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ohio/1009788.json

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+"{\"id\": \"1009788\", \"name\": \"Gregory v. Industrial Commission of Ohio\", \"name_abbreviation\": \"Gregory v. Industrial Commission\", \"decision_date\": \"1935-05-01\", \"docket_number\": \"No. 25114\", \"first_page\": \"365\", \"last_page\": \"371\", \"citations\": \"129 Ohio St. 365\", \"volume\": \"129\", \"reporter\": \"Ohio State Reports, New Service\", \"court\": \"Supreme Court of Ohio\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T17:56:40.327690+00:00\", \"provenance\": \"CAP\", \"judges\": \"Weygandt, C. J., Williams, Jones, Day and Zimmerman, JJ., concur.\", \"parties\": \"Gregory v. Industrial Commission of Ohio.\", \"head_matter\": \"Gregory v. Industrial Commission of Ohio.\\n(No. 25114\\nDecided May 1, 1935.)\\nMr. Harry B. Reese and Mr. Charles C. Callahan, for plaintiff in error.\\nMr. John W. Bricher, attorney general, Mr. R. R. Zurmehly and Mr. Herbert Mitchell, for defendant in error.\", \"word_count\": \"1332\", \"char_count\": \"7602\", \"text\": \"Stephenson, J.\\nWe quite agree with counsel that the record in this case presents three questions, namely:\\n1. Is the death of an employee from injuries received while proceeding to his work and after reaching the premises of his employer but before arriving at the point where his active duties began, sustained in the course of employment?\\n2. Did the open shop conditions of the mine where Gregory was injured subject him to a hazard greater than that to which the general public in the community was subjected, and thereby establish a causal connection between the employment and the injury?\\n3. Was there causal connection between Gregory's injuries and his death?\\nIf the open shop condition of the mine where Gregory was employed at the time of his injury subjected him to a hazard greater than that to which the general public in the community was subjected, then a causal connection was as a matter of fact established between the employment and his injuries.\\nWe do not regard it as necessary to go back and review the old cases, as that has been taken care of in the recently reported case of Industrial Commission v. Carden, ante, 344.\\nThe case of Industrial Commission v. Nelson, 127 Ohio St., 41, 186 N. E., 735, furnishes the nucleus for the law that we will apply in this case. We quote two paragraphs of the syllabus of that case, as follows:\\n\\\"1. An injury is not compensable, under the workmen's compensation law of this state, unless the employment has some causal connection with the injury, either through its activities, its conditions or its environments.\\n\\\"2. But whenever the conditions attached to the place of employment are factors in causing injury to a workman engaged therein, such injury arises out of the employment and is compensable.\\\"\\nDefendant in error insists that the open shop conditions at the Thompson mine were not sufficient upon which to predicate a hazard greater than that to which the general public in the community was exposed, because no strike at that mine was actually in progress. We do not regard this ground as tenable. This mine was in the Ohio mining district, just a short distance from the Hocking Valley mines that were unionized. The workmen at the Thompson mine had been notified that they would receive a visit from the Hocking Valley miners, and they made their word good. An open shop in a unionized district is not conducive to passivity. The proximity of union and non-union enterprises of itself creates more or less of a hazard. It is a condition in the one sense and an environment in the other. It is our holding that the open shop condition of the Thompson mine did subject Gregory to a hazard greater than that to which the general public in the community was subjected.\\nThere is one other remaining question, namely, was Gregory within the zone of his employment when injured?\\nIt was Gregory's duty to hitch the ponies to the wagon in order to engage in his regular business of hauling coal. He was on the company's property, probably two hundred yards from the barn or stable where the'ponies were kept and two hundred and fifty yards from the mine, when he was intercepted by these men, presumably from the Hocking Valley. His real work, it is true, would not begin until he had arrived at the barn or stable and made some movement toward harnessing the ponies. But was he within the zone of Ms employment as that term has been heretofore defined by this court?\\nIn 49 A. L. R., at page 433, the general proposition is laid down, as follows:\\n\\\"It is generally held that an injury sustained by a miner, while proceeding, on the premises of his employer, to his place of employment, or an injury sustained while preparing to begin his day's work, arises out of and in the course of the employment, within the meaning of the act.\\\"\\nThis is rather a broad statement, but the Ohio authorities are in accord with it in the main. Take the case of Industrial Commission v. Barber, 117 Ohio St., 373, 159 N. E., 363:\\n\\\"An employe, who for the purpose of reaching his place of employment travels a course wMch affords the only unobstructed access thereto, enters upon the course of his employment within the contemplation of the Workmen's Compensation Law when he reaches the zone of such employment that is under the control of his employer, even though such zone be outside the inclosure of his employer.\\\"\\nTo the same effect is the case of Kasari v. Industrial Commission, 125 Ohio St., 410, 181 N. E., 809, 82 A. L. R., 1040. We quote the first and second paragraphs of the syllabus, as follows:\\n\\\"1. An employe, entering the premises of his employer to begin the discharge of the duties of his employment but who has not yet reached the place where his service is to be rendered, is discharging a duty to his employer which is a necessary incident to his day's work.\\n\\\"2. Traversing the zone between the entrance of the employer's premises and the plant where an employe is employed, is one of the hazards of the employment.\\\"\\nNext we find that this theory is followed in the case of Industrial Commission v. Baker, 127 Ohio St., 345, 188 N. E., 560. The second paragraph of the syllabus in that case reads as follows:\\n\\\"An injury sustained by an employe, after reaching the zone of his employment under the control of his employer, even though outside the enclosure constituting his place of work, is compensable.\\\"\\nIt was Gregory's duty to hitch the ponies, and the attacking party probably was aware of that fact. They followed the dictates of common sense and went to the mine property and lay in wait for the employees, one of whom was Gregory. The testimony is overwhelming to the effect that he was kicked and beaten and, leaving out of consideration any declaration or. exclamation of pain that he made to his fellow employees, the physical fact, as detailed by those who saw him at intervals after the injury, that he walked in a stooped-over condition, is sufficient evidence of an injury out of the ordinary. He endeavored to work for a man who had employed him previously. He managed to work one day. The testimony of this employer was to the effect, that before his injury he was a splendid workman; that upon the day in particular he had great difficulty in performing his tasks.\\nThere was certain sufficient testimony to warrant the finding that his injury was at least a contributing cause of death, as different witnesses testified that he vomited clotted blood by the handful. That he died from scarlet fever is little more than an insinuation insofar as the record is concerned.\\nFrom all the facts in this case we find that Gregory was the victim of a continuous condition that existed at the Thompson mine, the place where he was employed at the time of injury; that by reason of such condition he was subjected to a greater hazard than that common to the general public in the community; that he was injured while within the zone of his employment and that there was evidence from which it could be logically and reasonably inferred that his in juries contributed to produce Ms death, maMng Ms case thereby compensable.\\nThe judgment of the Court of Appeals is reversed and that of the Common Pleas Court affirmed.\\nJudgment of Court of Appeals reversed and judgment of Court of Common Pleas affirmed.\\nWeygandt, C. J., Williams, Jones, Day and Zimmerman, JJ., concur.\"}"

ohio/1013232.json

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+"{\"id\": \"1013232\", \"name\": \"City of Cleveland v. Public Utilities Commission of Ohio\", \"name_abbreviation\": \"City of Cleveland v. Public Utilities Commission\", \"decision_date\": \"1936-07-22\", \"docket_number\": \"No. 25076\", \"first_page\": \"614\", \"last_page\": \"614\", \"citations\": \"131 Ohio St. 614\", \"volume\": \"131\", \"reporter\": \"Ohio State Reports, New Service\", \"court\": \"Supreme Court of Ohio\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T19:29:16.811277+00:00\", \"provenance\": \"CAP\", \"judges\": \"Weygandt, C. J., Stephenson, Williams, Matthias, Day and Zimmerman, JJ., concur.\", \"parties\": \"City of Cleveland v. Public Utilities Commission of Ohio.\", \"head_matter\": \"City of Cleveland v. Public Utilities Commission of Ohio.\\n(No. 25076\\nDecided July 22, 1936.)\\nMr. Ezra Shapiro, director of law, and Mr. Thomas J. Herbert, for plaintiff in error.\\nMr. John W. Bricker, attorney general, and Mr. Donald C. Power, for defendant in error.\", \"word_count\": \"95\", \"char_count\": \"591\", \"text\": \"It is ordered and adjudged that the order of the Public Utilities Commission be, and the same hereby is, affirmed on authority of Ohio Bell Telephone Co. v. Public Utilities Commission, ante, 539.\\nOrder affirmed.\\nWeygandt, C. J., Stephenson, Williams, Matthias, Day and Zimmerman, JJ., concur.\\nJones, J., not participating.\"}"

ohio/1037083.json

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+"{\"id\": \"1037083\", \"name\": \"The State, ex rel. Jones Motor Sales, Inc., v. Coffinberry et al.\", \"name_abbreviation\": \"State ex rel. Jones Motor Sales, Inc. v. Coffinberry\", \"decision_date\": \"1946-06-19\", \"docket_number\": \"No. 30647\", \"first_page\": \"683\", \"last_page\": \"686\", \"citations\": \"146 Ohio St. 683\", \"volume\": \"146\", \"reporter\": \"Ohio State Reports, New Service\", \"court\": \"Supreme Court of Ohio\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-11T00:52:24.205069+00:00\", \"provenance\": \"CAP\", \"judges\": \". Weygandt, C. J., Zimmerman, Bell, Williams, Turner, Matthias and Hart, JJ., concur.\", \"parties\": \"The State, ex rel. Jones Motor Sales, Inc., v. Coffinberry et al.\", \"head_matter\": \"The State, ex rel. Jones Motor Sales, Inc., v. Coffinberry et al.\\n(No. 30647\\nDecided June 19, 1946.)\\nMessrs. Meyer, Johnson & Kincaid, for relator.\\nMr. Hugh S. Jenkins, attorney general, Mr. C. G. L. Yearick and Mr. Albertus B. Conn, for respondents.\", \"word_count\": \"416\", \"char_count\": \"2500\", \"text\": \"By the Court.\\nIn the case of Copperweld Steel Co. v. Industrial Commission, 142 Ohio St., 439, 52 N. E. (2d), 735, the plaintiff, an employer complying with the workmen's compensation law, sought from this court a writ prohibiting the Industrial Commission from making payments under orders awarding compensation and from taking into consideration any payments, which had been made thereunder, in the merit or individual rating of the plaintiff's workmen's compensation risk.\\nIn holding the plaintiff's petition demurrable in that case, this court said at pages 443 and 444:\\n\\\"Counsel for plaintiff do contend that this action is 'in prohibition.' Prohibition is a remedy calculated to keep inferior tribunals from usurping power with which they have not been invested. It must be borne in mind that it is not sought herein to prevent a merit rating of a complying employer as was the case in State, ex rel. Powhatan Mining Co., v. Industrial Commission, 125 Ohio St., 272, 181 N. E., 99, 82 A. L. R., 938, but to control the action of the Industrial Commission with respect to the allowance or disallowance of certain claims. The power to hear claims and award death benefits and compensation for injuries has been expressly conferred upon the commission by Section 1465-90, General Code, and prohibition will not lie to curb the exercise of that power or to prevent the enforcement of a valid award after it has been made upon claims properly before it, as were the claims in the case at bar.\\n' ' The complying employer has no direct financial interest in the distribution of the state insurance fund. His interest lies in basic and merit ratings and the amount he is required to pay in premiums. With respect to the subject matter involved in a proceeding upon a claimant's application for compensation under Section 1465-90, General Code, the complying employer's interest is remote. He is neither a necessary nor a proper party to such a proceeding; not Toeing a party he has no right to appeal or review.\\\"\\nUpon the reasoning and authority of that case, the demurrer in the present proceeding is sustained and a writ of prohibition denied.\\nWrit denied.\\n. Weygandt, C. J., Zimmerman, Bell, Williams, Turner, Matthias and Hart, JJ., concur.\"}"

ohio/1051721.json

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+"{\"id\": \"1051721\", \"name\": \"Fawick Airflex Co., Inc., Appellee, v. United Electrical, Radio & Machine Workers of America et al. ; Schuster, Appellant\", \"name_abbreviation\": \"Fawick Airflex Co. v. United Electrical, Radio & Machine Workers of America\", \"decision_date\": \"1950-06-21\", \"docket_number\": \"No. 32257\", \"first_page\": \"106\", \"last_page\": \"106\", \"citations\": \"154 Ohio St. 106\", \"volume\": \"154\", \"reporter\": \"Ohio State Reports, New Service\", \"court\": \"Supreme Court of Ohio\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-11T00:50:05.371465+00:00\", \"provenance\": \"CAP\", \"judges\": \"Weygandt, C. J., Matthias, Hart, Zimmerman, Stewart, Turner and Taft, JJ., concur.\", \"parties\": \"Fawick Airflex Co., Inc., Appellee, v. United Electrical, Radio & Machine Workers of America et al. ; Schuster, Appellant.\", \"head_matter\": \"Fawick Airflex Co., Inc., Appellee, v. United Electrical, Radio & Machine Workers of America et al. ; Schuster, Appellant.\\n(No. 32257\\nDecided June 21, 1950.)\\nMessrs. Marshman, Hollington S Steadman, for appellee.\\nMessrs. Davis, Davis & Handelman, for appellant.\", \"word_count\": \"78\", \"char_count\": \"527\", \"text\": \"It is ordered and adjudged that this appeal as of right be, and the same hereby is, dismissed for the reason that no debatable constitutional question is involved.\\nAppeal dismissed.\\nWeygandt, C. J., Matthias, Hart, Zimmerman, Stewart, Turner and Taft, JJ., concur.\"}"

ohio/1071456.json

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+"{\"id\": \"1071456\", \"name\": \"In re Resignation of Cartellone\", \"name_abbreviation\": \"In re Resignation of Cartellone\", \"decision_date\": \"2002-08-15\", \"docket_number\": \"No. 2002-0336\", \"first_page\": \"1206\", \"last_page\": \"1209\", \"citations\": \"96 Ohio St. 3d 1206\", \"volume\": \"96\", \"reporter\": \"Ohio State Reports, Third Service\", \"court\": \"Supreme Court of Ohio\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T20:33:05.652803+00:00\", \"provenance\": \"CAP\", \"judges\": \"Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer, Cook and Lundberg Stratton, JJ., concur.\", \"parties\": \"In re Resignation of Cartellone.\", \"head_matter\": \"In re Resignation of Cartellone.\\n[Cite as In re Resignation of Cartellone, 96 Ohio St.3d 1206, 2002-Qhio-4354.]\\n(No. 2002-0336\\nSubmitted July 24, 2002\\nDecided August 15, 2002.)\", \"word_count\": \"1056\", \"char_count\": \"6132\", \"text\": \"{\\u00b6 1} On February 22, 2002, respondent, John Joseph Cartellone, Attorney Registration No. 0017620, last known business address in Cleveland, Ohio, who was admitted to the bar of this state on the 7th day of November, 1980, submitted an Affidavit of Resignation and Authorization and Release pursuant to Gov.Bar R. V(11)(G)(1). The affidavit and authorization and release were referred to Disciplinary Counsel pursuant to Gov.Bar R. V(11)(G)(2). On July 9, 2002, Disciplinary Counsel filed under seal his report with this court in accordance with Gov.Bar R. V(11)(G)(2). Upon consideration thereof,\\n{\\u00b6 2} IT IS ORDERED BY THE COURT that pursuant to Gov.Bar R. V(11)(G)(3), John Joseph Cartellone's resignation as an attorney and counselor at law be accepted as a resignation with disciplinary action pending. It is further ordered that his certificate of admission to the bar of Ohio be, and the same hereby is, ordered cancelled and that the name of John Joseph Cartellone be stricken from the roll of attorneys of this court.\\n{\\u00b6 3} IT IS FURTHER ORDERED AND ADJUDGED that from and after this date all rights and privileges extended to John Joseph Cartellone to practice law in the state of Ohio be withdrawn; that henceforth John Joseph Cartellone shall cease to hold himself forth as an attorney authorized to appear in the courts of this state; that he shall not attempt, either directly or indirectly, to render services as an attorney or counselor at law to or for any individuals, corporation, or society, or in any way perform or seek to perform services for anyone, no matter how constituted, that must, by law, be executed by a duly appointed and qualified attorney within the state of Ohio.\\n{\\u00b6 4} IT IS FURTHER ORDERED that John Joseph Cartellone desist and refrain from the practice of law in any form, either as principal or agent or clerk or employee of another, and hereby is forbidden to appear in the state of Ohio as an attorney and counselor at law before any court, judge, board, commission, or other public authority, and hereby is forbidden to give another an opinion as to the law or its application or advise with relation thereto.\\n{\\u00b6 5} IT IS FURTHER ORDERED, sua sponte, by the court, that within 90 days of the date of this order, respondent shall reimburse any amounts that have been awarded against the respondent by the Clients' Security Fund pursuant to Gov.Bar R. VIII(7)(F). It is further ordered, sua sponte, by the court that if, after the date of this order, the Clients' Security Fund awards any amount against the respondent pursuant to Gov.Bar R. VIII(7)(F), the respondent shall reimburse that amount to the Clients' Security Fund within 90 days of the notice of such award.\\n{\\u00b6 6} IT IS FURTHER ORDERED that the respondent, John Joseph Cartellone, surrender his certificate of admission to practice to the Clerk of this court on or before 30 days from the date of this order.\\n{\\u00b6 7} IT IS FURTHER ORDERED that on or before 30 days from the date of this order, respondent shall:\\n{\\u00b6 8} 1. Notify all clients being represented in pending matters and any co-counsel of his resignation and his consequent disqualification to act as an attorney after the effective date of this order and, in the absence of co-counsel, also notify the clients to seek legal service elsewhere, calling attention to any urgency in seeking the substitution of another attorney in his place;\\n{\\u00b6 9} 2. Regardless of any fees or expenses due respondent, deliver to all clients being represented in pending matters any papers or other property pertaining to the client, or notify the clients or co-counsel, if any, of a suitable time and place where the papers or other property may be obtained, calling attention to any urgency for obtaining such papers or other property;\\n{\\u00b6-10} 3. Refund any part of any fees or expenses paid in advance that are unearned or not paid, and account for any trust money or property in the possession or control of respondent;\\n{\\u00b6 11} 4. Notify opposing counsel in pending litigation or, in the absence of counsel, the adverse parties of his disqualification to act as an attorney after the effective date of this order, and file a notice of disqualification of respondent with the court or agency before which the litigation is pending for inclusion in the respective file or files;\\n{\\u00b6 12} 5. Send all such notices required by this order by certified mail with a return address where communications may thereafter be directed to respondent;\\n{\\u00b6 13} 6. File with the Clerk of this court and the Disciplinary Counsel of the Supreme Court an affidavit showing compliance with this order, showing proof of service of notices required herein, and setting forth the address where the affiant may receive communications; and\\n{\\u00b6 14} 7. Retain and maintain a record of the various steps taken by respondent pursuant to this order.\\n{\\u00b6 15} IT IS FURTHER ORDERED that until such time as he fully complies with this order, respondent shall keep the Clerk and the Disciplinary Counsel advised of any change of address where respondent may receive communications.\\n(\\u00b6 16} IT IS FURTHER ORDERED, sua sponte, that all documents filed with this court in this case shall meet the filing requirements set forth in the Rules of Practice of the Supreme Court of Ohio, including requirements as to form, number, and timeliness of filings.\\n{\\u00b6 17} IT IS FURTHER ORDERED, sua sponte, that service shall be deemed made on respondent by sending this order, and all other orders in this case, by certified mail to the most recent address respondent has given to the Attorney Registration Office.\\n{\\u00b6 18} IT IS FURTHER ORDERED that the Clerk of this court issue certified copies of this order as provided for in Gov.Bar R. V(8)(D)(1), that publication be made as provided for in Gov.Bar R. V(8)(D)(2), and that respondent bear the costs of publication.\\nMoyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer, Cook and Lundberg Stratton, JJ., concur.\"}"

ohio/11147866.json

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+"{\"id\": \"11147866\", \"name\": \"WOODLAND AV. SAV. & TR. CO. v. WILLIAMS-MURPHY CO. et al\", \"name_abbreviation\": \"Woodland Av. Sav. & Tr. Co. v. Williams-Murphy Co.\", \"decision_date\": \"1923-10-01\", \"docket_number\": \"No. 4657\", \"first_page\": \"190\", \"last_page\": \"190\", \"citations\": \"2 Ohio Law Abs. 190\", \"volume\": \"2\", \"reporter\": \"The Ohio Law Abstract\", \"court\": \"Ohio Court of Appeals\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T21:34:11.236256+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WOODLAND AV. SAV. & TR. CO. v. WILLIAMS-MURPHY CO. et al\", \"head_matter\": \"No. 187\\nWOODLAND AV. SAV. & TR. CO. v. WILLIAMS-MURPHY CO. et al\\nOhio Appeals, 8th Dist., Cuyahoga County\\nNo. 4657.\\nDecided Oct. 1, 1923\\n147. BILLS AND NOTES \\u2014 Where A gives note and mortgage to B, who assigns note to C, and C assigns note back to B as collateral for loan, payment of A\\u2019s debt to B discharges note.\\nAttorneys \\u2014 Price, Shepherd & Graves, for Woodland Ave. Savings and Trust; Mooney, Hahn, Loeser & Keough, for Williams-Murphy Co.' and Beckwith; all of Cleveland.\", \"word_count\": \"333\", \"char_count\": \"1956\", \"text\": \"VICKERY, P .J.\\nEpitomized Opinion\\nTrust Co., as executor of Grether estate, sued Beckwith on a $5,000 note, and also Williams-Murphy Co. on two notes signed by the company and placed by Beckwith with Grether as collateral. The evidence disclosed that Grether sold Williams-Murphy Co. a tract of land in payment of which company gave Grether note and mortgage. Company then allotted and sold the land by lots and notes and mortgages, given in payment of lots, were assigned to Grether to the amount of the note and mortgage given by company for the land. Grether assigned to Beckwith two of the original notes given by Murphy Co. to Grether. Later Beckwith borrowed from Grether, giving his own note and assigning his own note and assigning as collateral these Murphy Co. notes, which Grether had assigned to Beckwith. Murphy Co. proved that it had paid its debt to Grether, had the. mortgage cancelled, but had failed to secure these two notes because Grether was sick and had put off ' delivering them. Judgment was rendered against Beckwith by default, but the court ordered a cancellation of the Williams-Murphy notes. In affirming the judgment, the Court of Appeals held:\\n1. \\\"Beckwith either received the payment of these notes as owner of the notes, if he was the owner, or else he received them as a duly authorized and acting agent for his principal, Grether, and Grether, having received the full payment of these notes, could not compel the Murphy Co. to repay them.\\\"\"}"

ohio/111781.json

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+"{\"id\": \"111781\", \"name\": \"In re Nentwick\", \"name_abbreviation\": \"In re Nentwick\", \"decision_date\": \"1998-03-20\", \"docket_number\": \"98-199\", \"first_page\": \"1482\", \"last_page\": \"1483\", \"citations\": \"81 Ohio St. 3d 1482\", \"volume\": \"81\", \"reporter\": \"Ohio State Reports, Third Service\", \"court\": \"Supreme Court of Ohio\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T19:58:57.832536+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In re Nentwick.\", \"head_matter\": \"Friday, March 20, 1998\\nDISCIPLINARY DOCKET\\n98-199.\\nIn re Nentwick.\", \"word_count\": \"990\", \"char_count\": \"5899\", \"text\": \"On January 26, 1998, and pursuant to Gov.Bar R. V(5)(A)(3), the Secretary of the Board of Commissioners on Grievances and Discipline of the Supreme Court certified to the Supreme Court a certified copy of a judgment entry of a felony conviction against John N. Nentwick, a.k.a. John Norbert Nentwick, an attorney licensed to practice law in the state of Ohio.\\nUpon consideration thereof and pursuant to Gov.Bar R. V(5)(A)(4), it is ordered and decreed that John N. Nentwick, a.k.a. John Norbert Nentwick, Attorney Registration No. 0061315, last known address in East Liverpool, Ohio, be, and hereby is, suspended from the practice of law for an interim period, effective as of the date of this entry, March 19,1998.\\nIT IS FURTHER ORDERED that this matter be, and is hereby, referred to the Disciplinary Counsel for investigation and commencement of disciplinary proceedings.\\nIT IS FURTHER ORDERED that John N. Nentwick, a.k.a. John Norbert Nentwick, immediately cease and desist from the practice of law in any form and is hereby forbidden to appear on behalf of another before any court, judge, commission, board, administrative agency, or other public authority.\\nIT IS FURTHER ORDERED that, effective immediately, he be forbidden to counsel or advise, or prepare legal instruments for others or in any manner perform legal services for others.\\nIT IS FURTHER ORDERED that he is hereby divested of each, any, and all of the rights, privileges, and prerogatives customarily accorded to a member in good standing of the legal profession of Ohio.\\nIT IS FURTHER ORDERED that, pursuant to Gov.Bar R. X(3)(G), respondent shall complete one credit hour of continuing legal education for each month, or portion of a month of the suspension. As part of the total credit hours of continuing legal education required by Gov.Bar R. X(3)(G), respondent shall complete one credit hour of instruction related to ethics and professional responsibility, including instruction on substance abuse, for each six months, or portion of six months, of the suspension.\\nIT IS FURTHER ORDERED that respondent shall not be reinstated to the practice of law in Ohio until (1) respondent complies with the requirements for reinstatement set forth in the Supreme Court Rules for the Government of the Bar of Ohio; (2) respondent complies with this and all other orders issued by this court; (3) respondent complies with the Supreme Court Rules for the Government of the Bar of Ohio; and (4) this court orders respondent reinstated.\\nIT IS FURTHER ORDERED, sua sponte, by the court, that within ninety days of the date of this order, respondent shall reimburse any amounts that have been awarded by the Clients' Security Fund pursuant to Gov.Bar R. VIII(7)(F). It is further ordered, sua sponte, by the court that if, after the date of this order, the Clients' Security Fund awards any amount against the respondent pursuant to Gov.Bar R. VIII(7)(F), the respondent shall reimburse that amount to the Clients' Security Fund within ninety days of the notice of such award.\\nIT IS FURTHER ORDERED that on or before thirty days from the date of this order, respondent shall:\\n1. Notify all clients being represented in pending matters and any co-counsel of his suspension and his consequent disqualification to act as an attorney after the effective date of this order and, in the absence of co-counsel, also notify the clients to seek legal service elsewhere, calling attention to any urgency in seeking the substitution of another attorney in his place;\\n2. Regardless of any fees or expenses due him, deliver to all clients being represented in pending matters any papers or other property pertaining to the client, or notify the clients or co-counsel, if any, of a suitable time and place where the papers or other property may be obtained, calling attention to any urgency for obtaining such papers or other property;\\n3. Refund any part of any fees or expenses paid in advance that are unearned or not paid, and account for any trust money or property in his possession or control;\\n4. Notify opposing counsel in pending litigation or, in the absence of counsel, the adverse parties of his disqualification to act as an attorney after the effective date of this order, and file a notice of disqualification of respondent with the court or agency before which the litigation is pending for inclusion in the respective file or files;\\n5. Send all such notices required by this order by certified mail with a return address where communications may thereafter be directed to respondent;\\n6. File with the Clerk of this court and the Disciplinary Counsel of the Supreme Court an affidavit showing compliance with this order, showing proof of service of notices required herein, and setting forth the address where the affiant may receive communications; and\\n7. Retain and maintain a record of the various steps taken by respondent pursuant to this order.\\nIT IS FURTHER ORDERED that respondent shall keep the Clerk and the Disciplinary Counsel advised of any change of address where respondent may receive communications.\\nIT IS FURTHER ORDERED, sua sponte, that all documents filed with this court in this case shall meet the filing requirements set forth in the Rules of Practice of the Supreme Court of Ohio, including requirements as to form, number, and timeliness of filings.\\nIT IS FURTHER ORDERED, sua sponte,.that service shall be deemed made on respondent by sending this order, and all other orders in this ease, by certified mail to the most recent address respondent has given to the Attorney Registration Office.\\nIT IS FURTHER ORDERED that the Clerk of this court issue certified copies of this order as provided for in Gov.Bar R. V(8)(D)(1), that publication be made as provided for in Gov.Bar R. V(8)(D)(2), and that respondent bear the costs of publication.\"}"

ohio/11181883.json

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+"{\"id\": \"11181883\", \"name\": \"SANZONE v. CINCI. MORRIS PLAN BANK\", \"name_abbreviation\": \"Sanzone v. Cinci. Morris Plan Bank\", \"decision_date\": \"1924-02-25\", \"docket_number\": \"No. 2325\", \"first_page\": \"775\", \"last_page\": \"775\", \"citations\": \"2 Ohio Law Abs. 775\", \"volume\": \"2\", \"reporter\": \"The Ohio Law Abstract\", \"court\": \"Ohio Court of Appeals\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T21:34:11.236256+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SANZONE v. CINCI. MORRIS PLAN BANK\", \"head_matter\": \"No. 814\\nSANZONE v. CINCI. MORRIS PLAN BANK\\nOhio Appeals, 1st Dist., Hamilton County\\nNo. 2325.\\nFeb. 25, 1924\\n147. BILLS, NOTES AND CHECKS \\u2014 Trade acceptance held complete and regular on its face, negotiated before due, in good faith for value and properly indorsed.\\n54. BANKS AND BANKING \\u2014 Trad\\u00a9 acceptance not irregular and non-negotiable be-\\n\\u2022 clause maturity date exceeds 90 days of discount unless indorser has negotiated more than 20 per cent bank capital stock.\\n951. PRINCIPAL AND AGENT \\u2014 Evidence of agency by declaration of agent not admissible against principal.\\nAttorneys \\u2014 W. S. Little and M. F. Little, for Sanzone; Wm. R. Collins and Herbert F. Koch, for Cincinnati Morris Plan Bank.\", \"word_count\": \"528\", \"char_count\": \"3157\", \"text\": \"BUCHWALTER, J.\\nEpitomized Opinion\\nPublished Only in Ohio Law Abstract\\nThe Cincinnati Morris Plan Bank brought an action against Sanzone before a justice of the peace. Judgment was for the bank and appealed to the common pleas, and again the bank obtained judgment.\\nAction was brought for $100 and interest due on a trade acceptance as follows:\\n\\\"The Morris Plan Retail Trade Acceptance, Cincinnati, Sept. 30th, 1920. No. 64A429. July 30th, 1921, Pay to the Order of ourselves two hundred dollars ($200.00). The obligation of the acceptor hereof arises out of the purchase of goods from: the drawer.\\n\\\"The drawee may accept this bill payable at any bank, banker, or trust company in the United States which he may designate. To Mrs. Normia Sanzone, Queen City Music Shoppe, 5326 Main Ave. By J. H. Young, Norwood, O.\\\"\\nAcross the face of the trade accaptance is the following:\\n\\\"Accepted. Date, Sept. 30th, 1920. Payable at Cincinnati Morris Plan Bank.Loeation, Cincinnati, Ohio. Mrs. Norma Sanzone (Signature of Customer) '\\nEndorsement on back: \\\"Pay to the order of Cincinnati Morris Plan Bank. J. H. Young.\\\"\\nMrs. Sanzone alleges that the purchase was on open account, that J. H. Young induced her to execute the trade acceptance and also a chattel mortgage with the understanding that payments were to be made to said Young as they fell due and that said papers were to remain in Young's possession. She contended further that her husband had paid Young the full amount of the purchase price. That Young was the bank's agent and payment to him would be payment to the bank. That the trade acceptance was improperly admitted, being endorsed only by said Young, and the bank took it subject to all equities and defenses. That the instrument was not negotiable in that it mlatured more than 90 days after time of discount as provided by 710-124 GC. Affirming judgment of the common pleas, the Court of Appeals held:\\n1. The trade acceptance is complete and regular on its face, and was obtained by the bank before maturity, in good faith, for value and properly indorsed. The bank notified her to make payment to the bank.\\n2. Trade acceptances do not become irregular and non-negotiable by having a maturity date in excess of 90 days if the indorser has not negotiated acceptances or other negotiable paper in excess of 20 per cent of bank capital stock.\\n3. Evidence showing agency to be established by statements of alleged agent not admissible against principal.\"}"

ohio/111935.json

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+"{\"id\": \"111935\", \"name\": \"State ex rel. Nix v. Cleveland\", \"name_abbreviation\": \"State ex rel. Nix v. Cleveland\", \"decision_date\": \"1998-04-01\", \"docket_number\": \"98-68\", \"first_page\": \"1499\", \"last_page\": \"1499\", \"citations\": \"81 Ohio St. 3d 1499\", \"volume\": \"81\", \"reporter\": \"Ohio State Reports, Third Service\", \"court\": \"Supreme Court of Ohio\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T19:58:57.832536+00:00\", \"provenance\": \"CAP\", \"judges\": \"Pfeifer, Cook and Lundberg Stratton, JJ., would submit this cause to the court\\u2019s pilot mediation program.\", \"parties\": \"State ex rel. Nix v. Cleveland.\", \"head_matter\": \"98-68.\\nState ex rel. Nix v. Cleveland.\", \"word_count\": \"42\", \"char_count\": \"279\", \"text\": \"In Mandamus. On answer of respondents and sua sponte consideration of submission for mediation. Sua sponte, alternative writ granted.\\nPfeifer, Cook and Lundberg Stratton, JJ., would submit this cause to the court's pilot mediation program.\"}"

ohio/12532806.json

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+"{\"id\": \"12532806\", \"name\": \"State ex rel. Lundeen v. State Med. Bd. of Ohio\", \"name_abbreviation\": \"State ex rel. Lundeen v. State Med. Bd. of Ohio\", \"decision_date\": \"2018-06-27\", \"docket_number\": \"2018\\u20130263\", \"first_page\": \"445\", \"last_page\": \"445\", \"citations\": \"100 N.E.3d 445\", \"volume\": \"100\", \"reporter\": \"North Eastern Reporter 3d\", \"court\": \"Supreme Court of Ohio\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-27T21:02:22.194526+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"State ex rel. Lundeen\\nv.\\nState Med. Bd. of Ohio\", \"head_matter\": \"State ex rel. Lundeen\\nv.\\nState Med. Bd. of Ohio\\n2018-0263\\nSupreme Court of Ohio.\\nJune 27, 2018\\nCASE ANNOUNCEMENTS\\nMOTION AND PROCEDURAL RULINGS\", \"word_count\": \"38\", \"char_count\": \"241\", \"text\": \"In Mandamus and Prohibition. On request for findings of fact/conclusions of law. Request denied.\"}"

ohio/12533894.json

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+"{\"id\": \"12533894\", \"name\": \"SUGARCREEK AMISH TOURS, INC., Plaintiff-Appellant v. Donald Rodney MARTIN, et al., Defendant-Appellee\", \"name_abbreviation\": \"Sugarcreek Amish Tours, Inc. v. Martin\", \"decision_date\": \"2017-12-27\", \"docket_number\": \"No. 2017 AP 06 0016\", \"first_page\": \"1075\", \"last_page\": \"1080\", \"citations\": \"102 N.E.3d 1075\", \"volume\": \"102\", \"reporter\": \"North Eastern Reporter 3d\", \"court\": \"Court of Appeals of Ohio, Fifth District, Tuscarawas County\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-09-08T21:16:17.237805+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"SUGARCREEK AMISH TOURS, INC., Plaintiff-Appellant\\nv.\\nDonald Rodney MARTIN, et al., Defendant-Appellee\", \"head_matter\": \"SUGARCREEK AMISH TOURS, INC., Plaintiff-Appellant\\nv.\\nDonald Rodney MARTIN, et al., Defendant-Appellee\\nNo. 2017 AP 06 0016\\nCourt of Appeals of Ohio, Fifth District, Tuscarawas County.\\nDATE OF JUDGMENT: December 27, 2017\\nROBERT R. STEPHENSON II, Stephenson, Stephenson & Carrothers, 206 West High Avenue, New Philadelphia, Ohio 44663, For Plaintiff-Appellant\\nJ. KEVIN LUNDHOLM, Kyler, Pringle, Lundolm & Durmann, L.P.A., 405 Chanuncey Avenue, N.W., P.O. Box 668, New Philadelphia, Ohio 44663, For Defendant-Appellee Rhonda C. Martin\\nJUDGES: Hon. John W. Wise, P.J., Hon. Craig R. Baldwin, J., Hon. Earle E. Wise, J.\", \"word_count\": \"2101\", \"char_count\": \"12717\", \"text\": \"Baldwin, J.\\n{\\u00b6 1} Appellant, Sugarcreek Amish Tours, Inc. appeals the trial court's May 24, 2017 decision to quash a subpoena served upon Huntington National Bank requesting production of the checking account records of Rhonda C. Martin. Appellee is Rhonda C. Martin.\\nSTATEMENT OF THE FACTS AND THE CASE\\n{\\u00b6 2} This case began with Appellant's complaint to recover loan proceeds. Appellant filed a complaint on April 2, 2016 alleging Donald Rodney Martin (former spouse of Appellee), Donal Enterprises, Inc. and PRP Railroad Construction & Supply, LLC defaulted on loan obligations, and that the Defendants, including Appellee, were unjustly enriched. On June 4, 2016, Appellee and PRP Railroad Construction & Supply, LLC filed a motion to dismiss the complaint pursuant to Civ.R. 12(B)(6). On June 12, 2016 Appellant filed a notice of dismissal of Appellee and PRP Railroad Construction & Supply, LLC without prejudice. After a bench trial on June 28, 2016, the trial court found that defendant Donald Ronald Martin was legally obligated to pay Appellant $4,879,555.46. The pending claim against defendant Donal Enterprises, Inc. was severed for a separate bench trial.\\n{\\u00b6 3} In pursuit of collection of the judgment against Mr. Martin, Appellant obtained and recorded certificates of judgment and filed a motion requesting an order compelling a judgment debtor exam. The request for a judgment debtor exam was granted but the results of the exam are not part of the record. In furtherance of its collection efforts, on April 4, 2017, Appellant issued the following subpoenas:\\n{\\u00b6 4} 1. To J.P. Morgan Chase Bank for checking account records for PRP Rail Construction, LLC from February 1, 2015 through December 31, 2015;\\n{\\u00b6 5} 2. To Huntington Bank for checking account records for Rhonda C. Martin for March 1, 2014 through December 31, 2015;\\n{\\u00b6 6} 3. To Farmers National Bank for checking account records for Donald R. Martin and/or Rhonda C. Martin from September 1, 2014 through December 31, 2015;\\n{\\u00b6 7} 4. To Farmers National Bank for checking account records for Donal Enterprises, Inc. dba DM Enterprises, from December 1, 2013 through December 31, 2015.\\n{\\u00b6 8} On April 19, 2017, Appellee filed a motion to quash the subpoena to Huntington National Bank, claiming that the records sought were personal and private and disclosure should not be permitted. She also claimed that because she was no longer a party and because the statute of limitations had expired for any claims against her, the discovery of these records should not be permitted.\\n{\\u00b6 9} On April 28, 2017, Appellant filed a memorandum opposing the motion to quash, contending that the records were discoverable pursuant to Civ.R. 69 and were a critical part of Appellant's effort to track the funds loaned to Donald R. Martin.\\n{\\u00b6 10} An oral hearing regarding the motion to quash occurred on May 1, 2017, but the record does not contain a transcript of that hearing. On May 2, 2017, the trial court issued a Judgment Entry scheduling the final disposition of the pending motion and granted leave to Appellee to file a Reply Memorandum on or before 4:30 pm on May 19, 2017.\\n{\\u00b6 11} On May 24, 2017, the trial court sustained Appellee's Motion and issued an entry quashing the subpoena to Huntington National Bank. The Court found:\\n.that after thorough consideration of the legal positions of Plaintiff and former party Rhonda C. Martin pertaining to the 4/4/2017 subpoena filed by plaintiff seeking the personal checking account records of former party Rhonda C. Martin at the Huntington National Bank, the 4/19/2017 motion to quash subpoena should be granted.\\n{\\u00b6 12} From this Judgment Entry, Appellant, Sugarcreek Amish Tours, Inc., appeals and submits a single assignment of error:\\nASSIGNMENT OF ERROR\\n{\\u00b6 13} THE TRIAL COURT ERRED IN QUASHING APPELLANT'S APRIL 4, 2017, SUBPOENA ISSUED TO HUNTINGTON NATIONAL BANK FOR RHONDA C. MARTIN'S CHECKING ACCOUNT RECORDS.\\nSTANDARD OF REVIEW\\n{\\u00b6 14} This Court's standard of review of a trial court's decision on a motion to quash a subpoena is the abuse of discretion standard. State ex rel. The V. Companies v. Marshall , 81 Ohio St.3d 467, 692 N.E.2d 198 (1998). The Supreme Court of Ohio has held the term abuse of discretion implies the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). When applying this abuse of discretion standard, this court may not substitute our judgment for that of the trial court. Pons v. Ohio State Med. Board , 66 Ohio St.3d 619, 614 N.E.2d 748 (1993).\\n{\\u00b6 15} \\\"Decisions are unreasonable if they are not supported by a sound reasoning process.\\\" AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). \\\"The term \\\"arbitrary,\\\" in this context, means without adequate determining principle and governed by no fixed rules or standard. See Sandusky Properties v. Aveni, 15 Ohio St.3d 273, 275, 15 OBR 408, 409-410, 473 N.E.2d 798, 800-801 (1984).\\\" D.G.M., Inc. v. Cremeans Concrete & Supply Co. , 111 Ohio App.3d 134, 141, 675 N.E.2d 1263 (4th Dist.1996). With these definitions in mind, we review the record to determine if the trial court abused its discretion.\\n{\\u00b6 16} Appellant issued several subpoenas as a part of its effort to collect a judgment of over four million dollars against Donald R. Martin. Civ.R. 69 specifically authorizes the issuance of the subpoenas to discover information in aid of execution. That rule states in relevant part that \\\"[i]n aid of the judgment or execution, the judgment creditor or his successor in interest when that interest appears of record, may also obtain discovery from any person, including the judgment debtor, in the manner provided in these rules.\\\" Appellee does not contend that this rule does not apply to Appellant's efforts.\\n{\\u00b6 17} Appellee argues that because she is no longer a party to the lawsuit and because any claim against her is barred by the applicable statute of limitations, Appellant must not be permitted to obtain her checking account records from Huntington National Bank. Appellee cites no authority for her position.\\n{\\u00b6 18} The Civil Rules do not support Appellee's limitations on Appellant's ability to obtain information. \\\"[T]he scope of discovery is broad and includes \\\" any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party .\\\" In re Estate of Geneva , 5th Dist. Tuscarawas No. 2016 AP 02 0013, 2016-Ohio-5382, 2016 WL 4362862, \\u00b6 15, appeal not allowed, 148 Ohio St.3d 1411, 2017-Ohio-573, 69 N.E.3d 751, \\u00b6 15. Further, we have addressed a similar situation and found that:\\nThe plain language of Civ.R. 69 clearly permits discovery, from any person, in aid of executing on a judgment and is not limited to the judgment debtor. Therefore, the fact that Whitey's, Inc. and TFS Management, Inc. were not parties to the litigation does not exempt these entities from discovery under Civ.R. 69. Also, the fact that Appellant Schluter was found not personally liable for the acts of Whitey's, Inc. of Shelby is also irrelevant for purposes of discovery under this rule.\\nSchluter v. PSL Motors, Inc., 5th Dist. Richland No. 99 CA 67, 2000 WL 964965, *2 (Jun. 29, 2000).\\n{\\u00b6 19} Further, \\\"This Court has previously held that Civil Rule 45 allows subpoenas to be issued to nonparties.\\\" In re Estate of Geneva, supra , at \\u00b6 16.\\n{\\u00b6 20} Consequently, we find that Appellee's argument regarding the statute of limitations and her status as a non-party are irrelevant and cannot serve as a basis for the trial court to quash the subpoena.\\n{\\u00b6 21} The trial court did not describe its analysis of the facts before it or how it came to its decision to quash the subpoena. For that reason, we have reviewed the record and considered the application of the requirements of Civ.R. 45 to determine if there is any reasonable, non-arbitrary support for the trial court's holding.\\n{\\u00b6 22} The grounds for quashing a subpoena are described in Civ.R. 45(C) :\\n(3) On timely motion, the court from which the subpoena was issued shall quash or modify the subpoena, or order appearance or production only under specified conditions, if the subpoena does any of the following:\\n(a) Fails to allow reasonable time to comply;\\n(b) Requires disclosure of privileged or otherwise protected matter and no exception or waiver applies;\\n(c) Requires disclosure of a fact known or opinion held by an expert not retained or specially employed by any party in anticipation of litigation or preparation for trial as described by Civ.R. 26(B)(5), if the fact or opinion does not describe specific events or occurrences in dispute and results from study by that expert that was not made at the request of any party;\\n(d) Subjects a person to undue burden.\\n{\\u00b6 23} Appellee cites Civ.R. 45 as grounds for her motion, but she does not argue that she was not allowed reasonable time to comply with the subpoena or that the subpoena is related to facts or opinions held by an expert. She cannot argue that it subjects her to an undue burden because the subpoena was not issued to her, but was directed to Huntington National Bank who would be obligated to collate and provide the records at Appellant's cost ( R.C. 9.02 ). The only possible basis for quashing the subpoena pursuant to Civ.R. 45 is that it seeks production of \\\"privileged or otherwise protected matter and no exception or waiver applies.\\\"\\n{\\u00b6 24} Generally, \\\"[t]he burden to show that testimony or documents are confidential or privileged is on the party seeking to exclude the material.\\\" Grace v. Mastruserio , 182 Ohio App.3d 243, 2007-Ohio-3942, 912 N.E.2d 608, \\u00b6 19 (1st Dist.), citing Lemley v. Kaiser , 6 Ohio St.3d 258, 263-264, 452 N.E.2d 1304 (1983).\\n{\\u00b6 25} Appellee asserts that the information is private and confidential but offered no authority to establish that the information sought by the subpoena was \\\"privileged or otherwise protected.\\\" Neither the Revised Code nor any relevant case law supports a finding that bank records are privileged and nothing within the case record shows that they are otherwise protected. Tisco Trading USA, Inc. v. Cleveland Metal Exchange, Ltd. , 8th Dist. Cuyahoga No. 97114, 2012-Ohio-493, 2012 WL 425871, \\u00b6 10.\\n{\\u00b6 26} Further, these records are likely to lead to the discovery of admissible evidence. Appellant holds a judgment in excess of four million dollars against Appellee's former spouse. Appellee signed two checks sent to Appellant in payment of that debt in the amounts of $100,000.00 and $300,000.00 and finally, Appellee has been the subject of litigation by one of the parties in this action in which it was alleged that loan proceeds were transferred to her. (Trial Brief of Defendant, Donal Enterprises, Inc., page 1-2, filed in this case on March 1, 2017). Under the circumstances, it is likely the records will provide some relevant information regarding disposition of loan proceeds or other relevant evidence. The fact that she is no longer a party and may be protected from claims by the statute of limitations is irrelevant and shall not be used as a shield to prevent Appellant from exhausting options to track the funds loaned to Donald R. Martin.\\n{\\u00b6 27} The trial court considered this record and quashed the subpoena without memorializing its reasoning process or citing the rule or determining principle that supported its conclusion. Since the trial court did not give a reason for granting the motion, and we find no support for granting it, we hold that the court abused its discretion. Jamestown Village Condo. Owners Assn. v. Mkt. Media Research, Inc. , 96 Ohio App.3d 678, 695, 645 N.E.2d 1265 (8th Dist.1994).\\n{\\u00b6 28} Consequently, the decision of the Tuscarawas Court of Common Pleas is reversed and this matter is remanded to the Court for further proceedings consistent with this decision.\\n{\\u00b6 29} Costs are assessed to Appellee.\\nJohn Wise, P.J., and Earle Wise, J., concur.\"}"

ohio/12548691.json

@@ -0,0 +1 @@
+"{\"id\": \"12548691\", \"name\": \"CLARKWESTERN DIETRICH BLDG. SYS., L.L.C. v. CERTIFIED STEEL STUD ASSN., INC.\", \"name_abbreviation\": \"Clarkwestern Dietrich Bldg. Sys., L.L.C. v. Certified Steel Stud Assn., Inc.\", \"decision_date\": \"2018-01-31\", \"docket_number\": \"2017\\u20130858\", \"first_page\": \"948\", \"last_page\": \"948\", \"citations\": \"90 N.E.3d 948\", \"volume\": \"90\", \"reporter\": \"North Eastern Reporter 3d\", \"court\": \"Supreme Court of Ohio\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-27T21:02:56.882594+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"CLARKWESTERN DIETRICH BLDG. SYS., L.L.C.\\nv.\\nCERTIFIED STEEL STUD ASSN., INC.\", \"head_matter\": \"CLARKWESTERN DIETRICH BLDG. SYS., L.L.C.\\nv.\\nCERTIFIED STEEL STUD ASSN., INC.\\n2017-0858\\nSupreme Court of Ohio.\\nJanuary 31, 2018\\nCASE ANNOUNCEMENTS\\nAPPEALS NOT ACCEPTED FOR REVIEW\", \"word_count\": \"33\", \"char_count\": \"235\", \"text\": \"O'Donnell, J., dissents.\\nO'Neill, J., not participating.\"}"

ohio/1368247.json

@@ -0,0 +1 @@
+"{\"id\": \"1368247\", \"name\": \"The State, ex rel. Bartlett, Pros. Atty., Appellee, v. The Buckeye State Bldg. & Loan Co., Appellant\", \"name_abbreviation\": \"State ex rel. Bartlett v. Buckeye State Bldg. & Loan Co.\", \"decision_date\": \"1940-11-07\", \"docket_number\": \"\", \"first_page\": \"334\", \"last_page\": \"349\", \"citations\": \"67 Ohio App. 334\", \"volume\": \"67\", \"reporter\": \"Ohio Appellate Reports\", \"court\": \"Ohio Court of Appeals\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T21:49:10.927490+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hornbbck, P. J., and Barnes, J., concur.\", \"parties\": \"The State, ex rel. Bartlett, Pros. Atty., Appellee, v. The Buckeye State Bldg. & Loan Co., Appellant.\", \"head_matter\": \"The State, ex rel. Bartlett, Pros. Atty., Appellee, v. The Buckeye State Bldg. & Loan Co., Appellant.\\n(Decided November 7, 1940.)\\nMr. Ralph J. Bartlett, prosecuting attorney, and Mr. R. P. Barnhart, for appellee.\\nMessrs. Wilson \\u00e9 Rector, for appellant.\", \"word_count\": \"4731\", \"char_count\": \"27454\", \"text\": \"Geiger, J.\\nThis case is before this court on an appeal on questions of law from a judgment of the Court of Common Pleas against the respondent for the sum of $11,098.50 alleged by the prosecuting attorney to have been illegally paid by the county treasurer to the respondent in repayment of penalties on certain property on which there had been a default in the payment of taxes.\\nThe petition sets out 15 different causes, each claiming a separate sum due the county on account of the refund of the penalty to the respondent on separate parcels of real estate. The payments by the respondent into the county treasury were by the official act of the sheriff who, upon the sale of property upon which the respondent held a mortgage, paid into the county treasury the taxes due, whether delinquent or current and the penalties that had been assessed for the nonpayment of taxes as the same became due. While the respondent did not, as a corporation, pay the penalties into the county, the same were paid by the sheriff out of the money that otherwise would have been distributed to the respondent.\\nThe amended petition sets up the official character of the relator and states that he brings the action under the authority of Section 2921, General Code.\\nIt is alleged that on the 30th day of March 1933, the General Assembly passed Senate Bill No. 42 (115 Ohio Laws, 161), commonly known as- the Whittemore Act, which was approved by the Governor and after-wards was amended at various times as alleged in the petition, the last amendment thereof being Senate Bill No. 359 (116 Ohio Laws, pt. 2, 14).\\nIt is alleged that Senate Bill No. 359, by Section 1 thereof provides, in substance, that any person required by law to pay real property taxes and assessments which have become delinquent prior to the September settlement of 1935, or any person holding a lien on such property may, at any time prior to the 31st day of December 1936, elect to pay the principal sum of such delinquent taxes and assessments except that no such person shall be entitled to make such election unless all taxes and penalties for the year 1935 have been paid in accordance with the provisions of Section 2653, General Code, \\\"provided that in case a penalty and interest has been paid on account of delinquent taxes and/or assessments, for the first or second half of the year 1934, such penalty shall be refunded on order of the county auditor directed to the county treasurer provided the principal sum of such taxes and assessments is paid prior to the thirty-first day of December, 1936.\\\"\\nThe allegations as to the 15 separate causes of action are substantially the same with some variations which we will note. We will epitomize the first cause of action and also state any other additional pertinent matters appearing in the other causes of action. The first cause of action is to the effect that the auditor executed a voucher under Senate Bill No: 42 to the respondent drawn upon the treasurer in the amount named; that th\\u00e9 check issued by the treasurer bore the notation, \\\"refund of taxes overpaid\\\"; that such check was paid by the treasurer; that the amount thereof represented the refund made under color of Senate Bill No. 42 of penalty charges on real property paid through the sheriff's offic'e by the order of the court, for moneys arising from the proceeds of judicial sales; that such refunding whs not provided for in Senate Bill No. 42; and that that bill was not in,force on the date of the refunding check.\\nThe second cause of action relates to a like transac tion, being a penalty refund under Senate Bill No. 359. It is alleged that Senate Bill No. 359, in so far as it attempted to confer upon county auditors tbe authority to make a refund of penalties paid on delinquent taxes, is unconstitutional, and that such refunds were made without authority of law.\\nThe subsequent causes of action are in identical language, but relate to different payments. In the 15th cause of action it is further stated that the Whittemore Acts suspended the operation of Section 5678, General Code, long in force in Ohio, which provided for a charge against the property of certain penalties and interest when taxes were delinquent.\\nIt is further asserted that the Whittemore Acts suspended the operation of Section 2657, General Code, long in force in Ohio, also relating to the charge of taxes and penalties against delinquent property.\\nIt is further asserted in the 15th cause of action that the Whittemore Acts are and were void and discriminatory and in contravention of Section 26, Article II of the Ohio Constitution, and were retroactive and in conflict with Section 28, Article II, and that the refunds were unauthorized. It is asserted that the total amount drawn from the treasury by the respondent is $11,-098.50 for which judgment is asked.\\nA demurrer filed to the petition was overruled in part and sustained in part. By an entry the relator was granted leave to amend the amended petition by inserting as the last paragraph in the first cause of action a statement to the effect that if the payment was made by virtue of Senate Bill No. 359, that bill is unconstitutional and void and the refund made without authority of law, and by adding to the 9th and 15th causes of aetion a paragraph to like effect.\\nA demurrer filed to the amended petition as amended was overruled;'\\nThereupon an answer to the amended petition as amended was filed, the first defense of which made certain admissions and alleged that the General Assembly-enacted Senate Bill No. 42, which was later amended and its application extended, and enacted Senate Bill No. 359; and that Senate Bill No. 42 made no provisions for refund of penalty.\\nThe respondent denied that the payment to it represented a refund under the authority of Senate Bill No. 42, and alleged that it was made under authority of Senate Bill No. 359.\\nFor answer to all the other causes of action the respondent denied that the payments or refunds were made without authority of law, and further denied in answer to the 15th cause of action that the Whittemore Acts are void, and that the refunds made to the respondent were unauthorized; or that any part thereof was paid to the respondent without authority.\\nAs a second defense it is alleged that all the payments made to the respondent as alleged in the several causes of action were made by the county auditor upon the advice and direction of the prosecuting attorney with the approval of the Bureau of Inspection and under and by virtue of Senate Bill No. 359, \\\"and before said Senate Bill had been declared to be unconstitutional by the judgment of any court. \\\" It is alleged that the payments were voluntarily made by the officials of Franklin county without any mistake of fact and without any duress or fraud, and are not recoverable by the relator for the benefit of the county. It is further alleged that the relator is estopped to claim that such payments were illegally made or to maintain an action thereon.\\nThe relator demurred to the answer and the court found the demurrer well taken and sustained the same, and, the respondent not desiring to plead further, it was ordered that the relator recover a judgment against the respondent in the sum of $11,098.50.\\nAn appeal was properly taken from the action of the court below to this court.\\nErrors are assigned to the effect that the court below erred in sustaining the demurrer to the answer of the respondent; in rendering judgment against the respondent, and in holding the payments made to the company were not voluntary; that the court erred in holding these payments were made under a statute which at the time did not authorize the same; and that the court erred in holding these payments were illegally made to the company and the county officials were not justified in making such payments. The court below, in sustaining the demurrer of the relator to the answer, filed an opinion covering the matters in controversy. This opinion is before us, and we have read the same with interest. The respondent takes the position that the refunds alluded to were legally made under a then valid statute, before any court had held the statute to be unconstitutional; that the payments were voluntary, and made without any mistake of fact and without any duress; and that the county had full consideration for the refunds in that the purpose for which the law was enacted, to wit, early payments, had been realized and the county had been benefited. It is pointed out by the respondent that the act, presumed to be constitutional, imposed a duty upon the officials to make the refunds and they were all made in pursuance of the act; that there was no mistake of law and the officers were not under a misapprehension as to the law; that they had the advice of the prosecuting attorney and the approval of the Bureau of Inspection which they followed ; that there was no mistake of fact; and that the purpose of the legislation was to meet the moral obligation to equalize the rights of taxpayers. It is asserted that the officers might have raised the question as to the validity of the act before the refunds were paid, but did not do so. Counsel urge that the statute was valid prior to a judicial determination to the contrary, citing, among other cases, State v. Gardner, 54 Ohio St., 24, 42 N. E., 999, 31 L. R. A., 660; City of Mt. Vernon v. State, 71 Ohio St., 428, 73 N. E., 515; and State, ex rel. Cline, v. Vail, 84 Ohio St., 399, 95 N. E., 911. Counsel draw the conclusion that the county officials rightly felt themselves to be bound by the statute commanding them-to make refunds, that, when they made refunds before the validity of the law had been questioned, they were not to be charged with having made an illegal payment, and that, if they did make a mistake in treating the law as constitutional, the payments were made under a then valid section. Counsel quote 31 Ohio Jurisprudence, 212, Section 134, to the effect that the rule is that money voluntarily paid under a claim of right to the payment, and with knowledge of the facts; can not be recovered back on the ground that the claim was illegal, although the payer expressly reserves his-right to litigate his claim.\\nIt is urged that the county auditor could have refused to pay the refund and could have defended on the ground that the act was unconstitutional, and not having done so he was, in his opinion, acting pursuant to the authority of a valid statute. It is asserted that parties may so conduct themselves with respect to the subject of unconstitutional legislation that they are estopped to deny its binding character. It is also asserted that the defense of \\\"voluntary payment\\\" is available against the county. Citing, City of Marietta v. Slocomb, 6 Ohio St., 471.\\nCounsel cite other cases and authorities, among them. 15 Corpus Juris, 662, Section 374, and Blumenthal v. United States, 4 F. (2d), 808, and maintain that under these authorities the court below erred in sustaining the demurrer to the answer setting up the defense of voluntary payment.\\nCounsel discuss at length the case of Vindicator Printing Co. v. State, 68 Ohio St., 362, 67 N. E., 733; and State, ex rel. Hunt, v. Fronizer, 8 C. C. (N. S.), 216, 18 C. D., 709, which case was further considered by the Supreme Court in State, ex rel. Hunt, v. Fronizer, 77 Ohio St., 7, 82 N. E., 518. Counsel also cite Thomas v. State, ex rel. Gilbert, 76 Ohio St., 341, 81 N. E., 437, claiming that that case is in perfect analogy to the case at bar. Counsel point out the distinction that they claim can be made between the payment of taxes and of penalties.\\nCounsel for relator file a brief in which they- seek to answer the argument of respondent and to justify the judgment of the court below. \\u2022\\nThe narrow question is whether the prosecuting- attorney may, by virtue of the authority conferred upon him by Section 2921, General Code, recover from the respondent the penalties which were refunded under the provisions of an act of the Legislature which, at.the-time of the refund, had not been declared unconstitutional, but was thereafter so held.\\nSection 2921, General Code, enacted for the protection of public funds, provides, -in substance, so far .as.it relates to the case at bar, that, upon being satisfied that public moneys have been illegally drawn from the treasury, the prosecuting attorney may apply by \\u2022civil-action to recover the public moneys so illegally drawn.\\nThere seems to be no contention between the parties as to the unconstitutionality of that part of Section 1 of Senate Bill No. 359, which provides that in case a. penalty and interest has been paid on account of delinquent taxes such penalty shall be refunded on order of the county auditor directed.to. the county treasurer,provided the principal sum of the taxes and assessment; is paid prior to the 31st day of December 1936. . .\\nIn the case of State, ex rel. Crotty, v. Zangerle, Aud., 133 Ohio St., 532, 14 N. E. (2d), 932, the court had under consideration, the constitutionality .of Section-. 2590-1, General Code, providing that whenever any penalty is paid and is afterwards abrogated by the Legislature, and such penalty paid between June 1930 and January 1937 is remitted and abrogated, and upon application to the \\u00e1uditor before the first of January 1940 such penalty shall be refunded on the order of the county auditor directed to the county treasurer. There are many matters of interest discussed by the court, among them being that penalties and interest, after collection, are to be considered and treated as taxes, the court stating on page 538:\\n\\\"Clearly interest and penalties upon delinquent taxes must be considered as part of the taxes for the purpose of solving the question here presented. Hence the decision in the Rosche case [50 Ohio St., 103, 33 N. E,. 408, 40 Am. St. Rep., 653, 19 L. R. A., 584] requires this court to hold that the statute involved in the instant case is retroactive in its nature and therefore violative of Section 28 of Article II of the Constitution of Ohio.\\n\\\"Likewise this court is of the opinion that this statute is patently repugnant to the equal protection clauses of Section 2 of Article I of the Constitution of Ohio and Section 1 of Article XIV of the Amendments to the Constitution of the United States.\\\"\\nIn the case of State, ex rel. Outcalt, Pros. Atty., v. Guckenberger, 134 Ohio St., 457, 17 N. E. (2d), 743, it is held that the provisions of the Whittemore Acts which authorize the remission of the penalties, interest and other charges on unpaid delinquent taxes, when payment of taxes is made within a prescribed time, are valid and not in contravention of the state and federal Constitutions.\\nThe opinion by Williams, J., states on page 461:\\n\\\"This court is of the opinion that no constitutional rights are contravened by the Whittemore Acts insofar as they undertake to remit penalties, interest and charges. In this respect those acts do not violate Section 26 of Article II of the Ohio Constitution, ; nor Section 2 of Article XII * # * which requires taxation of real estate by uniform rule, for the reason that they concern not taxation or even the collection of taxes but the remission of penalties, interest and charges; nor the equal protection clauses of the state and federal Constitutions for the reason they are not discriminatory but apply to all of one class, namely, delinquent taxpayers who have not paid their taxes, and the classification is not unreasonable nor arbitrary . nor gection 28, Article II which forbids the General Assembly to pass retroactive laws, for the reason that the acts are prospective in character \\u2014 they do not interfere with vested rights acquired under existing laws, impose a new duty, attach a new disability, or create a new obligation with respect to transactions or considerations already past . \\\"\\nWilliams, J., on page 463, states that it is urged that the position taken by the court is inconsistent with State, ex rel. Crotty, v. Zangerle, Aud., supra, in which the court held unconstitutional the amended Ogrin Act which provided for the refund of penalties. Williams, J., points out that in that case it was held that penalties which had been paid in discharging tax obligations became a part of the taxes collected and were distributed to the subdivisions of the state, and that after payment into the public treasury, they could not be refunded through legislative enactment. The judge points out that there is a distinction, in that penalties, interest and charges, when commingled with taxes in a common fund as a result of collection, are taxes so far as the power of the General Assembly to pass legislation for their refund is concerned, but before collection are not.\\nIn speaking of the Whittemore Acts on page 465, it is stated that:\\n\\\"That part of the enactment provides for a refund of a penalty already paid and is therefore invalid and unconstitutional under the pronouncement in State, ex rel. Crotty, v. Zangerle, Aud., supra, but since the part quoted may be separated from the other provisions their validity is not affected thereby.\\n\\\"In our judgment the Whittemore Acts (except insofar as they provide for refund of penalties) constitute a valid exercise of legislative power and are constitutional. ' '\\nA question that may engage our attention is whether an unconstitutional act has validity from the date of its passage until it is declared unconstitutional, or whether it is void ab initio. There seems to be some doubt upon the part of counsel upon this question. While we have not been cited to any case directly passing upon this point, we find it incidentally referred to in several cases.\\nIn the case of State, ex rel. Cline, v. Vail, supra, the opinion is by Shauck, J. We may quote some of his observations:\\nPage 405: \\\"No controversy exists respecting the proposition that an unconstitutional law is in legal contemplation inoperative as though it had not been passed.\\\"\\nPage 406: \\\"The adjudication that the act was unconstitutional only declared that that was its character. Its character had been fixed from the time it was enacted. ' '\\nIn Thomas v. State, ex rel. Gilbert, supra, it is said on page 361, after speaking of the invalidity of an unconstitutional act:\\n\\\"Upon principle this doctrine may be regarded as entirely consistent with the commonly accepted doctrine that an unconstitutional act of the Legislature is not a law but a nullity. It is in accordance with the general rule that all who assume the validity of legislation do so at their peril. As to them, contracts pur porting to be authorized by void legislation have no obligation to be impaired by judicial decisions which apply to them the tests prescribed by the Constitution. ' '\\nThere is, however, a line of cases which are of interest in that they hold that under certain conditions one may not be heard to deny the constitutionality of a law affecting a contract. As touching this matter we cite State, ex rel. Hunt, v. Fronizer, supra, which holds that the statute which authorizes the prosecuting attorney to bring an action to recover back money does not authorize the recovery of money paid on the county commissioners' bridge contract fully executed but rendered void from the inadvertent omission of a proper certificate, there being no claim of unfairness or extortion nor any claim of an effort to put the contractor in statu quo by the return of the bridge, etc.\\nSpeer, J., on page 16, after holding that the money could not be recovered, states:\\n\\\"This court is of the opinion that such recovery is not authorized. The principle applicable to the situation is the equitable one that where one has acquired possession of the property of another through an unauthorized and void contract, and has paid for the same, there can be no recovery back of the money paid without putting, or showing a readiness to put, the other party in statu quo, ,\\\"\\nOn page 17 it is stated:\\n\\\"It does not appear that it was the intention to deprive a party who has dealt with the county honestly, and in good faith, of any legitimate defense or to impose upon the court any duty to ignore the well-established rules of jurisprudence and adjudge in favor of the plaintiff upon his application whether such demand violates fundamental principles of law or not. ' '\\nCity of Mt. Vernon v. State, supra, is to the effect that where a municipal corporation has entered into a contract under a statute which, is unconstitutional and the facts against the corporation are such as would estop an individual from setting up a defense of the unconstitutionality of the statute, the municipal corporation will also be so estopped.\\nIn State, ex rel. Cline, v. Vail, supra, it is held that a party may assert that an unconstitutional act is a nullity, unless his conduct with reference to the subject of the act has been such that to permit the assertion would place his adversary in a less favorable position than he would have occupied had the act not been passed.\\nIn Thomas v. State, ex rel. Gilbert, supra, it is held that the Supreme Court having affirmed the constitutional validity of the legislative act passed to authorize contracts, and such contract having been entered into and services performed towards its execution, the party performing them, notwithstanding the Supreme Court's subsequent decision that the act is constitutionally void, is entitled to receive the stipulated compensation for such services as he has performed before the filing of the petition in the action which challenged the validity of such contract.\\nOn page 362 it is said in substance by Shauck, C. J., that contracts executed under favor of acts which the highest court has declared valid are themselves valid as against subsequent decisions to the contrary, though the acts may not be valid.\\nA party may assert the nullity of the law unless his conduct in reference to the subject of the act would place the other party in a less favorable position than he would have occupied if the act had not been passed.\\nIt is further claimed that the relator is estopped from asserting the unconstitutionality of the act because he received into the. county treasury the taxes which it was the purpose of the unconstitutional portion of the act to promote, and that therefore the county treasury had received a benefit which prevents the recovery on account of its unconstitutionality. But what detriment has inured to the respondent by virtue of the payment of the taxes and the penalty out of a fund received by sheriff in a foreclosure proceeding? Under the statute, the respondent, being a lienholder, could have come forward and paid the back taxes and saved the penalty, but it did not see fit to do so. It waited until it chose to foreclose its lien and then paid the penalty by virtue of the order of the court and the act of the sheriff. It has no moral claim against the county by virtue of any act done by it.\\nIn State, ex rel. Cline, v. Vail, supra, it is said at the bottom of page 406:\\n\\\"Nor can it be governed by the doctrine of estoppel which requires that the party by whom it is asserted shall have sustained some detriment by reason of the conduct or representation of him against whom the estoppel is invoked. ' '\\nUntil the respondent can plead and show that it suffered some detriment, not by reason of the payment by the sheriff to the county treasurer of the penalty, but by the repayment by the county treasurer of the penalty to the respondent, there can be no claim made that the respondent sustained some detriment by reason of the payment by the sheriff, as that has nothing to do with the claimed right to recover now asserted by the prosecuting attorney. The judgment against the respondent is to recover back money wrongfully paid by the treasurer. Certainly it can not be asserted that the respondent sustained any detriment by reason of the fact that the county treasurer paid to it money to which it was not entitled.\\nThe respondent relies upon its second defense which is to the effect that the money was paid voluntarily without duress and in full possession of all the facts but simply through a mistake of law. The court below held that the county treasurer could not he held to make a voluntary illegal payment which would prevent the recovery of the money. The statute itself under which the prosecuting attorney is proceeding is based upon his conviction that public moneys have been illegally drawn from the county treasury. If he is so satisfied he has a right to bring the action, there is no exception depriving him of this right, if the money were voluntarily paid under a mistake of law.\\nLet us visualize the matter as it actually occurred. The respondent had a mortgage lien upon certain real estate upon which there were delinquent taxes which gave rise to the imposition of certain penalties. The respondent then proceeded to foreclose and out of the purchase money the sheriff paid into the county treasury the taxes and penalties. The penalties were commingled with the taxes and distributed to those subdivisions entitled thereto. When money reaches the treasury there is but one key that will unlock the door of the safe and permit its legal distribution. Section 2674, General Code, provides that no money shall be paid from the county treasury except on the warrant of the county auditor, with certain exceptions. Therefore, before the treasurer can legally pay out the money it must be upon the voucher or a warrant of the auditor.\\nSection 2570, General Code, provides that the county auditor shall issue warrants on the treasurer for all moneys paid from such treasury, upon presentation of the proper order or voucher therefor. He shall not issue a warrant for the payment of any claim against the county unless allowed by the county commissioners, except where the amount due is fixed by law or is allowed by an officer or tribunal authorized by law to do so.\\nThe statute now in question provides: \\\"Such penalty shall be refunded on order of the county auditor directed to the county treasurer. ' '\\nBut this provision of the section is unconstitutional and void and had no validity from the beginning; therefore the county auditor could not issue Ms warrant to the county treasurer to pay the money to the respondent. There would then be no way to get the money out of the treasury in view of the unconstitutionality in the provision, except on the allowance by the county commissioners as provided by Section 2570, Q-eneral Code. The county commissioners, of course, took no part in the refund, and the auditor could not issue the warrant because his authority was invalid. It must follow that the money did not legally leave the treasury, and this aside from the fact that the statute permits the prosecuting attorney to bring an action under certain circumstances.\\nWe therefore reach the conclusion that the court below committed no error when it overruled the demurrer to the respondent's answer and rendered judgment in favor of the county.\\nThe judgment is affirmed and the cause remanded.\\nJudgment affirmed.\\nHornbbck, P. J., and Barnes, J., concur.\"}"

ohio/1372949.json

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+"{\"id\": \"1372949\", \"name\": \"Krisher, Appellant, v. McAllister, Appellee, et al.\", \"name_abbreviation\": \"Krisher v. McAllister\", \"decision_date\": \"1942-06-11\", \"docket_number\": \"No. 2041\", \"first_page\": \"58\", \"last_page\": \"64\", \"citations\": \"71 Ohio App. 58\", \"volume\": \"71\", \"reporter\": \"Ohio Appellate Reports\", \"court\": \"Ohio Court of Appeals\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T22:12:14.702034+00:00\", \"provenance\": \"CAP\", \"judges\": \"Lemert, P. J., and SheriSk, J., concur.\", \"parties\": \"Krisher, Appellant, v. McAllister, Appellee, et al.\", \"head_matter\": \"Krisher, Appellant, v. McAllister, Appellee, et al.\\n(No. 2041\\nDecided June 11, 1942.)\\nMr. Franklin L. Maier and Mr. Jas. L. Amerman, for appellant.\\nMessrs. Burt, Carson & Shadrach, for appellees.\", \"word_count\": \"1923\", \"char_count\": \"11128\", \"text\": \"Montgomery, J.\\nThe appellant filed his petition in the Court of Common Pleas against the appellee, Clarence I. McAllister, and one Prank L. Misheff, wherein he sought to recover from the two defendants an .amount claimed to have been suffered by him for expenses, hospital care, medical attention, nursing and doss of services of his minor son, who had been severely injured as the result of the claimed concurrent negli.gence of the two defendants.\\nMcAllister, by his amended answer, admitted certain allegations of the petition, then denied liability, .and as a second defense pleaded contributory negligence of the boy who was injured. By way of' third \\u2022defense, McAllister pleaded the commencement of a .suit in the Court of Common Pleas by Howard Krisher the minor, by Earl Krisher his father and next friend, .against the two defendants in this case; that in that .action a verdict was rendered in favor of the defendant McAllister, and judgment rendered thereon; that by reason thereof all questions of the negligence of the defendant McAllister had been determined; and that such matter is now res judicata.\\nAnd for a fourth defense, McAllister pleaded that 'in the former action this plaintiff, Earl Krisher, had .an interest by reason' of his relationship as father of the plaintiff, alleged his active participation in the trial of the former cause, and as the result thereof pleaded estoppel.\\nDemurrers were filed to the third and fourth defenses of the amended answer, which were overruled. \\\"Thereupon, a reply was filed to this pleading. ,\\nThe reply to the third defense admitted that whatever claims the plaintiff Earl Krisher might have for loss of services and expenditures, grew out of the same facts and circumstances as were tried or could have been tried in such former action, and that all questions of the negligence of the defendant McAllister were litigated and determined in such action, but denied that the result was binding upon this plaintiff.\\nFor reply to the fourth defense, plaintiff admitted that he actively participated in the trial of the earlier cause, by employing counsel therein for plaintiff, as next friend; and that he sat at the trial table with the son and counsel throughout the trial, consulted with counsel as to the progress of the case, and authorized an appeal from the judgment. He denied this constituted any estoppel.\\nThereupon, the defendant McAllister moved for judgment upon the pleadings, this motion was sustained and judgment rendered for him, and from that judgment this appeal was perfected to this court.\\nThe cause is still pending in the Court of Common Pleas so far as the defendant Misheff is concerned.\\nThere is, therefore, presented to us the two questions : Did the result' of the former case constitute res judicata so far as this plaintiff is concerned? Is he, by his conduct, estopped from proceeding in the instant case? If these questions, or either of them, be answered in the affirmative the judgment of the trial court must be affirmed, otherwise, there must be' a reversal and a remand for further proceedings.\\nWith reason do counsel for appellee contend that since there was a failure in the original and principal action, its result should be held determinative in the instant case. We might add that there is particular merit in this contention based upon the fact, which was heretofore recited, of the admissions in plaintiff's reply. ' Were this a matter of first impression, we would be inclined to hold with the appellee. There is certainly much reason in the proposition that when an issue has been thoroughly litigated and finally determined, and it has been decided that no cause of action exists for the injuries sustained, it follows that claims incidental to, or growing out of, these injuries should not thereafter be sustainable against one who has been found free from liability in the original action.\\nHowever, as we view it, we are not privileged to do pioneer work in this respect. The law of Ohio, as well as the law generally in the United States, is against the contention. It would be vain and profitless for us to review in detail the Ohio authorities which have been discussed elaborately by counsel in their briefs, and with which they are so entirely familiar. These cases are: Mahoning Valley Ry. Co. v. Van Alstine, Admr., 77 Ohio St., 395, 83 N. E., 601, 14 L. R. A. (N. S.), 893; May Coal Co. v. Robinette, Admr., 120 Ohio St., 110, 165 N. E., 576, 64 A. L. R., 441; and Gibson v. Solomon, 136 Ohio St., 101, 23 N. E. (2d), 996, 125 A. L. R., 903.\\nCounsel for appellee argue that the effect of these cases is destroyed by the more recent opinion of the Supreme Court in the case of Conold v. Stern, 138 Ohio St., 352, 35 N. E. (2d), 133, 137 A. L. R., 1003. However, a reading of that case shows a situation decidedly different from the one at bar, and different from the Ohio cases on which appellant relies. In the Conold v. Stern case it was held that when an insurer had been held not liable in one action by one injured by the insured, that judgment would be conclusive in a subsequent action by another person injured in the same accident against the same insured. In that case the obligation of the insurance company was to its insured, obligating itself to make good the loss sustained by the insured, provided certain requirements were complied with. It had been held in the prior action that there was no compliance with these requirements. The court, in the opinon on page 367, states that since the insurance contract had been held void as between the insurer and insured in the previous case, the injured plaintiff in the Conoid case, \\\"limited to a derivative right from the insured, is barred as her insured is barred from recovery against the insurance company.\\\"\\nIn that case, the right of the injured party to the insurance fund was derivative from the right vested in the insured and depended altogether upon it. In the case presented to us, the right of the plaintiff here is not derivative in the same sense, although it is contingent upon proving liability of the defendant.\\nCounsel for appellant cite many authorities outside the state of Ohio. Most of them are not in point, because in most of them the liability of -the defendant for damages had been established, and it naturally follows that if liable in the original instance to the one injured, he might well be held in turn to respond to those who had suffered incidentally as a result therefrom, and that the amount of liability to those incidentally injured would depend upon the proof of damages which they sustained,\\nHowever, a case directly in point, and apparently similar in every detail to our case, is that of Bamka v. Chicago, St. P., M. & O. Rd. Co., 61 Minn., 549, 63 N. W., 1116, 52 Am. St. Rep., 618. The syllabus in that case is as follows:\\n\\\"The general rule that the judgment of a court having jurisdiction of the subject-matter, of the parties, and the process, and rendered directly upon the point in question, is conclusive between the same parties, is not applicable when the same person, though a party in both suits, is such in different capacities \\u2014 in the one, occupying a distinctly representative position, such as an administrator, or as a general or an ad litem guardian; in the other, as an individual.\\n\\\"Held, in an action brought by a father, in his individual right, to recover for loss of services, for expenses incurred, and for compensation for care and trouble sustained, by him, growing out of injuries to his minor son, alleged to have been the result of defendant's carelessness and negligence, that a judgment rendered in favor of defendant in a prior action, brought under the provisions of G. S. 1894, Section 5164, by the father, is not a bar to a recovery. ' '\\nAs stated in the opinion of the Minnesota case, on page 552:\\n\\\"For in an action brought by a person as an administrator, or as a guardian, general or special, he is not a party, properly speaking, although he is nominally. The real party is the estate he may represent as administrator, or the minor in whose behalf he as guardian prosecutes the action. In another suit brought to enforce an individual demand or right, he, in contemplation of law, is a distinct person, and a stranger to the prior proceedings and judgment.\\\"\\nWith considerable reluctance, we come to the conclusion that the judgment in the former action of Krisher by his next friend, against McAllister and others, is not res judicata in the present action.\\nComing now to the appellee's claim that the plaintiff is estopped from proceeding with this action, it is to be observed that there is much confusion in attempting to distinguish, in such actions, between res judicata and estoppel.\\nAs stated, in the third paragraph of the syllabus of Clark v. Baranowski, 111 Ohio St., 436, 145 N. E., 760:\\n\\\"The doctrine of res adjudicata is a branch of the law of estoppel # *\\nAnd we note that Bigelow on Estoppel, devotes many, many pages to a discussion of the question of res judicata, and frequently uses that term and the term estoppel as interchangeable.\\nWe take it that counsel will not seriously contend that the plaintiff is estopped, so far as the judgment itself is concerned, if that judgment be not res judicata. Their contention seems to be that there is an additional valid and sufficient estoppel, due to the fact that the plaintiff in the former action appeared as next friend, actively participated in the trial, and directed the institution and perfection of the appeal of the case after final judgment.\\n. In other words, it is contended that he, by his personal conduct, has estopped himself from now proceeding in this action. Frankly, we cannot follow this argument in view of our conclusion on the former proposition. If he is not barred by the result in the former case from now proceeding, we fail to see how it can be contended that his personal participation in that action would bar him. If he has a right to maintain the action in spite of the former adverse judgment, he certainly has a right to pursue it as effectively and forcefully as he can, and in the former action he was certainly bound to pursue it as forcefully and effectively as he could, if for no other ground than upon good faith in having instituted the suit as the next friend of the minor. To hold otherwise on this-claim of estoppel would seem to us to require as a condition that there had been an absence of good faith or an absence of personal interest in the other action, on the result of which counsel seek to rely.\\nIt is our conclusion that the trial court erred in overruling the demurrers to the third and fourth defenses-of the amended answer, and erred in rendering judgment upon the pleadings; and it follows that the judgment of that court will be reversed and this cause remanded for further proceedings.\\nJudgment reversed.\\nLemert, P. J., and SheriSk, J., concur.\"}"

ohio/1395881.json

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+"{\"id\": \"1395881\", \"name\": \"Nahas, Admx., Appellant, v. George, Appellee\", \"name_abbreviation\": \"Nahas v. George\", \"decision_date\": \"1949-04-12\", \"docket_number\": \"No. 3976\", \"first_page\": \"328\", \"last_page\": \"330\", \"citations\": \"85 Ohio App. 328\", \"volume\": \"85\", \"reporter\": \"Ohio Appellate Reports\", \"court\": \"Ohio Court of Appeals\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T21:34:18.972918+00:00\", \"provenance\": \"CAP\", \"judges\": \"Stevens, P. J., and Doyle, J., concur.\", \"parties\": \"Nahas, Admx., Appellant, v. George, Appellee.\", \"head_matter\": \"Nahas, Admx., Appellant, v. George, Appellee.\\n(No. 3976\\nDecided April 12, 1949.)\\nMessrs. Brouse, McDowell, May, Bierce & W ortman, for appellant.\\nMessrs. Slabaugh, Guinlher & Pfhieger and Mr. Albert F. Schwartz, for appellee.\", \"word_count\": \"552\", \"char_count\": \"3390\", \"text\": \"Hunsicker, J.\\nLillian Nahas, as administratrix of the estate of Elias Nahas, deceased, commenced an action in Common Pleas Court, praying for an accounting of partnership profits and an undivided one-half interest in a partnership which she claims existed between her deceased husband, Elias Nahas, and Solomon George, the appellee herein. Mr. George denies that any partnership ever existed between Elias Nahas and himself, as claimed by the administratrixappellant.\\nThis appeal from the judgment of the Common Pleas Court is here on law and fact. We have carefully read and considered the transcript of testimony and the exhibits introduced herein, and are unanimously of the opinion that appellant has established the existence of a partnership between Elias Nahas and Solomon George, as claimed in the petition.\\nThis partnership having been dissolved by the death of Elias Nahas on February 22, 1942, the question immediately facing us concerns the application of Section 8085 at seq., General Code, to the facts of this case.\\nWe have considered the case of McShaffrey, Exrx., v. McShaffrey, 10 Ohio Law Abs., 408, decided by the Court of Appeals of this district on June 5, 1931. but find that it has no application to the facts of the instant case.\\nSection 8085, General Code, provides:\\n\\\"When a member of any partnership in this state dies, the surviving partner or partners, upon the appointment of an executor or administrator of the estate of such deceased partner, shall, forthwith, make application to the probate court of the county in which the partnership existed, upon first giving notice of the time of the bearing of such application to the executor or administrator, for the appointment of three judicious disinterested appraisers, who shall make out, under oath, a full and complete inventory and appraisement of the entire assets of the partnership, including any real estate, together with a schedule of the debts and liabilities thereof, and deliver it to the surviving partner or partners, to be by him or them forthwith filed in the probate court of the county in which such appraisers were appointed.\\\"\\nBy the terms of this and the related following sections, the mode of procedure is set out whereby a surviving partner winds up the partnership business. The provisions of these sections are mandatory, and the exclusive jurisdiction lies in the Probate Court to complete the affairs of this partnership.\\nWe believe the reasoning followed in the case of Fissell v. Morris, 9 Ohio Law Abs., 625, is proper and persuasive, and, in that case, the court said, at page 626:\\n\\\"The mode of procedure mapped out by the statute is full and complete to give the plaintiff ample relief and a full opportunity to have his claim adjudicated. The provisions of Sec. 8085 G. C. are mandatory and exclusive. The Probate Court has complete jurisdiction and full authority to adjudicate the rights of the parties in this case.\\\"\\nA decree may be prepared dismissing the petition herein, for the reason that jurisdiction of the subject matter of this action is vested exclusively in the Probate Court.\\nDecree accordingly.\\nStevens, P. J., and Doyle, J., concur.\"}"

ohio/1401302.json

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+"{\"id\": \"1401302\", \"name\": \"Freeman, Appellee, v. The Norwalk Cemetery Assn., Appellant\", \"name_abbreviation\": \"Freeman v. Norwalk Cemetery Ass'n\", \"decision_date\": \"1950-06-05\", \"docket_number\": \"No. 598\", \"first_page\": \"446\", \"last_page\": \"454\", \"citations\": \"88 Ohio App. 446\", \"volume\": \"88\", \"reporter\": \"Ohio Appellate Reports\", \"court\": \"Ohio Court of Appeals\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T17:40:57.667504+00:00\", \"provenance\": \"CAP\", \"judges\": \"Fess, J., concurs.\", \"parties\": \"Freeman, Appellee, v. The Norwalk Cemetery Assn., Appellant.\", \"head_matter\": \"Freeman, Appellee, v. The Norwalk Cemetery Assn., Appellant.\\n(No. 598\\nDecided June 5, 1950.)\\nMessrs. Freeman \\u00a3 Freeman, for appellee.\\nMessrs. Young \\u00a3 Young, for appellant.\", \"word_count\": \"2084\", \"char_count\": \"12408\", \"text\": \"Conn, J.\\nThis is an action for injunction to restrain defendant from investing, in any investments other than those permitted by the statutes and laws of Ohio, monies held by it as trustee. An appeal has been taken by defendant on questions of law and fact from the Court of Common Pleas, and the cause in this court has been submitted on the original pleadings, copies of docket and journal entries, agreed statement of facts, stipulation and briefs of counsel.\\nIt is admitted in the pleadings or stipulated by the parties that the defendant is a corporation organized and existing- under the laws of Ohio and owning, and operating a cemetery in the city of Norwalk, known as Wo\\u00f3dlawn Cemetery; that the. defendant in its operation has separate funds, called the general fund and the permanent fund; that its general fund is derived from the proceeds of sales of burial lots, money received for services for lot care, maintenance, digging of graves, etc., and interest derived from its permanent fund; and that all operating expenses are paid from its general fund.\\nIt is further stipulated that its permanent fund consists entirely of money paid to defendant by various persons, for care and maintenance of burial lots owned by them in the cemetery, under separate written agree ments, of which the following, with some exceptions, is a copy:\\n\\\"Permanent Fund.\\n\\\"Obligation of the Norwalk Cemetery Association for the perpetual care of a private burial lot:\\n\\\"The Norwalk Cemetery Association of Norwalk, Ohio, hereby acknowledges the receipt of - dollars from -, owner of lot No. \\u2014, which sum has been received and is to be held by said association as a permanent fund.\\n\\\"The said association, in consideration of said payment hereby agrees with said--, heirs and assigns forever, to cause the grass which may grow upon said lot to be cut and removed from same when necessary, and forever kept in proper condition by top dressing and seeding at such times and in such manner as the trustees of said association shall deem expedient for the proper care of said lot and the improvement of the cemetery.\\n\\\"Said association shall not be required to expend any sum on the care of said lot exceeding the net income derived from the investment of the before named sum of-dollars.\\n\\\"Norwalk Cemetery Association\\n\\\"- \\u2014 \\u2014, President.\\n\\\"Norwalk, Ohio,--, 19 \\u2014 .\\\"\\nIt is also admitted that plaintiff has paid into the permanent fund, pursuant to such writing,- the sum of $100 for the care and maintenance of lots in the cemetery; that the total amount paid defendant in consideration of such written agreements up to March 1, 1950, is the sum of $71,819.12, of which amount $57,500 has been invested in United States government bonds, $10,000 deposited in the Home Savings & Loan Company and $4,319.12 in a commercial account with The Huron County Banking Company; that no part of the principal of the permanent fund is ever expended by defendant; that defendant takes care of all lots for which payments have been made into the permanent fund, though the net income from the amount so. paid is less than the actual cost of caring for such lots; and that due to declining interest rates and increased labor costs, the net income received from payments made into the permanent fund is substantially less than the actual cost of the care required for such lots.\\nThe Norwalk Cemetery Association was organized nearly a hundred years ago for the purpose of owning and operating a cemetery in the then village of Nor-walk. The rules and regulations adopted by the cemetery association make provision for the creation of a permanent fund pursuant to the terms of the receipt and agreement hereinbefore referred to, \\\"no part of which can be used for any purpose but- must be loaned out to provide monies with which to care for the lots.''\\nThe statutes of Ohio make provision for the establishment and operation of cemeteries by private companies or associations, townships and municipal'corporations, and also authorize the establishment and maintenance of union cemeteries by two or more townships or municipal corporations. 7 Ohio Jurisprudence, 4, Section 2.\\nThe trustees of townships, municipal corporations and union cemeteries are authorized by statute to receive gifts in trust for the creation of a permanent fund, the income from which shall be used for the upkeep and care of burial lots in the respective cemeteries. In each instance, the statutes prescribe how the permanent funds so created shall be invested. Sections 3457, 4168, 4169 and 4193-1, General Code.\\nThe provisions of the General Code relative to the powers and duties of cemetery associations are found in Chapter 7 of Division VI of Title IX, Corporations Not for Profit. Under the terms of Section 10110 in this chapter, cemetery associations are authorized to receive gifts \\\"for the purpose of maintaining and beautifying therein any particular cemetery lot and appropriate such property, or the proceeds thereof, to any of the foregoing purposes according to the terms of the trust for which it has been given, granted or devised.\\\"\\nSubsequent- sections in the chapter (Sections 10117, 10118 and 10119) provide for the creation of a sinking fund, how such funds may be invested and how expended. The sinking fund thus provided for and the interest thereon is substantially limited to capital improvements in the enlargement and maintenance of the cemetery grounds.\\nThe trust fund for lot care and improvement created under the authority of Section 10110, General Code, and described as a permanent fund in the rules and regulations of the cemetery association, can be differentiated from the sinking fund authorized by other provisions of the Code to which reference has already been made. It is of some significance that the act authorizing the creation of a sinking fund was not passed until 1883 (80 Ohio Laws, 91), many years after the creation of the permanent fund of the association.\\nSection 10109, General Code, provides that all receipts and income should be applied to the payment of lands, etc., and to the general purposes of the association. No debts shall be contracted in anticipation of future receipts, except for the original purchase of the land and the laying out, enclosing and embellishing of the grounds and avenues therein. All its funds must be used exclusively for the purposes of the company, as hereinabove specified, or invested in a fund the income of which shall be so used and appropriated.\\nSection 10110, Genera] Code, to which attention has already been called, authorizes every cemetery association to receive gifts in trust for the uses and purposes therein defined.'\\nSection 10115, General Code, provides that any surplus derived from the sale of a portion of the premises must be invested upon interest, and the income derived therefrom applied to keeping in repair the unsold portion thereof.\\nSection 10117, General Code, provides for the creation of a sinking fund and Section 10118, General Code, prescribes how its funds shall be invested. Section 10119, General Code, provides for the expenditure of the sinking fund for more or less capital improvements. Although it makes no specific provision for paying off bonded indebtedness as is the case ordinarily with a sinking fund, it contemplates something in the nature of an endowment for such purpose.\\nSection 3457, General Code, authorizes township trustees to receive gifts, etc., in trust for a permanent fund to be invested by them, the income to be used in the case of any burial lot designated by the person making the gift. Under Section 3458, General Code, such funds are to be invested in interest-bearing securities, and the trustees may possibly invest the funds in stocks, although a comma is missing between the words \\\"interest\\\" and \\\"dividends.\\\"\\nSections 4168 and 4169, General Code, authorize a city to accept and maintain a permanent fund for the care of a municipal cemetery. Such funds are to be invested in interest-bearing obligations of the city or other authorized interest-bearing securities.\\nThe permanent fund of union cemeteries is to be invested under the same terms and conditions fixed by law for the investment of the funds of a minor by his guardian. Section 4193-1, General Code.\\nIn the absence of statutory provisions or those provided in the trust agreement, a trustee is required to exercise the same degree of diligence and care that a man of ordinary prudence would exercise in the management and investment of his own money. Willis, Admr., v. Braucher, Gdn., 79 Ohio St., 290, 87 N. E., 185, 44 L. R. A. (N. S.), 873; In re Estate of Sedgwick, 74 Ohio App., 444, 59 N. E. (2d), 616.\\nIf the trustee has greater skill than a man of ordinary prudence, he is under a duty to exercise such skill as he has. Restatement of the Law of Trusts, 448, Section 174.\\nIn the instant case the rules and regulations of the defendant authorize it to receive deposits from owners of lots in the cemetery \\\"large enough so that the interest upon same will keep the lot in good care perpctually. The'sum so deposited becomes a part of the permanent fund* no part of which can be used for any purpose but must be loaned out to provide means with which to care for the lots.\\\"\\nUnder the terms of the receipt and agreement hereinbefore referred to, given by the cemetery association to each lot OAvner Avho contributes to the fund for perpetual care for his lot, the defendant is under the heavy duty to preserve the amount so donated as a permanent fund for the perpetual care of the respective burial lots of those contributing to such permanent fund.\\nIt appears to \\u00edoIIoav quite conclusively that in view of the absence of any statutory provision, or provision in the charter or in the rules and regulations of the cemetery association or in the agreement with the lot owners, expressly defining how the money in the permanent fund shall be invested, the defendant as trustee is required to exercise the same degree of diligence and care that a man of ordinary prudence Avould exercise in the management and investment of his own money.\\nThe standard of care and good faith required of a trustee is stated in 40 Ohio Jurisprudence, 364, Section 138, as folloAvs:\\n\\\"In the administration of the trust, the trustee owes the beneficiary the duty to exercise that degree of care and skill which an ordinarily prudent man would exercise in dealing with his own property. Unusual ability and extraordinary care are not required. This is the minimum standard to which a trustee must be held, and it is an external one. If a trustee does not have this degree of skill or exercise that amount of care, he is not excused. If he has a higher ability or greater skill than that of the ordinarily prudent man, he is under a duty to exercise this higher degree. ' '\\nSee, also, Gilbert v. Sutliff, 3 Ohio St., 129; Willis, Admr., v. Braucher, Gdn., supra; Morris v. Mull, 110 Ohio St., 623, 144 N. E., 436, 39 A. L. R., 323; 54 American Jurisprudence, 286, Section 322; and Restatement of the Law of Trusts, 448, Section 174 (comment [a]).\\nIn the Restatement of the Law of Trusts, 645, Section 227, relative to investments which a trustee can properly make, the rule or standard is stated as follows :\\n\\\"In making investments of trust funds the trustee is under a duty to the beneficiary (a) in the absence of provisions in the terms of the trust or of a statute otherwise providing, to make such investments and only such investments as a prudent man would make of his own property having primarily in view the preservation of the estate and the amount and regularity of the income to be derived. ' '\\nThe authorities clearly indicate that if the matter of making investments of trust funds is not regulated by statute, or provided for in the trust agreement, or otherwise limited, the common-law rule of ordinary care and prudence, as applied in the light of the facts of each case, quite uniformly prevails.\\nIn view of these considerations, our conclusion is that the petition and prayer of plaintiff can not be granted and that the petition should be dismissed and the injunction dissolved.\\nPetition dismissed.\\nFess, J., concurs.\\nCarpenter, J., not participating.\"}"

ohio/1403353.json

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+"{\"id\": \"1403353\", \"name\": \"The State, ex rel. Freshcorn, v. Board of Education of Blanchester Local School District\", \"name_abbreviation\": \"State ex rel. Freshcorn v. Board of Education\", \"decision_date\": \"1951-05-28\", \"docket_number\": \"No. 166\", \"first_page\": \"196\", \"last_page\": \"202\", \"citations\": \"89 Ohio App. 196\", \"volume\": \"89\", \"reporter\": \"Ohio Appellate Reports\", \"court\": \"Ohio Court of Appeals\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T17:12:23.847594+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hildebrant, P. J., Matthews, and Ross, JJ., concur in the syllabus, opinion, and judgment.\", \"parties\": \"The State, ex rel. Freshcorn, v. Board of Education of Blanchester Local School District.\", \"head_matter\": \"The State, ex rel. Freshcorn, v. Board of Education of Blanchester Local School District.\\n(No. 166\\nDecided May 28, 1951.)\\nMessrs. Paxton & Seasongood, Mr. Lester A. Jaffe, and Mr. William, T. Bahlman, Jr., for relator.\\nMr. G. L. Schilling and Messrs. Dargusch, Caren, Greek \\u00e9 King, for respondent.\", \"word_count\": \"1484\", \"char_count\": \"9003\", \"text\": \"Hildebrant, P. J.\\nRelator, a teacher employed under a continuing contract as local school head, was transferred from his administrative position to that of teacher with classroom duties only, with a consequent reduction in salary, by resolution of the respondent board unanimously adopted at a special meeting on April 22, 1950, pursuant to the provisions of Section 4842-9, General Code, the transfer being effective for the school year beginning September 1950.\\nBy invoking the original jurisdiction of this court in mandamus, relator seeks to compel the respondent to restore him to his former administrative status as local school head, and requests a complete recoupment of salary losses occasioned by the transfer.\\nHis claims are that the minutes of the special meeting of the board held on April 22, 1950, do not disclose that the resolution of transfer was adopted upon the recommendation of the county superintendent of schools, as required by the statute, and that, in any event, under his continuing contract the board had no power to fix his salary schedule below that of the preceding year.\\nThe evidence before the court is in the form of a stipulation between the parties and the depositions of relator and two members of respondent board.\\nSection 4842-9, General Code, reads:\\n\\\"Each board of education shall cause notice to be given annually not later than July 1 to each teacher who holds a contract valid for the succeeding school year, as to the salary to be paid such teacher during such year. Such salary shall not be lower than the salary paid during the preceding school year unless such reduction be a part of a uniform plan affecting the entire district. But nothing herein shall prevent increases of salary after the board's annual notice has been given.\\n\\\"A teacher employed as assistant superintendent, principal, supervisor, or other administrative head may be transferred to a lesser administrative position or to a teaching position upon recommendation of the superintendent of schools and approval of the board of education. A teacher employed as superintendent may be transferred to another position by a majority vote of the board of education. In no event shall the salary of any teacher so transferred be fixed at a rate lower than the highest paid in the district for the type of position to other teachers with similar training and experience. ' '\\nIt is stipulated that no uniform plan of salary reduction affecting the entire district was involved, and that the minutes of the meeting of April 22, 1950, do not disclose any recommendation of transfer by the county superintendent of schools, required by the statute as a condition precedent to action by the board. It Is, however, stipulated that a written recommendation of transfer by the county superintendent is in the files of respondent and remained unopened in the possession of the board at all times during the meeting of April 22, 1950. The depositions show that the county superintendent was present in person at the meeting and made a formal oral recommendation of the transfer, upon which the board unanimously adopted the resolution of transfer. It is obvious that the written recommendation remained unopened because the county superintendent was there in person and orally made the recommendation which is not required by the statute to be in writing. The fact is that the board did have the recommendation required by law, upon which to adopt the resolution of transfer, and the omission of reference thereto in the minutes may be supplied orally to make that record speak the truth.\\n, 35 Ohio Jurisprudence, 26, Section 21, states:\\n\\\"The general rule that records of inferior boards are not conclusive, but are presumptive only, is applicable to records of school boards. Thus, where ihe record of a school board shows that a meeting was held in pursuance of an adjournment, the presumption is, in the absence of all proof to the contrary, that the meeting was so held. The rule as to supplying omissions in the record by parol has been applied to school boards. Thus, where two school directors met at the usual place of holding meetings, at a regularly called meeting, and, acting officially, agreed with a qualified teacher to hire him to teach the school of said subdistrict for a certain time at an agreed compensation, but neither the clerk of the board nor said directors made any entry in the records of said subdistrict of their proceedings, such teacher ought not to and cannot be prejudiced by their omission or ministerial nonfeasance. He may prove, if he can do so, by competent parol testimony, such official action of said board.\\\" See, also, Dixon v. Subdistrict No. 5, 3 C. C., 517, 2 C. D., 298.\\nIt is stated in 35 Ohio Jurisprudence, 27, Section 24:\\n'It is axiomatic that a record must speak the truth. When it does not do so, through inadvertence or mistake, those who have the authority and power may correct the record to make it conform to the truth.\\\"\\nThe burden of proving a clear legal right to the extraordinary relief sought rests upon the relator, and the evidence not only fails to establish that the board passed the transfer resolution without having a prior recommendation from the county superintendent, but, on the contrary, discloses beyond all doubt that both an oral and a written recommendation were made. It is, therefore, clear that relator has failed to meet the burden of proof required to compel restoration to his former position as local school head.\\nRelator contends that even if the transfer was made according to law the salary reduction was contrary to Section 4842-9, General Code, and the terms of his continuing contract. He cites opinions of the Attorney Genera] of Ohio which seemingly sustain that contention. This court is not bound by such opinions and, regardless of factual distinctions which might be pointed out, is not in accord therewith.\\nRelator's continuing contract, the terms of which are stipulated herein, is as follows:\\n\\\"An agreement entered into between the Blanchester Local School Board of Education, Clinton county, Ohio, and L. D. Freshcorn as local school head beginning September , 1947, and continuing in full force and effect until the said local school head resigns, elects to retire, or is retired pursuant to Section 7896-34 of the General Code or until this contract is terminated or suspended as provided by law. Said local school head agrees to remain in the district and further agrees to abide by and maintain the rules and regulations adopted by said board of education for the government of the schools.\\n\\\"In full consideration for such services the Blanchester Local Board of Education agrees to pay the said L. D. Freshcorn the sum of four thousand and .no/100 dollars ($4,000) for the school year 1947-48, and such sums for each subsequent year as may be established by said board in accordance with Section 7690-3.\\n\\\"Entered into at Blanchester, Ohio, this 9th dav of July, 1947.\\n\\\"D. C. Spence President\\n' ' Mary Schnapp Clerk\\n\\\"L. D. Freshcorn Teacher.\\\"\\nIt is a familiar rule that the pertinent statutes in effect at the time a contract is executed are to be read into it. In addition, by its very terms, relator's contract is subject to the provisions of law consisting of all applicable statutes in the Teachers' Tenure Act, which must be construed in pari materia.\\nSection 4842-7, General Code, provides for the assignment of additional duties beyond regular class room duties and supplemental salary therefor and for discontinuance of such salary increase upon relief from the additional duties. This is a general section and must be read into relator's continuing contract.\\nThe first paragraph of Section 4842-9, General Code, in scope, applies to teachers generally and prevents reduction of salary unless in accord with a uniform plan not present hero. The second paragraph applies, not to teachers generally, but specifically to teachers employed as administrative heads and specifically provides for their transfer and contemplates and limits a salary reduction to the highest rate paid by the teaching position to which transfer is made.\\nBy familiar rule of statutory construction, this special provision must control over the general one, which appears to be perfectly consistent with the provisions of Section 4842-7, General Code.\\nIt, therefore, appears that relator has failed to meet the burden of proof required to sustain his contention of an illegal reduction of salary.\\nThe writ of mandamus prayed for is hereby denied, and the costs of this action assessed against the relator.\\nWrit denied.\\nHildebrant, P. J., Matthews, and Ross, JJ., concur in the syllabus, opinion, and judgment.\"}"

ohio/1441640.json

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+"{\"id\": \"1441640\", \"name\": \"Pickering, Appellant, v. Pickering, Appellee\", \"name_abbreviation\": \"Pickering v. Pickering\", \"decision_date\": \"1959-12-23\", \"docket_number\": \"No. 993\", \"first_page\": \"458\", \"last_page\": \"462\", \"citations\": \"111 Ohio App. 458\", \"volume\": \"111\", \"reporter\": \"Ohio Appellate Reports\", \"court\": \"Ohio Court of Appeals\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T18:19:46.284553+00:00\", \"provenance\": \"CAP\", \"judges\": \"Younger, P. J., Guernsey and Middleton, JJ., concur.\", \"parties\": \"Pickering, Appellant, v. Pickering, Appellee.\", \"head_matter\": \"Pickering, Appellant, v. Pickering, Appellee.\\n(No. 993\\nDecided December 23, 1959.)\\nMessrs. Ooslee & Dunlap, for appellant.\\nMessrs. BeeJc, Kelly & Miller, for appellee.\", \"word_count\": \"1614\", \"char_count\": \"9548\", \"text\": \"Per Curiam.\\nThis is an appeal from a judgment of the Common Pleas Court in a divorce action. The plaintiff, appellant herein, assigns error in a number of particulars but from his oral argument and argument in his brief it is apparent that the only issue to be determined on this appeal is whether the trial court committed an abuse of discretion in its judgment as to the division of property and alimony.\\nThat part of the judgment particularly complained of roads as follows:\\n\\\"It is further ordered that the Wonder Bar remains as it now stands in the name of Nell Pickering; that Yuba Court and the home at 521 E. Columbus Ave., Beliefontaine, Ohio, both being held in joint survivorship title, be conveyed to Nell Pickering within thirty (30) days, and if plaintiff fails to make the proper conveyances, that he pay in lieu thereof the sum of Five Hundred Dollars ($500) per month as alimony; and that defendant is awarded the household goods at 521 E. Columbus Ave. ' '\\nThe plaintiff claims that the conveyance of his interest in Yuba Court and in the residence property would result in the defendant ending up with a net worth completely disproportionate to that of the plaintiff, that the alternative alimony of $500 per month would be excessive, and that neither the conveyances nor the monthly installment would meet the requirements of Section 3105.18, Bevised Code, that the \\\"Court of Common Pleas may allow alimony as it deems reasonable to either party, having due regard to property which came to either by their marriage, the earning capacity of either and the value of real and personal estate of either, at the time of the decree.\\\"\\nIn our view of this appeal it is not necessary for this court to determine, and this court does not determine, whether the property division contemplated by the quoted portion of the judgment would bring about such a disproportionate result as to constitute an abuse of discretion. We are more concerned with the basic character of the quoted portion of the judgment. As a general rule alternative judgments have been held void, although under modern practice if a judgment is sufficiently definite and certain this general rule has been relaxed. See State v. Wilson, 216 N. C., 130, 4 S. E. (2d), 440; 49 Corpus Juris Secundum, 193, Judgments, Section 74, and cases therein cited.\\nHowever, without resorting to a determination of whether or not the judgment in question technically conforms to the definition of a judgment in the alternative, we observe and are of the opinion that it has many of the characteristics which have been found objectionable in alternative judgments. The judgment is not self-executing in that it cannot at any time be determined by mere reference to the judgment alone, or even by further reference to the file of the case, whether or not the alter native is applicable, as, by its terms, the alternative is applicable only if plaintiff fails to convey within thirty days. If he conveys the alternative is not applicable. If he elects not to convey he cannot be required to convey. The judgment may not therefore be enforced ministerially by the issuance of execution or otherwise. The judgment for the payment of $500 per month, if a judgment at all, cannot be operative and enforced immediately upon the entry of judgment; at best it can become operative no earlier than thirty days after the entry of judgment, and, if conveyances are made within the time limited, it never becomes operative.\\nWhen an appeal is taken from such a judgment the problems are compounded. Since the plaintiff is complaining that the conveyances mentioned constitute an abuse of discretion we must assume that he has not made such conveyances. The conveyances not having been made, how can the appellate court determine what, in the final analysis, will be the effect of the judgment? If the judgment is binding on this plaintiff what is he going to choose to do \\u2014 convey or pay monthly installments? Not knowing, are we required to determine whether abuse of discretion, if applicable, is applicable to both parts of the judgment, and, if applicable to either part, and not to the other part, does the part of the judgment tainted by the abuse of discretion fail and that part not so tainted stand? Or, if either part of the judgment is so tainted does the entire judgment fail?\\nThe fact that the judgment purports to give the plaintiff his choice of one of two courses indicates that as to him one course is preferable to the other and that the two courses are therefore not equivalents. If they are not equivalent as to the plaintiff they are not necessarily any more equivalent as to the defendant. Since the exercise by the plaintiff of his choice would therefore result in the defendant receiving more or less than the defendant would have received had the choice not been exercised, then does the exercise of choice by the plaintiff constitute a judicial determination, not by a court, but by a private individual?\\nThese rhetorical questions illustrate the problems coexisting with this type of judgment. However, we can arrive at a decision without attempting to answer all these questions. A judgment being a judicial act which settles the issues, fixes the rights and liabilities of the parties, and determines the proceedings, without implementation by any person not possessing judicial powers, then, what do we have here if judicial action alone is considered?\\nThe conveyance part of the judgment becomes operative only if the plaintiff chooses to convey. If the plaintiff does not elect to convey and does nothing then the plaintiff becomes charged, at the expiration of thirty days, with a judgment against him for installment payments of alimony at the rate of $500 per month. This latter then constitutes that part of the judgment of the court unaffected by the act of any individual, and is that part of the judgment in question which we will first consider to determine whether it is tainted by an abuse of judicial discretion.\\nIt is undisputed in evidence that the defendant receives from $80 to $90 per week from pinball and music box concessions, and receives a salary of $100 per week from a corporation of which she is 95% owner, but of which the yearly profits or dividends to defendant are not disclosed. It further appears that no children were born of the union and that defendant's obligations are merely to maintain herself, maintain the properties owned by her, and pay her debts. The defendant has therefore a monthly cash income of at least $720 supplemented annually by her share of the corporate profits. On the other hand, the only evidence as to plaintiff's income discloses that over a three-month period he had personal draws from his business of $250, had paid $3,000 on \\\"bad checks\\\" and personal back accounts, and had a business bank account balance of $284 at the end of the period. Assuming that he had no bank balance at the beginning of the period this evidence would make it appear that plaintiff was making at the most the sum of approximately $1,200 per month. Plaintiff is obligated to pay $100 monthly to a previously divorced wife, maintain himself, his properties, and pay his debts. The evidence shows also that the Hofbrau, owned and operated by plaintiff, was grossing about $1,100 to $1,300 per week, whereas the Wonder Bar, owned by the corporation of which defendant is 95% owner, grossed around $3,000 during the last three weeks in January and $3,800 during the month of February, and in March was running \\\"around $900 to $1,000 a week.\\\" Considering the uncertainty of the evidence as to income but also considering the fact that plaintiff was receiving some additional income from the apartments at Yuba Court ($100 per month), considering defendant's income from her amusement machines, and considering the weekly and monthly grosses of the respective businesses operated by them, it would not be reasonable to conclude that defendant was receiving any less income than the plaintiff. In consideration of the property which each owned at the time of the marriage, in consideration of their respective interests in property at the time of the divorce decree (without further conveyance) and in consideration of their approximately equal annual incomes, this court is of the opinion that that part of the judgment ordering the plaintiff to pay the defendant alimony in the amount of $500 per month constitutes an abuse of discretion within the definition of that term in Steiner v. Custer, 137 Ohio St., 448.\\nBeing an abuse of discretion, the judgment as to alimony payments is thereby erroneous and void. By reason of such error there would be no operative judgment of the trial court in the event that the plaintiff chose not to convey the properties mentioned in the decree. The failure of the alimony installment decree is therefore so closely related to the balance of the decree that the entire decree fails.\\nThis court not being authorized to exercise the discretion bestowed upon the trial court and not being able to modify the judgment of the trial court as a matter of law, the judgment as to alimony and division of property must therefore be reversed and the cause remanded to the trial court for a new trial on such issue only and for further proceedings as provided by law.\\nJudgment reversed.\\nYounger, P. J., Guernsey and Middleton, JJ., concur.\"}"

ohio/1461453.json

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+"{\"id\": \"1461453\", \"name\": \"PRICKETT, Appellant, v. FOREIGN EXCHANGE, INC., Appellee\", \"name_abbreviation\": \"Prickett v. Foreign Exchange, Inc.\", \"decision_date\": \"1990-06-26\", \"docket_number\": \"No. 11802\", \"first_page\": \"236\", \"last_page\": \"240\", \"citations\": \"68 Ohio App. 3d 236\", \"volume\": \"68\", \"reporter\": \"Ohio Appellate Reports, Third Series\", \"court\": \"Ohio Court of Appeals\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T18:17:57.701297+00:00\", \"provenance\": \"CAP\", \"judges\": \"Wolff, P.J., and Grady, J., concur.\", \"parties\": \"PRICKETT, Appellant, v. FOREIGN EXCHANGE, INC., Appellee.\", \"head_matter\": \"PRICKETT, Appellant, v. FOREIGN EXCHANGE, INC., Appellee.\\n[Cite as Prickett v. Foreign Exchange, Inc. (1990), 68 Ohio App.3d 236.]\\nCourt of Appeals of Ohio, Montgomery County.\\nNo. 11802.\\nDecided June 26, 1990.\\nRobert N. Berger, for appellant.\\nLarry J. Denny and James M. Hill, for appellee.\", \"word_count\": \"1474\", \"char_count\": \"9125\", \"text\": \"Brogan, Judge.\\nDan Prickett brought suit for damages and/or the rescission of an automobile sales contract, alleging that the seller, Foreign Exchange, Inc. had violated the Odometer Rollback and Disclosure Act, R.C. 4549.41 et seq. The trial court sustained Foreign Exchange's motion for summary judgment on the ground that Prickett could not show that the dealership knew that the odometer reading was incorrect. Prickett appeals this judgment, asserting as his sole assignment of error that the statutes in question impose strict liability, thus not requiring a demonstration of actual knowledge. For reasons stated more fully below, we will affirm the trial court's judgment.\\nOn June 24, 1985, Foreign Exchange, a car dealership in Dayton, purchased a 1982 Jaguar XJ6 from RAM Financial Corporation (\\\"RAM\\\") at an automobile auction in Louisville, Kentucky. Pursuant to Ky.Rev.Stat. 190.300, RAM executed an odometer disclosure statement which it gave to Foreign Exchange along with the title to the Jaguar. On this statement RAM indicated that the odometer read 28,633 miles and certified \\\"to the best of my knowledge that the odometer reading is and reflects the actual mileage of the vehicle.\\\" This reading, however, did not reflect the actual mileage of the car.\\nOn the left inside door frame was a sticker which read: \\\"ODOMETER NOTICE: ODOMETER HAS BEEN REPAIRED OR REPLACED AND SET TO ZERO ON 3-9-83. PRIOR TO REPAIR OR REPLACEMENT MILEAGE WAS 14,800. OWNER OR AGENT UNLAWFUL TO REMOVE OR ALTER.\\\" There is no indication that either RAM or Foreign Exchange noticed this sticker, despite the fact that the laws of both Kentucky (Ky.Rev.Stat 190.290) and Ohio (R.C. 4549.42[C]) require such a sticker to be affixed to the left inside door frame when odometer repairs have taken place.\\nForeign Exchange returned to Ohio with the Jaguar. The car was inspected by the Ohio Bureau of Motor Vehicles, which certified its mileage to be 28,692, thus also disregarding the additional 14,800 miles that the Jaguar had actually been driven.\\nOn June 27, 1985, Foreign Exchange sold the Jaguar to Prickett for $19,700 plus $1,182 in taxes. Prickett traded in a 1981 Mazda 626, which reduced the purchase price by $3,000. Pursuant to R.C. 4505.06(B)(3) (now R.C. 4505.-07[G][8]), Foreign Exchange listed the Jaguar's mileage as 28,702, whereas the actual mileage was 14,800 greater, or 43,502 miles.\\nA few months after Prickett took delivery of the car, it developed mechanical problems. While the car was being repaired, a mechanic pointed out the odometer repair notice to Prickett, who then contacted Foreign Exchange about the mileage discrepancy.\\nEventually, Prickett filed suit under the Odometer Rollback and Disclosure Act, R.C. 4549.41 et seq., requesting, inter alia, rescission of the sales contract and return of both the $15,518 tendered and the 1981 Mazda 626 trade-in. Both parties moved for summary judgment and the matter was referred to a referee. After a hearing, the referee recommended that summary judgment be entered for Prickett. However, the trial court sustained objections to this recommendation and entered summary judgment for Foreign Exchange.\\nAs his sole assignment of error, Prickett asserts that:\\n\\\"The trial court erred in rendering summary judgment in favor of defendant on plaintiff's complaint on the basis that Section 4549.46 O.R.C. does not impose strict liability on the transferor of a motor vehicle who fails to comply with the odometer disclosure requirements of Section 4549.46 O.R.C.\\\"\\nThe relevant sections of the Odometer Rollback and Disclosure Act were amended after this action was filed. Therefore, we must apply the statutes as they existed in their pre-amendment versions. State, ex rel. Slaughter, v. Indus. Comm. (1937), 132 Ohio St. 537, 8 O.O. 531, 9 N.E.2d 505.\\nBoth parties draw the court's attention to R.C. 4549.46(A) which read in its pre-amendment form:\\n\\\"No person shall fail to provide the true odometer disclosure required by 4505.06 of the Revised Code. The transferor of this motor vehicle is not in violation of this section's provisions requiring a true odometer reading if the odometer reading is incorrect due to a previous owner's violation of any of the provisions contained in Sections 4549.42 to 4549.46 of the Revised Code, unless the transferor knows of the violation.\\\" (Emphasis added.)\\nThe required disclosure referred to is the statement by Foreign Exchange, quoted supra, that the odometer reading reflects the actual mileage of the vehicle. The sole issue of this appeal is whether the Odometer Rollback and Disclosure Act requires that the transferor have actual knowledge that the odometer reading is incorrect before the liability provisions of R.C. 4549.46(A) attach. For reasons stated more fully, we find that actual knowledge is required under this version of the statute.\\nThis court has recognized that the first sentence of R.C. 4549.46(A) imposes strict liability. Hammock v. Lozan (Feb. 26, 1987), Montgomery App. No. 9939, unreported, 1987 WL 7048. However, that holding was explicitly limited to instances where \\\"[n]othing in the record suggests that the second sentence of R.C. 4549.46 is implicated.\\\" Id. at 6. It is uncontroverted that the instant case does trigger the second sentence because the rollback of the odometer occurred while the Jaguar was in possession of a previous owner, not Foreign Exchange.\\nThe leading case in this area is universally acknowledged to be Flint v. Ohio Bell Tel. Co. (1982), 2 Ohio App.3d 136, 2 OBR 150, 440 N.E.2d 1244. Like Hammock, Flint recognized that the first sentence of R.C. 4549.46 imposes strict liability because no culpable mental state is attached to the duty to disclose. Also like Hammock, Flint did not present facts implicating the second sentence since the transferor was the only previous owner of the vehicle in question. Unlike the first sentence, the second sentence clearly attaches a culpable mental state by requiring that a transferor \\\"knows of the violation\\\" when \\\"the odometer reading is incorrect due to a previous owner's violation.\\\" None of the cases cited by Prickett apply to the second sentence of R.C. 4549.46(A) or construe the word \\\"knows\\\" as it appears therein; they merely rely on Flint which is limited by its facts to situations where the odometer discrepancy is not caused by a previous owner.\\nThe plain meaning of the word \\\"knows\\\" in this context is that the transferor must have actual knowledge of odometer discrepancies caused by previous owners before he can be held liable for them. This construction is supported by the fact that the General Assembly saw fit to amend R.C. 4549.46(A) to read that a transferor is not culpable for a previous owner's having rolled back the odometer \\\"unless the transferor knows of or recklessly disregards facts indicating the violation.\\\" (Emphasis added.) If the previous statute had encompassed more than actual knowledge, this amendment would have been unnecessary. An experienced auto dealer's failure to take note of an odometer repair notice placed where it is required to be by statute might constitute reckless disregard under the current statute, but it does not constitute actual knowledge as was required by the relevant version of R.C. 4549.46(A).\\nNothing in the record indicates that Foreign Exchange actually knew that the Jaguar's odometer was incorrect by 14,800 miles. Prickett's own testimony is most enlightening in this matter:\\n\\\"Q. You're not alleging here that the Foreign Exchange had any knowledge of the mileage difference from that registering on the odometer, are you?\\n\\\"A. I'm not alleging that.\\n\\\"Q. Okay. In fact, you are aware through your diligent search and informational gathering that the transaction and the odometer changing or set-back or whatever modification we want to call it, was done by the owner prior to the Foreign Exchange or at least that's where the problem gap was?\\n\\\"A. The record indicates that.\\n(C\\n\\\"Q. Sure. You're not claiming John Higgins or the Foreign Exchange set it back? His signing and saying while in my possession it was not set back, is an accurate statement?\\n\\\"A. No, I'm not alleging that he's misrepresenting his possession of it.\\n\\\"Q. Right. Okay. And the other statement, 'to the best of our knowledge, the odometer reflects the actual reading,' you're not saying that he had any other knowledge, so that statement's also true, to your knowledge?\\n\\\"A. Uh-huh.\\\"\\nThus, Prickett has conceded that Foreign Exchange had no actual knowledge of the odometer discrepancy. There being no dispute as to the relevant facts, summary judgment in favor of Foreign Exchange was appropriate.\\nPrickett's sole assignment of error having been found to be not well taken, the judgment of the trial court will be affirmed.\\nJudgment affirmed.\\nWolff, P.J., and Grady, J., concur.\"}"

ohio/1461537.json

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+"{\"id\": \"1461537\", \"name\": \"The STATE of Ohio, Appellee, v. JOHNSON, Appellant\", \"name_abbreviation\": \"State v. Johnson\", \"decision_date\": \"1990-06-27\", \"docket_number\": \"Nos. 89CA004688, 89CA004689\", \"first_page\": \"272\", \"last_page\": \"278\", \"citations\": \"68 Ohio App. 3d 272\", \"volume\": \"68\", \"reporter\": \"Ohio Appellate Reports, Third Series\", \"court\": \"Ohio Court of Appeals\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T18:17:57.701297+00:00\", \"provenance\": \"CAP\", \"judges\": \"Baird and Cacioppo, JJ., concur.\", \"parties\": \"The STATE of Ohio, Appellee, v. JOHNSON, Appellant.\", \"head_matter\": \"The STATE of Ohio, Appellee, v. JOHNSON, Appellant.\\n[Cite as State v. Johnson (1990), 68 Ohio App.3d 272.]\\nCourt of Appeals of Ohio, Lorain County.\\nNos. 89CA004688, 89CA004689.\\nDecided June 27, 1990.\\nGregory A. White, Prosecuting Attorney, for appellee.\\nJohn Ricotta, for appellant.\", \"word_count\": \"2280\", \"char_count\": \"14005\", \"text\": \"Reece, Presiding Judge.\\nIn May 1988, Tracy W. reported to police that she had been raped by her former stepfather, Ronald Ray Johnson, Sr., during the period of May 23-26, 1986, at his house in Sheffield Lake, Lorain County, Ohio. The Lorain County Prosecutor subsequently presented evidence to the grand jury, which returned a single-count indictment against Johnson on May 10, 1988, charging him with a violation of R.C. 2907.02(A)(2) (case No. 88CRO35880). On October 4, 1988, the grand jury returned a second indictment against Johnson, identical to the May 10, 1988 indictment, and including a violation of R.C. 2907.02(A)(1)(a) (case No. 88CR036557).\\nThe case proceeded to trial on both indictments on May 15, 1989. During voir dire, the prosecutor informed the court that he intended to proceed only on the second indictment, 88CR036557, and would dismiss 88CRO35880. The court journalized dismissal of this indictment on May 19, 1989. Trial proceeded, and the judge instructed the jury on May 17. At 3:15 p.m. on May 18, the jury informed the court that they could not reach a decision. The court offered further instruction and the jury returned to deliberate, only to report at 4:40 p.m. that they were still dead-locked. At this point the court discharged the jury and reset the case for trial.\\nOn August 8, 1989, the grand jury returned a third indictment against Johnson, charging one count pursuant to R.C. 2907.02(A)(2), with one specification of a prior felony conviction, and one count pursuant to R.C. 2907.-02(A)(1)(a) and/or 2907.02(A)(2), with one specification of a prior felony conviction (case No. 89CR037616). On October 16, 1989, the court journalized an entry dismissing the indictments in case Nos. 88CRO35880 and 88CR036557, at the state's request.\\nOn October 17,1989, the grand jury returned a fourth indictment essentially identical to the third, but adding a second conviction to each prior felony specification. A third count, pursuant to R.C. 2923.13(A)(2), having a weapon while under disability, with two specifications thereto, was added, based upon Johnson's trial testimony (case No. 89CR037861).\\nThe case was set for trial on November 1, 1989. On October 31, 1989, Johnson filed motions to sever the third count of the indictment from the other two, and to dismiss on double jeopardy grounds the two remaining counts charging rape. On November 1, 1989, prior to voir dire, the court entertained arguments on Johnson's motions.\\nThe transcript of proceedings indicates that the court granted the motion to sever the counts of the indictment, but did not journalize this decision. Curiously, the record contains two journal entries relating to the double jeopardy issue. The first, time-stamped at 11:37 a.m., November 1, 1989, states:\\n\\\"This matter came to be heard upon defendants [sic ] Motion to Dismiss on Double Jeopardy Grounds. For good cause shown, defendants [sic ] Motion to Dismiss is denied.\\\"\\nThis journal entry was signed by the trial judge, and referenced case Nos. 89CR037616 and 89CR037861. The second entry, time-stamped at 11:39 a.m., November 1, 1989, states:\\n\\\"The court having reviewed the record, finds that the defendant's motion to dismiss because of the defendant having been placed in double jeopardy is a frivolous motion, and if the defendant elects to appeal this ruling, that because the motion has been found to be frivolous, this court is not divested by [sic] jurisdiction to proceed to trial on the case.\\\"\\nThis journal entry was also signed by the trial judge, but referenced case Nos. 89CR036557 and 89CR037861.\\nThereafter, the trial court noted its intention to proceed to try the case. Johnson objected, arguing that the court's denial of his motion to dismiss was a final appealable order. When the court ordered Johnson's counsel to proceed, he refused, and requested that the court journalize its denial of the motion to dismiss so that he could file a notice of appeal. Returning after a short recess, the court again ordered Johnson's counsel to proceed, which he again refused to do, stating that he had filed a notice of appeal, and that the trial court no longer had jurisdiction to continue. The court disagreed, and upon counsel's continued refusal to go forward, found him in contempt, fined him $500, and sentenced him to ten days in jail. The court suspended the term of incarceration and set bail upon counsel's request. Counsel filed a notice of appeal upon the contempt finding.\\nJohnson appeals, asserting five assignments of error:\\nAssignments of Error\\n\\\"I. The trial court committed prejudicial error by not dismissing the present indictments because proceeding to trial after the First Indictment (88 CRO 35880) had been nolled violated Mr. Johnson's double jeopardy rights under the United States and Ohio Constitutions.\\n\\\"II. The trial court committed prejudicial error by not dismissing the present indictments because proceeding to trial after the Second Indictment (88 CRO 36557) had been nolled violated Mr. Johnson's double jeopardy rights under the United States and Ohio Constitutions.\\n\\\"III. The trial court committed prejudicial error by not dismissing the present indictments on the basis of the double jeopardy clauses of the Ohio and United States Constitutions, in that the prematurely declared mistrial of May, 1989, terminated that case and precludes reprosecution.\\n\\\"IV. In the alternative, the trial court committed prejudicial error by ruling that Mr. Johnson may be prosecuted for additional and greater offenses of rape after he had once been tried for rape under R.C. 2907.02. In other words once the state has tried an individual for an offense, it may not retry him for greater offenses arising from the same set of facts.\\\"\\nBecause these assignments of error are intertwined, they are addressed together. Johnson argues that the trial court erred by not dismissing the third and fourth indictments following the court's nolle prosequi of the first and second indictments, and that the trial court erred by prematurely dismissing the jury during trial on the second indictment. We address the latter contention first.\\nThe bar of double jeopardy generally does not attach when a jury fails to agree upon a verdict. United States v. Sanford (1976), 429 U.S. 14, 97 S.Ct. 20, 50 L.Ed.2d 17; Green v. United States (1957), 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199; and United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165. Thus, when a jury is \\\"hung,\\\" there exists a manifest need to declare a mistrial. Ohio v. Johnson (1984), 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425; see, also, Richardson v. United States (1984), 468 U.S. 317, 323-325, 104 S.Ct. 3081, 3085-3086, 82 L.Ed.2d 242, 249-250; Wadsworth v. Gairing (1987), 41 Ohio App.3d 126, 534 N.E.2d 917; and State v. Davidson (June 22, 1983), Hamilton App. Nos. C-820647, C-820677 and C-820678, unreported, 1983 WL 8912. The trial court is vested with broad discretion to determine the manifest necessity to declare a mistrial. Arizona v. Washington (1978), 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717.\\nPresentation of the case lasted less than two days. The jury deliberated for more than one day before reporting that they could not reach a unanimous verdict. The court instructed the jury further, but they returned in less than an hour, asserting that they were deadlocked. Our review of these proceedings, and the court's discharge of the jury and resetting of the case for trial, reveals no abuse of discretion. Johnson's third error assigned is overruled.\\nJohnson claims error in the trial court's failure to dismiss the third and fourth indictments, on double jeopardy grounds, based upon the prosecutor's request, and the court's acceptance, to nolle prosequi the first two indictments. Reviewing the facts, the prosecutor requested nolle of the first indictment during voir dire, stating: \\\"Before proceeding, I will dismiss the first indictment, the earlier one, and just proceed on the second one. It was a reindictment, your honor.\\\" The court granted leave for the nolle, which was journalized on May 19, 1989. On August 8, the third indictment was issued. On October 16, the state requested nolle of the second indictment; a journal entry of the same date approved this nolle, and restated the nolle of the first indictment. On October 17, the fourth indictment was issued.\\nThe state requested dismissal of the first indictment prior to the jury being sworn, to which Johnson did not object, and which the court approved. Under R.C. 2941.33:\\n\\\"The prosecuting attorney shall not enter a nolle prosequi in any cause without leave of the court, on good cause shown, in open court.\\\"\\nLikewise, Crim.R. 48(A) provides that \\\"the state may by leave of court and in open court file an entry of dismissal of an indictment, information, or complaint .\\\" Thus, where a nolle prosequi is entered before a jury is sworn, a defendant has not been placed in jeopardy, and another prosecution for the same offense is permissible. Sander v. Ohio (S.D.Ohio 1973), 365 F.Supp. 1251, 70 O.O.2d 418. In addition, an effective nolle prosequi need only be approved by the court pursuant to R.C. 2941.33 and Crim.R. 48(A), as was done here. Accordingly, the state effectively dismissed the first indictment, with the court's approval, prior to the attachment of jeopardy, and proceeding upon the second indictment was proper.\\nFollowing the mistrial on the second indictment, a third indictment issued, containing two rape counts, with prior felony specifications, arising from the same facts as the first and second indictments. The state then sought leave of the court to dismiss the second indictment, which the court granted. The following day a fourth indictment issued, restating the two rape counts of the third, adding a felony conviction to the prior felony specifications, and adding a third count alleging violation of R.C. 2923.13(A)(2), with two specifications.\\nJohnson argues that the state's dismissal of the second indictment, following mistrial, acts as a bar to further prosecution for the same transaction or occurrence. We disagree.\\nIn Chatfield v. Ricketts (C.A.10, 1982), 673 F.2d 330, certiorari denied (1982), 459 U.S. 843, 103 S.Ct. 96, 74 L.Ed.2d 88, the defendant was tried on five separate counts, the jury could not reach a verdict on two counts, and the trial court declared a mistrial as to those counts. The trial court granted the prosecution's motion to dismiss the remaining two counts, then later reinstated the charges on the prosecutor's motion. The federal appellate court, considering the period following a mistrial as a pretrial period, determined that \\\"the double jeopardy clause [Fifth Amendment to the United States Constitution] does not prohibit the prosecutor from reasserting the same charges [previously dismissed] at a later date.\\\" Id. at 332.\\nIn State v. Brown (Mar. 17, 1989), Erie App. No. E-88-13, unreported, 1989 WL 25542, the state entered a nolle prosequi to the second count of an indictment four months after the court declared a mistrial due to the jury's inability to return a verdict, then later included the same count in a new indictment issued against the defendant. The defendant argued that the state's nolle of the count following mistrial acted as a bar to further prosecution. The appellate court, rejecting this contention, cited Chatfield, supra, for the proposition that a nolle prosequi entered during a pretrial period does not bar the state from prosecuting the defendant upon the same charge, even where that charge is included in a new indictment. The Brown court's reasoning finds its basis in Richardson v. United States, supra, 468 U.S. 317, 325-326, 104 S.Ct. 3081, 3086, 82 L.Ed.2d 242, 250-251, where the United States Supreme Court stated that the failure of a jury to reach a verdict, and the trial court's declaration of a mistrial thereby, is not an event which terminates the original jeopardy to which a defendant is subjected.\\nThe prior felony specifications charged in the third and fourth indictments are also preserved and permitted with respect to the charges Johnson will face on remand. They were specifically included by the grand jury pursuant to R.C. 2941.142. See State v. Dilley (1989), 47 Ohio St.3d 20, 546 N.E.2d 937. Those specifications do not subject Johnson to new or greater charges, as he argues, but rather to an enhanced penalty based upon his prior felony convictions. State v. Allen (1987), 29 Ohio St.3d 53, 29 OBR 436, 506 N.E.2d 199.\\nTreating the period following the trial court's declaration of mistrial in the case sub judice as a pretrial period, and embracing the analysis in Richardson, Brown, and Chatfield, supra, we find no error in the court's refusal to dismiss the third and fourth indictments. Johnson's first, second and fourth errors assigned are overruled.\\nAssignment of Error V\\n\\\"The trial court committed prejudicial error by holding Mr. Ricotta in contempt because he would not waive his client's double jeopardy rights under the Fifth Amendment of the United States Constitution and the Ohio Constitution.\\\"\\nThe interlocutory nature of this appeal limits the issues to those relating directly to the narrow confines of double jeopardy analysis. See State v. Thomas (1980), 61 Ohio St.2d 254, 15 O.O.3d 262, 400 N.E.2d 897, paragraph one of the syllabus. Accordingly, the trial court's finding of contempt against Johnson's counsel is not a final appealable order subject to our immediate review. The fifth error assigned is not well taken.\\nBased upon the foregoing, this cause is affirmed, and the case is remanded to the trial court for further proceedings.\\nJudgment accordingly.\\nBaird and Cacioppo, JJ., concur.\"}"

ohio/1465595.json

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+"{\"id\": \"1465595\", \"name\": \"The STATE of Ohio, Appellee, v. BELL, Appellant\", \"name_abbreviation\": \"State v. Bell\", \"decision_date\": \"1990-12-24\", \"docket_number\": \"No. 57779\", \"first_page\": \"765\", \"last_page\": \"774\", \"citations\": \"70 Ohio App. 3d 765\", \"volume\": \"70\", \"reporter\": \"Ohio Appellate Reports, Third Series\", \"court\": \"Ohio Court of Appeals\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T20:25:24.673872+00:00\", \"provenance\": \"CAP\", \"judges\": \"Ann McManamon and Parrino, JJ., concur.\", \"parties\": \"The STATE of Ohio, Appellee, v. BELL, Appellant.\", \"head_matter\": \"The STATE of Ohio, Appellee, v. BELL, Appellant.\\n[Cite as State v. Bell (1990), 70 Ohio App.3d 765.]\\nCourt of Appeals of Ohio, Cuyahoga County.\\nNo. 57779.\\nDecided Dec. 24, 1990.\\nJohn T. Corrigan, Prosecuting Attorney, for appellee.\\nPatricia A. Snyder, for appellant.\", \"word_count\": \"2896\", \"char_count\": \"17885\", \"text\": \"Patton, Chief Judge.\\nDefendant-appellant Wayne Bell appeals from his conviction of felonious assault with a gun specification. At trial, the following evidence was adduced:\\nLawrence Richey lived in an apartment on the second floor of a six-family dwelling. The defendant lived in the apartment directly above Richey. On the day of the shooting Richey was installing a radio in his car which was parked in a yard next to his driveway. While he was installing the radio, William House, a friend of Richey, arrived to lend a hand.\\nWhen the radio installation was complete, Richey and House walked toward the apartment building. The defendant exited the building and shot Richey after exchanging a few words with him. According to Richey as the defendant approached him, Richey asked defendant, \\\"Did he have something to say to me?\\\" House recalled that as the defendant walked out of the building, he said, \\\"You think that is funny,\\\" and Richey responded that he did.\\nBoth Richey and House testified that the defendant was carrying a gym bag from which he removed a .38 caliber handgun. Richey recalled that as the defendant removed the gun from his bag, he repeated the phrase, \\\"So it is funny.\\\" Richey and House testified that the defendant pulled the trigger twice. The gun failed to fire the first time, but fired the second time, striking Richey. Richey ran upstairs to inform his wife that he had been shot. House observed the defendant walk down the driveway, then up the street. House later took Richey to the hospital.\\nCleveland Police Officer Francis Friedel testified that he and his partner responded to a report of a shooting. Upon arriving at the scene the officers were met by a woman who told them that the victim had been taken to the hospital. The woman also gave the officers a description of the man who had allegedly done the shooting.\\nThe officers toured the area and found the defendant standing on a street corner one block northwest of his apartment. The defendant admitted he had shot someone, but said he had blacked out after the shooting. The officers arrested the defendant, but did not find the gun or bag he had been carrying.\\nThe defendant testified on his own behalf. He stated that Richey was a heavy cocaine user who became volatile when under the influence of drugs. The defendant also described three incidents in which Richey threatened the defendant with a gun. The first incident occurred a few months prior to the instant shooting. After arguing, Richey and the defendant returned to their respective apartments. Richey later knocked on the defendant's door. When the defendant looked through his peephole, he saw that Richey was holding a .25 caliber handgun.\\nA few weeks later the defendant, while at his girlfriend's across the street, was approached by Richey. Richey was carrying a gun and allegedly threatened to shoot the defendant for comments the defendant had made about him.\\nFinally, three days prior to the shooting, Richey pulled a gun on the defendant and accused him of \\\"being by his daughter.\\\"\\nOn September 27, 1988, the defendant testified he was leaving his apartment building to go across the street to his girlfriend's. He had seen Richey in the parking lot from his apartment window. The defendant was carrying a gun in his gym bag for his own protection. The defendant testified that Richey called him names and was acting aggressively as he was walking out of the apartment. The defendant stated that he shot Richey because he thought Richey was going to pull a gun and he feared for his life.\\nThe jury found the defendant guilty of felonious assault with a gun specification. The defendant assigns two errors for our review.\\nI.\\nIn his first assignment of error, defendant alleges:\\n\\\"Appellant was deprived of his right to effective assistance of counsel as guaranteed by Article I, Section 10 of the Ohio Constitution and the Sixth Amendment to the United States Constitution.\\\"\\nDefendant sets forth eight instances of ineffective assistance. He contends that defense counsel's failure to raise objections, coupled with the inadequate presentation of the defense case rendered his representation ineffective and denied him his right to a fair trial.\\nThe federal test for determining whether a defendant was denied the effective assistance of counsel as required by the Sixth Amendment to the United States Constitution is \\\"whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.\\\" Strickland v. Washington (1984), 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 692-693. The burden is on the defendant to show that counsel's performance was deficient and that such deficient performance prejudiced the defense. Id. A court may dispose of an ineffectiveness claim on the ground of lack of sufficient evidence or prejudice before examining whether counsel's performance was deficient. Id. at 695-697, 104 S.Ct. at 2069-2070, 80 L.Ed.2d at 698-699.\\nThe standard in Ohio for determining the effectiveness of counsel is nearly identical to the standard announced in Strickland. The test in Ohio is \\\"whether the accused, under all the circumstances had a fair trial and substantial justice was done.\\\" State v. Hester (1976), 45 Ohio St.2d 71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the syllabus. In applying this test, the court must determine whether an essential duty owed by defense counsel has been substantially violated and whether such violation prejudiced the defense. State v. Lytle (1976), 48 Ohio St.2d 391, 396-397, 2 O.O.3d 495, 497-498, 358 N.E.2d 623, 626, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154; see State v. Cooperrider (1983), 4 Ohio St.3d 226, 4 OBR 580, 448 N.E.2d 452. Appellant has the burden of proof since a properly licensed attorney in Ohio is presumed competent. State v. Smith (1985), 17 Ohio St.3d 98, 17 OBR 219, 477 N.E.2d 1128.\\nIn addition, this court must accord deference to defense counsel's strategic choices made during trial. Strickland v. Washington, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694.\\nDefendant initially suggests he was prejudiced by defense counsel's failure to bifurcate the aggravated felony specification set forth in the indictment. R.C. 2941.142 provides the defendant \\\"may request that the trial judge, in a case tried by a jury, determine the existence of the specification at the sentencing hearing.\\\" In the instant case, the defendant chose to testify. In light of the fact that the defendant chose to testify, it was not unreasonable to forgo bifurcation since evidence of the defendant's prior convictions would be admissible as to his credibility. As such, the defendant's first claim of ineffective assistance is without merit.\\nSecondly, defendant claims \\\"during his voir dire of the jury, defense counsel informed the jury of details of the appellant's criminal record which otherwise would [sic] have been admissible.\\\" Defense counsel's act of informing the jury of the defendant's admissible criminal record was not unreasonable. The admission constituted reasonable trial strategy. As such, the defendant's second claim of ineffective assistance is without merit.\\nThirdly, defendant contends that defense counsel's opening argument violated his right to counsel due to the fact that \\\"defense counsel said nothing about the facts or evidence in the instant case.\\\" We are unable to conclude that the outcome of the trial would have been different had defense counsel referred to the facts or evidence in his opening statement. Furthermore, the testimony and evidence adduced at trial was more than sufficient to support the defendant's conviction for felonious assault with a gun specification. Thus, defendant's third claim of ineffective assistance is without merit.\\nDefendant's fourth claim of ineffective assistance of counsel involves the failure of defense counsel to object to certain aspects of the victim's testimony. Specifically, defendant refers to the victim being allowed to testify on direct examination that he had seen the defendant peeking into his apartment a few days prior to the shooting, and defense counsel's further development of the peeking incident on cross-examination of the victim. He also refers to hearsay testimony concerning this incident.\\nThis court cannot conclude that the failure of defense counsel to object to testimony surrounding the insignificant peeking incident so prejudiced the defendant that he was denied a fair trial. Absent testimony about the peeking incident, sufficient evidence and testimony was adduced at trial to support the defendant's conviction for felonious assault with a gun specification. As such, defendant's fourth claim is without merit.\\nDefendant's fifth claim involves the direct examination of defendant in which details of defendant's criminal record and welfare status were elicited. Clearly, the direct examination of the defendant by defense counsel regarding the defendant's admissible criminal record was a strategic choice which cannot now be examined through hindsight. Strickland v. Washington, supra. Also, the fact that it was revealed the defendant was on welfare did not so prejudice the defendant as to deny him a fair trial.\\nTherefore, defendant's fifth claim of ineffective assistance is without merit.\\nIn his sixth claim, defendant asserts that he was denied effective assistance by counsel's failure to renew his Crim.R. 29 motion at the conclusion of all evidence.\\nA review of the trial court's entries reveals that defense counsel renewed the Crim.R. 29 motion at the close of defendant's case. The journal entry reveals that prior to closing arguments, the trial court denied the defendant's Crim.R. 29 request. Thus, defendant's sixth claim of ineffective assistance is without merit.\\nDefendant's seventh contention of ineffective assistance involves defense counsel's failure to request an instruction on the lesser included offense of aggravated assault.\\nR.C. 2903.11 defines felonious assault as follows:\\n\\\"(A) No person shall knowingly:\\n\\\"(1) Cause serious physical harm to another;\\n\\\"(2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance as defined in section 2923.11 of the Revised Code.\\n\\\"(B) Whoever violates this section is guilty of felonious assault, an aggravated felony of the second degree.\\\"\\nR.C. 2903.12 defines aggravated assault as follows:\\n\\\"(A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly:\\n\\\"(1) Cause serious physical harm to another;\\n\\\"(2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance as defined in section 2923.11 of the Revised Code.\\n\\\"(B) Whoever violates this section is guilty of aggravated assault, a felony of the fourth degree.\\\"\\nIn State v. Clark (1988), 38 Ohio St.3d 252, 527 N.E.2d 844, the Supreme Court of Ohio indicated that an instruction on a lesser included offense should only be given where the evidence warrants such an instruction.\\nWe conclude that a jury charge on aggravated assault was not warranted in the instant case. The record fails to reveal that the defendant was under the influence of sudden passion or in a sudden fit of rage brought on by serious provocation reasonably sufficient to incite him into using deadly force. The defendant's own testimony indicates that as he was walking out of the apartment, the victim of the shooting called him names and was acting aggressively. The defendant has failed to allege sufficient facts to warrant an instruction on aggravated assault. Had the defendant requested a jury instruction on aggravated assault, it would have been properly denied by the trial court. Therefore, defense counsel was under no duty to request an instruction on aggravated assault, and the defendant's seventh claim of ineffective assistance is without merit.\\nDefendant's eighth and final contention is that the trial court failed to properly instruct the jury on the limited purpose of evidence of a prior conviction. The trial court instructed the jury, in part, as follows: \\\"There was some evidence in this case of other convictions. As it relates to evidence of other convictions, they may be considered in determining the credibility of that particular witness.\\\" The trial court did not further instruct the jury that such evidence may not be considered for any other purposes.\\nIn light of the overwhelming evidence of defendant's guilt, we are not persuaded that the trial court's failure to indicate that evidence of other convictions was to be used for no other purposes so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Therefore, we find the defendant's eighth claim of ineffective assistance to be without merit.\\nHaving found that defendant's eight claims of ineffective assistance of counsel are without merit results in the finding that the defendant's first assignment of error is without merit.\\nII.\\nIn his second assignment of error, defendant alleges:\\n\\\"The trial court erred and violated appellant's right to due process of law by journalizing an entry which increased appellant's sentence on the felonious assault charge to twelve to fifteen years when it had pronounced in open court a sentence of eight to fifteen years for the same offense.\\\"\\nIn the present case, the transcript of proceedings states as follows:\\n\\\"THE COURT: It will be the sentence of this court that you will be sentenced to a term of not less than eight to fifteen years on the felonious assault charge. You will also receive, consecutive to that, a three year sentence on the gun specification charge.\\\"\\nThe journal entry of sentencing, however, indicated that defendant had been sentenced \\\"for a term of twelve (12) to fifteen (15) years on felonious assault charge This entry was filed on April 20, 1989.\\nDefendant argues that the trial court may not increase a sentence until it has vacated its prior sentence. Further, he argues that a defendant must be present when one sentence is vacated and a new sentence is imposed. Defendant's argument has merit.\\nIn order to modify a sentence pronounced in open court, it is necessary for the modification to be formalized in a journal entry, even though the original sentence was not. State v. Sweeney (Apr. 1, 1982), Cuyahoga App. No. 43810, unreported, 1982 WL 5274; State v. Butler (1974), 44 Ohio App.2d 177, 73 O.O.2d 196, 337 N.E.2d 633. Furthermore, the trial court does not possess statutory authority to increase a lawful sentence after the defendant has served part of that sentence. Brookpark v. Necak (1986), 30 Ohio App.3d 118, 30 OBR 218, 506 N.E.2d 936. In the present case the judgment entry filed on April 20, 1989, failed to indicate that a different sentence had previously been imposed in open court and was subsequently vacated. Therefore, the modified sentence as stated in the judgment entry is ineffective and invalid. State v. Sweeney, supra; State v. Butler, supra.\\nFurthermore, Crim.R. 43(A) provides in pertinent part as follows:\\n\\\"The defendant shall be present at the arraignment and every stage of the trial, including the impaneling of the jury, the return of the verdict, and the imposition of sentence. \\\"\\nIt has been held that Crim.R. 43(A) applies when one sentence is vacated and a new sentence is imposed. Columbus v. Rowland (1981), 2 Ohio App.3d 144, 145, 2 OBR 158, 159-160, 440 N.E.2d 1365, 1366-1367.\\nWe agree that Crim.R. 43(A) requires the physical presence of a defendant during sentencing. Review of the record fails to reveal that the defendant was present during imposition of the twelve- to fifteen-year sentence. It does, however, reveal that defendant was present during imposition of the eight- to fifteen-year sentence. In this regard the trial court's imposition of the eight-to fifteen-year sentence complied with Crim.R. 43 mandates, while the imposition of the twelve- to fifteen-year sentence did not.\\nAccordingly, under the authority of App.R. 12(B), we hereby reinstate the sentence of eight to fifteen years. The trial court's judgment entry as filed for journalization on April 20, 1989 reads in part as follows:\\n\\\"It is ordered by the Court that defendant Wayne C. Bell be sentenced to the Correctional Reception Center, Orient, Ohio, for a term of twelve (12) to fifteen (15) years on felonious assault charge, twelve (12) years actual time and three (3) years mandatory on the gun specification, to run consecutive.\\\"\\nThis part of the trial court's journal entry is amended and judgment of sentence is modified to read as follows:\\n\\\"It is ordered by the court that defendant Wayne C. Bell be sentenced to the Correctional Reception Center, Orient, Ohio, for a term of eight (8) to fifteen (15) years on felonious assault charge, eight (8) years actual time and three (3) years mandatory on the gun specification, to run consecutive.\\\"\\nThe judgment of the trial court is thus modified and affirmed as modified. This cause is remanded to the trial court with instructions to direct the Clerk of Courts to forward a certified copy of this journal Entry to the institution to which defendant is sentenced.\\nJudgment accordingly.\\nAnn McManamon and Parrino, JJ., concur.\\nThomas J. Parrino, J., retired, of the Eighth Appellate District, sitting by assignment.\"}"

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+"{\"id\": \"1487975\", \"name\": \"The Cincinnati, New Orleans & Texas Pacific R'y Co., an Ohio Corporation, v. The Third National Bank, of Urbana, Ohio\", \"name_abbreviation\": \"Cincinnati, New Orleans & Texas Pacific R'y Co. v. Third National Bank\", \"decision_date\": \"1885-10\", \"docket_number\": \"\", \"first_page\": \"199\", \"last_page\": \"211\", \"citations\": \"1 Ohio C.C. 199\", \"volume\": \"1\", \"reporter\": \"Reports of cases argued and determined in the circuit courts of Ohio\", \"court\": \"Ohio Circuit Court\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T18:59:22.711812+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Judges Cox, Smith and Swing.\", \"parties\": \"The Cincinnati, New Orleans & Texas Pacific R\\u2019y Co., an Ohio Corporation, v. The Third National Bank, of Urbana, Ohio.\", \"head_matter\": \"(First Circuit \\u2014 Hamilton Co., O., Circuit Court\\nOct. Term, 1885.)\\nBefore Judges Cox, Smith and Swing.\\nThe Cincinnati, New Orleans & Texas Pacific R\\u2019y Co., an Ohio Corporation, v. The Third National Bank, of Urbana, Ohio.\\nA blank certificate of stock in a railroad company, which had been signed by the president of said company, and by G. F. 33., its secretary, was left with the latter to be used in making necessary transfers of the stock of said company, all of which had previously to said time been issued. Gr. F. 13. fraudulently and criminally filled up said certificate as one to himself for 100 shares of said stock, and without the knowledge of said company, or any of its officers, other than the said 33. hypothecated the same to the plaintiff, in this city in which the office of the company was situated, no inquiry having been made by the plaintiff at the office of the company as to its genuineness. There was evidence tending to show negligence on the part of the officers of the railroad company in failing to examine the books and papers of the company left with the secretary. The note of 33. not being paid at maturity, it was by the plaintiff presented to defendant, with a request that said stock be transferred to it, as its own, in conformity with the power of attorney of 13. on the back thereof, and on refusal to do so, this suit was brought to recover damages.\\nHeld: , 1. That in so issuing said certificate illegally, 33. was not acting as the agent of the railroad company, but for himself.\\n2. That if there \\\"was negligence on the part of the railroad company in the matter complained of, to entitle the plaintiff to recover on that ground, it must be of such gross character, as to be the equivalent of bad faith or fraud.\\n3. That the plaintiff in taking from 33. the said certificate, without further inquiry of the officers of said company, as to its legality and validity, was guilty of contributory negligence.\\n4. That the loss of the bank, if any, was not the natural and proximate result of the negligence of the directors of the railroad company in failing to examine the books of the company, but that the crime of 33. was the natural and proximate cause thereof.\", \"word_count\": \"4921\", \"char_count\": \"27901\", \"text\": \"Cox, J.\\nThis is a petition in error to reverse a judgment of the Superior Court of Cincinnati.\\nThe action in that court was brought to recover the sum of $7,500, with interest from August 18, 1882, and costs.\\nThe cause of action was set out in two counts :\\nFirst, after reciting that the plaintiff and defendant were corporate bodies, the plaintiff charged that at the time of the transaction referred to, Theodore Cook was the president and Geo. F. Doughty the secretary of the defendant corporation; that the by-laws of the defendant provided, among other things, that the certificates of stock of the defendant should be issued under the corporate seal of the company and signed by the president and secretary, setting forth the number of shares which are owned by the party to whom each certificate should be issued; and, further, that the secretary should keep the office of the company open during business hours, and should be the custodian of the seal of the company, and should affix the same with the attestation thereof whenever the official business of the company should require it, and that he should keep the stock ledger, and make transfers of the stock of the company.\\n. Plaintiff further alleges that a certificate of stock was issued by the company, signed by the president and secretary, bearing the corporate seal.\\nThe certificate is numbered 473, and certifies that Geo. F. Doughty is entitled to one hundred shares of $100 each, of the capital stock of the company. This is signed by Theodore Cook, President, and Geo. F. Doughty, Secretary, and on the back of the certificate was printed a blank assignment, authorizing -to transfer the same on the books of the company.\\nPlaintiff further says that about the 17th of May, 1882, Geo. F. Doughty borrowed of plaintiff $7,500, and executed and delivered to plaintiff his promissory note, payable to himself or order, for that amount at ninety days, and deposited with it said certificate of stock as collateral security, and gave to plaintiff the power in writing to sell or collect, by public or private sale, said stock on the non-payment of said note at maturity; and Doughty then indorsed said certificate of stock, and delivered the same to the plaintiff, who then became the owner of said note and certificate, with the right to have the same transferred on the books of the defendant.\\nThat on the 23d of February, 1883, it presented said certificate with the indorsement to defendant at its office in Cincinnati, and demanded that the stock should be transferred to it on the books of the defendant, and that defendant should pay it the dividend due on said stock; but that defendant wholly refused to so transfer it, and refused to pay the dividends declared on said stock, and refused to recognize plaintiff as a stockholder, or permit it to enjoy any of the rights of a stockholder.\\nThat it made the loan of said money, wholly relying on the representation in said certificate that Doughty was then and there the owner of one hundred shares of the capital stock of defendant, and plaintiff says that defendant, by its acts, has deprived the plaintiff of the ownership of said shares of stock, and converted the same to its use, wherefore plaintiff asks damage for $10,000.\\nThis count proceeds upon the theory that the certificate of stock was the genuine issue of defendant.\\nThe second count, after proceeding with similar allegations to those above stated, then sets out \\\" that said one hundred shares were, as defendant alleges, an excess of the capital stock, which the defendant was, by its charter, authorized to issue, and the same was issued by the president and secretary illegally, and is wholly void; but that plaintiff has no knowledge of the illegal issue or the illegality of the stock, except such as is derived from information from defendant's officer, and that if said certificate was an overissue of the capital stock of defendant, and was thereby illegal and void, it was negligently and fraudulently issued by the defendant corporation and by its president and secretary, and the representations therein contained were falsely and fraudulently made to plaintiff, by which he was induced, in the usual course of business, to purchase and pay for said promissory note and certificate of stock, wherefore plaintiff prays for judgment against defendant for $7,500, with interest.\\\"\\nOn the trial of the c'ase below, defendant filed a motion to require plaintiff to state on which count he would proceed to trial, whether he would rely on the charge that the certificate of stock was a legal issue, or upon that which charges that it was not.\\nThis motion was overruled by the court.\\nA motion was also made to require plaintiff to separately state and number his charges. This was also overruled.\\nA motion was also made to strike out part of plaintiff's petition, which was overruled in part, and granted in part, and leave given defendant to answer the same.\\nA motion was also made by defendant to require plaintiff to definitely state in its second cause of action, whether or not the stock therein described is or is not the valid issue of the capital stock .of the defendant. This motion was overruled.\\nJune 13, 1883, defendant filed its answer in two counts, the first admitting that it is a corporation, and denying all the allegations of the petition. In the second count it states, that it is a corporation, and is a railroad; that its entire capital stock is three million of dollars, divided into shares of one hundred dollars each; that on the 8th day of October, 1881, the entire amount of said stock was subscribed for, fully paid and certificate issued to the respective subscribers therefor; that the pretended certificate for which suit was brought, was not issued by defendant, nor with its knowledge, or consent, or authority; but was issued by Geo. F. Doughty, fraudulently, for his own private purposes solety, and that Doughty did not then, nor has he since, owned said shares of capital stock intended to be represented by said certificate, and that the capital stock intended to be represented by said certificate is in excess of the capital stock of defendant, is an over-issue of said capital stock, void and of no effect, and represents no part of the capital stock of said company, of all which plaintiff had notice at the several times mentioned in the petition.\\nTo this answer, plaintiff replied denying its allegation.\\nThe case proceeded to trial before a jury, who returned a verdict finding for the defendant in the first cause of action, and for the plaintiff in the second cause, in the sum of $8,-473.75.\\nA motion for new trial was made by defendant, and overruled by the court, and judgment entered on the verdict.\\nThis petition in error now assigns these causes of error :\\n1. Error of the court in overruling motion for new trial.\\n2. In refusing to give-charges asked for by plaintiff.\\n3. In giving charges asked for by defendant.\\n4. In overruling demurrer of defendant to petition.\\n5. In admission of evidence offered by defendant in error.\\n6. In ruling out evidence offered by plaintiff in error.\\n7. That judgment was given for defendant in error instead of plaintiff in error.\\n8. Other errors appearing on the record.\\nAt the hearing of the case in this court, considerable argument was made and stress laid upon the inconsistent character of the twocounts of the petition,one suing on the certificate as if it were genuine and legal, and the other as if spurious and void, but issued through the negligence of defendant; and it was claimed that the motion to require plaintiff to specify the count on which he proceeded should have been granted, and also that it should specify in the second count whether it relied on the validity or invalidity of the issue of the certificate.\\nThere should be no inconsistency between the different counts in a petition. The supreme court in Ferguson v. Gilbert & Rust, 16 Ohio State Rep., 91, says, \\\" and as the Code requires pleadings to be verified by affidavit, we must assume that the plaintiff did not claim or intend under the second and general count to set up and prove a state of facts inconsistent with the allegations of the first.\\\" A different rule prevails as to an answer. By our Code a defendant may plead as many defenses as he may have, although they be inconsistent with each other. R. S., 5071; 29 Ohio St., 651, 655.\\nBut we can not see any force in this argument in regard to the first count.\\nThe jury found for the defendant on the first cause of action, and there is no judgment against it on that count, of which it can complain, and no prejudice to plaintiff.\\nIt is also claimed that the court erred in overruling the demurrer to the second count.\\nFirst \\u2014 Because plaintiff alleged in that count enough to show that the certificate was valid; and,\\nSecond \\u2014 That it did not allege that it was void, but only that defendant said it was void.\\nIt is said this is hypothetical pleading, which is never allowed either in law or in equity.\\nWhat are the allegations of the petition as to the issuing of the certificates? They are substantially as in the first count:\\n\\\" That the defendant corporation issued the certificate of stock, duly signed by the president and secretary, bearing the corporate seal, and describing it as a genuine certificate; that it was for value received, transferred and assigned to plaintiff, and the plaintiff therefore became the owner of said one hundred shares.\\\"\\nIt nowhere in direct language affirms that the certificate was an overissue or illegal, but asserts that the defendant says it is an overissue, and is illegal and void.\\nThe code requires a petition to contain a statement of facts constituting the cause of action in ordinary and concise language.\\nThe statement of fact relied on in the count as the primary cause of action is, that the defendant issued in due form its certificate of stock; that the plaintiff became the owner and was entitled to have it transferred to its name and draw dividends, and that because it was .so refused, it has a cause of action; and the statement that defendant said, it was an over-issue, is but the statement of a reason assigned by the defendant why the transfer was not made, a statement made by defendant by way of defense to the plaintiff's demand.\\nSuppose this were a petition filed to recover as for goods sold and delivered, and the plaintiff, after charging that he sold and delivered the goods to defendant, should aver that he demanded payment, and the defendant said he never purchased the goods nor were they delivered to him, and he refused to pay, what would be the issue to be tried by the court ? Not certainly what the defendant said about it, but the fact which the plaintiff alleged as the ground of action \\u2014 to-wit, that he sold and delivered the goods to .the defendant.\\nSo here, the plaintiff says the stock was issued by the defendant ; that it is the owner, and has a right to the transfer and dividends, and has been refused. These are the facts upon which his action rests. It counts on legally issued and valid stock. All the allegations of what defendant says, as to its illegality, are mere surplusage, and could have been reached by a motion to strike out.\\nBut the petition, after alleging the defense of defendants to the legality of the certificate, without admitting that it was an overissue or illegally issued, goes on to build up a case on what it alleges defendant claims, not in any pleading, but has informed it before any suit was brought, and proceeds to say that \\\" if the stock was an overissue, it was by reason of- defendant's negligence and fraud.\\\"\\nNow here is no positive statement that the certificate was illegally issued. One of the well known rules of pleading is, that the facts must be stated with requisite certainty. This is thus defined in Gould on Pleadings, Chap.'4, Sec. 23: \\\" It consists merely in alleging them so distinctly and explicitly as to exclude ambiguity, and make the meaning of the averments clearly intelligible.\\\" Section 26: \\\" It is sufficient, if the averments are so made that the adverse party, the jury and the judges, can fully understand the subject matter.\\\" Tested by this rule, can it be said that it can be fully understood whether in this count plaintiff relies and intends to maintain that the certificate sued on is a genuine one, or that it intends to admit that it was spurious, and to rely on fraud and negligence of the defendant in permitting it to be issued ?.\\nNow, although our statute is liberal in regard to the construction of pleadings, still I think that what Lord Coke calls \\\" certainty \\\" is still required by us. That is defined in Gould on Pleadings, chapter 3, section 54, as what upon a fair and reasonable construction, may be called certain, without recurring to possible facts which do not appear; that is, without denying or avoiding by anticipation, possible facts which may operate against him, and on the other hand, without the aid' of any supposable facts or circumstances not alleged by him.\\nI do not understand this to be a pleading in the alternative. Such pleading is not favored; a prayer in the alternative may be allowed, and is of frequent practice. But even the use of that must be on facts alleged to exist. A good example of this is given in Cadwallader v. The Granville Society, 11 Ohio Rep., 290, where the court say : \\\" If this bill had been framed in the alternative, demanding of the defendants what property they acquired from Poster, charging that it was under an illegal and void agreement, and asking that it might be set aside, or that if it should be held valid, the residuary interest of Poster might be subjected to the debt, it would afford an example,\\\" etc.\\nThe petition is open to the objection of improperly joining causes of action; as it stands, the defendant is necessarily driven to prepare and try one of two, or two causes of action :\\nFirst, to make such defense as he may have if the certificate were a legal one, and which may not involve any question of negligence in it, or any question of fraud, or illegal issue; and, second, another defense to a wholly different cause of action, involving illegality of issue, fraud and negligence. Each of these causes require different pleadings and different rules of evidence.\\nThe object of pleading is, that the parties be brought to an issue, and that the issue so produced be material, single and certain in its quality. Stephens on Pleading, 155.\\nAnd the rule is thus laid down in Pomeroy on Remedies, 456: \\\" If the facts alleged in the pleading show that the plaintiff is possessed of two or more distinct rights, each of which has been invaded, or that the defendant has committed two or more distinct and separate wrongs, it follows inevitably that the plaintiff has united two or more causes of action; although the remedy applicable to each would be the same, the relief forms no part of the action.\\\"\\nWe are of the opinion, therefore, that the court erred in overruling the motion to require the plaintiff to state definitely in the second cause of action, whether or not the stock therein described is or is not the valid issue of the capital stock of the defendant.\\nThe case proceeded to trial, however, on the second count, as if that where based on the ground that the certificate was illegally issued, and was so treated by the court' and the parties, and we think there was no error to the prejudice of defendant in overruling the motion.\\nIn the course of the trial, numerous exceptions were taken to the rulings of the court.\\nThe first is that the court erred in overruling the motion of plaintiff in error for judgment at the close of plaintiff's testimony.\\nOn examining the record, we find that the court only overruled the motion for the present, with leave to renew it at a later period; but as we do not find the plaintiff renewed it, we think he lost any advantage he might have obtained if he had renewed it.\\nIt is claimed that the court erred in permitting plaintiff below to re-open the case by cross-examination of defendant's witnesses in support of the second count. But the exception only goes to the order of trial.\\n\\\" Allowing evidence out of its order is within the discretion of the court, and if ground of error at all, it is only when it appears that a fair trial was thereby prevented.\\\" Webb v. State, 29 Ohio St., 351.\\nIt is claimed that the court erred in refusing to allow the word \\\" cancelled,\\\" on certain certificates, to go in evidence. We do not think the court erred in so ruling, as the evidence did not show that it had been placed there by Doughty, the secretary.\\nIt is claimed that the court erred in giving charges 13 and 16\\u00a3, as asked by the plaintiff.\\nAs to charge 13, we think as given by the court, it was erroneous ; that the court should have, on the fifth line of said charge, added after the word petition: \\\" after inquiry of the officers of the company as to the genuineness and legality of the certificate.\\\" Board of Education v. Sinton, 41 Ohio St., 513.\\nA certificate of stock is a document signed by the president and secretary of the company, showing the true amount of the stock held by a stockholder in a company. R. S., 3254. The certificate is not the stock, for a stockholder may be the owner of shares without having any certificate to evidence the fact; he may be the equitable owner although the stock appears on the books of the company in the name of another. R. S., 3259.\\nThese certificates are not negotiable under our statutes. Sec. 3171 makes all bonds, promissory notes, bills of exchange, foreign and inland bills and checks for a sum certain and payable to any person or order, negotiable by endorsement or payable to any person or assigns, negotiable on delivery, and when so negotiated, absolutely transfers and vests the property thereof in each and every endorsee or holder successively. R. S., 3171.\\nAnd he may maintain an action in his own name for the recovery thereof.\\nBut a certificate of stock is not a promise to pay money, and therefore does not come under our statutory definition of a negotiable instrument. Nor is it negotiable under the ordinary significance in mercantile usage. Assignable is the more appropriate term to describe it. Daniel on Negotiable Instruments, section la.\\nAnd the person who takes it by assignment, takes only what right, if any, the assignor has in stocks which the certificate professes to represent. He takes it subject to all equities which may exist against it. Charter Oak Life Insurance Co. v. Smith, 3 Bulletin, 603.\\nA stockholder is only by statute, sec. 3255, entitled to a certificate for such stock as shall have been paid up. He may have the certificate and may have assigned it to another for value received, and yet by section 6255, while the certificate is out, the shares of stock being personal property, may have been levied on and sold upon execution against the owner, and the purchaser at such a sale would acquire an ownership, to the exclusion of the outstanding certificate.\\nAnd hence the necessity of the party who is about to purchase certificates of stock, to exercise care and prudence in making enquiries of the officers of the company as to the legality and genuineness of the stock.\\nOr the certificate may be a . forgery, or issued by persons wholly without authority. And hence the necessity of the party who is about to purchase certificates of stock in a corporation, to exercise care and prudence in making enquiries of the officers of the company as to the legality and genuineness of the certificate and the interest the assignor may have therein, for in all these respects the purchaser would only take the interest the assignor had in the certificate; and especially is this the case when the person claiming to own the certificate is an officer of the company charged with the duty of is suing the certificate, and in his own name he issues it to himself.\\nClaflin v. The Farmers' and Citizens' Bank, 25 N. Y., 293, was a case where the president of a bank, having a general authority to certify checks, certified his own check when he had no funds in bank, and it was transferred to a purchaser for value, and without notice of the want of funds. Held that the bank was not liable to the purchaser. The certificate was beyond the president's authority, and the purchaser could not claim the right of a bona fide holder, because the face of the check showing the president's attempt to use his official character for his private benefit, every one to whom it comes is put upon inquiry, and when the certificate is false, no one can recover against the bank as a bona fide holder.\\nAnd in the case of the Board of Education v. Sinton, 41 O. S. Reports, 504, decided since this case came into this court, where Davis, being one of the Board of Education, which had issued bonds to which his name was signed officially, negotiated them to Sinton for value received. The supreme court decided \\\" that Sinton was not an innocent holder. The bonds disclosed on their face that Davis was one of the directors, and as such might well have possession of the paper without the right to dispose of it on his private account. Under these circumstances the duty of inquiry was put upon Sinton. And, having taken the bonds without inquiry, he was guilty in law of contributory negligence, and is not entitled to the position of an innocent purchaser. He dealt for his own gain with Davis alone, and trusted him at his peril; and we know of no principle of law that now entitles him to look to the tax-payers for re-imbursement.\\\"\\nTo this it was said, it would be of no use to make inquiry of Doughty, for he was guilty of the fraud. But to this answer, the Supreme court i-n Strong v. Strauss, 40 Ohio St., 89, and Board of Education v. Sinton, 41 Ohio St., 513, say : \\\" There is much force in the words of Sir John Romilly, Master of the Rolls, in a leading case, Jones v. Williams, 24 Beavan 62. With respect to the argument that it was unnecessary to make any \\u2022inquiry because it must have led to no result, he says 'I think it is impossible to admit of the validity of an excuse.' I concur in the ruling in Jones v. Smith, 1 Hare, 55, that a false answer, or a reasonable answer, given to an inquiry made, may dispense with the necessity of inquiry; but I think it impossible beforehand to come to the conclusion, that a false answer would have been given which would have precluded the necessity of further inquiry.\\\"\\nThe court should have further instructed the jury in said charge, that to entitle the plaintiff to recover on the ground of negligence of the Board, that the negligence must be of such gross character as to be the equivalent of bad faith or fraud, and the loss must result as the natural and proximate consequence of such alleged omission of duty. And that if the loss of the plaintiff was directly occasioned by the criminal act of Doughty in issuing such false certificate, that even if the board was negligent in failing to examine the books of said company, and in discovering the wrong done by Doughty in other matters, that the crime of Doughty, and not such negligence of the board, was the natural and proximate cause of the loss.\\nThis is the doctrine laid down by the supreme court in 41 O. S., 504-513, Board of Education v. Sinton, a cause decided by that court since this case was pending here. We think the principles cover this, and the court erred in not giving the law thus.\\nWe think the court erred in not granting a new trial.\\nThe testimony all tended to show that in issuing the certificate, Doughty did not act as the agent of the board, but was acting directly for himself, and the loss was not the natural or proximate result of the negligence of the board, but of the crime of Doughty.\\nIn issuing the certificate Doughty was not the agent of the company. In the case decided by the Supreme Court of Massachusetts, May, 1885, reported in the November number of the American Law Record, page 393, Santiago Innerarity et al. v. Merchants' National Bank, two or three points involved in this case are decided. The court says: \\\" The proposition that the director of a corporation acting avowedly for himself or in behalf of another, with whom he is interested in any transaction,' cannot be treated as the agent of the corporation therein, is well sustained by authority. Citing 16 N. J. Eq., (1 C. E. Green) 229; 27 N. J. Eq., (12 C. E. Green), 88; 4 Md., 341; 18 Kansas, 480; 5 Denio, 330-337; 10 Fed. Rep., 251; L. R. 7 Ch. App., 170; 26 Mich., 44.\\nUoadly, Johnson & Qolston, and Ramsey, Maxwell & Matthews, for plaintiffs in error.\\nStallo, Kittredge & Wilby, and Paxton & Warrington, for defendant in error.\\nAnd in the same case the court says that: \\\" While the knowledge of an agent is ordinarily to be imputed to the principal, it would now appear to be well established that there is an exception to the construction or imputation of notice from the agent to the principal, in case of such conduct by the agent, as raises a conclusive presumption that he would not communicate the fact in controversy, as wh\\u00e9n the communication of such a fact would necessarily prevent the consummation of a fraudulent scheme the agent was engaged in perpetrating.\\\" 3 Myl. & K., 699; L. R. 15 Ch. D., 639; L. R. 5 Ch. App., 358; 7 Ch. App., 161; 118 Mass., 147; 135 Mass., 453.\\nWithout going seriatim into every charge, we hold that all charges given by the court contrary to these principles, and those refused involving them, were erroneous, and the judgment will be reversed and case remanded to the superior court for a new trial.\\nSmith and Swing, JJ., concurred.\"}"

ohio/149484.json

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+"{\"id\": \"149484\", \"name\": \"In re Ewanicky\", \"name_abbreviation\": \"In re Ewanicky\", \"decision_date\": \"2003-09-05\", \"docket_number\": \"2003-1427\", \"first_page\": \"1534\", \"last_page\": \"1534\", \"citations\": \"99 Ohio St. 3d 1534\", \"volume\": \"99\", \"reporter\": \"Ohio State Reports, Third Service\", \"court\": \"Supreme Court of Ohio\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T21:23:18.641318+00:00\", \"provenance\": \"CAP\", \"judges\": \"Pfeifer, J., would grant.\", \"parties\": \"In re Ewanicky.\", \"head_matter\": \"2003-1427.\\nIn re Ewanicky.\", \"word_count\": \"69\", \"char_count\": \"421\", \"text\": \"Cuyahoga App. No. 81742, 2003-0hio-3351. This cause is pending before the court as a discretionary appeal and claimed appeal of right. Upon consideration of appellant's motion for stay of the orders and judgments of the probate court,\\nIT IS ORDERED by the court that the motion for stay be, and hereby is, denied.\\nPfeifer, J., would grant.\\nLundberg Stratton, J., would grant and continue bond.\"}"

ohio/1553899.json

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+"{\"id\": \"1553899\", \"name\": \"W. B. Wuestefeld v. Ben C. Albert\", \"name_abbreviation\": \"Wuestefeld v. Albert\", \"decision_date\": \"1916-01-20\", \"docket_number\": \"\", \"first_page\": \"601\", \"last_page\": \"604\", \"citations\": \"19 Ohio N.P. (n.s.) 601\", \"volume\": \"19\", \"reporter\": \"Ohio nisi prius and general term reports (new series)\", \"court\": \"Hamilton County Court of Common Pleas\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T23:53:41.010700+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"W. B. Wuestefeld v. Ben C. Albert.\", \"head_matter\": \"PROMISSORY NOTE RECEIVED FOR PRE-EXISTING DEBT IS TAKEN IN DUE COURSE AND FOR VALUE.\\nCommon Pleas Court of Hamilton County.\\nW. B. Wuestefeld v. Ben C. Albert.\\nDecided, January 20, 1916.\\nBills, Notes and Checks \\u2014 Note Received in Due Course and for Value*\\u2014 Where Taken in Payment of a Debt \\u2014 New Note Taken in Part Payment for One Which Had Become Due.\\n1. Where a note is received in payment of a pre-existing debt due from the signer of the note, he parts with nothing and the note is taken in due course and for value.\\n2. The holder of a note, which he surrenders for part payment in cash with the balance evidenced by a new note, is a holder for value.\\nCharles S. Bell and Frederick E. Niederhelman, for plaintiff in error.\\nM. Muller, contra.\", \"word_count\": \"1101\", \"char_count\": \"6151\", \"text\": \"Nippert, J.\\nError to the Municipal Court of Cincinnati.\\nThe defendant in error, Ben C. Albert, recovered a judgment of $203.75, in the court below, against the plaintiff in error, W. B. Wuestefeld, who now prosecutes error' to this court.\\nPlaintiff below based his claim against the defendant below on. a certain promissory note, of which the following is a true- and correct copy:\\n\\\"$200.00 \\u2022 May 28-th, 1914.\\n\\\"Ninety days after date I promise to pay to the order of H. Stem, Two Hundred Dollars.\\n\\\"At the Peoples Bank & Savings Company. Value Received.\\n\\\"W. B. Wuestefeld.\\n' ' Endorsements:\\n\\\"H. Stern,\\n\\\"Ben C. Albert.\\\"\\nThe said note was protested for non-payment and plaintiff paid $1.25 protest fees. Plaintiff claimed that he was the tona fide holder for value, in due course, of said note and recovered judgment in the sum of $203.75 and his costs.\\nThe defendant below, in his answer, admitted that he signed the note and sued upon, but says that he signed said note for the accommodation of said H. Stem, and that he received no consideration whatsoever for signing said note; and denied that Albert is the owner and holder for value of the note sued on or that he. took it in good faith for value and in due course of business; that the plaintiff took the note of said Stern and applied the same as - a credit upon the account of the claim which Albert then had against Stern and which claim was then due and owing by said Stem to plaintiff, and that at the time Albert took said note he gave no value or consideration therefor.\\nThe cause was submitted upon the pleadings and the evidence, and the court below, upon consideration thereof, found that there was due Ben C. Albert from W. B. Wuestefeld the sum of $203.75, to all of which defendant below noted his exceptions, mainly on the ground that said judgment is contrary to law in as far as the court held that Albert received this $200 note in due course of business and for value.\\nThe trial of the cause in the court below developed the following facts, to-wit: Before the giving of the $200 note involved herein, Stern had given Albert a note for $300, which Albert applied upon Stern's account of about $1,200; when this note matured Stern gave Albert $100 in cash and a note of $200, executed by Wuestefeld, in renewal of the $300 note. This $200 note was not paid at maturity and Albert thereupon sued Wuestefeld for the face of the note and recovered judgment, which is now before this court for review.\\nWhere a -party receives a note for a pre-existing debt due from the person who signs the note, he parts with nothing, for a conditional payment by note does not impair the right of the creditor to proceed upon the original indebtedness, and notes so taken are not taken in due course .and for value. This ap plies to the $300 note which Albert received from Stern, endorsed by Wuestefeld. The law regards such payment, under such circumstances, as conditional only, and the right of the creditor, Albert, to proceed upon the original indebtedness after the maturity of the paper is unimpaired unless there is affirmative proof of the intention on part of Albert to receive the SternWuestefeld paper in absolute discharge and satisfaction of the debt at the time of its receipt.\\nBut we are not called upon to fix the respective rights of the parties to this action in as far as the first note of $300 is concerned. Counsel for plaintiff in error would have a good defense if the suit had been brought upon the original $300 note, for under the decisions of our courts no valuable consideration passed when Albert accepted Stern's first note, and the record shows that it was a conditional payment only.\\nThe question raised -in this case is as to the liability of Wuestefeld upon a $200 note, which was given by Stern to Albert when the above-mentioned $300 note matured. The record discloses the fact that upon the maturity of the $300 note, Stern paid Albert $100 cash and gave him the note executed by Wuestefeld for the balance, that is, $200. The $300 note was delivered to Stern and was sufficient consideration for the $100 payment and the $200 note. The consideration was the surrender of the original $300 note.\\nIn the case of Van Norden Trust Co. v. Rosenberg, 62 Misc., 285, the court held that the holder of a note for $2,000, who surrendered it for a payment of $500 cash and a new note for $1,500 executed by the maker and endorsed by the defendant, was a holder for value.\\nIn surrendering the old note; Albert parted with value, and the ease is thus brought expressly within the terms of Section 8131, General Code:\\n\\\"When value at any time has been given for the instrument, the holder is deemed a holder for value in respect to all parties who became such prior to that time.\\\"\\nBrannin, Neg. Instr., p. 35, supports this principle.\\nThe fact that the $200 note of Wuestefeld was discounted by Albert at the Peoples Bank does not strengthen the case of the defendant in error. The note became an instrument for value in the hands of Albert the moment he delivered the old note for $300. It is admitted that Albert acted in good faith and without fraud and without notice that the note of Wuestefeld was an accommodation note, so that, the defendant in error having taken the note in good faith and for value must be considered a holder in due course and is entitled to recover.\\nThe judgment below will therefore be affirmed.\"}"

ohio/1555416.json

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+"{\"id\": \"1555416\", \"name\": \"In the Matter of the Estate of Wm. L. Curry, Deceased, on Exceptions to Account\", \"name_abbreviation\": \"In re Estate of Curry\", \"decision_date\": \"1917-02-19\", \"docket_number\": \"\", \"first_page\": \"49\", \"last_page\": \"58\", \"citations\": \"20 Ohio N.P. (n.s.) 49\", \"volume\": \"20\", \"reporter\": \"Ohio nisi prius and general term reports (new series)\", \"court\": \"Preble County Court of Common Pleas\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T21:01:50.440556+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of the Estate of Wm. L. Curry, Deceased, on Exceptions to Account.\", \"head_matter\": \"EXPENSES OF DEFENDING A WILL.\\nCommon Pleas Court of Preble County.\\nIn the Matter of the Estate of Wm. L. Curry, Deceased, on Exceptions to Account.\\nDecided, February 19, 1917.\\nEstates of Decedents \\u2014 Expenses Incurred in Defending a Will \\u2014 May be Charged Against the Estate, When \\u2014 Success of the Defense Not a Determining Fact \\u2014 Executor Must Act from Disinterested Motives and the Estate Must Receive Some Benefit.\\n1. An action to contest a will is a statutory proceeding controlled by the parties, the ultimate object thereof being to determine their rights to the property devised, and wherein the estate is not increased nor diminished nor affected by the result.\\n2. Under ordinary circumstances those claiming under the will are the proper parties to defend it when assailed, and as a general proposition an executrix is not called upon to engage in the contest and charge the estate with the expense thereof. If the beneficiaries make no defense and request or permit her to do so and she is successful, her right to credit in her account for expenses incurred is not absolute but will depend upon the circumstances of such particular case.\\n3. A circumstance of great weight is her interest or lack thereof in the result of the contest. If a devisee under the will, she is interested in sustaining the validity thereof and a presumption arises that she engaged in the contest in defense of her own personal interest, and because thereof she may not, if successful, charge the estate with her proper expenses unless it appear that she assumed the burden from disinterested motives and that her defense inured to the benefit of the whole estate.\\nBisinger & Bisinger and Chas. L. Hopping, for exceptors.\\nElam Fisher, Loivry & King and Gotlschall c& Turner, contra\", \"word_count\": \"3675\", \"char_count\": \"21114\", \"text\": \"Bowman, J.\\nThis case is submitted to the court on exceptions to the account of Irma C. Ricker^ executrix of William L. Curry, deceased.\\nThe exceptions ar\\u00e9 to two items of credit claimed by the executrix in her account for fees and expenses paid attorneys for their services in successfully defending an action to contest the will of said deceased, one item representing the payment to Judge Elam Fisher and Lowry & King, and the other payment to Gottsehall & Turner. They were disallowed by the probate court and executrix appeals.\\nSaid services were performed by said attorneys because employed to do so. The contract with Judge Fisher and Lowry & King is in writing; that with Gottsehall & 'Turner rests wholly in parol. It is established by the evidence, however, that the parties who signed the written contract with said attorneys authorized the employment of Gottsehall & Turner upon the same terms and conditions as Judge Fisher and Lowry & King save only as to amount or rate of compensation.\\nIt is conceded that the payments to said attorneys were a reasonable and proper compensation for their services. The exceptors insist, however, that these payments are not proper items of credit in said account because the contract does not provide for their payment by the executrix, and that it was beyond her power to bind the estate therefor. \\u2022\\nThe contract in writing is signed by said Irma C. Ricker personally and as executrix, and it is conceded that there is no provision therein that said compensation to said attorneys should be allowed and paid out of the estate. The executrix contends, however, that the parties entered into said contract with said attorneys with the distinct, collateral understanding and agreement, that if successful in said contest the amount they obligated themselves to pay said attorneys would be allowed and paid out of the estate.\\nThe contract being in writing, the court is bound by its terms, and upon familiar principles can not, therefore, consider the uncontradicted parol evidence offered by the executrix in support of her claim aforesaid.\\n'This evidence is also in direct conflict with the collateral written contract between the parties employing said counsel, in which it is agreed that if the will is sustained the amount so agreed to be paid said counsel is to be contributed and paid by them in fixed proportions as stipulated therein.\\nBut if proper for the court to consider this evidence and if said counsel were employed by the executrix pursuant to such understanding, she did not bind the estate for their payment, for she may not do so by an executory contract and thus create a liability not founded upon a contract or obligation of the testator. If the services rendered under such employment were important and valuable and for the benefit of the estate, the law contemplates that she will pay the value thereof and be reimbursed by receiving credit for the amount thus paid in the settlement of her account. Thomas v. Moore, 52 O. S., 200, 204, 206.\\nPassing, then, the contract with said attorneys as creating no liability against the estate, the question is, what are the duties and privileges of the executor in case the validity of a will is contested, and under what circumstances may an executor be allowed credit in his account for the services of attorneys employed by him in the contest of a will?\\nSections 12079, et seq., \\u00f3f the General Code, provide for an action to contest a will, and contemplate a suit between' those claiming under the will and those who consider themselves injured by it. Only a person interested in a will may contest it, and all devisees, legatees and heirs of the testator and other interested persons, including the executor or administrator, must be made parties to the action. An issue must be made up \\\"whether or not the writing produced is the last will or codicil of the testate,\\\" which shall be tried by a jury.\\nThe contest, therefore, is a statutory proceeding in which the contestant or plaintiff denies, and the defendants affirm, the validity of the will. The parties control the proceedings and the estate is not affected by the result. As said by Macfarlane, J., in In re Estate of Soulard, 141 Mo., 642, speaking at page 670:\\n\\\"The technical contest in such statutory proceeding is over the validity of the will, but the ultimate object, the real object, is to determine the rights of the parties to the property. The estate is neither increased nor diminished by the result, and the executor is only interested in seeing that the formal proof of the due execution of the will is made. ' '\\nUnder ordinary circumstances, those claiming under the will are the proper parties to defend it when assailed, and the executor is not called upon to do so, and as a general proposition he has no right to espouse the cause of the parties to either side, and, engage in the contest and charge the estate with the expense thereof. Alexander's Estate, 211 Penn., 125.\\nTherefore, it is held in Andrews v. Andrews, 7 O. S., 143:\\n\\\"An executor is not bound to assume the burden of the defense of a contest of the will by the heirs-at-law, but may properly -throw the same upon the legatees or devisees.''\\nAnd, further, that:\\n\\\"The executor is not entitled, when the will is adjudged invalid, to charge the estate, in his settlement account, with the expense of maintaining such defense.\\\"\\nBut, as said by Brinkerhoff, J., speaking for the court in that case at page 151:\\n\\\"Should he do so, and do it successfully, it seems he would, in that case, be entitled to charge his proper expenses against the trust estate; and this for the reason that his expenditure inures to the benefit of the cestui que trust.\\\"\\nThis case was followed and approved by the Supreme Court in the unreported case of In re Estate of Daniel Laws, Dec'd, 17 Bull., 80; 18 Bull., 198 (10th O. Dec., 39).\\nThe facts in these cases are significant and deserve special attention. In both cases the action was brought by the heirs-at-law of the testator whom he had practically disinherited, and the contest therefore was between the heirs-at-law and the devisees and legatees named in the will. If the will was sustained the heirs would get nothing. If set aside, the devisees and legatees would get nothing. The heirs were all therefore interested and would be benefited in a successful contest of the will, and the beneficiaries under the will were all equally interested and would be benefited if the contest failed, and this interest caused all the heirs to array themselves as contestants and all the beneficiaries to band themselves together in the defense of the will. In both cases, the executor assumed the burden of the \\u2022 defense of the will. In the first case the will was set aside; in the latter the will was sustained, and therefore the successful defense of the executor in the latter case inured to the benefit of all the beneficiaries under the will, and if they permitted the executor to make the defense for them, the property devised to them should bear his expense in so doing.\\nTwo facts stand out prominently upon the record in these cases and apparently control the question: (1) the contest was between the heirs as a class and the beneficiaries under the will as a class, arrayed as opposing forces with no middle ground between them; and (2) the beneficiaries made no defense but permitted the executor to make it for them.\\nBut if an executor does assume the burden of a will contest and is successful, it does not follow that he is entitled to credit in his account in all cases for his expenses incurred in so doing. His right thereto depends upon the circumstances of each particular case. Weir v. Weir, 7 C.C.(N.S.), 289.\\nThe circumstances or factor controlling his right thereto is his personal interest or lack thereof in the result of the contest. As said by Jelke, J., in Weir v. Weir, supra, speaking at page 290:\\n\\\"Where done in a disinterested effort to maintain the will and preserve the trust therein created and to effectuate the intention of the testator as declared in what is found truly to be his last will and testament, a court of chancery may allow the executor credit in his account for his expenses incurred in defending such'will.\\\"\\nIf he is a devisee under the will and his interest depends largely if not entirely upon its validity, the parties directly interested and not the estate should bear the expense of the litigation, for, as said by Macfarlane, J., in In re Estate of Soulard, 141 Mio., 642, speaking at page 670:\\n\\\"Any other rale might operate ruinously to estates, and is contrary to the manifest policy of our law. If the expense of the contestants is to be paid out of the estate, they would have nothing.to lose and everything to gain by the contest. There would be no limit to the expense the parties might incur short of the value of the estate itself. The entire estate could therefore be swallowed up in the litigation and the contestants, if successful, would reap a barren victory. A premium to contest the will would thus be given to parties who might be displeased with the disposition the testator had niade of his property. But few unsatisfactory wills would escape a contest. ' '\\nLooking then to the facts and circumstances of this particular case, the evidence discloses that the testator never married and died possessed of a large estate. In the second item of his will he devises to his grand-niece, Lois Curry, a minor, \\u2022 certain real estate and $2,000 in money; in the third item thereof he devises to his grand-niece, Irma C. Ricker (nee Curry), certain real estate and appoints her executrix of his will and also trustee of the property devised to her sister in item two aforesaid; in the fifth item he gives to his sister, Mrs. Barr, $10,000 in money; in item six he gives $2,500 to his niece, Jean Curry Lindsey; in item seven he gives $500 to his nephew, Iienry Curry, and in item eight he gives to his grand-nephew and niece, Fern and Lowry Conley, jointly $500.\\nThese legacies do not dispose of his entire estate, and he died intestate as to a considerable residue which descends to his lieirs-at-law. The specific legacies to Lois Curry and Irma C. Ricker are each of the approximate value of $10,000.\\nThe testator died leaving two brothers, John P. and Sylvester Curry; one sister, Mrs. Barr, and John Y. and Elmer Curry, sons of a deceased brother. Irma and Lois Curry, the legatees named in items two and three, are children of said John Y. Curry and grandchildren of said deceased brother. Jean Curry Lindsey, the $2,500 legatee named in item six of said Will, is a daughter of Sylvester Curry, a brother of the testator aforesaid. The $500 legatees named in items seven and eight are children and grandchildren of John P. Curry, the brother of the testator aforesaid.\\nSaid John P. Curry, brother of the testator aforesaid, commenced an action to contest the will, and, having died, his brother, Sylvester Curry, renewed the same.\\nWhile Mrs. Barr survived the testator, she died before the commencement of said action of her brother, John P. Curry, to contest said will.\\nThis action was tried three times before a jury and resulted in a final judgment sustaining the validity of said will.\\nOnly the legatees, Irma C. Ricker and Lois Curry, and two of the sons of Mrs. Barr signed said contract of employment with said attorneys, the husbands of the two daughters of Mrs. Barr evidently representing them and by their authority signed the same for them. While Irma C. Ricker signed the contract as executrix, she bound herself personally only as heretofore shown. The attorneys represented those who employed them and their services were rendered evidently for the benefit of all their employers, and all were interested in having the will sustained.\\nHaving employed counsel to defend said action to contest the will there was no occasion for the executrix to do so. Whether any of the other legatees should aid or assist or take any interest in the defense of said will was entirely personal to them and there is no evidence that they did so, or that they requested the executrix to make said defense.\\nThe contest was not, therefore, between the heirs as a class and the beneficiaries under the will as a class, and the parties to said action were not thus interested and did not divide on those lines.\\nSaid executrix being also a legatee had therefore a \\\"divided duty\\\" to perform, one of which she was not bound to assume, and self-interest would most likely prompt her to perform the other. She was, therefore, vitally interested in having the will sustained. Evidently the legacy to her and those to her sister, Lois Curry, and Mrs. Barr, invited the attack, and the rule is, that when her duty as an executrix is balanced against her private or individual interests the latter must yield, and all doubts and uncertain charges are to be resolved in favor of the estate, for it would be inequitable for an executrix to defend her legacy and receive the same in its entirety with the expense of the defense charged to the heirs at law or residuary legatees under the will. Weir v. Weir, 7 C.C.(N.S.), 289, 291.\\nIn view of the fact that she was a legatee and because thereof directly interested in sustaining the validity of said will, it is quite probable that her assumption of the defense of said will was not entirely a disinterested effort on her part as executrix to maintain the will regardless of any personal interest she may have had in the result of the contest. On the contrary, it is quite natural that in making said defense she was largely, if not entirely, controlled because of her personal interest in sustaining the will. If so, the case would fall within the general rule that an administrator or executor can not be allowed counsel fees incurred for services rendered in defense of his own personal interest, or where the litigation is in reality between beneficiaries, and not for, the benefit or in the interest of the estate as a whole. In re Whitlow's Estate, 184 Mo. App., 229, 246, 247; 2d Woerner's American Law of Administration (2d Ed.), Section 516.\\nThe further claim is made that these legacies are special and that said legatees are entitled to receive the same without deduction or diminution, and it was not the intention of the testator that they should stand any part of the ex\\u00b0pense of defending an unsuccessful attack upon the validity of the will, and that such expense should be justly borne by the residuary estate.\\nBut as heretofore shown, it is a question between the legatees and the heirs-at-law, of whom only one of the latter attacked the will, and in which the estate can have no interest, and the case is not, therefore, unlike the case of Weir v. Weir, 7 C.C.(N.S.), 289, where the credit was disallowed because the attack on the will was chiefly due to the fact that a large special bequest was made to the executor, and although the attack was unsuccessful, it was held that the allowance was not permissible and the hardship cast upon the legatee requiring him to make the defense was \\\"only one of the burdens incident to the acquisition and ownership of property,\\\" and, as said by Jelke, J., speaking at page 291 in that case, this objection would \\\"lie just as well in the mouth of any successful defendant whose property rights had been assailed. ' '\\nIn the ease of In re Account of Ullman, 12 C.C.(N.S.), 340, an executor successfully defended an action to set aside the will and was allowed a reasonable amount for counsel fees in that behalf, and the effect was to place the entire burden upon the residuary legatee. But it appears that the executor was practically a trustee and clothed with some extraordinary powers in addition to the ordinary duties of executor, and that such residuary legatee was the one most vitally interested in sustaining the will and made no defense and permitted the executor to assume the burden thereof and was quite willing to take the full benefits derived from, such successful contest.\\nThe claim is also made that the executrix was appointed because of the confidence reposed in her by the testator; that she represents the testator in carrying out his will; that it is her duty to carry his will into execution; that his wishes should be respected, and that so solicitous was the testator in that respect that he visits his wrath upon those of his kindred who would lay profane hands upon his will or question its validity, and it is urged, therefore, that the executrix had a right to devote his estate to the defense of his will and from the vandal hands of those who would destroy it.\\nThe court was greatly impressed with this claim, and although it gave it much consideration it can not adopt the same. While the executor represents his testator not only in executing the will after its probate, he also represents him in having it probated. It is his duty, therefore, to have it probated, for this is necessary in order to make it effective. In so doing, he acts in the capacity of a representative of his testator, and is entitled to be reimbursed out of the estate for all expenses incurred in good faith in the discharge of this duty, whether the will be established or rejected. In re Estate of Soulard, 141 Mo., 668.\\nBut the will having been admitted to probate, the effect of the commencement of an action to contest the will is, under Section 10633, G-. C., to suspend, or at least greatly limit, the powers and duties of the executor pending said litigation, and, as said by Macfarlane, J., in the case of In re Estate Soulard, 141 Mo., 671:\\n' ' The trusteeship of the executor is suspended during the litigation, and he has no power over the estate and no duty to perform in respect of it other than what he derived from his mere nomination by the testator.\\\"\\nAnd therefore, as said by him at page 672:\\n\\\"While it would have been the duty of the executor to propound the will for probate, and in statutory contests to make formal proof of its due execution and attestation, if no one else undertook that duty, yet the expense of trying the matters contested should be borne by the parties interested in the result.\\\"\\nTrue, it is said by Brinkerhoff, J., in Andrews v. Andrews, 7 O. S., 143, speaking at page 151, that an executor is a trustee and having accepted a trust is bound to defend the trust estate; but he adds that with the exception of an obiter djctum referred to in the same opinion:\\n\\\"We find no authority to sustain the position that a party acting as trustee is bound to defend tire relation of trustee whenever the rightful existence of that relation is assailed or called in question.\\\"\\nThe defense of a trust estate, therefore, presupposes its rightful creation and authority to exist. The defense of the validity of its creation is another matter and quite apart from the control and management of the trust estate.\\nThe executrix, therefore, being a legatee and interested personally in sustaining the will, having joined with the other legatees likewise interested in sustaining the will in the employment of counsel to defend the same, there was no occasion for her, as such executrix, to d\\u00f3 so, and it follows that said amounts so paid to said attorneys are not proper items of credit in her account and should be disallowed, and the exceptions thereto are sustained.\"}"

ohio/1608837.json

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+"{\"id\": \"1608837\", \"name\": \"State v. Blogna\", \"name_abbreviation\": \"State v. Blogna\", \"decision_date\": \"1990-01-08\", \"docket_number\": \"Case No. CA-7880\", \"first_page\": \"184\", \"last_page\": \"186\", \"citations\": \"1 Ohio App. Unrep. 184\", \"volume\": \"1\", \"reporter\": \"Anderson's Unreported Ohio Appellate Cases:  cases argued and determined in the Ohio courts of appeal\", \"court\": \"Anderson's Unreported Ohio Appellate Cases\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T20:50:59.322858+00:00\", \"provenance\": \"CAP\", \"judges\": \"SMART, J., Concurs.\", \"parties\": \"State v. Blogna\", \"head_matter\": \"State v. Blogna\\nCase No. CA-7880\\nStark County (5th)\\nDecided January 8, 1990\\n[Cite as 1 AOA 184]\\nFor Plaintiff-Appellee, Debra M. Hughes, Prosecuting Attorney's Office, Massillon City Hall, Massillon, Ohio 44646,\\nFor Defendant-Appellant, James B. Lindsey, 424 Citizens Savings Bldg., Canton, Ohio 44702.\", \"word_count\": \"1394\", \"char_count\": \"8680\", \"text\": \"GWIN, J.\\nOn March 26, 1989, defendant-appellant, Matthew D. Blogna (appellant), was involved in an automobile accident and was charged with the offense of Driving While Under the Influence of Alcohol pursuant to R.C. 4511.19(AX1) and (A) (3). The face of the Uniform Traffic Citation indicated that appellant had a prior DUI offense.\\nOn May 2, 1989, following his pleas of not guilty to the above charges, appellant pled no contest to one count of DUI and was found guilty of the same. However, prior to sentencing, counsel for appellant informed the trial court that appellant's prior charge of DUI occurred on December 22,1987, when appellant was seventeen years old. From that charge, appellant was adjudicated a juvenile traffic offender on February 12, 1988. Therefore, counsel for appellant argued through motion, appellant should be sentenced as a first offender because the adjudication as a juvenile traffic offender is not a conviction as required by R.C. 4511.99.\\nOn May 30, 1989, the trial court, by judgment entry, overruled appellant's motion and found that appellant's adjudication was a conviction of record and therefore appellant was not entitled to be sentenced as first-offender. The trial court then sentenced appellant not entitled to be sentenced as first-offender. The trial court then sentenced appellant accordingly.\\nAppellant now seeks our review of his sentence and raises the following sole assignment of error:\\nASSIGNMENT OF ERROR THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING THAT THE DEFENDANT-APPELLANT HAD BEEN \\\"CONVICTED\\\" OF A PRIOR DRIVING WHILE UNDER THE INFLUENCE OFFENSE WITHIN THE MEANINGOF OJt.C.4511.99(A)(2)SINCE THE DEFENDANT-APPELLANT HAD BEEN PREVIOUSLY ADJUDICATED A JUVENILE TRAFFIC OFFENDER BY WAY OF A DRIVING WHILE UNDER THE INFLUENCE OFFENSE IN THE STARK COUNTY COMMON PLEAS COURT, JUVENILE DIVISION, IN 1988. SAID \\\"CONVICTION\\\" SHOULD NOT HAVE BEEN CONSIDERED BY THE TRIAL COURT SINCE SUCH \\\"CONVICTION\\\" IS NOT ADMISSIBLE PURSUANT TO O.R.C. 2151.358(H). IF THE TRIAL COURT WOULD NOT HAVE CONSIDERED THE PRIOR JUVENILE COURT ADJUDICATION AS A \\\"CONVICTION,\\\" THE DEFENDANT-APPELLANT WOULD ONLY HAVE BEEN SENTENCED TO A 72-HOUR SENTENCE AS EVIDENCED BY THE COURT'S SENTENCING JUDGMENT ENTRY.\\nI\\nR.C. 4511.99(A) (2) provides in pertinent part:\\nWhoever violates section 4511.19 of the Revised Code, in addition to the license suspension or revocation provided in section 4507.16 of the Revised Code, shall be punished as provided in division (AXD, (2), or (3) of this section.\\n(2) If, within five years of the offense, the offender has been convicted of or pleaded guilty to a violation of section 4511.19 of the Revised Code... the court shall sentence the offender a term of imprisonment of ten consecutives days.... (Emphasis added)\\nAs indicated above, R.C. 4511.99 speaks only of previous DUI convictions and is silent as to juvenile traffic offender (by way of DUI offense) adjudications. Therefore, the initial issue confronting us is whether such adjudications fall within the purview of R.C. 4511.99.\\nR.C. 2151.358(H) provides, in relevant part:\\na judgment entered against a juvenile under R.C. Chapter 2151...shall not impose any of the civil disabilities ordinarily imposed by conviction of a crime in that the child is not a criminal by reason of the adjudication, nor shall any child be charged or convicted of a crime in any court except as provided by this chapter.\\nJuvenile proceedings pursuant to R.C. Chapter 2151 are neither \\\"criminal\\\" or \\\"civil\\\" in nature. In re: C. (1975), 43 Ohio Misc. 98, 72 O.O.2d 421, 422. In fact, under the Juvenile Act, a child cannot be found to have committed a crime but can only be found delinquent, unruly, or a traffic offender. In re: Morris (1971), 29 Ohio Misc. 71, 58 O.O.2d 126, 127.\\nThere are numerous distinctions between criminal prosecutions and juvenile adjudications. For instance, the United States Supreme Court has held that a trial by jury in criminal cases is fundamental and guaranteed by the Sixth Amendment. McKeiver v. Pennsylvania (1971), 403 U.S. 528, 29 L.Ed.2d 647, 658, citing Duncan v. Louisiana (1968), 391 U.S. 145, 149. However, States are not required provide jury trials in juvenile proceedings. McKeiver, supra.\\nFor the above reasons, we firmly believe the trial court, in the case sub judice, erred as a matter of law in finding appellant's adjudication as a juvenile traffic offender constituted a conviction of record. Instead, as the State contends, the trial court should have looked to R.C. 2151.358(H), which provides:\\nThe disposition of a child under the judgment rendered or any evidence given in court is not admissible as evidence against the child in any other case or proceeding in any other court, except that the judgment rendered and the disposition of the child may be considered by any court only as to the matter of sentence or to the granting of probation. The disposition or evidence shall not operate to disqualify a child in any future civil service examination, appointment or application. (Emphasis added).\\nHence, the trial court may consider, but is not required to consider, a past juvenile adjudication of delinquency, unruliness, and/or traffic offender during the sentencing process.\\nThe trial court, in its judgment entry overruling appellant's motion seeking sentencing as a first offender, stated:\\nIf this had been the defendant's first conviction of a violation of O.R.C. 4511.19, the court would have sentenced the defendant to a first-offender sentence; namely, seventy-two hours in the Stark County United Way Alcohol Treatment Program or the Stark County Jail, and not ten days in the Stark County Jail.\\nAccordingly, we reverse and remand this cause, as to the trial court's sentencing of appellant as a second offender, with instructions that the trial court resentence appellant as a first-offender in accordance with this opinion.\\nSMART, J., Concurs.\"}"

ohio/1608953.json

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+"{\"id\": \"1608953\", \"name\": \"Nicholson v. Landis\", \"name_abbreviation\": \"Nicholson v. Landis\", \"decision_date\": \"1990-02-27\", \"docket_number\": \"Case No. 1404\", \"first_page\": \"146\", \"last_page\": \"154\", \"citations\": \"1 Ohio App. Unrep. 146\", \"volume\": \"1\", \"reporter\": \"Anderson's Unreported Ohio Appellate Cases:  cases argued and determined in the Ohio courts of appeal\", \"court\": \"Anderson's Unreported Ohio Appellate Cases\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T20:50:59.322858+00:00\", \"provenance\": \"CAP\", \"judges\": \"GREY and HARSHA, JJ., Concur\", \"parties\": \"Nicholson v. Landis\", \"head_matter\": \"Nicholson v. Landis\\nCase No. 1404\\nAthens County (4th)\\nDecided February 27, 1990\\n[Cite as 1 AOA 146]\\nGwinn & Wallace, Mr. James A. Wallace and Ms. Susan L. Gwinn, Athens, Ohio, for Appellant,\\nBricker & Eckler, Mr. Michael J. Renner, Columbus, Ohio, for Appellee, O'Bleness Memorial Hospital\\nPorter, Wright, Morris & Arthur, Mr. William M. Todd, Columbus, Ohio, for Appellee, Dr. Phillip D. Kinnard.\", \"word_count\": \"6077\", \"char_count\": \"36808\", \"text\": \"STEPHENSON, J.,\\nThis is an appeal from two judgments entered by the Athens County Court of Common Pleas, one granting a motion for summary judgment whereby O'Bleness MemorialHospital (O'Bleness), defendant below and appellee herein, was dismissed from the case and the other upon a jury verdict finding in favor of Dr. Phillip D. Kinnard (Kinnard), defendant below and appellee herein. Judith A. Nicholson, plaintiff below and appellant herein, assigns the following errors:\\n\\\"I. THE TRIAL COURT ERRED IN SUSTAINING THE MOTION OF DEFENDANT-APPELLEE O'BLENESS MEMORIAL HOSPITAL FOR CHANGE OF VENUE AND IN TRANSFERRING THIS CASE FROM FRANKLIN COUNTY TO ATHENS COUNTY.\\nII. THE TRIAL COURT ERRED IN SUSTAINING THE MOTION OF DEFENDANT-APPELLEE O'BLENESS MEMORIAL HOSPITAL FOR SUMMARY JUDGMENT AND IN DISMISSING O'BLENESS MEMORIAL HOSPITAL AS A PARTY DEFENDANT.\\nIII. THE TRIAL COURT ERRED IN EXCLUDING FROM EVIDENCE THE TESTIMONY OF FRANCIS C. JACKSON, M.D. ONL [sic] THE ISSUE OF LIABILITY.\\nIV. THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE THE DECISION OF THE ARBITRATION PANEL.\\nV. THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY ON THE STANDARD OF CARE REQUIRED OF DEFENDNAT [sicbAPPELLEE PHILIP D. KINNARD, M.D.\\\"\\nThe following facts are pertinent to this appeal. On March 5, 1983, at the intersection U.S. Route 50 and State Route 329 in Athens County, Ohio, an automobile operated by James E. Landis collided with a motorcycle being operated by Robert H. Nicholson (decedent) and on which appellant was a passenger. Both appellant and decedent incurred serious injuries as a result of the accident and were transported to O'Bleness for treatment.\\nDr. John Ortman was called by one William Cooley, a friend of appellant and decedent, and was asked to go to O'Bleness to treat the Nicholsons. Before proceeding to the hospital, Dr. Ortman telephoned Dr. David Brown, the attending emergency room physician at O'Bleness, and after discussing the case, Dr. Ortman told Dr. Brown to call Kinnard. Dr. Ortman went to the hospital and began treatment of the Nicholsons. However, after Kinnard arrived at O'Bleness, both Dr. Brown and Dr. Ortman believed Kinnard to be ultimately responsible for the care and treatment of decedent.\\nAfter examining decedent, Kinnard decided that decedent should be transferred to Saint Anthony Hospital in Columbus. Kinnard discussed his decision with both Dr. Brown and Dr. Ortman and decedent was subsequently placed in an ambulance for transport to Columbus. Decedent, during transport, became more combative and lost consciousness. Decedent died at Lancaster-Fairfield Community Hospital at 12:45 A.M. on March 6, 1983,\\nAppellant filed suit on her own behalf and as administratrix of decedent's estate against James E. Landis and his parents in Athens, Ohio. She subsequently filed suit, on March 2, 1984, in Franklin County and named as defendants, inter alia, Landis, his parents, Kinnard and O'Bleness. The only reason venue was proper in Franklin County was because Landis and his parents resided in Franklin County. Appellant apparently settled her claim against the Landis's in the Athens County case and, on November 7, 1984, dismissed the Landis's from the Franklin County action.\\nUpon motion of some of the defendants, the trial court dismissed the Franklin County case for lack of venue since the Landis's were no longer parties. In an entry filed on June 13, 1985, the Franklin County Court of Appeals reversed and held that any claim of improper venue was waived for failure to timely raise the issue.\\nO'Bleness filed for summary judgment on June 12,1987. While the motion was pending, the cause was referred to arbitration pursuant to R.C. 2711.21 and Franklin County Local Rule 61 on June 22, 1987. On November 12, 1987, the arbitration panel filed their decision with the court, which decision reads as follows:\\n\\\"It is a unanimous decision of the Panel after the evidence adduced at the hearing and subsequently reviewing the Deposition testimony, the briefs and other matters that defendant O'Bleness Hospital be absolved from liability.\\n1st Karl H. Schnieder Robert E. Frost Richard M. Huhn\\nFurther it is the majority decision of the Panel that Defendant Philip Kinnard be absolved from liability.\\n/s/ Karl H. Schnieder Robert E. Frost Dissenting /s/ Richard M. Huhn\\\"\\nAppellant rejected the decision of the panel and filed an amended complaint pursuant to R.C. 2711.21(C) on December 11, 1987.\\nOn February 8, 1988, the court sustained another motion for change of venue from Franklin County to Athens County. The new motion was based upon the movant's assertion that new facts had arisen since the previous motion-i.e., neither appellees nor the court was aware that appellant had filed the case against the Landis's in Athens County before she filed the case in Franklin County. In granting the motion, the court stated the following:\\n\\\"[A]s a matter of law that where a court lacks subject matter jurisdiction over a cause of action and personal jurisdiction over the Defendant named in that cause of action, the presence of such Defendant named as a named party in the case can not be utilized to satisfy a venue criterion under Civ. R. 3(B).\\nSuccinctly stated, a case is not properly venued in a county solely due to the naming of a Defendant over which the Court lacks personal jurisdiction and also lacks subject matter over the stated cause of action.\\nIt is apparent that the Landises were named as Defendants in this case solely in order to allow Plaintiff to prosecute her malpractice cause of action against the remaining Defendants away from Athens County. In light of this and Plaintiffs failure to fully apprise the Court of Appeals of all relevant facts, this Court holds that extraordinary circumstances exist such that the Court of Appeal's prior ruling should not, in the interest of justice, be deemed to be the 'law of this case.' Accordingly, this Court finds that Defendant's motion for a change of venue pursuant to Civ. R. 3(CX1) has been timely asserted.\\nFurther, this Court finds that this action is not properly venued in Franklin County, and holds that pursuant to Civ. R. 3(BX1), (2), (3), and (6) the County of proper venue is Athens County.\\\"\\nDuring the pendency of the case, all defendants were dismissed except O'Bleness and Kinnard.(fn ) On June 14, 1988, the Athens County Court of Common Pleas filed an entry sustaining O'Bleness's June 12,1987 motion for summary judgment. Thus, when the case went to trial on July 11, 1988, only Kinnard remained a defendant. At the end of the trial, the jury returned a verdict finding that Kinnard was not negligent.\\nIn her first assignment of error, appellant asserts that the Franklin County Court of Common Pleas erred in sustaining the second motion to change venue. Appellant contends that since the Franklin County Court of Appeals had already determined that any error in venue was waived, that decision became the law of the case on the issue of venue, citing Nolan v. Nolan (1984), 11 Ohio St. 3d 1. Therefore, appellant concludes, the court's only option was to deny second motion for change of venue.\\nThe Ohio Supreme Court in Nolan, supra, stated the following with respect to the law of the case:\\n\\\"Briefly, the doctrine provides that the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels. Gohman v. St. Bernard (1924), 111 Ohio St. 726, 730, reversed on other grounds New York Life Ins. Co. v. Hosbrook (1935), 130 Ohio St. 101 [3 O. O. 138]; Gottfried v. Yocum (App. 1953), 72 Ohio Law Abs. 343, 345.\\nThe doctrine is considered to be a rule of practice rather than a binding rule of substantive law and will not be applied so as to achieve unjust results. Gohman, supra, at 730-731. However, the rule is necessary to ensure consistency of results in a case, to avoid endless litigation by settling the issues, and to preserve the structure of superior and inferior courts as designed by the Ohio Constitution.\\nSee State, ex rel Potain, v. Mathews (1979), 59 Ohio St. 2d 29, 32 [13 O.O. 3d 17].\\nIn pursuit of these goals, the doctrine functions to compel trial courts to follow the mandates of reviewing courts. See, e. g., State, ex rel. Special Prosecutors, v. Judges (1978), 55 Ohio St. 2d 94 [9 O.O. 3d 88]; Charles A. Burton, Inc. v. Durkee (1954), 162 Ohio St. 433 [55 O.O. 247]; Schmelzer v. Farrar (1976), 48 Ohio App. 2d 210, 212 [2 O.O. 3d 178]; Miller v. Miller (1960), 114 Ohio App. 235 [19 O.O.2d 108]. Thus, where at a rehearing following remand a trial court is confronted with substantially the same facts and issues as were involved in the prior appeal, the court is bound to adhere to the appellate court's determination of the applicable law. See, generally, Thomas v. Viering (App. 1934), 18 Ohio Law Abs. 343, 344; Loyer v. Kessler (App. 1925), 3 Ohio Law Abs. 396. For additional authorities, see Williams v. Board of Trustees (1924), 210 App. Div. 161, 205 N. Y. Supp. 742; Littmann v. Harris (1913), 157 App. Div. 909, 142 N.Y. Supp. 341. Moreover, the trial court is without authority to extend or vary the mandate given. Briggs v. Pennsylvania RR. Co. (1948), 334 U.S. 304, 306; United States v. Pink (S.Ct. 1942), 36 N.Y. Supp. 2d 961, 965; Hampton v. Superior Court (1952), 38 Cal. 2d 652, 655, 242 P.2d 1; In re Estate of Baird (1924), 193 Cal. 225, 258, 223 P. 974; Puritan Leasing Co. v. Superior Court (1977), 76 Cal. App. 3d 140, 147, 142, Cal. Rptr. 676.\\\"\\nAppellant asserts that there were no extraordinary circumstances in the case at bar which would have justified the Franklin County Court of Common Pleas in disregarding the Court of Appeals' opinion. We disagree.\\nAs stated by the Court of Common Pleas, there were certain factors present which were not known to the Court of Appeals when it ruled that venue was proper, to wit: (1) appellant had filed another action against the Landis's in Athens, County, (2) because of the action in Athens County, the Franklin County Court had no jurisdiction over the Landis's, and (3) there was never any attempt by appellant to obtain service of process over the Landis's in the Franklin County action.\\nFrom these facts, the Franklin County Court of Common Pleas could properly conclude that appellant named the Landis's as defendants in the Franklin County suit merely to obtain venue in that county. Under these circumstances, it would be unjust to allow appellant to reap the fruits of her failure to disclose the pendency of the action in Athens County. Accordingly, appellant's first assignment of error is overruled.\\nIn her second assignment of error, appellant asserts that the trial court erred in granting summary judgment in favor of O'Bleness. Appellant asserts that Kinnard was the hospital's agent and, thus, the hospital was liable for his negligence. O'Bleness asserts, to the contrary, that the only relationship between it and Kinnard was that Kinnard had staff privileges which is insufficient to create an agency relationship.\\nWhere a party moves for summary judgment, a court should grant the motion only where the following criteria set forth in Civ. R. 56(C) are met: (1) no genuine issue of any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion and viewing such evidence most favorably toward the party against whom such motion is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317. We conclude that the motion was properly granted in the case sub judice.\\nIn the case at bar, there were no allegations of actual negligence against O'Bleness. Thus, the only way liability could be imposed upon O'Bleness is if Kinnard was himself negligent and was, further, an agent of O'Bleness. There are two theories of agency which have possible application in the case sub judice, to wit: (1) actual agency and (2) agency by estoppel.\\nAn actual agency relationship exists if the principal, i.e., O'Bleness, controls or has the right to control the agent, i.e. Kinnard. Councell v. Douglas (1955), 163 Ohio St. 292. Appellant asserts that there was such a relationship for two reasons. First, appellant asserts that at the arbitration hearing Kinnard stated that either Dr. Ortman or Dr. Brown could have overruled his decision to transport decedent to Columbus. Thus, appellant concludes, since O'Bleness's agent, Dr. Brown, as the emergency room physician, could control Kinnard's actions, Kinnard was also O'Blenness's agent.\\nWe first note that Dr. Brown was not an actual agent of O'Bleness. He was not on the payroll nor did he receive any compensation from O'Bleness. He was, in fact, an independent contractor. However, he would probably be considered an agent of O'Bleness through the doctrine of agency by estoppel. See e.g. Hannola v. Lakewood (1980), 68 Ohio App. 2d 61. Hence, appellant urges this court to find that Kinnard was an actual agent of O'Bleness because he was an agent of Dr. Brown, who was an agent of O'Bleness through estoppel.\\nFortunately, we do not need to address the merits of such a theory because we find that the facts do not support appellant's contention that Kinnard was Dr. Brown's agent. A transcript of the arbitration hearing to which appellant refers was never made a part of the record. Appellant attached one page of the transcript to her memorandum contra summary judgment. This is not sufficient to bring that evidence before the court. Further, it is unclear from the portion of the transcript attached to determine whether Kinnard was referring to the specific circumstances in the case at bar or in the abstract.\\nAll of the other evidence before the court indicates that Dr. Brown had no control over Kinnard. Dr. Ortman stated in his deposition that he believed Kinnard was in control of decedent's care after he arrived. Dr. Brown also stated in his deposition that he ceased care of decedent after Kinnard arrived. Further, when questioned about the transport of decedent, Dr. Brown stated that it was not his decision to make. Finally, Dr. Kinnard stated in his deposition that he considered himself the ultimate decision maker in determining whether or not to transport decedent.\\nThere appears to be no question of material fact concerning the control of Dr. Brown over Kinnard. Since Kinnard had the final say in deciding whether to transport decedent, we conclude there is no merit to appellant's first theory of actual agency.\\nAppellant's second argument with respect to actual agency rests upon the fact that Kinnard had staff privileges at O'Bleness. Appellant asserts that since the granting or revoking of staff privileges is analogous to hiring or firing, O'Bleness exercised control over Kinnard.\\nAppellant cites Hannola, supra, for the proposition that extension of staff privileges is sufficient to raise a question of fact as to whether agency exists. We are unpersuaded by appellant's argument.\\nWe first note that we are not bound by the Cuyahoga County Court of Appeals' decision in Hannola. Further, we note that the Franklin County Court of Appeals is apparently in conflict with Hannola. In Stratso v. Song (1984), 17 Ohio App. 3d 39, that court stated that the fact that a doctor has an office in the hospital does not alone make him an agent of the hospital. Instead there must be shown induced reliance under the theory of agency by estoppel.\\nFurther, in Griffin v. Matthews (1987), 36 Ohio App. 3d 228, the Court of Appeals for Butler County held that \\\"[t]he mere practice of medicine in a hospital by a doctor with staff privileges is not of itself sufficient to create an agency by estoppel and hold the hospital liable.\\\" Manifestly, if such evidence is insufficient to show agency by estoppel, it is certainly insufficient to create actual agency.\\nFinally, attached to its motion for summary judgment was the affidavit of one Richard F. Castrop, Executive Director of O'Bleness, wherein he stated that O'Bleness, \\\"does not have the right to control or dictate to physicians the manner and mode by which they make discretionary medical judgments.\\\" Accordingly, since there is no evidence in the record that O'Bleness had any control over Kinnard, we hold as a matter of law that there was no actual agency relationship between O'Bleness and Kinnard.\\nAppellant also argues that even in the absence of an actual agency relationship, the doctrine of agency by estoppel should apply to the case at bar. There have been several cases which have held that a hospital is estopped from denying liability for negligent care administered in its emergency room by emergency room personnel even though the personnel are not employees of the hospital but are instead independent contractors. See e.g. Hannola, supra; Griffin, supra.\\nThe doctrine of agency by estoppel has been explained in Johnson v. The Wagner Provision Co. (1943), 141 Ohio St. 584, paragraph four of the syllabus, as follows:\\n\\\"The doctrine of agency by estoppel, as it might be invoked by a plaintiff in a tort action, rests upon the theory that one has been led to rely upon the appearance of agency to his detriment. It is not applicable where there is no showing of induced reliance upon an ostensible agency.\\\"\\nThe reasoning for applying the doctrine in the hospital emergency room setting is set forth in Hannola, as follows:\\n\\\"By calling itself a 'hospital' and by being a full- service hospital including an emergency room as part of its facilities, an institution makes a special statement to the public when it opens its emergency room to provide emergency care for people. In essence, an agency by estoppel is established by creating an effect: that is, the appearance that the hospital's agents, not independent contractors, will provide medical care to those who enter the hospital. The patient relies upon this as a fact and he believes he is entering a full-service hospital.\\nThe agency by estoppel created by the institution purporting to be a hospital is somewhat different than the narrow definition provided by Rubbo [v. The Hughes Provision Co. (1941), 138 Ohio St. 178]. In that case, public advertisements disclaiming agency might have insulated the unwilling principals. The people who relied on the ostensible agency might have acted differently with knowledge that there was no actual agency. Here, we are faced with the situation of injured or ill patients in need of emergency medical treatment. Realistically, a person has no meaningful choice under the circumstances. He needs treatment and will turn to his local hospital to provide it regardless of prior notice that the physicians are independent contractors. The patient thinks of 'Lakewood Hospital' in his time of need, not the West Shore Medical Care Foundation.\\nFurther, sound public policy demands that the full- service hospital not be permitted to contractually insulate itself from liability for acts of medical malpractice committed in its emergency room. First, the emergency room is an integrally related part of the full-service hospital. The hospital may not pretend that this essential element of its public service treatment facilities is a separate entity. Moreover, the nature of the situation when people turn to the hospital and its emergency room facilities for treatment is one fraught with crisis. People are often highly emotional. There is frequently no time to choose. Indeed, time is of the essence. The chances of going elsewhere for treatment are remote.\\nGiven the relationship of the emergency room to the full-service hospital and the crisis circumstances under which people seek emergency treatment, public policy requires that the hospital not be able to artificially screen itself from liability for malpractice in the emergency room.\\\"\\nThe doctrine in Hannola has been expanded to encompass other situations. In Stratso, supra, the Franklin County Court of appeals held that where a hospital provides anesthesiology services, it may be responsible for the negligent acts of the anesthesiologist who is an independent contractor because patients do not choose the anesthesiologist but instead rely upon the hospital to provide competent anesthesiologists. Further, in Funk v. Hancock (1985), 26 Ohio App. 3d 107, the Fayette County Court of Appeals held that agency by estoppel was applicable in a case where the negligent acts were performed not by the emergency room physician but instead by a consulting physician called in by the emergency room physician.\\nAppellant asserts that the case sub judice is very similar to Funk, supra, in that Kinnard was called by Dr. Brown to aid in the treatment of decedent. We disagree. We find Funk, supra, to be distinguishable from the case at bar.\\nWhile Kinnard was actually called by Dr. Brown, it was done at the request of Dr. Ortman. Appellant contends that from a portion of Dr. Brown's deposition, wherein he stated, \\\"we discussed it over the phone and decided that he [decedent] needed surgical intervention and Dr. Kinnard was decided on the one to be called,\\\" that Dr. Brown, in part decided which surgeon to call. We are unpersuaded by appellant's assertion. Dr. Ortman specifically stated in his deposition that \\\"I instructed Dr. Brown to contact him [Kinnard].\\\" Further, Kinnard stated that he was not the on-call physician who would ordinarily be called if a patient needed a surgeon. Kinnard further noted that the only reason he could think of why he was called was at the request of Dr. Ortman who had requested him as a surgeon on a number of occasions. Hence, the facts clearly show that Kinnard was called at the request of Dr. Ortman.\\nAppellant also asserts that Dr. Ortman was not decedent's family physician and, therefore, his actions should be imputed upon O'Bleness. While Dr. Ortman was not in fact decedent's family physician, he was in essence decedent's physician for purposes of this case. Dr. Ortman was called by William Cooley, a friend of appellant and decedent, after the accident occurred. Cooley asked Dr. Ortman to go to the hospital to treat appellant and decedent. In fact, Dr. Ortman's name was put on the emergency room treatment sheet as appellant's and decedent's family physician. Dr. Ortman, therefore, acted as decedent's family physician. Equally important, since Dr. Ortman was not under contract to be at O'Bleness and was not in the emergency room for O'Bleness, he was not an agent of O'Bleness, either actual or through estoppel.\\nWe, therefore, conclude that Kinnard was chosen as surgeon by Dr. Ortman, decedent's acting family physician.\\nA hospital is not liable, as a matter of law, for negligent services rendered by a physician chosen by an injured party or his own physician. See Prince v. Saint Anthony Hospital (October 16, 1985), Franklin App. No. 85 AP-174, unreported.\\nAppellant finally argues that a hospital should be liable for any negligence which occurs in the emergency room regardless of the provider of the care. Again, we disagree. Hannola and its progeny stand for the proposition that a hospital should be held liable for negligence which occurs by personnel which the hospital provides, whether as employees or as independent contractors, in its emergency room. The reasoning is that an injured party does not choose particular doctors, but chooses an emergency room and relies on the hospital to provide adequate personnel.\\nHowever, in the case at bar, the purported negligent acts were performed by a doctor chosen by decedent's acting family physician. Since O'Bleness did not choose Kinnard to perform the services and had no control over the services rendered, it would be inequitable to hold O'Bleness liable in the case at bar.\\nFor the aforementioned reasons, the court properly granted O'Bleness's motion for summary judgment. Appellant's second assignment of error is overruled.\\nIn her third assignment of error, appellant asserts that the court below erred in refusing to allow her expert witness, Dr. Francis C. Jackson, to testify on the issue of liability. She asserts that Dr. Jackson was competent to testify, and the courts refusal constituted prejudicial error.\\nWhether or not a doctor is competent to testify at trial on the issue of liability is governed by Evid. R. 601(D), which reads, in pertinent part, as follows:\\n\\\"Every person is competent to be a witness except:\\n(D) A person giving expert testimony on the issue of liability in any claim asserted in any civil action against a physician, podiatrist, or hospital arising out of the diagnosis, care or treatment of any person, unless the person testifying is licensed to practice medicine and surgery, osteopathic medicine and surgery, or podiatric medicine and surgery by the state medical board or by the licensing authority of any state, and unless such person devotes three-fourths of his professional time to the active clinical practice in his field of licensure, or to its instruction in an accredited university.\\\"\\nAccordingly, there are two requirements which must be satisfied before a doctor is competent to testify on the issue of liability. First, the doctor must be licensed to practice medicine in Ohio or any other state. Second, the doctor must devote three-fourths of his professional time to active clinical practice, or to its instruction in an accredited university. Since Dr. Jackson was licensed in both Pennsylvania and Texas, he satisfied the first requirement.\\nThe pertinent issue before this court, therefore, is whether Dr. Jackson satisfied the second requirement. There is little case law on Evid. R. 601(D). However, from the cases which have been decided, we find that Dr. Jackson did not satisfy the second requirement of Evid. R. 601(D).\\nThe Ohio Supreme Court in McCrory v. State (1981), 67 Ohio St. 2d 99, stated that while clinical practice generally describes physicians \\\"who spend three-fourths of their professional time treating patients, it also includes the physician-specialists whose work is so related or adjunctive to patient care as to be necessarily included in that definition...\\\" Under that analysis, the court found that a person who did medical research and supervised research done by a staff of doctors who evaluated and developed new drugs was competent to testify about the use of a drug he studied.\\nIn Goldstein v. Kean (1983), 10 Ohio App. 3d 255, the Court of Appeals for Franklin County held that a physician who spent 80 percent of his professional time evaluating workers compensation claims but did not personally examine, diagnose, or treat patients did not satisfy the second requirement of Evid. R. 601(D). From McCrory and Goldstein, it is apparent that the important issue is how closely the purported expert's work is related to patient care.\\nIn the case at bar, Dr. Jackson had performed no surgery at all for three years prior to the trial. He was, at the time of the trial, employed part time as assistant dean for Veteran's Affairs at Texas Tech and was also a professor of surgery. Dr. Jackson stated that he never made rounds anymore except during review conferences and upon an occasional request at the two veterans' hospitals affiliated with the university. Dr. Jackson admitted he rarely had an opportunity to treat patients anymore. It is clear that Dr. Jackson did not satisfy the second requirement of Evid. R. 601(D) through clinical practice.\\nHowever, Dr. Jackson also had some teaching duties as professor of surgery. Appellant urges this court to adopt a very broad definition of what constitutes instruction of clinical practice. We have been unable to find any cases which discuss instruction of clinical practice with respect to Evid R. 601(D), however, we conclude that under any definition of instruction of clinical practice, Dr. Jackson fell short. Dr. Jackson admitted that 50 percent of his time was spent on administrative duties such as interviewing prospective residents and keeping records. He spent little or no time instructing or dealing with residents. His only actual teaching consisted of two two-hour lectures every twelve weeks. While devoting three fourths of one's professional time to instruction of clinical practice does not necessitate being in the classroom every hour, it certainly requires more than four hours of teaching every twelve weeks.\\nBecause Dr. Jackson did not satisfy all of the requirements of Evid. R. 601(D), the court below did not err in preventing him from testifying on the issue of liability. We finally note that we cannot see how Dr. Jackson's testimony would have helped appellant's case. She had two other medical experts who did testify that they believed that Kinnard did not act as a surgeon of ordinary skill, care, and diligence would have acted. Thus, Dr. Jackson's testimony merely would have been cumulative. Accordingly, appellant's third assignment of error is overruled.\\nIn her fourth assignment of error, appellant asserts that the court below erred in admitting into evidence the decision of the arbitration panel. R.C. 2711.21(C) governs the admissibility of an arbitration decision which is rejected and reads as follows:\\n\\\"If the decision of the arbitration board is not accepted by all parties thereto, the pleadings shall be amended to aver both the fact that the controversy was submitted to an arbitration board. The decision of the arbitration board, and any dissenting opinion written by any board member, shall be admitted into evidence at trial upon the offer of any party, if the court conducts a review of the arbitration decision and any other relevant information submittedby the parties and concludes that:\\n(1) The findings of fact by the arbitration board were not clearly erroneous;\\n(2) The decision is in accordance with applicable law;\\n(3) The procedures required for conducting the hearing and rendering the decision were followed fairly and properly without prejudice to either party.\\\"\\nThe arbitration decision in the case at bar contained no findings of fact. Appellant asserts that the court below could not have determined that the first of the three enumerated requirements, supra, was satisfied. Appellant concludes that the only determination the court below could have properly made was that the findings were clearly erroneous, and, thus, the court should not have admitted the arbitration decision into evidence.\\nWe note that nowhere in R.C. 2711.21 is there a requirement that the arbitration panel must prepare findings of fact. We hold, therefore, that the absence of findings of fact does not necessarily render an arbitration decision inadmissible. In fact, while the admissibility of the arbitration decision was not at issue, the Ohio Supreme Court, in Smith v. Mitchell (1988), 35 Ohio St. 3d 237, tacitly approved of the admission into evidence of an arbitration decision virtually identical in content to the one in the case sub judice. See also Herbert v. Young (1984), 23 Ohio Misc. 2d 13.\\nThe court in the case at bar stated that the arbitration decision met the three requirements enumerated in R.C. 2711.21. If appellant believed that any of the requirements were not met, she had the opportunity, pursuant to R.C. 2711.21(C), to submit any information relevant to the requirement in question. There is nothing in the record to indicate that appellant availed herself of that opportunity. In the absence of any evidence to the contrary, we hold that the court below did not err in determining that the three requirements were satisfied and in then admitting the arbitration decision into evidence. Appellant's fourth assignment of error is overruled.\\nIn her final assignment of error, appellant asserts that the court below improperly instructed the jury on the standard of care required by Kinnard. The jury instructions, which covered approximately 20 pages in the transcript of proceedings, read, in pertinent part, as follows:\\n\\\"The physician involved in this action is a specialist. A specialist in this case is a general surgeon who holds himself out as having particular training and experience in general surgery. The standard of care for a general surgeon in the practice of this specialty is that of a reasonable specialist practicing in general surgery, regardless of where he practices. A specialist in any one branch has the same standard of care as all other specialists in that branch. If you find by the greater weight of the evidence the defendant failed to use that standard of care, then you may find that he was negligent. A physician has a duty to make a proper, skillful, careful diagnosis of his patient's illness. However, a mistake in judgment on the part of a physician is not in and of itself, negligence. If you find that Dr. Philip D. Kinnard, M.D. possess [sicj ordinary learning and skill, that in his diagnosis and treatmentofMr. Nicholson he used such care as is ordinarily used in like or similar circumstances of physicians of reasonable and average skill at the time in question, he is not negligent even though the judgment which he arrived at may subsequently have been proved to be incorrect\\\" (Emphasis added.)\\nAppellant objects to the underscored portion of the instructions. Even though the \\\"mistake in judgment\\\" instruction is essentially a correct statement of the law, see 61 American Jurisprudence (1981), 341-342, Physicians, Surgeons and Other Healers, \\u00a7209; Finley v. United States (N.D. Ohio 1970), 314 F. Supp. 905, appellant argues that it could mislead a jury. To support her contention that a \\\"mistake in judgment\\\" instruction is misleading, appellant cites Rogers v. Meridian Park Hospital (Or. 1989), 772 P. 2d 929, wherein the Oregon Supreme Court determined that such an instruction was misleading and reversed the cause for a new trial.\\nIf this court were bound by the Oregon Supreme Court, we would reverse based upon Rogers. However, Rogers is not controlling. The law in Ohio with respect to errors in jury instructions is set forth in Snyder v. Stanford (1968), 15 Ohio St. 2d 31, paragraph three of the syllabus, as follows:\\n\\\"Reversible error ordinarily can not be predicated upon one paragraph, one sentence or one phrase of the general charge to the jury. Where the court's charge to the jury, considered as a whole, is not prejudicial to the objecting party, no reversible error results from a misstatement or ambiguity in a portion thereof.\\\" (See also Wagenheim v. Alexander Grant & Co. (1983), 19 Ohio App. 3d 7.)\\nThe jury instructions in the case at bar, when considered as a whole, properly state the law. We hold that the two sentences objected to by appellant do not render the entirety of the 20 page instruction misleading, particularly in light of the fact that the portion objected to did correctly state the law. Accordingly, appellant's fifth assignment of error is overruled.\\nFor the aforementioned reasons, the judgment of the court below is affirmed.\\nIt is ordered that appellees recover of appellant costs herein taxed.\\nThe Court finds there were reasonable grounds for this appeal.\\nIt is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution.\\nAny stay previously granted by this Court is hereby terminated as of the date of filing of this Entry.\\nJUDGMENT AFFIRMED\\nGREY and HARSHA, JJ., Concur\\nWe note that one of the defendants, Dr. Richard Roe, whose real name was unknown, was not dismissed from the case. However, since he was never served and made a party to the case, a dismissal was unnecessary with respect to him.\\nIn light of our determination of appellant's third, fourth, and fifth assignments of error, even if summary judgment was improper, the error was harmless because Kinnard was found not negligent and the hospital could only be liable if Kinnard was negligent.\\nR.C. 2711.21 was amended in 1987 and no longer allows an arbitration decision to be admitted into evidence in any circumstances. However, the amendment only applies to \\\"civil actions that are commenced on or after the effective date [of October 20, 1987] and that are based upon claims for relief that arise on or after that date, and only to conduct that occurs on or after that date.\\\" \\u00a73, H.B. 327. Accordingly, amended R.C. 2711.21 is inapplicable to the case at bar.\"}"

ohio/1614066.json

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+"{\"id\": \"1614066\", \"name\": \"McNeal v. Bil-Mar Foods of Ohio, Inc.\", \"name_abbreviation\": \"McNeal v. Bil-Mar Foods of Ohio, Inc.\", \"decision_date\": \"1990-06-01\", \"docket_number\": \"Case No. 89-P-2080\", \"first_page\": \"463\", \"last_page\": \"466\", \"citations\": \"4 Ohio App. Unrep. 463\", \"volume\": \"4\", \"reporter\": \"Anderson's Unreported Ohio Appellate Cases:  cases argued and determined in the Ohio courts of appeal\", \"court\": \"Ohio Court of Appeals\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-11T02:24:19.944863+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hon. Judith A. Christley, P.J., Hon. Donald R. Ford Hon. Joseph E. Mahoney\", \"parties\": \"McNeal v. Bil-Mar Foods of Ohio, Inc.\", \"head_matter\": \"Ashtabula, Geauga, Lake, Portage and Trumbull Counties\\nHon. Judith A. Christley, P.J., Hon. Donald R. Ford Hon. Joseph E. Mahoney\\nMcNeal v. Bil-Mar Foods of Ohio, Inc.\\n[Cite as 4 AOA 463]\\nCase No. 89-P-2080\\nPortage County, (11th)\\nDecided June 1, 1990\\nN. W. Sandvoss, 228 West Main Street, P. 0. Box 248, Ravenna, Ohio 44266, for Plaintiffs-Appellants.\\nOrville L. Reed, William D. Dowling, SO South Main Street, P. 0. Box 1500, Akron, Ohio 44309, for Defendants-Appellees.\", \"word_count\": \"2571\", \"char_count\": \"16315\", \"text\": \"FORD, J.\\nAppellant, Don C. McNeal Jr., was employed by Manpower, Inc Manpower provided temporary help to individuals and companies by dispatching, upon request, skilled or unskilled personnel to the premises of its clients for whatever services were requested. The dispatched employees received instructionsfrom the customer as to what tasks were to be performed and were supervised solely by the customer's personnel. For its help in providing workers, Manpower was paid a fixed rate by the customer for each work hour provided by Manpower employees. In turn, Manpower paid its employees itself, at a lesser rate than remunerated by the client. A portion of the surplus monies remitted by the clients to Manpower was used to pay all workers' compensation premiums and unemployment compensation premiums for the protections of its employees.\\nOn February 10, 1987, appellant was assigned by Manpower to work for appellee, BilMar Foods of Ohio, Inc Appellant was operating a turkey deboning machine when he injured his right hand. Appellant filed a worker's compensation claim against Manpower which was allowed, in claim number 934906-22. Although the administrative decision is not in the record, apparently, the Industrial Commission found that Manpower was the appellant's employer.\\nOn March 11, 1988, appellant, along with his wife Bernadettq filed on complaint against appellee and Bil-Mar Foods, a Michigan corporation which manufactured the turkey deboner. This complaint alleged that appellant, an employee of Manpower, was injured at appellee's place of employment, in violation of the frequenter statute; R. C. 4101.11. Appellant, Bernadette McNeal, also alleged a loss of consortium based on injuries suffered by her husband. Over the next nine months, appellants amended their complaint twice, to include additional counts and parties, alleging that Bil-Mar, Inc, a Michigan corporation allied with appellee, was strictly liable for the negligent construction of the turkey deboner, and also claiming that appellee committed an intentional tort by failing to place a safety guard on the machine when they knew, to a substantial certainty, that the failure to include such a guard would cause injury.\\nAppellees filed a motion for summary judgment on June 30, 1988, subsequent to appellant's first amended complaint. Appellants responded to appellee's motion for summary judgment on August 22, 1988. After the filing of the second amended complaint, appellants also filed an amended brief in opposition to appellee's motion for summary judgments. The trial court granted appellee's motion for summary judgment on April 27, 1989 and appellants now timely appeal, raising the following assignment of error:\\n\\\"The trial court erred as a matter of law in granting appellees' motion for summary judgment.\\\"\\nAppellants' declination of a single assignment of error is somewhat misleading as the assignment posits a number of of sub-issues under the rubric of their contention. The gist of appellants' arguments is that the trial court erred in granting appellees' motion for summary judgment on the grounds that appellees were immune from suit under the Workers' Compensation Act. The trial court based its decision on the case on Daniels v. MacGregor Co. (1965), 2 Ohio St. 2d 89, which is strikingly on point.\\nIn Daniels, supra, appellant Daniels was also an employee of Manpower, assigned to work for appellee MacGregor Company. As in the case sub judice, MacGregor paid Manpower the correct invoice amount for each employee assigned,from which Manpower would pay the employee's salary, workers' compensation and unemployment compensation premiums, and retain the balance as a fee for its services Both Manpower and MacGregor made semiannual payments to the State Insurance Fund, as required by R.C. 4123.35. Daniels was injured during the course of his employment with MacGregor. \\\"As a result of a claim made on behalf of plaintiff as an employee of Manpower *, (Daniels) was receiving compensation benefits from the State Workmen's Compensation Fund.\\\" Daniels, at 91.\\nIn addition to receiving these funds in compensation, Daniels filed a suit against MacGregor Company, attempting to recover damages for personal injuries suffered while working for MacGregor Company. The Ohio Supreme Court held, however, that Daniels was barred from suing in tort by R.C. 4123.74, stating:\\n\\\"Where an employer employs an employee with the understanding that the employee is to be paid only by the employer and at a certain hourly rate to work for a customer of the employer and where it is understood that the customer is to have the right to control the manner or means of performing the work, such employee in doing that work is an employee of the customer within the meaning of the Workmen's Compensation Act; and, where such customer has complied with the provisions of the Workmen's Compensation Act, he will not be liable to respond in damages for any injury received by such employee in the course of or arising out of that work for such customer***\\\" (Citations omitted.) Daniels, at the syllabus.\\nThe Ohio Supreme Court, in determining Daniels, borrowed from the doctrine of respondeat superior. See, e.,g. Bobik v. Industrial Commission (1946), 146 Ohio St. 187, cited in Daniels, at 93. As in the respondeat superior context, the court found that the right to control the actions of the employee was the dispositive fact in analysis of which entity employed the employee. (The Daniels court did not expressly examine the question of the res judicata effect, if any, of the Industrial Commission's finding that Daniels was an employee of Manpower for payment of Workers' Compensation benefits.)\\nIn 1978, the court, in Campbell v. Central Terminal Warehouse (1978), 56 Ohio St. 2d 173, stated, in response to a request that Daniels be overruled, that \\\"[t]he holding [of Daniels] has remained unchanged for approximately 13 years and it is significant that the General Assembly has chosen not to alter the result *.\\\" Campbell, supra, at 175. As Campbell explicated this scenario:\\n\\\"The appellant was clearly 'in the service of Central. He was referred by Hour Man to perform tasks as required by Central. Moreover, there existed an implied contract of hire between Central and appellant, whereby appellant in effect authorized Hour Man to offer his services for hire, and Central, by approving the referral, accepted appellant's offer. Although Central did nor directly pay appellant, Central did pay Hour Man a certain sum which covered the reimbursement of appellant for his services\\\" Id. at 175-176 (Emphasis in the original.)\\nThe Campbell court concluded that, under these facts, appellant was an employee of Central at the time of the injury and, consequently, precluded appellant from bringing suit against the company.\\nIn footnote one of Campbell, the court stated:\\n\\\"It should be noted that although Central did not make any direct payments into the state insurance fund on behalf of appellant, Central was in compliance with the provisions of R.C. 4123.35 requiring every employer to pay into the fund the amount of premium fixed by the Industrial Commission.\\n\\\"Also noteworthy, is the fact that part of the payments made by Central to Hour Man for temporary help took into consideration the contributions Hour Man had made into the Workers' Compensation Fund on behalf of appellant.\\\"\\nSimilarly, the case subjudice, although the trial court made no express findings of fact as to appellee's compliance with R.C. 4123.35, appellee attached to its motion for summary judgment material of evidential quality indicating that the company was indeed in compliance with the relevant statutory provisions.\\nAppellants, in this case, attempt to distinguish this factual scenario from Daniels and Campbell on a number of grounds. First, appellants maintain that the Industrial Commission has already determined that appellant was an employee of Manpower. Appellants assert that this administrative determination must be accepted under the doctrine of res judicata. Scott v. East Cleveland (1984), 16 Ohio App. 3d 429. Examination of the trial court record indicates that appellants timely raised this issue. While this court grants that administrative agency decisions are entitled to protection under the doctrine of res judicata generally, we note that the Ohio Supreme Court tacitly overruled appellants' argument in cases like Daniels, where the appellant also claimed the benefit of an administrative finding that he was a Manpower employee. Although the court has not propounded a rationale that would account for this apparent legal inconsistency, this court is constrained to follow the precedent set fort in Daniels and Campbell and conclude that as a matter of law, appellant was an employee of appellee at the time of the injury.\\nAppellants next claim that appellant was not on appellee's premises as an employee at all, but rather as a \\\"frequenter.\\\" R.C. 4101.01(E) describes a frequenter as \\\"every person, other than an employee, who may go in or be in a place of employment under circumstances which render him other than a trespasser\\\" (Emphasis added.) Appellants argue that appellee had a duty, to appellant as a frequenter, to provide a safe work premises under R.C. 4101.11 (Duty of employer to protect employees and frequenters).\\nAppellants' arguments are flawed on two grounds. First under the Daniels rule, appellant is an employee per se. Secondly, even if there were some debate as to appellant's status examination of the applicable case law would reveal that appellant should not be classified as a frequenter. As Willis v. Eckert Packing Co. (1969), 21 Ohio App. 2d 117 observed, the term frequenter, \\\" by its own definition, alludes to the general public\\\" and specifically, business invitees. Willis, supra, at 121. Examination of the record indicates that appellant was on appellee's premises, not as a member of the general public or even as a business invitee, but instead, as an employee. This argument is without merit.\\nAppellants next contend that the doctrine of promissory estoppel precludes this court from finding that appellant was an employee of appellee. Appellants direct this court's attention to the employee handbook, provided to appellant by appellee, and properly included in the court record as an exhibit to an affidavit assimilated in appellant's brief in opposition to summary judgment. This handbook states in a number of places, that appellant was an employee of Manpower. This handbook, assert appellants, also contained representations that if the Manpower temporaries followed the appellee's rules and regulations, they would increase their chances of becoming employees of appellee. Appellants contend that the appellant relied on these representations in his work performance, and cite Jones v. East Center for Community Mental Health Inc. 1984, 19 Ohio App. 3d 19, paragraph four of the syllabus, for the proposition that:\\n\\\" A promise (or a series of promissory representations) contained in an employment manual which the employer should reasonably expect to induce action or forbearance by its employees, and which does so induce action or forbearance on their part, is binding if injustice can be avoided only by enforcing that which the manual promises.\\\"\\nFor appellant's argument to be cognizable under the doctrine of promissory estoppel, the court would have to find that appellee promised appellant that he would be an employee of Manpower, and that appellant accepted Manpower's referral to appellee relying on this promise, to his detriment. This argument is fatuous as a matter of common sense. While appellants could conceivably maintain that appellant took the referral to appellee's business on reliance of other factors in the handbook (such as representations that appellant, if he performed well, would have an improved chance at a permanent position with appellee), the record does not support, nor does logic allow the assertion that the reason appellant went to work for appellee was because he was promised that he would remain an employee of the temporary agency throughout his employment. This argument is without merit, particularly given appellants' apparent desire to attain permanent employment with appellee.\\nAppellants' last argument is that the trial court erred in granting appellees' summary judgment motion because of factual issues remaining as to whether appellees committed an intentional tort. Examination of the record reveals that the issue of the intentional tort, pursuant to R.C. 4121.80, was raised in appellants' second amended complaint. Subsequent to the filing of this complaint, appellants filed an amended brief in opposition to appellees' motion for summary judgment. This amended brief contained no reference whatsoever to any question of intentional torts, nor any submissions of evidential quality which would present a factual issue of an intentional tort.\\nAppellants' failure to provide evidence supporting their claim of an intentional tort is particularly harmful, given the high quantum of evidence required, by Van Fossen v. Babcock & Wilcox Co.(1988), 36 Ohio St. 3d 100, to prove the existence of the tort in the courts of this state Van Fossen, supra, requires that the employer possess knowledge of the existence of a dangerous operation, that the employer know to a \\\"substantial certainty\\\" that the dangerous operation will cause an injury, and that the employer requires the employees to continue to perform the dangerous operations in spite of the risk. Id. at the syllabus. The record, as noted, indicates that appellants presented no evidence that demonstrate that appellee knew that the operation of turkey deboner, without the safety guard, was substantially certain to cause injury. Consequently, as a matter of law, appellants cannot set forth a properly cognizable claim of an intentional tort.\\nThe conclusion of our analysis of appellants' claim of an intentional tort brings this court to the end of examination of the arguments raised by appellants in their brief. However, this court's scrutiny of the trial court record indicates that the issue of strict liability was left untreated by the trial court when it granted appellee's motion for summary judgment. Appellants have not set forward any arguments on the issue of strict liability before this court, and App. R. 12(A) allows this court to disregard errors not specifically pointed out in the record and separately argued in the briefs. However, appellants' argument is one which merits comment, and we will exercise our discretion to do so in this case\\nAppellants' argument, simply put, is that Bil-Mar, Inc (the Michigan corporation named in the amended complaint) should be held strictly liable for alleged design flaws and faulty constructionof the turkey deboner. This argument is very similar to Schump v. Firestone Tire & Rubber Co. (1989), 44 Ohio St. 3d 148. In Schump, supra, the Ohio Supreme court stated:\\n\\\"Where an employer manufactures a product for public sale and for its own use, and an employee is injured while using the product within the scope of his employment, the employee may not maintain a products liability suit against his employer under the dual-capacity doctrine\\\" Id. at the syllabus. See also, Hillman v. McCaughtry (Sept. 15, 1989), Trumbull App. No. 4045, unreported, at 6.\\nThe import of the Schump decision is that it essentially eliminated cases in which the employer was being sued both in his employment capacity and in his capacity as a manufacturer of a company product. Consequently, under the Schump doctrine, appellant's argument is without merit.\\nTherefore, for the reasons delineated in this opinion, the judgment of the trial court is affirmed.\\nJudgment affirmed.\\nCHRISTLEY, P.J., and MAHONEY, J., concur.\"}"

ohio/1614102.json

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+"{\"id\": \"1614102\", \"name\": \"Gratsch v. Gilbert\", \"name_abbreviation\": \"Gratsch v. Gilbert\", \"decision_date\": \"1990-06-12\", \"docket_number\": \"Case No. CA-11865\", \"first_page\": \"59\", \"last_page\": \"63\", \"citations\": \"4 Ohio App. Unrep. 59\", \"volume\": \"4\", \"reporter\": \"Anderson's Unreported Ohio Appellate Cases:  cases argued and determined in the Ohio courts of appeal\", \"court\": \"Ohio Court of Appeals\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-11T02:24:19.944863+00:00\", \"provenance\": \"CAP\", \"judges\": \"WILSON, J., and GRADY, J., concur.\", \"parties\": \"Gratsch v. Gilbert\", \"head_matter\": \"Gratsch v. Gilbert\\n[Cite as 4 AOA 59]\\nCase No. CA-11865\\nMontgomery County (2nd)\\nDecided June 12, 1990\\nJames T. Borroughs, Assistant Prosecuting Attorney, Child Support Enforcement Division, 14 W. Fourth Street, Dayton, Ohio 45402, for PlaintiffAppellee.\\nRobert L. Mues, 22 Clay Street, Dayton, Ohio 45402, for Defendant-Appellant.\", \"word_count\": \"2412\", \"char_count\": \"15728\", \"text\": \"WOLFF, P.J.\\nRoger Gilbert appeals the trial court'sdetermination that his gross income, for child support purposes, in 1988 was $42,977.\\nOn November 30, 1987, Carol Gratsch, mother of eight year-old John Gratsch, instituted a paternity action alleging that Roger Gilbert was her son's natural father. Following a trial on January 31, 1989, the jury found Gilbert to be John's father, and the trial court entered judgment on the jury determination. On September 14, 1989, a hearing on the support order was held.\\nRoger Gilbert testified as on cross-examination that he lived in a three-bedroom home on six acres of land that were given to him by his parents. He stated that he, his son, his friends the Bennetts, and his ex-wife owned Gilbert's Party Barn which was a catering business that catered pig roasts He stated that Gilbert's Party Barn was located on his six acres of land and that a small metal building on the property was used as a kitchen area. He stated that he also farmed land owned by another man.\\nGilbert stated that his son drove a 1987 Ford truck, that he drove a 1984 928 Porsche, and that these vehicles were leased by the Gilbert's Party Barn business. He stated that he owned a 1985 GMC van, a rusted out 1981 Chevy van, a 1983 Suzuki motorcycle, a 1965 Triump motorcycle, and a 1978 racing (motor) bike. He stated that his real estate had a mortgage of about $75,000, upon which he made an annual payment of about $8-9,000.\\nGilbert testified that his 1988 tax return indicated that Gilbert's Party Barn grossed almost $80,000 and that his income in 1988 was $2,227. He stated that he had a loss of $4,000 from farming in 1988. He stated that his 1987 tax return shows that he had taxable income of $13,000 and that his taxable income in 1986 was $14,949. He stated that his business had \\\"gone downhill\\\" since he was unable to work as hard as he had worked in previous years. He testified that in 1986, he contracted myasthenia gravis which is a rare nerve disease similar to muscular dystrophy. He stated that he had double vision and could not drive or lift anymore.\\nCarol Ann Gratsch testified that she was John Gratsch's mother and that John was born on April 9, 1982. She stated that since May, 1988, she had her own insurance agency called LPG Benefits. She stated that she earned $12,000 in 1988, and received property worth $5,000 from her parents in 1988.\\nGratsch testified that Roger Gilbert had not helped support John since his birth. She stated that during the school year, day care costs for John were $60 per week and that during the summer, day care costs are $81 per week. She stated that she paid $46 per month for health insurance for John.\\nGratsch stated that she visited Roger Gilbert's home and described it as having three bedrooms, a loft over the living room, a \\\"rec room\\\" in the basement, and an in-ground swimming pool. She stated that Gilbert had a collection of motorcycles. She stated that in July, 1989, she saw Gilbert driving a yellow Porsche in Xenia.\\nAt the close of all of the testimony, the court made no findings from the bench. The court's September 21, 1989, \\\"Judgment Entry and Order\\\" stated, in pertinent part, as follows:\\n\\\"The court finds Defendant Gilbert' gross income from 1988 to be $42,977. The court attains this finding by following Ohio Superintendence Rule 75, which does not allow a self-employed obligor to place depreciation expenses or other non-cash deductible items as ordinary or necessary expenses against the gross income. The court, following Chapter 3111 of the Ohio Revised Code, sets support at $120.00 per week.\\\"\\nGilbert's assignment of error states:\\n\\\"The lower court abused its discretion in failing to follow the Supreme Court Superintendence Rule 75.\\\"\\nGilbert maintains that the trial court misinterpreted Rule 75(111) (A) (3) of the Rules of Superintendence for Courts of Common Pleas which states:\\n\\\"(3) Income from self-employment or operation of a business, income from rental property, passive income, or potential cash flow from any source. For income from self-employment, proprietorship of a business, joint ownership of a partnership or closely held corporation, or rents, gross income is defined as gross receipts minus ordinary and necessary expenses incurred in generating such income.\\n\\\"Specifically excluded from ordinary and necessary expenses for purposes of these Guidelines are amounts for depreciation expenses or other non-cash deductible items allowable by the Internal Revenue Service. In general, income and expenses referenced herein should be carefully reviewed to determine an appropriate level of gross income available to the parent to satisfy a child support obligation. This amount may differ from a determination of business income for tax purposes\\n\\\"Expense reimbursements or in-kind payments received by a parent from self-employment, operation of a business or rents should be counted as income if they are significant and reduce personal living expenses. Such payments might include a company car, free housing, reimbursed meals, or any other benefits.\\\"\\nGilbert maintains that the court erred in not deducting all ordinary and necessary expenses except depreciation listed in Schedules C and F of his 1988 tax return. He states that had the court deducted all of the ordinary and necessary expenses incurred in generating income, except depreciation, his income from his business and farming operations would have been $9,605. He states that he also had taxable interest of $89 and wages of #323 in 1988, which would have resulted in gross income of $10,017 under C.P. Sup. R. 75(111) (A) (3).\\nGilbert's 1988 tax return was introduced as plaintiffs exhibit 1 at the hearing and was admitted into evidence. Appendix C to Gilbert's brief accurately portrays Schedule C and Schedule F of Gilbert's 1988 tax return, after elimination of depreciation deductions, as follows:\\nEXPENSE FROM GILBERT'S PARTY BARN\\nGross Receipts..............$ 79,370.00\\nCost of Goods Sold............ 39,972.00\\nAdvertising................ 1,825.00\\nCar and Truck Expenses.........4,194.00\\nInsurance.................... 727.00\\nMortgage Interest..............6,089.00\\nOther Interest................... 563.00\\nLegal and Profesional Services................... 235.00\\nRent on Business Property.....1,165.00\\nRepairs.................... 2,738.00\\nTaxes...................... 3,118.00\\nTravel, Meals Entertainment.....1,282.00\\nUtilities and Telephone......... 3,722.00\\nOther Expenses..................403.00\\nGross Income $ 13,337.00\\nEXPENSES FROM FARMING OPERATIONS\\nGross Income...............$ 10,759.00\\nFeed Purchased................ 1,644.00\\nFertilizers and Lime.............. 500.00\\nGas, Fuel, Oil................... 293.00\\nInsurance..................... 123.00\\nMortgage Interest..............3,045.00\\nOther Interest................... 282.00\\nLabor Hired.................... 67.00\\nRent of Farm...................2,712.00\\nRepairs, Maintenance.......... 1,708.00\\nSeeds, Plants Purchased.........1,157.00\\nSupplies Purchased............. 2,538.00\\nUtilities............)........ 398.00\\nVeterinary Fees..................24.00\\nLoss................... $ 3,732.00\\nRULE 75 GROSS INCOME COMPUTATION\\nGross Receipts, Business......$. 79,370.00\\nGross Income, Farming.........10,759.00\\nAllowable Expenses, Business.. . 66,033.00\\nAllowable Expenses, Farming . 14,491.00\\nWages...................... 323.00\\nTaxable Interest and Dividend Income..................89.00\\nRule 75 Gross Income.....$ 10,017.00\\nThe trial court computed Gilbert's gross income under C.P. Sup. R. 75(111) (A) (3) as $42,977. While the court did not explain how it arrived at $42,977, the following calculation, in our estimation, depicts the particular expenses the court probably deducted in computing Gilbert's gross income for 1988. (Although our calculation of $42,905 is $72 less than the trial court's determination of Gilbert's gross income, this discrepancy is of no consequence to our disposition of the appeal.)\\n$ 79,370 gross receipts from business\\n+ 10,759 gross income from farming\\n90,129\\n-39,972 cost of goods sold and/or operations\\n50,157 [business expense]\\n-1,825 advertising [business expense]\\n48,332\\n-1,644 feed purchased [farm expense]\\n46,688\\n- 500 fertilizer [farm expense]\\n46,188\\n-1,157 seeds, plants purchased [farm expense]\\n45,031\\n-2,538 supplies purchased [farm expense]\\n42,493\\n+ 323 wages\\n42,816\\n+ 89 dividend and taxable interest\\n$ 42,905 income\\nGilbert argues that the court's gross income determination amounts to an abuse of discretion since the court failed to deduct other expenses that he claims should have been deducted under C.R Sup. R. 75(111) (A) (3).\\nIn Pruden-Wilgus v. Wilgus (1988), 46 Ohio App. 3d 13, the defendant-appellant, William W. Wilgus, argued that the trial court abused its discretion in making an unconscionable child support award. The court stated:\\n\\\"Appellant is self-employed and claims as his annual income his salary from his realty corporation which he states is $5,200. However, under the Child Support Guidelines, amounts for depreciation and other non-cash deductible items allowable by the Internal Revenue Service are not deducted from the gross revenue of a person who is self-employed, and significant amounts of reimbursements and in-kind payments received by a self-employed parent are to be counted as income. Ohio Child Support Guidelines, C.P. Sup. R. 75(C)(1)(c), now 75(III)(A)(3). See 39 Ohio St. 3d xlv, xlviii.\\nTherefore, the court's taking into consideration amounts on appellant's tax returns which do not affect cash flow and the fact that appellant receives a residence and use of an automobile from his business as additional compensation was not arbitrary, unreasonable or unconscionable. There was ample evidence to support the award.\\\" Id. at 15.\\nThe ultimate issue for our consideration is whether the trial court abused its discretion in finding that Gilbert's gross income under C.R Sup. R. 75(III)(A)(3)in 1988 was $42,977, a figure Gilbert claims is almost $33,000 too high. The court disallowed the following expenses which Gilbert claimed were \\\"ordinary and necessary expenses incurred in generating...income\\\": car and truck expenses, insurance, mortgage and \\\"other\\\" interest, legal and professional fees, rent, repairs, taxes, meals, travel, and entertainment, licenses, gifts, labor, gasoline, fuel, and oil, utilities, and veterinary fees. C.P. Sup. R. 75(III)(A)(3)states, in pertinent part, that:\\n\\\"Specifically excluded from ordinary and necessary expenses for purposes of these Guidelines are amounts for depreciation expenses or other non-cash deductible items allowable by the Internal Revenue Service. In general, income and expenses referenced herein should be carefully reviewed to determine an appropriate level of gross income available to the parent to satisfy a child support obligation. This amount may differ from a determination of business income for tax. purposes.\\n\\\"Expense reimbursements or in-kind payments received by a parent from self-employment, operation of a business or rents should be counted as income if they are significant and reduce personal living expenses. Such payments might include a company car, free housing, reimbursed meals, or any other benefits.\\\" (Emphasis added.)\\nWe can only assume that the trial court determined that Gilbert derived personal benefit from the above, disallowed items that were expensed on his Schedule C and Schedule F. From our review of the 1988 tax return and Gilbert's testimony, we are well satisfied that the trial court was justified in disallowing at least a part of some of Gilbert's claimed business expenses, e.g. mortgage interest, vehicle expenses, repairs, taxes, entertainment, utilities The evidence certainly supportsa determination that Gilbert's real estate mortgage interest and taxes were charged to the business although he lived on the real estate^ that he drove a company car, and that he charged some of his meals to his expense account.\\nHowever, we do not think that the evidence justified the trial court's disallowing all of the claimed business expenses. Accordingly, this matter must be remanded for further proceedings to determine with greater precision what portion of the almost $33,000 disputed business expenses is not legitimately characterized as \\\"ordinary and necessary expenses incurred in generating .income.\\\" If, notwithstanding a determination that certain of Gilbert'sclaimed business expenses are legitimate, the trial court still determines to establish Gilbert's child support obligation at a level in excess of that suggested by the guidelines, it should provide the parties (and this court)with \\\"a brief statementto substantiate the deviation.\\\" (Rule 75(1).\\nGilbert also argues that the trial court failed to consider R.C. 3109.05(A) factors in establishing child support. The judgment entry states that \\\"[tlhe court, following Chapter 3111 of the Ohio Revised Code, sets support at $120.00 per week.\\\" The judgment entry does not mention R.C. 3109.05(A) factors, and properly so as this case was initiated pursuant to R.C. 3111.01 et seq. The factors pertaining to the determination of child support under Chapter 3111 are located at R.C. 3111.13(E):\\n\\\"In determining the amount to be paid by a parent for support of the child and the period during which the duty of support is owed, a court enforcing the obligation of support shall base the judgment or order of support upon the financial status of the parents and the father's ability to pay support, and shall consider all relevant facts, including, but not limited to, all of the following:\\n\\\"(1) The needs of the child;\\n\\\"(2) The standard of living and circumstances of the parents;\\n\\\"(3) The relative financial means of the parents;\\n\\\"(4) The earning ability of the parents;\\n\\\"(5) The need and capacity of the child for education;\\n\\\"(6) The age of the child;\\n\\\"(7) The financial resources and the earning ability of the child;\\n\\\"(8) The responsibility of the parents for the support of others;\\n\\\"(9) The value of services contributedby the custodial parent.\\\"\\nIn this case the parties had an opportunity to present evidence pertinent to these factors at the support hearing. Ms. Gratsch testified that her income in 1988 was $12,000 and that she received property worth $5,000. She said that her daycare costs were $60 during the school year, and $81 in the summer, and that health insurance per month for John cost $46. Gilbert entered his tax returns into evidence, testified as to his income and expenses, and stated that he had a debilitating nerve disease that effected his work.\\nWhile the trial court's judgment does not discuss the R.C. 3111.13(E) factors, this court presumes the regularity of the trial court's proceedings, and nothing in the record indicates that the court failed to consider these statutory factors in making its child support determination, although, as discussed above, the evidence did not warrant fixing Gilbert's gross income at $42,977. The weight to be given Gilbert's testimony as to his health and declining earning ability was for the trial court to determina\\nBecause the present record convinces us the court erred in fixing Gilbert's 1988 gross income at $42,977, the judgment will be reversed and the case remanded for further proceedings. The assignment of error is sustained.\\nJudgment reversed and cause remanded.\\nWILSON, J., and GRADY, J., concur.\"}"

ohio/1632286.json

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+"{\"id\": \"1632286\", \"name\": \"CENTRAL COMMUNITY CHAUTAUQUA SYSTEM v. RENTSCHLER et\", \"name_abbreviation\": \"Central Community Chautauqua System v. Rentschler\", \"decision_date\": \"1929-04-05\", \"docket_number\": \"No 196\", \"first_page\": \"291\", \"last_page\": \"292\", \"citations\": \"7 Ohio Law Abs. 291\", \"volume\": \"7\", \"reporter\": \"The Ohio Law Abstract\", \"court\": \"Ohio Court of Appeals\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-11T02:24:26.839044+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Judges Hughes, Justice & Crow.\", \"parties\": \"CENTRAL COMMUNITY CHAUTAUQUA SYSTEM v RENTSCHLER et\", \"head_matter\": \"CENTRAL COMMUNITY CHAUTAUQUA SYSTEM v RENTSCHLER et\\nOhio Appeals, 3rd Dist, Henry Co\\nNo 196.\\nDecided April 5, 1929\\nJames P Ragan, Napoleon, for Chautauqua.\\nFred Gribbell, Deshler, for Rentschaler et.\", \"word_count\": \"508\", \"char_count\": \"3109\", \"text\": \"JUSTICE, J.\\nSeveral errors are assigned. One of them alludes to the overruling of plaintiff's motion for judgment notwithstanding the verdicts.\\nSection 11601, of the General Code, provides that:\\n\\\"When, upon the statements in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, although a verdict has been found against such party.\\\"\\nThis Section is mandatory, but it authorizes a judgment non obstante verdicto, only when the pleadings require it. Challen v. Cincinnati, 40 O. S. 113. McCoy et al., Trustee, v. Jones, et al., 61 O. S. 119. No such requirement appears in the instant case. To the contrary, however, the pleadings clearly disclose an issuable fact, which the trial court was required to submit to the jury under proper instructions. The motion, therefore, was properly overruled.\\nAnother claimed error pertains to the admission of testimony.\\nCounsel for plaintiff insists that the trial 'court, in admitting testimony, violated the so-called \\\"Parol Evidence Rule.\\\" With this contention we do not agree. Parol contemporaneous evidence, of course, is inadmis sible to contradict, vary, add to or substraet from, the terms of a valid written instrument. 1 Grenl. Ev. Section 275. But the testimony under consideration, as we see it, did not tend to contradict, vary, add to or subtract from, the contract of guaranty. It simply tended to show the inducing and moving cause of said written contract and, in addition thereto, tDnat said contract in law never existed.\\nCommentaries on Evidence, 2nd Edition:\\nClearly the testimony was relevant to the issues as made by the pleadings. It, therefore, was not only competent but obviously of much moment to the defendants. Its reception by the trial court was proper.\\nAnother claimed error refers to the charge.\\nDid the trial court, in so charging, place upon the plaintiff an unwarranted burden? We do not think so.\\nThe pleadings reveal that plaintiff predicated a recovery in this cause upon an alleged present and absolute contract, while the defendants bottomed their defense upon an alleged conditional signing of said contract.\\nIn Leisy & Company v. Zuellig, 7 O. C. C. Reports, 433, the Circuit Court of the Sixth District, held:\\n(Here follows quotation)\\nIn the instant case the trial court correctly put the burden upon the plaintiff of proving the material- allegations of its petition. The defense, being based upon a different agreement than that upon which plaintiff sued, was nothing more or less than a general denial. Simmons v. Green, 35 O. S. 104.\\nWe have carefully examined the charge and are of the opinion that, when construed as ,a whole, it is free from prejudicial error. Ohio & Indiana Torpedo Company v. Fishburn, et al., 61 O. S. 608.\\nEntertaining these views, it follows that the judgment of the trial court should be affirmed.\\nBefore Judges Hughes, Justice & Crow.\"}"

ohio/1634275.json

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+"{\"id\": \"1634275\", \"name\": \"ROWLAND, Admr, etc v. STOUT, Exrx, etc\", \"name_abbreviation\": \"Rowland v. Stout\", \"decision_date\": \"1930-04-10\", \"docket_number\": \"\", \"first_page\": \"376\", \"last_page\": \"378\", \"citations\": \"8 Ohio Law Abs. 376\", \"volume\": \"8\", \"reporter\": \"The Ohio Law Abstract\", \"court\": \"Ohio Court of Appeals\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T21:07:10.457150+00:00\", \"provenance\": \"CAP\", \"judges\": \"Middleton, PJ., and Blosser, J., concur.\", \"parties\": \"ROWLAND, Admr, etc v STOUT, Exrx, etc\", \"head_matter\": \"ROWLAND, Admr, etc v STOUT, Exrx, etc\\nOhio Appeals, 4th Dist, Athens Co\\nDecided April 10, 1930\\nWoolley & Rowland, Athens, for Rowland.\\nJones & Jones, Zanesville, for Stout.\", \"word_count\": \"1314\", \"char_count\": \"7452\", \"text\": \"MAUCK, J.\\nThe question actually argued is whether or not the third paragraph of the contract, as above quoted, by its terms avoided the contract when Hayes defaulted in his payments for a period of two months. The claim of the plaintiff in error is that by the paragarph quoted the instrument sued on became absolutely void and of no effect as against either party whenever Hayes was two months in default. The claim of the other party is that the instrument was voidable only at the election of the vendor and that Hayes .and those claiming under him can' not take advantage of his default and avoid his obligation to pay in full, as he is bound to do by the first paragraph of the contract.\\nIt is, of course, quite well understood that the provisions against default in contracts for the sale of real estate are ordinarily provisions against the default of the vendee and are stipulated for the benefit of the vendor, for the reason that the vendor has already fully performed and the executory provisions of the contract await perform anee by the vendee only. The plaintiff in error, however, points out that in Mackenzie v. Stuber, 119 Ohio St. 588, the parties in a land contract may provide by appropriate language for a default on the part of the vendee releasing the vendee himself from further performance. It is true that such a contract may be drawn, and such a contract was before the court in the Mackenzie case.\\nThere is no provision in the instant contract for making all subsequent installments due upon default of an earlier one. There is no provision for the vendee yielding possession of the property on default and ne did not so yield possession, and while in the contract there is a provision that in case the contract becomes void the vendor shall not refund any payments made by the vendee there is no provision that payments actually made shall be full compensation for the use and occupation theretofore enjoyed by the vendee. The Mackenzie case is consequently not controlling.\\nWe are of the opinion, therefore, that there is nothing in this contract that defeats the . general rule that the provision of a forfeiture in this case was made for the benefit of the vendor ,and that the vendee could not take advantage of his own default and avoid the obligation imposed on him by other provisions of the contract.\\nThere is another and more difficult question in the case, however, and that is as to whether or not the vendor can employ the remedy that he invokes in this case. The plaintiff sued at law. He recovered a judgment, the effect of which is that he has a judgment for so much of the contract price as is past due and a finding that the defendant administrator shall allow as a valid claim against the decedent's estate the installments not yet due. So far as the finding relates to the payments not yet due it would seem to be open to the objection that such a claim must be presented to and allowed by the probate court under Section 10748 GC., and that the administrator could not allow such claim nor by his rejection thereof give jurisdiction to the common pleas court to allow such claim at law. ' The difficulty, however, transcends even the section referred to. If this judgment stands Hayes' administrator is required to carry out the contract of his decedent, make all the payments, and when he has done so the vendor will have the money and the legal title to the property, for there is nothing in this judgment which requires conveyance by the vendor and a court of law would be powerless to require it. The petition recites that upon full performance\\n\\\"the plaintiff will be ready and willing to execute to the person or persons entitled thereto a deed for said premises.\\\"\\nIt has made no such deed and only expresses a willingness to do so. Imputing to the parties the best of faith, and having in mind only the possibility of the death of the party now standing in vendor's shoes, it is easily seen that after the property is paid for in accordance with the judgment herein the vendees may be put to great expense to secure the title which would be their due. These facts are recited because they indicate the very apparent fact that by this judgment the vendor is acquiring all the benefits of an .action in specific performance without pleading a performance of those things necessary to obtain specific performance and without affording the vendee the perfect protection that a court of equity would provide in an action to specifically perform. Page on Contracts, Section 3219 says:\\n(Here follows quotation)\\nThe difficulties suggested arise thru the attempt of the vendor to collect the purchase price at law. Isolated cases may be found where the vendor has been sustained in his attempt to recover the purchase price, but the rule is to the contrary. In Colson v. Shurman, 197 N. W. 674, 35 A. L. R. 924, the Nebraska Supreme Court says:\\n(Here follows quotation)\\nThe Iowa Supreme Court in Prichard v. Mulhall, 127 Iowa 545, 4 Ann. Cas. 789, says: (Here follows quotation)\\nAnd the editor of the Annotated Cases in the note on that case says:\\n(Here follows quotation)\\nWhile the identical question has not been passed upon in this state the principle has been recognized. In Dayton, etc. Turnpike Co. v. Coy, 13 Ohio St. 84, the court questions whether an action can be sustained upon an executory contract for the sale of property where title has not passed.\\nWithout multiplying authorities we conclude that while the plaintiff had an action in equity to specifically perform, which in practical effect would be a foreclosure or an action at law in damages, she had no action for the purchase price.\\nThis opinion had proceeded to this point when on April 2, 1930, the opinion of the Supreme Court w.as haded down in Will-O-Way Development Co. v. Mills, in which that court holds that the vendor can not in an action of the kind now under consideration recover from the vendee the full purchase price provided for in a land contract without alleging tender of a deed of conveyance. \\\"The effect of this decision, of course, is to require reversal of the judgment now under review. In the Will-O-Way case the court was required to go no further because a final judgment had been rendered for the vendee in the trial court. In the case at bar, if we should go no further than was gone in the Will-O-Way case, we would only reverse the judgment herein and remand the same to the Court of Common Pleas, where it is possible that the petition might be amended setting up a tender. This would likely require a second review of the case. If, however, we adhere to the veiw already arrived at as expressed above, that with or without a tender of conveyance an action does not lie by the vendor to recover at law the purchase price of his contract, this court must not only reverse the judgment below but dismiss the petition. This we do with even more confidence since the doctrine involved is set forth in Prichard v. Mulhall, supra, and that opinion is given express approval by our Supreme Court in the Will-O-Way oninion.\\n'The judgment of the Court of Common Pleas is reversed, and coming to render the judgment that that court should have rendered the petition of the plaintiff is dismissed.\\nMiddleton, PJ., and Blosser, J., concur.\"}"

ohio/1634311.json

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+"{\"id\": \"1634311\", \"name\": \"BURTON v. SAUNDERS\", \"name_abbreviation\": \"Burton v. Saunders\", \"decision_date\": \"1929-11-04\", \"docket_number\": \"No. 10241\", \"first_page\": \"36\", \"last_page\": \"37\", \"citations\": \"8 Ohio Law Abs. 36\", \"volume\": \"8\", \"reporter\": \"The Ohio Law Abstract\", \"court\": \"Ohio Court of Appeals\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T21:07:10.457150+00:00\", \"provenance\": \"CAP\", \"judges\": \"Vickery, PJ., and Levine, J., concur.\", \"parties\": \"BURTON v SAUNDERS\", \"head_matter\": \"BURTON v SAUNDERS\\nOhio Appeals, 8th Dist, Cuyahoga Co\\nNo. 10241.\\nDecided November 4, 1929\\nMessrs. Smith, Olds, Smith & Shepard, Cleveland, for Burton.\\nMr. Lawrence M. Rich, Cleveland, for Saunders.\", \"word_count\": \"831\", \"char_count\": \"4895\", \"text\": \"SULLIVAN, J.\\nThe question is raised as to whether under the last amendment of the legislature, the agreement for the commission is in writing or a memorandum equivalent thereto, signed by the party to be charged, as is provided for in the most recent enactment by the legislature, known as the Statute of Frauds. That this stipulation quoted from the provisions of the escrow agreement, .is an agreement in writing, or at least a memorandum signed by the party to be charged therewith, there can be no question.\\nIt is well settled law that the memorandum in writing referred to in the statute of frauds does not apply alone to the existence of the contract, but it is an instrumentality by which a contract may be proven. In other words, it is an enforceable contract composed of mutuality of mind, but not in and of itself a means of proving the contract itself, notwithstanding that it is a valid contract even though unenforceable, excepting as an instrument evidential for the foundation for a cause of action. This memorandum in writing or stipulation in the escrow agreement, was executed by both parties and consequently by ike party to be charged therewith, to-wit, the defendant below. Here we find a consummation of all those elements which are necessary to constitute an agreement of a memorandum in writing for the enforcement of the claim under the statute of frauds. It is argued, however, that the deal did not go through and consequently that the plaintiff is not entitled to her commission under the agreement, but when we come to examine the record we discover that the agreement could not have been cancelled, excepting by breaching the same without the consent of the defendant below, and in searching the record we find that he was the instrumentality by which the escrow agreement was declared null because he mutually joined in the cancellation of the escrow agreement. This act puts the responsibilitv of the party obligated for the commis sion in the position of responsibility for the abrogation of the agreement and therefore, under the weight of authorities, does not release the defendant from the obligation which he assumed for the payment of the commission.\\nIn Rosenthal vs Schwartz, 214 Mass. 371, it is held that a broker is entitled to his compensation as commission, even though the vendor breached his contract, because the stipulation merely fixed the time for the payment of the commission.\\nIn Walker's Real Estate Agency, Sec. 536-A, a broker who produces a purchaser able and willing to buy, and the contract having been executed, was entitled to his commission notwithstanding the agreement to wait for commission until the title passed.\\nSalmon vs Mayer, 164 N. Y. Supp. 166.\\nIn the 10th Ohio App. 454, Jamison vs Harrison Jr., it was held:\\n(Here follows quotation)\\nWe think these authorities are applicable to the case at bar because it shows that the plaintiff consummated under her contract according to the provisions of the escrow agreement, all-that was to be done and that the only reason that the deal was halted was because of the part which the defendant took in the cancellation of the same.\\nIn the case of Foldenauer vs Leibold, decided by this court in December, 1928, we find the distinguishing characteristic between that case and the one at bar, in that the record was altogether too ambiguous to determine to whomjdie commission Was to be paid according to the memorandum in writing agreed upon, but in the instant case that question does not arise, and therefore we think that that case is not applicable.\\nWhere a real estate broker, under a contract to procure a purchaser for the sale of land and for which he received a commission, performed his contract, he is entitled to his commission notwithstanding that subsequent to his performance of all his obligations the contract has been breached by the party with whom he contracted, and this status applies even where by reason of a defect in the title the deal is not consummated, if it appears that all that a broker was to do was done, and that through no fault of his the final consummation of the transaction was halted. To hold differently would be violative of the law of contracts which rests upon the foundation that where a party thereto has satisfied the obligation of full performance he is entitled to the consideration for his services named in the agreement.\\nThe principal is elementary that a party to a contract can not discharge himself from his obligations where there has been a full, final and complete performance of the things which he engaged to have done.\\nThus holding, the judgment of the lower court is hereby affirmed.\\nVickery, PJ., and Levine, J., concur.\"}"

ohio/1676602.json

@@ -0,0 +1 @@
+"{\"id\": \"1676602\", \"name\": \"SMITH et al., Appellants, v. KATZMAN et al., Appellees\", \"name_abbreviation\": \"Smith v. Katzman\", \"decision_date\": \"1992-07-06\", \"docket_number\": \"No. 62847\", \"first_page\": \"682\", \"last_page\": \"686\", \"citations\": \"81 Ohio App. 3d 682\", \"volume\": \"81\", \"reporter\": \"Ohio Appellate Reports, Third Series\", \"court\": \"Ohio Court of Appeals\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T22:33:37.613854+00:00\", \"provenance\": \"CAP\", \"judges\": \"Francis E. Sweeney, P.J., Spellacy and Patricia A. Blackmon, JJ., concur.\", \"parties\": \"SMITH et al., Appellants, v. KATZMAN et al., Appellees.\", \"head_matter\": \"SMITH et al., Appellants, v. KATZMAN et al., Appellees.\\n[Cite as Smith v. Katzman (1992), 81 Ohio App.3d 682.]\\nCourt of Appeals of Ohio, Cuyahoga County.\\nNo. 62847.\\nDecided July 6, 1992.\\nChristine Guarnieri, for appellants.\\nStephen J. Charms, for appellees.\", \"word_count\": \"1447\", \"char_count\": \"8998\", \"text\": \"Per Curiam.\\nThis appeal was filed, briefed and argued as an accelerated appeal pursuant to Local App.R. 25 of this court.\\nBirt Smith and his wife Janet Smith, plaintiffs-appellants, timely appeal the trial court's decision granting summary judgment to Richard A. Katzman, M.D., Inc. and Dr. Richard A. Katzman, defendants-appellees (hereinafter \\\"Dr. Katzman\\\") on the grounds that the one-year malpractice statute of limitation barred the action.\\nThe Smiths argue that the trial court should have applied the two-year negligence statute of limitations pursuant to New York Cent. RR. Co. v. Wiler (1931), 124 Ohio St. 118, 177 N.E. 205. We agree. Therefore, in compliance with App.R. 11.1, it is the opinion of this court that the trial court erred in not applying R.C. 2305.10. For the reasons set forth below, we reverse and remand.'\\nThe facts of this case involved an action for negligence and loss of consortium, wherein the Smiths alleged that Dr. Katzman in his individual and corporate capacity was engaged as an independent contractor of the Social Security Administration for the purpose of performing physical examinations. The Social Security Administration notified Mr. Smith that he was required to submit to an examination by Dr. Katzman as a precondition to receiving Social Security benefits; the examination was conducted on November 3, 1988.\\nMr. Smith had a medical history of severe myocardial infarctions and had suffered the last one in June 1987.\\nDuring the examination, Dr. Katzman conducted a \\\"Doppler probe\\\" and then ordered Mr. Smith to take a treadmill test. While on the treadmill, Mr. Smith began to suffer another myocardial infarction. After the examination, Dr. Katzman simply sent him home.\\nThe complaint claimed that the stress of the treadmill test was the direct and proximate cause of the myocardial infarction; that Dr. Katzman negligently failed to conduct a proper medical history, negligently failed to consider the results of the Doppler probe and Mr. Smith's medical history, and thus was negligent when he ordered the treadmill test; and that Dr. Katzman knew or should have known that Mr. Smith was having a cardiac crisis, but negligently failed to take steps to stabilize his condition.\\nIn Count One of the complaint, Mr. Smith sought compensation for medical expenses, pain and suffering; in Count Two of the complaint, Mrs. Smith sought compensation for loss of consortium due to her husband's medical condition.\\nDr. Katzman filed an answer and subsequently filed a motion for summary judgment on the grounds that the claim was barred by R.C. 2305.11(B)(1); the motion was supported solely by the allegations in the complaint. The Smiths filed a brief in opposition; Dr. Katzman filed a reply brief; the Smiths filed a response brief to his reply. Thereafter, the trial court granted summary judgment and held that the negligent examination action constituted a \\\"medical claim\\\" within the meaning of R.C. 2305.11 and, therefore, the one-year limitation for malpractice applied.\\nThe Smiths present two assignments of error that this court will address together. They state:\\n\\\"The trial court erred to the prejudice of appellants when it granted appellees' motion for summary judgment.\\n\\\"The trial court erred in holding that appellants' cause of action was barred by the one year statute of limitations in O.R.C. 2305.11(B)(1) rather than the two year statute for bodily injury.\\\"\\nThe Smiths' two assignments of error are well taken and sustained.\\nCiv.R. 56, in pertinent part, provides that:\\n\\\"(B) For defending party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may at any time, move with or without supportive affidavits for a summary judgment in his favor as to all or any part thereof.\\n\\\"(C) Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. \\\"\\nAt the outset, it is important to note that Dr. Katzman's motion for summary judgment, pursuant to Civ.R. 56(B), and the Smiths' brief in opposition were not supported by any evidentiary materials pursuant to Civ.R. 56(E). Thus, the only issue before this court is whether as a matter of law the complaint stated a cause of action for general negligence or one for malpractice arising out of a medical claim. Compare R.C. 2305.10 and 2305.11.\\nR.C. 2305.10, in pertinent part, provides that:\\n\\\"An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose.\\\"\\nR.C. 2305.11, in pertinent part, provides that:\\n\\\"(B)(1) Subject to division (B)(2) of this section, an action upon a medical, dental, optometric, or chiropractic claim shall be commenced within one year after the action accrued ,\\n\\\"(D) As used in this section:\\n\\\"(3) 'Medical claim' means any claim that is asserted in any civil action against a physician, podiatrist, or hospital, against any employee or agent of a physician, podiatrist, or hospital, or against a registered nurse or physical therapist, and that arises out of the medical diagnosis, care, or treatment of any person. 'Medical claim' includes derivative claims for relief that arise from the medical diagnosis, care, or treatment of a person.\\\"\\nIt is well established that a negligent examination conducted on an employee by an employer's physician and required by the employer is not malpractice for the purpose of the statute of limitations. New York Cent. RR. Co. v. Wiler (1931), 124 Ohio St. 118, 177 N.E. 205. See, also, Pennington v. Timken Co. (May 31, 1988), Stark App. No. CA-7389, unreported, 1988 WL 59526. This court has also concluded that negligent blood-grouping analysis ordered by juvenile court and conducted by a physician and hospital did not constitute a \\\"medical claim\\\" within the meaning of R.C. 2305.11. See Price v. Cleveland Clinic Found. (1986), 33 Ohio App.3d 301, 304, 515 N.E.2d 931, 934-935, citing Wiler, 124 Ohio St. at 122-123, 177 N.E. at 206.\\nIn Wiler, the Supreme Court of Ohio determined that the requirement that the employee submit to an examination and the purpose of the examination to provide information to the employer are products of the employment relationship and distinguished from the treatment or attempt to cure that creates a physician-patient relationship. Id. at 122-123, 177 N.E.2d at 206. See, also, Pennington at 5.\\nIn Price, this court considered the requirement that a litigant submit to blood-grouping analysis to assist the court in determining paternity and applied the factors considered in Wiler to the definition of a \\\"medical claim\\\" within the meaning of R.C. 2305.11. Id. 33 Ohio App.3d at 304, 515 N.E.2d at 934-935. This court found that negligent blood-grouping analysis is not a claim that arises out of the medical diagnoses, care or treatment of any person. Id. at 304-305, 515 N.E.2d at 934-936. Blood-grouping analysis, like blood-alcohol tests, forensic pathology tests, X-rays and other tests does not involve \\\"diagnosis, care or treatment\\\" simply because a physician can perform it. Id. at 305, 515 N.E.2d at 935.\\nIn the instant case, there are no factual allegations which would suggest that the Doppler probe, the treadmill test, or the entire examination itself involved diagnosis, care or treatment. The fact that Mr. Smith was required to take the examination as a precondition to Social Security benefits and that its purpose was to obtain information for the Social Security Administration is distinguishable from the diagnosis, care or treatment which constitutes a medical claim within the meaning of R.C. 2305.11(D)(3). Therefore, the two-year limitation of actions pursuant to R.C. 2305.10 is applicable to the instant case.\\nFurthermore, because the complaint sub judice was filed within two years of the negligent examination, it is not barred under R.C. 2305.10, and summary judgment was improperly granted.\\nJudgment reversed and cause remanded.\\nFrancis E. Sweeney, P.J., Spellacy and Patricia A. Blackmon, JJ., concur.\"}"

ohio/1693437.json

@@ -0,0 +1 @@
+"{\"id\": \"1693437\", \"name\": \"NICHOLSON v. RICHTER\", \"name_abbreviation\": \"Nicholson v. Richter\", \"decision_date\": \"1939-03-27\", \"docket_number\": \"No 2964\", \"first_page\": \"413\", \"last_page\": \"416\", \"citations\": \"29 Ohio Law Abs. 413\", \"volume\": \"29\", \"reporter\": \"The Ohio Law Abstract\", \"court\": \"Ohio Court of Appeals\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T20:22:52.594960+00:00\", \"provenance\": \"CAP\", \"judges\": \"BARNES and GEIGER, JJ, concur.\", \"parties\": \"NICHOLSON v RICHTER\", \"head_matter\": \"NICHOLSON v RICHTER\\nOhio Appeals, 2nd Dist, Franklin Co\\nNo 2964.\\nDecided March 27, 1939\\nCharles B. Cranston, Columbus, and James C. Nicholson, Columbus, for plaintiff-appellant.\\nJ. O. Jones, Columbus, for defendantappellee.\", \"word_count\": \"1311\", \"char_count\": \"7548\", \"text\": \"OPINION\\nBy HORNBECK, PJ.\\nAn appeal on qiiestions of law from a judgment of the trial court for defendant for his costs. Since this cause came into this court on appeal, the death of the defendant was suggested and Flora Brown, Administratrix, was substituted as party defendant.\\nThe action was for money upon quantum meruit for services claimed to have been performed by plaintiff for defendant, Richter, at his special instance and request. The services claimed to have been performed were professional in nature in connection with the claim ol defendant, against the estate of Casper J. Richter, deceased, and consisted ol conferences, legal advice, examination of records and evidence, consultation with attorneys representing said estate.\\nThe answer was a general denial ol the allegations of the petition with further denial. that the plaintiff performed any legal services relative tc the estate of Casper J. Richter either by defendant's request or in his behall and denies that any relationship of the attorney and client ever existed between the parties. Upon issues thus drawn the case came on to trial, jury was waived and the trial judge returned his finding in lieu of verdict in writing and held with the defendant, which finding was filed as of date July 6, 1938, as a paper in the cause and is made a part of the transcript of docket and journal entries. In this decision at the end thereof the trial judge said,\\n\\\"If a motion for new trial is filed it may be considered overruled and an entry furnished accordingly.\\\"\\nAfter the decision plaintiff, on July 8, 1938, filed his motion for new trial, consisting of eight grounds and a separate motion requesting the court to state separately his findings of fact and conclusions of law. The court complied with the request and these findings are before us. The motion for new trial was overruled and judgment entered on the finding of the trial judge.\\nThere are twelve assignments of error. The first four of the assignments are directed to the weight of the evidence and the law in respect thereto. These must all be overruled because there is no Bill of Exceptions before this court. The fifth, sixth and seventh are directed to the claimed insufficiency of the findings of ract and the conclusion of law in relation to said finding of fact. The eleventh is to effect that the \\\"findings, conclusions and judgment\\\" in all respect should have been in favor of plaintiff and against defendant.\\nIt will be noted that the motion for new trial and the application for separate findings of law and fact were filed at the same time. Thus the attention of the trial judge was not at any time directed to any insufficiency of his findings of fact and conclusions of law nor was any objection noted thereto, which suggests the advisability of filing the request for separate findings when the case is submitted.\\nIt is elementary that a party cannot predicate error upon a mistake, improper conclusion of law or fact of the trial judge without first giving him an opportunity to pass upon the claimed errors. Nor does the record disclose that counsel proffered any additional findings of fact which he insisted were required to be carried into the findings of fact on the state of the record.\\nFindings of fact are intended to prevent the necessity of an extended Bill of Exceptions but if it is to be urged in a reviewing court that they could not properly have been so determined then the basis of such determination must be presented to the reviewing court.\\nIt is therefore obvious that we are not in position to determine if the findings of fact of the triai judge are incorrect or incomplete.\\nBut it is urged that the findings of fact are not responsive to the pleadings. The findings are brief but in the absence of a record which would clearly disclose that such .findings were so incomplete as to constitute no proper basis for the conclusion of law and judgment thereon we could not .set the judgment aside. An examination of the finding's is convincing that they are a sufficient predicate for' the conclusion of law that the plaintiff has failed to establish his. case by the preponderance of the evidence that an oral contract was made between him and the defendant. The finding of fact upon which the conclusion of law is drawn is to effect that there was a written contract agreement for the professional services of plaintiff with certain heirs of Frank J. Richter but that plaintiff declined to sign said agreement and that the plaintiff signed entries in said estate as counsel for the other heirs but not as counsel for the defendant, Richter.\\nUpon the claim of plaintiff, it might well be true that the trial judge was justified upon the facts set forth in his conclusions in holding tnat the plaintiff failed of his proof.\\nThe briefs of both narties discuss the evidence at considerable length and we find among the papers a statement of a number of. documents, exhibits, letters, contents of folders, etc., which counsel consider as evidence and which we are asked to so consider. This procedure is unknown in our practice. Without some authentication of the testimony before the trial'judge we have no power nor authority to consider it.\\nThe eighth and ninth assignments of error are directed to the overruling of the motion for new trial and it is first claimed that it was error to so overrule it, next and particularly that the court erred in passing upon the motion before it was filed. This latter ground is stressed and argued at considerable length.\\nThe announcement made by the trial judge in the written decision, that if a motion for new trial was filed it might be overruled, is such common practice as might be said to be the rule, especially in cases where the triai judge is acting as a trier of the facts. Why should the judge, if he is satisfied that he has come to the one and onfy conclusion that he can reach upon the controverted issues of fact, burden counsel and take on the added duty of again considering the tacts which he has already resolved against one of the parties. If, however, it oe granted that such procedure was irregular and erroneous, even so, the test would be whether or not it was prejudicial. If, in overruling the motion the trial judge erred to the prejudice of the losing party then the action would be such error as would require a reversal, otherwise it would not.\\nWe find no error to the prejudice of the plaintiff in the action of the trial judge upon the motion for new trial nor in prejudging the motion under the circumstances.\\nThe tenth ground of the motion is that \\\"the trial judge was prejudiced and biased, which is evident upon the record.\\\" There is no support whatever for this claim. Counsel, with knowledge of the judge who was to preside at the trial, waived a jury and elected to submit his cause to the mdge alone. Nothing appears in the record that in the slightest degree indicates any other purpose on the part of the judge than to be impartial and considerate of the plaintiff unless we so construe the fact that he resolved the facts and the law against plaintiff's claim.\\nA fair consideration of the record as it comes to us requires us to-say that no prejudicial error appears to the cause of the plaintiff. The judgment will therefore be affirmed.\\nBARNES and GEIGER, JJ, concur.\"}"

ohio/1693553.json

@@ -0,0 +1 @@
+"{\"id\": \"1693553\", \"name\": \"STATE ex PAYNE v. INDUSTRIAL COMMISSION\", \"name_abbreviation\": \"State ex rel. Payne v. Industrial Commission\", \"decision_date\": \"1939-02-27\", \"docket_number\": \"No 2999\", \"first_page\": \"4\", \"last_page\": \"6\", \"citations\": \"29 Ohio Law Abs. 4\", \"volume\": \"29\", \"reporter\": \"The Ohio Law Abstract\", \"court\": \"Ohio Court of Appeals\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T20:22:52.594960+00:00\", \"provenance\": \"CAP\", \"judges\": \"HORNBECK, PJ, GEIGER & BARNES, JJ, concur.\", \"parties\": \"STATE ex PAYNE v INDUSTRIAL COMMISSION\", \"head_matter\": \"STATE ex PAYNE v INDUSTRIAL COMMISSION\\nOhio Appeals, 2nd Dist, Franklin Co\\nNo 2999.\\nDecided February 27, 1939\\nFrank A. Dye, Columbus, for relator.\\nThomas J. Herbert, Attorney General, Columbus, and E. P. Felker, Asst. Atty. General, Columbus, for respondent.\", \"word_count\": \"850\", \"char_count\": \"5066\", \"text\": \"OPINION\\nBY THE COURT:\\nThis is a suit wherein the relator seeks a writ of mandamus requiring the respondent to award nim compensation as upon permanent total disability from September 10, 1935 to September 11, 1936.\\nIt appears that prior to September 11, 1935, the Commission had awarded compensation to the relator for temporary total disability to the maximum sum of $3750, and later awarded the maximum sum of $3750 to him for temporary partial disability.\\nNovember 12, 1935 tne Commission determined that relator was still partially disabled and that he had been paid the maximum amount provided by law for such disability. December 2, 1936, relator applied- for additional compensation beyond the date of the last payment to him, namely, September 11, 1935, upon the claim that he was permanently and totally-disabled. On December 3, 1936, an application to modify previous award was filed by relator in which he sought the same relief as on his application of December 2.' Both of these applications were denied. A sheet from the record of proceedings bearing dates of April 27 and May 20, 1938 shows the dismissal of certain applications with the notation that the decision is based upon medical reports on record following an oral report made to the Commission by members of the medical staff. On May 25, 1938, another application was filed and on June 23, 1938, the Commission again held against the relator.\\nOn July 21, 1938, relator renewed his application to modify previous award which was dismissed on August 16, 1938. In passing upon this last application the Commission referred to a memorandum filed in support of the application in the form of reports of examinations made by the Veterans' Bureau on August 29, 1932 and July 23, 1934, both of which reported the relator to be permanently and totally disabled. The Commission said that no new facts had been added to the file not previously considered, and further stated that the relator was able to drive an- automobile though he was not' engaged in any industrial activities. The Commis: sion dismissed the application. An application of August 25, 1938, for further compensation made oy relator was dismissed. According to the same sheet from which we glean che information of a dismissal of the application to modify previous award, date July 21, 1938, there is a notation that \\\"it is ordered that the recommendation of August 16, 1938 be adopted,\\\" and under date of August 25, 1938 the notation \\\"held for decision\\\". The same sheet also bears date of September 22, 1938 and at the top thereof the notation \\\"Permanent Total Beg. \\u00cdV1/3S.\\\"\\nThe brief of relator states that the Commission placed relator under a permanent total basis on May 4, 1937, and dated his payments back to September 1,1936. We find no order of the Commission dated May 4, 1937, and we might further say that upon the record as it comes to us it is difficult to tell upon what dates the Commission promulgated its orders, and though reference is made to reports of the Veterans' Bureau and of examinations of the medical staff of' the Commission in instances these reports are not to be found.\\nIt is evident upon the whole record that several applications of the relator subsequent to September 1, 1936 were dismissed by the Commission and thereafter it reversed its former holdings and fixed the time when payments for permanent total disability should begin as of date, September 1, 1936.\\nThere are two theories upon which the\\\" action of the Commission may be predicated. First, that though the relator from a medical standpoint might be properly classified as totally disabled during the period of September 11, 1935 to September 1, 1936, he was able to engage in gainful employment? and second, that the Commission acting upon the reports of its own examiners, in conjunction with the reports of the Veterans' Bureau, determined that relator was permanently totally disabled but fixed the date when such disability began as of September 1,1936. As to both of these conclusions. particularly the latter, the Commission had. support. We can not say that it manifestly abused its discretion in Axing the period of total disability to begin September 1, 1936.\\nWe can not take any one statement of doctor, examiner or investigator and bind the Commission thereby, nor was it required to accept in all respects the Andings of the Veterans' Bureau. It has the right to make decision upon composite determination of all of the evidence that was before it.\\nIt is suggested that although the Commission Axed the date of total disability as of September 1, 1936, it did not make payments begin until September 11, 1936. If this is true the Commission should correct this manifest error on its own motion.\\nThe writ will be denied.\\nHORNBECK, PJ, GEIGER & BARNES, JJ, concur.\"}"

ohio/1702261.json

@@ -0,0 +1 @@
+"{\"id\": \"1702261\", \"name\": \"Derrick, d. b. a. Mecklenburg's Garden, Appellant, v. Board of Liquor Control et al., Appellees\", \"name_abbreviation\": \"Derrick v. Board of Liquor Control\", \"decision_date\": \"1955-01-12\", \"docket_number\": \"No. 34227\", \"first_page\": \"478\", \"last_page\": \"478\", \"citations\": \"162 Ohio St. 478\", \"volume\": \"162\", \"reporter\": \"Ohio State Reports, New Service\", \"court\": \"Supreme Court of Ohio\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-11T02:13:46.573525+00:00\", \"provenance\": \"CAP\", \"judges\": \"Weygandt, C. J., Matthias, Hart, Zimmerman, Stewart, Bell and Taft, JJ., concur.\", \"parties\": \"Derrick, d. b. a. Mecklenburg\\u2019s Garden, Appellant, v. Board of Liquor Control et al., Appellees.\", \"head_matter\": \"Derrick, d. b. a. Mecklenburg\\u2019s Garden, Appellant, v. Board of Liquor Control et al., Appellees.\\n(No. 34227\\nDecided January 12, 1955.)\\nMr. C. G. Yarwood, for appellant.\\nMr. C. William O\\u2019Neill, attorney general, Mr. Robert Krupanshy and Mr. Kiehner Johnson, for appellees.\", \"word_count\": \"84\", \"char_count\": \"535\", \"text\": \"It is ordered and adjudged that this appeal as of right be, and the same hereby is, dismissed for the reason that no debatable constitutional question is involved.\\nAppeal dismissed.\\nWeygandt, C. J., Matthias, Hart, Zimmerman, Stewart, Bell and Taft, JJ., concur.\"}"

ohio/1702305.json

@@ -0,0 +1 @@
+"{\"id\": \"1702305\", \"name\": \"City of Columbus, Appellee, v. Gray, Appellant\", \"name_abbreviation\": \"City of Columbus v. Gray\", \"decision_date\": \"1955-02-09\", \"docket_number\": \"No. 34285\", \"first_page\": \"592\", \"last_page\": \"592\", \"citations\": \"162 Ohio St. 592\", \"volume\": \"162\", \"reporter\": \"Ohio State Reports, New Service\", \"court\": \"Supreme Court of Ohio\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-11T02:13:46.573525+00:00\", \"provenance\": \"CAP\", \"judges\": \"Weygandt, C. J., Hart, Zimmerman, Stewart, Bell and Taet, JJ., concur.\", \"parties\": \"City of Columbus, Appellee, v. Gray, Appellant.\", \"head_matter\": \"City of Columbus, Appellee, v. Gray, Appellant.\\n(No. 34285\\nDecided February 9, 1955.)\\nMr. Chalmers P. Wylie, city attorney, and Mr. Malcolm M. Prime, for appellee.\\nMr. Isadore L. Margulis, for appellant.\", \"word_count\": \"77\", \"char_count\": \"490\", \"text\": \"It is ordered and adjudged that this appeal as of right be, and the same hereby is, dismissed for the reason that no debatable constitutional question is involved.\\nAppeal dismissed.\\nWeygandt, C. J., Hart, Zimmerman, Stewart, Bell and Taet, JJ., concur.\\nMatthias, J., not participating.\"}"

ohio/1720147.json

@@ -0,0 +1 @@
+"{\"id\": \"1720147\", \"name\": \"Chucales et al., d. b. a. State Bar and Grill, Appellees, v. Royalty et al., Appellants\", \"name_abbreviation\": \"Chucales v. Royalty\", \"decision_date\": \"1955-10-26\", \"docket_number\": \"No. 34214\", \"first_page\": \"214\", \"last_page\": \"227\", \"citations\": \"164 Ohio St. 214\", \"volume\": \"164\", \"reporter\": \"Ohio State Reports, New Service\", \"court\": \"Supreme Court of Ohio\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T19:24:18.262816+00:00\", \"provenance\": \"CAP\", \"judges\": \"Weygandt, C. J., Matthias, Hart, Stewart and Bell, JJ., concur.\", \"parties\": \"Chucales et al., d. b. a. State Bar and Grill, Appellees, v. Royalty et al., Appellants.\", \"head_matter\": \"Chucales et al., d. b. a. State Bar and Grill, Appellees, v. Royalty et al., Appellants.\\n(No. 34214\\nDecided October 26, 1955.)\\nMr. H. J. Micklethwaite and Mr. Lee O. Fitch, for appellees.\\nMr. J. W. Brown, Mr. Ben Gettler, Mr. Jonas B. Katz and Mr. Jerome A. Lischlcoff, for appellants.\", \"word_count\": \"3875\", \"char_count\": \"23091\", \"text\": \"Taft, J.\\nDefendants complain that the judgment of the Court of Appeals was based upon its finding that the picketing was for the purpose of bringing pressure upon plaintiffs to compel their employees to join the defendant union but that the petition contains no allegation with respect to any such purpose. We believe that the power of this court, with respect to amendments to pleadings (Section 2309.58, Revised Code), and the directions of the General Assembly, with respect to disregarding defects in pleadings not affecting substantial rights of the adverse party (Section 2309.59, Revised Code), are such that we are not justified in setting aside the judgment of the Court of Appeals in the instant case merely because the petition fails to specify the unlawful purpose of the picketing. The petition does-allege that the picketing was unlawful, no motion to make it definite and certain was filed, no demurrer thereto was filed, and defendants were apparently not misled by such failure to specify the unlawful purpose of the picketing.\\nDefendants also complain because the agreed statement of facts does not include, as one of the agreed \\\"facts upon which\\\" the Court of Appeals \\\"should consider\\\" the appeal, that the picketing was for any such purpose. However, where parties agree that certain facts are \\\"the facts upon which\\\" the \\\"court should consider\\\" a case, the court, in deciding such case, may quite properly base its decision in part upon other facts that may reasonably be inferred from the facts agreed upon.\\nIn view of the facts agreed upon in the instant case, the Court of Appeals could hardly have found that there was any purpose for the picketing except the purpose of pressuring plaintiffs to compel their employees to join the defendant union. Although the wording of the signs used in the picketing tends to show that the only thing defendants were interested in was getting plaintiffs' employees into the union, plaintiffs had not objected to defendants' talking to plaintiffs' employees about joining the union and had even suggested that defendants do so. Especially before defendants had taken advantage of this opportunity to talk with plaintiffs' employees, there would appear to be no apparent reason for defendants to picket in order merely to pressure or to persuade those employees to join the defendant union. It is quite clear from the facts agreed upon that the purpose of the picketing was to conscript plaintiffs, or to pressure plaintiffs into volunteering, as allies of defen dants in pressuring plaintiffs' employees to join defendant union.\\nIn order to compel their employees to join defendant union, it would be necessary for plaintiffs to discharge employees unless they joined that union. In effect, therefore, defendants' purpose of pressuring plaintiffs to compel their employees to join the defendant union amounted to a purpose of pressuring plaintiffs to discharge their employees unless they joined that union.\\nWe have, therefore, in the instant case, peaceful picketing against an employer, conducted on the sidewalk in front of the employer's premises by persons who were never employed by that employer and who do not represent anyone who ever was, and conducted for the purpose of pressuring the employer to discharge his employees unless they join the. union of those who are conducting the picketing.\\nAfter the decision in American Federation of Labor v. Swing, 312 U. S., 321, 85 L. Ed., 855, 61 S. Ct., 568, there was certainly room for doubt as to whether a state court could enjoin such picketing without conflicting with the right to free speech guaranteed by the federal Constitution. See also Senn v. Tile Layers Protective Union, 301 U. S., 468, 81 L. Ed., 1229, 57 S. Ct., 857; Thornhill v. Alabama, 310 U. S., 88, 84 L. Ed., 1093, 60 S. Ct., 736; Carlson v. California, 310 U. S., 106, 84 L. Ed., 1104, 60 S. Ct., 746. But cf. Valentine v. Christensen, 316 U. S., 52, 86 L. Ed., 1262, holding that a state may prohibit use of its streets for distribution of advertising material.\\nSince the decision in the Swing case, the problems, with respect to infringement of the right of free speech by injunctions against picketing, have been considered in numerous decisions by the United States Supreme Court and by state courts of last resort, and have also been the subject of a considerable body of other legal literature. See for example Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U. S., 287, 85 L. Ed., 836, 61 S. Ct., 552; Carpenters and Joiners Union of America v. Ritter's Cafe, 315 U. S., 722, 86 L. Ed., 1143, 62 S. Ct., 807; Bakery & Pastry Drivers & Helpers Local 802 v. Wohl, 315 U. S., 769, 86 L. Ed., 1178, 62 S. Ct., 816; Cafeteria Employees Un ion v. Angelos, 320 U. S., 293, 88 L. Ed., 58, 64 S. Ct., 126; Giboney v. Empire Storage & lce Co., 336 U. S., 490, 93 L. Ed., 834, 69 S. Ct., 684; Building Service Employers International Union v. Gazzam, 339 U. S., 532, 94 L. Ed., 1045, 70 S. Ct., 784; Hughes v. Superior Court, 339 U. S., 460, 94 L. Ed., 985, 70 S. Ct., 718; International Brotherhood of Teamsters v. Hanke, 339 U. S., 470, 94 L. Ed., 995, 70 S. Ct., 773, 13 A. L. R. (2d), 631; Local Union No. 10 v. Graham, 345 U. S., 192, 97 L. Ed., 946, 73 S. Ct., 585; annotations at 11 A. L. R. (2d), 1338; 93 L. Ed., 1151, 1186 et seq.; 94 L. Ed., 973, 975 et seq.; Teller, Picketing and Free Speech, 56 Harvard Law Review, 180; Dodd, Picketing and Free Speech: A Dissent, 56 Harvard Law Review, 513; Teller, Picketing and Free Speech: A Reply, 56 Harvard Law Review, 532; Jaffe, In Defense of the Supreme Court's Picketing Doctrine, 41 Michigan Law Review (1943), 1037.\\nAs a result, it may fairly be said that it is difficult to rescue the principles of law decided from the ocean of words in which they are submerged. For this reason, and because many of these cases were recently reviewed by Judge Hart in his opinion in W. E. Anderson Sons Co. v. Local Union No. 311, 156 Ohio St., 541, 104 N. E. (2d), 22, we will merely state our conclusions as to the principles of law which have in our opinion now been established by the decisions of the Supreme Court of the United States, to the extent that those principles indicate whether or not the injunction against picketing in the instant case conflicts with the right to free speech guaranteed by the federal Constitution; and we will quote briefly some of the reasoning which was used in those decisions and which we believe supports our conclusions.\\nIn our opinion, where the public policy of a state regards picketing of the kind involved in the instant case as unlawful, a state court may enjoin such picketing without infringing the right of free speech guaranteed by the Fourteenth Amendment to the federal Constitution; and the fact, that such public policy has been found by the courts of that state to be a part of its common law instead of being expressed by its Legislature in statutory form, is immaterial.\\nThus in Building Service Employers Intl. Union v. Gazzam, supra (339 U. S., 532), it is said in the court's opinion:\\n\\\"This court has said that picketing is in part an exercise of the right of free speech guaranteed by the federal Constitution. But since picketing is more than speech and establishes a locus in quo that has far more potential for inducing action or nonaction than the message the pickets convey, this court has not hesitated to uphold a state's restraint of acts and conduct which are an abuse of the right to picket rather than a means of peaceful and truthful publicity.\\n\\u00cd (\\n\\\"The state of Washington has by legislative enactment declared its public policy on the subject of organization of workers for bargaining purposes. Under the so-enunciated public policy of Washington, it is clear that workers shall be free from the coercion, interference, or restraint of employers of labor in the designation of their representatives for collective bargaining. Picketing of an employer to compel him to coerce his employees' choice of a bargaining representative is an attempt to induce a transgression of this policy, and the state here restrained the advocates of such transgression from further action with like aim. To judge the wisdom of such policy is not for us; ours is but to determine whether a restraint of picketing in reliance on the policy is an unwarranted encroachment upon rights protected from state abridgment by the Fourteenth Amendment.\\n\\\" An adequate basis for the instant decree is the unlawful objective of the picketing, namely, coercion by the employer of the employees' selection of a bargaining representative.\\n\\\"Here, as in Giboney, the union was using its economic power with that of its allies to compel respondent to abide by union policy rather than by the declared policy of the state. * If respondent had complied with petitioners' demands he would have thereby coerced his employees. The employees would have had no free choice as to whether they wished to organize or what union would be their representative.\\\"\\nAlso, in Hughes v. Superior Court, supra (339 U. S., 460), it is said in the court's opinion:\\n\\\" while picketing is a mode of communication it is inseparably something more and different. Industrial picketing 'is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated. ' * # # Publication in a newspaper, or by distribution of circulars, may convey the same information or make the same charge as do those patrolling a picket line. But the very purpose of a picket line is to exert influences, and it produces consequences, different from other modes of communication. The loyalties and responses evoked and exacted by picket lines are unlike those flowing from appeals by printed word.\\n\\\" A state may constitutionally permit picketing despite the ingredients in it that differentiate it from speech in its ordinary context. And we have found that because of its element of communication picketing under some circumstances finds sanction in the Fourteenth Amendment. However general or loose the language or opinions, the specific situations have controlled decision. It has been amply recognized that picketing, not being the equivalent of speech as a matter of fact, is not its inevitable legal equivalent. Picketing is not beyond the control of a state if the manner in which picketing is conducted or the purpose which it seeks to effectuate gives ground for its disallowance.\\n\\\" The fact that California's policy is expressed by the judicial organ of the state rather than by the Legislature we have repeatedly ruled to be immaterial.\\n\\\" It is not for this court to deny to a state the right, or even to question'the desirability, of fitting its law 'to a concrete situation through the authority given to its courts. ' # It is particularly important to bear this in mind in regard to matters affecting industrial relations which, until recently, have 'been left largely to judicial lawmaking and not to legislation.' \\\"\\nSee also Local Union No. 10 v. Graham, supra (345 U. S., 192); International Brotherhood v. Hanke, supra (339 U. S., 470); Giboney v. Empire Storage & Ice Co., supra (336 U. S., 490); and Carpenters and Joiners Union v. Ritter's Cafe, supra (315 U. S., 722).\\nThe question remains whether the public policy of Ohio regards picketing of the kind involved in the instant case as unlawful. It has not been argued and we will not therefore consider whether such picketing is forbidden by the provisions of Section 1331.01 et seq., Revised Code. In our opinion, picketing of the kind involved in the instant case is and will continue to be unlawful in Ohio until legislation making it lawful is adopted.\\nIn the instant case, defendants by their picketing were endeavoring to advance their interests. This effort of defendants necessarily conflicted with the interests of plaintiffs in avoiding interference with their business and with the interests of plaintiffs' employees in avoiding interference with their jobs. Furthermore, it conflicted with the public interest in avoiding industrial strife. There is nothing in the record to show what interests of defendants will be advanced by this picketing other than their interest in getting additional members for their union. For example, there is not even any evidence that, because of such things as payment of low wages or long hours of employment, plaintiffs are enjoying a competitive advantage over others, who are engaged in the same business and are maintaining union standards and employing those whom defendants represent. Under such circumstances, Ohio is certainly reasonable in determining that it is against its public policy to permit the use of its streets and sidewalks (dedicated and opened to facilitate public travel and transportation. Railway Co. v. Telegraph Assn., 48 Ohio St., 390, 27 N. E., 890, 29 Am. St.. Rep., 559, 12 L. R. A., 534; Callen v. Columbus Edison Electric Light Co., 66 Ohio St., 166, 180, 64 N. E., 141, 58 L. R. A., 782) to stir up industrial strife that does not exist and for the existence of which there is no apparent reason.\\nIn our opinion, the holding of this court in Crosby v. Rath, 136 Ohio St., 352, 25 N. E. (2d), 934, requires the conclusion that the picketing involved in the instant case was unlawful and should be enjoined. It is true that the decision in the Crosby case might have been based upon the. fact that the picketing involved in that case had been accompanied by violence. However, the opinion \\\"by the court\\\" does not base the decision upon that ground but upon the ground that picketing is unlawful where there is no dispute between the employer and his employees and where the picketing is conducted against the employer by persons having no connection with his employees and where it is conducted for the purpose of pressuring the employer to discharge his employees unless they become members of a union. Thus, in that case, this court reversed that part of the judgment of the Court of Appeals which had permitted picketing and boycotting and, in doing so, stated in an opinion \\\"by the court\\\":\\n\\\" it is not even contended that in the instant case there is any dispute whatsoever between the plaintiff and her employees . On the contrary', the only dispute in the instant case is between the plaintiff and the defendants with whom the plaintiff's employees have no connection. The thing upon which the defendants ar\\u00e9 insisting is that the plaintiff discharge her employees unless they become members of one of the defendant unions. There is no reason or convincing a\\u00fathority sustaining the contention of the defendants that they have the right to engage in picketing or boycotting under such circumstances. this must be the law the instant situation is concededly unaffected by statute.\\\"\\nIt is argued that this court in Grimes & Hauer, Inc., v. Pollock, 163 Ohio St., 372, 127 N. E. (2d), 203, not only held that the public policy of Ohio does not oppose union shop agreements, but also questioned the reasons it had given for the Crosby case decision. There are statements in the opinion, but not in the syllabus, which might lend support to such conclusions. Those statements were made in answer to the contention that, because of Section 164(b), Title 29, U. S. Code, and because the common-law public policy of Ohio in effect establishes a \\\"right to work\\\" law, the state court could enjoin the picketing involved in that case. However, even if there had been a statutory \\\"right to work\\\" law in Ohio, the only effect of Section 164(b), Title 29, U. S. Code, would have been to prevent the National Labor Relations Board from acting in disregard of that law, as, for example, in authorizing execution or application of a union shop agreement. As this court recognized in the syllabus of the Grimes & Hauer case, the plaintiff therein was entitled to relief under provisions of the Labor Management Relations Act. Therefore the denial to Ohio of the right to enjoin the picketing in the Grimes & Hauer case (a denial implied by reason of the doctrine of pre-emption announced in Garner v. Teamsters, Chauffeurs & Helpers Local Union No. 776, 346 U. S., 485, 98 L. Ed., 228, 74 S. Ct., 161) would not, to use the words of Section 164(b), be \\\"authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment.\\\"\\nHowever, in our opinion, it is not necessary to determine and we do not determine in the instant case whether there is in Ohio, apart from any statutory or constitutional provision therefor, any common-law public policy which in effect establishes a \\\"right to work\\\" law. Assuming that there is no such common-law public policy in Ohio, the common-law public policy of Ohio may still regard peaceful picketing as unlawful where there is no dispute between the employer and his employees and where the picketing is conducted against the employer by persons who were never employed by him and who do not represent anyone that ever was so employed and where it is conducted for the purpose of pressuring the employer to compel his employees to become members of a union. As hereinbefore pointed out, it does; and an injunction against such picketing does not infringe upon the right to free speech guaranteed by the federal Constitution. In our opinion, the Fourteenth Amendment to the federal Constitution does not require a state to prohibit voluntary acquiescence in the demands of a union in order that such state may prohibit the union from exerting pressure by picketing to secure submission to such demands. Thus, it is said in the court's opinion in International Brotherhood v. Hanke, supra (339 U. S., 470):\\n\\\"Nor does the Fourteenth Amendment require prohibition by Washington also of voluntary acquiescence in the demands of the union in order that it may choose to prohibit the right to secure submission through picketing. In abstaining from interference with such voluntary agreements a state may rely on self-interest. In any event, it is not for this court to question a state's judgment in regulating only where an evil seems to get most conspicuous.\\\"\\nAlso, in Hughes v. Superior Court, supra (339 U. S., 460), it is said in the court's opinion:\\n\\\"If because of the compulsive features inherent in picketing, beyond the aspect of mere communication as an appeal to reason, a state chooses to enjoin picketing to secure submission to a demand for employment proportional to the racial origin of the then customers of a business, it need not forbid the employer to adopt such a quota system of his own free will. ' '\\nSince there is no claim that plaintiffs in the instant case were engaged in interstate commerce, the decisions in Grimes & Hauer, Inc., v. Pollock, supra, and Garner v. Teamsters, Chauffeurs & Helpers Local Union No. 776, supra, are not applicable.\\nJudgment affirmed.\\nWeygandt, C. J., Matthias, Hart, Stewart and Bell, JJ., concur.\"}"

ohio/1722072.json

@@ -0,0 +1 @@
+"{\"id\": \"1722072\", \"name\": \"POTTS, Plaintiff-Appellant v. Potts, Defendant-Appellee\", \"name_abbreviation\": \"Potts v. Potts\", \"decision_date\": \"1943-11-13\", \"docket_number\": \"No. 153\", \"first_page\": \"54\", \"last_page\": \"56\", \"citations\": \"40 Ohio Law Abs. 54\", \"volume\": \"40\", \"reporter\": \"The Ohio Law Abstract\", \"court\": \"Ohio Court of Appeals\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-11T02:39:24.530715+00:00\", \"provenance\": \"CAP\", \"judges\": \"BARNES, P. J. and HORNBECK, J., concur.\", \"parties\": \"POTTS, Plaintiff-Appellant v. Potts, Defendant-Appellee.\", \"head_matter\": \"POTTS, Plaintiff-Appellant v. Potts, Defendant-Appellee.\\nOhio Appeals, Second District, Madison County.\\nNo. 153.\\nDecided November 13, 1943.\\nH. H. Crabbe, Londo.n, for plaintiff-appellant.\\nD. M. Richmond, London, for defendant-appellee.\", \"word_count\": \"981\", \"char_count\": \"5827\", \"text\": \"OPINION\\nBy GEIGER, J.\\nThis is an appeal from the judgment of the Court of Common Pleas of Madison County, Ohio, fixing the alimony allowed by it to Ruth Potts, the plaintiff-appellant. The original petition of the divorce asserted that the defendant, Angus Potts, was guilty of gross neglect of duty and adultery. The cause was tried, and plaintiff-appellant asserts that the court before hearing all of the evidence stated that enough had been submitted and proceeded to grant the divorce, and fix the alimony. The court in its order confided the custody of the children, until the further order of the court, to the plaintiff,'exclusively, with the right of visitation of the defendant. The court further ordered that the plaintiff shall have as and for alimony the household goods then in possession of the plaintiff. It is further ordered that the defendant pay to the plaintiff as a reasonable alimony in money, the sum of $2,200.00, payable\\u2014 $400 instante and the balance in monthly payments of $50, beginning on August 15, 1943, and continuing until paid in full. It is further ordered that the defendant pay to the plaintiff the sum of $40 per month for the support of the three children of the parties, the first payment to be made on July 15, 1943; and further, that .the plaintiff remove herself and her chattel property from the defendant's house.\\nNotice of appeal from this order of the court was properly filed, and the plaintiff-appellant filed an assignment of error to the effect that the court erred in its allowance of alimony; that the sum of $2,200 awarded plaintiff-appellant is wholly inadequate and not commensurate with the amount of property owned by the defendant-appellee, and with his ability to pay.\\nThe bill of exceptions discloses that the plaintiff is twenty-seven years of age and defendant twenty-two years of age; parties are farmers, and defendant-appellee is the operator of a farm of four hundred acres, on a fifty-fifty basis. The divorce was granted on the allegation of adultery. The petition in the court below was filed on March 16, 1943, and on March 18th the appellee filed a financial statement with the Ceneral National Bank, showing that the defendant's net worth was $9,110.80, in addition to which he owned a one-half interest in certain cattle which, after the divorce, he sold for between $1,500 and $2,000. The defendant-appellee asserted that his indebtedness had increased from $3,600 to $7,000, between the date of his financial statement to the bank and the date of his trial, a part of his increased indebtedness being caused by the purchase of a new automobile and certain farm equipment.\\nIt is urged by counsel for plaintiff-appellant that this increased indebtedness did not diminish his net worth, in that he was the owner of the property for which the money was expended. The plaintiff-appellant states that there were certain natural increases in the value of the stock held by the defendant. The defendant admitted that his net worth was between $10,000 and $12,000. These parties had been married. for a number of years and together had accumulated property of value.\\nThe court below arrived at the conclusion that the amount allotted was a sufficient measure of the plaintiff's interest in the property of the defendant, accumulated during their married life. The order of the court is that the plaintiff-appellant immediately vacate the premises which would, of course, necessitate her securing new quarters for herself and her three minor children. $40 a month is allowed for the care of the three children. We are of the opinion that this amount would furnish three children but a scanty support, and we are also of the opinion that the plaintiff-appellant should have out of her husband's estate a larger sum in cash than that allowed by the court. The court allowed a total of $2,200, a certain amount to be paid at once and the balance to be paid in monthly installments. No one can predict what may be the future ability of a share farmer to earn money upon the property he operates. This farmer shows ability and skill in the present management of the 400 acres of land, and he has property valued at least in the amount stated by him.\\nWe are of the opinion that the plaintiff-appellant should be awarded as alimony not less than $1,000 more than has already been allowed which would make her alimony allowance at least $3,200. The law would, in probability, be better satisfied if the trial court could allow an additional $2,000. Whatever additional may be allowed, as large a portion as possible should be paid in a short period.\\nAs a reviewing court, we have no authority to fix the amount of alimony, but we will remand the case to the Court of Common Pleas for further proceeding, and will state that if additional evidence that may be submitted does not influence us to change our present view, we will not affirm the order of the Court of Common Pleas, hereafter to be made, unless the amount of alimony to be paid by defendant-appellee to plaintiff-appellant be increased in the sum of at least $1,000.\\nCounsel for appellant advances the argument that if this court increases the alimony to be paid by him that the defendant-appellee will not be able to continue in the management of the farm and that he will, therefore, become merely a farm hand. We are not impressed with this argument, and besides it should have occurred to him before he began his philandering experience with another woman.\\nCause remanded to the Court of Common Pleas for further proceedings.\\nBARNES, P. J. and HORNBECK, J., concur.\"}"

ohio/1724081.json

@@ -0,0 +1 @@
+"{\"id\": \"1724081\", \"name\": \"Cincinnati Insurance Company et al., Appellees, v. Heritage Buffing and Polishing, Inc., Appellant\", \"name_abbreviation\": \"Cincinnati Insurance v. Heritage Buffing & Polishing, Inc.\", \"decision_date\": \"1993-07-28\", \"docket_number\": \"No. 92-1032\", \"first_page\": \"1202\", \"last_page\": \"1202\", \"citations\": \"67 Ohio St. 3d 1202\", \"volume\": \"67\", \"reporter\": \"Ohio State Reports, Third Service\", \"court\": \"Supreme Court of Ohio\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-11T00:21:47.084776+00:00\", \"provenance\": \"CAP\", \"judges\": \"Moyer, C.J., A.W. Sweeney, Douglas, Wright and Resnick, JJ., concur.\", \"parties\": \"Cincinnati Insurance Company et al., Appellees, v. Heritage Buffing and Polishing, Inc., Appellant.\", \"head_matter\": \"Cincinnati Insurance Company et al., Appellees, v. Heritage Buffing and Polishing, Inc., Appellant.\\n[Cite as Cincinnati Ins. Co. v. Heritage Buffing & Polishing, Inc. (1993), 67 Ohio St.3d 1202.]\\n(No. 92-1032\\nSubmitted June 3, 1993\\nDecided July 28, 1993.)\\nLane, Alton & Horst and Mary McWilliams Dengler, for appellees.\\nR.C. Stoughton, Sr. Co., L.P.A., and R.C. Stoughton, Sr., for appellant.\", \"word_count\": \"88\", \"char_count\": \"595\", \"text\": \"This cause is dismissed, sua sponte, as having been improvidently allowed.\\nMoyer, C.J., A.W. Sweeney, Douglas, Wright and Resnick, JJ., concur.\\nF.E. Sweeney and Pfeifer, JJ., dissent and would reverse.\"}"

ohio/173081.json

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+"{\"id\": \"173081\", \"name\": \"BN1 TELECOMMUNICATIONS, INC., Appellee, v. CYBERNET COMMUNICATIONS, INC., Appellant\", \"name_abbreviation\": \"BN1 Telecommunications, Inc. v. Cybernet Communications, Inc.\", \"decision_date\": \"1997-03-31\", \"docket_number\": \"No. 71342\", \"first_page\": \"851\", \"last_page\": \"857\", \"citations\": \"118 Ohio App. 3d 851\", \"volume\": \"118\", \"reporter\": \"Ohio Appellate Reports, Third Series\", \"court\": \"Ohio Court of Appeals\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T21:32:54.840240+00:00\", \"provenance\": \"CAP\", \"judges\": \"James D. Sweeney, C.J., Dyke and Spellacy, JJ., concur.\", \"parties\": \"BN1 TELECOMMUNICATIONS, INC., Appellee, v. CYBERNET COMMUNICATIONS, INC., Appellant.\", \"head_matter\": \"BN1 TELECOMMUNICATIONS, INC., Appellee, v. CYBERNET COMMUNICATIONS, INC., Appellant.\\n[Cite as BN1 Telecommunications, Inc. v. Cybernet Communications, Inc. (1997), 118 Ohio App.3d 851.]\\nCourt of Appeals of Ohio, Eighth District, Cuyahoga County.\\nNo. 71342.\\nDecided March 31, 1997.\\nJohn B. Wirtz, for appellee.\\nJeffrey A. Stone, for appellant.\", \"word_count\": \"1776\", \"char_count\": \"10870\", \"text\": \"Per Curiam.\\nAn accelerated appeal is authorized pursuant to App.R. 11.1 and Loc. App.R. 25. The purpose of an accelerated docket is to allow an appellate court to render a brief and conclusionary decision. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158, 11 OBR 240, 463 N.E.2d 655; App.R. 11.1(E).\\nIn the ease sub judice, defendant-appellant Cybernet Communications, Inc. (\\\"Cybernet\\\"), appeals from the denial of its motion for relief from judgment pursuant to Civ.R. 60(B)(4). No evidentiary hearing was conducted by the trial court on this motion for relief from judgment. For the reasons adduced below, we reverse the judgment of the trial court and enter judgment in favor of Cybernet.\\nA review of the record on appeal indicates that plaintiff-appellee BN1 Telecommunications, Inc. (\\\"BN1\\\") provided long-distance telephone services to Cybernet. Thereafter, Cybernet complained about the service provided by BN1. BN1 allegedly agreed to adjust Cybernet's billing account to compensate for the allegedly poor service. These account adjustments never materialized. Thereafter, on May 19, 1995, BN1 filed suit to collect the overdue account, seeking damages in the amount of $11,344.05. Cybernet filed its answer.on July 24, 1995.\\nOn December 28, 1995, the trial court referred the case to arbitration. The arbitration hearing was conducted on April 23, 1996, at which time the arbitration panel made an award in favor of BNl in the amount of $10,238.30 on the overdue account. Defense counsel, but not the defendant-client, attended the arbitration hearing. No objections to the arbitration award were filed by Cybernet. This award was then affirmed by the trial court on May 29, 1996. Cybernet filed its motion for relief from judgment on July 25, 1996. Cybernet filed a brief in opposition to relief on August 5,1996, with no evidentiary support attached. The trial court, without the benefit of an evidentiary hearing, denied the motion for relief on September 3, 1996, without opinion, using a half-sheet status form entry. This timely appeal on the accelerated docket from that denial of relief from judgment followed.\\nThe sole assignment of error provides:\\n\\\"The trial court committed reversible error in denying appellant's motion for relief from judgment pursuant to Civ.R. 60(B)(4) because there had been an accord and satisfaction between the parties pursuant to the provisions of R.C. 1303.40, 'accord and satisfaction by use of instrument,' before the trial court entered judgment.\\\"\\nThe basis of the motion for relief from judgment stems from an alleged accord and satisfaction of the disputed debt represented by the overdue account. The statute which governs this issue is R.C. 1303.40 (effective August 19,1994), which provides:\\n\\\"If a person against whom a claim is asserted proves that that person in good faith tendered an instrument to the claimant as full satisfaction of the claim, that the amount of the claim was unliquidated or subject to a bona fide dispute, and that the claimant obtained payment of the instrument, all of the following apply:\\n\\\"(A) Unless division (B) of this section, applies, the claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.\\n\\\"(B) Subject to division (C) of this section, a claim is not discharged under division (A) of this section if either of the following applies:\\n\\\"(1) The claimant, if an organization, proves both of the following:\\n\\\"(a) Within a reasonable time before the person against whom the claim is asserted tendered the instrument to the claimant, the claimant sent a conspicuous statement to the person that communications concerning disputed debts, including an instrument tendered as full satisfaction of a debt, are to be sent to a designated person, office, or place.\\n\\\"(b) The instrument or accompanying communication was not received by that designated person, office, or place.\\n\\\"(2) The claimant, whether or not an organization, proves that within ninety days after payment of the instrument, the claimant tendered repayment of the amount of the instrument to the person against whom the claim is asserted. Division (B)(2) of this section does not apply if the claimant is an organization that sent a statement complying with division (B)(1) of this section.\\n\\\"(C) A claim is discharged if the person against whom the claim is asserted proves that within a reasonable time before collection of the instrument was initiated, the claimant, or an agent of the claimant having direct responsibility with respect to the disputed obligation, knew that the instrument was tendered in full satisfaction of the claim.\\\"\\nAttached to the motion for relief from judgment was a photocopy, authenticated by an attached affidavit, of a draft, numbered 2079 and dated April 9, 1996, from Cybernet and made payable to BN1 in the amount of $1,105.75. On the face of this draft, in a separate box titled \\\"Description,\\\" is the handwritten phrase \\\"acct paid in full acct #12162341800,\\\" which represents the customer number of Cybernet as used by BN1 on the overdue account. In another separate box on the face of the draft, titled \\\"Explanation,\\\" is the handwritten phrase \\\"Balance paid.\\\" The back of this draft indicates that the instrument was negotiated by BN1 on April 15, 1996, eight days prior to the arbitration hearing. Also attached to this motion was the affidavit of Cybernet's president, Davis Antestenis, who (1) authenticated the photocopy of the draft, (2) detailed the disputed account with BN1, and (3) averred that BN1 did not comply with R.C. 1303.40(B)(1)(a) or (B)(2). Cybernet argues that the negotiation of the draft, without an accompanying reservation of rights by the creditor, BN1, represents an accord and satisfaction of the disputed amount for the amount indicated by the draft.\\nThe standard of review relative to these assignments was recently provided in Caraballo v. Wright (Mar. 2,1995), Cuyahoga App. No. 66971, unreported, at 4-5, 1995 WL 92154, where, citing Acme Music & Vending, Inc. v. Buccaneer Lanes, Inc. (Sept. 30,1994), Trumbull App. No. 93-T-5001, unreported, 1994 WL 587736, and E. Ohio Gas Co. v. Walker (1978), 59 Ohio App.2d 216, 13 O.O.3d 234, 394 N.E.2d 348, the following was stated:\\n\\\"To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate (1) that the party has a meritorious defense, or claim to present if relief is granted, (2) that the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5), and (3) that the motion is made within a reasonable time. GTE Automatic Elec. v. ARC Industries (1976), 47 Ohio St.2d 146, 1 O.O.3d 86, 351 N.E.2d 113. The motion is addressed to the sound discretion of the trial court, and a ruling on a motion will not be disturbed on appeal absent a showing of an abuse of discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 [1123-1124], An abuse of discretion connotes more than an error of judgment, but rather, indicates an attitude on the part of the court that is unreasonable, unconscionable or arbitrary. Wilmington Steel Products, Inc. v. Cleveland Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 122, 573 N.E.2d 622 [624-625],\\n\\\"In order to merit a hearing and prevail, a motion under Civ.R. 60(B) must comply with the requirements for all motions as set forth under Civ.R. 7(B); it must be accompanied by a memorandum of facts and law, and evidentiary materials containing operative facts which would warrant relief under the rule must be attached. Angel v. Angel (Feb. 18, 1993), Scioto App. No. 92CA2071, unreported, at 5, 1993 WL 49456; Sykes Constr. Co., Inc. v. Maple Wood Care, Inc. (May 3, 1991), Portage App. No. 90-P-2218, unreported, at 3, 1991 WL 70795; Adomeit v. Baltimore (1974), 39 Ohio App.2d 97, 68 O.O.2d 251, 316 N.E.2d 469; 2 Klein, Browne and Murtaugh, Baldwin's Ohio Civil Practice (1988), 106-107, T 53.05(A) and (B).\\\"\\nThe quality of operative facts which must be demonstrated by the movant to warrant relief was defined in E. Ohio Gas Co. v. Walker, supra, 59 Ohio App.2d 216, 13 O.O.3d 234, 394 N.E.2d 348, at syllabus, as follows:\\n\\\"The allegation of operative facts required in order to prevail upon a motion for relief from judgment pursuant to Civ.R. 60(B) must be of such evidentiary quality as affidavits, depositions, answers to interrogatories, written admissions, written stipulations, or other sworn testimony. Unsworn allegations of operative facts contained in a motion for relief from judgment filed under Civ.R. 60(B) or in a brief attached to the motion are not sufficient evidence upon which to grant a motion to vacate judgment.\\\"\\nApplying the standard of review to the facts before us, Cybernet's motion met the three basic GTE elements. It is also clear that the draft was conspicuously intended to be payment in full satisfaction of the disputed debt. It is equally clear that BNl negotiated the draft without a reservation of rights and without complying with the protections afforded a creditor by R.C. 1303.40. As a matter of law, the claim was discharged, and the trial court abused its discretion in not granting the motion for relief from judgment. Accordingly, the trial court order of May 29, 1996, affirming the award of the arbitrators in the amount of $10,238.30, is vacated, and judgment is entered in favor of defendant on the basis of an accord and satisfaction.\\nJudgment accordingly.\\nJames D. Sweeney, C.J., Dyke and Spellacy, JJ., concur.\\n. Civ.R. 60(B)(4) provides in pertinent part the following:\\n\\\"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application . The motion shall be made within a reasonable time\\n. Appellee suggests, both in its brief in opposition to relief from judgment and in its appellate brief, that this draft was made known to the arbitration panel. Given that the damages prayed for minus the amount of the draft equals the amount of the arbitration award ($11,344.05 - $1,105.75 = $10,238.30), it would appear that this suggestion has substance.\"}"

ohio/1742647.json

@@ -0,0 +1 @@
+"{\"id\": \"1742647\", \"name\": \"Martin v. Hardy\", \"name_abbreviation\": \"Martin v. Hardy\", \"decision_date\": \"1995-11-01\", \"docket_number\": \"95-1800\", \"first_page\": \"1442\", \"last_page\": \"1442\", \"citations\": \"74 Ohio St. 3d 1442\", \"volume\": \"74\", \"reporter\": \"Ohio State Reports, Third Service\", \"court\": \"Supreme Court of Ohio\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T23:50:55.466061+00:00\", \"provenance\": \"CAP\", \"judges\": \"Moyer, C.J., Douglas, Wright, Resnick, F.E. Sweeney, Pfeifer and Cook, JJ., concur.\", \"parties\": \"Martin v. Hardy.\", \"head_matter\": \"95-1800.\\nMartin v. Hardy.\", \"word_count\": \"28\", \"char_count\": \"191\", \"text\": \"In Mandamus. On motion to dismiss. Motion to dismiss sustained. Cause dismissed.\\nMoyer, C.J., Douglas, Wright, Resnick, F.E. Sweeney, Pfeifer and Cook, JJ., concur.\"}"

ohio/1742723.json

@@ -0,0 +1 @@
+"{\"id\": \"1742723\", \"name\": \"State ex rel. Kilpatrick v. Ingraham\", \"name_abbreviation\": \"State ex rel. Kilpatrick v. Ingraham\", \"decision_date\": \"1995-11-22\", \"docket_number\": \"95-1941\", \"first_page\": \"1461\", \"last_page\": \"1461\", \"citations\": \"74 Ohio St. 3d 1461\", \"volume\": \"74\", \"reporter\": \"Ohio State Reports, Third Service\", \"court\": \"Supreme Court of Ohio\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T23:50:55.466061+00:00\", \"provenance\": \"CAP\", \"judges\": \"Moyer, C.J., Douglas, Wright, Resnick, F.E. Sweeney, Pfeifer and Cook, JJ., concur.\", \"parties\": \"State ex rel. Kilpatrick v. Ingraham.\", \"head_matter\": \"Wednesday, November 22, 1995\\nMERIT DOCKET\\n95-1941.\\nState ex rel. Kilpatrick v. Ingraham.\", \"word_count\": \"54\", \"char_count\": \"355\", \"text\": \"In Prohibition. On amended complaint and motion for stay. Sua sponte, leave to file the amended complaint is granted, and the amended complaint is dismissed. Motion for stay denied.\\nMoyer, C.J., Douglas, Wright, Resnick, F.E. Sweeney, Pfeifer and Cook, JJ., concur.\"}"

ohio/1744964.json

@@ -0,0 +1 @@
+"{\"id\": \"1744964\", \"name\": \"Henry's Cafe, Inc., Appellant, v. Board of Liquor Control et al., Appellees\", \"name_abbreviation\": \"Henry's Cafe, Inc. v. Board of Liquor Control\", \"decision_date\": \"1959-12-30\", \"docket_number\": \"No. 36063\", \"first_page\": \"233\", \"last_page\": \"238\", \"citations\": \"170 Ohio St. 233\", \"volume\": \"170\", \"reporter\": \"Ohio State Reports, New Service\", \"court\": \"Supreme Court of Ohio\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"Weygandt, C. J., Zimmerman, Taft, Matthias and Bell, JJ., concur.\", \"parties\": \"Henry\\u2019s Cafe, Inc., Appellant, v. Board of Liquor Control et al., Appellees.\", \"head_matter\": \"Henry\\u2019s Cafe, Inc., Appellant, v. Board of Liquor Control et al., Appellees.\\n(No. 36063\\nDecided December 30, 1959.)\\nMr. Charles T. Kaps, Mr. Gregory C. Karas and Mr. Richard C. Addison, for appellant.\\nMr. Mark McElroy, attorney general, Mr. John W. Leibold and Mr. John A. Hoskins, for appellees.\", \"word_count\": \"1626\", \"char_count\": \"9713\", \"text\": \"Peck, J.\\nAt the outset, we quote the pertinent portion of Section 119.12, Revised Code, because the judgment in this case depends upon an interpretation of such provision of the Administrative Procedure Act:\\n\\\"The Court [of Common Pleas on appeal] may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In the absence of such a finding, it may reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law.\\\"\\nThis provision confers the jurisdiction of the Court of Common Pleas in the present case, which jurisdiction is exclusive and limited.\\nNo consequential question of fact is presented by the record. The Court of Common Pleas opinion notes that the president of the appellant corporation was, as such, responsible for the conduct of the business, was present and not only permitted the gambling and fighting but was \\\"an active participant in both.\\\" As has been observed, no serious question concerning the facts is presented, and the only challenge is contained in appellant's contention that the president was in the establishment and participated in the gambling and fighting as a patron rather than as the operator of the permit premises. The Common Pleas Court regarded this as \\\"a rather specious argument,\\\" and we are not disposed to dignify it with extensive comment. Unfortunately, the record does not enlarge upon the appellant corporation's president's managerial control of the permit premises, but it does disclose that he, his wife and his attorney are the sole \\\"members\\\" of the corporation, and the name of the establishment (\\\"Henry's Cafe\\\") contains the president's given name. Lacking the basis for considering this individual as a manager or operator of the place of business, we hold simply that, where an officer of a corporate permittee does acts or engages in conduct on the permit premises which constitute violations of the Liquor Control Act and regulations of the Board of Liquor Control, he is acting as an official of the permittee and not as a customer of the establishment.\\nHeavy reliance is placed by the appellant on the case of Andrews v. Board of Liquor Control, 164 Ohio St., 275, 131 N. E. (2d), 390, but we feel that case to be of little assistance in the present situation, Judge Stewart's consideration there being limited primarily to evidentiary questions. A portion of one of s\\u00e9veral quotations from the Andrews case which the appellant presents in its brief is as follows:\\n' The court must read and consider all the evidence offered by both sides and must appraise all the evidence as to the credibility of the witnesses, the probative character of the evidence and the weight thereof. In other words, the court may reverse, vacate or modify the order of the agency, unless it finds that it 'is supported by reliable, probative and substantial evidence and is in accordance with law.' \\\" (Appellant's emphasis.)\\nWith that statement of the law, which is merely a rephrasing of the applicable part of Section 119.12, Revised Code, we are in entire accord but point out that its mere quotation begs the question. Unquestionably, the Court of Common Pleas may reverse, vacate or modify an order of an agency unless it finds that the order is supported by reliable, probative and substantial evidence, but, where it makes such a finding, it can only affirm and cannot reverse, vacate or modify.\\nWe are thus faced with a question as to the presence or absence of the requisite quantum of evidence. In addition to the expressions in the opinion of the Court of Common Pleas (which we have considered only to the extent permitted by paragraph four of the syllabus of the Andrews case), it was expressly found in the journal entry \\\"that there was gambling and disorderly conduct on the permit premises.\\\" For the present purposes there are no grays in such areas, but only blacks and whites. There are no violations under extenuating circumstances, but only facts which do or do not constitute violations. The Court of Common Pleas found that there were violations, and that gambling and disorderly conduct did exist. That finding was not made in a vacuum, but with full judicial knowledge (and, we do not hesitate to add, with complete actual knowledge) of the statute which would permit reversal, vacation or modification of the board's order, if it lacked reliable, probative and substantial evidentiary support. Patently desiring to modify the admittedly harsh order of the board, the Court of Common Pleas could find no such absence of evidence and, as an alternative route to the same end, found \\\"that the board abused its discretion\\\" and modified its order on that ground.\\nSandwiched between the court's finding that the violations occurred and that the board abused its discretion, this sentence appears in the journal entry: \\\"However, the court also finds that the incidents which formed the basis for the two charges in this matter were the products of a scheme initiated by a third party who entered the premises and invited Henry Zochowski, president of the appellant company, to engage in gambling with him for the purpose of winning money from said Henry Zochowski.\\\" We have neither the inclination to comment upon nor the right to consider the conduct of a nefarious third party, in view of our conclusion that, in such an appeal, the Court of Common Pleas is not empowered to modify an order of the board on the ground of abuse of discretion. The power of the Common Pleas Court to modify an order of an agency as defined in the Administrative Procedure Act (Section 119.01 et seq., Revised Code) is limited to the grounds set forth in Section 119.12, Revised Code, and no jurisdiction exists in that court to make such modification on the ground of abuse of discretion by the agency.\\nWhile not necessary to the determination of this case, some brief additional comment seems proper in connection with the amendment of Section 119.12, Revised Code, effective, November 4, 1959, which was passed and became operative during the pendency of this case. Prior to such effective date all appeals from orders of the Board of Liquor Control under this statute were required to be to the Common Pleas Court of Franklin County, and there has naturally been an abundance of such appeals there. Lacking the guidance of Supreme Court decisions on the point primarily at issue here, the judges of that Common Pleas Court have been required to make their own determinations of their power to modify the board's orders, and those determinations have not been entirely in accord with one another. It was partially for that reason that the Attorney General joined in the motion to certify the record to this court. A majority of the unreported decisions of that court, cited in appellees' brief, appear to be in harmony with our conclusion here as well as with the holdings in the following cases: Farrand v. State Medical Board, 151 Ohio St., 222, 85 N. E. (2d), 113; Olin v. Board of Liquor Control, unreported case No. 4927, Court of Appeals for Franklin County; Delmonte Cafe, Inc., v. Department of Liquor Control, 74 Ohio Law Abs., 459, 141 N. E. (2d), 889; and Famous Cafe v. Board of Liquor Control, No. 5893, Court of Appeals for Franklin County. See, also, the distinguishable case of Carpenter v. Sinclair, 106 Ohio App., 211, 149 N. E. (2d), 150.\\nWhile such solace as we may experience at finding that the prevailing trend of the courts below supports our own thinking may be of no importance, it is significant to note that this same trend was available to the observation of the General Assembly when, during the session just past, it had Section 119.12 under consideration. The Franklin County Court of Appeals and Common Pleas Court decisions (i. e., the decisions of the only courts then having jurisdiction), in both reported and unreported cases, cannot by any stretch of the imagination be said to be predominately in support of the appellant's position. They either leave the situation in doubt or support the proposition that the appellate court can reverse, vacate or modify an agency's order, if reliable, probative, and substantial evidence in support of the order is not present. Had the General Assembly been of the persuasion that the first of these alternatives existed it would have removed the doubt. Instead, its amendment concerned chiefly a jurisdictional point (extending the right of appeal to the other 87 Common Pleas Courts), and this we comprehend to be a legislative approval of the interpretation of the statute we here place upon it.\\nThe judgment of the Court of Appeals is, therefore, affirmed.\\nJudgment affirmed.\\nWeygandt, C. J., Zimmerman, Taft, Matthias and Bell, JJ., concur.\\nHerbert, J., concurs in paragraphs one and two of the syllabus but dissents from paragraph three thereof and from the judgment.\\nThe statement in appellees' brief that \\\"he was in control of the permit premises\\\" is not supported by the record.\\nThere is no claim here that the finding of the Common Pleas Court is not \\\"in accordance with law,\\\" and for purposes of simplification we have therefore eliminated that phrase from consideration.\"}"

ohio/1745892.json

@@ -0,0 +1 @@
+"{\"id\": \"1745892\", \"name\": \"STRUBLE, et, Plaintiffs-Appellants, v. CINCINNATI, (City) et, Defendants-Appellees\", \"name_abbreviation\": \"Struble v. Cincinnati\", \"decision_date\": \"1948-03-01\", \"docket_number\": \"Nos. 6911, 6912, 6913, 6914, 6915, 6916\", \"first_page\": \"566\", \"last_page\": \"569\", \"citations\": \"51 Ohio Law Abs. 566\", \"volume\": \"51\", \"reporter\": \"The Ohio Law Abstract\", \"court\": \"Ohio Court of Appeals\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T23:58:56.770874+00:00\", \"provenance\": \"CAP\", \"judges\": \"MATTHEWS, PJ, and HILDEBRANT, J, concur.\", \"parties\": \"STRUBLE, et, Plaintiffs-Appellants, v CINCINNATI, (City) et, Defendants-Appellees.\", \"head_matter\": \"STRUBLE, et, Plaintiffs-Appellants, v CINCINNATI, (City) et, Defendants-Appellees.\\nOhio Appeals, First District, Hamilton County.\\nNos. 6911, 6912, 6913, 6914, 6915, 6916.\\nDecided March 1, 1948.\\nDavid L. Shannon, Roy L. Struble, Cincinnati, for plaintiffs-appellants.\\nHenry M. Bruestle, Miss Isabel Guy, Cincinnati, for defendants-appellees.\", \"word_count\": \"866\", \"char_count\": \"5122\", \"text\": \"OPINION\\nBy THE COURT:\\nIn these actions the plaintiffs sought an injunction, restraining the collection of an assessment to pay the cost of a street assessment.\\nThe trial court denied the injunction and made a separate finding of facts and conclusions of law.\\nThe actions are before this court on appeal on questions of law. There is no bill of exceptions, and the only question is whether the finding of facts are sufficient to support the judgment.\\nIt is stated in the syllabus to Jack v Hudnall, 25 Oh St, 255:\\n\\\"Where the finding of facts by the court fairly admits of a construction which will support the judgment, that construction will be adopted rather than a different one which would render the judgment erroneous.\\\"\\nHowever, we do not find it necessary to have recourse to that rule of construction to. support the judgment in this .case.\\nA reading of the finding of facts discloses that the court found that all the procedural requirements of the law for the levying of the assessment were met, that there was no abus\\u00e9 of discretion, and that there was no. suggestion of fraud, and'further that there were benefits conferred upon the plaintiffs' property by the improvement.\\n'The court also found that \\\"the assessment was in excess-of the benefits conferred.\\\" It is urged that this finding requires the granting of an injunction restraining the collection of the excess.\\nAppellants' counsel relies on statements contained in the opinions in Damar Realty Co, v Cleveland, 143 Oh St, 469, Domito v Maumee, 140 Oh St, 229, and Walsh v Barron, 61 Oh St, 15, that special assessments have no legal justification except in special benefits and that an assessment beyond special benefits has no legal justification. That rule may be conceded. However, that is not the question presented by this record.\\nThe question here presented is as to the power of the court to set aside -the finding of the City Council that the plaintiffs' property was benefited to the amount of the assessment. Does a mere finding by the court that the assessment exceeded the special benefits justify the court in granting an injunction against the collection of the assessment in whole or in part? We think not.\\nIn 28 O. Jur, 795, the Ohio cases are summarized as follows:\\n\\\"The statute provides that when an assessment as reported by an equalizing board to the council is confirmed by the council, 'it shall be complete and final.' It is also well established, independently of statutory provision, that where the council of a municipality determines that the amount of an assessment does not exceed the value of the special benefits conferred, its judgment in the premises, in the absence of fraud or an abuse of discretion, is final and conclusive. And where an assessing board has made a finding as to. the amount \\u00a9f benefits and has made an assessment on the basis thereof, there is a prima facie presumption in favor of the correctness of such finding, and it will not lightly be disturbed or inquired into, in the absence of allegations of some of the grounds usually invoking equitable intervention.\\\"\\nThat a judicial conclusion that the amount found by the assessing authority was in excess of the special benefits, does not invalidate the assessment, is generally held. In Louisville & Nashville Rd. Co. v Barber Asphalt Paving Co., 197 U. S. 430, the Court said at 433:\\n\\\"There is a look of logic when it is said that special assessments are founded on special benefits and that a law which makes it possible to assess beyond the amount of the special benefit attempts to. rise above its source. But that mode of argument assumes an exactness in the premises which does not exist. The foundation of this familiar form of taxation is a question of theory. The amount of benefit which an improvement will confer upon particular land, indeed whether it is a benefit at all, is a matter of forecast and estimate. In its general aspects at least it is peculiarly a thing to be decided by those who make the law.\\\"\\nSee, Minneapolis, St. Paul & Sault Ste. Marie Railway Co. v City of Minot, 37 A. L. R. (Minn.) 211, and annotation at 226, et seq.; and Cincinnati v Board of Education, 63 Oh Ap, 549.\\nFor these reasons, the judgment is affirmed.\\nMATTHEWS, PJ, and HILDEBRANT, J, concur.\\nROSS, J, dissents in separate memorandum.\"}"

ohio/1746549.json

@@ -0,0 +1 @@
+"{\"id\": \"1746549\", \"name\": \"State v. Mitchell\", \"name_abbreviation\": \"State v. Mitchell\", \"decision_date\": \"1996-03-06\", \"docket_number\": \"96-138\", \"first_page\": \"1408\", \"last_page\": \"1408\", \"citations\": \"75 Ohio St. 3d 1408\", \"volume\": \"75\", \"reporter\": \"Ohio State Reports, Third Service\", \"court\": \"Supreme Court of Ohio\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T20:04:25.641801+00:00\", \"provenance\": \"CAP\", \"judges\": \"Moyer, C.J., Resnick and Cook, JJ., dissent.\", \"parties\": \"State v. Mitchell.\", \"head_matter\": \"96-138.\\nState v. Mitchell.\", \"word_count\": \"25\", \"char_count\": \"159\", \"text\": \"Cuyahoga County, No. 56575. On motion for leave to file delayed appeal. Motion denied.\\nMoyer, C.J., Resnick and Cook, JJ., dissent.\"}"

ohio/1746781.json

@@ -0,0 +1 @@
+"{\"id\": \"1746781\", \"name\": \"State v. Benner\", \"name_abbreviation\": \"State v. Benner\", \"decision_date\": \"1996-05-08\", \"docket_number\": \"87-1614\", \"first_page\": \"1474\", \"last_page\": \"1474\", \"citations\": \"75 Ohio St. 3d 1474\", \"volume\": \"75\", \"reporter\": \"Ohio State Reports, Third Service\", \"court\": \"Supreme Court of Ohio\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T20:04:25.641801+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Benner.\", \"head_matter\": \"MOTION DOCKET\\n87-1614.\\nState v. Benner.\", \"word_count\": \"25\", \"char_count\": \"162\", \"text\": \"Summit County, No. 12664. On motion for reconsideration under S.CtPrac.R. XI(1)(B). Motion denied and execution date set.\"}"

ohio/176279.json

@@ -0,0 +1 @@
+"{\"id\": \"176279\", \"name\": \"Karr v. Borchardt\", \"name_abbreviation\": \"Karr v. Borchardt\", \"decision_date\": \"1999-12-06\", \"docket_number\": \"99-223\", \"first_page\": \"1457\", \"last_page\": \"1457\", \"citations\": \"87 Ohio St. 3d 1457\", \"volume\": \"87\", \"reporter\": \"Ohio State Reports, Third Service\", \"court\": \"Supreme Court of Ohio\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T17:14:01.865812+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Karr v. Borchardt.\", \"head_matter\": \"99-223.\\nKarr v. Borchardt.\", \"word_count\": \"53\", \"char_count\": \"315\", \"text\": \"Seneca App. No. 13-98-35. This cause is pending before the court as an appeal from the Court of Appeals for Seneca County.\\nIT IS ORDERED by the court, sua sponte, effective December 1, 1999, that oral argument scheduled for December 1,1999, be continued until further order of the court.\"}"

ohio/1766592.json

@@ -0,0 +1 @@
+"{\"id\": \"1766592\", \"name\": \"Board of Education of Campbell City School District, Appellant, v. Mahoning County Budget Commission et al., Appellees\", \"name_abbreviation\": \"Board of Education v. Mahoning County Budget Commission\", \"decision_date\": \"1963-03-13\", \"docket_number\": \"No. 38021\", \"first_page\": \"294\", \"last_page\": \"295\", \"citations\": \"174 Ohio St. 294\", \"volume\": \"174\", \"reporter\": \"Ohio State Reports, New Service\", \"court\": \"Supreme Court of Ohio\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-10T18:08:45.501589+00:00\", \"provenance\": \"CAP\", \"judges\": \"Taft, C. J., Zimmerman, Matthias, O\\u2019Neill, Griffith, Herbert, and Gibson, JJ., concur.\", \"parties\": \"Board of Education of Campbell City School District, Appellant, v. Mahoning County Budget Commission et al., Appellees.\", \"head_matter\": \"Board of Education of Campbell City School District, Appellant, v. Mahoning County Budget Commission et al., Appellees.\\n(No. 38021\\nDecided March 13, 1963.)\\nMessrs. Squire, Sanders & Dempsey, Mr. Henry J. Crawford, Mr. Warren \\u00c9. Hacker and Mr. William H. Luts, Jr., for appellant.\\nMr. Clyde W. Osborne, prosecuting attorney, and Mr. Thomas L. Corroto, for appellees.\", \"word_count\": \"290\", \"char_count\": \"1896\", \"text\": \"Per Curiam.\\nAdmittedly, any authority to require the contested reduction is derived from Section 5713.11, Revised Code, which reads so far as pertinent:\\n\\\"When the people of any taxing subdivision have voted additional levies for any purpose in the year of reassessment or any year prior thereto and said additional levies are effective in the year of reassessment or thereafter and the levies are to be calculated on a total valuation of property higher than that of the year before reassessment # the rate of said additional levy shall be reduced in the same proportion in which the total valuation of property in said taxing subdivision is increased by the reassessment over the total valuation of the year preceding the reassessment (Emphasis supplied.)\\nThe Board of Tax Appeals held that the reduction should be affected by all changes in the real, public utility and personal property duplicates excepting, because on the specific provisions of Section 5705.331, new construction on real property. The appellant contends that the reduction should be affected only by the increase caused by the reassessment.\\nIn our opinion, the words of Section 5713.11 plainly indicate that appellant's contention must be sustained. There is nothing in Section 5705.331, Revised Code, which would reasonably support a different conclusion.\\nThe decision of the Board of Tax Appeals being unlawful is reversed.\\nDecision reversed.\\nTaft, C. J., Zimmerman, Matthias, O'Neill, Griffith, Herbert, and Gibson, JJ., concur.\"}"

ohio/1781942.json

@@ -0,0 +1 @@
+"{\"id\": \"1781942\", \"name\": \"STATE, Plaintiff-Appellee, v. ALEXANDER et, Defendants-Appellants\", \"name_abbreviation\": \"State v. Alexander\", \"decision_date\": \"1954-12-28\", \"docket_number\": \"No. 2298\", \"first_page\": \"55\", \"last_page\": \"58\", \"citations\": \"71 Ohio Law Abs. 55\", \"volume\": \"71\", \"reporter\": \"The Ohio Law Abstract\", \"court\": \"Ohio Court of Appeals\", \"jurisdiction\": \"Ohio\", \"last_updated\": \"2021-08-11T00:25:05.669517+00:00\", \"provenance\": \"CAP\", \"judges\": \"WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.\", \"parties\": \"STATE, Plaintiff-Appellee, v. ALEXANDER et, Defendants-Appellants.\", \"head_matter\": \"STATE, Plaintiff-Appellee, v. ALEXANDER et, Defendants-Appellants.\\nOhio Appeals, Second District, Montgomery County.\\nNo. 2298.\\nDecided December 28, 1954.\\nMathias H. Heck, Pros. Atty., Fred M. Kerr, Walter A- Porter, Asst. Pros. Attys., Dayton, for plaintiff-appellee.\\nLloyd H. O\\u2019Hara, Dayton, for defendant-appellant, Curtis Alexander.\\nAlbert H. Scharrer, Dayton, for defendant-appellant, Lawrence Austin Dukes.\", \"word_count\": \"873\", \"char_count\": \"5075\", \"text\": \"OPINION\\nBy THE COURT:\\nThis is a law appeal from a judgment of the Common Pleas Court rendered upon the verdict of a jury finding the defendants guilty on the charge of first degree manslaughter.\\nBriefly, the pertinent facts disclose that on the night of October 16, 1953, at about 10:00 o'clock, the defendant, Curtis Alexander, came to his home and found a person unknown to him on his premises and throwing a flashlight on the house. This person turned out later to be Dr. Charles R. Price, a practicing physician in the City of Dayton, Ohio. No witnesses were present at this time, so we have only the testimony of the defendant, Alexander, as to what occurred when he arrived at his home. He testified that in attempting to learn the identity of the doctor he was attacked by him and that a fight ensued, after which the doctor escaped to his automobile parked at the curb and drove away. Alexander was then joined by the defendant, Dukes, and both pursued Dr. Price in Alexander's automobile. When the doctor parked his car in front of his office the defendants approached him in the street, where the fight was renewed. As a result of the injuries received in these altercations Dr. Price died several days later.\\nThe trial consumed approximately two weeks; hence the record is voluminous, and it would serve no useful purpose to cite in detail all the evidence presented.\\nThe first error assigned is that the judgment is contrary to the weight of the evidence as to the defendant Dukes. The evidence is conclusive that this defendant took no part in the first encounter, but there is a conflict in th\\u00e9 evidence as to whether or not he kicked the doctor while he was lying prostrate on the ground. This was a factual question solely for the determination of the jury. Our review of the testimony discloses that the evidence is quite substantial to the effect that Dukes kicked the doctor numerous times while he was lying helpless on the ground, and called him vulgar names. There was a definite conflict in the evidence on this point; hence it may not be said that the verdict is against the manifest weight of the evidence* as to this defendant.\\nAssignments 2 to 8, inclusive, all relate to alleged errors in the admission and rejection of evidence, most of which pertained to collateral matters. Much of this was immaterial and should not have been admitted, but even so it does not affirmatively appear on the record that it was or may have been prejudicial. Unless it so appears the conviction will not be reversed in any court. Sec. 2945.83 R. C.; State v. Hickman, 77 Oh Ap 479; State v. Farmer, 90 Oh Ap 49; Makley v. State, 49 Oh Ap 359.\\nThe ninth assignment alleges that the court failed to charge on much of the material contained in the 16 special charges which the appellants requested to be given before argument. Counsel admits that special charges in a criminal case need not be given when the law applicable contained in the same is adequately covered in the general charge. We agree with this general proposition of law and our inquiry shall, therefore, be limited to the question of the adequacy and correctness of the general charge. We have carefully examined the special charges submitted and find that the substance of many of them was given. The appellant, Alexander, makes a specific complaint that the court failed to charge on the law as set forth in the eighth special charge, which is as follows;\\n\\\"The court charges you as the law in this case that it is lawfud for a person to follow another.\\\"\\nThis charge was not complete, for it makes no mention of the intent of the pursuer, which is a most vital element in determining the legality of the pursuit.\\nThe court charged fully on all of the facts which may be considered by the jury in determining whether or not the acts complained of were committed in self defense; hence this assignment of error is not well taken.\\nThe court charged adequately on the subject matter contained in special charges 14, 15 and 16, and failure to give them as submitted was not prejudicial error.\\nNo other omissions in the charge were called to the attention of the court after giving the general charge and any further omissions would not constitute prejudicial error. See State v. Tudor, 154 Oh St 249.\\nWe find none of the exceptions to the general charge well taken when consideration is given to the charge in its entirety. The court's charge covered some thirty pages of the bill of exceptions, and correctly explained all of the legal principles applicable to the issues presented. Finding no error in the record, the judgment will be affirmed.\\nWISEMAN, PJ, MILLER and HORNBECK, JJ, concur.\"}"