author: Wiseman, J.

text:
    Myers, Treas., Appellee, v. Duibley et al., Appellees; Gem City Building & Loan Assn., Appellant.

      (No. 2200
    Decided November 21, 1952.)

      Mr. Mathias H. Reck, prosecuting attorney, and Mr. W. Edmund Shea, for plaintiff appellee.

      Messrs. Landis, Ferguson, Bieser & Greer, for defendant appellant.

      Messrs. Turner & Turner, for appellee Standard Register Company.
   Wiseman, J.

This is an appeal on questions of law from the order of the Common Pleas Court, overruling appellant’s motion to vacate a judgment entered in a tax foreclosure action.

On October 19, 1950, a petition was filed by the county treasurer to foreclose a tax lien against a parcel of real estate located in the city of Dayton, Ohio. Numerous parties were named as defendants, including the Gem City Building & Loan Association, hereinafter referred to as the association. On December 14, 1950, the association filed its answer and cross-petition. In its answer, the association admits claiming an interest in the real estate by reason of its mortgage lien, and then avers “but for lack of knowledge of the facts denies each and every other allegation in the petition contained.” In its cross-petition, the association sets up the indebtedness, the amount due, the mortgage lien, and in the prayer asks the court to protect its mortgage interest, and, in the event of sale of said real estate, to set aside out of the proceeds of sale, in the order of its priority, the amount due it.

No answer was filed by any of the other defendants.

On J anuary 3,1951, the plaintiff filed a judgment entry and an order of sale. The real estate was sold by the sheriff at public auction.

On February 26, 1951, a return of sale was made by the sheriff, showing the purchaser to be the Standard Register Company, at the price of $1,025. The entry confirming the sale and ordering distribution was filed March 2, 1951.

The court costs amounted to $311.11, and the tax claim of the county amounted to $1,858.59. The court ordered the costs paid and the balance of $713.89 to be applied on the tax claim.

On March 15, 1951, the association filed a motion to vacate the judgment and order of sale of January 3, 1951, and to vacate the entry of March 2, 1951, confirming the sale and ordering distribution, for the reason that such judgment entry and entry of confirmation were filed without presentation to and without the knowledge of counsel for the association, with the result that the association had no knowledge in advance of such sale, to its prejudice.

A series of hearings was had on the motion to vacate, during which counsel for the association presented additional grounds in support of the motion. The court sustained the motion in part by ordering the order of distribution vacated; in all other respects the motion was overruled. From that order the association took this appeal.

The appellant has assigned three grounds of error, namely, first, in overruling appellant’s motion to vacate the judgment and order of sale filed January 3, 1951, in which the trial court ordered a sale without a hearing on the issues raised by appellant’s general denial, without notice to or knowledge of appellant’s attorneys of record in the case, and in disregard of certain published rules of procedure of said court; second, in overruling appellant’s motion to vacate the sale held pursuant to the court order; and third, in overruling appellant’s motion to vacate the order of confirmation of sale filed March 2,1951, without notice to or knowledge of appellant’s attorneys of record, and in disregard of certain published rules of procedure of said court.

Counsel in their briefs have treated the errors assigned as one, and we shall consider them as one.

Tax foreclosure actions are controlled by the legal principles applicable to mortgage foreclosure actions, with certain exceptions which are not material here, by virtue of the provisions of Section 5718-3, General Code, which, in part, provides:

“The proceedings for such foreclosure shall be instituted and prosecuted in the same manner as is now or hereafter may be provided by law for the foreclosure of mortgages on land in this state * *

We come now to consider the failure to comply with the published rules of court, which fact is admitted, and the legal effect thereof. Section 1, Rule VII, requires counsel for the prevailing party to prepare the entry and submit it to opposing counsel for approval. Rule VIII provides that counsel shall supply copies of all papers filed in a case subsequent to the petition to each counsel appearing of record. Section 2, Rule XIII, specifies the days on which the motion docket shall be called, and section 4 of that rule provides that all judgments and orders-which are required to be taken at the call of the motion docket must be taken during such call and not afterward. Eule XV provides that entries of confirmation of sales shall be presented to the court on call of the motion docket and only after a motion for confirmation has been filed.

Ordinarily, litigants may rely on the observance by the court of its rules in the conduct of its proceedings, and the failure to do so may constitute an abuse of discretion. Ramsey v. Holland, 35 Ohio App., 199, 172 N. E., 411. However, a rule of court is not a principle of law, but is of the court’s own making, and is not a bar to an act which a sound exercise of the court’s discretion dictates, and a waiver of or departure from such rule is not an abuse of discretion. Sargent v. Corbley, 7 C. C. (N. S.), 226, 18 C. D., 125. This court has held that the enforcement of rules of court is within the sound discretion of the court. Hanes v. Block, 78 Ohio App., 394, 65 N. E. (2d), 86. The argument presented by appellant turns chiefly on the failure to comply with Eule VII, which requires the entry to be submitted to opposing counsel. But the evidence presented relative to this issue is to the effect that for many years prior to the institution of this action, the provisions of this rule were not adhered to in tax foreclosure actions. The clerk of courts testified that in a large number of cases neither the judgment, order of sale, nor the entry confirming the sale were submitted to opposing counsel. The clerk testified also that motions for confirmation of sale were not placed on the motion docket. In other words, in tax foreclosure actions, the court systematically ignored the published rules, and this fact was well known both to the officers of the association and its counsel. The record shows that the association was involved in many tax foreclosure actions in which the published rules were ignored. Therefore, the rule was rendered nugatory by the established practice, and-such rule will be given no legal effect. A litigant may not urge the failure to comply with the provisions of a rule which, over a long period of time, is not enforced by the court, and which fact is well known to the litigant.

We come now to consider whether the appellant was denied due process of law. The appellant contends that it was denied the due process of law guaranteed to it by Section 16, Article I, of the Ohio Constitution and the Fourteenth Amendment to the United States Constitution, in that the appellant was denied a hearing on the issues made by the pleadings. The case was not set for trial and there was no formal hearing. The contention of the appellant that it was denied due process is grounded on the supposition that its answer constituted a general denial and put in issue all the allegations of plaintiff’s petition, and that plaintiff was required to offer proof. The particular part of the answer which appellant contends constitutes a general denial is, “but for lack of knowledge of the facts denies each and every other allegation in the petition contained. ’ ’

Appellee contends that in this class of cases these words do not constitute a general denial, and there is case law in Ohio to support this contention. In Wentzel, Gdn., v. Zinn, 7 N. P., 512, 10 O. D. (N. P.), 97, the second paragraph of the syllabus is as follows:

“A party cannot allege want of knowledge of matters of record. These should be ascertained and definitely set out.”

In the opinion, the court said:

“Defendant answers that she is not informed of the amounts of taxes and assessments unpaid by her and set up in the petition and, therefore, denies same. Technically, this defense is not a sham because ‘false, ’ inasmuch as she may never have examined the records. Where a party is not chargeable with knowledge such an allegation is permissible (Ohio v. Commissioners, 11 Ohio St., 183; McKenzie v. Ins. Co., 2 Disney, 223). Where, however, this knowledge is applicable to matters of record of which the defendant could have been informed, she could shield herself behind a failure to investigate. This is practically false. It is certainly evasive. In either case, it must be stricken out (Bliss on Code Pleading, section 421 and note, p. 642; Lb., section 326; Werthheimer v. Morse, 23 W. L. B., 455). Motion granted. ’ ’

In Dennis v. Landreth, 15 C. C. (N. S.), 159, 22 O. D., 678, the syllabus is as follows:

“A denial in the answer of the defendant ‘for want of knowledge ’ is insufficient, where referring to a public record, to put the plaintiff upon his proof.”

The last paragraph of the opinion, on page 160, is as follows:

“Another claim of error is founded upon the failure of plaintiffs below to offer any evidence in support of the averment in their petition that they had duly filed their certificate of partnership as required by law. The answer’s only denial of this averment is upon the ground of alleged ‘want of knowledge,’ and we think that such denial of a public record is insufficient to put opposite party upon his proof thereof. The judgment below is affirmed. ’ ’

The judgment in the case of Dennis v. Landreth was affirmed by the Supreme Court without opinion, in 74 Ohio St., 450, 78 N. E., 1124. See, also, Granville v. Gas Co., 11 N. P. (N. S.), 641, 23 O. D. (N. P.), 694.

The answer attempted to put in issue the amount of the tax lien. This was a matter of public record. If the appellant wished to raise this issue, it should have been specially pleaded.

In our opinion, in this type of action, such answer does not constitute a general denial, and the appellant was not denied due process of law by the entering of judgment without a formal hearing.

The court acquired jurisdiction upon the filing of the petition, and the issuance of summons, which was properly served. The appellant contends that the court lost jurisdiction by reason of a denial of due process. Authorities cited by the appellant, which hold that the court loses jurisdiction by failure to give a litigant his day in court, are not in point. Furthermore, the appellant, after service of summons, was charged with the knowledge of all subsequent proceedings. Under the facts in this case, as disclosed by the record, the court retained jurisdiction and did not lose jurisdiction at any stage of the proceedings.

It must be noted that, by virtue of the provisions of Section 5718-3, General Code, ‘ ‘ The delinquent land tax certificate filed by the county auditor with the prosecuting attorney, shall be prima facie evidence on the trial of such action, of the amount and validity of the taxes * * * appearing due and unpaid thereon and of the nonpayment thereof. ” The purpose of this provision is to facilitate the prosecution of a tax foreclosure action. The judgment entry recites that the matter came on to be heard on the petition of the plaintiff and the cross-petition of, the association ‘ ‘ and the evidence.” In the absence of a showing to the contrary, we must indulge the presumption that the delinquent land tax certificate was presented to the trial court.

One more matter requires discussion. The trial court was required to and did weigh the equities between the parties. One fact must be kept in mind which has a material bearing on the determination of all the issues presented. The controversy is not between the parties to the case, but between a litigant and an innocent purchaser for value at a public sale. In the judgment entry, the court recognized the claim of the association, and that its lien was secondary only to the tax lien, and recognized the amount claimed by the association to be the amount due. By reason of the death of the makers of the note many years prior to the bringing of the action, no personal judgment could have been rendered in favor of the appellant.

The appellant finally contended, and now contends, that had it been advised of the proceeding, it would have had a bidder at the sale; that it would have bid a higher price; that the appraised value was too low; and that the price was inadequate. The record shows that-the property was appraised at $725 and sold at public auction for $1,025. The appellant does not charge fraud or bad faith on the part of any litigant or counsel, and does not claim that there was any irregularity in the conduct of the sale. In the absence of fraud or such irregularity, these matters cannot be urged after confirmation of sale, delivery of deed and payment of the consideration, which is the factual situation in the instant case. 24 Ohio Jurisprudence, 92, 93, Sections 128 and 129.

See, also, 1 Clark on Receivers (2 Ed.), 701, Section 518, which quotes from several opinions of the United States Supreme Court as follows:

“ ‘Yet the purpose of the law is that the sale shall be final; and to insure reliance upon such sales, and induce biddings, it is essential that no sale be set aside for trifling reasons, or on account of matters which ought to have been attended to by the complaining party prior thereto.’ ‘A judicial sale of real estate will not be set aside for inadequacy of price, unless the inadequacy is so great as to shock the conscience, or unless there be additional circumstances against its fairness.’ ”

Again, on page 702, Section 519, ibid., the author states the rule by quoting from the opinion in Morrison v. Burnette, 154 F., 617, 624, as follows:

i < < There is a marked and radical distinction between the situations, the rights of the parties and the established practice before and after the confirmation of the sale. The purchaser bids with full notice that the sale to him is subject to confirmation by the court, and that there is a power granted and a duty imposed upon the judicial tribunal when it comes to decide whether or not the sale shall be confirmed, to so exercise its judicial power as to secure for the owners of the property the largest practical returns.

“ ‘He is aware that his rights as a purchaser are subject to the rational exercise of this discretion. But after the sale is confirmed that discretion has been exercised. The power to sell and the power to determine the price at which the sale shall be made has been exhausted. From thenceforth the court and the successful bidder occupy the relation of vendor and purchaser in an executed sale, and nothing is sufficient to avoid it which would not set aside a sale of like character between private parties. Hence the rule is settled, and it seems to be universally approved, that after confirmation of a judicial sale neither inadequacy of price, nor offers of better prices, nor anything but fraud, accident, mistake or some other cause, for which equity would avoid a like sale between private parties, will warrant a court in avoiding the confirmation of the sale or in opening the latter and receiving subsequent bids. ’

“It has been further said: ‘This rule is so firmly established that it is no longer debatable, and the cogent and all-sufficient reason for it is that judicial sales would become farces and rational men would shun them and refuse to bid if, after confirmation, unsuccessful bidders or dissatisfied litigants could avoid them and secure new sales by offers of higher prices, when they thought the purchase a fortunate one, and thus secure the profits in that event and leave the buyer to suffer the losses if the property depreciated in value or the purchase was unwise.’ ”

See, also, Dairymens’ Cooperative Sales Co., Inc., v. Frederick Dairy, Inc., 17 Ohio Law Abs., 690, and Howell v. French, 74 Ohio App., 257, 58 N. E. (2d), 237, the syllabus of which latter case is as follows:

“1. A judicial sale being in all respects regular and according to law, upon its confirmation and the delivery of the sheriff’s deed, the rights of the purchaser at such sale become fixed and vested, and, in the absence of fraud or irregularity, such rights cannot thereafter be divested except by the act of the purchaser.

‘ ‘ 2. A purchaser at a judicial sale has certain rights which the courts are bound to protect equally with the rights of the parties to the action. Neither disputes nor differences between the parties to the case, nor events occurring subsequent to the sale and confirmation can affect the rights of such purchaser.”

In the case at bar, the proceedings were regular on the face of the record. The purchaser bought the property relying on the record. Under that state of facts, the purchaser is entitled to all the rights of an innocent purchaser for value vouchsafed to it under the law after confirmation of sale, payment of consideration and delivery of the deed.

We now consider more specifically the order appealed from in determining whether the trial court properly weighed the equities between the association and the purchaser, and more particularly whether there is shown an abuse of discretion. During the trial the court offered the appellant every opportunity to produce evidence showing wherein it was prejudiced by the proceeding. The appellant finally contended, and now contends, that it could produce evidence to show that an error had been made in the amount of the tax lien. The claim is made that the taxes were levied on the erroneous assumption that a building existed on the land, whereas, the fact is shown that a number of years ago, the exact date being indefinite, the building was removed, and that, therefore, after the building was removed the taxes could only be levied on the land.

The court considered this matter and determined that even if this tax claim were reduced by deducting therefrom the amount of taxes attributable to the nonexistent building during the entire period of the delinquency, the reduced tax claim and the court costs would exceed the purchase price. In balancing the equities, the trial court had a right to consider the evidence which shows that the association was served with summons, filed an answer and cross-petition, was chargeable with knowledge of all subsequent steps in the proceedings, and that in the judgment entry the claim of the association was recognized; that all the various steps of the proceedings taken in the case after the answer and cross-petition was filed were all published in the Daily Court Reporter; that the association and its counsel received the Daily Court Reporter, daily; and that no objection was interposed until the notice appeared in the Daily Court Reporter of the filing for record of the deed to the purchaser. The court set aside the order of distribution. Upon the hearing with respect to an order of distribution, we are of the belief that the court will be confined to a determination of the question as to the proper order of priority in payment of the liens.

In consideration of the foregoing, this court is of the opinion that the trial court did not abuse its discretion in overruling the motion to set aside the judgment, order of sale and confirmation of salé.

In our opinion the trial court did not commit error prejudicial to the rights of the appellant. We find no assignment of error well made.

Judgment affirmed.

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


source: Caselaw Access Project

author: Matthews, P. J.

license: Public Domain

text:
    Burnside, Appellee, v. The Cincinnati Street Railway Co., Appellant.
    (No. 7703
    Decided April 13, 1953.)

      Messrs. Lindhorst & Dreidame, for appellee.

      Mr. Leo J. Brumleve, Jr., for appellant.
   Matthews, P. J.

This is an appeal on questions of law, resulting from a mistrial. After a hearing lasting for six days issues of fact were submitted to the jury which, after deliberation, reported its inability to agree and was discharged. Upon conclusion of the evidence the defendant had moved the court to arrest the case from the jury and for an instructed verdict which had been overruled. Immediately after the jury ' was discharged the defendant moved for judgment in its favor. This motion was overruled also. This appeal is from those orders.

Originally, the city of Lockland was joined as a codefendant. Before filing his third amended petition, the plaintiff dismissed the city of Lockland from the action without prejudice and the case proceeded to trial against the defendant, The Cincinnati Street Railway Company, on the plaintiff’s third amended petition and the defendant’s answer thereto.

In this action, the plaintiff seeks to recover damages on account of serious personal injuries received by him in a collision between his automobile and defendant’s streetcar while he was operating his automobile eastwardly and the defendant was operating its streetcar westwardly on Wyoming avenue in the city of Lockland, a short distance west of its intersection by Cooper avenue. The collision was between the left front corner of the streetcar and the left front corner and left side of the automobile. The plaintiff alleged that The Cincinnati Street Railway Company was a common carrier of passengers and that it operated streetcars over tracks in the exact center of Wyoming avenue.

This collision occurred on the night of April 20,1947, during a hard rain and when visibility was low. The headlights of both vehicles were illumined, but the rays did not extend very far. As the plaintiff approached the point of collision, his automobile was astride the south rail of the streetcar track, which rail he alleged was south of the center of Wyoming avenue and that his automobile was south of that center, thereby placing it on his right side of the street.

In his petition, the plaintiff alleged that the streetcar rails and the surface of Wyoming avenue at the area in question had been constructed by the city and street railway company jointly; that in doing so they used bricks in resurfacing the street; and that in laying them had made the surface of the street about two inches higher than the top of the rails, thereby leaving a trough or rut along both rails, the south trough being about two and one-half feet south of the center of the street. The plaintiff alleged also that for a long time prior to and on April 20, 1947, the bricks along the rails had become loosened or displaced, causing holes of a depth greater than the depth of the troughs. The plaintiff charged that the construction of the rails and surface of the street in this way was illegal.

The plaintiff alleged also that at about 10:45 p. m. on April 20, 1947, as already mentioned, he was proceeding along Wyoming avenue; that it was raining heavily and the surface of the street was covered with water; that the ruts and holes were filled with water and were not discernible by him; that as he approached he was on the extreme right until he came upon a parked automobile in his path; and that he turned into the last lane of travel just south of the center of the street and continued around a curve in the street when he observed defendant’s streetcar approaching toward him, the left wheels of which were on the rail of which his automobile was astride.

The plaintiff alleged also that upon seeing the streetcar he attempted to swerve his automobile to the right to avoid a collision, but that the left wheels of his automobile caught in the trough or rut whereby it was thrown into a sldd and swung broadside against the front of the streetcar.

The charges of negligence against The Cincinnati Street Railway Company were that it failed to keep Wyoming avenue open, in repair, and free from nuisance, in that it resurfaced the street in such a way as to raise the glazed-brick surface above the car rails, thereby placing the rails in a deep narrow trough, when it knew, or should have known that the wheels of an automobile would drop into the trough making it difficult for the operator to extricate the wheels without skidding when the street was wet; in failing to repair the holes adjoining the rails; in installing the rails without lawful authority; in maintaining them in the center of the street without posting warnings to indicate the condition of the street; and, finally, in creating an absolute nuisance by thus placing the rails in a public street.

Both defendants filed motions to strike and to make definite, which were sustained, resulting in the filing of an amended petition and a first amended petition. Upon the filing of a second amended petition, the defendants demurred. The demurrers were overruled, whereupon they filed separate answers. Upon dismissal of the city of Lock! and, a third amended petition was filed, to which the defendant, The Cincinnati Street Railway Company, filed an answer, and it was upon these pleadings that the ease went to trial. The charges of negligence remained substantially the same in all of plaintiff’s pleadings. The principal difference between the petition and the third amended petition is that the third amended petition sets forth the terms of the agreement between the city of Lockland and The Cincinnati Street Railway Company, whereby the latter became bound to keep the street within the rails and for a distance of 18 inches outside the rails in good repair, and allegations showing that the rails were allowed to sink by reason of the rotting of the wooden ties upon which they rested.

The allegations that the track was in the exact center of Wyoming avenue, and that the south rail was ‘ ‘ about ’ ’ two and one-half feet south of the center of the street were repeated in the plaintiff’s petition and amended petitions.

In broad outline, there was very little dispute developed at the trial and the plaintiff was clearly entitled to have the issues submitted to the jury unless his own testimony showed that he was negligent as a matter of law in operating his automobile on the left side of the street and that such negligence caused or contributed directly to cause the collision. The defendant asserts that the plaintiff repeatedly by pleadings, by deposition taken before the trial, and by his testimony at the trial asserted or admitted that he was operating his automobile before and at the time of the collision to the left of the center of Wyoming avenue, in violation of Section 6307-25, General Code. This contention requires an analysis of the pleadings, the deposition, and the plaintiff’s testimony to determine their true construction and legal effect.

(1) Let us consider the pleadings. It is true that the plaintiff repeatedly alleged that the tracks were in the exact center of Wyoming avenue at the point of collision. Webster defines track, in this connection, as parallel lines of rails with the fastenings, ties, etc., for a railway. It was developed at the trial and is conceded in defendant’s reply brief that the center of the street at the point of collision is between the rails but only eight or nine inches north of the south rail and not equidistant from the. rails constituting the track. It is argued from this premise that the tracks are not in the exact center of Wyoming avenue.

Applying the statutory rule of liberal construction of pleadings, we are unable to adopt the defendant’s interpretation of the allegations of these pleadings. The tracks are in the center of the street. It is true that the width on one side of the center line is less than on the other, but the track is in the center. It would be a harsh superrefinement to hold a pleader to the meaning of an allegation of a nonessential fact, determinable only by a mathematical calculation based on a surveyor’s data. ' The essential averment is as to the location of the plaintiff’s automobile with reference to the center of the street, and as to that the plaintiff repeatedly alleged without any variation that his automobile was south of the center of the street.

In 31 Corpus Juris Secundum, 1072, 1073, Section 301, it is stated:

“One who desires to avail himself of admissions in a pleading must accept them as an entirety; he cannot select such portion as may suit him and reject the remainder, where it qualifies and explains the admission offered.”

See, also, Beck v. General Ins. Co. of America, 141 Ore., 446, 18 P. (2d), 579; and Cummings, Admx., v. Atlantic Coast Line Rd. Co., 217 N. C., 127, 6 S. E. (2d), 837. We think that rule is applicable here.

By Section 11345, General Code, we are required to give pleadings a liberal construction with a view to substantial justice. See, also, 31 Ohio Jurisprudence, 583, Section 49. It is our opinion that to allow the meaning thus determined of an allegation of a nonessential fact to control a clear allegation of the essential fact would not be in accord with either the letter or spirit of Section 11345, General Code. The most that can be said is that the e.vidence disclosed a latent ambiguity between an essential and a nonessential allegation.

So, considering the allegations solely as parts of pleadings and applying the rules applicable to the constructions of pleadings, we conclude that the plaintiff has not alleged or admitted in his pleadings that he was on the left or wrong side of Wyoming avenue at the time of the collision, or any other fact from which the legal conclusion could be drawn that he was negligent and that such negligence contributed directly to the collision. It is clear he had no such intention.

(2) But, it is urged that the allegations of the plaintiff’s pleadings were given a greater legal effect by their introduction in evidence. The record- shows that defendant’s counsel cross-examined the plaintiff at great length on the allegations of his pleadings, after which the plaintiff’s pleadings were introduced in evidence. In view of our construction of those pleadings, we are of the opinion that their allegations can be given no probative value favorable to the defendant. The testimony given by the plaintiff on cross-examination must be weighed to determine its intrinsic value, and the allegations of his pleadings could be considered incorporated into and a part of his testimony only by his adoption of their allegations without explanation or interpretation on either direct or cross-examination. We find no such incorporation or adoption in this record. Furthermore, as already noted, we find no allegation in the pleadings of any fact that would defeat recovery.

(3) Sometime before the trial the defendant took the plaintiff’s deposition. At the trial, this deposition was used by the defendant on cross-examination of the plaintiff, and finally, by agreement of the parties, it was introduced in toto as a part of the cross-examination. We do not understand the law to be that thereby the plaintiff must be considered as having testified on cross-examination at the trial to all that was contained in the deposition. Our understanding is that the legal effect was the same as proof of any other statement contrary to what the witness had testified to. The only difference as we see it is that this prior inconsistent statement was under oath and would, therefore, weigh more heavily against the plaintiff’s credibility as a witness.

However, we find no direct irreconcilable statement in this deposition. The important — the vital fact was the location of the plaintiff’s automobile with reference to the center of the street immediately before and at the time of the collision. The plaintiff at all times testified that it was to the right of the center. Whether his left wheels were to the right or left of the south rail was unimportant, except in disclosing the circumstances of the collision and in testing the reliability of the plaintiff’s testimony that he was on the right side of the street.

The plaintiff, operating his automobile, and the defendant, operating its streetcar, had equal right to the use of Wyoming avenue. Each was bound to exercise reasonable care under the circumstances. Because the automobile could be turned laterally and the streetcar could not, this greater mobility imposed upon the operator of the automobile the duty to turn from the track in time to avoid collision, but, on the other hand, the defendant was bound to maintain the street within its rails and for 18 inches without its rails in a reasonably safe condition, and if the plaintiff had started to turn from the tracks in time to have succeeded in avoiding colliding with the streetcar, but was prevented from succeeding in doing so by the negligent manner in which the defendant discharged its duty in maintaining the street, then plaintiff would be entitled to recover, provided, of course, that he was in all respects in the exercise of due care.

(4) We should also take notice of defendant’s contention, based upon a variance in the plaintiff’s testimony in the distance at which he first saw the streetcar. It is our opinion that this variance affects the weight to be given to plaintiff’s testimony only. He had a right to be on the street, on, at, or near the tracks. His right was affected not by where he was when he saw the streetcar for the first time, but on seeing it, whether he exercised reasonable care in turning aside in time to avoid the collision, had defendant performed its duty to keep the street in reasonably safe condition.

Finally, it is urged strongly that the ease of Winhler v. City of Columbus, 149 Ohio St., 39, 77 N. E. (2d), 461, controls this case and requires a reversal and final judgment for defendant. In that case, the plaintiff being thoroughly familiar with a sidewalk and knowing of its defective condition and observing its defective condition at the time nevertheless stepped upon it and was injured. She admitted all this upon the witness stand. The court held that her own admission showed she was guilty of negligence directly contributing to her injuries. As is said in the opinion (page 43), the plaintiff’s admission showed “clearly that her negligence contributed directly to her injury (one of the precise, ultimate facts in issue ) ’ ’ thereby presenting a question of law to be determined by the court. It is manifest from what we have already said that it is our opinion that this record shows no admission of the precise ultimate fact from which the conclusion must be drawn that the plaintiff was negligent.

For these reasons, we conclude that the trial court did not err in overruling the defendant’s motions for an instructed verdict and for judgment in its favor.

The judgment is affirmed.

Judgment affirmed.

Ross and Hildebrant, JJ., concur.


author: Fess, J.

text:
    The State of Ohio, Appellee, v. Williams, Appellant.
    (Nos. 480, 481 and 482
    Decided October 20, 1952.)

      Mr. Thomas F. Dewey, prosecuting attorney, Mr. C. William O’Neill, attorney general, and Mr. Ralph N. Mahaffey, for appellee.

      Mr. Adrian B. Fink, Jr., for appellant.
   Fess, J.

These are appeals on questions of law from judgments of the Common Pleas Court, affirming the sentences and judgments of the justice of the peace of Washington township, Sandusky county, Ohio, after an appeal therefrom to the Common Pleas Court. The three cases were tried in each court upon an agreed statement of facts.

On August 1, 1951, at ab.out 8 p. m., the defendant was driving a truck bearing Michigan license plates, enroute from Venice, Ohio, to Detroit, Michigan. While stopped for a red traffic light in Fremont, Ohio, a man in a uniform wearing an Ohio game protector’s badge accosted the defendant and asked him if he was carrying fish. The defendant having answered in the affirmative, upon request of the officer, the defendant drove the truck to the state highway garage where the defendant assisted the officer in inspecting the contents of the truck. The inspection revealed that the truck contained sixty-three 100-pound boxes of fish, of which 25 boxes were found to contain catfish in which more than 10 per cent by weight were found to be less than 15 inches in length.

The defendant truck driver had no knowledge of the contents of any of the boxes other than from the bill of lading, which contained the words, “2500 cat.” The truck had been loaded by employees of the Cold Creek Fish Company of Venice, Ohio, and no inspection of the shipment had been made by the driver prior to or at the time of its loading In argument it was stated that the fish in the boxes were covered with ice.

After an inspection by five game protectors and the defendant, which lasted from 8 p. m. until 2 a. m., the defendant was arrested on 25 charges of violating Section 1429, General Code, presumably one charge for each of the 25 boxes, and, thereafter, was released from jail upon giving bond of $2,500. He was charged in the affidavits with possession of undersized fish. Upon stipulation of the facts, the cases were tried before the justice and the Common Pleas Court on three of the charges. The defendant was found guilty and fined $25 upon each of the three charges and was assessed the costs. The remaining 22 charges are before the justice of peace, pending these appeals.

The principal error assigned in these appeals is that, in the absence of proof that the defendant had knowledge of the fact that he had possession of undersized fish, there could be no conviction.

Section 1429, General Code, provides, in part:

“No person shall take, catch or have in possession * * * a catfish less than fifteen inches in length * * *. All such fish caught or taken of a less length than herein prescribed shall be immediately released alive with as little injury as possible while the nets are being lifted or hauled.

i t # # *

“No person shall buy, sell, barter, give away, deliver, ship or have in possession an undersized sturgeon or any package, container or quantity with more than ten percent by weight of undersized fish or any other species either round or filleted mentioned in this section. ’ ’

. Section 1390, General Code, defines “possession” as “both actual and constructive possession and any control of things referred to.”

Under the blanket penalty clause in Section 1454, General Code, a fine is imposed of not less than $15 or more than $200, in addition to costs.

It is a fundamental axiom that ignorance of the law is no defense for a violation of law. However, ignorance or mistake of fact may be proved to negative intent. But where knowledge is irrelevant, ignorance or mistake of fact is no defense, and under certain statutes defining an offense irrespective of knowledge or intent, lack of knowledge is no defense. 1 Wharton’s Criminal Law, 142 to 159, Sections 102 to 112.

In 1837, the abolishionist, James G. Birney, was indicted for harboring a fugitive slave. The statute did not, in terms, make scienter or intent essential to the offense. The Supreme Court held, nevertheless, that it was essential to prove that defendant knew that the mulatto girl was a fugitive slave. Birney v. State, 8 Ohio, 230. In the opinion, Judge Wood referred to Anderson v. State, 7 Ohio, pt. 2, 250, which held that criminality could not exist without knowledge that the instrument upon which the defendant was indicted was a forgery. In the opinion it is stated further:

“We know of no case where positive action is held criminal, unless the intention accompanies the act, either expressly or necessarily inferred from the act itself. ‘Ignorantia facti doth excuse, for such an ignorance, many times, makes the act itself morally involuntary.’ 1 Hales P. 0., 42.”

In 1854, in Miller & Gibson v. State, 3 Ohio St., 475, the Supreme Court held that to convict for a violation of an act prohibiting the sale of liquor to a minor, it was necessary to aver in the information and prove on the trial that the seller knew the buyer to be a minor. The act under which the prosecution was brought, 52 Ohio Laws, 153, made no reference to knowledge or intent.

In Crabtree v. State (1876), 30 Ohio St., 382, the Supreme Court quoted from Bishop on Statutory Crimes, page 1021, as follows:

“ ‘And when this good faith and this due care do exist, and there is no fault or carelessness of any kind, and what is done is such as would be proper and just were the fact what it is thus honestly believed to be, there is no principle known to our criminal jurisprudence by which this morally innocent person can be condemned because of the existence of a fact which he did not know and could not ascertain. On the other hand, to condemn him would be to violate those principles which constitute the very foundation of our criminal jurisprudence. Honest error of a fact is as universal an excuse for what would be otherwi.se a criminal act as insanity.’ ”

In commenting on the quotation from Bishop, the court said:

“This may be a strong, but is a just statement of the excusing principle in our criminal jurisprudence. It shows the necessity of allowing a person accused of knowingly violating the law to prove on the trial the pains he took to ascertain the truth about the fact or transaction that would, if knowingly done, criminate him, as well as the further necessity of allowing him to give in evidence the nature and extent of tjie information thus obtained, and upon which he claimed to have acted.”

See, also, Farrell v. State, 32 Ohio St., 456, 30 Am. Rep., 614.

In Kilbourne v. State (1911), 84 Ohio St., 247, 95 N. E., 824, 35 L. R. A. (N. S.), 766, upon authority of the Birney, Miller-Gibson and Farrell cases, the court held to be violative of the Constitution an act providing that whoever buys, receives, or unlawfully has in his possession certain articles removed from railway cars, regardless of knowledge, shall, upon conviction, be imprisoned. In its opinion, the court quoted from the Birney case as follows:

“ ‘It is true that the statute upon which the indictment is founded omits scienter, and the indictment avers all the facts enumerated in the statute. But this is not sufficient; it can not be assumed that an act, which, independent of positive enactment, involves no moral wrong, nay an act that in many cases would be highly praiseworthy, should be made grievously criminal when performed in total unconsciousness of the facts that infect it with crime.’ ”

In State v. Cameron, 91 Ohio St., 50, 109 N. E., 584, the Supreme Court again said that guilty knowledge is an essential ingredient of crime, citing the Birney and Kilbourne cases and distinguishing the adulterated food cases.

In Holt v. State, 107 Ohio St., 307, 140 N. E., 349, the second paragraph of the syllabus reads as follows:

“In an indictment under Section 12402-1, General Code, it is not necessary to aver that the defendant knew the deceased was an officer, as named in the statute, since the words ‘purposely’ and ‘wilfully’ carry the meaning of designedly and knowingly. It is, however, necessary to prove such knowledge upon trial.'” (Italics supplied.)

So far as we have been able to ascertain, none of the above cases has been overruled or modified.

On the other hand, there is authority in Ohio for the proposition that where a statute makes an act an offense, regardless of guilty knowledge, ignorance of fact, no matter how sincere, is not a defense to a charge predicated upon such statute.

In State v. Kelly (1896), 54 Ohio St., 166, 43 N. E., 163, the court held that in a prosecution for the sale of adulterated molasses, it was not a defense that the accused was ignorant of the adulteration of the article sold. In its opinion, the court concluded:

“In the enactment of this statute it was the evident purpose of the General Assembly to protect the public against the harmful consequences of the sales of adulterated food and drugs, and, to the end that its purpose might not be defeated, to require the seller at his peril to know that the article which he offers for sale is not adulterated, or to demand of those from whom he purchases indemnity against the penalties that may be imposed upon him because of their concealment of the adulteration of the articles.”

The decision in the Kelly case was followed in Meyer v. State, 54 Ohio St., 242, 43 N. E., 164; Stranahan Bros. Catering Co. v. Coit, 55 Ohio St., 398, 418, 45 N. E., 634, 4 L. R. A. (N. S.), 506; State v. Rippeth, 71 Ohio St., 85, 72 N. E., 298; Portage Markets Co. v. George, 111 Ohio St., 775, 146 N. E., 283; and Taugher v. Ling, 127 Ohio St., 142, 187 N. E., 19. In Kendall v. State, 113 Ohio St., 111, 148 N. E., 367, the principle of the Kelly case was followed in a case involving the employment of a child under 14 years of age in a place of amusement. It has been held also in the following cases that lack of knowledge is no defense: White v. State, 44 Ohio App., 331, 185 N. E., 64 (abandoning pregnant wife); State v. Kominis, 73 Ohio App., 204, 55 N. E. (2d), 344 (sale of liquor to child under 18 inducing delinquency. In that case, the court overlooked Miller & Gibson v. State, supra); and State v. Weisberg, 74 Ohio App., 91, 55 N. E. (2d), 870 (selling by false or short weight).

In the interest of reconciling the conflict between the Birney and Kilbourne cases, and the Kelly case and subsequent decisions, it is concluded that in the case of a statute defining an offense regardless of scienter where the means of knowledge are available to the accused or the act is such as to impose a duty (in the interest of the public weal) upon the offender at his peril to ascertain the fact of violation, knowledge is not an essential element to support conviction. In case an offender has the means of knowledge, scienter is inferred by reason thereof. In the cases where the offender acts at his peril, the duty is imposed upon him to ascertain the facts from which, likewise, knowledge may be inferred. For example, in the case of the sale of adulterated food or beverages, the means of knowledge are within the cognizance of the offender and not the state. Altschul v. State, 8 C. C., 214, 216, 4 C. D., 402. Purpose and knowledge, except where they are indicated by the character of the forbidden act, are, in most cases, insusceptible of proof. State v. Kelly, supra, at page 178. There are also certain types of heinous crime where intent is presumed from proof of the commission of the act. From personal experience, the writer knows that a judge enroute to his office and cogitating over an opinion he is about to write, who runs a red traffic light, may be wholly oblivious of the warning signal but, nevertheless, in the interest of protecting the public, he is not absolved from criminal liability on account of his lack of knowledge. However, the Supreme Court has said:

“We know of no case where positive action is held criminal, unless the intention accompanies the act either expressly or necessarily inferred from the act itself.” Kilbourne v. State, supra, at page 254.

On the other hand, we conclude further that upon a charge of violation of a statute not in terms including scienter, where the means of knowledge are not at hand or the circumstances are such that the accused is not bound at his peril to know the fact and obey the law, knowledge of the fact is essential to support a conviction.

The fish and game act was enacted by the General Assembly under the police power for the laudable purpose of protecting and preserving wild life for the benefit of the people of Ohio. In enacting Section 1429, General Code, the Legislature prescribed the legal weight and size of fish and prohibited the dealing and shipping of undersized fish. It provided also that no person shall have possession, actual or constructive, of any undersized fish. A perusal of the section and other provisions of the act leads to the assumption that when the General Assembly employed the term, “possession,” its thoughts were directed to undersized fish in a fisherman’s boat, or fish on the dock, or in the fish house, where the undersize would be obvious and apparent upon casual inspection. It can not be assumed that the Legislature intended to denounce as criminal the possession of small fish by a person such as the defendant herein, who did not have knowledge of the undersize or the means of acquiring such knowledge.

Every reasonable presumption should be indulged in favor of the constitutionality of a statute. It is our boimden duty to resolve every reasonable doubt in favor of the validity of this act and to construe it liberally in order to save it. In a case such as these, where the validity of the act is assailed and where there may be two possible interpretations, the court must adopt the one which will bring the act into harmony with the Constitution. It is well settled also that where, by the terms of a statute, several classes of persons are apparently included within its operation, and, as to some of them, its enforcement would render the act unconstitutional, and as to others not, the act will not for that reason be declared unconstitutional, but it will be presumed that the legislative intent was to apply the statute to the latter class only. Hirn v. State, 1 Ohio St., 15; State, ex rel., v. Frame, Auditor, 39 Ohio St., 399; Anderson v. Brewster, 44 Ohio St., 576, 9 N. E., 683; State v. Rouch, 47 Ohio St., 478, 484, 25 N. E., 59.

Furthermore, the construction of a statute depends upon its operation and effect, and not upon the form which it may be made to assume. Butzman v. Whitbeck, 42 Ohio St., 223; Hill v. Micham, 116 Ohio St., 549, 157 N. E., 13. It is the duty of the courts in interpreting statutes, unless restrained by the letter, to adopt that view which will avoid absurd consequences, injustice, or great inconvenience, as none of these can be presumed to have been within the legislative intent. Moore v. Given, 39 Ohio St., 661; Hill v. Micham, supra.

In Margate Pier Co. v. Hannam, 3 Barnewall Balder sons Reports, 266, 270, Chief Justice Abbott quoted from Lord Coke as follows:

“ ‘Acts of Parliament are to be so construed, as no man that is innocent, or free from wrong, be by a literal construction punished or endamaged.’ ”

See, also, Church of The Holy Trinity v. United States, 143 U. S., 457, 36 L. Ed., 226, 12 S. Ct., 511.

In the instant cases, it is stipulated that the defendant made no inspection of his cargo prior to its loading and had no knowledge that the shipment contained undersized fish. It was unreasonable and impractical to require him to inspect the shipment. As we construe Section 1429, General Code, the Legislature had no intention or purpose to make an innocent person criminally liable for the possession of undersized fish. This conclusion renders it unnecessary for us to discuss or to determine the other errors assigned.

The judgments of the Common Pleas Court and the justice court are reversed, and defendant is discharged.

Judgments reversed.

Conn and Savord, JJ., concur.


author: Hildebrant, J.

text:
    Melville, Gdn., Appellant, v. The Greyhound Corp. et al., Appellees.
    (No. 7719
    Decided May 4, 1953.)

      Mr. Roy L. Struble, for appellant.

      Messrs. Long & Bloom, Messrs. Rendigs, Fry & Eiely, and Messrs. Gorman, Silversteen é Davis, for appellees.
   Hildebrant, J.

The Common Pleas Court sustained the demurrer of defendant Briol to the amended petition on the grounds of misjoinder of causes of action and parties defendant and that the facts contained in such petition failed to state a cause of action against him. Plaintiff, not desiring to plead over, appeals on questions of law.

The allegations of the petition admitted to be true upon demurrer, in substance, are that on June 3, 1950, at about 3 p. m., plaintiff’s ward was a guest-passenger in the automobile of defendant Briol, being driven by him in a southerly direction on U. S. route No. 42, between Mason and Cincinnati, Ohio, and approaching the intersection of U. S. route No. 42 with Snyder road from the east; that at the same time, a bus of the defendant company was being driven in a northerly direction over U. S. route No. 42 and approaching its intersection with Snyder road; that it was raining at the time and place, with a consequent lowering of the driver’s visibility, and the surface of the paved highway was wet and slippery, creating a dangerous and hazardous driving condition; and that at such time and place, defendant Briol attempted to make a left turn from U. S. route No. 42 into Snyder road and in so doing drove his automobile in front of and across the path of defendant’s bus in such a manner that a collision ensued, wherein plaintiff received the injuries set forth in the petition.

In a first cause of action, plaintiff charges wilful and wanton misconduct on the part of both defendants as follows:

‘ ‘ The driver of the bus of defendant, The Greyhound Corporation, was operating said large and heavily loaded bus at a high, excessive and dangerous rate of speed, to wit, 85 miles per hour, with total indifference and disregard to the attendant danger and the safety of the said Josselyn Farmer, in that at the time he well knew that it was raining; that visibility was impaired and poor; that the surface of said highway was wet and slippery; that the improved portion of said highway in the vicinity was narrow, heavily travelled and crowded; that said bus was large, heavy, and overloaded with passengers, and as a consequence, was rendered extremely difficult to control and stop.

“The defendant, Paul A. Briol, knowingly, intentionally and wilfully drove his said automobile directly into the path of said bus, with' total indifference and disregard to the attendant danger, and the safety of said Josselyn Farmer.”

In a second cause of action, plaintiff reaffirms the allegations contained in the first cause of action and charges defendant company with negligence in the operation of its bus, in violation of certain safety regulations promulgated by the Public Utilities Commission of Ohio, and in driving at a greater speed, to wit, 85 miles per hour, than was reasonable and proper, having regard to the traffic, surface, and width of the highway and the conditions then existing. It is claimed defendant Briol was “guilty of wilful and wanton misconduct in the operation of his said automobile in that he drove said automobile into the path of said motor bus, well knowing and appreciating that to do so would endanger and in all probability injure Josselyn Farmer, and with total indifference and disregard to the attendant danger, and the safety of said Josselyn Farmer.”

It is then charged that the conduct of both defendants was the direct and proximate cause of the collision and resulting injuries.

First, taking up the sufficiency of the petition to state a cause of action against defendant Briol under Sec- ■ tion 6308-6, General Code (the guest statute), the Supreme Court in Universal Concrete Pipe Co. v. Bassett, 130 Ohio St., 567, 200 N. E., 843, 119 A. L. R., 646, defines wanton misconduct in paragraph two of the syllabus as follows:

“Wanton misconduct is such conduct as manifests a disposition to perversity, and it must be under such surrounding circumstances and existing conditions that the party doing the act or failing to act must be conscious, from his knowledge of such surrounding circumstances and existing conditions, that his conduct will in all common probability result in injury. (Higbee Co. v. Jackson, 101 Ohio St., 75, third paragraph of the syllabus, and Reserve Trucking Co. v. Fairchild, 128 Ohio St., 519, second paragraph of the syllabus, modified.) ”

In Tighe, a Minor, v. Diamond, 149 Ohio St., 520, 80 N. E. (2d), 122, wilful misconduct is defined in paragraphs three and four of the syllabus:

“ ‘Wilful misconduct,’ as used in the Ohio guest statute, Section 6308-6, General Code, and in the Ohio minor automobile operators responsibility statute, Section 6296-10,' General Code, implies an intention or purpose to do wrong, an intentional deviation from clear duty or from a definite rule of conduct, and not a mere error of judgment.

“ ‘Wilful misconduct’ on the part of a motorist, within the meaning of the Ohio guest statute, Section 6308-6, General Code, and the Ohio minor automobile operators responsibility statute, Section 6296-10, General Code, is either the doing of an act with specific intent to injure his passenger or, with full knowledge of existing conditions, the intentional execution of a wrongful course of conduct which he knows should not be carried out or the intentional failure to do something which he knows should be done in connection with his operation of the automobile, under circumstances tending to disclose that the motorist knows or should know that an injury to his guest will be the probable result of such conduct.”

A subsequent definition of both terms, wanton, and, wilful, appears in Ulrich, a Minor, v. Massie, 89 Ohio App., 362, 102 N. E. (2d), 274, paragraphs one and two of the syllabus:

“ ‘Wanton misconduct,’ as referred to in the Ohio guest statute (Section 6308-6, General Code), is such conduct as manifests a disposition to perversity under such existing conditions that the party doing the act or failing to act must be conscious, from his knowledge' of such existing conditions, that his conduct in ail probability will result in injury.

“ ‘Wilful misconduct,’ as that term is used in the Ohio guest statute, connotes an intention or purpose on the part of a motorist to do wrong, coupled with either the doing of an act with the specific intent to injure a guest-occupant of the automobile, or, with full knowledge of existing conditions, an intentional wrongful course of conduct which such motorist knows should not be carried out, or the intentional failure to do something which such motorist knows should be done in connection with the operation of the automobile, under such circumstances that the motorist knows or should know that injury to the guest-occupant will probably result.”

It will be noted that the amended petition alleges that defendant Briol drove his automobile into the path of the bus, well knowing and appreciating that to do so would endanger and in all probability injure the plaintiff and with total indifference and disregard to the danger and safety of plaintiff.

We are of the opinion that such allegations state a cause of action under Section 6308-6, General Code, and that if plaintiff can produce substantial evidence in proof thereof and that such conduct was a proximate cause of the injuries complained of, a jury question will be presented.

Plaintiff states the basic question to be one of joinder, which, in substance, is: May defendants, one of whom is charged with ordinary negligence, the other with wilful and wanton misconduct be joined?

The Ohio statute, Section 11255, General Code, provides :

“Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of a question involved therein. ’ ’

Plaintiff relies almost exclusively on Meyer v. Cincinnati Street Ry. Co., 157 Ohio St., 38, 104 N. E. (2d), 173, wherein it is stated in paragraphs one and two of the syllabus:

“Where damage or injury is proximately caused by independent but concurrent wrongful acts of two or more persons, joint liability results, and such wrongdoers may be joined as defendants even though they may not have acted in concert in the execution of a common purpose and the want of care of such defendants may not have been of the same character, and joint or several judgments may be rendered against such wrongdoers.

“The predicate of joint liability is not necessarily limited to the commission of a joint act or joint tort. (Paragraph three of the syllabus of Stark County Agricultural Society v. Brenner, an Infant, 122 Ohio St., 560, overruled.)”

In the opinion, the court traces the departure from the earlier rule that joint liability could arise only from joint tort to the concept that independent concurrent acts may produce a single injury giving rise to joint liability, and at page 41, states:

“The concept that ‘joint liability’ can arise only from the commission of a ‘joint tort’ is fundamentally unsound. Joint liability can arise from the concurrent commission of independent wrongful acts, each having causal connection with the injury or damage complained of.”

Again, at page 44, ibid., it is stated:

“The right of joinder of defendants is not governed by the respective degrees of care which the law requires to be exercised by the wrongdoers toward the injured person. The extent or character of the duty owed by each to the injured person is not controlling. The duty owed the plaintiff by each of the defendants is a matter to be covered by the trial judge in the charge to the jury. If two or more persons have concurrently committed independent wrongful • acts each having proximate causal connection with the injury or damage complained of, each of such persons has such interest in the controversy adverse to the injured person as to warrant joinder of such persons as defendants in an action brought by the injured or damaged person.”

Defendant contends that the law of the Meyer case, supra, is, by its facts, confined to the independent concurrent acts of negligence only; that concurrent negligence is the basis for joinder, not concurrence of wrongful acts; and that joinder is not proper here, because defendants are charged with entirely different violations of duty towards the plaintiff. It is urged further that confusion would result at a trial from the fact that one charged with wanton and wilful misconduct is denied the defense of contributory negligence, available to the defendant whose liability is governed by the law of negligence alone, and that the charge of wilful and wanton misconduct against Briol rules out the possibility of the alleged negligence of the defendant company being other than a remote cause, thereby barring recovery against it.

As to confining the authority of the Meyer case, supra, to independent concurrent acts of negligence only, this court is aware of the rule that the syllabise of a Supreme Court decision states the law, and that it must be interpreted with reference to the facts of the case and the questions presented and considered by the court and cannot be construed any broader than the facts warrant. However, it is said in 11 Ohio Jurisprudence, 798, Section 145:

“It is not possible for a court to comprehend in every syllabus all the many phases of .facts that may arise in other litigations touching similar transactions. * * * When it is sought to apply the rule stated in one syllabus in a subsequent case, the primary inquiry should be whether or not the facts are substantially similar, and, if not, whether the reason that would impel the establishment of the rule is the same in the one instance as in the other. ’ ’

Again, commenting on the fact that obiter may creep into a syllabus, it is stated at page 798, ibid.: “It has been stated, however, that where obiter has been carried into the syllabus by the Supreme Court, an intention to declare it a rule of law of the state is shown.” Ward v. Swartz, 25 Ohio App., 175, 158 N. E., 318, is cited in support of the text, opinion by Williams, J., later a member of the Supreme Court.

In Universal Concrete Pipe Co. v. Bassett, supra, wherein the difference and distinction between wanton and wilful misconduct and negligence is pointed out, the court said as to joinder, at page 579:

“While wanton misconduct and ordinary negligence are, as a matter of law, as far apart as the poles of the axis, under our liberal code pleading (Section 11306, General Code) they are joinable in one action, as they grow out of the same transaction; but they are just as repugnant and inconsistent as. it is possible for two causes of action to be. ’ ’

In answer to that contention, we are of the opinion that the facts of the case at bar are substantially similar, in that a combination of conduct ending in one re-suit and occurring at the same time and place is common to both cases, and that the rationale of the Meyer case would appear to apply equally well to the case at bar.

As to the contention that joinder is improper because defendants are charged with entirely different violations of duty toward plaintiff, the Meyer case holds that that is not the test, and we call attention to the similarity of duty, in that prior to passage of the guest statute, liability in damages at common law was, as to both defendants, grounded equally on ordinary negligence and wanton and wilful misconduct. The guest statute created no new liability, but only restricted the liability of the host and deprived him of the defense of contributory negligence. We see no reason why a charge defining contributory negligence and stating it to be available as a defense to one defendant, but not to the other, should be confusing.

Whether wilful and wanton misconduct on the part of defendant Briol would render any negligence of defendant company only a remote cause would seem to depend upon whether under the circumstances here present such conduct on the part of defendant Briol could have been'reasonably anticipated or reasonably might have been foreseen by the driver of defendant’s bus.

It is said in 38 American Jurisprudence, 726, Section 70:

“The rule that the causal connection between a person’s negligence and an injury is broken by the intervention of a new, independent, and efficient intervening cause so that the negligence is not actionable, is subject to the qualification that if an intervening cause was foreseen or reasonably might have been foreseen by the wrongdoer, his negligence may be considered the proximate cause of an injury, and he may be held liable, notwithstanding the intervening cause. The intervention of independent intervening causes will not break causal connection if the intervention of such forces was itself probable or foreseeable. Any number of causes and effects may intervene between the first wrongful cause and the final injurious consequence ; and if they are such as might, with reasonable diligence, have been foreseen, the last result, as well as the first, and every intermediate result, is to be considered in law as the proximate result of the first wrongful cause. The theory is that negligence continues and operates contemporaneously with an intervening act which might reasonably have been anticipated, so that the negligence can be regarded as a concurrent cause of the injury inflicted, which, as hereinbefore stated, is a cause which the law regards as responsible. While the act of a responsible person is not an intervening cause which a tort-feasor guilty of negligence is absolutely bound to foresee, a defendant is not relieved from responsibility for his negligence by the intervention of the acts of third persons, including the act of a child, if those acts were such as would have been anticipated by an ordinarily prudent person standing in the position of the defendant. Much depends upon the character of the intervening act in determining whether or not it reasonably might have been anticipated. It is material, therefore, whether the intervening act was a criminal or merely a negligent act, or one which involved neither negligence, illegality, nor wrong of any kind.”

Again, on page 728, Section 71, ibid., it is stated:

“The general rule is that when, between negligence and the occurrence of an injury, there intervenes a wilful, malicious, and criminal act of a third person which causes the injury but was not intended by the negligent person and could not have been foreseen by him, the causal chain between the negligence and the accident is broken.”

However, it is further stated at page 729, ibid.:

“The rule that the negligence of a defendant does not render him liable for the consequences of an intervening criminal act which was not foreseen by him does not exempt him from liability where his negligence continued to, and concurred with, the criminal act in causing an injury. ’ ’

This principle has the sanction of many decided cases as indicated in 34 Fifth Decennial Digest (American Digest System), 1374, “Negligence,” 62 (3).

A succinct statement of the principle is found in the Iowa case of Blessing v. Welding, 226 Iowa, 1178, 286 N. W., 436, wherein it is stated:

“If the realizable likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes a person negligent, such act whether innocent, negligent, intentionally tortious or criminal does not prevent the first person from being liable for injury caused thereby. ’ ’

A case quite similar on its facts is that of Nichols v. City of Phoenix, 68 Ariz., 124, 202 P. (2), 201. In that case a speeding bus traveling over a main thoroughfare was struck by an automobile at the intersection of a lateral road, the driver ignoring a stop sign applicable to him and driving into the path of the bus. The conduct of the driver was a misdemeanor under Arizona law. The court, at page 139, states:

“We do hold that, under the facts peculiar to this case, sufficient evidence was introduced to call for a submission to the jury, as factual matters upon which the minds of reasonable men might differ, the questions of negligence and proximate cause.”

Under the circumstances here of two vehicles proceeding in opposite directions upon a main highway and approaching each other so as to meet at a point where such highway is intersected by another. road, a realizable likelihood that a turn by either vehicle might be attempted is presented so that that likelihood becomes one of the hazards reasonably foreseeable on the part of both drivers. Included in the likelihood of a turn is the reasonable possibility that it might be attempted in any conceivable manner. We, therefore, are of the opinion that the question of proximate cause under the circumstances here presented is one for the jury.

Finally, it is observed that the question here presented is one of remedy -rather than substantive right, and the court can find no logic in denying joinder, or any prejudice in permitting complete adjudication of the rights and liability of all parties growing out of the incident occurring at the same time and place. This conclusion is consistent with a liberal interpretation of the Ohio statute and the modern trend in judicial concept.

The judgment is, therefore, reversed, and the cause is remanded for further proceedings according to law.

Judgment reversed.

Matthews, P. J., Ross and Hildebrant, JJ., concur.


author: Thompson, J.

text:
    Moss, Appellant, v. The Standard Drug Co. et al.; The Toni Co., Appellees.

      (No. 22443
    Decided May 12, 1952.)

      Messrs. Harrison, Spangenburg & Hull, for appellant.

      Mr. John B. Kistner, for appellees.
   Thompson, J.

This is an appeal to this court on questions of law by plaintiff, appellant herein, from a judgment of the Common Pleas Court of Cuyahoga County granting a motion to quash service of summons as to defendant The Toni Company, entering judgment in favor of such defendant, and discharging certain attachments secured by the plaintiff.

Plaintiff’s petition was originally addressed only to defendant The Standard Drug Company and alleged facts constituting a cause of action for personal injuries to plaintiff by virtue of her purchase from The Standard Drug Company of an article of merchandise known as a “Toni Home Permanent,” a liquid intended for use in the self-administration of a cold permanent wave, sold by defendant The Standard Drug Company and produced under formula by The Toni Company. Plaintiff stated that after application of the lotion she broke out in a severe rash which spread from her hair line to her entire body and that she spent many weeks in a hospital and hundreds of dollars before the rash disappeared.

Plaintiff filed her petition against defendant The Standard Drug Company on July 25, 1949, and obtained service on that defendant. Subsequently, with the consent of the Common Pleas Court, plaintiff filed an amended petition making The Toni Company a new party defendant and declaring that The Toni Company is a foreign corporation organized and existing under the laws of a state other than the state of Ohio and is engaged in the business of manufacturing and selling hair preparations and products throughout the several states, particularly in the city of Painesville, Ohio, although it was neither licensed nor authorized to carry on its business in the state of Ohio at any of the times mentioned in the amended petition. Plaintiff alleged further that the injuries sustained by her were the result of the negligence of both defendants, The Standard Drug Company and The Toni Company.

At the time of filing the amended petition, on September 11, 1951, plaintiff filed also an affidavit of attachment and tied up funds in Cleveland owing to defendant The Toni Company in the hands of The Bailey Company and The May Company, garnishees. Plaintiff, in addition to filing an affidavit of attachment, obtained service by publication on defendant The Toni Company under the provisions of subdivision 7 of Section 11292, G-eneral Code. The Toni Company, thereupon, by special appearance, filed a motion for an order quashing service of summons upon it.

Briefs were filed by plaintiff and by The Toni Company and, upon oral hearing of the motion, the trial court made certain findings of fact and conclusions of law. In its findings of fact the trial court found that from the date of the injuries sustained by plaintiff in October 1948 and up until the court hearing of the motion to quash, the defendant The Toni Company was in fact a foreign corporation, not licensed to do business in Ohio and having'no agent for service of process in this state. The court took judicial notice of the fact that the lotion purchased by plaintiff had been widely sold in drug and department stores in Ohio, both before and since the cause of action arose. The court found also that the defendant The Toni Company was in court by virtue of the answers of certain garnishees, at least to the extent of funds attached in the hands of the garnishees belonging to The Toni Company.

The trial court, as a conclusion of law, held that the motion to quash service of summons should be granted “in view of the fact that the action against The Toni Company was not started within the statutory period of two years, General Code Section 11224-1 and that the facts do not bring the case within the so-called ‘saving clause’ General Code Section 11228.” The trial court, therefore, granted the motion to quash service of summons so far as defendant The Toni Company was concerned, and the amended petition. was dismissed as to such defendant, judgment being rendered in favor of defendant The Toni Company and the attachments being discharged.

Four assignments of error are asserted in this court by plaintiff, it being urged that the trial court committed error, first, in granting the motion to quash summons; second, in entering judgment for defendant The Toni Company; third, in holding as a conclusion of law that plaintiff did not commence her action within the statutory period of two years, provided in Section 11224-1, General Code; and, fourth, in holding that the “saving clause” (Section 11228, General Code) did not apply to corporations so as to extend the period of time for service on defendant The Toni Company while absent from the state.

Examination of the assignments of error calls for consideration of two sections of the General Code. Each of these sections appears in Part Third, Title IV, Division I, Chapter 2, relating to procedure in Common Pleas Court. Chapter 2, entitled, “Limitation of Actions,” is required to be examined in its entirety; it being comprised of Sections 11218 through 11236, inclusive, General Code.

The first section of the chapter ties together the other sections of the chapter since under the separate heading, “General Limitation,” Section 11218, General Code, provides as follows:

“ [Lapse of time a bar]. A civil action, unless a different limitation is prescribed by statute, can be commenced only within the period prescribed in this chapter. When interposed by proper plea by a party to an action mentioned in this chapter, lapse of time shall be a bar thereto as herein provided.”

The two sections we are specifically called upon to interpret provide as follows:

“Section 11224-1 [Two years; bodily injury or injuring personal property]. An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose.”

“Section 11228 [Saving clause]. When a cause of action accrues against a person, if he is out of the state, or has absconded, or conceals himself, the period of limitation for the commencement of the action as provided in this chapter, shall not begin to run until he comes into the state or while he is feo absconded or concealed. After the cause of action accrues if he departs from the state, or absconds or conceals himself, the time of his absence or concealment shall not be computed as any part of a period within which the action must be brought.”

Examining and applying the two sections last quoted in the instant case, we are confronted at the outset with the claim on the part of defendant The Toni Company that Section 11228, General Code, referred to as the “saving clause,” is intended only for the benefit of natural persons and that the word, “person, ’ ’ in that section negatives the applicability of the “saving clause” to corporations. While recognizing that the word, ‘ ‘ person, ’ ’ is frequently used in contradistinction to ‘ ‘ corporations ’ ’ to mean natural persons or individuals, we must recognize also that the words, “person,” and, “corporation,” are frequently used interchangeably in statutes and in the United States Constitution, notably in the due process clauses of the Fifth and Fourteenth Amendments. See 10 Ohio Jurisprudence, 50, “Corporations,” Section 7. The meaning of words depends upon their context. That the word, “person,” in Section 11228, General Code, includes “corporations” seems to us scarcely open to question, since Section 11228 is found in Title IV of Part Third, Remedial, of the Ohio General Code. The first section of Part Third (Section 10213), covering interpretation and words used in Part Third, declares:

“In the interpretation of part third, unless the context shows that another sense was intended, the word ‘person’ includes a private corporation * * *”

We call attention also to the immediately following Section 10214, General Code, stating that in the construction of Part Third, and in all proceedings under Part Third, the provisions thereof shall be liberally construed in order to promote its object and to assist the parties in obtaining justice. That section also declares that the rule of the common law, that statutes in derogation thereof must be strictly construed, has no application to Part Third.

We find nothing in Chapter 2, “Limitation of Actions,” to indicate that any other sense was intended than that the word, “person,” as used in Section 11228, General Code, includes “corporations.” In fact, examination of other sections of the same chapter employing the word, “person,” appears to disclose the intention of the General Assembly to bestow rights and to confer responsibilities on “persons” in such circumstances as to include “corporations” in this designation. It is not without significance that where the General Assembly clearly intended to differentiate between corporate defendants and individual defendants it was able to do so, as may be observed in Section 11232, General Code. That the word, “person,” includes “corporation” in Section 11228, General Code, seems to us apparent, not only from analysis of the words as defined and used in Part Third, but, also, on the basis that any other interpretation of the ‘ ‘ saving clause” would draw a sharp line of discrimination in treatment between corporate defendants and individual defendants, permitting corporate defendants in all cases to be freed of liability at the end of two years, while permitting causes of action against individual defendants outside the state to be preserved. We do not believe any such advantage to corporations as a class of litigants was intended by the General Assembly. That corporate defendants as well as individual defendants may abscond or conceal themselves so as to avoid service of process is obvious. The mere fact that no higher court in Ohio has been called upon to decide the precise point that the word, “person,” used in Section 11228, General Code, includes “corporations” appears to us without significance. That cases have arisen in Ohio, however, involving corporate defendants under this section is seen from the case of Sampson v. Scioto Transportation Co., 20 Ohio Opinions, 87, 1 Ohio Supp., 180, a nisi-prius case. That action involved a suit for damages for personal injuries received by a passenger in an automobile who was struck by a truck operated by the defendant corporation on an Ohio highway. The plaintiff filed her petition more than two years after the accident occurred, and the petition alleged that the defendant’s truck failed to stop after the accident and that from the time of the accident defendant concealed its connection with the accident. The. court, on motion of defendant to strike the last mentioned allegation of the petition, held that the motion to strike should be overruled. The court declared that a motorist who flees the scene of an accident may be presumed to have ' done so for the purpose of concealing his identity and, hence, is one who absconds or conceals himself within the meaning of Section 11228, General Code. . The case was not carried to a higher court, but it is illustrative of the fact that ability to abscond is not limited to individual defendants, that a corporate defendant may likewise seek to avoid service, and that a cause of action against either type of defendant is within the saving clause of Section 11228, General Code.

Being firmly of the opinion that corporate defendants are included in the word, “person,” in the saving clause (Section 11228, General Code), we turn to the remaining question for decision, i. e., whether the statute in the instant case was suspended by virtue of the fact that The Toni Company, the defendant corporation, was a foreign corporation without an agent for service of process in this state, and apparently absent from the state at all times until the attachment was obtained in the present action. On this point, the trial court made certain findings of fact. The court found that The Toni Company is a foreign corporation, not licensed or authorized to do business in Ohio and having no agent in Ohio for service of process from the time that the injuries were sustained by plaintiff in October 1948 up until December 1951, the time of the court hearing on the motion to quash service of summons. That finding of fact on the part of the trial court is conclusive so far as this court is concerned. We emphasize that this is not a case of a foreign corporation continuously outside of Ohio, with real or personal property clearly and notoriously within the state during that period. We find no claim that defendant at any time prior to the attachment of the particular funds here involved had any attachable property in Ohio. We mention this point even though we believe that this factor would not alter the law laid down by.the Supreme Court of Ohio in three recent cases, which have discussed the effect of Section 11228, General Code. We refer to Commonwealth Loan Co., Inc., v. Firestine, 148 Ohio St., 133, 73 N. E. (2d), 501, 172 A. L. R., 993; Couts v. Rose, 152 Ohio St., 458, 90 N. E. (2d), 139; and Meekison, Admr., v. Groschner, 153 Ohio St., 301, 91 N. E. (2d), 680,17 A. L. R. (2d), 495.

None of the three cases referred to, decided by the Ohio Supreme Court, involved the question whether Section 11228, General Code, intended to differentiate between individual persons and corporations, but each case emphasized the Supreme Court’s holding that no exceptions are to be engrafted on the plain language of this statute extending the period of limitation for commencement of actions where the defendant is out of the state. Thus, in Commonwealth Loan Co. v. Firestine, supra, a promissory note with cognovit provisions had been executed in Ohio by two individuals who left Ohio shortly thereafter and resided in Illinois for approximately four years. The Supreme Court held, in a suit upon the note, that the four years the defendants were out of the state should be added to the statutory period of 15 years otherwise applicable under Section 11221, General Code, even though the plaintiff could have taken judgment on the cognovit note at any time during the statutory period. In refusing to recognize any exceptions with respect to the plain language of Section 11228, General Code, the Supreme Court, with Judge Zimmerman writing the opinion, declared:

“Had the General Assembly intended to remove from the operation of the statute those causes of action against persons absent from the state but against whom judgment might be taken by confession, it could have done so by the use of appropriate language. If this court were to exempt these defendants from the terms of the statute, it would be doing that which the General Assembly has not seen fit to do and would be indulging in judicial legislation.”

The case last-quoted, and the two subsequent decisions of the Ohio Supreme Court, discussing this statute, are clear in their refusal to recognize any exceptions to Section 11228, General Code, not expressly contained therein.

We believe that this announced policy should be controlling, so far as Ohio courts are concerned, in interpreting this particular section. We are conscious that the courts in a few states have held that a defendant outside the jurisdiction of a state may be held to be present in the state, within the provisions of statutes generally similar to Section 11228, General Code, if, during the defendant’s period of absence, attachable property belonging to the defendant is within the state, against which plaintiff might proceed during the period of limitations provided by the statute. The great weight of authority, however, is to the contrary. See annotation in 119 A. L. R., 331, entitled, “Nonresidence or absence of defendant from state as suspending or tolling statute of limitations, where relief is sought, or could have been sought, by an action or proceeding in rem, or quasi in rem. ’ ’

See, also, the cases cited in the annotation at page 337 in connection with the following statement:

“Although there is some authority to the contrary (Maught v. Cassard [1928], 9 La. App., 78, 119 So., 81; Zacharie v. Sproule & Co. [1870], 22 La. Ann., 325; see Garth v. Robards [1855], 20 Mo., 523, 64 Am. Dec., 203), by the great weight of authority the fact that the absent or nonresident defendant had property in the state which might have been subjected to attachment or other extraordinary process (whether or not consummated by a judgment) before the expiration of the period of limitation, without the necessity of personal service upon the defendant, does not prevent the suspension of the running of the statute by reason of the absence or nonresidence of the defendant, and the period of such absence or nonresidence may not be counted as a part of the period of limitation.”

Cases cited in the annotation in support of the weight of authority include decisions in Alabama, Connecticut, Georgia, Kansas, Kentucky, Maine, Mississippi, Missouri, New Hampshire, New York, North Carolina, Oklahoma, South Dakota, Tennessee, Texas and Washington. More recent cases to similar effect are found in the A. L. R. Blue Book of Supplemental Decisions, Permanent Volume,'and 1951 Supplemental Decisions. One such recent case is Chapin et al., Exrs., v. Posner, a decision by the Court of Appeals of New York, reported in 299 N. Y., 31, 85 N. E. (2d), 172. The court there held, in interpreting Section 19 of the New York Civil Practice Act (similar to Section 11228, General Code), that absence of the defendant from the state would toll the statute of limitations, even in an action in rem to foreclose a mortgage in the state.

Referring to mortgage foreclosure actions, the court declared:

“If the Legislature had intended to except such actions from the operation of Section 19 of the Civil Practice Act, it could have expressly so provided. It did not do so and we do not think that we should read an exception into the statute by implication. ’ ’

A California Court of Appeals, in Ridgway v. Sabin, 41 Cal. App. (2d), 50, 105 P. (2d), 1024, when called upon to decide a case involving a statute similar to Section 11228, General Code, drew a distinction between actions in personam and actions in rem and held that in actions in rem, such as an action to foreclose a mortgage, the statute was not tolled, although the owner was outside the state. The court, therefore, engrafted an exception upon the clear language of the California statute. In the instant case, there was no proof that the property, a chose in action of defendant, was in the state during the two-year period of limitations provided by the statute, and we are not called upon to decide a case where the property sought to be reached is real estate, which is continuously within the jurisdiction during the absence of the defendant. Our present decision is limited to the facts of the present case. In view of the Ohio Supreme Court authorities we have cited, we believe we are on sound ground in refusing to read into Section 11228, General Code, an exception not provided by the General Assembly.

We conclude that the trial court committed error in granting the motion to quash service on the defendant The Toni Company and in rendering judgment in favor of the defendant.

Therefore, the judgment is reversed, and the cause is remanded to the trial court with instructions to vacate the order granting the motion to quash and for further proceedings according to law.

Judgment reversed.

Skeel, P. J., and Hurd, J., concur.