Coler v. Anchor Acquisition, L.L.C.

[Cite as Coler v. Anchor Acquisition, L.L.C., 2014-Ohio-4049.]

COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
KATHY COLER : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 14-CA-12
ANCHOR ACQUISITION, LLC, ET AL :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Fairfield County Court
of Common Pleas, Case No. 2010CV00004

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 15, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

THOMAS REITZ CHRISTOPHER WALSH
Larrimer & Larrimer Earl, Warburton, Adams & Davis
165 N. High Street 136 W. Mound Street
Columbus, OH 43215 Columbus, OH 43215
[Cite as Coler v. Anchor Acquisition, L.L.C., 2014-Ohio-4049.]

Gwin, P.J.

{¶1} Appellant appeals the January 14, 2014 judgment entry of the Fairfield

County Court of Common Pleas allowing appellee to participate in the workers’

compensation fund for the substantial aggravation of a pre-existing medical condition.

Facts & Procedural History

{¶2} At all times relevant to this appeal, appellee Kathy Coler was employed by

appellant Anchor Acquisition, LLC. In 2005, appellee, while in the course and scope of

her employment, injured her back after she attempted to un-jam a conveyer belt. An

MRI taken on June 1, 2005 showed “slight bulging of the disc at L4-5” and “central

protrusion of the disc at L5-S1.” Doctors treated appellee for these conditions and the

resulting pain. After treatment, appellee returned to full-duty work that included physical

labor, with lifting, bending, pushing, and pulling.

{¶3} Subsequently, on July 29, 2008, appellee, while in the course and scope

of her employment, was injured when a pallet of glassware fell on her. Upon completion

of her shift, appellee presented at the emergency room, complaining of low back and

right knee pain. Diagnostic tests and imaging revealed appellee had a bulging disc at

the L4-5 level as well as other degenerative changes in her spine. Appellee was placed

on light duty until December of 2008 and appellee has not worked since then.

{¶4} Appellee sought to participate in the Ohio Workers’ Compensation Fund.

The District Hearing Officer granted appellee’s request to allow the additional conditions

of bulging discs L4-5 and L5-S1. Appellant appealed the decision to the Staff Hearing

Officer, who affirmed the District Hearing Officer’s decision. Appellant appealed to the

Industrial Commission, which allowed the claim for the additional condition of bulging
Fairfield County, Case No. 14-CA-12 3

disc L4-5, but disallowed the claim for the additional condition of bulging disc L5-S1 and

substantial aggravation of pre-existing bulging disc L5-S1.

{¶5} Appellee filed an appeal from the Industrial Commission’s decision to the

trial court on January 4, 2010. Appellant also filed an appeal from the Industrial

Commission’s decision. Prior to trial, appellee withdrew her appeal as to the claim for

the L5-S1 conditions. The trial court conducted a bench trial on November 1, 2011.

Appellee Coler, Samuel Lewis, safety manager and workers’ compensation

administrator for appellant, Dr. Robert Masone, and Dr. David Hannallah testified at

trial. Dr. Masone (“Masone”), board certified in anesthesia and pain management and a

specialist in spine pain, testified that, based on his clinical exam, a review of appellee’s

diagnostic tests, his experience and training, it was his opinion that appellee sustained

aggravation of a pre-existing condition at the L4-5 disc called a lumbar bulge as a result

of her employment on July 29, 2008. Masone stated that he utilized objective tests he

administered, appellee’s subjective complaints, and Dr. Todd’s notations from surgery

he performed on appellee to form his opinion. Dr. Hannallah (“Hannallah”), an

orthopedic surgeon with a focus on spine surgery, opined, after reviewing appellee’s

records, that there was no evidence of substantial aggravation from the July 2008

incident.

{¶6} In addition, the parties stipulated to the admissibility and authenticity of

appellee’s medical records including radiology reports, emergency room records,

records from Dr. Masone, physical therapy records, records from Dr. Woo, records from

Dr. Walter, records from Ohio Schoolhouse Family Practice, records from Dr. Lobel, and

records from Dr. Todd. The parties filed written closing arguments.
Fairfield County, Case No. 14-CA-12 4

{¶7} In a March 21, 2012 judgment entry, the trial court found appellee’s

allowed condition for bulging disc L4-5 did not constitute a pre-existing condition and

R.C. 4123.01(C)(4) was inapplicable. Thus, the trial court affirmed the Industrial

Commission's decision. Appellant filed an appeal with this Court. In Coler v. Anchor

Acquisition, LLC, 5th Dist. Fairfield No. 12-CA-19, 2012-Ohio-6261, we reversed the

trial court’s decision because the parties stipulated appellee’s bulging disc at L4-5 was

pre-existing and remanded the matter for redetermination based upon the application of

R.C. 4123.01(C)(4).

{¶8} The trial court issued a judgment entry on January 14, 2014. The trial

court reviewed, in detail, the evidence regarding the MRI studies, CT scans and

discography, and other tests and procedures. The trial court found the results of the

range of motion tests, the results of the Feber’s Maneuver Patrick tests, the results of

the Laseque test, the comparison of MRI and CT scans before and after July 29, 2008,

and observations during surgery were diagnostic and clinical findings that are objective

in nature for purposes of R.C. 4123.01(C)(4). Further, that the comparison between

post-injury physical tests with appellee’s pre-injury and post-injury pain were not

themselves objective findings, but they provided corroboration of substantial

aggravation confirmed by objective findings. The trial court determined that the records

demonstrate Masone engaged in a methodical process and administered several types

of clinical and objectively based tests that were consistent with the subjective

complaints of appellee. The trial court emphasized that Masone used counter

measures to minimize the likelihood of false test results. The trial court found the

opinion of Masone that the bulge at L4-5 is a substantial aggravation of a pre-existing
Fairfield County, Case No. 14-CA-12 5

condition to be more persuasive than the opinion of Hannallah that there is no evidence

of substantial aggravation because Hannallah was not present during the exams or

diagnostic tests and his opinion based on the review of the CT scan films was

inconsistent with the radiologists’ reports and Todd’s actual observations during surgery

when he reported a broad-based disc bulge at L4-5. The trial court found that appellee

proved, by a preponderance of the evidence, that the pre-existing condition was

substantially aggravated by the 2008 injury while working for appellant. Thus, the trial

court determined appellee is entitled to participate in the benefits provided by the

workers’ compensation act for the substantial aggravation of a L4-5 disc bulge.

{¶9} Appellant appeals the January 14, 2014 judgment entry and assigns the

following as error:

{¶10} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT

WHEN IT FAILED TO GRANT JUDGMENT AS A MATTER OF LAW.

{¶11} "II. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT

WHEN IT HELD THAT PLAINTIFF PRODUCED OBJECTIVE EVIDENCE

ESTABLISHING A SUBSTANTIAL AGGRAVATION OF THE DISC BULGE AT L4-5.

{¶12} "III. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT

WHEN IT RELIED UPON EXPERT OPINION THAT CONTRADICTED ITSELF.

{¶13} "IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT

WHEN IT FOUND CAUSAL RELATIONSHIP WITHOUT ANY SUPPORTING EXPERT

OPINION.

{¶14} "V. THE ALLEGEDLY WORSENED ANNULAR TEAR AT L4-5 WAS NOT

THE CONDITION AT ISSUE IN THIS APPEAL.”
Fairfield County, Case No. 14-CA-12 6

I. & II.

{¶15} Appellant argues in its first two assignments of error that the trial court

erred in its judgment because appellee failed to produce any objective evidence of a

substantial aggravation of her L4-5 disc bulge and, accordingly, judgment should have

been granted in favor of appellant. We disagree.

{¶16} In an appeal under R.C. 4123.512 from an order of the Industrial

Commission, the trial court reviews de novo the issue of whether the claimant can

participate in the workers’ compensation fund. Oswald v. Connor, 16 Ohio St.3d 38,

476 N.E.2d 658 (1985). This Court reviews the decision of the trial court under a

manifest weight of the evidence standard. Krull v. Ryan, 1st Dist. No. C-100019, 2010-

Ohio-4422; C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 376 N.E.2d

578 (1978). As an appellate court, we neither weigh the evidence nor judge the

credibility of the witnesses. Our role is to determine whether there is relevant,

competent, and credible evidence upon which the fact finder could base its judgment.

Cross Truck Equip. Co. v. The Joseph A. Jeffries Co., 5th Dist. No. CA5758, 1982 WL

2911 (Feb. 10, 1982). Accordingly, judgments supported by some competent, credible

evidence going to all the essential elements of the case will not be reversed as being

against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr., 54 Ohio

St.2d 279, 376 N.E.2d 578 (1978). The underlying rationale of this deference to the trial

court is that “the trial judge is best able to view the witnesses and observe their

demeanor, gestures and voice inflections, and use these observations in weighing the

credibility of the proffered testimony.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d

77, 81, 461 N.E.2d 1273 (1984). To the extent that a judgment involves a question of
Fairfield County, Case No. 14-CA-12 7

law, we review the question of law independently and without any deference. Goodyear

Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842, 769

N.E.2d 835.

{¶17} A claimant must establish an injury to participate in the Ohio workers’

compensation system. Schell v. Global Trucking, Inc., 48 Ohio St.3d 1, 548 N.E.2d 920

(1990). “Injury” includes any injury, whether caused by external accidental means or

accidental in character and result, received in the course of, and arising out of, the

injured employee’s employment.” R.C. 4123.01(C). The statute also specifically

excludes some categories of injuries. R.C. 4123.01(C)(4) excludes from the definition

of injury:

[a] condition that pre-existed an injury unless that pre-

existing condition is substantially aggravated by the injury.

Such a substantial aggravation must be documented by

objective diagnostic findings, objective clinical findings, or

objective test results. Subjective complaints may be

evidence of such a substantial aggravation. However,

subjective complaints without objective diagnostic findings,

objective clinical findings, or objective test results are

insufficient to substantiate a substantial aggravation.

{¶18} Although subjective complaints are insufficient, standing alone, to

establish a substantial aggravation, this Court has held that they may be coupled with

objective diagnostic findings, objective clinical findings, or objective test results to satisfy
Fairfield County, Case No. 14-CA-12 8

the standard. Brate v. Rolls-Royce Energy Sys., Inc., 5th Dist. Knox No. 12CA000001,

2012-Ohio-4577.

{¶19} Appellant first contends that Masone never testified to “substantial”

aggravation and since he only testified to “aggravation,” there is no evidence that the

alleged aggravation was substantial. However, after examining the record, we find that

Masone testified as to “substantial” aggravation. Appellee’s counsel inquired of Masone

as to whether he had “an opinion as to the cause based on your clinical examinations,

your training, your expertise, your review of the MRI’s, your consultations with the other

physicians, whether Ms. Coler sustained a substantial aggravation of a pre-existing

condition at the L4-5 * * * disc called a lumber bulge as a result of her employment from

July 29th of 2008.” Masone responded that “the short answer is yes” and then testified

to the aggravation process in the disc. Further, Masone’s testimony must also be read

in light of his medical reports and records, which were stipulated to and admitted into

evidence. In a May 19, 2010 letter authored by Masone, he states as follows: “In my

medical opinion, with a reasonable degree of certainty, [appellee] had substantial

aggravation of the preexisting conditions at the L4-L5 and L5-S1 disc.” Further, that the

2008 injury caused “substantial aggravation of that situation.” Accordingly, there is

competent and credible evidence of “substantial” aggravation.

{¶20} Appellant also contends that Masone’s reliance on his review of the 2005

and 2010 CT scans in forming his opinion on substantial aggravation was not objective

because he reviewed the radiologists’ reports and not the CT scans themselves and

thus the trial court’s consideration of this evidence was in error.
Fairfield County, Case No. 14-CA-12 9

{¶21} In this case, Masone reviewed the CT scan reports from the radiologists

and did not independently review the CT scan images. The CT scan reports were

stipulated to by both parties in terms of admissibility and authenticity. Because the CT

scan reports were submitted into evidence, the fact that Masone did not personally

review the CT scan images but rather reviewed the radiologists’ reports in treating and

diagnosing appellee goes to the weight, not the admissibility, of Masone’s testimony.

Hager v. Norfolk & Western Railway Co., 8th Dist. Cuyahoga No. 87553, 2006-Ohio-

6580; Nieminen v. Leek, 11th Dist. No. 2000-A-0043, 2001-Ohio-8778. It is clear from

the trial court’s judgment entry that it did consider the fact that Masone did not

personally review the CT scans when weighing the evidence regarding the

objectiveness of the CT scan comparisons, but ultimately determined, by reviewing the

CT scan records and Masone’s testimony, that the information utilized by Masone from

the reports is reliable. As noted above, we neither weigh the evidence nor judge the

credibility of the witnesses. Cross Truck Equip. Co. v. The Joseph A. Jeffries Co., 5th

Dist. No. CA5758, 1982 WL 2911 (Feb. 10, 1982). Accordingly, the trial court did not

err in considering Masone’s opinion based on the CT scans despite the fact that

Masone did not review the CT scan films themselves but relied on the radiologists’

reports that were admitted into evidence by stipulation of both parties.

{¶22} Appellant states this case is analogous to Lake v. Anne Grady Corp., 6th

Dist. Lucas No. L-12-1330, 999 N.E.2d 1203, 2013-Ohio-4740, and urges this Court to

find the trial court erred based upon the rationale in the Lake case. However, unlike the

Lake case cited by appellant in which the expert’s affidavit only stated that objective

evidence exists without stating which clinical findings or x-rays were relied upon, in this
Fairfield County, Case No. 14-CA-12 10

case, appellee submitted extensive medical records and documentation as to which

clinical or diagnostic tests Masone completed to diagnose appellee and form his opinion

that there was substantial aggravation of appellee’s L4-5 disc bulge. In addition to the

detailed medical records supporting Masone’s conclusion and containing the specific

tests, when the tests were administered, and the results of each of the tests, Masone

also testified as to the items he relied upon in rending his opinion such as physical

exams, Lasegue’s test, Feber’s Maneuver Patrick tests, range of motion tests,

comparison of MRI and CT scans before and after the injury, and his review of Todd’s

observations during surgery. Accordingly, the facts in this case are not analogous to

those in Lake.

{¶23} Appellant’s argument also centers on the testimony by Masone that he

was “using logic” to form his opinion on substantial aggravation and appellant argues

this is only subjective evidence of substantial aggravation. However, while Masone did

testify regarding subjective evidence of appellee’s complaints and pain before and after

the incident, Masone also testified and provided in his medical records, objective clinical

findings, diagnoses, and tests. These include: the change in condition as reflected in

the 2005 and 2010 CT scan radiology reports reviewed by Masone, the range of motion

tests conducted by Masone, the Feber’s Maneuver Patrick’s tests conducted by

Masone, a Lasque test conducted by Masone, and counter-measures employed by

Masone to minimize the likelihood of false test results. See Brate v. Rolls-Royce

Energy Systems, Inc., 5th Dist. No 12CA1, 2012-Ohio-4577 (finding clinical exam and

observations during surgery objective); Harrison v. Panera, 2nd Dist. No. 25626, 2013-

Ohio-5338 (comparison of MRI results and range of motion evaluation tests when
Fairfield County, Case No. 14-CA-12 11

coupled with physician’s tangible conclusions and counter-measures to prevent

subjective tampering found to be objective); Cassens Transport Co. v. Bohl, 3rd Dist.

No. 13-11-36, 2012-Ohio-2248 (range of motion tests when coupled with admission of

detailed medical reports found to be objective). Masone utilized these objective clinical

findings, diagnoses, and tests, in addition to subjective complaints by appellee, to come

to an opinion regarding substantial aggravation of a L4-5 disc bulge. This comports with

this Court’s holding in Brate v. Rolls-Royce Energy Systems, Inc., 5th Dist. No. 12CA1,

2012-Ohio-4577, which provides that while subjective complaints alone are insufficient

to establish a substantial aggravation, “subjective complaints, coupled with objective

diagnostic findings, objective clinical findings, or objective test results are sufficient.” In

addition, the medical records stipulated to by both parties contain actual observations

by Todd during surgery when he reported a broad based disc bulge at L4-5.

{¶24} The trial court was permitted to consider objective, as well as subjective,

evidence of the substantial aggravation of appellee’s pre-existing condition, but there

had to be some objective evidence. R.C. 4123.01(C); Brate v. Rolls-Royce Energy

Systems, Inc., 5th Dist. No 12CA1, 2012-Ohio-4577. We find there was competent and

credible evidence to support the trial court’s conclusion that there was some objective

evidence, coupled with subjective evidence, that appellee’s injury had been

substantially aggravated by the accident. Accordingly, appellant’s first and second

assignments of error are overruled.

III.

{¶25} In its third assignment of error, appellant argues the trial court erred in

relying on the expert testimony of Masone because that testimony was allegedly
Fairfield County, Case No. 14-CA-12 12

contradictory and thus the trial court was precluded from relying on Masone’s opinion

that the second CT scan indicated the L4-5 disc bulge was worse. Appellant states that

Masone was first unable to compare the CT reports as the first report did not use a

grading system, but Masone then subsequently did compare the two reports.

{¶26} In State v. ex rel. Eberhardt v. Flxible Corp., the Supreme Court of Ohio

discussed the inherent deficiency of equivocal or contradictory opinions. 70 Ohio St.3d

649, 640 N.E.2d 815 (1994). Equivocal medical opinions have no probative value and

“equivocation occurs when a doctor repudiates an earlier opinion, renders contradictory

or uncertain opinions, or fails to clarify an ambiguous statement. Ambiguous

statements, however, are considered equivocal only while they are unclarified. Thus,

once clarified, such statements fall outside the boundaries of” the general rule that

equivocal medical opinions are not evidence. Id.

{¶27} Masone testified that he conducted a discogram in 2010 and Dr. Uselman

conducted a discogram in 2005 and, in each instance, a subsequent CT scan was done

and a detailed report was issued by a radiologist reviewing the CT scan. However,

Masone could not compare the two discograms “apples to apples” because the

radiologists interpreting the CT scans utilized different terminology to grade the injury.

In response to the testimony, the trial court specifically noted that a direct comparison of

the two discograms alone is not probative as to the issue of substantial aggravation.

However, as later testified to by Masone, indicated by the medial records stipulated to

by the parties, and noted in the trial court’s judgment entry, while the discogram results

cannot be directly compared to each other, the discogram results can provide

corroboration of the information in the 2010 and 2005 CT scan radiology reports.
Fairfield County, Case No. 14-CA-12 13

Accordingly, upon review of the record, we find Masone’s testimony was not

contradictory.

{¶28} Further, even if we were to find the testimony to be conflicting and exclude

the testimony of Masone regarding the worsening of the bulge from the 2005 CT scan to

the 2010 CT scan, we find there is still some objective evidence (range of motion test

results with counter measures, results of Febers’ Maneuver Patrick Test with counter

measures, results of the Laseque Test with counter measures, and observations during

surgery) of substantial aggravation such that the trial court’s decision was supported by

competent, credible evidence and not against the manifest weight of the evidence.

Appellant’s third assignment of error is overruled.

IV.

{¶29} In its fourth assignment of error, appellant argues the trial court erred in

making medical inferences without any supporting expert opinion. Appellant argues the

trial court’s conclusion that the annular tear had worsened, the disc bulge had gone

from mild to moderate, and that stenosis was being demonstrated by CT scans are

without supporting expert opinion as Masone never testified that a comparison of the

2005 and 2010 CT reports established a worsening of the L4-5 disc bulge as a result of

the incident and because he never reviewed the actual films.

{¶30} “When an issue in a case involves a question of scientific inquiry which is

not within the knowledge of lay witnesses or members of the jury, expert testimony is

required to furnish the answers * * *.” Kerpelis v. Pfizer, Inc., 7th Dist. Mahnoning No.

03 CA 17, 2004-Ohio-3049.
Fairfield County, Case No. 14-CA-12 14

{¶31} As discussed above, Masone’s review of the radiologists’ report rather

than the actual film of the CT scans goes to the weight, not admissibility, of the

evidence and the trial court properly considered this factor in weighing the evidence.

With regards to the statements made by the trial court in its opinion, Masone specifically

testified that in 2005 the disc bulge was mild and was worse in 2010 and that the CT

scan also showed an annular tear with a moderate protrusion and stenosis. Further, in

his letter of 2010, Masone opined that appellee had substantial aggravation of the pre-

existing condition at the L4-5 disc and, when asked during trial whether any of questions

at trial changed his opinion about the causal relationship between the work injury and

the aggravation of the L4-5 preexisting condition, Masone stated that his opinion had

not changed. Masone also testified that his opinion regarding the work injury causing

substantial aggravation was based upon his objective tests as detailed in his testimony

and medical records, along with the subjective complaints of appellee. Accordingly, the

trial court did not make medical inferences without any supporting expert opinion and

the trial court’s conclusion was support by competent and credible evidence.

{¶32} Also, as discussed above, even if we were to exclude the trial court’s

alleged medical inferences dealing with the CT scans, we find there is still some

objective evidence of substantial aggravation such that the trial court’s decision was

supported by competent, credible evidence and not against the manifest weight of the

evidence. Appellant’s fourth assignment of error is overruled.

V.

{¶33} Appellant finally argues the trial court erred in its judgment because the

allegedly worsened annular tear at L4-5 was not the condition at issue in this appeal.
Fairfield County, Case No. 14-CA-12 15

Appellant contends since this was the only medical opinion as to the specific worsening

related to L4-5, there was no medical opinion as to the bulge of L4-5, the condition at

issue in this appeal. The claimant “in an R.C. 4123.512 appeal may seek to participate

in the fund only for those conditions that were addressed in the commission order from

which the appeal is taken.” Ward v. Kroger Co., 106 Ohio St.3d 35, 2005-Ohio-3560,

830 N.E.2d1 1155 (2005).

{¶34} In his testimony, Masone confirmed that his opinion, based upon his

clinical exams, training, expertise, review of diagnostic tests, and consultations with

other physicians, was that appellee sustained a substantial aggravation of a pre-existing

condition at the L4-5 disc called a lumbar bulge as a result of her employment on July

29, 2008. In cross-examination, Masone stated that, upon his review of the radiologist’s

report, appellee had a bulge towards the left. Masone stated that sometimes a

radiologist will use the term “bulge” while another may identify the same injury as a

“protrusion.” Further, that the opinions contained in his medical records accurately

reflect his opinion. Hannallah confirmed in his testimony that one person’s large bulge

might be someone else’s small protrusion. In reviewing the medical records, it is clear

that Masone continually refers to his diagnosis as a “bulging disc at L-4-L-5.” In his

notes after the discogram, Masone notes that postoperative diagnosis is a “bulging L4-

L5 disc.” Finally, Masone testified that nothing asked at the trial changed his opinion

about the causal relationship between the work injury and aggravation of the disc bulge.

In addition to Masone’s testimony, the surgical observation of Todd, as stated in his

medical records, is that apellee had a L4-5 broad-based disc bulge. Accordingly, we

find there was medical evidence of a disc bulge of L4-5, the condition at issue in this
Fairfield County, Case No. 14-CA-12 16

appeal. The fact that the 2010 CT scan also references annular tearing did not

contradict Masone’s opinion that the disc bulge had become substantially aggravated.

The trial court specifically allowed the condition at issue in this case as it concluded that

“the court finds, by a preponderance of the evidence, that the pre-existing bulge of

Plaintiff’s L4-5 disc was substantially aggravated by the work injury which occurred July

29, 2008” and appellee is “entitled to participate in the benefits provided by the Worker’s

Compensation Act for this injury.” Accordingly, appellant’s fifth assignment of error is

overruled.

{¶35} Based upon the foregoing, we overrule appellant’s assignments of error

and affirm the January 14, 2014 judgment entry of the Fairfield County Court of

Common Pleas.

By Gwin, P.J.,

Farmer, J., and

Baldwin, J., concur