author: By SATER, J.

text:
    STATE, ex rel. REEDER, Relator, v. MUNICIPAL CIVIL SERVICE COMMISSION OF COLUMBUS et, Respondents.
    Common Pleas Court, Franklin County.
    No. 201708.
    Decided October 14, 1958.

      Robert Shaw, for relator.
    Russell Leach, City Atty., for respondents.
   OPINION

By SATER, J.

This is an action in mandamus wherein the relator, hereinafter referred to as Reeder, seeks restoration to his position in the Civil Service classification of principal personnel technician. The respondents are the Municipal Civil Service Commission of Columbus, Ohio, and also the three commissioners thereof, William H. Brooks, Melville D. Frank and Rand P. Hollenback. By his petition, positively verified, Reeder says that on or about June 4, 1936, he was permanently appointed from an eligible list to the position of examiner in the department of respondent Commission (i. e., his appointment to that position was made from a list of those made eligible by having previously taken and passed .a Civil Service examination); that on September 1, 1941, that position was reclassified under the classification title Principal Personnel Examiner, and again as of February 1, 1954, it was again reclassified under the classification title Principal Personnel Technician. Reeder further says that he then remained in that position and status until May 31, 1958, at which time Respondent Commission wrongfully and in violation of his rights attempted to discharge him therefrom. He says that no charges have been preferred or complaints made against him by respondent Commission; that despite his notification three days later to respondent Commission of his intention to appeal its verbal order of dismissal and of his request for a copy of the charges and proceedings against him in accordance within Sec. 149-1 of the Columbus City Charter, he has received no copy of any charge against him but that to the contrary, the respondent Commission refused to entertain a hearing on his appeal. When he reported on June 4, 1958, for work in his classified position, he was refused the right to perform the duties of that position. He further states that he has never resigned, abandoned or waived his rights to that position nor has he ever been requested by respondent Commission or by any of the respondent members thereof, to resign, abandon or waive any of those rights. He finally states that by reason of the foregoing he has no adequate remedy at law, and therefore prays restoration.

Reeder’s contention is thus grounded on the claim that since 1936, he has for 22 years held Civil Service status in the employ of respondent Commission, and is consequently entitled to the protection of preference of written charges, opportunity to be heard in answer and the right of appeal provided by Sections 149 (M) and 149-1 of the Columbus City Charter. If his contention is correct, respondent Commission has violated not only its Charter-based duties, but also its own related rules set up under Charter section 149 and which appear herein as Court Exhibit No. 7. Furthermore, it is best noted at this point that credence is lent to Reeder’s contention by the written opinion of respondent Commission’s legal advisor, Russell Leach, Esq., attorney for the City of Columbus, its departments, divisions and officers. On or about May 19, 1958, respondent Commission, or a majority thereof, being uncertain of Reeder’s Civil Service (or classified) status, made either oral or written request of Mr. Leach for his opinion as to Reeder’s status. That opinion, No. 49-58, Exhibit 4 herein, was dated and delivered to respondent Commission on May 26, 1958. If that opinion was erroneous, respondent Commission might conceivably be justified in disregarding it. On the other hand, public bodies and officers have the right, duty and privilege in time of uncertainty to seek and receive advice and opinions from their duly constituted legal advisor, and when given that advice, they are under moral or ethical, if not legal obligation, to act accordingly: nor may we assume, especially under the facts adduced herein, that respondent Commission appealed with frivolity to Mr. Leach. Consequently, if Mr. Leach’s opinion was correct, the respondent Commission —or, more accurately, two of its three members — in Reeder’s eyes, flagrantly disregarded just five days later Mr. Leach’s opinion by discharging Reeder without notice, without charges, without hearing, without permitting appeal; the last sentence of that 5-page opinion says:

“In view of the facts supplied me, or of which I have knowledge, it is my opinion that Mr. Gale Reeder has retained his permanent status as a Principal Personnel Technician, a classified position.”

To return now, after temporary relief had been given Reeder, respondents’ answer was filed. After admitting the legal status of respondents, it denies each and every other allegation in Reeder’s petition. The clear legal purpose of that form of answer was to put squarely in issue all of the allegations of Reeder’s petition, because a majority of the respondent Commission were of the opinion, for one reason or another, that at. the time of his discharge Reeder had no Civil Service status at all, and was consequently not entitled to the above-listed benefits and protections of the City Charter. But as the case unfolded into the record with testimony and exhibits, the element of inherent necessity to the filing of such a broad answer became increasingly apparent. No two Commissioners agreed in their thinking as to Reeder’s status. No wonder the request for the Leach opinion, but the greater the wonder that, received, it was not followed. The Senior Commissioner, Mr. Hollenback, was convinced that Reeder’s Civil'Service status antedated the Jacobs survey of 1941, and was never lost, abandoned or waived, the only changes affecting him being those arising from reclassification of his position incident to the Jacobs and Kroeger surveys later referred to herein. Mr. Commissioner Brooks knew that Reeder held the position of principal personnel technician with respondent Commission in May, 1957, but lost that preferred status by election almost a year later when Reeder, who was also holding the unclassified (non-civil service) job of secretary and personnel officer, proposed the advancement of Mr. Thrash to the status of principal personnel technician, thereby reserving the higher pay job to himself; despite this asserted election, Mr. Brooks was one of the two who later sought the Leach opinion for the stated reason that he was even then uncertain of Reeder’s Civil Service status, even though his earlier asserted election was then 90 days in the past. Newly incumbent Commissioner Frank said that “in accordance with my knowledge he (Reeder) has never enjoyed Civil Service status,” and, later, this colloquy; “My opinion is my own opinion, it doesn’t have to agree with either of them” (Hollenback and Brooks). “Q. Does it agree with either of them? A. Evidently not, Mr. Shaw.” Despite this certainty, Mr. Frank accompanied Mr. Brooks to Mr. Leach’s office in search of an opinion; and, like Mr. Brooks, did not follow it when once obtained. Needless to say, this scattered approach placed a grievous burden on counsel for respondents, because he was bound of necessity to leave at least one of his clients unrepresented. But unfortunately that burden is not new. See appellee’s briefs in Gas Co. v. P. U. C. O. 138 Oh St 483.

Trial was had on. these two pleadings, petition and answer. Many witnesses testified, many exhibits were received into evidence; and the Court being still unsatisfied as to the completeness of the record, reopened the case as a result of which eight more exhibits marked “Court exhibits” were received into evidence. At the same time it was agreed that the Court might consider and utilize the telephone book-sized “Position Classification Plan” dated November, 1953, of Louis J. Kroeger and Associates. So made up. the record was closed, trial briefs filed, and the case is now on for decision on the merits.

No question of constitutionality has been raised nor any question of conflict with or divergence from State statute. Nor under the circumstances and facts of the record may it be properly asserted that mandamus is not the proper vehicle for the determination of the issues here involved. See Moore v. Evans. 12 Abs 531; Williams, etc. v. State, ex rel. Gribbens, 15 Abs 596, aff’d. 127 Oh St 398, State, ex rel. Aurand v. Stocklein, 29 Abs 592, Toledo v. Osborn, 23 Oh Ap 62, State, ex rel. Noble, v. Atkinson, 31 Abs 576, State, ex rel. Desprez, v. Commissioners, 47 Oh Ap 1, State, ex rel. Wilkins, v. Merrell, 10 Abs 282, State, ex rel. Weber, v. Eirick, 40 O. L. R. 145, State, ex rel. Brittain v. Board, 95 Oh St 276, and State, ex rel. Click, v. Thormyer, 105 Oh Ap 479, Ohio Bar 9/22/58.

The proceeding, advanced for good cause out of its regular order, turns with a single exception on the interpretation and effect of Commission action, as disclosed by the record, over a substantial period of years. The only questions involved are: Did Reeder ever have Civil Service status? If he did, did he for any cause, reason or action lose it? To the determination of those questions will the interpretation and effect be directed. Following an introductory background, a chronological discussion of events should add to clarity of conclusion.

Twenty-five years ago, in March, 1933, Reeder went to work for the respondent Commission as a Grade B Clerk-stenographer. At that time he was an unclassified employee without Civil Service status or protection. Three years later in 1936 he took the required examination, passed it and was appointed examiner in the office, of that Commission. Then and there Reeder acquired Civil Service status. At those times there were and still are in effect Sections 146 to 158-1 of the City Charter covering all the duties and functions of respondent Commission. Only a small portion of those sections are here relevant. Section 147 requires respondent Commission in the main to make and enforce under 15 lettered subdivisions, rules for the classified service. Subdivision (a) requires the rules to provide “For the classification and standardization of all positions in the classified service.” Section (j) provides for methods of promotion within the ranks but respondents did not seriously press the idea of promotion, and even if they had, the ensuing factual situation anyway renders that subsection and any resultant rules irrelevant and immaterial. Subdivision (m), already alluded to, covers the procedural steps of discharge such as the preferment of written charges and the right to answer. Section 149-1 covers the right of the discharged employee to appeal to the respondent Commission with transferal to it of charges and proceedings before the discharging municipal official. Rules were so made and their January 26, 1954, version appear as Court Exhibit 7; it is anomalous to note that in the case of discharge of a Commission employee the Commission is prosecutor, jury and judge, but such is the effect of our Charter and the required rules under it.

From 1936 to 1941, Reeder remained an examiner. From that time onward there was no dispute that Reeder was continuously and without interruption next to the top man in respondent Commission’s office, regardless of the title to his position; top man was the secretary, an unclassified appointee.

In 1941 the City, with the aid of Jacobs and Company, completed a survey, familiarly known as the Jacobs Survey, of the positions, duties and functions of most, if not all of the City’s employees. Such a survey is not uncommon nor is it in any sense a “ripper” activity. As a city grows, the duties and functions of mány of its employees are changed or enlarged upon with no befitting alteration in title or In compensation. Also, for example, two or more employees in the same or different departments may be doing identical work, all under different titles and all under different rates of compensation; in its inception, this is frequently unavoidable but in the best tradition of a true Civil Service system, it is intolerable and demands correction. By means of a survey these inequalities and inequities are replaced by a pattern of uniformity and propriety of classification and position that extends both horizontally across departmental lines when necessary and perpendicularly through each department itself; demotion is prohibited, but reclassification as distinguished from promotion is utilized at times to conform title and compensation in relation to duties and functions imposed over the years by the needs of a growing city upon those already holding classified status, as was Reeder.

In April, 1941, the recommendations of the Jacobs Survey with regard to respondent Commission were presented; it is respondents’ Exhibit D. There were listed the three Commissioners and Secretary Guy Harris with Gale Reeder following — next to the top man as already noted — and thereafter two others, a puny total of seven. And let it be noted that Messrs. Hughes and Garek were two of the Commissioners. The Survey recommended a titular change for Harris from secretary to secretary and chief examiner at a substantial salary increase, and a reclassification for Reeder from examiner to senior personnel examiner with a very small salary increase. We were not favored with the full Jacobs Survey, but the purposes of these recommendations are undoubtedly set forth in the preceding paragraph of this opinion and are on all fours with the Kroeger Survey which will be later discussed.

The Commission did not consider these recommendations adequate to its needs. At its meeting on June 26, 1941, it retained (Exhibit E) the senior personnel examiner classifications, but inserted between it and the office of secretary “a classification of Principal Personnel Examiner in the Department of Civil Service”; on this, “Voting was unanimous.” Like the Survey itself, this action required Councilar legislation to provide salaries. This was financially effectuated two months later by Ordinance No. 538-41 (Ex. F and Court Exhibit 2). Seventeen days later, on September 11, 1941, the two immediately preceding steps were confirmed and ratified by the Commission (Exhibit G) by its following minute:

“To complete the minutes of June 26, 1941, the action of the Commission in providing for the classification of Principal Personnel Examiner in the Department of Civil Service Commission also included the reclassification of the position of Examiner (under old classification plan) and the allocation of Gale L. Reeder from the old classification of Examiner to said new classification of Principal Personnel Examiner in the Department of Civil Service Commission as a regularly permanently appointed classified employee. This action is also taken in conformance with Ordinance 538-41, effective as of September 1, 1941, the effective date of the ordinance. This by resolution: Voting, Unanimous.”

Again Reeder was next to the top. Exhibit No. 4 is the conformation

of the Jacobs Survey to Commission and Council action; its “Usual Lines of Promotion” serve as a guide to the future with regard to a newly created classification, its word “Usual” in light of the foregoing means exactly what it says and no more. And let it be noted both that both Council and respondent Commission recognized these steps as a reclassification, not a promotion; and also that this particular recognition has gone unchallenged for 17 long years. No one, or all, of these steps were challenged by respondent Commission, but had they been, and were not the foregoing analysis fully adequate to meet that challenge, it would be noted that the doctrine of municipal estoppel in pais, with regard to this same Jacobs Survey and effectuating Commission action thereon, was recognized in the two opinions of this Court in the unreported case State, ex rel. Frambes, v. Barthalow, No. 171,245. ' To much the same effect, see also Essex v. Telegraph Co., 239 U. S., 313, 321, 60 L. ed. 301, 306, Los Angeles v. Los Angeles County, 9 Cal. 2d. 624, 72 Pac. 2d, 138, syll. 12, Eau Claire County v. Eau Claire, 172 Wisc., 240, 179 N. W., 2, 10; and State, ex rel. Witten, v. Ferguson, 148 Oh St 702, wherein the principle of estoppel is inherent.

Things went quietly until Harris resigned as secretary and chief examiner in 1944. To plug this gap, Commissioners Garek, Hughes and Hollenback met on March 10, 1944 (see Exhibit No. 7) and took the following action:

“Due to the reduction in the budget allowance for the Municipal Civil Service Commission, sufficient funds are not available at this time to appoint a regular Secretary and Chief Examiner of the Commission. In view of this fact, the Commission ordered an ordinance prepared, authorizing the payment of the maximum salary for Secretary and Chief Examiner to be paid to the Principal Personnel Examiner, who was assigned Acting Secretary and Chief Examiner by the Commission, to perform these additional duties.” (Emphasis added.)

In this wise, and for clearly adequate cause, Reeder became the holder by force of necessity of two positions; and he held them for almost exactly fourteen years. Nor have we been shown, nor can we find any authority at all, suggesting the impropriety of holding two such jobs, one classified and the other unclassified, especially when but one rate of pay is made. There is no question of incompatibility between the two positions, even though one is classified and the other is not. Nor can there be question that the unclassified secretaryship replaced the prior classified position of principal personnel examiner; to do so is to nullify proper Commission action: “these additional duties.” Commission and Council together do not perform futile acts.

Quietude again descended but the City continued to grow; and with it, grew the number and ramifications of municipal employees. The same overlapping, enhancement, distortion and variegation in municipal jobs evolved that had led up to and produced the Jacobs Survey. The need for another survey was indicated. This time it was conducted by Louis J. Kroeger and Associates, and the year was 1953. From it in November, 1953, came the voluminous “Position Classification Plan” — the Kroeger Survey so-called — and was presented to Commissioners Hollenback, Hughes and Garek. The introductory fourteen pages of this Plan so specifically and clearly set forth (all along the lines of the Jacobs Survey, supra) the purposes, needs, methods and objectives of the Plan that present comment thereon will generally serve no good purpose. We note just three matters therefrom.

(1) On introductory page 10, Kroeger heartily approved of what was then section 5 of respondent Commission’s rule 3:

“Where a position has been reclassified by the Commission on account of additional duties and responsibilities or to correct errors in classification, the incumbent of the former position may be re-designated to the new position, if the Commission is satisfied after investigation that he is fully qualified to fill the position.”

(2) At the top of page 5 is the sentence, “We have encountered an unusual amount of concern in Columbus concerning titles.” Four years later this concern became an insurmountable stumbling block to respondent Frank who would not visualize two (or more) principal personnel technicians, even though that phraseology designates a class and not a position, even though a class may hold ten or more positions of the same title; and, to use a homely illustration, two miles north of here the title “co-captain” is far from being a rarity. Any other conclusion is a bare-faced play on words.

(3) How the duties and functions of Commission employees had ramified in the twelve years since the Jacobs Survey, compare Exhibit 5 “Principal Personnel Examiner,” to which Reeder was then associated, with “Principal Personnel Technician” in the Kroeger Survey’s alphabetical list; and note how every ramification ties directly in to the classification without changing its basic concept. Then compare this with the alphabetical listing of personnel technician, and secretary and personnel officer; three distinct classes, yet all closely allied and interwoven to make one complete whole.

Thus, armed with nine years acting secretaryship and twelve years classification as principal personnel examiner, Reeder met and aided in the Kroeger Survey; respondents make unfavorable comment on this participation by Reeder as though some stigma attached to his assistance but they failed utterly of proof of bias or equal aid from any other source and they failed utterly to consider the burden to Kroeger had Reeder refused his assistance.

From the Survey came four exhibits. Dated October 9, 1953, Exhibit B is Kroeger’s tentative position allocation list for respondent Commission. The right hand column gives present titles, the left hand column proposed titles. Omitting, as its left hand column does, all three commissioners and the secretary but including a new title, “Personnel Officer,” the list obviously confines itself to only those positions and classes which Kroeger believed should be classified. Much is made of the fact that Reeder’s then present principal personnel examiner title carried the recommended title, “Senior Personnel Technician” and carried the suspended notation “1 Vacancy.” Suffice it to say chat as to Reeder the Commission did not accept Kroeger’s recommendations in any respect. Less than a month later (Exhibit A), Commissioners Hollenback. Garek and Hughes officially met with Kroeger’s representation to consider, especially, the recommendations of this Exhibit B. The minutes of this November 4, 1953, meeting show the addition of the office of Commission Secretary with no occupant and no prior title (just as though there had been no previous title or occupant) and also, with still “1 vacancy” the proposed classification of Senior Personnel Technician. Then follows this significant minute:

“The only question raised was with regard to the Commission’s Secretary (permitted under the Charter) and Personnel Officer. The malority of the Commission acted to revise the recommendations to provide a Secretary and Personnel Officer in the unclassified service to eliminate the recommended Sr. Personnel Technician and in lieu thereof provide a Principal Personnel Technician. Commissioner Hollenback dissented.”

Two matters arise from this meeting and minutes. (1) Some adverse comment by way of examination and cross-examination was made by respondents at the trial over the fact that the words “Commissioner Hollenback dissented” were added to the minutes more than four years after their original engrossment. Wisely, we think, little if any comment was made thereon in respondent’s trial brief; a perusal of the exhibit shows beyond doubt how Commissioner Hollenback voted whether the words were added or not. (2) Does the failure of these minutes to designate Reeder of the Title, status and position of principal nersonnel technician deprive him thereof? Not at all. If the failure of a civil service commission to make formal entry of an appointment, does not affect the validity of the appointment, the same is a fortiori true of the less provocative act of reclassification from principal personnel examiner to principal personnel technician as is shown by Exhibit C to have been done that same night. See Zimbelman v. Atkinson, 54 Abs 47, 50-51 and State, ex rel. Noble, v. Atkinson, 31 Abs 576, cited above. To clinch the point that this is a reclassification, and nothing more, let it be noted that in both the Jacobs Survey and the Kroeger Survey, the accumulations of new position duties and functions were acquired over the years and not as a result of either survey.

Comment was made that Reeder never took an examination for the position of principal personnel technician. This is agreed, but the examination was not required. On November 30, 1953, respondent Commission added to its rules (Court Exhibit 6) section 9, the relevant portion of which reads:

“In no case shall any present employee be reduced in salary, deprived of status as a permanent civil service employee, or required to take an examination to keep such status because of this classification, provided that his new permanent status may be in the appropriate classification in the new classification plan.

The following sentence relates to inapplicable situations such as promotions or changes from unclassified to classified status. Also, less than two months later, on January 26, 1954, over the signatures of Commissioners Hollenback, Hughes and Garek, this language became effective as a part of respondent commission’s present Rules and Regulations (Court Exhibit 7) as a part of Rule III, section F, par. (a). But to make doubly certain, the same Rule III, section H provides in relevant part:

“If by reason of changed duties and responsibilities is reallocated to another class for which the minimum rate of compensation is no higher, the incumbent may, upon approval of the Commission, continue in such position with or without qualifying tests as may be determined in each case. If a position is reallocated to a class for which the maximum rate of pay is higher on account of additional duties and responsibilities or to correct errors in classification, it shall, if practicable, be filled by re-designation of the incumbent of the position of the former class to the new class, if the Commission after investigation is satisfied that the incumbent is qualified to perform the duties of the new class.”

At almost the same time City Council enacted Ordinance No. 1246-53 (Court Exhibit 3) set the class and number of officers and employees of respondent Commission at nine (plus the three commissioners); among these nine are one principal personnel technician, one senior personnel technician and one secretary and personnel officer, the last, unclassified. Section 3 of this Ordinance repeats almost verbatim, the Commission’s language of 1944 (Exhibit 7):

“That the Principal Personnel Technician shall receive the salary listed for Secretary and Personnel Officer while assigned by the Commission to perform these additional duties.”

Note the repetition nine years later of the word “addition.” Thus by Council acceptance, by Commission action and by Kroeger preferment of the spirit of Civil Service regulation, Reeder emerged as principal personnel technician and secretary and personnel officer after twenty-one years of continuous employment, mostly under classified status. Had any other result been reached by Commission action and rules as set out above, it would have been highly unconscionable and a clear disregard for the letter and spirit of the City Charter, section 149, paragraphs (a) and (o) which state that the Commission rules shall provide:

“(a) For the classification and standardization of all positions in the classified service.” * * *

“(o) For the publication of the rules and amendments thereto in the City Bulletin. The commission shall adopt such other rules, not inconsistent with the foregoing provisions of this section, as may be necessary and proper for the enforcement of the merit system.”

Thus the reclassification sheet signed by Reeder on February 1, 1954 (Exhibit 1) relating to the officers and employees showing himself in the dual capacity noted above was strictly in order. Indeed, it was nothing more than a copy of the November 1953, Kroeger Positive Allocation List, Civil Service Commission (Exhibit 6) with individual names filled in in conformity with Kroeger, Commission and Council action. This was not an appointment nor a promotion because Reeder had held classified status almost literally “whence the mind of man runneth not to the contrary” and because for many of those years he had been actually performing all the duties and functions incident to the two newly baptised titles. It thus borders on the absurd that in 1954 respondent Commission for appointment or promotion should certify a vacancy on its staff to itself, then certify back to itself an eligible list 'not shown in the record to exist) of three, then make and certify to itself an appointment or promotion, and finally four years later throw the whole ludicrous procedure out the window despite its own legal advisor’s opinion that Reeder had held since 1953-54 classified service status as principal personnel technician. See also State, ex rel. Hoornstra, v. Atkinson, 136 Oh St 569. No, Reeder held status as indicated but performed at Commission pleasure the duties of secretary and personnel officer only because even in that august body, there are only 24 hours in any day and seven days in any week; yet in event of Commission displeasure or discovery of suitable successor as secretary and personnel officer, he simply reverted to the long familiar duties of his classified status. How prophetic!

The foregoing, incidentally, is a far more logical and probable explanation than that tendered by respondent Commission why and for what reasons Reeder proposed the promotion — and this was a true promotion — of Robert Thrash from the classification of senior personnel technician to that of principal personnel technician, upon which the respondent Commission favorably acted. See Exhibit 8. Two days later, on March 12, 1958, Reeder filled out for Thrash the proper advancement forms appearing as Exhibits I and 11. A year prior to this recommendation and action, City Council (Exhibit 9) increased to twelve — one secretary and not to exceed eleven other officers and employees — the staff of respondent Commission. This increase covered the senior personnel technician class not mentioned in the Kroeger Survey or Commission modification thereof, and also added personnel required by the growth of both City and respondent Commission. Respondents made much of Reeder’s use of item No. 8 in that advancement form: that Reeder in item No. 8 (a), Name of last incumbent principal personnel technician, wrote “None,” and in item No. 8 (C) Names of one or more persons in organizational unit doing identical work, he again wrote “None.” Respondents draw therefrom the conclusion that Reeder thereby abandoned his classified status as principal personnel technician, i. e., that for an undisclosed unknown reason, Reeder deliberately cut his classified throat for the benefit of one barely half his age and with a quarter of his experience. To state the proposition is to answer it.

Further, respondent Commission overlooks the fact that Thrash, by item No. 4, was moving from only one provisional appointment to another. That whether Thrash was advanced or not, he was by rule if not also by charter, long overdue for an examination as to one class or another. That senior personnel technician and principal personnel technician are classifications, and not positions, with either or both available to ten or more positions subject only to the financial guidance and restriction of Council. That Council’s increase in personnel of respondent Commission allowed it, for all that the record shows, to create two more principal personnel technicians. That Reeder’s action (see item No. 9) made no increase in the number of Commission personnel. That with at least two positions of principal personnel technicians available and Reeder occupying only one, there could not possibly be any prior incumbent of the remaining positions; even witness Stock, among others, knew of no reason why there could not be two positions in the principal personnel technician class, while witness Thrash himself was concerned not with the principal personnel technician class which status he had known for six years that Reeder claimed but with the question whether his own senior personnel technician class whose status and emoluments he enjoyed. See also respondent Hoilenback:

“Now, I would like to explain the part in here about Mr. Thrash and his taking a position as Principal Personnel Technician. The reason I have said what 1 have, Judge, about these technical terms, is because I want to explain that I was advised and I think Mr. Reeder made the advice that Mr. Thrash was doing increasingly competent work; I have know Mr. Thrash and I agreed that he was. My thought was that he was getting a promotion. Now, I know you are going to be hounded with the word ‘promotion’ by the technical people, but it was my thought he was doing the work in part to which he was entitled a promotion. Now, then, that did not supplant Mr. Reeder in any way, as has been indicated from the technical interpretation. Again, I’d say I do these things as I think they are legal and from the viewpoint of a layman in all these Commissions.”

That as to others doing identical work, the answer “None” was probably precisely accurate; Thrash was performing Reeder’s classified duties on a day-to-day basis'just as Reeder for nine long years had been doing Guy Harris’ secretarial duties on the same basis. That instead of committing classified hari kari in March, 1958, Reeder was really doing Thrash the favor of recognizing his faithful service and was greeting him as a classified equal. He made thereby no election between two positions; he was distributing the work load. How the majority of respondent Commission could overlook all these factors, especially in the face of the Leach opinion, is beyond the imagination of this Court. The one factor that respondent Commissioners could not personally know was Reeder’s feeling about the Commission secretaryship. Said witness Garek,

“A. As a matter of fact, Mr. Reeder refused to waive his Civil Service standing at a time when the Commission had tendered him one or the other of the two jobs, either the Secretary job or the job he was then holding. At that time he had refused to take on the Secretary because he did not want to lose his Civil Service standing.”

Respecting his wishes, the Commission held him for his skill and experience in both jobs for fourteen years. His unseating was as deliberate as was his installation, but with reverse animus.

Nor does this little interlude constitute a resignation by Reeder. To constitute a complete and operative resignation of a classified public officer, there must be an intention to relinquish a position accompanied by a positive irrevocable act of relinquishment. See State, ex rel. Staley, v. Lakewood, 47 Oh Ap 519, 524, wherein mandamus was allowed. As seen above, all the essential ingredients are here lacking. Nor was it an abandonment by Reeder of his classified status. Abandonment is a word which has acquired a technical meaning symbolizing a concept which is sui generis in the law. It is an absolute unequivocal relinquishment of a right or status without regard to seif or any other person. It is a virtual throwing away without regard as to who may take over or carry on. It is a total desertion of what existed or went before; and evidence thereof must be direct, affirmative or reasonably beget the exclusive inference of throwing away. Little difference attaches to the idea and principle of waiver. The record here supports no such doctrines.

Following the Kroeger Survey, peace and quiet descended upon respondent Commission for four years. But in those years two new commissioners came in to replace Garek and Hughes, and with them the whole complexion of the respondent Commission changed with regard to Reeder. One is impressed by the fact that the longer commissioners bad held office in respondent Commission over the last 19 years, the more certain they were of Reeder’s classified status and that he never resigned, waived or abandoned it. Hughes and Garek had been through both the Jacobs and the Kroeger survey, Hollenback through the Kroeger survey; all three were certain of Reeder’s classified status. And understandably so; rusty perhaps on exact phraseology unseen and unreviewed for years, but certain beyond doubt of basic purpose and action of surveyor, Council and Commission by virtue of having been there and having participated therein, they knew. Nor were any of them shaken on cross-examination on any material point at all. Of the remainder, one agreed that “I didn’t pay enough time to it, perhaps” and that he was not familiar with the Kroeger survey. In view of the volume of work confronting a commissioner and in view of the amount of authorized compensation, this is an entirely understandable concession, and the Court respects the witness for his candor. But it still does not meet the objection of State, ex rel. Noble, v. Atkinson, already cited above wherein our own Court of Appeals noted that, after a procedural blunder, anyone looking would have found the relator’s true status in that case; needless to say, restoration to status was there granted by writ of mandamus. Were it necessary to do so, we could fall back on the principle of Commission ratification by express assent or by acts or conduct inconsistent with any other supposition; and respondent Commission will be held to have done so where for four years and with knowledge available of the facts, it has remained silent or has acquiesced in Reeder’s reclassification, accepted the benefit of his services and authorized appropriations to pay his salary. All of these necessary elements are present here.

On the other hand, may it be said that Leach and all three of these long-time commissioners, three of them skilled attorneys, were wrong? Not so. To hold them wrong is to hold that of all the hundreds of posit-ions twice surveyed, Reeder alone was reclassified. (Yet Exhibit 6 shows that every position under the commissioners was retitled if not also completely reclassified without subsequent question.) If such was the case, the work of both Jacobs and Kroeger was utterly useless and their compensation equally unwarranted. Such an alternative to their testimony is not only incredible; it is also unmentioned and unproven by respondent Commission. Notes in witness’ hands, as unused as the bench calendar before the Court, did not relieve respondent Commission of the need to prove something, anything, beyond skeletal minute records. Reeder’s classified status was and is beyond question, unwaived, unresigned, unabandoned. Observing, furthermore, the testimony and demeanor of each and every witness, and in consideration, too, of the record and all the exhibits, Reeder has long been the key man to respondent Commission.

Why and how, then, was Reeder in 1958 singled out for special attention? To obtain the answers, the Court to have a full picture before it, opened wide the gates to the admission of evidence and received much not warranted by a general denial. Respondent Commission thus received the benefit of unpleaded special defenses.

In the first place, commissioner Brooks harbored questions since 1955 or 1956 of Reeder’s status. An odd assertion by him since his stated reason for dismissing Reeder was that Reeder’s recommendation of Thrash, as noted above, to a position in the class of principal personnel technician in March, 1958, constituted by Reeder an election between that position and that of unclassified secretary and personnel officer. But disregarding this anomaly for the moment, he held his peace without comment either to then-commissioners Garek and Hollenback or, more particularly, to Reeder for two or three full years. That does not ring true to either Commission related history or to the spirit of the classified service of either City Charter or State constitution. Then at the end of that period of incubation, he sought Leach’s opinion which m seven days time he disregarded. Unless he never resolved his doubts or unless he was newly overpersuaded, he never gave reason for requesting the Leach opinion at all. Yet at that time he was called, by his own testimony, president or chairman, an alternative appellation strikingly reminiscent of the difference between principal personnel examiner and principal personnel technician — two names for the same office.

In the second place, respondent Commissioner Frank took office early in 1958. It is no disgrace that he was a beginner, as his predecessors once had been, unfamiliar with Commission personnel, duties, functions; belike, even with Commissions’ technical jargon. To his credit, he sought quickly by means of conferences with Reeder, to familiarize himself with those elements. Statedly, he relied on Reeder’s briefing. Statedly, he did not look upon Reeder’s status. Statedly, he, too, was sufficiently doubtful of his own judgment to join in seeking Leach’s opinion. And, statedly, he, too, disregarded it completely.

Much, if not all, of this doubt grew from commissioner Frank’s request of Reeder for a written report or functional and experience digest of Commission staff. This appears as Exhibit H, and went to all three respondent commissioners and M. D. Portman; whether its later tailsheet giving Reeder’s own official pedigree was equally distributed, is unknown. This document is a pure thumb-nail sketch of each and every member except Reeder, of the staff of respondent Commission’s. It was a quick, brief rundown aimed to fit Mr. Frank’s immediate needs, but two comments are in order. (1) Without reference back to the documents noted above in connection with the Kroeger Survey, it is almost impossible to determine the classified status of any person listed on it. (2) Reeder’s own pedigree was not included in this report. With Reeder and Commissioner Frank meeting and consulting in several briefing sessions, no clear reason is shown why it should have been included; but when it was sought, it was promtly supplied and it, too, gave no positive assertion of classified status. Certainly no such paper can constitute abandonment, waiver, loss of or resignation from classified status as to Reeder any more than as to any other person named in it; it was not so intended nor could it be so taken. Said Reeder:

“Q. (By Mr. Bowen) In other words, Mr. Reeder, in your communication to Mr. Frank, you did not indicate in your experience section that you had ever held the position of Senior Personnel Technician and/or Principal Personnel Technician and/or that you held two positions concurrently, did you, sir, in this communication?

“A. No, sir, because in understanding his question, as I recall — it was verbal — my impression was he wanted to get an idea, he said, of just what the people were doing, so he could know. Now, neither did I indicate the detailed records of the other people. Some of them worked under more than one title, so I did not follow a different pattern in my case than the others. Some of these people have changed titles three, four or five times. I did not indicate that in their case.”

A parallel matter arises from or is illustrated by this report. It is signed “Gale S. Reeder, Secretary and Personnel Officer”; no reference at all to principal personnel technician. This method of signature coupled with his early non-assertion of principal personnel technician’s position, is taken to mean that he held no such position, or status. This interpretation we cannot, for reasons already set out herein, accept. It overlooks too many factors. First, there is the positive testimony of Garek, Hughes and Hollenbaek that Reeder held such status. Second, there are all the documents and actions surrounding the Kroeger survey alluded to above showing indubitably that he held such status. Third, there is the fact that in his dual status, Reeder had for 14 years been performing the unwanted functions of secretary and personnel officer i or examiner) at the express request of the Commission which placed him in that dual capacity and now seeks to strip him of both positions without hearing, without appeal. Fourth, there is the much challenged, and obvious ring of sincerity to, statement by Reeder that the holder of two positions customarily designates himself by the financially higher rated title. A simple practical inquiry will rob this situation of all its sting. Who ever heard the statement or saw the signature, “Richard Roe, Attorney-at-law and notary public”? As above, to state the question is to answer it. Yet this is said to indicate waiver, abandonment or resignation!

Considering the contents of the record here and considering with it the known purpose of the merit system to reward long, skilled and faithful public service, it is utterly incredible to this member of the Court that despite these factors, and in the face of the Leach opinion, respondent Commission should peremptorily kick out its most experienced officer, its key man in office and in court, without even lip service to the rudiments of fair play enunciated in City Charter and Commission rules. It shocks the conscience.

We turn finally to the question whether there was lawful reason to dismiss Reeder. Shortly prior to March, 1958, a meeting was held in the mayor’s office or anteroom. The respondent Commissioners were present to meet and consult with unnamed administrators and department heads The origin and purpose of this meeting were disputed. One respondent Commissioner said that complaints over administration of the merit system' was the subject of discussion. Another said that the meeting was called to consider complaints against Reeder. At first it sounded as though the complaints came from such heads, but on inquiry on one Commissioner by the Court, it turned out that whatever complaints there were, were being simply transmitted by those heads; the complaints would have come from the lowest municipal employee whether classified or unclassified, whether the complaint was meritorious or not.

Whatever the cause of the meeting, only respondent Commissioner left the conference convinced that administration of respondent Commission functions was out of step with departmental activities or work, yet the record is silent why respondent Commission, of all sections of our municipal government, should conform its duties and functions to that of any other. If the hotly denied purpose of the meeting in the Mayor’s office was to sack Reeder, his absence is understandable, provided Commission rules were followed: but if it was to consider Commission functions generally, Reeder’s absence illogically deprived the session of the advice of him who probably had known and forgotten more about the City’s merit system than the meeting had ever heard of. Anyway, soon thereafter in rapid sequence came Reeder’s dismissal as secretary and personnel officer, the Leach opinion, and finally Reeder’s dismissal from the position he held as principal personnel technician. In two strokes, the axe fell swiftly, completely; the rest, unscathed.

Some trivia entered into the record. It is likely that Reeder in a moment of panic, felt and said that “the rug had been pulled” from under him by respondent Commission. That is understandable; had he not had classified status, he would have had fourteen years within which to acclimate himself to the political hazards of the secretarial rug and to cushion himself against the inevitable yank. The unexplainable and unexplained comment, to the contrary, is that Reeder’s claim of classified status made the majority of respondent Commissioners look “ridiculous.” Ridiculous in the eyes of whom? Certainly not to the public which could and would know nothing of the situation. Certainly not to the minority Commissioner who was already fully apprised. Certainly not to respondent Commission’s staff, some of whom were not certain of their own classified status. Whom, then? No one is left but two respondent Commissioners who voted to oust. This is no test case nor has it been treated as such; but if it had been, every municipal job reclassified since the Kroeger Survey would be jeopardized by sustention of the claims of respondent Commission.

Far more sensible and lawful was the unaccepted solution tendered by respondent Commissioner Hollenback. On inquiry he said:

“THE COURT: Now, am I correct, there is apparently many times an addition of new activities to some particular position that has theretofore been created?

“THE WITNESS: That’s right, and in this case, Judge, there was increased activity because we were growing and in our subsequent tape, if Mr. Frank would like to bring in another tape, we discussed what might happen if Mr. Reeder wins this case and what would happen to Mr. Thrash, and at that time, I said the common sense thing to do and in line with what we need would be to have the two men.”

It would fully have executed the letter and spirit of the merit system. If the City has outgrown the Kroeger Survey, the remedy is a new survey, not the dismissal of its administrator; and this is true whether the dissatisfaction with Reeder, in a job he did not seek, rests in individual complaints over salary or classification, or in asserted failure to “cooperate.” The treatment accorded Reeder goes not to the root of any meritorious complaint; is smacks too much of government of men instead of laws.

At the close of Reeder’s case and again at the close of respondents’ case, respondents moved to dismiss. That motion was taken under advisement. On full consideration and in view of the foregoing, it is now and hereby overruled. Furthermore, the prayer of Reeder’s petition is granted, effective forthwith at respondents’ costs.

At the close of respondents’ case, request was made for separate findings of fact and conclusions of law. The Court later requested counsel to submit proposed findings and conclusions, but that has not been done. The following are consequently made:

FINDINGS OF FACT

1. With respondent Commission, Gale S. Reeder has held continuous uninterrupted classified -status from 1936 to date.

2. Since the time of the effectuation of the Kroeger Survey late in 1953, Reeder’s classified status has been and still is that of .principal personnel technician.

3. Reeder has by act or word neither resigned, waived nor abandoned either that status or that position.

4. Reeder was improperly dismissed from his classified position of principal personnel technician without hearing, without charges tendered and without granting of appeal.

CONCLUSIONS OF LAW

1. Reeder was unlawfully dismissed from his position in the classified status of principal personnel technician.

2. Reeder was therefore under no duty or compulsion to demand reinstatement of respondent Commission to his stated class position.

3. Nothing in the Ohio Constitution, City Charter or Commission rules prevents one from holding two compatible positions, one classified and the other unclassified, so long as compensation is paid for only one of them, nor do these documents or any of them prevent the establishment of two positions in the classification of principal personnel technician.

4. Reeder has adequately and fully borne the burden of proving his claim to status and his right to immediate reinstatement.

5. Mandamus is the proper vehicle for Reeder to use to assert and to be reinstated in his legal rights.

The bond heretofore imposed on Reeder is hereby cancelled effective instanter. Submit entry covering all of the foregoing.


source: Caselaw Access Project

author: By KOVACHY, J. By SKEEL, J:

license: Public Domain

text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, Plaintiff-Appellee, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24890.
    Decided December 18, 1959.

      Paul P. Sogg, for plaintiff-appellee.
    Payne & Hermann, for defendant-appellant.
   OPINION

By KOVACHY, J.

This is an appeal on questions of law from a judgment entered in a Declaratory Judgment action in the Court of Common Pleas of Cuyahoga County in favor of plaintiff, United States Fidelity and Guaranty Company, and against defendant, Nationwide Mutual Insurance Company.

Plaintiff issued a Comprehensive General Automobile Liability Policy covering any accident for which The Atlas Steel Supply Company, a corporation (hereafter called “Atlas”), would become legally obligated, and defendant issued a Standard Automobile Combination Policy to Ben Madvid, covering accidents arising out of the ownership, maintenance or use of an automobile, a stake truck, for “which the Insured shall become legally obligated.” Each carried the usual provision obligating the insurer to defend any suit against the assured brought within the terms of the policy.

It appears further from the record that Ben Madvid filed a tort action in the Court of Common Pleas of Cuyahoga County on June 13, 1956, against Atlas, alleging that he drove his truck on Atlas’ premises at its invitation and request for the purpose of selling it scrap and that, after alighting from the truck, he stood nearby while Atlas operated an overhead crane with an electric magnet attachment for the purpose of unloading his truck, and that when Atlas carelessly and negligently swung a piece of scrap so as to strike him, he sustained personal injuries. He further averred that the control, management and operation of said crane and electric magnet was exclusively in the hands of Atlas and that he was injured and damaged in the sum of $20,000. This cause, No. 685, 025, is pending.

Plaintiff in its second amended petition filed in the instant case contends “that it is the defendant’s responsibility under the terms of its policy and the defendant contends that it is the plaintiff’s responsibility under the terms of its policy to assume the investigation, defense, payment of attorney fees, and any judgment rendered in behalf of Ben Madvid arising out of the lawsuit filed by him” and prays for judgment “détermining and declaring the respective rights, obligations and liabilities of the plaintiff and defendant insurance companies under their respective insurance policies.”

The trial court decreed that the defendant, Nationwide Mutual Insurance Company (formerly Farm Bureau Mutual Automobile Insurance and Farm Bureau Mutual Fire Insurance Company) was primarily liable under the terms of its contract to provide protection to Atlas, and that Atlas as an omnibus insured under such policy was entitled to the benefits of such policy in the suit of Ben Madvid versus Atlas.

Defendant-appellant, in its assignments of error, claims that the trial court erred in making a declaration of rights, duties and obligations of the parties in the declaratory judgment action; and, secondly, that the trial court erred in declaring that the defendant-appellant had the obligation of extending insurance coverage to Atlas in the tort action.

We shall consider the latter assignment of error first.

The policy issued by the defendant was in the amount of $100,000 for each person, and pertinent parts thereof read:

“V. Purposes of Use Defined.

“(a) The term ‘pleasure and business’ is defined as personal, pleasure, family and business use. (b) The term ‘commercial’ is defined as use principally in the business occupation of the Named Insured, including occasional use for personal, pleasure, family and other business purposes. (c) Use of the automobile for the purposes stated includes the loading and unloading thereof.” (Emphasis ours.)

It is claimed in the tort action that Atlas was unloading scrap from Madvid’s truck when the accident occurred.

Obviously, Atlas was unloading such scrap with Madvid’s permission. Atlas, therefore, at the time of the accident, was not only carrying on an operation within the scope of the “business occupation” of the Named Insured but was using the automobile for the purposes stated in the policy. Bobier v. National Casualty Co., 143 Oh St 215, 54 N. E. 2d 798.

“Ill Definition of ‘Insured?

“With respect to the insurance for bodily injury liability and for property damage liability the unqualified word ‘Insured’ includes the Named Insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the Named Insured or with his permission. * * *” (Emphasis ours.)

Atlas, while unloading scrap from Madvid’s truck, under the clear import of this language came within the definition of an “insured” of this policy.

Moreover, “Coverage F” reads:

“Bodily Injury Liability.

“To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by the accident and arising out of the ownership, maintenance or use of the automobile.” (Emphasis ours.)

These provisions are free of any ambiguity. When construed together, they express an undertaking on the part of the defendant to indemnify any person or organization using the truck with the permission and in the business of the Named Insured against any personal injury claim he or it becomes legally obligated to pay. It would seem, then, that Atlas, coming within the purview of these provisions of the policy issued by the defendant, is covered by it as respects the accident set forth in the petition filed by Ben Madvid.

It is stated in the syllabus of Bobier v. National Casualty Co., supra:

“1. A policy of indemnity insurance is to be construed in the light of the subject matter with which the parties are dealing and the purpose to be accomplished, and the language used must be given its ordinary and commonly accepted meaning.”

and in the syllabus of Lessak v. Metropolitan Casualty Insurance Co. of New York, 168 Oh St 153, 151 N. E. 2d 730:

“2. The sole test as to the duty of an insurance company, under a policy of liability insurance, to defend an action against the insured is the allegations of the petition in the action against the insured, and where such petition brings the action within the coverage of the policy, the insurer is required to make defense, regardless of the ultimate outcome of the action or the liability to the insured. (Socony-Vacuum Oil Co. v. Continental Casualty Co., 144 Oh St 382, approved and followed.)”

It is worthy of note that the United State Fidelity and Guaranty policy under its definition of Insured excluded insurance to any person or organization other than the Named Insured when the injured person was the Named Insured by the use of the following language:

“The insurance with respect to any person or organization other than the Named Insured does not apply under Division (2) of this insuring agreement: (a) to injury to or sickness, disease or death of any person who is a Named Insured; * * (Emphasis ours.)

The problem, as we see it, was simply one of construction of the policy, and broader language could hardly have been used in the policy. If the insurer desired to place any limitation upon its liability to cover this situation, it had the opportunity to do so, as exemplified by the policy issued by the plaintiff.

Defendant-appellant, to maintain its position, relies heavily upon the case of Cain v. American Policyholders’ Ins. Co., 120 Conn. 645, 183 A. 403. In that case, the policyholder was injured while a passenger in his own automobile which was being driven by a hitchhiker. The policyholder obtained a judgment against the hitchhiker and proceeded against his own liability carrier. The Supreme Court of Errors of the State of Connecticut held that he could not recover. That case is not analogous with the case at bar because it was decided under the law of Massaehusetts, in which state there exists a compulsory liability insurance law to which the policy conformed. The syllabus in paragraph 3 points up this succinctly when it states, in part:

“The provisions of the public liability policy, held by the plaintiff as owner of an automobile, conformed to the Massachusetts compulsory liability insurance law, the ‘Insuring Clause’ providing that the insurer ‘agreed to indemnify’ the insured (the plaintiff) ‘and any person responsible for the operation of the named insured’s motor vehicle . . . with his express or implied consent against loss by reason of the liability to pay damages to others for bodily injuries’ sustained by any person other than employees of the insured or of such other person responsible as aforesaid, arising out of the ownership and operation of the motor vehicle. * * *” (Emphasis ours.)

The Supreme Judicial Court of Massachusetts construed the same provision of the Massachusetts Compulsory Motor Vehicle Liability Insurance Law (General Laws, Ter. Ed.) (Vol. 1, Chap. 90, Sec. 34 A, et seq„ and amendments) in the same light in MacBey v. Hartford Accident and Indemnity Co., 292 Mass. 105, 197 N. E. 516.

The courts in other jurisdictions, however, where there are no compulsory liability insurance laws, have construed coverage provisions of automobile liability policies to extend to the claims of a Named Insured where language within the policy itself does not exclude such a one, in the following cases:

Archer v. General Cas. Co. of Wis., 219 Wis. 100; 261 N. W. 9.

Howe v. Howe, 87 N. H. 338, 179 A. 362.

Bachman v. Independence Ind. Co., 214 Cal. 529, 6 P. 2d 943.

Union Auto. Ins. Co. v. Samelson, 71 Col. 479, 207 P. 1113.

Hardtner v. Aetna Cas. & Sur. Co., 189 So. 365 (La.).

Farmer v. United States Fidelity & Guar. Co., 11 F. Supp. 542.

Aetna Cas. & Surety Co. v. General Cas. Co., 285 App. Div. New York 767.

We hold accordingly that Atlas was an Insured under the policy issued to Ben Madvid by the defendant and that said policy extended coverage to it in the tort action.

The policy issued by the plaintiff contains the following provision under the heading of “Conditions”:

“13. Other Insurance.

“If the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance under this policy with respect to loss arising out of the use of any non-owned automobile shall be excess insurance over any other valid and collectible insurance available to the Insured, either as an Insured under a policy applicable with respect to such automobile or otherwise.” (Emphasis ours.)

The Supreme Court in Trinity Universal Ins. Co. v. General Accident, Fire & Life Assur. Corp., Ltd., 138 Oh St 488, 35 N. E. 2d 836, states the law when two insurance companies cover the same insured, one a general coverage and the other a specific coverage. In that case, a defendant in a tort action was covered by two insurance policies. One policy, as the policy of the plaintiff in the instant case, was general and the other, as the policy of the defendant here, was specific. The general policy, as here, limited its coverage to excess insurance where there existed coverage by a specific policy. It was held that under the general rule the specific insurer is primarily liable.

We believe that the principle of law therein pronounced is applicable to the instant case. Atlas, we have determined, was covered by both policies. The plaintiff’s policy was general, the defendant’s specific. Consequently, the primary liability lay with the defendant to assume the investigation, defense, payment of attorney fees and any judgment rendered in behalf of Ben Madvid arising out of the lawsuit filed by him. Accordingly, we conclude that the trial court was not in error in so ruling.

We, further, overrule the appellant’s claim that the trial court erred in declaring the rights of the parties to the action because of the absence of necessary parties and because plaintiff failed to plead or adduce in evidence facts sufficient to constitute a cause of action for declaratory judgment.

Sec. 2721.12 R. C., in part, reads:

“When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration * * (Emphasis ours.)

The controversy was entirely between the two insuring companies. Atlas, in any event, was covered in the tort action. The second amended petition averred nothing which could affect Atlas’ basic right under one or the other policy or both to be defended and protected from liability in the tort action brought against it.

In syllabus four of the case of Schriber Sheet Metal & Roofers, Inc. v. Shook, 64 Oh Ap 276, 28 N. E. 2d 699, it is stated:

“Sec. 12102-11 GC (now §2721.12 R. C.), which provides that in an action for declaratory judgment ‘all persons shall be made parties who have or claim any interest which would be affected by the declaration’ allows joinder only of those persons legally affected and does not enlarge the procedure as to joinder of parties defendant.”

See, F. F. Indemnity Co. v. S. M. Cas. Co., 95 Oh Ap 88, 117 N. E. 2d 477.

It is our opinion that a real controversy existed between the adverse parties in this ease which was justiciable in character and which required speedy relief to the preservation of rights that may have been otherwise impaired or lost. A good cause of action, thus, for declaratory judgment was pleaded. Schaefer v. First National Bank, 134 Oh St 511, 18 N. E. 2d 263; Radaszewski v. Keating, 141 Oh St 489, 49 N. E. 2d 167 L & A Ins. Co. v. Jones, 152 Oh St 287, 89 N. E. 2d 301; Driskill v. City of Cincinnati, 66 Oh Ap 372, 34 N. E. 2d 241.

Judgment accordingly affirmed. Exceptions.

HURD, PJ, concurs.

SKEEL, J, dissents.

DISSENTING OPINION'

By SKEEL, J:

I cannot agree with the conclusions of the majority of the court in affirming the judgment of the trial court.

The action is one seeking a declaratory judgment of the rights and duties and their relation to the parties under two insurance policies, one issued by the plaintiff, United States Fidelity & Guaranty Company, to Atlas Steel & Supply Company, the other issued to Ben Madvid by the defendant, Nationwide Mutual Insurance Company. The second amended petition of the plaintiff, in part, alleges that on or about November 20, 1954, it executed and delivered to the Atlas Steel & Supply Company a comprehensive general automobile liability policy of insurance, and that the defendant, Nationwide, issued a policy of insurance to Ben Madvid covering a truck used by him in his business. On September 24, 1955, Madvid claims to have been injured by the alleged negligence of an employee of the Atlas Steel & Supply Company then engaged in unloading scrap steel from Madvid’s truck at the direction of his employers on the property of Atlas Steel & Supply Company. The plaintiff claims that it is the defendant’s responsibility under the terms of its policy to assume the investigation and defense of the Atlas Steel & Supply Company, the plaintiff’s insured, arising out of the lawsuit filed by the defendant’s insured, Ben Madvid, against the Atlas Steel & Supply Company.

The insurance contract between Ben Madvid and Nationwide Mutual Insurance Company provides in part:

“I Coverage F Bodily Injury Liability

“To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.

* *

“III Definition of ‘Insured’

“With respect to the insurance for bodily injury liability and for property damage liability the unqualified word ‘Insured’ includes the Named Insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the Named Insured or with his permission. The insurance with respect to any person or organization other than the Named Insured does not apply:

“(a) * * *

“(b) to any employee with respect to injury to or sickness, disease or death of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of the automobile in the business of such employer.

“IV * * *

tcyj s|s * *

“(a) * * *

“(b) * * *

“(e) Use of the automobile for the purposes stated includes the loading and unloading thereof.”

The policy issued by United States Fidelity & Guaranty Company to the Atlas Steel & Supply Company was designated “Comprehensive General — Automobile Liability Policy.” It provided under the heading of “Insuring Agreements:”

“I. Coverage A — Bodily Injury Liability

“To pay on behalf of the insured all sums which the Insured shall become obligated to pay by reason of the liability imposed upon him by lav/, or assumed by him under contract as defined herein, for damages, including damages for care and loss of services, because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person or persons and caused by accident.

“Coverage B — Property Damage Liability — Automobile “To pay on behalf of the Insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of injury to or destruction of property, including' the loss of use thereof, caused by accident and arising out of the ownership, maintenance or use of any automobile.

“Coverage C — Property Damage Liability — Except Automobile “To pay on behalf of the Insured all sums which the Insured shall become obligated to pay by reason of the liability imposed upon him by law, or assumed by him under contract as defined herein, for damages because of injury to or destruction of property, including the loss of use thereof, caused by accident.

* * *

“III Definition of ‘Insured.’ ”

“The unqualified word ‘Insured’ includes the Named Insured and also includes (1) under Coverages A and C, any partner, executive officer, director or stockholder thereof while acting within the scope of his duties as such, except with respect to the ownership, maintenance or use of automobiles while away from premises owned, rented or controlled by the Named Insured or the ways immediately adjoining, and (2) under coverages A and B, any person while using an owned automobile or a hired automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is with the permission of the Named Insured, and any executive officer of the Named Insured with respect to the use of a non-owned automobile in the business of the Named Insured. The insurance with respect to any person or organization other than the Named Insured does not apply under Division (2) of this insuring agreement:

“(a) to injury to or sickness, disease or death of any person who is a Named Insured;

a * * *

u(c) * * *

And under the heading “CONDITIONS:”

“2.

“3. Definitions

“(a) * * *

“(b) 4 * *

“(e) Purposes of Use. Tire term ‘pleasure and business’ is defined as personal, pleasure, family and business use. The term ‘commercial’ is defined as use principally in the business occupation of the Named Insured as stated in item 1, including occasional use for personal, pleasure, lamily and other business purposes. Use of an automobile includes the loading and unloading thereof.

“13. Other Insurance

“If the Insured has other insurance against a loss covered- by this policy the Company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against loss; provided, however, the insurance under this policy with respect to loss arising out of the use of any non-owned automobile shall be excess insurance over any other valid and collectible insurance available to the Insured, either as an Insured under a policy applicable with respect to such automobile or otherwise.”

From the foregoing provisions of the policies of both the United States Fidelity & Guaranty Company and of Nationwide Mutual Insurance Company, it is; made perfectly clear that both policies are specific in regard to the protection necessary to cover the claim of Ben Madvid. The reason for this is that the United States Fidelity and Guaranty Company’s policy has included within its terms a provision (Coverage A— Bodily Injury Liability) of insurance protecting the Atlas Steel & Supply Company against liability because of injury to any person caused by accident. This paragraph of Atlas’s insurance is not general but specific coverage giving its insured full and complete protection against the claim made by Madvid whether resulting from unloading a non-owned motor vehicle by its employees or not. The claim that the coverage of Nationwide is specific as to the facts pleaded by Madvid in his action against Atlas Steel & Supply Company and that they must, therefore, respond to and defend against the claim of Madvid (their insured) while the coverage of United States Fidelity & Guaranty is general and is available only when the coverage of Nationwide has been exhausted, is without any basis in fact or law as shown by the undisputed provisions of the plaintiff’s and defendant’s policies of liability insurance and the pleaded facts of plaintiff’s petition later herein set out.

The petition of the plaintiff seeks a declaratory judgment determining the obligations imposed by the policy of insurance covering Madvid and directing it to assume the investigation and defense against defendant’s insured’s (Madvid’s) action seeking damages against plaintiff’s insured because of the alleged negligence of the plaintiff’s insured while unloading scrap steel on the property of plaintiff’s insured. There is no request presented by the pleadings for a determination of the financial responsibility of either the plaintiff or defendant to pay or contribute to the amount of any judgment that may be entered against Atlas Steel & Supply Company should Madvid prevail in his action. The proper parties to entitle plaintiff to such a determination are not before the court.

The obligation imposed upon the United States Fidelity & Guaranty Insurance Company by its policy of liability insurance to defend its insured against all claims seeking damages as a proximate result of accident due to the claimed negligence of its insured, as defined in its policy, is absolute and is not subject to any of the conditions contained in such policy claimed by the plaintiff to shift its obligation to pay damages (coming within the terms of its policy of insurance) when determined by law against its insured to another. The plaintiff’s insured is, by the contract of insurance here in evidence, entitled to the services of the plaintiff in the defense of all actions filed against it no matter how groundless. Neither the Atlas Steel & Supply Company nor Ben Madvid are parties to this action so that their rights under their respective insurance policies cannot be the subject of. a judgment in this case and no judgment should be entered depriving either of them of their rights for protection and services of their respective insurers.

It is true that the negligence of an employee of Atlas Steel & Supply Company was alleged to have been committed while removing scrap steel from Ben Madvid’s truck, it is further true that had the injury been to one other than Ben Madvid, he would have been protected if- liability could be established against him. However, Atlas Steel & Supply Company cannot compel the defendant, under the policy provisions of the defendant’s policy, to defend them against the defendant-insured’s claim for damages.

In the case of Cain v. American Policyholders’ Ins. Co., 120 Conn. 645, 183 Atl. 403, it is said:

“The effect which the plaintiff seeks to give to this policy is foreign to the object and common conception of the scope of public liability insurance which, as concerns the assured, is third party coverage, that is, insurance against the liability of the assured for injury which has been sustained by a third person by negligence in the operation of the automobile. . . To accord to this policy the effect which the plaintiff claims would be to virtually insert into it another contract, distinct from public liability coverage within the scope of the policy and amounting to personal accident insurance against bodily injuries suffered by the assured. There is nothing to indicate any intention of either party to combine, in this policy, these two kinds of coverage. A public liability policy is not a policy of accident insurance indemnifying the assured against injuries suffered by himself in an accident. By its definite terms it insures against claims for damages for which he or others named in the policy might become liable.”

It would indeed be unusual to enforce divided loyalties in the same contract. The contract was primarily to protect Ben Madvid and his partners against any legal obligation resulting from his negligence or from those whose negligence could be imputed to him and to protect him in all events by reason of the negligent use of his truck. To paraphrase a sentence used by the Supreme Court in the case of State v. Wells, 134 Oh St 404, at page 410, 17 N. E. 2d 658, a contract should never be interpreted as showing a purpose to be “a cloak for strategy or other device employed to defeat the plainest principles of justice.” Ben Madvid never intended to buy protection for his adversary in an action in which he himself is plaintiff, and the word “insured” as defined should not be expanded to include such duty under the insurance contract here in evidence.

In dealing with an action wherein the named insured was seeking to recover from his insurer under a liability policy where he was injured by the negligent use of his automobile by one who was operating it with the insured’s permission, the court of appeals of Georgia, in the case of Bailey v. Metropolitan Insurance Co., 89 Ga. App. 53, 78 S. E. 2d 626, at page 627, said:

“The fact that the policy describes an ‘insured’ so as to include, in addition to the named insured, any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission, does not render the above insuring clause ambiguous, or in any way modify it except by enlarging the term ‘insured.’ Construed together, the provisions mean that the insurance company agrees to pay on behalf of the insured, whether it be the named insured or some other person operating the named insured^ automobile with his permission, all sums which such insured shall become legally obligated to pay as damages to some other party. Under no possible construction could any insured, whether the named insured or another person, become legally obligated to pay himself damages for injuries to himself, resulting from his own operation of the named insured’s automobile.”

The case of Trinity Universal Ins. Co. v. General Accident, Fire and Life Assurance Corp., Ltd., 138 Oh St 488, 35 N. E. 2d 836, is cited as authority for the rule that where two policies of insurance are purchased by an assured in which the protection afforded by the terms of one policy is general and the other specific, as to a particular loss sustained by such assured, the policy giving specific coverage as to the loss sustained would be required to respond in covering the loss within its full monetary limits before the other policy could be required to respond. This case is not in point in the present controversy because in that case the named insured in each policy was the same person, while in this case, the named insured and the purchaser of each policy is a different person, and, in fact, 'each is an adversary against the other in the litigation about which plaintiff here seeks a declaratory judgment.

The rights of the parties under their respective policies must also be determined from the allegations of the pleadings in this case and such evidence as is presented to support the controverted questions of fact. In the plaintiff’s second amended petition seeking a declaratory judgment, it is alleged:

“Plaintiff further states that on or about the 24th day of September, 1955, Ben Madvid was injured while unloading his truck on the premises of the Atlas Steel & Supply Company. Plaintiff further states that while unloading said truck, Ben Madvid was injured and that the full extent of the personal injuries received by him are described in a lawsuit instituted by him in the Court of Common Pleas of Cuyahoga County, Ohio, Case No. 685,025. Plaintiff further refers to said petition and makes it a part hereof as though fully rewritten at length.”

In the petition filed by Ben Madvid in Case No. 685,025, in which he is the plaintiff and the Atlas Steel & Supply Company is the defendant, the plaintiff alleges:

“Plaintiff further says that on or about September 24, 1955, at approximately 11:30 A. M. the plaintiff was at the defendant’s premises at Trumbull Avenue at the invitation and request of the defendant for the purpose of selling to the defendant certain scrap; that after the plaintiff drove his truck on said premises, he alighted from said truck and was standing in the vicinity thereof when the defendant operated an overhead crane with an electric magnet attachment for the purpose of unloading plaintiff’s truck; suddenly, unexpectedly and without warning, the defendant picked up a piece of scrap from said truck with said magnet and carelessly and negligently swung said piece of scrap so as to strike the plaintiff, and the plaintiff thereby sustained personal injury which will be more specifically hereinafter set forth.”

After setting out plaintiff’s claims of negligence, the petition then alleges:

“Plaintiff further says that the control, management and operation of said crane and electric magnet was exclusively in the hands of the defendant; that said injury to the plaintiff was an unusual and extraordinary occurrence which would not have occurred except for the negligence and carelessness of the defendant.”

There is no attempt in the petition or the evidence to establish at what point Madvid completed his obligation under the sales agreement. If Madvid had completed his obligation by delivering the scrap iron on the premises of Atlas and it was the duty of the Atlas Steel & Supply Company to do the unloading which, under the facts, without allegations and proof to the contrary, would be the only reasonable conclusion, taking into account the material to be unloaded and the conduct of the parties, then the use of the truck would in no way be involved and the unloading operation and the unloading would be entirely the responsibility of Atlas. This is the state of the record so that the only policy involved insuring the defense of Atlas against the claim of Madvid would be that of the plaintiff.

For the reasons, therefore,

1) That the provisions of the plaintiff’s policy do not relieve the plaintiff in any event from its promise to defend its insured in an action within the coverage of the policy no matter how groundless,

2) That a contract of insurance should not be interpreted to completely change the character of its coverage and to attempt to enforce divided loyalties between the contracting parties, and,

3) That without alleging facts sustained by at least some evidence showing that the alleged acts of negligence of Atlas resulted from a duty which Madvid owed in delivering the scrap, or in the use of his truck, and that such duty was specified in the terms of his contract of sale so that the act of delivery would come within the terms of the defendant’s policy, the plaintiff could not and did not make out a case for a declaratory judgment,

The terms of plaintiff’s policy cannot enlarge or extend the coverage of defendant’s policy.

Therefore, the judgment should be reversed and final judgment entered for the defendant.


text:
    OHIO FUEL GAS COMPANY, Plaintiff, v. SUN OIL COMPANY, Defendant.
    Common Pleas Court, Franklin County.
    No. 201533.
    Decided June 4, 1958.
    John F. Sisson, for plaintiff.
    William M. Summer, for defendant.
   OPINION

By SATER, J.

On May 23, 1958, this Court issued a temporary restraining order against defendant and set the matter for hearing on May 27th. Hearing was then had, evidence adduced, and the matter was held for the filing of briefs and determination whether the above order should be continued or dissolved according to defendant’s motion. Since then, the Court has carefully examined the record with its three exhibits and transcript of testimony, and also the authorities contained in the submitted briefs. The order of May 23rd shall be continued and a suitable entry may be submitted.

The case turns on conflicting interests of plaintiff and defendant in and to the land of Grant I. Strait at the northwest corner of Agler and Steltzer Roads in the City of Columbus. In 1927, plaintiff obtained from Strait, and duly filed for record, a right of way agreement authorizing plaintiff to lay pipe lines across the Strait property, to maintain, operate, repair and replace them with the incidental right of ingress and egress. Being recorded, this document was there for all to see. Plaintiff soon thereafter laid a 16" line parallel to Agler Road and a few feet north of it. In 1956 it laid a second line, 24" in diameter, between the first line and Agler Road, parallel to both. The former line now carries gas at pressures between 40 and 100 pounds; the latter, at more than 200 pounds. A smaller, 4", line leads northward off of the 16" line up the center of Steltzer Road and is encased though the two main lines are not; obviously, its pressure is much less than that of its parent line. The 16" and 24" lines supply close to 40 percent of the gas entering Columbus.

On March 16, 1957, defendant leased the 200 foot square tract from Strait for the purpose of establishing a gasoline filling station thereon, and eight months later started construction. Section 8,b and 8,c of its lease authorize defendant to cancel the lease either if its installations cannot be established or continued without defending equitable litigation involving court order, or if title search discloses any easement which cannot be subordinated to defendant’s leasehold; the easement is recorded, no indication of plaintiff’s desire to subordinate its interest is shown, and the equitable litigation has been instituted. Late in 1957, defendant commenced its installation and largely completed them a month ago. Last to be constructed was a concrete pad or mat offering entrance from Agler Road; on it is a pump island rising 6" above the pad. The pad covers the 16" line and half of the 24" line. There is some evidence of recent but fruitless conversations between officials of plaintiff and defendant, concerning the safety risk, but even if this evidence was incompetent, there is still the recorded easement. There is also evidence that defendant • discussed its installation with the State Fire Marshal, but there is no evidence that the Marshal had any knowledge of the location or use of plaintiff’s lines. It is agreed that there are here involved no statutes of Ohio, ordinances of Columbus, building regulations or regulatory orders of either the State Fire Marshal or the Public Utilities Commission.

Plaintiff has brought its action asking temporary and permanent injunctive relief against defendant’s further construction, or use of its facilities in, over and across plaintiff’s easement or right of way. From the record, if not also by judicial notice, it is clear that plaintiff is a public utility subject to great public interest; defendant, for the purpose of this case, is not. Plaintiff’s petition, positively verified, alleges that “Said concrete slab and service island and the facilities related thereto, constitute a hazard to the operation of plaintiff’s pipe lines and will continue to do so.” We are not presently greatly impressed with the added financial burden imposed by the pad on plaintiff’s right and duty of maintenance and repair flowing from construction and proposed use of its installation, but the quoted allegation is very broad and far-reaching. When we consider that the pump island is only 3M> x 4' from the center of the 16" line, and 14-14ti> from the center of the 24" high pressure line, the implications of that allegation are obvious. The hazard falls not on plaintiff but, by risk of fire or at least diminished or disrupted gas supply, squarely on the public and on Columbus’ gas consumers who, aside from action by this Court, are protected by no statute, ordinance or regulation of any sort. For a discussion of such hazards, see Tennessee Gas Transmission Co. v. Bayless, 74 Fed. Supp. 258, 261 (3-5), which is far more relevant than the Babler case, post, cited by defendant, or the divided court opinion in Peoples Gas, etc. Co. v. Cook, etc. Co., 256 Ill. App. 357, wherein the line pressure of six pounds eliminated for all practical purposes any public interest such as is inherent in the case at bar. For the'purpose of this proceeding, the burden of proof resting on plaintiff has been met. Nor on the record as it now stands may the doctrine of laches be successfully invoked by defendant. The status quo must be maintained lis pendens.

Though hastily drawn in the interest of prompt decision, the briefs filed by counsel have been most helpful to the Court who hereby expresses his appreciation for them. Both briefs cited Besser v. Pipe Line Co., 57 Oh Ap 341, but it is so factually different from the case at bar as to be of no assistance. Of defendant’s two remaining Ohio citations, both dealt only with private easements for vehicular traffic; no hazard to the public was involved. Such particularly was Methodist Church v. Laws, 7 O. C. C., 211, holding that an easement for a private way may not be enlarged. And to much the same effect was Gibbons v. Ebding, 70 Oh St 298, 307. In this case the Court held that an easement gives only that “which is necessary for such reasonable enjoyment and use,” yet on the next page the Court went on to state that the owner of the servient estate (here, the defendant) “is entitled to use it for any purpose that does not interfere with the easement”; and in the next paragraph the Court granted injunctive relief. Far more persuasive are Industrial Gas Co. v. Jones, 62 Oh Ap 553 and East Ohio Gas Co. v. Coal Co., 53 Abs 438, 442, which latter case specifically recognized under not too dissimilar a situation, the hazard of interference with gas users in northeastern Ohio. Both of these cases granted injunctive relief.

Mullins v. Ry. Co. (Mo.) 104 S. W., 890, involving a sewer, recognized that the owner of the easement had paramount interest “until the reasonable purposes of the grant were satisfied.” Perley v. Cambridge (Mass.) 108 N. E. 494, another sewer case, dealt with the claims of a trespassing municipality, and Babler v. Shell Pipe Line Co. (Mo.), 34 F. Supp. 10, involved no public utility or its service. We consider Kelsay v. Lone Star Gas Co. (Texas), 296 S. W. 954, Magnolia Pipeline Co. v. McCarter (Texas) 52 S. W. 2d, 663 and Gas Co. v. Cutrer (La.) 30 So. 2d, 864, all involving gas utility lines, as being far more closely in point. For other cases involving injunctive relief as a safeguard to the public and consumers of utility service, see Caroline P. and L. Co. v. Bowman, 51 S. E. 2d 191, 197 (power) and Moundsville Water Co. v. Sand Co., 19 S. E. 2d, 217, 219 (water).


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

text:
    WALLACE, Plaintiff, v. UNIVERSITY HOSPITALS OF CLEVELAND, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 725551.
    Decided November 9, 1959.
    John G. Pegg, Walton C. Jackson, Cleveland, for plaintiff.
    Arter, Hadden, Wykoff & Van Duzer, Cleveland, for defendant.
   OPINION

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

Plaintiff spent two months as a patient in defendant University Hospitals. Desirous of obtaining detailed information concerning her injuries and treatment pursuant to a determination of the question of damages in a lawsuit filed against another person, she authorized her attorney to obtain a copy of her hospital records at plaintiff’s expense.

Following the Hospital’s refusal to deliver a copy of the records to plaintiff’s agent, she filed a petition for mandatory injunction seeking the production of these records. The defendant Hospital has answered raising three defenses:

1. That they offered to read the record to plaintiff’s attorney;

2. That Rule 12 of the Court of Common Pleas is the proper means of obtaining records pursuant to the original suit; and

3. That the records are the sole property of the Hospital and that the plaintiff has no legal right to obtain them.

Having considered these defenses, the Court disagrees with each of them. The Hospital’s offer to read a technical treatment record encompassing a two-month period of treatment and recovery to the attorney is hardly adequate. In order to gain full benefit from the information, an attorney should have the opportunity to study the record at his leisure and to submit it to a medical expert of his own choosing for evaluation. Although the offer to read is inadequate, having offered to furnish the agent with the information contained in the record it is only a technical step to the Hospital’s furnishing him with a photocopy of the record at plaintiff’s expense. Hospital’s offer to read the record therefore labels their refusal to furnish the copy as an arbitrary and somewhat vain act.

Rule No. 12 of the Common Pleas Court empowers a judge of the Court “upon motion of any party showing good cause therefor and upon notice to all other parties,” to order a Hospital to produce hospital records containing evidence “pertinent” to a pending suit as are “not privileged.” Analysis of Rule No. 12, as well as consideration of Rule No. 34 of the Federal Rules of Civil Procedure which inspired Rule No. 12, indicates that it was drawn to afford an adverse party access to relevant non-privileged records normally accessible to the opposite party. The terms and conditions of the Rule indicate that the Court did not intend it to be used by a party seeking to gain access to information normally within his knowledge or normally available to him. Therefore, while Rule No. 12 is available to the adverse party in plaintiff’s suit, it is not available to the plaintiff, and plaintiff must resort to additional means to obtain those records should the Hospital refuse her.

Considering the third defense, it is true that the original Hospital records are the property of the Hospital. Since they include the records of all births, deaths, nature and length of treatment and other information, their maintenance and custody is essential to the proper administration of the Hospital. However, it is also true that a patient has a property right in the information contained in the record and as such is entitled to a copy of it. Plaintiff’s or her physician’s access to these records might at sometime be a decisive factor in her future medical treatment. To an attorney and his expert the record can illuminate question of damage in a pending claim.

In summary, the Court finds that plaintiff’s right to a copy of her hospital records is an incident of treatment and that since Rule No. 12 does not afford her means of obtaining these records in the primary suit, a Mandatory Injunction is a proper means of compelling the Hospital to provide the plaintiff with a copy of the records at plaintiff’s expense. Injunction granted.