author: By WOESTE J.:

text:
    DIECKBRADER, Plaintiff, v. NEW YORK CENTRAL RAILROAD, Defendant.
    Common Pleas Court, Hamilton County.
    No. A-129188.
    Decided March 20, 1953.

      Jerome Goldman, Cincinnati, for plaintiff.
    Harmon, Colston, Goldsmith & Hoadly, Cincinnati, for defendant.
   OPINION

By WOESTE J.:

This cause is before the Court at this time upon a demurrer to interrogatories filed with the petition under authority of §11348 GC. Because the contents of the petition is adverted to in the briefs and the arguments of counsel, especially those of the defendant, it is well that the petition in its entirety be quoted. The interrogatories, fifteen in number, are also quoted.

PETITION

“Plaintiff says that the defendant is a corporation under the laws of the State of New York, and of Ohio, and perhaps other states, doing business in Hamilton County, Ohio, and having tracks, agents and employes in Hamilton County, Ohio, and was such at all times hereinafter mentioned.

“Plaintiff says that he is in the business of carrying freight as a contract carrier by motor vehicles.

“Plaintiff says that on or about the 23rd day of September, 1949, at or about 4:00 o’clock A. M., an International tractor pulling a Fruehof trailer, both belonging to plaintiff, carrying freight under a contract of carriage, was being driven in a northerly direction on U. S. Route 41 near the northerly outskirts of the town of Schneider, in Lake County, State of Indiana. Plaintiff says that at said time and place, said vehicles of plaintiff were proceeding across railroad tracks which cross said Route 41 at grade, which railroad tracks were being used and operated by the defendant. Plaintiff says that as his said tractor and trailer were proceeding across said railroad tracks on Route 41, at said time and place, the defendant, by operating one of its trains in a careless and negligent manner, as more particularly set forth hereinafter, caused said train of railroad cars operated by the defendant to collide with the tractor and trailer of plaintiff, causing the said tractor and trailer to upset and crushing the same, proximately and directly injuring and damaging the plaintiff as hereinafter set forth.

“Plaintiff says that the defendant was negligent in the operation of its said railroad train, directly and proximately causing the same to collide with said tractor and trailer of the plaintiff at said time and place, in the following particulars, to-wit:

“Defendant failed to signal a whistle as required by the Laws of Indiana, and further said defendant failed to ring any bell, as required by the Laws of Indiana.

“Defendant failed to give any warning whatever of the approach of its said train to such crossing.

“Plaintiff says that said defendant failed to have any light on such train which could be seen from such crossing or in any way to indicate the approach of defendant’s said train.

“Plaintiff says that defendant was operating its said train which collided with the plaintiff’s tractor and trailer aforesaid, as part of a switching operation of defendant, in which defendant was backing said train of cars beginning some distance to the west of said crossing; and that as said train approached said crossing, the said cars were disconnected from the engine pushing the same, and were caused by defendant to continue backing toward said crossing on their own momentum, detached from said engine.

“Plaintiff says that the defendant failed to maintain on said train an adequate switching crew as required by the aforesaid Indiana law.

“Defendant failed to keep a proper lookout as its said train approached said crossing so as to enable the operators of said train to observe persons and vehicles such as plaintiff’s approaching said crossing on said Route 41.

“The laws of the State of Indiana required that the defendant install and maintain automatic warning devices or signals at said above mentioned crossing,

“Plaintiff says that there was erected at said crossing what was purported to be an automatic signal light, which was, when maintained properly, supposed to flash or show red upon the approach of any train or cars to said crossing on the aforesaid track. Plaintiff says that although the said purportedly automatic signal light was located at said crossing on the approach thereto from the southerly side of said crossing at the time plaintiff’s said tractor and trailer approached said crossing from the southerly side, the said purportedly automatic signal light was, and was observed by plaintiff’s driver to be, dark and did not show or flash red or in any other way indicate the approach of the said train of cars which collided with plaintiff’s tractor and trailer as aforesaid. Plaintiff says that the failure of said purportedly automatic signal light to show or flash red or otherwise indicate the approach of said railroad train of cars, was due to the defendant’s negligenct failure to maintain and operate the same properly.

“Plaintiff says that defendant, in the operation of its said train at said time and place, violated the rules and regulations of the Public Service Commission of the State of Indiana which were then and there in effect, providing for the lighting at said crossing and the safe operation of railroads.

“Plaintiff says that as the direct and proximate result of the defendant’s negligence as above set forth, said tractor and trailer of plaintiff were overturned and crushed, and plaintiff was damaged in the following particulars:

“Said tractor had a reasonable and fair market value of $3467.50 immediately prior to said accident, and said trailer had a reasonable and fair market value of $3,706.12 immediately prior to said collision, and the value of said tractor and trailer immediately after said collision was only $850.00, the salvage value of the same, to plaintiff’s damage in the sum of $6325.62.

“Plaintiff says that as the direct and proximate result of defendant’s negligence aforesaid, plaintiff was also damaged as follows: The reasonable value of damage to cargo being carried by plaintiff at said time, and for transferring said' cargo to other vehicles so as to complete plaintiff’s contract of carriage, $187.74; the reasonable and fair cost to plaintiff of supervising the disposition of the said damaged vehicles and transfer of cargo, $350.00; the reasonable value of wrecker service to haul said damaged equipment away, $150.00.

“Plaintiff says that he suffered further damage as the proximate and direct result of defendant’s aforesaid negligence, in that he lost the use of said tractor and trailer and was unable to replace said trailer for 20 days, and unable to replace said tractor for 68 days. Plaintiff says that the reasonable value of the use of said trailer was $20.00 per day, and the reasonable value of the use of said tractor was $35.00 per day; and that by reason of such loss of use, plaintiff was damaged in the sum of $2,780.00; all as the direct and proximate result of defendant’s negligence as aforesaid.

“Plaintiff says that he has made demand upon the defendant to pay said damages, but that the defendant has failed, neglected and refused to do so, all to plaintiff’s damage in the sum of $9,793.36.

“Plaintiff attaches hereto certain interrogatories and requests that an officer of defendant corporation be required to answer same plainly and fully under oath.

“WHEREFORE, plaintiff prays judgment against the defendant in the sum of $9,793.36 and for his costs herein expended.”

INTERROGATORIES

“1. State the name and present address, and job title, of all members of the crew assigned to the train, a portion of which was involved in the accident alleged in the petition in this case.

“2. State whether the moving train of cars, which collided with plaintiff’s vehicle, was attached to an engine at the time of the collision.

“3. State by name and job title, each member of the crew who was actually on the moving train of cars, and on the engine, if one was attached to said moving train of cars, which collided with plaintiff’s vehicle, in the accident alleged in plaintiff’s petition.

“4. State where each member of the crew, by name and job title, oil said moving train of cars, and on said engine (if one was attached to said moving train of cars), was on said train of cars and on said engine at the time of said collision or within one minute prior thereto.

“5. State what each member of said crew (by name and job title) mentioned in Answer to Interrogatory No. 4 was doing immediately prior to said collision.

“6. State what the train of cars which collided with plaintiff’s vehicle, was doing at the time of the collision, and what the object of the crew was in moving said train of cars in the way in which it was moving at the time of said collision.

“7. State whether or not the defendant has used the crossing at which the collision alleged in plaintiff’s petition occurred, for the purpose it was used the night of said collision by the defendant, since the time of said collision.

“8. State the date of all accidents which occurred at the crossing at which the collision alleged in the plaintiff’s petition occurred, during the twelve months preceding September 23, 1949.

“9. State the name and address of all persons whose person or property was injured during said twelve months preceding September 23, 1949, in accidents at said crossing and state the date of such injury.

“10. State whether any automatic warning device was installed at the crossing at which the collision alleged in plaintiff’s petition occurred.

“11. If such automatic warning device was so installed, state the name of the manufacturer, date of purchase and installation, the type, manufacturer’s serial number, and other description as to identify the same positively.

“12. If such automatic warning device was so installed, state the last date prior to the accident and suit that the same was inspected or serviced, and attach copy of the inspection and service report for that occasion.

“13. Was the accident alleged in plaintiff’s petition reported to the Public Service Commission of Indiana by defendant?

“14. If such report was made, attach copy of such accident report.

“15. Was report of accident alleged in plaintiff’s petition made to the Interstate Commerce Commission? If so, attach copy of such accident report to Interstate Commerce Commission.”

Earlier cases on the scope and purpose of interrogatories are distinctly at variance, whether they were considered under the bill of discovery method, the equitable proceeding in vogue prior to A. D. 1857 when the interrogatory statute (§11348 GC) was embodied in the judicial code, or whether they were considered since the adoption of that section and kindred sections applying variously to depositions, admission and inspection of documents, or discovery.

It is urged by the defendant that because operative facts are alleged in the petition sufficient to sustain an action sounding in negligence, the pleader does not require the information sought to be adduced by the interrogatories in order to perfect his pleading.

Generally speaking, the object of filing interrogatories under the code section is the same as that of a bill of discovery whether such bill was by separate suit under the equity powers of the Court or under the later code section authorizing that same procedure. That purpose was to permit the interrogator to compel the opposite party to furnish him with information that if pertinent to the issues in the pleadings might be used as evidence in the trial of the case. Wild v. Cadwalader, 18 O. D., 565.

Sec. 11348 GC authorizing interrogatories to be attached to pleadings should be liberally construed. Sloan v. S. S. Kresge Company, 43 O. O., 407.

In the presentation of the arguments on this demurrer, and the briefs filed in support of the demurrer and in opposition thereto, counsel repeatedly pointed out the historical account of the facts which led up to the filing of this action. This information was indulged by the Court because of its possible value in disclosing the pertinency of the interrogatories. This history would indicate that the plaintiff is a contract freight hauler and is the owner of a tractor and trailer which was destroyed when a train of cars operated by the defendant backed into the plaintiff’s equipment at a railroad crossing in the town of Schneider, Indiana. Plaintiff’s driver was pinned under the wreckage of the truck, which truck was found underneath one of defendant’s freight cars, for a period of over four hours after the motion of the truck had been arrested. It was stated that it required four hours to extricate the driver from the wreckage. The plaintiff owner of the tractor trailer did not arrive at the scene of the accident until some eight hours after it occurred. It was stated in argument that it was dark, being approximately one o’clock in the morning, when the collision took place and that the defendant gave no warning of the approach of its train of cars being backed across the crossing; that the defendant failed to blow a whistle or ring a bell or have a light at the rear of the train, as required by the statutes of Indiana; that it failed to have a sufficient number of crew members; that the crew was not stationed in such a way as to give any warning of the approach of the train; also that there was an electric flasher signal at the crossing, which was not flashing at the time of the accident. It was stated that defendant would contend that the flasher signal was still flashing after it had been uprooted from the ground and after the vehicles involved had reached a stationary position. It was indicated too that the railroad cars in the accident were not attached to an engine at the time of the collision but had been propelled across the crossing as a result of the momentum given by the locomotive before it was detached. Counsel for the plaintiff indicated that by hearsay, some members of the original train crew were not on the train of cars involved in the accident, thus reducing the number of crew members below that required by law. These significant disclosures assist the Court in applying a constructive legal yardstick to measure the reasonableness and legality of the respective interrogatories. Sec. 11348, et seq., GC, providing for interrogatories, and §§11521, 11522, 11525, 11526, 11550, 11551, 11552, 11553, 11554 and 11555 GC inclusive providing for depositions, production of documents and discovery were intended to obviate the necessity of filing the old Chancery Bill of Discovery, and to permit either side in a law suit to become fully acquainted with

the facts pertinent to the issues, in possession of other parties to the suit, prior to the trial of the case, and thus aid the litigants to more completely prepare their case and thereby accomplish the maximum presentation of the issues at the trial, and thus also accomplish substantial justice.

The mere fact that the pleader alleges facts which “he verily believes” and that these facts state a good cause of action does not exclude a complete and searching investigation, by way of interrogatories, to ascertain all relevant, material and competent evidence necessary to the proof of pertinent matter incident to a thoroughgoing judicial inquiry.

The word “pertinent” means, belonging or related to the subject of the matter in hand; applicable or relevant. Sloan v. Kresge Co., supra. In the light of the historical matter revealed heretofore one can readily appreciate the handicaps under which the plaintiff may suffer as he approaches the trial of the case. Although it is rather uncommon to resort to interrogatories in a negligence case, the situation prevailing here seems to be a typical one for that procedure. What then should be the rule applicable to the interrogatories presented here?

There have been two cases in courts of last resort, which circumscribe the law on the scope of interrogatories. The first and perhaps the latest expression by the Supreme Court of Ohio is that of In re Keough, 151 Oh St, 307. While the immediate question in that case involved the scope of investigation permitted in taking depositions, yet by analogy the same principles are involved which should attend the taking of interrogatories. Syllabus 1 in the Keough case and Syllabus 2 In re Hyde, 149 Oh St 407, which latter case was approved and followed in the Keough case, in a substantial manner, circumscribed the law as it may apply to the current demurrer.

Syllabus 1 in the Keough case reads as follows:

“A record as to the barn in which a public transportation vehicle, involved in an accident, was kept on the day of such accident, the trip sheets showing the operation of the vehicle on such day, and a record of the names of the operators of the vehicle on that day are competent as evidence in an action predicated on such accident claimed to have been caused by the negligence of the operator of such vehicle, and their production may be compelled through a subpoena issued by a notary public to a person, having control of the general records of the transportation company owning the vehicle, for the taking of his deposition in such action. (Paragraph two of the syllabus in In re Hyde, 149 Oh St, 407, approved and followed.) ”

Syllabus 2 of the Hyde case just reads:

“The names and addresses of the operators and the times of operation of public transportation vehicles of a company, as well as the times of their operation in reference to an accident involving one of such vehicles, which information, for general purposes, is a matter of record with the company, are not privileged and are relevant and competent as evidence in an action predicated on such accident claimed to have been caused by the negligence of the operator of such a vehicle. Such information may be elicited through a subpoena issued by a notary public, to one having control of the records of the transportation company, for the taking of his deposition in such action.”

This holding reflects the statutory philosophy attending the legislative action to adequately pursue the most effective method of preparing for trial by pre-trial procedures looking toward a complete revelation of pertinent facts. When testing the merit of a statutory interrogation, the general purpose of the sections of the code controlling should be in contemplation of the Court in deciding a demurrer.

For facility of reference the sections of the code generally applying to pre-trial discovery of facts are quoted.

“Sec. 11348 GC. Annexing interrogatories to pleadings. A party may annex to his pleading, other than a demurrer, interrogatories, pertinent to the issue made in the pleadings, which interrogatories, if not demurred to, shall be plainly and fully answered under oath, by the party to whom they are propounded, or if such party is a corporation, by the president, secretary, or other officer thereof, as the party propounding requires.”

“Sec. 11521 GC. How testimony taken. The testimony of witnesses may be taken:

“1. By affidavit;

“2. By deposition;

“3. By oral examination.”

“Sec. 11522 GC. Same defined. An affidavit is a written declaration under oath, made without notice to the adverse party; a deposition is a written declaration under oath, made upon notice to the adverse party; and oral testimony is that delivered from the lips of the witness.”

“Sec. 11525 GC. When deposition may be used. The deposition of a witness may be used only when it is made to appear to the satisfaction of 'the court that he does not reside in, or is absent from, the county where the action or proceeding is pending, or, by change of venue, is sent for trial; or that he is dead, or, from age, infirmity, or imprisonment, is unable to attend court; or that the testimony is required upon a motion, or where the oral examination of the witness is not required.”

“Sec. 11526 GC. What deposition taken. Either party may commence taking testimony by deposition at any time after service upon the defendant.”

“Sec.. 11550 GC. Party may be required to admit a paper to be genuine, or pay expenses of proof. At any time before the trial, either party may exhibit to the other, or to his attorney, any paper or document material to the action, and request an admission in writing of its genuineness. If the adverse party, or his attorney, fails to give such admission, within four days after the request, and the party exhibiting the paper or document be afterward put to expense to prove its genuineness, if that be finally proved or admitted on the trial, such expense, to be ascertained at the trial, shall be paid by the party refusing to make the admission, unless it appears to the satisfaction of the court, that there were good reasons for the refusal.”

“Sec. 11551 GC. Books and writings. Upon motion, and reasonable notice thereof, the court, in which an action is pending, may order the parties to produce books and writings in their possession or power which contain evidence pertinent to the issue, in cases and under circumstances where they might heretofore have been compelled to produce them by the ordinary rules of chancery. If the plaintiff fails to comply with such order on motion, the court may give judgment for the defendant as in case of non-suit; if a defendant fails to comply with such order, on motion, the court may give judgment against him by default.”

“Sec. 11552 GC. Inspection and copy of books and documents. Either party, or his attorney, in writing, may demand of the adverse party an inspection and copy, or permission to take a copy, of a book, paper, or document in his possession, or under his control, containing evidence relating to the merits of the action or defense, specifying the book, paper, or document with sufficient particularity to enable the other party to distinguish it. If compliance with the demand within four days be refused, on motion and notice to the adverse party, the court or judge may order the adverse party to give the other, within the time specified, an inspection and copy, or permission to take a copy, of such book, paper, or document. On failure to comply with such order, the court may exclude the paper or document if offered in evidence, or, if wanted as evidence by the party applying, may direct the jury to presume it to be such as such party, by affidavit, alleges it to be. This section shall not prevent a party from compelling another to produce any book, paper, or document when he is examined as a witness.”

“Sec. 11553 GC. Court may appoint master to inspect books, papers, etc. If the party in possession of any such book, paper, writing, or document, alleges that it, or a part thereof is of mere private interest, or of such character that it ought not to be produced, or an inspection or copy allowed or taken, on motion of either party, the court may direct a private examination of it by a master. If he finds that such book, paper, writing, or document contains matter pertinent to the case, and proper to be produced, inspected, or copied, he shall report it to the court, or a copy of such part as he finds pertinent to the case, and proper to be produced, inspected, or copied. The book, paper, writing, or document, or' part thereof, so reported, shall be admitted in evidence on the trial, unless for proper cause the court excludes it.”

“Sec. 11554. How copies of written instrument obtained. Either party, or his attorney, if required, shall deliver to the other party, or his attorney, a copy of any instrument of writing whereon the action or defense is founded, or which he intends to offer in evidence at the trial. If the plaintiff or defendant refuses to furnish the copy required, the party so refusing shall not be permitted to give the original in evidence at the trial. This section does not apply to a paper, a copy of which, as required by law, is filed with a pleading.”

“Sec. 11555 GC. Action for discovery. When a person claiming to have a cause of action, or a defense to an action commenced against him, without a discovery of the fact from the adverse party, is unable to file his petition or answer, he may bring an action for discovery, setting forth in his petition the necessity therefor, and the grounds thereof, with such interrogatories relating to the subject matter of the discovery as are necessary to procure the discovery sought, which, if not demurred to, must be fully and directly answered under oath by the defendant. Upon the final disposition of the action, the costs thereof shall be taxed in such manner as the court deems equitable.”

To further amplify modern judicial approach, a case originating in South Carolina finally reached the Supreme Court of the United States, Hickman v. Taylor, 329 U. S. 495, and should be quoted in part.

Page 513

“We fully appreciate the wide-spread controversy among the members of the legal profession over the problem raised by this case. It is a problem that rests on what has been one of the most hazy frontiers of the discovery process. * 1 *”

Page 500

“Under the prior federal practice, the pretrial functions of notice-giving, issue-formulation and fact-revelation were performed primarily and inadequately by the pleadings. Inquiry into the issues and the facts before trial was narrowly confined and was often cumbersome in method. The new rules, however, restrict the pleadings to the task of general notice-giving and invest the deposition-discovery process with a vital role in the preparation for trial. The various instruments of discovery now serve (1) as a device, along with the pre-trial hearing under Rule 16, to narrow and clarify the basic issues between the parties, and (2) as a device for ascertaining the facts, or information as to the existence or whereabouts of facts, relative to those issues. Thus civil trials in the federal courts no longer need be carried on in the dark. The way is now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of the issues and facts before trial. * * *”

Page 506

“Thus in a suit by an injured employee against a railroad or in a suit by an insured person against an insurance company the corporate defendant could pull a dark veil of secrecy over all the pertinent facts it can collect after the claim arises merely on the assertion ‘that such facts were gathered by its large staff of attorneys and claim agents. At the same time, the individual plaintiff, who often has direct knowledge of the matter in issue and has no counsel until some time after his claim arises could be compelled to disclose all the intimate details of his case. By endowing with immunity from disclosure all that a lawyer discovers in the course of his duties, it is said, the rights of individual litigants in such cases are drained of vitality and the lawsuit becomes more of a battle of deception than a search for truth.

“But framing the problem in terms of assisting individual plaintiffs in their suits against corporate defendants is unsatisfactory. Discovery concededly may work to the disadvantage as well as to the advantage of individual plaintiffs. Discovery, in other words, is not a one-way proposition. It is available in all types of cases at the behest of any party, individual or corporate, plaintiff or defendant. The problem thus far transcends the situation confronting this petitioner. And we must view that problem in light of the limitless situations where the particular kind of discovery sought by petitioner might be used.

“We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of “fishing expedition” serve to preclude a party from inquiring into the facts underlying his opponent’s case. Mutual knowledge of all the relevant fact's gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession. The deposition-discovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to the period preceding it, thus reducing the possibility of surprise.”

It was pointed out to the Court that this case is a Federal one decided under the Federal Rules of Civil Procedure and therefore inapplicable as a precedent in this case. This observation would be well taken if the rules which the Court was considering were in substance contrary in content to the statutory rules in Ohio. It is therefore proper that we consider the Federal Rules of Civil Procedure, as amended, which in their relevant portions are as follows:

RULE 26

“(a) When Depositions May Be Taken. Any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes. After commencement of the action the deposition may be taken without leave of court, except that leave, granted with or without notice, must be obtained if notice of the taking is served by the plaintiff within 20 days after commencement of the action. The attendance of witnesses may be compelled by the use of subpoena as provided in Rule 45. Depositions shall be taken only in accordance with these rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

“(bj Scope of Examination. Unless otherwise ordered by the court as provided by Rule 30 (b) or (d), the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending-action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.”

RULE 33

“Any party may serve upon any adverse party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may be served after commencement of the action and without leave of court, except that, if service is made by the plaintiff within 10 days after such commencement, leave of court granted with or without notice must first be obtained. The interrogatories shall be answered separately and fully in writing under oath. The answers shall be signed by the person making them; and the party upon whom the interrogatories have been served shall serve a copy of the answers on the party submitting the interrogatories within 15 days after service of the interrogatories, unless the court, on motion and notice and for good cause shown, enlarges or shortens the time. Within 10 days after service of interrogatories a party may serve written objections thereto together with a notice of hearing the objections at the earliest practicable time. Answers to interrogatories to which objection is made shall be deferred until the objections are determined.

“Interrogatories may relate to any matters which can be inquired into under Rule 26 (b), and the answers may be used to the same extent as provided in Rule 26 (d) for the use of the deposition of a party. Interrogatories may be served after a deposition has been taken, and a deposition may be sought after interrogatories have been answered, but the court, on motion of the deponent or the party interrogated, may make such protective order as justice may require. The number of interrogatories or of sets of interrogatories to be served is not limited except as justice requires to protect the party from annoyance, expense, embarrassment, or oppression. The provisions of Rule 30 (b) are applicable for the protection of the party from whom answers to interrogatories are sought under this rule.”

RULE 34

“Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to the provisions of Rule 30 (b), the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 26 (b) and which are in his possession, custody, or control; or (2) order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated object or operation thereon within the scope of the examination permitted by Rule 26 lb). The order shall specify the time, place, and manner of making the inspection and taking the copies and photographs and may prescribe such terms and conditions as are just.”

These rules were under consideration in Hickman v. Taylor, supra. The ratio decidendi of both the Ohio and Federal cases arise out of legislation on the same subject matter and the analogy of the state statutes and the Federal Rules of Civil Procedure. In substance they can be said to be legally in pari materia. This hardly can be challenged. Hence there is every good reason to embrace the principles enunciated in those two cases as the measure of pertinency, relevancy and materiality of the interrogatories under consideration in the case at bar.

Although the state statutes, insofar as exempting privileged matter from being disclosed by the interrogatory procedure, are silent on that subject and the Federal Rules make a specific exemption thereof, yet the Courts of Ohio have uniformly protected privileged matter from pre-trial discovery procedures.

Touching upon the nature of the privilege as pertaining to evidentiary matter in the hands of counsel, the Court in the Hickman case made this apt observation.

Page 510

“Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, -statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case as the “work product of the lawyer.” Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.

“We do not mean to say that all written materials obtained or prepared by an adversary’s counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may properly be had. Such written statements and documents might, under certain circumstances, be admissible in evidence or give clues as to the existence or location of relevant facts. Or they might be useful for purposes of impeachment or corroboration. And production might be justified where the witnesses áre no longer available or can be reached only with difficulty. . Were production of written statements and documents to be precluded under such circumstances, the liberal ideals of the deposition-discovery portions of the Federal Rules of Civil Procedure would be stripped of much of their meaning.”

In ruling upon the demurrer in the case at bar, this Court subscribes to the prevailing precedent in Ohio, which is deemed to be in consonance with the last quoted exerpts from the Hickman case.

Sec. 11348 GC, providing for interrogatories, was intended to obviate other more cumbersome procedures and to permit either side in a lawsuit to become fully acquainted with the facts pertinent to the issues in the possession of the other prior to the trial of the case, and thus prevent the trial of a lawsuit from being a game or a mere contest of wits and ingenuity and to attempt instead to make it a true instrument of justice.

Coming now to a consideratiqn of the individual interrogatories and applying to each the law as stated herein, the Court will take up each one in numerical order.

Interrogatories numbered 1, 2, 3, 4, 5 and 6 are deemed to be pertinent within the purview of the law and the demurrer as to these is overruled.

Interrogatory No. 7 is considered to be somewhat remote from the issues and would not ordinarily be admissible in evidence. The demurrer as to it is sustained.

"The demurrer to Interrogatories Nos. 8 and 9 is overruled. However, the information disclosed in the answers to these interrogatories will be permitted in evidence only under the limitations stated in 17 O. Jur., paragraph 183, page 239:

“Evidence of prior similar accidents is admissible for two purposes, and two purposes only. In all cases in which evidence of other accidents occurring at the same place, in the operation of the same or a similar machine, or by the use of the same or similar appliances, is admitted, it is admitted (1) for the purpose of showing the dangerous character or condition thereof — whether or not a dangerous condition existed, and (2) to show notice to the defendant of such character or condition — to bring home to him notice of the danger or defect which is claimed to have caused the accident.” and specifically as restricted therein and amplified by the ruling in Cottman v. Federman Co., 71 Oh Ap 89 and Dietz v. Cincinnati, 25 O. C. C. N. S. 506, Hamilton County Court of Appeals.

Specifically as to Interrogatory No. 9, the information contained therein may enable the plaintiffs to discover from such persons the character of the accidents in which they were involved, so as to possibly prove the similarity of those accidents to the accident in the case at bar. It is quite true that the names and addresses of the parties involved would not of themselves be admissible in evidence, yet such information could lead to the discovery of admissible evidence; and since interrogatories are used as a substitute for the old discovery proceedings under the authorities above stated, it is proper to seek such information through interrogatories. The demurrer as to it is overruled.

Interrogatory No. 10, in the opinion of the Court, makes a most cogent inquiry. It would seem that the presence of an automatic warning device is of an especial incidence to possible liability in this case, and therefore the demurrer to it is overruled.

Interrogatory No. 11, while projecting a rather miscroscopic inquiry, is deemed to be pertinent to the issues and the demurrer therefore is overruled.

Interrogatory No. 12, when answered, would serve the purpose of determining the mechanical condition of the warning device at the time of the accident. This query is deemed to be within the purview of the law and therefore the demurrer is overruled.

Interrogatories Nos. 13, 14 and 15 request the disclosure of the contents of reports made by the defendant touching upon the very facts in issue and that is as to the possible presence of negligence on the part of the defendant. The Court, in the instance of the latter three interrogatories, cannot conceive that the information inquired of here is violative of the law appertaining to privileged matters. Hence, the interrogatories as to these are overruled.

An entry is authorized in accordance with these findings.


source: Caselaw Access Project

author: Per CURIAM:

license: Public Domain

text:
    FREDERICK, Admr., Appellant, v. SNIDER BUILDING COMPANY, Appellee.
    Ohio Appeals, First District, Hamilton County.
    No. 6650.
    Decided May 20, 1946.
    Fred W. Murphy, Jerome M. Luebbers, Cincinnati, for appellant.
    Lucien G. Strauss, Jack Glenn Williams, Cincinnati, for appellee.
   OPINION

Per CURIAM:

The matter before the court is a motion to dismiss the appeal for the reason that the notice of appeal was not filed within the time allowed by law.

A trial by jury was had. Defendant’s motions for a directed verdict at close of plaintiff’s evidence and again at close of all the evidence were overruled. The jury was charged and deliberated, but, being unable to agree was discharged on May 23, 1945. On May 25, 1945, defendant filed a motion for judgment. On October 24, 1945, said motion was sustained and judgment dismissing plaintiff’s petition was entered. On October 24, 1945, plaintiff filed a motion for new trial. On January 17, 1946, the new trial motion was overruled and judgment entered. On January 18, 1946, notice of appeal on questions of law and fact, directed to the judgment of October 24, 1945, was filed.

The action being one for damages, based on deceit, the appeal on questions of law and fact is reduced to one at law and retained, and heard by the court on questions of law only.

Sec. 12223-7 GC, fixes the time of perfecting an appeal as twenty days after the “judgment” etc., and provides:

“Provided, that, when a motion for a new trial is duly filed by either party within three days after the verdict or decision then the time of perfecting the appeal shall not begin to run until the entry of the order overruling or sustaining the motion for new trial.”

The sole question is, was the motion for new trial duly filed?

As stated in State, ex rel. Longman, et al. v. Welsh, et al., 133 Oh St, 244, at page 246:

“In deciding this question, the controlling consideration is whether a motion for a new trial was proper, authorized or effective in the circumstances.

“A new trial involves a reexamination of an issue of fact in the same court after trial. In the present case, on a demurrer which challenged merely the legal sufficiency of the pleadings, the Court of Appeals held that the petition presented a situation wherein the action demanded of the Board of Education of Butler County and the State Director of Education could not be accomplished under the law. There was no trial on any issue of fact which would make a motion for a new trial the necessary or proper procedure. Appellants’ application of October 19, 1937, amounted to nothing more than a request for a rehearing under Rule XI of the Rules of Practice of the Courts of Appeals of Ohio.

Sec. 11420-8 GC, provides:

“When the jury is discharged during a trial, or after a cause is submitted, it may at once be tried again, or on a future day, as the court may direct.”

It, therefore, appears that plaintiff might have had a right to a new trial and a motion therefor was a proper one, hence, duly filed.

For the reasons set forth above, and on the authority of Cullen v. Schmidt, et al., 137 Oh St, 479, the motion to dismiss will be overruled. See, also: Torto, Admx. v. New York Central Rd. Co., 68 Oh Ap, 415.

HILDEBRANT, PJ, MATTHEWS & ROSS, JJ, concur.


author: By BELL, J.

text:
    COLE & MOTORS INS. CORP., Plaintiffs-Appellees, v. HUNTINGTON, Defendant-Appellant.
    Common Pleas Court, Hamilton County.
    No. A-131382.
    Decided July 31, 1952.
    Elmer E. Strasser, Cincinnati, for defendant-appellant.
    McCaslin, Imbus & McCaslin, Cincinnati, for plaintiffs-appellees.
   OPINION

By BELL, J.

This is an appeal on questions of law from the Municipal Court. The cause is bottomed upon the proposition that appellees (plaintiffs below) are entitled to recover damages from appellant (defendant below) as the result of a collision of two motor vehicles which occurred on April 29, 1950.

The cause has been tried twice. Upon the first trial the Municipal Court directed a verdict in favor of defendant. Upon appeal this court reversed that judgment and remanded the cause for a new trial. Upon re-trial the jury failed to agree upon a verdict and the defendant (in that court) again has filed an appeal upon questions of law in addition to which plaintiffs (in that court) have filed a cross-assignment of errors.

Defendant-appellant assigns but one claimed error:

“Overruling by the Municipal Court of the defendant-appellant’s motions for a directed verdict.”

The defendant below made motions for a directed verdict in his favor at the conclusion of plaintiffs’ evidence and renewed said motion at the conclusion of all the evidence.

This court has read the transcript in its entirety and in my view there is purely a question of fact for determination by a jury and not a question of law for determination of a court.

Hence, the appeal of defendant-appellant here, cannot be sustained.

Coming now to consider the cross-assignment of errors, it should be noted in passing that plaintiffs below (appellees here) filed no notice of appeal in the trial court and it is a matter of grave doubt whether they have any standing in this court. However, defendant-appellant has failed to file a motion to dismiss the cross-assignment of errors, so that the court will consider the cross-assignment of errors which are as follows:

1. The trial court committed error prejudicial to the plaintiffs in overruling plaintiffs’ motion to withdraw a juror and to continue the case at the costs of the defendant.

2. Overruling plaintiffs’ motion for judgment notwithstanding the disagreement of the jury.

The first claim of error is based upon the admitted fact that counsel for defendant below had a conversation with one of the jurors during the trial of the cause at one of the recesses of the court. There was no claim that the conversation had any connection with the case. The trial court did not consider the matter of sufficient importance to warrant the granting of the motion. This court is at a loss to understand how this ruling could be prejudicial to plaintiffs below when the jury failed to agree upon a verdict.

The second claim of error is that plaintiffs’ (appellees here) motion for judgment notwithstanding the disagreement of the jury was overruled.

The court is familiar with the statute which grants authority to sustain, in a proper case, a motion for judgment notwithstanding the verdict of a jury. No authority has been called to my attention which authorizes a court to grant a motion for judgment where a jury disagrees, where as here the question is purely factual.

The appeal as well as the cross-assignment of error should be and hereby is dismissed and the cause is remanded to the Municipal Court for further proceedings according to law.


author: By THE COURT. By THE COURT.

text:
    COLUMBUS METROPOLITAN HOUSING AUTHORITY, Plaintiff-Appellee, v. WILSON, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4371.
    Decided December 8, 1949.
    Wm. Harvey Jones, Columbus, for plaintiff-appellee.
    L. P. Henderson, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

Submitted on motion by the plaintiff-appellee seeking an order requiring the defendant-appellant to file an additional supersedeas bond. The motion is supported by an affidavit which recites that the lease on the premises sought terminated on the first day of February, 1949; that the plaintiff - appellee secured a judgment for the possession of the premises and that the same has been affirmed by the Court of Common Pleas; that the amount of rent accruing during the pendency of the appeal will total approximately $450.00 and that a supersedeas bond has been given only to the extent of $300.00. According to these figures there is a deficiency of $150.00.

The motion will be sustained, and the appellant ordered to furnish additional bond in said amount in this court within five days from the date of the filing of the judgment entry.

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

ON MOTION TO DISMISS APPEAL

No. 4499. Decided January 30. 1951.

OPINION

By THE COURT.

Submitted on motion of the plaintiff-appellee seeking an order dismissing the appeal for the reason that no assignments of error or brief have been filed within 50 days from the filing of the notice of appeal as required by §11564 GC. The record discloses that the notice of appeal was filed on August 10, 1950, at which time a transcript of docket and journal entries and bill of exceptions were filed, but nothing further has been filed up to the present time.

The motion will be sustained.

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


author: By HUNSICKER, PJ.

text:
    SALEM, Extrx., etc., Appellant, v. DeWITT-JENKINS REALTY CO., Appellee.
    Ohio Appeals, Ninth District, Summit County.
    No. 4268.
    Decided May 21, 1952.
    Gottwald, Hershey & Hatch, Akron, for appellant.
    Wise, Roetzel, Maxon, Kelly & Andress, Akron, for appellee.
   OPINION

By HUNSICKER, PJ.

This is an appeal on questions of law from a judgment rendered on a verdict directed by the trial court for the defendant at the conclusion of the testimony in behalf of the plaintiff.

Toofek Salem, the plaintiff’s decedent, herein called Salem, purchased a parcel of land at the corner of Wooster Avenue and Locust Street in the city of Akron, Summit County, Ohio, and immediately offered it for sale. His deed for this land, dated February 28, 1946, shows that it was transferred to him on the map of the auditor of Summit County, Ohio, on March 5, 1946, received for record by the recorder of Summit County on March 5, 1946, and recorded March 18, 1946. The description of such land is as follows:

“Situated in the City of Akron, County of Summit and State of Ohio, and known as being the westerly 105.1 feet, front and rear, of Lot Number Two Hundred Ninety-one (291) in the Town Plat of Akron, as surveyed and numbered by Joshua Henshaw, Surveyor, and recorded in Portage County Records, Book H, pages' 18 to 20, inclusive, and now in the Records of Transcribed Plats of Summit County, Ohio, page 4.”

On February 25, 1946, three days before Salem got a deed to the property, he gave to one Albert Frey an option to purchase the following described lands:

“Situated in the City of Akron, County of Summit and State of Ohio, and known as being the westerly 126 feet front and rear of lot number 291 of Part of South Akron Allotment, intending to convey a piece of land having a frontage of 82.5 feet on Locust street by 126 feet on Wooster Avenue, same being a rectangle 82.5 feet by 126 feet.”

On April 1, 1946, six days after the option expired, Salem executed an agreement to sell to Albert Frey the following described premises:

“Situated in the City of Akron, County of Summit, and State of Ohio, and known as Lot No. (sic) Being the westerly 126 feet front and rear of lot No. 291 of Part of South Akron Allotment, intending to convey a piece of land having a frontage of 82.5' on Locust St. by 126' on Wooster Ave., together with all the appurtenances and hereditaments, including lighting fixtures, chandeliers, window shades, screens, linoleums, thereunto belonging, but subject to any existing restrictions, as well as all legal highways.”

All of the foregoing descriptions of lands purported to be the same property purchased by Salem and located at the northeast corner of Wooster Avenue and Locust Street in the city of Akron, Ohio.

Albert Frey also signed this agreement. Thereafter Salem presented to Albert Frey a warranty deed for premises located at the corner of Wooster Avenue and Locust Street, with the description of the lands as is contained in the deed which Salem received from the party from whom he purchased such lands. Albert Frey refused to accept such deed, and sued Salem for breach of contract. Frey secured a judgment against Salem, which, together with court costs and interest, amounted to $1288.34. Salem paid this judgment, and then brought an action against the appellee, a real estate broker, herein called DeWitt, for the amount of such judgment, costs and interest, and, in addition thereto, the amount of $592.20, which he alleges he paid his attorneys in defending the action that Albert Frey had brought against him.

Albert Frey had contacted DeWitt prior to February 25, 1946, concerning the purchase of these premises at the corner of Wooster Avenue and Locust Street. DeWitt then went to Salem and discussed with him the desire of Albert Frey to buy this property. Salem told DeWitt that he did not then have his deed, but that he had been informed the property had a frontage of 126 feet on Wooster Avenue, but that DeWitt ought to check the records at the Court House. DeWitt and Frey looked at the property, and DeWitt thereafter prepared the purchase option to Frey dated February 25, 1946. Salem, without further inquiry, signed such option. DeWitt thereafter prepared the contract of purchase dated April 1, 1946, which Salem and Frey thereafter signed.

Salem says that the judgment Frey obtained was caused by the appellee, DeWitt, who “either purposely misrepresented to plaintiff’s decedent the dimensions of the premises in question, or was grossly negligent and careless in not following Mr. Salem’s instructions to check the dimensions of the lot at the Court House.”

At the conclusion of the Salem case in chief, the trial court, upon motion, directed a verdict for DeWitt. From the judgment thereafter rendered on such verdict, Salem brings an appeal to this court on questions of law, saying that such judgment is manifestly against the weight of the evidence and is contrary to law.

There is no evidence of a misrepresentation purposely made by DeWitt to Salem as to the dimensions of the property herein. Salem first stated to DeWitt the dimensions, which were inserted in the option and the later agreement to purchase.

We do not have in the instant case the question of a real estate broker’s right to a commission where such broker has procured a buyer ready, willing and able to purchase real estate, which an owner has offered for sale through the agency of such broker, and such buyer refuses to consummate the purchase because of a misrepresentation by the owner as to the quantity of real estate offered for sale.

We do have in the instant case the claim that the real estate broker, through negligence and failure to follow the instructions of his principal, inserted in the option to purchase the later agreement of sale and purchase, an incorrect dimension of the property which the principal owned and sought to sell.

An examination of the exhibits herein shows that the option given on February 25, 1946, expired on March 25, 1946. The agreement of sale was executed on April 1, 1946, six days after the option to purchase had expired. This agreement was executed 26 days after Salem had secured a transfer on the auditor’s. tax map of the deed from his vendor.

Can Salem, under these circumstances, now be heard to say that it was the fault of DeWitt that caused the loss he suffered?

It is axiomatic that an agent, such as we have herein, shall exercise fidelity and good faith toward, his principal in all matters that fall within the sphere of his employment, and that the agent execute his commission with skill, care and diligence. See: 1 O. Jur., Agency, Sec. 82, et seq., p. 758, and authorities cited.

We think it is also equally clear that an agent may be liable for losses incurred by his principal through the agent’s own negligence and failure to perform his duties properly. ,

In the instant case, Salem had knowledge of the property he sought to sell or should have had such knowledge, because, before he signed the agreement, he had the deed from his vendor transferred and recorded, and he was no longer bound by the option which he previously had given Frey. Salem by his own conduct was guilty of negligence, since he could have, by the exercise of ordinary care, when he executed the agreement of sale, protected himself as to the description and thereby avoided his subsequent loss. There is no testimony which indicates that Salem was prevented from reading the description in the deed he received from his vendor. In the exercise of ordinary care, Salem could have ascertained the extent and dimensions of the land he agreed to sell.

“The liability of the agent to the principal may be avoided, terminated, or reduced by a breach of contract by the principal, his contributory fault, or his failure to mitigate damages.” (Emphasis ours.)

II Restatement of the Law of Agency, Chapter 13, Sec. 415.

See also: 3 C. J. S., Agency, Sec. 162 and authorities there cited.

It was the duty of Salem, under the facts herein, to know the nature and extent of the property that he agreed to sell. His failure, under these circumstances, to examine the deed after the option expired and before he executed the agreement of sale, constituted negligence on his part which directly caused his loss.

The judgment of the trial court is affirmed.

DOYLE, J, STEVENS, J, concur.


author: By CRAMER, J.

text:
    DAY, Plaintiff, v. INDUSTRIAL COMMISSION OF OHIO, Defendant.
    Common Pleas Court, Butler County.
    No. 66135.
    Decided June 25, 1951.

      Casper & Casper, for plaintiff.
    C. William O’Neill, Atty. Genl., Columbus, for defendant, Industrial Commission of Ohio.
   OPINION

By CRAMER, J.

This cause is before this court on appeal from air order of The Industrial Commission of Ohio denying plaintiff’s claim for death benefits under the Workmen’s Compensation Law of Ohio, arising out of the death of his wife.

The same was heard by the court, without the intervention of a jury, upon the pleadings, re-hearing transcript, and memoranda of counsel.

The facts, about which there is little if any dispute, are substantially as follows:

The decedent, Nancy B. Day, had been for quite a number of years prior to her death, which took place on July 15, 1948, an employee of the P. Lorillard Company. Said decedent for four or five years prior to her death was the duly elected stewardess with the Local C. I. O. Labor Union at her employer’s plant. As such stewardess, among her duties was that of entertaining and settling grievances. A dispute arose between the girls in several of the departments and at the request of management the decedent called a grievance committee meeting for July 15, 1948. The meeting was called for and held during regular working hours and on the premises of the employer. During this meeting it appears that the decedent, who apparently for quite some time prior thereto, was in good health, got excited and engaged in a discussion which placed her under a very high nervous tension. She was described by one who was in attendance at the meeting as becoming angry and “her temper rose and she was flushed in the face.” This witness also testified as follows: “I had seen Mrs. Day excited before but not so much as she was at that meeting.” He also stated that during this meeting the decedent became nervous and seemed “to lose temporary control like a person who would become dazed in some manner, something happened physically, but she got her composure immediately. I know she sat down and more or less dropped. She didn’t sit as we did.”

The decedent collapsed and was carried from the fourth floor down to the second floor to the first aid. She regained consciouness while on the elevator. Her collapse took place less than an hour after the meeting was concluded and after complaining of pains in her head. She became unconscious, then regained consciousness and died about an hour after again losing consciousness.

The death certificate recited the following:

“Disease or condition directly
leading to death Cerebral hemorrhage & heart failure
Antecedent causes due to Hypertension & myocarditis”

The pleadings and the evidence here raise for determination the question whether plaintiff’s decedent suffered an accidental injury in the course of and arising out of her employment which resulted in her death.

Since it seems to be undisputed in the evidence that the cause of decedent’s death was cerebral hemorrhage and heart failure, the question is probably narrowed to whether the experience which it is claimed she underwent at the plant of her employer at the meeting aforesaid, preceding her death, proximately caused the cerebral hemorrhage. If it did. and it constituted an accidental injury, as that term has been defined, sustained in the course of and arising out of her employment, then the death is compensable.

Thus we are brought to a determination as to what is required, under the law, to constitute an accidental injury so as to be compensable.

In the case of Malone v. Industrial Commission, 140 Oh St, page 292, the court found it necessary to restate the rule to be followed in determining the essentials of such injury, under §1465-68 GC, as amended, effective July 10, 1937. Judge Hart stated the following:

“To restate the rule under the present statute, the term ‘injury’ as used in the Workmen’s Compensation Act, comprehends a physical or traumatic damage or harm, accidenta) in its origin and character in the sense of being the result of a sudden mishap occurring by chance, unexpectedly and not in the usual course of events, at a particular time and place.”

He further declared as follows:

“This court is still committed to the proposition that a compensable injury under the Workmen’s Compensation Act must be accidental and traumatic in character.”

The Malone case supra is authority also for the following definition of traumatic injury, for it was stated therein as follows (page 302):

“A traumatic injury is one produced by any sudden, violent attack upon the tissues or organs of a- living Dudy producing a wound, tear or abnormal condition thereon or therein.”

It is our opinion that under the foregoing definition, “any injury” (the term used in §1465-68 GC) includes mental strain. We feel that this conclusion is warranted even though Judge Taft in the case of McNees v. Cincinnati Street Railway Company, 152 Oh St, 269; 40 O. O., 318, at page 320 of the Ohio Opinions Report, made the following observation:

“It might be argued that the term ‘any injury’ might be interpreted to include the word ‘strain.’ . However, such an argument with respect to the word ‘excitement’ would appear to be clearly unreasonable.”

The fact that Mrs. Day voluntarily subjected herself to engaging in a heated discussion and argument in the meeting does not prevent an injurious result to herself, if sustained'as a proximate result thereof, from being considered an accidental injury within the meaning of the Workmen’s Compensation Law, if, of course it otherwise qualifies as such m the characteristics or essential elements thereof. For it has been held that

“When, in connection with an intentional act on the pnrt of a workman which precedes an injury to him, from an unforeseen, unexpected and unusual incident which produces the injury, or from which the injury results, it is accidental in character and result.”

See Malone v. Industrial Commission supra and cases cited in 7 A. L. R., 1132-1133.

In the case of Connelly v. Hunt Furniture Co., 240 N Y., 83, 147 N. E., 366, 39 A. L. R., 867, — referred to in the Malone case by Judge Hart — Judge Cardoza said:

“The range of accidents would be reduced, indeed, to vanishing dimensions if we were to take out of the category every case in which the physical movement had been willed without adverting to the consequences.”

While the decedent in this case voluntarily engaged in the heated and exciting discussion and argument at the meeting, the cerebral hemorrhage she suffered, if it was proximateiy caused by such experience, would not be the usual and expected result, but the unusual and unexpected result of sucn activities and would therefore be accidental.

We now take up the matter of whether that which Nancy Day experienced at this grievance meeting occurred in the course of and arising out of her employment with the named employer. One is in the course of his employment if he is in the performance of some required duty done directly or incidentally in the service of his employer. Management has found that the maintenance of harmonious relations, not only between employer and employee, but amongst the employees themselves, is just as essential to the successful operation of a business, as is the smooth functioning of the machinery which produces the products it manufactures and sells An employee who pursues activities, in connection with an office he holds in a local union, toward the end that such harmonious relations are sought to be either established or maintained, is, in our opinion, in the performance of duties done directly or Incidentally in the service of his employer.

We conclude, therefore, that the decedent was in the course of her employment while in attendance at and participating in the meeting referred to.

Did the mental strain and excitement which the evidence shows Nancy Day experienced at this meeting arise out of her employment? They did if they were experienced through and because of her employment. In other words, a próxima,te causal connection between the employment and the mental strain and excitement must be shown.

See McNees v. Cincinnati Street Railway Co. supra.

In this instance, “the employment” being the attendance at and participation in the grievance committee meeting. If by reason of the activities, conditions and requirements of such employment the decedent was subjected to a greater hazard than were members of the general public, a finding that a proximate causal connection between that employment and the results described would be warranted.

Our view of the evidence here is that the plaintiff has proved, by the degree of proof required under the law, such a proximate causal connection.

The following cases cited by the defendant do not, in this court’s opinion, warrant the conclusion insisted upon, namely, a finding in its favor upon the issues here presented:

Shea v. Youngstown Sheet & Tube Co., 139 Oh St, 407; O’Malley v. Industrial Commission, 124 Oh St, 401; Gerich v. Republic Steel, 153 Oh St, page 463.

In the record there is ample respectable medical authority to the effect that the mental strain and excitement which Nancy Day underwent and sustained — and which we find was sustained in the course of and arising out of her employment aforesaid — proximately caused the cerebral hemorrhage and decedent’s death therefrom. Even the medical expert called by the defendant did not entirely disagree with plaintiff’s theory and claim that the mental strain, excitement, and anger which the decedent subjected herself to was a proximate cause of the cerebral hemorrhage. Both doctors who testified in this case — one on behalf of plaintiff and the other on behalf of the defendant — felt that Nancy Day’s age — 67 at time of death — was an important factor in this connection, in view of the arterio-sclerosis normally found in people of that age. This particularly in view of the fact that arterio-sclerosis is adversely affected by hyertension, which in turn is affected, at least to some extent, by excitement and strain. Cerebral hemorrhage was described as occurring when a weakened vessel breaks anywhere in the brain creating a flow of blood into that confined cavity. Of course the arterio-sclerosis was conducive to the breaking or rupturing of a blood vessel.

It is our conclusion that the plaintiff has proved by a preponderance of the evidence all of those elements which are essential to a finding in his favor, namely, that Nancy Day sustained a compensable injury as that term has been legally defined, on or about the date claimed, while in the course of and arising out of her employment with the P. Lorillard Company, and that such injury proximately resulted in decedent’s death.

Therefore we find, upon the issues joined, in favor of the plaintiff — it being undisputed that plaintiff was dependent upon decedent in her lifetime — and against the defendant, arid that plaintiff is entitled to an award of the death benefits provided under the Workmen’s Compensation Law.

An entry may be prepared in accordance with this opinion.