Petition — Koehl v. United States Fire Insurance
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IN THE : Ut , Vv tw ie ‘|
SUPREME COURT OF THE UNITED:STATES 2°"
OCTOBER TERM, 1979
EDWARD E. KOEHL, Administrator of the Estate of
Carol E. Koehl, Deceased,
HENRY NEUHAUSSER, Administrator of the Estate of
Stephen Neuhausser, Deceased,
HENRY NEUHAUSSER, RONALD ISON, EDNA ISON
SCOTT, JOHN A. MUSCOVIN, aka JON A. MUSCOVIN,
and AMELIA MUSCOVIN,
Petitioners,
v.
UNITED STATES FIRE INSURANCE COMPANY,
fn Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE
STATE OF OHIO
ATTORNEYS FOR PETITIONERS:
ROSEN AND ROSEN
BY: HYMAN B. ROSEN
Attorneys for Edward E. Koehl,
Administrator of the Estate of
Carol E. Koehl, Deceased,
1005 First National Bank Building,
Fourth and Walnut Streets,
Cincinnati, Ohio 45202
(513) 621-0828
(Counsel continued on inside cover)
SSE ASRS SRR a RL NSN RR SSE SR SR PA ATLA ASS AG EET,
COURT INDEX PRESS, INC. — 215 E. Ninth Street, Cincinnati, Ohio 45202 — (513) 241-1450
BEALL, HERMANIES & BORTZ
BY: WALTER C. BEALL
Attorneys for Henry Neuhausser,
Administrator of the Estate of
Stephen Neuhausser, Deceased and
Henry Neuhausser,
200 Dixie Terminal Building,
Cincinnati, Ohio 45202
(513) 621-2345
WAITE, SCHNEIDER, BAYLESS
& CHESLEY
BY: STANLEY M. CHESLEY,
Attorneys for Ronald Ison and
Edna Ison Scott,
1318 Central Trust Tower,
Fourth and Vine Streets,
Cincinnati, Ohio 45202
(513) 621-0267
WESSELMAN & RENNER
BY: RUSSELL W. RENNER
Attorneys for John A. Muscovin and
Amelia C. Muscovin,
3526 Glenmore Avenue,
Cincinnati, Ohio 45211
(513) 481-9800
ATTORNEYS FOR RESPONDENT:
LINDHORST & DREIDAME
BY: JAMES L. O';CONNELL
Attorneys for United States
Fire Insurance Company,
1200 American Building,
Cincinnati, Ohio 45202
(513) 421-6630
TABLE OF CONTENTS
Page
JURISDICTIONAL STATEMENT .............-+--. 1
QUESTIONS PRESENTED FOR REVIEW .......... 2
CONSTITUTIONAL PROVISIONS INVOLVED ...... 3
STATUTES Fee I ens nicn tie cedcaenetewecees 7
STATEMENT OF THE CASE ..........-.ceeeeeeeeee 7
STATEMENT OF FACTS ........ccceccesssvccecces 9
ARGUMENT FOR ALLOWANCE OF WRIT OF
egy |) | eee Sire ee. hen 13
1. Does A State Court Violate Due Process Rights
Guaranteed To Litigants By The Fourteenth
Amendment To The United States Constitution
When It Renders Judgment In A Civil Case
Where There Has Been No Trial, Evidentiary
Hearing, Or Any Other Final Submission Of The
ts ec ca eee k nes eu cdesXekdteuse ss 13
Can Such Violation Of Basic Constitutional
Rights By Granting A Judgment Without A Trial
Be Disregarded Because The State Appellate
Courts To Which The Case Was Appealed Hold
That While The Proceedings Were Clearly Er-
roneous, The Result Reached By The Trial Court
Wis TN sig. ko cs bane Sa ASRS Ae eee 15
3. Does The Failure Of The State Trial Court There-
after To Conduct An Evidentiary Hearing And
Consider Evidence Proffered By The Petitioners
Violate Article VI Of The United States Consti-
tution To The Effect That The Constitution Shall
Be The Supreme Law Of The Land Binding On
Judges In Every State? .............. eee ee eee. 18
bo
of + i 6 ee eee ere ees Coes ra 24
Il.
APPENDIX Page
A Title 28, Section 1257(3) U.S.C. ................ la
B Order from Supreme Court of Ohio Dismissing
Appeal in the Court of Appeals dated Septem-
ber 35, DO osc eee ea, 2a
C Order from the Supreme Court of Ohio Denying
Certiorari dated September 13, 1979 .......... 3a
D Opinion of the Ohio Court of Appeals dated
October B46, TRB. kisg ohne eek ess 4a
E Journal Entry of Ohio Court of Appeals entered
October B36 BRD nkcsedtsee ca ro aes 2s 15a
F Entry of Ohio Court of Appeals Overruling Ap-
plications for Reconsideration and Modification
entered November 7, 1975 .................. 19a
G Opinion of the Ohio Court of Appeals dated
March 33, MUD .. 55050 ese ae ss. : 20a
H Judgment Entry of Ohio Court of Appeals en-
tered Mash Sh Ste co oceekn cee ak 29a
I Opinion of the Court of Common Pleas dated
July 10, 1972, Matthews, J. .................. 32a
J Journal Entry of the Court of Common Pleas
entered May 29, 1973-Neuhausser Case, Mat-
theows, J... .. «ss eee 39a
K Journal Entry of the Court of Common Pleas
entered May 29, 1973-Neuhausser Case, Mat-
thews, J... .iscniweee eee. 4la
Journal Entry of the Court of Common Pleas
entered May 29, 1973-Koehl Case, Matthews,
| PERE eer ke i 44a
Journal Entry of the Court of Common Pleas
entered May 29, 1973-Koehl Case, Matthews,
Til.
Page
N Journal Entry of the Court of Common Pleas
entered May 29, 1973-Ison Case, Matthews, J. .. 49a
O Journal Entry of the Court of Common Pleas
entered May 29, 1973-Ison Case, Matthews, J... 5la
P Journal Entry of the Court of Common Pleas
entered May 29, 1973-Scott Case, Matthews, J. .. 54a
Q Journal Entry of the Court of Common Pleas
entered May 29, 1973-Scott Case, Matthews, J. .. 56a
R Journal Entry of the Court of Common Pleas
entered December 2, 1977, Gusweiler, J. .... 59a
S Ohio Civil Rule No. 28 and Ohio Civil Rule
cs cick chases a ped et ahead shes 63a
FT Gili Cet Tike Ne BG nnn sce cect trees 65a
U_ Excerpt from Memorandum in Support of Motion
for a New Trial and to Vacate Judgments in
the Court of Common Pleas of Hamilton
County, Ohio, entered by Matthews, J. on
ile: TR TOFS 5 ievct ads eo wiawes eae. 66a
V Excerpt from Plaintiffs’ Reply Memorandum in
the Court of Common Pleas of Hamilton
County, Ohio on remand before Judge Frank
Oe, EE icc civks sceake en sanatesne sys 68a
W Excerpts from Reply Brief of Petitioners in the
Court of Appeals, First Appellate District of
Ohio on the Second Appeal ................ 7la
X Affidavit of Dr. Siegmund A. E. Betz ........... 73a
Y Section 3929.06 O.R.C. .......... cece ee ee evene 80a
TABLE OF AUTHORITIES
Case: Page
Armstrong v. Manzo, 380 U.S. 545 ................002. 14
Bright v. Ohio Casualty Company, 444 F. (2d)
a MPa ar ee, Xe ce Ce a oe 19, 21, 22, 25
Carroll v. Lessee of Carroli, 57 U.S. 275 ................ 17
Coe v. Armour Fertilizer Works, 237 U.S. 413 .... 14, 16
Commonwealth v. Rundle, 201 A. (2d) 615 Aff. 204
PM a Goo Misi oy gs vec haha sacs ek aw’ 20
Dartmouth College Case—Trustees of Dartmouth Col-
lege v. Woodward, 4 Wheaton, 518, 581, 4 L.Ed.
i Bice ct GP POO CRORE Pom Des Bind we is en a 26
Ecker v. City tof Cincinnati, 52 Oh. App. 422, 426,
oe RB. kG Be ae ren ee ee Oe 17
Ex Porte Slebold, 100 U.S. 371 . ...... ccc ccc ce cucee 16
Ford Motor Company v. National Labor Relations
Board, 305 U.S. 364
Fuentes ¥. Ghaein, 407 US. OT oo... 5.0 o5 dooce. 16
Green v. Acacia Mutual Life Ins. Co.,98 Oh. App. 101 .. 19
Kern v. Contract Cartage Co., 55 Oh. App. 418
Linz v. Linz, 33 Oh. App. (2d) 174 .................. 16
Lytle v. Freedom International Carriers, S.A., 519 F.
(ie) Samy Oe COA Oo ei eles. 24
McKay Machine Company v. Rodman, 11 Oh. St. (2d)
Wee 0 hc. 23
McNally v. American States Ins. Co., 308 F. (2d) 438
(6th Cir. )
i das Lae i tae
v.
Page
Middleport Woolen Mills Company v. Titus, 35 Oh.
a 2, eeeewne ree erre Terr rer er re 17
Mumaw v. Western & Southern Life Ins. Co., 97 Oh
reer cre rc ST rere rete Te re eee 24
New York Life Ins. Co. v. Hosbrook, 130 Oh. St. 101 .. 19
Pacific Steamship Company v. Peterson, 278 U.S. 130 .. 23
Pennsylvania Rd. Co. v. Travelers Ins. Co., 226 F. (2d)
| RS eer re errr err ere Teer Tere 24
Ragone v. Vitale & Beltrami, 42 Oh. St. (2d) 161 ...... 23
Ross v. Cincinnati Transit Company, 105 Oh. App. 327... 19
Sims v. State of Georgia, 385 U.S. 538 ...........-.-5: 20
State v. Brunswick, 69 Oh. App. 407, 421, 91 N.E. (2d)
esa dk eas ae de Aenea Ne mead hone kaa hss 17
Whitaker-Merrell Company v. Geupel Construction Co.,
i: SB) jk eeeeepeereererrerrec errr errr 16
Constitution:
Fourteenth Amendment, Section 1 to United States
nic nck so bias wicew ins Sac esonns Cee eens 3
Article VI of the United States Constitution ....... 3, 6, 20
Statutes:
Ohio Rule 54(B) of Civil Procedure ............. wees 28
Rule 702, Federal Rules of Evidence ...........+..+++: 28
|! Oh) 3 i i ree ree 9, 10
Other Authorities:
Restatement of the Law: Judgments, Section6 ...... 14, 15
21 Oh. Jur. (2d) 418 Sect. 410 22... ccc ccccseeecnreree
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1979
EDWARD E. KOEHL, Administrator of the Estate of
Carol E. Koehl, Deceased, et al.,
Petitioners,
sie v.
UNITED STATES FIRE INSURANCE COMPANY,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE
STATE OF OHIO
JURISDICTIONAL STATEMENT
Petitioners respectfully petition this Court for a Writ of
Certiorari to review the final orders and judgments of the
Supreme Court of Ohio entered on September 13, 1979 dis-
missing their appeal without opinion and denying their Mo-
tion for an order directing the Court of Appeals for the First
District of Ohio to certify its record to the Supreme Court
of Ohio which is appended hereto on pages 2a and 3a of
the Appendix.
The Opinions of the Court of Appeals of the First District
of Ohio were returned on October 14, 1975 and December 2,
1977, were not reported, and are appended hereto in the
Appendix, PP. 4a and 59a respectively.
2
The application of the Petitioners to Reconsider was denied
by the Court of Appeals on November 7, 1975, without opinion,
and is appended hereto on P. 19a of the Appendix.
‘The jurisdiction of this Court to consider the Federal Con-
stitutional issues is conferred by Title 28, Section 1257(3)
U.S.C. which is appended hereto on P. la of the Appendix.
QUESTIONS PRESENTED FOR REVIEW
(1) Does a State Court violate Due Process rights guaran-
teed to litigants by the Fourteenth Amendment to the United
States Constitution when it renders judgment in a civil case
where there has been no trial, evidentiary hearing, or any
other final submission of the case to it? j
(2) Can such violation of basic Constitutional rights by
granting a judgment without a trial be disregarded because the
State Appellate Courts to which the case was appealed hold
that while the proceedings were clearly erroneous, the result
reached by the Trial Court was correct?
(3) Does the failure of the State Trial Court thereafter to
conduct an evidentiary hearing and consider evidence prof-
fered by the Petitioners violate Article VI of the United States
Constitution to the effect that the Constitution shall be the
supreme law of the land binding on judges in every state?
CONSTIITUTIONAL PROVISIONS INVOLVED
(1) Fourtenth Amendment, Section 1 to the United States
Constitution is as follows:
“All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside.
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws.”
(2) Article VI of the United States Constitution is as
follows:
“ . This Constitution, and the Laws of the United
States which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the Au-
thority of the United States, shall be the supreme Law
of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding. . .”
The manner in which the rights guaranteed to the Petitioners
under the foregoing provisions of the United States Constitu-
tion were raised in this case as follows:
(i) Motion for New Trial and/or to Vacate Judgment of
the Petitioners in the Court of Common Pleas of Hamilton
County Ohio on behalf of each of the Petitioners requesting
the Trial Court to set aside and vacate the judgment entered
on May 29, 1973 to the Respondent, United States Fire Insur-
ance Company, and to grant a new trial for the following
reasons and grounds:
“(1) Error of the Court in entering said judgments
without a trial being held in the case.” .. . .
4
“(9) The judgments are contrary to Section 1 of the
Fourteenth Amendment to the United States Constitution
and in violation of the rights of the Plaintiffs guaranteed
by the United States Constitution.”
The Motion of the Muscovins states as to Ground No. 9
that the judgments are “in violation of the rights of the De-
fendants guaranteed by the United States Constitution.”
(2) Memorandum in Support of Motion For a New Trial
and to Vacate Judgments filed in the Court of Common Pleas
of Hamilton County, Ohio in which it is claimed that “the
Fourteenth Amendment to the United States Constitution
guarantees to a citizen of the United States and the state
wherein he resides ‘due process’.”
Excerpts from this Memorandum are appended hereto
on P. 66a of the Appendix.
(3) Assignment of Error No. 6 by Petitioners on first
appeal to the Court of Appeals for the First Appellate Dis-
trict of Ohio from judgments entered by Judge Matthews
which is as follows:
“(6) Violation of the rights of Plaintiffs-Appellants
under Article I, Section 14 of the United States Consti-
tution.”
(4) Opinion of the Court of Appeals for the First Appellate
District of Ohio dated October 14, 1975 appended hereto on
P. 4a of the Appendix.
Special attention is called to PP. 8a and 9a of the Appendix
in which the Court states that one of the issues is whether
Petitioners “were denied due process in the procedure adopted
by the trial court.”
Also, P. 10a of the Appendix where the Court stated:
“We believe the Plaintiffs-Appellants were unjustifiably
denied the right to have the issues raised in their Sup-
plemental Complaint tried to a jury.”
5
“ ., the foreclosure of a jury trial amounted to a depriva-
tion of substantial rights.” (Emphasis— The Court's).
“|. . We purposely refrain from referring to the remand
as one for a new trial in view of our belief that the
Plaintiffs-Appellants received no trial below and did not
waive same.” (Emphasis — The Court's)
(5) Plaintiff's Reply Memorandum in the Court of Common
Pleas of Hamilton County, Ohio on the Second Hearing before
Judge Frank M. Gusweiler after remand in which the Peti-
tioners stated that since due process had been denied them by
the rendition of a judgment without a hearing or notice, the
judgments rendered were void.
Consequently, the Trial Court on remand was under an obli-
gation to consider the matter ab initio and to refrain from fol-
lowing an unconstitutional remand.
Excerpts from this Memorandum are appended hereto on
P. 68a of the Appendix.
(6) Reply Brief of Petitioners in the Court of Appeals
for the First Appellate District of Ohio on the Second Appeal.
In this Reply Brief, Petitioners again claim that the pro-
ceedings in the Court of Common Pleas of Hamilton County,
Ohio in which judgment was rendered against them without
trial or hearing are void and invalid under the Fourteenth
Amendment to the United States Constitution. They further
claim that Judge Gusweiler of the Court of Common Pleas
of Hamilton County, Ohio, to whom the case was remanded
after the First Appeal, was under an obligation to hear the
case ab initio, and to disregard an unconstitutional remand.
Article VI to the United States Constitution was cited as
authority.
Excerpts from this Reply Brief of Petitioners are appended
hereto on P. 71a of the Appendix.
(7) Memorandum in Support of Jurisdiction filed by Peti-
6
tioners in the Supreme Court of Ohio. On P. 18 of this Memo-
randum, Petitioners stated:
“There is no authority in the law, and it is contrary to the
Fourteenth Amendment of the United States Constitution
and Article I, Section 16 of the Ohio Constitution to have
affirmed a judgment not based on ‘due process.” (Em-
phasis Ours )
On P. 21 of this Memorandum, Petitioners stated.
“Article VI of the United States Constitution requires the
Trial Judge to whom the case was remanded after the
first appeal to have complied with the Constitution of the
United States and conducted a fully evidentiary hearing
on these cases without regard to the limitations imposed
by the Court of Appeals. Article VI of the United States
Constitution provides:
‘. . . this Constitution and the Laws of the United
States which shall be made in pursuance thereof
and all Treaties made or which shall be made under
the Authority of the United States, shall be the
supreme Law of the Land; and the Judges in every
: State shall be bound thereby anything in the Con-
stitution or Laws of any State to the Contrary not-
withstanding. (Emphasis Ours )”
(8) Notice of Appeal to the Supreme Court of Ohio in
which it was stated by Petitioners:
“This case involves a substantial constitutional question
concerning namely the Fourteenth Amendment of the
United States Constitution and Article I of the Ohio
Constitution, and is of public or great general interest.”
STATUTES INVOLVED
Rule 38, Ohio Rules of Civil Procedure
Rule 39, Ohio Rules of Civil Procedure
Rule 54(B), Ohio Rules of Civil Procedure
Section 3929.06 O.R.C.
STATEMENT OF THE CASE
The cases of the Petitioners involve identical questions.
Petitioners Edward E. Koehl, Administrator of the Estate of
Carol E. Koehl, deceased; Henry Neuhausser, Administrator
of the Estate of Stephen Neuhausser, deceased; Henry Neu-
hausser individually; Ronald Ison and Edna Ison Scott, his
mother, recovered judgments as plaintiffs in the Court of Com-
mon Pleas of Hamilton County Ohio against Jon Allan Mus-
covin, a minor and Amelia C. Muscovin, his mother. The judg-
ments were for wrongful death of the intestates, expenses,
serious personal injuries to Ronald Ison and medical expenses
of Edna Ison Scott.
Thereafter, in order to satisfy these judgments in accordance
with Ohio law, they all filed their Supplemental Petitions
against the Respondent, United States Fire Insurance Com-
pany as Defendant who had issued an automobile liability in-
surance policy to Jon A. Muscovin and Amelia Muscovin as
named insureds. Jury trials were demanded. The cases were
consolidated for trial and assigned to Judge William R.
Matthews of the Court of Common Pleas. The parties en-
tered into a partial stipulation which set forth the United States
Fire Insurance Company’s policy of insurance. There was no
provision in the stipulation that it contained all the evidence.
Subsequently, without notice, hearing of any kind, trial,
pending motion or setting, Judge Matthews wrote an Opinion
deciding the case in favor of the United States Fire Insurance
8
Company and ordered counsel to prepare entries in accordance
therewith. He refused to entertain any objections, denied mo-
tions to set cases for trial and entered judgments for the
United States Fire Insurance Company on May 29, 1973.
These cases were thereafter appealed by Koehl, Neuhausser,
Ison and Scott to the Court of Appeals for the First Appellate
District of Ohio. Jon Muscovin and Amelia Muscovin also
appealed and the cases were consolidated for hearing on
appeal. On October 14, 1975, the Court of Appeals sustained
the Assignments of Error “which challenged the trial court’s
judgments entered without trial”, holding “the foreclosure of
a jury trial amounted to a deprivation of substantial rights”.
(Emphasis — The Court’s)
However, the Court of Appeals agreed that the interpreta-
tion of the contract by the Trial Court was correct “predi-
cated upon the bare record before it”, but on October 14, 1975
remanded the case to the Trial Court for the sole consideration
of another issue. It ordered the Trial Court to consider
whether the policy had been varied by representation and oral
agreement of the agent.
On remand before Judge Frank Gusweiler of the Court of
Common Pleas, all parties filed Motions for Summary Judg-
ment. The Plaintiffs and the Muscovins attached four Affi-
davits of English Professors to their motions relating to the
correct interpretation of the written policy. No counter affi-
davits were filed by the United States Fire Insurance Company.
The Court sustained the motions of the United States Fire
Insurance Company and denied the counter motions, and en-
tered judgment on December 2, 1977 in favor of the United
States Fire Insurance Company.
An Appeal was again taken to the Court of Appeals for the
First Appellate District of Ohio claiming as error the violation
of rights under the Constitution of the United States. On
hearing, the Court again wrote an opinion affirming the judg-
ment of the Trial Court holding that the matter had been
ajudicated on the First Appeal and could not be reconsidered
noe cme
9
by either it or the Trial Court and on March 21, 1979 entered
judgment accordingly.
On further appeal, the Supreme Court of Ohio on September
13, 1979 dismissed the appeal of the Petitioners “for the reason
that no constitutional question exists”, and overruled their
Motion For an Onder Directing the Court of Appeals to Certify
Its Record.
John A. Muscovin and Amelia Muscovin join as Petitioners
in these proceedings.
STATEMENT OF FACTS
Carol E. Koehl, Stephen Neuhausser, Ronald Ison and John
A. Muscovin were all minors attending Aiken High School at
Cincinnati, Ohio.
On January 26, 1967, the automobile belonging to Carol E.
Koehl’s father, which she had taken that morning with her
to Aiken High School, Cincinnati, Ohio, was thereafter driven
by John A. Muscovin, and Carol E. Koehl, Stephen Neuhausser
and Ronald Ison were passengers therein. John Muscovin
negligently and carelessly operated the automobile on January
96, 1967, colliding with a tree, resulting in the death of Carol
E. Koehl and Stephen Neuhausser, and serious personal injury
to Ronald IIson.
It is undisputed that Muscovin did not have consent or
permission to drive the Koehl automobile.
Thereafter, judgments were recovered by the Plaintiffs-
Petitioners against John Muscovin and his mother, Amelia
Muscovin, who had signed his application for a driver's li-
cense. After recovery of the judgments, Supplemental Pe-
titions were filed by the Petitioners in accordance with
3926.06 O.R.C. against the United States Fire Insurance Com-
pany who had issued a policy of automobile liability insurance
10
to John Muscovin, the driver, and Amelia Muscovin, his
mother, as insureds. A copy of 3926.06 O.R.C. is appended on
P. 80a of the Appendix.
This policy carried a clause which Petitioners claimed made
it liable for accidents which occurred to their insureds while
using a non-owned automobile. On the other hand, the Re-
spondent claimed that there was no coverage unless such auto-
mobile was driven with the consent of the owner.
Consequently, the dispute between the parties related pri-
marily to the meaning of this clause and its applicability to
this case. This clause is as follows:
“Persons Insured. The following are insureds under Part 1:
(a) with respect to the owned automobile.
(1) the named insured and any resident of the same
household.
(2) any other person using such automobile with the
permission of the named insured, provided his
actual operation or (if he is not operating ) his
other actual use thereof is within the scope of
such permission, and
(3) any other person or organization but only with
respect to his or its liability because of acts or
omissions of an insured under (a) (1) or (2)
above;
(b) with respect to a non-owned automobile,
(1) the named insured,
(2) any relative, but only with respect to a private
passenger automobile or trailer,
provided his actual operation or (if he is not oper-
ating) the other actual use thereof is with the per-
mission, or reasonably believed to be with the per-
mission, of the owner and is within the scope of such
permission, and
(3) any other person or organization not Owning or
hiring the automobile, but only with respect to
his or its liability because of acts or omissions
of an insured under (b) (1) or (2) above.”
11
As pointed out in the Statement of the Case, the Trial Court
prematurely, without notice and without trial, evidentiary hear-
ing, pending motion, setting, or other submission sua sponte
decided the case by its written Opinion in favor of the Respon-
dent, United States Fire Insurance Company and against the
Petitioners.
Thereafter, the Petitioners raised their objection in the Trial
Court, and later in the Court of Appeals on two occasions and
in the Supreme Court of Ohio. They claimed the proceedings
of the Trial Court were void and invalid because they were
lacking in due process and foreclosed them from offering
evidence in support of their claim. Subsequently, this evi-
dence which consisted of the Affidavits of four outstanding
and learned professors of English in the local colleges and
universities was proffered in the second proceedings of the
Trial Court. These professors unanimously agreed that the
ordinary and grammatical meaning of the policy made the
Respondent liable to the Petitioners, and the consent of the
owner was not required.
In dispute was the question of whether or not the consent
of the owner of the automobile was required for coverage
of the insureds by the United States Fire Insurance Company
in the operation by John Muscovin of a non-owned automobile.
Typical of the four Affidavits by these grammarians is the Affi-
davit of Dr. Siegmund A. E. Betz, Chairman of the English
Department of Edgecliffe College setting forth his opinion,
attached hereto on P. 73a of the Appendix, which was pre-
sented by the Petitioners in support of their Motions for
Summary Judgment.
On the First Appeal, the Court of Appeals agreed with the
Petitioners that they had been denied “due process” and their
day in Court by the entry of judgments without a trial or hear-
ing. However, as pointed out in the Statement of the Case, the
Appeals Court agreed with the Trial Court as to the interpreta-
tion of the policy, and remanded the case solely on the issue
of whether the written language in the policy had been varied
by the representations of Respondent’s agent who sold it.
| |
12
The Court of Appeals in the second appeal held the trial
court properly failed to consider these Affidavits of the English
professors on the ground that the law of the case rule applied
on the issue of the interpretation of the written language of
the policy. This is the principle of law that holds that after
an Appellate Court has enunciated a principle of law in a
particular case, this principle is binding on all of the parties
and cannot be varied, but must be followed by both the
Appellate Court and the Trial Court, even though such case
has not been finally adjudicated and is still pending. How-
ever, the Ohio Courts do not recognize this rule.
The Ohio Appellate Courts thereby failed to give effect on
two occasions to their own determination that the proceedings
in the Trial Court were in effect invalid because of lack of due
process. The Ohio Supreme Court by dismissing Petitioners
Appeal and Motion to Certify is in accord.
13
ARGUMENT FOR ALLOWANCE OF
WRIT OF CERTIORARI
1, DOES A STATE COURT VIOLATE DUE PROCESS
RIGHTS GUARANTEED TO LITIGANTS BY THE
FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION WHEN IT RENDERS
JUDGMENT IN A CIVIL CASE WHERE THERE
HAS BEEN NO TRIAL, EVIDENTIARY HEARING,
OR ANY OTHER FINAL SUBMISSION OF THE
CASE TO IT?
It is undisputed that the Petitioners were denied “due pro-
cess’ when the original judgment against them and in favor
of the United States Fire Insurance Company was entered.
There had been no trial setting, no Motions for Summary
Judgment filed, no trial, no waivers of jury, no final argument,
and no submission of the case to the original Trial Court.
When the matter was subsequently brought to the attention
of Judge William R. Matthews of the Court of Common Pleas,
the original Trial Judge, after he had announced his decision
against the Plaintiffs by way of Motions to Set Case for Trial,
he made amazing statements which are set forth on P. 5 of
the Narrative Statement of the Proceedings:
“... that he had decided the cases on the merits and
he’was denying the Motion to set the cases for trial, that
he felt that he had done his work, had studied the memo-
randa, read the law, made a decision and written an
opinion to which he was holding, even though mistakenly |
premature, which he was affirming.”
The Court of Appeals on P. 7 (P. 10a of Appendix) of its
decision of October 14, 1975 agreed that the Plaintiffs had been
deprived of “substantial rights” and further wrote:
“We purposely refrain from referring to the remand as
one for a new trial in view of our belief that the Plaintiffs-
: |
14
Appellants received no trial below and did not waive
same”. (Emphasis Ours)
The Court of Appeals further pointed out on P. 7, (P. 10a
of Appendix) of this Opinion:
“We believe the plaintiffs-appellants were unjustifiably
denied the right to have the issues raised in their supple-
mental complaints tried to a jury. Although during oral
arguments plaintiffs-appellants categorized the action of
the trial court by refusing to schedule the subject matters
for trial as procedural errors, we conclude that the judg-
ments awarded below, without a trial, denied to plain-
tiffs-appellants more than their procedural rights; the
foreclosure of a jury trial amounted to a deprivation of
substantial rights. Those assignments of error which
challenge the trial court’s judgments entered without trial
have merit and are sustained... . We purposefully refrain
from referring to the remand as one for a new trial in
view of our belief that the plaintiffs-appellants received
no trial below and did not waive same.” (Emphasis —
The Court's)
In its Opinion of March 21, 1979 on the Second Appeal to
the Court of Appeals attached hereto on P. 20a of Appendix
the Court stated on P. 5 (P. 23a of the Appendix ) that it had
sustained the Assignment of Error of the Appellants with
respect to the fact that they:
“were denied due process in the procedure adopted by
the Trial Court in its disposition thereof.”
This Court has held that the failure to accord “due process”
to a litigant violates the Fourteenth Amendment to the United
States Constitution, and such judgments are absolutely void,
Coe v. Armour Fertilizer Works, 237 US. 413; Armstrong v.
Manzo, 380 U.S. 545.
The Restatement of the Law: Judgments, Section 6 pro-
vides:
15
“A judgment is void unless a reasonable method of notifi-
cation is employed, and a reasonable opportunity to be
heard afforded to all persons affected.
Also, Restatement of the Law: Judgments, Section 6(F) pro-
vides:
“Even though the Court has jurisdiction over the De-
fendant, and even though he is given notice of the
action, a judgment against him is void if he was denied
an opportunity to be heard.”
2. CAN SUCH VIOLATION OF BASIC CONSTITU-
TIONAL RIGHTS BY GRANTING A JUDGMENT
WITHOUT A TRIAL BE DISREGARDED BECAUSE
THE STATE APPELLATE COURTS TO WHICH
THE CASE WAS APPEALED HOLD THAT WHILE
THE PROCEEDINGS WERE CLEARLY ERRON-
EOUS, THE RESULT REACHED BY THE TRIAL
COURT WAS CORRECT?
A JUDGMENT NOT BASED ON DUE PROCESS
IS A NULLITY.
The Court of Appeals is in error in its declaration in its sec-
ond decision that its prior decision dated October 14, 1975,
attached hereto on P. 15a of the Appendix sustaining the
judgment of Judge William R. Matthews, Trial Judge, arrived
at without trial, evidence, or “due process” should have been
appealed to the Ohio Supreme Court.
It is likewise in error in its determination that in the absence
of an appeal, the judgments of the Court of Common Pleas and
the Court of Appeals were adjudications, and Petitioners were
barred from again asserting their right to a trial at which
evidence would have been presented by them. It should be
borne in mind that the cases were still pending on another
issue for the determination of which it was remanded to the
Trial Court.
16
A void judgment or decree is an absolute nullity and need
not be appealed. It can be disregarded at any time, Coe v.
Armour Fertilizer Works, 237 U.S. 413: Armstrong v. Manzo,
380 U.S. 545.
Even a preliminary order cannot be issued by a Court
without a pre-judgment hearing. Thus, the issuance of a
Writ of Replevin without such hearing is absolutely void and
is not remedied by the fact that bond must be posted to cover
any injury which might result from an erroneous order, Fuentes
v. Shevin, 407 U.S. 67.
An unconstitutional judgment can be inquired into at any
time, Ex Parte Siebold, 100 U:S. 371, in which Syllabus No.
1 is as follows:
“The appellate jurisdiction of this court, exercisible by
the writ of habeas corpus, extends to a case of imprison-
ment upon conviction and sentence of a party by an in-
ferior court of the United States, under and by virtue
of an unconstitutional act of Congress, whether this court
has jurisdiction to review the judgment of conviction by
writ of error or not.”
The fact that the same result would have been reached if
“due process” had been followed because the Defendant had
no defense is not a valid reason for denying such “due process”,
Coe v. Armour Fertilizer Works, 237 U.S. 413.
The Court of Appeals had no jurisdiction to affirm the judg-
ment of the Court of Common Pleas entered without an
evidentiary hearing, notice, trial by jury as requested in the
Complaints, and without “due process”.
In addition, in the interest of expediency, bifurcated or
fragmented appeals are not looked upon with favor by the
Courts. They only increase the work of the Court and do
not ultimately determine the case, Whitaker-Merrell Co. v.
Geupel Constr. Co., 29 Oh. St. (2d) 922: Linz v. Linz, 33 Oh.
App. (2d) 174.
17
Moreover, the Ohio Court of Appeals was not warranted
in making the remand which it did. The Ohio Supreme Court
has held that after an Appellate Court finds error and reverses
a judgment it should not pass on other errors assigned which
were not necessary to the decision or opinion.
In Middleport Woolen Mills Company v. Titus, 35 Oh. St.
253, 258, the Ohio Supreme Court stated:
“The view that we have taken of this case renders it
unnecessary that we should determine the important ques-
tions discussed by counsel, or express any opinion as to
the real merits of this case in any particular.
There are other cases which hold that an Appellate Court
should not render an opinion on matters not before it, or
which are not necessary for the decision of the Court. Thus,
in Ford Motor Co. v. National Labor Relations Board, 305
U.S. 364 this Court held that where there had been a lack of
a full and fair hearing in the tribunal below which had not
afforded the petitioner an opportunity to be fully heard and
to present his evidence, the tribunal on remand from the Su-
preme Court, must start anew and permit a full and complete
trial of the entire issue. In this case, the tribunal was the
National Labor Relations Board.
It is a well recognized rule that obiter dictum is not binding
on either courts or litigants, Carroll v. Lessee of Carroll, 57
U.S. 275; Pacific Steamship Co. v. Peterson, 278 U.S. 130.
The rule is the same in Ohio Courts, Ecker v. City of Cin-
cinnati, 52 Oh. App. 422, 426. 3 N.E. (2d) A14; State v. Bruns-
wick, 69 Oh. App. 407, 421, 91 N.E. (2d) 1553.
18
3. DOES THE FAILURE OF THE STATE TRIAL
COURT THEREAFTER TO CONDUCT AN EVI-
DENTIARY HEARING AND CONSIDER EVI-
DENCE PROFFERED BY THE PETITIONERS
VIOLATE ARTICLE VI OF THE UNITED STATES
CONSTITUTION TO THE EFFECT THAT THE
CONSTITUTION SHALL BE THE SUPREME LAW
OF THE LAND BINDING ON JUDGES IN EVERY
STATE?
JUDICIAL DISCIPLINE DOES NOT JUSTIFY
VIOLATION OF BASIC CONSTITUTIONAL
RIGHTS
Petitioners proffered competent evidence on remand. It
should be emphasized that on remand of these cases to the
state Trial Court, Petitioners presented the Affidavits of four
outstanding and learned professors of English of the local uni-
versities in support of their Motions for Summary Judgment
which the Trial Court denied.
The Court of Appeals in its second Opinion of March 21,
1979 attached hereto on P. 20a of the Appendix held that
the Trial Court was bound by the remand and could not
consider the Affidavits of the grammarians proffered by the
Petitioners in support of their Motions for Summary Judg-
ment stating:
“He had no choice but to accept as the controlling law of
the case that the only interpretation that could be placed
on the subject language was that which the Court of
Appeals had decided in affirming the interpretation given
by the judge before whom the matter originally had come.
For Judge Gusweiler to have held that the interpretation
of the policy language was undecided would have been
untenable.”
In so doing, the Ohio Court of Appeals disregarded the
Ohio case law on the subject to the effect that there is no
ee
19
law of the case principle in Ohio and the Court may always
correct an error. New York Life Ins. Co. v. Hosbrook, 130
Oh. St. 101; Kern v. Contract Cartage Co., 55 Oh. App. 481;
Green v. Acacia Mutual Life Ins. Co., 98 Oh. App. 101; Ross
v. Cincinnati Transit Co., 105 Oh. App. 327.
The error which the Court of Appeals had made which it
should have corrected on the second appeal was to reject
the evidence which was proffered, but not considered on the
remand and holding that the interpretation of the insur-
ance policy involved in this case was governed by the
decision in Bright v. Ohio Casualty Co., 444 F. (2d) 341 which
interpreted a similar clause without the benefit of support
testimony or reference to any authorative book of English
grammar. An Affidavit to this effect was attached to Peti-
tioners Motion for Summary Judgment.
OHIO CIVIL RULE 54(B) MAKES DECISION
SUBJECT TO CHANGE OR REVISION
Also, the decision of the Trial Court made on July 10, 1972
which it journalized in its Judgment Entries of May 29, 1973
attached hereto on PP. 39a-5la of the Appendix was not a final
order and was subject to modification at any time until the
entry of a judgment adjudicating all the claims, rights and
liabilities of all the parties.
There was still pending the question of whether the insur-
ance policy had been modified by the representations and
conversations of the insurance agent of the United States
Fire Insurance Company which the Court of Appeals remanded
to the Trial Court.
Ohio Rule 54(B) of Civil Procedure which is attached hereto
on P. 65a of the Appendix expressly provides in the case of
multiple claims, unless the Court finds “that there is no just
reason for delay”, the determination of fewer than all the claims
20
shall not terminate the action and the order or decision is
subject to revision at any time before the Entry of Judgment
of final adjudication. There is no such finding in the Judg-
ment Entries rendered by Judge William R. Matthews.
UNITED STATES “ONSTITUTION IS
CONTROLLING IN STATE COURTS
Article VI of the United States Constitution provides:
“This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land; and
the Judges in every State shall be bound thereby, any
Thing in the Constitution of Laws of any State to the
Contrary notwithstanding.”
In view of the clear language, there is no dobut that the
State Courts are bound by the Constitution of the United
States and are required to grant “due process” regardless of any
state law or rules of court. This has been recognized by
this Court on many occasions. The State Court must follow
the United States Supreme Court decisions, Sims v. State of
Georgia, 385 U.S. 538.
In Commonwealth v. Rundle, 201 A. (2d) 615, Aff. 204 A.
(2d) 1446, the superior court of Pennsylvania stated:
“Decisions of the United States Supreme Court, where
relevant, are binding on all state courts and it goes with-
out saying that we will follow such decisions even though
they are in conflict with the law as determined by our
own appellate courts.”
21
EXPERT EVIDENCE SHOULD HAVE
BEEN CONSIDERED
The Trial Court when it announced its decision originally on
July 10, 1972 without evidentiary hearing or trial, and refused
to grant a trial thereafter when requested by Petitioners based
its judgment entirely on the case of Bright v. Ohio Casualty
Ins. Co., 444 F. (2d) 1341 (C.C.A. 6).
Similarly on the First Appeal to the Ohio Court of Appeals,
the same case was the basis for its finding that there was no
prejudicial error in failing to give Petitioners due process. In
so doing, the Trial Court and the Ohio Court of Appeals not
only violated the Constitutional rights of the Petitioners, but
also were in complete error in determining such evidence might
not have changed the result.
Affidavits of Dr. Siegmund A. E. Betz, Chairman of the
Department of English of Edgecliff College, Cincinnati, Ohio,
Dr. Ernest L. Fontana, Chairman of the Department of English
of Xavier University of Cincinnati, Ohio, Dr. John P. McCall,
Head of the Department of English at the University of Cin-
cinnati, and Mrs. Marjorie T. Rouse, Assistant Professor of
English at Northern Kentucky State University were presented
by Petitioners in support of their Motions for Summary Judg-
ment in the Trial Court on the second proceedings after the
remand by the Ohio Court of Appeals.
They were precluded from presenting such evidence before
Judge Matthews, the original trial judge, and these Affidavits
were disregarded by Judge Gusweiler, the Triai Judge to whom
the case had been remanded after the first appeal by the Ohio
Court of Appeals.
The grammarians were all unanimous in their opinion that
the United States Fire Insurance Company had, by the lan-
guage of its policy, insured Petitioners, John A. Muscovin and
Amelia Muscovin in the operation by John A. Muscovin of the
non-owned autcmobile of Edward E. Koehl. No consent of
22
the owner was required since he was the named insured in the
policy.
The Affidavit of Dr. Siegmund A. E. Betz is attached hereto
on P. 73a of the Appendix. It clearly illustrates that the pro-
noun “his” used in (b)(2) with respect to “a non-owned auto-
mobile” in a proviso clause requiring the consent of the owner
should not ever apply to (b)(1) “the named insured” who was
John A. Muscovin. It pointed out that the pronoun “his” was
singular and could not have related to both the named insured,
as well as “any relative” which requires a plural pronoun.
The decision in Bright v. Ohio Casualty Ins. Co., 444 F. (2d)
1341, dealt with an entirely different policy, the insurance
clause of which covered “persons insured”.
“(b) With respect to a non-owned automobile,
(1) the named insured,
(2) any relative, but only with respect to a pri-
vate passenger automobile or trailer
provided the actual use thereof is with the per-
mission of the owner;” (Emphasis Ours)
In Bright, instead of the pronoun “his”, the article “the” is
used which entirely changes the meaning and construction of
the policy. However, Petitioners were not allowed to present
the expert witnesses to point this out before Judge Matthews
who rendered the original or first judgment in the case nor
after remand to the Triai Court.
Likewise, it was pointed out in the Affidavit of Dr. John P.
McCall that the peculiar spacing in the policy issued by the
Respondent had no significance whatsoever. His Affidavit in
this regard noted:
“Dr. McCall says that he has also observed and consid-
ered the peculiar spacing of the phrase commencing ‘pro-
vided his actual operation ° * *’. Spacing of print in
such a document is an editorial activity, but does not
have any specific significance for understanding the mean-
23 L
ing of the passage in question. That is, there are no
rules of English by which the interpretation of spacing
can alter the ordinary meaning of the words that are
written here. The particular spacing, in other words,
does nothing to control the interpretation and meaning
of the words that are actually used.”
By Court decision, it is established law that where a person
possesses special ability on a subject, he may testify as an
expert and give his Opinion. This Rule has been adopted into
Rule 702, Federal Rules of Evidence as follows:
“If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or educa-
tion, may testify thereto in the form of an opinion or
otherwise.”
Ohio Court have long followed this rule that expert testi-
mony is admissible as to matters not <enerally within the
common knowledge of laymen as illustrated by McKay Ma-
chine Co. v. Rodman, 11 Oh. St. (2d) 77, 228 N.E. (2d) 304
where a welder was permitted to give testimony as an expert.
A more recent case to the same effect is Ragone v. Vitale and
Beltrami, 42 Oh. St. (2d) 161.
It was pointed out in 21 Oh. Jur. (2d) 418, Sect. 410 that
the reason for admission of the testimony of an expert is that:
“He knows those things within the field of his specialty
which the average man does not know.”
Also, it was stated in this same reference, that an expert
should be permitted to testify because from the nature of his
calling he is:
“better able to judge matters relating thereto than one
not an expert.”
24
The judgments against the Petitioners were entirely un-
warranted according to the ordinary rules for the construc-
tion of contracts and insurance policies which was well stated
in Lytle v. Freedom International Carriers, S.A., 519 F. (2d)
129, 135 (C.C.A. 6), an Ohio case:
“We are bound as well to follow the general rule of con-
struction that a document is to be construed against the
preparer of it and, as well, the more specific rule that
ambiguities in insurance contracts are to be construed
against the insurer and in favor of coverage. Pennsylvania
R. Co. v. Travelers Ins. Co., 226 F. (2d) 520 (6th Cir.
1955); McNally v. American States Ins. Co., 308 F
438 (6th Cir. 1962).” oo
The law is to the same effect in Ohio; as pointed out in
Mumaw v. Western and Southern Life Insur
97 Oh. St. 1. a iil
CONCLUSION
It should be evident that the Petitioners were not accorded
due process in the Court of Common Pleas, Court of Appeals
and the Supreme Court of Ohio. The Ohio Court of Appeals
twice made findings to this effect and these findings are beyond
dispute. There was no evidentiary hearing, no trial, no setting
no oral arguments, no submission to the court, and no appear-
ances of counsel to assist the court in arriving at the decision.
The proceedings were entirely void and invalid.
. Nothing that took place in this case could ever give such
judgments lacking in due process any validity. The Petitioners
were entitled to their day in Court which they never received.
This Court has pointed out that the denial of due process
25
can never be justified by the fact that after trial and hearing
the same result would have been reached. Petitioners submit
that the same result should not have been reached had the
Ohio Courts properly considered these cases. The Courts
could not have concluded that there was no liability on the
part of the United States Fire Insurance Company if they had
considered the Affidavits of the four learned English professors
which was not contraverted by any evidence proffered by the
Respondent. They pointed out that the insuring agreement
in this case was different from that in the Bright Case where
the article “the” was used in the proviso clause instead of the
pronoun “his”.
More important, however, is the assumption by the Ohio
Appellate Courts that inferior courts must follow a remand to
the letter. They and the Respondent both contend an in-
ferior court has no right to consider the merits of a cause,
but must blindly follow the Appellate Courts even when “due
process” has been denied. They argue it doesn’t matter that
a decision and judgment was entered without trial, evidentiary
hearing, or submission to the court.
This premise is particularly dangerous in view of the fact
that Bright v. Ohio Casualty Company, 444 F. (2d) 341 which
was the basis of the interpretation of the insurance policy in
this case represents the arbitrary construction of the English
language by a court contrary to ordinary accepted grammatical
meaning. Moreover, the opinion in Bright was rendered on
November 15, 1971, the United States Fire Insurance Com-
pany policy was dated July 5, 1966, and the accident took
place on January 26, 1967, all of which predated Bright.
To the contrary, Petitioners contend, important as it may be,
judicial discipline must yield to the requirement of “due
process”. They contend there can be no justice unless a party
is accorded “due process” which Daniel Webster defined as
being “the general law, a law which hears before it condemns,
which proceeds upon inquiry and renders judgment only after
26
trial”, The Dartmouth College Case, 4 Wheaton 518. 581. 4
L. Ed. 514, 579. ae
Respectftully submitted,
ROSEN AND ROSEN
BY: HYMAN B. ROSEN
Attorneys for Edward E. Koehl,
Administrator of the Estate of
Carol E. Koehl, Deceased
BEALL, HERMANIES & BORTZ
BY: WALTER C. BEALL
Attorneys for Henry Neuhausser,
Administrator of the Estate of
Stephen Neuhausser, Deceased and
Henry Neuhausser
WAITE, SCHNEIDER, BAYLESS
& CHESLEY
BY: STANLEY M. CHESLEY,
Attorneys for Ronald Ison and
Edna Ison Scott
WESSELMAN & RENNER
BY: RUSSELL W. RENNER
Attorneys for John A. Muscovin and
Amelia C. Muscovin
APPENDIX A
TITLE 28, SECTION 1257(3) U.S.C.
Final judgments or decrees rendered by the highest court
of a State in which a decision could be had, may be reviewed
by the Supreme Court as follows:
(1) By appeal, where is drawn in question the validity
of a treaty or statute of the United States and the decision is
against its validity.
(2) By appeal, where is drawn in question the validity
of a statute of any state on the ground of its being repugnant
to the Constitution, treaties or laws of the United States, and
the decision is in favor of its validity.
(3) By writ of certiorari, where the validity of a treaty
or statute of the United States is drawn in question or where
the validity of a State statute is drawn in question on the
ground of its being repugnant to the Constitution, treaties or
laws of the United States, or where any title, right, privilege
or immunity is specially set up or claimed under the Constitu-
tion, treaties or statutes of, or commission held or authority
exercised under, the United States. June 25, 1948, c. 646,
62 Stat. 929.
2a
APPENDIX B
THE SUPREME COURT OF OHIO
THE STATE OF OHIO, ) 1979 TERM
City of Columbus. ) To wit: September 13, 1979
No. 79-621
EDWARD E. KOEHL, Admr., et al.,
Appellants,
v.
JOHN A. MUSCOVIN, aka JON A. MUSCOVIN et al.,
Appellants,
UNITED STATES FIRE INSURANCE COMPANY,
Appellee.
APPEAL FROM THE COURT OF APPEALS
for Hamilton County
This cause, here on appeal as of right from the Court of
Appeals for Hamilton County, was heard in the manner pre-
scribed by law, and, no motion to dismiss such appeal having
been filed, the Court sua sponte dismisses the appeal for the
reason that no substantial constitutional question exists herein.
It is further ordered that a copy of this entry be certified to
the Clerk of the Court of Appeals for Hamilton County for
entry.
I, Thomas L. Startzman, Clerk of the Supreme Court of
Ohio, certify that the foregoing entry was correctly copied
from the Journal of this Court.
Witness my hand and the seal of the
Court this .... dayof........ ..
3a
APPENDIX C
THE SUPREME COURT OF OHIO
THE STATE OF OHIO, ) 1979 TERM
City of Columbus. ) To wit: September 13, 1979
No. 79-621
EDWARD E. KOEHL, Admr., et al.,
Appellants,
V.
JOHN A. MUSCOVIN, aka JON A. MUSCOVIN et al.,
Appellants,
UNITED STATES FIRE INSURANCE COMPANY,
Appellee.
MOTION FOR AN ORDER DIRECTING
THE COURT OF APPEALS
for Hamilton County
TO CERTIFY ITS RECORD
It is ordered by the Court that this motion is overruled.
COSTS:
Motion Fee, $20.00, paid by Hyman B. Rosen.
I, Thomas L. Startzman, Clerk of the Supreme Court of Ohio,
certify that the foregoing entry was correctly copied from the
Journal of this Court.
Witness my hand and the seal of the
Court this .... dayof ........ 19 ..
*-*
“ee ee ee Oe a ee ey ae a ee
4a
APPENDIX D
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
Nos. C-73253, C-73271, C-73279
HENRY NEUHAUSSER, Administrator of the Estate of
STEPHEN NEUHAUSSER, Deceased,
and
HENRY NEUHAUSSER,
Plaintiffs,
v.
JON ALLAN MUSCOVIN and AMELIA MUSCOVIN,
Defendants,
and
UNITED STATES FIRE INSURANCE COMPANY,
Defendant, Third-Party Plaintiff,
V.
SELECTIVE INSURANCE COMPANY,
Third-Party Defendant.
Nos. C-73273, C-73276, C-73288
RONALD ISON, a minor, by and through his mother,
natural guardian and next friend, EDNA ISON SCOTT,
Plaintiff,
V.
JON ALLAN MUSCOVIN and AMELIA C. MUSCOVIN.,
Defendants,
5a
and
UNITED STATES FIRE INSURANCE COMPANY,
Defendant, Third-Party Plaintiff,
V.
SELECTIVE INSURANCE COMPANY,
Third-Party Defendant.
Nos. C-73274, C-73284, C-73289
EDNA ISON SCOTT,
Plaintiff,
v.
JON ALLAN MUSCOVIN and AMELIA C. MUSCOVIN,
Defendants,
and
UNITED STATES FIRE INSURANCE COMPANY,
Defendant, Third-Party Plaintiff,
We
SELECTIVE INSURANCE COMPANY,
Third-Party Defendant.
Nos. C-73272, C-37277, C-73285
EDWARD E. KOEHL, Administrator of the Estate of
CAROL E. KOEHL, Deceased,
Plaintiff,
Vv.
JOHN A. MUSKOVIN, also known as
JON A. MUSKOVIN, and AMELIA C. MUSKOVIN,
Defendants.
and
6a
UNITED STATES FIRE INSURANCE COMPANY,
Defendant, Third-Party Plaintiff,
v.
SELECTIVE INSURANCE COMPANY,
Third-Party Defendant.
DECISION
(Filed October 14, 1975)
Messrs. Beall, Hermanies & Bortz, Walter C. Beall of coun-
sel, 200 Dixie Terminal Building, Cincinnati, Ohio 45202, for
Plaintiffs-Appellants, Henry Neuhausser, Administrator, and
Henry Neuhausser,
Messrs. Rosen & Rosen, Hyman B. Rosen of counsel, 1005
First National Bank Building, Cincinnati, Ohio 45202, for
Plaintiff-Appellant, Edward E. Koehl, Administrator,
Messrs. Waite, Schindel, Bayless & Schneider, Stanley M.
Chesley of counsel 1318 Central Trust Tower, Cincinnati,
Ohio 45202, for Plaintiff-Appellant, Ronald Ison and Edna
Ison Scott,
Messrs. Wesselmann & Renner, Russell W. Renner of coun-
sel, 3526 Glenmore Avenue, Cincinnati, Ohio 45202, for De-
fendants-Appellants, Jon Allan Muscovin and Amelia C. Mos-
covin,
Messrs. Lindhorst & Dreidame, James L. O'Connell of
counsel, 1200 American Building, Cincinnati, Ohio 45202, for
United States Fire Insurance Company, Defendant and Third-
Party Plaintiff, Appellant and Appellee,
Messrs. Bloom & Greene, Gordon C. Greene of counsel, 910
Atlas Bank Building, Cincinnati, Ohio 45202, for Defendant-
Appellee, Selective Insurance Company.
Ta
PER CURIAM.
This cause came on to be heard upon the appeal, the tran-
script of the docket, journal entries and original papers from
the Hamilton County Court of Common Pleas, a narrative
transcript of the proceedings, specifically designated “Narra-
tive Statement of the Proceedings,” the assignments of error,
briefs and oral arguments of counsel.'
Originally, four actions were filed in the Hamilton County
Court of Common Pleas as the outgrowth of an automobile
accident which occurred on January 26, 1967, at or near
Aiken High School on Belmont Avenue in Cincinnati, Hamil-
ton County, Ohio. The accident resulted in the deaths of
Stephen Neuhausser and Carol Koehl and serious personal
injuries to Ronald Ison, all of whom were occupants of a
motor vehicle operated on the above date by Jon Allan
Muskovin, sometimes known as John Allan Muskovin. The
captions above clearly indicate the parties to the original
actions. Amelia C. Muskovin was included as a defendant
in each of the cases since she was the mother of Jon Allan
Muskovin and signed his application for a driver's license
since at the time he was younger than eighteen years of age.
Demands to defend said cases were thereafter made by or
on behalf of Jon Allan Muskovin and Amelia C. Muskovin
upon the United States Fire Insurance Company. All of
said demands were rejected by said insuror. Thereafter, judg-
ments were rendered in all four cases and when the same
remained unsatisfied, the original plaintiffs proceeded against
the United States Fire Insurance Company, insuror of Jon
Allan Muskovin and his mother, Amelia, and at a still later
date, the United States Fire Insurance Company initiated
third-party actions against Selective Insurance Company
1 In the mass of papers present in these appeals, there exist numerous
discrepancies in the spelling of the Muskovin name. Our conception of
the correct names of the Muskovin defendants are AMELIA C. MUSKO-
VIN, mother, and JON ALLAN MUSKOVIN, a.kea. JOHN ALLAN
MUSKOVIN, son.
8a
whose insured was Edward E. Koehl, owner of the automo-
bile driven by John Allan Muskovin and involved in the
accident of January 26, 1967.
The trial court ultimately awarded judgment in favor of
United States Fire Insurance Company, hereinafter, U. S. Fire,
on the four supplemental complaints, and in favor of Selective
Fire Insurance Company, hereinafter, Selective, on the third-
party complaints initiated by U. S. Fire. Twelve appeals
resulted, numbers of which appear in the caption. It aypear-
ing to our Court that the twelve numbered cases involve many
of the same issues, it was ordered that all said appeals be
consolidated under number C-73253.2 The assignments of
error herein not only are multitudinous and repetitious, but
the procedure is also followed by the parties to attempt to
cross certify assignments of error, that is, adopt assignments
of error postulated by another or other parties. Furthermore,
one of the contentions of error below, although not specifically
spelled out as an assignment of error, is contained in an argu-
ment in the brief. Careful and thorough examination of the
postulated assignments, buttressed by the clear direction taken
by the briefs and after all oral arguments, compel the inescapa-
ble conclusion that these appeals raise only two issues. The
first is whether the plaintiffs, with respect to the issues raised
in their supplemental complaints, were denied due process in
the procedure adopted by the trial court in its disposition
thereof. The second issue concerns the trial court’s interpreta-
tion of the language of certain portions of the insurance
policies before the trial court.
It is uncontroverted that the original plaintiffs (Neuhaussers,
Koehls, young Ison and his mother) had no trial on their
supplemental complaints against U. S. Fire. U. S. Fire main-
tains that plaintiffs’ agreement to a lengthy stipulation and
participation in its submission to the trial court and the
presentation of briefs, constituted a foreclosure of all relevant
?The caption includes all twelve numbers in order to avoid any
ambiguity about which cases are disposed of by this decision.
9a
factual issues and a knowledgeable waiver of their right to
a full-scale trial. The plaintiffs-appellants vigorously disagree
with this view and insist that they never intended to waive
their right to a trial and, moreover, contend they were respon-
sible for no statements or actions which reasonably could have
been construed by the trial court as a waiver. Immediately
following the dissemination of the trial court’s opinion to the
plaintiffs-appellants they importuned the court below, by mo-
tion, to schedule a trial date which was denied. Counsel for
plaintiffs-appellants called to the attention of the court that
their pleadings had requested a jury trial and, moreover,
directed the court’s attention to the fact that the stipulation
did not state that it contained all the evidence in the cases.
Counsel further explained to the trial court that they had
additional evidence to present in a trial environment. Plain-
tiffs-appellants brought all these matters to the trial court’s
attention following issuance of its opinion on July 10, 1972,
and months before the court signed judgment entries on May
29, 1973, effectuating the orders contained in the court’s
opinion.
One of the papers before us in the record, to-wit “Narrative
Statement of the Proceedings,” endorsed by the trial judge,
graphically reflects the position of the trial court with refer-
ence to plaintiffs-appellants request for a trial. The follow-
ing is from the “Narrative Statement of the Proceedings’:
Whereupon, the Court stated that it was true that he
had not permitted any oral argument, that he was not
allowing oral argument now, that he would not allow
any further trial, that he would not allow any party to
present evidence, that he was denying the motions to
disqualify himself and permit cases to be heard in their
entirety ab initio by another judge, that he had decided
the cases on the merits, and he was denying the motion
to set the cases for trial, that he felt that he had done
his work, had studied the Memoranda, read the law and
made a decision and written an opinion to which he was
holding, even though mistakenly premature, which he
10a
was reaffirming, and he directed that any entry should
be presented to him in accordance with his decision and
his opinion and he accordingly set the cases for judgment
entry. ... (Emphasis added. )
We believe the plaintiffs-appellants were unjustifiably denied
the right to have the issues raised in their supplemental
complaints tried to a jury. Although during oral arguments
plaintiffs-appellants categorized the action of the trial court
by refusing to schedule the subject matters for trial as pro-
cedural errors, we conclude that the judgments awarded below,
without a trial, denied to plaintiffs-appellants, more than their
procedural rights; the foreclosure of a jury trial amounted
to a deprivation of substantial rights. Those assignments of
error which challenge the trial court’s judgments entered
without trial have merit and are sustained. The four cases
are remanded to the Hamilton County Court of Common
Pleas for further proceedings according to law which include
trial settings upon the pending supplemental complaints filed
by the plaintiffs-appellants. We purposefully refrain from re-
ferring to the remand as one for a new trial in view of our,
belief that the plaintiffs-appellants received no trial below
and did not waive same.
Even though we are ordering a remand for further pro-
ceedings according to law, which presumably will be in the
nature of a trial on the merits pursuant to the supplemental
complaints, nevertheless, we consider that there is an obliga-
tion to respond to those assignments of error which challenge
the trial court’s interpretation of the following language of
the insurance policy of U. S. Fire:
“Persons Insured. The following are insureds under Part 1:
(a) with respect to the owned automobile.
(1) the named insured and any resident of the
same household.
(2) any other person using such automobile with
e permission of the named insured, provided
lla
his actual operation or (if he is not operating )
his other actual use thereof is within the scope
of such permission, and
(3) any other person or organization only
with respect to his or its liability be —« of
acts or omissions of an insured under (a) (1)
or (2) above;
(b) with respect to a non-owned automobile,
(1) the named insured,
(2) any relative, but only with respect to a pri-
vate passenger automobile or trailer,
provided his actual operation or (if he is not oper-
ating) the other actual use thereof is with the per-
mission, or reasonably believed to be with the
permission, of the owner and is within the scope
of such permission, and
(3) any other person or organization not owning
or hiring the automobile, but only with respect
to his or its liability because of acts or omis-
sions of an insured under (b) (1) or (2)
above.
The point of disagreement between plaintiffs-appellants and
U. S. Fire is whether the proviso clause with respect to per-
mission contained in (b) qualifies “the named insured” and
“any relative” or only “any relative.” The plaintiffs-appellants
position is the permission proviso does not qualify “the named
insured.” U. S. Fire, on the other hand, of course, contends
that the proviso pertains to both (1) and (2) of (b).
The trial court concluded the following in its opinion:
The determining question in this matter boils down to
whether or not the language regarding ‘permission’ mod-
ifies both the named insured and any relative or just
any relative. This Court is of the opinion that the ques-
tion involved is answered in a very properly reasoned
opinion in the case of Bright v. Ohio Casualty Insurance
Company found in 444 Federal 2d at p. 1341.
l2a
This Court is of the opinion that the language regard-
ing ‘permission’ is a limitation on both the named insured
and the relative.
Our attention also has been directed to Bright, a United
States Court of Appeals, Sixth Circuit, decision of June 15,
1971. In Bright the court was confronted with construction
of a family automobile policy, the language and printed con-
figuration thereof closely resembling the pertinent portions
of the policy before us.* Because of the great factual similar-
ity, the rationale and decision of Bright impress us as com-
pellingly apropros here. In Bright, the Sixth Circuit stated,
in language in which we concur:
As we read the relevant portion of the policy before
us paragraph (b) is not ambiguous in defining the term
‘insureds’ for purposes of coverage. The configuration
of this paragraph clearly indicates that the provision
beginning with ‘provided’ applies to both (b)(1) and
(b)(2). Consequently, under paragraph (b) both the
‘named insured’ . . . and ‘any relative’ are ‘insureds’ only
while using a vehicle with the owner’s permission.
(Bright, p. 1343.)
3 The insurance policy in Bright reads in pertinent part:
Persons Insured. The following are insureds under Part 1;
(a) With respect to the owned automobile,
(1) ber ag insured and any resident of the same house
oid,
(2) any other person using such automobile, provided the
actual use thereof is with the permission of the named
insured;
(b) With respect to a non-owned automobile,
(1) the named insured,
(2) any relative, but only with respect to a private passenger
automobile or trailer
provided the actual use thereof is with the permission of the
owner;
13a
Since [the] policy, in our view, denies coverage while
the named insured is using a non-owned vehicle without
the owner’s permission, we must affirm the decision of
the court below. Our duty is to read contracts as they
are written. We may not extend the terms of an insur-
ance policy beyond the reasonable expectations. of the
parties and the plain words of the policy. (Bright, p.
1344. )
While our conclusion with respect to the legal effect of this
policy language might seem to preclude all avenues of recov-
ery by appellants against U. S. Fire (a conclusion obviously
drawn by the trial court), it must be noted that appellants
contend here, as they contended in the trial court, that they
have additional evidence beyond that stipulated, regarding
negotiations surrounding the issuance of the insurance policy
by U. S. Fire to the Muskovins. Plaintiffs-appellants argue,
for instance, their convictions that the testimony of Mrs.
Muskovin and that of one Robert W. Vogt, the agent of U. S.
Fire, will be a significant part of the evidence which they
expect to offer at trial, and may well be held to vary or
modify the thrust and effect of the foregoing language of
exclusion of ccverage. This Court has, of course, no way of
knowing what evidence would be offered and received, or
the ultimate significance of such evidence, but clearly neither
the trial court nor this Court can discount the possibility that
such evidence may, indeed, effectively modify the otherwise
unambiguous language of the policy. Craver v. Union Fidelity,
37 Ohio App. 2d 100 (1973). Thus, while we conclude that
the trial court’s interpretation of the meaning of the disputed
language was correct, predicated upon the bare record before
it, due process requires that the plaintiffs-appellants be ac-
corded their day in court to determine whether evidence exists
to vary the result.
U. S. Fire brought third-party plaintiff actions against Selec-
tive Insurance Company. The trial court decided in favor
of Selective. Neither U. S. Fire nor Selectye offered oral
l4a
arguments but submitted their respective positions on their
briefs. It seems to us that U. S. Fire’s appeal from the trial
court's decision in favor of Selective is ripe only if ultimately
judgment or judgments are granted against U. S. Fire. In
view of our remand and the impossibility of determining at
this time what judgments will result when these matters
again are considered and decided at the trial level, we feel
compelled to conclude that U. S. Fire’s appeal vis-a-vis Selec-
tive simply is premature. What U. S. Fire seems to be en-
deavoring to secure with respect to Selective could only be
an advisory opinion at this time. U. S. Fire’s liability may
never eventuate. Consequently, we resist deciding only a
potential liability.
In oral argument counsel for appellants referred to certain
relevant motions having been assigned to a different judge
of the Hamilton County Court of Common Pleas and claimed
to be presently pending. Whatever the motions may be and
whatever status they may enjoy, we consider that the record
does not bring them before us at this time.
Therefore, we remand the cases here on appeal to the Court
of Common Pleas of Hamilton County for further proceedings
according to law, including trial on the merits. F urthermore,
we find no error in the trial court’s construction of the dis-
puted portions of the insurance policy issued by U. S. Fire
to Amelia C. Muskovin and Jon Allan Muskovin absent any
subsequently developed proof varying the policy language. We
dismiss U. S. Fire’s appeals of the trial court’s judgment in
favor of Selective Insurance Company.
SHANNON, P. J., PALMER and KEEFE, J,J.
PLEASE NOTE:
The Court has placed of record its own entry in this case
on the date of the release of this Decision.
15a
APPENDIX E
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
o
Nos. C73253, C73271, C73279
A232481, 235384, 235385, 236200
a .
HENRY NEUHAUSSER, ADMINISTRATOR OF THE
ESTATE OF STEPHEN NEUHAUSSER, DECEASED
and
HENRY NEUHAUSSER
Plaintiffs,
v.
JON ALLAN MUSCOVIN and AMELIA MUSCOVIN,
Defendants,
and
UNITED STATES FIRE INSURANCE COMPANY,
Defendant-Third Party Plaintiff,
V.
SELECTIVE INSURANCE COMPANY,
Third-Party Defendant.
RONALD ISON, a minor, by and through his mother,
natural guardian and next friend, EDNA ISON SCOTT
Plaintiff,
Vv.
16a
; JON ALLAN MUSCOVIN and AMELIA C. MUSCOVIN,
Defendants,
and
UNITED STATES FIRE INSURANCE COMPANY,
Defendant, Third-Party Plaintiff,
Vv.
SELECTIVE INSURANCE COMPANY,
Third-Party Defendant.
Nos. C73274, C73284, C73289
EDNA ISON SCOTT,
Plaintiff,
V.
JON ALLAN MUSCOVIN and AMELIA C. MUSCOVIN,
Defendants,
and
UNITED STATES FIRE INSURANCE COMPANY,
Defendant, Third-Party Plaintiff,
V.
SELECTIVE INSURANCE COMPANY.
Third-Party Defendant.
Nos. C73272, C73277, C73285
EDWARD E. KOEHL, Administrator of the Estate of
CAROL E. KOEHL, Deceased,
Plaintiff,
v.
JOHN A. MUSKOVIN, Also known as
JOHN A. MUSKOVIN and AMELIA C. MUSKOVIN,
Defendants,
17a
and
UNITED STATES FIRE INSURANCE COMPANY,
Defendant Third-Party Plaintiff,
Vv.
SELECTIVE INSURANCE COMPANY,
Third-Party Defendant.
JUDGMENT ENTRY
(Entered October 14, 1975)
These cause came on to be heard upon the appeal on
questions of law, assignments of error, the narrative statement
of proceedings from the Court of Common Pleas of Hamilton
County, Ohio, the briefs and the arguments of counsel.
Upon consideration thereof, the Court finds that those
assignments of error which challenge the trial court’s judg-
ments entered without trial have merit and are sustained, for
the reasons set forth in the Decision filed herein and Made
a part hereof; further, we find the assignments of error rela-
tive to the trial court’s construction of the disputed portions
of the insurance policy issued by U.S. Fire to Amelia C.
Muskovin and Jon Allan Muskovin have no merit and are
overruled.
It is, therefore, Ordered by the Court that the four cases
are remanded to the Hamilton County Court of Common
Pleas for further proceedings according to law which may
include trial settings upon the pending supplemental com-
plaints filed by the plaintiffs-appellants and the appeals of
U.S. Fire, appellate numbers C73285 C73279 C73289 and
C73288, ought to be hereby are dismissed as being premature.
It is further Ordered that a mandate be sent to the Court _
18a
of Common Pleas of Hamilton County, Ohio, for execution
upon this judgment.
Costs to be taxes in compliance with Rule 24, Appellate
Rules.
And the Court being of the opinion that there were reason-
able grounds for this appeal, allows no penalty.
It is further Ordered that a certified copy of this Judgment,
with a copy of the Decision attached, shall constitute the
mandate pursuant to Rule 27, Ohio Rules of Appellate Pro-
cedure.
Exceptions noted.
19a
APPENDIX F
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
NO. C-73253
HENRY NEUHAUSSER, Administrator of the Estate of
SEPHEN NEUHAUSSER, Deceased, et al.,
Plaintiffs-Appellants,
Vv.
JON ALLEN MUSCOVIN, ET AL..,
De“endants-Appellees.
ENTRY OF OHIO COURT OF APPEALS OVERRULING
APPLICATIONS FOR RECONSIDERATION AND
MODIFICATION ENTERED NOVEMBER 7, 1975
(Entered November 7, 1975)
This cause came on to be heard by the Court upon the
applications of the appellants for reconsideration of the de-
cision and judgment entered herein and upon the memoran-
dum of United States Fire Insurance Company, appellee, in
opposition to said applications, and
The Court, being fully advised in the premises, finds that
said motion is not well taken and that the same ought to be,
and hereby is, overruled. )
ENTRY OVERRULING APPLICATIONS FOR RECON-
SIDERATION AND MODIFICATION. Shannon, P.J.
20a
APPENDIX G
Nos. C-77839 (Consolidated No.) C-77845
EDWARD E. KOEHL, Administrator of the Estate of
CAROL E. KOEHL, Deceased,
Plaintiff-Appellant,
v.
JOHN A. MUSCOVIN a/k/a JON A. MUSCOVIN
AMELIA C. MUSCOVIN,
Defendants-Appellants,
and
UNITED STATES FIRE INSURANCE COMPANY,
Defendant-Appellee and Third-Party Plaintiff,
Vv.
SELECTIVE INSURANCE COMPANY,
Third-Party Defendant.
Nos. C-77846, C-780007
RONALD ISON, a Minor, by and through his Mother,
Natural Guardian and Next Friend, EDNA ISON SCOTT,
Plaintiff-Appellant,
v.
JON ALLEN MUSCOVIN, AMELIA C. MUSCOVIN
and ROBERT W. VOGHT,
Defendants-Appellants,
and
UNITED STATES FIRE INSURANCE COMPANY,
Defendant-Appellee and Third-Party Plaintiff,
Vv.
2la
SELECTIVE INSURANCE COMPANY,
Third-Party Defendant.
Nos. C-77844, C-77854, C-780008
EDNA ISON SCOTT,
Plaintiff-Appellant,
v.
JON ALLEN MUSCOVIN and AMELIA C. MUSCOVIN,
Defendants-Appellants,
and
UNITED STATES FIRE INSURANCE COMPANY,
Defendant-Appellee and Third-Party Plaintiff,
Vv.
SELECTIVE INSURANCE COMPANY,
Third-Party Defendant.
Nos. C-77841, C-77847
HENRY NEUHAUSSER, Administrator of the Estate of
STEPHEN NEUHAUSSER, Deceased,
and HENRY NEUHAUSSER,
Plaintiffs-Appellants,
v.
JON ALLAN MUSCOVIN and AMELIA MUSCOVIN,
Defendants-Appellants,
and
UNITED STATES FIRE INSURANCE COMPANY,
Defendant-Appellee and Third-Party Plaintiff,
Vv.
SELECTIVE INSURANCE COMPANY,
22a
DECISION
(Filed March 21, 1979)
Messrs. Rosen & Rosen, Hyman B. Rosen of counsel, 1005 First
National Bank Building, Cincinnati, Ohio 45202, for Plaintiff-
Appellant, Edward E. Koehl, Administrator,
Messrs. Waite, Schindel, Bayless & Schneider, Stanley M.
Chesley of counsel, 1318 Central Trust Tower, Cincinnati,
Ohio 45202, for Plaintiffs-Appellants, Ronald Ison and Edna
Ison Scott,
Messrs. Beall, Hermanies & Bortz, Walter C. Beall of counsel,
200 Dixie Termina! Building, Cincinnati, Ohio 45202, for
Plaintiffs-Appellants, Henry Neuhausser, Administrator, and
Henry Neuhausser,
Messrs. Wesselmann & Renner, Russell W. Renner of counsel,
3526 Glenmore Avenue, Cincinnati, Ohio 45202, for Defen-
dants-Appellants, Jon Allen Muscovin and Amelia C. Musco-
vin,
Messrs. Lindhorst & Dreidame, James L. O’Connell of counsel,
1200 American Building, Cincinnati, Ohio 45202, for Defen-
dant and Third-Party Plaintiff and Appellee, United States
Fire Insurance Company.
PER CURIAM.
This cause came cn to be heard upon the appeal, the tran-
script of the docket, journal entries and original papers from
the Court of Common Pleas of Hamilton County, Ohio, the
briefs and oral arguments of counsel.
The caption of this decision includes all nine appellate case
numbers in order to obviate any uncertainty about which
cases are disposed of on this appeal. However, all said appeals
have been consolidated under number C-77839. Selective
Insurance Company is named in the caption, but is not in-
volved in this appeal. |
23a
I.
All matters now before us are the direct outgrowth of an
automobile accident which occurred in Cincinnati, Ohio, on
January 26, 1967, and the course of these cases has indeed
been regrettably protracted.
The accident twelve years ago resulted in:
(1) the death of Stephen Neuhausser and Carol Koehl,
and
(2) serious personal injuries to Ronald Ison.
These three were occupants of a motor vehicle operated on
the accident date by John Allen Muscovin, but owned by
Edward E. Koehl, father of Carol Koehl, one of the victims.
The instant parties were in the Court of Appeals in the fall
of 1975, all as appellants except United States Fire Insurance
Company, hereinafter U. S. Fire. They have returned now
in appellate roles similar to those enjoyed three and a half
years ago. We decided those earlier appeals -- twelve of
them — on October 14, 1975, under the consolidated case
number C-73253 (unreported). We explained in explicit lan-
guage in the decision that the twelve appeals raised only two
issues, as follows:
The first is whether the plaintiffs [appellants then and
now], with respect to the issues raised in their supple-
mental complaints, were denied due process in the pro-
cedure adopted by the trial court in its disposition there-
of. The second issue concerns the trial court’s interpreta-
tion of the language of certain portions of the insurance
policies before the trial court.
Simply stated, we agreed with appellants vis-a-vis the first
issue, we sustained those assignments of error which raised
it, and remanded for further proceedings according to law
which, we believed and decided, meant proceeding anew,
except as qualified by our decision on the second issue.
The second issue concerned the trial court’s interpretation
of certain insurance policy language. This issue was formu-
24a
lated for us by appellants’ assignments in C-73253, plus sub-
stantial portions of their briefs and extensive oral argument
in the Court of Appeals. We were compelled to consider
and decide issue number two.’ (It is noted parenthetically
that the form of appellants’ assignments of error in C-73253
was by no means ideal. The assignments were elliptical and
often vague. We interpreted them by a liberal resort to the
text of the briefs thereby constituting them manageable assign-
ments. ) ,
The disputed language of the insurance policy of U. S.
Fire follows:
“Persons Insured. The following are insureds under Part |:
(a) with respect to the owned automobile.
(1) the named insured and any resident of the
same household.
(2) any other person using such automobile with
the permission of the named insured, provided
his actual operation or (if he is not operating )
his other actual use thereof is within the scope
of such permission, and
(3) any other person or organization but only with
respect to his or its liability because of acts
or omissions of an insured under (a) (1) or
(2) above;
(b) with respect to a non-owned automobile,
(1) the named insured,
(2) any relative, but only with respect to a pri-
vate passenger automobile or trailer,
provided his actual operation or (if he is not oper-
ating) the other actual use thereof is with the per-
mission, or reasonably believed to be with the per-
mission, of the owner and is within the scope of
such permission, and
1 “All errors assigned and briefed shall be passed upon by the court
in writing, stating the reasons for the court’s decision as to each such
error.” App. R. 12(A).
25a
(3) any other person or organization not owning
or hiring the automobile, but only with respect
to his or its liability because of acts or omis-
sions of an insured under (b) (1) or (2)
above.
As we wrote in C-73253 (Oct. 14, 1975), the point of
disagreement between the appellants and U. S. Fire was
whether the previso clause with respect to permission con-
tained in (b) qualifies “the named insured” and “any relative”
— or only “any relative.” The plaintiffs-appellants’ position
was, and is, that the permission proviso does not qualify “the
named insured.” U. S. ‘ire, on the other hand, contends that
the proviso pertains to both (1) and (2) of (b). If the per-
mission proviso applies only to a relative, then the Muscovins
— mother and son — would be covered by the insurance
policy. However, if the permission exception applies both to
“any relative” and to “the named insured,” then the Muscovins
are not covered because both mother and son were named
insured and the son who was driving at the time of the
accident indisputably had no permission from the owner of
the automobile. The trial court held that the policy language
regarding permission “is a limitation on both the named in-
sured and the relative.” Thus, the Muscovins were not cov-
ered. We agreed with the trial court in our decision of
October 14, 1975, and our judgment entry of even date.?
On October 21, 1975, plaintiffs-appellants filed in the Court
of Appeals applications for reconsideration and for modifica-
2 The following appears in the judgment entry of October 14, 1975:
Upon consideration thereof, the Court finds that those assign-
ments of error which challenge the trial court’s judgments entered
without trial have merit and are sustained, for the reasons set forth
in the Decision filed herein and made a part hereof; further, we
find the assignments of error relative to the trial court’s construc-
tion of the disputed porticns of the insurance policy issued by
U. S. Fire to Amelia C. Muskovin [sic] and Jon Allan Muskovin
[sic] have no merit and are overruled. (Emphasis supplied. )
26a
tion of the judgment, with accompanying written argument.
The manifest thrust of those applications was appellants’ chal-
lenge to our interpreting the insurance policy language at all
— and additionally to our particular interpretation thereof.
We overruled the applications for reconsideration and modi-
fication of entry. No appeal of our judgment of October 14,
1975, was ever accomplished, but rather the parties returned
to the trial court below for trial pursuant to our mandate and
our affirmance of the trial court’s earlier interpretation of the
policy language — which, it is emphasized, was not appealed
although disapproved by the appellants in their 1975 briefs,
and especially pointedly in their application for reconsidera-
tion of our October 14, 1975, judgment.
II.
Thereafter, activity resumed in the court of common pleas.
The plaintiffs (appellants here) filed their motion for sum-
mary judgment against U. S. Fire which countered for sum-
mary judgment in its favor. Memoranda and affidavits were
filed by all the parties, and upon hearing, the court of com-
mon pleas granted the motion for summary judgment of U. S.
Fire. The court also overruled plaintiffs’ motion for summary
judgment and their motion for leave to file amended supple-
mental complaints against U. S. Fire. Plaintiffs also desired
to make Robert W. Vogt a new party defendant. The appeals
now before us ensued with the appellants presenting five
assignments of error. We consider the first two together
since they raise the single issue of the correctness of the
order granting the motion of U. S. Fire for summary judgment
and overruling the plaintiffs’ motions for summary judgment.
The trial court complied with Civ. R. 56 in granting the
motion for summary judgment of U. S. Fire. We find no
error in the ruling. Most of appellant’s briefs with respect
to these initial assignments is devoted to challenging the trial
<1 epee
27a
court in refusing to admit that reasonable minds could come
to more than one conclusion concerning the meaning of the
disputed insurance policy language. The trial judge (Judge
Gusweiler) was not at that juncture free to entertain such
a possibility. He had no choice but to accept as the con-
trolling law of the case that the only interpretation that could
be placed on the subject language was that which the Court
of Appeals had decided in affirming the interpretation given
by the judge before whom the matter originally had come.
For Judge Gusweiler to have held that the interpretation of
the policy language was undecided would have been un-
tenable. By that time, the appellants had received an un-
favorable ruling on construction of the policy by the first trial
judge, had appealed the ruling, had ascribed error in said
ruling in its appellate assignments and briefs, had lost in the
Court of Appeals, had moved for reconsideration of the un-
favorable appellate judgment, were unsuccessful in that en-
deavor, failed to seek a review by the Supreme Court, and
were back in the court of common pleas attempting to start
all over again oblivious to the meaningful developments which
already had transpired, and especially the adjudication by the
Court of Appeals. Moreover, arguments in appellants’ briefs
notwithstanding, we find nothing in the policy which pro-
vides any justification for differentiating between Mrs. Mus-
covin and her son with respect to coverage. Assignments
one and two lack merit. We overrule them. To decide other-
wise would be to conclude that the earlier appeal — with its
issues — and the judgment in connection therewith, were for
all intents and purposes, meaningless.?
3 The fact bears emphasis that when the appellants came to the
Court of Appeals in C-73253, with respect to interpretation of the policy
language, the thrust of their position was not that the trial court should
not have construed the disputed language, but that the court interpreted
it wrong. That was the issue presented to us. Horeover, much authority
exists jurstifying the original trial court’s construction of the policy. The
respective provinces and functions of the court and jury in reference to
the construction of contracts, including insurance policies, depend on
28a
The verbatim third assignment asserts:
The trial court erred in overruling plaintiffs’ motion for
leave to file amended and supplemental complaints
against the United States Fire Insurance Co., defendant
and to make Robert W. Vogt a party defendant.
Whether to grant leave to file further supplemental complaints
against U. S. Fire and to make Vogt a party defendant were
discretionary with Judge Gusweiler. We discern no abuse
of the court's discretion. Being devoid of merit, the assign-
ment is overruled.
The penultimate challenge claims that the court below
erred in failing to submit the cases of the plaintiffs-appellants
to trial by a jury. If the requirements of Civ. R. 56 are satis-
fied, as we have herein decided they were, and the court
grants a motion for summary judgment (as here), then trial
to court or jury is not indicated. The fourth assignment fails.
That “the judgments are contrary to law” is the contention
of the last assignment. In the one sentence accompanying
this assignment we are invited to consider the arguments
urged in support of the previous assignments of error. We
have studied all the arguments offered in the briefs and find
nothing which would validate this assignment. It is overruled.
Thus, we affirm the judgments below.
KEEFE, P. J.. SHANNON and CASTLE, JJ.
PLEASE NOTE:
The Court has placed of record its own entry in this case
on the date of the release of this Decision.
many considerations, but the interpretation of a printed instrument often
is exclusively for the court. 88 C. J. S. Trial § 217; 52 O. Jur. 2d Trial
§ 97. Cf. Olmstead vy. Lumbermens Mutl. Ins. Co. (1970), 22 Ohio
St. 2d 212, 259 N.E.2d 123.
SO
29a
APPENDIX H
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
Nos. C-77839 (Consolidated No.) C-77845
EDWARD E. KOEHL, Administrator of the Estate of
CAROL E. KOEHL, Deceased,
Appellant,
v.
JOHN A. MUSCOVIN a/k/a JON A. MUSCOVIN
and AMELIA C. MUSCOVIN,
Appellants,
and
UNITED STATES FIRE INSURANCE COMPANY,
Appellee and Third-Party Plaintiff,
V.
SELECTIVE INSURANCE COMPANY,
Third-Party Defendant.
Nos. C-77846, C-780007
RONALD ISON, a Minor, by and through his Mother,
Natural Guardian and Next Friend, EDNA ISON SCOTT,
Appellant,
Vv.
30a
JON ALLEN MUSCOVIN, AMELIA C MUSCOVIN
and ROBERT W. VOGT,
Appellants,
and
UNITED STATES ¢ 2... 1NSURANCE COMPANY,
Appellee and Third-Party Plaintiff,
Vv.
SELECTIVE INSURANCE COMPANY,
Third-Party Defendant.
Nos. C-77844, C-77854, C-780008
EDNA ISON SCOTT,
Appellant,
v.
JON ALLAN MUSCOVIN and AMELIA C. MUSCOVIN,
Appellants,
and
UNITED STATES FIRE INSURANCE COMPANY,
Appellee and Third-Party Plaintiff,
V.
SELECTIVE INSURANCE COMPANY,
Third-Party Defendant.
Nos. C-77841, C-77847
HENRY NEUHAUSSER, Administrator of the Estate of
STEPHEN NEUHAUSSER, Deceased,
and HENRY NEUHAUSSER,
Appellants,
V.
3la
JON ALLAN MUSCOVIN and AMELIA MUSCOVIN,
Appellants,
and
UNITED STATES FIRE INSURANCE COMPANY,
Appellee and Third-Party Plaintiff,
V.
SELECTIVE INSURANCE COMPANY,
Third-Party Defendant.
JUDGMENT ENTRY
(Entered March 21, 1979)
These causes came on to be heard upon the appeals on
questions of law, assignments of error, the records from the
Court of Common Pleas of Hamilton County, Ohio, the briefs
and the arguments of counsel.
Upon consideration thereof, the Court finds that the assign-
ments of error are not well taken for the reasons set forth
in the Decision filed herein and made a part hereof.
It is, therefore, Ordered by the Court that the judgments
of the Court of Common Pleas of Hamilton County, Ohio, be,
and the same hereby are, affirmed.
It is further Ordered that a mandate be sent to the Court
of Common Pleas of Hamilton County, Ohio, for execution
upon this judgment.
Costs to be taxed in compliance with Rule 24, Appellate
Rules.
And the Court being of the opinion that there were rea-
sonable grounds for this appeal, allows no penalty.
It is further Ordered that a certified copy of this Tudg-
ment, with a copy of the Decision attached, shall constitute
the mandate pursuant to Rule 27, Ohio Rules of Appellate
Procedure.
To all of which counsel except.
32a
APPENDIX I
COURT OF COMMON PLEAS
HAMILTON COUNTY, OHIO
No. A-232481
HENRY NEUHAUSSER, Administrator of the Estate of
STEPHEN NEUHAUSSER, Deceased
and
HENRY NEU siAUSSER,
Plaintiffs,
V.
JON ALLAN MOSCOVIN,
Defendant,
and
AMELIA MUSCOVIN,
Defendant,
and
UNITED STATES FIRE INSURANCE COMPANY,
Defendant, Third-Party Plaintiff,
V.
SELECTIVE INSURANCE COMPANY,
Third-Party Defendant.
No. A-235384
RONALD ISON, a minor, by and through his mother,
Natural guardian, and next friend, EDNA ISON SCOTT,
Plaintiff,
v.
33a
JOHN ALLEN MUSCOVIN and AMELIA C. MUSCOVIN,
Defendants,
and
UNITED STATES FIRE INSURANCE COMPANY,
Defendant, Third Party Plaintiff,
V.
SELECTIVE INSURANCE COMPANY,
Third-Party Defendant.
No. A-235385
EDNA ISON SCOTT,
Plaintiff,
V.
JOHN ALLEN MUSCOVIN and AMELIA C. MUSCOVIN,
Defendants,
and
UNITED STATES FIRE INSURANCE COMPANY.
Defendant, Third Party Plaintiff,
Vv.
SELECTIVE INSURANCE COMPANY,
Third-Party Defendant.
No. A-236200
EDWARD E. KOEHL. Administrator of the Estate of
CAROL E. KOEHL, Deceased.
Plaintiff,
V.
34a
JOHN A. MUSKOVIN, also known as JON A. MOSKOVIN
and AMELIA C. MUSKOVIN,
Defendants,
and
UNITED STATES FIRE INSURANCE COMPANY,
Defendant, Third Party Plaintiff,
V.
SELECTIVE INSURANCE COMPANY,
Third-Party Defendant.
OPINION
(Dated July 10, 1972)
MATTHEWS, J.:
By agreement of counsel these four cases were consolidated
for submission to this branch of this court on supplemental
petitions of plaintiffs and defendants’ answer and third-party
complaints and joint stipulation. The third-party defendant
did not file an answer but agreed through counsel to submit
the matter as a question of law to this court.
Facts as needed for a determination of the issues are gen-
erally that on January 26, 1967, one John (or Jon) Muscovin,
a minor less than eighteen (18) years old, without permission,
entered and operated a 1962 Ford automobile owned by one
Edward Koehl. Johnson was the son of Alfred J. and Amelia
C. Muscovin and Amelia had signed her son’s application for
driver's license pursuant to Revised Code Section 4507.07,
making her jointly and severally liable for any negligence or
willful or wanton misconduct of John in the operation of a
motor vehicle.
At that time there was in full force and effect automobile
liability policy #646827 issued by the third-party defendant
Selective Insurance Company, covering the Koehl automobile.
Dice awe ms Res drenet en
35a
On that date there was in full force and effect an automo-
bile liability insurance policy issued by the defendant, third-
party plaintiff, United States Fire Insurance Co., No. FAC
51 59 74. That policy had as named insured, Alfred J.
Muskovin and Amelia C. Muskovin. It also had an endorse-
ment for which an additional premium was paid naming an
“added operator — Jon Allen Muskovin 12/20/49 D.T.”
While John was operating the Koehl automobile he was
involved in an accident which resulted in the deaths of Stephen
Neuhausser and Carol Koehl and in serious personal injury
to Ronald Ison, all of whom were occupants of the Koehl
motor vehicle at that time. These four actions for wrongful
death or personal injuries were filed against John Muscovin
and Amelia Muscovin with all plaintiffs claiming Amelia liable
under Revised Code Section 4507.07. The Insurance Com-
panies were tendered the defense of all four actions and both
declined. Defendants John and Amelia Muscovin employed
private counsel who filed answers but waived trial by jury
and actually offered no defense and judgments were obtained
in all four actions against those two defendants. These judg-
ments are all unsatisfied, unreversed and unmodified. There-
after, supplemental complaints were filed in each action and
thereafter third-party complaints were filed in each action by
the United States Fire Insurance Company against the third-
party defendant Selective Insurance Company.
Thereafter, the cases were consolidated for trial on the
supplemental complaints and_ third-party complaints with
counsel agreeing the matter would be submitted on the agreed
stipulation. United States Fire Insurance Company policy
named in Item 1, Alfred J. Muskovin and Amelia C. Muskovin,
and in the endorsement named as “Added Operator -- Jon
Muskovin.” The insuring agreement of the policy provides:
“Coverage A — Bodily Injury Liability; Coverage B —
Property Damage Liability. To pay on behalf of the
Insured all sums which the insured shall become legally
obligated to pay as damages because of:
36a
A. bodily injury, sickness or disease, including death
resulting therefrom, hereinafter called “bodily in-
jury,” sustained by any person;
B. injury to or destruction of property, including loss of
use thereof, hereinafter called “property damage”;
arising out of the ownership, maintenance or use of the
owned automobile or any non-owned automobile, and the
company shall defend any suit alleging such bodily injury
or property damage and seeking damages which are pay-
able under the terms of this policy, even if any of the
allegations of the suit are groundless, false or fraudulent;
but the company may make such investigation and settle-
ment of any claim or suit as it deems expedient.”
Selective Insurance Company policy had as the named insured
“Edward E. Koehl” and under “Persons Insured” provides:
“(a) with respect to the owned automobile.
(1) the named insured and any resident of the
same household,
(2) any other person using such automobile with
the permission of the named insured, pro-
vided his actual operation or (if he is not
operating) his other actual use thereof is
within the scope of such permission, and
(3) any other person or organization but only
with respect to his or its liability because of
acts or omissions of an insured under (a)
(1) or (2) above,”
The question to be determined is whether either or both
policies insure the defendants Muscovin. If both insure them,
the defendant third-party plaintiff offers only excess coverage.
We examine first the provisions of the Selective Insurance
Company coverage because normally insurance coverage fol-
lows the car, not the insured.
37a
The defendants Muscovin were not (1) the named insured
or a resident of the named insured’s household (2) using such
automobile with the permission of the named insured and
(3) they neither one are “an insured under (a), (1) or (2).”
Therefore, this Court concludes that neither of the defen-
dants Muscovin can qualify as an insured under the Selective
policy.
In looking at the insurance coverage offered under the pro-
visions with respect to a non-owned automobile under the
United States Fire Insurance Company policy, Amelia Musco-
vin is named in Item 1 of the policy as the named insured and
this policy provides that with respect to a non-owned auto-
mobile persons insured are (1) the named insured, (2) any
relative, but only with respect to a private passenger automo-
bile or trailer, provided his actual operation is with the per-
mission or reasonably believed to be with the permission of
the owner.
Counsel for plaintiff by their memoranda argued that the
permission portion of the non-owned automobile pertains only
to (2) “any relative” and not to (1) the named insured.
To remove the figures and indentations from the language,
omitting some clauses and leave the sentence as it is written,
we find that it says:
“The following are insureds with respect to a non-owned
automobile, the named insured, any realtive, provided
his actual operation is with the permission of the owner.”
The determining question in this matter boils down to
whether or not the language regarding “permission” modifies
both the named insured and any relative or just any relative.
This Court is of the opinion that the question involved is
answered in a very properly reasoned opinion in the case of
Bright v. Chio Casualty Insurance Company, found in 444
Federal 2d, at page 1341.
This Court is of the opinion that the language regarding
“permission” is a limitation on both the named insured and
the relative.
38a
The Court finds for the third party defendant on the third
party plaintiffs complaint and for the defendant on the sup-
plemental complaint.
APPEARANCES:
WALTER C. BEALL,
Attorney for Plaintiff Henry Neuhausser
STANLEY M. CHESLEY,
Attorney for Plaintiffs Ronald Ison and Edna Ison Scott
ROSEN & ROSEN,
Attorneys for Plaintiff Edward E. Koehl, Administrator
RUSSELL W. RENNER,
Attorney for Defendants Muscovin
JAMES L. O'CONNELL,
Attorney for Defendant United States Fire Insurance Co.
GORDON C. GREENE,
Attorney for Defendant Selective Insurance Co.
July 10, 1972.
Te eee ee Te ee ee
39a
APPENDIX J
COURT OF COMMON PLEAS
HAMILTON COUNTY, OHIO
No. A-232481
HENRY NEUHAUSSER, Administrator of the Estate of
STEPHEN NEUHAUSSER, Deceased
and
HENRY NEUHAUSSER,
Plaintiffs,
V.
JON ALLAN MOSCOVIN,
AMELIA MUSCOVIN,
ROBERT W. VOGT,
UNITED STATES FIRE INSURANCE COMPANY.
and
SELECTIVE INSURANCE COMPANY,
Defendants.
JUDGMENT ENTRY
(Entered May 29, 1973)
(/s/ MATTHEWS, J.)
This maicer came on to be heard upon the pleadings, the
stipulation of the parties and the memoranda of counsel.
The Court finds in favor of the Defendant, United States
Fire Insurance Company, on the Plaintiffs’ supplemental Peti-
tion (Complaint) against the Defendant, United States Fire
Insurance Company, and hereby enters final judgment on said
LS LL TET ee
40a
supplemental Petition (Complaint) in favor of the Defendant,
United States Fire Insurance Company, and against the Plain-
tiffs, at the costs of the Plaintiffs.
On the third party Complaint of the Defendant-Third Party
Plaintiff, United States Fire Insurance Company, against the
Third Party Defends: * Selective Insurance Company, the
Court finds in favor of tz said Third Party Defendant, Selec-
tive Insurance Company, and hereby and herewith enters
final judgment on said Third Party Complaint in favor of
said Third Party Defendant, Selective Insurance Company,
and against the Defendant-Third Party Plaintiff, United States
Fire Insurance Company.
ee ene ee “
APPENDIX Ix
COURT OF COMMON PLEAS
HAMILTON COUNTY, OHIO
HENRY NEUHAUSSER, Administrator of the Estate of
STEPHEN NEUHAUSSER, Deceased
and
HENRY NEUHAUSSER,
Plaintiffs,
V.
JON ALLAN MUSCOVIN and AMELIA MUSCOVIN,
Defendants,
and
UNITED STATES FIRE INSURANCE CO.,
Defendant, Third-Party Plaintiff.
V.
SELECTIVE INSURANCE CO.,
Third-Party Defendant.
JUDGMENT ENTRY
(Entered May 29, 1973)
(/s/ MATTHEWS, J.)
This matter came on to be heard upon the pleadings, the
stipulation of the parties and the memoranda of counsel and
was, by agreement of the parties, submitted to the Court for
a decision upon the merits. There is some controversy among
j
3
42a
the parties as to whether one or more of the parties anticipated
or desired oral argument in connection with the Court’s
determination of the issues submitted, but no written request
for oral argument was made by any party prior to July 10,
1972.
The Court finds that the said pleadings and stipulation con-
tain all of the facts necessary for the Court to make a deter-
mination, as a matter of law, of the issues raised by the plain-
tiffs’ supplemental petition (complaint) against the defen-
dant, United States Fire Insurance Company.
On July 10, 1972, without hearing any oral argument from
any party but upon consideration of all of the foregoing, the
Court filed its opinion in this case which opinion the Court
now ratifies and adopts and makes a part of this entry by
reference, and the Court now finds in favor of the defendant,
United States Fire Insurance Company, on the plaintiffs’
supplemental petition (complaint) against the defendant,
United States Fire Insurance Company, and hereby and here-
with enters final judgment on said supplemental petition
(complaint) in favor of the defendant, United States Fire
Insurance Company, and against the plaintiffs, at the costs
of the plaintiffs.
On the third party complaint of the defendant-third party
plaintiff, United States Fire Insurance Company, against the
third party defendant, Selective Insurance Company, the Court
finds in favor of the said third party defendant, Selective In-
surance Company, and hereby and herewith enters final judg-
ment on said third party complaint in favor of said third
party defendant, Selective Insurance Company, and against
the defendant-third party plaintiff, United States Fire Insur-
ance Company.
On July 19, 1972, the plaintiffs filed their motion to set this
case for trial, and the Court, upon consideration, finds that,
under the aforesaid pleadings, stipulation and memoranda,
there is no factual determination necessary for a resolution of
the issues presented by the plaintiffs’ supplemental petition
(complaint) against the defendant, United States Fire Insur-
DPE Lei pei The Cpa ears Sad ne ot S
<i ynt Dki aa ceee sled
43a
ance Company, and that the said motion to set this case for
trial is not well taken and hereby and herewith overrules the
same.
On December 21, 1972, at a meeting between the Court and
counsel, at which time the Court directed the preparation of
chis Entry, the position of the plaintiffs and of the defendants,
Jon Allan Muscovin and Amelia Muscovin, was that they did
not wish to present oral argument subsequent to this Court’s
opinion rendered on July 10, 1972, because such opinion in-
dicated that this Court had already reached certain conclusions
in connection with this case. The Court, in making the fore-
going orders, is cognizant of the stated position of such parties.
Appropriate exceptions are reserved to the parties as to all
of the foregoing.
On November 8, 1972, the plaintiffs filed their motion for
leave to file and serve their further amended and supplemental
complaint and for leave to issue summons on Robert W. Vogt
as a new party-defendant, and on November 9, 1972, the de-
fendants, Jon Allan Muscovin and Amelia Muscovin, filed their
motion for leave to file a cross-claim and for leave to issue
summons on Robert W. Vogt as a new party-defendant. Both
of said motions remain pending, and the foregoing Entry shall
not affect such motions in any way. It is further ordered
that the within action be re-assigned to another Judge of this
Court for determination of those motions not determined by
this Entry and for any and all further proceedings in this case
not connected with the matters determined by this Entry.
44a
APPENDIX L
_—<-————-—
COURT OF COMMON PLEAS
HAMILTON COUNTY, OHIO
No. A-236200
EDWARD E. KOEHL, Administrator of the Estate of
CAROL E. KOEHL, Deceased,
Plaintiff,
v.
JOHN A. MUSKOVIN, also known as JON A. MOSKOVIN
and
AMELIA C. MUSKOVIN,
Defendants,
and
UNITED STATES FIRE INSURANCE COMPANY.
Defendant, Third Party Plaintiff,
V.
SELECTIVE INSURANCE COMPANY,
Third-Party Defendant.
JUDGMENT ENTRY
(Entered May 29, 1973)
(/s/) MATTHEWS, J.)
This cause came on to be heard on the pleadings, stipula-
tion, memoranda, and the motions of the plaintiff herein to
set the case for trial and to file and serve plaintiffs Amended
Supplemental Complaint, without the presentment of evidence
45a
or trial had, on consideration of which the Court overrules
said motion to set the case for trial.
Further, pursuant to the oral request of the plaintiff, the
Court refers the motion of the plaintiff to file and serve an
Amended Supplemental Complaint on behalf of the plaintiff
to the Assignment Commissioner of the Court to be assigned
for hearing to another Judge of this Court in accordance with
the rules of this Court, so that said motion remains pending
and unaffected by the Court’s ruling on the merits, as here-
after set forth herein.
The Court finds on the merits without trial had in favor of
the defendant, United States Fire Insurance Company, on
the plaintiff's Supplemental petition (complaint) against the
defendant, United States Fire Insurance Company, and here-
by and herewith enters final judgment on said supplemental
petition (complaint) in favor of the defendant, United States
Fire Insurance Company, and against the plaintiff, at the costs
of the plaintiff.
On the third party complaint of the defendant-third party
plaintiff, United States Fire Insurance Company, against the
third party defendant, Selective Insurance Company, the
Court finds without trial had in favor of the said third party
defendant, Selective Insurance Company, and hereby here-
with enters final judgment on said third party complaint in
favor of said third party defendant, Selective Insurance Com-
pany, and against the defendant-third party plaintiff, United
States Fire Insurance Company.
Appropriate exceptions are reserved to the respective parties
as to all of the foregoing.
© riabs ae
46a
APPENDIX M
COURT OF COMMON PLEAS
HAMILTON COUNTY, OHIO
No. A-236200
EDWARD E. KOEHL, Administrator of the Estate of
CAROL E. KOEHL, Deceased,
Plaintiff,
V.
JOHN A. MUSKOVIN, also known as JON A. MOSKOVIN
and
AMELIA C. MUSKOVIN,
Defendants,
and
UNITED STATES FIRE INSURANCE COMPANY,
Defendant, Third Party Plaintiff,
V.
SELECTIVE INSURANCE COMPANY,
Third-Party Defendant.
JUDGMENT ENTRY
(Entered May 29, 1973)
(/s/ MATTHEWS, J.)
This matter came on to be heard upon the pleadings, the
stipulation of the parties and the memoranda of counsel and
was, by agreement of the parties, submitted to the Court for
a decision upon the merits. There is some controversy among
i ee
47a
the parties as to whether one or more of the parties anticipated
or desired oral argument in connection with the Court’s de-
termination of the issues submitted, but no written request
for oral argument was made by any party prior to July 10,
1972.
The Court finds that the said pleadings and stipulation
contain all of the facts necessary for the Court to make a
determination, as a matter of law, of the issues raised by the
plaintiffs supplemental petition (complaint) against the de-
fendant, United States Fire Insurance Company.
On July 10, 1972, without hearing any oral argument from
any party but upon consideration of all of the foregoing, the
Court filed its opinion in this case which opinion the Court
now ratifies and adopts and makes a part of the Entry by
reference, and the Court now finds in favor of the defendant,
United States Fire Insurance Company, on the plaintiff's sup-
plemental petition (complaint) against the defendant, United
States Fire Insurance Company, and hereby and herewith
enters final judgment on said supplemental petition (com-
plaint) in favor of the defendant, United States Fire Insur-
ance Company, and against the plaintiff, at the costs of the
plaintiff.
On the third party complaint of the defendant-third party
plaintiff, United States Fire Insurance Company, against the
third party defendant, Selective Insurance Company, the Court
finds in favor of the said third party defendant, Selective
Insurance Company, and hereby and herewith enters final
judgment on said third party complaint in favor of said third
party defendant, Selective Insurance Company, and against
the defendant-third party plaintiff, United States Fire Insur-
ance Company.
On July 19, 1972, the plaintiff filed his motion to set this
case for trial, and the Court, upon consideration, finds that,
under the aforesaid pleadings, stipulation and memoranda,
there is no factual determination necessary for a resolution
of the issues presented by the plaintiff's supplemental petition
(complaint) against the defendant, United States Fire Insur-
48a
ance Company, and that the said motion to set this case for
trial is not well taken and hereby and herewith overrules
the same.
On December 21, 1972, at a meeting between the Court
and counsel, at which time the Court directed the preparation
of this Entry, the position of the plaintiff and of the defen-
dants, John A. Muskovin, also known as Jon A. Muscovin,
and Amelia C. Muskovin, was that they did not wish to
present oral argument subsequent to this Court’s opinion
rendered on July 10, 1972, because such opinion indicated
that this Court had already reached certain conclusions in
connection with this case. The Court, in making the fore-
going orders, is cognizant of the stated position of such par-
ties.
Appropriate exceptions are reserved to the parties as to all
of the foregoing.
On November 1, 1972, the plaintiff filed his motion for leave
to file and serve his further amended and supplemental com-
plaint and for leave to issue summons on Robert W. Vogt
as a new party-defendant, and on November 9, 1972, the
defendants, John A. Muskovin, also known as Jon A. Musco-
vin, and Amelia C. Muskovin, filed their motion for leave
to file a cross-claim and for leave to issue summons on Robert
W. Vogt as a new party-defendant. Both of said motions
remain pending, and the foregoing Entry shall not affect such
motions in any way. It is further ordered that the within
action be re-assigned to another Judge of this Court for deter-
mination of those motions not determined by this Entry and
for any and a4] further proceedings in this case not connected
with the matters determined by this Entry.
AaNeRe Ae
WD abe 04 Sac aie Vi TY
- Bes Beals wat Abe naan ope.
49a
APPENDIX N
COURT OF COMMON PLEAS
HAMILTON COUNTY, OHIO
No. A-235384
RONALD ISON, a minor, by and through his mother,
natural guardian and next friend, EDNA ISON SCOTT,
Plaintiff,
v.
JOHN ALLEN MUSCOVIN and AMELIA C. MUSCOVIN
and ROBERT W. VOGT,
Defendants,
and
UNITED STATE FIRE INSURANCE CO.,
Defendant, Third Party Plaintiff,
Vv.
SELECTIVE INSURANCE CO.,
Third-Party Defendant.
JUDGMENT ENTRY
(Entered May 29, 1973)
(/s/ MATTHEWS, J.)
This cause came on to be heard on the pleadings, stipula-
tion, memoranda, and the motions of the plaintiff herein to
set the case for trial and to file and serve plaintiff's Amended
Supplemental Complaint, without presentment of evidence
or trial had, on consideration of which the Court overrules
said motion to set the case for trial.
50a
Further, pursuant to the oral request of the plaintiff, the
Court refers the motion of the plaintiff to file and serve an
amended supplemental complaint on behalf of the plaintiff
to the Assignment Commissioner of the Court to be assigned
for hearing to another Judge of this Court in accordance with
the rules of this Court, so that said Motion remains pending
and unaffected by the Court’s ruling on the merits, as here-
after set forth herein.
The Court finds on the merits, without trial, in favor of
the defendant, United States Fire Insurance Company, on the
plaintiff's Supplemental petition (Complaint) against the de-
fendant, United States Fire Insurance Company, and hereby
and herewith enters final judgment on said supplemental
petition (complaint) in favor of the defendant, United States
Fire Insurance Company, and against the plaintiff, at the costs
of the plaintiff.
On the third party complaint of the defendant-third party
plaintiff, United States Fire Insurance Company, against the
third party defendant, Selective Insurance Company, the
Court finds in favor of the said third party defendant, Selec-
tive Insurance Company, without trial, and hereby herewith
enters final judgment on said third party complaint in favor
of said third party defendant, Selective Insurance Company,
and against the defendant-third party plaintiff, United States
Fire Insurance Company.
Appropriate exceptions are reserved to the respective par-
ties as to all of the foregoing.
ee Rb ae Ww «2a Re Shard ew BlelR Ta a he
eta
Se
DR De TONS IT RL A Ben SAR tal a POE oS sl NS LC a ls Pate Si A
ne NY ee Ce ee. ee Lad ees ce +.
5la
APPENDIX O
COURT OF COMMON PLEAS
HAMILTON COUNTY, OHIO
RONALD ISON, a minor, by and through his mother,
natural guardian and next friend, EDNA ISON SCOTT,
Plaintiff,
V.
JOHN ALLAN MUSCOVIN and AMELIA C. MUSCOVIN,
Defendants,
and
UNITED STATES FIRE INSURANCE COMPANY,
Defendant, Third Party Plaintiff,
V.
SELECTIVE INSURANCE COMPANY,
Third-Party Defendant.
JUDGMENT ENTRY
(Entered May 29, 1973)
(/s/ MATTHEWS, J.)
This matter came on to be heard upon the pleadings, the
stipulation of the parties and the memoranda of counsel and
was, by agreement of the parties, submitted to the Court for
a decision upon the merits. There is some controversy among
the parties as to whether one or more of the parties anticipated
or desired oral argument in connection with the Court’s de-
termination of the issues submitted, but no written request
Se ee
52a
for oral argument was made by any party prior to July 10,
1972.
The Court finds that the said pleadings and stipulation
contain all of the facts necessary for the Court to make a
determination, as a matter of law, of the issues raised by the
plaintiffs supplemental petition (complaint) against the de-
fendant, United States Fire Insurance Company.
On July 10, 1972, without hearing any oral argument from
any party but upon consideration of all of the foregoing, the
Court filed its opinion in this case which opinion the Court
now ratifies and adopts and makes a part of the Entry by
reference, and the Court now finds in favor of the defendant,
United States Fire Insurance Company, on the plaintiffs sup-
plemental petition (complaint) against the defendant, United
States Fire Insurance Company, and hereby and herewith
enters final judgment on said supplemental petition (com-
plaint) in favor of the defendant, United States Fire Insur-
ance Company, and against the plaintiff, at the costs of the
plaintiff.
On the third party complaint of the defendant-third party
plaintiff, United States Fire Insurance Company, against the
third party defendant, Selective Insurance Company, the
Court finds in favor of the said third party defendant, Selec-
tive Insurance Company, and hereby and herewith enters
final judgment on said third party complaint in favor of said
third party defendant, Selective Insurance Company, and
against the defendant-third party plaintiff, United States Fire
Insurance Company.
On July 19, 1972, the plaintiff filed his motion to set this
case for trial, and the Court, upon consideration, finds that,
under the aforesaid pleadings, stipulation and memoranda,
there is no factual determination necessary for a resolution
of the issues presented by the plaintiff's supplemental petition
(complaint) against the defendant, United States Fire Insur-
ance Company, and that the said motion to set this case for
trial is not well taken and hereby and herewith overrules the
same. .
gt Vatnint toe eB
Oy Pen eI eee re eee
AEE Ta PCRS le i) has Sta
eS ae ee eee
AT TaD ADL a tae
Spe SS ke Weta Pe eke
ee ee
53a
On December 21, 1972, at a meeting between the Court and
counsel, at which time the Court directed the preparation of
this Entry, the position of the plaintiff and of the defendants,
John Allan Muscovin and Amelia C. Muscovin, was that they
did not wish to present oral argument subsequent to this
Court’s opinion rendered on July 10, 1972, because such opin-
ion indicated that this Court had already reached certain con-
clusions in connection with this case. The Court, in making
the foregoing orders, is cognizant of the stated position of such
parties.
Appropriate exceptions are reserved to the parties as to all
of the foregoing.
On November 1, 1972, the plaintiff filed his motion for leave
to file and serve his further amended and supplemental com-
plaint and for leave to issue summons on Robert W. Vogt as
a new party-defendant, and on November 9, 1972, the defen-
dants, John Allan Muscovin and Amelia C. Muscovin, filed
their motion for leave to file a cross-claim and for leave to
issue summons on Robert W. Vogt as a new party-defendant.
Both of said motions remain pending, and the foregoing Entry
shall not affect such motions in any way. It is further ordered
that the within action be re-assigned to another Judge of this
Court for determination of those motions not determined by
this Entry and for any and all further proceedings in this case
not connected with the matters determined by this Entry.
54a
APPENDIX P
COURT OF COMMON PLEAS
HAMILTON COUNTY, OHIO
-_-
No. A-235385
EDNA ISON SCOTT,
Plaintiff,
v.
JOHN ALLEN MUSCOVIN and AMELIA C. MUSCOVIN
and ROBERT W. VOGT,
Defendants,
and
UNITED STATES FIRE INSURANCE CO.,
Defendant, Third Party Plaintiff,
V.
SELECTIVE INSURANCE COMPANY,
Third-Party Defendant.
JUDGMENT ENTRY
(Entered May 29, 1973)
(/s/) MATTHEWS, J.)
This cause came on to be heard on the pleadings, stipulation,
memoranda, and the motions of the plaintiff herein to set the
case for trial and to file and serve plaintiffs Amended Supple-
mental Complaint, without presentment of evidence or trial
had, on consideration of which the Court overrules said motion
to set the case for trial.
Se ARPA ls TENS NY il BEN iySa Da ayia cine Pebink
As Ca PON eS, Urata adie Be PPLE Hoc ee
je ind ab reat aha
a ee aI ae Ne Tas A New
ACER Dt sgncs dBnidt,
55a
Further, pursuant to the oral request of the plaintiff, the
Court refers the motion of the plaintiff to file and serve an
Amended Supplemental Complaint on behalf of the plaintiff
to the Assignment Commissioner of the Court to be assigned
for hearing to another Judge of this Court in accordance with
the rules of this Court, so that said Motion remains pending
and unaffected by the Court’s ruling on the merits, as hereafter
set forth herein.
The Court finds on the merits, without trial, in favor of the
defendant, United States Fire Insurance Company, on the
plaintiff's Supplemental Petition (Complaint) against the de-
fendant, United States Fire Insurance Company, and hereby
and herewith enters final judgment on said supplemental peti-
tion (complaint) in favor of the defendant, United States Fire
Insurance Company, and against the plaintiff, at the costs of
the plaintiff.
On the third party complaint of the defendant-third party
plaintiff, United States Fire Insurance Company, against the
third party defendant, Selective Insurance Company, the Court
finds in favor of the said third party defendant, Selective In-
surance Company, without trial, and hereby herewith enters
final judgment on said third party complaint in favor of
said third party defendant, Selective Insurance Company, and
against the defendant-third party plaintiff, United States Fire
Insurance Company.
Appropriate exceptions are reserved to the respective parties
as to all of the foregoing.
56a
APPENDIX Q
COURT OF COMMON PLEAS
HAMILTON COUNTY, OHIO
No. A-235385
EDNA ISON SCOTT,
Plaintiff,
Vv.
JOHN ALLAN MUSCOVIN and AMELIA C. MUSCOVIN,
Defendants,
and
UNITED STATES FIRE INSURANCE COMPANY,
Defendant, Third Party Plaintiff,
V.
SELECTIVE INSURANCE COMPANY,
Third-Party Defendant.
JUDGMENT ENTRY
(Entered May 29, 1973)
(/s/ MATTHEWS, J.)
This matter came on to be heard upon the pleadings, the
stipulation of the parties and the memoranda of counsel and
was, by agreement of the parties submitted to the Court for
a decision upon the merits. There is some controversy among
the parties as to whether one or more of the parties anticipated
or desired oral argument in connection with the Court’s de-
termination of the issues submitted, but no written request
4
ET” ae
Bie CO RR a RAN Sethe ME ERNE Shas Et
RRND So seein eet
AiEcabsin the:
57a
for oral argument was made by any party prior to July 10,
1972.
The Court finds that the said pleadings and stipulation con-
tain all of the facts necessary for the Court to make a determi-
nation, as a matter of law, of the issues raised by the plaintiff's
supplemental petition (complaint) against the defendant,
United States Fire Insurance Company.
On July 10, 1972, without hearing any oral argument from
any party but upon consideration of all of the foregoing, the
Court filed its opinion in this case which opinion the Court
now ratifies and adopts and makes a part of this Entry by
reference and the Court now finds in favor of the defendant,
United States Fire Insurance Company, on the plaintiff's sup-
plemental petition (complaint) against the defendant, United
States Fire Insurance Company, and hereby and herewith
enters final judgment on said supplemental petition (com-
plaint) in favor of the defendant, United States Fire Insur-
ance Company, and against the plaintiff, at the costs of the
plaintiff.
On the third party complaint of the defendant-third party
plaintiff, United States Fire Insurance Company, against the
third party defendant, Selective Insurance Company, the Court
finds in favor of the said third party defendant, Selective In-
surance Company, and hereby and herewith enters final judg-
ment on said third party complaint in favor of said third party
defendant, Selective insurance Company, and against the de-
fendant-third party plaintiff, United States Fire Insurance
Company.
On July 19, 1972, the plaintiff filed her motion to set this
case for trial, and the Court, upon consideration, finds that,
under the aforesaid pleadings, stipulation and memoranda,
there is no factual determination necessary for a resolution of
the issues presented by the plaintiff's supplemental petition
(complaint) against the defendant, United States Fire In-
surance Company, and that the said motion to set this case for
trial is not well taken and hereby and herewith overrules the
same.
58a
On December 21, 1972, at a meeting between the Court
and counsel, at which time the Court directed the preparation
of this Entry, the position of the plaintiff and of the defendants,
John Allan Muscovin and Amelia C. Muscovin, was that they
did not wish to present oral argument subsequent to this
Court's opinion rendered on July 10, 1972, because such opin-
ion indicated that this Court had already reached certain con-
clusions in connection with this case. The Court, in making
the foregoing orders, is cognizant of the stated position of
such parties.
Appropriate exceptions are reserved to the parties as to all of
the foregoing.
On November 1, 1972, the plaintiff filed her motion for leave
to file and serve her further amended and supplemental com-
plaint and for leave to issue summons on Robert W. Vogt as
a new party-defendant, and on November 9, 1972, the defen-
dants, John Allan Muscovin and Amelia C. Muscovin, filed
their motion for leave to file a cross-claim and for leave to
issue summons on Robert W. Vogt as a new party-defendant.
Both of said motions remain pending, and the foregoing Entry
shall not affect such motions in any way. It is further ordered
that the within action be re-assigned to another Judge of this
Court for determination of those motions not determined by
this Entry and for any and all further proceedings in this case
not connected with the matters determined by this Enty. (sic)
ide sik Ga lal
ee Oe ee ee ae
59a
APPENDIX R
ENTRY GRANTING SUMMARY JUDGMENT TO THE
UNITED STATES FIRE INSURANCE COMPANY
COURT OF COMMON PLEAS
HAMILTON COUNTY, OHIO
Case No. A-232481
HENRY NEUHAUSSER, Administrator of the Estate of
STEPHEN NEUHAUSSER, Deceased,
and
HENRY NEUHAUSSER,
Plaintiffs,
v.
JON ALLAN MUSCOVIN and AMELIA MUSCOVIN,
Defendants,
and
UNITED STATES FIRE INSURANCE CO.,
Defendant, Third Party Plaintiff,
Vv.
SELECTIVE INSURANCE CO.,
Third-Party Defendant.
Case No. A-235384
RONALD ISON, a minor by and through his mother,
natural guardian and next friend, EDNA ISON SCOTT,
Plaintiff,
V.
60a
JOHN ALLEN MUSCOVIN and AMELIA C. MUSCOVIN,
Defendants,
and
UNITED STATES FIRE INSURANCE COMPANY,
Defendant, Third Party Plaintiff,
V.
SELECTIVE INSURANCE COMPANY,
Third Party Defendant.
Case No. A-235385
EDNA ISON SCOTT,
Plaintiff,
v.
JOHN ALLEN MUSCOVIN and AMELIA C. MUSCOVIN,
Defendants,
and
UNITED STATES FIRE INSURANCE COMPANY,
Defendant, Third Party Plaintiff,
Vv.
SELECTIVE INSURANCE COMPANY,
Third Party Defendant.
Case No. A-236200
EDWARD E. KOEHL, Administrator of the Estate of
CAROL E. KOEHL, deceased
Plaintiff,
v.
Se ee ee ee RTT
6la
JOHN A. MUSCOVIN, also known as JON A. MUSCOVIN
and AMELIIA C. MUSCOVIN,
Defendants,
and
UNIITED STATES FIRE INSURANCE COMPANY,
Defendant, Third Party Plaintiff,
Vv.
SELECTIVE INSURANCE COMPANY
Third Party Defendant.
ENTRY GRANTING MOTION FOR.SUMMARY
JUDGMENT OF DEFENDANT UNITED STATES FIRE
INSURANCE COMPANY, AND OVERRULING MOTIONS
OF PLAINTIFFS AND OF DEFENDANTS JON ALLEN
MUSCOVIN AND AMELIA MUSCOVIN FOR SUMMARY
JUDGMENT, TO STRIKE MOTION FOR SUMMARY
JUDGMENT OF UNITED STATES FIRE INSURANCE
COMPANY AND FOR LEAVE TO FILE AMENDED
AND SUPPLEMENTAL COMPLAINTS
(Dated December 2, 1977)
Each of the four within actions has come on before the
Court for hearing upon the following separate motions:
1. The motion of the defendant, United States Fire In-
surance Company, for summary judgment.
2. The motions of the plaintiffs and of the defendants,
Jon Allen Muscovin and Amelia C. Moscox ‘in, to strike
the said motion for summary judgment of the defen-
dant, United States Fire Insurance Company, from
the file.
3. The motions of the plaintiffs and of Jon Allen Moscovin
and Amelia C. Moscovin for summary judgment.
4. The motions of the plaintiffs and of the defendants,
Jon Allen Muscovin and Amelia C. Muscovin, for
62a
leave to file amended and supplemental complaints
against United States Fire Insurance Company.
5. The motions of the plaintiffs and of the defendants,
Jon Allen Muscovin and Amelia C. Muscovin, to add
Robert W. Vogt as an additional party defendant and
to file amended and supplemental complaints and/or
a cross-claim against him.
The aforesaid motions came before the Court on the plead-
ings, the stipulations, affidavits, memoranda and oral argu-
ments of counsel, and the Court, upon consideration, finds
the motion for summary judgment of the defendant, United
States Fire Insurance Company, well taken and grants the
same and hereby and herewith enters final judgment in each
of the four within actions in favor of the defendant, United
States Fire Insurance Company, and against the plaintiffs
and the defendants, Jon Allen Muscovin and Amelia C. Mus-
covin, at the costs of the plaintiffs, and of the defendants,
Jon Allen Muscovin and Amelia C. Muscovin.
The Court further finds each and every one of the remain-
ing aforesaid motions not well taken, and each and every one
of the remaining aforesaid motions is hereby and herewith
overruled.
Appropriate exceptions are reserved to the parties.
A ee ala
ee i“,
APPENDIX S
OHIO CIVIL RULE NO. 38
RULE 38. Jury trial of right
(A) Right preserved. The right to trial by jury shall be pre-
served to the parties inviolate.
(B) Demand. Any party may demand a trial by jury on any
issue triable of right by a jury by serving upon the other
parties a demand therefor in writing at any time after the com-
mencement of the action and not later than fourteen days
after the service of the last pleading directed to such issue.
Such demand may be indorsed upon a pleading of the party.
Unless the demand specifies a lesser number the jury shall be
composed of twelve members. In the event of timely demand
by more than one party the jury shall be composed of the
greater number not to exceed twelve.
(C) Specification of issues. In his demand a party may
specify the issues which he wishes so tried; otherwise he shall
be deemed to have demanded trial by jury for all the issues so
triable. If he has demanded trial by jury for only some of
the issues, any other party within fourteen days after service
of the demand or such lesser time as the court may order, may
serve a demand for trial by jury of any other or all of the
issues of fact in the action.
(D) Waiver. The failure of a party to serve a demand as
required by this rule and to file it as required by Rule 5(D)
constitutes a waiver by him of trial by jury. A demand for
trial by jury made as herein provided may not be withdrawn
without the consent of the parties.
64a
OHIO CIVIL RULE NO. 39
Rule 39. Trial by jury or by the court
(A) By jury. When trial by jury has been demanded as
provided in Rule 38, the action shall be designated upon the
docket as a jury action. The trial of all issues so demanded
shall be by jury, unless (1) the parties or their attorneys of
record, by written stipulation filed with the court or by an
oral stipulation made in open court and entered in the record,
consent to trial by the court sitting without a jury or (2) the
court upon motion or of its own initiative finds that a right
of trial by jury of some or all of those issues does not exist.
(B) By the court. Issues not demanded for trial by jury as
provided in Rule 38 shall be tried by the court; but, notwith-
standing the failure of a party to demand a jury in an action
in which such a demand might have been made of right, the
court in its discretion upon motion may order a trial by a
jury of any or all issues.
(C) Advisory jury and trial by consent. In all actions not
triable of right by a jury (1) the court upon motion or on
its own initiative may try any issue with an advisory jury or
(2) the court, with the consent of both parties, may order a
trial of any issue with a jury, whose verdict has the same effect
as if trial by jury had been a matter of right.
ein il AA inn sa Oth Be NADA i618: A SOD in Nd Ne a Mp et th tel
eT ee
orn
65a
APPENDIX T
OHIO CIVIL RULE NO. 54
RULE 54. Judgments; costs
(A) Definition; form. “Judgment” as used in these rules
includes a decree and any order from which an appeal lies.
A judgment shall not contain a recital of pleadings, the report
of a referee or the record of prior proceedings.
(B) Judgment upon multiple claims or involving multiple
parties. When more than one claim for relief is presented in
an action, whether as a claim, counterclaim, cross-claim or
third-party claim, or when multiple parties are involved, the
court may enter final judgment as to one or more but fewer
than all of the claims or parties only upon an express deter-
mination that there is no just reason for delay. In the absence
of such determination, any order or other form of decision,
however designated, which adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the par-
ties shall not terminate the action as to any of the claims or
parties, and the order or other form of decision is subject
to revision at any time before the entry of judgment ad-
judicating all the claims and the rights and liabilities of all
the parties.
(C) Demand for judgment. A judgment by default shall not
be different in kind from or exceed in amount that prayed
for in the demand for judgment. Except as to a party against
whom a judgment is entered by default, every final judgment
shall grant the relief to which the party in whose favor it is
rendered is entitled; however, a demand for judgment which
seeks a judgment for money shall limit the claimant to the
sum claimed in the demand unless he amends his demand
not later than seven days before the commencement of the
66a
trial. Additional service of process is not necessary upon such
amendment.
(D) Costs. Except when express provision therefor is made
either in a statute or in these rules, costs shall be allowed to
the prevailing party unless the court otherwise directs.
APPENDIX U
EXCERPT FROM MEMORANDUM IN SUPPORT OF
MOTION FOR A NEW TRIAL AND TO VACATE
JUDGMENTS IN THE COURT OF COMMON PLEAS
OF HAMILTON COUNTY, OHIO
The 14th Amendment to the U. S. Constitution guarantees
to a citizen of the United States and of the state wherein he
resides “due process of law”.
The right to present every fact and argument in the case
before a judgment entry is entered has been sustained by the
Courts of this state.
In Keufman v. Shauer, 121 Ohio St. 478, 481, the Supreme
Court stated that a Court should:
“Afford to the parties an opportunity, by further plead-
ing, or by furth: « evidence to do that which at the end
of every trial they are presumed to have done, that is,
to have pleaded such facts and introduced at the trial
such evidence as they are able to regard as necessary
and pertinent to an understanding and determination of
the controversy.”
Other cases to the same effect that a Court must allow a
party at all times to reopen a case so as to present all the
evidence are Martin v. Hoffstetter, 36 Oh. L. Abs. 10 (Court
of Appeals Franklin County) and Allen v. Toth, 22 O. L. Abs.
67a
457, 460 (Court of Appeals) Montgomery County wherein the
Court held:
“
... in the interest of justice, further opportunity should
be given to the defendants to present evidence which was
considered material to the issue”.
The Supreme Court of the United States has held that the
failure to allow a party to present all his evidence and argu-
ments constitutes a lack of due process and is unconstitu-
tional. Thus, in the New England Divisions Case, 261 U.S.
185, 200 the Court defined a due process hearing under the
constitution to be:
“A full hearing is one in which ample opportunity is
afforded to all parties to make, by evidence and argu-
ment, a showing fairly adequate to establish the propriety
or impropriety, from the standpoint of justice and law,
of the step asked to be taken.”
Likewise, in Coe v. Armour Fertilizer Works, 237 U.S. 413,
it was held that a party is entitled to a full hearing under
the Constitution regardless of the fact that the party had no
defense to the. case. Thus, the Syllabus in this case is as
follows:
“One protesting against his property being taken without
due process of law cannot be denied such process on the
ground that due process would lead to the same result
as he had no defense on the merits.”
In Armstrong v. Manzo, 380 U.S. 545, it was held to be a
violation of “due process” under the U. S. Constitution for a
state court in adoption proceedings to make a finding without
notice to the father that he failed to support the child for
two years and therefore his consent was not necessary to issue
a decree of adoption. The fact that the state court later gave
him a hearing on his motion to set aside the decree did not
remove the prejudice arising from the fact that the Court had
already determined the case without a hearing. This is the
68a
situation analogous to the case at bar and the following rea-
soning of the Supreme Court on P. 551 is particularly appro-
pos:
“... the petitioner was faced on his first appearance in
the court room with the task of overcoming an adverse
decree entered by one judge, based upon a finding of
non-support made by another judge. . . . The burdens
placed on the petitioner were real, not purely theoretical.”
“A fundamental requirement of due process is the oppor-
tunity to be heard.: Grannis v. Ordean, 234 U.S. 385,
395. It is an opportunity which must be granted at a
meaningful time and in a meaningful manner.”
APPENDIX V
>
EXCERPT FROM PLAINTIFFS’ REPLY MEMORANDUM
IN THE COURT OF COMMON PLEAS OF HAMILTON
COUNTY, OHIO ON REMAND BEFORE
JUDGE FRANK M. GUSWEILER
It is well establsihed law that any proceedings before a
Court which lacks jurisdiction, either because it had no power
to entertain the proceedings or because it entertained the
proceedings in an unconstitutional manner, such as thte denial
of due process, are void and of no effect whatsoever. [THE
TRIAL COURT MUST NOT FOLLOW AN UNCONSTITU-
TIONAL REMAND]* No Court is :equired to and has a
duty to refuse to follow such judgment or decision. Authori-
ties to this effect have previously been presented by the
Plaintiffs in their original Memorandum. There are many
others which permit a collateral attack on such judgments.
* The bracketed material was written in the margin.
69a
In Ex Parte Siebold, 100 U.S. 371, the Supreme Court of the
United States agreed that an unconstitutional judgment can
be inquired into at any time. Thus, the syllabus of this case
are as follows:
“1. The appellate jurisdiction of this court, exercisible by
the writ of habeas corpus, extends to a case of imprison-
ment upon conviction and sentence of a party by an
inferior court of the United States, under and by virtue
of an unconstitutional act of Congress, whether this court
has jurisdiction to review the judgment of conviction by
writ of error or not.
2. The jurisdiction of this court by habeas corpus, when
not restrained by some special law, extends generally to
imprisonment pursuant to the judgment of an inferior
tribunal of the United States which has no jurisdiction
of the cause, or whose proceedings are otherwise void
and not merely erroneous; and such a case occurs when
the proceedings are had under an unconstitutional act.”
The famous case of Miranda v. Arizona, 384 U.S. 436, is an
example of proceedings which are void and of no effect be-
cause of the failure of police officers to advise the accused of
his constitutional right to counsel before interrogation.
The Supreme Court of California held In Re Klor, 51 Cal.
Rap. 903, 415 Pac. (2d) 791, a conviction based on an uncon-
stitutional charge to the jury was subject to collateral attack.
In Gallagher v. Maxwell, 175 Oh. St. 440, the Supreme Court
of Ohio held that collateral attack in the form of habeas
corpus lies to test whether there has been a waiver of trial
by jury in a criminal case. The reason is that a court is
entitled to entertain jurisdiction in such cases because con-
stitutional rights are involved which could render the judg-
ment void.
If the decision of the Court of Appeals is as contended by
the Defendant, namely that the Plaintiffs are not entitled to
70a
a trial by jury as demanded by them nor the right to present
evidence at such trial, then such decision of the Court of
Appeals would partake of the same error which it con-
demned in the trial court, which was that the Plaintiffs
have been depr‘ved of “substantial rights”, “due process”
and of “their day in Court” (pp. 7, 10 Opinion of the Court
of Appeals). Such a decision should not be followed by the
Trial Court to which the case was remanded. [OBLIGATION
TO FOLLOW U.S. CONSTITUTION]®* In fact, it is the duty
of the Trial Court not to follow such decision, if the decision
of the Court of Appeals in this case stands for what the
Defendant contends, in view of Article 6 of the United States
Constitution which expressly provides that the Constitution
and the Laws of the United States are the Supreme Law of
the land, which the judges in every state are bound to follow.
The exact language is as follows: —
“This Constitution and the Laws of the United States
which shall be made in Pursuance thereof, and all treaties
made or which shall be made, under the Authority of
the United States, shall be the Supreme Law of the Land;
and the Judges in every State shall be bound thereby,
Anything in the Constitution or Laws of any State to
the Contrary notwithstanding.”
° The bracketed material was written in the margin.
ee ae eee
Pe es ee ed is
7Tla
APPENDIX W
EXCERPTS FROM REPLY BRIEF OF PETITIONERS
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
ON THE SECOND APPEAL
It was pointed out in the Brief of the Plaintiffs on the appeal
from the judgment entered by Judge Matthews that the pro-
ceedings were in violation of the constitutional rights of the
Plaintiffs, namely Article 1, Sects. 5 and 16 of the Ohio Con-
stitution and of the Fourteenth Amendment to the United
States Constitution. Plaintiffs cannot agree with the Defen-
dant that no such hearing was necessary because the result
would have been the same, even if a hearing had been granted.
In point, the Supreme Court of the United States has held
that the failure to allow a party to present all his evidence
and arguments constitute a lack of die process and is un-
constitutional. In the New England Divisions Case, 261 U‘S.
185, 200 the Court defined a due process hearing under the
constitution to be:
“A full hearing is one in which ample opportunity is
afforded to all parties to make, by evidence and argu-
ment, a showing fairly adequate to establish the pro-
priety or impropriety, from the standpoint of justice and
law, of the step asked to be taken.” (Emphasis Ours)
Plaintiffs, therefore, submit that neither Judge Matthews,
the original trial court, nor this court had a right to determine
these cases without an evidentiary hearing. The argument
that “the law of the case” precluded Judge Gusweiler from
considering the Affidavits of the English scholars because
of some language in the Court’s decision which is in violation
of the constitutional rights of the Plaintiffs, and has no legal
meaning or effect, doesn’t govern this case.
72a
It is well established law that any proceedings before a
Court which lacks jurisdiction, either because it had no power
to entertain the proceedings or because it entertained the
proceedings in an unconstitutional manner, such as the denial
of due process, are void and of no effect whatsoever. No
Court is required to and has a duty to refuse to follow such
judgment or decision. In Ex Parte Siebold, 100 U.S. 371, the
Supreme Court of the United States agreed that an uncon-
stitutional judgment can be inquired into at any time.
It is difficult for counsel for the Plaintiffs to conclude that
the Court of Appeals, by its prior decision, held that the
Plaintiffs were not entitled to a trial by jury as determined
by them, nor entitled to present evidence at such trial. If
so, then such decision of the Court of Appeals would partake
of the same error which it condemned in the trial court,
which was that the Plaintiffs have been deprived of “sub-
stantial rights,” “due process” and of “their day in Court”
(pp. 7, 10 Opinion of the Court of Appeals). The Court of
Appeals, as previously set forth, clearly indicated the violation
of substantial rights of the Plaintiffs, and the fact that it did
not know what kind of evidence they might present at the
trial court level, which should be sufficient reason to preclude
it from pre-judging the case and making a decision until after
the cases had had the benefit of hearings before the trial court.
In any event, the trial court was bound by Article 6 of the
United States Constitution which expressly provides that the
Constitution and the Laws of the United States are the Su-
preme Law of the land, which the judges in every state are
bound to follow. The exact language is as follows:
“This Constitution and the Laws of the United States
which shall be made in Pursuance thereof, and all treaties
made or which shall be made, under the Authority of
the United States, shall be the Supreme Law of the
Land; and the Judges in every State shall be bound
thereby, anything in the Constitution or Laws of any
State to the contrary notwithstanding.”
i a a a .
73a
It was, therefore, the responsibility of the trial court to
make an independent determination as to what the evidence
would cisclose, and to accord the Plaintiffs the right to present
such evidence in support of their claims and in accord with
“due process”.
APPENDIX X
COURT OF COMMON PLEAS
HAMILTON COUNTY, OHIO
Nos. A-232481, A-235384, A-235385, A-236200
HENRY NEUHAUSSER, Administrator, et al.,
Plaintiffs,
Vv.
JON ALAN MUSCOVIN, et al.,
Defendants.
AFFIDAVIT
Siegmund A. E. Betz, being first duly sworn states that he
is Professor of English and Chairman of the Department of
English at Edgecliff College, Cincinnati, Ohio, and that he
is a Doctor of Philosphy and that he examined the policy of
automobile insurance issued by the United States Fire Insur-
ance Company to Alfred J. Muskovin and Amelia C. Musko-
vin, which is Policy No. FAC51 59 74, which includes the
following portion of the policy:
74a
“Persons Insured. The following are insureds under Part 1:
(a) with respect to the owned automobile,
(1) the named insured and any resident of the
same household,
(2) any other person using such automobile with
the permission of the named insured, provided
his actual operation or (if he is not operating)
his other actual use thereof is within the scope
of such permission, and
(3) any other person or organization but only with
respect to his or its liability because 01 acts
or omissions of an insured under (a)(1) or
(2) above.
(b) with respect to a non-owned automobile,
(1) the named insured,
(2) any relative, but only with respect to a pri-
vate passenger automobile or trailer,
provided his actual operation or (if he is not oper-
ating) the other actual use thereof is with the per-
mission, or reasonably believed to be with the per-
mission, of the owner and is within the scope of
such permission, and
(3) any other person or organization not owning
or hiring the automobile, but only with re-
spect to his or its liability because of acts or
omissions of an insured under (b)(1) or (2)
above.”
Affiant states that it is his opinion that the portion of the
policy with respect to “a non-owned automobile” which ap-
pears in (b) (2) commencing on the third line and which is
as follows:
“Provided his actual operation or (if he is not operating )
the other actual use thereof is with the permission, or
reasonably believed to be with the permission, of the
owner and is within the scope of such permission.”
has reference to (b) (2) and does not refer to (b) (1). It
relates to the operation of a non-owned automobile by a rela-
Se Oe Oe eT OER eT ee ny
75a
tive so as to require a relative operating such non-owned auto-
mobile to have the permission of the owner in order to be
classified as a “person insured.”
In other words, the language requiring permission of the
owner does not have any reference with respect to (b) (1):
“The named insured”
The named insured is not under the language of this pro-
vision of the policy required to have the permission of the
owner of the automobile which is non-owned in order to be
a “person insured.”
The principles which govern the grammatical construction
and the interpretation of the language of this clause is the
policy are agreed upon by English grammarians. The rules
for such construction are authoritatively set forth in H. W.
Fowler: a Dictionary of Modern English Usage (1965 Edition),
a copy of the pertinent parts of which are attached to this Affi-
davit. The principles enunciated by Fowler with reference
to the construction of language and the proper usage thereof
under the heading of “Pronouns” (P. 481) are:
“(1) The principal should not be very far off.
(2) There should not be two parties justifying even a
momentary doubt about which the pronoun repre-
sents.
(3) One pronoun should not represent two principals
on one occasion.”
According to this authority with which said Affiant fully
agrees it is clear that the clause “provided his actual operation
— is with the permission — of the owner,” in the case of a
non-owned automobile relates to the second classification,
namely the use of the automobile by a relative and not to
“the named insured.”
76a
The singular pronoun “his” in the “provided” clause must,
necessarily relate to the closest principal, which is “any rela-
tive,” (b) (2). In the language under construction, the pro-
noun “his” cannot represent two principals, being singular so
that it does not relate to the named insured (b) (1).
/s/ SIEGMUND A. E. BETZ
Sworn to before me and subscribed in my present this 18th
day of December, 1975.
/s/ HYMAN B. ROSEN
Notary Public State of Ohio
ATTACHMENT
[EXCERPTS FROM PAGES 481, 482 OF H. W. FOWLER:
A DICTIONARY OF MODERN ENGLISH USAGE
(1965 Edition )]
pronouns and pronominal adjectives are tricky rather than
difficult. Those who go wrong over them do so from heed-
lessness, and will mostly plead guilty when they are charged.
It is enough to state the dangers very shortly, and prove their
existence by sufficient citations. 1. There must be a principal
in existence for the pronoun or proxy to act for. 2. The prin-
cipal should not be very far off. 3. There should not be two
parties justifying even a momentary doubt about which the
pronoun represents. 4. One pronoun should not represent two
principals on one occasion. 5 The pronoun should seldom
precede its principal.
1. No pronoun without a principal is being. Viscount Wol-
verhampton, acting under medical advice, has resigned the
office of Lord President, and His Majesty the King has been
pleased to accept it (it is resignation; but as that word has
77a
not been used we can only suppose H.M. to have accepted
the office)./Now, the public interest is that coal should be
cheap and abundant, and that it should be got without the
dangerous friction which has attended the disputes between
masters and men in this trade. And, if nationalization is to
be the policy, it looks to an assured peace in the coal-trade as
its main advantage. For this it will pay a fair price and be
willing that a considerable experiment should be made, but
without the sure prospect of such a peace it will see no benefit
to itself and a very doubtful benefit to the miners in the change
from private to State ownership (Each of the its in roman type
means the public, not the public interest)./The number of
these abstainers is certainly greater than can be attributed to
merely local or personal causes, and those who have watched
the election agree that a portion of them are due to doubts and
uncertainties about the Act (A portion, that is, of the absten-
tions, not of the abstainers)./An American Navy League
Branch has even been established in London, and is influen-
tially supported by their countrymen in this city (Whose
countrymen? ).
2. The principal should not be very far off. We have to go
further back than the beginning of the following extracts
to learn who he and she are: And yet, as we read the pages
of the book, we feel that a work written when the story is only
as yet half told, amid the turmoil of the events which he is
describing, can only be taken as a provisional impression./It
is always a shock to find that there are still writers who regard
the war from the standpoint of the sentimentalist. It is true
that this story comes from America and bears the traces of
its distance from the field of action. But even distance can-
not wholly excuse such an exterior view as she permits herself.
3. There should not be two parties justifying even a moment’s
doubt about which the pronoun represents. There is no
doubt that the Home Secretary is justified in law in issuing a
deportation order and therewith goes the rights, absolutely
within his discretion, to place him in a ship or an aircraft
78a
bound for a destination of his selection (The Home Secretary’s
selection or the deportee’s?). In the December previous to
his raid on the Tower he was chief of a gang who, overpower-
ing his attendants, seized the Duke of Ormonde in St. James
Street when returning from a dinner-party (His refers not
to che preceding he, but to the following Duke; see 5, and
FALSE SCENT )./Professor Geddes’s fine example of sociology
applied to Civics, his plea for a comprehensive and exact sur-
vey of his own city as a branch of natural history required for
the culture of every instructed citizen (The professor’s own
city? Ah, no; here comes, perhaps better late than never, the
instucted citizen, the true principal )./ As it is, the short-sighted
obstinacy of the bureaucracy has given its overwhelming
strength to the revolution (Not bureaucracy’s, but revolution’s,
strength; see also 5)./Coriolanus is the embodiment of a
great noble; and the reiterated taunts which he hurls in play
after play at the rabble only echo the general temper of the
Renascence (Not Coriolanus, but Shakespeare, is the hurler;
the interloping of Coriolanus between Shakespeare and his
proxy makes things difficult for the reader).
4. One pronoun, one job . . . which opens up the bewildering
question as to how far the Duma really represents the nation.
The answer to this is far from solving the Russian riddle, but
without answering it it is idle even to discuss it (It represents,
first, the bewildering question, secondly, the discussion of
that riddle, and last, the riddle itself — which is not the
same as the question)./This local option in the amount of
outdoor relief given under the Poor Law has always operated
inequitably and been one of the greatest blots on the system;
to extend it to the first great benefit under the Insurance Act
will greatly lessen its usefulness (It is the blot, but its is the
Act’s)./Again, unconsciousness in the person himself of what
he is about, or of what others think of him, is also a great
heightener of the sense of absurdity; it makes it come the
fuller home to us from his insensibility to it (It is first the
unconsciousness, secondly the sense of absurdity, and thirdly
absurdity ).
79a
5. The pronoun should seldon precede its principal. For
Plato, being then about twenty-eight years old, had listened
to the ‘Apology’ of Socrates; had heard from them all that
others had heard or seen of his last hours (had heard from
others all that they had heard etc.)./The old Liberal idea of
cutting expenditure down to the bone, so that his money
might fructify in the pocket of the taxpayer, had given place
to the idea of . . . (the taxpayer’s money might fructify in
his pocket)./Both these lines of criticism are taken simul-
taneously in a message which its special correspondent sends
from Laggan, in Alberta, to the Daily Mail this morning
(which the D.M. prints this morning from its correspondent
etc. ).
80a
APPENDIX Y
SECTION 3929.06 O.R.C.
§ 3929.06 Insurance money applied to judgment. (GC
§ 9510-4)
Upon the recovery of a final judgment against any firm,
person, or corporation by any person, including administrators
and executors, for loss or damage on account of bodily injury
or death, for loss or damage to tangible or intangible property
of any person, firm, or corporation, for loss or damage on
account of loss or damage to tangible or intangible property
of any person, firm, or corporation, or for loss or damage to
a person on account of bodily injury to his wife or minor child
or children, if the defendant in such action was insured against
loss or damage at the time when the rights of action arose,
the judgment creditor or his successor in intere
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