author: By HOOVER, J:

text:
    McCOY et, Plaintiffs, v. McCOY, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 607878.
    Decided April 24, 1951.

      Milton C. Portmann, Cleveland, for plaintiffs.
    Krewson & Williams, Cleveland, for defendant.
   OPINION

By HOOVER, J:

This is a feud of the McCoys — not with the Hatfields— but with the McCpys, over the right to use their celebrated Irish name in the competitive furniture business.

Plaintiffs, George and Mabel McCoy, are partners, both in matrimony' and in the furniture business and have their corner store at 4607 Clark Avenue. They are neither kith nor kin to the defendant, Leo McCoy, who has his corner store at 9700 Lorain Avenue. Both George and Leo were born McCoys. Neither business is incorporated.

Plaintiffs claim to have been in business in Cleveland over 20 years. They say they started at 1668 East 73rd Street, moved to 1003 Parkwood Drive in ,1941, and then moved to their present'location on Clark in 1945. In 1946, defendant, who had previously been a seller of lamps', entered the furniture business for the first time and established his store at 4313 Clark Avenue — about 3 blocks from plaintiffs’ store. In June 1949, defendant moved to his present location about 3 or 4 miles away from plaintiffs’ store. Consequently, the parties are no longer within such close irritation sight of each other and time and distance have eased their problem to a degree. This suit was filed in October 1949, several months after defendant’s removal to Lorain Avenue. We are not concerned, therefore, with what defendant used to do (but no longer does or threatens to do) when proximity on Clark Avenue got the parties into each other’s hair, except as it may throw light on the current situation. .

Plaintiffs claim that they have been using the name “McCoy Furniture And Appliances” through the years,' that they were the first users and that they have the exclusive right to use the name.

One cannot but sympathize with each of these McCoys just as one did with two gentlemen by the name of Herbert who at the same time once set about the business of becoming governor. Nevertheless, each McCoy is using his family name and the general rule in Ohio and elsewhere is that one may use his own family name notwithstanding the prior use of the name by others in a similar business. 39 O. Jur., 380, Sec. 34; 63 C. J. 429, Sec. 118. The necessary and incidental inconvenience or loss thereby caused is immaterial. 63 C. J. 429-30, 433, Sec. 118.

However, there are definite exceptions to the general rule. Thus a subsequent user of the same family name can be enjoined from using it in the-same business in the case of deception, artifice, fraud, contract, estoppel or an attempt to pass off his business as the business of the prior user of the name. 39 O. Jur. 380-81, Sec. 34, 409-10, Sec. 69; 63 C. J. 429-33, Sec. 118. None of these exceptions have been established here. The' normal presumption is that the use of one’s own name is an honest use. 63 C. J. 436, Sec, 119.

There is yet another exception to the general rule which has been recognized by our Court of Appeals and is so important that it deserves special attention. It is known as the doctrine of secondary meaning. It holds that where a family name, through the business of a prior user of that name, has acquired a secondary meaning, the prior user will be protected against a subsequent user of that name in the same business. 63 C. J. 433-36, Sec. 119.

What is a secondary meaning as applied to a family name? It is a second or additional meaning that has become attached to that name when, through use of that name in a particular kind of business in a particular area, that name, in the mind of the public, has come to be identified or associated with a particular owner’s business. That identification need not be universal, but it must be by a substantial section of the buying public. A secondary meaning is a pointer — pointing to a particular business. A good example is the case of Stern Furniture Co. v. Stern, 52 Abs 527, decided by our Court of Appeals.

This McCoy case is different from the Stern case in that plaintiffs have failed to prove that “McCoy” has acquired a secondary meaning in the furniture business, that is, that in the furniture business “McCoy” means the plaintiffs’ business. From the evidence, the Court has only the haziest, if any, idea about the nature or extent of plaintiffs’ business —certainly nothing on which to establish a secondary meaning. Singularly, not one single independent witness came to testify for plaintiffs — not one customer, not one member of the trade, not one member of the public. The plaintiffs were their own sole witnesses. Particularly dim is the picture of the nature and extent of plaintiffs’ business before they moved on Clark Avenue. They claim to have been doing business prior to that on East 73rd Street and on Parkwood Drive which is near East 105th Street — for a period of at least 15 years. How far and intensely those East side operations echoed over Cleveland and into the West side we are not told. Plaintiffs did not introduce even such elementary written records as telephone books, city directories and the like, to show that through those years they held themselves out and were known to the public and in the furniture business' under the name “McCoy Furniture And Appliances,” where surely they must have been listed if prior use had created such a secondary meaning that Cleveland had come to recognize that in the furniture business “McCoy” meant plaintiffs’ business.

Strangely, not even now does the name “McCoy Furniture And Appliances” appear on plaintiffs’ store front. In fact, four different names appear there, namely “Geo. McCoy’s Television, Furniture And Appliances”; “McCoy’s”; “Geo. McCoy” and “McCoy Furniture.”

With the litigants’ permission, the court visited each McCoy store. We do not think that the defendant’s storefront was designed to be passed off as plaintiffs.” Their respective ideas of hów to reach the public through a store front are entirely different. One literally uses a riot of colors and signs. The other, in color and signs, is paucity and simplicity personified. When being cross-examined about the signs on the front of plaintiffs’ store, the plaintiff Mable McCoy exclaimed that they had “so darn many signs” she couldn’t remember them. The two big words that dominate defendant’s store front are “Furniture” and “Appliances.” In fact, they are so big and blatant in comparison with defendant’s own name that they steal the show away from it and on first glance one might think that the name of the proprietor was “Furniture Appliances” instead of Leo McCoy or McCoy. Perhaps that was what irked the plaintiff George McCoy to say on cross-examination that he didn’t object to the defendant using the name McCoy, but that he did object to the defendant using “Furniture and Appliances.” One may as well try to stop a competitor from using the words “grocery,” beauty parlor,” “drug store” or “bread.” Words which are in general use to describe an article of trade or a kind of business belong to the people. There are exceptions but none have been established here. The words “Furniture And Appliances” are used by many competing stores in Cleveland as was shown by the current classified telephone directory produced at the trial. Plaintiffs can no more stop defendant from using “Furniture And Appliances” than can competitors stop plaintiffs from using those words. 63 C. J. 424-426, Sec. 115, 393-396, Secs. 102 and 103; 39 O. Jur., 374-377, Secs. 27-29, 407-408, Secs. 66-67.

The parties are to be commended for attempting to solve their own difficulties. On defendant’s store front, his full name “Leo McCoy” appears in no less than six places. On his stationery, envelopes, business cards, checks, receipts, statements and current telephone listing he is using his full name “Leo McCoy.” On his business cards and statements he even has his picture. The plaintiffs, too, have in good faith attempted to solve the problem by putting Mr. McCoy’s first name in front of McCoy, both in the telephone book and on plaintiffs’ store front. Unfortunately when plaintiffs undertook to do this on their store front, instead of using the full name “George,” they abbreviated it to — “Geo.”— which, to one quickly passing by, might be taken to be defendant’s first name — “Leo.” Defendant says that he can’t elongate or abbreviate his first name “Leo,” but that plaintiffs don’t have to create confusion by abbreviating “George.”

One further thing has defendant done to solve the problem. On his business card and in the classified and telephone listing he bills himself as “The Real McCoy.” That, the plaintiffs definitely do not like! They claim that is carrying the attempt to differentiate too far. They say that that implies that plaintiffs are not real McCoys.

Perhaps this is the first court in the world that has ever had to determine the meaning of the celebrated phrase “The Real McCoy.” There is a historical dispute as to how it originated. As a student of Americana and as one who has slept and eaten in the hospitable mountain cabins of the feudin’ McCoys of Peter Creek Hollow in Pike County, Ky. — along which hollow the rifles of a former generation of McCoys, in ambush, once dropped 16 Hatfields at once — it was surprising to learn that the authorities do not credit one of these with being the original “Real McCoy.”

One version, that of O. O. McIntyre, is that the phrase originated when a drunk picked a quarrel with Kid McCoy, welter-weight champion of the world, refusing to believe that he was the prize fighter. After discovering his mistake and picking himself off the floor, as part of the res gestae he exclaimed “It’s the real McCoy.” Another version attributes the phrase to Bill McCoy, notorious Atlantic coast rum-runner in the early days of prohibition who was so honest, so the version says, that he carried only the best liquor; accordingly, “The Real McCoy, came to signify quality. The American Language (1936) by H. L. Mencken, pp. 579-580; 31 C. J. S. 516-19, Sec. 12, 648-50, Sec. 67.

Whichever version one takes, certainly it must be said that the phrase is in daily use among the American people; tliat it is doubtful that there is a living McCoy who has not on some occasion referred to himself as “The Real McCoy;” and that when he did so he did not mean that all other McCoys were spurious.

The truth here is that both of these McCoys are “Real McCoys.” This Court will not prohibit the defendant from using that innocuous phrase. Even in this serious world, people enjoy and the law permits to business men, and to others who desire to do it, a little harmless bugle blowing and drum-major strutting to snatch a share of the public’s attention.

Plaintiffs’ petition for injunctive relief is denied.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    LAVELL, Plaintiff-Appellant, v. RASKIN HOTEL COMPANY, Defendant-Appellee.
    Ohio Appeals, First District, Hamilton County.
    No. 7367.
    Decided February 20, 1951.
    Burke & Cooney, Cincinnati, for plaintiff-appellant.
    Rendigs, Fry & Kiely, Cincinnati, for defendant-appellee.
   OPINION

By THE COURT:

In this case there were two issues submitted to the jury— negligence, and contributory negligence. A general verdict for defendant was returned by the jury. No interrogatories were submitted.

We have examined the record and the claim of errors by the appellant. We find no prejudicial error relating to the issue of negligence. Appellant claims error in that part of the charge relating to the testimony of an expert witness but the most that can be said about it is that the court did not specifically state that if the jury found the assumed facts to be true, then they would not be bound thereby, but were bound to give his opinion such weight as their sound judgment and experience would dictate. There was no special exception to this part of the general charge. The error, if any, is one of omission, not commission.

It is also assigned as error that the Court, after properly charging on the burden of proof on the issues of negligence and contributory negligence, and the degree of proof to discharge the burden, then charged: “If you find by the weight of the evidence that both the defendant and the plaintiff were guilty of negligence” then the plaintiff could not recover. It is urged that the court should have used express language indicating a tilting of the scale. As this language was applied impartially to both plaintiff and defendant, it could not possibly have prejudiced the jury, particularly in view of the fact that the court had already defined the burden of proof as it applied to contributory negligence as well as to negligence.

A reference to 45 “Words & Phrases,” 19, and other sources, seems to indicate that “Weight of Evidence” has been frequently used to indicate greater weight of the evidence.

The appellant also claims that the court erred in charging that if the water which overflowed came from faucets which plaintiff had opened and left open, then plaintiff was negligent, without leaving the issue of reasonable care, in that instance, to the jury.

It would appear that this is error and would require a reversal if the record showed it was prejudicial. However, as already noted, there were two issues in this case. The issue of negligence was properly submitted, and it may very well be, so far as this record discloses, that the verdict was based on the jury’s conclusion that the defendant was not negligent, and thus, the issue of contributory negligence was never reached. Bush v. Harvey Transfer Co., 146 Oh St, 657.

For these reasons, the judgment is affirmed.

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


text:
    ROSE, Plaintiff-Appellee, v. BRANDEWIE, Exr., Defendant-Appellant.
    Ohio Appeals, Second District, Shelby County.
    No. 156.
    Decided October 26, 1950.
    Taylor Cummins, R. E. Boiler, Jr., Sidney, for plaintiff-appellee.
    E. J. Garmhausen, Sidney, for defendant-appellant.
   OPINION

By THE COURT:

We have made a careful examination of the bill of exceptions, assignments of error and briefs of counsel and are of the opinion that no prejudicial error intervened during the course of the trial. The Court properly instructed the jury on all of the issues presented and the verdict was supported by sufficient evidence. The only error assigned upon which we shall make specific comment is the alleged error in the admission of testimony. The record discloses that several witnesses testified as to the value of board, lodging and laundry services, which is the subject of this action, furnished to the defendant’s decedent. These witnesses were laymen not having qualified as experts. We are of the opinion that knowledge of values of the type of services rendered here does not depend upon professional or special skill. Persons of common experience and observation gain some knowledge of the values here in question. In Jones on Evidence, Fourth Edition, Volume II, Sec. 363, it is said:

“And the reports abound with cases in which the opinions of ordinary witnesses as to values have been admitted in evidence. The knowledge of values in most cases does not depend upon professional or other special skill; and witnesses, without having had peculiar experience or training which would entitle them to qualify as experts, may yet have gained such knowledge of the property or other subject of inquiry, as to be of aid to the court or jury in arriving at a conclusion; and in such cases their opinions are generally received in evidence.”

We are therefore of the opinion that the trial court did not err in the admission of testimony. All of the remaining legal questions presented were passed upon by this Court in the case of Corbin v. Bort, Exr., 33 Abs 487.

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

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


author: By FESS, J:

text:
    ARTHUR et, Appellants, v. BENDER et, Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22083.
    Decided March 15, 1951.
    Lody Huml, Cleveland, for plaintiff-appellants.
    Edmiston, Boldizer, Schneider & Zellmer, Cleveland, for defendant-appellees.

      (CARPENTER, PJ, FESS and CONN, JJ, of the Sixth District sitting by designation in the Eighth District.)
   OPINION

By FESS, J:

Appeal on questions of law from a judgment of the Common Pleas Court denying the relief prayed for in the plaintiffs’ petition for injunction and other relief and entering judgment against plaintiffs for costs.

The petition was not formally dismissed, but no complaint is made upon this appeal regarding the finality of the order. A temporary restraining order previously granted had expired and the case was heard upon the merits as and for a permanent injunction.

Plaintiffs sought to enjoin the defendant from moving an old house and setting same upon sublot No. 212 in the Village of Warrensville Heights, located across the street from plaintiffs’ lot in the same subdivision. The evidence disclosed that there was a uniform and general plan of development containing nineteen specified restrictions relating to the lots in the subdivision, including those of plaintiffs and defendant. The original agreement between the owners recited that the premises should be subject to the restrictions until July 1, 1975. One of these restrictions provides that

“No building of any kind shall be moved upon any lot and no building shall be constructed containing any used or second-hand material.”

Torrens Title Certificates were issued to the parties containing the restrictions which were also designated as covenants with the land.

Prior to purchasing the house, on July 5, 1950, defendant in compliance with an ordinance of the village secured a permit to move the house and erect it upon her lot. She was not aware of any objections on the part of her neighbors until after the basement and foundations were constructed and the house raised thereon. On July 27, the objectors appeared at a meeting of the village council and protested against the issuance of the permit because it violated the restrictions relating to the allotment contained in the deeds. The defendant was present at this meeting. Apparently the protest was disallowed by the council on the ground that under the applicable ordinances, permits for moving and erection of buildings are issued in compliance with such ordinances without regard to any building restrictions incorporated in the deeds. Plaintiffs filed their petition herein on July 29, 1950; temporary restraining order was granted August 3, 1950, to be effective until August 10th, 1950, to which the cause was continued for further proceedings.

There was no credible evidence tending to show that the restrictions had been disregarded to such a substantial extent as to indicate acquiescence on the part of the plaintiffs and the other lot owners. In his, opinion, the trial court states that he inspected the property complained of and noted that similar type of buildings are situated in the immediate neighborhood. We regard this statement as insufficient to substantiate defendants’ claim as set forth in her answer that the restrictions have been violated in numerous instances.

The lot in question is a corner lot on the edge of the allotment and abuts upon a mud road. The property across the road is a large unimproved field. The rear of defendants’ lot is across the street from plaintiffs’ property. The side of the street upon which plaintiffs’ home is located is improved with modest but well-kept homes. Photographs show that defendants’ house is somewhat unsightly and to be of a sufficient vintage to have lightning rods. Defendant testified that her plans included the shingling of the outside of the house by way of improvement. The architects drawing and plans were offered as Exhibits but are not a part of the Bill of Exceptions. There was no evidence of actual damage to be suffered by plaintiffs.

In its memorandum denying the injunction, the common pleas court found that there was no over-all plan as to the restriction pursuant to which all of the original property owners or their successors in title were bound to abide. The court apparently overlooked the fact that there was admitted in evidence a copy of the original recorded plat, the restrictions relating thereto and the defendant’s Torrens Certificate of Title reciting that defendant is the owner in fee simple of the lot in question subject to the restrictions contained in the original agreements between the predecessor owners and also subject to the nineteen specified restrictions set forth in the certificate.

The court also held that the permit to move the house to the lot and the absence of any zoning restrictions relating to its erection weighed the equities in favor of the defendant, and that property owners should be vigilant in requiring that protective reasonable restrictions according to law and changing times and circumstances be enacted by local law. The enforcement of appropriate building restrictions incorporated in dedications and deeds antedate zoning regulations by a number of years.

Stines v. Dorman (1874), 25 Oh St 580 and cases cited on page 583.

It is well settled in Ohio that a court of equity will enforce the observance of valid restrictive covenants as to the use of property which run with the land, where the grantee has notice of such covenants. Grant v. Hickok Oil Co. 84 Oh Ap 509 and cases cited on page 513. But it is not essential to the right of a plaintiff to have such restrictive covenant enforced in equity that the same should be technically speaking a covenant running with the land of the defendant in a case where the defendant has actual or constructive notice of the restriction. Brown v. Huber, 80 Oh St 183, 201.

In the instant case, the defendant had notice of the restriction in her certificate of title as previously indicated. There is no evidence of any actual damage which the plaintiffs and other lot owners might suffer as a result of the erection of defendants’ building, but proof of actual damage is not required as a basis for granting relief. The nature of the damages is such as not to be susceptible of proper assessment by the trier of the facts. Stines v. Dorman, 25 Oh St 580.

In Brown v. Huber supra, there was likewise no finding that the contemplated improvement would appreciably injure or damage the property of the plaintiff, but the Supreme Court directed the issuance of the injunction. See also: Dales v. Albrecht, 11 Oh Ap 368.

Inasmuch as plaintiff elected to appeal on questions of law rather than law and fact, the judgment of the common pleas court is reversed and the cause remanded for further proceedings in accordance with this opinion and without prejudice, upon a retrial to the right of defendants to submit evidence tending to show substantial abandonment of the restrictions or an acquiescence therein on the part of the several owners of the lots and such other matters of defense as may be germane to the issues.

Judgment reversed and cause remanded. Exc. Order see journal.

CARPENTER, PJ, CONN, J, concur.


author: By THE COURT.

text:
    DICKSON, Estate of, in re: DEPARTMENT OF TAXATION, Appellant, v. DICKSON, Exr., Appellee.
    No. 4469.
    Decided October 27, 1950.
    Ohio Appeals, Second District, Franklin County.
    Hon. Herbert S. Duffy, Atty. Geni., Robert E. Younger, Asst. Atty. Geni., Columbus, for appellant, The Department of Taxation of Ohio.
    Sol Morton Isaac, Columbus, for appellee.
   OPINION

By THE COURT.

This is an appeal from a judgment of the Probate Court sustaining the executor’s exceptions to the determination of inheritance tax, thereby holding that certain stock which decedent had held in his lifetime had been disposed of by a gift to his son Arthur F. Dickson which was not made in contemplation of death.

There is no dispute as to the law which controls the determination of the controlling question in this case. The controversy between the parties is to the probative effect of the facts. To restate them would serve no good purpose. It was the province of the Probate Judge, in the first instance, to weigh and resolve these facts, which he did in favor of the appellee. Unless his action in weighing the evidence is manifestly unsupported by any reasonable view thereof we may not reverse. We cannot so hold. There is support in the record for the judgment. It will be affirmed.

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


author: By WATTERS, J.

text:
    ESTES, Plaintiff, v. GOODYEAR TIRE & RUBBER COMPANY, a Corporation, Defendant.
    Common Pleas Court, Summit County.
    No. 170960.
    Decided June 29, 1951.
    Maurice H. Shapiro, Cleveland, for plaintiff.
    Walter E. deBruin, Akron, for defendant.
   OPINION

By WATTERS, J.

This is an appeal from the decision of the Industrial Commission disallowing the claim of Mrs. Mae Estes, widow of Nolvice Estes, against the defendant here, The Goodyear Tire & Rubber Company, a self insurer.

The widow and plaintiff here claims that on or about December 4th or 5th, 1944, the deceased employee was helping to clean out a tube machine and was pushing a bar when he twisted his back, which proximately caused to develop an aggravation of the preexisting quiescent, non-disabling multiple myeloma (cancer of bone marrow) which directly and proximately caused his death on January 31, 1946.

All the necessary steps were taken to bring the matter on appeal to this court. The matter was tried upon the record to this court without a jury.

The only evidence in the record as to decedent’s injury is contained in Mutual Exhibit X and X-l admitted in evidence by mutual consent. (See page 16 of the record.)

These exhibits were the Goodyear Company’s Dispensary or Hospital Record and contain the only evidence of any kind on what it is claimed happened on December 4th or 5th, 1944, as to claimed injury.

Under History of Accident (appears): “Claims while helping clean out No. 5 Tube Machine, was pushing on bar and twisted his back.”

There is no question that ordinarily such a statement given by the deceased to the defendant’s dispensary attendant as to how the accident occurred is wholly inadmissible even though a part of the hospital record of the company.

See a full discussion of this matter in 143 Oh St 421, Schmitt v. Casting Company (1944) at page 424 and 425, where the court had exactly the same kind of statement ¡by the employe in a dispensary record.

The plaintiff there claimed that the statement was admissible under §12102-23 GC.

The court held that said statute did not make such a statement admissible.

The court on page 425 cites a Michigan Supreme Court ruling on its similar statute in Kelly v. Ford Motor Company, 280 Mich. 378; 273 N. W., 737, which ruled the same way. The Michigan court said in part: “The statute should not be construed in a manner that would make the reports and records admissible when the oral testimony of the same facts would be inadmissible, (as mere hearsay)

(That in paranthesis above added by the court.)

In other words if the dispensary attendant was called and sought to give the statement of the employe to her, her testimony would be inadmissible as hearsay. So had counsel for the defendant objected to this part of the hospital record, it would have been error to admit the statement of the deceased therein. But counsel agreed that the whole record should be admitted, including the part in question, and it was admitted. Later on counsel at a later session of the hearing first raised an objection to the part of the record in question.

In this court’s opinion defense counsel could not raise an objection after having agreed to admit the record fully. So the statement is before the court, and is the only evidence of the claimed injury. But does it show an accidental injury under the Ohio Workmen’s Compensation Act and Ohio deck-ions of our Supreme Court?.

“Claims while helping clean out No. 5 Tube Machine, was pushing on bar and twisted his back.” From ought that appears the deceased was doing nothing different from what he did regularly in the regular course of nature in the usual and normal activities of his employment.

The court is left with only a guess and speculation as to what really happened. There is no evidence of sudden or unusual strain as called for by the cases later cited. No accidental injury is shown.

In the court’s opinion the plaintiff has failed to prove an accidental injury to deceased.

To constitute- an accidental injury it must appear that the death or injury was caused or contributed to by some act which was different in kind or in exertion from the regular, ordinary work performed by the workman and those engaged in like occupation. It must be a sudden unusual occurrence.

The above is cited from page (13) of Nelson v. The Industrial Commission, 150 Oh St, 1. This case discusses many cases of the Supreme Court on accidental injury.

See also the later case of Gerich v. Republic Steel, 153 Oh St, 465:

“1. Under the Ohio Workmen’s Compensation Act, to entitle a workman to compensation for injury, he must suffer a traumatic injury in the course of and arising out of his employment other than an injury which may occur in the regular course of nature from the usual and normal activities of his employment.

2. It is the duty of a party on whom the burden of proof rests to produce evidence which furnishes a reasonable basis for sustaining his claim. If the evidence so produced furnishes only a basis for a choice among different possibilities as to any issue in the case, he fails to sustain the burden as to such issue.

3. Evidence which shows simply that an injury either may have been the result of an accident in the course of and arising out of employment or may have been suffered in the course of employment in the regular course of nature in the usual and normal activities of the employment is not evidence to support a workmen’s compensation claim.” (Emphasis by the court.)

A simple and generally accepted definition of traumatic injury is: “Bodily injury produced by violence.”

See 144 Oh St, 22, Maynard v. The B. F. Goodrich Company, where the workman received a sudden strain, and the evidence showed that he and other like workmen had never handled a fabric roll as large and heavy as the one which caused the injury.

See also 148 Oh St, 693, Sebek v. Cleveland Bronze Company.

It will be noted that the Workmen’s Compensation Act of Ohio nowhere mentions the words accident or accidental injury. It may be that the legislature originally intended that all persons injured in any way while at work, including certain occupational diseases, should recover, except where the workman intentionally injures himself. However the Supreme Court of Ohio has committed our courts to the accidental injury interpretation as outlined in the above cases.

Interesting questions arise' as regards the testimony of Dr. Friedman, who never had treated or seen the deceased. He was called as an expert to show that the claimed' injury aggravated the claimed preexisting condition of multiple myeloma.

The hypothetical question or questions to Dr. Friedman allowed him to examine the various hospital records and to assume the facts and opinions he found therein, excepting that he was asked to eliminate the history part of the records. It is doubtful whether the doctor understood or paid any attention to this instruction to eliminate the history. There is nothing to show what the doctor did consider. Such method of presenting a hypothetical question is improper.

It is a well known rule that hypothetical questions to an expert must include the facts that the expert is allowed to assume. The expert has no right to base his opinion on the expert opinion of another expert, and that should be doubly true where the so called expert opinion is in a hospital record, and the other side has had no opportunity to cross-examine the doctor v/ho for all that is known-may have just guessed at the opinion he wrote in the hospital record, or may have based it on history given him by the patient or his family, or on other improper hearsay evidence.

This matter certainly should be cleared up by the courts of Ohio.

See 98 A. L. R. 1106, etc. and cases cited in the note following the main case.

In addition to what I have said as to no showing as to accidental injury, I question whether there is any probative evidence from Dr. Friedman as to causal relationship for the reasons above stated. When the hypothetical question which should contain the claimed proven facts gets into the realm of what some other expert’s opinion is, you are on dangerous ground, especially where the first expert is not called to testify, but writes his opinion in a hospital record, and you don’t know on what it is based.

The court will therefore sustain the objection of the defendant to the hypothetical question to Dr. Friedman on causal relationship. On this point — hospital records, see 147 Oh St, 416, at page 427, where the court distinguishes between notations in the record that are observable facts and those that are mere opinion and speculation. The latter are not admissible evidence.

Judgment will be given in favor of the defendant. Exceptions.


text:
    PITZ, Plaintiff-Appellee, v. HALL, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4389.
    Decided September 18, 1950.
    John R. Schickler, John M. Scott, Columbus, for plaintiff-appellee.
    L. P. Henderson, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

We have read and considered the entire.record and find no alleged errors well made. Any defect in service was waived by a general appearance on the part of the defendant. Vol. 32, O. Jur. pp. 511, 512. Furthermore, it reasonably appears that Mrs. William B. Hall and Lucille Hall is one and the same person. We find no error in the record which affects the substantial rights of the defendant and in our opinion substantial justice has been done.

Judgment affirmed.

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


text:
    STATE, Plaintiff, v. MAJOR, Defendant.
    Common Pleas Court, Summit County.
    No. 24944.
    Decided November 16, 1950.
    Alva J. Russell, Pros. Atty., Robert I. Azar, Asst. Pros. Atty., Akron, for the State of Ohio.
    James M. Hinton, Joseph J. Wozniak, Akron, for defendant.
   OPINION

By WATTERS, J.

The court orally delivered his opinion on this matter, but held it in abeyance for final study.

The court still believes that the defendant is not entitled to inspect or copy any written statements or confessions of the defendant that may be in the hands of the prosecuting attorney.

There is a grave doubt under the authorities whether §§11551, 11552 GC, etc. apply to criminal cases at all.

See State, Appellee v. Johnson, Appellant, Mont. Co. Court of Appeals, 57 Abs, 524, second syllabus. (Ohio Bar Oct. 23, 1950.)

The appeal to the Supreme Court was dismissed (See Nov. 6th, 1950 Ohio Bar, page 236). (See also 52 Abs 523.) Also see the earlier cases of State v. Rhoads, 81 Oh St, 397, and State v. Yeoman, 112 Oh St, 214. The syllabus in this latter case is directly in point.

It is true, as contended by the defendant, that the Rhoads and Yeoman cases above were decided before the legislature in 1929 passed §13444-1 GC, which is as follows:

“The rules of evidence in civil cases in so far as the same are applicable, shall govern in all criminal cases except as otherwise provided in this code.”

However in 1937, in the case of State v. Hahn, 10 O. O. 29, (affirmed in Court of Appeals, 11 O. O. 560) the court held §11552 GC not applicable to a criminal case.

See also the Johnson case above, 57 Abs, 524.

The Cuyahoga County Court of Appeals, in 1940 discussed this matter in State v. Cala, 20 O. O. 400, and lays down the rule that the allowance of a request to order the prosecuting attorney to permit the defendant to inspect and copy a confession is within the sound discretion of the trial court. The question then becomes one of abuse of discretion.

This latter court contained the following language in the opinion regarding the case of State v. Fox, 133 Oh St 154:

“It is said that the Supreme Court has indicated in State v. Fox that this section is applicable in criminal cases, and that it gives the defendant an absolute right to inspection. The syllabus to that case contains nothing whatever upon the subject, and the most that can be said is that the judge who wrote the opinion believed the section was applicable. He did not say the court was required under all circumstances to grant the request. That question was not involved.”

Personally discussing the Fox case — it will be observed that the question there involved was that of joint or separate trials of the defendants. There was also involved the question of a written confession signed by the defendant Barker.

I would say in a case of forgery for instance the defendant would be entitled to inspect and copy all of the claimed forged instruments and other documents of hand writing, etc. that the State expected to offer, so the defendant would be able to prepare his defense, as to handwriting experts, etc. See 54 Oh Ap 496, the McNary case, under the Banking statutes.

Also it may be that under the authority of the dictum in the Fox case, the Supreme Court would hold that a written signed confession of the defendant which the State anticipated offering in evidence as a document and exhibit in the case, would be subject to inspection and copy by the defendant, otherwise it could not be introduced as an exhibit. However I believe, even then nothing would prevent the State calling witnesses who heard the defendant make the statement as to various admissions made, and the State could probably use parts of it for impeachment purposes when the' defendant testified.

In any event it is interesting to note that the Supreme Court, in 154 Oh St 236 (Oct. 11, 1950) did not allow the Johnson case (57 Abs, 524) cited above, to come before it when it could have flatly decided the applicability of §§11551 and 11552 GC to criminal cases.

See Ohio Bar for November 6, 1950, at page 236.


author: By WISEMAN, J.:

text:
    ERTEL, Plaintiff-Appellant, v. DeWITT, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 1975.
    Decided November 12, 1949.
    Curtner & Brenton, Dayton, for plaintiff-appellant.
    Scharrer, Scharrer & Hanaghan, Dayton, for defendant-appellee.
   OPINION

By WISEMAN, J.:

This is an appeal on questions of law from the Common Pleas Court of Montgomery County, Ohio, in an action in which the jury rendered a verdict for the defendant on which the court entered judgment. A motion for new trial was filed and overruled.

The plaintiff in his amended petition alleged that on October 1, 1945 he and the defendant, together with five other men, were hunting pheasants in a cornfield near Clark, South Dakota; that the defendant negligently and with reckless disregard for the safety of the plaintiff discharged his shotgun in the direction of the plaintiff; that as a result of this negligent act of the defendant the plaintiff was struck in the head, face, body and hands with pellets from the defendant’s shotgun, causing serious personal injuries. The defendant in his answer admits that the plaintiff was shot in the right eye and that he sustained certain personal injuries, but that said injuries were sustained by the plaintiff through no fault nor from any negligent or reckless act of the defendant.

The plaintiff-appellant assigns as error: That the verdict of the jury and the judgment rendered thereon is contrary to law, is not sustained by sufficient evidence, and is against the manifest weight of the evidence. The appellant further contends that the trial court erred in its failure to charge the jury on the doctrine of res ipsa loquitur; in failing to give plaintiff’s special charge No. 6; in the admission of testimony; in overruling the motion for new trial. The appellant further contends that there were irregularities in the proceedings which prevented him from having a fair trial.

There was a definite conflict in the testimony on the question as to whether the defendant pointed his gun in the direction of the plaintiff at the time it was discharged. At the time the pheasants were flushed several of the birds flew in a northerly direction and several in a westerly or southwesterly direction from the position of the hunters. The plaintiff contended that the defendant discharged his gun while it was being pointed in a northeasterly direction, i. e., in the direction of the plaintiff. The defendant contended that he shot at the pheasants which flew in a westerly or southwesterly direction and that at no time did he point his gun in the direction of the plaintiff. Immediately after the pheasants were flushed several of the hunters, other than the defendant, discharged their shotguns in the direction of the birds and several were killed. The evidence shows that with the exception of the defendant and one other hunter at the south end of the line all of the hunters were in the cornfield at the time the shooting took place and at the time the plaintiff was injured. The evidence shows that the hunting took place in a field of standing corn, which had not been husked. Several of the witnesses testified that the corn was from six and a half to seven feet tall, making it difficult for the hunters to observe each other as they passed through the cornfield.

The question whether the plaintiff was injured by the negligent act of the defendant in discharging his shotgun in the direction of the plaintiff was one to be decided by the jury. The jury resolved this issue in favor of the defendant. In view of the conflict in the evidence this Court cannot say that the verdict of the jury was not sustained by sufficient evidence or was against the manifest weight of the evidence.

The issues made by the pleadings and the evidence adduced did not require the court to charge on the doctrine of res ipsa loquitur.

We find no error in the record prejudicial to the appellant relative to the admission of evidence offered by the defendant, neither does any irregularity appear which prevented the plaintiff from having a fair trial. The court properly refused to give plaintiff’s special charge No. 6, as it was incomplete. The verdict of the jury and the judgment of the court was not contrary to law, and the motion for new trial was properly overruled.

Judgment affirmed.

MILLER, PJ, and HORNRECK, J, concur.


author: By PHILLIPS, PJ.

text:
    NEITZ, Plaintiff-Appellee, v. WILLIAMS et, Defendant-Appellant.
    Ohio Appeals, Seventh District, Jefferson County.
    No. 1033.
    Decided June 3, 1950.

      Kinsey & Allebaugh, Steubenville, for plaintiff-appellee.
    George A. King, Steubenville, for defendant-appellant.
   OPINION

By PHILLIPS, PJ.

Plaintiff in the court of common pleas, appellant here, who died since this appeal was filed, and whose administratrix has been substituted in his stead, will be called plaintiff in this opinion, and defendants, husband and wife, there and appellees here will be called defendants.

Plaintiff sued defendants in the court of common pleas to recover a judgment against them for professional services rendered them and their family from September 29, 1929, to August 18, 1944, during which time the relationship of family physician and patients existed between the parties. On August 18, 1944, when the balance due plaintiff physician for services rendered between the dates stated was $121.00, defendants made a payment of seven dollars on account to plaintiff without direction as to which item of indebtedness, or for which particular professional service, it should be applied, or direction as to whether it was to be applied on a general balance.

By answer defendants alleged that the statute of limitations had run against such account. The parties waived trial by jury and submitted their controversy to the trial judge, and rested without the introduction of any evidence.

The trial judge found for the plaintiff in the amount of seven dollars and entered judgment accordingly. From that judgment plaintiff appealed to this court on questions of law.

By five assigned grounds of error plaintiff contends that the trial judge “erred in applying the law to the facts established,” and “in the determination of damages due and owing to the plaintiff”; and contend that “the judgment is not sustained by sufficient evidence and is contrary to law,” that “the judgment is contrary to law”; and that there are “other errors of irregularities apparent upon the face of the record of the proceedings herein.”

On May 16,1930, the balance due for such services was $90.00, and between that date and August 11, 1944, it increased to $121.00.

By brief counsel for plaintiff argues:—

“The Statute of Limitations is remedial in its effect and does not go to the existence of the debt or the duty to pay, but merely to the legal remedies available to the creditor. From this beginning, the courts are prone to favor the creditor rather than the debtor as there are few definite principles of guidance and these are subject to many qualifications. (31 O. Jur., pg 197, paragraph 108.)”

Citing as authority 25 O. Jur., page 622, defendants contend that:—

“A credit upon an account, after the cause of action on the same is barred by the statute of limitations, will not be treated as part payment thereof, unless shown to have been so intended by the party.”

Also defendants contend that when the seven dollar payment was made on the account that the matter was not discussed, and that the plaintiff “merely gave a receipt for the seven dollars.”

While it is true that “where a physician treats a patient in a case of a particular disease, it may be concluded that the fee for such connected services will not be due until the physician has finished his services or has been discharged from the case, insofar as the right of action thereon accrues”; yet in the case we review there was no connection between the several items of plaintiff’s account. The services were not rendered in one illness nor one case, nor continuously rendered, and there were no items entered thereon between the years 1932 and 1944.

“* * * The rule in Ohio is that in actions on open and running accounts the Statute of Limitations applies to each item of the account, and each of such items will be barred in six years after the right of action accrued thereon.” 25 O. Jur., paragraph 38, page 462.

‘The statute of limitations begins to run against each item cf an account at its proper date.” San Collection Co. v. Ward, 20 O. O. 120.

“A credit upon an account after the cause of action on the same is barred by the statute of limitations, will not be treated as nnrt payment thereof, unless shown to have been so intended by the parties.” Kaufman, Administrator v. Broughton, 31 Oh St 424.

Considering the evidence in the case we review, and applying the law applicable thereto, we conclude that the trial judge did not err to the prejudice of the plaintiff in any of the respects he urges, upon which we pass.

Appellant’s counsel has failed to call our attention to “other errors apparent on the face of the record,” as alleged as a ground of error; nor to comply in respect thereto with the provisions of Rule VII of this court that his briefs “shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Accordingly we will not pass upon this assigned ground of error.

The judgment of the court of common pleas is affirmed.

NICHOLS, J, GRIFFITH, J, concur in judgment.


author: By THOMPSON,’ J:

text:
    KLUTH, Plaintiff-Appellee, v. ANDRUS et, Defendant-Appellees, PATTON, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22022.
    Decided July 23, 1951.

      Neil W. McGill, Ralph L. Bailey, Cleveland, for plaintiffappellee.
    Emery C. Smith, Cleveland, for defendants-appellees.
    George J. McMonagle, Cleveland, for defendant-appellant.
   OPINION

By THOMPSON,’ J:

This case came to this court on appeal on law by defendant-appellant, Patton, from a judgment of the Common Pleas Court granting a permanent injunction to plaintiff Kluth in accordance with the prayer of his petition. Defendants are the Director of Public Safety of Rocky River, Ohio, the members of the Civil Service Commission of that city and the intervening defendant, Martin F. Patton.

The facts admitted by the pleadings disclose that under date of June 23, 1949, plaintiff Kluth and defendant Patton, being then Sergeants of Police, took a promotional civil service examination given by the City of Rocky River for appointment as Lieutenant of Police; that on August 16, 1949, plaintiff, having been certified as receiving the highest rating in said examination, was appointed Lieutenant; that subsequently, on October 31, 1949, the defendant Patton, filed an action in the Common Pleas Court of Cuyahoga County, being cause No. 608225, against the Civil Service Commission of Rocky River and other city officials, as defendants, claiming he had not been properly graded nor given proper credits in his examination by the said Civil Service Commission; that after hearing, the Common Pleas Court on February 13, 1950, in said action between Patton and the Civil Service Commission, ordered the latter to make up the eligible list for the position of Lieutenant, either by re-grading the examination previously given under date of June 23, 1949, excluding certain performance record portions of the test, or to make up such eligible list by a further examination. The court, at the same time, issued an order to the Civil Service Commission to vacate the appointment of plaintiff Kluth as Lieutenant, although Kluth had not been made a party to the action. The Commission complied by vacating the appointment and restoring Kluth to his former position of Sergeant.

Subsequently, on March 27, 1950, pursuant to said court order, the Civil Service Commission of Rocky River gave a new examination in accordance with the second alternative offered by the trial court and Kluth, plaintiff herein, took the examination under protest, and defendant herein Patton, took the examination at the same time. On April 28, 1950, plaintiff Kluth was notified that defendant Patton rated first in the examination taken the previous month. Plaintiff thereupon, on May 2, 1950, filed the present action, praying that a temporary restraining order be issued, and that upon final hearing a permanent injunction be granted, restraining defendant, the Safety Director of Rocky River, from removing plaintiff and from appointing defendant Patton as Lieutenant and further praying that a mandatory injunction be granted, ordering the Civil Service Commission to withdraw its certification of Patton for the reason that no vacancy existed in said position, and for the further reason that the examination of March 27, 1950, was illegal and void.

The defendant, Patton, filed an amended answer in which he admitted that he and plaintiff Kluth, took the civil service promotional examination on June 23, 1949, and claimed that he was fraudulently graded lower than plaintiff Kluth, by the then Civil Service Commission. He also set forth that he had filed a mandamus action (Cause No. 608225) in which he asserted that he had named all necessary parties defendant. He further set forth the order of the Common Pleas Court in the action referred to, vacating the appointment of plaintiff and ordering the Civil Service Commission to regrade its previous examination of June 23, 1949, by excluding certain so-called performance records or to grant a new examination

Plaintiff’s reply denied that all necessary parties were excluded in defendant’s previous mandamus action, the fact being that Kluth had, at no time, been made a party to said action.

Plaintiff’s reply asserted that in the examination of March 27, 1950, defendant Patton appeared to receive the highest grade but that plaintiff was not given proper credits and ratings. Plaintiff further asserted that he was then, and had been since August 16, 1949, the holder of the position of Lieutenant of Police in the City of Rocky River.

Defendants, members of the Civil Service Commission, filed an answer stating they had taken office as members of such Commission in 1950 and had, therefore, not participated in the giving of the promotional examination in 1949; they asserted that they gave the examination in March, 1950, pursuant to the court order; asserted that both plaintiff and defendant Patton, as a result of said examination, claimed the right to be certified for the position of Lieutenant and further prayed the determination of the court as to which of the parties, Kluth or Patton, was entitled to be certified to the appointment of Lieutenant of Police of Rocky River, Ohio.

The matter came on for hearing in the trial court and at the conclusion of the opening statements of counsel for the parties, plaintiff moved for a finding and judgment in his favor on the pleadings and opening statements of counsel. Defendant Patton made a similar motion for a finding and judgment in his favor.

The trial court granted plaintiff’s motion. The opinion of the trial court, rendered on July 27, 1950 (Kluth v. Andrus et al), is published in 58 Abs 230 and 42 O. O., p. 406, and a reference thereto is made for a more detailed statement of the facts in this case. In this court briefs were filed in behalf of the various parties and also a brief amicus curiae of Duggan, Chief of the Fire Department of the City of Rocky River, Ohio.

The question presented in this case is the interpretation of certain civil service px-ovisions of the Ohio statutes, and particularly the question of the rights obtained by a member of the police department, of the classified civil service, who has secured an appointment under §486-13 GC, and who has served meritoriously for longer than the three-month probationary period specified in §486-13 GC. More precisely, the question is whether a member of the police department in the classified civil service, who has served the required probationary period of three months in an office to which he had been appointed as result of a promotional competitive examination, can be removed therefrom for any reason other than cause as provided in §486-17 (a) and §486-17 (b) GC.

In this inquiry, the pertinent facts disclose that plaintiff Kluth was appointed Lieutenant of Police under date of August 16, 1949, as the result of a promotional examination, and that he held this position at least until the court order of February 13, 1950, and that the court order vacating his position was based on no claim nor charge of fraud, nor any other misconduct on his part, but solely because of a claimed incorrect grading by the Civil Service Commission. It is submitted in behalf of plaintiff that, having served more than the three-month probationary period, he acquired “tenure” under §486-17 (a) GC, and that he can be removed only under and by virtue of that section.

It becomes important, therefore, to examine the precise language of the two sections referred to, to the extent applicable to this case.

Sec. 486-13 GC, with reference to appointments under the classified civil service provides in part, as follows:

“All original and promotional appointments shall be for a probationary period of not to exceed three months to be fixed by the rules of the commission, and no appointment or promotion shall be deemed finally made until the appointee has satisfactorily served his probationary period. At the end of the probationary period the appointing officer shall transmit to the commission a record of the employee’s service, and if such service is unsatisfactory, the employee may, with the approval of the commission, be removed or reduced without restriction; but dismissal or reduction may be made during such period as is provided for in §486-17 and 486-17a GC.

Sec. 486-17 GC, forbidding reductions, lay-offs and suspensions for religious or political reasons, does not here concern us. Neither does §486-17b GC, applicable to reductions in case of lack of funds.

Sec. 486-17a GC provides as follows:

“The tenure of every officer, employe or subordinate in the classified service of the state, the counties, cities and city school districts thereof, holding a position under the provisions of this act, shall be during good behavior and efficient service; but any such officer, employe or subordinate may be removed for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of the provisions of this act or the rules of the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance or non-feasance in office.

In all cases of removal the appointing authority shall furnish such employe or subordinate with a copy of the order of removal and his reasons for the same, and give such officer, employe or subordinate a reasonable time in which to make and file an explanation. Such order with the explanation, if any, of the employe or subordinate shall be filed with the commission. Any such employe or subordinate so removed may appeal from the decision or order of such appointing authority to the state or municipal commission, as the case may be, within ten days from and after the date of such removal, in which event the commission shall forthwith notify the appointing authority and shall hear, or appoint a trial board to hear, such appeal within thirty days from and after its filing with the commission, and it may affirm, disaffirm or modify the judgment of the appointing authority, and the commission’s decision shall be final; provided, however, that in the case of the removal of the chief of police or chief of the fire department or any member of the police or fire departments of a municipality, an appeal may be had from the decision of the municipal commission to the court of common pleas of the county in which such municipality is situated to determine the sufficiency of the cause of removal. Such appeal shall be taken within ten days from the finding of the commission.”

In addition to the foregoing sections, §486-15a GC, dealing with promotions in the civil service, in the case of patrolmen and firemen is to be kept in mind. The portion of that section significant for present purposes is as follows:

“No position above the grade or rank of patrolman or regular fireman in the police or fire department shall be filled by original appointment. Vacancies in positions above the rank or grade of patrolman or regular fireman in a police or fire department shall be filled by promotion from among persons holding positions in a grade or rank lower than the position to be filled. Appointments to such vacancies shall be limited to members of the respective departments. No position above the grade or rank of patrolman or regular fireman in a police or fire department shall be filled by any person unless he shall have first passed a competitive promotional examination. * * *”

In the light of the sections quoted, had plaintiff Kluth, by service of more than three months in his position, acquired tenure? We believe that he had acquired such tenure and that he could, therefore, be discharged only for cause and under procedure provided by §486-17a or §486-17b GC. We find no action taken under those sections on the part of the city authorities in this case. We realize the implications in this holding and have borne in mind, in reaching it, the fact that the vacation of Kluth’s appointment was pursuant to what the municipal civil service commission believed to be a valid order. Recognizing that instances may arise whereby a civil service commission would be required under court order to vacate an appointment, and whereunder another court would be required on the basis of res adjudicata to accept such ruling, we do not find that Patton’s original action resulted in an order of such nature. The defendant Patton argued forcefully in this court that the decision in his case (No. 608225) required such action by the civil service commission and acceptance of it by the trial court, but in that suit Kluth was not a party and Kluth’s status could not be affected by a case in which he was not made a party nor given opportunity to be heard. The findings of the trial court in the Patton case could not be res adjudicata as to Kluth or others not parties to that action. This principle appears to us so fundamental and so thoroughly recognized that we merely cite the following authorities:

“Judgments” 23 O. Jur., p. 836, Sec. 527; Auglaize Box Board Co. v. Hinton, 100 Oh St 505.

We believe it, therefore, clear that in the present action in which Kluth sought an adjudication of his status, and an assertion of his rights, the trial court was not only not bound by the previous suit on the part of Patton, but properly inquired into the circumstances of that action, since counsel freely submitted to the trial court in this case the files in cause No. 608225. Under the facts of the pending case, Kluth not having been a party to the previous action, and there-being no claim that he was a participant in any fraud in connection with his promotional civil service examination, his rights could not be adjudicated by a ruling in a case in which he was not represented; furthermore, he had acquired a vested right under the civil service sections of the Ohio Code of which he could not be deprived, except in a manner provided by law. Having held a promotional position for more than the probationary period of three months his occupancy had ripened into a special right, recognized by statute, a right not to be taken away except under procedure and for cause specified in the statute (§486-17a).

In the case of State ex rel Wolcott v. Celebreeze, 141 Oh St 627, the Ohio Supreme Court had before it the case of a Captain in the police force whose name was first on the eligible list for promotion to the position of Deputy Inspector, and he brought an action in mandamus to compel respondent, Director of Safety of the City of Cleveland, to promote him to an alleged vacancy. In deciding that case, and in interpreting the civil service statutes involved, particularly §486-17b and 486-15a GC, Chief Justice Weygandt, in rendering the opinion of the Court, declared:

“The respondent comments upon what he considers to be the unwisdom of the provisions of these statutes. However, that is not a judicial problem but rather a matter of legislative policy resting in the discretion of the General Assembly.”

In deciding the present case, this Court similarly points out that there is here no question of policy to decide, but an interpretation, in the first instance, of statutes expressing the legislative purpose of the people of Ohio.

There was early recognition of the need for civil service laws in Ohio. As a result of the constitutional convention of 1912, one of the amendments to the Ohio Constitution adopted was Art. XV, Sec. 10, as follows:

“Appointments and promotions in the civil service of the state, the several counties, and cities, shall be made according to merit and fitness, to be ascertained, as far as practicable, by competitive examinations. Laws shall be passed providing for the enforcement of this provision.”

In conformity with that provision of the Ohio Constitution the first general civil service law in Ohio was enacted in 1913 (103 O. L. 698); the present act, §486-1 to 486-31, inclusive, GC, dates from 1915, except for various amendments since that time.

In Curtis v. State, 108 Oh St 292, decided in 1923, the Ohio Supreme Court declared the purpose of the act to be as follows:

“The fundamental purpose of civil service laws and rules is to establish a merit system, whereby selections for appointments in certain branches of the public service may be made upon the basis of demonstrated relative fitness, without regard to political considerations, and to safeguard appointees against unjust charges of misconduct and inefficiency, and from being unjustly discriminated against for religious or political reasons or affiliations * * *.” (4th paragraph of syllabus, first sentence )

See similarly, State ex rel Buckman v. Munson, 141 Oh St 319 Syllabus 1.

The sections we have for consideration in the instant case (§§486-13, 486-15 (a) and 486-17a) have been in effect substantially in their present form since 1931. Many Ohio cases have discussed the meaning of these sections as they apply to and adjudicate the status of civil service employees comprising two categories: (One) employees appointed or promoted from eligible lists, dismissed during the probationary period of three months, and (Two) employees similarly appointed or promoted and discharged after the appointee has satisfactorily served his probationary period. Because of the importance of the question before us, and our realization of the possible effect of the present decision on other cases, we shall refer to each of the Ohio cases heretofore decided which have aided us in reaching the conclusions we here express.

The first case to be noted is State ex rel Byrd v. Sherwood, 140 Oh St 173. We content ourselves at this point with a quotation of the syllabus but shall return to a more detailed examination of this leading case in connection with the claims of fraud raised by the defendant Patton. The syllabus of this case is as follows:

“1. The removal of one regularly appointed to a position in the classified service from a list of persons whose names had been duly certified to the appointing officer in accordance with the provisions of §486-13 GC, and who had rendered satisfactory service for more than ninety days is governed by the provisions of §486-17a GC.
“2. Though an incorrect certification of an eligible list from which appointments to positions in the classified service are to be made may be subsequently corrected, such change does not authorize the peremptory dismissal of an employee who prior thereto had been appointed pursuant to such certification and served satisfactorily longer than the probationary period.”

We believe the facts in the foregoing case cause it to be of particular importance in deciding the present case.

We also call attention to the case of State ex rel Hoornstra v. Atkinson, 136 Oh St 569, decided in 1940. In this case an original mandamus action was brought by relatrix to compel the respondent to restore her to her former position of senior interviewer in the classified service of the Ohio Bureau of Unemployment Compensation, she not having been laid off or suspended for cause under the provisions of §486-17a GC. The facts established that relatrix successfully passed a competitive civil service examination in the classified service. On Dec. 30, 1938, the Civil Service Commission certified her name to the Unemployment Compensation Commission as eligible for appointment. On Dee. 31, 1938, the Unemployment Compensation Commission appointed her to the position in question, to become effective on the day she should report to the manager of the Cleveland office. Actually, she began work on Dec. 27, 1938 and continued to hold the position until May 10, 1939 when she was discharged. Through some apparent error, no report of her appointment was made to the Civil Service Commission as provided by §486-13 GC, until Feb. 10, 1939. The question before the court was whether her appointment became effective on December 31, 1938 or on February 10, 1939, as shown in the records of the Civil Service Commission. It was the claim of relatrix that her position became effective December 31, 1938 while the respondent claimed her appointment became effective February 10, 1939, and that her discharge on May 10, 1939, was within the probationary period of three months specified by §486-13 GC. The question before the Supreme Court was whether, since the report of her appointment as provided by §486-13 GC, was not made to the Civil Service Commission until Feb. 10, 1939, her appointment became effective only as of said date. The court held that her appointment became effective from the date of appointment and not from the date of the report of such appointment made by the appointing authority to the Civil Service Commission. Having determined that point, the Supreme Court allowed the writ as prayed for by relatrix, ending its opinion with the following positive statement:

“In the opinion of the court, the appointment of relatrix became effective as of December 31, 1938, and since her probationary period of employment had expired before May 10, 1939 she could not then be removed except for cause. Her discharge was, therefore, wrongful.”

It will be noted that .the foregoing language clearly holds that the relatrix, having served for more than' the probationary period of three months could not thereafter be removed except for cause. It also appears from the facts that when the court referred to removal for cause, it meant cause under §486-17a GC.

A subsequent decision by the Ohio Supreme Court is equally persuasive on this point. In State ex rel Daly v. City of Toledo, 142 Oh St 123, relator brought an original action in the Supreme Court of Ohio seeking a writ of mandamus to compel the city officials to restore him to his position as deputy chief of the Division of Fire for the City of Toledo. Relator had been appointed a regular fireman in the classified service in 1909 and, from time to time during his continuous service, he had been promoted within the department. On Nov. 16, 1938, he was promoted to the office of deputy chief. His original appointment and all promotions were permanent appointments. He held his office of deputy chief until May 9, 1943. At that time, which was his 65th birthday, he was notified by the Director of Public Safety that he would be retired from duty in view of a city ordinance, passed in 1935, providing that no member of the police or fire departments of the City of Toledo should remain in service after attaining the age of sixty-five years. Note, therefore, that under the facts of this case, relator was discharged because of a city ordinance and not for any of the causes specified in §486-17a GC. The Supreme Court of Ohio declared that relator was entitled to a writ of mandamus, stating that since he was in the classified civil service he was entitled to. the full protection and benefit of the State civil service laws and that since under §486-17a GC, he was entitled to tenure during good behavior, the municipal ordinance requiring retirement at sixty-five years was invalid and unenforceable.

In its opinion, the Court quoted §486-17a GC of the Civil Service Code and then discussed the meaning of the word “tenure.” In its opinion the court declared:

“The word ‘tenure’ and the word ‘term’ are not synonymous although frequently so used. ‘Tenure’ has a more extended meaning than ‘term.’ Tenure is the right to hold office for an indefinite time.
“Term denotes,a period of time within fixed limits. It must be presumed that the General Assembly used the word tenure in §486-17a GC, deliberately and not inadvertently. Such construction is required in view of the further language employed: “ ‘shall be during good behavior and efficient service.’
“No one could seriously contend that ‘during good behavior and efficient service’ does not denote an indefinite period of time.
“The General Assembly having fixed the tenure of office of all persons in the classified civil service of the state, counties, cities and city school districts, a member of the fire department in such service, therefore, is protected in his tenure and can be removed from service only as provided by the statute. The General Assembly having determined and specified the causes for removal, that action amounts to a prohibition of a removal for a different cause. Mechem on Public Offices and Officers, 285, Sec. 450 and cases cited.”

Various decisions of the Courts of Appeals of Ohio have also pointed out the distinction between the right of discharge of a civil service employee during the probationary period of three months and the status acquired- after termination of the three month probationary period. We call attention to State ex rel Noble v. Atkinson, 31 Abs 576, decided by the Court of Appeals for the 2nd District in 1940. This was an action in mandamus in the Court of Appeals, by a dismissed classified civil service appointee, to compel restoration to his position with the Bureau of Unemployment Compensation. The relator claimed he had been illegally removed after he had served his probationary period of three months. The writ was allowed because the court found from the facts that relator had been appointed on Dec. 31, 1938 and was discharged on May 10, 1939, after he had acquired tenure. The holding of the court is thus stated in the syllabus:

“Where the Bureau of Unemployment Compensation by formal resolution names a person on a regular certified list as a regular probationary appointee on a certain date, and any investigation by the Bureau or the Civil Service Commission would disclose such appointment, the probationary period dates from the day such appointment is made, the validity thereof is not affected by the failure of the Bureau to make proper report to the Commission as required by §486-13 GC, and a later certified list and appointment, not having such indicia of regularity, and authority, will not be given effect, so that the appointee, dismissed after the ninetieth day from the prior appointment without justification, is entitled to a writ of mandamus compelling his restoration to his position in the classified service.”

Another case in which §486-13 and 486-17a GC are discussed, is State ex rel Crabtree v. Eichelberger, 76 Oh Ap 108, a decision by the Court of Appeals for the 2nd District in 1945. This was air original action in mandamus in the Court of Appeals by relator seeking restoration of his position as Captain in the Fire Department of the City of Dayton. Relator had been promoted under an eligible civil service list in August, 1943, and he was notified of his reduction in rank from Captain to Lieutenant effective Feb. 19, 1944. He was informed by letter that his services as Captain “had not measured up to the standard required for that position” and that he was therefore reduced to his rank of Lieutenant. Relator claimed that the charges were not definite and certain and that they did not come within the requirements of the General Code or of the Charter of the City of Dayton. The respondent in his answer contended under the provisions of Sec. 99 of the Charter of the City of Dayton, no specific charges were required, that section providing that a promotion should not be deemed complete until a probationary period of six months had elapsed. The Court of Appeals pointed out that the section of the Charter of the City of Dayton differed from §486-13 GC, and that the state law therefore prevailed. Demotion was held illegal since more than three months had elapsed since relator’s appointment and no specific charges had been preferred as required by §486-17 GC.

In the case of Zimbelman v. Atkinson, 54 Abs 47 (Court of Appeals, 2nd District, 1948), it was held that the mere failure of the Civil Service Commission to make proper formal entry of an appointment, otherwise regularly made and certified to, would not affect the validity of such appointment. The court declared that plaintiff having attained the status of a regular civil service appointee by service of more than the three month probationary period, she was entitled to retain her position during good behavior and efficient service and could only be separated from her position in the manner prescribed by statute.

The most recent decision in Ohio is State ex rel Kelley v. Hill, 99 N. E. Rep (2d) 1, a decision of the Court of Appeals of the 2nd District, reported in Northeastern Reporter Advance Sheets under date of June 20, 1951. The syllabus of the court is as follows:

“1. The provision contained in §486-13 GC that an original appointment shall be for a probationary period not to exceed three months, is for the benefit of the appointing power.
“2. Where, following appointment, the appointee serves for a period far exceeding three months probationary period and the appointing power fails to make any report to the civil service commission indicating that appointee’s services are unsatisfactory, it is presumed that the services of appointee are satisfactory and the appointment becomes permanent.”

The cases referred to, decided by the Ohio Supreme Court and four Courts of Appeals in recent years, reinforce our judgment that §486-13 and §486-17a GC, construed together, clearly provide that any appointment or promotion in the classified civil service, after expiration of the three month probationary period, confers tenure on the employee of a nature such that he can thereafter be discharged or demoted only for the cause mentioned, and in the manner provided, by the civil service statutes. It follows from this conclusion that Kluth, having served more than the three months probationary period contemplated by the statute, can be discharged or demoted only for the causes provided in §486-17a GC, and under the procedure outlined. No such cause has been shown as basis for demotion in this case and the statutory procedure for hearing of any charges against him were not followed by the appointing authority or by the civil service commission of the municipality.

The only question remaining, therefore, is whether any allegations of the pleadings, or opening statements of counsel before the trial judge, set forth any such compelling or overriding combination of circumstances as to call for the ignoring of the plain language of the statute. The trial court indicated in its opinion that it gave careful attention to the charges of fraud set forth in the amended answer of the intervening defendant, Patton, it being alleged therein, “that all members of the civil service commission, as then constituted, fraudulently lowered his (Patton’s) grade and increased the grade of the plaintiff in this action so as to make it appear that this defendant did not receivve the highest grade.” Fraud by the Civil Service Commission is also alleged by Patton’s counsel in his opening statement before the trial judge and this is incorporated in the bill of exceptions so that we have it before us. The fraud claim referred to occurs at pages 25 and 26 of the bill of exceptions:

“The evidence will show that by a proper grading of the various questions that were put in there, Mr. Kluth did not receive 100%; that he gave incorrect answers that were graded as correct and Mr. Patton gave correct answers that were graded incorrect; that this was done deliberately so as to give Mr. Patton a lower grade than he was entitled to, and to build up Mr. Kluth and cut down Patton. We allege that this was done fraudulently; that the examination and the office were stolen from Mr. Patton.”
“Mr. Patton was ahead by nine-tenths of a point. Then the 85 that had been given to Mr. Kluth for performance record was deliberately and fraudulently raised to 89, in order to steal the examination and office from Mr. Patton.”

The trial court in its opinion, in discussing the charges of fraud, also referred to the fact that counsel for the parties submitted to him the files in Cause No. 608225 (the Patton case).

Parenthetically, it should be added that although no part of that file, and no copies of the pleadings in the Patton case, were incorporated in the bill of exceptions, and it might, therefore, be questioned as to our authority to examine into the case, were it not for the trial court’s action based on consent of counsel, we have in the light of that action and with that consent, taken note that in the early stages of the Patton case the trial court granted an alternative writ of mandamus to show cause, returnable on Nov. 14th. But the record does not disclose that the trial court at that time issued any temporary restraining order or took any other action to interrupt the probationary period of tenure within the three months mentioned in §486-13 GC. The only entry made as the result of the hearing on November 14, was one advancing the case for early trial.

Defendant Patton’s amended answer sets forth what appears to be the pertinent part of the trial court’s decree in the Patton case. Despite the allegations of fraud made by Patton in his amended answer in the instant case, with reference to the grading of the original civil service examination, it is to be observed that neither Patton nor any other party claims any participation by Kluth in any alleged incorrect, illegal or fraudulent grading. That portion of the opinion of the trial judge in the Patton case which has been quoted in Patton’s amended answer herein, reveals no finding of fraud on the part of the Commission or on the part of any other city official of Rocky River. Where a motion for a finding and judgment based on pleadings and opening statements of counsel is joined in by both sides, as in this case, the function of the trial court, in passing on the motions, is to assume the truth of all of the facts stated in order to sustain the principle that every litigant is entitled to his day in court. K. & S. Realty Co. v. Rosen, 47 Abs 316, decided by the Court of Appeals of this District, in 1946. See also the citation and comment upon this case in 39 O. Jur. “Trial” Cumulative Supp., Pgs. 884, 886, Secs. 226, 227.

We are therefore called upon to assume fraud on the part of the Civil Service Commission, for the purpose of determining whether the trial court acted properly in granting plaintiff’s motion for a directed verdict at the close of the opening statements of counsel and in overruling the motion of defendant for a finding and judgment.

Assuming such fraud by the municipal civil service commission in the alleged incorrect grading of the original examination, we have heretofore pointed out that the trial court had access to the pleadings in the Patton case. The trial court, in its well-reasoned opinion, declares as follows:

“The findings in said cause No. 608225 were to the effect that the civil service commission had erred in one' section of the examination. There was no finding of fraud on the part of any person or body; there was no finding, nor is it even claimed that Kluth had anything whatever to do with the error or the proceedings beyond his entering the examination ”

Although this finding of the trial court and the portion of the judgment in the Patton case (No. 608225) quoted in Patton’s amended answer in the instant case, reveal no fraud on the part of the Civil Service Commission in the adjudication of the earlier case, we, none the less, do have the charges of fraud raised by defendant Patton in his amended answer in this case and the opening statement by his counsel charging fraud by the Civil Service Commission hereinabove quoted from the bill of exceptions (pages 25 and 26).

It might, with pertinence, be inquired as to whether Patton, having once previously chosen to litigate the question of fraud by the Civil Service Commission, and having presumptively obtained a judgment in which any finding of fraud was absent, is not bound by such judgment in a later case in which he and the Civil Service Commission are again parties and in which he seeks to adjudicate the same question, for the successor Civil Service Commissioners stand in the shoes of their predecessors. Be that as it may, what the trial court had to decide in this case, in view of the allegations of fraud in Patton’s amended answer and in his counsel’s opening statement to the court, was whether, granting fraud by the Commission, which might be proven if the case went to trial, would such fraud by the Commission vitiate the Kluth appointment, in the absence of participating fraud by the latter? We believe, with the trial court, that it would not and we base our conclusions on the language of the statutes and the Ohio cases we have discussed.

In this connection we have heretofore cited State ex rel Byrd v. Sherwood, 140 Oh St 173. That case involved facts very closely similar to the present case. In the Sherwood case, relator had obtained his appointment as investigator in the Division of Aid for the Aged as the result of a competitive examination which created an eligible list comprising 133 persons. The grades of relator in the examination caused him to be No. 129 on the list. Subsequently relator was notified of his appointment and he commenced work on August 1, 1941 performing his duties until Dec. 15, 1941. It subsequently appeared, after relator’s appointment, that his appointment and those of 41 others on the civil service eligible list, were the result of waivers obtained from seventy-one individuals standing higher in the list than relator. Upon complaints filed with the State Civil Service Commission on Oct. 20, 1941, it developed that the waivers had been acquired by an agent for the appointing authority, presumably without its knowledge, who had contacted the various persons on the eligible list and persuaded 71 of them to execute waivers of their rights of priority. These waivers were procured by various forms of persuasion, including assurances of later favorable attitude and consideration by the appointing power and threats and misrepresentations. It being difficult to imagine a more assiduous application of effort required than that of securing relinquishment of expectant rights by as many as 71 persons, it is obvious many forms of representation must have been made to the individuals in order to prevail on them to release their rights. The investigation by the State Civil Service Commission having revealed this improper action, the Commission on Nov. 15, 1941, directed that all appointments made from the previous certification be cancelled and on Nov. 18, 1941, relator was notified of the rescission of the certification and of his and all appointments previously made thereunder. Relator thereupon filed an original action in mandamus in the Supreme Court of Ohio and recited that he had served more than the ninety-day probationary period, claimed that he had thereby become vested with tenure during good behavior and that he could be removed only in the manner provided by statute, and for some cause therein specified. The Supreme Court, in granting the writ, held that relator had acquired tenure by rendering satisfactory service for more than the three-month probationary period provided in §486-13 GC. In so holding, the Supreme Court declared that no fraud was shown on the part of relator. In its opinion on this subject, the Court declared:

“If the relator or relatrix had sponsored or participated in any violation of the civil service statutes, §486-17a GC, provides a ready means for their removal from their positions. It does not appear in this case that either has even been charged with misconduct or with participation in the misconduct of another, either directly or indirectly, though they benefited from the questionable action of the representative of the respondents, or with having any connection whatever therewith, except to be made the innocent victim of such action.”

The court further declared:

“The original list certified was concededly a list of persons, all of whom were then eligible for appointment. The names of the relator and relatrix were on such list, and their appointment by the respondents was thereby authorized and accordingly made. Bd. of Trustees of Madison County Children’s Home v. State ex rel Laird, 128 Oh St 560, 192 N. E. 877. An incorrect certification undoubtedly may be corrected, but this correction cannot be employed to remove employees who theretofore had been appointed pursuant to such certification, and who, through satisfactory service for the required period, had acquired a status of members of the classified service of the state. Being in the classified service, they may not be summarily dismissed. State ex rel Slovensky v. Taylor, Dir. 135 Oh St 601, 21 N. E. (2d) 990. To proceed against these persons, the provisions of §486-17a GC, must be followed. If those provisions are deemed inadequate, the remedy is by legislative amendment and not by administrative or even judicial amendment. If it be assumed that fraud would vitiate the original certification and warrant the rescission of the appointment of anyone selected from that list, it must be observed that no finding of fraud was announced, either by the Civil Service Commission or by the officers making the appointment.”

In comparing the Sherwood case with the present case, note that in the instant case the original court action by Patton was commenced before the termination of the three-month probationary period of Kluth, and in the Sherwood case the irregularity or fraud in connection with the procurement of waivers culminated in charges filed with the State Civil Service Commission prior to expiration of the three-month probationary period of relator. The publicity in either case was notice to a diligent appointing authority that the statutory probationary period had not expired but that “time was running,” provided affirmative action to remove the probationary appointee was deemed advisable. In neither case was action taken and we - may presume the appointing authority found no reason for action. It is not, however, the lack of agitation on the part of the appointing authority that causes us to point to similarities in the two cases; we are interested in observing that the Supreme Court of Ohio in the Sherwood case was not led to suggest, by any analogy to a statute of limitations, that objections taken during the three-month probationary period postponed or interrupted the running of the three-month probationary period. If effective affirmative action by a court during the thrjee-month probationary period would interrupt the statute, the fact is that we do not have such action in this case, as we have previously pointed out.

Analysis of the Sherwood case and of the two paragraphs commenting on fraud, which we have quoted, makes it apparent that the Supreme Court had in mind two kinds of misconduct in the case of a civil service employee having acquired tenure and in which fraud might be involved; the first, covering misconduct vitiating the appointment when participated in by the employee, permitting removal for cause under §486-17a GC; the second, being fraud by the appointing authority. In the case of fraud of the latter kind, not participated in by the employee, §486-13 and §48S-17a GC would apply to prevent his removal unless the courts read an exception into the plain language of the statute. This we are unwilling to do.

Our conclusion should appear in no degree surprising, if it be borne in mind that the prime principle of the civil Service Act is to provide tenure for persons having been appointed and having served the statutory probationary period. Thus acquiring “tenure,” or permanent civil service status, such employees can be discharged only for causes to which they themselves may have contributed, and not because of the fluctuating ebb and flow of political fortunes. To declare otherwise would encourage unending assaults on the virtues of their predecessors by incoming administrations and reexamination and constant charges of fraud in connection with their appointments. The present case indicates the jeopardy in which all individuals in the permanent civil service would find themselves, in spite of statutory “tenure” if they could be readily displaced by findings or charges of illegal appointment by duly constituted successor authorities. Instead of offering inducements to an attractive and dignified career, civil service would become increasingly hazardous and uninviting.

We have examined all of the cases cited by counsel, and in reaching our conclusion we have contented ourselves with nothing less than a complete examination of the law relating to tenure of civil service employees in this and other jurisdictions. We have found no cases from other states which have aided our determination, and rather naturally so, since our problem is the correct interpretation of Ohio statutes. It would unduly prolong this opinion for us to distinguish various cases cited by counsel in their briefs which we have omitted to mention, believing them not in point. In this category we include State ex rel Bigam v. Hainen, 150 Oh St 371.

We should add one further comment. We do not consider that the present action constitutes a collateral attack on the judgment of the trial court in the Patton case, and, from the evidence before us, that case was undoubtedly correctly decided on the basis of the pleadings and facts there presented. It does not, however, adjudicate the rights of plaintiff in this case, whom we find entitled to the injunction prayed for.

The judgment of the trial court is affirmed. Exc. Order see journal.

SKEEL, PJ, HURD, J, concur.