House v. Stark Iron & Metal Co.

APPLICATION FOR REHEARING

No 3280.

Decided Dec 28, 1940

BY THE COURT:

This matter is before the Court upon application of the defendant-appellee for a rehearing, a divided Court having rendered an opinion on December 2, 1940.

The appellee sets out at length his argument in support of a rehearing. Counsel for appellant files a memorandum to the effect that they have nothing to present. The application for rehearing leads us to carefully re-examine the opinion heretofore rendered. It seems to us that counsel for appellee presents no new matter, not already covered by the opinion.

We have a letter from counsel under date of December 17th calling our attention to the case of Hoppe v Industrial Commission, reported in the Bar Association Report of December 16, 1940, 137 Oh St 367. So far as that case is authority in the present case, it simply reiterates the proposition established m Sobolovitz v Lubric Oil Company, 107 Oh St 204, to the effect that an inference of fact may not be predicated upon another inference, but must be based upon a fact supported by evidence. This principle we recognized in our original opinion.

This case was tried originally in the Municipal Court. The defendant introduced no evidence. A statement by Louis Williams to the effect that he was employed by the defendant, was excluded under the rule that the declaration of an agent may not be received for the purpose of proving agency. The case has been argued and reargued upon the proposition that there was no adequate proof of agency. Had the defendant at the time of the trial introduced evidence disclaiming the agency or authority of Williams, the finespun arguments now indulged in might have been avoided.

The case was covered thoroughly at the time of the writing of the original opinion. Counsel’s viewpoint was well presented by the dissenting member of the Court. If counsel can present a case decided by a Court of Appeals with which our judgment is in conflict, we will certify the case to the Supreme Court for its final determination.

Application for rehearing will be domed.

GEIGER, J., concurs. HORNBECK, PJ., concurs in overruling application for rehearing. BARNES, J., dissents.