Slike stranica

(161 N.E.)

LEVINE, J., concurs in the judgment of reversal, but dissents from the entering of a final judgment.

the court, there should have been a final SULLIVAN, J., concurs.
judgment for the amount sued upon, because
there was no question as to the length of
time this property was vacant, there was no
question as to the amount of the rent, and
there was no question as to the ruling laid
down by this court of the amount that was
due. The law of this lease was determined
and fixed by this court in that decision, and
it is sought now to evade the effect of that
law by a course of proceeding which, I think,
is unprecedented in any court. The very
paper upon which plaintiff sued is not permit-
ted to go into the record. The very admis-
sions which go to the heart of the defend-
ant's contention, admissions against interest,
as plaintiff claimed, were ruled out. Appar-
ently everything which tended to make for
the plaintiff's case was ruled out, and finally
the case was taken from the jury and a ver-
dict directed in favor of the defendant.


Court of Appeals of Ohio, Cuyahoga County.
Nov. 14, 1927.

[2-4] It is argued here that there was not any agreed statement of facts, and that there was not any waiver of a jury in the court below, in the first instance. Well; if I understand the rules of the municipal court, if you want a jury you have to demand it. It does not have to be waived. But the whole record in this case shows conclusively, without any equivocation, upon the admissions of the defendant, and upon the agreed statement of facts, that the only question involved was whether giving notice five days or nine days after the last month had started was a substantial compliance with that contract. That was the sole defense raised in the first trial. Now, it does not speak well for the administration of justice if a different position is admitted by changing the whole status, as is sought to be done here. In our judgment, a statement of defense should not have been permitted to have been filed. Inasmuch as it was filed, it was error for the court to keep out this lease. It was error for the court to keep out the admissions of defendant in the first trial. It was error for the court to direct a verdict for the defend


We think from this whole record, as before the court, the contract having been construed and the law settled in the former case by this court, which is still the law of this case, that this court will do what it should have done before. It will reserve this case and enter up final judgment for the plaintiff below for the amount sued upon; for the admissions stand in the record and there was no defense introduced which offsets those admissions.

The judgment will therefore be reversed and a final judgment for the plaintiff below be entered.

Judgment reversed, and judgment for plaintiff in error.

Appeal and error 1061 (2)-Set-off and counterclaim 61-Refusal to permit defendant to dismiss cross-statement of claim` before judgment, after permitting plaintiff to dismiss statement of claim, held prejudicial er


In action for damages to automobile, in which defendant filed by way of cross-petition claim for damages to his automobile against plaintiff, refusal to permit defendant to dismiss cross-statement of claim before judgment, after plaintiff had been permitted to dismiss his case without prejudice, was error prejudicial to defendant.

Action by William Eschuk against Albert Piesekar. After permitting plaintiff to dismiss his statement of claim without prejudice, the trial court overruled defendant's motion to dismiss his cross-statement of claim before judgment, and defendant brings error. Reversed and remanded.-[By Editorial Staff.]

Charles Lefkovitz, of Cleveland, for plaintiff in error.

M. M. Lucak, Jr., of Cleveland, for defendant in error.

SULLIVAN, P. J. This cause comes into this court on error from the municipal court of Cleveland, and the question of error which is determinative of the case arises in the following manner:

The plaintiff below, William Eschuk, sued for damages to his automobile, and alleged as negligence that the defendant, Albert Piesekar, carelessly and recklessly operated his automobile, to which pleading there was a statement of defense denying negligence, and by way of cross-petition defendant claimed damages against plaintiff on the ground that plaintiff was going at a high and excessive rate of speed, by reason whereof defendant's automobile was damaged, for which he sues. It appears by the record that, when the plaintiff rested his case, a motion was made for judgment for the defendant, which was overruled by the court. Other witnesses were then called for plaintiff, and subsequently the court permitted plaintiff to dismiss his case without prejudice, and exception was taken thereto by defendant, and thereupon defendant proceeded with his cross-statement of claim; and it appears by the record that before actual judgment was pronounced on the cross-statement of claim the defendant made a motion to dismiss the same, which

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

was overruled by the court, after discussing the question of contributory negligence and intimating what the judgment might be, but did not pronounce judgment, as before noted.

Thus the question is whether the court committed error in not giving the defendant the right to dismiss his cross-statement of claim before judgment, especially since, after a similar request by plaintiff's attorney, at the conclusion of his case, the court had allowed the dismissal of the statement of claim.

It is our unanimous judgment that this was error prejudicial to the defendant below. In the case of Wiswell v. First Congregational Church of Cincinnati, 14 Ohio St. 31, the syllabus reads:

"A plaintiff, after an answer amounting to a counterclaim has been filed, cannot dismiss the action."

While the action in this case was not dismissed, the claim of the plaintiff was dismissed without prejudice; but, the court having allowed the defendant to proceed on his cross-statement of claim, we think this relieved the situation of any prejudicial error. In the case of Brinkerhoff, Trustee, v. Smith, 57 Ohio St. 610, 49 N. E. 1025, the court used the following language:

"Doubtless the general rule is that the plaintiff in an action may dismiss it, and those defendants who have not set forth their claims, by an answer in the nature of a cross-petition, will not be heard to complain."

Again, as to the right of the defendant below to dismiss his cross-statement of claim before judgment, we cite the case of Schram v. City of Cincinnati, 14 Nisi Prius (N. S.) 109, 31 Ohio Dec. 579, which is as follows: "A motion to dismiss a cause without prejudice is within time, if made after the court has intimated that he is disposed to grant the motion of the defendant for an instructed verdict, but before the motion to instruct had been actually granted or a decision announced."

In accordance with these authorities we hold that the court below committed error, and the judgment below is hereby reversed, and the cause remanded for further proceedings according to law.

Judgment reversed and cause remanded. VICKERY and LEVINE, JJ., concur.

W. S. TYLER CO. v. REBIC. Court of Appeals of Ohio, Cuyahoga County. Nov. 28, 1927.

1. Master and servant 417(1)—Law in effect on commencement of compensation proceedings determines appellate procedure.

Law in effect at time of commencement of proceedings under Workmen's Compensation Act (Gen. Code, §§ 1465-37, 1465-108) de

termines procedural steps which must be taken on appeal from decision of Industrial Commission.

2. Master and servant 417(1)—Claimant's oral application to employer for compensation held "commencement of proceeding," for purpose of determining procedure on appeal (Workmen's Compensation Act [Gen. Code, § 1465-90, as amended by 111 Ohio Laws, p. 227]).

Claimant's oral application to employer for compensation held to constitute "commencement of proceedings" under Workmen's Compensation Act, relieving claimant from necessity of making application for rehearing before filing appeal from Industrial Commission, as required by 111 Ohio Laws, p. 227, amending Gen. Code, § 1465-90 (109 Ohio Laws, p. 296), where amendment became effective between dates of oral and written application.

3. Master and servant ~418(5)—Appellate court must presume that trial court, refusing to dismiss appeal for failure of claimant to seek rehearing which amendment required, found application was made prior to amendment (Workmen's Compensation Act [Gen. Code, 1465-90, as amended by 111 Ohio Laws, p. 227]).

Where employer moved to dismiss claimant's appeal in proceedings under Workmen's Compensation Act, for claimant's failure to apply for rehearing to Industrial Commission as required by 111 Ohio Laws, p. 227, amending Gen. Code, § 1465–90 (Ohio Laws, p. 296), appellate court must presume that trial court overruling motion to dismiss appeal considered the facts and found that application for compensation was made before amendment became effective.

4. Master and servant 417(7)-Question whether compensation proceedings were commenced before or after amendment requiring rehearing before appeal held question of fact for trial court (Gen. Code, § 1465-90, as amended by 111 Ohio Laws, p. 227).

Question when application for compensation was made in proceedings under Workmen's Compensation Act held question of fact for trial court, in determining whether application was made before or after Gen. Code, § 1465–90 (109 Ohio Laws, p. 296), was amended by 111 Ohio Laws, p. 227, to require filing of application for rehearing before taking appeal.

5. Master and servant 417(5)—Oral testimony outside record made before Industrial Commission held admissible on appeal in compensation proceedings.

On claimant's appeal from an adverse decision of the Industrial Commission in proceedings under Workmen's Compensation Act (Gen. Code, §§ 1465-37, 1465-108), admission of oral testimony in addition to the record made before the Industrial Commission held not er


6. Master and servant 414-Rule-making power of Industrial Commission does not permit limitations on claimant's right to recover for industrial injuries (Gen. Code, § 871-22). Gen. Code, § 871-22, giving Industrial Commission power to make rules and regula

(161 N.E.)

tions relative to exercise of its powers, does not authorize adoption of rules limiting claimant's right to recover for injuries growing out of employment.

Proceeding under the Workmen's Compensation Act by Ely A. Rebic, claimant, opposed by the W. S. Tyler Company, employer and self-insurer. Judgment was rendered for claimant by the court of common pleas on his appeal from the contrary decision of the Industrial Commission, and the employer brings error. Affirmed.—[By Editorial Staff.] Judgment affirmed, 161 N. E. 790.

Tolles, Hogsett, Ginn & Morley, of Cleveland, for plaintiff in error.

M. C. Harrison, of Cleveland, for defendant in error.

HAMILTON, P. J. In the court of common pleas of Cuyahoga county, this was an action on appeal from a decision of the Industrial Commission of Ohio, denying the right of the defendant in error, Ely A. Rebic, to participate in the state insurance fund.


participate in such fund on the ground that the injury was self-inflicted or on the ground that the accident did not arise in the course of employment, or upon any other jurisdictional ground going to the basis of the claimant's right, then the claimant, within thirty (30) days after the notice of the final action of such commission, may by filing his appeal in the common pleas court of the county * * * be entitled to a trial in the ordinary way, and be entitled to a jury if he demands it."

This statute was amended (111 Ohio Laws, 227), and the amendment became effective July 14, 1925, which was prior to the time the application of the claimant was filed with the Industrial Commission. The amended statute requires the filing of an application for rehearing of the claim, etc., and provides that, after the rehearing, if the commission finds that it has no jurisdiction of the claim, the claimant may, within sixty days, file a petition in the court of common pleas, etc.

[1, 2] The question therefore is which of these laws control the proceeding.

If the claimant, Rebic, made an oral ap

company on June 6, and an oral application is sufficient to be considered as a proceeding, then the claimant's appeal was properly

It appears from the record that the W. S. plication for compensation to the self-insured Tyler Company was a self-insurer. was an employee of the W. S. Tyler Company on February 28, 1925, and claims that in discharging his duties he was required to do heavy lifting, by reason of which he on that date suffered a severe strain, resulting in a right inguinal hernia, for which he was operated upon.

Rebic claims that on June 6, 1925, he went to his employer and made oral application for compensation, which was refused. He thereupon made written application to the Industrial Commission of Ohio. Compensation was denied by the Industrial Commission. He thereupon filed his appeal, without having made application for rehearing to the Industrial Commission.

At the trial, on the appeal, the court permitted Rebic to offer oral testimony in addition to the record made before the Industrial Commission. The trial resulted in a verdict and judgment for plaintiff Rebic.

Two specifications of error are presented here:

(1) Was the appeal taken properly? (2) Was oral testimony admissible, in view of the provisions of the Workmen's Compensation Law?

The question whether or not the appeal was properly taken turns on what law governs the appeal at the time it was filed.

Prior to July, 1925, the statute governing appeals (section 1465-90, General Code) did not require that an application for rehearing be filed with the Industrial Commission before filing the appeal. That statute is found in 109 Ohio Laws, p. 296, and provides among other things:

"Provided, however, in case the final action of such commission denies the right of the claimant to participate at all or to continue to


If the claim of the company that oral application for compensation was first made August 1, 1925, is correct, then, if the oral application is a proceeding, the claimant would be required to proceed under the terms of the amended section by applying for a rehearing, and claimant, not having taken this step, the appeal would have to be dismissed.

In the case of Caton v. Defiance Screw Machine Products Co., decided by the Court of Appeals for Defiance county, Ohio, being case No. 52, it was held that verbal application was sufficient to start a proceeding to obtain compensation. We are in accord with that decision, and hold that the claimant, by making a verbal application to the company for compensation started a proceeding.

In the case of Industrial Commission v. Vail, 110 Ohio, 304, 143 N. E. 716, the Supreme Court held that an application for compensation is a proceeding, and within the operation of the provisions of section 26, General Code, and this holding makes the law in force prior to July 14, 1925, applicable to this case, provided the claimant made his verbal application prior to that date.

[3, 4] The fact of the making of the application on June 6th is contested by the company, and a motion was made to dismiss the appeal under the claim that the application, if sufficient, was not made until August 1, 1925, subsequent to the taking effect of the amended statute. While the record is not satisfactory on this preliminary hearing on the motion as to just what the trial court considered or had before it, we must presume that the court considered the facts and found

that the application was made prior to July, 1925. This was a question of fact, and was determined on sufficient evidence. The appeal was properly taken.

[5] The claim that the admission of "other evidence," in addition to the record made before the Industrial Commission, was error, is disposed of by the decision in the case of Industrial Commission v. Hilshorst, 117 Ohio St. 337, 158 N. E. 748, decided November 9, 1927, holding that "other evidence" is admissible.

[6] It is also argued that the trial court erred in refusing to give the following special charge, requested after the general charge:

"I instruct you that you must consider the rules of the Industrial Commission governing the allowance of hernia claims along with all other matter contained in the transcript of the record made before the Industrial Commission (B. of Ex. 46)."

While section 871-22, General Code, gives the Industrial Commission powers to make certain rules and regulations relative to the exercise of its powers and authorities, it does not authorize the commission to adopt rules which would limit the right to recovery for injuries as a result of and growing out of the scope of the employment of claimant. Such rule as requested here would contravene the statutes, and would undertake to limit the right of recovery, provided the injuries brought the claim within the scope of the law. The court did not err in refusing the charge.

We find no error in the record, and the judgment is affirmed.

Judgment affirmed.

MILLS and CUSHING, JJ., concur.

Judges of the First Appellate District, sitting in place of Judges LEVINE, VICKERY, and SULLIVAN, of the Eighth Appellate District.

MORTON V. THOMAS, Warden. Court of Appeals of Ohio. Franklin County. March 24, 1928.

1. Convicts 2-Conditional release of convict from Ohio penitentiary may be revoked by Ohio Clemency Board (Gen. Code, §§ 2160,

2169, 2170).

A conditional release of a convict from Ohio penitentiary is subject to a revocation by the Ohio Clemency Board.

2. Pardon-Release of convict by Ohio Board of Clemency, reciting "out of Ohio forever with no final release" held not absolute. A release of a convict granted by the Ohio Board of Clemency is not made absolute by the

words "out of Ohio forever with no final release."

3. Convicts

2-Ohio convict conditionally released to Michigan for trial in Michigan may be returned by Michigan to Ohio and be retained as convict in Ohio under revocation of conditional release (Gen. Code, §§ 2160, 2169, 2170).

A convict in Ohio released by conditional release to a Michigan officer, taken to the state of Michigan, and held for trial in the state of Michigan, may be returned by the state of Michigan to the state of Ohio, and there be retaken and retained as a convict in Ohio under a revocation of a conditional release.

4. Convicts 2-Right to return convict to Ohio by Michigan authorities, to whom convict was conditionally released cannot be questioned after convict's return to Ohio.

The right of the Michigan authorities to return the convict to the state of Ohio cannot be questioned after the convict has been returned to the state of Ohio.

Application for writ of habeas corpus by James Morton against P. E. Thomas, Warden of Ohio Penitentiary. Writ denied.-[By Editorial Staff.]

Crabbe, Johnston, Crabbe & Williams, of Columbus, and Thomas Chawke, of Detroit, Mich., for petitioner.

Edward C. Turner, Atty. Gen., Herman E. Werner, of Akron, and Joseph A. Godown, of Columbus, for respondent.

ALLREAD, J. This is a trial upon a writ of habeas corpus.

James Morton was received in the Ohio Penitentiary on January 20, 1923, under a sentence for robbery. The minimum sentence was one year and the maximum fifteen.

After several continuances the Ohio Board of Clemency, on July 30, 1925, granted a release as follows:

"The Ohio Board of Clemency, Columbus, Ohio, July 30, 1925.

"Subject in re James Morton, No. 51560. "James Morton, No. 51560, was received at the Ohio Penitentiary from Cuyahoga county January 20, 1923, to serve an indeterminate term of one to fifteen years for the crime of robbery.

"At a special meeting of the Ohio Board of Clemency held this day his case was given consideration and it was ordered that he be granted a conditional release to Michigan authorities, effective when called for. Out of

Ohio forever with no final release.

"The Ohio Board of Clemency,
"By Price Russell, Chairman,
"Daniel W. Williams, Member."

On August 5, 1925, Morton was delivered by the warden of the Ohio Penitentiary to Thomas W. Creedon, a lieutenant of detectives of the police department of the city of Detroit, and was taken to Detroit where he

(161 N.E.)

was held in jail to answer for the crime of robbery committed in that state. December 12, 1925, the Ohio Board of Clemency again acted by the following order:

oner for murder in the second degree, having served under such sentence ten full years, may be allowed to go upon parole outside the building and inclosure of the penitentiary. Full power to enforce such rules and regulations is here

"The Ohio Board of Clemency, Columbus, Ohio, by conferred upon the board, but the concurDecember 12, 1925.

"Subject: James Morton No. 51560, Ohio Penitentiary.

"The conditional release of James Morton, Serial No. 51560, Ohio Penitentiary to Michigan authorities on July 30, 1925, was granted by the Board of Clemency on representations as to certainty of conviction for another crime, which representations have proven to be unfounded, therefore said conditional release is hereby rescinded, the entire action taken on the above mentioned is held for naught and Morton's return to the Ohio Penitentiary is requested.

"The Ohio Board of Clemency,
"Price Russell, Chairman,
"Dan W. Williams."

Acting under this order E. E. Klinger, field parole officer under warden Thomas, went to Detroit, and, after conference with the Governor, Morton was handcuffed to two Michigan officers, put into an automobile and driven to Columbus, where he was delivered to and received by the officials of the Ohio Penitentiary, and where he is now serving out the original sentence.

Morton challenges the validity of his return and service in the Ohio Penitentiary. He contends that under the "Out of Ohio forever" clause in his release, he cannot be again returned to Ohio and compelled to serve in the Ohio Penitentiary under his original sentence. The questions therefore are: (1) Did the parole officers have a right to grant conditional release? (2) Did they in fact do so?

[1] At the time of Morton's sentence, the state of Ohio was operating under laws which require the convicting court to sentence convicts such as Morton-to the Ohio Penitentiary to serve until released by the Ohio Board of Clemency. This was what is known as the “Indeterminate Sentence Law." The Board of Clemency was authorized to grant parols at any time after the minimum service had been served. The release or parole so authorized was in no sense a pardon. A release or parole, and especially if conditional, left the prisoner subject to such orders as the Board of Clemency might thereafter make.

Section 2160, General Code, provides: "The board of managers [now Ohio Board of Clemency] shall provide for the conditional or absolute release of prisoners under a general sentence of imprisonment, and their arrest and return to custody within the penitentiary."

Section 2169, General Code, provides: "The Ohio Board of Administration shall establish rules and regulations by which a prisoner under sentence other than for treason or murder in the first or second degree, having served a minimum term provided by law for the crime for which he was convicted, or a pris

rence of every member shall be necessary for the parole of a prisoner. The board may designate geographical limits within and without the state, to which a paroled prisoner may be confined or may at any time enlarge or reduce such limits, by unanimous vote."

Section 2170,. General Code, reads:

"All prisoners on parole shall remain in the legal custody and under control of the board of managers and subject to be taken back within the enclosure of the penitentiary. Such board may make and enforce rules and regulations with respect to the retaking and reimprisonment of convicts under parole. Its written order certified by its secretary shall be sufficient warrant for all officers named therein to return to actual custody a conditionally released or paroled prisoner; and such officers shall execute such orders as in cases of ordinary criminal process."

[2] We, therefore, find that there may be conditional releases. Whatever might be the rule in cases where the Board of Clemency has issued an unconditional release, we are of opinion that the release in the present case is a conditional one. In the body of the release it is stated that the release is conditional, and at the conclusion are the words "Out of Ohio forever with no final release." Had the release or parole ended with the words, "Out of Ohio forever," there would be some force in the claim as to its finality, but with the added words, "no final release," the conclusion is that the release is conditional. The release, therefore, being conditional, it was competent for the Board of Clemency to rescind its release or parole and provide for the retaking of the convict. Upon the rescission of the original release the warden has a right. if the defendant can be found within the state, to retake the convict and confine him in the Ohio Penitentiary.

[3, 4] The next question is as to the right to obtain a convict from another state where he is held as an arrested person to answer to a charge in that state. In respect to the prosecution in Michigan it may be stated that the defendant was brought into court on several occasions, and the case continued for absent witnesses, the last occasion being on the date on which Morton was finally brought into the state of Ohio. It appears under the arrangement between Klinger, the field parole officer, and the governor of Michigan, Morton was placed in the automobile, as heretofore stated, and driven to the Ohio state line and thence to Columbus. It is sufficient in this respect to say that the Ohio officer did not take the control of the automobile in which the convict was, or of the convict, until he reached the state line of Ohio, but, inasmuch as the Ohio field officer accompanied the

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