text:
    DeSAAVEDRA, d. b. a. JOHNNY’S TRAILER TRANSPORT, In re.
    Public Utilities Commission.
    No. 25695.
    Decided May 22, 1958.
   FINDING AND ORDER

This day after full Rehearing, the Commission comes now to consider the above entitled matter; its previously issued orders in connection with this matter; the testimony adduced at the Compliance Hearings, held on September 11, 1956, and September 5, 1957; the argument advanced by the respective parties in their briefs and upon Oral Argument before the Commission, conducted on March 12, 1958; and, being otherwise fully advised in the premises, and in compliance with §4903.09 R. C., hereby renders the following opinion and findings:

COMMISSION’S DISCUSSION:

This matter is presently before the Commission upon an Application for Rehearing with respect to its Order of January 3, 1958, in which it found that the evidence adduced at the Compliance Hearings conducted on September 11, 1956, and September 5, 1957, established that Protestant, National Trailer Convoy, Inc., had reasonably complied with the provisions of the “sixty-day” order issued by the Commission on June 12, 1956, and that the Application of John P. DeSaavedra, dba Johnny’s Trailer Transport, for a Certificate of Public Convenience and Necessity should, therefore, be denied.

In its Application for Rehearing, the Applicant has taken exception to these findings for the reasons that the Commission ostensibly failed to set forth the facts upon which its conclusion of reasonable compliance was based, and, further, that the facts as established by the evidence of record completely negate such a conclusion. The Applicant has also asserted, both in his brief and upon Oral Argument before the Commission, that a finding of reasonable compliance is in contradiction to the established policies of the Commission which require strict compliance with the provisions of a “sixty-day” order. Upon a review of its previously issued Order of January 3, 1958, and of the evidence presented at the Compliance Hearings conducted in this matter, and for the reasons more particularly set forth hereinafter, it is the opinion of the Commission that the arguments presented by the Applicant are well made and that the aforementioned Order of January 3, 1958, should accordingly be reversed.

By its Order of June 12, 1956, the Commission found that Public Convenience and Necessity existed for motor carrier service in the transportation of house trailers and mobile homes, by tow-away method, over irregular routes, from and to points and places in Franklin County. In accordance with the provisions of §4921.12 R. C., Protestant, National Trailer Convoy, Inc., was afforded a period of sixty days within which to so improve its service in the affected area as to be able to satisfy the public need theretofore found to exist, else a Certificate of Public Convenience and Necessity to perform this service would be granted to the Applicant. More specifically, the Protestant was ordered to:

(a) Adequately publish the availability of its service throughout the county to the extent that the shipping public may become further aware of its service;

(b) Make whatever changes are required in operating procedures or personnel in order to eliminate the unreasonable and unwarranted delays herein found to result when shippers of house trailers in Franklin County attempt to make use of the service of this Protestant; and,

(c) In accordance with Finding (b) above, so improve its service that it may respond within 24 hours from the time of call and render transportation service promptly within said 24 hour period.

In view of the questions raised by this Application for Rehearing', and of the respective positions advanced by the parties, it would seem appropriate to review the purpose and effect of a “sixty-day” order, and more particularly the effect of the requirements established by the Commission in its Order of June 12, 1956.

Before an existing motor carrier may be ordered to improve its service as provided in §§4921.10 and 4921.12 R. C., the Commission must first determine that the services being provided at that time by such carrier are not reasonably adequate to satisfy the needs of the public. The Commission is required to grant to the existing carrier not only a reasonable time within which to improve its service, but a reasonable opportunity as well to know in what respects this service is deemed to be inadequate. Commercial Motor Freight, Inc. v. PUCO, 156 Oh St 360.

Accordingly, the Protestant in the present case was ordered to take certain remedial measures to insure that the need for service found to exist would be satisfied. In the event that this carrier deemed the obligations imposed to be unreasonable or unlawful, or simply not warranted in view of the evidence of record, exceptions to these requirements could have been taken including appeal and review by the Supreme Court, since a “sixty-day” order, is in itself a final order subject to such review. Cleveland, Columbus & Cincinnati, Inc. v. PUCO, 141 Oh St 634; Boak, dba City Transfer & Storage Company v. PUCO, 144 Oh St 427.

The Protestant has argued that if, at the time of the Compliance Hearing, the evidence discloses that a reasonably adequate service is then being provided, irrespective of its failure to comply with the specific provisions of the “sixty-day” order, the Commission should find compliance on behalf of the Protestant and deny this Application for additional authority.

The Commission has, however, held that objection to the substantive provisions of a “sixty-day” order must be made by filing Application for Rehearing of this Order. In Case No. 25,996, In the Matter of the Application of Craycraft Trucking, Inc. to amend Certificate No. 8330-1, the Commission stated in its Order of December 13, 1956:

“Where a carrier is not satisfied with the form or content of a ‘sixty-day’ order issued in accordance with the provisions of §4921.12 R. C., and desires to challenge the substance of such order, it is incumbent upon such carrier to make a timely filing of an Application for Rehearing, in accordance with the provisions of §4903.10 R. C., in which Application the alleged errors, inaccuracies, or improprieties of such order shall be stated. Where a carrier fails to make such Application for Rehearing and proceeds instead to a hearing upon a ‘sixty-day’ order, said carrier is obliged to present affirmative testimony sufficient to show that it has, in fact, complied with the terms and conditions of the ‘sixty - day’ order. Evidence that the ‘sixty-day’ order was improperly drawn or issued will not be received at a hearing on compliance.”

The Protestant in this matter elected to accept the standards established by the Commission. It presumably agreed, therefore, that the requirements imposed by this “sixty-day” order were not unreasonable, but were, in fact, responsive to the public need as reflected by the evidence of record. Its only alternative thereafter was to comply with each and every requirement or fail of compliance.

An additional reason exists for rejecting the argument to the contrary advanced by the Protestant, in effect, its contention seeks to again bring into issue at the Compliance Hearing the question of what constitutes reasonably adequate motor carrier service in the area applied for by this Applicant. This question must necessarily be related to and dependent upon the question of Public Convenience and Necessity. Reasonably adequate service is, in fact, simply that service which will practicably satisfy the public need; it is only when this need has not been satisfied by existing carriers that the services being rendered can be considered inadequate. Should the Commission adopt the position that this Protestant could, at the time of the Compliance Hearing, retry this question of reasonable adequacy, full opportunity would have perforce to be granted to this Applicant and all affected shippers to attempt to refute this evidence and re-establish the continued existence of the need originally proved to exist. In effect, this would result in the complete retrial of those ultimate questions upon which a determination was made at the time of initial hearing upon this application for authority.

It is, therefore, the opinion of the Commission that a carrier against whom a “sixty-day” order has been issued, which carrier has failed to take exception to the provisions of the “sixty-day” order by filing an Application for Rehearing in accordance with the provisions of §4903.10 R. C., must, at the time of Compliance Hearing, introduce sufficient evidence upon which it may be concluded that it has complied with each and every requirement set forth in the “sixty-day” order. Evidence or argument that the requirements as established in such Order were unnecessary or unreasonable, or that a reasonably adequate service can be provided irrespective of these requirements, may only be considered upon a Rehearing by the Commission of its “sixty-day” order. Should the Commission, after review, determine that its requirements were unreasonable, the provisions of the “sixty-day” order can and would be modified. Should the Commission fail to so modify its Order after Rehearing, the Protestant has appropriate and adequate recourse by appeal to the Supreme Court.

The evidence presented at the Compliance Hearings in this matter indicates that Protestant, National Trailer Convoy, Inc., took certain measures in its efforts to avoid the “unreasonable and unwarranted delays” that had been experienced by certain of its shippers. The evidence further discloses, however, that the Protestant had been requested by divers persons to render service, but was unable to respond within 24 hours as prescribed by the Commission’s “sixty-day” order. It must be noted that in certain of these instances, telephone calls to the Protestant were made for the sole purpose of testing whether or not it could respond within the prescribed 24 hour period: The question as to the weight to be given this evidence is directly in issue in this matter.

There is no doubt but that this testimony has no probative value if considered as tending to establish a need for service, since those persons responsible for making these calls did not actually require service. However, Public Convenience and Necessity is not here in issue. The ultimate question presented for our determination at this time is whether or not this Protestant has complied with the mandates set forth by the Commission in its “sixty-day” order.

This carrier was ordered to so improve its service as to be able to respond within 24 hours from the time a call for service was received. The testimony given by those persons who had made “test calls” tends to establish that the Protestant was incapable of satisfying this requirement and had, therefore, failed to comply, in this respect, with the “sixty-day” order issued by the Commission.

It is the opinion of the Commission, therefore, that the testimony of those witnesses who had called the Protestant for the express purpose of determining whether or not it could respond within the time prescribed in this “sixty-day” order should be given due consideration, and accorded probative value as evidence tending to establish a failure of compliance on behalf of the Protestant.

Having accorded this testimony its true weight, it is the further opinion of the Commission that the Protestant, National Trailer Convoy, Inc., could not, at the time of the second Compliance Hearing conducted in this matter, respond within 24 hours of any call upon it for service, as directed by the Commission in its Order of June 12, 1956. Having so failed, the Application of John P. DeSaavedra, dba Johnny’s Trailer Transport, should be granted.

ULTIMATE FINDINGS:

The Commission, upon consideration of the evidence presented at the Compliance Hearings conducted in this matter, as well as the arguments advanced by counsel for the respective parties, hereby finds:

That instead and in lieu of those findings as set forth in the Commission’s Order of January 3, 1958, which findings are inconsistent with the findings hereinafter set forth, the Commission should, and hereby does, find:

(1) That the Protestant, National Trailer Convoy, Inc., has failed to comply with the provisions of the Commission’s “sixty-day” order; and

(2) That, in accordance with the Order of the Commission dated June 12, 1956, wherein it was found that Public Convenience and Necessity existed for service in the transportation of house trailers, by the tow-away method, upon and over irregular routes from and to Franklin County, Ohio, a Certificate of Public Convenience and Necessity should be granted the within Applicant to furnish the service as herein described

It is, therefore

ORDERED, That upon the payment of the taxes prescribed by Jaw, and the filing with this Commission of the required insurance and tariff, a Certificate of Public Convenience and Necessity be issued to John P. DeSaavedra, dba Johnny’s Trailer Transport, to establish, maintain and operate a motor transportation company for the transportation of house trailers, by the tow-away method, upon and over irregular routes from and to Franklin County, Ohio, restricted against operations on Routes 2 and 6 between Lorain and Cleveland, Ohio, subject to the rules and regulations of this Commission, now existing or hereafter promulgated. It is, further

ORDERED, That said taxes shall be paid, and the required insurance and tariff filed within thirty days from the date hereof, else this Order shall be null and void and the application dismissed for failure to comply with statutory requirements.

THE PUBLIC UTILITIES COMMISSION OF OHIO

Entered in the Journal Everett H. Krueger, Jr., Chairman

May 22, 1958 Ralph A. Winter

A true copy: Edward J. Kenealy

W. E. Herron, Secretary Commissioners


source: Caselaw Access Project

author: By HUNSICKER, J.

license: Public Domain

text:
    BASTIAN, Plaintiff-Appellant, v. BASTIAN, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24686.
    Decided July 15, 1959.

      Louis P. Fernberg, Jr., for plaintiff-appellant.
    Ernest E. Fabian, for defendant-appellee.
    (Judges of the Ninth District sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, J.

Robert Bastian, the appellant, was married to Jacqueline Bastian. To this union one child was born, named Robert D. Bastian, Jr. This child is now 11 years of age. The parents of Robert, Jr., were divorced on October 10, 1952. The judgment of divorce provided that the separation agreement of the parties be made a part of such judgment.

The separation agreement provided, among other things, that:

“Item 1. The first party (Robert D. Bastian) is hereby granted the sole and absolute custody, control and education of their minor child, Robert D. Bastian, Jr., provided however, that as and when the second party (Jacqueline Bastian) obtains adequate and proper living quarters and is able to properly care for their aforesaid minor child, then said second party shall have the custody, care, support and education of said minor child * *

On March 12, 1958, Jacqueline Bastian (now Mrs. Stash, because of her remarriage after the divorce) filed her motion to modify the custody and support order theretofore entered. In this motion Mrs.. Stash asked for the sole custody of Robert, Jr., and an allowance for the support of the child.

On March 13, 1958, Robert D. Bastian, the father of Robert, Jr., filed his motion for an order awarding him full care and custody of the son, saying that it was for the “best interests of said minor child that he remain in the care, custody and control of the plaintiff (Robert D. Bastian) herein.”

On July 26, 1958, these motions were heard by the Court of Common Pleas of Cuyahoga County, and an order of modification of the original judgment, respecting care of the minor child, was approved by the trial judge and filed with the clerk for journalization on August 27, 1958. This judgment of modification said, in part, as follows:

“The court further finds that by order of this court heretofore rendered, the custody of the minor child of the parties was awarded to the plaintiff subject to the terms of a separation agreement approved by the court.
“The court further finds that there are no changed conditions or circumstances which would justify the court in modifying or changing the previous order of this court based upon the agreement of the parties.
“The court further finds that the conditions imposed by the said order and separation agreement with respect to the transfer of custody of the minor child Robert to the defendant during the normal school year have been met, and that the defendant now has ‘obtained adequate and proper living quarters and is able to properly care for their minor child.’ ”

From the judgment of modification entered on August 27, 1958, Robert D. Bastían perfected an appeal to this court on questions of law. saying the trial court erred:

“1. * * * in changing the custody of the minor child from the appellant to the appellee without an affirmative showing by evidence, direct or circumstantial, that it would be to the best interest of the minor child to effect such change.”

And:

“2. * * * in rendering a verdict for the appellee, said verdict being contrary to law and manifestly against the weight of the evidence.”

The trial judge listened to considerable testimony in the hearing-on the motions, and then, at the conclusion, said, in part:

“You both are aware that the Domestic Relations Bureau made an exhaustive investigation in this matter.
“They have made a comprehensive report and a recommendation in this matter. After hearing all of the facts, I am satisfied that the father of the boy is an exemplary person, and that the stepmother is a fine lady, and that the grandmother of the boy has been a wonderful mother, and grandmother, to the boy, and that she has exerted every effort to make a very pleasant home for the boy, and if 1 weren’t bound by the rules of law, I think I would waste no time in this matter in retaining custody of this boy in the father.
“However, there is a separation agreement. The court has no control over the language of that separation agreement which was incorporated in the decree in the original divorce.”

The principal problem we have herein is to determine to what extent a trial court that approved a separation agreement, thereafter adopted as a part of the judgment in a divorce, alimony and custody action, which agreement contained a provision regarding the custody of a minor child, is bound by the terms of that agreement, in a subsequent hearing on a motion to modify the provisions of the judgment entry.

It has long been the rule in this state that a trial court, which grants an order of custody in a divorce action, retains continuing jurisdiction over matters relating to the custody, care and support of the minor children involved in such order; and such continuing jurisdiction is retained regardless of any express reservation in the original decree. Corbett v. Corbett, 123 Oh St 76; Van Divort v. Van Divort, 165 Oh St 141; Hoffman v. Hoffman, 15 Oh St 427.

The trial court herein recognized that it had the right to a continuing jurisdiction in the matter of the custody of Robert, Jr.; however, that court believed that it was bound by the agreement of the parties, and hence could not exercise any discretion in the matter of future custody.

It is apparent that the trial judge believed that, when Mrs. Stash obtained “adequate and proper living quarters and is able to properly care for” Robert, Jr., his authority in the matter of custody was concluded.

We cannot agree to such a determination. The pole star in all custody matters between parents is, what is for the best interests of the child whose custody it is sought to change, subject, however, to the rule that where a court has once decreed that a home with one of the parents is ñt and proper, no subsequent change of custody should be made, unless there has intervened such changed conditions affecting the welfare of the child that a change of custody is required to promote the best interests of that child. See: §3109.04 R. C.; Ludy v. Lady, 84 Oh Ap 195; Harper v. Harper, 98 Oh Ap 359.

In the case of Arnold v. Arnold, 67 Oh Ap 282, the court said:

“3. The fact that the parties, at the time of the divorce decree, entered into an agreement as to the custody of the minor child, which agreement was incorporated in and made a part of the decree, does not preclude the court from modifying the order relative to the child’s custody.”

Agreements, with respect to the support of children, are provided for by §3103.06 R. C., but neither in that section, nor in the chapter on Infants, Chapter 3109 R. C., is there provided a section permitting parents to agree with respect to the custody of their minor children. It has been a general practice in divorce and alimony cases to agree with respect to all phases of the separation, including that of custody of the children. We believe, however, that such an agreement respecting custody cannot abrogate the responsibility of the court to determine, as between the parents, that which is for the best interest and welfare of the children. This duty of the court is most frequently discharged by accepting as its order that to which the parties have agreed.

The legislature of this state has spoken, in §2111.08 R. C., with respect to the fact that the parents are the joint natural guardians of their minor children, and both are equally charged with their care, nurture, welfare and education. Generally, it is only when unfortunate circumstances occur within the family that the question of custody is brought into a court of competent jurisdiction. It is only under such conditions that the law permits a judicial interference with the natural rights of the parents; and then nothing that the parents do, in the matter of agreement for custody, can usurp the duty of the court to determine, as between the parents, that which is for the best interest of the children so situated.

We therefore determine herein that the trial court erred to the prejudice of the appellant, Robert D. Bastían, when it came to the conclusion that, regardless of the welfare of the cnild, Robert, Jr., the court was bound by the agreement entered into by the parents six years previous to the motion to modify the custody.

The judgment herein must therefore be reversed, and the cause remanded for further proceedings.

Judgment reversed, and cause remanded to the trial court.

DOYLE, PJ, STEVENS, J, concur.


author: By WISEMAN, J.

text:
    STATE, ex rel., GIAMARCO, Relator-Appellant, v. SMITH et, Respondents-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6025.
    Decided April 28, 1959.
    Butler, Addison, Smith & Carmack, Richard C. Addison, Ralph G. Smith, of Counsel, Columbus, for relator-appellant.
    Mark McElroy, Atty. Geni., Walter M. Shea, Asst. Atty. Geni., Columbus, for respondents-appellees.
    (WISEMAN, J, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By WISEMAN, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County, dismissing a petition for a writ of mandamus after a hearing on the merits.

Relator, Henry Giamarco, a resident of Franklin County, as a citizen and taxpayer of the State of Ohio, a fireman by occupation and a member of the Ohio State Fireman’s Association, Inc., filed this action in the Common Pleas Court of Franklin County, seeking a writ of mandamus requiring respondents as members of the State Civil Service Commission of the State of Ohio to hold competitive examinations for the offices of Inspector in the Bureau of Inspection and Fire Prevention Bureau, Office of the State Fire Marshal, Department of Commerce.

Relator alleges that on July 19, 1956, the State Civil Service Commission passed a resolution in which it found “the position of Inspector in the Bureau of Inspection within the Office of the State Fire Marshal, Department of Commerce, not to be of such a confidential nature that fitness and merit for such position could not be determined by competitive examination and that such position ‘shall be in the competitive classified civil service and the effective date of this Resolution shall be February 1, 1957/ ” Prior to the effective date of the resolution, to-wit: On January 11, 1957, the State Civil Service Commission rescinded its action taken on July 19, 1956.

Respondents filed a demurrer to the petition, which was overruled. Respondents then filed an answer specifically denying the capacity of relator to challenge the action of respondents, denying that the acts of which relator complains constitute arbitrary action, gross abuse of discretion or error of law, and generally denying each and every allegation not admitted to be true. Motion of relator for judgment on the pleadings was overruled.

At the hearing on the merits the trial court denied the writ and dismissed the petition.

Relator assigns as error: First, error in holding that §121.14 R. C., places all personnel in the Office of the State Fire Marshal in the unclassified Civil Service; second, error in ruling that the inspectors within the Bureau of Inspection are not subject to the classified service; third, error in failing to determine that this proceeding is the proper remedy to compel the preparation and giving of competitive examinations for such fire inspectors; fourth, error in overruling the relator’s motion for judgment on the pleadings.

Sec. 3737.03 R. C., creates the Bureau of Inspection, in the Office of the State Fire Marshal, consisting of a chief inspector and twenty-four assistants, none of whom has ever taken a Civil Service examination for the position. The Ohio Fireman’s Association, on June 2, 1954, passed a resolution calling upon the State Civil Service Commission to hold competitive examinations for the office of inspector. The resolution of the Commission and its rescission followed.

The facts are not in dispute; the question for determination is one of law. The question presented is one of first impression in Ohio.

Does §121.14 R. C., place all the personnel or at least the inspectors in the unclassified Civil Service? We are only concerned here with the classification of the inspectors. Sec. 121.04 R. C., in part provides:

“Offices are created within the several departments as follows: * * *
“In the department of commerce:
“Superintendent of building and loan associations.
“Fire marshal.
“Superintendent of insurance.” (Emphasis ours.)

Sec. 121.05 E. C., refers to directors and assistant directors of departments. Sec. 121.14 R. C., provides:

“Each department may employ, subject to the civil service laws in force at the time the employment is made, the necessary employees, and, if the rate of compensation is not otherwise fixed by law, fix their compensation.
“All offices created by §§121.04 and 121.05 R. C., shall be in the unclassified civil service of the state.” (Emphasis ours.)

We do not deem it necessary to set forth or discuss the historical background of these statutory provisions. It is sufficient to state that the State Fire Marshal and his assistants in the person of inspectors have not been included in classified Civil Service by the express words of the statute.

In §121.04 R. C., the word “offices” is used to describe the division or sub-department of “Fire Marshal.” Again, in §121.14 R. C., the word “offices” is used, and this section in part provides that: “All offices created by §§121.04 and 121.05 R. C., shall be in the unclassified civil service of the state.”

We come now to the section on definitions of terms. Sec. 121.01 R. C., in part provides:

iisjs * *
“(C) ‘Departments, offices, and institutions’ include every organized body, office, and agency established by the constitution and laws of the state for the exercise of any function of the state government, and every institution or organization which receives any support from the state.”

A consideration of these sections alone would not warrant the conclusion that the Chief Fire Marshal and his assistants, such as inspectors, were intended to be placed in the unclassified civil service; other sections must be considered. The question whether other employees of said office are in the unclassified civil service is not before us and we make no determination with respect to them. The inspectors have a different status than the clerical personnel of the office of fire marshal. Sec. 3737.05 R. C., provides:

“The chief of the arson bureau and his deputies, the chief of the bureau of inspection and his assistants, and the chief of the bureau of fire prevention, shall have and exercise, in the performance of general or specific duties assigned to them by the fire marshal, the duties, powers, authorities, and rights which are conferred upon the fire marshal or his assistants, by §§3737.01, 3737.08 to 3737.14, inclusive, and §3737.26 R. C.”

Thus it appears that the chief of the bureau of inspection and his assistants, who now are twenty-six in number; “shall have and exercise, in the performance of general or specific duties assigned to them by the fire marshal, the duties, powers, authorities and rights which are conferred upon the fire marshal or his assistants.” Such persons, in our opinion, are not public employees but are properly described as public officials within the principle of law laid down in State, ex rel. Milburn. et al, v. Pethtel, Auditor, 153 Oh St 1, 90 N. E. (2d), 686, the first and second paragraphs of the syllabus being as follows:

“1. A public officer, as distinguished from an employee, is one who is invested by law with a portion of the sovereignty of the state and who is authorized to exercise functions either of an executive, legislative or judicial character.
“2. An appointee, upon whom the specific duties imposed by law are in relation to the exercise of the police powers of the state or in whom is vested independent power in the disposition of public property or authority to incur financial obligations upon the part of the county or state or to act in cases involving business or political dealings between individuals and the public, is thereby clothed with a part of. the sovereignty of the state.”

The second contention of relator is that the court erred in determining that the inspectors employed in the Bureau of Inspection are not subject to the classified civil service laws of the state. Relator claims that the inspectors are within the classified civil service by virtue of the provisions of §143.08 R. C., which is found in the Civil Service Act. The pertinent part of that section provides:

“The civil service of the state and the several counties, cities, and city school districts thereof shall be divided into the unclassified service and the classified service.
“(A) The unclassified service shall comprise the following positions, which shall not be included in the classified service, and which shall be exempt from all examinations required by §§143.01 to 143.48, inclusive, R. C.:
* * *
“(9) The deputies of elective or principal executive officers authorized to act for and in the place of their principals, and holding a fiduciary relation to such principals;
“(B) The classified service shall comprise all persons in the employ of the state and the several counties, cities, and city school districts thereof, not specifically included in the unclassified service, to be designated as the competitive class and the unskilled labor class.
“(1) The competitive class shall include all positions and employments in the state and the counties, cities, and city school districts thereof, for which it is practicable to determine the merit and fitness of applicants by competitive examinations. Appointments shall be made to, or employment shall be given in, all positions in the competitive class that are not filled by the promotion, reinstatement, transfer, or reduction, as provided in §§143.01 to 143.48, inclusive, R. C., and the rules of the commission, by appointment from those certified to the appointing officer in accordance with such sections.” (Emphasis ours.)

Under §143.08 R. C., the deputies authorized to act for their principals are excluded from classified civil service, and since under §3737.05 R. C., the chief of the bureau of inspection and his assistants shall exercise the duties, etc., conferred upon the fire marshal, their principal, it follows that under this section of the Code, inspectors in the Bureau of Inspection are in the unclassified civil service.

The relator points to the resolution passed by the Civil Service Commission in support of its contention that such inspectors are not specifically included in the unclassified service, and that the Commission by its resolution found that it is practicable to determine the merit and fitness of applicants for position of inspector by competitive examinations. It is sufficient to state that this Court is not bound by the resolution, and the commission itself felt it was not bound by it and rescinded it before it became operative. We find no abuse of discretion on the part of the commission in rescinding the resolution, as claimed by relator. The Court may well conclude that the Commission, as it stated in its order of rescission, preferred legislative action to clarify the matter. Such legislative action never took place.

We now consider several other sections of the Code which bear on this question and which are in para materia with the sections of the Code heretofore discussed.

Sec. 3737.02 R. C., which creates the arson bureau, in part provides: “The chief and his deputies shall be in the classified service of the Civil Service.” Sec. 3737.04 R. C., which creates the bureau of fire prevention, in part provides: “The chief shall be in the classified service of the civil service.” Sec. 3737.03 R. C., which creates the bureau of inspection, makes no provision for placing the chief or any of his assistants in the classified service. This fact is persuasive and significant in disclosing the legislative intent to differentiate between the bureaus respecting classified service. All three sections were enacted at the same time, in Amended Senate Bill No. 179, 97th General Assembly, 122 Ohio Laws, 718. We accept the statement in the opinion of the trial judge, not having made an independent research, that Senate Bill No. 179, when first introduced, at the end of the second paragraph contained the following provision: “The chief and his assistants shall be in the competitive class of the classified civil service;” that between the time of the introduction of the bill and its passage, this provision was deleted from the bill. This fact strongly supports the contention of respondents that the legislature intended that the assistants in the inspection bureau should be in the unclassified civil service.

Relator contends that the court erred in not determining that an action in mandamus was the proper remedy to compel the preparation and giving of competitive examinations for fire inspectors. We find no error on the part of the trial judge in failing to pass on this question. Because of the judgment of the trial court on the principal issues in this case, this question was purely academic. This Court is not required to determine the question in view of our holding on the other issues.

We find no error on the part of the trial court in overruling relator’s motion for judgment on the pleadings or in dismissing the action on the hearing on the merits. We find no assignment of error well made.

Judgment affirmed.

BRYANT, PJ, DUFFY, J, concur.


author: By PHILLIPS, J.

text:
    FINNEGAN, Plaintiff-Appellee, v. METROPOLITAN LIFE INSURANCE COMPANY and SCANLON, Admr., Bureau of Workmen’s Compensation, Defendants-Appellants.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3987.
    Decided October 8, 1958.

      Edward L. Williams, W. Glenn Osborne, Youngstown, for plaintiffappellee.
    Harrington, Huxley & Smith, Youngstown, for defendant-appellant.
   OPINION

By PHILLIPS, J.

A judge of the court of common pleas, acting as trier of the facts upon waiver of trial by jury, entered judgment for plaintiff in her appeal thereto from an order of the Industrial Commission of Ohio denying her claim for benefits claimed due her as the result of the death of her husband, George P. Finnegan. Defendant, Metropolitan Life Insurance Company, a self insurer under the Workmen’s Compensation Act of Ohio, appeals to this court on questions of law.

The simple question presented is whether the facts show decedent was engaged in performing a service for the benefit of his employer when killed, and thus whether the injury which resulted in his death was sustained in the course of and arising out of his employment so as to entitle plaintiff to receive benefits under the Workmen’s Compensation Act of Ohio.

Decedent, a long time manager of the Wick Park District Office of defendant, Metropolitan Life Insurance Company, was killed in an automobile collision at the intersection of Ohio State Route 90 and U. S. Route 224 in Poland, Ohio, decedent’s residence. The accident occurred about 7:30 A. M. on the morning of Wednesday October 20, 1954.

There is no direct evidence where decedent was going when killed. His intention died with him. However, there is undisputed evidence that decedent reported at his office in Youngstown about eight o’clock each morning where he regularly called a staff meeting, unless he went directly from his home, about ten miles south of Youngstown, to Warren where he aimed to be at eight o’clock usually on Thursday mornings. Immediately prior to his death he went to Warren frequently on days other than Thursday to supervise the moving of the Warren office, which was under his supervision. Decedent’s brief case containing papers referring to company business, together with an I. B. M. pencil, a pencil used generally by district managers of the Metropolitan Life Insurance Company in executing the business and discharging the duties of and keeping forms for the Metropolitan Life Insurance Company, was in his automobile when he was killed. His I. B. M. pencil was rarely taken from his office in Youngstown except when it was to be used for company business elsewhere. There is evidence that the nature of decedent’s work was such that he did not observe the office hour schedule of the office employees of defendant, Metropolitan Life Insurance Company, and worked irregular hours, at nights, and on Saturdays and Sundays.

Defendant contends the trial court erred to its prejudice in the admission of a conversation had between plaintiff and decedent two days before his death, on the theory that such testimony was not admissible as part of the res gestae, and was inadmissible because it violated the provisions of §2317.02 R. C., providing that husband and wife shall not testify. Sec. 2317.02 R. C., provides in part:—

“The following persons shall not testify in certain respects:
“(C) Husband or wife, concerning any communication made by one to the other, or an act done by either in the presence of the other, during coverture, unless the communication was made, or act done, in the known presence or hearing of a third person competent to be a witness, and such rule is the same if the marital relation has ceased to exist.

The conversation objected to took place two days before decedent’s death and the testimony to which objection is made was elicited during direct examination of the plaintiff and is as follows:—

“Q. Had you had some conversation with him before you left as to what he intended to do?
“A. Previously he had planned to drive me over to Canton but it was still raining and I told him I would take the bus. So enroute to the bus we had agreed I would call him on Wednesday evening at the office because he said—
“Mr. Wright: Objection to what he said.
“Mr. Williams: I want authority as to the competency of this conversation between Mrs. Finnegan and her husband on the subject of res gestae.
“Court: If it relates to his duties I will permit her to answer.
“Mr. Williams: It has to do with this very subject matter.
“Court: Go ahead with an exception to the defendant.
“Mr. Wright: Objection and exception.
“Q. You may answer Mrs. Finnegan?
“A. May you state the question again?
“Q. You were telling us he was driving you downtown and in the course of that trip he told you what? Having to do with his duties on the day of the accident?
“A. We agreed I would call him on Wednesday because he said ‘I will be busy this week in and out of the office with these new debits, and new agents and going to Warren to make sure that everything is correct, and that will be the best time for you to reach me,’ and he was killed on that morning.”

We believe that the conversation admitted by the trial judge is admissible for the following reasons:—

1. It is admissible as original evidence to show the fact that such a statement was made not necessarily for the purpose of showing the truth of the matters asserted in that statement.

2. It is admissible not on the theory of such conversation being a spontaneous statement, but on the theory known as the “verbal acts doctrine,” or declarations made which, in substance, explain an act to occur after the statement is made.

3. The conversation is admissible under the theory of necessity.

See 21 O. Jur. (2nd), Page 302, Section 288, where it is said:—

“Even apart from its exceptions, the hearsay rule does not operate to exclude every statement repeated by a witness as made by another person. In some cases, the fact that a statement was made, rather than the facts asserted in the statement, is material. * * *”

The foregoing statement is supported by the following cases: Cassidy v. Ohio Public Service Co., 83 Oh Ap 404; Stewart v. State, 19 Ohio 302; and State v. Sheppard, 100 Oh Ap 345, 60 O. O. 298, syllabus 4.

The extent of decedent’s duties and his attitude toward his duties was a material and pertinent issue in the case we review.

In support of her second contention that the statements made by the deceased come within the res gestae, not under the theory of a spontaneous statement, but under the verbal acts doctrine, plaintiff cites the case of Wetmore v. Mell, 1 Oh St 26, where the first and second paragraphs of the syllabus read:—

“Where an act of a party is admissible in evidence, his declarations, at the time, explanatory of that act, are also admissible, as a part of the res gestae.
“Where A’s promise to marry B. is shown, evidence that B. had received A’s attentions for four years, and prepared for marriage by procuring bedding, etc., and of B’s statements to her sister, at the time, explanatory of such acts of preparation, is competent to show her acceptance of such promise.”

It is said at page 28 of the opinion written in Wetmore v. Mell, supra, that:—

“Thus, it has been frequently held, that when one enters into land, in order to take advantage of a forfeiture, to foreclose a mortgage, to defeat a disseisin, or the like; or where one changes his residence, or is upon a journey, or leaves his home, or returns thither, or remains abroad, or secretes himself, or does any act material to be understood, his declarations, made at the time of the transaction, and expressive of its character, motive, or object, are regarded as ‘verbal acts, indicating a present purpose and intention,’ and are therefore, admitted in proof, like any other material facts, leaving their effect to be governed by other rules of evidence.”

In the case of Outland v. Industrial Commission, 136 Oh St 488, the first paragraph of the syllabus reads:—

“The declaration of a person as to where he is going made by him at the time of departing is admissible as a part of the res gestae in explanation of his act of leaving. (Paragraph 2 of the syllabus in Railway Co. v. Herrick, 49 Oh St 25, approved and followed.)”

In the case of Railway Co. v. Herrick, 49 Oh St 25, the second paragraph of the syllabus reads:—

“Where, in such case, it became material to establish that the plaintiff was at the station to take passage on one of its trains, a declaration, made by him as he left his house on his way to the station, that he was going to another station on the same railway, is competent evidence, to establish his character as a passenger.”

See 21 O. Jur., (2d), Page 346, Section 337, for a discussion of the theory of admissibility by reason of necessity.

At page 103 of the opinion in the ease of Birmelin, Admx., v. Gist, Admx., 162 Oh St 98, it is stated:—

“The general rule applicable to such evidence is stated in 20 American Jurisprudence, 521, Section 608, as follows:—
“In the absence of statute, the death of a declarant is not in itself a ground for invoking an exception to the hearsay rule which renders unsworn statements inadmissible in evidence. Under certain circumstances, however, statements made by a person since deceased are admissible under an exception to such rule, based on the ground of necessity. It has been asserted that while declarations of deceased persons are always to be received with caution, the conventional objection that evidence consisting of the alleged declarations of deceased persons is so easily fabricated that it is open to suspicion concerns the weight, rather than the competency, of such proof. On principle, such declarations are not admitted as of necessity if other competent evidence is available. A condition imposed generally in admitting the declarations of deceased persons in evidence is that they appear to have been made without motive on the part of the declarant to state an untruth. Another condition which has been imposed in admitting such declarations is that the declarant be shown to have had knowledge of the facts stated.”

Plaintiff contends:—

“Since Mr. Finnegan’s duties at the time of the accident are in issue, it is respectfully urged that said conversation and statement is admissible and that the court acted properly in allowing such conversation into evidence.
“Wherefore, the contention of defendant-appellant in this respect that the conversation was hearsay and should not have been admitted is not well taken, and the judgment below should be sustained.”

Upon the foregoing authorities we conclude that no error intervened to defendant’s prejudice in the respects urged in the assigned ground of error under consideration.

Now we come to consider the admissibilty of certain statements made by the decedent to his wife prior to his death as to whether such conversation was privileged and comes within the prohibition against testifying to such statements under Section (C) of §2317.02 R. C. We believe the true intent of the legislature in passing §2317.02 R. C., was for the protection of the marital relationship and was passed to cover those conversations, or acts, between husband and wife which are confidential in nature, and was not necessarily intended to exclude all types of conversation between married parties.

It can be seen by reading the conversation stated in the brief of defendant and as testified to by plaintiff that it is not in the nature of a confidential matter, but was merely a conversation between decedent and his wife concerning his whereabouts for a matter of a few days.

It can also be seen by reading the testimony that whether or not this conversation took place in the presence of a third party was never determined by attorneys for defendant, and the question of privileged communication was never raised before the trial court. It is just as reasonable to assume that such conversation was held in the presence of a third person as it is to assume that it was not held in the presence of a third person, in the absence of evidence in that respect.

This type of conversation does not come within the true intent and meaning of the statute as passed by the legislature concerning privileged communications between husband and wife; and if such communication was covered by §2317.02 R. C., counsel for defendant did not properly object before the trial court, and did not call it to the attention of the trial court, or establish by means of questions so the record would clearly show whether or not the conversation took place in the presence of a third party. Only a general objection was made and an exception taken to the court’s permitting such testimony to go into evidence.

The first paragraph of the syllabus in the case of Woodbury v. Bollmeyer & Co. and J. H. Sherwood, et al, 20 O. C. C. (n. s.) 113, reads:—

“In an action on a promissory note, where one of the makers is denying that he executed the note or that there was consideration therefore, it is not error to permit the widow of the other maker to testify as to certain matters which arose between herself and her husband when no other person competent to be a witness was present.”

The second paragraph of the syllabus in the case of Marsh v. Preferred Accident Ins. Co., and Marsh v. New York Life Ins. Co., 89 Federal (2nd) 932. reads:—

“Statute prohibiting one spouse from testifying to communications or acts of other not made or done in presence of third person held not intended to exclude all transactions or communications between husband and wife, however unconfidential or unsecretive in nature, simply because they were not voiced or done in presence of third person.

In the case of Westerman v. Westerman, 25 Oh St 500, the third and fourth paragraphs of the syllabus read:—

“Evidence that a third person was present, and known to be present, at the time of making such communications, or doing such acts, is for the court and not for the jury, and, on error, will be presumed to have been given to the court, unless the contrary appears.
“Where a motion is made to exclude'the entire testimony of a witness, part only of which testimony is incompetent, without specifying any particular part of the testimony objected to, or disclosing the ground of objection, it is not error in the court to overrule the motion.”

At page 507 the court said:—

“Did the court err in refusing to reject the testimony of the husband? It is claimed that even admitting the husband to be a competent witness, the court should have ruled out that part of his testimony which related to communications and acts of the parties, because the bill of exceptions does not show that any third person was present at the time they were made, or took place. It seems to us that there are two good answers to this objection: (1) Evidence to show the presence of such third person was for the court, and not for the jury, and must be presumed till the contrary is shown; and (2) the motion was too broad, including all the husband’s testimony, without discriminating, or making known to the court the ground on which the testimony was sought to be excluded.”

The second paragraph of the syllabus in the case of Losh v. Brunk, 18 Oh Ap 412, reads:—

“The admission of testimony of a divorced wife cannot be made the basis of an error on the ground that the matters testified to were privileged communications under the statute (§11494 GO, where the record fails to disclose that the communications were not made or the acts not done in the known presence of a third person competent to testify, and counsel for the complaining party at the trial made no objections on the ground that the communications and acts attempted to be proved were privileged.”

At page 418 the court said:—

“It was the duty of counsel under these circumstances to make their objections on the ground that the communications and acts attempted to be proved were privileged. The court would then have required the plaintiff to bring the witness within the requirement of the statute. Westerman v. Westerman, 25 Oh St 500; Geauga Iron Co. v. Street, 19 Ohio 300; Patterson v. State, 96 Oh St 90.”

See also F. A. Requarth Co. v. Holland et al, 78 Oh Ap 493.

In the second syllabus in the case of Gaydas v. Fusselman, 11 Abs 652, it is said:—

“Although §11494 GC, provides only testimony of conversations between husband and wife in the known presence of third person is admissible, objection to such testimony cannot be raised for the first time on error proceedings.”

See also Carson v. Beatley, Exrx., et al, 86 Oh Ap 173.

Assigned grounds of error numbered 2, 3 and 4 relate to the claimed error of the trial judge in failing to enter judgment for defendant at the close of plaintiff’s case and again at the close of all the evidence, and that the judgment of the trial court is not based on sufficient evidence and is against the manifest weight thereof.

Defendant waived the right to rely on its assigned ground of error number two when it accepted the ruling of the court and proceeded with its defense and introduced evidence in its own behalf. Halkias, Appellee, v. Wilkoff Co., Appellant, 141 Oh St 139.

As to defendant’s claim that the trial judge erred as urged in assigned ground of error number three there is conflicting and contradictory evidence presenting questions for the trier of the facts compelling submission of the case to him.

Properly admissible the evidence is sufficient to support the judgment entered for plaintiff, and the judgment in our opinion is not against the manifest weight of the evidence nor contrary to law.

The position held by decedent, and the duties devolving upon him, subjected him to the risk of the highway and travel on the public roads to a much greater and further extent than a person who worked scheduled office hours at a fixed place of employment; and decedent’s death due to the injuries received in the accident is brought within the course and scope of his employment.

In the case of Kaiser v. Industrial Commission, 136 Oh St 440, the first paragraph of the syllabus reads:—

“Accidental injury by the elements or forces of nature is received in the course and arises out of the employment where the injured employee is subjected to a greater hazard in his employment than that to wh-ich other persons in the same locality are subjected; this principle applies to accidental injury by freezing in cases in which the peculiar danger to the injured employee from exposure to cold weather compelled by his employment, is a hazard greater than that encountered generally by others exposed to the cold in the particular community.”

See also Sebek v. Cleveland Graphite Bronze Co., 148 Oh St 693; Ott v. Industrial Commission, 83 Oh Ap 13; Smith v. Industrial Commission, 90 Oh Ap 481; and Pickett v. Industrial Commission, 98 Oh Ap 372.

From reading the record it can be seen that decedent on occasions before his death had stopped at the Post Office in Poland, Ohio, on his way to work to deposit mail for the home office in New York; and on' occasion would stop to make a collection on an account; and that he was killed in the vicinity of the Poland Post Office. At the time of decedent’s death there was a change in the office in Warren, Ohio, which it was his duty to supervise and control, which city he had visited often just prior to his death.

In the case of Industrial Commission of Ohio v. Davison, 118 Oh St 180, the second paragraph of the syllabus reads:—

“An employee is in the course of his employment while he is performing the obligation of his contract of employment.”

The case of Industrial Commission v. Wilson, 34 Oh Ap 36, is particularly applicable to the problem presented to us, the syllabus reading:—

“Injuries to general sales manager of coal company sustained when cranking automobile before leaving home in morning, consisting of irritation of duodenum, resulting in rupture and death, held sustained within scope of employment, when office hours were not limited, duties included work before and after office hours, and automobile was furnished by employer to be used in connection with work of soliciting business and obtaining credit information and going to and from home.”

Also see Industrial Commission v. Dense, 14 Oh Ap 224; and Bersche v. Industrial Commission, 56 Oh Ap 236.

Having reviewed carefully all of the assigned errors and the law applicable thereto as cited by counsel for the respective parties and finding no error therein prejudicial to the defendant the judgment of the court of common pleas is affirmed.

NICHOLS, PJ, GRIFFITH, J, concur.


author: By LEACH, J.

text:
    KEMPE, d. b. a. TONY’S PONY KEG, Appellant, v. BOARD OF LIQUOR CONTROL, Appellee.
    Common Pleas Court, Franklin County.
    No. 195441.
    Decided February 27, 1957.
    Charles C. Boyle, Cincinnati, for appellant.
    William Saxbe, Atty. Geni., S. Noel Melvin, Asst. Atty. Geni., for appellee.
   OPINION

By LEACH, J.

HEARD ON APPEAL FROM ORDER OF BOARD OF LIQUOR CONTROL — AFFIRMED

This is an appeal from the order of the Board of Liquor Control of May 22, 1956, under the terms of which appellant’s Class C-l and D-2 Permits were suspended for a period of twenty-eight days on the basis of a finding that beer had been sold on the permit premises on March 3, 1956, to one James Brim, a minor, being then sixteen years of age and also to Samuel Gartly Williamson, a minor, also sixteen years of age.

No brief has been filed for the appellant within the twenty days after the filing of the transcript of the Record or since that time, as required by Rule XXI-A of this court. However, appellant did file a “petition on appeal” which in certain respects is tantamount to a brief. Thus we will not dismiss the case for want of prosecution but will consider the case on its merits.

Appellant asserts that the Board erred in admitting into evidence a certified photostatic copy of a birth certificate of James Brim'since the “birth certificate was at variance with the testimony of the prosecuting witness.” James Brim testified that he was born on April 26, 1939, at Beattyville, Kentucky, that his mother’s name was May and his father’s name was James. This exact information is contained on the birth certificate, showing his date of birth to be April 26, 1939, and that he was born in Beattyville, Kentucky, in Lee County, Kentucky. We conclude as a matter of fact therefore, that James Brim was sixteen years of age on March 3, 1956.

Appellant further contends that the Board erred in admitting into evidence two bottles, one containing a portion of fluid and the other completely empty, without any chemical analysis of the alcoholic content of the fluid in such bottles. The two bottles referred to are labeled a? Schoenling Bock Beer, the testimony disclosing that Brim and Williamson were discovered by police with such beer in their possession in a parked automobile on the day in question. Under the provisions of 84301.22(A) R. C., no beer shall be sold to any person unless he is eighteen years of age. Beer .is defined by §4301.01 R. C., as including all malt beverages containing % of 1% or more of alcohol by weight but not more than 3.2% of alcohol by weight. Bearing in mind that the exact alcoholic content of such beer need not be proven, certainly, we may assume that when the permit holder sold to Brim two bottles of what purported to be Schoenling Bock Beer, that the bottles sold did actually contain Schoenling Bock Beer. We do so conclude as a matter of fact.

Objection is made by the appellant to the testimony of James Brim as to the contents of the bottles tasting and smelling like beer. In our opinion such, when coupled with the fact as to the labeling of the bottles and the admission of the permit holder that he did handle and sell Schoenling Bock Beer, is competent testimony.

Appellant also complains of the fact that an Assistant Attorney General was permitted to cross-examine, to some extent, a policeman as to statements alleged to have been made to him by the permit holder. In view of the apparent discrepancy between the testimony of such policeman and the statement allegedly made to the Assistant Attorney General prior to the hearing, we find that such was not improper. The question of permitting cross-examination in such cases is a matter basically for determination of the trial tribunal and should not be reversed in the absence of an abuse of such discretion. We find no such abuse.

In any event we independently conclude from an appraisal of other testimony in the Record that the charge of selling beer to James Brim, a minor, being then and there sixteen years of age, is fully supported by the Record. In view of the fact that James Brim purchased the beer and later gave one bottle to Samuel Gartly Williamson, there was no evidence to support the charge as to a sale to Mr. Williamson. Actually, there was no effort during the process of the hearing to even attempt to support such a charge and no evidence was introduced whatsoever in this respect.

In accordance with the opinion of the Supreme Court in the case of Andrews v. Board of Liquor Control, 164 Oh St 275, we have examined the entire record and have appraised all of the evidence as to the credibility of witnesses, the probative character of the evidence and the weight to be given to it. From this appraisal we conclude that the order of the Board of Liquor Control is supported by reliable, probative and substantial evidence and is in accordance with law. The same therefore is affirmed.

Entry may be prepared accordingly.


author: Per CURIAM.

text:
    MAXWELL, Jr., Plaintiffs-Appellants, v. COLUMBUS (City) et, Defendants-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5999.
    Decided June 2, 1959.
    James Maxwell, Jr., Columbus, for plaintiffs-appellants.
    Russell Leach, City Atty., John C. Young, Chief Counsel, Columbus, for defendants-appellees.
   OPINION

Per CURIAM.

This case is before the court on a motion to dismiss for want of prosecution, which motion was filed on behalf of the defendantsappellees.

The record and the memorandum in support of the motion to dismiss indicate that on June 21, 1958, the plaintiffs-appellants filed a notice of intention to appeal from the judgment of the Franklin County Common Pleas Court. On July 24, 1958, the precipe was filed to have the records in the- case transferred to the Court of Appeals. From July 24, 1958, until February 24, 1959, no further action was taken by the appellants to file any papers in this case.

On February 24, 1959, the motion to dismiss for want of prosecution was filed. A dismissal was asked for under the provisions of Rule V of the Rules of the Courts of Appeals of Ohio; but it is appai’ent that, this being an appeal-on questions of law only, Rule VII has application to this situation.

On April 29, 1959, the plaintiffs-appellants did file a brief; and on May 1, 1959, the defendants-appellees filed a motion to strike the brief of plaintiffs-appellants from the file. On May 15, 1959, plaintiffs filed a memorandum contra to the motion of defendants-appellees to dismiss and the motion to strike, requesting the court to delay a decision in this case until the Supreme Court of Ohio passes upon another case which involves the plaintiffs-appellants and which is now pending in that court.

It appearing from the record that the motion of the city of Columbus to dismiss was not filed until approximately seven months after the last act of the plaintiffs-appellants, the motion is well taken and should be sustained. The motion to strike the briefs should also be sustained.

BRYANT, PJ, DUFFY, J, concur.

MILLER, J, not participating.