author: Guernsey, J. Younger, P. J.,

text:
    Holt, Appellant, v. Hartschuk et al., Appellees.
    (No. 1491
    Decided April 3, 1953.)

      Messrs. Coughlin, Ogier & Lloyd and Mr. Leo J. Scanlon, for appellant.

      Messrs. Myers & Spurlock, for appellees.
   Guernsey, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Crawford County, in an action wherein the appellant, James D. Holt, was plaintiff, and the appellees, Her-mine Hartschuk and others, were defendants.

The action is one for damages for personal and other injuries alleged to have been sustained by the plaintiff in a collision between the automobile operated by him and the automobile operated by the defendant Hermine Hartschuk, caused by the negligence of said Hermine Hartschuk.

The case was tried to a jury in the Common Pleas Court, which returned a verdict against the plaintiff and in favor of the defendants. Judgment was duly entered upon this verdict dismissing the plaintiff’s petition at his costs. Prom that judgment this appeal is taken.

Plaintiff assigns error in a number of particulars which we have carefully examined and considered, but which, with the exception of one assignment of error, we find wholly without merit.

That one assignment is error in the admission of the testimony of one Dr. Heer relating to a physical examination made by him of the plaintiff, pursuant to an order of court made upon motion of the defendants, and the conclusions as to the nature and extent of plaintiff’s injuries reached by him from such examination, which conclusions he testified were partially based upon a history of plaintiff’s physical condition given by plaintiff to a nurse employed by Dr. Heer, and transcribed by her, X-ray photographs of plaintiff taken by one Dr. Bowen at the request but not under the supervision of Dr. Heer, and upon a report of a physical examination of the plaintiff by a Dr. Dawson. Neither the history of plaintiff’s physical condition, as transcribed by the nurse, nor the X-ray photographs, nor the report of Dr. Dawson, above mentioned, are in evidence.

Dr. Heer would have been warranted in partially basing Ms opinion as to the nature and extent of plaintiff’s injuries, upon said written history, in the event such written history had been properly identified by the nurse who transcribed the same as the history related' to her by plaintiff, and truly transcribed by her, and properly admitted in evidence in the cause and identified by Dr. Heer as the history upon which his opinion was partially based; and Dr. Heer would have been warranted in partially basing his opinion upon the X-ray photographs, in the event such photographs had been properly identified by Dr. Bowen, the doctor taking the same, as true X-ray photograph's of the parts of plaintiff’s body they appear to portray, taken by Dr. Bowen at the request of Dr. Heer, and properly admitted in evidence, and identified by Dr. Heer as the X-ray photographs referred to by him in his testimony; and Dr. Heer would have been warranted in partially basing his opinion upon the report of Dr. Dawson, which Dr. Dawson testified had been in writing, in the event said report was properly identified by Dr. Dawson as the report made by him, and properly admitted in evidence and .identified by Dr. Heer as the report referred to by him in his testimony.

None of the conditions essential to warrant Dr. Heer to base his opinion upon said written history, X-ray photographs, and written report of Dr. Dawson were fulfilled.

The admission of the testimony of Dr. Heer, above referred to, under the circumstances mentioned, was clearly erroneous and prejudicial to the plaintiff.

The defendants, however, contend that although the admission of such testimony may have been erroneous, the issue of contributory negligence on the’ part of the plaintiff, raised by the pleadings and the evidence, was submitted to the jury without the intervention of error, and that under the multiple-issue rule the judgment must be affirmed notwithstanding the error mentioned which did not relate to the issue of contributory negligence.

In the case of Knisely v. Community Traction Co., 125 Ohio St., 131, 180 N. E., 654, it was held:

“In a suit to recover damages for personal injuries .on the ground of negligence, the allegation of defendant’s negligence in the petition, and the allegation of plaintiff’s contributory negligence in the answer, constitute separate and distinct issues to which the so-called two-issue rule, as defined in Sites v. Haverstick, 23 Ohio St., 626, and subsequent cases, has full application. ’ ’

In the opinion it is stated:

‘ ‘ This court has not yet in any reported case declared that the rule is applicable where the only separate issues are those of negligence and contributory negligence. That the issue of contributory negligence is separate and distinct from the issue of defendant’s negligence is undeniable. Defendant’s negligence must be pleaded and proven by the plaintiff. Contributory negligence is an affirmative issue, which, though not necessary to be pleaded by the defendant, must nevertheless be proven by the defendant as an affirmative issue. There can therefore be no question that they constitute separate and distinct issues.”

It.further appears from the opinion that the Supreme Court declined to consider claimed error in the admission of the issue of contributory negligence, inasmuch as no error had been found in the submission of the issue of defendant’s negligence, and affirmed judgment in favor of defendant.

The rule established by the case of Sites v. Haverstick, 23 Ohio St., 626, and other cases referred to in the above-quoted holding, is that where the jury returns a general verdict in a case involving two or more issues, a finding upon any one of which in favor of the successful party would entitle him to judgment, if the record does not disclose affirmatively by answer to interrogatories or otherwise upon which issue such verdict was based, the judgment will not be reversed if no error appears as to any one or more of them although there may be error as to other issues. 2 Ohio Jurisprudence, 1187, Section 616.

It was held in the syllabus in the case of State, ex rel. Morgan, v. Rusk, Dir., 37 Ohio App., 109, 174 N. E., 142, that:

“4. There is no ‘negligence’ unless it be actionable negligence.

“5. ‘Negligence’ is term used on which, if it exists, action can be predicated to recover.”

We approve the foregoing holding as a correct statement of the rule.

Considering the above-quoted holding in the Knisely case, supra, in the light of the foregoing rule, it is clear that the word, “negligence,” as used therein, is used in its legal sense of “actionable negligence.”

In the case of Elliman v. Gombar, 86 Ohio App., 352, 91 N. E. (2d), 801, it is held:

“To constitute actionable negligence, there must concur three essential elements; a duty of care owing to the complaining party, a breach of that duty by a negligent act or omission, and an injury proximately resulting therefrom. ’ ’

See, also, Harriman v. Railway Co., 45 Ohio St., 11, at page 20, 12 N. E., 451, 4 Am. St. Rep., 507; 38 American Jurisprudence, 643, Negligence, Section 2; 29 Ohio Jurisprudence, 384, Negligence, Section 4.

We approve this holding as a correct statement of the law.

Considered in the light of the foregoing holdings, the phrase, “issue of defendant’s negligence,” as used in the Knisely case, supra, comprehends the three essential elements of (1) a duty of care owing to the complaining party, (2) a breach of that duty by a negligent act, and (3) an injury proximately resulting therefrom.

This being the case, the erroneous admission of evidence reflecting upon any of said elements constitutes an erroneous admission of evidence reflecting upon the issue of defendant’s negligence within the purview" of the so-called two-issue rule.

Within the purview of the so-called two-issue rule, contributory negligence as a defense to a cause of action for negligence exists only where there is actionable negligence.

A judgment in a negligence action is not subject to affirmation under the so-called two-issue rule where, the issue of contributory negligence is submitted without error intervening but the issue of actionable negligence is erroneously submitted. Bush, Admr., v. Harvey Transfer Co., 146 Ohio St., 657, 67 N. E. (2d), 851.

In the case at bar, the issue of actionable negligence was erroneously submitted by reason of the admission of the testimony of Dr. Heer, hereinbefore mentioned, as to the nature and extent of plaintiff’s injuries and for this reason the judgment is not subject to affirmation under the so-called t¡wo-issue rule.

The defendants furthe'r contend that the answer of the jury to the special interrogatory submitted to it by the plaintiff, to the effect that the jury found from the evidence and from the instructions given to it by the court, as to the law, that the plaintiff did not have the right of way at the time the accident occurred, requires the affirmance of the judgment in favor of the defendants rendered upon the general verdict of the jury.

In support of this contention they urge that said answmr is consistent with, the general verdict of the jury and that when it is considered in connection with the facts and circumstances in evidence in the case it is obvious that the general verdict of the jury is based upon a finding that the plaintiff, at the time of the collision, was proceeding in an unlawful manner, thereby contributing to cause the injuries sustained by him, and not upon a finding that the plaintiff did not sustain any injuries.

The determinative issues in the case are, one, actionable negligence on the part of the defendant; and, two, contributory negligence on the part of the plaintiff.

The finding upon the issue as to whether the plaintiff had the right of way did not in and of itself entitle the defendants to a judgment against the plaintiff.

The record of the finding upon such interrogatory does not disclose affirmatively whether the general verdict of the jury was based upon the nonexistence of actionable negligence on the part of the defendants or was based upon the existence of negligence on the part of the defendants and of contributory negligence on the part of the plaintiff.

The fact that the answer to the interrogatory is consistent with the general verdict did not constitute it as the basis of the general verdict.

So far as the record discloses, the jury may have based its general verdict upon a finding that the plaintiff did not sustain any injuries, which the jury would have been warranted in finding if it believed the testimony of Dr. Heer, hereinbefore mentioned.

An inspection of the record, as a whole, does not disclose any facts or circumstances affirmatively appearing of record tending in any manner to support the contention of the defendants.

For the error in the admission of the testimony of Dr. Heer, hereinbefore mentioned, which was prejudicial to the plaintiff, the judgment of the Common Pleas Court is reversed and the cause is remanded for new trial and further proceedings according to law at the costs of appellees.

Judgment reversed.

Middleton, J., concurs.

Younger, P. J.,

dissenting. I must dissent from the majority opinion as. I do not believe the admission of the testimony of Dr. Heer was prejudicially erroneous to the appellant.

There are two reasons for this belief.

First: The entire testimony of Dr. Heer should not be excluded merely because he took into consideration the history of plaintiff written down by his secretary in his absence, the X-rays taken by Dr. Bowen or the report on plaintiff made by Dr. Dawson. The history and the report lost their hearsay status by sufficient competent evidence of the plaintiff and Dr. Dawson having been introduced at the trial previous to the time Dr. Heer testified and the X-rays were not used by Dr. Heer as the basis of forming any opinion but merely to check and verify the findings he had made at a previous physical examination of the plaintiff.

Second: The answer which the jury gave to the special interrogatory and the general verdict which the jury gave to the defendants are clearly consistent with a finding by the jury based upon sufficient competent evidence and submitted without the intervention of error, that the collision was the result of negligence on the part of the plaintiff — either sole or contributory — which would defeat plaintiff’s claim regardless of any physical injuries sustained. The testimony of Dr. Heer was therefore immaterial and its introduction could not be prejudicial to the plaintiff.

The record shows that as a result of an order of court which the defendants had previously obtained, the plaintiff accompanied by his attorney, Mr. Ogier, presented himself at Dr. Heer’s office in Columbus for a physical examination sometime previous to the trial.

On direct examination at the trial, Dr. Heer testified that first a history was taken by his secretary and that after reading over the history and talking with Mr. Holt and his attorney he examined Holt by means of looking a,t him and hearing what he had to say, feeling of his body and making a thorough examination of his body with particular reference to the sites where he complained of pain. He further testified that he examined him with his eyes, ears and hands, that he felt his skin, muscles and back. He had him stoop, walk and bend. He watched him and took his blood pressure, listened to his heart and examined him in that way. When asked as to his findings as a result of this examination Dr. Heer, in an answer covering two pages of the record, reported in detail as to what he saw, felt and observed as to plaintiff’s body and the movements of his arms, legs, neck and back. He gave the results of his examination as to plaintiff’s height, weight, eyes, ears, nose, throat, teeth, thyroid glands, muscles, chest, ribs and abdomen. He reported as to plaintiff’s heart beat, heart murmurs, or abnormal sounds, hernia and the results of a Wasserman examination.

At the close of his examination in chief, Dr. Heer was asked what objective findings he made at this examination of plaintiff, Holt, and his answer was, “I could find no objective trouble with him of any kind.” He defined objective trouble as “objective is what one can see and feel and hear and learn from one’s senses.”

The plaintiff in the court below moved that the entire testimony of Dr. Heer be excluded. The court overruled this motion and the majority of this court concurs with the plaintiff that this was prejudicial error. I cannot so hold.

In the first place, it is to be noted that Dr. Heer testified: “First a history was taken by my secretary and after reading over the history and talking to Mr. Holt and Mr. Ogier, I examined Mr. Holt * # It is not clear from this statement by the doctor nor from the record just what transpired. This statement could mean, “after reading over the history to Mr. Holt and Mr. Ogier and after talking to Mr. Holt and Mr. Ogier.” It could mean, “after I read over the history and then talked * * It is not clear whether the history was read out loud, or audibly or not. The so-called “history,” Dr. Heer testified, contained plaintiff’s “present complaints and his past history.” If this history was read over and discussed with plaintiff and his attorney by Dr. Heer at the time of the examination and plaintiff made no objections or corrections to it he should not now be heard to complain. However, plaintiff testified quite fully at the trial, both on direct and cross-examination as to his past history, medical and otherwise. Dr. Heer testified on direct examination as to what the past history of plaintiff was as written down and given to him by his secretary. There is no discrepancy between what plaintiff testified his past history was and what Dr. Heer testified plaintiff’s past history to be from the statement furnished him by his secretary.

On direct examination, Dr. Heer was asked if previously to his physical examination of the plaintiff he had seen a report on the plaintiff made by Dr. Dawson. Dr. Heer said that he had looked at this report. Dr. Heer, upon objection of the plaintiff, was not permitted to testify as to the opinions or findings of Dr. Dawson as shown by this report.

It is to be noted that Dr. Dawson was plaintiff’s personal physician for at least eight years previous to the trial, as shown by the record. He testified for the plaintiff at this trial at great length — ninety pages in the record. He testified as to the treatment he prescribed and gave plaintiff beginning April 3, 1944, for plaintiff’s prior injury; of his examination of the plaintiff May 27, 1946, the day after the accident on which this action is based and of his treatment up to the time of trial; and as to the nature and the extent of the claimed injuries and complaints of the plaintiff.

It is to be further noted that the court below sustained the plaintiff’s objections to questions to Dr. Heer as to what Dr. Dawson’s opinions or findings were as shown in this report, although, in my opinion, the questions were proper for the purpose of testing the credibility of Dr. Dawson who was a previous witness for the plaintiff. Anyhow, Dr. Dawson’s opinions and feelings were well known to the jury as a result of his previous detailed testimony.

Dr. Heer was not asked whether or not he took the report of Dr. Dawson into consideration when making his examination. He was asked, it is true, on cross-examination what part of his “assumption” was based upon the history which the secretary gave him, and he answered, “oh, about fifty-fifty.” However, Dr. Heer testified to no assumption. He testified only as to the objective findings he made when he examined plaintiff.

I am of the opinion that if the statement of plaintiff’s past history, which he himself gave to the doctor’s secretary, and which she wrote down and gave to the doctor at the same time and as part of the physical examination, is hearsay, it lost such character or at least it was cured, either, first, by the plaintiff and his attorney talking the matter over with Dr. Heer, or, secondly, by such past history being confirmed at the trial by the previous competent testimony of the plaintiff himself.

I am further of the opinion that if the fact that Dr. Heer looked at the report of Dr. Dawson tainted his testimony with hearsay it was cured, first, because there is no testimony that Dr. Heer took it into consideration, and, secondly, it was cured by the previous competent testimony of Dr. Dawson himself.

It is stated in 31 Corpus Juris Secundum, 930, Section 193:

“In connection with other evidence which is competent in itself, evidence which, standing alone, would be objectionable as hearsay, may sometimes be received. ’ ’

In regard to the X-rays, the record shows that as part of his answer as to the objective findings made at the physical examination of the plaintiff, Dr. Heer stated that another doctor X-rayed him for his cervical-dorsal spine. The plaintiff objected, “unless he has the X-rays here.” The X-rays were then immediately identified as defendant’s exhibits 5, 6, 7 and 8. Dr. Heer identified these four exhibits as the X-rays of plaintiff made by Dr. Bowen at his request.

No attempt was made to introduce the X-rays in evidence. Nor were they otherwise referred to, except by a question on cross-examination when Dr. Heer was asked whether “these assumptions and opinions you gave were based upon any X-rays somebody else might have given to you not in the presence of James Holt or anyone representing him.” To this question Dr. Heer answered in the affirmative.

Dr. Heer evidently had these X-rays in mind when, in answer to the question whether or not it could be reasonably determined that a particular bursa located between the processes of the sixth and seventh dorsal vertebrae contained bursitis or was afflicted with bursitis, he answered that it could be only if there was X-ray evidence of a bony change in the bursa, that is, if it showed a definite calcareous change since this could not be ascértained merely by looking with the naked eye.

It is evident, therefore, that Dr. Heer wanted to check the objective findings which he made at the physical examination of the plaintiff with an X-ray made by an X-ray specialist. These X-rays merely confirmed the objective finding which Dr. Heer had made at the examination. They were not used by Dr. Heer as a basis for forming or expressing an opinion but merely for the purpose of checking or confirming an opinion previously formed at the time of the physical examination.

In connection with all three of the contentions of the plaintiff, enumerated above, I agree that, if Dr. Heer had not made a physical examination of the plaintiff and if he had attempted to testify as to plaintiff’s condition from a past history taken by his secretary, X-rays taken by Dr. Bowen, and a report on plaintiff’s physical condition by Dr. Dawson, his testimony should be excluded. I cannot agree that the entire testimony of Dr. Heer, that is, as to what he could “see and feel and hear and learn” from his senses when he made the physical examination of plaintiff, should be excluded because Dr. Heer read or looked at various statements, X-rays or reports which, if standing alone, might be hearsay. Dr. Heer was asked whether he had ever talked to Dr. Dawson about plaintiff’s physical condition. He testified that he had not. Suppose, however, that Dr. Heer had talked to Dr. Dawson about the plaintiff one day at lunch or at a medical meeting; suppose he had looked at X-rays of the plaintiff on file at the hospital; suppose he had looked at a chart of the plaintiff while he was in the hospital; suppose he had talked to plaintiff’s wife upon one or more occasions about plaintiff’s physical condition. In my opinion, he is still competent to testify as to his objective findings made at the physical examination and if he admitted that such statements, X-rays or reports were considered by him, that would merely go to the weight of his testimony and not to its entire exclusion.

In my opinion, Dr. Heer should not be excluded and forever barred from testifying as to his findings merely because he looked at a report or talked to somebody about the case, which would be hearsay if standing alone and not connected or identified with previously admitted competent testimony.

If Dr. Heer’s testimony is to be thus entirely excluded, then the plaintiff is permitted to close the mouth of a valuable witness for the defendants by the plaintiff’s own actions in showing Dr. Heer a report of Dr. Dawson’s examination or by submitting to having X-ray pictures of himself taken for Dr. Heer or by furnishing him hearsay evidence by dictating his personal history to the secretary. The order of court for a physical examination of plaintiff made at defendants ’ request is thereby nullified and plaintiff has succeeded in suppressing adverse evidence and has obtained an unconscionable advantage. Whether the plaintiff does this accidently, deliberately, or by trickery, is immaterial. The result is the same.

As a practical matter, if a defendant, having obtained a physical examination of a plaintiff by court order, is bound to produce in court every report, X-ray, file or memorandum at which the physician may have looked, together with the person or persons who made or compiled such items, and also produce in court every person with whom the physician may have discussed the plaintiff’s condition, before such physician may testify as to his findings made at such examination, then an insurmountable obstacle is placed before such defendant. • He becomes at the mercy of a plaintiff who would furnish such physician with such data or see that such physician is talked to by some person or persons unknown to the defendant.

As indicated earlier, there is, in my opinion, another and a more determinative reason for an affirmance here of the judgment below.

I agree that an affirmance in this case cannot be had merely by the application of the multiple-issue or the so-called two-issue rule. This rule has application only where there are two or more separate issues involved and where the mental processes of the jury have not been tested by interrogatories.

In this case, a special interrogatory was submitted by the plaintiff which asked the jury to state whether or not at the time of the collision the plaintiff had the right of way. The jury answered this question in the negative. Thus an essential ingredient in the application of the two-issue rule has been removed.

In order to appreciate the results of this factual determination by the jury, a brief statement of the material facts upon which it was made is necessary.

The defendant, on May 26,1946, was traveling south on state route 4 a short distance south of the village of Chatfield, in the open country, on her way to church with her two children. This church is located several miles south of Chatfield and on the east side of route 4. The accident happened around 9:30 in the morning when services at the church were just starting. The defendant was looking for a place to park her automobile in the church yard or on the east side of route 4 where parking places were provided. There were approximately thirty or thirty-five cars already parked there. As she approached the church she noticed through her rear view mirror that at least two cars were following her. She discovered a vacant place where she could park so she pulled over to her right a little, which would be to the west side of the highway, and stopped her car. The cars back of her also stopped. She testified that she looked ahead or to the south and saw no one coming and looking through her rear view mirror saw that the cars back of her had stopped, so she extended her left arm and turned directly across the highway to the vacant parking place. As she proceeded across the east half of the highway she was struck by the plaintiff’s car, which was proceeding north. The defendant testified she did not see plaintiff’s car until the impact occurred.

The plaintiff, accompanied by his wife and another married couple, were on their way from Columbus to Lake Erie. It was misting this spring morning and the roadway was damp. Pour disinterested witnesses seated in the stopped car back of the defendant, witnessed the collision. All four of these witnesses corroborated the statement of the plaintiff and the occupants of his car that immediately before the impact the plaintiff was proceeding on his proper side of the road and traveling at a speed of from twenty to thirty miles per hour. The plaintiff and the seven witnesses testified they did not see the defendant extend her arm before making the left hand turn in front of the plaintiff.

Under these undisputed facts there can be no question that the plaintiff had the right of way unless he lost this preferential status by proceeding in an unlawful manner.

As the plaintiff approached this church with thirty or thirty-five cars parked in the church yard and on the east berm of the highway, with the defendant’s car parked on the west part of the highway and two or three cars parked behind her and the weather being misty and the roadway damp, it was his duty to operate his car in a careful and reasonable manner in view of such existing circumstances then confronting him. Whether or not the plaintiff did exercise ordinary care in view of these circumstances was a jury question. There was competent, credible and sufficient evidence for the jury to arrive at the conclusion it reached, that the plaintiff did approach the point of collision in an unlawful manner, that is, by failing to exercise that degree of care which all the existing circumstances, including such traffic congestion, then required.

By answering this interrogatory as the jury did, following the instructions of the court, it, of necessity, found that the plaintiff approached the point of collision in an unlawful manner.

Therefore, the jury found that the collision was a result of either (1) the sole negligence of the plaintiff, or (2) the negligence of the defendant, contributed to by the plaintiff himself. In either event plaintiff could not recover, regardless of whether he was injured or not. The jury having arrived at this decision, its duty under the instructions of the court was to return a general verdict for the defendant, “no cause of action. ’ ’ This, the jury did. The jury was then under no duty, nor was it proper for it to consider any further testimony in the case as to the nature and extent of the plaintiff’s claimed injuries nor any of the medical testimony introduced, including all the testimony of Dr. Heer.

The answer to the interrogatory submitted by plaintiff is clearly consistent with a finding that either plaintiff’s negligence was the sole cause of the collision or that plaintiff was guilty of contributory negligence. Therefore, the claimed error relating solely to the issues of the nature and extent of plaintiff’s claimed injuries and whether such claimed physical disabilities were due to a prior injury, would not justify a reversal of the judgment rendered on the general verdict for the defendant. Soltz v. Colony Recreation Center, 151 Ohio St., 503, 87 N. E. (2d), 167.

The jury having taken this view of the evidence, the entire testimony of Dr. Heer, whether based on hearsay or not, was immaterial, and its admission was not prejudicial to the plaintiff.

The jury is credited neither with logic nor consistency by saying that it could have found that regardless of plaintiff’s sole negligence or contributory negligence he was not injured as a proximate result of the collision, as shown by Dr. Heer’s testimony. Dr. Heer testified he found nothing objectively wrong with the plaintiff’s condition at the time he examined him, which was two years after the accident. The plaintiff claimed he was damaged to the extent of $75,000. He presented medical and hospital bills amounting to over eight hundred dollars. He claimed decreased earning power by reason of not being able to continue his former occupation as a welder. Although plaintiff greatly magnified his own injuries and losses, it is neither logical nor consistent to say that the jury found that he was entitled to nothing.

The jury’s answer to the interrogatory does not fit into such a theory.

The Supreme Court’s decision in the Soltz case, supra, does not require that the answer to the interrogatory and the general verdict must be consistent only with the theory that the plaintiff in this case was negligent. It is sufficient that they are consistent with such theory.

In my opinion, the judgment of the Common Pleas Court should be affirmed.


source: Caselaw Access Project

author: Doyle, P. J.

license: Public Domain

text:
    First National Bank of Akron, Trustee, Appellee, v. Unknown Heirs of Donnelly, Jr., et al., Appellees; Dunn et al., Appellants.
    (No. 4429
    Decided April 28, 1954.)

      Messrs. Brouse, McDowell, May, Bierce é Wortman, for appellee First National Bank of Akron, trustee.

      Mr. William M. Byrnes, for appellee Edward F. Hoban, Archbishop.

      Messrs. Griswold, Leeper, Miller & Corry, and Messrs. Walker, Alpeter, Reed & Diefenbach, for appellant Joseph B. Dunn.

      Mr. Mark F. McChesney, for appellant Della Seltzer McDermott.
   Doyle, P. J.

This was an action for a declaratory-judgment, brought in the Probate Court of Summit County by the First National Bank of Akron, in its capacity as successor trustee under the last will and testament of James Henry Donnelly, Jr.,’ deceased. The court’s direction was sought in respect to undistributed funds held by the bank under the will.

Donnelly died testate on August 1, 1924. He made testamentary provision for certain individuals. He likewise provided for the disposition of the corpus of the trust, in the event that none of the named individuals should survive until the date of final distribution. None survived, and, as a consequence, the following provision in the will became operative:

“In the event of the decease of my said son, James Henry Donnelly, Junior, prior to final distribution to him of the trust estate, leaving neither widow nor issue of his body surviving, then and in that event, my said trustee is authorized and directed to disburse the principal of the trust estate and any accumulated income therefrom to a Catholic Orphanage located in Summit County, Ohio; if there be none located in said county, then my said trustee is authorized and directed to expend the entire principal and accumulated income from said trust estate for the establishment of such a Catholic Orphanage in said county and state.”

Two of the defendants, by their answers, as well as by the proof, are the sole remaining heirs at law of the testator. They seek the money under the laws of descent and distribution, through the medium of a resulting trust. The Archbishop-Bishop of the Diocese of Cleveland of the Catholic Church, Edward P. Ho-ban, likewise answered and joined in the prayer of the trustee ?s petition: that the funds be given over to the Parmadale Orphanage (a Catholic orphanage), located in the adjoining county of Cuyahoga.

It is established that:

(1) The corpus of the trust awaiting distribution is approximately $21,000.

(2) There is presently no Catholic orphanage in Summit County, nor was there one when the will was executed.

(3) The amount is insufficient to establish such an orphanage.

(4) Parmadale Catholic Orphanage, located in Cuyahoga County, provides care for needy children, regardless of creed or color, in the Cleveland diocese of the Catholic Church, which diocese covers eight northern Ohio counties, including, among them, Summit County. The orphanage is under the direction and supervision of the Archbishop-Bishop of the Diocese of Cleveland.

(5) The diocesan orphanage, Parmadale, was originally founded in Cleveland, Ohio, in the year 1852, under the name of St. Vincent; it was moved to Parma, Ohio, in 1924, and the name was then changed to “Parmadale.”

(6) In the years intervening between 1942 and 1953, a yearly minimum of 51, and a maximum of 79, children were cared for from Summit County.

(7) The children are “maintained, fed, boarded, and educated,” with the physical facilities of an “administration building, a rectory, a school, a dining hall with dining room for each particular cottage, * * * a laundry, a power plant, * * * a gymnasium * * *, an open-air center for inclement weather, and thirty-five houses (cottages),” and there are “40 (children) in each cottage. ’ ’

(8) “The * * * cost is met by Catholic Charities Corporation” and also by money from other sources— to wit, “wills, bequests and special gifts,” coming from persons of Catholic faith, and also from persons of other faiths.

(9) The creation of a Catholic orphanage in Summit County is not contemplated by any person or organization presently extant.

The Probate Court, upon hearing, entered its judgment, holding that: (1) the defendants Della Seltzer McDermott and Joseph B. Dunn, a niece and a nephew of the testator, are the only heirs, ‘ ‘ but have no right, title or interest in and to the said property and fund * * (2) the money now held by the trustee bank “shall not be distributed, but shall be held and administered by it under the continuing order and direction of this court for the care, maintenance and support of Catholic orphans of Summit County, Ohio, who may be cared for at Parmadale, or any other home, public or private, or any institution of similar character or purpose, in such amounts as may be ordered by the court, provided, however, that should a Catholic orphanage be hereafter established in Summit County, Ohio, then the said remaining trust fund, on the order of this court, may be turned over to such Catholic orphanage. ’ ’

We entertain the appeal on questions of law, and are met with the following inquiry posed by the appellants: “Did the Probate Court of Summit County correctly order the disposition of the corpus of the trust — (a) by virtue of the doctrine of deviation? (b) by virtue of any doctrine, other than deviation, and including cy pres?

As so often happens, the trial court, in the instant case, was forced to balance antagonistic considerations. Its duty was to protect, if possible, the social benefits to be derived from a charitable endowment; to evaluate the interests of contesting heirs; and to effectuate the donor’s intention.

We now proceed to analyze the facts in the light of the law and the judgment of the trial court.

1. The gift of the testator was a gift for charity. Property given to an orphanage, or for the establishment of an orphanage, is a gift to “An institution or asylum for the care of orphans” (Webster’s New Intérnational Dictionary, Second Ed.), and contains the essentials of benevolence in their ever-varying diversity.

2. “Gifts for charitable purposes have always been favored in equity, and trusts created for such purposes are carried into effect upon broad liberal principles of equity jurisprudence under circumstances where a purely private trust might fail.” Gearhart v. Richardson, 109 Ohio St., 418, paragraph 2 of syllabus, 142 N. E., 890.

3. In some instances a donor’s gift is insufficient in amount to carry out his specific directions for the application of his property to charitable purposes. Courts then are confronted with the question as to whether the trust shall fail and the property given in compliance with an alternative grant in the will, or, in the absence of such alternative disposition, held in resulting trust for the nest of kin, or whether the doctrine of deviation or cv pres may be applied. If either one or the other of the latter two doctrines may be employed, the trust may be sustained in spite of the insufficiency of funds.

4. To accomplish the purpose of a charitable trust and to effectuate its administration, a court of equitable jurisdiction “will direct or permit the trustee * * * to deviate from a term of the trust if it appears to the court that compliance is impossible * * Restatement of the Law of Trusts, Section 381. Also, ‘ ‘ If property is given in trust to be applied to a particular charitable purpose, and it is or becomes impossible or impracticable or illegal to carry out the particular purpose, and if the settlor manifested a more general intention to devote the property to charitable purposes, the trust will not fail but the court will direct the application of the property to some charitable purpose which falls within the general charitable intention of the settlor.” Restatement of the Law of Trusts, Section 399. This is known as the doctrine of cy pres.

5. If the primary purpose of a charitable trust can be accomplished by deviation from express terms in the instrument of creation, in respect to purely administrative matters, it becomes unnecessary to analyze the facts in the light of the doctrine of cy pres, and, in doing the latter, determine whether the donor manifested a general charitable intent, and, if so, whether the property should be used for an approximate charitable purpose (a purpose as nearly as may be like the purpose stated by the donor) when it is impossible to exactly carry out his specific intent. See: 3 Scott on Trusts, Section 399; 2A Bogert on Trusts and Trustees, Section 441; Heinlein v. Elyria Savings & Trust Co., Exr. & Trustee, 75 Ohio App., 353, 62 N. E. (2d), 284.

6. While we have nothing in the record before us to show the condition of the affairs of the donor at the time of the execution of his will, nor at the time of his death, and while we have no way of prying into the recesses of the donor’s mind at those times, we can “look deeper than the mere words of this donation, and, through them, see its spirit.” McIntire’s Admrs. v. City of Zanesville, 17 Ohio St., 352, at p. 363. The primary object and intent of the donor, as we read his will, was to care for Catholic orphans from Summit County, Ohio. If there was a Catholic orphanage located in this county at the time of his death, he wanted to help it. If there was none, he wanted to create one. There is nothing before this court to indicate that the donor intended to limit the use of his property to such an extent as to defeat the very object designed, in the event that the funds were insufficient to administer his charity in the particular mode designated.

It appears that the judgment rendered by the trial court was not a deviation from the founder’s intention as to the objects of his charity, but only from the founder’s directions as to the management of his money- — a varying of administrative duties — which were no doubt originally meant to be governed by circumstances. It is to be noted that the founder of this charity made no secondary provision for a gift of these funds in the event of the failure of his charity.

It is well established that a departure from the letter of a will, in regard to the place where a charity is to be conducted, is of no more consequence than a variation from the prescribed mode in which it shall be conducted, where there is no provision for forfeiture, since the absence of a provision for forfeiture, in case of noncompliance or impossibility of compliance, with a direction in a will with regard to a charitable trust, shows that the testator did not intend that the gift should revert on a failure to comply, or an inability to comply, while the carrying out of his dominant purpose is practicable. See: 10 American Jurisprudence, Charities, Section 129, and cases cited.

The furnishing of money from this trust for the care of Summit County Catholic orphans in the Catholic orphanage of Parmadale, located in the adjoining county of Cuyahoga, does, we think, carry out the primary intention of the testator. ,

We find our conclusions consonant with general principles of law and equity pronounced by other courts of this state. We quote from one:

“We think the rule to be well established in this country, in construing charitable trusts, that if the founder thereof describes in the instrument by which he creates the charitable trust the general nature thereof and names the class of beneficiaries, he may leave the details of its administration to be settled by the trustees, under the guidance of a court of equity * * *, and that where exact conformity to the plan of the person who has provided by his will for the charitable trust cannot be carried out in exact detail such object will be attained and duty performed with as close approximation to the original plan as is reasonably practicable, provided the same is in conformity and consistent with the charitable purposes named by the founder; that, at least, a court of equity will not permit such charitable trust to fail because of some slight deviation or change from the original plan, if the general purpose named by the creator of the trust is still Attained.” Gearhart v. Richardson, supra, at p. 435.

See also: Craft, Exrx., v. Shroyer, 81 Ohio App., 253, 74 N. E. (2d), 589 (trust sustained); Allen, Admr., v. City of Bellefontaine, 47 Ohio App., 359, 191 N. E., 896 (trust denied).

A systematic categorization of cases involving the principles of cy pres and deviation in the various states of the Union would be almost impossible. In some cases, the courts, when sustaining trusts, fail to distinguish the two rules of equity jurisprudence. In others, the facts are such that perhaps both theories could be applied in sustaining a charitable trust.

Under the facts in the instant case, we affirm the judgment of the trial court, as heretofore stated, on the theory that the court had the power “to permit deviation from the settlor’s directions as to mere methods of administration, where the charitable objective is not changed but rather the means and methods of accomplishing it are varied.” 2A Bogert on Trusts and Trustees, Section 431, at p. 317.

Whether the doctrine of cy pres could also be applied in the instant case, we do not decide. The two doctrines, however, should not be confused.

Judgment affirmed.

Stevens and Hunsicker, J J., concur.


author: Younger, P. J.

text:
    The State of Ohio, Appellee, v. Quatman, Appellant.
    (No. 173
    Decided January 23, 1954.)

      Mr. George M. Monahan, for appellee.

      Messrs. Durbin, Navarre & Risor, for appellant.
   Younger, P. J.

The defendant-appellant was in-dieted by the Grand Jury of Auglaize County, under Section 12421, General Code, on a charge of assault with intent to kill.

In its charge to the jury, the trial court charged as to the essential elements of the crime of assault with intent to kill and furnished the jurors with verdict No. 1 finding the defendant guilty of the charge, to use if in their deliberations they were convinced beyond a reasonable doubt of the defendant’s guilt of the crime charged.

The court then instructed the jury that if “after consideration you find that the defendant Quatman is not guilty of assault with intent to kill, then you may consider the second verdict marked No. 2,” which was guilty of assault with menacing threats, and if after further deliberation the jurors were convinced that the state had failed to prove the guilt as set forth in verdicts Nos. 1 and 2, then “you may consider verdict No. 3, which is a verdict of assault only * * * and you may if you so agree use form No. 3.” Verdict No. 4 submitted was for a verdict of not guilty.

No further instructions were given by the trial court as to the essential elements of the crime of assault with menacing threats or simple assault. Neither was the jury instructed as to the degree of proof required in finding the defendant guilty of such lesser grades. The jurors were merely given the verdicts for the two lesser offenses and told they could “consider” them and use either of them if they agreed.

The bill of exceptions shows the following at the conclusion of the court’s charge:

‘ ‘ Anything further ?

“(Mr. Navarre walked to the judge’s bench.)

“I will say further that you will take along with you to the jury room the indictment and the exhibit.

“By Mr. Navarre to the court reporter:

“Let the record show that when the judge asked if there was ‘anything further’ we requested that the judge charge to the jury on consideration that can be given by the jury to testimony on previous convictions of the defendant, which the court refused to do.

“Also, that we made a request that the court charge the jury on the lesser offenses included under the indictment, to define the same and show what elements must be proven in order to convict him of any one of the lesser offenses, which the court refused to do.

“Let the record show our exceptions to the court’s refusal to charge thereon as requested and to the court’s charge as a whole and to each and every part thereof.”

The jury returned verdict No. 2 finding the defendant'guilty of assault with menacing threats. Motion for a new trial was duly filed, overruled, and the defendant sentenced upon the verdict, from which this appeal is prosecuted.

That the charge of assault with intent to kill includes lesser grades is established in the case of State v. Stout, 49 Ohio St., 270, 30 N. E., 437, in which the Supreme Court approved a charge by the trial court which stated:

“If you should find from the evidence that had death resulted from the assault, the killing would have been manslaughter only, then you should find him, the defendant, guilty of • assault and battery only and not guilty of assault with intent to kill.”

A review of the testimony as shown by the bill of exceptions shows that assault with menacing threats and assault only, were involved as issues, depending upon which of the witnesses the jury believed.

Where such lesser grades are included in the original charge and become an issue in the case, the duty of the court to charge as to such lesser grades is no less than its duty to define the issues involved in the original charge. Todor v. State, 113 Ohio St., 377, 149 N. E., 326; 12 Ohio Jurisprudence, page 574.

The bill of exceptions shows affirmatively that the defendant requested the court to charge upon the lesser offenses included under the indictment, to define the same and show what elements must be proven, which the court refused to do. The claim of the prosecuting attorney that such request, if made, was not in his presence or hearing does not alleviate the prejudice resulting to the defendant by the court’s erroneous refusal to so charge, and, in the absence of convincing evidence to the contrary, the bill of exceptions, as certified by the trial judge, must be accepted by reviewing courts as correct.

For the refusal of the court to charge as requested by the defendant, the judgment must be reversed and the cause remanded for further proceedings as provided by law.

Judgment reversed.

Guernsey and Middleton, JJ., concur.


author: Montgomery, J.

text:
    Hunter, Appellant, v. Furcolow, Appellee.
    (No. 2602
    Decided February 19, 1954.)

      Mr. F. E. Hunter, for appellant.

      Messrs. Blumenstiel, Strong & Blumenstiel, for appellee.
   Montgomery, J.

The plaintiff, appellant herein, brought an action for money only in the Municipal Court of the City of Alliance against the defendant, appellee herein, and obtained judgment by default. Thereupon he started a proceeding in aid of execution to satisfy the judgment, and succeeded in holding two deposits in a local bank. The defendant filed a motion to set aside the judgment or suspend the execution and filed an answer. Trial was had and final judgment rendered for the defendant. The money was ordered released, notice of appeal was given to the Court of Appeals, and an appeal was perfected.

Upon the rendition of the judgment in the lower court, however, the plaintiff gave a supersedeas bond, which provided:

“If the said F. E. Hunter shall abide and perform the' order and judgment of said Court of Appeals, and guarantee to the said Francis G-. Furcolow that he will prosecute said appeal as speedily as possible and pay all damages and costs sustained by said Francis G. Furcolow from the time the property of the said Francis G. Furcolow was originally seized * * *.”

This bond is substantially in the language of the statute providing for supersedeas bonds, which is now Section 2505.14, Revised Code. Although not in the exact language, it conforms sufficiently to the statute.

This court, upon hearing, affirmed the judgment of the lower court by a simple order of affirmance and by directing “that the appellee recover from the appellant his costs herein expended, and taxed at dollars. ’ ’

The cause was remanded to the lower court for further proceedings. The plaintiff filed a motion to certify the record in the Supreme Court, which motion was overruled, and thereafter, plaintiff filed an application for rehearing, which application was denied.

Thereupon the defendant filed a motion in the Municipal Court “for an order entering judgment against the plaintiff, F. E. Hunter, for damages and costs sustained by the defendant from the date certain monies belonging to the defendant were seized and continuously thereafter held by the clerk of Court.”

The motion was sustained and judgment was rendered for Furcolow against Hunter in the sum of $599.50, of which amount the journal entry shows a portion was for interest which had accrued on the monies held, “together with other costs and damages in the sum of $500.50.” Actually, this latter amount consisted of the fees incurred for Fureolow’s attorneys. The other costs have been paid. It is from this order that the present appeal upon which we are now passing was perfected.

' There are four assignments of error: First, that the Municipal Court erred in making any assessment for damages when the Court of Appeals had failed to provide any penalty for the appeal, and consequently the Municipal Court did not have jurisdiction; second, that the Municipal Court erred in including the attorney fees as damages; third, that the Municipal Court erred in determining the amount of interest, if any, that the plaintiff should pay; and fourth, that the Municipal Court erred in overruling the motion to strike from the record all testimony relative to attorney fees.

We have no difficulty in disposing of the first and third assigned errors, and the fourth, of course, is incidental to the second, and the determination of the second assigned error disposes of the fourth one.

This first contention is not tenable. The statutes upon which plaintiff relies have no application to the instant situation. They have to do with special circumstances, or with penalties fixed by the reviewing court. In our judgment this situation is controlled by Section 2505.09, Revised Code, which is in this language:

“No appeal shall operate as a stay of execution, except as provided in Sections 2505.11 and 2505.12 of the Revised Code, until a supersedeas bond is executed by the appellant to the adverse party with sufficient surety and in such sum, not less than the amount of the judgment and interest, as is directed by the court making the order which is sought to be superseded or by the court to which the appeal is taken. Such bond shall be conditioned as provided in Section 2505.14 of the Be-vised Code.”

Certainly the Municipal Court was the court “making the order, ’ ’ and specific jurisdiction is given it by this section.

As to assigned error number three, we hold specifically that Section 1309.03, Bevised Code, which was formerly Section 8205, Ceneral Code, controls. Sis per cent is the amount of interest authorized by that statute, and such is the amount awarded in the instant case.

There remains the one and only serious question which confronts us, and that is the allowance of attorney fees as damages. To answer the question either way is not thoroughly satisfactory. No great principle is involved, and there can be no instinctive reaction as to what is right, and, unfortunately, and strange to believe, there is no case of which we have knowledge which determines this matter specifically or directly.

The Supreme Court of Ohio in the case of United Power Co. v. Matheny, 81 Ohio State, 204, at page 211, 90 N. E., 154, 28 L. R. A. (N. S.), 761, states:

“But, although we have made a somewhat extended search, we are not aware of any well considered case in which it was held that, in the absence of statute or express agreement, attorney’s fees might be included as part of the damages where compensatory damages only could be allowed. ’ ’

In the instant case we are not confronted with any claim of malice or any claim of fraud or any claim that the appeal was frivolous. Therefore, it seems to us that the language just quoted is generally applicable to our case.

There is no statutory specification that damages, as mentioned in Section 2505.14, Bevised Code, include attorney fees. It is contended simply by the defendant that the bond is the express agreement which would distinguish our case from the Matheny case, supra. The bond does not expressly include attorney fees, and it could be only by inference that they should be included.

An interesting, but not too instructive discussion of this situation is to be found in 83 Corpus Juris Secundum, 898. It is valuable chiefly by virtue of a foot note based upon a Kentucky case to the report of which, however, the writer does not have access.

It is urged by the defendant that the instant proceeding is similar to an injunction or an attachment case, and this has given us real concern. Perhaps the leading case in Ohio is that of Noble v. Arnold, 23 Ohio St., 264, and that was followed in the recent case of Sheets v. Chittum, 90 Ohio App., 341, 106 N. E. (2d), 782. But in the Noble case, the fees were incurred in defeating the action and the dissolution of the injunction was only incidental, and in the Sheets case the only relief sought was a permanent injunction. This fact distinguished the two cases, and justified the conclusion in this Court of Appeals case.

In the instant case, it was vigorously contended that the plaintiff was entitled to his judgment, and that issue was fought all the way to the Supreme Court, as heretofore indicated. The release of the money was an incident. It is our judgment that the attorney fees should not have been allowed as damages.

It follows that the judgment of the Municipal Court of the city of Alliance is reversed so far as it awarded judgment for this sum of $500.50. As to the other items, the judgment is affirmed.

Judgment accordingly.

Putnam, P. J., and McClintock, J., concur.


author: Skeel, J.

text:
    Zurich General Accident & Liability Ins. Co., Appellant, v. Mutual Mortgage & Investment Co., Appellee.
    (No. 22748
    Decided May 4, 1953.)

      Messrs. Payne <& Hermann, for appellant.

      Mr. Sidney N. Weits, for appellee.
   Skeel, J.

This appeal comes to this court on questions of law from a judgment for the defendant entered by the Municipal Court of Cleveland upon defendant’s motion at the conclusion of plaintiff’s case. The action is founded in tort. The plaintiff, an insurance company, issued a policy of insurance to Marvin Blaugrund covering, among other things, the risk of loss or damage suffered because of the theft of his automobile.

Marvin Blaugrund is the son of Dr. and Mrs. Sidney Blaugrund and lived with them in suite No. 407 of defendant’s apartment building located at 3440 Avalon Road, Shaker Heights, Ohio. Dr. Blaugrund and his family occupied said suite under the terms of a written lease entered into between the doctor and the defendant, wherein it was provided in part:

“19. All personal property in the demised premises shall, be at the risk of the ‘tenant’ only and said ‘landlord’ shall not be liable for any damages to said personal property, to said premises, or to said ‘tenant’ or other persons arising from the building or any part or appurtenance thereof becoming out of repair, or from the bursting, leaking or overflowing of water, gas, sewer or steam pipes, or from any sprinkler system in said building or any plumbing connected therewith, or from any damage caused by defective electric wiring, or from any acts or neglect of co-tenants or other occupants of the building or other person, or theft or due to the happening of any accident in or to said building.” (Emphasis added.)

“35. This lease includes garage facilities for one car only.” (Emphasis added.)

Dr. Blaugrund, according to the evidence, was assigned a definite space in the garage (which was a part of the apartment building) where he parked his automobile. He occupied such space up and until December 1950 when his son, Marvin Blaugrund, purchased a new automobile. From then until at least February 25, 1951, Marvin parked the new automobile in this space and Dr. Blaugrund parked his automobile on the street. The evidence discloses that there was an attendant working in the garage who would shift automobiles, or park them, or wash them, at the request of tenants. Marvin Blaugrund testified that, when he had his automobile washed the attendant would receive his pay therefor from his father.

On the early morning of February 25, 1951 (Sunday), Marvin Blaugrund drove into the garage and saw the attendant washing an automobile. He testified as follows:

“I saw the fellow that was washing cars there and I asked him if he would take care of my car, wash' it if necessary, and park it for me.”

Marvin Blaugrund testified further that the attendant said he would take care of it. Marvin Blaugrund did not return to the garage for his automobile until Monday morning, February 26, 1951. He then found it had been stolen. He reported his loss to the police and the automobile was recovered that day in a damaged condition. The plaintiff, under its contract of insurance, repaired the automobile, secured a subrogation receipt from Marvin Blaugrund, and instituted this action to recover the loss.

Plaintiff claims the court erred “in granting defendant’s motion for judgment on the basis of plaintiff’s testimony at the close of the plaintiff’s case.”

The theory upon which the plaintiff contends to have presented at least a prima facie case which would require the defendant to proceed with its defense is that the delivery of the automobile to the attendant in the private garage of defendant’s apartment building constituted a bailment and that- the failure of defendant, as bailee, to- return the bailed property upon demand constituted some evidence of negligence, and that the burden of proceeding with the evidence to explain its failure to return the bailed property to Marvin Blaugrund then shifted to the defendant. Agricultural Ins. Co. v. Constantine, 144 Ohio St., 275, 58 N. E. (2d), 658.

The bailment relationship contended for by plaintiff must be based upon contract, express or implied. The defendant argues that because the written lease was between Sidney Blaugrund and the defendant, the defendant had no contractual relations with Marvin Blaugrund as a member of Sidney Blaugrund’s family; that the parking of Marvin’s automobile in the garage was unauthorized; and that, therefore, a bailment relation could not result from the facts presented by plaintiff’s evidence.

Some support for this view is found in cases such as Coons v. First National Bank of Philmont (1926), 218 App. Div., 283, 218 N. Y. Supp., 189. In that case a daughter had deposited securities in her father’s safe deposit box from whence they were stolen by burglars. The court, in holding for the bank in an action seeking damages for the loss of the securities, said:

‘ ■ The relation between a bailor and a bailee is- fixed by contract, either express or implied, and the rights and liabilities of the parties must be determined from the terms of the contract, if express, or, if implied, under the general principles of law and the surroundings and attending circumstances; but always liability is grounded in contract; one cannot be made the bailee of another’s property without his consent * * *. It follows that, if there is no contract between the parties to the action, there can be no liability resting on the defendant as bailee.”

We' cannot accept the principle of" the Coons case, supra, contended for by the defendant, as applicable to the undisputed facts in this case.

A lease contract, admittedly between the head of the household and the defendant, was made for the benefit of all members of the family. All members of the family are entitled to the beneficial use of the demised premises for residence purposes and are bound by the rules and limitations of the contract thus made for their benefit. Whether the garage space is to be occupied by the automobile of the father or son is a family matter and of no concern of the defendant so long as the rules and regulations of the lease are fully complied with. The contention of defendant that Marvin Blaugrund could not properly occupy the garage space called for under the lease is not well taken.

The principal question presented in this appeal is whether plaintiff made out a prima facie case of a bailment relation between Marvin Blaugrund and the defendant, and a breach thereof to the plaintiff’s damage. There is no dispute that the automobile was stolen from the garage and that it was damaged while in the hands of the thief. The question to be decided, therefore, is: Has the plaintiff produced credible evidence to support the claimed delivery of Marvin Blaugrund’s automobile into the possession of defendant as bailee, thereby creating a bailor-bailee relationship ?

The plaintiff relies strongly on the lease agreement between Sidney Blaugrund and the defendant to establish a bailment by delivery of Marvin’s automobile into the custody of the car washer. An examination of the lease, however, does not support plaintiff’s contention. The lease granted to the lessee the exclusive use and possession (for residence purposes) of suite No. 407 together with the right to occupy a space for one automobile in the garage. Not a thing is said in the lease about receiving and earing for automobiles parked in the garage. The garage is private in character. 24 American Jurisprudence, 481. An automobile parked in the garage by a tenant is permitted under his lease agreement and no contract of bailment is thereby established under the terms of the lease.

It should be noted that under paragraph 19 of the lease, above quoted, it is provided that the landlord is not to be held liable for the theft of any of the tenant’s property from the premises. Such provision is binding upon the parties and is an enforceable provision of the lease. Mansfield Mutual Ins. Co. v. Cleveland, Cincinnati, Chicago & St. Louis Rd. Co., 74 Ohio St., 30, 77 N. E., 269.

It is claimed also by plaintiff that when Marvin Blaugrund asked the attendant, whom he found in the garage engaged in washing automobiles, to take care of his automobile, which request received an affirmative response, that the act of leaving the automobile in his care created a bailment relationship between Marvin Blaugrund and the defendant. An examination of the record fails to establish the duties of the attendant. The record is completely silent as to his authority, whether he was there to give service in carrying out the obligations of the landlord under the lease or was granted the power to go beyond the lease and render personal services for the tenants on behalf of the defendant is not disclosed..

The authority of defendant’s employee to bind it as a bailee, beyond the terms of the lease agreement, cannot be presumed. The fact that the attendant had washed Marvin Blaugrund’s automobile on previous occasions for which payment was made by Dr. Blaugrund direct to the attendant, does not, standing alone, tend to establish the authority of the employee to create a bailment on the defendant’s behalf. The burden is on the plaintiff as a part of his case to produce credible evidence in support of such authority. We find no such evidence in the record.

For the foregoing reasons, the judgment of the trial court is affirmed.

Judgment affirmed.

Hurd, P. J., and Kovachy, J., concur.


author: Hunsicker, J.

text:
    Scott, Appellant, v. Allied Stores of Ohio, Inc., Appellee.
    (No. 4352
    Decided April 15, 1953.)

      Messrs. Kimber & Huffman, for appellant.

      Messrs. Wise, Boetsel, Maxon, Kelly é Andress, for appellee.
   Hunsicker, J.

On Saturday, September 16, 1950, tbe appellant, Mrs. Gertrude Scott, entered the store of the appellee, known and referred to herein as “ Polsky’s,” for the purpose of purchasing certain articles of merchandise. As Mrs. Scott was in the act of examining some merchandise, she alleged she was suddenly, and, without warning, struck and knocked against a jewelry counter, and then to the floor, causing her serious injuries.

On the day when the claimed injury to Mrs. Scott occurred, a Polsky store detective saw a man engaged in what is known as “shoplifting.” When the shoplifter left the Polsky store, the detective and another store employee went outside and asked the shoplifter to return to the store. While the detective and the employee were in the act of escorting the shoplifter, whose name was Hargrove, to the office of the store manager, Hargrove broke away from them and attempted to escape by running toward a door leading to the outside.

When Hargrove started to run for a store exit, the employee, who was with the detective, and another employee, began pursuit. A customer (a Mr. Buck), seeing Hargrove running toward an exit, pursued by one whom he knew to be a store employee, ran through an aisle, and, by blocking or tackling Hargrove, caused him to fall to the floor. This blocking occurred at a place in the aisle near the glove counter and several feet from the jewelry counter where Mrs. Scott was standing.

Mrs. Scott said she did not know what or who struck her. There is a serious conflict in the testimony as to whether she actually was struck by anyone. There is no evidence to show that any employee of the store helped cause Hargrove to fall, or that any store employee bumped or struck Mrs. Scott.

Mrs. Scott says that Polsky’s, through its employees, was negligent: in bringing Hargrove into the store after he had left with the goods he had shoplifted; In permitting Hargrove to break away; in chasing Hargrove after his escape; and in “chasing, grabbing and combating” with Hargrove within the aisles of the “store where plaintiff was then standing * * * and while said store and the aisles in said store were occupied with patrons and shoppers, including the plaintiff herein.”

A jury in the trial court returned a verdict for the defendant; and, from the judgment rendered thereon, Mrs. Scott appeals to this court, saying:

“1. The verdict of the jury is contrary to the evidence and manifestly against the weight of the evidence.

“2. The verdict of the jury is contrary to law.

“3. The court erred in refusing to give plaintiff’s written request to charge before argument No. IV.

■ “4. The court erred in refusing to give plaintiff’s written request to charge before argument No. V.

“5. The court erred in its general charge on questions of law raised by the pleadings and by the evidence.

“6. Other errors manifest upon the face of the record.”

This court cannot arrive at a unanimous conclusion that the verdict of the jury is manifestly against the weight of the evidence. There is evidence to indicate that Mrs. Scott was not bumped, pushed or struck by anyone, and that she suffered no physical injury. The jury, with all of the conflicting testimony properly before it, could very easily have adopted the view that Mrs. Scott suffered from a weak heart, and, as a result of the excitement of the struggle, which took place a few feet from her, became ill.

The appellant, Mrs. Scott, says that the trial court erred to her prejudice when it refused to give the jury two special requests before, argument. These requests were as follows:

“IV. The mere fact that the intervention of a responsible human being can be traced between the defendant’s alleged .wrongful act and the injury complained of does not absolve him upon the ground of lack of proximate cause, if the injury ensued in the ordinary course of events and if the intervening cause was set in motion by the defendant, or could be set in motion by him.

“V. I charge you also that where a person is wrongfully injured at the hands of two or more persons acting in concert, or acting independently but concurrently in causing a single injury, each of the wrongdoers is severally liable to such person for the full amount of the damage occasioned thereby; and the person injured may enforce his claim therefor in an action .against all of them jointly, any one of them severally, or any number of them less than the whole.”

An examination of the facts of the instant and similar cases will determine the right of the trial court to refuse to charge on the question thus presented. We do not need to analyze each charge with respect to its legal sufficiency.

There are not many cases in which a similar factual situation has arisen. There is, however, a collation of cases in 20 A. L. R. (2d), 8, wherein the liability of a proprietor for injury to a customer or patron caused by pushing, crowding and striking by other patrons is discussed.

This court heretofore, in the case of Campbell v. Hughes Provision Co., 87 Ohio App., 151, 94 N. E. (2d), 273 (affirmed, 153 Ohio St., 9, 90 N. E. (2d), 694), quoted, with approval, American Jurisprudence as follows:

“1. It is said in 38 American Jurisprudence, Negligence, Section 131:

‘ * ‘ The proprietor of a store, shop, or other place of business kept open for public patronage is not under an insurer’s liability as to the safety of persons who come thereon, but he does owe to customers who enter the premises, while the establishment is open for business, the duty of exercising ordinary care to keep the aisles, passageways, and such other parts of the premises as are ordinarily used by customers in transacting business in a reasonably safe condition for use by the persons thus entering, and to warn them of dangerous conditions upon the premises which are known, or which reasonably should be known, to him but not to them. This duty exists by reason of the fact that the customers enter the premises by the invitation, at least by the implied invitation, of the proprietor. ’

“And to the same effect are: 29 Ohio Jurisprudence, Negligence, Section 61; Cincinnati Base Ball Club Co. v. Eno, 112 Ohio St., 175, 147 N. E., 86; Lake Brady Co. v. Krutel, Admx., 123 Ohio St., 570, 176 N. E., 226; Englehardt v. Phillips, 136 Ohio St., 23, 73 N. E. (2d), 829.”

The appellee herein, Polsky’s, can only be held liable to Mrs. Scott if it was negligent in some respect and such negligence was the proximate cause of the injuries Mrs. Scott sustained. Those issues were questions of fact, to be determined by the jury from a consideration of all of the evidence.

Some of the reported cases outside of Ohio, where the question of customer-store owner relationship has been discussed, place liability upon the proprietor, where he adopts a method of dispensing scarce items in' such manner that a reasonably probable and foreseeable consequence would be injury to a customer, such as in Smith v. Kroger Grocery & Baking Co., 339 Ill. App., 501, 90 N. E. (2d), 500, 20 A. L. R. (2d), 1.

There are many reported cases dealing with the store owner’s liability wherein a customer injures another patron of the store by unexpectedly pushing a swinging or revolving door. Campbell v. Hughes Provision Co., supra. The general rule, with a number of cited cases, in such a situation is set out in Section 15 of the annotation in 20 A. L. R. (2d), supra, as follows :

“It has been stated as a general rule that when an injury occurring on the proprietor’s premises is the result of the negligence of a customer or customers, no liability attaches to the proprietor unless the circumstances are such that liability can be predicated on the theory of the existence of a dangerous condition known ■ to or foreseeable by him which he failed to take reasonable precautions to alleviate.”

In 38 American Jurisprudence, Negligence, Section 103, the general rule is set out that the proprietor of a store is not liable for injuries caused by a third person acting independently of such store owner.

A proprietor of a place of business is not an insurer of an invitee against personal injuries inflicted by other persons on the premises. The store owner is liable for his own negligence, but he is not liable for wrongful or negligent acts of third persons not under his control, which he could not reasonably have anticipated and guarded against. 29 Ohio Jurisprudence, Negligence, Section 130, and authorities cited; annotation under “4. Act of third person,” at p. 717 of 100 A. L. R., 710.

Even though we assume that Polsky’s employees were negligent in returning Hargrove to the store, and in chasing him down the aisles after he had escaped from them, yet, there is no evidence to show that Mr. Buck, the customer who blocked Hargrove, was acting for Polsky’s. There is no evidence to show that, when Silverman and Tate, the two Polsky employees who were pursuing Hargrove, arrived at the place where Mr. Buck had stopped the shoplifter, a struggle ensued, as a result of which struggle Mrs. Scott was injured. What Mr. Buck did was the act of a customer wholly independent of any authority from, or connection with, the Polsky store. Such conduct on the part of Mr. Buck could not reasonably have been foreseen by the store owner.

In the situation presented by the record herein, the rule of nonliability of a storekeeper for the act of the customer over whom the store owner has no control, must be applied.

We have examined cases from other jurisdictions, involving the question of responsibility of a proprietor where a customer is injured by reason of some act committed by another customer. The rule is stated in Noonan v. Sheridan (1929), 230 Ky., 162, 18 S. W. (2d), 976, where the court said, at p. 164:

“It is the general rule that an independent act of negligence by a third party is an occurrence which the defendant is not as a general rule bound to anticipate, and especially is this so where the independent act is the willful act of the third party. ’ ’

In Waugh v. Great Atlantic & Pacific Tea Co., 317 Mass., 230, 56 N. E. (2d), 465, the court, in a case where canned goods fell from the arm of a customer upon the foot of another customer, said :

‘ ‘ The plaintiff was injured not by any negligence of the defendant, bnt by the act of a third person which the defendant could not reasonably be expected to anticipate and guard against.”

And in a case with a factual situation similar to the instant case — Knight v. Powers Dry Goods Co., 225 Minn., 280, 30 N. W. (2d), 536 — the court found that the store owner was not guilty of negligence where a shoplifter, while being escorted to the manager’s office, broke away from the store employees who had apprehended him and ran down an aisle in an attempt to escape, and in doing so struck and injured a patron of the store.

In the case of Hughes v. Coniglio, 147 Neb., 829, 25 N. W. (2d), 405, a restaurant owner was held not liable for injuries sustained by a patron who was injured when two other patrons started a fight in the defendant’s restaurant.

In the case of Herbold v. F. W. Woolworth Co., 261 N. Y., 567, 185 N. E., 741, where a customer was knocked down by store employees engaged in a struggle with a shoplifter, the proprietor was held liable. Although no more than a memorandum opinion was written in that case, the apparent reason for holding the owner liable was that the injury was the direct result of the conduct of the employees.

In the instant case, there was no relationship between Mr. Buck, who apprehended Hargrove, and Pol-sky. He was not acting concurrently or jointly with the store owner. His act was separate, independent and unrelated. Polsky, in the situation presented herein, should not be expected to anticipate the unusual or abnormal conduct of said customer.

Hargrove returned to the store peaceably and willingly at the request of the store detective. There was no indication prior to his break for freedom that he would commit any unusual act. The facts do not disclose that Polsky’s was guilty of any negligence in the manner in which its employees conducted themselves in the situation which confronted them. Knight v. Powers Dry Goods Co., supra.

The trial court did not commit prejudicial error when it refused to give to the jury the special requests IV and V. These requests had no application to the instant case.

We have examined all the errors assigned by the appellant, Mrs. Scott, and find none prejudicial. The judgment of the trial court is affirmed.

Judgment affirmed.

Doyle, P. J., and Stevens, J., concur.