature of the case the precise or approximate time of the loss is not susceptible of proof but under the evidence there is an inescapable inference that the coat was lost before the acceptance by the shipper’s agent of the xceipt for payment of the express charges.

We are therefore of the opinion that the defendant failed to sustain the burden of establishing a written agreement as to value and that it was error for the court to charge the Jury that it might consider'Rabb’s acceptance of the payment receipt of June 24 as a confirmation of the defendant’s claim "that plaintiff placed a valuation of $100.00 upon the mink ■coat at the time it was delivered to the carrier.

Defendant in its answer admits that a certain package was received for shipment and that the same was lost. However, •defendant by the general terms of its answer denies that a mink coat was contained in the package received by it for ■shipment. It is the claim of defendant that a cloth coat was delivered for shipment. Because of the issue of fact thus :made, the trial court did not err in failing to charge the jury on the single issue of the value of the mink coat. The 'burden rests upon the plaintiff to establish that a mink coat was delivered to the carrier on June 7, 1946, and in the event that issue is resolved in favor of plaintiff, the trier of the facts will then be required to determine the sole remaining •issue of the value of the mink coat at the time of the loss.

Defendant also complains of the following portion of the ¡general charge:

“If you find from a preponderance of the evidence that is, the greater weight of the evidence, that the plaintiffs made-a declaration of the value of the fur mink coat on June 7,. 1946, to Mr. Oros, the driver for the Railway Express Agency in the amount of $3800.00, or requested insurance be placed’ on the fur mink coat in the same amount and, further, that the receipt as given to Mr. Rabb seventeen days later was not accepted by him fully and completely and that the declaration contained therein was of $100.00 value, then, you should find for the plaintiffs in the amount of the reasonable and fair value of the fur mink coat at the time of its loss by the plaintiff, as evidenced by all of the testimony.”

This charge was erroneous. Plaintiff was not required to1 prove that he placed a valuation of $3800.00 on the mink coat at the time of its delivery to defendant nor was the burden dn plaintiff to prove that Rabb did not unconditionally accept the payment receipt given to him on June 24, 1946.

As stated by the court in Galvaston etc v Wallace, 233 U. S. 481:

“The plaintiffs were not obliged both to prove their case and disprove the existence of a defense * * *. If the failure to deliver was due to * * * some cause against which it might lawfully contract, it was for the carrier to bring itself within such exception.”

For the reasons stated the judgment is reversed and cause remanded for further proceedings, in accordance with this opinion. Exc. Order see journal.

SKEEL, PJ, HURD, J, concur.


author: By MILLER, PJ:

text:
    WELLS, Plaintiff-Appellee, v. BALTIMORE & OHIO RAILROAD COMPANY, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2058.
    Decided December 21, 1949.
    Mathias H. Heck, Dayton, for plaintiff-appellee.
    Marshall, Harlan & Smith, P. Eugene Smith, of Counsel, Dayton, for defendant-appellant.
   OPINION

By MILLER, PJ:

This is a law appeal from the judgment of the Common Pleas Court for Montgomery County. The action was one for damages arising out of a collision between the automobile being driven by the plaintiff and a train owned and operated by the defendant. A jury trial was had which resulted in a general verdict for the plaintiff for the sum of $900.00 for which judgment was duly entered. The first six errors assigned are based upon the premise that the judgment is contrary to law and not supported by the evidence. The appellant is contending that the court erred as a matter of law in overruling its motion for a judgment notwithsanding the verdict, for the reason that the answers to the special interrogatories are not consistent with the verdict. The special interrogatories submitted and the answers given thereto are as follows:

1. “Was defendant, The Baltimore and Ohio Railroad Company, negligent? Answer: Yes.”

2. “If your answer to Interrogatory No. 1 is ‘No,’ you need not answer this interrogatory. If your answer to Interrogatory No. 1 is ‘Yes,’ then you must answer this Interrogatory. Of what did the negligence of the defendant, The Baltimore and Ohio Railroad Company, consist? Answer: No whistle, no light, no bell.”

3. “Do you find from the evidence that the plaintiff, William H. Wells, failed to exercise ordinary care, for the protection of his property, in a manner that contributed, in the slightest degree, to his own damage? Answer: No.”

4. “Did the operators of defendant’s train sound the engine bell as it approached the crossing? Answer: No.”

5. “Did the operators of defendant’s train sound the engine whistle as it approached the crossing? Answer: No.”

6. “As the defendant’s train approached the crossing, was the engine, headlight lit and shining in the direction in which the train was traveling? Answer: No.”

1. “Was the plaintiff, William H. Wells, familiar with the location of defendant’s railroad tracks across Western Avenue, as a result of driving over said tracks during the period of his residence in the City of Dayton, Ohio? Answer: Yes.”

8. “Did the plaintiff, William H. Wells, look and listen for the approach of a railroad train' from the east, when such looking and listening would have been effective immediately prior to entering upon said railroad crossing? Answer: Yes.”

9. “Did the plaintiff, William H. Wells, as he approached defendant’s tracks, look to the east for the approach of a train, or listen for such train, when he was far enough from the track to stop his automobile before reaching the crossing? Answer: Yes.”

10. “If your answer to Interrogatory No. 8 is ‘No,’ you need not answer this Interrogatory. If your answer to Interrogatory No. 8 is ‘Yes,’ you must answer this Interrogatory. If the plaintiff, William H. Wells, had looked and listened as he approached defendant’s tracks, would he have seen the engine in time to stop his automobile in a place of safety? Answer: Yes.”

The purpose in submitting special interrogatories as defined by §11420-17 GC is to give either party in a case' the right to demand, uninfluenced by the acts of the court, an answer upon a controlling issue without regard to the general verdict and elicit from the jury findings of fact which will test the correctness of the general verdict as returned, thus enabling the court to determine as a matter of law whether the general verdict is right in view of the jury’s conclusions upon questions of fact. In giving consideration to interrogatories and answers they must be considered as a whole and any reasonable hypothesis will be indulged in in order to reconcile the answers with the general verdict. City of Cincinnati v. Frey, 3 N. P. (N. S.) 627. The court is not justified in setting aside or disregarding a general verdict on the ground of inconsistency with the special findings unless the conflict is clear and irreconcilable. Davis v. Turner, 69 Oh St 101; Reed v. Pearl Insurance Co., 82 Oh Ap 299. The appellant is relying upon interrogatory No. 10 and the answer thereto as support for the motion notwithstanding the verdict, and cites C. D. & M. Electric Co. v. O’Day, 123 Oh St 638. Judge Crawford in a well considered opinion distinguishes the facts in the case at bar from the O’Day case, supra, saying:

“It is contended that Interrogatories 8 and 10 are the same as those in the case of C. D. & M. Electric Co. v. O’Day, 123 Oh St 638. However, in that case the answer to the equivalent of our Interrogatory No. 8 was ‘No’ instead of ‘Yes.’ Hence, that decision is not compelling here.
“But counsel argues that that case signifies approval of such interrogatories. Their propriety was not discussed by the Court, however, they were undoubtedly proper as given in that case.
“But in the case before us the vice of Interrogatory No. 10 is inherent in the preliminary conditions attached to it and the order in which it was presented. It implies in an oblique or backhand manner the existence of a fact which the jury had already found in Interrogatories 3, 8 and 9, as well as in the general verdict, did not exist; namely, failure of the plaintiff to look.
“When No. 10 was presented defendant’s counsel was asked if he did not mean the reverse of the condition stated therein, that is, that No. 10 was to be answered if No. 8 had been answered in the negative. He replied that he did not. Without this suggested change Interrogatory No. 10 is altogether illogical and confusing, and ought to have been rejected.
“Defendant’s counsel argues that the answer given to No. 10 signifies that plaintiff did not look effectively as required by D. T. & I. v. Rohrs, 114 Oh St 493. Let us suppose the answer had been ‘No’ instead of ‘Yes.’ He could then have argued just as logically that this signifies that the looking was not effective. Hence No. 10 put the jury in an impossible dilemma.
“The purpose of interrogatories is to test the verdict, but the principal effect of Interrogatory No. 10 has been merely to add confusion.
“The answer to Interrogatories 3, 8 and 9 support the general verdict; that to No. 7 is not inconsistent with it. That to No. 10 is neither consistent nor inconsistent, because it is not understandable; at least it is not understandable to this Court.”

We are in- accord with the reasoning adopted by the trial court and are of the opinion that Interrogatory No. 10 should not have been submitted since it infers a fact which the jury found did not exist, by its answers to Interrogatories Nos. 8 and 9. Had the answers to these interrogatories been in the negative, then Interrogatory No. 10 would have been most :appropriate. C. D. & M. El. Co. v. O’Day, supra. The motion for a directed verdict was properly overruled as evidence was offered on behalf of the plaintiff tending to support all ,of the material allegations of the petition.

The next question presented is whether the verdict is supported by sufficient evidence. This we must* answer in the negative as one of the issues raised by the pleadings was that of ownership of the automobile. No certificate of title showing ownership to be in the plaintiff was offered in evidence as required by §6290-4 GC. The only evidence submitted tending to establish ownership was general questions and answers referring to the car as being the plaintiff’s. He was never asked the direct question as to who was the owner of the automobile. The appellee contends that no objection was entered during the course of the trial as , to the method of proving the ownership of the car and that it is now too late to raise the question, but the record discloses that the questions submitted which tended to establish ownership were not objectionable. To illustrate our point we shall quote several questions from the record:

“Q. * * * Mr. Wells * * *, I will ask you whether or not an engine of the Baltimore & Ohio Railway Company collided with your automobile at that time?” (R. p. 15.)
“Q. And when you stopped your automobile do you recall approximately how far you were from the nearest track?” (R. p. 16.)
“Q. Did you have your headlights on your automobile at that time?”
“Q. Were your windows open or closed?” (R. p. 17.)
“Q. What was the position of your automobile, Mr. Wells, after it was struck by the engine and the coal tender?” (R. p. 20.)
“Q. Mr. Wells, will you please describe your automobile to the jury as to make, model and style?”
“Q. In your own opinion what is the reasonable — what was the reasonable market value of your automobile immediately before this accident?” (R. p. 24.)

Since none of the questions of this nature were objectionable the appellant never had the opportunity to raise the question. We are of the opinion that the legal principles announced in the case of Mielke, et al. v. Leeberson, 150 Oh St 528, are controlling, wherein the court said:

“Under the plain and unambiguous language of §6290-4 GC, a court cannot recognize the right, title, claim or interest of any person in or to any motor vehicle, without the production of a certificate of title or manufacturer’s or importer’s certificate duly issued in accordance with the Certificate of Title Law, and any other evidence of ownership is not of sufficient weight to sustain a verdict or judgment where title must be proved as a condition precedent for the validity of such verdict or judgment.”

The appellee contends, however, that special instruction No. 4 given by the court as requested by counsel for appellant assumes the ownership of the motor vehicle to be in the plaintiff-appellee; that likewise interrogatories Nos. 3, 9 and 10 assume and admit the plaintiff’s ownership; that appellant cannot be permitted to raise the issue of ownership on appeal when he considered it an assumed fact in the trial court. Since Interrogatories 3, 9 and 10 have been previously quoted we shall not repeat, but will quote special instruction No. 4 as submitted by the appellant:

“Instruction to the jury No. 4. The mere fact that William H. Wells suffered damage to his motor vehicle as a result of a collision with a train operated by the defendant, does not in and of itself entitle plaintiff to recover any damages from defendant, The Baltimore and Ohio Railroad Company.”

We do not think the special instruction and interrogatories submitted can be regarded as admission of ownership of the automobile in the plaintiff, but should be regarded rather as assumption of ownership. The question of proof of ownership being in issue it must meet the requirements laid down in the Mielke case, supra. The verdict is therefore against the manifest weight of the evidence and the same is ordered reversed and the cause is ordered remanded for a new trial. We find no other error in the record prejudicial to the rights of the appellant.

HORNBECK and WISEMAN, JJ, concur.