author: By MILLER, PJ:

text:
    STATE ex CHAPUTA, Plaintiff-Relator, v. WEAVER, JUDGE OF MIAMISBURG MUNICIPAL COURT, Defendant-Respondent.
    Ohio Appeals, Second District, Montgomery County.
    No. 2328.
    Decided May 31, 1955.
    Withrow & Hutton, Dayton, By Robert J. Withrow, Jr., Of Counsel, for plaintiff-relator.
    John P. McHugh, Dayton, for defendant-respondent.
   OPINION

By MILLER, PJ:

This is an original action in prohibition in which a writ is sought enjoining the respondent, a Judge of the Municipal Court of Miamisburg, Montgomery County, Ohio, from hearing and deciding a criminal case pending in said court in which the relator is charged with the violation of §4511.19 R. C., to-wit: operating a motor vehicle while intoxicated.

The petition alleges that the offense was committed outside of the corporation limits of the City of Miamisburg, but within the limits of Montgomery County; that the affidavit was filed by an officer of the State Plighway Patrol, a plea of not guilty entered, and that the respondent has assigned the case for trial; that unless restrained by this Court the respondent will proceed to hear and decide the case. The order is sought upon the ground that the Court has no jurisdiction to render a final judgment.

A demurrer to the petition has been filed; hence only a question of law is presented. The law seems to be well established that prohibition is a proper remedy when a court is attempting to exceed its jurisdiction in a criminal matter, even though a right of appeal is available to the accused. State ex v. Vamos, 144 Oh St 628; 18 Ann. Cases, 263; State ex Hartinger v. Court of Common Pleas, 84 Oh Ap 241.

We next give consideration to the jurisdictional question presented. An examination of the statutes of Ohio discloses that prior to the enactment of §4511.19 R. C., which became effective on October 21, 1953, and which defines the offense of operating a motor vehicle while intoxicated, the statute defining the same offense was §4507.37 R. C. (§6296-30 GC), which was repealed on said date. 125. O. Laws, 461. Prior to the repeal, jurisdiction was conferred upon all courts of record for this violation by §6296-16 GC, which provided:

“* * * For the purpose of enforcing the provisions of this act, any court of record now having criminal jurisdiction shall have county-wide jurisdiction within the county in which it is located to hear and finally determine cases arising under the provisions of this act.”

However, this Section of the Code was revised as of the same date by the enactment of §4507.15 R. C., which now provides:

<<sjc * *

“For the purpose of enforcing §§4507.01 to 4507.39, inclusive, R. C., any court of record having criminal jurisdiction shall have county-wide jurisdiction within the county in which it is located to hear and finally determine cases arising under such sections.”

It will be noted that §4511.19 R. C. is not included in the statutes enumerated above which give county-wide jurisdiction in certain criminal cases to courts of record. Since it is not included, the jurisdiction of the respondent is limited to that defined by statute relating to municipal courts. This is found in §1901.20 R. C., and provides:

“The municipal court has jurisdiction of the violation of any ordinances of any municipal corporation within its territory and of any misdemeanor committed within the limits of its territory. In all such prosecutions and cases, the court shall proceed to a final determination thereof. The court has jurisdiction to hear felony cases committed within its territory and to discharge, recognize, or commit the accused. The court also has jurisdiction within the limits of the county or counties in which its territory is situated of those crimes' and offenses which are within the county-wide jurisdiction of justices of the peace.” (Emphasis ours.)

The “territory” of the Miamisburg Municipal Court is defined by §1901.03 R. C. as being the corporate limits of the City of Miamisburg. Therefore, the offense charged was not committed within the “territory” of the Municipal Court, but in Montgomery County, Since the countywide jurisdiction of .the respondent in criminal matters is the same as that of a justice of the peace, we shall therefore refer to §2931.02 R. C., which defines his jurisdiction as follows:

“A justice of the peace is a conservator of the peace and has jurisdiction in criminal cases throughout the township in which he is elected and where he resides, and county-wide jurisdiction in all criminal matters only upon affidavit or complaint filed by the prosecuting attorney or upon affidavit or complaint made by the sheriff, the party injured, or any authorized representative of a state or federal department, in the event there is no other court of concurrent jurisdiction other than the court of common pleas, police court, or mayor’s court, and on view or on sworn complaint, to .cause a person, charged with the commission of a felony or misdemeanor, to be arrested and brought before him or another justice of the peace, and, if such person is brought before him, to inquire into the complaint and either discharge or recognize him to be and appear before the proper court at the time named in such recognizance, or otherwise dispose of the complaint.”

It is to be noted that a justice is authorized to do one of three things: (1) Discharge the prisoner; (2) Recognize him for appearance before the proper courts, or (3) Otherwise dispose of the complaint. It is said in 24 O. Jur., Sec 194, page 395:

“The power of a justice of the peace to try, and convict, is invariably limited to minor offenses of which in many eases he has exclusive jurisdiction. Unless an offense is one of those of which the justice is given jurisdiction by statute, his jurisdiction is confined to that of an examining magistrate, or to disposing of the case as provided in other sections of the General Code.”

Jurisdiction to try the offense charged in the affidavit under §4511.19 R. C. is not given to a justice of the peace by statute; hence, his jurisdiction is confined to that of an examining magistrate, or disposing of the case as provided in other sections of the Code.

Among the other sections referred to which are applicable we finri §2937.11 R. C., which provides:

“When an accused is brought before a magistrate, and there is no plea of guilty, he shall inquire into the complaint in the presence of the accused. If it appears that an offense has been committed, and there is probable cause to believe the accused guilty, the magistrate shall order him to enter into a recognizance with good and sufficient surety, in such amount as is found to be reasonable, for his appearance at a proper time and before the proper court, otherwise the accused shall be discharged from custody. If the offense charged is a misdemeanor and the accused, in a writing subscribed by him and filed before or during the examination, waives a jury and submits to be tried by the magistrate, he may render final judgment.”

Under the provisions of this section the justice has final jurisdiction only when the required waiver and consent to be tried are properly filed. The requirements of this statute have not been complied with in order to confer final jurisdiction on the respondent. The petition is silent as to waiver, but it must be assumed that none was filed, for it states that:

“Said respondent has set said cause as a jury trial on February 17, 1955, at 9:30 A. M.”

It must also be inferred from this allegation that a plea of not guilty was entered. Furthermore, waiver and consent are affirmative defenses and must be pleaded before being given consideration.

The case of State v. Ferguson, 96 Oh Ap 297, by this Court, is not in conflict with the conclusion we have reached herein, for the reason that in the cited case the offense was committed in February, 1953, which was prior to the repeal of §4507.37 R. C. (§6296-30 GC) and the amendment of §4507.15 R. C. (§6296-16 GC).

The writ will be allowed.

HORNBECK and WISEMAN, JJ, concur.


source: Caselaw Access Project

author: By FRIEBOLIN, Referee.

license: Public Domain

text:
    DROESE, Bankrupt, In re.
    United States District Court N. D. Ohio, E. D.
    No. 70649.
    Decided January 25, 1954.

      Marvin L. Gardner, Cleveland, trustee.
    William W. Weltz, Cleveland, for bankrupt.
   OPINION

By FRIEBOLIN, Referee.

The bankrupt having failed to pay the filing fee of $45, contends, and the trustee does not object, that the sum of $45 should be paid out of the estate since, the trustee collected $122.29 from bankrupt’s employer upon a garnishment of bankrupt’s wages pending at bankruptcy, which garnishment was declared void by virtue of Section 67a of the Act.

In fact, the bankrupt in his affidavit, alleging inability to pay, filed with his voluntary petition, stated that he would pay the filing fee out of the money so collected by the trustee.

I find no warrant for such procedure in the Act or General Orders. In my judgment, the bankrupt is required to pay the filing fee of $45 regardless of any assets in the estate. The law seems to be abundantly clear that every voluntary bankrupt in strict bankruptcy — as well as petitioning creditors in involuntary cases — is required to pay to the clerk, the filing fee of $45. Whether the trustee collects any funds for the estate is wholly irrelevant.

However, it is true that where there are assets in the estate, (1) petitioning creditors in involuntary cases, and (2) persons other than the bankrupt in voluntary cases who have paid the $45 filing fee, may be reimbursed. Section 64a (1) expressly so provides. (Emphasis added.)

Section 40c (1) provides that, except as otherwise provided in the Act, there shall be deposited with the clerk, at the time the petition is filed in each case (a) $17 for the referee’s salary fund and (b) $15 for the referee’s expense • fund. Provided, however, that in cases of voluntary bankruptcy, such fees ($32) as well as the filing fees of the clerk ($8) and trustee ($5) may be paid in installments if so authorized by General Order. ;

Section 51 provides that the clerk shall:

“(2) collect the fees of the clerk and trustee and the fees for the referee’s salary fund and referee’s expense fund — in each case instituted before filing the petition except wheré installment payments may be authorized pursuant to Sec. 40 of the Act * *

Section 64a (1) provides among items of first priority out of the funds of the estate “the filing fees paid by creditors in involuntary cases or by persons other than the bankrupts in voluntary cases.”

From these provisions of the Act, it seems clear that the $45 filing fee must be paid and that the fund resulting from administration may not be charged with reimbursemet of such filing fee except in the two instances mentioned; the voluntary bankrupt who pays the fee himself may not be reimbursed.

The question remains: Does the fact that the bankrupt fails to pay the filing fee before the petition is filed but files a poverty affidavit, alter the situation?

There is a further question perhaps: Does the fact that the fund realized by the trustee resulted from the avoidance of a garnishment of bankrupt’s wages, alter the result?

1. In the sections of the Act above cited there is an exception to the requirement of immediate payment of the $45 filing fee. This, of course, refers to what’ is generally called the filing of a pauper or poverty or inability affidavit - with the petition, which is described in General Order 35.

General Order provides and spells out the requirements when a bankrupt can not pay “the filing fees ($45) in full at the time of filing the petition.”

With his bankruptcy (or Chapter XIII) petition, the bankrupt must file a verified petition stating that he is without and can not obtain the money to pay the filing fee in full at the time of filing; also state the facts showing the necessity for payment in installments and shall set forth the terms upon which the petitioner proposes to pay the filing fee.

When this is done and the clerk accepts the bankruptcy petition without immediate payment of the filing fee but in lieu thereof the so-called “pauper affidavit” and the proposal of payment in installments, the court is called upon to consider the pauper affidavit at the first meeting of creditors. At this meeting, the court shall enter an order fixing the amount and date of payment of such installments after hearing and examination of the bankrupt.

Moreover, the court’s order may not provide that the final installment be payable more than six months after the date of filing the bankruptcy petition; provided that for cause shown the court may extend the time of payment of any installment for a period not to exceed three months. In any event, if the court did extend the date of payment of any installments, no proceeding looking to the discharge of the bankrupt may be instituted until the filing fees have been paid in full.

From this it seems clear that the order of the court at the first meeting is the final determination of the obligation of the bankrupt respecting the method and time of payment in installments.

But there are further penalties that follow failure of bankrupt to pay the filing fee. G. O. 35b provides that upon failure of bankrupt or debtor to pay any installment as ordered the court may dismiss the proceeding. The division of the installments — less than the total of $45 — is provided for in this paragraph.

From a consideration of all of these provisions of the General Orders and authorities, it seems evident that the bankrupt must in any event pay the filing fee of $45; whether there may be reimbursement depends upon their falling within the group of persons described in Section 64a (1).

Further support to my conclusions is lent by a consideration of the prior law; e. g„ prior to 1947, G. O. 35 (4) provided that if filing fees are not required to be paid by a debtor before filing his petition, the judge at any time might order those fees paid out of the estate or upon proof that bankrupt could then pay them, order him to pay them. This paragraph of G. O. 35 was eliminated after the Referee’s Salary Act was passed in 1946.

Also prior to 1946, some courts favored proceedings in forma pauperis, although the majority insisted upon a requirement of the initial deposit. The 1946 Amendment of the Chandler Act and the new General Order have eliminated any opportunity to avoid payment of the initial filing fee. It is evident that this was done to insure sufficient funds to maintain the Bankruptcy Act under the salary system for referees.

2. There remains the contention that the $45 filing fee should be paid — so far as possible — out of money collected by the trustee from bankrupt’s employer by reason of the trustee’s successful avoidance of the attachment of bankrupt’s wages; the trustee in this connection collected $122.19.

I know that there is an opinion in some quarters that the avoidance of such a lien is automatic; that when a trustee avoids an attachment of bankrupt’s wages obtained within four months of bankruptcy, - the bankrupt somehow has some right or interest in the amount collected, and therefore it should be applied on filing fees.

In my judgment the bankrupt has no interest whatever in any sum thus realized; moreover he has no interest nor right to have such attachment avoided although, of course, he may claim his state law exemptions at all times, whether the attachment is avoided or not.

In this case, bankrupt, as part of his “pauper affidavit” alleges that his wages in the sum of $124 have been garnisheed and that he will pay the filing fee out of this sum when it is released.

This court on March 17, 1953, the day of the first meeting, as required by G. O. 35 (4), entered an order (with consent of bankrupt) to pay the full filing fee of $45 on or before April 18, 1953. He has failed to pay any part thereof.

The attachment was set aside upon application of the trustee since it was a lien obtained while bankrupt was insolvent and within four months of bankruptcy. Section 67a so provides.

This section, however, was included in the Act for the benefit of creditors. Except insofar as bankrupt’s exemptions may be involved, the bankrupt has no interest in it nor rights under it. Only the trustee has the right to have such judicial lien avoided to the prejudice of the attaching creditor.

If the trustee proceeds to act, the attaching creditor must be made a party. There is nothing automatic about it. The attaching creditor may oppose the avoidance of it. The trustee may decide not to avoid it if there is no appreciable benefit to the estate. So far as the bankrupt is concerned, he can obtain no more than his exemptions; and, except in very unusual cases, his exemptions may be claimed without any aid from Section 67a.

As between the bankrupt and levying creditor, the lien is good. It is the privilege of the trustee to take steps to avoid it if he finds it advantageous to creditors — not to bankrupt. There is no absolute duty upon the trustee to avoid judicial liens under Section 67a; least of all is he required to do it for the benefit of the bankrupt. The money collected thereunder is the property of the estate to be distributed as provided in Section 64a.

These conclusions seem to be fully in accord with the text writers and the U. S. Supreme Court. Its latest pronouncement in which C. B. & Q. v. Hall, supra, is distinguished, is Fischer v. Pauline Oil Co. (’40) 309 U. S. 294.

For the reasons stated, I find that the request of the bankrupt joined by the trustee, that the court order $45 to be paid out of the estate, must be denied. The bankrupt must pay the filing fee of $45. Whether it will be reimbursed out of the estate is governed by Section 64a (1).

An order will be entered, requiring bankrupt to pay the sum of $45 filing fee on or before February 1, 1954.

Memorandum in amplification of the opinion in In re Droese, Case No. 70649, decided January 25, 1954.

Because of some doubts raised by the opinion in In re Droese, respecting the payment of the $45 filing fee required of the bankrupt, it appears appropriate to append this memorandum upon a collateral situation.

In the Droese case we considered only the obligation of the bankrupt to pay the filing fee upon pain of dismissal of his bankruptcy petition. It was held that the bankrupt could not escape such requirement because there were assets in the estate. In other words, the bankrupt could not upon his application have an order that the trustee, out of money belonging primarily to creditors, pay the filing fee and thereby relieve the bankrupt of the plain requirements of the Act and the relevant General Order — G. O. 35. If the bankrupt did pay such filing fee, and assets came into the estate, he could not claim reimbursement out of the fund.

That opinion, in effect, held that if the bankrupt or some third person for him did not pay the $45 filing fee, the bankrupt’s bankruptcy petition would be dismissed. It did not reach the question of payment of such fee out of the estate upon the distribution of the estate by the trustee, even though the bankrupt’s petition was dismissed and in consequence he could not obtain a discharge in this case.

Since in that situation the trustee has funds in his hands, he will be ordered to distribute them under the orders of the court. In my judgment, he should be ordered first, to pay such $45 filing fee to the clerk; the balance, if any, to be distributed as provided in Section 64a. The absurdity of any other procedure is apparent. If the filing fees were not paid, the bankruptcy court through its machinery would be administering an estate in which the initial expense, the costs for initiating the proceeding (the filing fee), would not be paid.

It seems evident that the Supreme Court, when upon passage of the Referees’ Salary Act (effective July 1, 1947) it amended General Order 35, did not intend so absurd a result. It made elaborate provisions for installment payment by bankrupt of the filing fee, insuring such payment prior to any consideration of a discharge — all of it under supervision of the court, not merely the judge. But it also eliminated former paragraph 4 of G. O. 35 which had provided in substance that when filing fees were not paid by the debtor before filing of his bankruptcy petition, the judge, at any time during the proceedings, might order them paid out of the estate. In making this change, the Supreme Court may well have realized that the bankruptcy court had ample power to make an order to pay filing fees in asset cases, when the bankrupt fails to do so and his petition is dismissed.

When there is no other specific course prescribed in the Act and General Orders, the bankruptcy court is a court following the principles and rules and practices of equity. Equity will, when justice requires, order what ought to be done. Many cases have made that declaration and it has been applied in bankruptcy in varied circumstances.

There being no other course presented in the Act or General Orders, the bankruptcy court may surely proceed as indicated: order the filing fee paid out of the estate, after the bankrupt has failed to pay it, and his petition has been dismissed; the procedure would be somewhat similar to that followed in other cases where the bankruptcy petition is dismissed.

One of the rules of equity frequently applied, arises when one (or more) person (s) performs services for the benefit of a group of persons having a common interest in a trust fund. In such instance such person (or persons) may be reimbursed from the trust fund. Trustees v. Greenough, 105 U. S. 527.

In pursuance of this equitable rule, assignees for the benefit of creditors and receivers in non-bankruptcy courts, who turn over the debtor’s assets to the bankruptcy court, may be compensated out of the bankrupt estate for beneficial services. The value of such services being held to be in the nature of a lien or an equitable lien upon the property surrendered, is paid out of the fund realized, prior to the costs of administration and other categories in Section 64a; Remington (5) 2099, n. 10; 3 Collier (14 Ed) p. 1600, n. 36.

In the situation herein presented, the officers of the bankruptcy court, without prior payment of the filing fee required to initiate the proceeding, have performed services which ordinarily would not have been performed without prior payment of such fee. In all justice, such filing fee should be held to have a preferred status senior to those in Section 64a (1).

There are a number of sections of the Act which disclose that the Bankruptcy Act has adopted, at least forfeited, the equitable rules above referred to. In the first paragraph of Section 2a it is stated that courts of bankruptcy are invested “with such jurisdiction at law and in equity as will enable them to exercise original jurisdiction in proceedings under this Act * *

Also Section 2a (15) which provides that the court may “make such orders and enter such judgments in addition to those specifically provided for, as may be necessary for the enforcement of the provision of this Act.” It has been said that this is an omnibus provision, phrased in such general terms as to be the basis for a broad exercise of power in the administration of the estate. 1 Collier (14 Ed.), p. 276.

The Supreme Court, after quoting Section 2a (15) has said, in connection with another situation, “that the malleable processes of courts of bankruptcy give assurance of a remedy that can be moulded and adapted to the needs of the occasion.” Steelman v. All Cabinet Corp. (1937) 301 U. S. 278, 289, 290.

Again, we have Section 20 (18) which provides that the court may tax costs .and render judgments against “estates.” While no case has been found where'filing fees were taxed as costs to be paid out of the estate pursuant to this section, there are varied instances in which it has been relied upon. See Collier (14 Ed.) p. 314, n. 8.

From what has been said, it seems abundantly clear that the court may order the filing fee paid out of the estate — in addition to the reimbursement provision of Section 64a (1) — when bankrupt has failed to pay them, but only when the obligation of the bankrupt is to pay them. The reasons for enforcing that requirement are discussed in the opinion in the Droese case.

      . Section 52a fixes the clerk’s fee at $8 in each estate but the “clerk may collect this amount in installments when * * * authorized by General Order.”

      . Section 48c provides for a fee for the trustee, $5 for each estate deposited with the clerk at the time the petition is filed except when a fee is not required from a voluntary bankrupt. (That is, when a “pauper affidavit” is filed as described in G. 0. 35.)

      . See references , above in 40c (1): “installments if authorized by General Order.” Similar language in Sections 51 and 52.

      . G. O. 35 (4)

      . In the affidavit accompanying his voluntary petition, bankrupt here alleges that his employer is holding $124 on a garnishment; that he has filed a motion in the Municipal Court for an order to turn this money over to the trustee and that he (bankrupt) will pay the filing fee out of said $124.

      . G. 0. 35 (4) a

      . G. 0. 35 (4) c

      . 2 Collier (14) p. 1875 — -“to prevent abuses, ample power is now given by G. O. 35 (4) to the judge (court) to investigate the truth of the pauper affidavit * * *. The affidavit will usually be held false if it appears that the debtor has exempt property or has paid an attorney for services in preparing the petition and schedules, or even, it has been held, if the bankrupt is at the time earning fair wages.”
      See also In re Stevenson (D. C. La. ’42) 45 F. Supp. 709.

      . G. O. 35 (4) (b): the same proportion as if fully paid.

      . Remington on Bankruptcy (5) Section 181: “The provision for avoiding the required deposit by filing a poverty affidavit was eliminated by 1946 Amendment of the Act. No authorization for escaping the deposit and proceeding in forma pauperis now appears. However, the Amendment left open for the Supreme Court to provide by General Order, for payment of the initial fees and deposits in installments.”
      Collier p. 1543 (1953 Supplement — Supplement page 201) referring to the $32, part of the filing fee for the referee’s fund, says: “The Act requires the sums for the referees’ salary and expense fund to be deposited when the petition is filed.” “What happens afterwards is of no concern, and the statutory requirement is not predicated upon a condition subsequent that a referee render services. This is the only tenable basis upon which a self-supporting salary system could be erected * * “A further change effected by the amended provisions of the Referees’ Salary Bill is the abolition of the so-called pauper petitions formerly provided for in Sec. 51 (2) and G. 0. 35 (4), in lieu of which installment payments may be permitted under the proviso of Amended Sec. 40c (1).”
      Collier p. 1872, par. 51.01 says: “The principal change effected in Sec. 51 * * * deals with the abolition of the so-called pauper petitions * * *. It seems more desirable to provide for installment payments in meritorious cases * * The author also refers to 28 U. S. C. Sec. 1915 and sees no conflict with Section 51.

      . C. B. & Q. v. Hall (’13) 229 U. S. 511.

      . Connel v. Walker (’34) 291 U. S. 1; Howe’s Lake v. Strickland (D. C. La. ’51) 55 So. (2d) 51; Grambilas v. Linfair (’41) 126 N. J. L. 82; 4 Collier (14) p. 122; Remington (5) Sections 1619, 1621.
      In Fischer v. Pauline, supra; Par. 1 of Syllabus: “Section 67f (now a) is intended for the benefit of bankrupt’s Creditors and therefore does not avoid liens * * * as against all the world but only as against the trustees and those claiming under him. It is settled, however, that the bankrupt may assert the invalidity of a lien under this section, but only as respects property set apart to him as exempt in a bankruptcy proceeding.”
      Par. 2: “The operation of Section 67f (now a) is not automatic * * * without any action by the trustee. The lien is void only under specified conditions * * * and these conditions create issues of fact which, as between the trustee or one claiming under him and the lieno'r or one claiming by virtue of the lien, the parties are entitled to have determined judicially * *

      . As stated in the Droese opinion, although a person other than the bankrupt could be reimbursed out of the fund if such person paid the filing fee, the bankrupt had no such right. Section 64a (1).

      . Former G. O. 35 par. 4: “In any case in which the fees of the clerk, referee, and trustee are not required by the act to be paid by a debtor before filing his petition to be adjudged a bankrupt, the judge, at any time during the pendency of the proceeding in bankruptcy may order those fees to be paid out of the estate; or may, after notice to the bankrupt, and satisfactory proof that he then has or can obtain the money with which to pay those fees, order him to pay them within a time specified, and, if he fails to do so, may order his petition to be dismissed. He may also, pending such proceedings, both in voluntary and involuntary cases, order the commissions of referees and trustees to be paid immediately after such commissions accrue and are earned.”

      . Collier seems to be in error in assuming that the former paragraph 4 of G. O. 35 is still in effect. 2 Collier (14 Ed.) pp. 1875 and 1876, n. 8.

      . Collier on Bankruptcy (14 Ed.), pp. 162-167; Remington on Bankruptcy (5) Section 23; Steelman v. All Cabinet Corp. (1937) 301 U. S. 278, 287 and 290.

      . It might be argued that Section 64a (1) warrants the conclusion that the filing fees might be ordered paid under the provision that “the actual and necessary costs and expenses of preserving the estate subsequent to filing the petition,” are to be accorded a first priority. This clause appears to apply to persons other than officers of the court who perform some service, since, after bankruptcy it would seem that other sections of the Act referred to above, are more in point.

      . There appears to be no conflict with 28 TJ. S. C., Section 1915 (permitting suit without pre-payment of costs); see 1 Collier (14) p. 1874, Section 51.01, Supplement.


author: By MILLER, Circuit Judge.

text:
    SCHOLNIK, Appellant, v. NATIONAL AIRLINES, INC., Appellee.
    United States Court of Appeals, Sixth Circuit.
    No. 12170.
    Decided February 4, 1955.

      Ralph Rudd, Marvin C. Harrison, Cleveland, for appellant.
    Edward D. Crocker, Arter, Hadden, Wykoff & VanDuzer, Cleveland, for appellee.
    Before ALLEN, McALLISTER and MILLER, Circuit Judges.
   OPINION

By MILLER, Circuit Judge.

The appellant, Thelma Scholnik, a citizen of Ohio, filed this action in the District Court for the Northern District of Ohio against National Airlines, Inc., a Florida corporation, to recover damages in the amount of $40,000 for personal injuries sustained on or about June 11, 1951 while a passenger in a National Airlines plane while the plane was over Florida in flight from Havana, Cuba, to Miami, Florida. The complaint alleged that the injuries resulted from being thrown out of her seat into the aisle by reason of the negligent operation of the plane. The District Judge sustained appellee’s motion to quash service of summons and to dismiss the complaint, holding that the appellee was not doing business in Ohio, that the summons was not served on an authorized agent of the appellee, and that the District Court in Ohio had no jurisdiction over it. This appeal followed.

The facts are not in dispute and are shown by affidavits, a depoSition and documentary evidence to be as follows: National Airlines, Inc., hereinafter referred to as National, is engaged in the business of transporting passengers by airplane. It has certificates from the Civil Aeronautics Board for operation over routes from New York to Miami, Florida, from Jacksonville and Tampa, Florida to New Orleans, Louisiana and from Tampa to Havana, Cuba. It operates no flights into the state of Ohio and maintains no offices in Ohio. Some of its planes operating from the south into Washington, D. C. are thereafter flown from Washington into Cleveland, Ohio, under an equipment interchange leasing agreement, hereinafter referred to as the lease, entered into between National and Capital Airlines, Inc., hereinafter called Capital. Capital is a Delaware corporation, separate and distinct from National, is neither a parent nor a subsidiary corporation to National, and unless made so by the lease, is not the servant or employee of National.

The lease has this factual base. National does not operate any flight to the northwest of Washington. Capital operates a flight from the northwest (Cleveland, Ohio) into Washington but not to the south thereof. During the summer six months, May through October, Capital’s business increases and it becomes short of equipment. National has equipment which it can furnish to Capital during this period. In the winter months, November through April, when Capital’s business falls off, it has excess equipment which it can furnish to National. The leasing of such equipment by one to the other enables the two lines to operate continuous through flights between Cleveland and Miami or Havana, stopping at Washington. Under the lease, a National plane, after arriving at Washington from the South, is leased, together with its National operating crew, to Capital, and then continues on to Cleveland over the Capital route. Similarly, a Capital plane after arriving in Washington from Cleveland, is leased, together with its Capital operating crew, to National, and then continues south over the National route. Through tickets are sold by each line, which show that the trip northwest of Washington was being made by Capital, and that the trip south of Washington was being made by National. Such through transportation is advertised by Capital out of its Cleveland office.

The lease, entered into on June 2, 1950, was subject to, and became effective only on, approval by the Civil Aeronautics Board, and was so approved. It provided that from November 1st to April 30th of each year Capital would lease certain aircraft and flight crews to National, and from May 1st to October 31st- of each year National would lease certain aircraft and flight crews to Capital, the leases being for the purpose of providing through service on such of the schedules of the parties thereto connecting at Washington as the parties shall determine by mutual agreement. The lease of the aircraft and flight crews became effective upon delivery of the aircraft in question by the owner to the lessee, and the lease terminated upon the delivery of the aircraft by the lessee to the owner. Such delivery was ordinarily to be made immediately after the aircraft arrived at the ramp at the airport then serving the city of Washington. A written receipt describing the aircraft and the time of such delivery was executed by the receiving carrier.

The lease provided:

“Bach party shall have the exclusive right, subject to the orders of the Civil Aeronautics Board, to fix the scheduled stops to be made on its routes, and nothing contained in this agreement shall be construed to grant either party any right whatever (a) to determine whether any flight of the other party shall be operated or cancelled in whole or in part or (b) to exercise any control over any operation or business or affairs of or interest in the other party, except as may be specifically provided for herein or as may be an incident of this agreement.

“Flights with planes leased under the terms of this agreement shall be under the absolute operational control of the lessee during the period of the lease, and the leased flight crews shall be under the exclusive operational control of the lessee during the period of the lease. * * *

“The lessor of aircraft and equipment hereunder shall make such change in the radio equipment in its aircraft as to conform to the assigned frequencies of the lessee.”

The lease also contained the following provisions: The lessor was responsible for loss of or damage to its aircraft and equipment while leased to the other, except that the lessee would be liable to the lessor for such loss or damage as (1) occurred when the aircraft was on the ground and not taxiing in or out with respect to a flight, and (2) oceurred as a result of negligence on the part of the lessee or its employees. Each party would at all times maintain appropriate insurance covering its responsibilities for loss of or damage to aircraft while under lease. The lessee was to keep in full force and effect at its expense insurance insuring both itself' and the other party, as their respective interests might appear, against liability for injuries to or deaths of passengers and third parties, and damage to property caused by the operation or possession of such aircraft. The lessee agreed to indemnify the other party during the period in which it had possession of the aircraft against all damage or claims caused by the operation or possession of such aircraft.

The lease containd lengthy and detailed provisions with respect to the rental for leased aircraft and flight crews. In general, certain types of expense, measured in cents per revenue mile, were allocatd to each airline, (1) when operating as lessee and (2) when operating as lessor. The lessee was to keep an accurate record of the revenues generated by the leased aircraft on the mileage operated under lease. The lessor and lessee would each receive such proportion of such revenues as their respective expenses per plane mile bore to the total expenses per plane mile, which division would be continued until the lessor and lessee each recovered their expenses. In the event the flights with leased equipment resulted in revenues above the expenses of both lessor and lessee, the excess of such revenues was to be divided 45% to the lessor and 55% to the lessee.

Historically, the jurisdiction of a court to render a judgment in personam against a defendant depended upon the presence of the defendant within the territorial jurisdiction of the court. Pennoyer v. Neff, 5 Ott. 714, 95 U. S. 714, 24 L. Ed. 565. The strictness of that rule has given away somewhat to the present view that due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts, with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. State of Washington, 326 U. S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95; Milliken v. Meyer, 311 U. S. 457, 463, 61 S. Ct. 339, 85 L. Ed. 278.

With respect to a corporation, its presence without the state of its origin is manifested only by activities carried on in its behalf by those who are authorized to act for it. As said in International Shoe Co. v. State of Washington, supra [326 U. S. 310, 66 S. Ct. 159],—“It is evident that the criteria by which we mark the boundary line between those activities which justify the subjection of a corporation to suit, and those which do not, cannot be simply mechanical or quantitative. The test is not merely, as has sometimes been suggested, whether the activity, which the corporation has seen fit to procure through its agents in another state, is a little more or a little less. (Cases cited.) Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations.” See also Perkins v. Benguet Consol. Mining Co., 342 U. S. 437, 72 S. Ct. 413, 96 L. Ed. 485, 47 O. O. 216.

In support of her contention that National has the necessary minimum contacts with the state of Ohio to confer jurisdiction over it in Ohio, appellant relies on the actual operation of National’s planes by National crews in Ohio and on the activities of Capital in Ohio in advertising the Capital-National through flight to Miami, the sale of through tickets by it in Cleveland together with other services incidental thereto, and the benefits resulting to National through such activities on its behalf in Ohio. Appellee contends that by reason of the lease, which is a validly executed contract between two separate, independent corporations and must be recognized, it is not operating any planes in Ohio, and that the activities of Capital on its behalf in Ohio are no more than those considered by the Supreme Court in analogous cases involving connecting railroad carriers. In such cases, the Supreme Court ruled that such activities by a connecting carrier within the jurisdiction did not confer jurisdiction over the foreign corporate carrier who, although receiving benefits therefrom, did not itself operate within the state. Green v. Chicago, Burlington and Quincy R. Co., 205 U. S. 530, 27 S. Ct. 595, 51 L. Ed. 916; Philadelphia & Reading R. Co. v. McKibbin, 243 U. S. 264, 37 S. Ct. 280, 61 L. Ed. 710.

Appellant contends that the net overall effect of the numerous provisions of the lease is not to create the relation of lessor and lessee, but rather the relation of participants in a joint enterprise, which eliminates the claimed insulating effect of the alleged lease.

We are of the opinion that the rule applied in the Green and Mc-Kibben cases has been materially changed by later decisions of the Supreme Court. In Lasky v. Norfolk & W. Ry. Co., 6 Cir., 157 F. 2d 674, we consider a situation similar to those in the Green and McKibbin cases in the light of the Supreme Court’s opinion in International Shoe Co. v. State of Washington, supra. On the authority of that case we held that the defendant carrier, although a foreign corporation with no part of its lines located in the Northern District of Ohio, and although it made no contracts, issued no bills of lading and sold no tickets in the Northern District, was nevertheless doing business in the district and subject to service of process therein, by reason of the extensive and continuous solicitation of business by it in the district. In our opinion, such activity on its behalf within the district supplied the minimum contacts on the part of the corporation with the state of the forum as to make it reasonable to require the corporation to defend a particular suit brought in that district. See also: Bach v. Friden Calculating Machine Co., 6 Cir., 167 F. 2d 679; Frene v. Louisville Cement Co., 77 U. S. App. D. C. 129, 134 F. 2d 511.

The effect of International Shoe Co., v. State of Washington, supra, has been referred to by numerous District Court cases, the following of which represent the strongly prevailing view that the earlier rulings of the Supreme Court in the Green and McKibben cases are no longer a correct statement of the law. Willett v. Union Pac. R. Co., D C. N. D. Ohio, 76 F. Supp. 903; Perkins v. Louisville & N. R. R. Co., D C. S. D. Cal., 94 F. Supp. 946; Bonesteel v. Steelco Stainless Steel, D. C. N. D. Ohio, 97 F. Supp. 985; Star Elkhorn Coal Co. v. Red Ash Pocahontas Coal Co., D. C. E. D. Ky., 102 F. Supp. 258; Cook v. Kilgor Mfg. Co., D. C. N. D. Ohio, 105 F. Supp. 733; Healing v. Isbrandsten Co., D. C. S. D. N. Y., 109 F. Supp. 605; Krnach v. Electro Life, D. C. N. D. Ohio, 13 F. R. D. 131.

In Travelers Health Ass’n v. Commonwealth of Virginia, 339 U. S. 643, 70 S. Ct 927, 929, 94 L. Ed. 1154, the Supreme Court applied its new concept of “doing business” by a foreign corporation to a corporation which had no office or paid soliciting agent in Virginia but issued a substantial number of health insurance policies to residents in that state through use of the mail. It held that metaphysical concepts of “implied consent” and “presence” in a state were not controlling, and “where business activities reach out beyond one state and create continuing relationships and obligations with citizens of another state, courts need not resort to a fictional ‘consent’ in order to sustain the jurisdiction of regulatory agencies in the latter state.”

For the purposes of the present ruling, it is unnecessary to determine the exact legal effect of the provisions of the lease. A valid lease by National of its planes and crews to Capital is only a part of the picture. Under the decisions above referred to it is not necessary that National operate its planes in Ohio in order to be treated as being present in Ohio. In many of the activities performed by Capital in its Cleveland office with respect to the through flights, it is acting for National and with authority from National to so act. In addition to solicitation of business it makes the actual contracts of carriage over National’s lines with residents of Ohio and collects payment therefor. In such activities, agency clearly exists. Even though the actual cost of such service may not be charged directly or indirectly to National in the mutual accounting provided by the lease, compensation for such agency services would be found in the performance of similar services for Capital by National in National’s southern offices. Such activities on behalf of National, coupled with operations under the lease, with resulting benefits to National, carried on continuously over a period of years as a regular part of National’s business, in our opinion furnish the necessary minimum contacts with the Ohio forum so that the maintenance of a suit against it in that forum does not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, supra; Travelers Health Ass’n v. Virginia, supra; Lasky v. Norfolk & W. Ry. Co., supra.

Summons was served on National by delivery to the District Sales Manager of Capital in Cleveland. A second summons was served on Robert Denton who was a pilot of a National plane under lease to Capital at the Cleveland airport.

Rule 4 (d) (3), Federal Rules of Civil Procedure, 28 U. S. C., provides for service upon a foreign corporation by delivery of the summons and complaint to “a managing or general agent.” Rule 4 (d) (7) also authorizes service upon a foreign corporation “in the manner prescribed by the law of the state in which the service is made.” Sec. 11290 GC (§2703.12 R. C.), in effect at the time, provides: "When the defendant is a foreign corporation, having a managing agent in this state, the service may be upon such agent.” It is not required under either the federal or state provision that the agent served be the general agent or general manager of defendant’s business in the state. It is sufficient if he is “a managing” agent. Based upon our ruling that National was doing business in Ohio by reason of its relations with Capital delivery of process to the district sales manager of Capital was a valid service. Bach v. Friden Calculating Machine Co., supra; Toledo Computing Scale Co. v. Computing Scale Co., 6 Cir., 142 F. 919; Beach v. Kerr Turbine Co., 6 Cir., 243 F. 796, 709; Bonze v. Nardis Sportswear, 2 Cir., 165 F. 2d 33, 37.

The ruling of the District Judge was influenced in part by a consideration of the unreasonable burden upon appellee in requiring it to defend the suit in the Ohio forum. Our ruling does not necessarily have that result. Whether the case should be transferred to a more convenient forum under the provisions of Sec. 1040 (a), Title 28 U. S. Code is not involved in its ruling and is still a matter for the consideration of the District Court.

The judgment is reversed and the case remanded to the District Court for further proceedings consistent with the views expressed herein.


author: By CRAMER, J:

text:
    PUBLIC LOAN CORPORATION, Plaintiff, v. HOOD et, Defendants.
    Common Pleas Court, Butler County.
    No. 70883.
    Decided January 17, 1955.

      Robert H. Martin, Hamilton, for plaintiff.
    Lester W. Koehler, Hamilton, for defendant.
   OPINION

By CRAMER, J:

This cause was submitted to the court upon the pleadings, consisting of petition, answer, and reply, and upon the evidence. The court heard the same without the intervention of a jury.

In this action the plaintiff seeks to recover upon a promissory note upon which there is due the sum of $725.45, which note was executed by the defendants herein, — husband and wife — on November 29, 1952 in the principal sum of $660.00. The note sued upon represented an increase over a previous loan made by the defendants which increase amounted to approximately $100.00. As a matter of fact, this note was the fifth or the sixth made by the defendants to the plaintiff, all of which, with of course the exception of the first, were made as a result of loans which were increased over the previous indebtedness of the defendants to plaintiff.

The defendant Russell Hood filed his answer (his wife, the other defendant, .makes no defense to the petition) in which he admits the execution and delivery of the note, the subject of this action. He alleges — and the plaintiff admits — that he was, on the 4th day of August, 1953, discharged as a bankrupt in the United States District Court of the Southern District of Ohio and that plaintiff was listed as a creditor in such bankrupt proceedings, the debt being evidenced by the note sued upon in this case. This defendant further alleges, and this likewise is admitted by the plaintiff, that plaintiff’s claim was listed in the schedules of this defendant which were attached to his petition in bankruptcy, and that it had notice of the filing of said petition and that it did not file any objections to the defendant’s discharge in bankruptcy.

The plaintiff, by reply, sets up the claim that the defendant, in order to induce the plaintiff to make the loan, evidenced by the note in question, by written statement, which it relied upon, falsely misrepresented the amount of his indebtedness. It is further asserted by plaintiff that the defendant, in the financial statement, given fraudulently, failed to disclose that he had other indebtedness amounting to over $900.00. The written statement disclosed that the defendants owed but $41.00 over and above the sum then owed plaintiff by previous loan.

Thus, it is seen that it is the plaintiff’s claim that this defendant’s discharge in bankruptcy was ineffective to release him from the obligation sued upon because he had obtained from plaintiff “property by false pretenses or false representation.”

The evidence shows without question, in our opinion, that at the time this defendant executed the financial written statement to plaintiff he was indebted to two finance companies other than this plaintiff. It is likewise apparent from the evidence that the indebtedness of the defendant existing at the time he executed the aforesaid statement, exceeded by almost $900.00 the amount he represented as then owing to others.

We also find that the defendant was fully aware of the fact that he had these other obligations and further that neither he nor his wife disclosed the same to plaintiff’s manager or any of its other officers.

The first question of law which arises here is whether this court has jurisdiction to determine that this note was excepted from the operation of the discharge in bankruptcy where, the creditor (plaintiff) fails to file objections to the debtor’s discharge in the Bankruptcy Court.

We answer this question in the affirmative.

In the case of Ohio Finance Company v. Greathouse, 64 Abs., page 1, also found in 110 N. E. 2d, 805, it was held;

“A discharge in bankruptcy does not relieve a defendant from liability on his promissory note where the debt for which the note was given was created in reliance upon a materially false statement in writing made by defendant for the purpose of obtaining such credit from plaintiff, even though listed as a debt and notice given to plaintiff who made no objection to the discharge in the Bankruptcy Court.”

The court in the course of its opinion made the following statement:

“True it is that plaintiff could have come into the Bankruptcy Court and shown the fraudulent character of the indebteness upon defendant’s application for discharge. But since the Bankruptcy Act itself provides that an indebteness incurred by false pretenses and misrepresentations amounting to fraud is not dischargeable in bankruptcy, it was not incumbent upon plaintiff to take any steps in the Bankruptcy Court to defend against a discharge from a debt specifically excepted from discharge under the Act.”

See also Vol. 133, A. L. R., at page 460, wherein is found this statement:

“It has been held, in cases involving claims for goods sold on credit, that a state court in which an action is brought on such a claim, which defendant alleges was discharged in bankruptcy, has jurisdiction to determine whether such claim was excepted from the operation of a discharge in bankruptcy.”

Our next question is whether plaintiff has mis-conceived its remedy and by filing its action on contract instead of tort is precluded from pleading defendant’s tort by way of reply to his answer setting up his discharge in bankruptcy.

We answer this in the negative.

In the Greathouse case supra, the court well said that the plaintiff was not required to anticipate that the defendant would assert the defense of the discharge of a non-dischargeable debt; that having asserted such discharge, plaintiff need only deny the same in the reply. The court further stated that the defendant cannot decide for plaintiff the nature of his cause of action, nor can defendant change plaintiff’s cause of action by alleging matters defensive thereto.

. It should be kept in mind that bankruptcy does not extinguish the debt — it merely bars the remedy, and therefore the note here sued upon was not extinguished by the bankruptcy, is still in existence, and its collection enforceable if excepted from a discharge in bankruptcy. The Bankruptcy Act recognizes a debt created by the fraud of the bankrupt as a debt not discharged and not affected by the proceedings in bankruptcy.

In the case of Stewart v. Emerson, 52 N. H., 301, referred to in Vol. 133, A. L. R., at page 466, the court made the following observation:

“And when the plaintiff answers the plea of discharge by the replication of debt created by fraud, he does not attempt to rescind or invalidate or renounce the contract, but he affirms it, and claims that the debt is a valid, subsisting debt. In the declaration he asserts a debt. In the replication he asserts the same debt. He avers the fraud, not to avoid the contract himself, but to show that the defendant cannot avoid it; xxx not to show that there is no such debt, but to show that there is such a debt notwithstanding the discharge.”

The Bankruptcy Act (Section 17) provides, the following:

“A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowed in full or in part, except such as (2) are liabilities for obtaining money or property by false pretenses or false representations.”

It has been held that to defeat a bankrupt’s discharge on the ground that he obtained credit on materially false statements, it must be shown that he obtained money or property on credit; that he did so on his statement of his financial condition, relied on by the creditor, that the statement was in writing and materially false, and made to the creditor for the purpose of obtaining credit from him; and that the property was obtained by the bankrupt.

See In Re: Williams, 286 F., 135; also Annotation of Authorities collected in 133 A. L. R., commencing at page 440.

We experience little difficulty in finding that the plaintiff has sustained the burden of proving the allegations of his reply. We find that this defendant made a false statement in writing respecting his financial condition, and that the same was made to plaintiff in connection with the defendant’s application for a loan, and the same was false in the respects hereinbefore set out and defendant well knew of the falsity thereof.

The evidence relating to the issue as to whether plaintiff relied on defendants statement as to his financial status was as follows:

The defendants’ paying record with the plaintiff over a period of years was good; he and his wife were both employed and earning more than sufficient to discharge their obligations; that no previous default in his obligations to this plaintiff, accrued; that, to secure this as well as the previous loans, a chattel mortgage on the furniture of the defendant was given to plaintiff. In addition, only the sum of $100.00' was actually loaned by plaintiff at the time the financial statement was given to it, not the full amount of the note.

An officer of the plaintiff testified that the statement of the borrower respecting other indebtedness is always material and highly persuasive to the lender for it reflects importantly upon the borrower’s ability to re-pay, and that this new loan would not have been made to the defendant had his indebtedness to the other finance companies been disclosed.

We have concluded, however, that it is fair to gather from this evidence that the misrepresentations made by this defendant constituted a material inducement to plaintiff to make the new loan.

It has been said that it is not necessary to the predication of fraud that a misrepresentation be the sole cause or inducement of the contract or transaction in question and the only element relied upon by the representee contributing to the result so long as it does constitute a material inducement.

See Vol. 23, Am. Jur., Sec. 145, pages 946-7.

In the Annotation found in Vol. 104, A. L. R., at page 921, we find the following:

“In order to be actionable, it is not necessary that false representations contained in a financial statement constitute the sole inducing cause for making the loan or extending the credit in question so long as they were moving considerations relating to material matters.”

See also Dero v. Turner, 22 Atl., 2d., p. 173; State v. Howley, 16 S. E., 2d., p. 705; also Farra v. Churchill, 135 U. S., 609, wherein the Court said, speaking of the representation:

“It must be the very ground on which the transaction took place, although it is not necessary that it should have been the sole cause, if it were proximate, immediate and material.”

We therefore find that plaintiff has sustained the burden of proving all of the elements essential to constitute the making of materially false statements, barring discharge, including the element of reliance by plaintiff upon such statements.

This leaves the final question: Should plaintiff recover the full amount of the note or merely the sum of $100.00, which was the sum actually loaned to defendant at the time the false financial statement was given by him?

The defendant seems to be of the view that had the action been one in tort for fraud and deceit rather than upon a contract, plaintiff, if otherwise successful, would be entitled to recover but the sum of $100.00 as damages sustained. It is apparently likewise contended that plaintiff, by its reply has converted its action into one for tort rather than contract.

What has already been herein stated reveals our opinion as not in accord with this latter contention of the defendant.

It is further our view that even though this were an action ex delicto rather than ex contractu, it would by no means follow that plaintiff’s recovery would be restricted to the amount it advanced on the date of the execution of the note which replaced the previous one.

We believe that plaintiff is entitled to recover the full amount evidenced by the note sued upon here.

The defendant, by his false financial statement, obtained the satisfaction and surrender of his old note, that is, the note which was in existence prior to the time of execution of the note in question. Under these circumstances it certainly cannot be argued that the defendants did not obtain “property” by false representations within the meaning of the Bankruptcy Act.

He, by such representations, obtained the discharge and surrender of a valid note, which was evidence of his obligation to repay a substantial sum of money to plaintiff. To hold here that plaintiff is restricted to. recovering the sum of $100.00 would in effect declare that the note, the discharge and surrender of which the defendant so obtained, was not property and not of any value. Such a holding would be contrary to law.

See In Re: Weitzman, 11 Fed., 2d, 897, and cases therein cited.

The court finds upon the issues raised in this case in favor of the plaintiff and against the defendant Russell S. Hood and that plaintiff is entitled to recover the full amount of the note sued upon with interest as prayed for in its petition, together with its costs.

An entry may accordingly be prepared.


author: By THE COURT:

text:
    STATE, Plaintiff-Appellee, v. JESSOP, Defendant-Appellant.
    Ohio Appeals, Second District, Preble County.
    No. 128.
    Decided November 14, 1952.
    Julian E. Clark, Prosecuting Attorney, Eaton, Melvin G. Rueger, Cincinnati, for plaintiff-appellee.
    William F. Hopkins, Cincinnati, Waldo E. Young, Eaton, for defendant-appellant.
   OPINION

By THE COURT:

This is a law appeal from the judgment of the Common Pleas Court rendered upon the verdict of a jury, finding the defendant guilty of armed robbery on two counts. Two errors are assigned, to-wit:

(1) That the verdict is not sustained by the evidence and is contrary to law.

(2) That the Court erred in regard to the method of handling certain requests made by the jury concerning the testimony of several witnesses.

In considering the first assignment, we have carefully examined the entire record, including the various exhibits, and find there appears to be a conflict in the testimony as to the identity of the perpetrator of the crimes committed. The defendant offered substantial evidence which, if given credence, would tend to establish an alibi. On the other hand, the two victims positively identified the defendant as the one who committed the two offenses. Upon this state of the record we cannot say that the judgment is clearly and manifestly contrary to the evidence. Unless we can so find, we may not reverse on the weight of the evidence. Scaccuto v. State, 118 Oh St 397; State v. Johnson, 57 Abs 524.

As to the second error assigned, we are of the opinion that it also is not well taken. It appears that the method used by the Court in answering the questions submitted by the jury was that suggested by one of counsel for the defendant, namely, reading that part of a witness’ testimony which answered the questions propounded. The appellant cites §11420-6 GC and urges the Court should have instructed the reporter to read the entire testimony of each of the witnesses instead of only parts of the same. The method of handling such requests seems to be one of discretion resting with the trial court. In State v. Weil, 56 Abs 136, the 7th paragraph of the syllabus provides:

“There is no statutory requirement that testimony be read to a jury during its deliberation, nor is it mandatory that the trial judge state his recollection of the testimony.”

This case was affirmed in 153 Oh St 586.

We therefore are of the opinion that the Court did not err in the procedure adopted and even if it did, the same was waived by counsel for the defendant.

The judgment will be affirmed.

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


author: By BIRRELL, J.

text:
    ABRAHAM, et, IN THE MATTER OF ADJUDICATION OF CLAIMS.
    Common Pleas Court, Trumbull County.
    No. 61839.
    Decided July 16, 1953.

      C. William O’Neill, Attorney General, Hugh E. Kirkwood, Ass’t Att’y General, by Mr. Louis E. Evans, Ass’t Att’y General, Columbus, On behalf of the State.
    George D. Lewis, Warren, on behalf of Niles Lincoln Mercury.
   OPINION

By BIRRELL, J.

On the motion for new trial in this case only two matters were discussed in the argument; one of which was that the Verdict is not sustained by sufficient evidence, and the other that the Court erred in charging the Jury before the close of the case.

With reference to the charge to the Jury before the close of the case, the Court has, many times, explained its rulings to a Jury. On a particularly strenuous objection made by Counsel for the Claimant during the argument of the State’s Attorney in this case, the Court proceeded to explain to the Jury the reason for overruling the objection. The Court believes that such explanations aid the Jury in understanding the procedure, and since both the Judge and Jury join in the trial of the case, such mutual understanding promotes a better administration of justice. The mere fact that the general charge to the Jury briefly repeated the same ruling of law cannot constitute any prejudicial error. That the instruction was correct see:

Bellevue v. Stedman, 63 Oh Ap 150, 3 syl; Smith v. Erie R. R., 134 Oh St 135, 2 syl.

The ground on which claimant principally urged that a new trial should be granted is that the Verdict of the Jury is against the manifest weight of the evidence and is not sustained by sufficient evidence.

The Verdict determined the compensation as follows:

Value of land taken _________________________$1,800.00

Damage to the residue ______________________ 1,500.00

Rental for land used during construction ____________________________ 400.00 per month

A total of_________________________________$12,900.00

The lowest opinion of the various expert witnesses valued the land taken at _______________________________ $1,387.00

damage to residue at ________________________ 1,800.00

rental value at _____________________________ 462.00 per month

A total of__________________________________$14,275.00

The verdict, therefore, is for less than was the testimony of the lowest-expert-witness in respect to damage to the residue and to rental values.

Defendant cites various cases hereinafter referred to and especially the following:

Toledo Railway & Light Co. v. Mason, 81 Oh St 463; Zanesville Railroad Co. v. Bolen, 76 Oh St 376.

and claims that these cases require the Court to set aside an inadequate Verdict and grant a new trial. It has been held that where the Verdict is manifestly against the weight of the evidence as to the amount, a new trial should be granted. Ruman v. Smith, 48 Oh Ap 188 at 194; Merrell v. Matt, 42 Oh Ap 403; Brannon v. Bowers, 46 Abs 444. And where the amount of the general Verdict cannot be reconciled with the evidence, or where it is apparent that the Jury failed to include all of the items of damage, the judgment may be set aside as being manifestly against the weight of the evidence. Sherer v. Smith, 85 Oh Ap 317.

But this Court does not find that the Verdict of this Jury in this case was manifestly against the weight of the evidence nor that the Verdict was rendered under the influence of passion or prejudice and finds nothing in the evidence to support such á determination. In fact the Jury apparently considered all of the evidence in the case, accepted such as it determined was worthy of credit, and rejected other of the evidence as being unworthy of belief.

The greatest, and probably the most uncertain, item of evidence was that having to do with the rental value of the portion of property described under the so-called “work-agreement” which consisted of a portion of the Claimant’s lands to be used during the construction period. These lands included a small portion in the rear of Claimant’s garage and a small portion in the front of Claimant’s garage. The rear portion was temporarily occupied by a spur-track from the railroad. The portion in front of the garage was to be used for ingress and egress to and from the garage during the period of construction. The State’s attorneys suggest that the Jury may have felt, from all the evidence-presented in the case, that the opinion of the expert witnesses as to the rental value of this property was excessive and in their Verdict reduced this amount accordingly. Since the lands in front of the garage were being used solely by Claimant and his own customers, it would not be surprising that the Jury wondered why the State should be paying rent for such lands. There was evidence also that in the construction of the improvement, the portion of Plaintiff’s lands along the river in front of his garage was improved to such an extent that Plaintiff could make use, after the improvement, of lands which he had hot been able to use before. It is possible that the Jury, in weighing the opinions of the expert witnesses as to the amount of damage to the residue, felt that by reason of these benefits, the expert opinions were inflated and not entirely worthy of belief in this particular respect. That the Jury had a right to weigh and deduct the value of special benefits from damages to the residue, see:

Latz v. Cincinnati, 61 Oh St 272; Batterman v. Cleveland, 18 C. C. N. S. 446, 2 Syl; 15 O. Jur., 168 pp. 859-864.

Our Statute (§11576 GC) does not provide that inadequate damages are necessarily grounds for new trial. The Toledo Highways and Light Company v. Mason case, supra, determined only that “a new trial may be granted on the ground of the inadequacy of the damages found by the Jury when it appears, upon the facts proved, that the Jury must have omitted to take into consideration some of the elements of damage properly involved in Plaintiff’s claim.” This Court does not agree with Judge Lamneck’s Opinion in the case of State v. Bixler, 6 O. O. 182, that the Light Company v. Mason case, supra, holds that “the only remedy is a new trial,” where the verdict is less than the opinion evidence of the lowest witness. The Light Company v. Mason case merely affirms the right of the Court to grant a new trial under the Common law where the Verdict is not sustained by sufficient evidence. The real question to be determined in our case is whether the evidence is sufficient to sustain the Verdict, and this must be determined from all of the evidence in the case.

The proposition which is laid down by the Claimant in his argument is that the Jury could not return any Verdict at a figure below the testimony of the lowest expert witness. The Court has not been able to locate precedent on this particular subject. Practically all references to excessive or inadequate Verdicts refer to the “weight of the evidence” which must be assumed to include all of the evidence and not necessarily the evidence merely of one class of witnesses. This Court is inclined to believe that the Jury is not restricted to the evidence of a single class of witnesses in determining the weight of the evidence, but may consider all of the non-expert witnesses’ evidence in its weighing of the opinions of the experts.

On the other hand, from the standpoint of the lawyer who is presenting his evidence, the opinion of his real-estate experts is assumed to have taken into account all of the factors bearing upon both the value of the premises and also the damage to the residue. In practice this is found to be no hard and fast rule. Cross-examination of expert witnesses often discloses that they have not taken all the factors into account in the formation of their opinions. The-Jury is expected to hear and take notice of such discrepancies. The expert’s opinion constitutes the only evidence of value in the terms of money which has been presented to the Jury. Although they have been so instructed, Claimants argument implies that the Jury should not use their own powers of weighing and believing or disbelieving the evidence of the lowest or highest expert-witness. According to claimant these two witnesses, therefore, would be exempt from having their testimony compared with the evidence of facts and conditions which have been presented by ordinary witnesses. Where is the line of demarcation between weighing of ordinary witnesses’ testimony and that of so-called expert-witnesses’? Is the Jury bound in terms of money-value by the opinions only of witnesses who have testified in terms of money, “quaeri?”

The Claimant confidently asserts that the Jury have no other evidence of value in terms of money except that of the expert witnesses. This assertion is true.. Were the Jury an “assessing board” as this term is usually used, of course it would use its own judgment in determining values regardless of statements of expert-witnesses. The use of the term “appraising or assessing board” in appropriation cases is suggested by the case of Martin v. Columbus, 101 Oh St 1, 3 Syl, which reads as follows:

“The Jury acts merely as an appraising or assessing Board, determining the fair market value of the property from all the evidence submitted.”

This paragraph clearly does not indicate that the Jury may use its own judgment outside of, or beyond, the evidence. But neither the syllabus nor the opinion indicates that the Jury are restricted to evidence of money-value alone.

Claimant places great weight on the authority of the case of Railroad Company v. Bolen, supra, wherein it is held that the view of the premises is not evidence, and he claims that the Jury would never have restricted the amount of its verdict had it not applied the information gained by viewing the premises. Whether this suggestion is an implication that one or the other side failed to present complete evidence of the conditions which the Jury observed, the Court is not required to determine. Doubtless the Jury were much better able to understand the evidence after the viewing of the premises.

In considering this point and in examining his own conscience, the Court must admit that his own consideration of the evidence in this case may be somewhat colored by his knowledge of the premises to which the evidence relates. Had the Court not known the premises long before this case occurred, he might not be so certain that the Verdict is a proper and just Verdict. There can be no question that the “view of the premises” had its effect also upon the Jury. But the Statute authorizes a view of the premises. The Jury were properly instructed how such view should be considered. And there is no evidence that the instructions were not followed. Legally the suspicion that the Jury were improperly influenced by the “view of the premises” is entirely unfounded and unsupported.

What to do?

The Court believes that there is no legal basis for a new trial in this case, that the Jury rendered a just Verdict in accordance with the law and the evidence, and that if any mistakes were made by the Jury in undervaluing the evidence of the lowest expert-witness it was due to their clear understanding of the entire situation.

However, the Court feels that his own'consideration of values is influenced by his knowledge of the property itself, and that doubtless the consideration of the Jury itself was so influenced. Without such knowledge presumably both the Court and the Jury would have felt bound by the testimony of the witnesses regarding money-values. And although finding the values to be at a minimum, would have restricted that minimum to the limit of the opinion of the lowest expert-witness. This is entirely an equitable or moral consideration. But this moral (?) feeling on the part of the Court does not, of itself, entitle Claimant to a new trial. Be that as it may, this Court is inclined to the belief that their view and knowledge of the premises had a greater effect upon the minds of the Jurors in influencing the amount of the Verdict than it should have had, and that the Verdict should have reflected the money-value fixed by the lowest expert-witness. That the view had such an effect is the fault of the property itself, not of the Jury (in fact the Jury should be given credit for their understanding of the entire situation). That the Court believes the lowest money-value evidence should limit the minimum Verdict is merely unfortunate for the State in this case and it does not need to consent to the Court’s finding unless willing to do so.

This Court, therefore, determines that to remedy the situation, it will require the State to add to the amount of the Verdict sufficient money to pay the Claimant the amount testified to by its lowest expert-witness as being the compensation, damages, and rental occasioned by the appropriation of the property described. With this addition the Claimant will be unable to complain that the Jury “underbid” his rightful claim, or that it allowed the view of the premises to “over-ride” the evidence. The State will not have paid more than it expected to pay. And the Court will be satisfied that it has equitably solved a problem which legally it has side-stepped with the “quaeri” above mentioned.

That “additur” may be considered see the following cases:

Dernham v. Traction Co., 21 N. P. N. S. 418; Becher v. Allen, 3 Abs 545; 23 O. L. R. 405; Railway Express Co. v. Bender, 20 Oh Ap 436; Markata v. Gas Company, 154 Oh St 546, p. 553-9.

If, therefore, the State agrees to the rendition of judgment in favor of the Claimant for the following sums:

Value of land taken ________________________$ 1,800.00

Damage to residue ___________________________ 1,800.00

Rental @ $462.00 per mo. ____________________11,088.00

Total $14,688.00

the MOTION FOR NEW TRIAL WILL BE OVERRULED. OTHERWISE NEW TRIAL WILL BE GRANTED. Consent of the State must be filed within ten (10) days from filing of this Opinion.


author: By BARTLETT, J.

text:
    WOODARD, Plaintiff, v. WAGNER et, Defendants.
    Common Pleas Court, Franklin County.
    No. 190,758.
    Decided January 4, 1955.
    Jenkins, Williams, Wendt, Murray and Deeg, Columbus, for plaintiff. Schwenker, Teaford, Brothers and Solesberry, Columbus, for defendants.
   OPINION

By BARTLETT, J.

DEMURRER TO AMENDED PETITION SUSTAINED SINCE IT DOES NOT SHOW A CAUSE OF ACTION ON ITS FACE.

Amended petition recites the plaintiff leased in writing real estate from defendants as a family home for one year at a rental of $65.00 per month; and pursuant thereto entered into possession and paid said rent for one year in the sum of $780.00.

The amended petition refers to and incorporates as a part thereof the written option and lease between the parties, the pertinent part of which recites as follows:

“In consideration of the sum of $1,500.00 this day paid by Pauline H. Woodard, of Columbus, Ohio, hereinafter referred to as Lessee, to Robert L. Wagner and Doris Wagner, husband and wife, of Columbus, Ohio, hereinafter referred to as Lessors, the said Lessors hereby grant to said Lessee, the exclusive right and option to purchase the following described real estate for the total sum of $11,500.00 at any time within one year from and after June 20, 1953; in the event that this option is exercised by said Lessee, said $1,500.00 will be credited toward said purchase price by said Lessors, and the balance of said purchase price, namely, $10,000.00 may be paid by Lessee then assuming the then balance of a certain F. H. A. Mortgage on said property now owed by said Lessors and paying the difference between said $10,000.00 and said mortgage balance, in cash. If said option is not exercised by Lessee within said one year period, then said Lessors may retain said $1,500.00 as a forfeiture under said option. Said property being known as 1313 E. 20th Avenue, Columbus, Ohio (Lot 329 Waldemere Addition, Plat Book 10, Page 86).

“Pending the exercise of said Option by said Lessee during said option period, the parties mutually agree that Lessee and her family may occupy said premises from and after the 20th day of June, 1953, at a monthly rental of $65.00 each month; said rental shall be in addition to the said option payment or said purchase price; under no circumstances will said rental arrangement extend beyond June 20, 1954. Provided further, that in the event said option is exercised by Lessee at any time prior to the expiration of said one year period, then the rental arrangement herein provided shall terminate upon the delivery of deed from Lessors to Lessee; provided further however, that if said option is not exercised until after the first six months of said option period, then when the deed is delivered, Lessee will also pay an additional sum of $10.00 rent for each month that said rental arrangement continues after said first six months and up to the time of delivery of deed.”

The amended petition says plaintiff did not exercise the option to purchase; avers the provision for forfeiture of the $1500.00 is invalid and unenforceable, and prays judgment for said sum.

“Where property is leased with privilege of purchase and the lessee agrees to pay a certain sum on the purchase price at stated times during the lease, the consideration for such payments is the lessor’s agreement to sell at the price stipulated, and if the lessee decides not to exercise the option, the lessor is entitled to retain the payments so made.” Syllabus—Weinberg v. Simon, et al., 30 N. P. (N. S.) 257.

“Where, in a lease containing an option to purchase and a provision for monthly payments on the purchase price in addition to the rent, the terms specifically provide for a forfeiture of the lease and all the monthly payments made, upon a default in the payment of the rent or monthly payments; held, such a contract is not contrary to public policy, and in the absence of fraud or mistake, must be enforced.” Syllabus—Felss v. Schulkind, 30 N. P. (N. S.) 467.

“The lessor on the loss by the lessee of his right to exercise the option, may be entitled to retain payments made by the lessee which would otherwise have been applicable to the purchase price; and a lease containing an option to purchase and a provision for monthly payments on the purchase price in addition to the rent, and providing for a forfeiture of the lease, including the option, and all the monthly payments made, on a default in the payment of rent or the monthly payments, is not contrary to public policy.” 51 C. J. S. Landlord and Tenant, Sec. 86, p. 647.

“Where the parties express their intention without ambiguity, no room for judicial construction is left and no court may alter their agreement, although the bargain is hard or unwise.” 51 C. J. S. Landlord and Tenant, Sec. 81; options to purchase, e. Construction, p. 638; see, also, 13 O. Jur., Damages, Sec. 117, p. 208.

It is, therefore, the conclusion of this Court that the amended petition does not state a cause of action, and the demurrer thereto is sustained. Entry accordingly with exceptions by counsel for plaintiff.


author: By MILLER, PJ.

text:
    BROWN & BIGELOW, Plaintiff-Appellee, v. ROY, dba F. & M. TRUCK STOP, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5200.
    Decided February 15, 1955.

      Maugan & Vacca, Columbus, for plaintiff-appellee.
    Walter S. Barrett, Jr., Columbus, for defendant-appellant.
   OPINION

By MILLER, PJ.

This is a law appeal from the judgment of the Municipal Court rendered in favor of the plaintiff-appellee for the sum of $413.66 and interest and costs. The action was one on an account for goods and merchandise sold and delivered to the F. & M. Truck Stop, an alleged partnership consisting of Clarence F. Roy, the appellant, and H. Fay Lucas, who was not a party to the action.

The answer was a general denial. Upon request being made the court filed separate findings and conclusions of law and fact. Those pertinent to the issues presented are:

(1) The merchandise was “purchased by the partnership, and sold to it.”

(2) That the defendant-appellant “held himself out or permitted himself to be held out as a partner in the F. & M. Truck Stop,”

(3) That the defendant-appellant is estopped from denying such partnership; and

(4) That no notice or publication pertaining to termination or dissolution of said partnership was made by the defendant.

All of the errors assigned relate to the sufficiency of the evidence to sustain the judgment, the appellant urging that his motion to dismiss at the close of plaintiff’s case and again at the conclusion of all of the evidence, should have been sustained.

No direct proof of a partnership was offered, but the same was based upon the conduct of the appellant at the place of business; that a sum of money was advanced by the appellant which he testified was a loan to the other alleged partner and upon the further fact that a vendor’s license was secured from the State of Ohio in the name of “Henry F. Lucas and Clarence F. Roy, DBA F. & M. Truck Stop.” The application for this license was signed by both of the alleged partners and the license issued in response thereto was posted at the place of business of the alleged partnership. It is urged that the evidence does not disclose that the appellee had any knowledge of the information contained in the license and therefore there could have been no reliance placed on the statements it contained; that the doctrine of estoppel has no application. We concur with counsel for the appellant upon his factual conclusion and are of the opinion that his views as to the law would be correct were it not for the fact that our statutory law modifies the common law rule. Sec. 1775.15 R. C. provides:

“When a person, by words spoken or written or by conduct, represents himself, or consents to another representing him to any one, as a partner in an existing partnership or with one or more persons not actual partners, he is liable to any such person to whom such representation has been made, who has, on the faith of such representation, given credit to the actual or apparent partnership, and if he has made such representation or consented to its being made in a public manner he is liable to such person, whether the representation has or has not been made or communicated to such person so giving credit by or with the knowledge of the apparent partner making the representation or consenting to its being made.”

Clearly the defendant represented that he was a partner in the business when he signed the application for a vendor’s license and the posting of the license at the place of business was notice to the public of the nature of the business being conducted on the premises. The Court did not err in holding that the defendant was a partner.

The next question for consideration is whether or not there was a defect of parties since the appellant was the only party named as a defendant in the action. Partnership contracts are obligations of all of the partners. Simon v. Rudner, 43 Oh Ap 38. They are neither several nor joint and several, but joint only. Partners are engaged in a joint enterprise for a joint profit and are principals in every transaction. Wehrman v. McFarland, 6 O. N. P. 333. Parties united in interest must be joined as plaintiffs or defendants. Sec. 2307.20 R. C. In actions ex contractu at law all partners are necessary parties plaintiff or defendant. Choteau v. Raitt, 2 Ohio 132; 30 O. Jur. 1171. There was, therefore a misjoinder of parties which could have been taken advantage of by demurrer. Sec. 2309.08 R. C. This was not done and the right thereto was waived by the filing of an answer. Myers v. Croswell, 45 Oh St 543. A failure to demur waives every objection except those to the jurisdiction of the court and that facts sufficient to constitute a cause of action are not stated. Bartges v. O’Neil, 13 Oh St 72.

The appellee urges that the appellant is individually liable under §1775.15 R. C. and may be sued alone for a partnership debt. We do not think the statute goes this far because paragraph (1) of the cited section provides that when “a partnership liability results, he is liable as though he were an actual member of the partnership.” Since his liability is so restricted our conclusion is that there was a misjoinder of parties defendant, but that this defect was waived by the defendant.

It is urged also that the amount of the judgment is excessive and that interest was allowed from the date that the order was given, to wit, January 22, 1952, and not from the date of the last shipment of the merchandise. We think the appellant is correct in his conclusion as to the interest allowed and if the appellee will consent to a remittitur to this extent the judgment will be affirmed.

HORNBECK and WISEMAN, JJ, concur.


author: By DRAPER, J.

text:
    FRANCISCO, JR., Plaintiff, v. HOFFMAN, Defendant.
    Common Pleas Court, Franklin County.
    No. 188,075.
    Decided October 27, 1955.
    Knepper, White, Richards, Miller & Roberts, Columbus, for plaintiff.
    William C. Ailes, Columbus, for defendant.
   OPINION

By DRAPER, J.

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

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

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

Syl. 2. “The defendant does not have an absolute right to name the physicians or surgeons to make such examination, * * * the matter of selection being within the discretion of the trial court.”

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

“* * * and that .plaintiff be permitted to have present at such physical examination if she so desires, her counsel and her own physician.” Judgment of the Court of Common Pleas dismissing the case for failure to comply with the order was affirmed.

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

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

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

“The power of the trial court to designate a competent doctor to physically examine a plaintiff in a personal injury action is ever present, though it may be seldom exercised. Necessarily, too, the trial court possesses the included power of determining and fixing reasonable conditions under which the plaintiff shall be examined.

“One of the conditions to be established is whether or not plaintiff’s counsel may be present at the examination of the plaintiff.

“In the Trester case, supra, the Supreme Court approved and enforced the order of the trial court which directed the plaintiff to submit to a physical examination by a doctor chosen by the defendant. That order provided in part that ‘the plaintiff be permitted to have present at such physical examination if she so desires her counsel and her own physician.’

“Undoubtedly, the adversary status of the examining doctor as doctor for the defense, prompted the trial judge to permit plaintiff’s counsel and her doctor to be present at her examination by the defense doctor.

“Permission for plaintiff’s counsel to be present at a physical examination of the plaintiff, part of the approved order in the Trester case, is the general rule.”

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

17 Am. Jur., Discovery and Inspection, Section 71, page 52 holds: “The plaintiff’s own physician should be permitted to be present at the examination if the plaintiff makes timely application.”

At page 53:

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

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