Opinion
Decided February 27, 1939.
Appeal — Certification by Court of Appeals as conflict case — Judgments must have been on same question.
Where a motion is made to certify a record to the Supreme Court on the ground that the judgment of a Court of Appeals is in conflict with the judgment pronounced upon the same question by another Court of Appeals, before such motion can be sustained it must appear that the judgments of the two courts have been pronounced upon the same question.
APPEAL: Court of Appeals for Franklin county.
Mr. James F. Henderson, for appellee.
Mr. Ralph J. Bartlett, prosecuting attorney, Mr. David B. Sharp and Mr. E.B. Paxton, for appellant.
Appellee moves the court for an order certifying this cause to the Supreme Court for the reason that the decision and judgment of this court is in conflict with the decision and judgment of the Court of Appeals of the Third Appellate District in the case of Esmonde v. Lima Locomotive Works, 51 Ohio App. 454, 1 N.E.2d 633.
This motion requires an examination of the constitutional provision and of the case with which it is claimed the decision of this court is in conflict. Section 6, Article IV of the Constitution provides:
"* * * and whenever the judges of a Court of Appeals find that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by any other Court of Appeals of the state, the judges shall certify the record of the case to the Supreme Court for review and final determination."
This provision of the Constitution places upon the court so certifying, the responsibility of determining whether there is an actual conflict between the judgment, the record of which is sought to be certified, and the judgment pronounced by another Court of Appeals. If the court certifies the record to the Supreme Court the duty is imposed upon that court to review the cause certified and finally determine which of the two courts has correctly decided the question of law. No discretion is reposed in the Supreme Court to determine whether there is an actual conflict. The Supreme Court must proceed to final determination when the lower court has certified that there is a conflict between its judgment and the judgment of some other court.
It will be observed that the "conflict" must be between the judgments of the two courts "upon the same question."
A court desiring to secure a review of its decision by the Supreme Court may be tempted to certify the case as in conflict, thus assuring a final determination by the Supreme Court. The court, however, has no right to thus secure a review of its decisions unless as a matter of fact there be an actual conflict, on the same legal question.
In the case at bar appellee seeks to secure a certificate of this court that the decision of this court is in conflict with the decision of the Court of Appeals of the Third Appellate District. Both cases involve an action by an injured workman against the Industrial Commission of Ohio. In the case at bar it was alleged that the thumb of the workman was bruised and lacerated resulting in a compensable injury, and that while in the process of healing a substance in the wound broke off and entered the blood stream, causing a hemorrhage resulting in paralysis, and that the injury was the proximate cause of such hemorrhage and paralysis.
The judgment pronounced by the Court of Appeals of the Third Appellate District involved the original injury to the workman.
The Court of Appeals of the Third Appellate District determined that the facts warranted the submission of the question to the jury, whereas in the case at bar this court held that the motion for a directed verdict should have been sustained. Herein lies the asserted conflict. The paramount question is whether the two judgments were upon "the same question" of law. This court in its opinion stated that "the solution of the case must depend upon the testimony of the physicians. The verdict must be supported by some competent statement that the paralytic condition resulted from the injured thumb." The court held that there was no evidence in the record to indicate a proximate causal connection between the injury and the paralytic condition. In the case decided in the Third Appellate District there was considerable evidence in relation to the accident in addition to the medical testimony. Both cases involved medical testimony. The Court of Appeals of the Third Appellate District stated in its opinion:
"From the facts in evidence other than the medical testimony the jury were authorized in drawing an inference that the strain caused the dilation, and this evidence, together with the medical testimony, warranted the submission of the question to the jury * * *."
The patent differentiation between the two cases is that the facts are not the same. In the case at bar the court determined that the solution of the case must depend upon the testimony of the physicians, whereas the court, in the case in the Third Appellate District, reached its conclusion by considering facts and evidence in addition to the medical testimony. We are quite in harmony with the decision in the Esmonde case and had like facts been presented to this court it unquestionably would have held that the motion for a directed verdict should have been overruled.
It is quite apparent that if this court should now hold the decision in the instant case to be in conflict with the Esmonde case, it would logically follow that this court should now reverse itself and hold that the case should be submitted to a jury rather than be determined upon the motion for a directed verdict.
We therefore are driven to the conclusion that there is as a matter of fact no "conflict" between the two decisions, and that the motion to certify a conflict must be overruled.
Motion to certify overruled.
BARNES, J., concurs.
HORNBECK, P.J., dissents.