text:
    Employers’ Fire Ins. Co., Appellant, v. United Parcel Service of Cincinnati, Inc., Appellee.
    (No. 7219
    Decided February 20, 1950.)

      Mr. Elmer E. Strasser, for appellant.

      Mr. Leo J. Brumleve, Jr., for appellee.
   Matthews, J.

This is an appeal from a judgment for the defendant, appellee, rendered on a directed verdict at the close of the evidence, on the motion of the defendant therefor.

The plaintiff and defendant are corporations, the former engaged in the business of insurance and the latter in the business of transporting and delivering packages and other merchandise. Jenny, Inc., was engaged in dealing in and storing merchandise.

The plaintiff, appellant, issued a policy to Arthur Oberhelman and his wife, whereby it insured them against loss of or damage to certain coats or wraps, including a certain “natural ranch mink coat.” Plaintiff has succeeded to the rights of the insured.

The defendant entered into a contract with Jenny, Inc., to transport and deliver merchandise for it at a certain charge for each article, with perhaps a minimum weekly charge.

In February 1943, Mrs. Oberhelman bought a mink fur coat from Jenny, Inc., and stored the coat with it on two occasions, in-1944 and 1945, under a storage agreement fixing the value of the fur coat at $100 for the purpose of determining the storage charge, and limiting the liability of Jenny, Inc., in the event of loss or damage to the coat. A policy or contract evidencing those terms was given Mrs. Oberhelman.

On April 9,1946, Mrs. Oberhelman and the manager of J enny, Inc., entered into an oral agreement for the storage of six or seven coats, including the mink coat, upon the same terms that the fur coat was stored in 1944 and 1945, and Mrs. Oberhelman requested Jenny, Inc., to send for the articles. Jenny, Inc., thereupon instructed the defendant to go to the Oberhelman residence for the coats and transport them to the warehouse of J enny, Inc. The defendant went to the Oberlielman residence, obtained the coats and delivered them to Jenny, Inc’s., warehouse. It is admitted that while this coat was “in the delivery truck of the defendant” some damage was done to it. The evidence shows that the damage resulted from some liquid with which the fur coat came in contact, and that the exact nature of this liquid was unknown, but it was of such a character that it permeated the pelt and the lining of the coat and the effect could not be removed.

(1) It is urged that the judgment must be affirmed for lack of any proof of damage. In passing upon this contention, we must keep in mind the measure of damage for the loss of or damage to wearing apparel which has been used, at the time of the loss or damage. The actual damage is not necessarily the difference in the market value before and after the loss or damage.

It is said in 13 Ohio Jurisprudence, 144, Section 67:

“Where the property converted is of a strictly personal nature, and has little or no market value; the measure of damages for the conversion of such property is its reasonable value to the owner at the time of the conversion. In fact, it may be said that an almost universal exception to the market-value rule is applied in cases of converted property consisting of purely personal belongings such as household goods, portraits, manuscripts, and the like. The courts refuse to subject this class of goods to market-value rule, not because they have no market value, but because such market value does not afford the plaintiff a fair and just compensation.” (Italics ours.)

The market value- of used wearing apparel would be an uncertain guide in determining the compensation for its loss to the owner. It, of course, would be relevant evidence but could not be accepted as the yardstick in determining the actual damage.

On the subject of the measure of damages for con version of wearing apparel, it is said in the annotation to Stack v. Gudgel (60 Okla., 32, 158 P., 1144) in L. R. A., 1917D, 493, 501:

“In determining the damages for the loss or conversion of, or injury to, household goods and wearing apparel, evidence of cost, in connection with wear and tear, the length of time they have been in use, their condition at the time of the loss or injury, the expense of replacing them with other goods of a similar kind and in a similar condition, and any other facts which will enable the jury to determine the worth of the goods to the owner at the time of the loss, is proper for the jury’s consideration.”

There was evidence that the fur coat was bought by Oberhelman in 1943 at a cost of $2,028.35; that its replacement value or cost was fixed by a competent appraiser on July 6, 1945, at $3,500; and that' at the time it was delivered to defendant it was in perfect condition — according to the testimony of Mrs. Oberhelman, who was then the owner. She was asked what its value was to her at the time, but an objection to the question was sustained and no proffer of the witness’ answer was made, although an exception to the ruling was noted. The ruling on the objection cannot be held to be prejudicial error, in the absence of a proffer.

As already noted, it is our opinion that the reasonable value to the owner is the measure of damage. It is also our opinion that the owner is a competent witness, without other qualification, to testify to such value. 17 Ohio Jurisprudence, -473, Section 379; 20 American Jurisprudence, 751, Section 892.

We find the evidence which we have recited, plus the testimony that the coat was worth not more than $700 in its damaged condition, was sufficient to require the submission of the issue of the damages to the jury. It is urged that the coat was bought two years before the damage and that the replacement value was fixed a year before that date, and that, therefore, such evidence has no probative value. We do not agree. Taken together, they show a rising market value, and when taken in conjunction with the testimony that the coat was in perfect condition when delivered to defendant there is a basis for fixing the reasonable value to the owner.

(2) Next, it is urged that the defendant owed no duty to the plaintiff. It is said that the plaintiff was not a party to the contract whereby the defendant agreed to transport this fur coat — and that is true. Certainly, no duty toward the owner of the coat arose from the mere entering into contractual relations between the defendant and Jenny, Inc. Upon receiving instructions from Jenny, Inc., to obtain this fur coat from Mrs. Oberhelman, the defendant could have declined to do so without incurring any liability to her, notwithstanding its breach of its contractual duty to Jenny, Inc. But the defendant did not decline to assume the task of transporting the coat. On the contrary, it accepted the custody of the coat from Mrs. Oberhelman for transportation. It is true that in so doing the defendant was acting as the representative of Jenny, Inc., and delivery of the fur coat to defendant was delivery to Jenny, Inc. But that legal aspect of the transaction does not destroy or justify disregard of the fact that the defendant came into proximity to the owner of the coat by seeking and obtaining it from her. And, by reason of that proximity, certain duties arose by operation of law. The defendant was charged by law with the duty to so act as not to injure the owner or her property through its wilful or negligent act. It is no answer that the defendant acted in a representative capacity at the time. “An agent is liable for his torts in the same manner as any other person.” 3 Corpus Juris Secundum, 129, Section 220.

In considering whether an agent has brought himself within such proximity to a third person as to impose a duty upon him toward such third person, courts, particularly in earlier times, resorted to the distinction between misfeasance, malfeasance, and nonfeasance; and it has been frequently stated that the agent is liable to third persons for his misfeasance and malfeasance, but not for his nonfeasance. The difficulty with these terms as a criterion of the agent’s liability is that the terms themselves require definition to determine when nonfeasance ceases and misfeasance or malfeasance begins.

In 3 Corpus Juris Secundum, 130, Section 221, it is said:

“An agent is personally liable to third persons for injury resulting from his misfeasance or malfeasance, meaning by those terms the breach of a duty owed to third persons generally, independent of the particular duties imposed by his agency. * * * Accordingly, where an agent has entered upon an undertaking and neglects to perform a duty owed to his principal, if by this neglect he violates a duty he owes to a third person also, he is personally liable to the latter, his liability not being based on agency, but upon the ground that he is a wrongdoer or has failed in the common-law obligation to use that which he controls so as not to injure another.”

Injury in this connection, we understand, includes both physical and property damage.

This rule and the basis therefor are stated in 2 Restatement of the Law of Agency, 776, Section 354, as follows:

“An agent who undertakes to act for the principal under such conditions that some action is necessary for the protection of the person of others or of their tangible things is subject to liability to such others for physical harm to -them or to their things caused by his undertaking and subsequent negligent failure to act, if the need for action is so immediate or emergent that withdrawal from the undertaking is no longer possible without unreasonable risk to them, and the agent should so realize.”

The defendant accepted the custody of this coat knowing that while it was in transit the only protection it would have would be such as defendant would bestow upon it, and that defendant’s failure would result in damage.

The subject of the liability of an agent or independent contractor to a third person was under consideration in the case of Emery & Co. v. American Refrigerator Transit Co., 193 Iowa, 93, 184 N. W., 750, 20 A. L. R., 86, and was discussed in great detail in both the opinion and the A.L.R. annotation. In the A. L. R. headnotes to that case, it is stated:

“A refrigerator company which contracts with a railroad company to supervise the loading of fruit into cars and ice the cars so as to preserve the fruit is liable to the shipper for negligent performance of its undertaking to such an extent that the fruit is injured in transit.”

In the A. L. R. annotation to that case, at page 99, it is said: “An agent who violates a duty which he owes to a third person is answerable to such person for the consequences, whether it be an act of malfeasance, misfeasance, or nonfeasance. Stated in this form there is probably no case to be found to the contrary. But the doctrine laid down by some text writers, founded on Lord Holt’s dictum in Lane v. Cotton (1701), 12 Mod., 488, 88 Eng. Reprint, 1466, has caused much confusion in the decisions over a fictitious distinction between acts of malfeasance and misfeasance and those of nonfeasance. * * *

“If a servant owes a duty to a third person because of a contract with his master, there is no reason why he should not be liable for injury caused by its nonperformance. ”

See, also, Mollino v. Ogden & Clarkson Corp., 243 N. Y., 450, 154 N. E., 307, 49 A. L. R., 518. .

But it is said that Henshaw v. Noble, 7 Ohio St., 226, is authority for the proposition that ‘ ‘ an agent is never responsible to a third party for damages sustained through his nonfeasance.” We do not so construe that case. No such proposition is stated in the syllabus, and a reading of the opinion reveals that what the court did was to reverse the judgment because the trial court in its charge made no distinction at all between the liability of the principal and agent. The agent was engaged to make an excavation. The building on the adjacent lot collapsed during the night when no work was being done and fell into the excavation. The action was against the lessee of the lot on which the excavation was made, their contractors, architect, and a subcontractor engaged to do the excavating. The court said at page 232: “On this subject we think the portions which we have copied from the charge of the court were calculated to mislead the jury. They convey the idea that negligence is always to be regarded as a misfeasance, as a positive wrong, which will subject the agent equally with his principal to liability.” (Italics ours.) The court did not enter final judgment for the agent, but remanded the cause for a new trial.

That it is not the law of Ohio that an agent is never liable to third persons for injury caused by his nonfeasance is made clear by the case of Richards v. Stratton, 112 Ohio St., 476, 147 N. E., 645, the first paragraph of the syllabus of which is:

! “One who, though an agent of another, undertakes and enters upon a particular work, is required to exercise ordinary care in the manner of executing it, and if he negligently injures another is liable for the damage sustained.”

And, at page 481, the court quoted from Osborne v. Morgan, 130 Mass., 102, 39 Am. Rep., 437, with approval, as follows:

“ ‘It is often said in the books that an agent is responsible to third persons for misfeasance only and not for nonfeasance. And it is doubtless true that if an agent never does anything towards carrying out his contract with his principal but wholly omits and neglects to do so, the principal is the only person who can maintain any action against him for the nonfeasance. But if the agent once actually undertakes and enters upon the execution of a particular work, it is his duty to use reasonable care in the manner of executing it so as not to cause any injury to third persons which may be the natural consequence of his acts; and he cannot, by abandoning its execution midway and leaving things in a dangerous condition, exempt himself from liability to any person who suffers injury by reason of his having so left them without proper safeguards. This is not nonfeasance, or doing nothing, but it is misfeasance, doing improperly.’ ” See, also, 1 Ohio Jurisprudence, 801, Section 102.

So, we conclude that under the law of Ohio, when the defendant accepted custody of the fur coat from its owner, the defendant was charged with the duty of exercising care in its transportation, and that this duty was owing to the owner, and for neglect of that duty causing damage to the coat, defendant is liable to the owner.

(3) But, it is said that there is no evidence of negligence, and it is true that the record is silent as to the circumstances under which the coat came in contact with the liquid by which it was damaged. It is admitted that the damage occurred while the coat was in defendant’s custody. The facts were peculiarly within the knowledge of the defendant. Under such circumstances, we think the law cast upon the defendant the duty of explanation, and, in the absence of such explanation, an inference arises that an explanation would be detrimental to defendant. The defendant was a bailee who returned goods in a damaged condition. A prima facie case of neglect arose requiring an explanation. 5 Ohio Jurisprudence, 124, Section 30.

(4) The question naturally arises as to the extent of the defendant’s liability. It was the representative of Jenny, Inc., engaged in performing its contract, when the delict occurred. Jenny, Inc’s., liability was limited to $100. Is defendant’s liability similarly limited? We are of the opinion that it is so limited.

In 2 Restatement of the Law of Agency, 759, Section 347, it is said:

“An agent who is acting in pursuance of his authority has such immunities of the principal as are not personal to the principal.”

Had the principal acted in person in carrying this coat and had been sued for the damage done, no matter what the form of action, its liability would have been limited to $100. When it engaged the defendant to get the coat for it, it clothed defendant with all the authority and rights which it, the principal, had against the owner, including the right to have liability limited to $100. It was a defense pro tanto, available equally to Jenny, Inc., and any and all in possession of the coat under its authority.

For these reasons, the judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

Ross, P. J., Hildebrant and Matthews, JJ., coneur in the syllabus, opinion, and judgment.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Welch, Appellant, v. City of Lima, Appellee.
    (No. 998
    Decided July 10, 1950.)

      Messrs. Cable S Cable and Messrs. Lippineott & Lippincott, for appellant.

      Mr. Lee G. Van Blargen and Mr. 1. B. Steele, for appellee.
   Per Curiam.

This is an-appeal on questions of law from a judgment of the Municipal Court of Lima, in an action wherein the appellant, Bruce H. Welch, was plaintiff and the appellee, the city of Lima, was defendant.

In his amended petition the plaintiff purported to plead'' four causes of action, but, in fact, pleaded only1 one, to wit, a cause of action to recover the difference between, the amount paid him by the city as salary, for his services as a regular fireman during the period from May 15, 1932, to January 15, 1936, inclusive, and the amount fixed for his salary by an ordinance of the city.- .T-he salary .fixed by the ordinance was $137.50 per uioilth; aiid': the' amount paid him during, such period whs $10.30 -per month i'ess than the 'amount fixed., by ordinance. The total amount withheld during-such- period, was $588.80, no part of which has been paid to plaintiff.

' In what is designated as his first cause of action plaintiff, .in substance, alleged that the. .'-above-mentioned part of his salary was withheld by the city upon its promise of payment after expiration of the then financial stringency of the city, which terminated in 1947.

In this designated cause of action plaintiff alleged further that, as he served continuously ■ during such period in his capacity as a fireman and the city-had the benefit of his services, it is estopped to deny its liability to pay him therefor.

In his second designated cause of action plaintiff, in substance, alleged that he permitted part of his salary to be withheld by the city because of the representations by its duly authorized officers that the withholding was necessary to assure his continued employment at his fixed salary level and that he would be paid the amount withheld upon expiration of the then financial stringency, which terminated in 1947; and that his rights under the civil service laws of Ohio were thereby violated.

In his third designated cause of action, plaintiff, in substance, alleged that he permitted part of his salary to be withheld by the city because of representations by its duly authorized officers and agents that his salary would remain at its fixed level and that he would be paid the withheld portion of his salary upon the expiration of the then financial stringency.

In his fourth designated cause of action the plaintiff, in substance, alleged that the withholding by the city of a portion of his salary constituted a taking of his property without due process of law in violation of his constitutional rights.

To this amended petition and to each cause of action therein stated, a demurrer was filed by the municipality on the following grounds:

(a) The amended petition and each cause of action therein did not state facts which showed a cause of action.

(b) Each cause of action in the amended petition was barred by the statute of limitations, Section 11222, General Code.

(c) The action was not brought within the time limited'for the commencement of such action, that is, within six years, as provided in Section 11222, General Code.

The lower court overruled the demurrer as to the first, second, and third designated causes of action and sustained it as to the fourth.

Thereafter, the eity filed its answer to the amended petition in which it admitted its corporate existence; admitted that on the 23rd day of July 1917 the plaintiff was employed by the city as a regular fireman in its fire department and continued in that employment until the 1st day of December 1944; admitted that during the period of plaintiff’s employment his salary was fixed by ordinance; admitted that the ordinance fixing his salary at $137.50 per month remained unchanged from the 15th day of May 1932 to the 15th day of January 1937, inclusive; admitted that by reason of the financial stringency of the city plaintiff agreed with the city that he would accept an amount less than his monthly salary of $137.50, from the Loth day of May 1932, to and including the 15th day of January 1937; and admitted that plaintiff did accept from the municipality an amount less than his monthly salary of $137.50, from the 15th day of May 1932, to and including the 15th day of January 1937.

Four separate defenses were pleaded by the city in its answer to the amended petition. The first was a general denial, the second was the statute of limitations, the third was laches and delay on the part of plaintiff in asserting his claim, and the fourth was that a lost .or destroyed document authorized the salary deduction.

Plaintiff for reply averred that the amount of his salary withheld by the city was not due him until the city recovered from its financial stringency, and that the city recovered from its financial stringency in 1947, whereupon the sum of $588.80 became due and payable to plaintiff, and denied that he was guilty of laches or that he signed the alleged instrument set forth in the city’s answer.

The cause was submitted to the Municipal Court upon the pleadings and was tried before a jury.

Upon the trial no evidence was introduced tending to prove the existence of the lost or destroyed document referred to in the fourth defense pleaded by defendant, so it is unnecessary to consider that defense.

It is averred in the amended petition and not controverted in the answer that plaintiff was a civil service employee of the fire department of the city from July 3, 1917, to September 1, 1944; that his compensation was fixed by ordinance which was in full force and effect and which remained unchanged during the period from May 15, 1932, to January 15, 1937: and that his compensation as fixed by such ordinance for the period of May 15, 1932, to January 15, 1937, was $137.50 per month.

It is admitted by the pleadings that the city did not pay plaintiff all his compensation as fixed by ordinance, it having deducted therefrom the sum of $10.30 per month during the period between May 15, 1932, and January 15, 1937, a total of $576.80. It is admitted further by the pleadings that the city was suffering a financial stringency during such period, that by reason thereof a deduction of $10.30 per month was made from plaintiff’s salary, and that the city has not paid these deductions to the plaintiff.

In addition to the above-conceded facts the plaintiff presented' evidence which consisted of his testimony, the testimony of active and retired members of-the fire department of the city, the testimony of a former clerk of the Municipal Court- of Lima, and the: testimony of the auditor and a former treasurer of the city.

The plaintiff, through his testimony and the testimony of the active and retired members of the fire department established that a meeting was held during the month of May-1932 at the central fire station in Lima, which meeting-was attended, by members of the fire department, Fred Becker, now deceased, who was then city manager, Dave Bogart, now deceased, who was then a member of the city commission, and Charles Churchill who was then auditor of the city.

Following this the plaintiff attempted to introduce in evidence certain statements by city manager Becker and city commissioner Bogart to the effect that the municipality was in financial distress; that it was necessary to curtail expenses; that other municipalities had requested voluntary salary reductions of their employees; that if members of the fire department were agreeable to accept a voluntary salary reduction the money would be paid when the municipality was financially able; and that otherwise it would be necessary to go to the commission and have an ordinance passed cutting wages which would be more drastic and men would be laid off. This evidence was excluded by the court.

• The plaintiff also offered evidence tending to prove that similar statements were subsequently made by city manager Becker. This evidence was also excluded.

The plaintiff thereafter proffered evidence tending to prove that the financial stringency terminated in 1947 and that during that year and thereafter the city was financially able to pay the plaintiff. This evidence was also excluded.

Upon cross-examination the plaintiff admitted that he.accepted, endorsed, and cashed .his reduced salary cheeks, and that he made .no demand upon the city for the payment of any withheld salary until the. latter part of 1948 or the fore part of 1949.

A copy of the charter of the city was introduced in evidence and is attached as an exhibit to the bill of exceptions. This charter was in full force and effect during all the times referred to in the amended petition.

Section 3 of the charter provides:

“Section 3. Creation and powers. There is hereby created a city commission to consist of five electors of the city elected at large, who shall hold office for a term of four years beginning January 1st after their election, excepting that the two members elected at the first election by the lowest vote shall hold office for the term of two years.

“All the powers of the-city, except such as are vested in the board of education, board of health, and the judge of the criminal court, and except as otherwise provided by this charter or by the Constitution of the state, are hereby vested in the city commission: and, except as otherwise prescribed by this charter or by the Constitution of the state, the city commission may by ordinance or resolution prescribe the manner in which any power of the city shall be exercised.. In the absence of such provisions as to any power, such power shall be exercised in the manner now or hereafter prescribed by'the general laws of the state applicable to municipalities. ” ;

Section 17, of the charter provides, among other things:

“The powers and duties of the city manager shall be:

“(e) To attend all meetings of the commission, with a right to take part in the discussions but having no vote.

“(f) To recommend to the commission for adoption such measures as he may deem necessary or expedient.”

Upon the conclusion of the testimony offered by the plaintiff, a motion for a directed verdict for the. defendant was sustained, and the court directed the jury to return its verdict in favor of the city. Judgment was thereafter entered upon the verdict, and that is the judgment from which this appeal is taken.

The plaintiff assigns error in a number of particulars but in his brief specifies and argues only the following two:

1. Error in refusing to admit testimony and exhibits offered by plaintiff.

2. Error in withdrawing the case from the jury and directing a verdict for defendant.

In the exercise of our statutory prerogative the errors specified and argued in plaintiff’s brief will be the only ones considered. They will be considered in the order mentioned.

1. It is the settled law of Ohio that a municipality has only such powers as are conferred by the Constitution, the statutes of the state, and by charter adopted pursuant to the Constitution and statutes of the state; that the officers of a municipality have only such powers as are conferred by the Constitution, statutes, and charter; and that such powers may be exercised only in the manner proscribed by statute and the charter.

The powers of the city of Lima and its officers are conferred by its charter.

It will be noted that under its charter all powers of the city, except certain specific ones not involved in this case, are vested in the city commission, and that, except as otherwise provided by the charter or the Constitution of the state, the city commission may by ordinance or resolution prescribe the manner in which •the powers of the city shall be exercised.

Under the statutes and the charter, the city commission has the sole power to authorize the making of any agreements upon the part of the city and such power can be exercised only by the commission assembled and acting as a body.

Neither a member of the commission, as an individual, nor the city manager has any authority to authorize any binding agreement upon the part of the city.

Persons dealing with municipal corporations are charged with notice of all limitations upon the authority of the municipality or its agents, and they are required, at their peril, to ascertain whether statutory requirements relating to the subject of the transaction have been complied with. 28 Ohio Jurisprudence, 924 and 925, Municipal Corporations, Section 575 and cases there cited.

In this case, there is no evidence of any action by the city commission authorizing, acquiescing in, or ratifying the making of any agreement upon the part of the city whereby any portion of plaintiff’s salary should be withheld during any period of time or that the time of payment thereof should be extended to any specified time. Consequently, evidence tending to prove that such an agreement was made on behalf of the city by the city manager and a member of the city commission acting individually and evidence tending to prove the existence of the financial stringency of the city and of the ability of the city to pay the withheld portion of plaintiff’s salary upon the expiration of such financial stringency was properly excluded.

2. As hereinbefore stated, there is no evidence tending to prove a valid agreement between the city and the plaintiff as to the withholding of payment of a portion of plaintiff’s salary or extending the time of payment thereof.

In the absence of evidence tending to prove such an agreement, plaintiff’s salary and all portions thereof became due and payable each month, as prescribed by the salary ordinance of the city, and the causes of action for any unpaid portions of such salary accrued when such unpaid portions became due.

We approve and adopt as correct statements of law applicable to an action such as this, as well as to such an action by a police officer, the syllabus of the case of Wright v. City of Lorain, 70 Ohio App., 337, 46 N. E. (2d), 325, which syllabus reads as follows:

‘ ‘ 1. An action by a police officer of a municipal corporation to recover deductions in salary which had been made during several years of municipal financial stringency, is based upon a liability created by statute, and the six-year statute of limitation (Section 11222, General Code) runs in favor of the municipality.

“2. The statute of limitations may be invoked by a municipal corporation in the same manner and to the same extent as individuals; and the doctrine of estop-, pel may in a proper case be applied to prevent a fraudulent or inequitable resort to such statute as a defense. ’ ’

Applying the law as set forth in the above syllabus to the facts of the instant case, it is apparent that a cause of action in favor of the plaintiff for the amounts withheld accrued each month as .the monthly installments of salary became due in accordance with the terms of the salary ordinance, and that, as this action was not commenced until May 25, 1949, the causes of action for all the' items of salary withheld are barred by the provisions of Section 11222, General Code, unless the city is estopped from pleading the provisions of the statute as a defense.

Plaintiff contends that' the city is so estopped for the following reasons:

1. Under the statutes applicable to civil service, plaintiff was entitled, by reason.of his seniority under the civil service laws, to priority as to employment over a large number of other members of the fire department, and -if the number of firemen had been reduced by the city he .would have been entitled, by reason of his seniority, to continue in his employment without reduction in salary, and the action of the city in not redu'cing the number of firemen and withholding payment of portions of his salary amounted to coercion, precluding the city from resorting to the defense of the statute of limitations.

2. The city had received the benefit of his services during the period that payment of a portion of his salary was withheld by it and was thereby precluded from resorting to the defense of the statute.

3. The withholding of payment by the city of portions of plaintiff’s salary constitutes a taking of his property without due process of law in violation of his constitutional rights.

We will consider these contentions in the order mentioned.

1. The city, in its period of financial stringency, had the legal right either to reduce the number of firemen employed by it or to reduce their salaries, or both, so that their employment would come within the limits of the funds available for payment of members of the department. Hence, the proposal of the city manager to the effect that the city would have to reduce salaries unless members of the department consented to the deductions from their salaries as fixed by ordinance did not constitute coercion or deprive plaintiff of any rights by reason of his civil service seniority.

2. As hereinbefore mentioned, no agreement authorizing the city to withhold payment of portions of plaintiff’s salary had been made by anyone authorized to make such an agreement on behalf of the city.

It is true that the city had the benefit of plaintiff’s services as a fireman during the period in which portions of his salary were withheld by the city, and that the city ivas obligated to pay plaintiff’s salary as prescribed by its salary ordinance.

It is also true that there is no evidence tending to prove that the city commission, which had the sole authority in the matter, authorized, acquiesced in, or ratified any agreement whereby portions of plaintiff's salary were withheld or the time of payment thereof was extended until such time as the city should be financially able to pay the same.

Estoppel of the city may be predicated only upon the actions of some governing body or official who has authority to act, such as the city commission in the instant case, and it may not be predicated upon the actions of others who are without authority to act on behalf of the city.

Consequently, the receipt by the city of the benefits of plaintiff’s services during the period in which portions of his salary were withheld did not in any way estop the city from resorting to the defense of the statute of limitation.

The decisions of the Common Pleas Court of Franklin County, in the cases of Cummings v. City of Columbus, No. 16692, and Mangold v. City of Columbus, No. 168125 (both unreported), on the question of estoppel are not applicable to the facts of the instant case as those decisions are predicated on certain resolutions of the council of the city of Columbus recognizing the validity of certain agreements between that city and its employees relating to the withholding of portions of the compensation of such employees, as prescribed by salary ordinances of such city, until such time as the city should be financially able to pay the same. The city council, in that case, had full authority to act in the premises on behalf of the city of Columbus, whereas, in the instant case, there is no evidence tending to prove any action of any nature by the city commission on behalf of the city of Lima.

3. The retention by the city of a portion of the plaintiff’s salary did not constitute a taking of his property without due process and did not violate his constitutional rights.

The same situation exists when any debtor fails to pay the full amount due to a creditor. The unpaid portion never becomes the property of the creditor, and, consequently, its retention does not constitute a taking of property without due process.

Furthermore, if such retention constituted a taking of property without due process, a cause of action for its recovery would accrue at the time the retention occurred.

The contention of the plaintiff that the city is estopped to resort to the statute of limitation as a defense to his cause of action is, therefore, without merit.

The plaintiff contends further that, as the city, through its commission, had power, by ordinance, to enter into an agreement proposed by the city manager, the member of the city commission, the auditor, and members of the fire department, the agreement made by them was voidable and not void; and, being voidable, it was subject to ratification by the city.

He contends further that the city ratified this agreement by the following acts on its part:

A. The city withheld exactly seven and one-half per cent from the wages of plaintiff, which was an integral part of the arrangement.

B. The city did not lay off any of the firemen as provided by Section 486-17(b), General Code, but retained the services to its benefit of all the members of the force of firemen, which was an integral part of the arrangement.

C. The city did not reduce the wage ordinance, likewise an integral part of the arrangement.

These contentions will be considered together.

As we have hereinbefore stated, the city commission had the sole authority to act on behalf of the city in authorizing, acquiescing in, or ratifying the arrangement hereinbefore discussed.

There is no evidence tending to prove that the city commission acted in any manner referable to the arrangement or to the authorizing, acquiescing in, or ratifying of such arrangement.

The portions of plaintiff’s salary that were withheld by the city were withheld by officers of the city other than the members of the city commission.

The city neither laid off nor reduced the salaries of any firemen, and although these matters, together with the withholding of portions of the salaries, were an integral part of the arrangement made by the city manager, a member of the city commission, and the city auditor with the firemen, there is no evidence that the city commission, which was vested with the sole power to act in the premises, in any manner authorized, acquiesced in, or ratified the arrangement.

As the city commission did not act in any of the respects mentioned, there was no ratification of the arrangement on the part of the city.

Under the law there were no issues raised by the evidence requiring submission to the jury.

For the reasons mentioned, the court did not err in any of the particulars assigned by plaintiff and specified and argued in his brief. The judgment of the Municipal Court is, therefore, affirmed, and the cause remanded for execution.

Judgment affirmed.

Guernsey, P. J., Middleton and Jackson, JJ., concur.


author: Conn, J. Fess, J.,

text:
    Haag, Appellant, v. Meffley, Admr., Appellee.
    (No. 4503
    Decided January 15, 1951.)

      Mr. George R. Effler, for appellant.

      Mr. Leroy C. Lancer and Mr. Robert J. W. Meffley,, for appellee.
   Conn, J.

The defendant demurred to the amended petition of plaintiff on the ground that the court had no jurisdiction of the subject matter of the action and that the petition did not state facts which show a cause of action. That demurrer was sustained by the trial court and the amended petition was dismissed. From that judgment this appeal is taken on questions of law.

It was alleged in the amended petition that Samuel L. Harmon died February 6, 1949; that plaintiff, believing herself to be his adopted daughter and sole heir, was appointed administratrix of decedent’s estate on February 16, 1949; that subsequently plaintiff learned that she had not been legally adopted and was not the heir of Samuel L. Harmon, deceased; that she was disqualified to act as administratrix and resigned on May 18, 1949; and that thereupon Robert J. W. Meffley, defendant herein, on May 18, 1949, was appointed as administrator de bonis non of the estate.

It was averred further that the Probate Court ordered and directed that notice of such appointment be published as required by law and that all persons having claims against the estate should present them to the admnistrator de bonis non for allowance within four months from the date of his appointment. A copy of such published notice was incorporated in the amended petition.

It is the claim of plaintiff that on or about November 27, 1943, at the instance and request of decedent, plaintiff made a loan to him in the amount of $972.12; that such loan has not been repaid; and that there are no credits thereon. Plaintiff averred further that on July 12,1949, she presented written proof of her claim to defendant for allowance and on the same day her claim was rejected. On July 20, 1949, this action was begun to recover judgment for such amount, with interest.

Plaintiff assigns as error the sustaining of defendant’s demurrer to her amended petition.

Defendant contends that the Probate Court has exclusive jurisdiction of the subject of this action by virtue of Section 10501-53, General Code, and that, plaintiff having failed to present her claim for allowance to the Probate Court during the three-month period she was serving as administratrix, as required by Section 10509-106, General Code, there is no provision of the Code giving the Common Pleas Court jurisdiction of her action to enforce allowance of her claim.

However, in the application of Section 10501-53, General Code, it is pertinent in every case to bear in mind that the grant of exclusive jurisdiction is subject to the general limitation found in this section that “such jurisdiction shall be exclusive in the Probate Court unless otherwise provided by law.” On the facts alleged in the amended petition and all inferences therefrom, it does not appear that the demurrer raised an issue invoking the exclusive jurisdiction of the Probate Court.

Defendant contends also that under Sections 10509-106, 10509-107, and 10509-108, General Code, plaintiff had a complete and exclusive remedy, and that her claim is now barred. The first of the above sections requires the executor or administrator, within throe months from the date of appointment, to present any claim or claims which he in his individual capacity may have to the Probate Court for allowance, and if such claims amount to $50 or more, the court must fix a day for hearing thereon not less than four weeks or more than six weeks from the date of their presentation. This section also requires the executor or administrator to give notice “to all the heirs, legatees or devisees of the decedent interested in the estate, and such creditors as are therein named.” Provision is made for manner of service of notice, and the following two sections contain provisions for the appointment of an attorney to represent the estate, provisions for exceptions to the decision of the court, and related provisions.

It affirmatively appears in the amended petition that during the period plaintiff was administratrix of the estate she was regarded as sole heir of the decedent. It does not appear that there were any creditors, nor is it inferable that there were any or that the estate was insolvent. Even if the right of retainer under the common law still obtained, plaintiff might have exercised that right without prejudice on the ground that she was the sole heir.

Under these circumstances, it would have been a vain thing for plaintiff to have presented her claim to the Probate Court and to have served notice thereof on herself as sole heir or to undertake to serve such notice on nonexisting creditors. As the law does not require a claimant or litigant to do a vain thing, the mandatory provisions of the statutes, ineluding those of special limitation, are quite uniformly softened and not enjoined when such application would run contrary to reason and common sense.

We cite a few cases wherein recognition has been given to this doctrine of the law. Stevens v. Hartley, 13 Ohio St., 525; Gerhold, Admx., v. Papathanasion, 130 Ohio St., 342, 346, 199 N. E., 353, 103 A. L. R., 334; Fair v. Fair, Exr., 46 Ohio App., 51, 56, 187 N. E., 727; Home Owners’ Loan Corp. v. Doolittle, Admr., 57 Ohio App., 329, 13 N. E. (2d), 920; Goehring v. Dillard, a Minor, 74 Ohio App., 259, 58 N. E. (2d), 435, affirmed, 145 Ohio St., 41, 60 N. E. (2d), 704.

As already pointed out, it was alleged in the amended petition that, upon the appointment of the administrator de bonis non, notice of such appointment was published as required by law, and creditors were ordered to present their claims within four months from the date of his appointment. The demurrer admitted the truth of these averments.

Pursuant to this notice, plaintiff presented her claim for allowance on July 12, 1949, which was more than four months following her appointment as administratrix but within the period of four months following defendant’s appointment as administrator de bonis non.

Section 10509-155, General Code, provides:

“Notice of the appointment of the new administrator shall be given by probate judge in the manner prescribed with respect to an original administrator. ”

Section 10509-6, General Code, makes provision for the publication of notice of an original appointment, as follow's:

“Within one month after appointment of the executor or administrator, the probate judge shall cause notice of the appointment to be published in some newspaper of general circulation in the county, in which the letters were issued, for three consecutive weeks, but such notice shall not be necessary when there is no estate except a right of action for wrongful death.”

These statutes contain no provision for notice to creditors to file their claims within a given period. However, Section 10509-112, General Code, making provision for presentation, allowance and rejection of claims, requires creditors to present their claims to the executor or administrator within four months after the date of his appointment.

• In this case, the probate judge included in the notice of appointment an order to creditors to file their claims within four months from the time of appointment of the administrator de bonis non and with this notice and order the plaintiff complied. In view of the conclusion reached that plaintiff was not required to present her claim to herself as executrix, does Section 10509-112, General Code, require the computation of time from the original appointment, or, in other words, did the demurrer raise the issue of the validity of the order of the probate judge now under consideration?

Defendant contends that plaintiff “can not avail herself of any right” of the published notice as such notice was for the benefit of general creditors, and that the notice does not “amount to a saving clause or qualification of the applicable statute of limitation, G. C. 10509-106.”

As hereinbefore concluded, plaintiff was not required to present her claim to herself as administratrix. Upon her resignation and the appointment of her successor, she became a creditor of the estate. Plaintiff’s claim not being secured, her relationship to the estate was that of general creditor. As such, she filed her claim pursuant to the oi’der of the probate judge.

At the time the order for published notice was made, it affirmatively appears that the Probate Court had jurisdiction of the parties and of the subject matter. On the other hand, it nowhere appears on the face of the amended petition, or otherwise, that the order of the probate judge fixing the time within which creditors should present their claims expressly violates any statute or that the order is void for any other reason. Under these circumstances, the issue raised by the demurrer constitutes a collateral attack on the order made by the Probate Court.

It is a rule of general application that every act of a court of competent jurisdiction, having jurisdiction of the parties and of the subject matter, is presumed valid, and this presumption can not be overcome in a collateral proceeding unless it be made to appear that the action taken was void for want of power or authority on the part of the court. See 23 Ohio Jurisprudence, 1122, Section 966, and cases there cited.

A concise statement of the rule is found in 49 Corpus ■Juris Secundum, 803, Section 407, which we quote: “Orders and decrees of courts having probate jurisdiction, in any case in which jurisdiction has attached generally are not open to contradiction or re-examination in any collateral proceeding * * *.”

We call attention to the case of State, ex rel. Young, v. Morrow, Judge, 131 Ohio St., 266, 2 N. E. (2d), 595, in which a writ of prohibition was sought against the probate judge of Highland county, prohibiting him from continuing to exercise jurisdiction in the matter of a certain estate. We quote from the first paragraph of the syllabus as follows:

‘ ‘ Probate courts are courts of record, having power to determine their own jurisdiction in proceedings not void ab initio, and their judgments are protected against collateral attack to the same extent as are the judgments of other courts of record.”

The following cases shed some light on the matter of collateral attack: State, ex rel. Hawke, v. LeBlond, Presiding Judge, 108 Ohio St., 126, 140 N. E., 510; Huffer v. Prindle, 22 Ohio App., 241, 153 N. E., 527; State, ex rel. De Ran, v. Myers, Sheriff, 83 Ohio App., 469, 84 N. E. (2d), 240.

When it appears that a judgment or order for any reason is void and not merely voidable on the ground of some irregularity, an attack upon it is regarded as direct and not collateral. Kingsborough v. Tousley, 56 Ohio St., 450, 47 N. E., 541; Scholl v. Scholl, 123 Ohio St., 1, 173 N. E., 305; Binns, Exr., v. Isabel, 72 Ohio App., 222, 229, 51 N. E. (2d), 501; Young v. Guella, 67 Ohio App., 11, 35 N. E. (2d), 997.

In the instant case, the want of power or authority on the part of the probate judge to make the order under consideration does not appear. If the order were erroneous and the legal rights of defendant were prejudiced, it was subject to review on appeal.

It follows that the demurrer of the defendant should be overruled.

Judgment accordingly.

Fess, J., concurs.

Carpenter, J., concurs in the judgment.

Fess, J.,

concurring. Under the allegations of the petition to which this appeal relates, plaintiff presented her claim on July 12, 1949, within four months after the appointment of the administrator de bonis non but after four months from her appointment as administratrix.

Section 10509-154, General Code, provides:

“If notice of the appointment of the former executor or administrator was not given as prescribed in this chapter, the new administrator shall be liable to the actions of creditors whose claims were not presented to the former executor or administrator, as if no executor or administrator had been previously appointed.”

Section 10509-155, General Code, provides:

“Notice of the appointment of the new administrator shall be given by the probate judge in the manner prescribed with respect to an original administrator. ’' Section 10509-156, General Code, provides:

“No provision in law relating to limitation of actions against a new administrator shall revive a claim barred under this or any other act, during the continuance in office of the original executor or administrator, or of a former administrator de bonis non.” Section 10509-157, General Code, provides:

“When assets come to the hands of such new administrator, after any of the periods above limited for. the commencement of suits against him, he shall account, for them, and be liable to suits and proceedings on account thereof, as is provided in this chapter with respect to an original administrator.”

The language, “no provision in law relating to limitation of actions against a new administrator,” in Section 10509-156, General Code, is vague. What other provisions of law relate to limitation of actions against a new administrator f Would the section bar suits filed pursuant to Section 10509-157 ? As I construe Section 10509-156, in the light of Section 10509-154, it was the , intent of the Legislature to prevent the revival of a claim previously barred by lapse of time against a prior administrator, provided notice of the appointment of the prior administrator had been published. As indicated above, plaintiff’s claim as a creditor of the estate was not barred at the time the administrator de bonis non was appointed, since he was appointed within four months after plaintiff’s appointment as administratrix. Section 10509-156, therefore, does not, in terms, bar the filing of plaintiff’s claim within four months after the appointment of the administrator de bonis non. The defense of the statute of limitations is regarded as meritorious, but courts will avoid giving to the limiting statute any construction other than that which the words demand. Chisnell v. Ozier Co., 140 Ohio St., 355, 44 N. E. (2d), 464.

It is, therefore, concluded that the demurrer to the petition was improperly sustained, and that the judgment should be reversed and the cause remanded to the Court of Common Pleas for further proceedings.


author: Wiseman, J.

text:
    Alexander Hamilton Institute, Inc., Appellant, v. Jubelt, Appellee.
    (No. 4525
    Decided March 5, 1951.)

      Messrs. Cowan é Adams and Mr. Paul IF. Martin, for appellant.

      Mr. David E. Morgan, for appellee.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Municipal Court of Columbus. The plaintiff-appellant, the Alexander Hamilton Institute, Inc., filed a petition in the Municipal Court of Columbus alleging that on the sixth day of March 1947 plaintiff and defendant entered into a contract whereby the defendant enrolled in plaintiff’s modern business course and service, extending over a period of 24 .months from the date of the contract, for a total consideration of $225, payable $10 with the application for enrollment and $10 per month thereafter, beginning April 10,1947; that the contract provided further that should any of such installments become due and remain unpaid for 60 days or more the entire balance might, at the option of the institute, be declared immediately due and payable; and that the contract was not subject to revocation. The petition alleges further that plaintiff performed all its obligations under the contract, and that the defendant, after the payment of $40, wrongfully breached the contract by refusing to perform further. The plaintiff prayed for judgment in the sum of $185.

The defendant in his answer admitted entering into the contract as alleged in the petition and alleged that on June 23, 1947, he notified the plaintiff in writing that he no longer cared to continue the course.

The evidence shows that after-making the $10 down payment the defendant paid three $10 monthly installments and on August 28, 1947, notified the plaintiff that he could not proceed further under the contract. The evidence shows further that the defendant returned to plaintiff all the material, which it received and held subject to the defendant’s order.

At the trial the plaintiff introduced evidence by way of deposition wherein its assistant treasurer testified as follows:

“Q. What expenses had the Alexander Hamilton Institute actually incurred in connection with the enrollment of Karl Jubelt for its modern business course and service as of August 28, 1947? A. The institute had actually incurred the following expense: Salesman’s commissions $66.25; sales department expense $37.03; service department expense $13.26; general administration expense $20.47; credit and collection expense $10.80; printing of 24 text volumes $12.38: author’s fees $3.60; and expressage $1.12.

“Q. What is the total of these expenses? A. $164.91.

“Q. What would the profit have been to the Alexan der Hamilton Institute if Mr. Jubelt had paid his enrollment fee? A. $20.25.

“Q, What is the amount of the damage to the Alexander Hamilton Institue as a result of Mr. Jubelt’s failure to pay more than $40? A. The total damage including loss of profit amounts to $185.16. Mr. Jubelt having paid $40. on account the net damage amounts to $145.16.” ; ■

The court rendered judgment in favor of the plaintiff in the amount, of $351 As. .a consequence plaintiff has recovered the amount' of $75 on the contract.

-. The principles of law controlling the rights of the plaintiff arising out of a breach of contract of a student are not well settled. However, we find one well considered case in Ohio which discusses the three rules followed in several jurisdictions. In Refrigeration & Air Conditioning Institute v. Rine, 80 Ohio App., 317, 75 N. E. (2d), 473, the Court of Appeals for Knox county, in 1946, had before it for consideration a similar state of facts. In the Riñe case Judge Sheriek stated that under the Massachusetts rule the school may recover the full contract price; that under the Nebraska rule the school may recover the full contract price, unless, the student can lessen his liability by showing savings in the school’s expenses brought about by its not having to perform the contract. The third rule, known as the Michigan rule, was followed in-that case. This rule is that a school can recover money , for actual loss, and the burden is upon the school to make proof thereof. The court cited and discussed numerous cases bearing upon this proposition. An independent search shows that the Michigan rule may be stated as follows:- A party to an executory contract, on: refusing to proceed therewith, is liable only for damages resulting from the breach and apt, for the contract price. The burden is on the plaintiff suing for breach of an executory, contract to establish the extent of damage.

In the instant ease the defendant admits the breach and admits further that he is liable for some damage, but denies the right of the plaintiff to recover $185, that being the difference between the contract price of $225 and $40, the amount which defendant paid. The plaintiff tried this case on the theory that it was required to establish its claim for .damages resulting from the breach and points to the evidence hereinbefore set forth that it has shown damages, including loss of profit, in the amount of $185.16, against which should be credited $40, the amount paid by the defendant, leaving a balance, due plaintiff as damages, in the sum of $145.16. The plaintiff contends that the judgment of the trial court in the amount of $35 is contrary to law and against the manifest weight of the evidence.

This court adheres to the Michigan rule which was followed in the Bine case. In applying this rule to the evidence in this ease, we cannot say that the judgment of the trial court was against the manifest weight of the evidence. In the enrollment application the pláintiff agreed to furnish a modern business course-and service to the defendant, extending over a- period of two years. The service comprised the following:

“Modern Business Text — twenty-four bound ' volumes, containing a digest of present-day business principles and practice — forwarded prepaid.

“Modern Business Reading Guides — directing reading of text — one every month.

“Modern Business Lectures — the written experience of prominent business men — one every month.

“Modern Business Problems — actual business problems, solutions to which will be reviewed — one every month.

“Personal Service — answers to all inquiries in connection with the course — advisory service on personal business problems.

“Business Conditions Publications — for two years —comprising Business Conditions Weekly, a monthly business progress bulletin, a credit and sales bulletin, and a commodity and trade bulletin — weekly investment bulletin.”

It is apparent that plaintiff was not required to, and did not, render any such service after the breach, and that, after the defendant returned the books and material which the plaintiff had forwarded to the defendant, plaintiff did not suffer great damage by reason of the defendant’s breach. The plaintiff has recovered in payments made by the defendant and by the judgment the amount of $75, which is one-third of the total contract price, whereas only one-sixth of the period of time covered by the course had elapsed at the time of the breach. Considering that the plaintiff would be entitled to $20.25, which represents the profit on the contract, the additional amount which it received, $54.75, amounts to approximately one-fourth of the contract price. In view of the fact that the plaintiff is now in possession of all its books and material, and that for the greater portion of the time covered by the contract it will not be required to furnish any material or service by reason of defendant’s breach, we cannot say that the recovery of the plaintiff of one-third of the total contract price is against the manifest weight of the evidence or contrary to law.

As we find no error in the record prejudicial to the rights of the plaintiff, the judgment is affirmed.

Judgment affirmed.

Hornbeck, P. J., and Miller, J., concur.


author: Matthews, J.

text:
    Coward et al., Appellees, v. Fleming, Appellant.
    (No. 7387
    Decided April 2, 1951.)

      Mr. Vincent Aug and Mr. James L. Elder, for appellees.

      Messrs. Gorman, Silversteen S Davis and Mr. David Howe, for appellant.
   Matthews, J.

The plaintiffs and defendant owned adjacent lots with buildings thereon both fronting on West Seventh street in the city of Cincinnati, Ohio. The defendant’s title was subject to a lease for five years, beginning on the first day of May 1945 and ending on the first day of May 1950, to Mary Williams who was placed in possession and continued in possession during all the time in which the events giving rise to this controversy occurred. The rental was $50 per month, with a privilege of purchase for $6,000, upon the exercise of which the monthly payments were to be applied upon the purchase price. The lease contained the standard provision that upon default for 30 days in payment of rent it should be lawful for the lessor to re-enter and enjoy the premises as in her former estate.

The lessee defaulted in the payment of rent in February 1948,. but the defendant did not exercise her right to re-enter and enjoy the premises and the lessee continued in uninterrupted possession.

Sometime in the spring of 1947, the lessee obtained a city permit to dig a trench on the leased property. Through either agents or independent contractors she caused this trench to be dug and left it open until May 1948 at which time the foundation wall, sidewalk, and sewer on plaintiffs’ adjoining property slipped and buckled, causing the damage that gave rise to this action.

The defendant had nothing to do with securing the permit or in the planning or digging of the trench. The lessee was not in default at the time the trench was dug, but became in default before the plaintiffs’ wall, sidewalk, and sewer were damaged.

While there is some slight evidence that the excavation was more than nine feet, below the curb in the alley to the rear of the lots, there is no evidence that it extended .to that depth below the curb of Seventh street upon which the lots fronted, nor is there any evidence that the excavation extended below the foundation of the plaintiffs’ building.

There is no evidence as to the mode or manner of the digging of the excavation and consequent removal of lateral support. Non constat that the removal was not executed in a careful manner. The evidence is clear that after its removal, the plaintiffs’ wall, sidewalk, and sewer were left without any support for several months during which, they were weakened by rain and exposure to the weather. Finally the wall buckled and collapsed and the sewer was so damaged as to allow sewage to escape. While this was'taking place neither party did anything to arrest the process. There is, therefore, no evidence of negligence unless the failure to do something to supply a substitute for the support that had been removed constituted negligence. The cases hold that an owner, free of negligence in removing the support, owes no duty to protect adjoining buildings by underpinning or shoring. Taylor v. Day, 6 N. P., 447, 449, 9 O. D., 486; 1 American Jurisprudence, 522, Section 27.

There is no evidence that defendant was aware at any time prior to the damage to the plaintiffs’ property that her lessee had committed any negligent act creating a condition on the leased premises which was likely to cause damage to plaintiffs’ property unless some action was taken to avoid it.

There is evidence that the defendant, by notice and finally by court action, sought to recover possession and succeeded, after this damage was done, in securing a judgment restoring possession of the premises to her.

The evidence shows that the plaintiffs at all times lived in the menaced property and were thoroughly familiar with the work defendant’s lessee was doing.

In submitting this case to the jury, the trial court charged:

“Now there are three issues in this case which you must resolve in favor of the plaintiffs in order to permit them to be entitled to a verdict at your hands. These are, first, did the defendant have notice of the excavation which was made in the property owned by her and leased by a lease with privilege of purchase to one Mary Williams? The burden is upon the plaintiffs to prove by a preponderance of the evidence that the defendant did have such notice, and you will, if you find that the plaintiffs have sustained that burden, your verdict must be for the defendant. [We presume that the word, “not,” was inadvertently omitted from the preceding sentence by the court reporter.]

“If you find on the other hand by a preponderance of the evidence that the defendant had such notice you will pass to the second of these essential issues, namely, was the defendant entitled to possession of the property, at or prior to the time the excavation was made? I say to you that Mary Williams was in actual possession from May 1st, 1945, until March 23rd, 1949, which period included the time of the making of the excavation and of the suffering of the alleged damage. The issue presented in this case is not who was in actual possession, but who was entitled to possession. In determining whether the defendant was entitled to possession, you may consider the terms of the lease itself which lease has been received in evidence and will accompany you to the jury room and you may consider the evidence submitted tending to show a breach of the lease by the terms of the lease by its terms by the lessee, Mary Williams. If you find that the plaintiffs have failed to show by a preponderance that there had been such a breach on the part of the lessee that the defendant was entitled to possession, then your verdict must again be for the defendant. If, on the other hand you find the plaintiffs have proved by a preponderance of the evidence that the defendant was entitled to possession at the time of the excavation and damage, you will pass to a consideration of the third issue, namely, was the work done in making the excavation, done in a negligent manner. In that connection I say to you that there is no liability imposed unless this excavation was made in a negligent manner and again you must find such negligence by a preponderance of the evidence. Negligence as here used means a want of ordinary care or a failure to use such precautions and methods as would have been used by an ordinarily prudent person under the circumstances. If you find that the plaintiffs failed to sustain the burden of proving such negligence by a preponderance, I again say to you that your verdict must be for the defendant.”

This charge was followed by an instruction that if the jury found all three issues for the plaintiffs, they were entitled to recover the proven damage.

It will be observed that the court instructed the jury, without qualification, that if the defendant knew that the excavation was being made and had the right to possession at the time, and the excavation was made negligently, then she would be liable. There was no qualification that unless defendant knew the work was being done negligently she would not be liable, or that, knowing of such negligent work, she would not be liable if she exercised reasonable effort to resume possession so as to correct the condition caused by her lessee’s negligence. In fact defendant’s liability was made to depend solely on proof of the lessee’s default in her duty to the plaintiffs to exercise ordinary care and her default in her duty to the defendant to pay rent, thereby giving to defendant the right to re-enter and repossess the premises.

There is no doubt that the court properly omitted all reference to Sections 3782 and 3783, General Code, prescribing liability for excavating below adjacent foundation walls and nine feet below the curb level, and very properly made liability depend on negligence. Assuming that the lessee was negligent in some manner (which we do not find), the question is whether the defendant lessor, under the circumstances, is liable for the resulting damage.

Plaintiffs’ counsel rely on several cases from this and other states, of which Shindelbeck v. Moon, 32 Ohio St., 264, and Stackhouse v. Close, 83 Ohio St., 339, 94 N. E., 746, are typical. In the first-named ease the question decided by the Supreme Court was that the petition did not state a cause of -action.

In the petition there the plaintiffs alleged, as stated by the Supreme Court:

“Moon was the owner of certain• property * * * which he had leased to Brooks, who #as in possession of and using the same for a post office. A pipe or gutter attached to the building had become obstructed or stopped up, and the water, instead of running through it, flowed Over the roof. This water, falling upon the Steps of the post office, in winter, ice was formed. Coming from the post office, plaintiff stepped upon this ice, fell, and was hurt.” ■

All the court decided was that the petition did not state a cause'of'action.against the landlord.- That is not a holding that the landlord is liableunder any circumstances and certainly not a holding that a landlord out of possession is liable for negligence of his tenant during the term, where the' tenant happens .to be in default in the performance of some covenant giving the landlord the right, but not the duty, to reenter and repossess the premises. In the second-named case (Stackhouse v. Close), the landlord was: held liable because he had reserved in the- lease the right to direct and supervise alterations and had exercised that right and the alterations so made were dangerous, and, as a result, plaintiff was injured. The defendant was an active participant in the planning and execution of the alterations.

In the instant case, plaintiffs ’ counsel rely, however, on statements made in those cases that the nonliability of the landlord results from the fact that he is out of possession and control, and, they contend that, therefore, if he has a right of re-entry such right gives him control and is sufficient to fix liability upon him. It seems to us that what was said in those cases, as in all other cases, must be construed in the light of the facts and what was actually decided. In none of the eases was the question presented that we are called upon to decide in this case, which is, whether a mere right of entry, without either actual or constructive entry, is sufficient to charge the landlord as though he were in actual possession or control.

To decide this case in favor of the plaintiffs, we must be prepared to hold that upon breach of any covenant of a lease by a tenant entitling the lessor to re-enter, he becomes liable to third persons, without any affirmative act on his part whatever, for any excavation upon the premises which may have been made by the tenant and liable for any damage resulting thereafter from the negligence of the tenant, provided only that he has knowledge of the excavation. In this lease there are at least eight covenants, the violation of any one of which gives the lessor the right of re-entry. One of these covenants is against waste, so that if what the lessee has done constitutes waste and damage results to the adjacent owner, the lessor would instantly become liable for the act of the tenant without any opportunity to protect himself against such liability.

Most of the cases cited in plaintiffs’ brief are found in an annotation to Zolezzi v. Bruce-Brown (243 N. Y., 490, 154 N. E., 535), in 49 A. L. R., 1414. It will not be necessary to refer to each of those cases specifically. In the 'Zolessi case the court held that the lessor was not liable notwithstanding he had made a new lease, because he lacked knowledge of the nuisance at the time the new lease was executed. In the cases in the annotation Avhere the lessor was held liable it was because he had reserved control, or had actively participated in the creation or continuance of the condition during the lease, or after the expiration of the lease the nuisance had been allowed to exist while the premises were in the actual possession of the lessor or of the same or another tenant under a new lease.

In the case at bar we. find no such situation. The lessor had nothing to do with the planning or creation of the nuisance. The excavation was solely the act of the lessee. It Avas her personal negligence, if any, that resulted in damage to the plaintiffs. The term of the lease was for five, years. That period had not expired. True, the lessee Avas in default in monthly payments and defendant Avas given the right to re-enter and repossess, but she. was not obliged to terminate the lease and she never did so. Whether she could do so in view of the provision giving the tenant the right to purchase and have the monthly payments applied on the purchase price we need not decide. In any event, the tenant, continuing in possession after default with consent of lessor, would be, at least, a tenant at will.

In Wurm v. Allen Cadillac Co., 301 Mass., 413, 17 N. E. (2d), 305, the court held that under a tenancy at will, where the tenant is in exclusive possession, the landlord has no right of entry Avithout the tenant’s permission.

The .decision in Lee v. McLaughlin, 86 Me., 410, 30 A., 65, 26 L. R. A., 197,. as stated in the L. R. A. headnote, is:

“A landlord is not liable for the fall of snow from the roof of a building causing injury to persons in the street below where the building, including its exterior is subject to the control of a tenant, even if his tenancy is only at will.”

A right of entry is not a warrant authorizing the landlord to take the law into his own hands by forcibly ejecting the tenant. The former must resort to his legal remedy to enforce the right and must comply with all the conditions precedent imposed by law.

In 22 American Jurisprudence, 910, Section 6, it is stated:

“This is the philosophy at the foundation of ail these actions of forcible entry and detainer which are designed to compel the party out of possession to respect and resort to the law alone to obtain what he claims is his.”

See, also, State v. Carroll, 239 Wis., 625, 2 N. W. (2d), 211, 141 A. L. R., 244, and the annotation in 141 A. L. R., 255.

Cases exactly analogous to the case at bar seem to be rare. We have been cited to none and have found only one that bears a strong resemblance. That is the case of Earle v. Hall, 43 Mass., 353, 22 P., 102, and' even in that case the similarity to the leasehold chaiacter of the relation was not mentioned. It was therein held, as stated in the syllabus:

“The general owner of real estate is not answerable for acts of carelessness, negligence and mismanagement committed upon or near his premises, to the injury of others, if the conduct of the business, which causes the injury is not on his account, nor at his expense, nor under his orders or efficient control.

“Where A. agreed to convey land to B. and B. agreed to build a house thereon and pay for the land, and while- the agreement was in force, B., in preparing to build the house on his own sole account, by workmen employed by himself alone, undermined the wall of the adjoining house of C., whereby it was injured; it was held that A. was not answerable for this injury, although the title to the said land remained in him at the time when the injury was committed.”

The restatement of the law on this subject is found in 4 Restatement of the Law of Torts, 293, Section 837, which we quote:

“A lessor of land is liable for an invasion of another’s interest in the use and enjoyment of other land, occurring while the lessor continues as owner of the land, which is caused by an activity carried on upon the leased land while the lease continues, if the lessor would be liable under the rule stated in section 822 had the activity been carried on by him, and if

“ (a) at the time when the lease was made, renewed or amended, the lessor consented to the carrying on of the activity, or knew-that it would be carried on, and

“(b) the activity, as the lessor should have known, necessarily involved or was already causing such an invasion.”

It will be noted in the rule as formulated the liability of the owner is made to depend on one of three affirmative acts,' that is, leasing the land, renewing the lease or amending it', with the dangerous condition thereon under such circumstances as to charge him with knowledge that the activity or condition would cause harm.

The evidence herein falls short of placing the defendant in this category. There is nothing in the rule about a default by the lessee imposing a liability on the lessor.

In 4 Restatement of the Law of Torts, 296, the comment on Section 837 is as follows:

“The lessor’s liability does not extend to activities of the lessee which he neither consents to nor has reason to know are intended at the time he makes the lease. In respect to other activities of the lessee, the lessor has no duty to stop them, nor is he bound to terminate the lease even though he has a power to do so.” (Italics supplied.)

There was no break in the continuity of this lease, and that fact distinguishes this case from those relied on by plaintiffs. By executing the only lease that existed between this defendant and Mary Williams and by delivering exclusive possession of the premises to her, responsibility for the condition of the premises was shifted from the defendant to the lessee, and-the defendant never did any act indicating'a ■ restimptiP'B of'responsibility. • '■■■■¡, ;-■;

On this subject of continuity of tenancy"and fetetkm the-lessor’s 'liabilityit;i§’said in 32 Ameiiban Jurisprudence, 87, Séetibñ'72V "• *' ’

“The question as to the continuity of the tenancy has- sometimes ■ arisen -in considering whether the landlord or the tenant is liable for a nuisance on the leased premises,' which- originated' after the tenancy from year to year began, but from which no" iiijüry arosé until another year or rent period had begun after the origin of such nuisance. The reason that the question is then important is that as a general rule, the landlord is liable for nuisance on the' premises, existing at the time the term begins, while the tenant alone is liable for nuisances arising after his term begins. In this regard the view has been taken, especially where the tenancy arose out of an occupancy under a lease for an indefinite period, that-the recurring periods are to be regarded as a single term, and that, therefore, the landlord does not by his mere failure to terminate the tenancy after' the nuisance has arisen become liable to third persons injured thereby during a subsequent period, on the ground that the nuisance existed prior to the demise of the premises.”

This distinction between successive tenancies and one continuous tenancy is expressly recognized in some of the cases relied on by the plaintiffs. See Corrigan v. Antupit, 131 Conn., 71, 76, 37 A. (2d), 697, and Burroughs v. Ben’s Auto Park, Inc., 27 Cal. (2d), 449, 454, 164 P. (2d), 897.

A mere right of entry does not oust a tenant who is in actual possession and vest the landlord with possession and thereby charge the latter with the duties and responsibilities of one in actual possession.

For these reasons, we are of the opinion that the court erred in overruling the defendant’s motion for an instructed verdict and for judgment notwithstanding the verdict.

The judgment is, therefore, reversed and final judgment entered for the defendant.

Judgment reversed.

Hildebrant, P. J., Matthews and Ross, JJ., concur in the syllabus, opinion, and judgment.


author: Griffith, J.

text:
    Jusko, Appellee, v. The Youngstown & Northern Rd. Co., Appellant.

      (No. 3393
    Decided January 18, 1951.)

      Mr. W. E. Stankiewicz and Mr. Clinton J. Wall, for appellee.

      Messrs. Manchester, Bennett, Powers & Ullman and Mr. John H. Bans, for appellant.
   Griffith, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Ma-honing County in an action wherein John Jusko, the appellee, was plaintiff, and the appellent, The Youngstown & Northern Railroad Company, was defendant.

At the conclusion of all the evidence defendant’s motion for a directed verdict was overruled. The jury returned a verdict in favor of plaintiff in the sum of $15,000. A motion for judgment non obstante veredicto was overruled, after which judgment was entered on the verdict. Defendant’s motion for new trial was overruled, and this appeal on questions of law was perfected.

The first question presented is whether the defendant was entitled as a matter of law to a judgment upon the evidence.

As revealed by tbe record, the following are the material facts:

Plaintiff was employed at the,Ohio Works Plant of the Carnegie-Illinois Steel Corporation at Youngstown. From the yards of the defendant a spur known as the “ash track” leads into the Ohio Works Plant, which spur is on... the property of, and belongs to, the steel company. This- track adjoins a conveyor which is used for loading cars with refuse from the plant. The conveyor consists of a belt moving over rollers from the ground level upwards at a 45 degree angle to about two feet above the top of an.average hopper freight car. On October 20, 19j47v the defendant, at the instance of the steel'company;Apottea some empty freight cars on this spur, for, the purpose of being loaded. It was plaintiff’s duty'to load the car's by means of the conveyor and to keep- the conveyor in running order. When one end of a car was filled to a heap and another portion was empty it -was necessary for plaintiff to move the car, by use. of a pinch bar, to a point where the conveyor could load the empty portion. At about 11:40 p. in. on . October' 20, the plaintiff noticed that a wire was entangled in: tie bel| of the conveyor, which wire was..irnpedfng the normal operation of tlae' Oonve^or. V'Fór'.’J^é^'jbjó^^bséjóf ref moving the wire And'to see whe,theFthat portion of ttié car was sufficiently filled fto 'require' its movement, plaintiff climbed to the , top' Of' the .car.. He then removed the wire from the .conveyor, observed the extent of the fill at the end óf the car, and thereupon proceeded to descend to,, thé ground. The car was equipped with “grab irons”.or an iron ladder at its end, which was in safe and'proper cofidition.- Plaintiff had climbed to the top of the car by use of this ladder.

Just what happened leading to his injury that night is revealed by his own testimony; which, in part, is as follows:

“As I was going down I put my foot down and did not know what it was on, but as I was getting ready to put my other leg I took a look and I see my right foot was on this pin, so I tested it like, and it seemed to hold my weight, and that is when I let the other foot go, and that’s when I went down.

“Q. How did you get off this car? A. I am standing on the top of the car and I swung my left foot out and I feel I got hand rods, and I held myself and put right leg out and step by step climbed down.

“Q. Over the end of the car? A. Yes.

“Q. And as you reached about where the platform is what happened? A. I stepped with the right leg and I feel that I got on something under my foot.

“The Court:

“Q. Indicating something that was shaking? A. I feel it like this, and I was standing on it and then with my left leg and put my — loose my hand and put my whole weight and it threw me down just like this, and that’s all I know.

“Q. Did you intend to go down from the car by stepping on the coupling? A. No I never thought of anything like that. I have known of injuries and accidents happening but I never thought of stepping off the car that way.

“Q. How did you get off the car? A. I would go to one end or the other end of the car and go down the steps and load the car.

“Q. Why didn’t you move your foot from the pin back on the platform? A. Because other times I had occasion when I am climbing over these cars where 1 was standing on the pin and nothing would happen to me.”

It is unnecessary to quote further the details of the record. It is sufficient to say that it appears that the plaintiff, while in the performance of his duty as an employee of the steel company, was going down the ladder backwards, i. e., he was on the iron ladder in the act of descending and was facing the car. When he reached a certain point there was a platform about six inches in width running across the full end of the car. However, plaintiff did not use the platform or the remaining steps of the ladder, but put his right foot on the upper end of a coupling pin, which was up, tested it, and then put his entire weight on the pin and was thrown to the ground.

Plaintiff, in going down, decided to and did test the coupling pin as a step. It seemed to hold his weight, and that is when he took his left foot off the rung of the ladder and fell.

The question whether there was something defective in the working apparatus of this coupler was submitted to the jury. There was plenty of light at that end of the car that night so plaintiff could see the coupling pin. He saw it and he knew what it was that he had his right foot on. He stated he did, and it seemed to hold him. He knew of injuries and accidents having happened before, but he voluntarily stepped on the pin instead of using the ordinary means provided for getting off the car.

This case was tried upon common-law principles as to. liability. The defendant owed the duty of ordinary care, i. e., the duty of reasonable inspection to determine whether the car might safely be loaded and to give warning of any defective Condition of the car, which the defendant could readily discover by such an inspection. The defendant, in delivering this empty car on the spur track for loading purposes, whether it was a gondola, hopper, or dump car, or whether it belonged to the defendant or to- some other railroad company, or to the steel company, owed to the employees of the steel company the duty of seeing that the ear was in a reasonably safe condition for loading, which duty required the defendant to make an inspection of the car sufficient to discover a patent defect. Spears v. New York Central Rd. Co., 61 Ohio App., 404, 22 N. E. (2d), 634.

The inspection requisite was a reasonable inspection. The conductor of the defendant placed this car on the siding that afternoon, checked it to see that it had no bad order card on it, and spotted it at the place of the accident. If the coupling pin condition was a latent defect, the defendant could not be charged.

A carrier inspecting a car for the purpose of determining whether it is reasonably safe for loading is required to inspect only those parts which in the ordinary course of things will be used for the loading. With reference to the car in question the defendant was required to inspect the'“grab irons” or ladder, the stepping platform at the end, and perhaps the side walls and floor of the car, but the coupler, used only for the operation of the car in movement, had nothing whatsoever to do with the loading of a car. The defendant owed no duty to plaintiff to keep this coupler in a safe condition for a stepping off platform, because automatic couplers and coupling ■ pins were not intended as a means by which persons may get on and off freight cars. Plaintiff was a car loader and not, in any wise, a ear operator.

It clearly appears from the record that the railroad car was properly equipped with safe “grab irons” or a ladder; that plaintiff used this ladder, a safe course, in ascending to the top of the car; and that in getting down he attempted to try the coupler pin, knowing that accidents had happened before in taldng such a course. In other words, he left a safe path provided on the car and risked a known dangerous way, resulting in serious injury. Clearly, plaintiff departed from the standard of reasonable conduct in leaving a safe means for getting off the car and using a known dangerous course. He unnecessarily chose a hazardous course over a safe one.

The following statement in the opinion in New York Central Rd. Co. v. Stevens, Admr., 126 Ohio St., 395, 408, 185 N. E., 542, 87 A. L. R., 884, is significant:

“It is apparent that he left a place of safety and stepped into the zone of danger. We cannot escape the conclusion that this action on the part of Stevens constituted negligence which proximately contributed to his injury and prevents his recovery. The facts, as shown by the plaintiff’s own testimony as to how the accident happened, will warrant no inference, in our judgment, that the plaintiff at the time of the injury was exercising due care for his own safety.

“The Court of Common Pleas should have directed a verdict for the railroad company, and the Court of Appeals should have so ordered.”

Plaintiff’s contention is that the coupling pin was in a dangerous, defective, and unsafe condition; and that by reason thereof he suffered serious injuries. In support of this, plaintiff called a Mr. Stoekley, who had been a railroad car repair man and inspector and who testified, in effect, that when the coupling is closed the pin should be down, and that, if a coupling apparatus is closed and the pin sticks up, there is some defect in the coupling apparatus.

On the other hand the defendant called an expert witness who thought that when the coupler is closed the coupling pin may be either up or down, and whether it is up or down is not indicative that the car is in bad order or defective. The conflicting testimony with respect to this issue presented a factual question for the jury.

Where, however, in a ease such as the instant one, all the evidence produced at the trial by both parties presents no factual issue as to the negligence of the plaintiff, but, on the contrary, requires the legal conclusion that his negligence was a contributing proximate cause of his injuries, the, negligence of the defendant becomes an immaterial issue, since any negligence of the plaintiff which proximately contributed to his injuries prevents recovery by him and requires an instructed verdict for the defendant.

The inescapable conclusion is that the negligence of the plaintiff proximately contributed to his injury and prevents his recovery. This court is of the opinion that reasonable minds could conclude only that the plaintiff was guilty of negligence which proximately contributed to his own injuries. His, own testimony shows a want of care on his part.

Where the Court of Appeals reverses a judgment of the trial court for the assigned reason that the trial court erred in not sustaining the motion of defendant for a directed verdict made at the close of all the evidence, it becomes the. duty of the Court of Appeals to render the judgment which the trial court should have rendered, and not to remand the cause to the trial court for further-proceedings. Majoros v. Cleveland Interurban Rd. Co., 127 Ohio St., 255, 187 N. E., 857. ,

Accordingly, the judgment is reversed, and final judgment rendered for the defendant..

Judgment reversed.

Phillips, P. J., and Nichols, J., concur in the opinion and judgment.