author: By DANACEAU, J.

text:
    SHIRER, Marshal, Olmsted Falls, In re.
    Common Pleas Court, Cuyahoga County.
    No. 710583.
    Decided January 13, 1959.

      Baskin, Kelley, Lausche & Heavilin, Cleveland, Ronald A. Baskin, of Counsel, for J. Donald Shirer, Chief of Police of the Village of Olmsted Falls, Ohio.
    Husband & Billings, Cleveland, for Village of Olmsted Falls, Ohio.
   OPINION

By DANACEAU, J.

This cause comes before this court on an appeal from the decision of the Council of the Village of Olmsted Falls, Ohio, removing J. Donald Shirer, Marshal or Chief of Police following a hearing on written charges preferred by the Mayor. The written charges filed by the Mayor are as follows:

“The undersigned, Charles L. Blickle, Mayor of the Village of Olmsted Falls, has reason to believe that J. Donald Shirer, Marshal or Chief of Police of the Village of Olmsted Falls, has been guilty in the performance of his official duties of misfeasance, malfeasance, nonfeasance and misconduct in office in the following particulars:

“No. 1. J. Donald Shirer, as such Marshal or Chief of Police, prepared a Police Intoxication Report with respect to Case No. 3473, Defendant, George Matthei, charged with driving while intoxicated, containing the statements, among others, that Dr. Isotta was the inquiring officer; that a blood test had been given by Berea Hospital; that the results of that test was a reading of .36 per cent alcohol; that the substance and meaning of such report was that the charged defendant had been given an alcohol blood test at Berea Hospital resulting in a reading of .36 per cent of alcohol. Said report was prepared and was to be used by the police and the mayor in the prosecution of said defendant. Said report was false and untrue.

“No. 2. J. Donald Shirer, as such Marshal or Chief of Police, appeared at the trial of said defendant, George Matthei, on or about the 10th day of February, 1958, and at said trial of said defendant read said false report referred to in particular No. 1 above and stated further, in substance, that there had been an alcohol test given which evidenced intoxication. Said report and said statements were false and untrue.

“No. 3. J. Donald Shirer, as such Marshal or Chief of Police, appeared at the trial of said defendant, George Matthei, referred to in particulars Nos. 1 and 2 above, and at said trial of said defendant stated further, in substance (in reply to the claim of defendant that he didn’t know of any alcohol test having been taken) that blood was taken on the night of the accident and the alcohol test was run on the following morning. Said statements were false and untrue.

“No. 4. J. Donald Shirer, as such Marshal or Chief of Police, in reply to the request of the undersigned for a complete written report of the George Matthei case referred to in particulars Nos. 1 to 3, inclusive, has failed to report with respect to said alcohol test and his statements; further, said officer has refused and continues to refuse to account for his actions as hereinbefore set forth.”

To these charges the appellant submitted to the council of the Village of Olmsted Falls his written answer as follows:

• “Now comes J. Donald Shirer and answering the charges made and filed against him by the Mayor of the Village of Olmsted Falls, Ohio, denies that he, as Marshal or Chief of Police of the Village of Olmsted Falls, has been guilty, in the performance of his official duties, of misfeasance, malfeasance, nonfeasance and misconduct in office in the particulars specified and set forth in said charges.

“Further answering said charges, the said J. Donald Shirer says that at no time did he knowingly, intentionally, or maliciously make a false report in the particulars specified in said charges or otherwise, with respect to Case No. 3473 of the Mayor’s Court, wherein one George Matthei was charged with driving an automobile while intoxicated, nor did he knowingly, intentionally, or maliciously give a false report and testimony in the particulars specified in said charges at the trial of said George Matthei before the Mayor of the Village of Olmsted Falls.

“Further answering said charges, the said J. Donald Shirer also denies that he at any time has refused to make a full report to the Mayor concerning the aforesaid case of Geroge Matthei and as to the matters specified in said charges.

“Further answering said charges, the said J. Donald Shirer denies each and every allegation set forth in said charges not herein specifically admitted to be true.

“Wherefore, the said J. Donald Shirer requests that the aforesaid charges be dismissed.

“J. Donald Shirer.

“State of Ohio ) SS:

“County of Cuyahoga )

“J. Donald Shirer, being first duly sworn, deposes and says that the statements and denials contained in the foregoing answer are true as he verily believes.

“J. Donald Shirer,

“Sworn to before me and subscribed in my presence this 25th day of April, 1958.

“Roland A. Baskin, Notary Public.”

Appellant contends that the Council had no authority to conduct a hearing on the charges preferred by the Mayor and that such proceedings should have been had in the Probate Court under the provisions of §733.72 R. C. An examination of this statute will disclose that it pertains to complaints filed by electors of the municipal corporation and has no application to the case at bar. In the instant case the charges were preferred by the Mayor as directed by §733.35 R. C., and heard by the Legislative authorities in accordance with the provisions of §733.36 R. C.

It is to be further noted that §737.15 R. C., provides that in case of the removal of a Marshal or Chief of Police of a village an appeal may be had from the decision of the legislative authority to the Court of Common Pleas to determine the sufficiency of the cause of the removal. Secs. 733.35, 733.36 and 737.15 R. C., specially provide for the proceedings had in this case. In the opinion, Per Stewart, J., in Johnson v. Enterprises, 166 Oh St 149, at p. 153, it is said:

“It has many times been held by this court that a special statutory provision which applies to specific subject matter constitutes an exception to a general statutory provision covering other subject matter as well as the specific subject matter.”

The predecessor sections in the General Code were in substance the same and recognition was given to the procedure followed herein by the Court of Appeals in State, ex rel. Patrick, v. Baldine et al, 91 Oh Ap 284, in which Syllabus 2 reads:

“A member of a village police department who has been summarily suspended from his employment for disciplinary purposes, without the filing of charges, may resort to an action in mandamus to compel the filing of charges by the mayor and the hearing thereof by the village council.”

It seems clear that when charges against a village Marshal or Chief of Police are preferred by the Mayor the hearing is to be conducted by the village council and not the Probate Court.

In proceeding to consider the other errors complained of, we must first ascertain the function of this court.

Sec. 737.15 R. C., provides that in case of the removal of a Marshal or Chief of Police of a village, an appeal may be had from the decision of the legislative authority to the Court of Common Pleas to determine the sufficiency of the cause of removal. Such language has been construed by the Supreme Court in Sorge v. Sutton, 159 Oh St 574, to empower this court to examine the record of the proceedings before the council and determine therefrom the regularity and legality of those proceedings, and the sufficiency of the cause of removal as disclosed by the record.

In the hearing had by the council at the time designated the appellant was denied the right to present witnesses in his behalf and was limited to his own testimony. It was not until the second session was held and the late hour of 10:30 P. M., had been reached that the council for the first time informed the appellant that he could call additional witnesses. Counsel for the appellant vigorously protested the rulings made by the council during the first session and again protested the unfairness of said council in denying the appellant the right to call witnesses until the late hour of 10:30 P. M., during the night of the second session.

The removal from public office of a Chief of Police who has served his community for some seventeen years is not a matter of light consequence to be effected by arbitrary action or by proceedings lacking in due process of law. While it is true that councils are not expected to be held to the same strict conformity to regular rules in the introduction and presentation of evidence as are judicial bodies, they, nevertheless, must not disregard fundamental rules having to do with the observance of the safeguards provided every person by our basic charters. Smith v. Mayfield Heights, 99 Oh Ap 591, 504.

The council was clearly in error in depriving the appellant of the right to call witnesses in his behalf during the first session and in withholding that right until the late hour of 10:30 P. M., of the second session. The right to present his evidence in the order in which he chooses and to present his witnesses before he testifies is of considerable importance.

The proceedings were in this respect unfair and irregular and due process of law has not been observed.

Appellant further contends that there was neither charge nor proof that he knowingly, intentionally, or maliciously committed the acts complained of.

The nub of the charges is a report submitted by the appellant that one George Matthei, charged with driving while intoxicated, had been given a test at Berea Hospital the result of which showed .36 per cent alcohol.

The records of the hospital brought to the hearing do not disclose that such a test was made nor do they disclose an alcohol reading of .36 per cent. This is also denied by the witnesses from the hospital and particularly by Dr. Magpoc, who states that he did not give Chief Shirer such information. The Chief of Police, on the other hand, insists that he did receive such information at the hospital and believed the report to be true.

With respect to the charge that the Chief of Police has refused and continues to refuse to account for his action and has failed to report to the Mayor, the evidence is clear that he did give a written report which substantially complied with the Mayor’s request.

The evidence in the record discloses beyond question that George Matthei had been drinking and while there is controversy as to his degree or state of intoxication there was substantial evidence to support a belief on the part of the Chief of Police that Mr. Matthei was drunk at the time of the accident.

The Village Council could fairly conclude from the evidence that no alcohol test of Mr. Matthei was taken at the hospital and that there was no reading of .36% of alcohol. Although the Chief of Police steadfastly asserts that he did receive such information at the hospital, he may be mistaken and his report or statements to that effect may be incorrect. It does not follow, however, that he had knowledge of such falsity or that he knowingly, intentionally, or maliciously made an incorrect or false report or statement. Knowledge of falsity was not charged. The village council was necessarily limited to a hearing of the charges preferred by the Mayor and the appellant was not required to meet any other charges.

It is the finding of this Court that the evidence before the Village Council was not sufficient to prove the officer guilty of misfeasance, nonfeasance or malfeasance in the performance of his official duties or of misconduct in office; that the charges against J. Donald Shirer, the Chief of Police, should have been dismissed; that the proceedings before the Council were irregular and lacking in due process of law; and that there is insufficient cause for the removal of the said J. Donald Shirer as Chief of Police of the Village of Olmsted Falls.

The decision of the Council of the Village of Olmsted Falls, Ohio, removing J. Donald Shirer, as Chief of Police of said Village is reversed and the said J. Donald Shirer is ordered restored to his position as Marshal or Chief of Police of said Village. O. S. J.


source: Caselaw Access Project

author: By DUFFY, J.

license: Public Domain

text:
    STATE, ex rel. BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF COLUMBUS, OHIO, Relator-Appellee, v. STATE BOARD OF EDUCATION OF OHIO, ELLIOTT E. MEYERS, E. E. HOLT, and THE BOARD OF EDUCATION OF THE WHITEHALL CITY SCHOOL DISTRICT, Respondents-Appellants.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6094.
    Decided September 29, 1959.
    Russell Leach, City Atty., John W. E. Bowen, Chief Counsel, W. Bruce Jenkins, Senior Asst. City Atty., Columbus, for Board of Education of the City School District of Columbus, relator-appellee.
    Mark McElroy, Atty. Geni., Hugh A. Sherer, Chief Counsel, John A. Hoskins, Asst. Atty. Geni., Columbus, for State Board of Education of Ohio, Elliott E. Meyers and E. E. Holt, respondents-appellants.
    Isaac, Postlewaite, O’Brien, of Counsel, Columbus, for Board of Education of the Whitehall City School District, respondent-appellant.
    Earl W. Allison, Pros. Atty., Columbus, for Fred C. Dunn, Franklin County Auditor.
    (WISEMAN, J, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By DUFFY, J.

From November, 1954, to December, 1957, there were several annexation proceedings which resulted in the transfer of territory from the Whitehall City School District to the City School District of Columbus, Ohio. During those years there was no division made of the funds and indebtedness of and between the respective school districts as required by §3311.06 R. C., which is as follows:

“The territory included within the boundaries of a city, local, exempted village, or joint vocational school district shall be contiguous except where a natural island forms an integral part of the district.

“When territory is annexed to a city or village, such territory thereby becomes a part of the city school district or the school district of which the village is a part, and the legal title to school property in such territory for school purposes shall be vested in the board of education of the city school district or the school district of which the village is a part; provided, that when the territory so annexed to a city or village comprises part but not all of the territory of a school district, the said territory shall become a part of the said city school district or the school district of which the village is a part only upon approval by the state board of education. In event territory is transferred from one school district to another under this section, an equitable division of the funds and indebtedness between the districts involved shall be made under the supervision of the state board of education and that board’s decision shall be final. After the effective date of this section, no action with regard to the transfer of school district territory pursuant to annexation to a municipality shall be completed in any other manner than that prescribed by this section.”

On August 11, 1958, the State Board of Education ordered the City School District of Columbus, Ohio, to assume an additional $289,036 of bonded debt and interest of the Whitehell City School District in order that the Whitehall School District could provide additional facilities to the balance of the children unhoused by the transfer of the Courtright Elementary School building which they found necessary to replace.

On August 22, 1958, the attorney for the City School District of Columbus issued a formal request or demand upon the Superintendent of Public Instruction of the State Board of Education of Ohio for a rehearing of the adjudication or resolution of the State Board of Education in which they directed the City School District of Columbus to assume the additional $289,036 of bonded debt and interest of the Whitehall School District, which amount was over and above the agreed assumption of indebtedness in the amount of $243,177.70. The request was made pursuant to the provisions of §119.09 R. C., and was made for the purpose of obtaining the stenographic record of the adjudication hearing in order that an appeal might be perfected to a court of competent jurisdiction. The State Board of Education, at their meeting held September 8, 1958, received the request and filed the application, and it is apparent from the recording of the September 8th meeting that the State Board of Education did not feel that their actions required compliance with the Administrative Procedure Act, Chapter 119 R. C., inasmuch as §3311.06 R. C., stated that “that board’s decision shall be final.” The city thereupon brought action in mandamus in the Court of Common Pleas of Franklin County, which court overruled demurrers to the petition and issued a writ of mandamus which ordered the State Board of Education to grant the City School District of Columbus, Ohio, a hearing regarding the division of funds and indebtedness at the next regularly constituted meeting of the State Board of Education. An appeal was made to this court from the issuance of the writ of mandamus and presents for determination the question of whether or not the State Board of Education when, in making the determination as reauired by §3311.08 R. C., is subject to the provisions of Chapter 119 R. C., which section is commonly referred to as the “Administrative Procedure Act.”

The organization, qualifications, powers and duties of the State Board of Education are set out in the provisions of §§3301.011 to 3301.07 R. C. Sec. 3301.08 to §3301.12 R. C., provides for the appointment of the Superintendent of Public Instruction and sets forth bis duties, the principal duty being “the executive and administrative officer of the state board of education in its administration of all educational matters and functions placed under its management and control.” (Sec. 3301.11 R. C.)

In §3301.13 R. C., there is provided for the creation of a department of education which “shall be the administrative unit and organization through which the policies, directives and powers of the state board of education and the duties of the superintendent of public instruction are administered by such superintendent as executive officer of the board.” The section further provides that “the department of education shall consist of the state board of education, the superintendent of public instruction, a staff of such professional, clerical and other employees as may be necessary to perform the duties and to exercise the required functions of the department.” In the same section it is provided “* * * in the exercise of any of its functions or powers, including the power to make rules and regulations and to prescribe minimum standards, the department of education and any officer or agency therein, shall be subject to the provisions of Chapter 119 R. C.”

It is the contention of the appellant State Board of Education that in acting under the provisions of §3311.06 R. C., their decision is final and does not form any basis for an appeal, as the legislature intended to remove their action in this respect from the appellate procedure. They compare their situation to that of the Industrial Commission of Ohio, which is demonstrated in the case of The State of Ohio v. Ohio Stove Co., 154 Oh St 27, 93 N. E. (2d) 291, wherein the court says:

“* * By virtue of the provisions of Section 35, Article II, Ohio Constitution, the decision of the Industrial Commission in a claim for an additional award for violation of a specific requirement is final. No appeal from such decision is authorized. Where decisions, granting or refusing such awards, have been attacked by proceedings in mandamus, this court has repeatedly held that such decisions will not be set aside in the absence of proof of an abuse of discretion by the commission. See State, ex rel. Richardson, v. Industrial Commission, 128 Oh St 570, 192 N. E., 738; State, ex rel. Berry, v. Industrial Commission, 129 Oh St 228, 194 N. E., 414; State, ex rel. Davidson, v. Blake et al, Industrial Commission, 145 Oh St 102, 60 N. E. (2d), 664; and State, ex rel. Howard Engineering & Mfg. Co. v. Industrial Commission, 148 Oh St 165, 74 N. E. (2d), 201.”

See also the discussion in Slatmeyer v. Industrial Commission of Ohio, 115 Oh St 654.

The appellee contends, and the trial court agreed, that the word “final” meant appealable, and cited in support the case of Hannix v. Commissioners, 43 Oh St 210.

It should be noted that §3301.13 R. C., makes the Department of Education subject to the Administrative Procedure Act, and that the State Board of Education is included in the Department of Education which was created as “the administrative unit and organization through which the policies, directives and powers of the state board of education and the duties of the superintendent of public instruction are administered by such superintendent as executive officer of the board.”

The section making the decision of the State Board of Education final was passed by the legislature at the same session in which the present Department of Education was created, and it would appear that it was the intention of the legislature to prohibit an appeal by the school districts involved from this particular decision, as the section definitely states “that board’s decision shall be final.”

This does not preclude an action contesting the decision of the State Board of Education but does remove the action of the school board from the appellate procedures, including those governed by the Administrative Procedure Act found in §119 R. C. An original action in mandamus is possible to set aside the decision where the board does not make an equitable division of the funds and indebtedness. See State, ex rel. Board of Education of Swanton Village School District v. Board of Education of Sharpies Village School District, 114 Oh St 602, and State, ex rel. Board of Education of South Zanesville Village School District v. Bateman et al, 119 Oh St 475, 184 N. E., 516. See also State of Ohio v. Ohio Stove Co., supra.

The judgment of the Court of Common Pleas is, therefore, reversed, and the cause is remanded to the court with instructions to enter final judgment for the defendant.

BRYANT, PJ, WISEMAN, J, concur.


author: By J. J. P. CORRIGAN, J.:

text:
    MORGAN et, Plaintiff, v. BAYVIEW HOSPITAL, a Corporation et, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 698647.
    Decided December 4, 1959.
    McNeal & Schick, Cleveland, for plaintiff.
    Arthur E. Petersilge, Cleveland, Charles J. Chastang, Columbus, for defendants, Stephen A. Sheppard, Richard N. Sheppard.
    Schlitz & Petersilge, Cleveland, Charles J. Chastang, Columbus, for defendant Ralph C. Blackwell.
    Schlitz & Petersilge, Charles J. Chastang, for defendants The Cleveland Osteopathic Hospital and The Cleveland Osteopathic Clinic, Inc.
    Boer, Mierke, McClelland & Handy, W. O. Handy, of Counsel, Cleveland, for defendant U. W. Hampton.
   OPINION

By J. J. P. CORRIGAN, J.:

This case comes before the Court on defendants’, Cleveland Osteopathic Hospital and Cleveland Osteopathic Clinic, Inc., demurrer to the second amended petition of plaintiff. The ground for the demurrer is that the action was not brought within the time limited for the commencement of such actions.

The original petition was seasonably filed and several defendants were served. Among the defendants served was “Bay View Hospital, a corporation.” The hospital administrator of said Bayview Hospital was personally served. Subsequently, the plaintiff discovered that the hospital located on Lake Road in Bay Village, Ohio, was not “Bay View Hospital, a corporation” but rather “The Cleveland Osteopathic Hospital, a corporation” and “The Cleveland Osteopathic Clinic, Inc., a corporation.” After the statute of limitations had run, the plaintiff named the last two corporations in an amended petition and served them. There is no entity named “Bay View Hospital, a corporation.”

The plaintiff moves the Court for an order permitting the amendment of the Petition, Precipe. Summons and Return of Summons said amendments to substitute the defendants “The Cleveland Osteopathic Hospital, a corporation” and “The Cleveland Osteopathic Clinic, Inc., a corporation” in the place and stead of “Bay View Hospital, a.corporation.” This motion is made pursuant to §2309.58 R. C., which reads as follows:

“Before or after judgment, in furtherance of justice and on such terms as it deems proper, the court may amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not substantially change the claim or defense, by conforming the pleading or proceeding to the facts proved. When an action or proceeding fails to conform to the laws governing civil procedure, the court may permit either to be made conformable by amendment.”

It is the contention of the plaintiff that the persons sought to be sued have in fact been served within the time limited for the commencement of the action. The plaintiff has given notice to the people who operate the hospital that he seeks to hold them for damages resulting from their negligence. The administrator of the hospital, who was served under the original process, can be charged with actual notice that the entity was sued. Cases of correcting “misnomers” in summons are legion. The courts of Ohio and other jurisdictions have invariably held that “misnomers” may be corrected upon motion. Burton v. Buckeye Insurance Company, 26 Oh St 467 (1875); Spence v. Commercial Motor Freight, Inc., 99 Oh Ap 143 (1954); Taylor v. Victor Equipment Co., 84 Oh Ap 236 (1948); for cases from other jurisdictions see the annotation in 124 A. L. R. 82.

In a strict sense, this is not the usual “misnomer case.” The common “misnomer case” is concerned with substituting a middle initial or substituting “Incorporation” in place of “Company.” The errors are usually of a minor nature. However, the reason for permitting correction of misnomers is applicable to this case. Courts have permitted corrections of misnomers where there is no confusion as to the identity of the defendant, and the party intended to be sued is, in fact, given notice of such suit.

In this case there is no confusion. Plaintiff sought to sue a hospital. He served that hospital under the statute. That entity had notice of suit. Plaintiff merely called the hospital by a different name. Had the plaintiff served another hospital or person, the result would be different, for in the latter case there would have been no notice.

The reeórd here shows that the entity sought to be sued was given timely notice of such suit. The mistake was that the entity was erroneously named. Because notice is the very essence and reason for service and notice had, in fact, been seasonably given, the court overrules the demurrer of the defendants.

Further, the motion of plaintiff to amend the Petition, Precipe for Summons, Summons and Return of Summons by changing the name of the defendant, Bay View Hospital, a corporation, in each instance to read:

“The Cleveland Osteopathic Hospital, a corporation, doing business as Bay View Hospital, 23200 Lake Road, Bay Village, Ohio, and

“The Cleveland Osteopathic Clinic, Inc., a corporation.” is granted. A journal entry will be drawn in accordance with the foregoing.


author: By GRIFFITH, J.

text:
    KARES CONSTRUCTION CO., INC., Plaintiff-Appellant, v. ASSOCIATES DISCOUNT CORPORATION, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24934.
    Decided January 28, 1960.

      Robert E. Warren, Jr., Gorman, Arthur & Schofield, for plaintiff-appellant.
    Baker, Hostetler & Patterson, for defendant-appellee.
    (DOYLE, PJ, HUNSICKER, J, of the Ninth District, GRIFFITH, J, of the Seventh District, sitting by designation in the Eighth District.)
   OPINION

By GRIFFITH, J.

The appeal comes before this Court on questions of law from the Municipal Court of Cleveland which sustained a demurrer to plaintiff’s amended petition and, when the plaintiff did not plead further, rendered judgment in favor of the defendant.

Plaintiff alleges that on December 4, 1957, the defendant caused to be deposited to the credit of its account with Central National Bank of Cleveland a check purported to be drawn upon plaintiff’s account with the Cleveland Trust Company in the sum of $2,000.00 and, thereafter, received credit upon its account for said check; that the check in question was forged and not drawn by anyone with authority to draw upon or charge its account; that defendant was not a bona fide holder of said check, and that the check was accepted from one, Cogan, an employee of plaintiff’s, in payment of Cogan’s personal obligation without making an inquiry of the drawer. On these allegations, plaintiff sought judgment for $2,000.00 with interest.

To this petition, the defendant filed a general demurrer on the ground that the allegations did not state a cause of action. This demurrer was sustained and on April 24, 1959, judgment was entered for the defendant, and the plaintiff’s action was dismissed.

The theory upon which the action is brought is quasi-contract, a suit for recovery, because the defendant has been unjustly enriched. Here the unjust enrichment consisted of a bank credit of $2,000.00 arising from a forged instrument, and the plaintiff cites 31 O. Jur. 218, 219. Second National Bank v. New First National Bank, 7 Oh Ap 68, and Wheeler v. Miller, 2 Handy 149, in support of its contention.

The sole question presented in this appeal is whether the plaintiff may recover against the defendant, the plaintiff being the apparent drawer of the alleged forged check, and the defendant being the payee of said check.

The defendant’s demurrer is based on the grounds that plaintiff has no right of recovery and has failed to state a cause of action for these reasons:

1. Plaintiff paid no money or anything else to defendant and, there-, fore, cannot recover anything back from the defendant.

2. The drawee bank (The Cleveland Trust Company), had no right to cash the alleged forged check and to debit plaintiff’s account therefor and, in contemplation of law, the plaintiff’s funds are still on deposit with said drawee bank, and the plaintiff has suffered no loss.

The plaintiff alleges that the plaintiff had a checking account at the Cleveland Trust Company. The relationship set up between the bank and the plaintiff depositor is that of debtor and creditor, not of agent and principal. The money deposited became part of the bank’s general funds, and the bank, in accepting the deposit, contracts at least impliedly to pay the depositor’s check to the extent of the depositor’s credit. Title to the money on deposit is in the bank and ceased to be moneys belonging to the plaintiff. See 7 O. Jur. (2d) 240, par. 106.

Defendant urges that the present case falls within the ruling of Lord Mansfield, then on the King’s Bench, in England, decided in 176-2, as enunciated in the famous case of Price v. Neal, 3 Burr 1354.

This doctrine, in few words, is that a drawee pays or accepts at his peril a bill on which the drawer’s signature has been forged. This rule was early adopted in Ohio in the case of Ellis v. Insurance Company, 4 Oh St 628, and later followed in First National Bank of Belmont v. First National Bank of Barnesville, 58 Oh St 207; 50 Northeastern 723.

Justice Story, in 1825, in the case of Bank of United States v. Bank of Georgia, 10 Wheat 333, made the following statement:

“After some research, we have not been able to find a single case in which the general doctrine of Price v. Neal has been shaken or doubted.”

While there is a scarcity of cases in Ohio relating to or touching on Lord Mansfield’s doctrine, it seems to be the law outside this state that the time and the place when mistakes and forgeries should be decided once and for all is when the drawee bank honors or dishonors the instrument. Business usage and expediency demands that the bank pay at its peril. General Fire Assurance Company of Paris, France v. State Bank, 164 N. Y. Supp. 871 (1917); F. J. Lewis Manufacturing Company, Appellee, v. The Pennsylvania Railroad Company, Appellant, 258 Ill. App. 216 (1930); Bergstrom v. Ritz-Carlton Restaurant and Hotel Company, 157 N. Y. Supp. 959 (1916).

Plaintiff alleges in its petition that the defendant was not a “bona fide holder” of said check, and that defendant accepted the check from one of plaintiff’s employees without making inquiry of the drawer. This allegation, if proven, cannot change or improve the cause of action in the plaintiff.

There can be no recovery in this case by the plaintiff against the defendant for the reason that the plaintiff was not the holder of the title of the money. When the bank paid the money on this check, it paid its own money and not any money belonging to the plaintiff, and the plaintiff has no cause of action against the defendant.

Since the plaintiff has suffered no loss, because The Cleveland Trust Company had no right to cash the forged check or to charge plaintiff’s account for the same, the plaintiff is relegated to its recovery against the drawee bank.

Judgment affirmed.

DOYLE, PJ, HUNSICKER, J, concur,


author: By WISEMAN, J. By DUFFY, J.

text:
    NEIGHBORS, Plaintiff-Appellee, v. ADMINISTRATOR, BUREAU OF WORKMEN’S COMPENSATION, and TERNSTEDT DIVISION, GENERAL MOTORS CORPORATION, Defendants-Appellants.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6092.
    Decided July 7, 1959.
    Barkan & Barkan, Robert H. Burns, of Counsel, Columbus, for plaintiff-appellee.
    Vorys, Sater, Seymour & Pease, Russell P. Herrold, Jr., of Counsel, Columbus, for defendant-appellant, Ternstedt Division, General Motors Corp.
    Mark McElroy, Atty. Geni., Columbus, for James L. Young, Administrator, Bureau of Workmen’s Compensation,

      (WISEMAN, J, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By WISEMAN, J.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin County, rendered on the verdict of a jury returned in favor of the plaintiff, determining that the plaintiff was entitled to continue to participate in the Workmen’s Compensation Fund of Ohio.

Six separate errors are assigned. Assigned errors one, two, three and four are related and are discussed as one. The appellamt first claims the trial court erred in overruling appellant’s objection to the hypothetical question asked Dr. Cowles. The hypothetical question embraced two facts which appellant claims were not proven. That part of the question is as follows:

“* * * you may assume further that since the accident she has suffered pain in the hip and radiation of pain down the leg in the nature of a strain to the hip, possible internal bleeding of a joint with a residual arthritis of the joint.” (Emphasis ours.)

The appellant contends that there was no factual development respecting “possible internal bleeding of a joint,” or “a residual arthritis of the joint.” On page 51 of the record, Dr. Cowles testified as follows: “In other words, it could be a traumatic arthritis; that type of thing could definitely cause it.”

In defendant’s Exhibit No. 1, admitted into evidence, which was an application for an adjustment of claim, in answer to question No. 2, Nature of Injury, is found this statement: “Muscle strain with probable hemorrhage into the right hip joint capsule.”

In Morrissey v. Industrial Commission of Ohio, 98 Oh Ap 213, 128 N. E. (2d) 815, the first paragraph of the syllabus is as follows:

“Where the statements contained in a hypothetical question to an expert witness are substantially those established as material facts by testimony, no prejudicial error results in permitting the hypothetical question to be answered as framed, provided such variation as exists is not sufficient to mislead the witness who answers, or the jury.”

In Peppers v. Ford Motor Company, 30 Abs 369, the first paragraph of the syllabus is as follows:

“Where the defense moves for judgment after all evidence is in, both before and after verdict, full value and weight must be given any evidence in the case, whether introduced by the plaintiff or not.”

In our opinion the hypothetical question was properly propounded.

With respect to assignments of error one, two, three and four, appellant contends that the plaintiff did not prove a “direct or proximate” causal relationship between the injury and the disability, and requests judgment be entered for the defendant. In support of its contention, the defendant cites Fox v. Industrial Commission, 162 Oh St 569, 125 N. E. (2d) 1, and Senvisky v. Truscon Steel Division of the Republic Steel Corporation, 168 Oh St 523. It is conceded that in the Fox case (also in opinion in Schiele v. Industrial Commission, a companion case), the court held that a deficiency in the hypothetical question on the point in question may be cured in the answer to the question. In the Fox case the medical witness was asked whether there was “a causal relationship between the plaintiff’s injury and the heart ailment.” An objection being sustained, a proffer was made as follows: “I believe there is a causal relationship.” The court held that the exclusion of this answer was error; that the error constituted some evidence of causal relationship. Flowever, the court on page 577 said,

“However, the evidence here proffered was insufficient in itself to prove a direct or proximate causal relationship, and in the absence of other evidence to cure the insufficiency, its exclusion was harmless error.” (Emphasis ours.)

In the Schiele case, on pages 578 and 579, the record shows that the medical witness was asked whether there was any “causal connection between the lifting incident and the subsequent harm or disability.” An objection being sustained, this proffer was made:

“It is my opinion that there was a direct causal relationship between the occurrence in June 1949, and the symptoms which followed, and the findings at the time of my examination.” (Emphasis ours.)

On page 579 of the opinion, the court held that the refusal to admit the answer was error on the ground that the answer fully met the legal requirements to prove proximate cause. In the Fox case the court stated the principal question for determination as follows:

“Where, in a hearing on a workmen’s compensation claim, a hypothetical question is propounded to a medical witness for the purpose of establishing causal connection between an accidental injury and succeeding harm or disability, may such question inquire as to ‘a causal relationship’ or must it inquire as to ‘a direct or proximate causal relationship.’ ” (Emphasis ours.)

On page 576, the court very definitely answered the above question as follows:

“We, therefore, conclude that in order to establish a right to workmen’s compensation for harm or disability claimed to have resulted from an accidental injury, it is necessary for the claimant to show by a preponderance of the evidence not only that his injury arose out of and in the course of his employment but that a direct or proximate causal relationship existed between his accidental injury and his harm or disability; and where medical evidence is necessary to establish such relationship, that evidence must show that his accidental injury was or probably was a direct or proximate cause of the harm or disability.”

In the Senvisky case, 168 Oh St 523, the medical witness testified that there was a “causal relationship” between the injury and the disability, but the record was silent respecting the “direct or proximate causal relationship.” On page 528, the court in its opinion said:

“Although plaintiff’s two medical expert witnesses both testified, in answer to hypothetical questions, that there was ‘a causal relationship' between decedent’s injury and death, their reasons for such opinions were, in the words of the Fox case, as quoted above, ‘insufficient in * * * i themselves) to prove a direct or proximate causal relationship.’ ” (Emphasis ours.)

We come now to consider the evidence in the instant case. The medical witness was asked a hypothetical question which concluded as follows:

“Q. * * * now, Doctor, taking the facts as I have given them and excluding from your own mind certain other facts as I have requested, do you have an opinion based on a reasonable degree of medical certainty whether the conditions which I have described in this hypothetical question such as the strain and arthritis are due to or probably related to or aggravated by the incident described in the hypothetical question?

“Now, do you have an opinion, Doctor?

“A. Yes.

“MR. HERROLD: I object, Your Honor.

“THE COURT: Overruled.

“MR. HERROLD: Note my exception.

“Q. And what is that opinion, sir?

“MR. HERROLD: Objection.

“THE COURT: Overruled.

“THE WITNESS: I think it could and did.

“Q. Now could you explain that answer, sir?

“MR. HERROLD: Objection.

“THE COURT: Overruled.

“Q. You may answer.

“A. There is no question about her having had injury to the other hip and the short leg being a little more short it would be more difficult for her to keep her balance and she would be much more apt to injure the good one with that sort of a history. In other words, it could be a traumatic arthritis; that type of thing could definitely cause it.

“Q. You say it could?

“A. Yes.”

Obviously, the questions and answers in the case at bar are not of the same legal import as the questions and answers in the Fox and Senvisky cases. In the instant case, the medical witness was not asked and did not testify whether there was a “causal relationship,” much less a “direct or proximate causal relationship,” between the injury and the disability. We cannot extract from the record in this case any evidence to the effect that the disability bore a direct or proximate eausal relationship to the injury.

The appellant contends that the court in its general charge incorrectly defined “injury.” The contention is made that the court did not define “injury” as that word is defined in the first paragraph of the syllabus in the case of Dripps v. Industrial Commission, 165 Oh St 407, 135 N. E. (2d) 873. The general charge was not as complete as it might have been, but the error, if any, was one of omission and not commission. Since the appellant did not bring this matter to the attention of the court, the error, if any, was waived. State of Ohio v. Tudor, 154 Oh St 249, 95 N. E. (2d) 385; Simko v. Miller, 133 Oh St 345, 13 N. E. (2d) 914; Case v. Carter, 103 Oh Ap 11, 15, 142 N. E. (2d) 670; State of Ohio v. Bryant, 105 Oh Ap 452, 455.

The appellant contends that the verdict was manifestly against the weight of the evidence. The point is made that the plaintiff’s testimony upon cross-examination established that she did not sustain an “injury,” and that final judgment should be entered for the defendant. This matter is embraced in assignments of error numbered three, four, five and six, which will be discussed together. The defendant claims that the plaintiff on cross-examination stated that the onset of her complaint appeared when she lifted her foot to operate the foot pedal of a punch press and pain struck her in the right hip. The record shows that she made this same complaint (1) in her original application, (2) to the investigator, (3) to a supervisor of the defendant company, (4) in a statement when she entered the company hospital, (5) in an application for group insurance, and (6) to the deputy administrator at the first hearing. Plaintiff admits that these statements were made, but at the trial testified that she had not been required to give a searching detailed description of the incident. On direct examination she testified that her usual employment consisted of standing before a bench and greasing panels of steel, but on the evening in question, she was asked to do a clipping operation at a punch press; that she was short in stature, being four feet, ten and one-half inches in heighth; that she was required to reach overhead for the panels and take them from a moving conveyor; that she had difficulty in taking a panel from the conveyor, which came loose with a jerk, causing her to slip and fall back heavily on her right foot; that when she returned to the press, she felt the pain in her hip. She stated that she felt pain when she attempted to lift her foot to operate the press. The evidence shows that the plaintiff’s left leg was one and one-fourth inches shorter than the right leg.

Appellant cites Dripps v. Industrial Commission, 165 Oh St 407, 135 N. E. (2d) 873, and Winkler v. City of Columbus, 149 Oh St 39, 77 N. E. (2d), 461, in support of its contention that plaintiff has failed to establish that the injury was caused as the result of external and accidental means in the sense of being the result of a sudden mishap, occurring by chance, unexpectedly and not in the usual course of events. In the Winkler case, where the plaintiff testified one way on direct examination and another way on cross-examination, concerning the condition of a sidewalk, the court held that the answers on cross-examination constituted an admission against interests, or judicial admission, and granted final judgment for the defendant.

In the case at bar, we find no conflict in the narration of the facts leading up to the injury. The statement made repeatedly that she suffered pain in the hip when she attempted to operate the press is not in conflict with the testimony of the plaintiff in the trial, that she lost her balance in taking the panel off the conveyor, causing her to slip, lose her balance and, as a consequence, place undue weight and strain on the right foot. The additional information is complementary to and explains the happening which followed. In our opinion, the rule in the Winkler case has no application.

The plaintiff having failed to prove a direct or proximate causal relationship between the injury and the disability, the trial court committed prejudicial error in overruling defendant’s motion at the close of the evidence for a directed verdict, and in overruling defendant’s motion for judgment notwithstanding the adverse verdict.

The judgment of the trial court is reversed. Final judgment will be entered for the defendant. Counsel will prepare the proper entry.

BRYANT, PJ, concurs.

DISSENTING OPINION

By DUFFY, J.

The Ternstedt Division of the General Motors Corporation was the employer of Eva A. Neighbors, who filed a claim for compensation because of an injury she received while working for the above-named employer. The Bureau of Workmen’s Compensation denied her claim; and on appeal to the Industrial Commission of Ohio, the order of the Administrator of the Bureau of Workmen’s Compensation was reversed, and the claim was allowed. The employer appealed to the Common Pleas Court, where a trial before a jury was had and a verdict and judgment rendered for the employee, Eva A. Neighbors. The employer, General Motors Corporation, has appealed on questions of law from the Common Pleas Court judgment rendered on the jury’s verdict.

The employer presented for the consideration of this court the following assignments of error:

“(1) The trial court committed prejudicial error in overruling defendant’s objection to the hypothetical question asked Dr. Cowles.

“(2) The trial court committed prejudicial error in overruling defendant’s motion to strike the answers of Dr. Cowles to the hypothetical question.

“(3) The trial court committed prejudicial error in overruling defendant’s motion at the close of all the evidence that the jury be directed to return a verdict for the defendant.

“(4) The trial court committed prejudicial error in overruling defendant’s motion for judgment in its favor notwithstanding the verdict.

“(5) The court committed prejudicial error in its general charge to the jury.

“(6) The verdict was manifestly against the weight of the evidence.”

A recommendation for reversal of the judgment of the Common Pleas Court is based upon the failure by the employee to prove a direct or proximate causal relationship between the injury and the disability and, therefore, the trial court should have sustained the defendant’s motion for a directed verdict at the close of the evidence and should have sustained defendant’s motion for judgment notwithstanding the verdict. The failure to do so was prejudicial error.

The hypothetical question in this case was asked of the attending physician, who had previously testified to his finding following his initial examination of the employee on April 9, 1956, and his finding was “that she had a strain of the hip joint with muscle spasm and the usual associated symptoms.” He further testified that she was able to resume light work on approximately September 19, 1956, and testified as to his treatment during the period of disability.

In her testimony the employee described the manner in which she was injured during the course of her employment and described the pain which she felt following the injury. Her testimony, in part, was as follows:

<<* * * i raised up on this panel, just give it a jerk to get it off and in doing so I lost my balance, come back on my right foot, I felt a pain in my hip then, so I had the panel in my hand and just stood there with the panel in my hand down on the floor like you would a cane and rubbed my hip for - - oh, quite a while, maybe 10, 15 minutes or that is what it seemed to me, and then I walked over and put one clip on my panel and was going to put the second one on v/hen I started to raise my foot to hit the pedal I felt this sharp pain from the groin right down to the knee and I couldn’t raise my foot up off the floor, so I stood there for .a while and I didn’t know the girls in the line other than by - - oh, by sight, so I walked back to the girl on the machine just in back of me and told her that I couldn’t lift my foot up off the floor and I had a pain * *

The employee then testified that she went to the employer’s First Aid Department and remained there from approximately 9:30 o’clock until 11 o’clock. The employee also testified that she worked the rest of that week and went every night to the First Aid Department, where the nurse put heat on her; that because the condition did not improve, she saw Dr. Cowles.

The jury, in addition to the verdict, were required to answer special interrogatories which were as follows:

“No. 1.

“Did Eva A. Neighbors sustain disability while at her work at General Motors Corporation, Ternstedt Division on March 26, 1956?”

All twelve jurors answered that question in the affirmative.

“No. 2.

“If you find that Eva A. Neighbors did sustain disability at her work on March 26, 1956, state what was the direct cause of that disability.”

All twelve jurors answered that question as follows:

“While removing panel from Monorail on tip toe, she in stretching, to remove said panel lost her balance in a backward motion, causing her to land heavily on her right foot. Which in our opinion and final verdict, resulted in said disability of plaintiff.”

The attending physician in this case did testify that there was a strain, and it would not be improper for the jury, in considering the description of the injury and the description of the pain and the treatments at the employer’s First Aid Station and the treatments by Dr. Cowles, to find that there was a strain of the hip resulting in disability to the employee following an accidental injury received in the course of and arising out of her employment. It is necessary for the injured employee to show by a preponderance of the evidence, medical or otherwise, not only that her injury arose out of and in the course of her employment, but that a direct or proximate causal relationship existed between her injury and her harm or disability. See Fox v. Industrial Commission, 162 Oh St 569.

1 do not feel that the asking of a hypothetical question to the attending physician was necessary in this case to show a direct or proximate causal relationship between the injury and the disability. The attending physician reported his findings as a strain of the hip joint with muscle spasm, which is not such a disability as could be established by medical testimony only. From the employee’s description of the occurrence and resulting pain, the jury could well have concluded that the injury caused the claimed disability of pain in the hip area. It should be noted, too, that the doctor, in his answer to the hypothetical question, did state that he had an opinion and that his opinion was, “I think it could and did.” “Could” relates only to possibilities but is still admissible evidence. “Did” is a definite and certain opinion and would be sufficient to establish by medical testimony the direct causal relationship between the described injury and the described disability; so that if the hypothetical question was proper, the relationship was established by the answer.

For these reasons I feel that the verdict and judgment should be sustained.


author: By BRYANT, PJ.

text:
    BURT, Petitioner, v. ALVIS, Warden, Respondent.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6120.
    Decided October 13, 1959.
    Orval B. Burt, London, for himself.
    Mark McElroy, Atty. Geni., William M. Vance, Ast. Atty. Geni., Columbus, for respondent.
   OPINION

By BRYANT, PJ.

On February 18, 1959, Orval B. Burt filed his petition for writ of habeas corpus as an original proceeding in this court. Thereafter the matter came on for hearing with the petitioner present in open court and was given a full opportunity to present his claims for a writ of habeas corpus. The Warden of the Ohio Penitentiary through the Attorney General of Ohio filed his return to which were attached copies of the papers in the case of this petitioner including an indictment for burglary of an inhabited dwelling, an indictment for armed robbery and a third indictment in two counts charging shooting with intent to kill and shooting with intent to wound. Also attached were copies of the court record indicating guilty pleas to shooting to kill, first count, armed robbery and housebreaking together with the respective sentences and a certificate as to the correctness of the various copies executed by the clerk of the common pleas court of Hamilton County. At the time of' the hearing before this court the petitioner freely admitted pleading guilty to the three indictments and that there was no appeal taken and he was sentenced to the Ohio Penitentiary. He contended, however, that he did not in writing waive his right to a jury trial and this court held at the time that having entered a plea of guilty to each of the indictments there was no longer any question as to the facts in the cases and he therefore was not entitled to a jury trial, whereupon the court denied the petition for a writ of habeas corpus.

The matter now comes before this court upon a motion of the petitioner to certify the record of the court of appeals in this case. This motion requests a finding of facts which accordingly are set forth herein. We find as a matter of fact that this prisoner was lawfully indicted in Hamilton County, Ohio, that after pleading not guilty, he withdrew such plea and entered a plea of guilty to the charges contained in the three indictments. We further find that as a result of his pleas of guilty, he had no right to a jury trial and that he was lawfully sentenced by a judge of the common pleas court of Hamilton County, Ohio. We further find that the proceedings are in all respects legal and proper and that the petitioner is not entitled to a writ of habeas corpus.

The latest motion filed by the petitioner however has caused this entire matter to become moot. The signature at the bottom of the motion and the caption of the case at the top both indicate that he is no longer detained by R. W. Alvis, Warden of the Ohio Penitentiary located in Columbus,. Franklin County, Ohio. On the contrary, it indicates that he is at the London Prison Farm which is in Madison County, Ohio, and completely outside the jurisdiction of this court. The Tenth District Court of Appeals is limited in its jurisdiction to the territorial limits of Franklin County, Ohio. The motion to certify must therefore be overruled not only because it has no application in this kind of case, but further, because this court could not give any order affecting the petitioner when he is detained outside of Franklin County, Ohio. Madison County is of course within the territorial limits of the Second District Court of Appeals. The matter therefore ceases to be within our jurisdiction.

DUFFY, J, concurs.

MILLER, J, not participating.


text:
    CHAMBERS, Plaintiff-Appellee, v. ROBERT, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6099.
    Decided December 29, 1959.
    Reeves & Herron, Columbus, for plaintiff-appellee.
    Power, Griffith & Jones, Columbus, for defendant-appellant.
    (McLAUGHLIN, J, of the Fifth District, sitting by designation in the Tenth District.)
   OPINION

By BRYANT, PJ.

This is an appeal on questions of law from the verdict and judgment of the court of common pleas of Franklin County, Ohio, awarding damages in the amount of $2,900 in favor of Albert Chambers, plaintiffappellee, and against Robert Jeffrey Robert, defendant-appellant, herein. The suit was brought following a collision at a street intersection in Columbus, Ohio, which was governed at the time by a traffic light, each side claiming that the light was green in his favor.

The first assignment of error relates to admission of evidence of the conviction of defendant-appellant of other traffic law violations and the second assignment of error relates to overruling defendant-appellant’s motion for a new trial.

The accident in the case now before us occurred on December 31, 1955, and counsel for plaintiff-appellee questioned defendant-appellant concerning one conviction approximately four months prior thereto and three others which occurred between June and September, 1956.

Separate objections were made to questions as to each of the convictions which include violations concerning speed, illegal turn and a red light. A motion for mistrial was made and overruled.

It was following this that the court reversed his decision and instructed the jury to disregard the testimony concerning the convictions. In the case of Kornreich v. The Industrial Fire Ins. Co., 132 Oh St 78, the Supreme Court of Ohio has limited such evidence to convictions of treason, felony or crimes designated as “crimen falsi” of the common law. The third branch of the syllabus in that case is as follows:

“Where a party offers himself as a witness it has always been competent in Ohio to ask him, for the purpose of reflecting upon his credibility, whether he has been convicted of treason, a felony or any other crime that came within the designation of the crimen falsi of the common law. (Wagner v. State, 115 Oh St 136, approved, followed and distinguished.)

At page 90 of the Kornreich case, supra, Stevenson, J., wrote as follows:

“We are of opinion that there should be another qualification, namely, that such cross-examination should be confined to these offenses which as a matter of law do affect credibility, viz., treason, felony and crimen falsi.

“It would be most unfair to a witness to ask him on cross-examination for the purpose of affecting his credibility, whether or not he had been convicted of assault and battery. The nature of the offense of assault and battery in no wise reflects upon credibility.”

To the same effect see City of Troy v. Cummins, 107 Oh Ap 318, reversing a conviction and remanding a cause for the admission of improper evidence as to a conviction, the court at page 324 stated:

“The admission of the evidence of the defendant on cross-examination upon an improper question and the admission of the record of his conviction of the offense with which he was charged in the Municipal Court of the city of Piqua, were prejudicial errors to the rights of the defendant.”

In the Kornreich case, supra, at page 86, there appears the following:

“Crimen falsi was characterized as any crime which might injuriously affect the administration of justice by the introduction of falsehood and fraud.”

Thus it is that in civil actions evidence only of convictions for treason, felony or crimes designated as crimen falsi may be introduced and then solely to challenge the credibility of the witness.

It is clear in this case that the convictions for traffic law violations referred to were not either treason, felonies or crimes designated “crimen falsi” and hence were improper. We feel that they were prejudicial to an extreme degree, the effect of which could not be cured by the charge of the court.

In as much as the judgment of the court below must be reversed and the case remanded for a new trial, we express no opinion as to whether or not the verdict was excessive nor do we find it necessary to pass upon the other errors assigned and they will therefore be overruled.

DUFFY, and McLAUGHLIN, JJ, concur.


text:
    CLELLAND, Plaintiff-Appellant, v. CLELLAND, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6121.
    Decided November 17, 1959.
    Edward F. Lynch, Columbus, for plaintiff-appellant.
    Mary E. Prentice, Columbus, for defendant-appellee.
   OPINION

By DUFFY, J.

This is an appeal from an entry of the Court of Common Pleas, Division of Domestic Relations, in which that court stated in consideration of a motion for modification of an alimony order, that the “Court nas exhausted its jurisdiction over the original decree filed May 7, 1954.”

The entry of May 7, 1954, after granting a divorce to the plaintiff, stated that “The Court further finds that defendant should be and is entitled to certain alimony and hereby orders plaintiff to pay to the defendant the sum of One Hundred Seventy-five Dollars ($175.00) per month beginning on the 1st day of April, 1954, and monthly thereafter. Said payments to continue until and terminate upon the remarriage of the defendant or upon the death of either the plaintiff or defendant; payments to be made through the Cashier’s Office.” The court also divided the real estate and other property of the parties but it is not shown that there was ever any agreement among the parties as to a payment of alimony and the order was made by the court based upon his consideration of the evidence presented to him.

The question presented on appeal appears to be whether or not the Court of Common Pleas has the power to modify that decree upon a showing of changed conditions of the parties.

The case of Olney v. Watts, 43 Oh St 499, in Syllabi 1 and 2, noted as follows:

“1. A party to a decree for alimony may, by an original petition and suit, obtain a modification of such former decree, upon proper allegations of the changed condition and circumstances of the parties.

“2. Such allegations must not relate to circumstances and facts that existed and were, or might have been,-pleaded in the former action, but to new facts, thereafter transpiring, which are of such a character as to make the modification necessary to suit such altered condition of the parties.”

It is clear from the case of Gage v. Gage, 165 Oh St 462, that an award of alimony may include an allowance from future earnings, and if the payment of future installments shall be for a definite period the unpaid monthly installments may become a charge against the estate of the person ordered to pay such installments should he die prior to the due date of the last payment. (See DeMilo v. Watson, 166 Oh St 433.)

If the order to make payments in monthly installments was incorporated in the decree because of an agreement between the parties, it is not subject to modification by a court after term in the absence of mistake, misrepresentation or fraud or a reservation of jurisdiction of the court within the decree itself. (See Newman v. Newman, 161 Oh St 247; and Law v. Law, 64 Oh St 369.)

In the instant case it does not appear that there was any agreement of the parties and, as stated in the case of Olney v. Watson, supra, at page 507, “The real contention touches the right and duty of the court in a case like this to review, modify, or vacate a former decree granting alimony payable in installments by an original suit or proceeding instituted for that purpose, when such power had not been reserved by the language and form of the former decree.” The court also cited several authorities from other jurisdictions after which it stated:

“All of which maintain the doctrine of the authority of the court to modify or vacate the former decree as to alimony as the changed condition of the parties thereto may require.

“Upon these authorities and others of like tenor, as well as upon principle, we think a cause of action for the review and modification of the decree is set forth, and that the court erred in sustaining the demurrer to the petition. If, however, it shall, in the future progress of the case, appear that the former decree, instead of being in the nature of alimony payable in installments for the support of the wife, was in the nature of a permanent division of the husband’s property, and that the parties fixed the same by their own agreement, and the action of the court in the premises was simply an affirmance of the agreement by consent, this, if alleged and proved, may furnish a complete defense. As to that we express no opinion now.”

After reading the opinion of Judge Atherton in the Olney case, and Judge Weygandt in the Newman case, we conclude that the law in Ohio is that the court retains the jurisdiction to modify or vacate the former decree of alimony upon a proper showing of a changed condition and circumstances of the parties, where the former decree of alimony was not of a definite amount payable in installments or payable only for a limited number of installments, or was not based upon an agreement of the parties as to the division of property which was affirmed by the court and was incorporated into the decree.

In the instant case it appears that the court has not exhausted its jurisdiction and may make a modification or vacation of its former decree if the changed condition or circumstances of the parties warrant it.

Judgment reversed and cause remanded.

BRYANT, PJ, concurs.

MILLER, J, not. participating.


author: By GREEN, II, J.

text:
    STATE, Plaintiff, v. MIKOLA, Defendant.
    County Court, Lucas County, District No. 6.
    Decided November 23, 1959.

      Terrence Hallett, Swanton, for defendant.
   OPINION

By GREEN, II, J.

The defendant was arrested by the State Highway Patrol and charged with “driving under the influence of intoxicating liquor” pursuant to §4511.19 R. C.

Though a good deal of evidence relating to the conduct of the defendant was introduced during the course of the hearing it was apparent that if indeed his driving was affected, such influence was induced by the consumption of beverages containing less than 3.2 per centum of alcohol by weight, the so-called “low power” or “3.2 beer.”

In view of the conclusiveness of the above finding of fact the question to which this opinion directs itself is whether or not a beverage containing less than 3.2 per cent of alcohol by weight is an “intoxicating liquor” within the meaning of §4511.19 R. C., which statute in its entirety reads as follows:

“No person who is under the influence of intoxicating liquor, narcotic drugs, or opiates shall operate any vehicle, street car, or trackless trolley within this State.”

So far as we are able to determine the only statutory definition of intoxicating liquor in the Revised Code is found in §4301.01 R. C., which, to the extent that it is pertinent to the discussion of the issue at hand reads as follows;

“(A) As used in the sections of the Revised Code:

“(1) ‘Intoxicating Liquor’ and ‘liquor’ include all liquids and compounds, containing more than three and two-tenths per cent of alcohol by weight which are fit to use for beverage purposes, from whatever source and by whatever process produced, by whatever name called and whether or not the same are medicated, proprietary, or patented. Such phrase includes alcohol and all solids and confections which contain any alcohol.

“(2) Except used in §§4301.01 to 4301.52, inclusive 4301.56, 4301.70, 4301.72 and 4303.01 to 4303.36, inclusive, R. C., ‘sale’ and ‘sell’ include exchange, barter, gift, offer for sale, sale, distribution and delivery of any kind, and the transfer of title or possession of beer and intoxicating liquor either by constructive or actual delivery by any means or devices whatever. Such terms do not include the mere solicitation of orders for beer or intoxicating liquor from the holders of permits issued by the department of liquor control authorizing the sale of the same, but no solicitor shall solicit any such orders until he has been registered with the department pursuant to §4303.25 R. €.

“ (3) ‘Vehicle’ includes all means of transportation by land, by water, or by air, and everything made use of in any way for such transportation.

“(B) As used in §§4301.01 to 4301.74 inclusive, R. C.:

“(1) ‘Alcohol’ means ethyl alcohol, whether rectified or diluted with water or not, whatever its origin may be, and includes synthetic ethyl alcohol. Such term excludes denatured alcohol and wood alcohol.

“(2) ‘Beer’ includes all malt beverages containing one half of one percent or more of alcohol by weight but not more than three and two-tenths per cent of alcohol by weight.

“(3) ‘Malt liquor’ or ‘malt beverage’ includes all brewed or fermented malt products containing more than three and two-tenths per cent of alcohol by weight and not more than seven per cent of alcohol by weight. * * *”

Sub-paragraph (1) of paragraph A of §4301.01 R. C., defining “intoxicating liquors” and “liquor,” and sub-paragraph (2) of paragraph (B) of the same section obviously draw a distinction between an “intoxicating liquor” and “beer”; a distinction based upon the alcoholic content of the beverage involved.

Intoxicating liquor is defined as any liquid containing more than 3.2 per cent of alcohol by weight which is fit to use for beverage purposes and beer as any malt beverage containing one-half of one per cent or more of alcohol by weight but not more than 3.2 per cent of alcohol by weight.

The language of both definitions is identical with the wording of §6064-1 GC, from which the present §4301.01 R. C., was in part derived.

The Supreme Court of Ohio and the Court of Appeals of Paulding County have decreed that “beer” as it is defined by the present language of the statute is not an intoxicating liquor as that phrase is defined by §4301.01 (A) (1) R. C., City of Akron v. Scalera, 135 Oh St 65, 13 O. O. 376, Kaufman v. Paulding, 92 Oh Ap 169, 49 O. O. 288. Admittedly the cited cases define the language of the General Code, however the present wording of the Revised Code, in so far as it is pertinent is identical to that of §6064-1 GC, and in accordance with §1.24 R. C., must be given the same interpretation.

In view of the above citations one must conclude that the phrase “intoxicating liquor” as defined in sub-paragraph (1) of paragraph (A) of §4301.01 R. C., is confined exclusively to beverages containing more than 3.2 per cent of alcohol by weight, or conversely, that the so-called “low power” or “3.2 beers” containing less than the stated alcoholic content are not intoxicating liquors by this definition.

The only question then remaining is whether or not this definition of intoxicating liquor is applicable to the similar phrase found in §4511.19 R. C. A cursory reading of §4301.01 R. C., must lead one to the obvious conclusion that the definition of intoxicating liquor contained therein must be applicable not only to the Liquor Control Act but to all instances where that phrase is used in the Revised Code, including §4511.19 R. C. The reader will note that §4301.91 R. C., is divided into two sub-headings. The definitions contained in paragraph (A) would seem to be modified by the initial language the paragraph which reads as follows: “As used in the sections of the Revised Code:,” while the remaining definitions are modified by the initial language of paragraph (B) which limits their application to §§4301.01 to 4301.74 inclusive, R. C.

Without further authority one would obviously conclude that the definition of intoxicating liquor contained in §4301.01 R. C., would be applicable to all sections of the Revised Code including §4511.19 R. C. Our attention however has been directed to an opinion of the Court of Appeals of Miami County which casts considerable doubt upon the applicability of the above definition of intoxicating liquor to sections of the Revised Code other than those contained in Chapter 4391 of the Revised Code. To our knowledge this decision, announced in 1955 in State v. Hale, 74 Abs 274, is the only reported case in the State of Ohio bearing upon the extent of the application of the definition of intoxicating liquors as stated in §4301.01 R. C.

The Court, after a discussion of the history of the section in question concluded that the definition of intoxicating liquor as found in §4301.01 R. C., is applicable only to the Liquor Control Act, and has no reference or application to any other section of the code, civil or penal, and therefore can not be said to define that language in a charge of operating a motor vehicle while under the influence of intoxicating liquor.

The Court in arriving at its decision looked first to §6064-1 GC of which §4301.01 R. C., is a revision. The first paragraph of the General Code section, reads in part as follows:

“This act shall be known and may be cited as the Liquor Control Act. As used in and for the purpose of this act: The phrase ‘intoxicating liquor’ includes any and all liquids and compounds containing more than 3.2 per centum of alcohol by weight and are fit to use for beverage purposes * * (Emphasis ours.)

In as much as §1.24 R. C., declares that the intention of the legislature in enacting the Revised Code was not to announce or enact new Legislation but merely to re-state the language of the General Code, the Court apparently concluded that the opening sentence of paragraph (A) of §4391.01 R. C., extending the definitions in such paragraph to all sections of the Revised Code was either misleading or incorrect language imposed upon the section by the revisers.

Under ordinary circumstances we would hesitate to question the authority of such a distinguished Court, however we have been apprised of a recent article which appears on page 836 of Volume 32 of the Ohio Bar dated October 12th, 1959, under the pen of the Honorable James L. McCrystal of Sandusky, Ohio, entitled, “Intoxicating Liquor under the Motor Vehicle Act” which takes exception to the interpretation of the Court in State v. Hale. We find the sense of Judge McCrystal’s comments very compelling.

Sec. 4301.01 R. C., is not, as the Court in the Hale case implied, solely a revision of §6064-1 GC, but is in fact a derivation of §§6064-1 and 6064-53 GC. The latter section, when read in conjunction with §6064-1 GC, provides ample authority for the language of the first sentence of §4503.01 R. C. Sec. 6064-53 GC, in its entirety reads as follows:

“Definitions. In the interpretation of the provisions of the General Code of Ohio, other than this act, the word ‘liquor’ and the phrase ‘intoxicating liquor’ shall be construed to have the meaning assigned to the phrase ‘intoxicating liquor’ by §6064-1 GC. As used in the succeeding sections of the liquor control act and in the interpretation of the provisions of the General Code of Ohio relating to intoxicating liquor, other than this act:

“ ‘Sale’ and ‘sell’ include exchange, barter, gift, offer for sale, sale, distribution and delivery of any kind, and the transfer of title or possession of beer and intoxicating liquor either by constructive or actual delivery by any means or devices whatsoever. ‘Sale’ and ‘sell’ shall not, however, include the mere solicitation of orders for beer or intoxicating liquor from the holders of permits issued by the department of liquor control authorizing the sale of the same, but it shall be unlawful to solicit any such orders until such solicitor shall have been registered with the department of liquor control pursuant to §6064-14 GC.

“ ‘Vehicle’ includes all means of transportation by land, by water, or by air, and everything made use of in any way whatsoever for such transportation.”

In light of this language it is obvious that prior to the enactment of the Revised Code the definition of the words “intoxicating liquor” as they were defined by §6064-1 GC, and construed by the Courts of Ohio must of necessity be applicable to the entire General Code wherever such phrase may appear and by virtue of the intent of the legislature as expressed in §1.24 R. C., must be deemed to be the construction of the present §4301.01 R. C.

In view of the inexorable logic of the legislative enactments cited above we must respectfully disagree with the conclusions of the Court expressed in State v. Hale. In our judgment the definition of intoxicating liquor in §4301.01 R. C., is applicable to that phrase as stated in §4511.19 R. C.; consequently persons whose driving ability has been affected through the imbibing of beverages whose alcoholic content is less than 3.2 per cent by weight, regardless of the extent of such affect, may not be considered to be under the influence of intoxicating liquors and thus are immune from convictions under §4511.19 R. C.

We are not unaware of the serious problems which may be raised by this judgment particularly as it relates to the quantum of proof necessary to be presented by the State in order to sustain its burden in a criminal case. These questions however are not before us and we will leave their eventual solution to future polemicist.

We cannot render judgment however without being considerably disturbed, for though our duty, in light of the legislative enactments is clear the result is obviously absurd. Common experience tells us that ones facilities and judgment can be equally impaired by the consumption of so-called “3.2 beer” or whiskey and render the driver equally as dangerous.

Ben Johnson, when told that a particular fact was true because it was the law is said to have replied, “Then sir, the law is an ass.” The decision of this Court may well be cited as authority for his observation.

We can only hope that this apparent legislative confusion is corrected in the near future.


author: By BRYANT, PJ. By BRYANT, PJ. Per CURIAM.

text:
    SCIOTO-SANDUSKY CONSERVANCY DISTRICT, In re.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6101.
    Decided June 16, 1959.
    Russell Leach, City Atty., Alba Whiteside, Asst. City Atty., Columbus, for appellants, City of Columbus and M. E. Sensenbrenner, Mayor.
    Bricker, Evatt, Barton, Eckler & Niehoff, Columbus, for the Scioto-Sandusky Conservancy District.
    Wray Bevins, Pros. Atty., of Pike County, Waverly, Ray W. Davis, Pros. Atty. of Pickaway County, Circleville.
   OPINION

By BRYANT, PJ.

This matter comes on for consideration upon a motion on behalf of the Scioto-Sandusky Conservancy District, here called Conservancy District, to dismiss four separate appeals from the judgment and final order dated January 9, 1959, whereby the disorganization, dissolution and winding up of the affairs of the Conservancy District were ordered. The Conservancy District includes all or a part of the seventeen counties and the dissolution order was signed by common pleas judges representing twelve of the seventeen counties in the Conservancy District sitting as the Franklin County Common Pleas Court.

Those appealing from the dissolution order were Pickaway County, Pike County, the City of Columbus and M. E. Sensenbrenner, as Mayor of Columbus and as a taxpayer.

The motion to dismiss the four appeals was made on two grounds to wit, (1) that the court of appeals lacks jurisdiction to review the dissolution order made by the court below, and (2) that the parties appealing to wit, Pickaway County, Pike County, Columbus and M. E. Sensenbrenner, as Mayor of Columbus and as a taxpayer, lack the authority to maintain an appeal.

As we see it, the only questions before us have to do with whether in this type and stage of the proceeding, this court may ever entertain an appeal and whether the appellants have the capacity to appeal.

We shall consider first the jurisdiction of this court to entertain an appeal from a dissolution order. The principal argument on behalf of the Conservancy District seems to be that because there is no inherent right of appeal, it must be conferred specifically in the Constitution of Ohio or by statute enacted by the Ohio Legislature. Specific reference is made to Section 6, Article IV, Ohio Constitution, which provides, among other things, that courts of appeal shall have “such jurisdiction as may be provided by law to review, etc. * * * judgments or final orders of boards, commissions, officers, or tribunals, and of courts of record inferior to the court of appeals within the district * *

Further reference is made to the provisions of the Ohio Conservancy Act, §§6101.01 et seq, R. C. It is contended that said chapter although providing appeals in a number of specific instances fails to authorize an appeal on an order of dissolution from which the conclusion is drawn that the Legislature intended no such appeal.

On behalf of the City of Columbus and its Mayor, it is urged that the provisions of Chapter 2505 R. C., “Procedure on Appeals,” and particularly §2505.03 R. C., thereof, applies to this case and that the judgment and final order of the court below is included within the meaning of the phrase, “every final order, judgment or decree of a court,” contained in the section of the Revised Code last referred to.

Sec. 2505.03 supra, R. C., provides in part as follows:

“Every final order, judgment, or decree of a court and, when provided by law, the final order of any administrative officer, tribunal, or commission may be reviewed as provided in §§2505.04 to 2505.45, inclusive, R. C., unless otherwise provided by law, * *

We believe that the twelve common pleas judges performed a judicial act when they approved the journal entry of January 9, 1959, ordering the disorganization and dissolution of the affairs of the Conservancy District. It is further our opinion that this order was included within the phrase, “final order, judgment or decree of a court,” as used in §2505.03 supra, R. C. It has not been pointed out to us nor have we been able to find any specific prohibition in the Conservancy Act, Chapter 6101, supra R. C., against an appéal from an order of dissolution. It would seem that the proper meaning to be attached to §2505.03 supra, R. C., requires a different answer when the order, judgment or decree is that of a court from that which applies in the case of the various administrative agencies. In the case of courts, it is every such final order, judgment or decree which may be appealed, while in the case of administrative agencies it is only when provided by law when such final orders may be appealed. Further, in case of final orders, etc., by a court, a review is authorized “unless otherwise provided by law.”

As before stated this court having the authority to review all final orders, judgments or decrees of courts except when prohibited by law, it would appear that a motion to dismiss on this ground is not well taken and must be overruled. As we view it, this conclusion is necessary under the holding by the Supreme Court of Ohio in the- case of the County of Miami et al, v. City of Dayton et al, 92 Oh St 215, in which Wanamaker, J., devoted the first three pages of the opinion to upholding the jurisdiction of the court of appeals in a case such as the one now before us..

This conclusion also is, in our opinion, in full agreement with the recent decision of the Supreme Court of Ohio in the case of In re Mahoning Valley Sanitary District, 161 Oh St 259. In the last named case, the Supreme Court made reference to Section 6, Article IV, Ohio Constitution, supra, and §12223-3 GC (§§2505.03 R. C.), and came to the conclusion, in interpreting what is now Chapter 6115 R. C-, relative to sanitary districts, that the latter chapter did contain' a specific prohibition against an appeal (see §6115.36 R. C.), but that otherwise an appeal to the court of appeals from the lower court would have been permissible. The third branch of the syllabus in that ease reads as follows:

“3. Under Section 6, Article IV, Ohio Constitution and §12223-3 GC (§2505.03 R. C.), unless otherwise provided by law, every final order, judgment, or decree of a court may be reviewed as provided in §§12223-4 to 12223-47 GC (§§2505.04 to 2505.45 R. C.).”

For the reasons above set forth it would appear that this court has jurisdiction to entertain the several appeals which have been begun and therefore the first branch of the motion to dismiss must be overruled.

We likewise feel that the City Attorney who signed the notice of appeal on behalf of the City of Columbus, the Mayor, who signed the notice of appeal on behalf of the City of Columbus, and the County Commissioners of Pickaway and Pike Counties were fully authorized to represent those political subdivisions and this branch of the motion likewise must be overruled.

As above indicated, we are of the opinion that the motion to dismiss may not be sustained upon the grounds upon which it was made. However, it would appear to us that in light of the provisions of §2501.02 R. C., defining those matters which may be the subject of an appeal on questions of law and fact, it should be sustained for the reason that the order of dissolution does not appear to be within the scope of the ten classes of cases in which an appeal on questions of law and fact is authorized.

Therefore, it is the opinion of this court that the appeals on questions of law and fact must be dismissed but that they will be retained as appeals on questions of law only and under the provisions of Rule V D of this court a period of thirty days is allowed for the presentation and filing of a bill of exceptions. The provisions of Rule VII A (2) of this court will govern with reference to filing assignment of errors and briefs.

DUFFY, J, concurs.

MILLER, J, dissents.

SCIOTO-SANDUSKY CONSERVANCY DISTRICT, In re.

No. 6101.

Decided June 30, 1959.

OPINION

By BRYANT, PJ.

Under date of June 3, 1959, counsel for the Scioto-Sandusky Conservancy District filed separate motions seeking to dismiss two separate appeals in the above entitled case. On June 16, 1959, this court rendered an opinion overruling an earlier motion to dismiss, filed by counsel for the Scioto-Sandusky Conservancy District. This prior motion was upon the grounds that this court had no power to entertain the appeal and also that the several appellants had no power to appeal.

The two new motions to dismiss were filed June 3, 1959, while the earlier motion to dismiss was pending before the decision was announced. One of the appeals, which is presently under attack, is that of Wayne Hines, Charles Morris, Jr. and Clyde E. Michel, County Commissioners of Pickaway County, and the other appeal being attacked is that of Walter Henry and Eddie West, County Commissioners of Pike County, Ohio.

The notices of appeal filed by the Commissioners from Pickaway County and Pike County state that they are appeals on questions of law and fact. The appeals of the City of Columbus by Russell Leach, City Attorney, and the appeal of M. E. Sensenbrenner, as taxpayer and as Mayor of the City of Columbus, likewise state that they are appeals on questions of law and fact. The opinion of this court above referred to held that they must be reduced to appeals on questions of law only.

On behalf of the conservancy district, it is urged that the new motions to dismiss should be sustained because the appellants have failed to prosecute their appeals. Counsel for the district say that the notices of appeals were filed January 28, 1959, and that the two counties in question since that time have taken no further action. We note, however, that separate precipes, each for a transcript of docket and journal entries, were filed February 3, 1959, by Wray Bevins on behalf of Pike County and Ray W. Davis on behalf of Pickaway County. The transcript called for by the two precipes has been prepared and filed in this court.

Likewise we notice that under date of February 17, 1959, the other two appellants namely, the City of Columbus and the said M. E. Sensenbrenner, stated that they elected to present as evidence, upon appeal, the evidence presented to the conservancy court.

For the reason that the validity of all four appeals was challenged by the said district by its original motion to dismiss and under submission to the court, it is our opinion that the two separate motions to dismiss must be overruled.

With respect to the motion of the City of Columbus and M. E. Sensenbrenner for leave to file the evidence from the court below, such motion is well taken and is hereby sustained.

DUFFY, J, concurs.

MILLER, J, not participating.

SCIQTO-SANDUSKY CONSERVANCY DISTRICT, In re.

No. 6101.

Decided September 29, 1959.

(McLAUGHLIN, J, of the Fifth District, sitting by designation in the Tenth District.)

OPINION

Per CURIAM.

This matter comes up for consideration on a motion on behalf of the Scioto-Sandusky Conservancy District for reconsideration of the Conservancy District’s prior motions to dismiss four separate appeals and the court’s prior rulings thereon.

Having given due consideration to the arguments of counsel and the briefs, we are of the unanimous opinion that the motion to reconsider should be overruled.

BRYANT, PJ, DUFFY and McLAUGHLIN, JJ, concur.