Sweeney v. Dispatch Printing Co. ( 1942 )

OPINION

By HORNBECK, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court in behalf of the defendant, plaintiff electing to plead no further after the Court had sustained a general demurrer to his petition.

The subject matter set forth in the petition is before us and it is noted that the claim is for general damages. The question presented is whether or not the language of the petition states a cause of action in that it is libelous per se. If not, the demurrer was properly sustained and the judgment properly entered.

We have the benefit of an adjudica* tion of the Court of Appeals of Summit County, Sweeney, Plaintiff-Appellant v The Beacon-Journal Publishing Company, Defendant-Appellee, 66 Oh Ap 475, in which that Court passed upon the identical language before us in the petition here under consideration, which had been published in the Beacon Journal. The Court held that the publication of the subject-matter was not libelous per se. The motion to certify was filed in the Supreme Court of Ohio which was overruled and appeal as a matter of right, dismissed; 138 Oh St 330. We recognize that this action of the Supreme Court does not make the question presented stare decisis, but it is persuasive in view of the fact that in all probability that Court would not change its position upon the same question, especially as the membership of that Court is now constituted as it was at the time it acted upon the motion to certify.

The judgment will be affirmed.

GEIGER, PJ., and BARNES, J., concur.