# Petition — Koehl v. United States Fire Insurance

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 444 U.S. 1078

## Text

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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

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 interest is entitled to
have the insurance money provided for in the contract of
insurance between the insurance company and the defendant
applied to the satisfaction of the judgment. If the judgment
is not satisfied within thirty days after it is rendered, the
judgment creditor or his successor in interest, to reach and
apply the insurance money to the satisfaction of the judgment,
may file a supplemental petition to the action in which said
judgment was rendered, in which the insurer is made new party
defendant in said action, and whereon service of summons
upon the insurer shall be made and returned as in the com-
mencement of an action at law. Thereafter the action shall
proceed as to the insurer as in an original action.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1377%3A1. Public record. Not legal advice.