Henry v. Mangold , 84 Ohio App. 188 ( 1947 )

This is an appeal on questions of law from an order of the Court of Common Pleas of Montgomery county, denying a motion to dissolve an attachment for the alleged reason that the facts stated in the affidavit for the attachment were not true. The ground stated in the affidavit was that the claim was one for "work" as provided by subdivision 11, Section 11819, General Code. The evidence introduced, which consisted of two affidavits and oral testimony, showed that the plaintiff was employed by the defendant as a tool designer or designing engineer for tools and other products. Plaintiff stated that he was not a professional engineer although the work required a high degree of skill, training and experience, and that it involved the detailed drafting of plans for the manufacture of tools designed to produce parts for certain products. In addition to the designing of tools, the plaintiff checked and inspected the work done by the toolmakers, in carrying out his designs, to see that the work was correct before it left the defendant's shop.

It is the contention of the defendant, appellant herein, that the services performed by the plaintiff, appellee herein, did not constitute "work" within the meaning of Section 11819, General Code, but that the services performed were of a professional, skilled engineering nature and could not be designated as "work" or "labor." The trial court properly held that the language used in the statute is reasonably susceptible of the interpretation that the word, "work," is used in a broader, more comprehensive sense than the word, "labor," inasmuch as the word, "or," separate the two words, indicating that, if services rendered fall within the meaning of either, an attachment may be had if the other requisites of a valid attachment are present. Judge Martin in a lengthy and well considered opinion discussed the reported Ohio cases as well as many from other states. We are in full accord with his legal conclusions therein expressed and adopt his opinion as our own. The law of Ohio seems to be well established that claims for services performed by executives of a corporation or by physicians or attorneys are not claims for "work." However, in the case at bar, the record discloses that the plaintiff was in the employ of the defendant, that he performed services as an artisan in the production of wealth, and that his exertions were primarily physical and not mental.

The defendant contends also that the plaintiff did not sustain the burden of proof to maintain the averments in the affidavit in that no counter-affidavits were filed. It should be noted, however, that the plaintiff testified under oath at the hearing, which would be as effective as the filing of an affidavit. We think the trial court properly found that the plaintiff sustained the allegations contained in the affidavit by the proper degree of proof.

We find no error in the record, and the judgment is affirmed.

Judgment affirmed.

WISEMAN, P.J., MILLER and HORNBECK, JJ., concur.