# Bates v. Pennsylvania Rd

> Ohio Court of Appeals · December 30, 1937 · 26 Ohio Law. Abs. 114

URL: https://www.frixlaw.com/law-library/cases/6746362

## Case

- **Full name:** BATES v. PENNSYLVANIA RD CO
- **Court:** Ohio Court of Appeals
- **Decided:** December 30, 1937
- **Citations:** 26 Ohio Law. Abs. 114; 18 Ohio Op. 436; 33 N.E.2d 678; 1937 Ohio Misc. LEXIS 851
- **Precedential status:** Published
- **Opinion:** Dissent by Geiger
- **Judges:** Barnes, Geiger, Hornbeck
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6746362

## Opinion text

DISSENTING OPINION
By GEIGER, J.
I find myself unable to agree with my associates. The opinion of the majority discloses a searching analysis of the issues made in this case, and it might be permissible to briefly state some of the conclusions of the majority, with which I am in full accord.
The judge writing the opinion for the majority says in substance that, in our judgment, upon the record as it comes before us, it is established that Bates was at all times after February 24, 1928, until the date of the trial an insane person and at all times during said period he was unable to earn a livelihood. It is further stated that had the facts, which are brought to our attention, been presented in their entirety to the Superintendent or the Advisory Committee on appeal and had either or both determined that Bates was able, on the date in question, to return to gainful occupation, we would unhesitatingly hold that they had acted under manifest mistake and that the record is convincing, as it is now presented, that Doctor Bates was at all the times in question until the testimony was taken in Common Pleas Court, a hopelessly, incurably insane person ana to have permitted him to engage in his profession would have been cruel to him and a hazard to the public.
WAS THERE A MANIFEST MISTAKE?
The initial act which ultimately ripened into a loss to Doctor Bates of his sick benefits was that of the Superintendent based on the report of examining physicians. Wheher a mistake was made by the obysicians, the Superintendent or Advisory Committee, based upon a mistaken diagnosis of the doctors, presents an issue which I believe is made by the pleadings and should have been submitted to the jury.
The trial court, on page '54 of the record, clearly states the issue as follows:
‘•The first question in the case is whether or not the officials of the railroad company and their doctors were correct in tneir statement that he had recovered, in 1931, and that they therefore have the right to cut him off the relief. Now, if .you pass .that point, it is true you have to prove that condition from then on if he isn’t recovered — perhaps he is recovered now.”
If this is a correct statement, as I believe it is, then any evidence that bore upon the point was competent and should have been submitted to the jury under proper instruction.
THE LAW
I do not believe that Shipe v Norfolk & W. R. R. Co., 51 Oh Ap 361 ( 20 Abs 264 ), while relating to a case having many elements in common with this, is dispositive of the case at bar. The question there seems to have been whether a certain communication was a sufficient appeal to the Advisory Committee, and the finality of the determination of that committee.
The second syllabus, written by a reporter, states:
“In absence of fraud on gross abuse of discretion, the decision of the body is final and a member has no right to have factual questions reviewed by a jury.”
A syllabus concededly written by a court reporter is not a statement of the court. I think the reporter inadvertently omitted “manifest mistake” as one of the matters that may be considered by the jury m a proper action. The correct rule appears on page 371 in the language of the court “unless impeached by fraud or manifest mistake.” All the authorities to which I have had access so state the rule.
The action in the Shipe case was based not on an allegation of fraud or gross mistake, but upon the principle declared in B. & O. R. R. Co. v Shankard, 56 Oh St 224, wherein it was held “that after the rejection of a valid claim by the Advisory Committee, the beneficiary could maintain an action in the court for the recovery of the money due thereon, and that such rule is not a bar to the action.”
This court went to some length in determining that this syllabus was not justified by the facts there at issue, and did not control. That the Shipe case did not in-involve the issue of mistake clearly appears from the fact that after the trial plaintiff sought to present the issue of fraud and mistake. His application to do this was denied by the trial court, in which it was sustained by this court for the reasons stated. Manifest mistake was never an issue.
The rule may be found well- stated in *121 appellee’s brief. Pfleger v Renner et, 13 Oh Ap 96, is quoted in the brief as follows:
“In order to warrant a court in setting aside an award of an arbitrator on the ground of manifest mistake, it must appear that there is a mistake of such a character that the arbitrator would have corrected it himself had it been called to his attention.”
In 3 O. Jur., §45, at page 106 and 107, it is stated:
“To warrant a court in setting aside an award on the ground of manifest mistake, it must appear that there is a mistake of such character that the arbitrator, had it been called to his attention, would have corrected it himself.”
In Burchnell v Marsh et, 58 U. S. 344 , the Supreme Court quotes from an English case, Knox v Symmonds, 30 Eng. Rep. 390, as follows:
“To induce the court to interfere, there must be something more than error of judgment, such as corruption in the arbitrator, or gross mistake, either apparent on the face of the award, or to be made out by evidence; but in case of mistake, it must be made out to the satisfaction of the arbitrator, and that if it had not happened, he should have made a different award.”'
In the case of Corrigan v Rockefeller, 67 Oh St 354, it is held:
“Such award in the absence of fraud and of such manifest mistake as naturally marks a fraud, is binding upon the parties and entitles the successful party to judgment thereon.”
AC page 367-368, it is stated:
"And so the rule is that it can not be impeached for error; nothing but fraud, in the parties or in the arbitrators, or such manifest mistake as naturally works a fraud, can be alleged to avoid it.”
5 C.J. 190, quoted by the majority is a correct statement of the law, but I think tire majority has failed to correctly apply it. I venture that the rule is well established that an award may be set aside in a court upon the proof by the evidence submitted, that in arriving at the decision the arbitrators acted under a “manifest mistake,” but that the mistake must be of such character that the arbitrator, had it been called to his attention would have corrected it himself.
This brings us to a consideration of the evidence offered in this case to prove that the arbitrators did, as a matter of fact, make a mistake, and that such mistake was of such a character that had it been called to his attention he would have corrected it himself.
The whole proceeding which resulted in Doctor Bates being removed from the pension roll had its inception in the report of examining physicians representing the pension fund. There can be no question but that these physicians were mistaken because the whole evidence offered by plaintiff’s witnesses, including three reputable physicians, indicated that Doctor Bates was insane on the date when the railroad doctors found that he was not.
It may be observed that the testimony of these company doctors gave evidence of their desire to support their own report in reference to the doctor’s condition, which was based upon a very limited examination, and such that if the doctor was as a matter of fact suffering with the character of insanity that Doctor Harding testified to, bis condition would not have been disclosed by a short or cursory examination.
Doctor Harding, in his testimony, shows how suddenly the deportment of one afflicted as was Doctor Bates, may change, and that such a 'person may at times appear normal, while as a matter of fact he is a victim of an incurable malady.
Doctor Herman E. Heston testified, beginning on page 86, as to the examination he made of Doctor Bates, and states that in his judgment in April, 1931, when he examined him, he was sane. Testifying at large on page 90, as to his examination, he finishes his statement with the assertion, “that was about the extent of the examination I gave him.”
Under cross-examination, in answer to a hypothetical question, the Doctor said, on page 102:
“Q. Would that (the conditions recited) affect your judgment as to his condition in 1931?
A. Not at all.”
Other assertions by him appear in the record, that Doctdr Bates was sane in 1931, at the time this Doctor was examining him,, but on page 114 the question was asked after recitation by counsel of conditions that had been disclosed by other evidence:
“Q. Even if he had these hallucinations or delusions you would still say that the .man was sane?.
*122 A. No, if I knew he had those halucinations and delusions I would not consider him sane.”
Testimony of Doctor RaSph O. Kell begins at page 133, and without going into del,ail, it may be pointed out that he said on page 145, after being inquired as to whether or not the peculiar conduct of the patient would have changed his opinion: “Not at all.”. On the same page he again answered to the query:
“Q. That wouldn’t affect your judgment at all as to his sanity or insanity?
A.. Certainly not.
Q. Would you regard him in the light of those things as sane or insane?
A. If I had seen him at that particular time, of course, that would have have had some significance.”
After denying several times, on page 146, that his opinion would be affected, he stated on page 147, in answer to a hypothetical question:
“Well, if I — if he had told me any of those things, naturally my opinion would have been different, but in the time that I talked to him there was nothing expressed that led me to believe that he didn’t have full possession of his mental faculties.
Q. If he had told you those things then and there, you say your opinion would nave been different, what do you mean, that your opinion is he is insane and unable to earn a livelihood?
A. I would think then that he had not fully recovered.”
It seems to me that the admissions of the doctors under cross-examination that had they been in possession of the full and apparently undisputed facts in relation to the doctor’s mental condition at the time they made their, diagnosis, they would have been of a different opinion than they expressed in their report, which became the basis of the final judgment of the Advisory Committee. These admissions, in my judgment, fall within the rule that to warrant a court in setting aside an award on pthe ground of “manifest" mistake” it must (appear that there is a mistake of such character that the arbitrator had it been called to his attention would have corrected it himself; and within the rule laid down in Knox v Simmons, supra, quoted by the United States Supreme Court to the effect that there must be something more than error of judgment, either apparent on the face of the award, or to be made out by evidence, “but m case of mistake it must be made out to the satisfaction of the arbitrator and that if it had not happened he would have made a different award.”
Wo must assume that the doctors for the Railroad Company are honest, although naturally inclined to favor the Railroad, and therefore that if the evidence had been presented to them at the time they made their initial report, as to the actual condition of Doctor Bates, they would nave arrived at a different conclusion, as finally admitted by them on the stand.
The evidence in the record was all admitted without objection, and much was to the issue as to whether or not the arbitrators had made a manifest mistake. We do not pass upon the weight of this evidence, but my position is that it should have been submitted to the jury under proper instructions.
It must be conceded, and it is so held by the majority, that the evidence before the jury established a manifest mistake. The court directed a verdict in favor of the defendant for reasons given in his charge. This act was equivalent to saying that in spite of the evidence demonstrating a mistake, there was in fact no mistake, at least none which would justify the submission of the evidence to the jury.
I am of the opinion that the court was in error in directing a verdict. His action in doing this does not harmonize with his correct statement, made on page 54, and here again repeated in part:
“The first question in the case is whether or not the officials of the railroad and doctors were correct in their statement that he had not recovered in 1931, and that they therefore had the right to cut him off the relief.”
If that was the first question, clearly it should have been submitted to the'jury, and to hold as the trial court and the majority do is to say no matter how flagrant, a mistake and how clear the proof may be that it has been made, and how conclusive the admissions by the arbitrators may be that had they known the true facts they would not have determined as they did, yet no successful attack can be made upon a manifest erroneous decision. The majority takes the position that no mistake can be shown unless all the facts establish *123 ing such mistake had been before the Superintendent and by appeal before the Advisory Board; that no finding of the Advisory Board could be found to be a mistake unless it be determined that the Advisory Board was manifestly mistaken in its conclusions drawn from the evidence before it, unaided by other evidence presented at the trial.
In substance they apply the rule imposed by statute in Industrial Commission' eases, that only the evidence presented before the Commission, on re-hearing, can be submitted to the jury, on the issue as to whether or not the Commission made a mistake in denying compensation.
No such rule applies to arbitration cases. It is said in Knox v Simmons, supra, quoted by the U. S. Supreme Court in Bucknell v Marsh, supra, “gross mistake, either apparent on the face of the award or to be made out by evidence.”
The last quotation by the majority from 5 C.J. 180, can leave no other inference than that the mistake can be shown by evidence not before the Advisory Board. Some error must be shown by which they were misled or deceived so that on their own theory a mistake was made which caused a result to be different from that which they had reached by their reason and judgment.
How could such error be shown unless by evidence not before them when they made their decision? If new evidence could not be disclosed nothing could be accomplished except a re-argument of the same facts they had already considered and decided.
This would be quite different from a new hearing before a jury, in Industrial Commission cases, limited to the evidence produced before the Commission and also in harmony with the general principles laid down in B. & O. R. R. v Shankard, supra, and not out of harmony with Courigan v Rockefeller, supra. J
As before stated, I must dissent.*
I do not wish to be understood as in any way criticizing the doctors or officers of ■the Relief Association. They showed fairness and even generosity in permitting an appeal long after the same could have been demanded as a matter of right. I believe they now want to do justice to the Doctor, but their duty to the company, and to the .other members of the Association, naturally prompts them to present the defense as they have.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6746362. Public record. Not legal advice.