author: By CONN, J:

text:
    NUNGESSER, Plaintiff-Appellee, v. SUHAYCIK, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21663.
    Decided February 27, 1950.
    Edwin Knachel, Cleveland, for plaintiff-appellee.
    J. E. Gerity, Cleveland, for defendant-appellant.
    (CONN, PJ, of the 6th District; Hunsicker and Doyle, JJ, of the 9th District sitting by designation in the 8th District.)
   OPINION

By CONN, J:

This action was begun in the Municipal Court of Cleveland by plaintiff-appellee against the defendant-appellant to recover damages in the amount of $200.00 for bodily injuries received when struck by the defendant’s automobile. The ease was tried by the court and jury. A verdict in the sum of $100.00 was returned by the jury against the defendant and judgment entered thereon. Defendant appeals on questions of law.

Plaintiff alleged that the defendant was negligent in the following particulars:

1. In that he failed to stop within the assured clear distance ahead.

2. In that he failed to have the automobile he was operating under control so that he could stop the same or divert the course thereof in time to avoid the collision.

3. In that he failed to maintain a proper look-out so that when he should have seen the automobile of the plaintiff, he could have stopped or diverted the course of the automobile he was operating in time to avoid the collision.

These specifications of negligence were each denied by the defendant.

It is not disputed that the plaintiff in operating his automobile on the morning of January 26, 1948, in an easterly direction over the Main Avenue Bridge and in the vicinity of West 28 Street Ramp, as he passed over the knoll and traveling in the middle lane of the three-lane highway for east bound traffic, his motor vehicle skidded turning at an angle to the highway until the rear wheel struck the curb, the automobile then coming to a stop at an angle with the highway, the front end of his automobile extending about two feet into the middle lane of the traffic; that when the automobile came to a stop it was easterly over the top of the knoll; that the plaintiff tried to operate his automobile but could not do so on account of the snow and ice at the curb.

It further appears that the plaintiff then got out of his automobile and walked around to the left front side and while in the highway was struck by the automobile operated by the defendant, as it skidded into and collided with the plaintiff’s motor vehicle.

The streets were wet with melting snow and at the point over the knoll and down to the place where the collision occurred there was some ice on the pavement.

Plaintiff’s evidence tends to show that when he observed defendant’s automobile skidding toward him, he endeavored to reach the curb, but had not reached there when he was struck and injured on his right leg below the knee; that he received emergency medical care at a hospital, his leg bandaged and then taken to his home; that he saw his own doctor twice who treated his injury; that he suffered pain for about a week; that he lost about three hours a day from his business for about ten days.

The evidence was conflicting in respect to plaintiff’s location in the street, immediately before he was struck, what he was doing at the time and as to what effort he made to reach the curb in order to avoid being injured. There is also some conflict relative to the place where defendant’s automobile started to skid and the distance from the place where plaintiff’s automobile was standing at an angle in the highway. There was ‘also a conflict in the evidence as to whether the roadway was completely blocked.

Defendant testified that he was 75 to 100 feet away from the place where plaintiff’s car was standing when he went into a skid and that there was a curve in the highway and a knoll that obstructed his view; that he slackened his speed to thirty miles an hour as he approached the curve and twenty-five miles an hour or slower on coming to the knoll..

The errors assigned are that this verdict is not sustained by sufficient evidence, is contrary to the weight of the evidence and that the court erred in its general charge to the jury. Defendant also claims that the court erred in its refusal to grant defendant’s motion for a directed verdict at the close of plaintiff’s case. However, as defendant did not stand on his motion, but proceeded to put in his evidence, the alleged error was waived.

We have given consideration to each of the errors assigned. Defendant claims the court erred in its charge to the jury in several particulars. These we have considered. The charge as a whole covers each and all of the issues raised on the pleadings and the evidence. It might have been more definite in some particulars including the rights and duties of the parties arising under the several ordinances to which the' court called the jury’s attention. However, as defendant made-no request for a fuller charge in these instances, the alleged errors in the charge are errors of omission only and under the circumstances cannot be held to be prejudicial to the-defendant.

As there was no prejudicial error in the submission of the case, we cannot say on the whole record that the verdict is contrary to law, or that it is manifestly against the weight of the evidence. The weight of the evidence was for the jury and it appearing that the verdict is sustained by credible evidence, the judgment, in our opinion should be affirmed.

Judgment affirmed. Exceptions. Order see journal.

HUNSICKER, J, DOYLE, J,. concur.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    KENNEDY, Estate of, In re. NEVIUS, Exr., Plaintiff-Appellant, v. DEPARTMENT OF TAXATION, Defendant-Appellee.
    Ohio Appeals, Second District, Clark County.
    No. 473.
    Decided January 28, 1950.
    Prank L. Nevius, Springfield, Dempsey & Dempsey, Cincinnati, for plaintiff-appellant.
    Herbert S. Duffy, Atty. Geni., Robert E. Younger, Asst. Atty. Geni., Columbus, for defendant-appellee.
   OPINION

By THE COURT:

This is a law appeal from the Probate Court for Clark County, Ohio. The plaintiff’s decedent died testate, her will, after providing for the payment of debts, expenses of last illness, funeral expenses, etc., in Item I, provided in Item n as follows:

“I direct my Executor hereinafter named to expend the sum of $2000.00 out of my estate for masses to be offered in St. Raphael Church in Springfield, Ohio, for the deceased members of the family of my parents, Edward Kennedy and Mary Kennedy, including of course masses for the repose of my soul.”

Upon application being made to the Probate Court for a determination of inheritance taxes the court found that the $2000.00 mentioned in Item II was taxable and not subject to the exemptions allowed in §5334 GC. Exceptions were filed to this determination, which were overruled. The appeal is from this judgment.

The appellant bases his assignment of errors on three major premises:

(1) That the direction of the testatrix to the executor in Item II of the will created a debt or obligation against her estate.

(2) That since no particular pastor is designated to conduct the masses there is no succession to pass.

(3) That if there is a succession the same is to or for the use of an institution for purposes only of public charity.

As to assignments Nos. 1 and 2, supra, the same questions arose in the case of the Estate of Margaret Nohilly, Case No. 2337, unreported decision of the Court of Appeals for Stark County. In this case the will provided, after making provision for the payment of debts and funeral expenses, in the following item:

“All the rest and residue of my estate I direct that my executor shall convert into cash and that he expend the same for the reading of low masses for the repose of my soul, the soul of my mother, Mary, * * *, and that said masses be read at St. Joseph’s Roman Catholic Church at Dover, Ohio, and at least thirty of said masses shall be said consecutively.”

The court here held that the bequest was taxable under the pronouncement of the Supreme Court of Ohio in the case of In re Estate of Reilly, 138 Oh St 145. In discussing the case the court said:

“The claims made by the appellant herein are two-fold: First, that the funds for the saying of Masses is a debt chargeable against the estate, similar to the erection of a monument. Second, since no particular Pastor is named there is no succession to pass. These funds are derived from the residuary clause. The testatrix herself did not consider this to be a debt, as she provided for the payment of debts and funeral expenses in the first item of the will.”
“We do not think that the distinction sought to be drawn in the instant case from the Reilly case is valid. In both cases the Masses were to be said in a particular church and the stipend would go to the pastor or the priests who said the Masses. Pastors and priests change and it is not possible to spell out the particular name in a will.”
“As said in the Reilly case, the statutes do not provide for the exemption and it cannot be provided by judicial legislation. The remedy is in the Legislature, not the courts. The judgment is affirmed.”

We are in accord with the legal conclusions of this appellate court and concur in the same. The appellant places much stress upon the fact that the testatrix uses the word “expend” instead of “give” or “bequeath”, and therefore urges that she considered it to be a debt and not a bequest. We think this is of no significance. The personal estate of the deceased vests in the executor or administrator as of the date of the death, so that every bequest is in the nature of a direction to the executor to pay over to the legatee personalty to which he has title. It would appear that this bequest was worded as a direction to the executor to expend certain sums for masses without naming the pastor because the person who might fill that office at St. Raphael’s Church at the date of the death of the testatrix could not be determined at the time of the execution of the will.

It is also apparent that the testarix did not place this item in the category of a funeral expense since she provided for this payment along with other liabilities- in Item I of her will.

Let us next consider the nature of the bequest. Was it one “only for public charity”, and therefore exempt under §5334 GC? We recognize the holding of masses to be for a charitable purpose, but is that the only purpose? We know of no cases so holding. Numerous cases are cited by the appellant which hold that a bequest for the saying of masses for the repose of the soul is a charitable trust and therefore valid, but this is not our question. We are only concerned with whether it is entitled to exemption under the statute. In order to be exempt for charitable purposes, it must be for this only. The right to exemption must be clear and free from doubt. Exemption statutes must be construed strictissimi juris. Tax Commission v. Paxon, 118 Oh St 36.

Further comment on this question should not be necessary as our Supreme Court has spoken upon the validity of such tax in the case of In re Estate of Reilly, 138 Oh St 145. The syllabus of this case provides:

“When a testatrix by will sets up trusts, the income or principal of which is to be paid in weekly installments to the pastors of designated churches for the purpose of saying masses for herself, her family and relatives, such trusts are taxable successions under the provisions of §5332 GC.”

We are therefore of the opinion that there is no error in the record and the judgment is ordered affirmed.

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


author: By WOODS, J.:

text:
    STATE, Plaintiff, v. MARTIN, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 59524.
    Decided January 6, 1950.
    Frank T. Cullitan, Pros. Atty., by Gertrude Bauer, Cleveland, for plaintiff.
    Frank Hurd, Cleveland, for defendant.
   OPINION

By WOODS, J.:

This is the matter of the State of Ohio, Plaintiff, v. Marvin. R. Martin, Defendant; Criminal Branch, No. 59,524.

Defendant, Marvin R. Martin, was charged by the indictment returned by the grand jury of this county September 20,. 1949, with manslaughter in the second degree. Omitting the-formal parts of the indictment, it alleged that the defendant. Marvin R. Martin, on or about the first day of July, 1949,. at the county aforesaid, unlawfully and unintentionally killed: John Police while engaged in the violation of a state law' applying to the use and regulation of traffic on, over or: across the roads or highways, to-wit, §6307-12 GC, and four other sections of the traffic code, contrary to the statute ini such case made and provided, and against the peace and dignity of the state of Ohio.

The indictment was layed under §6307-18 GC, which reads» Paragraph (a):

“Whoever shall unlawfully and unintentionally kill another while engaged in the violation of any law of this state-applying to the use or regulation of traffic, shall be guilty of manslaughter in the second degree.”

On this indictment the defendant was placed on trial before this Court and a jury, and was, on October 18, 1949, found not guilty by the jury, and discharged by the court.

Defendant was thereafter, on the 27th day of October, 1949, re-indicted under an indictment identical in terms except the name of the person killed was that of John Batori.

The essential facts of the transaction, as revealed by the record submitted with the plea, are as follows:

The defendant was driving a truck hauling steel from Detroit to the Fisher Body Company; proceeded out St. Clair Avenue to East 140th Street; turned north on East 140th Street, and at the intersection of East 140th Street and Coit Road a collision occurred in which John Police and John Batori, who were riding on a motorcycle, collided with the side of the truck, causing the instant death to each, of the persons on the motorcycle.

The State claimed, in chief, that the defendant ran through a red light at the intersection of Coit and 140th Street. The light was a traffic signal of conventional type, suspended overhead at approximately the middle of the intersection.

To the second indictment the defendant entered a plea in bar, in which it was claimed that the defendant Martin had been theretofore in jeopardy for the same offense. To this plea in bar, the State demurred.

The question presented, therefore, is whether the killing of John Batori, with which the defendant is now charged in the second indictment, is the same offense as the killing of John Police, with which he was charged in the first indictment, and upon which he was, after trial by jury upon the merits, acquitted.

If the defendant violated the trafile code by driving through a red light, and by such unlawful act, unintentionally on his part, two people were killed, who were riding on the same motorcycle, did he violate §6307-18 GC twice? Or did he violate the section once?

There appears no reported case in Ohio answering precisely the question presented by the plea and the demurrer thereto.

The applicable constitutional provisions are:

Article I, Bill of Bights, Sec. 10, of the constitution of Ohio:

“No person shall be twice put in jeopardy for the same offense.”

Article V of the Amendments to the United States Constitution:

“Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”

Our opinion herein shall go no further than to determine whether an involuntary manslaughter of two persons attributable to a single violation of law, by the defendant, without any intent on his part to cause any injury, is a single or a multiple offense.

Certain Ohio cases may give some light on the principles to be applied on resolving the question.

In State of Ohio v. Hennessey, 23 Oh St 339, the Court had before it the question whether an indictment which charged in one count the stealing of certain property of A and in another count the stealing of certain property of B, the act of stealing being one transaction, the property being taken at the same time, charged one offense, or whether it charged two offenses.

In holding that but one offense was charged, Stone, J., said:

“The particular ownership of the property which is the subject of a larceny does not fall within the definition and is not the essence of the crime. The gist of the offense consists in feloneously taking the property of another, and neither the legal nor the moral quality of the act is at all affected by the fact that the property stolen, instead of being owned by one, or by two or more jointly, is the several property of different persons. The particular ownership of the property is charged in the indictment, not to give character to the act of taking, but merely by way of description of the particular offense. (Emphasis ours.)

In Bainbridge v. State, 30 Oh St 264, at 272, Day, C. J., said:

“While it is the right of every person not to be put in jeopardy more than once for the same offense, the principle shall be so applied as not to create an immunity for crimes which do not constitute the offense for which the criminal has once been exposed to punishment. * * * It is claimed on the authority of Price v. State, 19 Oh St 433, where it is held that ‘the true test, whether a plea of former acquittal is a sufficient bar in any particular case, is whether the evidence necessary to support the second indictment would have been sufficient to warrant a conviction on the first’. * * * Where but one crime has been committed, it may be regarded as a conclusive test. But where more than one crime of the same kind has been committed by the same person on the same day and under the same circumstances, it cannot be conclusively applied without making the conviction or acquittal of one offense operate as an immunity for another. * * * This rule has therefore always been subject to the fundamental rule equally ancient, that ‘the plea must be upon a prosecution for the same identical act and crime.’ ” “4 Blackstone Com. 336.” (Emphasis ours.)

In State v. Rose, 89 Oh St 383, at page 386, Wanamaker, J., said:

“Since we have no common law crime in the state of Ohio, we must look to the statutes for the declaration and definition of a crime. The constitutional provision uses the word ‘offense.’ Laymen and lawyers alike understand the word ‘offense’ to here mean simply a crime. Bouvier’s dictionary, ‘Words and Phrases Judicially Defined,’ says ‘an offense or crime in Ohio is an act prohibited by statute law, for the violation of which a penalty is provided.”’ (Emphasis ours.)

In Patterson v. State, 96 Oh St 90, this was a case in which a conspiracy was charged to steal automobiles at different times and from different owners.

The Court held each offense constitutes a separate and distinct offense, and an acquittal of one does not place him twice in jeopardy on the trial of the other.

In the course of the opinion, the Court said:

“Neither can the state carve a single and identical offense into two offenses and impose two punishments for one and the same offense. The state cannot blow hot and cold in criminal cases and occupy inconsistent attitudes by securing separate punishment for the same identical act, as was attempted in Griffith v. State of Ohio, 63 Oh St 294.”

In the Griffith case, the defendant pleaded guilty to embezzlement, and was charged and found guilty of obtaining property by false pretenses, each indictment growing out of the same offense.

In State v. Billotto, 104 Oh St 13,

“Here two ‘human creatures’ were killed by different bullets, necessarily fired at different times, though but an instant may have intervened, and the claim is therefore made that because the killings grew out of the same quarrel or controversy, they are the same offense.”

This case is relied upon in part by the state, but it is clear that in that case, there were two separate acts of shooting, the fact being that the defendant killed two brothers, shooting one with the one shot from a revolver, and shooting the other with another shot from the revolver, all in the same transaction.

In Duvall v. State of Ohio, 111 Oh St 657, the defendant was acquitted of murder while in the perpetration of a robbery, then was indicted for robbery growing out of the same transaction. The Court held there was no jeopardy, the third syllabus reading as follows:

“A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support the conviction upon one offense would be sufficient to warrant k conviction upon the other. A single act may be an offense against two statutes, and if either statute requires proof of an additional fact, an acquittal of one offense requiring proof of such additional evidence does not exempt the defendant from prosecution and punishment under the statute which does not require the proof of such additional facts.” (Emphasis ours.)

A person may by one act violate a state statute and a federal statute and be subject to punishment under each, where one act violates two statutes.

The question presented, however, in this matter, is, May a single act constitute two offenses against a single statute?

If, as in 23 Oh St 339, supra, “the gist of the offense consists in the feloneously taking the property of another,” it would seem to follow that the gist of the offense in §6307-18 GC would be in “unlawfully and unintentionally killing another.”

And if “the particular ownership of the property is charged in the indictment, not to give character to the act of taking, but merely by way of description of the particular offense,” it would seem to follow that the name of the person killed in the indictment under consideration would have like import.

If, as in 30 Oh St 264, supra, “the plea must be upon a prosecution for the same identical act and crime,” it would seem to follow that where there was but one act of violation of a law of the state, applying to the use and regulation of traffic, that there would be but one crime.

Again, if as in 89 Oh St 383, supra, “an offense or crime in Ohio is an act prohibited by statute law, for the violation of which a penalty is provided,” it would seem to follow that by a single act violating a single statute, but one penalty could be inflicted.

And if, as in 111 Oh St 657, supra, “a single act may be an offense against two statutes,” it would seem to logically follow that'a single act may not be two offenses against a single statute; which conclusion would be supported in 96 Oh St 90, supra, where it was said, “Neither can the state carve a single and identical offense into two offenses and “impose two punishments for one and the same offense.”

The fact that §6307-18 GC is found in the General Code under the Uniform Traffic Act, rather than under Chapter III, “offenses against the person,” of the Penal Code, as pointed out in counsel for defendant’s brief, would warrant the conclusion that the legislative intent was to provide punishment for the act of violating the traffic code, resulting in death. This, then, would be the gist of the offense, and the doctrine of 23 Oh St 339, supra, would control.

We must keep constantly in mind that criminal statutes are to be construed strictly, in favor of the accused and against the state, and questions of doubt, whether of fact or law, are to be resolved in favor of the accused.

Also, we cannot be concerned with private actions for unlawful death which may, of course, lie against the defendant by reason of each death. The state of Ohio as plaintiff alleges that the act done by the defendant was contrary to the statutes and against the peace and dignity of the state of Ohio.

The Court is unable to see by any process of judicial reasoning how one act in violation of one statute, resulting in the unintentional death, can constitute a breach of the peace and dignity of the state of Ohio more than once.

It would seem if the Legislature intended that a person should be punished as many times as the sum of persons killed by a single act of violation of the Uniform Traffic Code, that it would have made some provision for such circumstance. It does not seem reasonable to believe that the Legislature intended a method of punishment for a single act, in violation of a single statute, which might, in case of multiple deaths, carry punishment well beyond the expectancy of even a young person.

The Court has tried to determine whether it is possible for a situation to exist in law, where there could be two valid verdicts based on identical evidence, for violation of an identical statute, resulting in the unintentional death of two persons.

It is to be remembered that the record discloses that both John Police and John Batori were dead as result of the collision. Under §13437-3 GC, if there are two actions, as claimed by the State, they could be joined under separate counts in one indictment, as claimed by the state. The jury could therefore find the defendant guilty under one count and not guilty under the other count. Or, if tried separately, one jury could find the defendant guilty, and another jury find the defendant not guilty, each acting on identical evidence.

The law is but the application of generations of accumulated common sense. This result would not seem to come within the conception of that definition. The Court can see no reason for not accepting as law the statement of the Court in U. S. v. Marzani, 71 Fed. Sup. 615, when it was said:

“The test of double jeopardy through a multiplicity of counts, is whether a conviction on one count and an acquittal on another would bring about a contradiction on the face of the verdict.”

The Court believes that the genesis of the matter was well stated nearly a century and a half ago, by the Supreme Court of Vermont, when it said: (In State v. Joseph Damon, 2 Tyler (Vt.) 387, at 803:)

“It appears that defendant wounded two persons in the same affray, at the same instant of time, and with the same stroke. On regular complaint made, he has been convicted before a court of competent jurisdiction for assaulting, beating and wounding Frederick Miller, one of those persons. He stands here indicted for assaulting, beating and wounding Elias Doby, the other of those persons; and the defendant pleads in bar the former conviction which he alleges to have been for the same offense. The only question is whether the defendant has already been legally convicted of the offense charged in the indictment. Of this there can be no doubt; for it is apparent on the record that assault and battery charged in the indictment, and of which he was convicted by Mr. Justice Randall, were at the same place and in the same affray, and the wounds made by the same instrument and by the same stroke. It is not a question between either of the persons injured by the assault and battery; redress has been or may be obtained by them by private actions. But it is a question between the government and its subjects, and the Court are clearly of this opinion, that the indictment cannot be sustained. The indictment charges the defendant with having disturbed the public peace, by assaulting and wounding one of its citizens. For this crime he says he has been legally convicted by a court of competent jurisdiction. He cannot therefore be again held to answer in this court for the same offense.”

To the same effect is Commonwealth of Pennsylvania v. Ernesto et al., 93 Pa. Sup. Ct. 339, where the' facts were that in unlawfully operating a still, an explosion occurred, killing seven persons.

“Where each count of an indictment charged the killing of different persons by one and the same unlawful act, there is but one injury to the Commonwealth, and the court is without power to impose a sentence more severe than that provided for a single act of involuntary manslaughter.”

The courts of various jurisdictions where the matter has been discussed are not in accord as to what constitutes distinct and separate offenses arising from a single act.

In the briefs filed by able counsel for the state and the defense, the leading cases on each side of the question are cited and quoted from, and well discussed.

The cases are digested in 20 A. L. R. 341, Sec. III, at Page 346, under the title, “Former Jeopardy — different assaults.” This note is supplemented by annotation in 113 A. L. R. at page 222 to 226.

Also the cases on “automobile manslaughter” are digested in 172 A. L. R. at page 1062, under the title “Former jeopardy-automobile.” Section III, sub-title, “single act causing injury to or death of two or more persons.”

Reference is made to the notes in A. L. R. above referred to. The full text of the cases therein cited have been read by the Court, with a view of ascertaining the legal principle upon which the courts differ.

It appears that in some cases the courts do not distinguish between an act violating a law requiring no specific intent, and an act violating a law requiring specific intent.

It is quite possible that an act may be done resulting in death or injury to two or more, and be done with different intent as to each, as pointed out in State v. Wheelock, 216 Iowa 1428, (250 N. W. 617), or the statute being construed may differ materially from the statute in Ohio, as in State v. Freedlund, 200 Minn. 44 (223 N. W. 353). Or the court might try to save the state from a miscarriage of justice, as in People v. Allen, 368 Ill. 368, (14 N. E. 2nd, 397).

The reasoning of the courts holding that there may be as many prosecutions and punishments for involuntary manslaughter as there are persons killed, does not seem to this Court to be truly based upon established judicial principles or to be in line or in principle with the decisions in the state of Ohio.

The demurrer is therefore overruled.

Exceptions may be noted.


author: By HORNBECK, J.:

text:
    BURNETT, Plaintiff-Appellee, v. INDUSTRIAL COMMISSION, Defendant-Appellant.
    Ohio Appeals, Second District, Greene County.
    No. 510.
    Decided November 1, 1949.
    Paul L. Birt, L. R. Cousineau, Dayton, for plaintiff-appellee.
    Hon. Herbert S. Duífy, Atty. Geni., T. Vincent Martin and Hugh P. Brennan, Asst. Attys. Geni., Columbus, for defendant-appellant.
   OPINION

By HORNBECK, J.:

The appeal on questions of law is from a judgment on a verdict of a jury in favor of the plaintiff, holding that she, as the widow of James I. .Burnett, deceased, was entitled to share in the State Insurance Fund as provided by the Workmen’s Compensation Laws of Ohio.

Plaintiff’s decedent, while in the employ of the Hurst Sand and Gravel Company of Dayton, Ohio, a contributor to the State Insurance Fund, was on the 22nd day of May, 1943, injured in the course of his employment. Thereafter he shot himself, resulting in his death, and it was the ci__m of the plaintiff that his death was the result of an involuntary act committed while in a deranged state of mind, the result of his earlier accident, and that therefore, his death was proximately caused by this injury. This latter claim was the principal issue between the parties and was resolved in favor of the plaintiff by the verdict of the jury. Although there are four errors assigned, they are all directed to the narrow question at issue.

The court very properly charged the jury that for plaintiff to recover she must “show by a preponderance of the evidence that the accident which occurred to her decedent, to her husband, caused his mind to be deranged to such an extent that wholly without his own volition he performed the act which resulted in his death and that, therefore, his act was directly and proximately caused by the accident in 1943. This in accord with §1465-68 GC that recovery could not be had if the injury was purposefully self-inflicted.

The factual occurrences were developed fully upon the trial and medical experts for both parties testified at length for and against the claim of the plaintiff.

The contention of the appellant is that the shooting of plaintiff’s decedent could not have been the act of an irresponsible mind; that this was the cause was the hypothesis upon which the plaintiff based her case and upon which the trial judge submitted it to the jury. The plaintiff’s theory had support from the factual development and the jury accepted it as it had the right to do. It could well have found for the defendant had it elected to accept the testimony of the defendant’s witnesses. The effect of the evidence only being involved, we can not find either that the verdict is not supported by or that it is manifestly against the weight of the evidence.

The judgment will be affirmed.

Counsel for plaintiff, concluding their brief, assert that no real question has been presented by appellant on the appeal and that the judgment should be affirmed and cost taxed against the defendant, including a reasonable attorney’s fee and damages as provided by §12223-36 GC. This section may not be given application in favor of the appellee if the Appellate Court certifies in its judgment that there was reasonable cause for the appeal. Although we would be favorable to further allowance to counsel for appellee for services rendered for their client in this court, we can not say that there was not a reasonable ground for the appeal. As a matter of fact, counsel for appellant in the interest of his client, the State of Ohio, exercised sound professional judgment in prosecuting the appeal in view of the novel question presented and upon the diverse permissible inferences that could be drawn from the facts.

MILLER, PJ, and WISEMAN, J, concur.


author: By HILDEBRANT, J.: ROSS, PJ,

text:
    BEVIS, Plaintiff-Appellant, v. ARMCO STEEL CORPORATION, etc., Defendant-Appellee.
    Ohio Appeals, First District, Butler County.
    No. 961.
    Decided December 3, 1949.

      Robert E. Brooks, Louis C. Capelle, Robert E. L. Young, Cincinnati, for plaintiff-appellant.
    G. W. A. Wilmer, Frost & Jacobs, Middletown, for defendant-appellee.
   OPINION

By HILDEBRANT, J.:

Demurrer to the amended petition on the grounds,' that (1) the court had no jurisdiction of the subject-matter of the action; and (2) the amended petition did not state faots sufficient to constitute a cause of action, was sustained by the Common Pleas Court, and the judgment entered for the defendant appealed here oh questions of law.

Plaintiff labels his amended petition an action for deceit, alleging in substance that in November, 1928 he was employed by defendant as a bricklayer and continued in such employment until December, 1944, when ill health, due to silicosis, acquired in the course of such employment, forced him to discontinue such employment; that defendant is amenable to and has complied with the Workmen’s Compensation Law of Ohio, and that this action is not based on any of the provisions of that law; that he was given physical examinations previously, including X-Ray of the chest by defendant’s doctors, and on April 4, 1944 examined by a lung specialist, hired by defendant, including X-Ray of the chest.

The deceit alleged was that ‘ while these examinations revealed to the defendant that plaintiff had contracted silicosis, nevertheless the defendant concealed that fact from the plaintiff and falsely represented to plaintiff, both orally and in writing, that such examinations disclosed no evidence of silicosis, whereby plaintiff was induced to continue on the job, where he was exposed to harmful working conditions, resulting in the aggravation and acceleration of his. silicosis until he became totally and permanently disabled thereby, to his great damage.

The trial court correctly stated the sole question to be:— May a complying employer be held liable to respond in damages at common law or otherwise for any injury or disease or bodily condition occurring in or arising out of the course of the employment?

In proposing to amend Section 35 of Art. II of the Ohio Constitution, the legislature in its schedule contained in the joint resolution 110 O. Laws, 632, states the purposes of the amendment to be:

“Providing compensation for all accidents and diseases arising out of employment, providing additional compensation for employes where accident or disease results from failure to comply with specific requirements for the protection of lives, health and safety of employes, abolishing open liability of employers, and providing a fund for the investigation and prevention of industrial accidents and diseases.” (Emphasis added.)

It is, therefore, clear that the legislature in proposing, and the people in adopting the amendment, considered that the language thereof was sufficient to abolish the open liability of employers. That section, as amended, effective January 1, 1924, reads in part:

“For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen’s employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, determining the terms and conditions upon which payment shall be made therefrom. Such compensation shall be in lieu of all other rights to compensation, or damages, for such death, injuries, or occupational disease, and any employer who pays the premium or compensation provided by law, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease.”

Thereafter, in Mabley & Carew Co v. Lee, 129 Oh St., 69, the amended constitutional provision was held sufficiently broad to bar the action for damages based on an alleged violation of the laws relating to the employment of females and minors. The Court, at page 74, in contrasting the language of the amendment with former provisions refers to the legislative intent disclosed in 110 Ohio Laws 632, It is further noted at page 73 that former §1465-76 GC, providing for an election by the employee in the case of willful acts of the employer was considered, as by implication, repealed by the amendment effective January 1, 1924, and that thereafter, in 1931, the legislature expressly repealed that Section in 114 Ohio Laws, 26, 39, further evidencing the legislative intent and construction that the amendment had successfully abolished the open liability of employers.

However, in Triff, Admx. v. Foundry Co., 135 Oh St, 191, decided March 29, 1939, the Mabley & Carew case was expressly overruled. It was held in syllabus 2:

“The right of action of an employee for the negligence of his employer directly resulting in a non-compensable occupational disease has not been taken away by Section 35, Article II of the Constitution of Ohio, or by §1465-70 GC.”

As stated by this Court in Weil v. Taxicabs of Cincinnati, Inc., 68 Oh Ap, 277, at 279, an Act was passed May 25, 1939 as an emergency measure, apparently with the purpose of eliminating the open liability of employers disclosed by the Triff decision and §1465-70 GC, was amended to read:

“Employers who comply with the provisions of §1465-69 GC shall not be liable to respond in damages at common law or by statute, for any injury, disease or bodily condition, whether such injury, disease or bodily condition is com-pensable under this act or not, or for any death' resulting from such injury, disease or bodily condition, of any employee, wherever occurring, during the period covered by such premium so paid into the state insurance fund, or during the interval of time in which such employer is permitted to pay such compensation direct to his injured or the dependents of his killed employees as herein provided.
“No action against an employer, who has complied with the provisions of §1465-69 GC, to recover damages at common law or by statute for any injury, disease or bodily condition, or death resulting from any injury, disease or bodily condition of an employee arising out of his employment by such employer shall be commenced after 180 days after the effective date of this act.”

In Sebek v. Bronze Co., 148 Oh St, 693, the plaintiff sought damages for ptomaine poisoning, contracted after eating a meal furnished by the employer in its cafeteria as part of the contract of hire, and the Court, finding plaintiff had suffered an injury in the course of and arising out of the employment, stated:

“It follows, therefore, that by the provisions of §1465-70 GC, plaintiff is precluded from successfully maintaining a civil action for damages against the defendant.”

The State, ex rel. Engle, v. Industrial Com., 142 Oh St, 425, states in the first paragraph of the syllabus:

“The amendment of Section 35, Article II of the Constitution (effective January 1, 1924) extinguished all right of an injured workman to bring an action at law for damages against an employer amenable to and complying with the provisions of the Workmen’s Compensation Act; thereafter every injury sustained in the course of and arising out of his employment, except an injury purposely self-inflicted, was made compensable under the provisions of the Workmen’s Compensation Act.”

In contrasting the law before and after the 1923 amendment, effective January 1, 1924, the Court says at page 430:

“By this amendment, the right of the workman (or in case of death his legal representative) to maintain an action at law was extinguished even though the injury was caused by a complying employer’s violation of a lawful requirement ; after the effective date of the amendment, regardless of how the injury occurred, the rights of the workman (or in case of death his legal representative) were determined by the Industrial Commission under the compensation act. Thereafter the courts were without jurisdiction to entertain an action for damages for death, personal injury or occupational disease brought by or on behalf of a workman against his complying employer. That result was deemed to be advantageous to both workman and employer. The employer could not be subjected to an action which might result in his being compelled to pay both compensatory and punitive damages, and the workman (or in case of death his legal representative) was relieved from electing at his peril either to prosecute an action or apply for compensation. The net result was that for every injury sustained in the course of and arising out of the employment the workman was entitled to compensation, regardless of whether the injury was caused by unavoidable accident, by his own negligence, the negligence of a fellow workman, or the failure of his employer to comply with a lawful requirement. The only exception was an injury which was purposely self-inflicted.
“We deem it important that in original Section 35, Article II, the purpose was stated thus: ‘For the purpose or providing compensation to workmen and their dependents, for death, injuries or occupational disease * * *’; and although Section 35, Article II, was amended generally in 1923 the above quoted language is still found intact in the amendment.
“In our opinion the fact that the purpose clause remained unchanged indicates a clear legislative intent to provide compensation only, regardless of how the injury occurred.”

It was held in Lacher v. Roxana Petroleum Corp., 40 Oh Ap, 444:

“Where an employer complies with the Workmen’s Compensation Act, he cannot be made to respond in damages at the suit of an employee who is maliciously assaulted and injured in the course of his employment by a fellow employee. The claim is compensable and compensation is in lieu of damages (Article II, Section 35, Constitution — adopted 1923 — ).”

And, at page 446, the Court said:

“Under this constitutional provision as amended, injury by willful act of the employer is compensable, but cannot be made the basis of an action for damages.”

The California case of Sarber v. Aetna Life Ins. Co., 23 Fed (2d) 434, likewise an action for deceit, was a case where the employer’s physician performed an operation on plaintiff to remove a fragment of steel from his leg, but not only did not remove it, but falsely informed plaintiff it had been removed. The Court held the California Workmen’s Compensation Law to be the exclusive remedy.

As part of the mining laws of Ohio, §898-80 GC, gives a cause of action to employees against employers who violate the section or willfully fail to comply therewith, but exempts from the provisions of the act employers who have complied with the Workmen’s Compensation Law, providing that such employers not be liable to respond in damages at common law or by statute for injury or death of an employee wherever occurring.

Again, §1465-73 GC, denies to the non-complying employer the benefits of the act and deprives them of certain common law defenses.

These two above provisions further indicate the legislative intent to make the Workmen’s Compensation Law an exclusive remedy.

Taking the allegations of the petition as true at the time of the original deception, plaintiff was not prevented from bringing a common law action in damages, but only from filing a compensable claim with the Industrial Commission. The further deception whereby plaintiff was induced to continue working, whereby continued and harmful exposure resulted in aggravation of his original condition again only prevented the filing of á compensable claim and did not deprive him of a right of action in damages, because he never has had such a right.

The general rule is that aggravated damages caused by the malpractice of the doctor involved are the natural and proximate result of the original injury. This rule was applied to a Workmen’s Compensation case in Anderson v. Libby Glass Mfg. Co., 6 Abs., 400, citing Loeser v. Humphrey, 41 Oh St, 378.

We know of no instance since the 1923 amendment where the courts have permitted a common law action under any theory for a compensable claim.

Prior to the 1923 Amendment, an election of remedies being afforded, election to file a claim for compensation was held to bar an action for damages. It appears from the report of State, ex rel. Bevis v. Coffinberry, 151 Oh St, 293, that plaintiff herein has invoked the jurisdiction of the Industrial Commission by filing occupational disease claim No. O. D. 4064-22, seeking compensation for the same disabilities claimed in this action, and sought to direct the action of the Commission by mandamus in that suit. It, therefore, appears that plaintiff is and ought to be barred and estopped from prosecuting the instant case.

From the foregoing it is clear that the constitution and laws intend and the Supreme Court in State, ex rel. Engle v. Industrial Commission, 142 Oh St, 425, and Sebeck v. The Cleveland Graphite Bronze Co., 148 Oh St, 693, has so construed them, that the open liability of employers is abolished and in every case where the injury, disease, or bodily condition occurred in or arose out of the employment, no matter how incurred, the Workmen’s Compensation Law is the exclusive remedy and such condition is either compensable under that law or not at all, and that no action of any kind may be brought against a complying employer therefor, and whether or not such injury, disease, or bodily condition is compensable under the law or not.

In the recent case of John O’Black v. Ohio Steel Foundry Co., No. 978 on the docket of the Court of Appeals for the Third Appellate District of Ohio (certification since denied by the Supreme Court) wherein the action was predicated on fraud and deceit for damages for concealment resulting in aggravation of an existing pathelogical condition, that court held that no action at common law, irrespective of the form, is maintainable under the present law, under material facts identical with the case at bar.

MATTHEWS, J, not participating:

ROSS, PJ,

concurring:

I concur with my associate that the judgment of the trial court should be affirmed. I also concur in his opinion, however, with the distinct reservation that there are still certain common law actions which an employee may maintain against an employer which are not abrogated by the provisions of the Workmen’s Compensation Act. It seems clear that such actions as libel, slander, malicious prosecution, false representations, and an action for fraud may still be maintained, although the relationship of employer and employee exists, and the facts sustaining such cause of action might involve the incidents of employment.

In the instant case, a cause of action for false representations is stated in part. The difficulty with the case of the plaintiff is that the damages alleged fall within the classification definitely provided for by the Workmen’s Compensation Act, and the plaintiff, therefore, fails to allege other damages for which the law now recognizes a remedy by compensation.

The injury charged, as the result of the defendant’s fraud, is the exact injury for which he is allowed and did claim compensation under the Workmen’s Compensation Act.

The law does not furnish a double satisfaction for a wrong. The plaintiff claims in his pleading that he was induced to continue in his employment by reason of the fraud of his employer and suffered certain injuries thereby. Those injuries are the ones for which he claimed and was awarded compensation. If he were permitted to recover in the instant action, a double satisfaction for the same injury would follow.

I also wish to be understood as excluding from the rule of abrogation a situation where, by reason of the fraud of the employer, the employee is caused to forego his remedy under the Workmen’s Compensation Act. The damage in such case would not be met by compensation under that Act. There would not, as in the instant case, be a double satisfaction.


author: Per CURIAM: By THE COURT:

text:
    AXELROD, Plaintiff-Appellant, v. EYRING, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21513.
    Decided December 5, 1949.
    Morton M. Stotter, Cleveland, for plaintiff-appellant.
    A. L. Kerns, Cleveland, for defendant-appellee.
    (GUERNSEY, PJ, MIDDLETON, J, of Third District: DOYLE, J, of Ninth District sitting by designation in Eighth District.)
    Decided December 14, 1949.
   OPINION

Per CURIAM:

In consideration of the evidence, pleadings and papers in this case, on appeal from the Municipal Court of the City of Cleveland, the members of this court are of the unanimous opinion that there is no error shown, prejudicial to the rights of the appellant.

The judgment must therefore be and is affirmed. Exc.

GUERNSEY, PJ, MIDDLETON, J, DOYLE, J, concur.

ON APPLICATION FOR REHEARING

No. 21513.

By THE COURT:

Application for rehearing .denied.

In his petition plaintiff predicated his cause of action on a contract in writing entered into between plaintiff and defendant, but as shown by exhibit attached to the petition, there was no contract in writing between plaintiff and defendant, but merely an agreement in writing by defendant to pay certain amounts for advertising. This agreement of the defendant was on a printed form at the top of which appeared the title “Sportsmen’s Show” and there is no reference whatever in or on the printed form or in the printed agreement, to the plaintiff.

Plaintiff alleged in his petition, and plaintiff’s counsel in his trial statement asserted plaintiff furnished defendant advertising pursuant to this agreement, but there is no allegation in the petition or assertion in plaintiff’s trial statement indicating that plaintiff and defendant entered into the written agreement upon which the suit is predicated.

If plaintiff had any contract with defendant it was by way of an oral agreement on the part of plaintiff to furnish advertising to defendant and defendant’s written acceptance of that proposal, but neither the petition of plaintiff nor plaintiff’s trial statement shows the existence of such an agreement.

The above recitals are the minutes of this court and a journal entry in conformity therewith must be furnished by counsel for the successful party, in accordance with the rules of this court.

GUERNSEY, PJ, MIDDLETON, J, DOYLE, J, concur.


author: By MATTHEWS, J.:

text:
    PETERMANN, Plaintiff-Appellant, v. TEPE et al., Defendants-Appellees. PETERMANN, Plaintiff-Appellee, v. TEPE et al., Defendants-Appellants.
    Ohio Appeals, First District, Hamilton County.
    Nos. 7148, 7155.
    Decided December 5, 1949.

      Petermann, Calhoun & McPherson, Cincinnati, for Wm. B. Petermann.
    Joseph W. Shea, Jr., Norwood, for R. Edward Tepe and City of Norwood.
   OPINION

By MATTHEWS, J.:

These two appeals are from a declaratory judgment. The general conclusion of the Court was that the defendant, the City of Norwood, was entitled to recover from the plaintiff, and rendered judgment against him. As a basis for that judgment, the Court made certain declarations as to the rights of the parties. Neither party was satisfied with these declarations of rights, and both appealed. The appeals were presented together for consideration by this court.

The facts upon which a declaration of rights was asked are presented in the pleadings and a stipulation of facts. From them we learn that the plaintiff is and was in 1947, when these incidents occurred, a duly admitted and practicing attorney in the State of Ohio, including the City of Norwood, a municipal corporation in said state. In April, 1947, as alleged in his amended petition and admitted in defendant’s answer “the Solicitor and the service director of the City of Norwood, Ohio, acting in their official capacities, retained for the sum of Fifteen Hundred ($1500.00) Dollars, this plaintiff to perform certain legal services for the City of Norwood, Ohio, which services were of such a nature as to immediately require the skill,, experience and attention of an attorney-at-law.” The plaintiff fully performed the services for which he was retained, consisting of consultations and negotiations with officials of the City of Cincinnati, appearances before the Council of said City, drafting ordinances granting rights of way, negotiating with and securing rights of way for water mains from the Board of Commissioners of Hamilton County, Ohio, the Pennsylvania and B. & O. Railroads, and examination of title to certain described real estate. He alleged that during the entirety of 1947 he was a member of the Civil Service Commisison of the City of Norwood. He also alleged that the Auditor of the State of Ohio made an audit of the accounts of the City of Norwood in 1948, and in his report found that because of the plaintiff’s membership of the Civil Service Commission during his employment aforesaid, such employment was in violation of §3808 GC, and that plaintiff should refund the amount which had been paid to him. The plaintiff also alleged his conclusion that §3808 GC had not been violated and that with the filing of the petition he was paying to the Clerk of Courts $1500.00, to be held by him pending the decision in this case, which amount was in fact paid to the Clerk and is now held by him.

The plaintiff prayed for a declaration that he had not unlawfully performed the aforesaid services and that the defendant had not unlawfully paid him therefor, and that the finding of the Auditor of the State of Ohio was not well founded in law.

The defendant by answer admitted that plaintiff is and was at the times alleged a duly admitted and practicing attorney-at-law, that the City of Norwood was a municipal corporation, that the Solicitor and Auditor of the City of Nor-wood, “acting in their official capacities, retained the plaintiff, for the sum of $1,500.00, to perform” the services described in the amended petition, that such services were of such a nature as to require at once the skill, experience and attention of an attorney at law, that during all of 1947 the plaintiff was a member of the Civil Service Commission of the City of Norwood, that the Auditor of the State of Ohio made the audit and finding as alleged by the plaintiff, that the plaintiff had deposited $1,500.00, as alleged by him.

The defendant joined in the prayer for a declaration of rights and prayed for such relief as the facts entitled it to.

The stipulation added very little to the admitted allegations of the pleading. It was stipulated that the plaintiff fully performed his services as Civil Service Commissioner during 1947, that his duties as Civil Service Commissioner had no relation to the services performed under his contract of employment and that there was no incompatibility between the two services.

The stipulation also shows that the question of the legality of the plaintiff’s employment was raised before this expenditure was made, and finally, in response to a request of the City Auditor, the plaintiff addressed and delivered' a letter to him, in which the plaintiff agreed to pay any judgment that might be obtained against the City Auditor by reason of his payment of the money, and, thereupon, apparently, the payment was made.

The trial court found, that:

“1. The money paid the plaintiff for his services as attorney in the amount of $1500.00 by the City of Norwood was a fixed compensation.
“2. The Service Director of the City of Norwood did not have the authority to employ the plaintiff and fix the plaintiff’s compensation, therefore, the City of Norwood unlawfully compensated the plaintiff in the sum of Fifteen Hundred ($1,500.00) Dollars.”

Upon these findings, the court rendered judgment for the defendant and ordered the Clerk of Courts to pay to it $1,500.00 that had been deposited with him.

It will be observed that the trial court made no finding as to whether the plaintiff’s employment violated §3808 GC, but did find that the City Auditor had no authority to fix compensation and on that finding rendered judgment for the City of Norwood for $1,500.00.

While the plaintiff stands in the position of one in doubt as to his rights, and is, for that reason, seeking to have the court declare his rights, his payment of the amount of money involved into court and the prayer of the defendant for relief, places the parties and the subject-matter within the jurisdiction of the court, so that the court is not limited to a mere declaration, but could, and did proceed to grant the final relief, to which the right, as found, entitled the parties.

Furthermore, the stipulated fact that the plaintiff, as a condition to receiving payment, had agreed to indemnify the City Auditor, require us to treat the case as though the payment had not been made and the plaintiff were seeking to enforce his claim for payment against the defendant. It is, therefore, unnecessary to consider the effect of a voluntary, unconditional payment upon the rights of the parties.

We will, therefore, consider whether under the law the plaintiff could have recovered judgment against the defendant and by that test determine whether he has a right to retain the money paid him under the circumstances of this case.

(1) It is contended that this case falls in the category of the same person occupying two public offices, without any inconsistent duties against which, it is contended, there is no legal ban. Assuming the law to be as contended, it can have no application, unless there exists two offices. It, the contention, therefore raises the question of whether the plaintiff occupied two public offices. It is clear that the position of Civil Service Commissioner is a public office, but how stands the position of the plaintiff under his asserted employment by the service director? It is alleged that the plaintiff was “retained for the sum of Fifteen Hundred ($1,500.00) Dollars * * * to perform certain legal services for the City of Norwood.” Now does this disclose the existence of an office to which the plaintiff had been appointed? We think not. Rather it shows that the Service Director contracted for the plaintiff’s services and that the effect, if legal, would have been to create the relation of employer and employee. This temporary employment for a single transaction has none of the attributes of a public office. We have examined the authorities on the distinction between a public officer and a public employee, but are of the opinion that an extended discussion of the distinction is unnecessary. Many of the authorities can be found in the annotation to the case of Martin, Atty. Genl. v. Smith, State Treasurer, 140 A. L. R., 1063, at 1076, et seq. (239 Wis. 314, 1 N. W. (2d) 163) in which case it was held that the President of the University of Wisconsin was an employee and not a public official. And in the annotation to the case of State, ex rel. v. Skinner, decided by our own Supreme Court (128 Oh St, 325, 191 N. E. 127) and reported in 93 A. L. R. 331, and annotated commencing at 333. See, also: 32 O. Jur., 856, et seq.

(2) Assuming next that the service director could be and had been authorized to employ the plaintiff, could he be authorized to fix his compensation? We believe this question is answered by the statute itself. By §4214 GC, it is provided that:

“Except as otherwise provided in this title, council, by ordinance or resolution, shall determine the number of officers, clerks and employes in each department of the city government, and shall fix by' ordinance or resolution their respective salaries and compensation, and the amount of bond to be given for each officer, clerk or employe in each department of the government, if any be required. Such bond shall be made by such officer, clerk or employe, with surety subject to the approval of the mayor.”

It will be observed that the language is that the council shall fix the compensation of each employee in each department of the municipal government. We have been referred to no statute authorizing the service director to fix the compensation of the employees in his department — and have found none.

Nor have we been referred to any authority holding that the municipal council could delegate to the service director the authority to fix the compensation of employees in his department — and we have not found any such authority. Such power can not be delegated.

We, therefore, find that the trial court did not err in its declaration or finding that the service director had no authority to fix the compensation of the plaintiff for the services rendered.

(3) Did the plaintiff’s occupancy of the office of civil service commissioner disqualify him for this employment?

The Auditor of the State of Ohio placed his finding for recovery on the provisions of §3808 GC. That section is in part as follows:

“No member of the council, board, officer or commissioner of the corporation, shall have any interest in the expenditure of money on the part of the corporation other than his fixed compensation.”

By later provision, it makes the person violating it liable for any money received contrary to its provisions.

It was argued that the “fixed compensation,” mentioned in this section related to compensation' paid in violation of the section. We think it obvious that by the use of this phrase the legislature intended to make it clear that §3868 GC, did not prevent the official from drawing his salary. The whole intent was and is that he should not receive anything beyond that from the corporation in any way.

We find no prejudicial error in the judgment and the same is, therefore, affirmed.

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


author: By THE COURT.

text:
    MODERN ROOFING & SIDING COMPANY, Plaintiff-Appellee, v. BORING et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4305.
    Decided June 27, 1949.

      Russ Bothwell, Columbus, for Don Littell, Appellee.
    Joseph J. Poorman, James M. Fogle, Columbus, for plaintiff-appellee.
    Benoy & Sebastian, Columbus, for Harold R. Boring and Dorothy Boring, defendants-appellants.
    Cole & Cole, Springfield, Fred R. Place, for The Springfield Saving Society of Clark County, defendant-appellant.
   OPINION

By THE COURT.

Submitted on motion by Don Littell, purported appellee, seeking an order dismissing the appeal for the reason that the same is not an appealable order. The notice of appeal is directed to the judgment of April 19, 1949, which overrules a motion to set aside the proceedings previously had in the case and to vacate the default judgment. This is a final order from which an appeal may lie. It is stated in 2 O. Jur. Section 110, p. 225:

“A distinction was also drawn by the Ohio courts between orders sustaining motions to vacate or to set aside judgments and orders overruling such motions, with respect to finality. The principle was laid down, and followed with consistency in Ohio, that an order denying or overruling a motion to vacate or to set aside a judgment was a final order which might form the predicate for an appeal on questions of law, formerly error proceedings.”

The motion will be overruled.

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


author: By WISEMAN, J.

text:
    APPEAL ON QUESTIONS OF LAW
    No. 4305.
    Decided October 13, 1949.
    Joseph J. Poorman, James M. Fogle, Columbus, for plaintiff - appellee.
    Benoy <& Sebastian, G. W. Fais, Columbus, for defendants-appellants.
    Russ Bothwell, Columbus, for Donald Littell, defendant-appellee.
    Fred R. Place, Columbus, for The Springfield Saving Society of Clark County, defendant-appellee.
   OPINION

By WISEMAN, J.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin County, Ohio, overruling a motion filed during term to vacate and set aside a default judgment in an action to foreclose a mechanic’s lien.

Evidence was taken at the hearing on the motion which disclosed that the defendants-appellants retained counsel to make defense to the action but that counsel never appeared of record in the case and failed to make any defense whatsoever. The record also supports the statement made in appellants’ brief as follows: “The record clearly shows that the appellants herein called their attorney’s attention to every significant fact and development in the case as time progressed.” The record shows that the property was sold to an innocent purchaser at sheriff’s sale, the sale confirmed, the consideration paid, deed delivered and the proceeds of the sale distributed before the motion to vacate was filed.

The trial court found that the appellants’ attorney was negligent and, also, that the appellants were negligent in failing to act after they had knowledge of the negligence of their attorney in failing to make defense.

On a motion to set aside a default judgment during term the trial court is required to exercise a sound discretion. Vol. 23 O. Jur., p. 1177, Sec. 1065. Whether a sound discretion has been exercised must be determined by the facts in each particular case. . A broader discretion should be exercised where the matter involves only the parties to the litigation than where the rights of an innocent third party are involved.

A reviewing court will not reverse the judgment of the trial court in such case in the absence of a showing of an abuse of discretion. First Natl. Bank v. Smith, 102 Oh St 120, 122, 130 N. E. 502; Davis v. Teachnor, 41 Abs. 199, 53 N. E. (2d) 208; Vol. 23 O. Jur. p. 1178, Sec. 1067. Abuse of discretion will not be presumed but must be shown by the evidence. Vol. 23 O. Jur., p. 1179, Sec. 1068; Smith v. Smith, 25 Abs 239, 157 N. E. 768. The meaning of the term “abuse of discretion” as applied in this case connotes more than error of law or judgment; it implies,an unreasonable, arbitrary or unconscionable attitude on the part of the trial court. Steiner v. Custer, 137 Oh St 448, 31 N. E. (2d) 885.

Under the facts appearing in the record this court cannot conclude that the trial court abused its discretion.

A reviewing court will not reverse the judgment of the trial court in refusing to set aside a default judgment for foreclosure of a mechanic’s lien on the real estate' of the judgment debtors, after sale and confirmation, and the delivery of the deed to a bona fide purchaser who paid the sale price therefor, which had been distributed, on the ground of the negligence of counsel for the judgment debtors who failed to appear of record and to make defense, where it also appears that the judgment debtors had knowledge of every step of the proceedings and knew of the negligent conduct of their counsel and were informed that their property had been appraised and advertised for sale and that the sale would take place on a date certain. In a hearing on a motion to vacate a default judgment during term where the rights of an innocent third party are involved the court is required to weigh the equities in the case.

While the trial court in a hearing on a motion to vacate and set aside a judgment during term may require the defendant to show a valid defense (Bellows v. Bowlus, 83 Oh Ap 90, 82 N. E. (2d) 429) the court in the exercise of a sound discretion may determine the matter on the basis of whether the defendant has otherwise shown'good cause to vacate the judgment. In the case at bar the appellants sought to introduce certain testimony relative to the merits of the controversy. The trial judge rejected this evidence. The appellants then proffered the answers. The answers proffered would constitute a valid defense. However, on the state of the record the trial court did not commit reversible error in rejecting evidence on the merits of the foreclosure proceedings offered by the appellants.

Finding no error in the record prejudicial to the appellants the judgment is affirmed.

MILLER, PJ, and HORNBECK, J, concur.


author: By WATTERS, J.

text:
    AIUTO, Plaintiff, v. AMERICAN CASUALTY COMPANY, Defendant.
    Common Pleas Court, Summit County.
    No. 171181.
    Decided December 17, 1949.
    Wm. Creme, Akron, for plaintiff.
    Wise, Roetzel, Maxon, Kelly & Andress, Akron, for defendant.
   OPINION

By WATTERS, J.

The plaintiff brings this action to have the court determine plaintiff’s rights under a burglary loss policy issued by the defendant, he claiming he had a burglary while said policy was in force.

Plaintiff does not ask that the loss be determined, and the summons does not set up the amount for which judgment will be taken if the defendant fails to answer, etc.

The declaratory judgment act is silent as to whether or not money judgments can be rendered in a declaratory judgment suit.

Sec. 12102-9 GC does set forth that issues of fact may be determined as in civil actions, which would certainly permit the impanelling of a jury to decide the issues of fact if in dispute.

However I do not believe the act contemplates any right, in the court to decree a money judgment.

In the case at bar under the summons, etc., where no money claim is set forth, suppose the defendant failed to. answer. Surely the court could not render a money judgment in default but could only declare the rights under the. policy.

The defendant here demurs on the grounds that the petition shows on its face that a declaratory judgment will! not terminate the controversy, and (2) that to entertain! this action, will result in unnecessary litigation, that is,, two trials. In other words if the court determines the rights favorable to plaintiff, that the policy covers any loss, there would still be the suit to recover for the loss.

It is a very interesting question. The court has read and studied 141 Oh St, 489, 132 Oh St, 137, 57 Oh Ap, 303, 152 Oh, St, 287, and other cases.

Judge Zimmerman’s comment in 141 Oh St at page 500, seems obvious. Certainly if there is another case pending, covering the same parties and issues, then a suit in declaratory judgment should be refused.

The opinion proper by Judge Matthias on page 498 holds as follows: “It is quite generally held that the jurisdiction of the court in declaratory judgment actions is not limited to cases in which no other remedy is available.” (Emphasis by this court.)

The court however goes further and cites with approval 125 Neb., 210 — that “proceedings for a declaratory judgment will not be entertained where another equally serviceable remedy has been provided for the character of the case in hand.”

The court then cites 134 Oh St, 511, which case is discussed fully on page 496 and 497.

Judge Washburn, in 51 Oh Ap, at page 507, wrote: “We1 are clearly of the opinion that it was not the intention of the legislature to require courts to afford a • remedy under-such ‘new procedural device or vehicle of relief’ in all cases. where sought in preference to well established procedure of courts in this state.”

This case was decided in February, 1936, before many of the Supreme Court cases cited were decided. Also there was another action pending against its assured for damages for wrongful death when the plaintiff, the United States Fidelity and Guaranty Company filed its action for declaratory judgment bringing in the plaintiff administrator in the death case, the defendant, Savoy Grille, in the death case, and The Renner Brewing Company.

I have a feeling that had it commenced its action first for declaratory judgment on the issue of whether or not its policy covered the situation, the decision might have been otherwise.

However, if all that was involved here was the question on the policy and as to the direct personal loss to plaintiff due to the claimed burglary, where another lawsuit would be necessary to collect the loss or damage, the court would sustain the demurrer, and plaintiff would be compelled to bring the regular contract suit on the policy for money, in which all questions could be determined.

However this case is complicated by the fact that plaintiff was in the dry cleaning business. Many of his customers’ suits, etc., he claims were taken in the burglary. The company refuses to pay on the grounds that the policy does not cover such losses. The plaintiff is at sea. He is threatened with separate lawsuits by customers who have lost their garments. He would be at a loss to know whether he should settle the claims or stand trial on them. If he settles, the defendant insurance company might claim he had paid too much, etc. Having to face suits will naturally anger his customers and cause loss of business. If it is determined that the policy covers the loss to customers, and any other questions that should be and could be determined in the declaratory judgment, then the insurance company should step in and take over the responsibility of adjustment and settlement of these claims. Otherwise plaintiff will be faced with a multiplicity of suits by customers, the necessity of defending them, of having counsel, etc. At least he should know where he stands, and I think the law contemplates just such use of the declaratory judgment statute wherein a speedy determination may be had of plaintiff’s rights under the policy.

Also the insurance company does not know where it stands either. If the policy covers such loss, it should know it and get busy thereafter and give the plaintiff that service which he paid for. If the court decides otherwise, then plaintiff cannot recover for such items.

The courts hold that the act should be liberally construed and largely at the discretion of the court.

I believe the case at bar comes clearly under the act.

The demurrer will be overruled with exceptions. Defendant to answer by January 7, 1950.


author: By ROSS, PJ.: MATTHEWS, J.

text:
    JORDON, Plaintiff-Appellee, v. BROUWER, etc., et, Defendant-Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 7139.
    Decided October 24, 1949.
    Andrew O. Haefner, Paul J. Hengge, Cincinnati, for plaintiff-appellee.
    Robert G. McIntosh, Cincinnati, for defendants-appellant.
   OPINION

By ROSS, PJ.:

This is an appeal on questions of law from a judgment of the Municipal Court of Cincinnati, in favor of the plaintiff. Trial was to the court without the intervention of a jury.

A motion to dismiss the appeal for failure to file the briefs of appellant in time was overruled.

The action was instituted against John A. Brouwer, a§ an individual and partner in the Cascade Products Co., and Dwight Curley as an individual and partner in the Cascade Products Co., and the Atlas Distributing Company, successor to such Cascade Products Co. John W. Brouwer was dismissed by the court. Otherwise, judgment was rendered generally for plaintiff.

In the bill of particulars, it is alleged that Brouwer and Curley were partners doing business under the name of “Cascade Products,” “selling and distributing through distributors what is known and hereinafter referred to as Cascade Anti-Freeze,” that the Atlas Distributing Company is successor to Cascade Products, and assumed all indebtedness of such latter organization; that plaintiff purchased a quantity of such Anti-Freeze from an authorized distributor of Cascade Products, under an express warranty printed on the labels of cans containing the liquid; that such warranty consisted of a statement upon such labels: “Glycerine Base AntiFreeze, Laboratory Tested and Approved” and “we immersed speciments of copper, iron, steel, rubber from a hose and synthetic rubber, in a solution made by diluting the antifreeze compound submitted with an equal volume of tap water for ten days at 140° F. No corrosion or other change in condition was visible on any of the specimens at the end of the test.”

In the bill of particulars it is further alleged plaintiff took precautions found in instructions for use of the liquid suggested by defendants on such labels and, “plaintiff further says that relying upon the express warranty that said Cascade Anti-Freeze solution was safe and harmless for use in the raditor of an automobile and but for which he would not have so purchased and used said Cascade Anti-Freeze solution, when on the contrary, and the truth be known, said Cascade Anti-Freeze solution was inherently dangerous and destructive to plaintiff’s automobile, and a few days after the installation of the Cascade Anti-Freeze solution, plaintiff discovered that said Cascade Anti-Freeze solution was not as warranted; that it did cause corrosion, stoppage and damage to the interior of the motor, radiator, hose connections, etc.”

The statement of defense was in effect a general denial.

The label on one of the cans was introduced in evidence and contained only the following statements:

“CASCADE
GLYCERIN BASE, ANTI-FREEZE
Laboratory Tested and Approved
Laboratory Report
SMITH EMERY COMPANY
Chemical Engineers and Chemists
Los Angeles, Calif.
Freezing Point_Minus 60° F
Initial Boiling Point _210° F
‘We immersed specimens of copper, iron, steel, rubber from hose, and synthetic rubber, in a solution made by diluting the anti-freeze compound submitted with an equal volume of tap water for ten days at 140“ F.
‘No corrosion or other change in condition was visible on any of the speciments at the end of the test.’
CASCADE PRODUCTS CO.
Cincinnati, Ohio
Licensed under patents of Nyla Manufacturing Co.
“A PERMANENT TYPE ANTI-FREEZE
A chemical antifreeze compound which possesses the properties that have been declared essential for a safe antifreeze. Safe by actual road and laboratory tests when used as directed. Will not evaporate.
PREVENTS RUST.
Will mix readily with water but works best if cooling system contains only CASCADE
CONGEALING POINTS OF CASCADE ANTI-FREEZE
Hydrometer Gallons Gallons
Readings Safe to Cascade Water
19-20 Plus IF 1 Gal. 2 Gals.
14-16 “ 15F y2 Gal. 2 Gals.
26-27 Minus 60F 2 Gals. 2 Gals.
32-32.6 “ 12F 2 Gals. 1 Gal.
Clean and flush radiator and check all hose connections, head gaskets, heater connections, etc, for radiator full at all times. Replace evaporation with water and leakage with CASCADE.
CASCADE PRODUCTS CO.,
Cincinnati, Ohio.”

From the evidence contained in the bill of exceptions, it appears that plaintiff purchased the liquid from the operator of a garage and filling station, who, before putting the liquid in the radiator of plaintiff’s automobile, thoroughly checked all connections, which would be exposed to the liquid.

After operating the car for two days, it ceased to run, and upon examination at a garage, it was found that the liquid placed in the radiator had found its way into the compartment in which the oil used to lubricate the motor is contained (crank case), and that only a “gray substance” remained therein, and that when water was placed in the radiator, it flowed through into the crank ease, that the water pump was leaking, and “everything froze up on me.”

Some repairs were made on the motor and plaintiff again drove the car “a couple of days” and “I blew a head gasket.” Again, repairs were made on the motor, and the head was “planed down”. According to plaintiff’s statement: “It run all right for a day or two and I busted a piston, and they fixed it up, and in a few days I busted a head gasket, and it went on like that. They put in new pistons and bearings, and altogether I think-they put seven gaskets on and planed the head down twice.” Plaintiff further stated: “I went in the first of October and they said they couldn’t do anything more with the motor. It was twisted and I sold it.”

Plaintiff complained to Curley, who said: “If you have complaints, see us, we’re protected by Lloyds of London.”

Plaintiff had purchased the car in 1947, a used 1940 Plymouth, containing a new motor. Fresh oil was placed in the motor the day the fluid was put in the radiator. Plaintiff further stated that upon examination after use of the Anti-Freeze, the radiator was found to have “a million pin holes in it” and leaked when the motor ran. The hose connections were eaten away. A garage mechanic who worked upon the car after the anti-freeze solution was placed in the radiator testified:

“A. The antifreeze had taken something out of the metal and let the water and the anti-freeze solution seep through down to the pan diluting the oil, and that in turn seized the motor and caused all the trouble.
“Q. Now, your inspection and check on that and from your experience you found that the condition of the car was due to what?
“A. Due to the solution of the antifreeze that was in the car.
“Q. And it affected those parts how with reference to the metal?
“A. Well, it seemed to just eat the gaskets up and in that way leave the solution go into the oil.
“Q. Would it eat into the metal.
Mr. McIntosh: Objection.
The Court: Sustained.
“Q. What did you find its effect on the metal to be?
“A. To the naked eye you couldn’t see any effect on the metal, but I believe that something was taken out of the metal — some form of substance — iron or steel or something was taken out by the active solution that leaves the water seep through.”

And, again:

“Q. What did you find with reference to the condition of the metal after the solution was in?
“A. Weli, the block was distorted and the head was distorted in such a way that it would leave the water or solution through.
“Q. What did you find with reference to the oil in the crank case?
“A. Well, it was a gray muddy color.
“Q. Was there any oil present?
“A. What?
“Q. Was there any oil present?
“A. Very little.
“Q. What did you find with reference to the condition of the valves?
“A. The valves and stems were all seized to the valve guides.
“Q. Would they have the play that is customary in the valve?
“A. No.
‘‘Q. What was their condition with reference to play?
“A. With reference to play?
“Q. Play. The ability to move.
“A. Well, they were sticking.
“Q. They were sticking. Prom your inspection and repair on the car, what parts were affected on the car?
“A. Well, the pistons, the rings, bearings, the cylinders, the valve guides, hoses, gaskets, the brass bushings that pin the ride on, and the radiator.
“Q. Now, did that car come in repeatedly over a period for repairs?
“A. Yes, sir.”

The defendants called a chemist who stated he had tested certain solutions for the defendants, but there is no evidence that the particular solution used by plaintiff had been tested. On the other hand, the chemist stated that cans of the fluid were selected at random from that on sale by the defendants and that such tests showed it was safe for automotive use and that the defendants were so advised. Defendant Brouwer testified that before the right to manufacture was purchased from Nylon Manufacturing Co. the fluid was tested and found to be harmless for automotive use, that after purchase of rights each batch was tested for safety in such use and all such tests showed safety, and that defendant had used the fluid in his own car without harm to the motor.

This action is predicated solely upon the premise of a breach of an express contract or warranty.

There is no privity between the plaintiff and the defend-ants, and such privity is necessary to sustain an action based upon an express warranty. Sec. 306, “Sales”, Vol. 46 Am. Jur., p. 487. The plaintiff is a sub-purchaser through a dealer, an operator of a filling station, who purchased from a distributor of the product, and this is an action for injury to plaintiff’s chattel. As noted in this section, there are exceptions to the rule of privity, where injury results to the person of plaintiff.

Liability has been sustained under the modern rule, even where the injury is to property, where the action is predicated upon the negligence of the manufacturer, which is shown to be the proximate cause of injury to a sub-purchaser’s chattel. Sec. 824, “Sales” Vol. 46 Am. Jur., p. 946; See 164 A. L. R. 593; Sec. 497, Torts, Negligence, Restatement of the Law; see, Sec. 395 Id. See, also, 1948 Restatement of the Law, Sec. 497, Torts, p. 763. See, also: Sicard v. Roux Distributing Co., 133 Oh St, 291, at p. 293.

The instant action is not based on negligence, and even if it were, no negligence is shown in the defendants.

It, therefore, appears that, although the plaintiff might have a cause of action, he stated none in this action, and proved no facts upon which recovery might be had against the defendants. Judgment reversed, and judgment must be here rendered for the defendants.

ROSS, PJ, & HILDEBRANT, J, concur in syllabus, opinion & judgment.

MATTHEWS, J.

Dissenting:

In the bill of particulars is set forth that the defendant expressly warranted that the anti-freeze “was safe and harmless for use in the radiator of an automobile and but for which he would not have so purchased and used said Cascade Anti-Freeze.” The evidence proves the allegation, particularly in view of §8392 GC, which provides that any affirmation of fact made to induce the buyer to purchase and upon which he relies, is an express warranty.

The defendant knew that this anti-freeze would be used in the radiator of automobiles. That was the very purpose for which it was manufactured and used.

Had this action been instituted by the original buyer from the defendant, who had used it in his automobile, it is clear that he could have recovered the damage inflicted upon his automobile, resulting from the harmful nature of the substance. Such damage would be the loss directly and naturally resulting in the ordinary course and within the contemplation of the parties, which is the measure of damage ever since Hadley v. Baxendale, 9 Exch. 341, and now in statutory form is found in §8449 GC.

And when a vendor places such a representation and warranty on a label intended to be passed on until it reaches the ultimate consumer as he did in this case, he must be taken to have made the representation and warranty to the ultimate consumer, who would be the only person likely to suffer by reason of the falsity of the representation and the breach of the warranty. Placing such a warranty on the article sold brings the producer into jural relations with 'the ultimate consumer, because the producer so intends. It is a representation and a warranty made by the producer to the ultimate consumer and creates a privity between them.

For these reasons, I am of the opinion that the judgment should be affirmed.


text:
    GREENBERG, Plaintiff-Appellant, v. SHAMANSKY et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4215.
    Decided October 28, 1949.
    C. M. Addison, Columbus, for plaintiff-appellant.
    Benoy & Sebastian, Columbus, for defendants-appellees.
   OPINION

By THE COURT.

This is an appeal on questions of law and fact from a judgment of the Common Pleas Court dismissing the amended petition of plaintiff, quieting the title of defendants to certain premises described in the amended petition as against the plaintiff and dissolving a restraining order theretofore issued.

The cause is presented in this court on a stipulation of the parties that the record shall consist of the evidence adduced and submitted in the Common Pleas Court.

An examination of the briefs discloses that the issues of law presented and determined in the trial court are identical with those briefed here and the facts are the same. In the transcript of docket and journal entries we find a memorandum opinion of Judge Goldsberry who heard and determined the cause in Common Pleas Court. The facts in this case are extended and a mere recitation of them would require the use of much space and would serve no good purpose. We have carefully considered the questions presented in the light of the facts developed and have reached the same conclusion as the trial judge and support his reasoning as to all questions presented. If no other issue could be resolved against the appellant, that of laches alone would be sufficient and would require that the relief sought in the amended petition be denied him. With full knowledge of all the facts upon which he relied in the trial court and now relies here, no reasonable explanation is forthcoming for the delay in asserting his rights and it is sufficient to require that a court of equity deny him the relief prayed.

Judgment accordingly.

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


author: By MCLAUGHLIN, J.

text:
    KINSEY, Contestor, v. GARVER, Contestee.
    Common Pleas Court, Stark County.
    Decided January 6, 1950.

      Hart & Hart, Canton, for Ralph L. Kinsey, contestor.
    Burt, Carson, Lynch & Vogelgesang, Canton, for Edwin H. Garver, contestee.
   OPINION

By MCLAUGHLIN, J.

Contestor and contestee were candidates for the office of Mayor in the Village of Navarre in Stark County, Ohio, at the general election held November 8, 1949. The official count of ballots by the County Board of Elections showed that the Contestor, Kinsey, had received 357 votes, and the Contestee, Garver, 351 votes. On November 14, 1949, the Contestee, Garver, filed his application for a recount of the ballots with the Board of Elections.

The Board of Elections decided to hold the recount in .this particular case on November 25, 1949, and since this date was the eleventh day after Contestee’s application for a recount had been filed the Board secured from both Kinsey and Garver the following written document:

“The undersigned hereby consents to a recount as requested in letter as of November 18, 1949, which recount shall be held at the office of the Board of Elections of Stark County, Ohio, in the Courthouse at Canton, Ohio, beginning at 9:00 A. M. Friday. November 25, 1949. The undersigned further waives the right to notice by registered mail of the day fixed for this recount which right is given by virtue of §4785-162 GC.”

The 24th of November, 1949 was Thanksgiving Day. The recount of ballots by the Board of Elections in this case was commenced and completed on November 25, 1949, and in such recount the result of the election was reversed and the Contestee, Garver, was determined elected by one vote. The present contest action was commenced by Kinsey by the filing of a petition with the clerk of the Common Pleas Court of Stark County on December 3, 1949. As one of the grounds for contest, Kinsey alleged in his petition that the ballots cast in the Village of Navarre at the general election were illegally recounted by the Board of Elections, Stark County, Ohio for the reason that such recount was conducted at a time later than ten days after the day upon which Contestee, Garver, filed his application for recount. At the trial of this case, it was obvious that if the evidence supported the Contestor as to the foregoing ground of contest set out in his petition, a legal question would be presented which could be decisive of the entire case. The evidence did, in fact, support the Contestor and at the conclusion of the testimony relative to the above ground of contest both parties indicated they had no further evidence to present on that ground. The Contestor moved for a judgment in his favor at this point of the proceedings, and the Contestee moved to strike the foregoing ground of contest from the consideration of the Court. The Court, therefore, was called upon to rule upon both of these motions.

It has been definitely settled in the State of Ohio that an election contest case involves a political and not a judicial matter, and under the Constitution of Ohio (Section 21, Article II) the General Assembly has been given the power to determine by law, before what authority, and in what manner the trial of contested elections shall be conducted. Foraker v. Board of Education, 130 Oh St 243; Mehling v. Morehead, 133 Oh St 395; Williams v. O’Neill, 142 Oh St 467.

It is equally well established that every step in the statutory recount procedure of this State is mandatory and a failure to comply therewith is jurisdictional. State, ex rel Fowler v. Board of Elections, 126 Oh St 582; Grossglaus v. Board of Elections, 85 Oh Ap 134, motion to certify overruled by the Supreme Court.

One of the provisions of present §4785-162 GC, states that “the Board of Elections shall promptly fix the time when and the place at which the recount will be made, which time shall be not later than ten days after the day upon which such application is filed.” It is a matter of public concern that the result of any election shall be settled and decided as promptly as possible. For that reason the recount procedure fixed by the legislature purposely gives a short time for taking the various steps required, so that a definite conclusion of all matters in dispute may be reached before a candidate’s term of office shall commence. This term usually begins a short time after the first of January of the next succeeding year.

In the present case it was conceded by all parties that the recount was not commenced by the Board of Elections until the eleventh day following the day upon which Garver filed his application. This being true, the entire recount proceedings was a nullity for the Board of Elections had lost jurisdiction and power to conduct such recount at midnight on the tenth day. The Contestee, Garver, contended in this case that the Contestator had waiver his right to object to the holding of the recount eleven days after the application was filed, by reason of the paper which he signed, set forth in this opinion, and the further fact that he, Kinsey attended the recount. This Court holds however, that no individual party has the power to reinvest a Board of Elections with jurisdiction to conduct a recount, once such jurisdiction has been lost. It has been pointed out that an interest in the public exists in the speedy determination of election results and it would be improper for either of the parties immediately concerned in a particular election to defeat the public’s right in this respect. It is a well settled principle of law that no party has power to waive matters that affect third parties, including the public.

It was further claimed by the Contestee in this case that the tenth day following Garver’s application for a recount fell on Thanksgiving and for that reason the Board of Elections had jurisdiction and power to hold such recount on the following day! With this contention this Court does not agree. Under §10216 GC covering the matter of computing time in legal matters, it is stated that “unless otherwise specifically provided the time within which an act is required by law to be done shall be computed by excluding the first day and including the last; except that the last shall be ex-eluded if it be Sunday.” (Emphasis ours.) Thanksgiving is created as a legal holiday for the purpose of the negotiable instruments law only by §8301 GC. The courts of this State have consistently held that the various “commercial paper holidays” do not extend the time for doing an act required to be done by the law of this State on a particular day and permit the same to be done on the day following such holiday. Norman v. State, 109 Oh St 213, King v. Paylor, 69 Oh Ap 193.

It follows therefore that Contestor’s motion for judgment must be sustained and the Contestee’s motion to strike the particular ground of contest from the consideration of the Court should be overruled.

Counsel for Contestor may prepare an entry in accordance with this opinion.