author: Skeel, J.

text:
    McGarry, d. b. a. McGarry Realty Co., Appellant, v. McCrone et al., Appellees.
    (No. 22925
    Decided March 10, 1954.)

      Mr. Paul Mancino, for appellant.
    . Mr. Robert E. Sweeney, for appellee.
   Skeel, J.

This appeal comes to this court on questions of law from a judgment for the defendants entered oh the verdict of a jury. The plaintiff’s action is one seeking a commission for the alleged sale of defendants’ residence located at 1312 Elmwood Avenue in Mayfield Heights.

The plaintiff is a licensed real estate broker. The defendants, desiring to sell their home, contacted plaintiff by telephone about November 26, 1952, and listed their property for sale at a price of $14,800. The plaintiff’s listing card shows the type and age of the house, the amount of taxes, that it was financed with a $9,800 first mortgage to the Capital Bank under G. I. and Federal Housing Authority loans, and that the house could be seen by appointment.

The plaintiff, through one of his sales people, showed the house to a Mr. and Mrs. Walick on November 27, 1952. Thereafter, on the next day, November 28, the plaintiff induced the prospective purchasers to make a written offer to buy the property for $14,000. This offer, which on its face showed a deposit-of $500 to apply on the purchase price if accepted by defendants, was presented to defendants the same evening by plaintiff. No money, however, accompanied the offer, the $500 referred to in the agreement being in the form of a cognovit' note made payable to “plaintiff on demand if offer is accepted.”

Before this offer was made the plaintiff 'and his sales representative were completely informed of the financial inability of the Walicks to purchase the property without help, a loan, or a gift of money from a sister of Mrs. Walick.

The record discloses that plaintiff’s sales representative testified.:

“Q. All right, you may answer the question. A.' They informed me that she had sufficient funds to buy it.
“Q. Where did they say they had it — in the bank? A. They told me they had it from some relative who was furnishing it,-whatever they needed. I tried to pin them down how much they had, and they wouldn’t tell me. I never take anybody out without asking them.”

The only property or funds of which they were possessed and had control of, so far as the evidence shows, was $1,000 in government bonds which matured in 1955. The plaintiff explained the cognovit note to defendants on the ground that the offer was’ made after banking hours when it was impossible to get the money. There is not a word of testimony in the record to justify or support this statement by the plaintiff.

The defendant testified as follows as to what took place when the plaintiff induced the defendants to accept the offer of Stephen and Dorothy Walick to purchase the property on the night of November 28, 1952:

“Q. What was said between you and Mr. McGarry and Mr. Mishaga at this time? A. Well, I figured that if I got an offer of $14,000 so quick maybe I should hold out for the $14,800 and Mr. McGarry said, 4 this is a fast deal and here are people with the money and you don’t know if you can get people with money right away this fast.’ And I thought it over and I wanted.to sell it and he told me Mr. and Mrs. Walick had $1,000 in bonds and they were going to get some money from some relative — he didn’t know what relative — and he said, ‘it looks like a good proposition^’'
if# # #
“Q. Wliat happened? A. I thought it over a little bit and hemmed and hawed,' and then I called my wife and said, ‘come on,, we’ll sign.’ So I signed it and said, ‘go ahead and sign it too.’ ”

The day following the accepting of the contract by the defendants, the purchasers called the plaintiff and told him that they could not get the money. There were then some further negotiations in which the plaintiff met with the purchasers and the defendant on December 5 or 6. This meeting ended by the purchasers walking out of plaintiff’s office because of the refusal of the plaintiff to permit a third person who had come with the Walicks to take part in the negotiations. This person was described by Mrs. Walick in her testimony as her brother-in-law.

In describing what took place on this occasion the defendant Frank McCrone, testified as follows:

“Q. Tell the court and jury what that conversation was about. A. Mr. McGarry said ‘they’re trying to back out. I bet he’s got a house he’s trying to sell them. This looks phony to me. We should sue them.’
“Q. Who should sue them? A. I should sue the Walicks. I said, ‘Well,’ I said, ‘if they haven’t got the money, there’s nothing I can do about it. Why sue them for the thousand dollars in bonds they’ve got? All I want to do is sell my house and sell it in a hurry.’ He said, ‘Think it over. I’ve got a commission coming.’ I said, ‘For what?’ He said, ‘I got you a buyer.’ I said, ‘You didn’t get me a bona fide buyer.’ I said, ‘If you can sell the house, go ahead and sell it and I’ll pay you your commission when you get me a buyer.’ I said, ‘I don’t want to sue those people, I just want to get my house sold. ’
“Q. Is that still your attitude? A. Still my attitude.
“Q. What else transpired? A. Well, I left. He said, ‘Think it over.’ I said, ‘I will.’ I think it was two or three days later he called me and said, ‘What are you going to do about it?’ I said, ‘I’m not suing.’ He said, ‘You’re not suing?’ And I said, ‘No.’ He said, ‘Well, I’ve got a commission coming and I’m going to collect.it.’ And subsequently I received a subpoena to appear here in court. ’ ’

As above indicated, the jury returned a verdict for defendants and from the judgment entered by the court on such verdict the plaintiff appealed, claiming the following errors:

“1. That the judgment of the court and the verdict of the jury is contrary to the law apd the evidence. .
“2. That the judgment herein is contrary to the weight of the evidence.
“3. That the court erred in refusing to enter a judgment for the plaintiff herein at the close of all the evidence.
‘ ‘ 4. That the court erred in refusing to render judgment for the plaintiff upon his motion for judgment notwithstanding the verdict.
“5. That the court erred in submitting the cause to the jury when both the plaintiff and defendant made motions for judgment at the close of all the evidence.
“6. That the court erred in giving before argument the special instruction of the defendant.
‘ ‘ 7. That the court erred ip refusing to give the two special instructions requested by the plaintiff before argument.
“8. That the court erred in its charge to the jury.
“9. The court erred in failing to enter judgment for the plaintiff for the reason that no valid defense was pleaded by the defendants or proven by the defendants herein.”

It is first contended by plaintiff that the defendants, fiaving admitted signing an agreement to sell their property to a prospective purchaser produced by the plaintiff, \gaiye any claim by tíie sellers that, such pur. chaser was not ready, willing and able to bny so that the broker, who was the procuring cause of such purchase agreement, having previously been employed by the sellers to find a purchaser, is entitled to his commission even though it is subsequently made to appear that such purchaser was, in fact, without sufficient funds or the means of getting funds with which to buy the property. The plaintiff relies on the cases of Carey, Admr., v. Conn, 107 Ohio St., 113, 140 N. E., 643; Scudder v. Wallace, 79 Ohio App., 48, 71 N. E. (2d), 308; and Lohr v. Ford, 94 Ohio App., 17, 114 N. E. (2d), 300.

The Carey case cannot be as broadly construed as is contended for by the plaintiff. The syllabus of that case provides as follows:

“Where a real estate agent or broker makes a contract with the owner of property ‘to find a buyer for his real estate at a commission of two per cent for his services’ and pursuant thereto performs such services by producing the buyer, and the owner enters into a written contract of sale with such buyer, the real estate agent or broker, in the absence of fraud, is entitled to his commission for his services.
“If the contract between owner and purchaser, for any reason, fails of performance, and the owner thereafter brings a suit in specific performance upon such contract against such purchaser, the agent not being a party thereto, the judgment in the suit for specific performance is not res adjudícala against such agent.”

The exceptions noted by the Supreme Court “in the absence of fraud” must be understood as including any overstepping or undue advantage taken of the seller by the broker, when viewed in the light of the high fiduciary responsibility owed by such broker to his employer or principal. This must be true and the obligations created by such fiduciary relationship are violated where the broker knows or is in a better position than the seller to know that the customer produced by the broker, with whom he induces his principal to enter into a contract to sell, is at that time without the necessary financial backing or the ability to control funds or credit sufficient and necessary to consummate such transaction and such transaction thereafter fails for that reason alone.

A licensed real estate broker is duty bound to make full disclosure, insofar as he has knowledge of the facts, of the limited financial status of one whom he procures and presents as a purchaser, together with the circumstances to be drawn from such financial limitations. The fact that before he can act as a real estate broker he must be licensed by the state, which license is issued only upon the demonstration of satisfactory character ana ability, imposes upon him the obligation to protect the best interests of his principal in inducing the principal to enter into a contract with a purchaser. A purchaser without the ability to finance the purchase is no purchaser at all. Where the only available source from which the greater part of the money is to come to make the purchase possible is, to the knowledge of the broker, admittedly in the ownership and possession of a third person, and its use in the interest of the purchaser is subject to the gratuitous consent of such third person who is in no way bound by or a party to the purchase agreement, such purchaser cannot be considered as one able to buy the principal’s property. Such funds cannot be considered as assets of the purchaser. In this case, where the only present controllable asset of the purchaser consists of $1,000 in government bonds maturing in 1955, which fact was known to the broker before he induced the principal to enter into an agreement of purchase with such purchaser, so that an action in specific performance would be useless and an action for breach of contract worthless, it would indeed be a harsh law that would make the seller liable to the real estate agent for the payment of a commission simply because he was able to induce the seller “-o enter into a contract with a purchaser who within the broker’s knowledge, by every test, is unable to buy the property.

In 12 A. L. R. (2d), 1428, Section 14, cases will be found where, in an exchange of real estate, the broker induces the seller to enter into a contract of exchange, which cannot be consummated because of want of title on the part of the purchaser, it is held that the broker has not earned his commission.

In the case of Butler v. Baker, 17 R. I., 582, 23 A., 1019, while the question here being considered was not directly involved-, the court said in effect that a broker engaged to procure a purchaser of realty cannot recover, though a contract of sale be signed, where the vendor relies wholly upon the broker’s judgment as to the purchaser’s financial ability and the purchaser turns out to be irresponsible.

Also, in the case of Williams v. Sodini (Mo. App.), 267 S. W., 81, it was held that where a broker knew that the purchaser he had procured was financially unable to carry out the contract, the broker could not recover his commission although a contract of sale had been entered into between the seller and the customer thus procured by the broker.

See, also, Martinson v. Hensler, 132 Minn., 437, 157 N. W., 714.

We find no Ohio case where this question has been clearly presented, but no principle of law has been more clearly affirmed by the courts of this state than that an agent should not be permitted to benefit by his own failure to perform his full duty in representing his principal.

In the case of Scudder v. Wallace, supra, the purchaser procured was well able to purchase the property, the court holding that a few days delay beyond the time fixed for closing the deal in no way justified the seller in refusing to consummate the purchase. The case holds also that the defendant therein had granted the broker an exclusive agency and that the resale of the store by defendant therein came within the period of such exclusive agency. Nowhere in this case is it even suggested that the agent produced a purchaser whom he knew was not in control of sufficient financial backing to consummate the transaction or to actually respond in damages for a breach of his promise.

In the ease of Lohr v. Ford, supra, the purchaser was somewhat delayed in securing a loan necessary to complete the sale. The defendant notified the purchaser that unless the sale was concluded by August 10 he would declare the contract void. One week later, the purchaser notified the seller he was ready to close the transaction but defendant refused performance. There, as in the Wallace case, supra, no question was presented that the broker had knowledge of the fact that the purchaser presented was without financial ability to carry out his offer to purchase, and in spite of such knowledge advised and induced his principal to enter into a written sales contract.

The question of the ability of the \Valicks to finance the purchase of defendants’ house was put in issue by the pleadings. The petition alleges that the plaintiff upon being employed to find a purchaser for defendants’ residence property, procured Stephen and Dorothy Walick. that defendants entered into a written contract with them to sell the premises for $14,000, and that a commission of $700 is now due the plaintiff. Defendants’ answer admits that plaintiff induced defendants to enter into a written agreement with the Walicks whereby the Walicks agreed to buy defendants’ residence property for $14,000. Defendants alleged also that the Walicks were not ready, willing and able to make such purchase but “exhibited their open and apparent inability to purchase said home.” This allegation of the financial inability of the Walicks to consummate such purchase, which was within the knowledge of plaintiff before he induced defendants to sign the contract, was denied by plaintiff’s reply. This issue of fact was for the jury, and by their verdict they must have resolved such issue against plaintiff. Such a verdict was not against the manifest weight of the evidence or contrary to law.

The plaintiff alleged also in his petition that his agreement with the defendants was “to find a purchaser” for defendants’ property, which claim is traversed by defendants’ general denial. There is very little evidence on this question in the record but wúat there is would indicate that plaintiff’s obligation under the listing agreement was to sell the defendants’ property, so that his obligations under the agreement would not be • fulfilled until the sale was completed.

At the conclusion of the taking of the evidence, the defendants moved for judgment, which motion was immediately overruled by the cpurt. The plaintiff then moved for judgment, which motion was likewise overruled. The plaintiff claims that both parties having moved fpr judgment without reserving the right to have the' case submitted to the jury, the court owed a legal' duty to dismiss the jury and decide the issues of fact and questions of law under the rule of the case of First National Bank v. Hayes & Sons, 64 Ohio St., 100, 59 N. E. 893.

The record is clear, however, that defendants’ motion had been overruled before plaintiff entered his motion for judgment so that the rule of the case of First National Bank v. Hayes & Sons, supra, does not apply,

The error complained of in the special charge given and refused before argument and the grounds of complaint against the general charge of the court, all have to do with whether the pleadings and evidence presented the question of whether the financial ability of the purchaser procured by plaintiff to purchase defendants’ property was or was not waived by reason of the written contract entered into between such purchasers and the defendants. It is the claim of plaintiff that by reason of the law of the Carey case, supra, plaintiff is entitled to his commission regardless of the fact that the record shows that the purchaser procured was without any financial ability to carry out the terms of the purchase agreement without assistance from a third person, which they had no legal right to command and which fact was known to plaintiff before he induced defendants to sign the sales agreement. This question has been fully considered under the first claim of error.

We hold that plaintiff was not prejudiced under these complaints of error. We find that substantial justice has been done the parties and therefore the judgment of the Common Pleas Court is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Deeds, J.

license: Public Domain

text:
    Jacobs, Appellant, v. Haggerty, Appellee.

      (No. 4698
    Decided March 9, 1953.)

      Mr. Stephen A. Mack, for appellant.

      Mr. Wayne E. Shawaker, for appellee.
   Deeds, J.

This is an appeal from a judgment of the Court of Common Pleas sustaining a demurrer and dismissing the petition of plaintiff, appellant herein, on the ground that the action was barred by the two-year limitation within which actions for damage to personal property may be commenced.

It is alleged in the petition that the action grew out of an automobile collision occurring in Lucas County on June 13, 1950, in which collision one Crequi was also involved: that Crequi commenced an action against the defendant, appellee herein, Haggerty, in the Court of Common Pleas of Lucas County, involving the collision, being cause No. 173334 in that court, and on motion of defendant Haggerty, plaintiff Jacobs was made a party defendant in that action, and that thereafter on January 29, 1952, Jacobs filed an answer and cross-petition against the defendant m that action on account of damages growing out of the collision. On the motion of defendant in that action, the answer and cross-petition of Jacobs were dismissed on October 16, 1952, for the reason that Jacobs could not seek damages against the defendant ;n that action.

This action was instituted in the Court of Common Pleas by .Jacobs on October 16, 1952, which was more than two years from the time the alleged right of action arose as a result of the collision on June 13, 1950.

The pertinent portion of Section 11233, General Code, is as follows:

“In an action commenced, or attempted to be commenced, if in due time a judgment for the plaintiff be reversed, or if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of reversal or failure has expired, the plaintiff or, if he dies and the cause of action survives, his representatives may commence a new action within one year after such date, and this provision applies to any claim asserted in any pleading by a defendant.”

It is clear that the action was not determined upon the merits. In addition to the facts above referred to, the petition of the plaintiff Jacobs in the Court of Common Pleas alleges that the defendant operated an automobile on June 13, 1950, from a parking lot adjacent to a public street into the public street, which it is alleged was a main thoroughfare, without keeping a lookout and in such manner as to negligently cause a collision resulting in certain alleged damage to the plaintiff Jacobs. It appears from the petition that the answer and cross-petition dismissed bv the court on motion of the defendant in cause No. 173334, was in attempt by the plaintiff Jacobs to assert his alleged right of action in that case, that the dismissal of the answer and cross-petition was not a determination on the merits, and that, therefore, the action here was timely commenced within the provisions of Section 11233, General Code.

This conclusion is in harmony with a number of Ohio appellate decisions interpreting Section 11233, General Code, and is supported by the decisions of the ■ Supreme Oourt of the state.

In Greulich v. Monnin, 142 Ohio St., 113, 50 N. E. (2d), 310, 149 A. L. R., 477, the first paragraph of the syllabus is as follows:

“Under the provisions of Section 11233, General Code, relating to the commencement of actions, in an action commenced, or attempted to be commenced, if •the plaintiff fails otherwise than upon the merits and the time limited for the commencement of such action ■at the date of failure, has expired, the plaintiff may commence a new action within one year after such dateU’

■In the opinion of the court, written by Chief Justice Weygandt, a statement pertinent to an interpretation of the Code provision with a view to preserving to a litigant the opportunity for a hearing on the merits of his cause, on page 116, is as follows:

“ But this court finds no basis for engrafting on this broad and unambiguous statute an implied exception that would produce the regrettable result of denying to some litigants the right to commence a new action after a previous one has failed otherwise than upon the merits. On the contrary, this court in the case of Pittsburgh, C. C. & St. L. Ry. Co. v. Bemis, 64 Ohio St., 26, 59 N. E., 745, held that this Section 11233, General Code, should be liberally construed in order that controversies shall be decided upon important substantive questions rather than upon technicalities of -procedure.”

In the case of Leithauser, Admr., v. Hartford Fire Ins. Co. (C. C. A. 6), 124 F. (2d), 117 (Certiorari denied-, 316 U. S., 663, 86 L. Ed., 1739. 62 S. Ct., 942), the federal court adopted the policy of a liberal construction of Section 11233, Genera) Code, as had been established by the decisions of the appellate courts of Ohio.

We therefore find that the Court of Common Pleas was in error in sustaining the demurrer and dismissing plaintiff's petition. The judgment is, therefore, reversed and the cause is remanded to that court for further proceedings in accordance with this opinion.

Judgment reversed.

Fess and Conn, JJ., concur.


author: Wiseman, P. J.

text:
    Mills et al., Appellees, v. Banks, Appellant.
    (No. 4999
    Decided September 24, 1954.)

      Messrs. Wiles & Doucher/ for appellees.

      Mr. James F. Little, for appellant.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Municipal Court of Columbus, entered in favor of the pláintiffs in an action for damages growing out of an automobile accident.

The assignments of error raise several questions which must be resolved adversely to defendant, appellant herein.

Opon the whole record we fail to find any prejudicial error committed by the trial court in overruling defendant’s motion to strike certain allegations from the petition. If the ruling of the trial court was erroneous, such error would not constitute ground for reversal unless substantial rights are prejudiced thereby. Section 11335, General Code. The plaintiff has failed to show wherein he has been prejudiced. Patterson v. National Cash Register Co., 52 Ohio App., 338, 3 N. E. (2d), 692. 2 Ohio Jurisprudence, 1213, Section 654.

It was not error to permit plaintiff’s driver to testify as to the speed of defendant’s automobile. The qualification of the witness to judge the speed accurately goes to the weight of the evidence, rather than to its competency. State v. Auerbach, 108 Ohio St., 96, 140 N. E., 507.

The plaintiff was a competent witness to testify as to the reasonable market value of her automobile before and after the accident. The owner of personal property has, by reason of the fact of ownership, a sufficient knowledge c its value to be qualified to testify regarding it. Detroit & Ironton Rd. Co. v. Vogeley, 21 Ohio App., 88, 153 N. E., 86.

We find no assignment of error well made.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


author: Collier, J.

text:
    Smith, Admx., Appellee, v. Spriggs, Appellant.
    (No. 617
    Decided May 26, 1954.)

      Mr. Emory Smith and Mr. Ernest G. Littleton, for appellee.

      Messrs. Blair & Watkins and Messrs. Kimble, Schapiro, Stevens S Earsha, for appellant.
   Collier, J.

The plaintiff, in the Common Pleas Court of Scioto County, Ohio, sued the defendants, Earl Spriggs and Berkley A. Reed, seeking redress for the wrongful death of her decedent, Warren Everett Smith. • The trial resulted in a verdict against both • defendants for the sum of $20,000, upon which judgment was rendered on the 9th day of May, 1953. From that judgment the defendant Spriggs appeals to this court on questions of law.

The evidence discloses the following facts: On February 26, 1950, the defendant Reed was operating a tractor and trailer outfit in a southerly direction on U. S. route No. 23, approximately five miles south of Chillicothe, Ohio. Plaintiff’s decedent, Warren Everett Smith, was driving an automobile in a northerly direction on route No. 23 at the same time. A collision occurred between the two vehicles and plaintiff’s decedent was killed.

The Reinhardt Transfer Company was the owner and holder of certain P. U. C. O. and I. C. C. permits. These permits extended upon a regular route from Bluefield, West Virginia, to Chicago, through the city of Portsmouth. The route from Portsmouth to Chicago, approved by the I. O. C. permit, and the only one over which traffic of the Reinhardt Transfer Company fróm Portsmouth to Chicago was permitted to travel, extended along U. S. route No. 52 to Cincinnati, thence by way of Indianapolis to Chicago.

The defendant Reed was the owner of a tractor, upon the doors of which were painted the P. U. C. O. numbers of the Reinhardt Transfer Company. The defendant Spriggs was the owner of a trailer upon which were painted the I. C. C. numbers of the Reinhardt Transfer Company. .The defendant Spriggs was authorized by the Reinhardt Transfer Company to transport to Chicago a certain load of steel, originating at the Detroit Steel Company in Portsmouth, Ohio. This load of steel was to be delivered to Chicago. The defendant Spriggs arranged a contract between Reed and the Reinhardt Transfer Company to haul the load of steel on the Reinhardt Transfer Company permits and loaded on the trailer of the defendant Spriggs. Reed was instructed to use the approved and authorized route above described. A portion of the gross proceeds was to be paid to Spriggs and a portion of that was to be paid to Reed for his services and the use of his tractor.

Reed was specifically instructed to call at the office of the Reinhardt Transfer Company in Chicago to ascertain whether there was a further load for him to haul for Reinhardt. Reed was specifically instructed also to return to Portsmouth, using the approved route through Indianapolis and Cincinnati to Portsmouth, and to do so immediately. He was not authorized to enter into any arrangements except with the approval of the Reinhardt Transfer Company.

Reed delivered his load to Chicago, called the Reinhardt Transfer Company there and found there was no further load for him to haul for Reinhardt at that time. He did not return to Portsmouth immediately, but remained in Chicago for approximately 48 hours.

In conversation with other drivers, Reed learned that the Ready Trucking Company had a load of steel to haul from Chicago to Dayton, Ohio. He entered into a written contract with the Ready Trucking Company without the knowledge, consent or approval of Spriggs and hauled this load from Chicago to Dayton under the I. C. C. and P. U. C..O. permits of the Ready Trucking Company. The permit numbers of the Ready Trucking Company were attached or pasted over the Reinhardt Transfer Company’s permit numbers on the tractor and trailer and remained on said tractor and trailer from the time Reed left Chicago until the collision occurred.

Reed was paid by the Ready Trucking Company for hauling this load to Dayton and Spriggs received no part of the profits. Spriggs had no knowledge of the contract between Reed and the Ready Trucking Company or that Reed had hauled the load from Chicago to Dayton until he was informed by the Highway Patrol that his. trailer had been involved in an accident on route No. 23 near Chillicothe.

Reed left Chicago with the Ready Trucking Company load for Dayton on Saturday morning, February 25. After unloading the steel in Dayton he proceeded, over U. S. route No. 35, to Chillicothe and started south on route No. 23, where the accident occurred on Sunday morning, February 26.

The appellant, Spriggs, sets forth 14 assignments of error. However, as we view the record, we consider it necessary to examine only one important question, and that is whether the evidence is sufficient to establish the fact that Reed was acting as agent for Spriggs in the scope of his employment at the time the collision occurred. If not, then the trial court erred in overruling Spriggs’ motions for a directed verdict which were timely interposed.

Whatever the relationship between Reed and Spriggs may have been, we are assuming agency in their joint enterprise during the time required to complete the project undertaken by them to haul the load of steel from Portsmouth to Chicago over the authorized route, to unload the same and return the tractor-trailer outfit to Portsmouth, Ohio, in accordance with instructions. The question presented is whether Reed’s deviation and departure from the route he was directed to follow is sufficient to remove him from his scope of employment and thus render Spriggs free from liability for Reed’s wrongful acts or negligence while so engaged on his own mission.

Plaintiff-appellee contends that Spriggs is liable in damages by reason of the single fact that he was engaged in the business of transportation by motor truck under federal and state permits; that public policy requires protection of third persons from injuries caused by the negligence of the drivers of such motor vehicles, without limitation, and regardless of the relationship of the parties carrying on such business. The case of Duncan v. Evans, 134 Ohio St., 486, 17 N. E. (2d), 913, is cited as authority for this contention. With this claim we are unable to agree. The Duncan case is easily distinguished from the instant case. The question of “deviation” is not involved in the Duncan case, which simply holds that a common carrier may not escape liability by delegating its duties to an independent contractor. Had the collision occurred while Reed was carrying out his orders in the completion of the task assigned to him, we would be confronted with an entirely different situation. To sustain appellee’s contention would do violence to the well-established principles of the law of agency.

The test of liability upon the part of the principal or master has been so generally recognized and applied by the courts that it would be futile to refer to the many authorities covering this phase of the law of negligence. Beginning with the case of the Lima Ry. Co. v. Little, 67 Ohio St., 91, 65 N. E., 861, it has been held as announced in paragraph two ©f the syllabus of that case as follows:

“The test of a master’s liability is not whether a given act was done during the existence of the servant’s employment, but whether such action was done by the servant while engaged in the service of, and while acting for the master, in the prosecution of the master’s business.”

The Supreme Court of Ohio has repeatedly followed the law announced in that case, the latest pronouncement being in Gulla v. Straus, 154 Ohio St., 193, 93 N. E. (2d), 662, where it is held:

“The owner of an automobile cannot be held liable under the doctrine of respondeat superior in an action for damages for injuries to a third person caused by the negligence of an employee of such owner in the operation of the automobile, unless it is proven that the employee, at the time, was engaged in his employer’s business and acting within the scope of his employment.”

See, also, White Oak Coal Co. v. Revoux, Admx., 88 Ohio St., 18, 102 N. E., 302; Braun v. Averdick, 113 Ohio St., 613, 150 N. E., 41; Bauman v. Sincavich, 137 Ohio St., 21, 27 N. E. (2d), 772; Jackson v. Frederick, 152 Ohio St., 423, 89 N. E. (2d), 645; Jakubek v. Coca-Cola Bottling Co., 72 Ohio App., 42, 50 N. E. (2d), 678; Skapura v. Cleveland Electric Illuminating Co., 89 Ohio App., 403, 60 Ohio Law Abs., 197; Jones v. Kay, 63 Ohio Law Abs., 481, 110 N. E. (2d), 33; Levis v. McGerty, 8 Ohio Law Abs., 281.

The Levis case, supra, is a Lawrence County case. The opinion by the late Judge Mauck holds:

“Owner not liable for negligencé of driver of truck unless driver was, at time of collision, agent or owner and operating truck in scope of employment.”

The case of Bauman v. Sincavich, above cited, is, in our opinion, decisive of the instant case. In that case, as in the case at bar, the plaintiff contended that, even if the driver had departed from his employer’s business, he was in the process of returning to the duties of his master. In the opinion, on page 23, the court disposes of this contention as follows:

“However, the manifest difficulty with this view of the matter is that at the time of the collision the driver still was almost two miles from the point of departure and had in no sense re-engaged in discharging his duties for his employer.”

In none of the above cited cases showing deviation has the departure of the employee from the regular course been as great as in the instant case. Reed was at least 20 miles from any point of the route he was directed to follow when the collision occurred. The record, considered in the light of these decisions, is absolutely devoid of any evidence to establish the fact that Reed was acting in the scope of his employment when the collision occurred.

Reasonable minds cannot reasonably conclude that Reed’s trip from Chicago to Dayton, thence by way of Chillicothe to Portsmouth, was under the direction or at the instance of Spriggs and for his benefit. It was undertaken by Reed and for his sole benefit. Under these circumstances, Spriggs owed no duty to third persons for the wrongful acts of Reed at the time and place of the collision and therefore the motion for a directed verdict made by Spriggs at the close of the evidence should have been granted. It is not necessary to consider the other assignments of error. The judgment is reversed and final judgment is entered for the defendant-appellant.

Judgment reversed.

Gillen, P. J., and McCurdy, J., concur.


author: Hildebrant, J.

text:
    The State of Ohio, Appellee, v. Browning, Appellant.
    (No. 7844
    Decided March 22, 1954.)

      Mr. C. Watson Hover, Mr. Melvin G. Rueger and Mr. Carl B. Rubin, for appellee.

      Mr. James C. Utrecht, for appellant.
   Hildebrant, J.

Defendant prosecutes this appeal on questions of law from his conviction, by a jury, of unarmed robbery of a wrist watch.

The version of the prosecuting witness, one Suit, is that after a late-hour snack of soup and buttermilk he purchased a beer and a bottle of wine in a cafe and then sat outside on the steps in the warm night; that two strangers were sitting near; that the police dispersed the group due to the lateness of the hour; that defendant and one Barnett followed him down the street trying to get him to open the bottle of wine; that in front of the entryway at 132 West 7th Street defendant struck him on the side of the head, knocking him down in the doorway and robbing him of his wrist watch; and that he followed the two men about three blocks when he called an officer, who apprehended them, and claimed he had been robbed of his watch. Other bits of Suit’s testimony are that he had voluntarily quit his employment at the Randall Company; that his cap was knocked off by the alleged assault; and that he had drunk some whiskey during the afternoon and about a quart of beer earlier in the evening.

Defendant’s version briefly is that Suit parted with possession of his watch to him as security for a loan of 60 cents to buy wine, which was to be repaid by a return and pawning of the watch the next day. There is no other testimony in the record as to how defendant came into possession of Suit’s watch.

Police officers testified to halting defendant and Barnett on the stop cry of Suit; that no effort to escape was attempted; that Suit’s cap was found at the site of the alleged assault; that they verified Suit’s purchase of the watch originally; that others, late idlers in the vicinity, were dispersed, at which time the officers emptied some wine in possession of the crowd; and that Suit had an unopened bottle of wine on his person both at the time of the dispersal and after the arrest of defendant.

On cross-examination of Suit, the record shows:

“Q. Isn’t it a fact, Mr. Suit, that you were discharged from Randall Company rather than quit? A. That didn’t have anything to do with this case.
“Q. Were you discharged or did you quit?
“Mr. Rubin: Objection.
“A. I quit.
“The Court: Objection sustained. That has nothing to do with this case.
< Í * * *
“Q. Mr. Suit, have you ever received psychiatric treatment?
“Mr. Rubin: Objection.
‘‘ The Court: Objection sustained.
“Q. Were you ever in the Veterans’ Administration Hospital, Mr. Suit?
“Mr. Rubin: Objection.
“The Court: Objection sustained.
“Q. Are you presently undergoing, psychiatric treatment, Mr. Suit?
“Mr. Rubin: Objection.
“The Court: Objection sustained.
“Q. Mr. Suit, have you ever accused anyone else of stealing anything?
“Mr. Rubin: Objection.
“The Court: Objection sustained. The jury will disregard all those questions.”
On cross-examination, police officer Wagner was asked with reference to Suit:
“Q. Did you notice any odor of alcohol on his breath?
“Mr. Rubin: Objection.
“The Court: Objection sustained.
“Q. Did you make any mental notation or was it obvious to you that Mr. Suit had been drinking that evening?
“Mr. Rubin: Objection.
“The Court: Objection sustained.”

Cross-examination of a witness is perhaps the most effective means devised by the law for discovery of the truth, and is an accepted universal right. The constitutional right of an accused in any criminal case to meet the witnesses face to face includes in its purpose the opportunity and right to cross-examine all the state’s witnesses, and the widest'latitude.known to the law is granted in criminal cases, where the life, liberty, and property of the accused are exposed to adverse and hostile witnesses. The texts state that in a criminal case this right should not be abridged, and that, since the credibility of a material witness is always in issue, the court may not disparage any effort made to impeach and discredit the witness within reason. The courts have gone so far as to hold that to deny the right of full and fair cross-examination as to a single question is manifest error.

Suit testified he voluntarily quit his previous employment with the Randall Company, so that the cross-examiner had a right to examine him as to the truth of that statement as reflecting on his credibility.

Defendant called as a witness the director of personnel relations of the Randall Company, whom the state conceded to be qualified as an expert in the field of industrial psychiatry. On direct examination, the record shows:

“Q. Would you state to the ladies and gentlemen of the jury what the circumstances surrounding his severing of relationship with the Randall Company were:
“Mr:Rubin: I object.
“The Court: Objection sustained,
“Mr. Utrecht: May I be heard for a moment?
(Counsel conferred with the court at the bench.)
“The Court: It’s immaterial.
“Mr. Utrecht: Proffer: The witness if permitted to answer would state that Lloyd Suit was discharged from the Randall Company.
i 6 # # #
“Q. And you were able to evaluate from a psychological standpoint * * *
“Mr.-Rubin: Objection.
“The Court: Objection sustained.
“Mr. Utrecht: Proffer: If the witness were permitted to answer he would answer ‘Yes.’
“Your Honor, I am going to have a lot of questions along this line.
“The Court: I think it’s all incompetent.
“Mr. Utrecht: Shall I read them to the reporter rather than bother the jury?
“The Court: There may be some that are competent. None of this is competent. We are trying the defendant.
“Mr. Utrecht: I think we are also trying the prosecuting witness.
“The Court: No, we aren’t.
“Mr. Utrecht: His credibility.
“The Court: No, we aren’t. It is immaterial.
“Q. At the time of Mr. Suit’s separation from the Randall Company what, if anything, was found in his locker ?
“Mr. Rubin: Objection.
“The Court: Objection sustained.
“Mr, Utrecht: Proffer: The witness if permitted to answer would testify approximately twelve or thirteen empty whiskey bottles.
“Q. During his course of employment did Mr. Suit ever have occasion to make false accusations of theft against any one?
“Mr. Rubin: Objection.
“The Court: Objection sustained. And the jury
will disregard that question.
“Mr. Utrecht: Proffer: The witness if permitted to answer would answer: Yes, once or twice.
“Q. To your knowledge, Mr. Zimmerman, has Mr. Suit ever had any psychiatric treatment?
“Mr. Rubin: Objection.
“The Court: Objection sustained. I think we ought to quit these questions. I think they are all incompetent.
“Mr. Utrecht: Proffer: The witness if permitted to answer would testify that Mr. Suit had told him that he had previous psychiatric evaluation at veterans hospital.
“Q. Mr. Zimmerman, have you ever noted or had occasion to note any psychiatric disturbances?
“The Court: Objection sustained. We will have to quit this line of questioning.
“Mr. Utrecht: I think I am entitled—
“The Court: I don’t think you are entitled to it at all. The jury will disregard these questions. You can take your exception.
“Mr. Utrecht: Proffer: The witness if permitted to answer would testify that Suit is a psychopathic personality and a chronic alcoholic. (Counsel held a discussion with the witness.)
“Mr. Utrecht: In addition to what he stated above the witness would further testify that the man is wholly unreliable. I am going to ask this for the record Your Honor.
“Q. On how many occasions did Mr. Suit report to work drunk or become drunk during the course of his duties with the Randall Company? A. (Proffer) In an intoxicated condition, due to his wavering and manner of speech, I would say in excess of twenty-four times, and that’s an understatement. Let the record show that there’s an objection to the question and it is sustained by the court.
“The Court: Yes.”
On direct examination of the defendant, the following appears:
“Q. Did you observe his condition with reference to sobriety?
“Mr. Rubin: Objection.
“The Court: Objection sustained. You have no more right to rob a drunken man than you have a sober man.
“Mr. Utrecht: That’s not the point, Judge, it’s the credibility of the prosecuting witness.
“Mr. Rubin: He is not entitled to testify as to the credibility of the prosecuting witness.
“Mr. Utrecht: Proffer: The witness if permitted
to answer would say, ‘Yes.’
“Q. Did you form an opinion as to his condition of sobriety?
“Mr. Rubin: Objection.
“The Court: Objection sustained.
“Mr. Utrecht: Proffer: The witness if permitted to answer woud answer ‘Yes.’
“Q. Was Mr. Suit drunk or sober?
“Mr. Rubin: Objection.
“The Court: Yes, it is a repetition of questions. Objection sustained.
“Mr. Utrecht: Proffer: If the witness were permitted to answer he would answer that Mr. Suit was drunk.”

The prosecuting witness and the defendant in this criminal case were the only two witnesses to testify directly as to the ultimate fact to be determined and dispositive of the case, namely, how the defendant came into possession of Suit’s wrist watch. The credibility of the prosecuting witness, therefore, takes .on an enhanced importance as an issue in the case. Evidence of his habits of sobriety, condition of sobriety at the time of the alleged robbery, his mental health, associations in life, similar accusations, and general habits in general could be quite pertinent as reflecting on his credibility and the probabilities of the conflicting versions of the parties.

The defendant was entitled to produce all such evidence available for consideration by the jury.

The rulings and comments of the court appearing from the record, as quoted above, appear to be inconsistent with the general charge of the court, as later given upon the subject of the jury’s function as to credibility of the witnesses and the probabilities of the case.

We, therefore, find that the cross-examination permitted the defendant was unduly restricted, that the proffered evidence referred to should have been admitted, and that it was prejudicial error to exclude the testimony.

No other error prejudicial to defendant appears of record.

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

Judgment reversed.

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


text:
    In re Appraisal of Certain Fire Losses: Rademaker, d. b. a. Rademaker Motor Sales Co., Appellant, v. Atlas Assurance Co., Ltd., et al., Appellees.
    (No. 22932
    Decided June 30, 1954.)

      Mr. George E. Rich and Mr. E. J. Ghesney, for appellant.

      Messrs. Arter, Hadden, Wyhojf & VanBuzer, for appellees.
   Skeel, J.

This appeal comes to this court on questions of law from a judgment of the Common Pleas Court of Cuyahoga County, entered on the application of the appellees to confirm an award of appraisers appointed to appraise the amount of a fire loss. The motion to confirm the finding of the appraisers was filed under authority of Section 2711.09, Revised Code.

The appellant, Len Rademaker, vas the owner of a garage building in Berea, Ohio, in which he conducted an automobile sales and repair business. The appellees each had contracts of insurance protecting the appellant against loss by fire damage to the building in the total sum of $56,000. On March 20, 1952, during the terms of the several fire insurance contracts, the building was damaged by fire and, thereafter, a claim for fire loss was filed with the insurance companies. The Western Adjustment Company was employed by the appellees to adjust the loss. After some negotiations which were not successful, the adjustor wrote a letter to Rademaker on May 26, 1952, enclosing an “agreement for submission to appraisers,” stating that they were asking to employ this method of determining the loss, as provided by the policies of insurance, because other efforts had failed. The adjustor followed this request by a letter of June 30, 1952, requesting the return of the appraisal agreement properly executed. On July 24, through Rademaker’s lawyers, the agreement for submission to appraisers was returned fully executed by the parties by which N. R. Wells and Howard Haag (the latter being named by Rademaker) were employed to appraise tbe fire loss. They selected Joe McKeon is umpire, as provided in the appraisal agreement. On August 18, 1952, the appraisers, by their agreement and without the need of the concurrence of the umpire, returned the appraisal as follows:

“Sound value (of building) $68,000; loss and damage (by fire) $14,189.58; building (no allowance for steel girder replacement). If final inspection of the Herron Company requires the replacement of steel roof girders, add the sum of $325 each.”

Rademaker refused to receive the amount found by the appraisers as the amount of the fire loss and on December 22, 1952, brought an action in Common Pleas Court to recover his actual loss and damages under his insurance contract, claiming damages as a result of the breach of the insurance contracts by these appellees in the sum of $67,000.

Thereafter, the appellees filed their motion on January 22, 1953, in an original proceeding, claiming the right to do so under Section 2711.09, Revised Code, praying that the court confirm the award and that judgment be rendered in conformity therewith.

Upon hearing, the court entered judgment in favor of the appellant against appellees in the total sum of the appraised value agreed upon by the appraisers, that is, in the sum of $14,189.58, the costs being adjudged against Rademaker. No interest was provided for and the amount of the award has not been tendered in court.

The appellant claims the following errors:

“1. The trail court erred herein in refusing the request of appellant herein for trial by jury.

“2. The trial court erred herein by denying the appellant the necessary time to present the evidence and witnesses necessary to support his allegations in a trial room of the court rather than in court room No. 1, which is the ‘emergency’ room of said court.

“3. The trial court erred herein in denying the appellant’s application to vacate alleged award.

“4. The trial court erred herein in granting the motion of the five insurance companies to confirm the so-called award made by so-called arbitrators.

“5. The trial court erred herein in denying the request of appellant to have an official court stenographer present at the entire hearing hereof.

“ 6. * The trial court erred herein in overruling the appellant’s motion for new trial.

“7. The trial court erred herein in overruling the various objections and motions taken herein by appellant.

“8. The trial court by its rulings and findings foreclosed the right of this appellant to have his full and proper day in court and to have his evidence and witnesses heard and seen both by the court and a jury.”

The record discloses that in the appellant’s opening statement he claimed that the appellees’ adjustors delayed in carrying on negotiations so that he employed two competent appraisers who appraised the fire loss in the neighborhood of $37,000; that, thereafter, the appellees’ adjustors offered to pay $23,500, which appellant refused; that it was then agreed the loss should be appraised as provided in the policy, with a minimum loss of $23,500; and that upon these conditions, the appellant signed the “agreement for submission to appraisers.”

The evidence fails, however, to show what reports the appellant received from his independent appraisers, but .it does disclose that the appellees ’ adjustors offered to settle the loss for $23,400 or $23,500, which, when refused, the agreement for submission to appraisers was requested. There is no evidence that the appraisers were to be concerned with the amount of appellees’ offer as a minimum loss figure.

There is no dispute that appellant signed the agreement for submission to appraisers, and that there is no minimum loss figure contained in the agreement. Just what the terms of the policies of insurance are with respect to such agreement is not disclosed by the record. The policies were not introduced into evidence. Whether such an agreement was to conclude the rights of the parties in determining the loss when a claim was made because of a fire is not shown in the record. ,

In the last paragraph of the agreement it is in part provided:

“* * * It is expressly understood and agreed that the sole purpose of this agreement and the appraisal herein provided for is to ascertain and fix the aforesaid amounts of the sound value and loss and damage of and to the property aforesaid, and this agreement and said appraisal shall not determine, waive, or in any wise affect any question of liability to first party, or any right of any subscriber of this agreement, except to fix the amounts of said sound value and loss and damage.”

It is clear from the foregoing provision that there was no fixed obligation on the part of the appellees to pay the amount found by the appraisers as damages to appellant’s property, because of the alleged fire. Unless, therefore, the insurance contracts, which are not in evidence, contained provisions binding the parties to abide the amount determined by the appraisers, there could be no legal obligation on the part of the appellant to be absolutely bound thereby.

This action was filed under what is now known as Chapter 2711, Revised Code, entitled “Arbitration.” This chapter defines one of the special remedies provided for in Title XXVII [27].

Section 2711.01, Bevised Code, in part, provides:

“A provision in any written contract, except as provided in division (A) of this section, to settle by arbitration a controversy thereafter arising out of such contract, or out of the refusal to perform the whole or any part thereof, or any agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract * * *.”

It is to be noted that this section provides for the arbitration of controversies arising out of a written agreement. There is no provision in this section dealing with an agreement to appraise a claimed loss.

Bouvier’s Law Dictionary defines an arbitration as:

“The investigation and determination of a matter or matters of difference between contending parties, by one or more unofficial persons, chosen by the parties, and called arbitrators or referees.”

The sections following the one just quoted in part, that is, Sections 2711.02 to 2711.08, inclusive, Bevised Code, provide for staying a suit or proceeding brought upon an issue under an agreement in writing which is referable to arbitration, until such arbitration has been had, for the enforcement of an arbitration agreement, for the appointment of arbitrators by the court in certain cases, that applications shall be heard the same as is provided by law for hearing motions, except as otherwise provided; define the duties of arbitrators, including the subpoening of witnesses; grant the power to administer oaths or affirmations to witnesses; fix time for hearing; grant the power to take depositions, and the like; and provide that awards must be made in writing.

No such, powers are conferred by law upon appraisers appointed under contract to determine the award of a fire loss.

Section 2711.09, Revised Code, which is the provision under which the appellees claim the right to this special proceeding, provides as follows:

“At any time within one year after an award in an arbitration proceeding is made, any party to the arbitration may apply to the Court of Common Pleas in the county within which such award was made for an order confirming the award. Thereupon the court shall grant such an order unless the award is vacated, modified, or corrected as prescribed in Sections 2711. 10 and 2711.11 of the Revised Code. Notice in writing of the application shall be served upon the adverse party or his attorney five days before the hearing thereof.”

The right to seek an order confirming an award deals with an award of an arbitrator or arbitrators acting within the provisions and under the powers conferred by this section. This section does not include within its provisions the right to confirm the findings of appraisers.

The Supreme Court in the case of Royal Ins. Co. v. Ries, 80 Ohio St., 272, 88 N. E., 638, held in the second paragraph of the syllabus:

“2. The provision in a standard fire insurance policy that ‘in the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and distinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss; the parties thereto shall pay the appraiser respectively selected by them and shall bear equally all expenses of the appraiser and umpire,’ is a provision for an appraisement and not for an arbitration, and such submission is not to be judged by the strict rules applicable to arbitration and award, and where the appraisers and umpire have before them a list of the property destroyed, and the insured’s statement in detail in respect to his loss, it is not ground for setting aside the appraisement that they refuse to hear evidence. ’ ’

In the opinion, on page 283, the court said:

“The distinction between an agreement for appraisement and an agreement to submit to arbitration may not always be plain. But when the question of the liability of the company under the policy, and every other question is reserved, and the only submission provided for is an appraisal of the property at and after the time of the fire to determine the single question of the amount of the loss, it would seem to be an agreement for an appraisement and not an arbitration. In Fleming v. Phoenix Assurance Company of London, 75 Hun, 530, where the policy contained an identical provision, Dykman, J., says: ‘ They are appraisers and not arbitrators. Their function is to estimate and appraise the loss by personal examination and observation. They have no power or authority to take testimony, and their doing so is not contemplated.’ We think this must have been what the parties contemplated, and if it was intended that the single question of the amount of the loss should be determined by an arbitration, and not by appraisal by appraisers, that the agreement should have so provided. ”

In the case of Saba v. Homeland Ins. Co. of America, 159 Ohio St., 237, 112 N. E. (2d), 1, the Supreme Court only held that, under a contract for the appointment of appraisers in case of disagreement of loss under a fire insurance policy, the policy of the state, exemplified in a sense by the chapter on arbitration, is that a court of record is vested with power to appoint an umpire when the insurer refuses to appoint an appraiser under the policy agreement. The court did not hold that said chapter dealing with arbitration (Chapter 2711, Revised Code) was applicable to or provided the procedure for confirming by judgment upon motion the report of appraisers under appraisal agreements. And in the dissenting opinion by Hart, J., at page 251, he says:

“In Ohio, as well as in many other states, there exists an arbitration act or arbitration code which gives some court of general jurisdiction authority to require compulsory performance of a pure arbitration agreement as distinguished from an appraisal. In this state, a written contract to arbitrate, with certain exceptions, may be enforced by compulsory orders of the Common Pleas Court having jurisdiction over a party failing to perform the agreement, and such court may require him to appoint his appraiser in accordance with the procedure provided in the contract, if so provided, or otherwise if not so provided, and the court may then confirm, modify, or vacate the award of the arbitrators when made, and enter judgment thereon. See Sections 12148-1 to 12148-16, inclusive, General Code. Although there is a similar statute in at least one state relating to ‘appraisals’ (See Glidden Co. v. Retail Hardware Mut. Fire Ins. Co., 181 Minn., 518, 233 N. W., 310, 77 A. L. R., 616, affirmed, 284 U. S., 151, 76 L. Ed., 214, 52 S. Ct., 65), there is no such statute in Ohio, and in my opinion this arbitration act can have no application here. The writer of this dissent has made search of the authorities on this subject and is unable to find any case in which the procedure adopted in this case, namely, the appointment of an umpire before the two appraisers were appointed, has been attempted or remotely followed. ’ ’

We must conclude, therefore, that there is no provision of law in Ohio, statutory or otherwise, whereby in a special proceeding without summons or pleadings, the Common Pleas Court can be called upon to confirm the amount of a fire loss and enter judgment therefor, based on the finding of appraisers appointed by agreement to determine the amount of the loss. If the legality or conclusions of the appraisal here being considered are to be the subject of judicial proceedings they must be presented in a case wherein the issus are presented by pleadings as provided by law. In such case issues may be presented upon which a jury trial could be demanded. The court in this proceeding was without jurisdiction to enter a judgment on motion for confirmation of the amount agreed upon by appraisers under the provisions of Section 2711.09, Revised Code.

Whether fraud can be established by virtue of the wide discrepancy between the offer to settle the claim of $23,500 and the finding of the appraisers that the total loss was only $14,189.58, or that the award was so far from the real loss as to establish an abuse of discretion or lack of honesty of purpose or fairness in dealing with the powers conferred upon the appraisers by the contending parties need not be considered here, although such claim is not without merit. We are here concerned only with the power of the court to enter judgment on the motion.

For the foregoing reasons, the judgment of the trial court is reversed and final judgment is entered for the appellant.

Judgment reversed.

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


author: Matthews, P. J. Ross, J.

text:
    Cramer et al., Appellants, v. Fischer Bakery Co., Inc., Appellee.
    (No. 7723
    Decided May 18, 953.)

      Messrs. Petermann, Calhoun S McPherson, for appellants.

      Mr. Elmer E. Strasser, for appellee.
   Matthews, P. J.

The plaintiffs seek in this action to recover from the defendant for damage done through its negligence to an automobile, title to which the plaintiff Cramer held under the sole title certificate which “under the plain and unambiguous language of Section 6290-4, General Code,” can be recognized by any court as conferring any right, title, claim or interest. They introduced in evidence the certificate of title which in form and substance conformed to all the requirements of the law. They also introduced evidence which was nncontradicted that the damage to the automobile was the direct result of defendant’s negligence in failing to yield the right of way at a street intersection. They further introduced evidence of the reasonable cost of repairing the damage which is an approved method of proving the difference in-value immediately before the damage and the market value immediately after in the damaged condition, which difference is the measure of damage. 4 Ohio Jurisprudence, 845, Section 262.

Yet at the close of the plaintiffs’ evidence the Municipal Court sustained the defendant’s motion for an instructed verdict and entered judgment in its favor. On appeal, the Common Pleas Court affirmed the judgment, and the cause is before this court on appeal from that judgment of affirmance.

It is necessary to go more fully into the evidence to bring into sharper focus the issue in this case. For the purpose of proving title, the plaintiff Cramer took the witness stand. For the purpose of proving defendant’s negligence, the plaintiff called Arlie Hager, who was operating the automobile for which Cramer held the certificate of title. They testified on direct examination, as already noted, and in addition Cramer testified to the execution of the subrogation agreement with the plaintiff Service Fire Insurance Company and the assignment of the claim ($481.89) less $50 to it. It was the facts developed on cross-examination of these two witnesses that caused the Municipal Court to sustain the defendant’s motion for an instructed verdict and to enter judgment in its favor. .

Over the plaintiffs’ objection, the Municipal Court permitted the defendant to cross-examine Cramer and Hager as to their beneficial interest in the automobile. As a result it was developed that for some reason, not disclosed, Hager arranged with an automobile dealer for the purchase of an automobile, and by and with the consent of Cramer to have the title transferred to the latter. Hager made a part payment at the time, the certificate of title was issued to Cramer and he signed the mortgage to secure the deferred payments and the insurance was arranged by the seller upon the automobile as the property of Cramer. However, the automobile was delivered to Hager, who continued to have exclusive possession of it at all times, made the deferred payments as they came due and paid the $50 which was exempted from the insurer’s liability. After the collision, Cramer signed the proof of loss and, upon settlement by the plaintiff insurance company, signed the subrogation and assignment document.

After all these facts were developed Cramer was asked on cross-examination:

‘ ‘ Q. Have you been damaged in any way as result of this accident?” To which he answered: “I have not,” which was the witness’ mere legal conclusion from the facts established on cross-examination.

It was upon this answer that the court concluded that as plaintiff admitted he had not been damaged he could recover nothing. In our view, this is an entirely unjustified interpretation of this record and goes counter to well known and fundamental legal principles.

The plaintiff had the only title recognized by the law as creating any right or title to the automobile. It is true that he paid no consideration unless obligating himself on the note and mortgage be so regarded. He was the holder of the dry legal title, and were it not for the prohibition of Section 6290-4, General Code, Hager could have disregarded it and sued in his own name. The automobile was damaged, resulting in depreciation of its value. His right or title was reduced proportionately. The fact that Cramer had an arrangement with Hager and the insurance company is entirely irrelevant. On this subject, it is said in Criez v. Sunset Motor Co., 123 Wash., 604, 213 P., 7, 32 A. L. R., 627, at 609:

“It appears that respondent had purchased this machine under a conditional sales agreement reserving title in the vendor. The vendor had insured the car against accidental damage, and after this accident occurred the vendor collected from the insurance company on its policy the sum of $400, which was credited upon the contract, reducing by that sum the amount which respondent had agreed to pay. Appellants contend that, under the judgment appealed from, respondent has been allowed the full value of the car and, through the credit of the insurance money, has received a bonus or profit of $400 in addition. In Stotts v. Puget Sound Tr., L. & P. Co., 94 Wash., 339, 162 Pac., 519, L. R. A. 1917D, 214, a conditional vendee was held to be in the same position as a bailee and entitled to maintain an action against one who had damaged the property in his possession, to the extent of its full value. In Alaska Pacific Steamship Co. v. Sperry Flour Co., 94 Wash., 227, 162 Pac., 36, it was squarely held that the fact that the injured party was compensated by insurance was of no concern to the one causing the injury and his liability was in no way lessened thereby.”

And in the annotation, at page 632 of 32 A. L. R., it is stated:

“A wrongdoer will not be permitted to benefit by payments made to the injured person from collateral sources, whether in compensation or as gratuities; nor will the payment of insurance moneys, to which the wrongdoer does not contribute, be considered in estimating the damages.”

See, also, Bader v. Marlin, 160 Wash., 460, 295 P., 160, 78 A. L. R., 914; 5 American Jurisprudence, 828, Section 587; and 61 Corpus Juris Secundum, 143 and 144, Section 500.

It should be noted that in the case of Barnhill v. Brown, 58 Ohio App., 188, 16 N. E. (2d), 478, decided several years after the enactment of the “Certificate of Title Act,” without, however, mentioning that law, the court held that notwithstanding the owner of an automobile had received from the insurer a part of his loss, he could recover the full amount of the damage and that while the insurer was a proper party, it was not a necessary party, quoting at page 195 from 14 Ruling Case Law, 1410, Section 574, as follows:

“* * * The assured may bring an action in his own name against the wrongdoer, and recover the full amount of the loss, holding the proceeds, so far as the insurer is subrogated, as a trustee, and it would seem that the insured owner is the only proper party to recover damages from the wrongdoer.”

As both the insured and insurer are joined as co-plaintiffs in the action at bar, it would seem that the condition (absence of insurer) that occasioned the debate in Barnhill v. Brown, supra, is absent and their right to maintain the action is invulnerable to attack. In passing it is worthy of note that the court pointed out that if the insurer was not made a party to the action, the insured would hold in trust the part of the recovery for which he had been indemnified for the benefit of his indemnitor.

It seems to us that in addition to the clear intent of the statute that all the analogies of the law lead to the conclusion that the holder of the certificate of title (the legal title) to the automobile, and, therefore, the owner of the chose in action resulting from its damage, can maintain this action. The fact that he may be under an obligation to account to some one for the proceeds is no impediment. It is familiar law that a trustee must account to his cestui que trust. A bailee can recover the full damage to the property and must account to the bailor for the amount to which he is entitled.

It would seem that to hold that the plaintiff can not recover would result in the defendant’s escape without having its liability tested in this or any other action. If Hager sued he would be met at once by the objection that he did not have any title recognized by the law. The soundness of the objection is beyond cavil under the statute and the cases interpreting it. Mielke v. Leeberson, 150 Ohio St., 528, 83 N. E. (2d), 209, 7 A. L. R. (2d), 1342, and Kelley Kar Co. v. Finkler, 155 Ohio St., 541, 99 N. E. (2d), 665.

For these reasons, we are of the opinion that the Municipal Court erred in sustaining the defendant’s motion for an instructed verdict at the close of the plaintiffs’ evidence. One of the defenses was that Hager — the beneficial owner — was negligent in the operation of the automobile that was damaged, and that such negligence caused or contributed to the collision. As Cramer would be required to account to Hager for any amount recovered by him, he and his subrogee could have no greater right. We are of the opinion that the negligence, if any, of Hager would preclude a recovery by the plaintiffs.

For these reasons, the judgment is reversed and the cause remanded to the Common Pleas Court with instructions to remand the cause to the Municipal Court for further proceedings according to law.

Judgment reversed.

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

Ross, J., dissents.

Ross, J.

In a jury trial in the Municipal Court of Cincinnati, at the conclusion of the evidence for the plaintiffs, judgment was entered for the defendant. An appeal to the Court of Common Pleas of Hamilton County resulted in affirmance of the judgment.

William A. Cramer, one of the plaintiffs is the assured of his coplaintiff, Service Fire Insurance Company. In their bill of particulars, it is alleged that the defendant Fischer Bakery Company, through the sole negligence of one of its employees in the operation of a truck, damaged the automobile of Cramer to the extent of $481.89, and that such vehicle depreciated in value to the extent of $490. It is further stated that Cramer’s automobile was being driven by one Arlie Hager. Service Fire Insurance Company alleges that there has been assigned to it for a valuable consideration a portion of Cramer’s claim in the sum of $431.89. The plaintiffs prayed judgment for $481.89 against the defendant.

The defendant in its answer admitted the collision of the vehicles and denied any fault on its part. Defendant further admitted that both vehicles were damaged as a result of the collision, and for want of knowledge denied the assignment to the insurance company.

For a second defense, defendant charged that the plaintiff Cramer was not the real party in interest, and is not the complete owner of the vehicle involved.

For a third defense, the defendant charged contributory negligence against Hager, the driver of plaintiff’s car.

From the evidence it appears that Hager was a minor and wished to purchase the automobile in question ; that Cramer agreed to sign the necessary papers to enable Hager to get legal possession of the automobile. Hager paid all expenses incident to acquiring possession of the automobile and Cramer’s sole connection with the automobile was to take title in his name and sign and execute certain papers incident to financing the transaction. Hager was driving the automobile which was to all intents and purposes his vehicle.

The policy of insurance issued by Service Fire Insurance Company to Cramer had a $50 deductible collision clause. The cost for repairing the automobile was $481.89. Hager paid $50 of this amount and Service Fire Insurance Company paid the balance, $431.89, and took an assignment for this amount from Cramer, the certificate of title holder.

Evidence was introduced pro and con as to the respective negligence of Hager, the operator of the automobile, and the driver of the truck, the employee of defendant.

The trial court sustained a motion for judgment at the conclusion of the plaintiffs ’ evidence on the theory that Cramer had a mere bare title to the automobile, had suffered no loss by reason of the injury thereto, and in fact had so stated on the witness stand.

In the consideration of this appeal, this court is confined to the record, to the pleadings as they existed at the time of the trial, to the evidence, and particularly to the statements and admissions of Cramer when giving his testimony at the trial. We are not permitted to reframe the case, substitute pleadings or present an action which was not before, or considered by, the trial court. The issues created by the pleadings included the question of loss to the plaintiff Cramer and the effect of the assignment to the plaintiff insurance company if Cramer suffered no loss. Other issues could not be reached when it became certain -that Cramer had suffered no loss.

The plaintiffs rely upon such cases as Mielke v. Leeberson, 150 Ohio St., 528, 83 N. E. (2d), 209, 7 A. L. R. (2d), 1342, and Kelley Kar Co. v. Finkler, 155 Ohio St., 541, 99 N. E. (2d), 665.

The effect of these cases is best expressed in the conclusion of the opinion in the Mielke case, supra, where it is stated:

“In our view of the case, since there was evidence of plaintiff’s ownership, although such evidence can never be sufficient without the production of a certificate of title, the proper procedure is a reversal and a remanding for a new trial.” (Emphasis added.)

Neither the provisions of Section 6290-4, General Code, nor the cases just mentioned have any bearing upon the principle, as old as the common law itself, that proof of loss is an essential element of the plaintiffs ’ case, where the cause of action is based thereon.

It is not a proper function of this court to suggest other proper courses of action which might be open to the parties.

It is the opinion of the writer that the judgment of the Court of Common Pleas should be affirmed.


author: Miller, J.

text:
    Bright, Appellant, v. Calvert Fire Ins. Co., Appellee.
    (No. 5092
    Decided October 22, 1954.)

      Messrs. Brownfield, Ford é Douglas, for appellant.

      Messrs. Wiles <& Doucher, for appellee.
   Miller, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court rendered upon an order directing a verdict for the defendant at the close of the plaintiff’s case. The action was brought by the appellant to recover on a policy of insurance issued by the appellee covering a truck owned by the appellant. The loss of the truck by fire is well established, but the payment of the loss was refused upon the ground that the truck was used in violation of the limitation of use endorsement on the policy. A copy of the endorsement, offered in evidence by the appellant, showed that the use of such truck was limited to a radius of fifty miles. The evidence discloses that the truck was used in violation of this limitation, but the appellant urges that an employee of the Commercial Credit Plan, Inc., an affiliate of Commercial Credit Company, which held a mortgage on the truck, informed the appellant immediately after the loan was made and the mortgage executed that the truck had full coverage.

The question presented is whether the finance company was an agent of the insurance company with authority to bind it under Section 644, General Code. The appellant urges that it was such an agent under the provisions of Section 9586, General Code, or under the common law and attempted to show a course of conduct between the finance company and the appellant in order to establish the agency.

No direct evidence was offered as to the procedure at the time the application for the insurance was made. The course of conduct relied upon to establish the agency is the manner in which the business was carried on between the finance company and the insurance company. Prom this custom it appears that when a mortgagor had no insurance on the mortgaged property the finance company would secure the necessary information from the mortgagor and forward snch information directly to the insurance company, the defendant herein, which issued the policy of insurance and forwarded it to its licensed agent who would forward it to the insured. The premium was computed by the finance company, added to the amount of the loan and eventually paid by the mortgagor, but the finance company made the payment to the insurance company. Appellant cites Massachusetts Life Ins. Co. v. Eshelman, 30 Ohio St., 647; Blumenschien v. The Maccabees, 83 Ohio App., 283, 83 N. E. (2d), 634; and Lind v. State Auto. Mutual Ins. Assn., 128 Ohio St., 1, 190 N. E., 138, for the purpose of showing that under certain circumstances an agency may be established by showing a course of conduct. We have examined these cases and think they can have' no application to the case at bar, as pointed out by the trial court, for the reason that under the terms of the mortgage the “mortgagee or mortgagee’s assignee, as a creditor of the mortgagor, is authorized to purchase any and all such insurance at the mortgagor’s expense. ’ ’ The policy further provides:

“The insured under this policy is the above named insured and Commercial Credit Company and/or affiliated companies and/or subsidiaries. Any loss hereunder is payable to the insured.”

Now, since the finance company was one of the insured parties and authorized to procure the insurance, if it did so it would be acting as a principal and not as an agent. It could not be both for the two positions are incompatible. Therefore, the provisions of Section 644, General Code, can have no application to the facts in this case.

It should be noted that the appellee herein had no license-to conduct an insurance business and under the provisions of Section 644-3, General Code, one could not lawfully be granted to it. In the case of Motors Ins. Corp. v. Robinson, 106 N. E. (2d), 581, this court affirmed the Common Pleas Court (106 N. E. [2d], 572) which held that insurance license statutes forbid the granting or renewing of licenses to sell insurance where the principal use of the license is to effect insurance upon the property of the licensee, or of his relatives, employers, employees, or for which licensee, his relatives, employers, or employees are agents, custodians, vendors, bailees, trustees or payees.

For the reasons previously given the doctrine of estoppel urged by the appellant can have no application to the case at bar.

We have examined the well considered opinion of the trial judge and are in full accord with the reasons advanced by him for sustaining the defendant’s motion at the close of the plaintiff’s case.

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

Judgment affirmed.

Wiseman, P. J., and Hobnbeck, J., concur.


text:
    LaFerier, Appellant, v. Garey, Appellee.
    (No. 4776
    Decided May 24, 1954.)

      Mr. Hyman 8. Topper, for appellant.

      Mr. Harold T. Hanley, for appellee.
   Deeds, J.

This is an appeal on questions of law from a judgment of the Juvenile Court of Lucas County.

The action originated in the Court of Common Pleas, Domestic Relations Division, as an action for divorce, involving the support and custody of the minor daughter of the parties, in which action the plaintiff was granted a divorce, also custody of the child, now seven years of age, who, pursuant to agreement of the parties, was to continue to reside with the paternal grandparents. The cause was certified to the Juvenile Court with respect to the future care, custody and control of such minor.

The parties will be referred to herein as they appeared in the Court of Common Pleas, Domestic Relations Division — the plaintiff-appellant as plaintiff, and the defendant-appellee as defendant.

The review by this court is on the motions for modification filed by the parties, a transcript of the docket and journal entries, including the report of a referee in the Juvenile Court, the bill of exceptions, and the oral arguments and briefs of counsel.

The plaintiff and defendant each filed their separate and almost identical motions in the Juvenile Court, representing a change of circumstances as their reason for seeking a modification of the prior order of the Court of Common Pleas, Domestic Relations Division, respecting the custody of said child.

Omitting the portions of the motion seeking a modification, filed by the defendant in the Juvenile Court, which are not relevant to a decision on this appeal, it is as follows:

‘ ‘ On the 9th day of May, 1952, this court entered an order in the above-named case providing as follows:
“ ‘Plaintiff awarded custody of Suzanne, now 6 yrs. said child to remain in the home of her paternal grandparents, Mr. and Mrs. Ray L. Garey, Williams-ton, Michigan, until further order of the court. Defendant ordered to pay $7.00 per week for support of said minor child during illness of defendant and thereafter the sum of $12.50 per week. ’
“Since that date there has occurred a substantial change in the circumstances of (husband) (wife) (both) in the following particulars:
“Defendant is willing and able to provide a home for the said minor child, with proper supervision, etc.
“Wherefore, defendant moves that said order be modified to read as follows:
“In accordance with the change in circumstances and in the best interests of the said minor child.”

The issue to be determined on this appeal involves an interpretation and application of Sections 8005-3 and 8005-4, General Code (Sections 3109.03 and 3109. 04, Revised Code), and the legal effect of the agreement between the parties pursuant to which the Court of Common Pleas, Domestic Relations Division, ordered that the child should continue to reside in the home of the paternal grandparents until further order of the court.

. The pertinent allegations relative to the changed circumstances of the plaintiff appearing in plaintiff’s motion for a modification of the order respecting custody and the prayer are:

“Since that date, there has occurred a substantial change in the circumstances of (husband) (wife) (both) in the following particulars:
“Plaintiff is now remarried and in a position to provide a good home and adequate supervision for the minor child.
“Wherefore plaintiff moves that said order be modified to read as follows:
“In accordance with the change in circumstances.”

It appears from the evidence in the record that at the time of the granting of the divorce the plaintiff was employed and was not maintaining a home or place, of residence suitable and adequate for the child, which it appears was plaintiff’s reason for agreeing that the child might, under such circumstances, continue in the home of the paternal grandparents.

The applicable sections of the General Code referred to above are as follows:

Section 8005-3, General Code. “When husband and wife are living separate and apart from each other, or are divorced, and the question as to the care, custody, and control of their offspring is brought before a court of competent jurisdiction, they shall stand upon an equality as to the care, custody, and control of such offspring, so far as parenthood is involved.” (Emphasis added.)

Section 8005-4, General Code. “Upon hearing the testimony of either or both parents, corroborated by other proof, the court shall decide which of them shall have the care, custody, and control of the offspring, taking into account that which would be for their best interest, except that, if any child is fourteen years of age or more it may be allowed to choose which parent it prefers to live with, unless the court shall find that the parent so selected is unflitted to take charge. The provisions permitting a child to choose the parent with whom it desires to live, shall apply also to proceedings for modification of former orders of the court fixing custody. If the court finds, with respect to any child under eighteen years of age, that neither parent is a suitable person to have custody it may commit the child to a relative of the child or certify a copy of-its findings, together with so much of the record and such further information, in narrative form or otherwise, as it deems necessary or as the Juvenile Court may request, to the Juvenile Court for further proceedings, and thereupon the Juvenile Court shall have exclusive jurisdiction. This section shall apply to pending actions. ’ ’

It was not determined by either the Court of Common Pleas, Domestic Relations Division, or the Juvenile Court that either parent was unfit to have the custody of their child.

The agreement between the parties in accord with which the residence of the child was continued in the home of the paternal grandparents had the sanction of the settled law of the state. Clark v. Bayer, 32 Ohio St., 299, 30 Am. Rep., 593.

In Rowe v. Rowe (Ohio App.), 97 N. E. (2d), 223, decided by the Court of Appeals for Franklin County, that court determined, as stated in the headnotes:

“1. When it is found that a parent is a suitable person and the fitness of the home is not in dispute and such parent is able and willing to support and care for such child, the parent’s right is paramount to that of all other persons.

“2. A child may not be taken from either or both parents unless it first be determined that he or they are unfit persons to have his custody.

“3. An agreement between husband and wife that custody of their child should be given to a third person is enforceable, subject only to judicial determination that the custodian is in every way a proper person to have the care, training and education of the child.

“4. As a general rule, a person may waive all personal rights or privileges to which he is individually entitled, whether secured by contract, conferred by statute, or guaranteed by the Constitution, provided the waiver does not constitute a violation of public policy.”

The decision in the case of Rowe v. Rowe, supra, is in accord with the law as determined by the appellate courts of the state, but is nevertheless to be distinguished on the facts from the case at bar in two important particulars.

In the case now before the court, the custody of the child pursuant to the agreement of the parties was awarded to the plaintiff, and in the Juvenile Court the defendant, subsequent to the order, by the filing and presentation of the motion seeking a modification of the order and agreement respecting custody, thereby made a clear expression of an intention and desire to waive the provision of the agreement respecting custody, requiring that said child remain at the residence of the paternal grandparents.

In Rowe v. Rowe, supra, the following statement in reference to waiver, appearing in the opinion of the court on page 225, is pertinent and applicable to that question in the case now before this court:

“Our Supreme Court as early as Clark v. Bayer, 32 Ohio St., 299, held that an agreement between husband and wife that the custody of their child should be given to a third person was enforceable, subject only to judicial determination that the custodian was in every way a proper person to have the care, training and education of the child. That one during trial may waive a known right is a principle well recognized in the law, even in a criminal case where a constitutional right is involved. State, ex rel. Waner, v. Baer, 103 Ohio St., 585, 134 N. E., 786.
“ ‘As a general rule, a person may waive all personal rights or privileges to which he is individually entitled, whether secured by contract, conferred by statute, or guaranteed by the Constitution, provided the waiver does not constitute a violation of public policy.’ 40 Ohio Jur., 1235.”

See, also, 40 Ohio Jurisprudence, 1233, Waiver, Sections 2, 3, 4 and 5, and 56 American Jurisprudence, 106, Section 5.

In the case now before this court, both parties have remarried and are maintaining homes, and it appears clearly from the record before us that the home of the pla.iutifF is suitable for the child, which fact was not found to be otherwise by the Juvenile Court or contended to be otherwise by the defendant.

In Luebkeman v. Luebkeman, 75 Ohio App., 566, 61 N. E. (2d), 638, the law applicable and decisive of the issue to be determined on this appeal is stated in the syllabus:

“A court of competent jurisdiction may not award the custody of children to any other person than their parents unless a finding is made of the unfitness of the parents to have their children’s care, custody and control as provided by Section 8033, General Code.”

In Ludy v. Ludy, 84 Ohio App., 195, 82 N. E. (2d), 775, the pronouncements of the court respecting the law of the state pertinent and determinative of the issue presented by the record now before this court, appear in the syllabus as follows:

“1. Under the provisions of Section 8032, General Code, when the parents are divorced and the question as to the custody of their child is before the court the parents ‘ stand upon an equality as to the care, custody and control’ of their child.”

“4. Under the provisions of Section 8033, General Code, prior to the amendment, effective January 1, 1946, the custody of a child may not be awarded to any other person than its parent unless a finding is first’ made of the unfitness of the parent to have such child’s care, custody and control:

“5. Under the provisions of Section 8033, General Code, as amended, effective January 1, 1946, there is no express statutory provision giving the court authority to grant the care, custody and control to some person other than the parent of the child.

“6. Under general law the court has no authority to give custody of a child to a third person unless and until it makes a finding that the parents of the child are unsuitable.

“7. The welfare of the child is considered when the question of custody of such child arises between the parents who stand on an equality, or when the parents are found to be unfit and the court is required to grant custody to a third person.”

It is clear that except for the agreement of the parties, the Court of Common Pleas, Domestic Relations Division, in view of the absence of a finding of unfitness of the parents, would have been without authority in law to have awarded the physical custody of the child to the paternal grandparents.

Therefore, in view of the prior order of the court awarding to the plaintiff the custody of the child, the clear waiver of the agreement respecting the physical custody by the defendant in seeking a modification of the order relative to the custody of the child and the home of plaintiff being unquestionably suitable for the child, the Juvenile Court was in error in refusing to order that the physical care and control of the child should be granted to the plaintiff.

The only barrier in the way of plaintiff’s right to claim the physical care and control of the child was the agreement between the parties that the child should continue to live in the home of the paternal grandparents following the granting of the divorce. The filing of motions for modification of the order relating to custody by both parties and their appearance and the introduction of evidence in the Juvenile Court in support of those motions evinced a clear intention of the parties to dissolve and waive the agreement requiring the child to continue in the home of the paternal grandparents. In the situation so presented, the law of the state applicable to the right of plaintiff, who had already been awarded custody of the child, is clear, and required that the court grant to the plaintiff the physical care and control of the child.

The judgment of the Juvenile Court, therefore, should be and is reversed and the plaintiff is awarded the exclusive custody and control of the child, subject to reasonable visitation with the defendant, and defendant is required to continue payments for the support of the child to the Humane Society, which payments shall hereafter be payable from the Humane Society to the plaintiff. The cause is remanded to the Juvenile Court in accordance with the continuing jurisdiction of that court as provided by law.

Judgment reversed.

Fess and Conít, JJ., concur.