
    The Heiser Brothers Co. et al. v. City of Cleveland et al. Hoare v. City of Cleveland. Royal Indemnity Co. v. City of Cleveland.
    (Decided June 1, 1932.)
    
      Messrs. Day & Day, for Heisers.
    
      Messrs. Baker, Hostetler, Sidlo & Patterson and Mr. Marcellus De Vaughn, for Alfred K. Hoare and the Royal Indemnity Company.
    
      Mr. Henry 8. Brainard and Mr. Parker K. Fulton, for the City of Cleveland.
   Montgomery, J.

The city of Cleveland filed its action in the court of common pleas of Cuyahoga county naming as joint defendants the plaintiffs in error in the three cases above listed. The amount claimed against the defendants, other than the Royal Indemnity Company, was $12,155.82, and the amount claimed against it was $5,000. Verdict was returned against the several defendants for the amounts claimed, and judgment having been entered upon the verdict these several proceedings in error were instituted.

The basis of the suit was fraud, and an alleged conspiracy between the Heisers, who were venders of fruits and vegetables, and Hoare, who had been purchasing agent for the city. The claim was that in accordance with that conspiracy the city had been defrauded to the extent of $12,155.82, by reason of prices charged against and collected from the city grossly in excess of the fair and current market value of the articles furnished, and grossly in excess of charges made at or about the same time against other purchasers. of the same kind and quality of foodstuffs. It was admitted by counsel that “the Heiser Brothers Company” is a corporation owned by the two defendants Heiser and is not to be distinguished from them.

The sum of $5,000 was claimed to be due the city from Royal Indemnity Company by reason of a bond given to the city by Hoare, with this company as surety, guaranteeing the faithful performance of his duties as purchasing agent.

It is claimed on behalf of the indemnity company that there was a misjoinder of parties defendant, and that, in any view of the case, there should be a reversal of the judgment against the company. This contention is not well founded. Such a joinder is justified under Section 286-4, General Code. The amount of excessive charges made and collected during the life of the bond was far in excess of the amount of the bond. If the verdict against the other defendants for the larger amount was justified, the verdict against the indemnity company for $5,000 must stand.

The record in these cases consists of 1,225 pages. The exhibits are numerous and voluminous. Printed and typewritten briefs have been submitted aggregating hundreds of pages. We have read carefully all the briefs, the charge and rulings of the trial court, and a substantial part of the evidence, and have considered all the assignments of error.

The action was instituted upon a finding and report made by examiners under the Bureau of Inspection and Supervision of Public Offices of the Department of the Auditor of State, under the provisions of Section 274 et seq., General Code, and the trial court admitted that report in evidence in toto. If that report was properly admitted, we would find no difficulty in coming to a determination of the issues presented. Eliminating, for a moment, consideration of that report so admitted, we find no reversible error. The city offered sufficient proof of the fair market value of the articles sold it. The verdict was not manifestly against the weight of the evidence. There was proof of gross fraud and conspiracy sufficient to justify the verdict. There was not, in the introduction or rejection of evidence, or in the charge of the court, any prejudicial or reversible error.

The admission in evidence of this report as a whole presents a serious question. It has long been the practice to permit experts who have examined voluminous documents, records and accounts to testify as to the net results of their examinations. In the case at bar the report of the examiners as to their findings of fact would unquestionably be competent, but this report goes much further than this. It incorporates hearsay evidence. It sets forth arguments, deductions, inferences, conclusions of law, and alleged acts of misconduct by one of the parties and by others not parties to the suit. Its admission as a whole violates almost every recognized rule of evidence. Were this a new question in Ohio, this court would hold such admission to be erroneous and prejudicial.

It is contended by the city that this report is made competent evidence by Section 286-1, General Code, which section was held constitutional by the Supreme Court of Ohio in the case of State, ex rel. Smith, Pros. Atty., v. Maharry, 97 Ohio St., 272, 119 N. E., 822. This precise question was not presented in the Ma-harry case. Section 286-1, General Code, referring to such report, provides: “A certified copy of any portion thereof, shall constitute prima facie evidence of the truth of the allegations of the petition.” In the case at bar our inclination would be to hold that a certified copy of the findings of fact, and of such only, made by the examiners, would be competent, and such holding would not be inconsistent with the decision in the Maharry case.

However, our exact question seems to have been presented to the Court of Appeals of Lucas county in the case of Graves v. Board of Education of Sylvania Village School Dist., 24 Ohio App., 428, 157 N. E., 766, and that court held proper the admission as a whole of a report containing incompetent and immaterial evidence. The Supreme Court of Ohio overruled a motion for an order to certify that case.

We, therefore, reluctantly come to the conclusion that this is not an open question in Ohio. Therefore, the judgment of the common pleas court is affirmed as to each of the plaintiffs in error.

Judgments affirmed.

Sherick and Lemert, JJ., concur. Judges of the Fifth Appellate District sitting by designation in the Eighth Appellate District.  