author: Wiseman, P. J.

text:
    The State, ex rel. Dickman, Appellant, v. Defenbacher, Dir. of Finance, et al., Appellees.
    (No. 4199
    Decided November 18, 1948.)

      Mr. Jerome Goldman and Mr. Albert M. Freiberg, for appellant.

      Mr. Hugh 8. Jenkins, attorney general, Mr. Joseph 8. Gill and Mr. Paul M. Herbert, for appellees.
   Wiseman, P. J.

This is an appeal on questions of law and fact from the Common Pleas Court of Franklin county, which sustained a motion of defendants, appellees herein, for a judgment on the pleadings.

Plaintiff, appellant herein, a taxpayer, brought this action on behalf of himself and other taxpayers of the state of Ohio to enjoin the defendants, state officials, from paying certain veterans organizations money appropriated to them by the 97th General Assembly. On motion the named organizations were made parties defendant. A general demurrer to the original petition being sustained, the plaintiff filed an amended petition. The defendants filed an answer in the nature of a general denial. When the matter came on for hearing, defendants moved for judgment on the pleadings. The motion was sustained and the amended -petition dismissed. Prom that order this appeal is taken.

It is stipulated that this court first determine whether the court below was correct in sustaining the motion for judgment on the pleadings.

Since the defendants’ answer was in the nature of a general denial, the motion for judgment, on the pleadings raised the same question as would have been raised by general demurrer to the amended petition, to wit: Does the petition state a cause of action?

In his amended petition plaintiff alleges that,

“The Ohio General Assembly during the session of the 97th Ohio General Assembly, passed a general appropriation bill for the biennium beginning January 1,1947, and ending December 31st, 3948, * * * that said appropriation bill included, among appropriations made by it to be paid from public funds and moneys of the state of Ohio, the following appropriations:
“Headquarters Grand Army of the
Republic $ 7085.00
United Spanish War Veterans 24000.00
American Legion of Ohio 107000.00.
83d Division A. E. F. Veterans Association 1000.00
Veterans of Foreign Wars 73000.00
Ohio Rainbow Division 5000.00
37th Division A. E. F. Veterans Association 14800.00
Disabled American Veterans of World War 75000.00
Department of Army and Navy Union 2500.00
Department of American Veterans of World War II 11250.00”

Plaintiff alleges that all the organizations for which such appropriations were made “are organizations or associations of private individuals, subject to solely private control of the members, and existing for the private benefit, of the members,” and that “all funds from said appropriation will, if paid, be used by said organizations for purposes of obtaining additional members in said organizations, to promote private political ideas and programs of certain members of said organizations, to provide private benefits and entertainment for the members of said organizations, and are not, and will not be used except for the private benefit of private individuals.”

Plaintiff alleges further that “said organizations are purely private organizations with private- purposes only; that all funds obtained by said organizations are devoted to solely private purposes and not for public purposes in any manner whatever”; that “neither the state of Ohio nor any public official exercises any control or makes any audit”; that “said funds were appropriated to said private organizations or associations of private individuals simply as contributions”; and'that “by reason of the foregoing, the appropriations and payment of state funds for and to said organizations as provided in said appropriation bill aforesaid would constitute an appropriation and expenditure of public., funds for private purposes, and as such would be contrary to the Constitution and fundamental laws of the state of Ohio.”

The gist of the contention of the plaintiff is that the organizations for whose benefit the appropriations were made are associations of private individuals, subject to private control and existing for the private benefit of their members, and that the funds appropriated will be used by the organizations for their own private purposes. The claim of the plaintiff is that the General Assembly had no power to make such appropriations and that the payment of the appropriated funds should be enjoined.

The defendants contend that the power to make current appropriations from current revenues is vested in the General Assembly without limitation. The plaintiff claims that the power is limited. No specific constitutional limitation is cited but it is claimed that a limitation is implied. To support this contention plaintiff cites cases which have held invalid taxing statutes which purported to earmark future revenue for the benefit of such individuals or groups. Section 4, Article VIII, of the Ohio Constitution is cited, which forbids extending the credit of the state in favor of private enterprises. Under Article II, Section 22, of the Constitution, the General Assembly may not make an appropriation effective for more than two years. No General Assembly can create obligations which extend beyond its own life. There is no constitutional limitation on the power of the General Assembly to make current appropriations from current revenue funds.

All political power is inherent in the people. Section 2, Article I, Ohio Constitution. All power not delegated remains with the people. Section 20, Article I, Ohio Constitution. The legislative power of the state is vested in the General Assembly. Section 1, Article II, Ohio Constitution. The power to make appropriations, being a legislative function, is vested in the General Assembly, subject only to the limitations, expressly set out either in the Ohio or the United States Constitution. Baker v. City of Cincinnati, 11 Ohio St., 534, 542; Williams v. Scudder, 102 Ohio St., 305, 307, 131 N. E., 481; Ostrander, Admr., v. Preece, Admr., 129 Ohio St., 625, 628, 196 N. E., 670. We find no limitation in either Constitution on the power of the General Assembly to make current appropriations out of current revenues.

Section 4, Article VIII, of the Ohio Constitution, which forbids extending credit of the state in favor of private enterprises has no application to the situation presented in the instant case. In the case of the Auditor of Lucas County v. State, ex rel. Boyles, 75 Ohio St., 114, 78 N. E., 955, 7 L. R. A. (N. S.), 1196, cited by appellant as the leading case in support of the contention that the General Assembly was without power- and authority to make the appropriations in question,, the constitutionality of an act which in effect pledged the credit of the state to make payment to blind persons for an indefinite period in the future was the-question in issue. The court held the act to be unconstitutional. The case at bar is distinguishable from, the Boyles case on the facts. In the instant case current appropriations are made from current revenue. The decision in the Boyles case rested on the case of Citizens’ Savings & Loan Assn. v. Topeka, 87 U. S. (20 Wall.), 655, wherein the United States Supreme Court held unconstitutional a Kansas statute which authorized municipalities to issue bonds in favor of private-manufacturers on the ground that a tax levied to pay the bonds would take property without due process of' law. Other cases cited by plaintiff. (State, ex rel. Wal ton, v. Edmondson, Aud., 89 Ohio St., 351, 106 N. E., 41; Miller v. Korns, 107 Ohio St., 287, 140 N. E., 773; City of Cleveland v. Ruple, 130 Ohio St., 465, 200 N. E., 507, 103 A. L. R., 853) fall in the same category.

This precise question has never been decided by the reviewing courts of Ohio. The court has experienced no little difficulty in arriving at its conclusion. We commend counsel for the preparation and submission of helpful briefs.

In our judgment the amended petition does not contain allegations sufficient to constitute a cause of ac. tion. The motion of defendants for judgment on the pleadings is hereby sustained.

Motion sustained.

Miller and Hornbeok, JJ., concur.


source: Caselaw Access Project

author: Hornbeck, J.

license: Public Domain

text:
    Pass, Appellant, v. Webster, Appellee.
    (No. 4153
    Decided October 29, 1948.)

      Mr. Walton G. Alcorn and Mr. Albert E. Savoy, for appellant.

      Mr. Joy 11. Hunt and Mr. Max 1. Z is kind, for appellee.
   Hornbeck, J.

In the Common Pleas Court of Franklin county, on March 19, 1934, plaintiff recovered a judgment, in the sum of $12,000 against the defendant for damages for personal injuries predicated upon negligence. The entry recited that the defendant was in .default for answer or demurrer and ‘‘therefore the-facts alleged in the petition are thereby confessed by him to be true.” A jury being waived, the court assessed the damages. On the 1st of December 1947, the-court in which the original judgment was rendered' made a conditional order of revivor thereof and fixed' a date on or before which the defendant should show-cause why such judgment should not stand revived.

The defendant, to show cause why the judgment should not be revived, set out proceedings in bankruptcy in the United States District Court for the-Southern District of Ohio, the Eastern Division, being case No. 11092, wherein in 1935 the defendant was-adjudged a bankrupt, and averred that the judgment in the Common Pleas Court, which plaintiff sought to-have revived, was listed as a debt under the proper schedule in the bankruptcy proceedings; that thereafter creditors were notified that the bankrupt’s petition for discharge would come on for hearing, at which time the plaintiff, by counsel,.filed objections to-the bankrupt’s discharge; that thereafter the issue was-referred to a special master, testimony was taken and-an opinion of special master was reported; and that eventually the federal court on the 21st of October 1936 sustained and affirmed the report of the special master and ordered that the defendant be discharged in bankruptcy, to which order exceptions were duly noted. For further cause why the conditional order should not, be revived, objection was made to the right of the court “to relitigate the matter of the pleadings or the judgment already granted in this cause.”

The motion for revivor coming on to be heard upon the pleadings and the record, the court denied the motion and refused to revive the judgment. It is to this action of the court that this appeal on questions of law is prosecuted.

Unfortunately, we do not have the formal motion of the plaintiff for conditional order for revivor of the judgment, but, upon the briefs and oral arguments of counsel, we conclude it is the contention of plaintiff, appellant herein, that the court had the power upon the hearing on the motion to consider and determine whether the defendant committed the acts set up in the original petition wilfully and maliciously; that the testimony required an affirmative finding and determination of the question ;'and that the judgment be revived as upon that additional ground.

The final order on the hearing of the conditional order of revivor is general in its terms. There are no special conclusions of law or fact. We do not, .therefore, have the specific reason or reasons which controlled the court in denying the order of revivor.

Counsel argue the appeal upon the two grounds set up by the defendant to support his claim that the judgment should not be revived.

The first question is the effect of the order of discharge following the adjudication of the federal court against the plaintiff on her specification of objection to the discharge. It is the claim of the plaintiff that the entry of the federal court adjudicating the objection of the plaintiff to the discharge of the bankruptcy is null and void because:

(1) “Actions to prevent a discharge in bankruptcy are brought only under Section 14 of the Bankruptcy Act and in the bankruptcy or federal court.”
(2) “Actions to deny the right of bankrupt to present a certificate of discharge in bankruptcy as a bar to recovery of a judgment debt are brought only under Section 17a of the Bankruptcy Act and the state courts shall be the sole judge of the availability of the bar when judgments in state courts are involved.”

The proceedings before the special master and the order of the court succeeding his report are before us. It there appears that the plaintiff invoked the action of the court to adjudicate her objection to the discharge of the bankrupt under Section 14 of the Bankruptcy Act, Title 11, Section 32, U. S. Code, upon the ground that the judgment which she held against the defendant and the claim arising therefrom were predicated upon a wilful and malicious injury. This is not a ground set forth in Section 14 of the Bankruptcy Act, proof of which will bar the discharge. The special master cut through any question of the legal effect of the formal judgment in the Common Pleas Court and the pleadings upon which it was based and considered and determined the validity of plaintiff’s claim upon the record made by her. upon the evidence adduced. The court held that she had not shown sufficient reason to preclude the order of discharge of the bankrupt.

It is not determinative of this appeal to say whether the federal court had the power to consider and determine the question which was done upon the initiative of the plaintiff. Whatever the effect of the adjudication by the federal court, we readily accede to the claim of the plaintiff that the Common Pleas Court had full power to determine whether under Section 17 of the Bankruptcy Act, Title 11, Section 35, U. S. Code, the discharge of the bankrupt constituted a bar to the revivor of the judgment.

The right to a discharge and its effect are wholly distinct questions. In re Marshall Paper Co., 102 F., 872; In re Andrews (D. C. Cal.), 47 F. (2d), 949; but see In re Barber, 140 F. (2d), 727.

The bankrupt may be discharged under Section 14 and still be held liable for any one of the classes of debts mentioned in Section 17. Katzenstein v. Reid, Murdock & Co., 41 Tex. Civ., 106, 91 S. W., 360; In re Millkofsky (D. C. N. Y.), 17 F. Supp., 127.

The general rule is that a discharge in bankruptcy is effectual as to judgments (Howland v. Carson, 28 Ohio St., 625, 630), and manifestly the discharge in bankruptcy would have been a bar to the judgment here had it not been dormant at the time that the motion to revive was filed, because it did not include an adjudication that the injury upon which it was predicated was the result of a wilful and malicious act on the part of the defendant. In re Wakefield, 207 F., 180; In re La Porte, 54 F. Supp., 911. A judgment in which such a finding is explicit or implicit has been held to be a bar to the effect of the discharge. Exline v. Sargent, 3 C. C. (N. S.), 66, 13 C. D., 180; Ex Parte Cote, 93 Vt., 10, 106 A., 519.

In our judgment the adjudication of the federal court on the subject matter of plaintiff’s claim that the bankrupt should not be discharged may as well have been, and probably was, completely disregarded by the common pleas judge in the proceedings incident to the revivor. In any event, the bankrupt was entitled to his discharge in bankruptcy in the federal court.

The determinative question here is whether the Common Pleas Court had any authority to revive the judgment as claimed by the plaintiff. Upon the record, we are satisfied that the Common Pleas Court had no such power.

The proceedings for a revivor of judgment are statutory. Section 11645, General Code, prescribes the manner in which “such judgment may be revived,” and Section 11647, General Code, provides, in part, that “if sufficient cause be not shown to the contrary, the judgment or finding shall stand revived.”

It is evident that only that judgment which was originally entered may be revived, and that it may not be' supplemented or augmented. To do so would be tantamount to the entering of a new judgment without the legal formalities prerequisite to such judgment.

“* * * the revived judgment can have no greater operation than it would have had if it had not become dormant.” Miller v. Taylor, 29 Ohio St., 257, 260.

There is another reason why the judgment could not be revived as claimed by the plaintiff. The petition upon which plaintiff grounded her action for damages for personal injuries was based upon several specifications of negligence. There was no charge of a wilful or malicious act. The defendant having defaulted, the plaintiff was remanded in proof of her cause of action to the strict averments of her petition. The judgment was in conformity to and predicated upon the negligence alleged and could not, when entered, and certainly could not upon revivor, be based upon a specification not pleaded.

In Rosebrough v. Ansley, 35 Ohio St., 107, consent judgment was entered for the plaintiff in excess of the amount claimed in the petition. The court held that the judgment was erroneous because no such cause of action was stated in the pleadings. This court in Kipp v. Bowman, 20 Ohio Law Abs., 698, ordered subject matter deleted from the judgment entry which adjudicated an issue not made upon the pleadings.

In Howland v. Carson, supra, the court said in the third paragraph of the syllabus:

“Where it is claimed that such discharge (bankruptcy) does not bar the collection of a judgment on the ground that it is a debt created by fraud, within the meaning of section 33 (U. S. Rev. Stat. Sec. 5117) of the bankrupt act, the court will look back of the judgment, to the root and origin of the cause of action on which it is founded, in order to determine whether the discharge is a bar to the collection of such judgment.”

So doing, the court there looked at the pleadings and held that the judgment was not a bar to the discharge because it did not and could not have been based upon a ground for such bar, namely, “a debt created by fraud” within the meaning of the Bankruptcy Act. So here, the court could not originally have entered a judgment for the plaintiff on the ground that the damages grew out of an injury wilfully and maliciously committed. The court had no greater authority on the motion to revive.

The question here presented is novel, has been well briefed and capably presented, but we are satisfied that the court committed no error of prejudice to the plaintiff in denying her the right to have her judgment in the Common Pleas Court revived. The judgment is affirmed.

Judgment affirmed.

Wiseman, P. J., and Miller, J., concur.


author: Wiseman, J.

text:
    Garland, Appellee, v. Gilbert, Exr., et al., Appellants.
    (No. 2029
    Decided April 30, 1949.)

      Mr. Irvin Carl Delscamp, for appellee.

      Messrs. Baggott <& Johnston, for appellant Albert Gilbert, executor.

      Mr. C. A. Funhhouser, for appellant Evelyn Glaus.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery County, setting aside a separation agreement.

In the absence of a bill of exceptions, appellants-must rely solely on the record to exemplify any error of the trial court. The allegations and admissions-made in the pleadings sufficiently present the legal questions in issue.

The record shows that Albert L. Garland, deceased,, and Irene Garland, the plaintiff herein, were husband and wife; that on July 16, 1945, the husband sued the wife for divorce; and that on July 23, 1945, they entered into a separation agreement wherein they agreed to an immediate separation.

The wife agreed to immediately vacate the home,, take with her her clothing and jewelry and a few other personal belongings and immediately execute and deliver to her attorney a deed conveying all her interest in the home to the husband. The agreement provided that the deed should not be delivered to the husband “until after the conclusion of the divorce proceeding-now pending.” The separation agreement further-provided that “when and if a decree of divorce is granted to the plaintiff in said action upon the same day such decree is filed for record in the office of the clerk of courts, Albert L. Garland shall pay to Charles J. Brennan, as attorney for Irene Garland, the sum of three thousand dollars ($3,000), which shall be in full satisfaction of all claims whatsoever which said Irene Garland may have against Albert L. Garland growing out of their marriage, or in any manner pertaining to its termination.” The agreement provided further that each party thereby released the other from all other claims or obligations, rights and duties arising out of the marital relation.

The record shows that the divorce action was never heard due to the death of Albert L. Garland on August 21, 1945, and, as a consequence, no decree of divorce was granted or filed and the payment of $3,000 was never made by the husband. The parties did separate immediately upon the execution of the agreement. The deed to the home which was executed by the wife was never delivered to the' husband. The estate of the husband was appraised at $10,417.44.

On September 3, 1945, the defendant Albert Gilbert was appointed executor of the estate of Albert L. Garland and on October 1, 1945, such executor tendered the sum of $3,000 to the plaintiff which she refused to accept.

This action was brought against the executor of the estate of the husband and the legatees under his last will.

The trial court found that “the parties did not intend that the provisions of the contract in issue cover the eventuality of Albert Garland’s death before he obtained a decree of divorce, and that the contract, consequently, fails because of impossibility of performance.” The court found further that, the wife having received nothing of value from the husband or his estate to be returned by her, she was entitled to assert whatever rights she might have under the law against his estate. The court set aside the separation agreement and decreed it to be null and void and of no force and effect.

Defendants have not specifically assigned the errors of which they complain. From their brief, it may be reasonably deduced that the only error claimed is that the court erred in its finding that the parties did not intend that the contract should cover the eventuality of the husband’s death before he obtained a divorce decree and that the separation agreement was nuil and void because of impossibility of performance.

We agree with the judgment of the trial court. The payment of the total consideration moving to the wife was conditioned on the divorce being granted to the husband and the decree filed in the office of the clerk of courts. The husband was under no obligation to pay anything to the wife unless and until these two conditions were met. If the wife had contested the divorce action and had been granted the decree, the husband would have been under no obligation to pay anything to the wife. The defendants contend that the words, “when and if a decree of divorce is granted to the plaintiff in said action,” were used by the parties to fix the time of payment, and that the time of payment was accelerated by an act of God. With this we do not agree. While it is true, the time of payment was fixed as of the date of filing a decree granted to the husbánd, the payment itself was conditioned on the decree being granted to the husband. The condition svas not fulfilled and could not be fulfilled by reason of the death of the husband. Clearly the parties did not provide against the eventuality of the death of the husband before a divorce decree was granted to him. The contract fails because of impossibility of performance.

The defendants contend that this construction fails to give due consideration to the last paragraph in the separation agreement wherein it was agreed that each party was barred from any and all rights or claims by way of dower, inheritance, descent, distribution, allowance for year’s support, right to remain in the mansion house, all rights or claims as widow, widower, heir, distributee, survivor or next of kin, and all other rights or claims whatsoever in or to the estate of the other, whether real or personal, which might in any manner arise or accrue by virtue of such marriage, all such rights being released to the other and to the heirs,, executors, administrators and assigns of the other. The point is made by the defendants that this provision indicated that the parties considered the eventuality of death. This provision is usually found in separation agreements and is given full effect when the facts and circumstances are such as to require its-application. In the instant case, such provision would have been given effect if the divorce had been granted to the husband as contemplated and all the conditions had been met. This provision when considered in conjunction with the other provisions of the contract did not have the effect of eliminating or modifying the conditions under which the total consideration moving to the wife was to be paid. '

As we find no error in the record prejudicial to the defendants, the judgment is affirmed.

Judgment affirmed.

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


author: Hildebrant, J.

text:
    Owens, Appellant, v. Owens, Appellee.

      (No. 6997
    Decided October 25, 1948.)

      Mr. Samuel Plotnick and Mr. Barry Falk for appellant.

      Messrs. Becker do Loeb, for appellee.
   Hildebrant, J.

In the trial court, plaintiff appellant obtained a divorce from defendant appellee for his aggression, and an alimony award of defendant’s undivided one-half interest in certain real estate, all household goods, government bonds and money.

In the judgment and final entry overruling plaintiff’s motion for judgment, the court found plaintiff had no legal or equitable interest in certain real estate held as tenant in common with defendant and his mother, and ordered plaintiff to convey same to the defendant'.

Plaintiff claims the court exceeded its statutory jurisdiction in making the above order and erroneously exercised a general equity jurisdiction which it did not possess. With this claim, this court is in agreement. In DeWitt v. DeWitt, 67 Ohio St., 340, 66 N. E., 136, it is stated in the first paragraph of the syllabus:

“Under Section 5699, Revised Statutes, as the same stood prior to the amendment of May 19, 1894 (91 O. L., 348), it is error for the court, having granted the wife a divorce for the aggression of the husband and awarded her alimony payable in money, to attach to the payment of such alimony a condition that she quitclaim to the husband her interest in her own lands, and of dower in his lands, and surrender to him promissory notes wfiicb she holds against him.”

In Mark v. Mark, 145 Ohio St., 301, 308, 61 N. E. (2d), 595, 160 A. L. R., 608, Turner, J., stated:

“It should be borne in mind that this is a statutory divorce and alimony case and not a chancery case.”

In Miller v. Miller, 78 Ohio App., 381, 66 N. E. (2d), 278, the court held in the third paragraph of the syllabus :

“Where the court grants a divorce to the wife, it has no power, in the absence of agreement between the parties, to divest the wife of any part of her title to her undivided one-half of jointly owned real estate by giving the husband the first $1,000 of the proceeds therefrom and then equally dividing the remainder.”

See, also, Fisher v. Fisher, 78 Ohio App., 125, 64 N. E. (2d), 328.

The rule is stated in 14 Ohio Jurisprudence, 380, Section 6, as follows:

‘ ‘ The granting of divorces is a matter which is regulated entirely by statutory provision, and while it has been said that an application for a divorce invokes the equitable jurisdiction of the court, such jurisdiction does not arise out of any inherent powers of courts of chancery in such cases, but exists only by virtue of the provisions of the statutes relating to the subject.”

It is argued that this court should modify the judgment by striking out the order complained of and affirm it in all other respects. To do so would seem to deprive the trial court of an opportunity to exercise its judicial duty of allowing such alimony out of the husband’s property, as it deems reasonable, taking into account its lack of jurisdiction to order a conveyance of the plaintiff’s real estate. To demonstrate that this is a proper element for the consideration of the court, we quote from DeWitt v. DeWitt, supra, 353: “We do not hold that the trial coqrt may not, in fixing the amount of alimony, acquaint itself with the wife’s pecuniary condition, but we do hold that the court may not abrogate the statute.”

We, therefore, affirm the judgment so far as it grants the divorce, reverse it so far as it awards alimony and remand the cause to the trial court with instructions to make the alimony award in accordance with the statute.

Judgment accordingly.

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


author: By the Court.

text:
    Shelby Mutual Casualty Co., Appellant, v. George Byers Sons, Inc., Appellee.
    (No. 4121
    Decided October 1, 1948.)

      Mr. Richard Huggard and Mr. Collis Gundy Lane, for appellant.

      Messrs. Vorys, Sater, Seymour $ Pease, for appellee.
   By the Court.

This is ail appeal on questions of law from the Municipal Court of Columbus. The action is one for damages to an automobile while in the alleged custody of the defendant for repairs. Trial was had by the court and a judgment was rendered for the defendant. Ten alleged errors are assigned which may be epitomized as follows:

(1) The judgment is founded upon no evidence and is also against the manifest weight of the evidence.

(2) The judgment is contrary to law.

The record discloses that Sam Shearer was the owner of the automobile involved in this action; that it. was damaged in a collision; and that, the plaintiff is an insurance company which had issued a policy of insurance on the car, and, under the terms of the policy, it settled with Shearer for the loss and in turn was subrogated to all the rights of the insured.

The defendant operated a garage for the repair of automobiles. One of the defendant’s employees who held the position of repair foreman was named Jack DeHayes. He had been an acquaintance and friend of Sam Shearer for some 20 years and during this time had worked on his car on numerous occasions. Therefore, on this occasion Shearer went direct to DeHayes telling him the condition of his car and the things he desired to be done, although the taking of orders for work was not within the scope of his employment. There is a dispute in the record as to this conversation with DeHayes.

The plaintiff is contending that its policyholder told DeHayes to take the car out and thoroughly test it, even run it home to lunch to be sure that it: was functioning properly; and that he was leaving the city and would not return for the car for about a week. The defendant claims that DeHayes was told by Shearer to take the car home and to use it as his own; that the car was turned over to DeHayes at the Union Station and it was in his possession several days before he brought it to the defendant’s place of business; that he brought it in on a Friday and had the work order properly prepared; that the work was completed; and that on the following Saturday DeHayes and the mechanic who worked on the car took it out and tested it. On Saturday afternoon at three o’clock DeHayes informed Mr. Byers, the manager of the defendant company, that Shearer told him he could use the car, so he was permitted to take'it home with him as the work was completed. On the following day the accident occurred.

A request was made for separate findings of fact and conclusions of law, as a result of which the trial court made the following findings:

Findings of Fact.

1. Shearer gave DeHayes possession of his car and not to the defendant garage.

2. DeHayes and Shearer made a personal agreement between themselves as to the driving of the latter’s automobile.

3. DeHayes had Shearer’s permission to drive the car as his own until Shearer requested its return.

4. Shearer never talked with anyone in authority at the defendant’s garage about the repairs.

5. DeHayes had no authority to act for the Byers’ garage and bind it on a contract of bailment.

6. Shearer had actual knowledge of DeHayes’ limited authority.

7. DeHayes was driving Shearer’s car for his own pleasure on Sunday evening when the loss occurred and on no business of the defendant’s garage.

Conclusions of Law.

1. No bailment existed between the plaintiff’s insured and the defendant’s garage.

2. The plaintiff has failed to prove a bailment between its insured and the defendant.

3. DeHayes’ acts did not bind the defendant’s garage because he was acting beyond the scope of his authority.

4. Plaintiff is estopped to claim DeHayes had authority to act for defendant’s garage because of Shearer’s actual knowledge of DeHayes’ authority.

5. Doctrine of respondeat superior does not apply.

We find that there is sufficient evidence in the record to support the findings of fact, none of which is against the manifest weight of the evidence. Likewise the conclusions of law are properly drawn and the judgment is not contrary to law. The plaintiff urges that since the defendant rendered a bill to Shearer for the work performed on the automobile, by this act it had ratified the acts of DeHayes as its agent and is, therefore, estopped to deny the agency. This is a correct statement of the law and had application while the automobile was in defendant’s possession, but the trial court found that DeHayes had Shearer’s permission to drive the car as his own until he requested its return ; and that DeHayes was driving the car for his own pleasure when the loss occurred. Prom these findings of fact the conclusion follows that the contract of bailment between the insured and the defendant terminated on the Saturday afternoon when the car was released to DeHayes for his own personal use.

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

Judgment affirmed.

Wiseman, P. .L, Miller and Hornbeck, JJL, concur.


author: Hildebrant, J. Ross, P. J.,

text:
    Rogers, Appellant, v. Allis Chalmers Mfg. Co., Appellee.

      (No. 7063
    Decided May 16, 1949.)

      Mr. Joseph P. Kinneary and Mr. Timothy S. Hogan, for appellant.

      Mr. Sanford A. Headley and Mr. James G. Headley, for appellee.
   Hildebrant, J.

Plaintiff sued for damages for injuries sustained on being struck in the eye by a golf ball, which he alleges was negligently driven by an employee of defendant company, acting within the scope of his employment.

The trial court sustained defendant’s motion for a directed verdict based on the opening statement, of plaintiff’s counsel, after opportunity given to amplify, add to, explain, and qualify the same.

The propriety of such a ruling in a proper case is established in Cornell v. Morrison, 87 Ohio St., 215, 100 N. E., 817; Cincinnati Gas & Electric Co. v. Archdeacon, Admr., 80 Ohio St., 27, 88 N. E., 125. See, also, 39 Ohio Jurisprudence, 883, Section 225 et seq.

By the motion, and for its purposes, the defendant admitted the truth of all the statements plaintiff proposed to establish by evidence.

On giving plaintiff’s counsel opportunity to enlarge upon his opening statement, the court directed that it be confined to the question of whether the employee involved was acting within the scope of his employment, so as to render defendant company responsible for his acts.

Plaintiff stated that his proof would show that the Norwood plant of the defendant company — a nationally advertised heavy industry, manufacturing heavy machinery and equipment — appropriated a sum of money on a yearly basis with which to foster and provide athletic and recreational activities and games for its employees, both intramural and in competition with the teams of other industries; that it employed an athletic director, who, at the request of the Norwood Y. M. C. A., whose stated purpose was to improve industrial relations, paid the Y. M. C. A. the sum of $25, and agreed to enter a company team in an industrial golf league competing against similar recruited teams after working hours; that the captain of the Norwood plant team asked one Haas if he would play thereon, which he voluntarily agreed to do; that the greens’ fees were paid for the players out of the funds appropriated by the Norwood plant, as stated above; that the Norwood plant also furnished its employees with a T shirt, upon which the name of the defendant company appeared; that after working hours, at about 5:30 p. m., on the day in question, plaintiff was on the Avon Fields public golf course and drove his ball from the 13th tee in a southerly direction toward the green and had approached his drive which came to rest on the left edge of the fairway, and was in the act of selecting a club from the bag which he carried himself in order to make a second shot toward the 13th green; that defendant’s employee Haas drove his ball from the 14th tee, which hole runs south to north, arid whose fairway parallels that of the 13th; that he gave no notice of his intention to drive by calling out the warning signal of the game “fore”; that his drive hooked to the left after he hit the bail and on noticing its direction toward plaintiff, the cry of “fore” was given; and that plaintiff looked up in the direction from which the cry came and was struck in the eye by the ball.

N o statement appears in the record as to the distance between plaintiff and Haas, except that a blow such as that hit by Haas will drive a ball at the rate of 110 to 120 miles per hour at its maximum and would traverse the distance separating the two players in something in the neighborhood of two seconds.

Plaintiff contends under that statement the defendant company was engaged in playing golf through its agent and employee, Haas, so that the doctrine of respondeat superior applies to hold defendant company liable for the negligence of Haas

Defendant contends no cause of action has been stated against it, since Haas at the time and place was not acting within the scope of his employment, hence, the doctrine of respondeat superior does not apply.

Plaintiff relies upon Ott v. Indus. Comm., 83 Ohio App., 13, 82 N. E. (2d), 137, and other workmen’s compensation cases. Such cases do not apply.

The right to participate in the workmen’s compensation fund is wholly statutory, and is in no way dependent upon the principles of the common law, whereby a master or principal is sought to be held liable for the torts of a servant or agent upon application of the doctrine of respondeat superior. In the Ott case, this court merely found from the facts that there was sufficient relationship in the activity of the deceased at the time of his death to his employment to justify the conclusion that claimant was entitled to participate in the fund under the Constitution, statutes, and rules of the commission. Under the liberal construction required of workmen’s compensation laws, a mere causal connection is held to be sufficient to satisfy the statutory requirement that the injury be received in the course of and arise out of the employment. And no inquiry is required or made as to whether the injured workman at the time and place of injury was actually acting within the scope of his employment, as required to fix liability under the doctrine of respondeat superior. In such cases where inquiry as to the scope of employment is made, it is not for the purpose of determining that question in the first instance, but only to determine the question of causal connection.

In Tarlecka v. Morgan, 125 Ohio St., 319, 181 N. E., 450, it is stated in the fourth paragraph of the syllabus :

“The expression ‘scope of employment’ cannot be accurately defined, because it is a question of fact to be determined according to the peculiar facts of each case.”

As to the general principles upon which liability rests from a wealth of text and case material, we quote 26 Ohio Jurisprudence, 620, Section 598:

“The liability of one person for damages arising from the negligence or misfeasance of another, on the principle of respondeat superior, is confined in its application to the relation of master and servant, or of principal and agent. In order, then, to permit a recovery, in such case, it must be shown that the relation between the parties sought to be held liable and the person doing the act complained of was that of master and servant, or of principal and agent, in reference to the very act complained of: The maxim ‘respondeat superior’ does not apply where this relation does not exist. The direct coincidence and coexistence of the rule of respondeat superior with the relation to which it belongs is an unvarying test of its application.”

Section 599 of the same volume states:

“* * * The mere fact that one is employed by another does not render the latter liable for all acts of the former. The relationship and the master’s liability depends upon whether the person who did the injury complained of was acting under his employer's control or direction, in doing the work from which the injury resulted. If the person so acted, he is a servant and the master is responsible; otherwise, there is no such relation and he and not the master, is liable for the injury.”

The fourth paragraph of the syllabus in Clark v. Fry, 8 Ohio St., 358, 72 Am. Dec., 590, states:

“The rule of respondeat superior, as its terms import, arises only out of the relation of superior and subordinate, is applicable to that relation wherever it exists, as between principal and agent, or master and servant, is coextensive with it, and ceases when that relation ceases to exist; and the reason of it is to be traced to the power of control and direction, which the superior has a right to exercise, and which, for the safety of others, he is bound to exercise over the acts of his subordinates.”

Section 614 in 26 Ohio Jurisprudence, 633, states:

“The master is not liable for the acts of his servant done outside of his employment.. A railroad company whose line crosses a highway is under no obligation to remove from the highway an obstruction placed upon it, at a crossing, by one of its brakemen, without authority of the company, and while acting outside the scope of his employment, even though he did it during the existence of the employment. In the customary legal phraseology, to make the master responsible for the acts of his servant, the act must be done in the scope or course of the servant's employment, that, is, under the express or implied authority of the master. Beyond the scope of his employment, the servant is as much a stranger to the master as any third person.
“The master is not liable for the act unless it is done for the purpose, and as a means, of doing what the servant is employed to do, or unless it is part of an actual duty connected with his employment. If an employee goes outside of his work and employment to commit an act of violence, which is not necessary in the performance of his work, the employer is not liable. ’ ’

And it is stated in Section 615 of the same volume:

‘ ‘ There is a marked distinction between an act done by the servant during his employment, and an act done within the scope of his employment. The master has a right to assign duties to his servants, and no assumption of duties not assigned will bring those duties within the scope of his employment as defined by the master, and when an act is not within the scope of a servant’s employment, it is manifest that it cannot be within either the express or implied authorization of the master. ’ ’

See 35 American Jurisprudence, 973, Section 543, et seq., wherein it is stated at page 974: “Power to control the acts of the wrongdoer must, of course, have been vested in the defendant at the time of the injurious occurrence.”

Whatever its motive and whatever benefit the Nor-wood plant conceived flowed to it as the result of sponsoring and financing an organized recreational plan for its employees, it seems clear that any participating employee while so engaged would not be acting within the scope of the employment for which he was paid and by which he earned his daily bread. Neither do we consider Haas the agent of the company in voluntarily playing golf as a form of recreation for himself. He was asked to participate, not ordered so to do, nor could he have been so ordered; he could have refused to play at all, or to drive off the 14th tee after starting to play without being amenable to discipline for violating any of the terms of his employment; the defendant had no control at all over his conduct on the-golf course. While identified in some manner with the defendant company by his T shirt, proof of that fact created no inference he was employed to play-golf and was at that time, which was after the regular-working hours, acting within the scope of his employment. The rules of proof set out in White Oak Coal Co. v. Rivoux, Admx., 88 Ohio St., 18, 102 N. E., 302, 46 L. R. A. (N. S.), 1091, Ann. Cas. 1914C, 1082; Sobolovitz v. Lubric Oil Co., 107 Ohio St., 204, 140 N. E., 634; and Halkias v. Wilkoff Co., 141 Ohio St., 139, 47 N. E. (2d), 199, are applicable and dispositive of this case.

Plaintiff relies on Lake City Malleable Co. v. Cavanaugh (unreported-Cuyahoga County Court of Appeals, 1943). There being no opinion and no official: report of that case, this court cannot comment thereon, or be bound in any manner by it. We distinguish, the case of Ackerson, Admx., v. Jennings Co., Inc., 107 Conn., 393, 140 A., 760, on its facts. The cited Restatement of the Law of Agency, Sections 212, 228 and 236, do not seem to apply, but rather reference is made to. Sections 1 and 2, at pages 7 and 11, respectively, therein.

The judgment is affirmed.

Judgment affi.rm,ed.

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

Ross, P. J.,

dissenting. Judgment was rendered for-the defendant upon the opening statement of counsel for plaintiff, upon a verdict instructed by the court-rendered upon the motion of the defendant for same..

The plaintiff was given the opportunity to amplify his statement upon one issue only, to wit, that the liability of the defendant was predicated upon the rule of respondeat superior, or as the court stated, the scope of employment or agency.

Such a motion so directed partakes much of the character of a demurrer. In effect, it admits the stated allegations of proposed proof are true, but denies any legal efficacy of such facts to sustain the alleged cause of action of plaintiff.

In Neckel v. Fox, 110 Ohio St., 150, at page 152, 143 N. E., 389, it is stated in a per curiam opinion : “This court is not disposed to give too rigid a construction to the terms employed in the statement by counsel for plaintiff.”

In that case, the Supreme Court reviewed a judgment of the Court of Appeals affirming a judgment on the pleadings and opening statement of counsel, and further stated the facts were too “meagerly stated and were very uncertain in vital respects.”

That case involved statements of a plaintiff’s counsel concerning the liability of a landlord for injuries to a visitor to a tenant. Plaintiff’s counsel stated that the defendant was “in full possession of said premises” and retained possession to make repairs. The similarity in general quality of these statements to those herein involved will be later considered.

In Davis Laundry & Cleaning Co. v. Whitmore, 92 Ohio St., 44, 110 N. E., 518, Ann. Cas. 1917C, 988, the Supreme Court affirmed the judgment of the Court of Appeals which reversed a judgment rendered by the trial court on the opening statement of counsel.

See, also, 39 Ohio Jurisprudence, 883, Trial, Section 225. In Section 227, page 886, Id., it is stated:

“In ruling on a motion to direct a verdict for the defendant on the opening statement of the plaintiff’s counsel, the trial court must interpret the statement most favorably to the plaintiff, or, in the language of some cases, must give it the most liberal construction possible in favor of the plaintiff. The truthfulness of the facts stated therein is to be assumed, and a reasonable and liberal construction is to be given the statement so that it may be allowed to stand, in order that the well-known principle that every litigant should have his day in court may be vindicated. To this end the court is required to take into consideration the admissions made in the pleadings in regard to that part of the statement favoring the plaintiff, even though inconsistent with other parts of the statement, and to give the plaintiff the benefit of any reasonable inferences in his favor which are warranted by, or may be drawn from, the facts as stated. Nothing-should be taken against the party making the statement.”

This court, in an opinion by Judge Hildebrant, quoted with approval the statement made in 2 Ohio Jurisprudence, 1061, Appeal and Error, Section 832, in the case of Wainscott v. Young, 74 Ohio App., 463, at page 465, 59 N. E. (2d), 609:

“In 2 Ohio Jurisprudence, 1061, Section 832, it is stated:
“ ‘ It is reversible error for the court to enter .judgment for the defendant because of admissions made by plaintiff’s attorney in opening the case to. the jury, where such admissions do not include every fact necessary to defeat the plaintiff; or to direct a verdict for the defendant because of the insufficiency of the opening statement of plaintiff’s counsel, if such statement is at least as broad as the petition and the petition states a good cause of action; or, if, giving such statement a reasonable and liberal interpretation, it is sufficient to entitle the plaintiff to offer proof of his cause of action and no motion has been made to make either the statement or the petition more clear and definite.’ ”

Judgment on the opening statement was reversed.

To the same effect, see: Reitenbach v. Botzum Theatres Co., 18 Ohio Law Abs., 310; Hayes v. Barnes, 32 Ohio Law Abs., 274; Rubin v. Rainbo Baking Co., 36 Ohio Law Abs., 476, 44 N. E. (2d), 483 (a decision by this court); K. & S. Realty Co. v. Rosen, 47 Ohio Law Abs., 316, 72 N. E. (2d), 116.

An examination of these authorities indicates the extreme reluctance of courts to sustain such motions and that only where it clearly appears proof of a cause of action could not be included within the fullest extent of the allegations of intent to prove, will judgment be rendered adversely to the party making the opening statement.

It will be noted also that the party is not required to make such opening statement, but may do so. Section 11420-1, paragraph 1, General Code.

An opening statement cannot be intended to be a full development of all the evidence later to be introduced by a party. Its purpose is to outline to the jury the genera] conception of the party’s case.

It is evidence, not statements, which sustains a cause of action. Naturally, if counsel make admissions which preclude recovery, a different situation is presented. The penalty of an instructed verdict should be limited to affirmative statements prejudicial to a party rather than to matters of .mere omission.

The statement from Emmerson v. Weeks, 58 Cal., 382, quoted in Cornell v. Morrison, 87 Ohio St., 215, at page 222, 100 N. E., 817, appears to announce the better rule:

“In the case of Emmerson v. Weeks, 58 Cal., 382, this language is used: ‘It would be much better not to non-suit on an opening statement, unless it is clearly made and it. is plainly evident therefrom that no case can be made out.' ”

In the petition it is alleged that “The defendant in its business of advertising its name and products and in the course of maintaining the health and good will of its employees engages in, through its officers, agents and employees games of golf and other athletic contests.” It is alleged further that the plaintiff while playing a game of golf was struck by a ball negligently driven by an employee of defendant also playing golf upon the same course, causing certain injuries alleged. It is alleged further that such negligence consisted in a violation of the known rules of the game. The plaintiff states in his petition: “In failing to call ‘fore’ which is a word of general warning used in the game.”

The defendant in an amended answer admitted it advertised its products and denied that it was engaged in games of golf. Defendant admitted plaintiff was engaged in playing golf and was injured. The amended answer also contains allegations of contributory negligence and assumption of risk. A reply was filed denying contributory negligence and that plaintiff assumed the risk of the defendant’s negligence.

Counsel for plaintiff in his opening statement first outlined the general character of the game of golf and the manner in which it was played. He called attention to the custom of the game requiring a warning signal to be given prior to driving a ball, and noted that none in the instant case was given until after the ball was struck.

A diagram upon a blackboard was used, which is not brought before the court by copy or otherwise. Counsel then described how the plaintiff, proceeding in one fairway, was struck by the ball driven by defendant’s employee who was proceeding down a paralleJ fairway. Counsel then proceeded to explain why the action was brought against the defendant corporation instead of its employee. He stated “Mr. Haas was an employee of some duration of The Allis Chalmers Manufacturing Company, and that company had seen fit, so the evidence will disclose, to engage in, among other activities, the promoting and sponsoring and, if you please, supervising of athletics to be engaged in by its employees.” (Emphasis added.) Counsel further stated:

“There is a fine institution in Norwood, the Norwood Y. M. C. A., which promoted an industrial golf league in the spring of 1947, and it wrote to the industries in Norwood, including among those industries the Allis Chalmers Manufacturing Company, and it said this: We are interested in fostering industrial relations and if the Allis Chalmers Manufacturing Company cares to participate will you tell us what you want to participate in, when you can participate, and will you pay us an entrance fee to cover the type of thing that anybody runs into promoting a league, and the Allis Chalmers Manufacturing Company said: Yes, we are interested in participating and we are going to participate in playing golf at five o ’clock and here is our $25 entrance fee. And thereupon the Allis Chalmers Manufacturing Company entered into that league a golf team which played under the sweater and under the banner of the Allis Chalmers Manufacturing Company, the sweaters — the ‘T’ shirts, if you please — with the Allis Chalmers name on them were furnished their own employees who cared to participate in them. Further than that, the Allis Chalmers Manufacturing Company paid the green fees for their own team. I might say that on almost any public golf course there is a given charge to play. There is a charge at Avon Fields and there was a charge to Mr. Haas playing on this golf course on this Monday afternoon, and that charge was paid for out of the treasury, out of the funds and the money of the Allis Chalmers Manufacturing Company. The name of that golf team found prominence on the bulletin boards at the golf course and prominence in the newspapers of this community as that particular team, and at the end of the year the company through its supervisor of athletics, who supervises all sorts of athletics including this, promoted somewhat of a banquet at which they award letters or sweaters and prizes, all bearing the name of the Allis Chalmers Company. And so the second issue which the plaintiff, we feel and hope, will sustain to you is that Mr. Haas in playing golf that afternoon was on or about the business of his employer, the Allis Chalmers Manufacturing Company, and that is why this suit is against this defendant.”

Counsel then described plaintiff’s injuries, and at this point the defendant made a motion for an instructed verdict. After some discussion, counsel for plaintiff again resumed his statement:

“The directions from the 13th tee to the 13th green is north to south and from the 14th tee to the 14th green is south to north, and the fairways of said holes border on the same rough grass. The plaintiff was generally in front of and a little to the left of the intended line of flight of Haas’ bail—
“The Court: How does that lead up to the question of agency?
“Mr. Hogan: 1 am a little afraid I didn’t go into' negligence very much.
‘ ‘ The Court: Hon’t bother about that.
“Mr. Hogan: If counsel will so agree.
“The Court: You have stated enough on the subject of negligence. Confine it to the relationship existing between the man who hit the ball and the company at the time the accident occurred, whether or not at that time he was in the scope of his employment. In other words, you establish agency.
‘ ‘ Mr. Hogan: I don’t want to get tripped up on some side point, Judge.
“To go on, Haas was a full-time employee, in the sense of an eight-hour day, five day week, of the Allis Chalmers Manufacturing Company. He was asked in the spring of 1947 whether or not he cared to play golf on a team in the Y. M. C. A. Industrial League at five o’clock.
“The Court: Asked by whom?
“Mr. Hogan: He was asked by Robert Barbeau, who was the captain of the team, and Barbeau had been asked to make up the team by William Kellar, who was an employee of the Allis Chalmers Manufacturing Company with the title of supervisor of athletics of the Norwood Works of Allis Chalmers.
“Mr. Headley, Sr.: Do you mind if I interrupt you?
“Mr. Hogan: No.
“Mr. Headley, Sr.: You can’t prove there was any supervisor of athletics out there, if you want to be rig’ht about it.
“Mr. Hogan: Kellar will say that is what his title is; that is what he is going to say.
“Mr. Headley, Sr.: That’s not the case but he has a right to say that in opening statement.
“Mr. Hogan: The Allis Chalmers Company Nor-wood Works had a section or department or some unit in charge of supervising and promoting an athletic program for the employees of the company. Keller, in 1947, was in charge of this. In January or February, 1947, he submitted an athletic budget to the higher-ups of the company and was given an allowance of something in the neighborhood of three thousand dollars to be spent by him in promoting athletic activity among the employees of the company. This activity took two forms, industrial and intramural; the former meaning that teams under the company name were entered in leagues to combat with teams, playing under other company names at places not owned by the company, and the latter meaning strictly intramural and on the company premises.
“The Court: What you mean to say is that the other companies participating in the league were also industrial firms.
“Mr. Hogan: Yes, your Honor.
“The Allis Chalmers Company spent twenty-five-dollars of its own money to enter a team in the Nor-wood ‘Y’ Industrial League after the company had received some correspondence from the Norwood ‘Y' which asked: ‘Could your industry participate at five-p. m. in men’s industrial golf?’ The letter from theNorwood ‘Y’ which contained this question was addressed to the Allis Chalmers Company, and after-the Allis Chalmers Company got it, its athletic director, Kellar, saw to it that a company check for the-entrance fee was sent in to the Norwood ‘Y,’ and Kellar also asked Barbeau to captain the team. TheAllis Chalmers Company paid the greens’ fees of this-team every Monday. Haas was a regular member of this team which played in the Norwood ‘Y’ league-under the name of Allis Chalmers Company and he was playing when the occurrence took place. In addition he was wearing a ‘T’ shirt bearing the company name which had been furnished to him by Kellar and' which had been paid for by Allis Chalmers Company. After the accident Haas promptly reported it toKellar.”

Upon which, the court, without any renewal of the-motion by defendant, instructed a verdict for the defendant. These statements, construed as is required by the rules set forth in the authorities hereinbefore noted, are sufficiently broad to include a claim of proof that the defendant requested its employee to play golf for it, and that in doing so, such employee negligently caused the plaintiff’s injuries, by violating the rules and customs of the game of golf.

The fact that the employee was asked “whether or not” he would play instead of being ordered to play is sufficient. Compensation for such playing at the request of defendant could have no bearing on liability. Gratuitous employment may develop responsibility. It is stated he did so play upon the defendant’s team after such request.

The evidence probably would show the several incidents of this undertaking and might or might not prove liability in the defendant. Strictly construed, the statements of counsel should have been amplified to have definitely detailed the nature of the entire arrangement. This defect, if it is a defect, is one of omission, not an affirmative prejudicial admission, preventing recovery.

The allegations were sufficiently broad to include facts which would have justified responsibility in the defendant.

A more serious problem presents itself involving the question of admission of assumption of risk.

It will be remembered, however, that counsel’s attempt to amplify this phase of liability was stopped by the court, who stated that further statement would be limited to the elements of scope of employment and agency. What counsel might have said is left to speculation. It is to be noted also that a participant in a game of sport is presumed to assume only the normal risks incident to such sport. He has a right to assume that the game will be played according to rules which form the custom applicable to the game. Counsel had alleged and stated that certain customs and rules of the game of golf were not followed by the employee of the defendant. Suppose that a rule of the game required a player to wait until a player in advance had driven his second ball before the following player could drive off a tee, and by the violation of such rule the advance player was struck. Could it be said the injured player assumed the violation of such rule?

It is the normal, reasonable, naturally to be anticipated incidents of a game that one engaged therein, is required to foresee, and if it can be shown that a custom or rule of the game of golf requires a player under the circumstances here prevailing to call out before driving, thus establishing a recognized standard of care, and a failure so to do was the proximate cause of the plaintiff’s injuries, it may well be that a jury might properly conclude that such violation of the rules, and failure to exercise such standard of care, so causing injury, constituted actionable negligence.

In Ivory v. Cincinnati Baseball Club Co., 62 Ohio App., 514, at page 517 of the opinion, it is stated :

“It is a universal principle that when two persons come into such nearness to one another that they, and the agencies under their control, may cause injury to one another a duty devolves upon them to so conduct themselves and so manage the agencies under their control that neither will be injured by failure of the other to conform to the standard of duty, the exact extent .of the duty depending upon the attending circumstances.”

From the statements made by plaintiff’s counsel it appears that a “standard of care” in the playing of golf required a player to call “Fore” before playing the ball. This is alleged in the petition and denied in the answer.

Factual questions are thus involved requiring action by a jury.

In Cincinnati Baseball Club v. Eno, 112 Ohio St., 175, 147 N. E., 86, the court draws a distinction between a game of baseball being played in the norma] manner and batting practice between games, holding that a jury question is presented whether a spectator assumes risk of injury from the latter situation and as a matter of law assumes risk of a game being played according to national custom.

To the same effect is Douglas v. Converse, 248 Pa., 232, 93 A., 955, involving the playing of a game of polo.

The fact that the plaintiff in the cited cases is a spectator and not a participant in the games is not overlooked, but it would seem the principle involved is the same, in that in each case the injured person is held to assume only those risks which are incident to the employment of the standard of care existing in the enterprise. In the one case, the plaintiff assumes the risk of a normal game of baseball or polo; in the instant case, the player assumes the risk of a normal game of golf, played according to the rules and customs of the game and pursuant to the standard of care involved.

Defendant cites the case of Benjamin v. Nernberg, 102 Pa. Sup. Ct., 471, 157 A., 10. In the opinion in that case at page 475, it is stated:

“There was no duty, under the facts of this case, on defendant to warn plaintiff of his intention to play. We cannot see that defendant was at fault or that he disregarded any rule or custom of the game.” (Emphasis added.)

In that cited case, the plaintiff was struck in the face while putting on a green by a ball driven by a player on another fairway. Later in the opinion, the •court says:

“Having already decided that there was no duty on •defendant to warn plaintiff of the intended play, it follows that, if plaintiff was struck by a ball driven by defendant, the plaintiff had assumed, as a matter of law, the risk of injury resulting from his own participation in the game he and all the others were then playing. ’ ’

In the cited case, as in the instant case, the claim that the rules of the game of golf required warning previous to driving the ball was denied. Certainly, neither the trial court nor this court can take judicial notice of the rules and customs or the standards of care of the game of golf. Such matter would require evidence as to the standard of care required. Englehardt, a Minor, v. Philipps, 136 Ohio St., 73, 23 N. E. (2d), 829.

In Toohey v. Webster, 97 N. J. Law Rep., 545, 117 A., 838, 23 A. L. R., 440, liability was imposed upon, a player who injured a caddy employed by another player, where customs of the game were ignored by the defendant player. This case is said not to be in point in Benjamin v. Nernberg, supra. To the same effect as the last case is the decision of this court in Gardner, a Minor, v. Heldman, 82 Ohio App., 1, 80 N. E. (2d), 681.

For the reason that the statements of counsel for plaintiff were broad enough to include proof showing that an employee of the defendant, at its request, acting for it, and within the scope of his employment or agency caused the plaintiff injury, and because the court unduly limited such statement upon the issue •of contributory negligence or assumption of risk, and because in such statement, as was permitted, the plaintiff was not shown to be guilty of contributory negligence or to have assumed the risk causing his injury, it ns my opinion that the judgment of the trial court should be reversed and the cause remanded for further proceedings.


text:
    Shay, Exr., Appellee, v. Herman et al., Appellants.

      (No. 471
    Decided December 10, 1948.)

      Messrs. Balloran & Rosenthal, for appellee.

      Messrs. McGrew & Laybourne, for appellants.
   Wiseman, P. J.

This is an appeal from the Common Pleas Court of Clark County, in an action to construe the will of Anna C. Shay, who died December 7, 1945.

On March 28, 1946, Joseph E. Shay was appointed executor of such will by the Probate Court of Clark County. On May 20, 1946, the executor filed his petition in the Probate Court to have the will construed, and alleged that he was in doubt as to the true construction of the will in the following particulars, to wit, “item VII of said will, in that the same gives a right of occupancy for five years and the right to purchase at the end of said five-year period for a stated sum, and plaintiff requires the advice of the court as to whether such occupancy and such purchase price are for the entire premises or whether said occupancy should be for half of said premises, and the purchase price named in the will should be divided and he be required to pay one-half of the sum set out for the purchase of one-half interest of the testatrix.”

The testatrix devised certain real estate to her son, Joseph E. Shay, in trust, the pertinent part of item VII being as follows:

“Being lots Nos. three thousand three hundred and eighteen (3318) and three thousand three hundred and nineteen (3319), as the same are numbered and designated on Johnson and Scott’s addition to said city.
“Being the same premises conveyed to the said William Shay and Anna Shay by Frank C. Johnson and Benjamin P. Johnson, executors and trustees of Robert Johnson, deceased, by deed and recorded in Vol. 187, page 113, Deed Records of Clark county, Ohio.
“Said trustee shall hold said real estate and dispose of the same in the following manner.
“1. Joseph Shay shall have the right to the use, occupancy, and privileges of said real estate for the term of five years immediately after my death, free of any rental or charge except repairs and maintenance and the payment of taxes and insurance thereon.
“2. At the end of such five-year period the said Joseph Shay may purchase same real estate for the sum of four thousand dollars ($4,000).
“3. Should the said Joseph Shay not desire to purchase said property for said sum of four thousand dollars ($4,000) at the expiration of said five-year period, then I direct that said property be sold for the highest price that can be obtained therefor at public sale, and I hereby authorize said Joseph Shay as trustee to execute and deliver a deed therefor to any purchaser thereof, and I direct that the said above referred to four thousand dollars ($4,000) if paid by the said Joseph Shay, or if he does not elect to purchase said real estate, then any sum realized from the sale of said property, shall be paid as follows: * * *
“b. All the rest and residue of said four thousand dollars ($4,000) or said other sum received for said property, I give, devise and bequeath to all of my children, share and share alike * *

The fact that testatrix died possessed of an undivided one-half interest only in the property devised under item VII gives rise to the controversy.

This being a will-construction suit, the intention of the testatrix must be ascertained, and her intention must, be drawn from the four corners of the will. We are not permitted to give effect to the actual intent of the testatrix, even if it were susceptible of proof, but rather the intention of the testatrix as gathered from the words used in the will.

Where there is a latent ambiguity in a will, extrinsic evidence is admissible, not for the purpose of showing the intention of the testator, but for the purpose of assisting the court to better interpret his intention from the language used in the will. 41 Ohio Jurisprudence, 612, Section 480.

In an agreed statement of facts it was stipulated that the property in question was purchased by Anna C. Shay and her husband, William Henry Shay, the title being taken in their joint names: and that, under the will of her deceased husband, Anna C. Shay look a life estate in her husband’s undivided one-half interest with the power to dispose of same during her lifetime. She made no disposition of the property during her lifetime. After the death of her husband, the testatrix executed her will under date of January 26, 1944. The agreed statement of facts fails to state the appraised value of the real estate.

It will be observed that only the undivided one-half interest in the premises passed under the will of the testatrix. She could uot devise more than she owned but all she owned passed under the devise. .It. is clear that she desired to confer a benefit on her son, Joseph E. Shay. Whether she believed she owned the entire interest in the property or only one-half interest, it is convincingly clear that she expressed a definite desire and purpose to confer on Joseph E. Shay the “right to the use, occupancy and privileges of said real estate for the term of five years” immediately after her death, “free of any rental or charge except repairs and maintenance and the payment of taxes and insurance thereon.’’ The testatrix manifested a clear intention to favor the son with the right to use and occupy for a period of five years, free from rent, such interest in the property which she owned, and which «he was able to devise. Since the testatrix owned only the undivided one-half interest in the property, the language used effectively operated to confer on Joseph E. Shay the right to use such undivided one-half interest, rent free, for a period of five years. The testatrix manifested an intention that he be charged with the payment of the cost of repairs and maintenance, taxes and insurance on that interest which he uses and occupies. Since he has the right to use and occupy only the undivided one-half interest he shall be charged with the payment of only one-half of the cost of repairs and maintenance, and one-half of the taxes and insurance on the property.

In paragraph No. 2 of item VII, the testatrix gave ’to her son what amounts to an option to purchase the property, at the end of the five-year period, for the sum of $4,000. Here a more difficult question is presented. In paragraph No. 1 of item VII, the testatrix was powerless to devise an interest greater than that which she owned. Neither could she confer the right •of use and occupancy in any interest greater than she owned regardless of her intention to do otherwise. In paragraph No. 2, we consider a matter in which the testatrix could exercise a broad discretion and had an unlimited right in imposing a condition which must be performed in order to have advantage taken of the right conferred.

The right to purchase does not depend on whether Joseph E. Shay exercises his right to the use and •occupancy. The right to purchase at the end of the five-year period may or may not be exercised by Joseph E. Shay, at his option.

In arriving at the intention of the testatrix, we are required to consider the will in its entirety. It will be observed that the $4,000 figure is mentioned four different times in the will. It is evident that the testatrix expected her estate to recover $4,000, and the provision for the distribution of the residuary estate in paragraph No. 3 (b) is based on that premise.

It was not within the power of the testatrix to pass the entire interest or to confer the right to purchase the entire interest in the property. Since the decedent owned only the undivided one-half interest in the property, it would be impossible to carry out the intention of the testatrix to confer on her son the right to purchase the entire interest. However, we are required to give effect to the intention of the testatrix so far as possible. In this provision, as in the first provision, the testatrix manifested a clear intention to give her son an option to purchase that interest which she owned and which she was able to devise.

We are not unmindful of the rule that there is a strong presumption that the testatrix knew the extent of her ownership in the property; and the rule that the will must receive the most favorable construction to accomplish the intention of the testatrix. In view of this situation, if the court were to indulge the presumption that testatrix did not intend to devise that which she did not own, we would be required to conclude that she intended to devise the undivided one-half interest, and that her son would be required to pay for such one-half interest the sum of $4,000. The condition imposed in the exercise of the option to purchase does not necessarily fail because the interest devised is found to be the half interest rather than the entire interest. The testatrix had an undisputed right to impose any condition she wished and fix the price at any amount she might choose regardless of the value of the property. The court cannot find that it was the intention of the testatrix that her son should pay $2,000, or one-half of the price fixed in the will, for the one-half interest in the property. There is no provision in the will to indicate such intention. In order to give this construction t.o the will, as appellee contends, the court would be required to rewrite the will and to interpolate a clause to supply the defect. This the court cannot do.

We conclude that under item VII, paragraph 2, Joseph E. Shay will be required to pay $4,000 for the undivided one-half interest if he desires to exercise the right to purchase.

Judgment accordingly.

Miller and Hornbeck, JJ., concur.


author: Stevens, J.

text:
    Hale, Exrx., Appellee, v. Graham, Appellant.
    (No. 3919
    Decided May 11, 1948.)

      Mr. Scott A. Belden, for appellee.

      Mr. Alexander Russell and Mr. W. Howard Fort,. for appellant.
   Stevens, J.

This is an appeal on questions of law from a judgment of the Probate Court of Summit county, determining that Ranee Graham was not the-surviving spouse of .Janie Graham, deceased, and that he had no legal right to share or participate in any of the assets and property of the estate of Janie-Graham, deceased.

The evidence contained in the bill of exceptions discloses the following:

Janie May Pentecost was married to Robert E. Caldwell in Chattanooga, Tennessee, on .June 6, 1912.

No divorce was obtained by either of the parties to-said marriage until May 8, 1920, when Robert E. Caldwell was granted a judgment of divorce from Janie-Caldwell by the Circuit Court of Hamilton county,. Tennessee.

On March 1, 1919, Janie Caldwell and Ranee Graham secured a marriage license at Akron, Ohio, and on the-same day they entered into a ceremonial marriage at Akron.

They continued to live together as husband andi wife from that time until the death of Janie Graham, on January 11, 1945, except for short periods of separation after family disagreements.

They purchased real property as husband and wife,, were involved in three divorce actions, which were dismissed, and reconciliations effected, she was listed in the telephone book as “Mrs. Janie Graham,” and she was supported largely from Ranee’s earnings, although she, too, worked.

The Probate Court in its findings of fact included the following:

“7. That Ranee Graham at the time of the issuing of the marriage license was present and heard Janie Graham, the decedent, then Janie Caldwell, state under oath that her name was Janie Caldwell; and Ranee Graham’s testimony at the hearing was to the effect that he only knew her as Janie Pentecost.”

This finding is important as bearing on the question of whether or not Ranee Graham innocently and in good faith entered into the ceremonial marriage with Janie.

We fail to find one word in the record of this case which indicates that Ranee Graham heard Janie Caldwell state under oath that her name was Janie Caldwell. It may be that the Probate Court inferred from the fact that both parties signed the application for a marriage license, that Ranee must have heard her state that her name was Janie Caldwell, but he expressly denies that, and his denial is not controverted.

It is true that at the time of the ceremonial marriage between Ranee and Janie on March 1, 1919, that marriage was absolutely void, for Janie was not then competent to enter into a marriage contract because she had a husband living at that time.

That situation continued until May 8, 1920, when Janie’s then husband procured a divorce from her, thereby removing the impediment which had theretofore precluded Janie from entering into a valid marriage.

We are of the opinion that the evidence in this case preponderates in favor of Ranee Graham having innocently and in good faith entered into the ceremonial marriage with Janie, and that therefore the syllabus in Johnson v. Wolford, 117 Ohio St., 136, 157 N. E., 385, controls this case. That syllabus is as follows:

“Where F., innocently and in good faith enters into a ceremonial marriage with J., which is void when contracted because J. has at the time a valid and subsisting contract of marriage with M., the removal of the impediment to such marriage by the death of M., and the continued cohabitation between F. and J., after the death of M., operate as a ratification and a validation of such marriage as to F. from the date of the death of M., though the death of M. may not have been known to F. and J.; the intent and actual agreement to be married which inhered in the ceremonial marriage innocently contracted by F. will be imputed by the law to the cohabitation after the death of M. so as to establish a valid marriage at common law.”

However, should we be mistaken in that conclusion, we are unanimously of the opinion that the evidence of the continued cohabitation of Ranee and Janie after May 8, 1920, their acts, declarations and conduct, and their recognized status in the community in which they resided, were such as to clearly establish a common-law marriage under the rules announced by the Supreme Court of Ohio in Markley v. Hudson, 143 Ohio St., 163, 54 N. E. (2d), 304.

We are of the opinion that the judgment of the Probate Court, finding that Ranee and Janie Graham did not consummate a common-law marriage after the removal of the impediment thereto on May 8, 1920, is manifestly against the weight of the evidence.

It follows that the judgment of the Probate Court must be reversed, and the cause remanded for further proceedings in conformity to this opinion.

Judgment reversed and c,a,use remanded.

Doyle, P. J., and Hunsioker, J., concur.