Baker v. Keller, No. 37925

CourtCourt of Common Pleas of Ohio
Writing for the CourtHITCHCOCK
Citation15 Ohio Misc. 215,237 N.E.2d 629
Decision Date12 April 1968
Docket NumberNo. 37925
Parties, 44 O.O.2d 432 Dorothy M. BAKER, Widow-Claimant, William O. Baker, Jr., Minor-Dependent-Claimant, Plaintiffs, v. Elmer A. KELLER, Administrator, Bureau of Workmen's Compensation, and the Osgood Company, Division of Marion Power Shovel, Defendants.

Page 215

15 Ohio Misc. 215
237 N.E.2d 629, 44 O.O.2d 432
Dorothy M. BAKER, Widow-Claimant, William O. Baker, Jr., Minor-Dependent-Claimant, Plaintiffs,
v.
Elmer A. KELLER, Administrator, Bureau of Workmen's Compensation, and the Osgood Company, Division of Marion Power Shovel, Defendants.
No. 37925.
Court of Common Pleas of Ohio, Marion County.
April 12, 1968.

[237 N.E.2d 630] Albert A. Yannon, Columbus, for plaintiffs.

Wm. B. Saxbe, Atty. Gen., and Gerald Goldberg, Asst. Atty. Gen., Columbus, for defendant, administrator.

Edwin L. Mitchell, Halberstein & Mitchell, Marion, for defendant, The Osgood Co., Division Marion Power Shovel.

OPINION

HITCHCOCK, Judge (by assignment from Paulding County).

In this Workmen's Compensation Appeal the jury, on Thursday, September 28, 1967, returned a nine member verdict at the conclusion of a trial that began on Monday

Page 216

'that plaintiff is not entitled to participate in the Workmen's Compensation fund.'

[237 N.E.2d 631] An alternate juror, who heard all of the evidence, was dismissed before the jury began its deliberations. Judgment was entered upon the verdict October 13, 1967. Pursuant to provisions of Section 2321.19 of the Revised Code, the Court extended the time for filing an application for a new trial.

Appellants' motion for a new trial alleging (1) irregularity in the proceedings of the jury, and (2) misconduct of the jury, filed December 20, 1967, was heard January 12, 1968. The evidence clearly established that one of the nine jurors signing the verdict has since 1949, on a number of occasions, suffered from 'manic-depressive reaction, manic type' a mental illness. No evidence of misconduct was offered.

In this opinion this juror will be called 'Mr. J'. His physician for many years, a general practitioner, testified. From this testimony it appears that although Mr. J. may for substantial periods of time appear to be normal, from time to time he definitely is not. He has often taken prescriptions for alleviation of his worst symptoms. These have chiefly been tranquilizing compounds prescribed by physicians of the Veterans Administration Hospital (V A H) at Chillicothe. Mr. J has a patient status with V A H such that any veterans facility will admit him for treatment upon report as a patient. Several years ago he bought a large amount of farm machinery which had to be returned because he was not responsible by reason of active manifestation of his psychotic condition.

On March 14, 1957, upon complaint of Mr. J's wife, made in Case No. 21891 in the Probate Court, the Probate Judge of Marion County heard testimony from complainant, the Sheriff, and the J's physician, above mentioned. On the previous day, however, Mr. J. had been admitted to the V A H which is located in Ross County. The Probate Judge who heard this mental illness complaint in 1957 testified that had Mr. J had the statutory notice and been in Marion County he would have then, on the testimony,

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forthwith issued an order committing him for appropriate hospitalization. As it was, he recommended to Mrs. J that a proper complaint be lodged in the Probate Court of Ross County, followed by compliance with statutory requirements. This was never done and the Marion County Probate Judge was never told anything more about Mr. J. On this occasion Mr. J is reported to have exhibited maniacal tendencies following an episode of violence at his home. No other episode of violence is shown by the evidence.

V A H records at Chillicothe show Mr. J to have been hospitalized there for treatment of his condition on at least six different occasions between 1957 and 1966. They also show a first admission on August 31, 1949, at Crile V A H and two subsequent admissions there for the same chronic condition by 1956. All reports agree as to basic diagnosis with degree of impairment at the time of individual reports showing a range variously described as: mild, moderate, moderately severe, acute, severe, and in partial remission. The summary paragraph of the last report shows patient was admitted August 31, 1966, and discharged December 2, 1966, the concluding language of the summary paragraph reading: 'On 12/1/66 the patient went AWOL and went to his home. We received a call stating he was at home, they would take care of him and he would not return to the hospital. He was not suicidal nor homicidal. No paranoid trends were elicited. He was not psychotic when released from the hospital. During his hospitalization, his medication consisted of Mellaril 200 mgm, tid; Artane 2 mgm, daily. He is competent. He can resume pre-hospital activity immediately. Stress: Undetermined. Predisposition: Undetermined. Impairment: Moderate.' The date of this report is December 27, 1966.

The Court asked the writer of this report what was intended to be conveyed by the words, 'He is competent.' The reply was that on the day mentioned in the report the patient had all his normal faculties and was well able to perform any job within his [237 N.E.2d 632] talents in a normal manner. That such condition would ordinarily continue until he

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again might show psychotic behavior, which time might be almost any period of time-a day, week, month, several months, a year, or even longer period.

From the way counsel conducted the hearing the Court must conclude that the whole trial was conducted and concluded with no member of counsel being aware of Mr. J's hospitalization for manic-depressive reaction, or the 1957 Probate Court inquiry. Just when and how, after the trial, it was discovered, was not disclosed. On the voir dire the record shows the following when Mr. J was called to replace a prospective juror who had been excused:

'Mr. Yannon: Mr. J I'm sure you have heard the questions that Mr. Goldberg and I have put to other jurors. I would like to say at the very outset that Mrs. Baker does not want any of the jurors to judge her case on the basis of sympathy. I make it very clear that we are here hoping to get justice for what we believe she is legally entitled to. We hope to convince you of that during the course of this trial. Mr. J we do not expect synpathy.

'Q What is your employment?

'A (_ _) (employer) truck driver work around the mill.

'Q Mr. J is there any reason why you cannot sit as a fair and impartial juror and decide Mrs. Baker's case on the evidence that comes from the witness stand and the law given you by the Judge?

'A No.

'Q Have you ever had a claim yourself?

'A No.

'Q Have you ever been called as a witness in any type of case where there would be Workmen's Compensation or other type of case?

'A No, I haven't.'

Other jurors were selected, including an alternate, and all were sworn to well and truly try the issues presented to them. Plaintiffs exercised four pre-emptory challenges; the Administrator two.

At the hearing on this motion for new trial plaintiffs failed to offer even a scintilla of evidence that during the trial, or within ten days before or after, Mr. J evidenced the slightest psychotic, abnormal, or irrational behavior.

They offered no testimony from his employer that his work as truck driver and elevator worker suffered during

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this period of time. Nor did they offer any evidence that Mr. J had ever been challenged as unqualified to vote at any election or that he was presently so disqualified.

Decedent suffered a compensable back injury December 17, 1952, from which he never really recovered. He was on October 2, 1961, declared to be totally and permanently disabled. He died February 12, 1965, aged sixty-four years, weighing two hundred ninety-six pounds and being five feet eight inches tall. The issue was whether or not the injury aggravated a pre-existing cardio-vascular condition so as to hasten his death by a substantial period of time. An affirmative finding would entitle the widow and minor son claimants to receive death benefits under the Workmen's Compensation Act.

Two well schooled professors of medicine gave diametrically opposite opinions as to whether or not decedent's death was hastened by a substantial period of time.

The issue now before the Court is whether or not appellants are entitled to a new trial. In considering this question the Court has noticed that Ohio's Jury Code-Chapter 2313 of the Revised Code-clearly provides for annual jury lists in each county to be made up by the application of a key number (designated by the Common Pleas Court) to the entire list of electors as certified to the Clerk of the Common Pleas Court by the Board of Elections.

[237 N.E.2d 633] Concerning electors Article V, Ohio Constitution, in part provides:

'Section 1. Every citizen of the United States, of the age of twenty-one years, who shall have been a resident of the state one year next preceding the election, and of the county, township, or ward, in which he resides, such time as may be provided by law, shall have the qualifications of an elector, and be entitled to vote at all elections. * * *

'* * *

'Section 6. No idiot, or insane person, shall be entitled to the privileges of an elector.'

Section 2313.41 of the Revised Code provides for the setting aside of the whole jury array for certain causes upon

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challenge made before the jury is empaneled and sworn but that 'no indictment shall be quashed or verdict set aside for any such irregularity or misnomer if the jurors who formed the same possessed the requisite qualifications to act as jurors.'

Section 2313.42 of the Revised Code lists a number of causes for challenge of persons called as jurors but neither idiocy, insanity or other lack of the qualifications of an elector appear among them. No doubt it would be incongruous in the extreme to include them because reliable answers could hardly be expected from idiots or insane persons and by reason of the fact that all jurors either are or should be privileged to be electors.

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2 practice notes
  • People v. Borrelli, No. 77-713
    • United States
    • Colorado Court of Appeals of Colorado
    • October 23, 1980
    ...v. Rael, 40 Colo.App. 374, 578 P.2d 1067 (1978); State v. Simmons, 59 Wash.2d 381, 368 P.2d 378 (1962); see also Baker v. Keller, 15 Ohio Misc. 215, 44 Ohio Op.2d 432, 237 N.E.2d 629 (1968). A defendant has the right to exercise all of his peremptory challenges, and when a juror misrepresen......
  • Tanton v. Zubkowicz, No. 835335
    • United States
    • Court of Common Pleas of Ohio
    • November 26, 1971
    ...snow, ice or other condition as a definite confusion causing factor, a different result might be reached. See Baker v. Keller (1968), 15 Ohio Misc. 215, 237 N.E.2d 629, in respect to a situation where experts disagreed as to the most probable inference to be drawn from the same admitted med......
2 cases
  • People v. Borrelli, No. 77-713
    • United States
    • Colorado Court of Appeals of Colorado
    • October 23, 1980
    ...v. Rael, 40 Colo.App. 374, 578 P.2d 1067 (1978); State v. Simmons, 59 Wash.2d 381, 368 P.2d 378 (1962); see also Baker v. Keller, 15 Ohio Misc. 215, 44 Ohio Op.2d 432, 237 N.E.2d 629 (1968). A defendant has the right to exercise all of his peremptory challenges, and when a juror misrepresen......
  • Tanton v. Zubkowicz, No. 835335
    • United States
    • Court of Common Pleas of Ohio
    • November 26, 1971
    ...snow, ice or other condition as a definite confusion causing factor, a different result might be reached. See Baker v. Keller (1968), 15 Ohio Misc. 215, 237 N.E.2d 629, in respect to a situation where experts disagreed as to the most probable inference to be drawn from the same admitted med......

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