author: By PHILLIPS, PJ.

text:
    FABISH, Plaintiff-Appellant, v. SMITH, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3752.
    Decided March 23, 1955.

      Leo Waldman, Youngstown, for plaintiff-appellant.
    William E. Pfau, William E. Pfau, Jr., Youngstown, for defendantappellee.
   OPINION

By PHILLIPS, PJ.

Plaintiff appealed to this court on questions of law from a judgment of the court of common pleas entered upon a jury verdict of $500.00 returned for plaintiff in her action against defendant to recover damages for personal injuries sustained as the result of the negligence of defendant in the operation of his automobile, during daylight, on May 16, 1952.

Plaintiff was riding as the guest of Herman C. Newman in his automobile, which he was driving in a northerly direction on Powersway, a duly dedicated and accepted public highway of the city of Youngstown, approximately thirty feet wide. As the automobile in which plaintiff was riding reached a point a short distance south of the intersection of Windsor Drive with Powersway defendant operated his automobile in a southerly direction, against the current of traffic, onto the easterly side of Powersway, into collision with the car in which she was riding.

There is evidence that at the time of the collision plaintiff was a married woman, aged forty-seven years, passing through the menopause; that by the collision her left shoulder was twisted, bruised and discolored, which when x-rayed showed osteo-arthritic symptoms; that she sustained injuries in the cervical region of the back, which involved the sciatic nerve and radiated down the entire spine and along the nerves of the left hip and thigh to her knee; that as the result of each and all of said injuries plaintiff suffered great physical pain and mental anguish necessitating the administration of opiates and sedatives over a long period of time, and that she is advised that she will continue to suffer great physical pain and mental anguish therefrom in the future; that she now is and since the collision has been under the care of her physician and an orthopedic specialist.

By assignments of error plaintiff contends:—

“1. The amount of damages is inadequate.
“2. The verdict and judgment are not sustained by sufficient evidence.
“3. The verdict is manifestly against the weight of the evidence.
“4. The verdict is contrary to law.
“5. The court erred in his refusal to permit plaintiff’s attorney and a witness to use models in explaining the manner in which the accident happened.
“6. The court erred in his remarks, during the taking of the testimony, prejudicial to the rights of plaintiff.
“7: The court erred in failing to sustain the motion of plaintiff for a new trial.
“8. Other errors of law occurring at the trial, all of which have prevented this plaintiff-appellant from having and receiving a fair and just trial.”

It appears to be settled law that a verdict of a jury is subject to the supervision of this court, whether such verdict is too large or too small. See Toledo Railways & Light Company v. Mason, 81 Oh St 463.

If the evidence discloses that plaintiff is entitled to recover at all and the evidence supports a verdict larger than that returned by the jury this court has power to grant plaintiff relief if the verdict “falls below any rational appraisal or estimate of the damages, even though the inference of passion, prejudice, partiality, or other improper notice on the part of the jury is no more natural or reasonable than the inference of mistake or misapprehension on their part.” See Brannon v. Bowers, 48 Abs 444 at 448.

It is obvious that the jury having returned a general verdict for plaintiff by its verdict determined that the injury and loss sustained by plaintiff resulted proximately from the negligence of the defendant in the operation of his automobile, and no further attention need be given to the issue of defendant’s negligence.

In the state of the record we conclude that the trial judge did not err to plaintiff’s prejudice “in his refusal to permit plaintiff’s attorney and a witness to use models in explaining the manner in which the accident happened,” nor in his remarks made during the taking of testimony with reference to the use of such models. Further, we do not believe that other errors of law occurred “at the trial all of which prevented this plaintiff-appellant from having and receiving a fair and just trial.” Under this assignment of error plaintiff argues that the trial judge erred to her prejudice in excusing the jury and compelling it to wait for the greater part of the day while he heard other matters.

It is equally obvious that the jury having found defendant negligent that plaintiff does not intend to argue that its verdict was not sustained by sufficient evidence, was manifestly against the weight of the evidence, nor contrary to law, except as to amount of the verdict. Accordingly, we proceed to discuss plaintiff’s first four assigned grounds of error as they apply to the inadequacy of the verdict, which in a word present the question whether the amount of the verdict of the jury was so inadequate as to require a reversal of the judgment of the court of common pleas.

As bearing upon these assigned grounds of error there is evidence, in addition to that already stated, that for two years before suffering injuries from the collision plaintiff had been treated by her physician for symptoms attributable to menopause, and after receiving such m-juries for the same symptoms for a period of two weeks at her home; that at the end of that time she walked to her physician’s office, at which time her attending physician found no objective symptoms; that subsequent to that he treated her for subjective symptoms, which she had before she was injured on May 16, 1952; that x-rays taken over a period of two years following the receipt of her injuries showed no significant change in the ostero-arthritic symptoms in her back; that the orthopedic surgeon who had treated her at no time felt her injuries sufficiently severe to strap the injured part of her body, which strapping was routine procedure by that physician for any serious complaint of pain in her back.

Considering all of the evidence we reach the conclusion that under the state of the record we cannot disturb thé verdict of the jury as to the amount of the verdict.

Having found no error prejudicial to the plaintiff in any of the assigned grounds of error we conclude that the judgment of the trial court must be and hereby is affirmed.

NICHOLS and GRIFFITH, JJ, concur.


source: Caselaw Access Project

author: By HORNBECK, J: By THE COURT:

license: Public Domain

text:
    WARD, Plaintiff-Appellee, v. WARD, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2357.
    Decided April 20, 1956.

      Wasserman & Talbot, Dayton, By Jesse Jennings, of Counsel, for plaintiff-Appellee.
    Routzohn, Routzohn & Kuhns, Dayton, By Norman E. Routzohn, of Counsel, for defendant-appellant.
    (CONN and DEEDS, JJ, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By HORNBECK, J:

The decree in this case, of date September 26, 1935, insofar as pertinent to the errors assigned on this appeal, is:

“Defendant shall pay plaintiff as alimony the sum of Twenty Dollars ($20.00) per month * *
“As to the amount to be paid to plaintiff, the sum ordered is deemed to be reasonable, and is to be the order of this court unless the financial status of the plaintiff is changed to warrant the Court’s modification of this order.” (Emphasis ours.)

Evidently, the word “alimony” is used in the order as meaning support. These terms are frequently used interchangeably.

The motion for a modification by increase of the support order set forth three reasons: (1) that defendant’s financial circumstances have improved greatly since the original decree; (2) plaintiff is now in ill health and unable to support herself, and (3) the general decrease in the value of money has caused the original allowance to become totally inadequate.

Appellant assigns as error the claim that the trial judge improperly based his order fixing the monthly payments for support at $40.00 instead of $20.00 on a finding that defendant’s financial circumstances had improved since the original order. We agree that such a finding would not alone support the decree.

Generally, support orders are subject to modification upon showing of changed conditions unless the court in the original decree has exhausted its jurisdiction in the order as made. Here, the trial judge originally had the authority to fix and define the amount of the “alimony” (support), the terms and conditions thereof. The one basic condition upon which the alimony order could be modified is a change of financial status of plaintiff.

The support money order was final but for the reserved exception. Petersine v. Thomas, 28 Oh St 596; Garver v. Garver, 102 Oh St 443; Clough v. Long, 8 Oh Ap 420.

The judge who heard the motion to modify recognized the condition which should obtain to justify an increase. Page 14 of the record:

“Court: It seems to me that you have predicated your motion on the fact that her financial status is different than it was at the time of the decree.
“Mr. Jennings: By virtue of the fact that she is now ill and unable to support herself.”

The court also shows a full appreciation of the purpose of the testimony tending to prove that defendant’s financial status had improved. 1 age 94 of the record: Defendant on the stand for cross-examination:

“Q. (by counsel for plaintiff): What was your approximate income for 1953?
“Objection and statements of counsel.
“Court: I think the decree recites that the court would have the right to modify depending upon the financial condition of the plaintiff, and if it be shown that a condition has arisen where the modification is in order, 1 believe that the court would have a right to consider the ability of the defendant to stand any modification and for that reason it might be pertinent.” (Emphasis ours.)

The court overruled the objection.

The evidence develops that during the 18 years succeeding the original support order plaintiff had earned and received from other sources rather substantial sums of money. Whether or not she had been provident in the use and control of these funds might be arguable. However, this was not the test which the court had to apply in determining whether or not the order should be modified. It was her financial status at the time that the motion to modify was filed.

Upon the plaintiff’s testimony that she was, and had been for some time prior to the hearing on the motion, ill and unable to work, and upon the professional statements of several doctors whom she had consulted, the court had full right to find with the plaintiff and that her total income including the $20.00 per month that defendant was to pay her for her support was $140.00 per month.

It is true, as contended by appellant, that there is room for controversy upon the statements of the doctors as to the nature and extent of plaintiff’s disability and, happily, if they are correct, it may not be as serious as she believes it to be. But that she is sick and unable to work is probable from the medical testimony.

Objection is made to the consideration by the court of the devaluation of the dollar in arriving at the amount of the increase. It is obvious that the amount now ordered to be paid is no greater in purchasing power than the sum originally fixed. If that order had not been left open for modification then the change in the value of the dollar would not in and of itself justify the modification. Upon the situation here presented, it was proper for the court to consider it, but it is indeed doubtful upon the amount fixed if its consideration could in any view prejudice the defendant inasmuch as there has not been, in fact, any increase in purchasing power by the amount of the support order.

A full consideration of all the errors assigned, in the light of the proof made upon the record, is convincing that no error assigned is well made, and that the trial judge acted within the terms of the original order in making the modification.

The judgment will be affirmed.

CONN and DEEDS, JJ, concur.

Decided June 8, 1956.

No. 2357.

OPINION

By THE COURT:

Submitted on motion of plaintiff-appellee “for an order for alimony pendente lite as and for expenses of suit in defending appellant’s appeal.” Supporting the application an affidavit is filed wherein it appears that plaintiff incurred attorney’s fees in the Common Pleas Court in the amount of $200.00, traveling expenses of $145.55 and other expenses in the sum of $20.00 and that a reasonable attorney fee for defending the appeal would be $250.00.

Appellant opposing the motion cites Riekel v. Riekel, 15 Abs 254, and Davis v. Davis, 41 Abs 189, and appellee cites Sciacca v. Sciacca, 69 Abs 513. All of the cited cases were decided by this Court. The Sciacca case distinguishes the Riekel and Davis cases, and holds that §8003-15 GC (now §3105.14 R. C.) has application to appeals as defined in the Appellate Code, §12223-1 et seq, GC, now §2505.01 et seq, R. C. The facts in the Sciacca case differ materially from those presented on this appeal.

The immediate question for our consideration is whether the section, now having application to appeals on questions of law, authorizes the granting of the motion on the facts in this case.

On the appeal we have held that by the original decree the Common Pleas Court retained jurisdiction to modify the support award to plaintiff and that the modification, as made, was proper

Appellee, the successful party in the trial court, was by the appeal to this Court required to defend, and in so doing incurred obligation to pay counsel who represented her.

The statute §3105.14 R. C., insofar as pertinent, reads:

“* * *, the court of common pleas, * * * may grant alimony to either of the parties for his sustenance and expenses during the suit * * *. When an appeal is taken by either party the court of appeals or a .mdge thereof in vacation may grant like alimony and support during the pendency of the appeal upon like notice.”

No case in Ohio involving the application of this statute to a modification of an award for support money is cited, and we find none. Substantially, the same situation appeared in the case of Smith v. Smith Mo.), 132 S. W. 312. The court there held that

“Where a divorce decree gave the custody of the children to plaintiff until further order of the court, and also required defendant to pay plaintiff $75 a month alimony until otherwise ordered, and defendant hereafter applied for modification to obtain the custody of the children, and to be relieved from the payment of alimony, the suit for divorce would be regarded as ‘still pending’ within such section, and the court was therefore authorized to grant plaintiff’s application for temporary alimony and suit money to enable her to defend against such application.”

The opinion cites a number of cases supporting the judgment.

We hold that the original action between the parties is pending within contemplation of the statute, §3105.14 R. C.

We consider only the reasonable expenses incurred by appellee on her appeal and fix the amount of such expense at $200.00 for appellee, representative of her attorney fees in this Court.

HORNBECK, CONN and DEEDS, JJ, concur.


author: By MORROW, J.:

text:
    SCHROEDER, a Minor, Plaintiff, v. CINCINNATI STREET RAILWAY COMPANY, a Corporation, Defendant.
    Common Pleas Court, Hamilton County.
    No. A-110057.
    Decided February 1, 1949.
    Dolle, O’Donnell & Cash, for plaintiff.
    C. R. Beirne, for defendant,
   By MORROW, J.:

It is well settled in this State that the defendant has a right to find out before trial how badly a plaintiff is hurt in a personal injury-case. Hence, a Court may order the plaintiff to submit to a physical examination by a doctor other than the one employed by the plaintiff. See Syllabus 1, Kresge v. Trester, 123 Oh St 383.

The doctor chosen for the above purpose may be the choice of the defendant in the sense that the Court in its discretion may adopt the suggestion of the defendant as to who this doctor may be. It is not an abuse of discretion for the Court to name a doctor proposed by the defendant in the absence of evidence reflecting upon the ability and character of such doctor or questioning his accessibility to the plaintiff. I take it that this is the upshot of Syllabus 2 of the Kresge case.

The plaintiff here has raised a third question, however. He requests that the examining doctor file a report with the Clerk of Courts. This would make the report open to the plaintiff.

The full reasons for the rule stated in Syllabus 1 of the Kresge case probably are not set forth therein. It is possible that the plaintiff has exaggerated his injuries, or even simulated injury. The defendant is entitled to be accurately informed of the situation. It may be that he desires to settle the case by payment of fair compensation.

Judge Ryan stated in his opinion in Hayward v. Estridge et al, No. A-95693, of this Court:

“Said examination is for the purpose of enabling defendant to prepare its defense.”

It should follow that there is no more reason for the plaintiff to be furnished with a report of defendant’s doctor’s medical examination than for the defendant to be furnished with a report of the plaintiff’s doctor’s examination.

There is no compelling reason why the examination be filed with the Clerk of Courts. In fact, the books speak of the examination as “a reasonable private physical examination.” See Kresge case, 123 Oh St 389, and the plaintiff as well as the defendant might be interested in insuring that the examination is private and therefore not memorialized in a court record. Suppose that the plaintiff is suffering from some loathsome disease, or has a trouble that might bring on mental infirmity.

In fact, there is a question whether any report except verbal is necessary. The attorney for the defendant might be satisfied with a verbal report, and, as Judge Ryan has stated, in effect the report is for the benefit of the defendant and is not intended as a court record.

If all that the defendant's attorney desires is a verbal report, obviously there is no written report to file with the Clerk of Courts.

Another question is raised by the Neidhamer case, 19 O. O. 86. Here the plaintiff was examined by defendant’s doctor and report made, and later the plaintiff took the deposition of the defendant’s examining doctor, and asked him what his findings were from the physical examination of the plaintiff. There might be some question whether plaintiff has the right to inquire as to the opinion of the physician concerning the condition of the plaintiff. The factual information concerning blood pressure, pulse, regularity of heart beat, urinalysis, could be elicited, but whether the plaintiff has the right to know the opinion of the doctor as to the permanency of the injury, the degree of disability incurred, presents another question which we are not called upon to decide here and now.

At all events the motion of the plaintiff for an order requiring the defendant to file a report of result of examination of the plaintiff by defendant’s physician is denied.


author: By MILLER, PJ.

text:
    STATE, Plaintiff-Appellee, v. WEBB, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5341.
    Decided March 1, 1956.
    Samuel L. Devine, Pros. Atty., Fred L. Newsom, Jr., Asst. Pros. Atty., Columbus, for plaintiff-appellee.
    John F. Seidel, Roland G. Allen, Columbus, for defendant-appellant.
    (DEEDS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By MILLER, PJ.

This is a law appeal from the judgment of the Common Pleas Court finding the defendant guilty of accepting a bribe in violation of §2917.01 R. C.

The record reveals that Elwood Webb, the defendant-appellant, at the time stated in the indictment was a police officer for Marion Township; that on August 3, 1954, he received a complaint and upon investigation arrested one Ferris Lee Johnston charging him in the Justice of the Peace Court of Guy Burrell with having committed a felonious as- ' sault; that the same was based upon information since the alleged act was not committed in his presence; that on the following day Johnston entered a pleas of not guilty in said court and was bound over to the grand jury; that approximately one week later Webb was advised by Alfred Wilson, a Justice of the Peace for Marion Township, that the evidence he had obtained would not be sufficient to convict Johnston of the charge made against him for the reason that the persons upon whom the assault was alleged to have been committed were too young to testify, being of the tender ages of five and six years. It appears that the case was not filed originally in Wilson’s court for the reason that he was on vacation at the time; hence the affidavit was filed in the court of Justice Burrell in Hamilton Township. Webb, as previously stated, was an officer from Marion Township. After receiving the information from Justice Wilson, Webb investigated the case further, advising the Prosecuting Attorney’s office that the evidence would not sustain a conviction and through the assistance of that office secured an order remanding the case back to the court of Justice Burrell, where the charge was reduced to disorderly conduct, to which a plea of guilty was entered and sentence pronounced.

The evidence discloses further that prior to the remanding of the case to the Justice’s Court, Webb had a conference with Johnston at which Johnston testified it was understood that he and Webb would trade automobiles, Webb being the owner of a 1940 Packard and Johnston, a 1949 Ford. He admitted that no terms were mentioned for such a trade, could relate none of the conversation, but merely stated that it was his understanding that there would be an exchange of automobiles. This was denied by Webb in its entirety. However, the day after the case was finally disposed of Webb and Johnston happened to meet at a certain grill at which an exchange of cars was agreed upon. The trade was consummated and Webb gave his note for $150.00 in addition to his automobile, and which was paid shortly thereafter.' Johnston testified that it was a fair deal as well as did several expert witnesses who testified in behalf of the defendant. There is no direct evidence in the record which would indicate that Webb secured any advantage in the exchange.

The record discloses that the note, which was given, was prepared by one Edward Little at which time Johnston stated in response to a question by Little, “Well, which one is getting cheated?” to which Johnston replied, “I think it is a very fair trade. I need a heavier car to pull a trailer with.” There is other evidence in the record that Johnston owned a trailer and desired the heavier Packard car with which to pull it. There is no direct evidence that Webb received anything of value or benefit to him from the defendant without a consideration. The pertinent part of §2917.01 R. C. under which the indictment was drawn provides:

“No member of the General Assembly, or a state officer or other officer, * * *, shall solicit or accept any valuable or beneficial thing to influence him with respect to his official duty, * * *.”

It. will be noted in order that there be a violation of this section there must be a solicitation or acceptance of some valuable or beneficial thing for the purpose of influencing one in the conduct of his official duties. This being a criminal prosecution the burden rested on the State to prove beyond a reasonable doubt every essential element of the offense with which the accused was charged. The indictment charged that the defendant Webb “being a duly elected and qualified constable in the township of Marion, County of Franklin, did solicit and/or accept from Ferris Lee Johnston, a thing of value to influence him with respect to his official duty, * * *.” Now, all of the direct evidence offered concerning a thing of value received by the defendant -is that he received nothing of value without adequate consideration; that considering the value on the open market of the two automobiles in their present condition the exchange as made was a fair and equitable one. In order to sustain the conviction it was necessary that the jury find from circumstantial evidence that there was a difference in value between the two cars greater than $150.00. If it so found, then it would appear that Webb received something of value for his services.

In the case of State of Ohio v. Urbaytis, 156 Oh St 271, the court holds in the third paragraph of the syllabus that circumstantial evidence alone will not warrant a conviction unless it excludes every reasonable hypothesis except that of guilt. Here, as in the cited case, we have direct evidence which rebuts any circumstantial evidence tending to establish the guilt of the accused. Therefore, we are of the opinion that the evidence was insufficient to sustain the conviction.

The other assignments of error relating to the sufficiency and weight of the evidence are likewise well taken and those relating to the admission of evidence and misconduct of the Prosecuting Attorney, we find are without merit.

The judgment is reversed and cause remanded to the trial court with instructions to discharge the accused.

HORNBECK and DEEDS, JJ, concur.


text:
    MEUSER et, Plaintiffs-Appellants, v. SMITH et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 5237.
    Decided March 16, 1956.
    Barnhart & Wehr, Columbus, for plaintiffs-appellants.
    Griffith & Griffith, Columbus, for defendants-appellees.
    (FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By MILLER, PJ.

This is a law appeal from a judgment of the Common Pleas Court denying the plaintiffs a right to enjoin the defendants from constructing a trailer camp on neighboring property. The facts were stipulated and those pertinent to this appeal appear to be as follows: The appellees herein, G. Clifford Smith and Curtis A. Smith, prior to March 27, 1952, were desirous of constructing a trailer court in Franklin County. After making a careful survey of suitable locations the tract of land which is the subject of this action, consisting of approximately eleven acres, was found to be free of any zoning regulations, and on said date the same was purchased for such purpose. It was divided by a highway with three acres on one side thereof and eight acres on the other. Possession of the three acre tract was given to the purchasers on the date of sale, but the remaining eight acres were under oral lease which did not terminate until January l, 1953, at which time possession was secured. Immediately after the purchase engineers were employed to prepare plans, etc., for the development of the entire tract as a trailer park. A copy of the said plan was submitted to the Secretary of the Franklin County Rural Zoning Commission in order to determine whether the same complied with the requirements of the zoning regulations as to trailer parks. The defendants were advised by letter by the secretary that said plans complied with all the requirements of the zoning regulations, but that since the site in question was not subject to zoning said Commission had no jurisdiction in the matter. The plans were also submitted to the Franklin County Board of Health and approved by it on April 18, 1952. They were also submitted to the Franklin County Sanitary Engineering Department and approved by it on April 28, 1952. Detailed plans for the construction of one of two utility buildings were submitted to the Franklin County Department of Building Regulations and a permit for its construction was issued April 29, 1952. The permit described the building as a utility building for a trailer park and the above mentioned plan for the development of the entire tract as a trailer park was filed with said Department with the application for the building permit, and is on file with said Department. Construction work was started on said building immediately and the excavation had been made and footers constructed when a temporary restraining order was issued by the Common Pleas Court of Franklin County, Ohio, in the case of Meuser, et al. v. Smith, et al., the same parties as in this action, which order was issued on or about May 2, 1952. It was stipulated that the foundation was completed to the ground level when further construction work was stopped as the result of the restraining order. On May 11, 1952, the defendants obtained from the Franklin County Department of Building Regulations a building permit for another utility building shown on the trailer park plan. Thereafter the defendant obtained a renewal of said permit to May 11, 1953, and in April, 1953, started construction of said utility building and have constructed the footers and foundation for the same. On July 22, 1952, said restraining order was dissolved and the plaintiffs’ petition dismissed for the reason that the same failed to state a cause of action against the defendants. After the dismissal of the action the defendants laid up some additional block on the foundation of said utility building and did additional grading, etc. In the fall of 1952, contracts were let for the installation of water lines, sewer lines and electricity, the said work to be done in the spring of 1953. On May 20, 1952, the eleven acre tract involved herein was zoned for residential and agricultural purposes. The resolution does not permit the establishment of trailer parks on property zoned as residential and agricultural in the absence of a nonconforming use. A use permit from Franklin County for the operation of a trailer park on these premises had not been obtained prior to the filing of this action, to wit, May 8, 1953.

It is first urged that the court erred in finding that a nonconforming use had been established as to any part of the acreage in question. It is the contention of the plaintiffs that no “nonconforming” or “existing” use had been established by the defendants prior to the time the zoning resolution became effective as to the property in question on May 20, 1952; that mere intention, plans and even expenditure of funds for construction preliminary to actual use are not enough; that to establish a valid “nonconforming” use the premises must have been actually used for the intended purposes; that as of May 20, 1952, no trailer camp was in existence and that the only work actually done was excavation preliminary to construction of a utility building, the construction of footers and the construction of a foundation to ground level. The defendants, on the other hand, assert that by starting construction they did establish an “existing” use within the meaning of the applicable regulation and enabling statutes; that they acquired a vested right to complete such and use the same under the “due process” clause of the United States Constitution. They further urge that the previous action being between the same parties and seeking the same relief, although predicated on a claim of nuisance and not on a claim of violation of zoning regulations, is res judicata, since the zoning resolution became effective during the pendency of the case and the plaintiffs having failed to amend their petition to allege any zoning violation; that if the previous action is not res judicata plaintiffs are guilty of laches by failing to assert their claim of zoning violation until the filing of the petition herein on May 8, 1953.

We have examined the well-considered opinion of Judge Leach in which the Ohio authorities as well as those from foreign jurisdiction are discussed, and are in full accord with his conclusion that a nonconforming use has been established by the defendants. It would serve no useful purpose for us to again review the same subject matter. We also find that the court’s conclusion is supported in McQuillan on Municipal Corporations, 3rd Ed. Sec. 25.157 (Volume 8, Pages 272 and 273):

“Indeed, the general rule is that any substantial change of position, expenditures or incurrence of obligations under a permit entitles the permittee to complete the construction or use the premises for the purposes authorized irrespective of subsequent zoning or changes in zoning. Thus when the granting of building permits is followed by the letting of contracts and commencement of the work, a subsequent amendment to the zoning restrictions will not affect the permit.”

We are of the further opinion that the present action is barred by reason of the adjudication in the previous case. In that case the action was grounded upon the premise that the trailer camp would constitute a nuisance. But before the action was dismissed the zoning regulation had been adopted. The zoning issue could have been raised in that case either by amendment or supplemental petition which was not done. In Quinn, Auditor et al., v. State, ex rel. Leroy, 118 Oh St 48, it is said in the syllabus, paragraph 1:

“Material facts or questions which were in issue in a former suit and were there judicially determined by a court of competent jurisdiction are conclusively settled by the judgment therein so far as concerns the parties to that action and persons in privity with them and cannot be again litigated in any future action between the same parties or privies, and this rule also applies not only to what was determined but also as to every other question which might properly have been litigated in the case. (Nixon v. Ogg, 53 Oh St 361, 42 N. E., 32, and Strangward v. American Brass Bedstead Co., 82 Oh St 121, 91 N. E., 988, followed and approved.) ”

We are also in accord with the court’s conclusion that the entire eleven acres constituted but one tract and not two. This was a factual question and one solely for the determination of the trial court.

Finding no error in the record the judgment will be affirmed.

HORNBECK and FESS, JJ, concur.


author: By DRAPER, J.

text:
    FRANCISCO, Jr., Plaintiff, v. HOFFMAN, Defendant.
    Common Pleas Court, Franklin County.
    No. 188075.
    Decided October 27, 1955.
    Knepper, White, Richards, Miller & Roberts, Columbus, for plaintiff.
    William C. Ailes, Columbus, for defendant.
   OPINION

By DRAPER, J.

This cause is here on a motion by the defendant to cause the plaintiff to submit to a medical examination without the presence of the plaintiff’s attorney.

The leading case in Ohio on this question is S. S. Kresge Company v. Trester, 123 Oh St 383, of which syllabus 1 reads as follows:

“In an action for damages for personal injuries, the trial court has the power to require the plaintiff to submit to a reasonable physical examination, at a proper time and place, by competent physicians or surgeons, in order that the extent and nature of the injuries may be ascertained. * * *’*

Syl. 2:

“The defendant does not have an absolute right to name the physicians or surgeons to make such examination, * * * the matter of selection being within the discretion of the trial court.”

At page 387 in the order of the trial court requiring plaintiff to submit to a physical examination we find the following condition:

“* * * and that plaintiff be permitted to have present at such physical examination if she so desires, her counsel and her own physician.”

Judgment of Court of Common Pleas dismissing the case for failure to comply with the order was affirmed.

This case was cited in Distler v. Shillito Co., 26 Abs p. 307, where at page 308 it is held:

“Trial court has been sustained as not having abused its discretion in granting a second examination where it appears that same is necessary * * *. The court in permitting such examination may set forth the conditions under which it is to be made, either naming a disinterested physician or taking the physician suggested by either party.”

In á more recent case arising in the Common Pleas Court of Cuyahoga County, Kelley v. Smith and Oby Co., 70 Abs 202, the court held at page 204:

“The power of the trial court to designate a competent doctor to physically examine a plaintiff in a personal injury action is ever present, though it may be seldom exercised. Necessarily, too, the trial court possesses the included power of determining and fixing reasonable conditions under which the plaintiff shall be examined.
“One of the conditions to be established is whether or not plaintiff’s eounsel may be present at the examination of the plaintiff.
“In the Trester case, supra, the Supreme Court approved and enforced the order of the trial court which directed the plaintiff to submit to a physical examination by a doctor chosen by the defendant. That order provided in part that
“ ‘the plaintiff be permitted to have present at such physical examination if she so desires her counsel and her own physician.’
“Undoubtedly, the adversary status of the examining doctor as doctor for the defense, prompted the trial judge to permit plaintiff’s counsel and her doctor to be present at her examination by the defense doctor.
“Permission for plaintiff’s counsel to be present at a physical examination of the plaintiff, part of the approved order in the Trester case, is the general rule.”

The case goes on to say that the court may exclude third persons where necessary to conduct a psychiatric examination, because of the peculiar nature of that type of examination.

17 Am. Jur., Discovery and Inspection, Section 71, page 52 holds:

“The plaintiff’s own physician should be permitted to be present at the examination if the plaintiff makes timely application.”

At page 53:

“The physician’s report should be open to the inspection of counsel on both sides of the controversy, but not for use as evidence except in the cross-examination of the surgeon or physician in the event he is introduced as a witness at the trial.”

Applying these rules to the motion before this Court, and in view of the discretion vested in this court in this matter, it is ordered that the plaintiff submit to a physical examination. Further, if the plaintiff desires either her attorney or personal doctor to be present during the examination, they may do so. Further, counsel for plaintiff, if either he or the personal physician is not present, may examine the report under the limitations set forth herein in 17 Am. Jur. These rules shall apply to any physical examination requested by the defendant.


author: By DEEDS, J.

text:
    SHANER, Plaintiff-Appellant, v. BAHNS et, Defendants-Appellees.
    Ohio Appeals, Second District, Greene County.
    Nos. 570, 571.
    Decided March 23, 1956.
    Schlafman & Elliott, Fairborn, for plaintiff-appellant.
    George R. Smith, Pros. Atty., Xenia, for defendants-appellees.
    (Heard in the Second District by judges of Second and Sixth Districts.)
   OPINION

By DEEDS, J.

Two appeals are presented from separate judgments of the Court of Common Pleas of Greene County, involving the same parties and subject matter.

The judgments before this court for review are the result of action taken by the defendants-appellees as the County Commissioners and County Engineer of Greene County in notifying and requiring plaintiff-appellant to remove a certain advertising sign from his property for the claimed reason that the sign created an obstruction at intersecting highways, which action by the county officers was pursuant to §§5547.03 and 5547.04 R. C.

We find before us in the transcript of the proceedings the copy of a resolution which purports to be the initial or first official action take by the County Commissioners relating to the matter in controversy, as follows:

“August 29, 1955
“Greene County Commissioners in session, all members present.
“In re—Resolution.
“Since it has come to the attention of this Board of County Commissioners that a sign has been erected by Mr. Harold Shaner at the intersection of State Route No. 69 and Bath Road, which sign is obstructing the view at the aforesaid intersection, therefore, Mr. Crone moved that Mr. Shaner be instructed under §§5547.04, 5547.03 R. C. to remove same within 5 days of receipt of notice.
“Mr. Fudge seconded the motion and on roll call, the result was as follows:
“Mr. Bahns - - Aye
“Mr. Crone - - Aye
“Mr. Fudge - - Aye.”

Following the action of the Commissioners in the adoption of the foregoing resolution, a notice was addressed to and received by the appellant, a copy of which also appears in the record before us as follows:

“August 31,1955
“Mr. Harold Shaner
“Route No. 9
“Dayton, Ohio
“Dear Sir:
“You are hereby ordered by the Board of County Commissioners of Greene County, Ohio in accordance with §5547.04 R. C., to immediately remove any or all signs erected on your land at the intersection of Ohio State Route No. 69 and Bath Road, which are obstructing the view at the aforesaid intersection.
“You are further directed to §5547.03 R. C., which specifies that such obstruction shall be removed within a period of five days after notification or they may be removed by the County at the owner’s expense.
Very respectfully yours,
Raymond G. Spahr, Clerk
Greene County Commissioners.”

It is undisputed that thereafter a second notice was addressed to and received by the appellant, as follows:

“September 15, 1955
“Mr. Harold Shaner
“Route No. 9
“Dayton, Ohio
“Dear Sir:
“You are hereby ordered by the Board of County Commissioners of Greene County, Ohio, in accordance with §5547.04 R. C., to immediately remove any or all signs erected on your land at the intersection of Ohio State Route No. 69 and Bath Road, which are obstructing the view at the aforesaid intersection.
“You are further directed to §5547.03 R. C., which specifies that such obstruction shall be removed within a period of five days after notification or they may be removed by the County at the owner’s expense.
“The above is a copy of the first notice sent to you by registered mail on August 31, 1955.
“You have an alternative to the above directions. That is to set the said sign back the length of itself and do it within the specified time of five days.
Very respectfully yours,
Raymond H. Spahr, Clerk
Bd. of Greene County Commissioners.”

On September 19, 1955, plaintiff-appellant filed his petition seeking an injunction against the defendants-appellees from taking any further action toward removing or interfering with the sign located upon the property of the plaintiff.

On September 27, 1955, plaintiff filed his notice of appeal from the decision of the defendants-appellees, to the Court of Common Pleas of Greene County. Thereafter, defendants filed a demurrer to both the petition of the plaintiff for an injunction and plaintiff’s notice of appeal.

It is from the action of the trial court in sustaining the demurrers to both plaintiff’s petition and notice of appeal and entering judgments against appellant, that these appeals were taken.

Sec. 307.56 R. C., provides, respecting appeals from decisions of a Board of County Commissioners by a person aggrieved:

“Sec. 307.56 R. C. (2461). Appeal from decision of board of county commissioners.
“A person aggrieved by the decision of the board of county commissioners in any case, may appeal within fifteen days to the court of common pleas, notifying the board of such appeal at least ten days before the time of trial. The notice shall be in writing, and delivered personally to the board, or left with the county auditor. At its next session, the court shall hear and determine the appeal, which decision shall be final.”

We therefore determine that plaintiff-appellant was afforded a remedy by appeal from the action of the County Commissioners and that therefore the action of the trial court in sustaining the demurrer to and dismissing plaintiff’s petition for an injunction was in accord with the established law in the State. Eggers et al, Appellees, v. Moor et al, County Commrs., et al., Appellants, 162 Oh St 521.

In considering the demurrer to the appellant’s notice of appeal as a motion to dismiss the appeal, this court reaches the conclusion from a consideration of the written notices addressed to the appellant by the defendants-appellees, that appellant’s notice of appeal was duly filed within the time required by law and that the trial court was therefore in error in dismissing the appeal of appellant.

We are led to this conclusion by reason of the second notice addressed to appellant by the Clerk of the County Commissioners, which, although purporting to be a copy or repetition of the first notice, contains a significant change of attitude and action as follows:

“You have an alternative to the above directions. That is to set the said sign back the length of itself and do it within the specified time of five days.”

It is clear, in our view, that the foregoing statement contained in ijhe second notice, followed a reconsideration of the subject involving a removal of the sign in question from the property of appellant by the County Commissioners and that therefore the time within which the appeal was required to be perfected should be considered as beginning on the date of the second notice, which was September 15th, 1955.

Therefore, the judgment of the Court of Common Pleas in cause No. 29871 seeking injunctive relief is affirmed and the judgment in cause number 29895, being the appeal from the decision of the County Commissioners is reversed and the cause is remanded for a determination of the appeal.

Judgment affirmed in cause number 570 (No. 29871), reversed and remanded in cause number 571 (No. 29895).

MILLER, PJ, HORNBECK, J, concur.


author: By SKEEL, J:

text:
    STATE, ex rel. ROSENTHAL, Relators, v. BEDFORD (City) et, Respondent.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23830.
    Decided June 6, 1956.

      Roudebush, Adrion, Sanborn, Brown & Corlett, Allen N. Corlett, of Counsel, for relators.
    Christopher, Dorer, Yoder & Corlett, Lester L. Yoder, Law Director, for respondents.
   OPINION

By SKEEL, J:

This is an original action in this Court in which the Relators seek a writ of mandamus to compel the City of Bedford to issue a building permit for the erection of a gasoline service station on the Relators’ land located at the northeast corner of Union Street with Northfield Road in the City of Bedford.

The case is presented on stipulations of fact. The Rosenthal Outdoor Advertising Company acquired two contiguous parcels of land on the north side of Union Street directly north of the northerly end of Northfield Road as then shown by the County Maps, Northfield Road coming to an end at said intersection.

This property was transferred to Harry and Dora Rosenthal by the Advertising Corporation (which Corporation was wholly owned by the Rosenthals) on April 21, 1949. The title of these parcels had been in the Corporation since 1925.

The Advertising Corporation maintained a sign board on the most westerly and larger of the two parcels referred to in the stipulations of fact as Parcel No. 1, until it collapsed in 1936, and since then this parcel, except that part taken for the Northfield Road extension, has been unused and vacant. Parcel No. 1, now containing 15,818 square feet, does not now have any frontage on Union Street, is triangular in shape with a frontage of about 250 feet along the east line of Northfield Road to a point at about the south end of a viaduct or bridge over Tinker’s Creek and the Metropolitan Park in the valley which bridge was built in 1933 to provide for the extension of Northfield Road north of Union Street. The north line of said parcel proceeds easterly at about a right angle from the east line of Northfield Road about 127 feet. The most easterly side of this triangular shaped lot proceeds from the east end of the north line just described to a point 11.94 feet south and east of the place of beginning, a distance of about 275 feet. There is then an 11.94 foot arc proceeding northerly to the place of beginning. Parcel No. 2 is the next plot of land east of Parcel No. 1. This parcel, before the Northfield extension in 1933, had a frontage of 53% feet on the northerly side of Union Street extending back 150 feet. The Northfield improvement took a triangular shaped piece from the entire front of this parcel, beginning from the point where its easterly line intersects Union Street and thence northerly to the most southerly point of Parcel No. 1.

The Northfield Road improvement, as constructed north of Union Street, provided a roadway 80 feet wide, taking 80 feet from the greater part of the west side of Parcel No. 1, together with all of its frontage on Union Street, and also took a triangular piece across the entire front of Parcel No. 2, as above stated, 53 x 63 x 33, thereby moving the setback line for a building constructed and facing on Union Street back more than 16 feet to the north of the setback line required for building on the other lots on the north side of the street.

In 1935, a comprehensive zoning ordinance was passed by the City Council of Bedford, which ordinance was amended in 1955. All of the property on the north side of Union Street, including that of plaintiffs, was zoned for single family dwellings, which is also true of the property on the south side of Union Street east of the church at the north west corner of the intersection of Northfield Road and Union Street. At that time the land on the east side of Northfield Road, from Union Street south to Paul Street, was and still is occupied by a church and parochial school. The northwest corner of this property at the intersection of Northfield Road and Union Street is now used as a parking lot for church offstreet parking. From Paul Street south on the east side of Northfield Road the frontage was and is zoned for retail business and the property to the east of the frontage on the lateral streets was and is zoned for single residence purposes. The property on the west side of Northfield Road at the north and south corners of Union Street was zoned for retail business and there is now located on each corner (the one across from plaintiffs’ property and one across from the church), gasoline service stations of the type plaintiffs seek the right to build on their property. Both of these gasoline service stations are now in operation, and are conforming uses under the zoning ordinance. To the south of Union Street (about two blocks) and from there to the city limits, the zoning on the west side of Northfield Road changes from retail business to industrial use and many large industries now are situated in the area.

Northfield Road is a heavily traveled state highway, is known as State Route 8, is the main east side highway from Cleveland to Akron and Canton and intercepts the Ohio Turnpike about nine miles south of plaintiffs’ property. Union Street runs from Broadway (which is the main street in Bedford and is a heavily traveled state highway designated as State Route 14, which intercepts the Ohio Turnpike fourteen miles from plaintiffs’ property) at its southerly end to Broadway at its northerly end, is known as Alternate Route 14, is very heavily traveled and, as above stated, plaintiffs’ property is at the northeasterly intersection of these two heavily traveled main highways, routes upon which travel has been much increased by the Ohio Turnpike.

In 1935, The Cleveland Electric Illuminating Company acquired by legal action an easement over a strip along the entire Northfield frontage of Parcel No. 1 varying in width from 22 feet on the north to 8 feet on the south over which high tension electric lines are now maintained. One of the supports of these lines consists of two high poles placed twelve feet apart perpendicularly from the street line tied together with braces and supported by two heavy guy wires held by concrete deadmen buried in the ground to the south of the poles, all of which equipment is placed on and imbedded in the land subject to the easement.

The record shows that the plaintiffs have taken every step available to them in seeking legislative or administrative relief from the alleged confiscatory effect of the zoning ordinance as to their property. One other fact was brought out upon argument, the information being furnished at the court’s request by the City. The question was whether or not a residence, complying with the building code and setback restriction requirements could be built on either of the parcels? The information furnished in reply to this request was that a house 20 x 30 on the foundation could be built which the court was informed was the smallest residence unit now permitted in the City. There are no deed restrictions as to the use of the property. The stipulations of fact provide that the proposed gasoline service station for which a building permit was requested by the plaintiffs and refused by the defendants, complies in every respect with the building and safety code requirements of the City except the use restrictions of the land as limited by the zoning ordinance.

One other fact agreed upon is that the northerly line of Parcel No. 1, which is also in part the southerly boundary line of the Metropolitan Park Bedford Reservation, is at a point where there is a precipitous of 86 feet drop into the Tinker’s Creek Valley.

To recapitulate the facts, this intersection, upon which plaintiffs’ property fronts, is the “busiest traveled of any street intersection in the City of Bedford and is used by both vehicular and pedestrian traffic.” Both roads forming the intersection are access highways to the Ohio Turnpike. The two corners of the intersection, one directly across the road and one diagonally across the intersection from plaintiffs’ property, are now used for gasoline service stations, and as such, conform to the zoning use restrictions. (See Henle v. Euclid, 97 Oh Ap 258.) The use across Union Street to the south at the intersection, if it could be said that plaintiffs still have any frontage on Union Street, which fact is in considerable doubt, is for offstreet parking on the church lot. The plaintiffs’ parcels, particularly Parcel No. 1, unless used together with Parcel No. 2, has been reduced both before and after zoning to almost an unusable shape by appropriations for public highway and public utility uses. Although it is possible to use each parcel for residence purposes with undesirable limitations, the probability of its use for that purpose has been almost completely destroyed.

Upon the foregoing undisputed facts, we must conclude that the plaintiffs are entitled to the writ as prayed for. Any other conclusion would put the decision in this case in direct conflict with the decision of the Court of Appeals for Warren County (First District) in the case of The State, ex rel Euverard v. Miller, Inspector, 98 Oh Ap 283, where the court held in the second paragraph of the syllabus:

“2. Where property is situated at the intersection of two heavily traveled thoroughfares, in the midst of commercial establishments, and has little suitability for residential use, but rather is a prime business site, the zoning thereof for residential uses only has no tendency to promate the public health, safety, morals, convenience, or general welfare, and bears no reasonable relation thereto and, as applied to such property, is arbitrary, unreasonable, and beyond the zoning power.”

Zoning is the application of the police power of the state or municipal corporation in the classification of the use of real property for the protection of the health, safety, morals and the general welfare of the people. It cannot be permitted to completely destroy the value of the property of a citizen and at the same time provide no useful benefit to the people in the neighborhood to which it has application. Nor can a zoning ordinance be used to control competition. Either there must be public benefit derived from the exercise of the power or a restriction of the use of real property through a zoning ordinance is confiscatory and therefore unconstitutional. Zoning should also, as near as is reasonably possible, deal equally with like property or as to property similarly situated. Here, because of public need and the exercise of the right of eminent domain, the two parcels owned by the plaintiffs have been completely deprived of their frontage on Union Street and now, for all practical purposes, both lots front on Northfield Road or on the arc, created by the extension of Northfield Road, at the northeast corner of its intersection with Union Street. The uses for which the greater part of the area of at least one parcel can now be devoted, occasioned by the public taking or use of a part of both lots or originally owned by the plaintiffs, unless both parcels are used together, has been very materially restricted. The frontage on both sides of Northfield Road from the Northfield Road Bridge to the city limits to the south, a distance of 3600 feet, excluding the church property which was built before the zoning ordinance was passed, is zoned either for commercial or industrial use with the sole exception of the property of the plaintiffs. The property at the north end of the Bridge, situated almost exactly as is the plaintiffs, is likewise zoned for commercial purposes.

While the following fact could not be considered as lending more than a passing interest in support of plaintiffs’ contentions on the issues here presented, it is true that the location of a gasoline service station opposite those already on the west side of Northfield Road would at least have the potential possibility of avoiding the necessity of northbound traffic crossing over these very heavily traveled thoroughfares for service to the greater safety of highway users, both motor vehicle and pedestrian.

For the foregoing reasons, we find that the plaintiffs have a clear legal right to the relief prayed for.

Writ to issue.

Exceptions. Order see journal.

KOVACHY, PJ, HURD, J, concur.


author: By HORNBECK, J.

text:
    KRAMER, Petitioner, v. ALVIS, Warden, Respondent.
    Ohio Appeals, Second District, Franklin County.
    No. 5400.
    Decided April 12, 1956.
    Brownfield & Malone, Lyman Brownfield, of Counsel, Columbus, for petitioner.
    C. William O’Neill, Atty. Geni., John W. Shoemaker, Asst. Atty. Geni., Columbus, for respondent.

      (FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By HORNBECK, J.

This is an appeal from a judgment of the Common Pleas Court granting a Writ of Habeas Corpus to petitioner on the ground that “in the trial of petitioner’s case he was effectively deprived of the right of counsel within the meaning and spirit of Art. I, Section 10, Ohio Constitution and the Fourteenth Amendment of the Constitution of the United States of America.’'

Petitioner was indicted in October, 1951, on four counts of breaking and entering an inhabited dwelling in the night season of September 15, 1951. On December 14, 1951, having theretofore been arraigned and entered a plea of not guilty, was tried, convicted and sentenced on three of the four counts of the indictment. In his trial he was represented by two counsel, Mr. Martin Burnham, who was appointed by the court to defend, and Mr. Orville Wear, who, by the consent of the court, assisted Mr. Burnham. We will state more of the pertinent facts later in this opinion.

Appellant assigns three errors:

1. The trial court erred in not holding that habeas corpus was not the proper remedy.

2. The court erred in holding that the petitioner was deprived of his right of counsel within the meaning of Art. I, Section 10, Ohio Constitution.

3. In holding that the petitioner was effectively deprived of his right to counsel within the meaning and spirit of the Fourteenth Amendment of the Constitution of the United States.

The first assignment must be resolved in favor of the appellant upon the authority of Beard v. Alvis, Warden, 164 Oh St 488, Ohio Bar, February 6, 1956. (Cf. McConnaughy v. Alvis, 165 Oh St 102, Ohio Bar, March 26, 1956.) The facts in this case so nearly parallel those in the instant case as to make it a compelling and decisive authority. There are, of course, many other decisions of our Supreme Court to like effect, viz.: that in Ohio, in a habeas corpus proceeding the question for determination is whether or not the trial judge who sentenced the prisoner had jurisdiction of the subject matter and of the person of the prisoner. If so, habeas corpus may not be invoked.

As we are required to pass upon all errors assigned, we consider the second and third assignments. Without the slightest hesitation, we could hold that the finding of the trial court that due process was not accorded petitioner under either State of Federal Constitution is manifestly against the weight of the evidence. Because we reach the conclusion that there is no substantial evidence to support the finding as to the second and third assignments, we examine and discuss the factual developments more at length.

This is the third time that the petitioner has been before this court in habeas corpus proceedings.

On September 29, 1952, upon petitioner’s hearing, conforming to our practice, we took his testimony and permitted him to state, in his own words, any and all facts upon which he based his claim for release on habeas corpus. Later, on the fourteenth day of October, 1952, we handed down a written opinion in which we stated, in part:

“At the conclusion of petitioner’s statement, the court said to him that no fact appeared which suggested that he had been denied any right which went to the jurisdiction of the court to hear and try him. However, upon request of counsel that we consider his brief we informed him that we would do so and we have. The brief is made up of eight numbered arguments setting forth the acts and conduct of the officers of the court from the time prisoner was arraigned until he was convicted and sentenced.
“Giving full weight to the facts which petitioner states as true and according to them all the legal implications favorable to him they constitute, at best, nothing more than certain irregularities which, if prejudicial to him, could be reached by a motion for new trial and are not of sufficient import to constitute a denial of any constitutional right.”

The identical question presented in this case in the trial court was urged and briefed in the habeas corpus proceeding above by question No. 4 in relator’s written brief.

The second time that we had petitioner’s habeas corpus proceeding before us was on an appeal from the Common Pleas Court of Franklin County wherein he had been released, notwithstanding our judgment in the former case, upon the finding that he was being held under a void sentence. In this proceeding, we were in accord with the theory of the trial judge that if the verdict was void because so ambiguous as to be unintelligible, the petitioner could not be legally committed on such a verdict. We differed with the trial judge on the validity of the verdict and were of the opinion that a full consideration of its terms indicated that it responded to the three counts of the indictment and that the verdict as returned, as it related to the so-called included offenses, was surplusage. On petitioner’s appeal to the Supreme Court no consideration was given to the question which had been considered and discussed at considerable length in the lower courts. The Supreme Court held that the verdict, as returned, presented only the issue of its irregularity or validity which could have been determined upon appeal, and that habeas corpus was not the proper procedure. In re Kramer: Kramer v. Alvis, Warden, 163 Oh St 510.

The pertinent part of Article I, Section 10, Ohio Constitution, reads:

“In any trial, in any court, the party accused shall be allowed to' appear and defend in person and with counsel.”

The pertinent part of the Fourteenth Amendment, Section 1, is:

“* * * nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.”

The Sixth Amendment to the Federal Constitution is more like Article I, Section 10, Ohio Constitution and has more application to the facts developed here than the Fourteenth Amendment, heretofore quoted. It reads, in so far as pertinent:

“In all criminal prosecutions the accused shall have the right * * * to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

Counsel for petitioner concedes that the basis for his action has not been favored by the Ohio courts but that the decisions of the Federal courts support his contention.

In all of the cases cited by petitioner intended to establish that in the Federal Courts, if an accused was unrepresented by counsel at the trial and denied his Constitutional rights under the Federal Constitution, the State Courts have no power to deny him freedom because of a narrow local interpretation of the Writ of Habeas Corpus, there is a second vital factor involved. It is, that the accused has been denied, by failure of representation of counsel, a fair trial and that there has not been a proper administration of justice. We call attention to some of the facts in these cases, in but one of which did the accused have any counsel to represent him.

Brown v. Mississippi, 297 U. S. 278, 56 S. Ct. 461, the Court in the opinion said:

“Further details of the brutal treatment to which these helpless prisoners were subjected need not be pursued. It is sufficient to say that in pertinent respects the transcript reads more like pages torn from some medieval account than a record made within the confines of a modern civilization which aspires to an enlightened constitutional government.”
“Complaint is not of commission of mere error, but of a wrong so fundamental that it made the whole proceeding a mere pretense of a trial and rendered the conviction and sentence wholly void.”

As we read this case although the third syllabus is: “State may not deny to accused aid of counsel,” it is said in the opinion “we are not concerned with a mere question of state practice, or whether counsel assigned to petitioners were competent or mistakenly assumed that their first objection (to the admission of the confession) was sufficient.” The case was decided on certiorari from a conviction of petitioners and upon the ground that the use of a confession obtained by coercion, brutality, and violence as basis for conviction and sentence constitute a denial of due process.

Smith v. O’Grady, 312 U. S. 329, 61 S. Ct. 572, was likewise heard on a Writ of Certiorari but from the refusal of the Nebraska State Courts to grant petitioner’s application for a Writ of Habeas Corpus. The facts sufficiently appear in the third syllabus:

“Allegations that petitioner had been denied any real notice of true nature of charge against him, that because of deception by Nebraska representatives he had pleaded guilty to a charge punishable by 20 years to life imprisonment, that his request for benefit of counsel had been denied by the court, and that he had been rushed to the penitentiary where his ignorance, confinement, and poverty had precluded the possibility of securing counsel to challenge the procedure by regular processes of appeal, stated a cause of action entitling petitioner to habeas corpus, since, if true, allegations showed a denial of ‘due process of law.’ ”

The question presented to the court is epitomized in the opinion:

“Heart of the charge is that petitioner was an ignorant layman not represented by counsel, was tricked into pleading guilty to a serious offense.”

House v. Mayo, 324 U. S. 42, 65 S. Ct. 517, the accused was v/ithout warning and over his protest, forced to plead to an information without aid and advice of counsel previously retained by accused whose presence accused requested. Held, denial of constitutional rights to aid in assistance of counsel.

Rice v. Olsen, 324 U. S. 786, 65 S. Ct. 989, accused had no counsel. Held, third syllabus:

“Defendant charged with burglary incapable adequately of making his defense, unable to get counsel and does not intelligently and understanding^ waive counsel, suffices to show that the court, consistently with due process, should appoint counsel for him, whether requested or not, and the defendant pleads guilty, he is entitled to benefit of counsel.”

DeMeeler v. Michigan, 329 U. S. 663, 67 S. Ct. 596, held that:

“Proceedings in State Court by which 17-year-old boy was arraigned, tried, convicted on plea of guilty, and sentenced to life imprisonment for first degree murder, all in the same day and without assistance of counsel or advice as to rights of counsel, without explanation of consequences of plea of guilty and without evidence in his behalf or cross-examination of state’s witnesses, constitute a denial of due process of law.”

Townsend v. Burke, 334 U. S. 736, 68 S. Ct. 1252, fourth syllabus:

“Absence of counsel when aggravated by circumstances showing that it resulted in prisoner actually being taken advantage of, is prejudicial and violates ‘due process.’ ”

Coming to the specific claim made in this case, petitioner cites Williams v. State, 192 Ga. 247:

“If appointed attorneys are so ignorant, negligent or unfaithful that the accused was virtually unrepresented, or did not in any real or substantial sense have the aid of counsel, he would be deprived of a fundamental constitutional right, and if convicted might successfully complain that he had been denied due process of law.”

The court in that case held against the contention of the petitioner.

The annotator in 146 A. L. R. 369 at page 419, after setting forth that the elements heretofore stated in the quotation from Williams v. ;Wate, if appearing, are grounds for relief in habeas corpus, after judgment of guilt or sentence added the proviso that the petitioner satisfy certain other conditions which are, among others, that it must appear that the accused has been prejudiced by the action of such counsel.

The cases cited by respondent in the Federal Courts are in accord with the rationale of the foregoing quoted cases and the opinion of the annotator.

How, then, do the facts in the trial of this case reach up to the requirements essential to the finding of a violation of petitioner’s rights under either State or Federal Constitution? It, of course, is not and could not be claimed that the petitioner was not represented by counsel. He had not one but two. But it is contended that petitioner was so inadequately and incompetently represented as to be the equivalent of a denial of representation by any counsel and that his defense was a sham.

It appears that petitioner, at about 9 o’clock at night on the 15th of September, 1951, was observed by police officers of the City of Springfield, in the yard of a residence which was unlighted. Upon being accosted, petitioner stated that he was looking for a person of the same r.ame as his who lived at a number which was not found in the block where he was apprehended. One of the officers requesting identification examined a wallet in the possession of petitioner and at the same rime observed another wallet in his trousers pocket. An examination of this second wallet disclosed certain contents afterwards proven to belong to the occupant of one of the houses found to have been burglarized. Upon inquiry, it was learned that petitioner’s automobile was parked a short distance from where he had been apprehended and when they reached his car, his wife was seated therein, the officers then and thereafter found, on the person of petitioner and in a trunk in his car, numerous articles which had been stolen from the three residences described in the indictment. Much of the property found in petitioner’s car was identified as the property of the three persons whose residences h was claimed had been burglarized. On the way to the police station, one of the officers observed a screw driver, which had been in a pocket of the petitioner, which thereafter it was testified by an expert, was, in his opinion, the instrument that had been used to effect an entrance into the burglarized places.

Soon after petitioner was indicted, Mr. Burnham called upon him and told him that a friend of his had requested that Mr. Burnham come to see him. Thereafter, Mr. Burnham was engaged as petitioner’s counsel, he having turned over to Mr. Burnham all the money except $20.00 which had been taken from him by the officers. Petitioner insists the total amount he had when arrested was about $700.00. He testified that Mr. Burnham said of this he got but $200.00. Officer Stoltz testified that petitioner told him the night ■ of his arrest that he had less than $140.00 on him. The exact amount could easily have been determined by the testimony of the prosecuting attorney to whom it was said the money had been turned over. Mr. Burnham conferred with petitioner several times in the jail succeeding his employment in October and it is claimed that he did not indicate a purpose to quit his employment until December 13th, the day before the trial.

Mr. Burnham at the time of the trial in the habeas corpus action was in Texas, having moved there, and did not testify. Mr. Orville Wear was called upon by Mr. Burnham to assist him in the preparation of the trial. The formal entry naming Mr. Burnham as counsel is dated December 13, 1951, but one day before the trial. However, Mr. Wear said that the court had indicated a purpose to appoint Mr. Burnham at least a week before the trial and also approved the association of Mr. Wear with him and that he had conferred with petitioner, with Mr. Burnham, several times and three times with the Prosecutor, prior to the trial. Mr. Wear testifies that petitioner would not talk to his counsel respecting his whereabouts on the 15th of September although he had at all times insisted upon his innocence.

It appears, and it is not denied, that Mr. Burnham had been in the general practice of the law for about fifteen years, that he had served as Municipal Prosecutor in charge of criminal cases. Mr. Wear had been in the practice for twenty-three years, had served as acting Municipal Judge, five years as Prosecuting Attorney of Clark County, had handled trials in a thousand misdemeanors and had participated in two hundred cases where the charges were felonies. Petitioner says that he and Burnham had difficulty which became quite heated when he indicated a day before trial a purpose to withdraw from the case, and that he and his wife objected to the court to his appointment.

Counsel for petitioner in his brief sets up thirteen particulars wherein he charges that the petitioner was not competently represented. We discuss some of them together with some further developments in the trial.

The fourth particular is that neither Burnham nor Wear attempted to prevent the introduction into evidence of a list of articles which were found on petitioner when arrested. This is not accurate because it does appear that objection was interposed to the admission of these articles but the objection was not pressed (p. 65 of the record).

Five, neither Burnham nor Wear made any independent investigation, except to examine a complaint sheet, and Six, did not attempt to substantiate petitioner’s story that he had not stolen any of the articles with which he was apprehended. The petitioner did not tell his story to the jury but not only at his trial but in all of his subsenuent proceedings the outstanding weakness in his case has been his failure or inability to suggest the identity of any witness, by name, description or location who would have any information of value to him on any material element of his defense. Mr. Wear testifies that neither he nor Mr. Burnham could elicit any information from their client which would assist them in accounting for his possession of the stolen property except the story told by his wife to the jury.

Seven, neither counsel attempted to prevent the introduction into evidence of the ownership of the car which petitioner had been driving at the time of his arrest. Objection was interposed to the admission r'i this testimony which was overruled (p. 28, record). It developed, 1-Jhat in a conversation with petitioner he told the officer that the car he was driving when apprehended was stolen as were the license plates on it.

Eight, neither counsel investigated the possibility that another person than petitioner might have committed the crimes for which he had been indicted inasmuch as it appeared that one of the counts in the indictment charged the commission of a crime which had occurred six days after the petitioner had been arrested and was in jail. That they did not even attempt to press this point at trial. It is not correct to say that they did not attempt to press this point at the trial. It was developed, by Mr. Burnham, in the cross-examination of Officer Miller (p. 40, record) that the burglary charged in the fourth count was committed while petitioner was in jail.

Counsel did not investigate the identity of the person who might have committed the crime charged in the fourth count of the indictment. It is obvious that they had little or no information upon which they could proceed to investigate this question.

Nine and Ten are directed to the failure of counsel to object to the court’s instructions to the jury that daytime breaking and entering was an included offense of burglary in the night season and in failing to object to the form of verdict submitted to the jury.

Of course, the contention may be made now that counsel did not use the best judgment respecting the charge and the form of a verdict, but that is not the test. What of their judgment at the time of trial? If the view of this court is correct as to the effect of the inclusion of burglary in the daytime as an included offense of the charges against defendant in the instructions of the court and in the verdict submitted, counsel took the course that, at the time, might have been most favorable to their client. If burglary in the daytime was an included offense of the charges in the indictment, a conviction of such an offense may have been beneficial to the defendant and would have resulted in a lighter sentence. If burglary in the daytime was not an included offense, then counsel acted in the interest of their client in permitting the court to present a verdict which permitted a conviction of the offense of burglary in the daytime. Had the jury returned such a verdict, it would, in our judgment, have required, at least, the granting of a motion for a new trial.

Eleventh and Twelfth are to the effect that notwithstanding blatant errors, heretofore pointed out by counsel, and the fact that had Burn-ham or Wear made the slightest research they would have ascertained that the court was without power to charge the jury as to daytime breaking and entering or to submit to the jury a form containing counts charging that crime.

The question as to the correctness of the inclusion of daytime burglary in the charge and in the form of the verdict presented to the jury is not so simple, as stated by counsel. The trial judge, a long experienced jurist, the prosecutor, counsel for the defendant at the trial, the Common Pleas judge who heard the first habeas corpus case, and counsel for the petitioner in that case, in this court and in the Supreme Court, took the view that burglary in the daytime is an included offense of burglary in the night season. It is therefore hardly fair to counsel for the petitioner in his trial, to charge gross incompetence because they did not at the time of trial, or soon thereafter anticipate the view of this court as to the law of the included offenses.

Thirteen, “Burnham emphasized to the jury that he was appointed counsel in the case thus implying that he was not to be blamed for his client’s shortcomings.”

When we read these statements of counsel made during the trial and argument, we were impressed that they might have been objectionable, not for the reasons suggested by petitioner, but because they might have tended to create sympathy for the defendant in that he was indigent, unable to employ his own counsel and had to depend upon appointed counsel.

It is also urged that the fact that Mr. Burnham and petitioner had quarreled prior to Burnham’s appointment as counsel and withdrew but a short time before his appointment disclose his unfitness to represent petitioner, especially as petitioner objected to Burnham’s appointment. There is nothing whatever in the record to indicate that Mr. Burnham, by reason of his differences with the petitioner, failed to give to him the best service of which he was capable. There are some Federal cases that hold that under the U. S. Constitution an accused should have the benefit of counsel of his own choosing. This certainly would not have application to prevent the trial judge naming an attorney, under the statute, to represent a defendant who was indigent although such attorney was not the choice of the defendant. Here Mr. Burnham was, in all probability, best qualified of any available member of the Bar to capably represent the petitioner because of his months of contact with the petitioner and his knowledge of his case, a situation known and appreciated by the trial judge when he made the appointment even over the protest of petitioner.

Petitioner, in his testimony objects that although he gave his counsel leads, they did not get witnesses in his behalf. After years of opportunity of petitioner and his able counsel to produce witnesses there has been at no time a suggestipn of any individual who could have brought into the trial of his case any favorable fact, not produced at his trial, material to his defense. It could not be expected that the man whom the petitioner told the officers had the suitcase containing the stolen property and left it in a lot, if true, could be found and produced at the trial. The petitioner had no alibi, he was apprehended at or near the scene of the burglaries soon after they had been committed. The stolen property was found on his person or in his car. He had been in Clark County only a very short time prior to the commission of the alleged offenses.

We are unable to follow the contention of petitioner that further effort on the part of his counsel could have produced any evidence in his behalf other than that which was offered in the trial unless he himself had taken the stand. He says that counsel advised against him testifying because of a former criminal record. The nature and extent of this former criminal record has not been at any time divulged. Mr. Wear says that the petitioner elected not to testify. However that may be, upon any fact developed in any of the proceedings the failure to compel petitioner to testify cannot be attributed to any incompetence of counsel. Notwithstanding the failure of petitioner to testify, his wife was put on the stand and testified to the story that petitioner told for the first time two days after his arrest. She said:

“We had parked there and noticed a man coming down the other side of the street toward us. He was carrying a suit case and he went in a lot across the street from where we were sitting and came right back out and he didn’t have the suit case. He goes back down the street the way he came in. In a few minutes he come back with something in his hands and my husband said ‘I wonder what he is up to.’ I said T don’t know.’ he went in there and came back and went down the street the same way he came before.”
“Q. Did your husband do anything about this particular suit case? A. Yes. He started the car up. He drove down in the next block from where we were parked, straight down the street and he parked and got out and says ‘Something funny is going on. I will be back in a few minutes.’ He came back with the suit case. Put it in the trunk. He got m the car and drove down around the corner again and got out and left and that is when the police got me.”

It is asserted and argued that the defense made by petitioner’s counsel was a sham. This is a serious charge involving not only capability and judgment of counsel but their professional integrity and good faith in presenting petitioner’s defense. Such a charge should not be made again any member of the Bar unless and until there is competent, reliable testimony to support it. There is not the slightest support for this contention.

What of the conduct of counsel in the trial of petitioner’s case? It is evident that counsel was confronted with a difficult defense. Mr. Wear in his deposition says that in the preparation of the case he asked the petitioner all the questions you would ask a defendant you were trying to defend. That petitioner was not cooperative, which fact had been conveyed to him by Mr. Burnham. Mr. Wear says that he told petitioner that he did not believe anybody would believe his story as to how he came into possession of the stolen goods.

Mr. Burnham, in his opening statement to the jury said that he expected the evidence to develop that defendant was not guilty of the charges against him. Every witness offered by the state was cross-examined. The principal issuable question upon the testimony of the State was the time when the burglaries were committed, whether in the day or in the night season. Counsel realized this and developed and stressed the fact on cross-examination. They also undertook to weaken the testimony of the State respecting the possession of the screw driver by the defendant when he was being transported to the jail. They objected to the introduction in evidence of the articles other than those identified as having been stolen from the burglarized premises, found in the car of defendant immediately after he was apprehended and later in his cabin. We cannot tell from the record whether or not articles other than those claimed to have been stolen from the burglarized premises were offered and admitted as exhibits It certainly is not clear that the testimony respecting the articles found in the car was not admissible and, inasmuch as the court had admitted it, counsel used good judgment in not emphasizing too strongly their objections. It is doubtful if the articles found in the cabin were admissible. Counsel for petitioner developed the obvious mistake of the State in the charge made in the fourth count of the indictment. They elicited from one witness the fact that there was an open door in one of the residences claimed to have been burglarized through which, without breaking, entrance could have been effected.

Objection is urged to the suggestion of counsel that petitioner pleaded guilty to one of the counts of the indictment. In the light of the verdict and sentence and its effect on the probation of petitioner who is to say that the advice was not sound?

It is also urged that it was grievous incompetency for Mr. Wear to devote most of his argument to the contention that the evidence established only a burglary in the daytime. Good lawyers might well differ as to this strategy. Mr. Wear was widely experienced with jurors and said, in substance, that he did not want to urge upon them something which he thought they would not believe and thereby lose the effect of a contention which they might well accept under the testimony.

The experience of courts, such as ours, which have had extended experience in hearing habeas corpus cases is well reflected in the opinion of Diggs v. Welch, 148 F. 2d, 667, 669. The writer of the opinion was discussing the proper interpretation of “effective” representation by counsel, under the Constitutional provision that a defendant has the right to assistance by counsel. He said:

“We are aware if that word be construed in a broad and liberal sense, it would follow that on habeas corpus the court would have to review the entire trial and consider all the alleged mistakes, failures to object to the introduction of evidence and errors in advice which the ingenuity of a convict could set down on paper during the enforced leisure of his confinement. * * *
“The result of such an interpretation would be to give any Federal prisoner a hearing after his conviction in order to air his charges against the attorney who formerly represented him.
“To allow a prisoner to try the issue of the effectiveness of his counsel under liberal definition of that phrase is to give every convict the privilege of opening a Pandora’s box of accusations which trial courts near large penal institutions would be compelled to hear.
“Few trials are free from mistakes of counsel. How much these mistakes contribute to the result can never be measured.”

We have always indulged the presumption that any lawyer who has been admitted by our Supreme Court to practice law is qualified to defend a client against a criminal prosecution. Unless it clearly appear that he is so incompetent, or conducted a defense so negligently and so incapably as to have denied his client the benefit of a fair trial and judicial determination, it may not be said that his client was denied the assistance of counsel or due process of law as contemplated by our Constitution.

We could and probably should have restricted this opinion to the short written decision in the first habeas corpus case heard in this court, which we have heretofore quoted. However, inasmuch as petitioner is serving a sentence of great severity, and inasmuch as two Common Pleas Court judges for whose ability we have high regard have held that the petitioner should be released from the penitentiary upon his sentence of guilt of the three offenses of burglary in the night season, and in simple justice to the attorneys whose professional reputations have been assailed, we have carefully searched the record and considered the contention of counsel at great length. In discussing the respective arguments of counsel we do not mean to hold that they would be of no merit whatever in an error proceeding, but to show that in almost every instance they are susceptible of different interpretations

Giving to the pleadings and all of the testimony in behalf of the petitioner the most favorable interpretation for him, we are convinced, that he did not state a cause of action of habeas corpus in his petition, that he had no basis in law for such an action, that he has offered no substantial evidence that his constitutional rights have been infringed in the specific instances asserted or under the Fifth or the Sixth Amendment of the United States Constitution, that his claim that his defense in his trial was a sham is utterly unsupported and that the second and third assignments of errors, as well as the first, are well made. It is clear that the propositions here urged, if supported, present nothing more than irregularities which should have been raised by error proceedings. As a matter of law the judgment in the Common Pleas Court should have been for the respondent.

All assignments of error being well made, the court will render the judgment here which should have been rendered in the trial court.

Judgment for respondent, petition dismissed and cause remanded.

MILLER, PJ, FESS, J, concur.