author: Per CURIAM:

text:
    SEVEN HILLS (Village), A Municipal Corporation, Plaintiff-Appellee, v. CERNY et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24310.
    Decided February 27, 1958.
    John K. Jensen, for plaintiff-appellee.
    Edward I. Siegel, Siegel & Siegel, for defendants-appellants.
   OPINION

Per CURIAM:

Pursuant to an order of this Court, the trial of that phase of this case dealing with damages claimed to have been sustained by defendants-appellants from June, 1953 to July, 1955, as a result of the conduct and acts of plaintiff in respect to defendants’ property, was referred to the Court of Common Pleas, where trial was had before the court and jury, resulting in a verdict in favor of the plaintiff-appellee, Village of Seven Hills, upon which judgment was rendered by the court.

Motion for new trial by defendants-appellants having been made and overruled, this appeal comes to the Court now on a question of law

It is the claim of the defendant that the finding of the jury was contrary to the manifest weight of the evidence and contrary to law, that the verdict was given under the influence of passion and prejudice, and that the court erred in its instructions to the jury.

In reviewing the record, we find that there was testimony introduced in the trial of the damage suit in the Court of Common Pleas which was not brought before this Court. The record shows clearly that there were disputed questions of fact which were resolved by the jury in favor of plaintiff-appellee. Therefore, we cannot say that the verdict of the jury was contrary to the manifest weight of the evidence. Neither do we find any basis in the record for the claim that the jury’s verdict was influenced by passion and prejudice. The claim of error in the charge of the court to the jury is one of omission. The defendants-appellants cannot complain of this because the omission was not called to the attention of the court, and under the doctrine of Rhodes v. Cleveland, 157 Oh St 107, the failure to call the attention of the court to such omission will not justify a reversal.

For the foregoing reasons, the judgment of the Court of Common Pleas is affirmed.

Exceptions noted.

SKEEL, PJ, HURD and KOVACHY, JJ, concur.


source: Caselaw Access Project

author: By STEVENS, PJ.

license: Public Domain

text:
    BEDARD, Appellee, v. PROTETCH, d. b. a. OHIO NORTHERN TRUCK LINES, Appellee, WHEELING AND LAKE ERIE RAILWAY CO., Appellant. BEDARD, Appellee, v. PROTETCH, d. b. a. OHIO NORTHERN TRUCK LINES, Appellant, WHEELING AND LAKE ERIE RAILWAY CO., Appellee.
    Ohio Appeals, Ninth District, Summit County.
    Nos. 4555, 4556.
    Decided October 12, 1955.

      Brouse, McDowqll, May, Bierce & Wortman, for appellee Catherine Bedard.
    Buckingham, Doolittle & Burroughs, for appellee and appellant Jacob Protetch, d. b. a., etc.
    Wise, Roetzel, Maxon, Kelly & Andress, for appellant and appellee The Wheeling and Lake Erie Railway Co.
   OPINION

By STEVENS, PJ.

Plaintiff filed her petition against defendants, seeking $30,000 damages for injury to a wooden frame mill building and its contents, located southwest of the grade crossing of the defendant Railway Co. and U. S. route 224 in Suffield Township, Portage County, Ohio.

In the.petition it was alleged that on December 30, 1951, defendant Protetch operated a tractor and trailer, loaded with steel, westerly on U. S. route 224 across the railroad tracks of defendant Railway Co., between the rails of which there were holes from 5 to 6 inches deep; that said vehicle, passing over said grade crossing at a speed of about 60 miles per hour, struck one of said holes and was thereby caused to leave the highway and collide with and set fire to the building of plaintiff.

Negligence of Protetch was charged as follows:

1. In passing over the crossing at a high and dangerous speed of about 60 miles per hour, and at such speed as to endanger the property of plaintiff.

2. Failure to exercise ordinary care to observe the condition of such grade crossing.

3. Failure to exercise ordinary care to control the movement of the vehicle, so as to keep it on the highway and avoid colliding with plaintiff’s building.

Defendant The Wheeling & Lake Erie Ry. Co. was alleged to be negligent, as follows:

1. In failing to exercise ordinary care to keep and maintain its railroad crossing in repair, and reasonably safe and sufficient at the point of its intersection with U. S. highway route 224.

2. In failing to maintain a good and sufficient crossing at the point of the intersection of its tracks with U. S. Route 224, well knowing the holes between the rails of its tracks in said crossing would be unsafe and dangerous to traffic in approaching and passing over the said crossing, and would endanger the property of the plaintiff herein.

An amendment of this latter specification was permitted during trial, so that, as amended, it read “between, adjacent and next to” the rails, etc.

Defendant Protetch answered, admitting: that there were deep holes over said railway crossing: that he operated the tractor and trailer in question over said crossing on U. S. Route 224; and that the driver of said truck, in passing over said crossing, was caused to lose control of said tractor and trailer and to collide with a building located adjacent to U. S. route 224, and damaging thereby said building, machinery and equipment located therein, but not to the extent claimed by plaintiff.

Said defendant then denied generally the allegations of the petition not admitted.

Defendant The Wheeling & Lake Erie Ry. Co., for answer,' admitted: its corporate existence; that it maintained a grade crossing at right angles to U. S. route 224 west of Suffield in Portage County, Ohio; that on December 30, 1951, a tractor and trailer collided with a building located in close proximity to and southwest of the intersection of the tracks of defendant Railway Co. with said highway; and that said building was damaged by said collision, but not to the extent alleged in the petition.

The defendant Railway Co. then alleged that the collision between said vehicle and said building was directly caused by the negligence of the driver of said vehicle, in failing to exercise ordinary care to control, the movement of said vehicle and to keep same on the -highway, and in failing to avoid colliding with said building.

Further, said defendant denied generally the allegations of the petition not admitted.

The action upon trial to a jury resulted in a verdict and judgment against both defendants for $19,000 and costs.

Motions for judgment notwithstanding the verdict and for a new trial were filed by each defendant, and all were overruled by the trial court.

Appeal on questions of law by each defendant duly followed, the separate appeals being presented and heard together.

The assignments of error of both appellants may be grouped as follows:

1. Error in failing to sustain the motions for a directed verdict made at the close of all the evidence.

2. Error in the admission and rejection of evidence.

3. Error in the general charge of the court.

4. Error in overruling the motions of defendants for judgment non obstante veredicto.

5. That the judgment is not sustained by the evidence and is contrary to law.

6. Excessiveness of the verdict, and that the verdict was the result of passion and prejudice.

We have carefully read and considered the contents of the somewhat voluminous bill of exceptions in this case, and we are unanimously of the opinion that the evidence, at its conclusion, was such as required the trial court to submit the issues to the jury.

It is our conclusion that no prejudicial error intervened in overruling the defendants’ motions for a directed verdict.

Under the second assignment of error, it is the claim of appellants that the court erred in permitting the plaintiff to testify, over objection, that the value of the building in question, on the day before the occurrence of which complaint was made, was $28,000, and $10,000 immediately after the fire; and also in overruling the respective motions of defendants to withdraw said testimony from the consideration of the jury.

It will be recalled that plaintiff was the owner of the building alleged to be damaged. She was not asked whether she had an opinion as to the fair and reasonable market value of the premises before and after the fire, but was asked to state the value thereof before and after the occurrence in question.

It is asserted by appellants that they “have been unable to find a report of any case in Ohio in which a plaintiff has been permitted to testify as to the value of real property solely because of ownership of the same.”

We have encountered the same difficulty as counsel, in finding an Ohio case directly in point on the question presented. However, in the absence of such authority, we adopt the rule stated in 20 Am. Jur., Evidence, Sec. 892, as follows:

“It is generally recognized that the opinion testimony of the owner of property, because of his relationship as owner, is competent and admissible on the question of the value of such property, regardless of his knowledge of property values. It is not necessary to show that he was acquainted with the market value of such property or that he is an expert on values. He is deemed qualified by reason of his relationship as owner to give estimates of the value of what he owns. The weight of such testimony is, of course, affected by his knowledge of the value.”

The above section, by its wording, appears to apply to real, as well as personal, property.

Ill Wigmore on Evidence (Third Ed.), Sec 714, states (at p. 45):

“The owner of land is deemed to be qualified to speak as to. its value for the same reason as is the owner of personalty.”

See also: McCaffery v. Northern Pacific Ry. Co., 134 N. W. 749, wherein an interesting and illuminating statement on this subject appears.

We hold that it was not prejudicial error for the trial court to admit the testimony of plaintiff owner, as to the value of the building immediately before and the value immediately after the fire; the weight to be given to that testimony was a matter for determination by the jury.

It is further asserted that the trial court committed error in admiting the cross-examination of defendant Railway Co.’s witness, Wigglesworth, who purchased the land, building and contents from plaintiff, after the fire, for $10,000.

The evidence shows that, after its purchase by him, Wigglesworth expended about $3,200 in repairs to the building. He did not claim that said amount was the extent of the damage, or that he ever attempted to place the building in the same condition in which it had been prior to the fire. He was qualified, as an experienced engineer and builder, and upon cross-examination stated as his opinion that to fully restore the building to its former condition might run as high as $18,000.

We think that the evidence of Wigglesworth, elicited upon cross-examination, was not only properly admitted, but was highly persuasive upon the question of damages.

We find no prejudicial error in that connection.

It is next urged that the court erred in its general charge to the jury when it stated:

“If you find by a preponderance of the evidence that both defendants were jointly and concurrently negligent in one or more of the particulars claimed, your next inquiry will be, has the plaintiff proven by a prepondérance of the evidence that the joint and concurrent negligence of each defendant was a proximate or contributing cause of said occurrence and of any resulting damage to the plaintiff.”

It is asserted that the failure of the court to include the word’ “directly” before “contributing cause” made the charge prejudicially erroneous.

It will be observed that the error, if such it be, was one of omission and not of commission.

A rending of the entire charge given, impels the conclusion that no prejudicial error intervened. The charge was a comprehensive and intelligent instruction to the jury concerning the issues, as to which counsel for appellant requested no modification or correction when given the opportunity to make such request. See: City of Piqua v. Morris, et al., 98 Oh St 42, paragraph 1 of the syllabus.

From what has been said concerning the first three assignments of error, it must be apparent that this court is of the opinion that the motions for judgment notwithstanding the verdict were properly overruled; and further, the claim that the judgment is not sustained by the evidence and is contrary to law, is not substantiated by the record.

As to the claim that the verdict, was excessive, and was the result of passion and prejudice, we find in the record competent evidence from which the jury could conclude that the damages were in the amount found; and the amount of plaintiff’s damages was a question' to be determined by the jury under appropriate instructions.

We find nothing in this record which even suggests the existence of passion or prejudice on the part of the jury.

The judgment will be affirmed.

HUNSICKER and DOYLE. JJ, concur.


author: By PETREE, PJ.

text:
    MYERS CONTRACTING CORPORATION, Appellant, v. BOWERS, Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5761.
    Decided January 28, 1958.
    Robert Dow Hamilton, Columbus, for appellant.
    William Saxbe, Atty. Geni., S. Noel Melvin, Asst. Atty. Geni-, Columbus, for appellee.
   OPINION

By PETREE, PJ.

This cause is on for hearing in this court upon a motion in diminution filed by the appellant for an order requiring the Tax Commissioner to amend the record of proceeding by adding to said record the testimony of one O. H. Foster, taken before the Tax Commissioner on February 19, 1957. The appellant requests that the Tax Commissioner be required to certify forthwith the record of testimony to this court.

The appellant claims that the case was originally heard by the Tax Commissioner and that at this hearing, one O. H. Foster gave certain testimony to the effect that the work performed by the appellant constituted “processing” within the meaning of the Sales Tax Law. The appellant claims, further, that because of the inconvenience in bringing said Foster before the Board of Tax Appeals, he requested that said Board render its decision based upon the record which the Tax Commissioner is required by law to certify to the Board of Tax Appeals. Appellant also claims that by error and omission the Tax Commissioner did not certify to the Board of Tax Appeals the evidence and testimony of O. H. Foster.

Appellant’s contentions require a consideration of §5717.02 R. C. The first sentence in the third paragraph of said section contains the following language:

“Upon the filing of such notice of appeal the commissioner shall certify to the board a transcript of the record of such proceedings before him, together with all evidence considered by him in connection therewith.”

We find no difficulty in reaching the conclusion that there is a plain statutory duty devolving upon the Tax Commissioner to certify to the Board of Tax Appeals all evidence considered by him in connection with the transcript of the record. Bloch v. Glander, 151 Oh St 381.

The case now before us is not a case where any duty was placed upon the attorney or the appellant to exercise discretion as to what would be certified to the Board of Tax Appeals. There is no showing that the attorney or appellant in any way induced the Tax Commissioner or the Board to delete the evidence of O. H. Foster, nor that they waived in any other manner their rights to have a proper record certified.

It is not clear from the record when appellant or its counsel first discovered the omission of the Foster testimony. However, since • this motion is made in a case which is now pending upon an appeal on law and fact to this court and before judgment in this court, and since we find such motion is timely made and should be sustained, the Tax Commissioner will be required to certify the record of the testimony of O. H. Foster to this court.

This procedure is justified by the majority decision in Clark v. State, 119 Oh St 162, where the Supreme Court ordered the Common Pleas Court to correct the record without any further action on behalf of the intermediate Court of Appeals. In that case, Clark had been charged with second-degree murder and found guilty of manslaughter. The only error which would prevent an affirmance in the Supreme Court was that the record showed that the trial court had instructed the jury with the following language:

“If they cannot so say, a reasonable doubt exists, and it would be your duty to convict the defendant * *

When the record was remanded to the Common Pleas Court, it was found that the word acquit instead of the word convict had been used in the charge. The trial court so certified. That having been done, no error remained; and the Supreme Court concluded that there would be no point in remanding the case back to the Court of Appeals since, obviously, no error was left upon which either the Court of Appeals or the Supreme Court would be authorized to reverse the conviction:

However, the case before us is not quite so simple as the Clark case, supra, as to procedure. We have no way of knowing what weight the Board of Tax Appeals would have given to the testimony of O. H. Foster had- it been given an opportunity to consider that testimony. Therefore, upon certification to this court of the evidence of said Foster, an entry may be drawn remanding the case back to the Board of Tax Appeals for its consideration of the entire record of the Tax Commissioner, including the evidence of O. H. Foster and any other evidence which said Eoard may deem proper upon such reconsideration, as provided ior in §5717.02 R. C., the last sentence of which reads as follows-:

“The board may order the appeal to be heard upon the record and, the evidence certified to it by the commissioner, but upon the application of any interested party the board shall order the hearing of additional evidence, and it may make such investigation concerning the appeal as it deems proper.”

No useful purpose can be served by the court considering the six errors complained of by the appellant in its notice of appeal filed August 16, 1957. until such time as the Board of Tax Appeals has reconsidered the appeal of the appellant as outlined in the previous paragraph. Therefore, the entire case will be remanded to the Board of Tax Appeals for further proceedings as outlined in this opinion.

Motion sustained.

BRYANT and MILLER, JJ, concur.


author: By PETREE, PJ. By BRYANT. J.

text:
    MYERS CONTRACTING CORPORATION, Appellant, v. BOWERS, Tax Commr., Appellee. MYERS CONTRACTING CORPORATION, Appellant, v. BOWERS, Tax Commr., Appellee.

      Ohio Appeals, Tenth District, Franklin County.
    No. 5761.
    Decided March 11, 1958.
    Robert Dow Hamilton, Columbus, for appellant.
    William Saxbe, Atty. Geni., S. Noel Melvin, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By PETREE, PJ.

This cause is on for hearing on motion of appellant, Ralph Myers Contracting Corporation, for an order setting aside the entry approved on February 10, 1958, by this court remanding this cause to the Board of Tax Appeals.

Appellant filed a motion on December 2, 1957, in diminution of the record, which motion was sustained by an opinion rendered on January 28 1958; and entry pursuant to said opinion was entered February 10, 1958.

This court ’ has, therefore, granted the appellant the remedy it sought, and now it cannot defeat the ends of justice by blowing hot and cold in the same breath. Further reasons for this decision may be found Dy referring to the opinion heretofore rendered in this case on January 28, 1958.

The motion to set aside the entry of February 10, 1958, will be overruled, and those to whom orders were directed in said entry will govern themselves accordingly.

Motion overruled.

BRYANT and MILLER, JJ, concur.

OPINION

By BRYANT. J.

This matter comes on for consideration upon a motion to reduce the appeal on questions of law and fact to an appeal on questions of law only. Said motion to reduce was filed January 22, 1958. While the said motion to reduce was pending, this court in an opinion rendered on January 28, 1958 by Petree, PJ, concurred in by Miller, J, and the writer of this opinion, held that the testimony of one witness before the Tax Commissioner, Stanley J. Bowers, apparently by inadvertence, was not certified to the Board of Tax Appeals nor apparently considered by said Board and said decision of this court directed that “the entire case will be remanded to the Board of Tax Appeals for further proceedings as outlined in this opinion.”

The parties, by their counsel, submitted separate entries and the entry submitted by counsel for appellee was approved and entered upon the journal of the court on February 10, 1958. Said entry provides in part as follows:

“IT IS, THEREFORE. ORDERED, ADJUDGED, AND DECREED that the motion be, and the same hereby is, sustained, that Stanley J. Bowers, Tax Commissioner of Ohio, is ordered to certify to this Court the testimony of said O. H. Foster, and that upon such certification this cause be remanded to the Board of Tax Appeals for its consideration of the entire record before the Tax Commissioner including the evidence of O. H. Foster and any other evidence which said Board may deem proper upon such reconsideration pursuant to this judgment and as provided in $5717.02, supra R. C.”

In other words, when the order just above quoted is complied with, the case will no longer be in this court and it will become the duty of the Board of Tax Appeals to give further consideration to said case in accordance with the direction of the said entry.

The motion to reduce, which as we have pointed out was filed January 22, 1958, therefore, has become moot and no useful purpose will be served by considering it. Said motion will, therefore, be overruled.

PETREE, PJ, MILLER, J, concur.


author: By PHILLIPS, J.

text:
    MALONE, Plaintiff-Appellee, v. WHITE, a. k. a. MALONE, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3889.
    Decided April 4, 1957.
    Ralph R. Miller, Youngstown, for plaintiff-appellee.
    John H. Davidson, Jr., Youngstown, for defendant-appellant.
   OPINION

By PHILLIPS, J.

Defendant married Charlie White in Virginia on December 24, 1919. Charlie White is living and defendant has not been divorced from him.

On June 29, 1941, defendant was a party to a marriage solemnized at Baltimore between her and plaintiff. This marriage on February 8-, 1956; was dissolved by the Court of Common Pleas, Division of Domestic Relations, in Mahoning County on the ground that defendant had a living husband.

In July 1947 plaintiff purchased real estate in Mahoning County, title to which he placed in defendant’s name because she said to him “ ‘I’m your wife. You don’t have anything in my name. 1 think you should put this in my name.’ That’s why it was in there.”

Learning on January 25, 1955, that defendant was the wife of Charlie White, which she denied, plaintiff sued defendant in the court of common pleas praying:—

“* * * the court to find and order that said Maggie D. White, also known as Maggie D. Malone, holds said property upon a constructive trust for the sole and exclusive- benefit of this plaintiff, and to order said defendant to execute said trust and transfer, turn over and deliver to this plaintiff said property and to do such things as are necessary to enable plaintiff to receive the benefits rightfully his in said property and for an order granting this plaintiff such other and further relief as the court deems just and equitable in the premises.”

The trial judge ordered defendant, Maggie D. Malone, to hold the real estate in controversy “upon a constructive trust for the sole and exclusive benefit of the plaintiff, Samuel L. Malone, and the said defendant is hereby ordered and directed to transfer and deliver the said property to the plaintiff by proper instrument of conveyance; and upon failure of the defendant so to do within thirty days from the filing of this entry, the Clerk of this Court is hereby authorized and directed to file with the Auditor and Recorder of Mahoning County for transfer and record a copy of the order of the- court herein in lieu of said conveyance.”

Upon subsequent hearing the trial judge ordered a deed “executed and deposited with the clerk of court to abide the judgment of the appellate court, instead of a supersedeas bond.”

Defendant appealed to this court on questions of law and fact from the judgment of the trial court, and the appeal was submitted to us upon a transcript of the record made in the trial court.

In this case, in which the facts speak so loudly and plainly, we shall a-ssign no lengthy reasons for our finding, which is the same as that-made in the court of common pleas.

It is clear to us that plaintiff purchased the disputed property as an investment; that title thereto was placed in defendant because of her misrepresentation as to -her marital status and not as a gift to her and in good faith, and not to place it beyond the reach of his creditors as charged.

While the matter of a mandatory injunction to require defendant to transfer the disputed property to plaintiff was raised in the Court of Common Pleas, Division of Domestic Relations, it was withdrawn from the consideration of that court without being litigated because defendant was not present in the divorce hearing and available for cross-examination, and because the action for mandatory injunction and the action for divorce were not properly joined; and because counsel believed that court could not make a distribution of property-because the marriage between the parties was void because of defendant’s living husband.

The action we review is an action in equity for the impressing of a trust on property obtained by fraud.

The trial judge in his opinion said:—

“In the case of Taylor v. Monroe, 158 Oh St 266, 273, the court, said: ‘In an action upon a different cause of action from that involved in a prior action between the same parties, the judgment in such prior action will- operate as an adjudication between the parties only as to the points or questions actually litigated and determined or which must necessarily have, been determined in order to support that judgment; and not as to other matters which might have been litigated and determined.’ See 23 O. Jur., ‘Judgments,’ pg. 981, Section 749.”.

The action we review was in no sense a readjudication of the action for divorce filed in the Court of Common Pleas, Division of Domestic Eelations, as urged, and we so hold.

Finding and decree for the plaintiff as in the court of common pleas, and for the same reasons.

NICHOLS, PJ, GRIFFITH, J, concur.


author: By BRYANT, J.

text:
    STATE, Plaintiff-Appellee, v. BARHORST, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5815.
    Decided May 13, 1958.
    Russell Leach, City Atty., Bernard T. Chupka, City Pros., Joseph M. Clifford. Asst. City Pros., Columbus, for plaintiff-appellee.
    Helen A. Witherspoon, Columbus, for defendant-appellant.
   OPINION

By BRYANT, J.

Philipp H. Barhorst, defendant-appellant herein, was tried and found guilty of practicing optometry without a license contrary to §4725:92 fit. C. The Judge of Columbus Municipal Court before whom the case was heard after Barhorst’s conviction, imposed a fine of $200 and costs. Barhorst has appealed on questions of law.

The affidavit in part charges that “* * * Phillipp H, Barharst on or about the 5 day of June, A. D. 1957, at the City of City of Columbus, County of Franklin, and State of Ohio, did unlawfully engage in the practice of optometry; or held himself out as a practitioner of optometry without having a license lawfully issued by the State Board of Optometry contrary to statute, etc.”

We note in passing that the rule against pleading in the alternative was not observed in this case and that the affidavit actually charges two violations in the alternative. The better practice is to use two affidavits or separately state and number two offenses in a single affidavit, in cases where it is necessary or proper to charge two offenses. However, our attention has not been called to a specific objection on this ground and it would appear that such objection is waived.

The prosecution appears to have proceeded on the theory that at least they had charged Barhorst with engaging in the practice of optometry without a license.

It was admitted by all concerned that Barhorst fully qualified under the law as first enacted in 1919 and that xxp until the year 1932 he was at all times in good standing. The prosecution claimed and attempted to prove that events occurring in 1932 and 1933 resulted in an irrevocable loss of license by Barhorst and that thereafter he could do nothing whatsoever to get himself in good standing!

Barhorst on the other hand took sharp issue with the claims of the prosecution. Failure to pay the annual renewal fee, originally $2 per year, later raised to $5 per year and still later to $10 a year, is the only transgression charged against Barhorst.

It was the prosecution’s theory that this amount was due and payable on January 1 of each year including 1932, that Barhorst had not paid it on April 25, 1932, on which date it apparently was the claim of the prosecution that some sort of notice was sent to Barhorst informing him for the first time of his delinquency and, without further ceremony, informing him his license was revoked and giving him sixty days in which to apply for and obtain a restoration of his license. A review of the applicable statutes is necessary.

In the first place. Section 10 of the original act (108 Ohio Laws, Part I, P. 73 at P. 77) provided that failure to pay a renewal registration fee might be made the grounds for revoking a certificate, but forbade such revocation until the giving of a sixty day notice. This section provided in part as follows:

"In case of neglect to pay the renewal registration fee herein specified, the board may revoke such certificate and the holder thereof may be re-instated by complying with the conditions specified in this act. But no certificate or permit shall be revoked without giving sixty days’ notice to the delinquent, who, within such period shall have the right of renewal of stich certificate on payment of the renewal fee with a penalty of five dollars provided that retirement from practice for a period not exceeding five years shall not deprive the holder of said certificate of the right to renew his certificate on the payment of all lapsed fees.”

This section was amended in 110 Ohio Laws, P. 20, but the language above quoted was unchanged and remained so until 1949. Hence, it was that the exhibit offered by the prosecution, being an unsigned carbon copy of a letter purportedly signed by the then secretary of the Board of Optometry to Barhorst, informing him that his license was revoked and giving him sixty days in which to take steps to reinstate it or be forever barred from the practice of optometry, violated the law as then in force. Sec. 1295-24 GC, being the fourth section of the original act and as amended in 110 Ohio Laws, P. 20, contained this language:

“* * * provided, however, that it shall require the concurrence of a majority of the members of the Board to grant or to revoke a license.” Inasmuch as the Board was composed of five members, the section' above referred to required at least three members present to constitute a quorum and further required the vote of at least three members to revoke a license. There is no showing anywhere either that the Board met and considered the matter or that a quorum was present or that three members voted to revoke Barhorst’s license. This, of course, is a fatal defect in the record.

Furthermore, §1295-31 GC, originally enacted in 1919, amended in 1923 and again in 112 Ohio Laws 227, made a specific provision that in case any charges of any sort were preferred against the holder of a certificate that the defendant should be furnished with a copy of the complaint and have a hearing before the Board with legal counsel present, if desired, and the right to confront and cross-examine witnesses against him and produce witnesses on his own behalf. Said §1295-31 GC, provides in part as follows:

“Any person who is the holder of a certificate of licensure * * * against whom is preferred any charges, shall be furnished by the board with a copy of the complaint and shall have a hearing before the board, at which hearing he may be represented by counsel. At such hearing witnesses may be examined for and against the accused respecting the said charges, which examination shall be conducted in the manner usually followed in the taking of testimony before commissions in this state.”

Furthermore, section seven of the original act, being §1295-27 GC, remained in the form in which originally enacted until 1949.

That same provision in almost identical language remains in the law today and is found in §4725.07 R. C. Hence, it is that there was a complete failure of evidence to show there was a notice and a sixty day waiting period given to Barhorst or that thereafter proceedings were begun against him before the Board with a quorum present, a copy furnished him, a hearing conducted and a finding of guilty and a revocation by the Board. On the contrary, for all that appears in the record to inform us as to what took place, there was no notice, no waiting period, no charge preferred or a hearing had, or evidence received or a determination of guilt, but simply a notice that his .certificate of licensure was revoked. • But that is not all.

Barhorst claims he attempted to pay each annual renewal fee as it was due that the' Board of Optometry failed and still fails to comply with the law by maintaining an office in Columbus, where the permanent records of the Board are open during business hours for public inspection, and that he only gave up tendering payments after tracking down the secretary in various cities in Ohio and having his money returned to him accompanied by a statement that it was too late, that his license was revoked and that nothing could be done about it.

We have examined the Bill of Exceptions in this case with care. The state’s case is based principally on the testimony, of one Arthur H. Cole. In the transcript of the original papers from the Municipal Court there appears a letter signed by A. H. Cole, who adds the word, “Inspector,” after his signature, while the printed letterhead at the top is as follows:

“State Board of Optometry Arthur H. Cole
Exec. Secy. — Inspector 12839 Lorain Ave.
Cleveland 11, Ohio”

Mr. Cole’s testimony is to the effect that he resides in Bay Village, Ohio, that he is Executive Secretary Inspector of State Board of Optometry and that he has in his custody all of the records of the said Board.

. In view of the printed letterhead above referred to indicating that the office of the Board and of Mr. Cole is located at 12839 Lorain Ave., Cleveland 11, Ohio. The testimony by Mr. Cole (Bill of Exceptions, Page 4. Questions 3 and 4) is pertinent:

“Q3. Mr. Cole, what is your occupation? A. I’m Executive Secretary Inspector for the Ohio State Board of Optometry.”
“Q4. And in your capacity, do you have access to and custody of records pertaining to optometrists? A. Yes, sir. I have in my custody and have charge of all of the records relating to the licensing and renewal of licenses in the State of Ohio.” (Emphasis added.)

Upon cross-examination of Mr. Cole, he appears to have had great difficulty in answering the question as to where the office of the Board of Optometry is located. At one point he said there were several offices— one in Columbus, apparently a private establishment maintained under the name of a Dr. Welch, another in Marietta, where the secretary resides, and that of Mr. Cole, whose office is in Cleveland. Prom a consideration of the entire testimony, it would appear that the so-called Columbus office bears no mark or identification that it is the office of the Ohio Optometry Board. Upon being pressed further as to how anyone could- locate “such an office,” Cole gave this illuminating reply (Bill of Exceptions, P. 17):

“Q80. Would you state that anyone attempting to contact such an office could readily do so? A. May I answer that in my own way? I don’t know how else to answer it. The only two places that 1 know it could be directly contacted through are the Attorney General’s office and the Secretary of State’s. office which has been understood to be sufficient. The question has been raised on numerous occasions. We understand that we are on correct legal ground on that basis. Now, that’s all I can answer.” (Emphasis added.)

It is quite understandable that the question “has been raised on numerous occasions” and it would appear that the laws have been disregarded. The original act creating this Board provided in clear and unmistakable terms that its office should be in the City of Columbus. Section 10 of said act, which became §1295-30 GC, provided in part as follows:

“The board shall * * * have an office at Columbus in this state. * * * where all its permanent records shall be kept, which records shall be open to public inspection.”

The language above quoted is followed by a specific grant of authority to the Board of Optometry “to make requisition upon the proper state officials for office rooms and supplies, including stationery and furniture.”

This was no accident on the part of the General Assembly for it was simply carrying out a constitutional mandate when it required that the office of this public agency be located at the seat of State Government in Columbus. Article XV, Section 1, Ohio Constitution, provides:

“Columbus shall be the seat of government until otherwise directed by law.”

Similar provisions are made with respect to every one of the state departments included in the Executive Branch of Government. See §121.15 R. C., providing in part as follows:

“Each department shall maintain a central office in Columbus. * * *”

The state officials to whom the Board was directed to make application to obtain its office space in Columbus was the Department of Public Works.

Referring to the provisions of §123.02 R. C., we find the following power granted to assign office space:

“The department of public works shall have the supervision and control of the statehouse and heating plant therein, the fixing and placing of all departments and offices of the state therein, and full control and supervision of fixing and placing all departments and offices in offices, buildings, and rooms outside of the statehouse when they cannot be placed therein, * * (Emphasis added.)

It would seem eminently clear that the Board not only was empowered but was directed to apply for and obtain headquarters in Columbus either in the State House or in offices, building or rooms outside the State House selected and provided by the Department of Public Works and that failure to do so, coupled with a complete disregard of the law by locating the office elsewhere, amounts to the violation of vital and mandatory provisions of the very law which brought the State Board of Optometry into existence.

From 1920 to the present time, the optometry law has without exception contained the specific and mandatory requirement as to a Columbus office. At this time, it may be found in §4725.07 R. C., which -provides in part as follows:

“The state board of optometry shall * * * have an office at Columbus, * * * where all permanent records shall be kept. The board may make requisition upon the proper state officials for office rooms and supplies
“The records of the board shall be open to public inspection at all reasonable times. * *

Barhorst claims that in 1932 and thereafter he was unable to find the Columbus or other office to which he should pay his fees. Some support is given to his testimony by at least one State’s exhibit. Plaintiff’s Exhibit No. 2 — -an envelope and a letter, apparently was mailed by Barhorst in 1933, and addressed to the State Board of Optometry, Clark Sloqn, Secretary, 405 Schofield Building, Cleveland, Ohio. Someone, perhaps in Cleveland, crossed out Sloan’s name and the balance of tjie Cleveland address thereon and wrote in Dr. W. J. Briggs, Secretary, Shelby, Ohio. The letter enclosed in this envelope makes reference to a money order for $5 for the annual renewal fee. The said letter was dated August 6, 1933 (Bill of Exceptions, P. 9, Q. 33), and appears to have elicited a reply two months and five days thereafter according to plaintiff's Exhibit No. 3, which is apparently an unsigned office copy of a letter written by the same W. J. Briggs, Secretary, to Barhorst in Columbus.

Briggs’ so-called letter stated that the money order was returned to Barhorst for the reason that “the revocation of your license to practice optometry became finally effective on June 25, 1932.” (Bill of Exceptions. Plaintiff’s Exhibit No. 3.) This was said to be due to Barhorst’s failure to comply with §1295-30 GC as then in effect. (See 108 Ohio Laws, Part 1, P 73, at P. 77, H. B. No. 240, Sec. 10, as amended in 110 Ohio Laws, P. 20.)

We shall not repeat the comments heretofore made as to the provisions and content of said former §1295-30 -GC, except to say that many changes were made in 1949 (See 123 Ohio Laws, P. 164), and that the law in effect today, as found in §4725.10 JR. C., is much different from that in force prior to 1949.

For example, the section last named today provides that the failure to pay the annual renewal registration fee in advance prior to March 1, each year, “shall ipso facto work a forfeiture of his license,” with provisions for a thirty day written notice prior to said date.

Even so. in view of the present day form and requirements of §4725.04 R. C., final sentence, as to Board action, it is possible some Board action would be required. The said final sentence reads as follows:

“Concurrence of a majority of the members of the board is required to grant or to revoke a license.”

But in 1932 there was no such “ipso facto” provision in the law, which further points up the failure to observe the law in 1932.

But it was the law as in effect in 1932, not today, to which we must look in determining Barhorst’s claim. One section we must consider is §1295-24 GC (as amended 110 Ohio Laws, P. 20), and in effect in 1932 which provided in part as follows:

“A majority of the board shall constitute a quorum, * * * provided, however, that it shall require the concurrence of a majority of the members of the board to grant or to revoke a license.” (Emphasis added.)

The Board of Optometry at the time of its creation was composed of five members (§1295-23 GC), and today it is composed of five members (§4725.03 R. C.). Bence, it' has always required the presence of not less than three members of the Board at any meeting to transact any business at all. It is also quite clear that no action of the said Board may be taken at all except at a regular meeting with a quorum present and that three or more votes are required to grant or revoke a license.

The record is completely silent and fails utterly to disclose whether or not the Board ever had a meeting at which the case of Barhorst was considered, and if it did have such a meeting, whether or not the required quorum of three duly appointed and qualified members were present, and if so, whether or not three or more voted to revoke Barhorst’s certificate of licensure. The record is further absolutely silent with reference to any notice whatever required to be given to Barhorst followed by a sixty day period in which he would be permitted to pay the fee or whether he was served with written charges and given a legal hearing. On the contrary, it appears that first notice given to Barhorst was that his certificate was revoked with apparent information being given to him the following year that he had lost his license and that there was no way whatever for him to reinstate it.

It appears to us that this violates the clear mandatory provisions of the statutes in force at the time. In 1932 Barhorst had been engaged in the practice of optometry with the sanction and approval of the State oí Ohio for approximately twelve years. It was- not claimed then or now that he broke any law or regulation or that he failed in any particular except that he did not pay the $5 renewal fee on the prescribed date.

As this was a criminal case, the presumption of innocence was in the case. Barhorst claims he made repeated efforts to locate the oft moving board. He further says he repeatedly tried to pay the required fee. It was a legal requirement that an office be maintained at the seat of Government by this Board where all of its records be kept open for public inspection at ali reasonable times, and that clear requirement is not met by having such office located in Cleveland. Shelby, Marietta or any of the other cities or villages in the State of Ohio.

Barhorst testified that when he could not locate the said Board in Columbus in 1932, he hired an attorney to try to locate them, and It would appear that Barhorst exerted diligent efforts to locate it. It also appears that the Board itself neglected to observe the law to the manifest prejudice of Barhorst.

The first assignment of error made by defendant-appellant was that the judgment and verdict were against the weight of the evidence. We are of the opinion that this assignment of error is well taken for the reason that, in our opinion, there was a failure to show by the necessary quantum of evidence that Barhorst’s. certificate ever was revoked in compliance with statute.

The second assignment of error, that the verdict was contrary to law, and the fourth assignment of error, that the State failed to prove beyond a reasonable doubt that Barhorst practiced optometry without a valid license, likewise must be sustained for the reasons above set forth.

This leaves the third assignment of error that the State failed to prove that Barhorst was engaged in the practice of optometry. When the testimony of the entire Bill of Exceptions is viewed together, it would appear that the inspector appeared to be bent and determined to bring about a violation of law. This situation is somewhat eased in light of our holding that Barhorst’s certificate had not in fact been revoked arid was in full force and effect.

■ Barhorst at no time asked for or received any money for his services nor was there any agreement to pay any sum whatsoever. Barhorst stated he did not like the appearance of the inspector and had no intention of fitting him with glasses and in fact sent him away at the time of his first visit. In view of our holding with reference to Barhorst’s right to practice optometry, there will be no useful purpose served by further discussion of this assignment of error.

For the reasons above set forth the judgment of conviction and the sentence of the court below are reversed, vacated and set aside and the cause remanded to the court below for further proceedings in accordance with law.

PETREE, PJ, MILLER, J, concur.


text:
    NATIONAL MATTRESS COMPANY, Plaintiff-Appellant, v. YOUNGSTOWN (City), Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3896.
    Decided March 28, 1957.

      Jack W. Nybell, Youngstown, for plaintiff-appellant.
    Carlyle & Carlyle, Yofingstown, for defendant-appellee.
   OPINION

By PHILLIPS, J.

The trial judge overruled defendant’s motion for a directed verdict, at the close of plaintiff’s evidence, offered in its action in the court ■of common pleas to recover damages from defendant, a municipal corporation, for property damaged, caused by a flooded basement, due allegedly to the negligence of the defendant, and the defendant, not desiring to proceed further, the case was submitted to the jury which returned a verdict for the plaintiff.

Subsequently the trial judge sustained defendant’s motion for and entered judgment in its favor notwithstanding the verdict of the jury, but did not rule upon its motion for a new trial. ■ ■

Plaintiff appealed to this court on questions of law in appeal numbered 3870 on the docket of this court from the judgment of the trial court entered for defendant notwithstanding the verdict of the jury returned for plaintiff.

Defendant’s motion to dismiss the appeal filed in appeal 3870 was sustained by agreement of counsel on September 26, 1956.

On November 1, 1956, the trial court then made the following entry:—

“The court coming now to the motion for new trial filed in this case, after full, and due consideration sustains the same, with exceptions noted on the ground that the verdict and judgment for the plaintiff is not sustained by sufficient evidence and is contrary to law; said new trial shall be had only in event of a reversal of the judgment rendered on the motion n. o. v.
“This court bows to the mandate of the Court of Appeals filed 10/13/56, altho the constitutionality of the statute was not raised or passed upon by the Supreme Court in 160 Oh St 60.”

By assignments of error plaintiff contends:—

“1. Said court erred in sustaining the motion of the appellee for judgment in its favor notwithstanding the verdict of the jury returned in favor of the appellant.
“2. Said court erred in sustaining the motion of the appellee for judgment in its favor contrary to the law and the evidence.
“3. Other errors apparent on the face of. the record which are prejudicial to the rights of appellant.
“4. Said court erred in sustaining the motion of the appellee for a new trial, and in making the sustaining of the motion for new trial contingent upon the motion for judgment n. o. v. being reversed by the court of appeals.”

By leave of court plaintiff’s briefs filed in appeal 3870 were withdrawn and filed in appeal 3896.

In its notice of appeal filed in appeal 3896 plaintiff states:—

“Plaintiff hereby gives notice of appeal to the court of appeals from the judgment rendered by the court of common pleas in the above entitled cause on the 1st day of November, 1956. Said appeal is on questions of law.”

Plaintiff mattress manufacturing plant, for the operation of which plaintiff purchased water from defendant city, was situated about 600 feet from the place where a break occurred in defendant’s water lines causing water to overflow into plaintiff’s basement allegedly damaging its property.

Plaintiff bases its right to recover damages from defendant upon the claim that at the time of the infliction of such damage defendant municipal corporation was engaged in the performance of a proprietary and not governmental function, which defendant city admits, and upon the alleged undisputed evidence that the defendant was negligent in not turning the water off for a period of between an hour and one-half and two hours, after the arrival of the Water Department employees at the scene of the break, and in failing to notify plaintiff of such break in the water mains so as to enable it to salvage materials in the basement. and such alleged negligence was the proximate cause of the damage.

The case went to the jury in the court of common pleas on the following specifications of negligence numbered respectively three, five and six:—

“3. In piling the heavy burden of dirt, rock, stone and debfis on said line, and in laying it at a depth of fourteen feet, thus putting on added strain on the pipe line.
*‘5. In failing to promptly shut the water off when notified on February 25, 1855, of said broken line.
‘6. in failing to notify this defendant of the dangerous and hazardous condition created by the escape of this water in order to give this plaintiff an opportunity to safeguard his property from damage.”

Specifications of negligence numbers one, two and four were withdrawn from the consideration of the jury.

Defendant generally denied each and every fact stated, averment made and allegation set forth in plaintiff’s petition.

The evidence discloses that many of the 350 or 400 miles of defendant city’s water lines are situated beneath the surface of paved streets, and while most of such lines are laid four and one-half to six feet below the surface of the street the twelve inch line which bursted, and which was laid that distance below the surface in 1911, was at the time it bursted 12 to fourteen feet below the surface at the point it bursted because the street at that point had been raised six to eight feet to meet the level of a bridge constructed across the Mahoning River near that place subsequent to the laying of such line, as were the facts in the case of Interstate Sash & Door Co., v. City of Cleveland, 148 Oh St 325, cited by counsel.

Upon automatic notification by chart in the City Building that such line had bursted the Superintendent of Construction of the Division of Water of defendant city notified the twelve member emergency crew and within fifteen minutes thereafter the Chief Engineer, the Superintendent of Construction, three other employees, six line repairmen, and the emergency crew of the Division of Water of defendant city were closing the ten valves controlling the bursted water line, which valves were situated within a radius of six blocks, and some of the valves were mechanically operated and others required as many as 250 turns to close

Inspection of the removed bursted cast iron pipe, the life of which the Chief Engineer of defendant city testified on cross-examination was known to be as long as 100 years, revealed no defect that could have been discovered by inspection by uncovering such lines and visually inspecting them, which following the procedure of other municipalities was never done.

There is no evidence that plaintiff neither employed nor had on duty a night watchman the night the line bursted, nor that any employee of defendant city knew any of plaintiff’s officers, nor employees, to notify them: nor what they, nor plaintiff, could have done to salvage plaintiff’s property had they been notified; nor that the defendant had more reason to anticipate bursting of its water lines than did the plaintiff.

On authority of Interstate Sash & Door Co., v. City of Cleveland, supra, Taphorn v. Cincinnati, 98 Oh Ap 454, and Republic Light & Furniture Co. v. City of Cincinnati, 97 Oh Ap 532, we believe the trial judge .correctly withdrew from the consideration of the jury specifications of negligence 1/ 2 and 4 of plaintiff’s petition, which read:—

“1. In failing to keep said water line in proper repair after the defendant 'knew, or in the exercise of ordinary care should have known of its weakened condition.
“2. In .failing to inspect said water line, which inspection would have disclosed- the weak condition of said water line which had been in the ground- approximately forty years.
“4. In failing to investigate and to inspect and repair said water line when notified that a break existed therein.”

We believe the- trial judge properly submitted plaintiff’s case to the jury on specific allegations of negligence 3, 5 and 6.

We cannot concur in plaintiff’s claim that it proved by the uncontradicted evidence that:—

“2. The defendant was negligent in not turning the water off for a period of between an hour and one-half and two hours, after : the arrival of the Water Department employees at the scene of the break.
“3. The defendant was negligent in failing to notify plaintiff of such break in the water main, so as to enable it to salvage materials in the basement;
“4. Such evidence was the proximate cause of the damage.”

Answering specifically plaintiff’s claim that such evidence was the proximate cause of the damage we adopt counsel for defendant’s statement by brief that:—

“Evidence is never a proximate cause, it is the factual circumstances raised-by the evidence that give rise to the causal relationship from which proximate cause is either found or not found.”

In the case we review plaintiff’s claim could be based only upon defendant’s negligence, in which event the doctrine of qualified nuisance as .distinguished from absolute nuisance controlled.

In Taylor v. City of Cincinnati, 143 Oh St 426, it is said in the third paragraph of the syllabus:—

“3. As distinguished from absolute nuisance, a qualified nuisance or nuisance dependent upon negligence consists of anything lawfully but so:negligently or carelessly done or permitted as to create a potential and unreasonable risk of harm, which, in due course, results in injury to another.”

It is said in the syllabus in the case of Taphorn v. City of Cincinnati, supra, that:—

“1. A municipality, in operating a waterworks system, engages in a proprietary function, is charged with the duty of exercising ordinary care, and is liable for negligence in the operation of such waterworks system.
“2. In an action against a municipality for damages resulting from alleged-negligent operation of its waterworks system, the burden of proof rests on the plaintiff.
■ “3‘. In such an action, the burden of proof is not met where the evidence discloses that a city water main burst, resulting in the flooding of the basement of plaintiff’s place of business and ensuing damage to equipment, that a part of such water main was removed and replaced, that the city had no record of inspections ever having been made of the installation which burst, and where there is no technical or expert testimony as to the life of a cast iron water main such as burst and no evidence as to any standard or method of inspection of waterworks systems in modern use by ordinarily prudent cities in the operation of such systems, and former floodings of plaintiff’s basement are in no way traceable to the city’s water main.”

In the case of Republic Light & Furniture Co. v. City of Cincinnati, supra, at page 542, the court said:—

“Nor can we bring ourselves to hold that there is a duty upon the city to employ such extraordinary methods of securing entrance to the securely locked and unattended premises of plaintiff where no method of gaining access to the premises was indicated thereon. There is no evidence that the city could have had more reason to anticipate a léak than had the plaintiff.”

The parties are respectfully referred to the syllabi of Republic Light & Furniture Co. v. City of Cincinnati, supra.

In the second syllabus of Krupar v. Procter & Gamble Co., 160 Oh St 489, it is stated:—

“In a negligence action if the cause of an injury to a plaintiff may be as reasonably attributed to an act for which the defendant is not liable as to one for which he is liable, the plaintiff has not sustained the burden of showing that his injury is a proximate result of the negligence of the defendant.”

In Landon v. Lee Motors, Inc., 161 Oh St 82, it is stated in the 6th paragraph of the syllabus:— ‘

“In order to recover against a defendant in a tort action, plaintiff must produce evidence which furnishes a reasonable basis for sustaining his claim. If his evidence furnishes a basis for only a guess, among different possibilities, as to any essential issue in the case, he fails to sustain the burden as to such issue.” •’

We find no merit in plaintiff’s assigned ground of error number four that “such evidence is the proximate cause of the damage.”

Appellant’s counsel has failed to call our attention to “other errors apparent, on the face of the record which are prejudicial to the rights of appellant,” as alleged as a ground of error, or to comply in respect thereto with the provisions of Rule VII of this court that his briefs “shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Accordingly we will not pass upon this assigned ground of error.

Obviously having found no error in any of the assigned grounds of error upon which we pass the judgment of the court of common pleas must be and is affirmed.

NICHOLS, PJ, concurs.

GRIFFITH, J, concurs in judgment.


author: By HORNBECK, PJ.:

text:
    LATHAM, In re.
    Ohio Appeals, Second District, Madison County.
    No. 248.
    Decided March 10, 1958.
    Raymond Rockey Latham, petitioner, London Prison Farm.
    William Saxbe, Atty. Geni., William ,M. Vance, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

By HORNBECK, PJ.:

Petitioner is an inmate of the London Prison Farm upon transfer from the Lima State Hospital where he had been held upon a mittimus from the Common Pleas Court of Franklin County, Ohio, upon his sentence on a plea of guilty to two counts of an indictment against him for sodomy.

Petitioner in his own behalf presents an extended brief much of which is devoted to a general thesis on “human behavior” and the proper method by which society should treat those who depart from normal conduct, especially in the field of sexual deviation.

The trial judge acting pursuant to the authority and direction of 82947.25 R. C., and as a part of the procedure therein outlined determined that petitioner was psychotic which is tantamount to a finding that he is a mentally deficient offender. This finding supported the commitment to the Lima State Hospital.

An examination of the entry by which petitioner was committed to the State Hospital discloses that the trial judge in his finding held differently than the Superintendent of the Lima State Hospital who reported that petitioner was not “psychotic, mentally defective nor psychopathic,” and suggested that “whatever disposition was made of his case, some plan for treatment should be considered.” The entry journalizing the finding of the trial judge discloses that he acted on the evidence which implies that he considered other facts than appeared in the Report of the Superintendent of the Lima State Hospital.

Unless the legislation under which the trial judge acted is unconstitutional and afforded no basis for the action taken, the only remedy available to the petitioner, if he were dissatisfied with the ruling of the trial judge, would have been to have prosecuted an appeal from that decision. This was not done. In re Burson, 152 Oh St 383.

We are not ready nor do we find any sufficient reason to hold that the statute here involved is unconstitutional. It may be that it is not as humane as would be desirable and that it is not abreast of the best thought in the field here involved. However, it clearly comes within the legislative domain and invested the trial judge with authority to commit petitioner, as he was committed, and after his incarceration at the Lima State Hospital, his transfer was validly made.

If the legislation here questioned were not in the Code, there would be left the plea of petitioner of guilty to an offense which is and always has been subject to punishment in Ohio. No doubt, there are extenuating circumstances incident to the sentence of petitioner, but these facts afford this court no authority to grant the extraordinary writ of habeas corpus wherein the one question presented is the jurisdiction of the committing judge to enter the sentence upon which petitioner is held.

The writ will be denied.

WISEMAN and CRAWFORD, JJ. concur.


author: By THE COURT.

text:
    SPEER, Plaintiff-Appellee, v. SPEER, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5260.
    Decided April 6, 1955.
    Messrs Key, Butler & Harrison, Columbus, for plaintiff-appellee.
    Donald S. McNamara, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

Submitted on motion of the plaintiff-appellee seeking an order dismissing the appeal on questions of law and fact for the reason that this Court has no jurisdiction to entertain such an appeal.

The record reveals that the action is one of forcible entry and detainer. which is not a chancery case, and therefore is appealable on questions of law only. See Kennedy v. Cardi, 52 Abs 193.

The motion will be sustained, but the case will be retained for determination on questions of iaw. The appellant will be granted leave to perfect such appeal in accordance with Supplement to Rule VII of this Court.

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


text:
    STATE, ex rel. DALEY, Petitioner, Plaintiff, v. MYERS, Supt., Defendant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5921.
    Decided May 6, 1958.

      . W. S. Lyman, Sr., Columbus, for plaintiff.
    Russell Leach, City Atty., Bernard T. Chupka, City Pros., Columbus, for defendant.
   OPINION

By PETREE, PJ.

This is an original action in which petitioner, Edward J. Daley, applied for a writ of habeas corpus seeking release from the City of Columbus, Ohio, Workhouse.

His application was filed on March 26, 1958, and the defendant was given until April 24, 1958, to make return and show by what authority he was holding said Edward J. Daley. Reference may be had to the application itself for the claims of the petitioner. They are, in substance, that the affidavit fails to charge an offense under the Habitual Criminal Act, §753.07 R. C., and fails specifically to allege any offense whatsoever; that said affidavit is so vague and uncertain in every particular that he could not understand what offense, if any, he was charged with. He further avers that §753.07 R. C-, is unconstitutional in that it fails to differentiate between offenses involving moral turpitude, and is both vague and indefinite and, further, that the judgment entry and commitment to the City of Columbus Workhouse is illegal, invalid and uncertain and fails to comply with the statutory laws of Ohio and to show any violation of any laws; and, finally, he avers that neither affidavit of [or] judgment entry of commitment fails to show any conviction for a fourth offense as defined by §753.07 R. C. Whereupon he says that he is illegálly imprisoned and restrained of his liberty in' violation of his constitutional rights.

The defendant produced the petitioner, Edward. J. Daley, in court along with the transcript and mittimus, which was admitted into evidence' as relator’s Exhibit 3. This was offered in evidence by W. S. Lyman, Sr., attorney for the petitioner.

Likewise, Exhibit 2 was offered, which was a transcript of the record of the conviction and sentence in said case, which was No. 23459, by the Clerk of the Municipal Court of Columbus, Ohio, authenticated by J. A. McHale, Deputy.

Exhibit 1 was the original affidavit offered by counsel for petitioner and reads as follows:

“AFFIDAVIT
“THE STATE OF OHIO, ) The Municipal Court
Franklin County, )ss. of the City of
City of Columbus ) Columbus.
“Paul Jordan being first duly cautioned and sworn, deposeth and saith that one Edward Daley on or about the 4th day of February A. D. 1956, at the City of Columbus, County of Franklin, and State of Ohio, did in the Municipal Court of the City of Columbus, Ohio, the said Edward Daley was convicted of the crime of Intoxication, Sec. 29.20-1 Columbus City Code, and this same date sentenced and imprisoned in the Columbus Workhouse for 30 days and fined $50.00 and costs. Case No. 4161.
“Again, on the 18th day of June, 1956, in the Municipal Court of the City of Columbus, Ohio, the said Edward Daley was convicted of the crime of Intoxication, Sec. 29.20-1 Columbus City Code, and this same date sentenced and imprisoned in the Columbus Workhouse for 30 days and fined $50.00 and costs. Case No. 22618.
Again on the 27th day of July, 1956, in the Municipal Court of the City of Columbus, Ohio, the said Edward Daley was convicted of the crime of Intoxication, Sec. 29.20-1 Columbus City Code, and this same date sentenced and imprisoned in the Columbus Workhouse for 15 days and fined $10.00 and costs. Case No. 26454.
Again on the 10th day of October, 1957, the said Edward Daley was found in a state of intoxication at 1206 East Main Street, rear, at 4:45 P. M. this being in violation of section 29.20-1 CC contrary to statute in such cases made and provided and against the peace and dignity of the state of Ohio, further deponent says not.
“Sworn to and subscribed before me, this)
14 day of Oct. A. D. 1957 )
“P. W. Spence, )
Clerk of the Municipal ) /s/ Paul Jordan
Court of the City of )
Columbus. )
“By /s/ O. R. Lash Deputy”

The transcript and mittimus referred to as Exhibit 3 above contains a copy of the body of the affidavit together with the following language:

“Therefore, in the name of the City of Columbus, you are hereby commanded to receive the said Edward Daley in your custody, in the workhouse of the city aforesaid, there to remain for the term of Two Years days and until a fine of Fifty Dollars, and also Eight Dollars for the costs therein taxed are paid, or secured to be paid, or unless otherwise discharged by due course of law, and for which this shall be your warrant.
•T hereby certify that the foregoing contains a full transcript of the record of said case in said Court.
“Given under my hand and seal of said Court this 14 day of Oct. A. D., 1957.”

This mittimus was certified by P. W. Spence, by P. Bryant, Deputy.

There was no objection on behalf of the defendant to the admission of these three exhibits and defendant, through counsel, denied that he was unlawfully or illegally detaining petitioner, Edward J. Daley, and was granted the privilege of filing a written denial subsequent to the hearing, which written return was filed with the court on April 28, 1958.

The return also indicates by an entry attached that the same petitioner had filed an application for a writ of habeas corpus but was denied same in Case No. 200,891 in the Common Pleas Court. However, it is not necessary for this court to take notice of that decision or whether it is the same set of facts, for it has been held in Ex parte Briggs, 86 Oh Ap 215, at Page 217, that “ ‘The refusal of a court to issue a writ of habeas corpus is not a bar to the consideration of another application in another court, nor is the decision of a court or officer upon a habeas corpus proceeding, refusing to discharge a prisoner, a bar to the issuing, by another court or judge, of another writ, based upon the same facts.* ” Cited in support thereof is In re Luetzler v. Perry, Sheriff, 18 C. C., 826.

There is sufficient shown in the exhibits, which include the affidavit, transcript and mittimus hereinbefore referred to, to make it apparent that the affidavit in this case was not defective and that the sentence of the court was duly authorized in the particular case under statute 8753.87 R C. We cannot agree with counsel for the petitioner that said section of the Code is unconstitutional on the ground which he claims, that it fails to differentiate between offenses involving moral turpitude.

Sec. 753.07 R. C., does not, in the wisdom of the Legislature, make it necessary that offenses should involve moral turpitude in order to authorize an imprisonment of from one to three years as an habitual offender, for one who 'has been three times convicted, sentenced and imprisoned in any workhouse for violation of law or ordinance.

The affidavit in this case sets forth that on February 4, 1956, the petitioner was sentenced and imprisoned in the Columbus Workhouse for thirty days and received a fine and costs; and that again, on June 18, 1956, he was sentenced and imprisoned in the Columbus Workhouse for thirty days and received a fine and costs; and again, on July 27, of the same year, he was sentenced and imprisoned for fifteen days and in addition thereto was given a fine and costs; and that again, on October 10, 1957, the affidavit alleges that said Edward J. Daley was found in a state of intoxication at 1206 East Main Street, this being in violation of Section 29.20-1 CC. This is alleged to be contrary to the statutes in such cases made and provided. He was found guilty of this fourth offense.

It is apparent that this affidavit sets forth three previous convictions, sentences, and imprisonments and also .that it sets out a fourth charge which is punishable, upon conviction, by imprisonment. We hold, unrciore ihai die affidavit was not vague and sets forth an offense as contemplated by §753.07 R. C. The writ of habeas corpus will be denied.

Writ, denied.

ER Y ANT and MILLER, JJ, concur.


author: By MILLER, J.

text:
    STATE, ex rel. FULTON FOUNDRY & MACHINE COMPANY, INC., Relator, v. INDUSTRIAL COMMISSION, Respondent.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5767.
    Decided December 6, 1957.
    Simmons. Metzner, McNelly, Torbet & Vilas, Richard McNelly, R. D. Metzner, of Counsel, Cleveland, Harold C. Meier, Columbus, for relator-
    William Saxbe, Atty. Geni., John R. Barrett, Brown W. Pettit, Asst. Attys. Geni., Columbus, for respondent.
   OPINION

By MILLER, J.

This is an original action in mandamus wherein the relator is seeking to have an order of the respondent, the Industrial Commission of Ohio, vacated and set aside, which found that one John Malaczewski had contracted the occupational disease of silicosis within the course of and arising out of his employment with the relator. Since there may be no appeal from this order it is conceded by all counsel that mandamus is the proper remedy and that the order may be vacated and set aside if there has been an abuse of discretion or failure to comply with the law. Lyons v. Industrial Commission, 42 Oh Ap 132; Industrial Commission v. Monroe, 111 Oh St 812.

The record reveals that on or about the 17th day of March, 1955, and for several years prior thereto, John Malaczewski was an employee of the Fulton Foundry & Machine Company, Inc., Cleveland, Ohio. On said date the employee stopped work and on the 6th day of April, 1955, he filed his claim with the Industrial Commission for compensation on account of silicosis, an óceupationál disease. The relator denied the existence of silicosis and the Industrial Commission referred the claim to a Board of Silicosis Referees consisting of three licensed physicians as required by §4123.68 (W) R. C. The relator urges that the Board of Silicosis Referees requested the claimant to appear before them for an examination but that he refused. This statement is not supported by the record, but the same does reveal that on December T9, 1955 he stated in an affidavit in support of his claim that he was not able to travel to Columbus for a physical examination, it appearing that he was now living in Michigan some 300 miles distant. The medical referees therefore ordered various X-rays be submitted for their examination all of which orders were fully complied with and as a result of their examinations they were of the opinion that the claimant had no silicosis in the lungs and that his disability was not of occupational origin. The administrator of the Commission acting on said report of findings and other evidence before him, on November 23, 1956, ordered that the claim be disallowed for the reason that proof on file failed to establish that the claimant suffered from silicosis or any other occupational disease. From this decision the claimant appealed and his appeal was heard on January 15, 1957, by the Toledo Regional Board of Review. At this hearing the Board had before it the record which had been before the administrator and also additional evidence was produced but no additional medical examinations were made. The new evidence presented consisted of a report of a Toledo physician which stated that “the impression is silicosis, causing total and permanent disability.” The Board of Review reversed the finding of the administrator and granted an award retroactive to March 18, 1955. The relator appealed from this ruling to the the Industrial Commission and the same was denied without further hearing, thereby making the order of the Board of Review a final order of the Commission.

It is urged by the relator that there had been a failure to comply with §§4123.10, 4123.68 (W) and 4123.53 R. C., and that therefore the granting of the award was illegal and contrary to law.

The pertinent parts of the cited sections of the Revised Code read as follows:

“Sec. 4123.10 it. C. * * * No compensation shall be paid to any claimant on account of any occupational diseases, the existence of which is denied, unless a medical advisor appointed by the commission has examined such claimant for the purpose of determining the existence of such disease and the approximate time, place and cause of its inception.”
“Sec. 4123.68 (W) R. C. * * * Before awarding compensation for disability or death due to silicosis, the commission shall refer the claim to the silicosis referees for examination and recommendation with regard to the diagnosis, the extent of disability, and other medical questions connected with the claim. An employee shall submit to such examinations, including clinical and x-ray examinations, as the commission requires. * * * In the event that an employee refuses to submit to examinations, including clinical and x-ray examinations, after notice from the commission, * * * then all rights for compensation are forfeited.”
“Any employee claiming the right to receive compensation may be required by the industrial commission to submit himself for medical examination at any time, and from time to time, at a place reasonably convenient for such employee, and as may be provided by the rules of the commission. * * * If such employee refuses to submit to any such examination or obstructs the same, his right to have his claim for compensation considered, if his claim is pending before the commission, or to receive any payment for compensation theretofore granted, shall be suspended during the period of such refusal or obstruction.”

The relator urges that the claimant was never examined by the Board of Silicosis Referees nor by any medical advisor appointed by the Commission as required by §4123.10 R. C. A careful examination of this section reveals that a medical advisor shall examine the claimant in order to determine the existence of an occupational disease. This mandate, we think, was met when the silicosis referees examined the X-rays and other evidence in the files. The statute requires that they be “licensed physicians in good professional standing” and their qualifications have not been questioned. They may be considered as medical advisors under the cited section. The results of their examinations are in the record and were before the Board when the claim came on for review. This Board was not required to do that which had already been done by the administrator, who possesses “all authorities and powers, discretionary and otherwise, which are required of or vested in the Industrial Commission.” Sec. 4121.121 R. C. The statute does not provide the kind of examination which shall be conducted by the medical referees but only provides that “An employee shall submit to such examinations, including clinical and x-ray examinations, as the commission requires.” When we examine the statutory definition of silicosis found in §4123.68 (W) R. C., to wit, “Silicosis means a disease of the lungs caused by breathing silicia dust (silicon dioxide) producing fibrous nodules distributed through the lungs and demonstrated by x-ray examination or Dy autopsy,” we find that the existence of the disease is to be determined by x-ray examination. Therefore it should not be necessary for the referees to make a personal physical examination of a claimant for that reason. It is our opinion that the examination made by the referees met the statutory legal requirements.

We are of the further opinion that the procedure before the administrator and the Board of Review, and the appeal to the Commission were in accordance with law, and for this reason .the petition must be denied.

It is next urged by the relator that in allowing the claim the respondent abused its discretion. Our examination of the record reveals that there was a conflict in the evidence as to whether or not the claimant was suffering from the disease of silicosis. It contained sufficient competent medical evidence to sustain the claim, and this court may not substitute its judgment for that of the Commission in making its finding. The Board had the right and the duty to choose between conflicting medical opinions and we may not say it abused its discretion in so doing.

We note that counsel for relator has made a request for a separate finding of facts and conclusions of law. Such may be prepared and submitted by counsel in accordance with Rule IX of this court.

The petition will be denied.

PETREE, PJ, BRYANT, J, concur.


text:
    YOUNGSTOWN BUILDING MATERIAL AND FUEL COMPANY, Appellant, v. BOWERS, Tax Commr., Appellee.
    Board of Tax Appeals, Department of Taxation, State of Ohio.
    No. 33876.
    Decided July 31, 1957.
    Manchester, Bennett, Powers & Ullman, by Paul J. Fleming, Youngstown, for appellant.
    William Saxbe, Atty. Geni., by Chester H. Hummell, Asst. Atty. Geni., for appellee.
   OPINION

This is an appeal from a sales and use tax assessment order of the tax commissioner made February 20, 1957, wherein there was found due from the assessee, sales tax in the sum of $2397.03, plus a penalty of $359.55, and a use tax of $131.82 plus a penalty of $19.77. If paid within the period prescribed by the order there was a diminution of the penalties as therein written. The audit period covered extends from January 1, 1951 to December 31. 1954.

■ The’ cause now comes on for further and final consideration and disposition upon appellant’s notice of appeal, the commissioner’s transcript and order, the record of a hearing had before this board on May 24, 1957, with exhibits attached, and briefs of counsel.

Under this same date this board has considered and disposed of the case of Collinwood Shale Brick and Supply Co. v. Bowers, 3 O. O. (2d) 441, 78 Abs 457. The principal issue in that case was whether or not batching plant equipment purchased and used in the processing of concrete is an integrated plant, and as such and by reason thereof, entitled to sales and use tax exemption. Appellant, as in the Collinwod case, chiefly relies upon the decision of the Seventh District Court of Appeals in the case of Boardman Supply Co. v. Bowers, 76 Abs 209 and 213. If this so-called integrated theory be correct, then it is equally applicable to nearly all industry processing and manufacturing a product; and it must follow that all the Supreme Court has said in numerous cases, part of which are enumerated in. the board’s Collinwood entry, is of no moment or consequence.

The avowed purpose and intent of the Sales and Use Tax Acts is to tax all retail sales, save and except such sales as are therein specifically excepted therefrom. Neither act excepts the purchases and property of an integrated industry. To hold that it does so is nothing more than judicial legislation. The acts simply say that such property as is purchased and used and consumed in industry as is used “directly” in processing and manufacturing the product produced is exempt from such taxation. Appellant’s integrated theory carried to its logical conclusion would be immediately seized upon by nearly all industry, and the ultimate end would be complete emasculation of this most important field of State revenue.

' The board of tax appeals in the Collinwood case noted, has fully set forth therein the authorities and reason upon which its decision is predicated. We see no reason why they should again be set forth herein. The hoard adopts and by reference incorporates herein all that is said in the Collinwood case that is responsive to the present issue.

One item of the assessed property has given the board considerable concern. This is the item of “42% yards of concrete and wire,” priced and assessed at $566.78. This material went into the'base of the batching plant. This base helps support only the top bins holding ingredients which flow therefrom into the mixing chamber where processing begins, but also the mixing chamber as well. The evidence on this point is meager and lacking in clarity; however, the board is disposed to give the assessee the benefit of the doubt, and holds this item to be exempt from sales and use taxation.

The order of the tax commissioner is modified in respect to this particular item, and as modified the order is affirmed.


author: Per CURIAM.

text:
    SCHER, Plaintiff-Appellant, v. SCHER, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3839.
    Decided March 21, 1957.
    Edward L. Williams, Russell G. Mock, Youngstown, for plaintiff-appellant.
    W. P. Barnum, Harry T. Rapport, Youngstown, for defendant-appellee.
   OPINION

Per CURIAM.

Eileen Scher commenced action number 140140 in the Court of Common Pleas, Division of Domestic Relations, against Samuel Scher to obtain alimony. ‘

Samuel Scher sued Eileen Scher in the Court of Common Pleas, Division of Domestic Relations, in case number 140701 for divorce, in which action Eileen Scher answered.

Case number 140140 was consolidated for all purposes in case' number 140701. heard and disposed of by journal entry prepared and filed on April 25. 1955, by counsel for Samuel Scher.

On trial to the court under date of April 25, 1955, the court granted Samuel Scher a divorce and awarded alimony to Eileen Scher in the amount of $15,000.00 and certain items of personal apparel, and ordered Samuel Scher to pay numerous obligations.

On April 30, 1955, Samuel Scher filed a motion to modify the journal entry of April 25, 1955, for the reason that Eileen Scher withheld and concealed facts having a bearing upon the determination of alimony awarded her and on the division of property.

By journal entry dated May 5, 1955, the parties were ordered to appear at Fisher-Glider Cartage and Storage Company on May 9, 1955, and attempt “upon sight of the articles in storage to come to an amicable division of the same as between said parties” and “in the event said parties are able to agree upon a division of said goods and personal property the same shall be entered as a matter of record herein; and if not the fact and the circumstances attending such attempt as above described shall be reported to the court forthwith.”

From the order of May 5, 1955, Eileen Scher appealed to this court, and that appeal was dismissed as not constituting a final appealable order.

From the entry of November 16, 1955, wherein the court modified its former order as to alimony Eileen Scher prosecutes her appeal to this court on questions of law, it being claimed that the trial court made such modification entry without any hearing and without notice to counsel for Eileen Scher, and without the entry of modification being presented to her counsel for approval in accordance with the rules of the Court of Common Pleas, Division of Domestic Relations.

Having considered all of the errors assigned which relate to the claim of counsel for Samuel Scher that no notice was given of a hearing on the application for modification of the award of alimony and further upon the claim that the journal entry was placed upon record without submission to counsel according to the rules of practice in the Court of Common Pleas, Division of Domestic Relations, in the absence of a bill of exceptions this court is bound by the journal of the Court of Common Pleas, Division of Domestic Relations, which recites that the motion came on for hearing and that the court upon such hearing made certain findings.

It is claimed by way of affidavits of counsel for Eileen Scher that no notice was given and no hearing had upon the application for modification of award; such affidavits are a matter of record but are not incorporated in a bill of exceptions and cannot be considered sufficient to deny the statements embodied in the journal entry of the court. There is no bill of exceptions in this case.

As to the failure to submit the journal entry to counsel for Eileen Scher there is no evidence before this court other than the affidavits above referred to to the effect that such journal entry was not submitted to counsel. The whole matter is resolved upon the proposition that in the absence of a bill of exceptions this court is unable and unauthorized to reverse the, judgment of the Court of Common Pleas, Division of Domestic Relations.

Appeal dismissed.

NICHOLS, PJ, GRIFFITH and PHILLIPS, JJ, concur.


author: By THE COURT:

text:
    HORN, Guardian, Plaintiff-Appellee, v. SCHEIDING, Defendant-Appellant.
    Ohio Appeals, Second District, Darke County.
    No. 744.
    Decided November 20, 1956.
    Max Harley, Greenville, for plaintiff-appellee.
    Spidei, Staley & Hole, Greenville, for defendant-appellant.
   OPINION

By THE COURT:

We nave examined the record in this case and find that the Court committed no prejudicial error in ordering the caption on its docket corrected under the provisions of §2309.58 R. C. Counsel for the appellant cite the case of Oelzel v. Martin, 163 Oh St 512, which states in the first paragraph of the syllabus that the title of a case shall not be changed in any of its stages. It will be noted, however, in the cited case that an attempt was made to substitute a new party plaintiff and strike out the original. In speaking of change and amendment Judge Weygandt said at page 515:

“The authority of a court to permit such amendments is not unlimited. As summarized in 39 American Jurisprudence, 967, Section 99, the two tests ordinarily applied are, first, whether the same evidence will support both petitions, and, second, whether the same measure of damages will apply to both.
“In the instant case the trial court did not merely strike out one of a number of parties plaintiff or add a new party thereto. Instead, the court struck out the only original party plaintiff and substituted another. Furthermore, the original party plaintiff had no interest in the claim for damage to the automobile, and the new corporate party plaintiff. of course, had no interest in the claim for personal injuries or the claim for damage to the clothing of the original party plaintiff. The difference in the claims of the two parties is illustrated by the fact that in his petition the first plaintiff asked damages in the sum of $5,000, while the corporate plaintiff asked $2,000. Hence, the Court of Appeals was in error in holding a substitution proper under these circumstances.”

In the case at bar the action was instituted by a proper complaint in bastardy being filed. This complaint contained no caption. It was never amended or changed in any manner. Hence, the proof required to obtain a verdict of guilty was never changed. The second paragraph of the syllabus of the cited case appears to us to permit the caption to be corrected in the case at bar. It provides:

“Under the provisions of §11363 GC (§2309.58 R. C.), before or after judgment in furtherance of justice and on such terms as it deems proper, the court may amend any pleading, process or proceeding by adding or striking out the name of any party or by correcting a mistake in the name of a party when the amendment does not substantially change the claim or defense.’’

It should be noted that this caption appeared only on the docket and journal entries and other miscellaneous matters which were never exhibited to the jury, and therefore it should not have been prejudicial. It appeared before the jury in only one instance and this was in an exhibit offered by the defendant and of which he may not complain.

We have read the entire testimony contained in the bill of exceptions and find that the question of the guilt of the defendant depended entirely upon the credibility of the witnesses, and it appears that the jury chose to believe those offered by the prosecution. We therefore cannot say that the judgment is not supported by the proper degree of proof.

We have examined the other errors assigned and find that none are well taken.

The judgment will be affirmed.

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


author: By LEIS, J.:

text:
    MOTLEY, Plaintiff, v. GOMBOS, Defendant.
    Common Pleas Court, Hamilton County.
    No. A-153906.
    Decided April 18, 1958.

      Andrew Cherney, Myron S. Rudd, for plaintiff.
    Harry M. Hoffheimer, for defendant.
   OPINION

By LEIS, J.:

This is an action in slander brought by a radio sportscaster from Hamilton, Ohio.

The first cause of action is based on the following allegedly slanderous language:

“He used to call me up and in abusive language * * * drunk * * * and call my home and used to call up and berate me for starting action against Green * * *. Now what would you construe that * * * he used to call at midnight and use abusive language and the only reason 1 didn’t prosecute him at the time was * * * well * * * after all the man was just drunk * * *. He did that several times.”

The second cause of action is based on a statement allegedly made by defendant that “the biggest syndicated group in Ohio was the one Motley worked for in 1954.”

Before there can be recovery in slander, the words uttered must be actionable. It has been held to be slander per se — and thereby obviating the necessity of proving special damage in the following categories:

1. When a defendant falsely accuses a person of a crime which is an indictable offense involving moral turpitude or infamous punishment.

2. When a defendant accuses a person falsely of a loathsome disease.

3. Slander of a woman’s chastity.

4. Slander in one’s business, trade, profession, or office.

As regards these two causes of action set forth in plaintiff’s petition, only the category of slander in one’s calling could be applicable. There remains the question of whether these alleged utterances are within the scope of this category of slander per se.

A leading authority in the field of defamation, Dean William L. Prosser in his work on Torts has this to say at page 802:

“Business, trade, profession or office. ‘The law has always been very tender • of the reputation of tradesmen, and therefore words spoken of tfiem m the way of their trade will bear an action that will not be a-'ion able in the case of another person.’ The likelihood of ’temporal’ damage in such a case' is sufficiently obvious; and the rule was soon extended to cover anyone engaged in a business or profession, or holding a public, or even a private office. Any calling is included, ‘be it ever so base,' but it must be a legal one, entitled to such a sanction. Furthermore, since the object of the exception is to protect the plaintiff in his office or calling, it was decided quite early that it must appear that he held or was engaged in it when the words complained of were published.
“For the same reason, the exception was limited to defamation of a kind incompatible with the proper conduct of the business, trade, profession or office itself. The statement must be made with reference to a matter of peculiar Importance for that purpose, rather than of more general significance. Thus it is actionable without proof of damage to say of a physician that he is a butcher and the speaker would not have him for a dog, of an attorney that he is a shyster, of a school teacher that he has been guilty of improper conduct as to his pupils, of a business man that his credit is bad or that he sells adulterated goods', of a public officer that he has accepted a bribe or has used his office for corrupt purposes, or of any of these that he is dishonest, incompetent, or insane * * * since these things obviously discredit him in his chosen calling. On the other hand, it has been held not to be actionable without proof of damage to say of a gas company clerk that he has been consorting with prostitutes, since he might still be a satisfactory clerk, or of a physician that he has committed adultery, since he might nevertheless be a successful physician. * * * The effect of a charge that the plaintiff is insolvent, illiterate, a coward, or has been seen drunk, may depend upon whether he is a merchant, a professor, a soldier or a clergyman. An accusation of a single act of misconduct may not be sufficient, since one mistake does not amount to incompetence, but if it fairly imputes habitual conduct, or a lack of qualities, which the public has a right to expect of the plaintiff in his calling, it may be actionable.” (Emphasis by the court.)

See also Davis v. Brown, 27 Oh St 326.

As was held in Lohr v. Buffington, 18 C. C. (N. S.) 583, to make words actionable because of their effect upon one’s business or office, they must be said with reference to something connected with such business or office.

The Court, after careful consideration, concludes that the words spoken by defendant, forming the basis for both causes of action, do not refer to plaintiff in his calling as a radio sportscaster and are not slanderous per se.

It therefore follows that in both causes of action there must be allegations of special damage before the petition is sufficient at law.

Plaintiff fails to allege special damage as to his first cause of action and in his memorandum relies upon these words as constituting slander per se. Accordingly, the demurrer to the first cause of action is well taken and the Court sustains same.

Defendant does allege in his second cause of action special damages of $4,125.00. The Court has considered carefully the words allegedly uttered by defendant in this cause of action and is of the opinion that as a matter of law there can be no recovery. To say merely that the biggest syndicated group in Ohio was the one plaintiff worked for affords no basis for relief. The gravamen of the tort of defamation is whether or not the plaintiff has been lowered in the eyes of his fellowman. Interpreting the language of the alleged slander in the light most favorable to plaintiff, the Court cannot comprehend any actionable language. See Bigelow v. Brumley, 138 Oh St 574. The demurrer as to the second cause of action is, therefore, likewise sustained.

The Court wishes to commend counsel for their excellent preparation in support of their respective positions on this demurrer.

Please present your entry accordingly.