author: Hurd, J.

text:
    DeMetre, Appellant, v. Savas et al., Appellees.
    (No. 22567
    Decided February 9, 1953.)

      Messrs. Davis, Davis é Handelman, for appellant.

      Mr. A. T. Klein, Mr. E. B. Vanek and Mr. 8. A. Zona, for appellees.
   Hurd, J.

Plaintiff, appellant herein, appealed from a judgment of the Court of Common Pleas of Cuyahoga County, entered upon a directed verdict for defendant at the close of all the evidence. The defendant, Katherine Savas, and others, owned and operated a restaurant business known as “Kate’s Restaurant” located on the ground floor of the Public Square Building in the city of Cleveland. The plaintiff, describing himself as a “business broker,” brought the action for a broker’s commission, alleging that he was the procuring cause of the sale of defendant’s business to one James Kaim.

Plaintiff was not licensed as a real estate broker under Chapter 27a of Title II, Part Second of the General Code pertaining to real estate brokers, being Section 6373-25 et seq. Construing the evidence favorably to. the plaintiff, as the trial court was obliged to do for the purpose of the motion to direct a verdict, it appears that the buyer was willing to purchase the restaurant business as a going concern, provided he could obtain either a new lease of the premises or a validization and assignment of the old lease which had about eight years to run and which it was claimed- had become invalidated by reason of foreclosure and receivership of the Public Square Building. For this purpose the buyer engaged lawyers who were successful in arranging for the assignment of the existing lease upon which the sale was conditioned. The agreement of sale was evidenced by a written contract drawn and prepared by defendant’s counsel without the knowledge of plaintiff. It provides as the sole purchase price for the fixtures, equipment, stock and good will, including the lease, the sum of $27,000. Paragraph 6 of the contract of sale provides for the assignment of the lease and contains the written consent thereto by the lessor or its duly authorized agent.

Paragraph 11 of the agreement provides in full as follows:

“11. It is mutually agreed that consent of the lessor of the premises mentioned herein, shall be evidenced by a separate instrument in writing, that in the event the lessor of the premises mentioned herein will not consent in writing to the assignment of the lease to the premises herein described, this agreement shall be declared null and void and the deposit made by the buyer herein shall be returned to him.” (Emphasis added.)

Plaintiff testified that he had procured James Kaim as buyer for the business. In this he was supported by the testimony of several witnesses, including the buyer who was called by defendants as their witness. Plaintiff testified further that he did not take part in the arrangement for the assignment of the lease or assist in any way in the preparation or completion of the written agreement of sale, contending that he was unaware that such an agreement was executed and that the purpose of the defendant in withholding such information from him at the time was to deprive him of his rightful claim to a commission.

At the conclusion of all the evidence and after final arguments of counsel, but before submission of the case to the jury, the trial court directed a verdict for defendant solely upon the ground that plaintiff was barred from recovery because he was not licensed under the Real Estate Brokers ’ License Act, which by its terms includes leaseholds as real estate.

Plaintiff complains of error of the court in ruling that plaintiff was subject to the Real Estate Brokers’ License Act as a mattér of law and in directing a verdict on that ground, as there were issued of fact to be decided by the jury.

The primary question presented is whether' a business broker who sells a going business, the sale of which is conditioned upon the transfer and assignment of a leasehold interest in the premises, becomes subject to the Real Estate Brokers’ License Act and, particularly, Sections 6373-25 and 6373-48, General Code.

It is crystal clear that no right of action shall accrue to any person for the collection of a brokerage commission in the sale, transfer or leasing of an interest in real estate, unless at the time the claimed right of action arose such person was licensed as a real estate broker pursuant to the provisions of Sections 6373-25 to 6373-51, General Code. Such an action is barred specifically by the terms of Section 6373-48, General Code, which reads, in part, as follows:

“Section 6373-48 [Right of action not to accrue without proof of license]. No right of action shall accrue to any person * * * for the collection of compensation for the performance of the acts mentioned in Section 6373-25 of the General Code without alleging and proving that such person * * * was duly licensed as a real estate broker * * * at the time the cause of action arose.”

Section 6373-26, General Code, in substance, provides that no person shall act as a real estate broker without being licensed, and Section 6373-49 provides for a maximum penalty of $1,000 fine and imprisonment in the county jail for one year, or both, for violation of Section 6373-26, General Code.

Section 6373-25, General Code,' as amended, effective September 1, 1939, which defines the term, “Real Estate Broker,” is a very broad and comprehensive enactment. In the interest of brevity, we quote only pertinent parts thereof as follows:

“The term ‘real estate broker’ shall include any person * * * who for another and for a fee, commission, or other valuable consideration, or who with the intention or in the expectation or upon the promise of receiving or collecting a fee, commission or other valuable consideration, sells, exchanges, purchases, rents or leases, or negotiates the sale, exchange, purchase, rental, or leasing of, or offers, or attempts, or agrees to negotiate the sale, exchange, purchase, rental, or leasing of, or lists or offers or attempts or agrees to list, * * * any real estate, or the improvements thereon * * * or * * * assists or directs in the procuring of prospects or the negotiation or closing of any transaction * * * which does or is calculated to result in the sale, exchange, leasing or renting of any real estate * * *.

ÍÍ * * *

Any person * * * who, for another, in consideration of compensation, by fee, commission, salary, or otherwise, or with the intention or in the expectation or upon the promise of receiving or collecting a fee, does, offers or attempts or agrees to do, engages in, or offers or attempts or agrees to engage in, either directly or indirectly, any single act or transaction contained in the definition of a real estate broker in this act, whether said act be an incidental part of a transaction, or the entire transaction, shall be constituted a real estate broker * * * within the meaning of this act.” (Emphasis added.)

It must be conceded that a leasehold is within the meaning of the act, as the second full paragraph of Section 6373-25, General Code, provides:

“The term ‘real estate’ shall include leaseholds as well as any and every interest or estate in land, whether corporeal or incorporeal, whether freehold or non-freehold, and whether said land is situated in this state or elsewhere.” (Emphasis added.)

In considering the question here presented, we find no Ohio cases determining the precise issue of whether the licensing requirement for real estate brokers should be construed as applicable to the sale of a going business where the agreement of sale is conditioned upon the written consent of the lessor to an assignment of a lease of the premises to the buyer.

The opinions rendered by courts of other jurisdictions are in conflict, due partly to obvious differences in tbe statutory provisions of the various states where licensing acts have been enacted and partly to differences of concept as to the scope and operation of the various statutes.

Counsel for plaintiff argue that the Real Estate Brokers’ License Act does not apply to the sale of a going business even though a lease is included in the transaction. They cite as the leading case on the subject Weingast v. Rialto Pastry Shop, Inc., 243 N. Y., 113, 152 N. E., 693, where the court held that Article 12-A of the Real Property Law of New York State did not apply to one who exercises the calling of selling or exchanging businesses as going concerns, although, as part of the goodwill, such sales may include the leases of stores or buildings. That court further held that “as failure to procure a license is made a crime, the statute must not be extended by implication,” and cited with approval Reichardt v. Hill, 236 F., 817, where a similar ordinance was under discussion.

An examination of the New York statute defining the term, “real estate broker,” as quoted in that case shows that it is the same in substance as our Ohio Statute prior to the amendment of Section 6373-25, General Code. (118 Ohio Laws, 489, effective September 1, 1939.) Had the Ohio statute not been amended as herein set forth, the Weingast case would be pursuasive authority to consider in deciding the instant case. However, since the amendment of the Ohio statute, the Weingast case must be distinguished because of the substantial changes in the provisions of the Ohio license law making it broader and more comprehensive in scope and operation than the New York law there considered. Furthermore, under the present Ohio act we are not confronted with the proposition of extending by implication a statute, the violation of which is made a crime, for the reason that by its express terms it is extended to include any single act or transaction, whether such act be an incidental part of or the entire transaction.

A decision directly contrary to the Weingast case was rendered in Nittler v. Continental Casualty Co., 94 Cal. App., 498, 271 P., 553, rehearing denied, 272 P., 309, where the Real Estate Brokers’ Act was substantially the same as the New York act. It was there held that the procurement of a sale by an unlicensed broker of a gasoline station, store and chicken farm on leased premises was within the provisions of the act requiring a broker’s license and recovery was barred.

Plaintiff cites also Salisbury v. Alskog, 144 Wash., 88, 256 P., 1030, and Johnson v. Rutherford, 32 Wash. (2d), 194, 200 P. (2d), 977. These cases are inapplicable here because the Washington courts there held a leasehold interest to be personal property rather than real property.

In Cohen v. Scold, 13 N. J. Super., 472, 80 A. (2d), 643, decided May 17, 1951, the Superior Court of New Jersey, Appellate Division, held that the sale of a restaurant business including stock, fixtures, equipment, lease and goodwill involved “an interest in realty,” and that, therefore, an unlicensed broker was not entitled to commissions. Recovery was denied as a matter of law. A provision of the New Jersey statute which corresponds to a like provision of the Ohio act is as follows:

“Any single act, transaction or sale shall constitute engaging in business within the meaning of this article.” Section 45:15-2, Revised Statutes of New Jersey.

While decisions of other jurisdictions may be helpful, yet, in final analysis, our decision must rest upon a reasonable construction of the applicable provisions of the Ohio act, which appears to be more comprehensive in its terms than any comparable legislation of other states. In this case the sale upon which commission is claimed is evidenced by a written agreement definitely providing for an assignment of the lease with the written consent of the lessor by separate instrument. The agreement provides further that unless such consent is obtained the agreement shall be null and void. The lease of the premises situated on the public square of Cleveland with a period of eight years to run was a valuable asset, if not the most valuable asset, of the restaurant business being conducted there. While it formed but one element in the value of the business as a going concern, it was so valuable that the entire transaction was conditioned upon the assignment thereof to the purchaser with the approval of the lessor.

In construing the applicable provisions of the statute, we must follow the familiar cannon of construction that the words employed by the Legislature must be accepted in their plain and ordinary meaning.

As Section 6373-25, General Code, includes leaseholds within the orbit of the statute, and, as, according to the express provisions of the same section, any person who for another, in consideration of compensation, engages either directly or indirectly in any single act or transaction contained in the definition of real estate broker, whether said act he an incidental transaction or the entire transaction, shall be constituted a real estate broker, we conclude that the act is broad enough to cover the transaction involved in this case and, therefore, on the conceded facts construed most favorably to the plaintiff, we hold that he is barred from the recovery of a commission as a matter of law under Section 6373-48 and cognate provisions of the General Code.

While we base our decision upon the express provisions of the applicable statutes, we find support by analogy for our conclusions in Stanton, Inc., v. McDonald, 147 Ohio St., 191, 70 N. E. (2d), 359, 169 A. L. R., 760, decided September 4, 1946. While the precise question here determined was not there involved, the Supreme Court had for consideration Sections 6373-25 and 6373-48, General Code, in relation to the collection of compensation for the performance of service in the rental or leasing of real estate where a real estate broker’s license was issued for a particular year, but was not renewed for the following year, during which the claimed right of action arose. The first and fourth paragraphs of the syllabus are as follows:

“1. A corporation to which a real estate broker’s license was issued for a particular year but which did not renew or possess such a license for the following year has no right of action for the collection of compensation for the performance of service in the rental or leasing of real estate where such claimed right of action accrued during such following year. (Section 6373-48, General Code.)”

“4. Where the General Assembly has denied a right of action to recover compensation in certain cases a court may not, in disregard of such legislation, afford relief upon the theory of money had and received.”

Because we hold that plaintiff is barred from recovery as a matter of law, it follows that we cannot sustain his assignment of error based on his claim that he had no part in the arrangements and negotiations for the reinstatement and assignment of the existing lease and that this evidence presented an issue of fact for the jury. It is idle we think to claim a commission for effecting the sale in one breath and in another to deny responsibility for the negotiation of the assignment of the lease with the consent of the lessor, without which the sale could not have been consummated. Certainly the purchase price of $27,000 was predicated in substantial measure upon the value of the assigned lease with eight years to run in a most advantageous location where the goodwill had been built up over a period of time. The Ohio statute, as we have stated, is so broad and comprehensive in its terms as to include all transactions where the transfer or assignment of a lease is a condition precedent to the consummation of a sale. To hold otherwise would be to ignore the plain provisions of the statute.

In Stanton, Inc., v. McDonald, supra, the Supreme Court expressly held that a court may not, in disregard of such legislation as is here applicable, afford relief on the theory of money had and received. This same principle precludes an action in assumpsit and every other method which may be employed outside of but contrary to the plain provisions of the statute.

For the reasons stated, the judgment of the Common Pleas Court is affirmed.

Judgment affirmed.

Skeel, P. J., and Kovachy, J., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Rainey et al., Appellees, v. The Cincinnati Street Ry. Co., Appellant.
    (Nos. 7625 and 7626
    Decided December 8, 1952.)

      Messrs. Marble & Vordenberg and Mr. Edward A. Burke, for appellees.

      Mr. Leo J. Brumleve, Jr., for appellant.
   Per Curiam.

On January 8, 1951, at about 6:30 o’clock in the morning plaintiff Pauline Rainey alighted from a trackless trolley bus of the defendant on which she had been a passenger and immediately fell to the street, receiving physical injuries. She instituted cause No. 7625 for damages on account of her physical injuries, and her husband instituted cause No. 7626 to recover for loss of services, consortium and expenses. The trial resulted in a verdict of $20,000 for Pauline Rainey and a verdict of $5,000 for her husband. During the trial, the defendant moved for instructed verdicts at the close of the plaintiffs’ evidence and at the conclusion of all the evidence, all which motions were overruled. After the verdicts were returned and before judgments were entered, the defendant moved for judgments notwithstanding the verdicts, which the court overruled. After the judgments were entered, the defendant moved for a new trial, which was granted on the sole ground that the amounts awarded were manifestly against the weight of the evidence.

The defendant appealed from the orders overruling its motions for instructed verdicts made at the close of all the evidence and for judgments notwithstanding the verdicts, and the plaintiffs perfected cross-appeals from the orders granting new trials on the ground that the court abused its discretion in so doing.

The plaintiff Pauline Rainey alleged in her amended petition that the defendant violated its duty as a common carrier of passengers in that it failed to observe the provision of an ordinance of the city of Cincinnati, wherein the incident occurred, requiring it to stop for receiving or discharging passengers with the wheels of the bus not more than 12 inches from the curb; but instead, that defendant stopped its bus about five feet from the curb, thereby requiring plaintiff to alight at a place rendered unsafe because of the defective condition of the street. On this subject she alleged that the street had been paved with granite blocks in the first place and that later these blocks had been covered with black asphalt ‘ ‘ several inches thick. ’ ’

Pauline Rainey had been using this same bus as a means of transportation to her place of employment every working day for about four months, alighting at the same stop.

The circumstances surrounding the receipt of her injuries are best described in the testimony of the plaintiff herself. After stating her name, age, the condition of her health, and that she had been employed as a machine operator at the same place prior to January 8, 1951, she proceeded as follows:

“Q. Now, Mrs. Rainey, what time did you report for work? A. At seven o’clock.

“Q. And how did you travel to your place of employment? A. On a trolley bus.

i i # # #

“Q. Calling your attention to the morning of January the 8th, 1951, what car did you board that morning? A. A Colerain-Chester Park.

“Q. And where did you alight? A. At the bus stop at Colerain and Straight street.

“Q. Did you give a signal to the operator to let you off there? A. Yes, I did. I rang the bell and went to the door.

i i * # #

“Q. Now, at what time of the morning was this? A. Six-thirty, a. m.

“Q. And what was the situation at that time with reference to light or darkness? A. It was very dark.

< £ # # #

“Q. What could you see at that time? A. I couldn’t see anything.

< l * * #

“Q. Where did it stop? A. It was about four or five feet from the curb, and I was in the street.

< C * # *

“Q. And from what door of the bus did you alight? A. The front door.

“Q. Now will you state where the bus stopped, that is, the portion of the bus where the front door was with relation to Straight street? A. It was around 25 feet from the corner, around that; I’m not sure. And when I stepped down off the bus I went right down on the street and I sit out in a sitting position, and pain shoot up in my back and I couldn’t move, and the bus driver got off and a fellow and picked me up.

C i & * 8

‘ ‘ Q. The bus stopped between those two driveways ? A. Yes.

C Í # * #

“Q. Was there a designated stop or sign there? A. Yes, there’s a sign there on the pole. There’s a sign— They changed the stop since I fell and the stop is further down to the corner now.

“Q. Now, Mrs. Rainey, what is the condition of the street at the point where you alighted? A. Well, there’s an awfully bad place in the street. It’s around, I’d say — .

É C # # *

“A. Well, there’s a dished out hole in the street. It’s sort of like this (indicating), and I would say it’s around 35 feet long, and I’d say it was around three or four feet wide, and it’s dished out like. And 1 went right down in this hole when I slipped off the bus in a sitting position, and my feet were sticking straight out in front of me, and my feet did not hit the curb.

“Q. Now, calling your attention to the weather what was the condition that day? A. Weil, it had snowed the day before and there was a lot of snow and it was very icy.

“Q. But was there any difference in the snow generally and that which was in the portion which was used for traffic on the street? A. No.

“Q. Now, you mentioned that there was this dished out place for about — I think you said 35 feet long. Where does that commence and where does it extend? A. Well, it starts from the corner of the street. It’s around, I’d say 25 feet; I’m not sure but something like that. And it was about thirty feet from the corner where I fell, and I went right down in this hole.

“Q. Now, let’s see. You say it starts about 25 feet from Straight street. A. Well, from the corner building on Straight street.

“Q. In which direction does it extend there? A. Well, I don’t know. It goes back.

< Í # * #

“Q. Now, Mrs. Rainey, was [sic] was the condition and the depth of the snow in the street where you fell? A. Well, the snow was packed down, and there was nothing to stop the bus from going to a point up to the curb at all because the snow was all packed down smooth. It was icy.

“Q. It was what? A. It was pretty icy. It was all packed down.

C Í # # #

“Q. Was there any particular amount of snow at the curb? A. No. It was all packed down even. It was all smooth.

‘ ‘ Q. And had there been any snow plows past there ? A. No. There was nothing piled up there at all. Nothing piled up at the curb at all.

“Q. Now, you described this rut or depression in the street. What was the approximate depth of it? A. Oh, I’d say around six inches. I’m not sure.

i ( # * #

“Q. Can you say approximately how much shorter the step would have been if the bus had stopped at the curb and you could have stepped to the curb instead of into this depression? A. Oh, I’d say maybe three or four inches.”

On cross-examination, she testified:

“Q. Now, when you alighted from the bus there was ice and snow in the street, wasn’t there? A. It had snowed the day before and the ice was packed down.

í Í * -X-

“Q. I mean, you couldn’t see the street itself. It was covered with snow and ice. Isn’t that right? A. All I know is I stepped off the bus, I went down and I had pains that shoot up in my back and that’s all I remember.

“Q. Now, would you please answer my question. The street there was covered with snow and ice, wasn’t it? A. Yes, there was ice there.

( ( # * #

“Q. Now, when you stepped from the bus did you fall as soon as your foot came down into the street? A. That’s right. I stepped right down and went right on down.

“Q. All right. Now as soon as your foot came down on the street you fell. It was right by the door? A. That’s right.

“Q. And did you slip or did your ankle turn or what caused you to fall? A. I stepped down and I went right down. That’s all I know.

“Q. But what caused you to fall? Did you slip on the snow and ice or did your ankle turn or did you trip over something as you stepped off the step or what? A. No. All I know is I just fell when I stepped down.

“Q. You can’t tell us whether you slipped on the snow and ice or whether your ankle turned? You can’t tell us that? A. No, my ankle didn’t turn. I know that.

“Q. Your ankle didn’t turn. We have eliminated that now. You didn’t trip over anything on the step of the bus, did you? A. No.

“Q. And your ankle didn’t turn. Now, can you tell us whether you slipped on the ice or snow which caused you to fail? A. That I don’t know. I stepped down and I went right on down in a sitting position.

i i ft * ft

“Q. You know, of course, when you left home that day that the roads were icy and slippery? A. Yes.

( ( ft ft *

“Q. And you had stepped from the bus at that location many, many times before, hadn’t you? A. Not at that — I don’t think at that same spot, no.

( Í ft ft ft

“Q. Now, you said that that depression in the street was six inches deep; is that right? A. No. I mean up to the curb the way that it goes down it’s about that. I’m not sure.

“Q. But you did say that it was six inches deep. Wasn’t that your answer?

< ( ft ft ft

“Q. I want you to point out now where on that street you think that it was six inches deep. A. From the hole here (indicating) I think — I’m not sure whether it’s that deep or not — up to the curb here is what I’m trying to say.

( Í ft ft ft

“Q. Oh, there’s spaces were [sic] the joints are, but I mean there’s no granite block missing? A. No, none missing.

“Q. Now, this bus has vertical rods, several vertical rods just at the location of the steps where you step off the bus; isn’t that right? A. Yes.

“Q. Were you holding onto those rods? A. Oh, yes.

“Q. And did you hold onto those rods until you were safely on the street? A. I don’t remember that. All I know is I stepped down and I went right down.

a # «* *

“Q. Now, this place here, this whole street here (indicating) was covered with snow, wasn’t it? A. Yes.

“Q. And you couldn’t see the granite blocks any more than you could see the blacktop part of the street; isn’t that right? A. I don’t remember seeing any.

< Í * # *

“Q. You notice that there is a boulevard light pole there, isn’t there? A. Yes.

< Í # * *

“Q. How close was that to the. point where you say the accident happened?

< < * * #

“A. Oh, I’d say between 25 and 30 feet.

< < m # *

“Q. And where were you with reference to the step?

< Í # * #

“A. I was down in this dug-out place. It was slanting.

11 * * #

“A. They [sic] was lights burning inside the bus, yes.

< i * # *

“Q. Between where the bus stopped and where you got off, between that and the city light there was nothing whatever, was there? A. No, sir, I don’t think so.

“Q. And there was snow on the sidewalk, wasn’t there? A. Yes.

“Q. And there was snow np in the gutter of the street, wasn ’t there. A. No. It was packed down. The snow was all packed down.

“Q. Well, do you know what packed it down? A. Well, it was frozen; it was in ice.”

On redirect examination she said that the blacktop which had been worn from the granite blocks had accumulated in the gutter along the curb and extended out from the curb about seven inches. She did not testify as to the thickness of this accumulation.

This trolley bus was proceeding northwardly on Colerain avenue when it arrived at the regular stop at Straight street. Photographs were introduced of the street at that point. These photographs show that while there is a curb at that point, it cannot be more than two or three inches in height; and that it is not continuous, being broken in two places to accommodate two driveways into the contiguous premises. These photographs show also that the surface of the street was comparatively level, that the wearing of the asphalt had been gradual, and that there was no abrupt offset where the granite became exposed.

The photographs show also that had the bus stopped within 12 inches of the curb, exactly opposite the stop sign or near that point, Pauline Bainey would have been exposed to as great or greater hazards of the same character, resulting from conditions existing because of the permanent condition of the street accentuated by the weather conditions. Indeed, it would seem that had the bus stopped within 12 inches of the curb opposite the stop sign, she would have been discharged directly over the grilled covering of an intake to a storm sewer.

As disclosed by the undisputed testimony, this aceident occurred on a winter morning before dawn, when the streets and sidewalks were covered with ice and snow, and these conditions were known equally by Pauline Rainey and the employees of the defendant.

There is no evidence that the plaintiff Pauline Rainey had been accustomed to stepping from the bus onto the curb or sidewalk. Nor is there any evidence that she was misled in any way by the stopping of the bus four or five feet from the curb rather than within 12 inches thereof. It is a fair inference from her testimony that at no time has the plaintiff contended that her injuries were received at a place other than the regular stopping place where she had been accustomed to alight.

The plaintiffs alleged that the “greater distance” she was required to step and the slippery and uneven surface caused her to slip, and fall. However, the testimony of Pauline Rainey fails to sustain these allegations. She does not testify that she slipped. She does not testify that she could not reach the surface of the street by taking the usual step from the bus. The photographs, as well as her testimony, show that any unevenness in the surface of the street at that point was very slight — so slight that it could not be said that the municipality had failed to discharge its duty under Section 3714, General Code, to keep its streets open, in repair, and free from nuisance. Pauline Rainey did not testify that she was caused to fall by reason of any unevenness or other condition of the street.

A litigant who becomes a witness is bound by his testimony and where he is the sole witness to the facts his failure to testify on an essential issue is equally fatal. He is bound by his admissions on the witness stand. Winkler v. City of Columbus, 149 Ohio St., 39, 77 N. E. (2d), 461.

It is urged that the failure to stop within 12 inches of the curb was a violation of the ordinance and that that constituted negligence. We fail to see where that had anything to do with the plaintiff’s injuries or that it constituted a violation of any duty owing to her by the defendant.

It is true that as a part of its duty to exercise the highest degree of care for the safety of its passengers compatible with the practical operation of a trolley bus, the defendant was required to provide a reasonably safe place to alight. Mahoning & Shenango Ry. & Light Co. v. Leedy, 104 Ohio St., 487, 136 N. E., 198. That duty, however, does not extend to relieving a passenger from hazards to which he in common with the public was subject. Both Pauline Rainey and the employees of defendant ventured out upon that wintry morning with knowledge that ice and snow covered the streets and sidewalks of the city. They knew that snow and ice covered the entire area (street, sidewalk, and curb) which by any definition could be regarded as the place at which Pauline Rainey had been accustomed to alight, and at which she signaled the operator to stop on the morning in question. While the record shows clearly that Pauline Rainey fell, it leaves the cause of her falling to conjecture. Certainly, there is no evidence that it was caused by defendant’s fault or negligence. It is not enough to just point to a coincidental negligent or unlawful act on defendant’s part. Such act is unimportant unless it is a direct cause of the injury, that is, that the injury was the natural and probable consequence of such negligent act. 6 Ohio Jurisprudence, 943, Section 310. Had Pauline Rainey been injured by some hazard peculiar to the vehicular part of the street, such as a passing-automobile, a different question would have been presented.

Morrison v. Rhode Island Co., 87 A., 199, 45 L. R. A. (N. S.), 988, has many features common to the cáse at bar. A street surface sloped from two to three inches from a point about nine inches from the car rail to the mouth of a sewer, thus increasing the distance from the running board to the street surface. The plaintiff, who was a fleshy and heavy person, claimed that this additional distance prevented her from holding onto the stanchions until her foot reached the street. The trial court directed a verdict for the defendant which the Supreme Court affirmed, saying at page 990 of 45 L. R. A. (N. S.):

“The first thing to be considered is the question of the defendant’s negligence. Was the danger of alighting at the point in question so obvious that the defendant was guilty of negligence in stopping its car there? The defendant had made it a stopping place for some years and the plaintiff had many times alighted from the cars there. So far as appears, neither the plaintiff nor anyone else had ever before experienced any difficulty there. The sewer pocket and the sloping surface around the mouth thereof were in good repair and were otherwise just as the municipal authorities intended they should be. Their appearance was not suggestive of danger. The testimony does not disclose, nor is it claimed, that there has ever been any occurrence at or complaint made concerning this locality which might apprise the defendant that it was a place of danger.

“We do not think that the defendant was guilty of negligence in stopping its car where it did.”

It is manifest from the plaintiff’s testimony that there was no substantial depression in the street at the point where she alighted. By comparison with any adjacent portion of the street, it. could not possibly have .been more than two or three inches at its deepest point, and there is no evidence that she alighted at that point.

We are of the opinion that the trial court erred in overruling the defendant’s motions for instructed verdicts and for judgments notwithstanding the verdicts. This conclusion makes it unnecessary to consider the plaintiffs’ cross-appeals.

For these reasons, the judgments are reversed, and final judgments are rendered for the defendant.

Judgments reversed.

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


author: Doyle, J.

text:
    Thrash, a Minor, Appellant, v. U-Drive-It Co. et al., Appellees.

      (No. 4201
    Decided November 28, 1951.)

      Mr. Robert L. Culbertson, Mr. Charles E. Pierson and Messrs. Harrison, Spangenberg & Hull, for appellant.

      Mr. H. A. Walts, Mr. James Olds and Messrs. Wise, Roetsél, Maxon, Kelly & Andress, for appellee U-Drive-It Company.

      Messrs. Buckingham, Doolittle & Burroughs, for appellee Spot Motor Company.
   Doyle, J.

This action was commenced by Donald Thrash, a minor, through his mother and next friend, and is directed against two companies: one, the U-Drive-It Company, which is ‘ ‘ engaged in the business of owning and servicing motor vehicles which it rents for hire to the public,” and the other, the Spot Motor Company, which is ‘ ‘ engaged in the business of buying and selling new and used automobiles and trucks.” Damages for personal injury were sought, which, it was claimed, proximately resulted from the negligence of the defendants in the conduct of their business through their respective sales of a secondhand motor vehicle.

At the conclusion of the opening statement of counsel for plaintiff in the trial of the action in the Court of Common Pleas of Summit County, the court entered judgment in favor of the two defendants and against the plaintiff, for the reason that the plaintiff’s petition and the statement of counsel failed to state a cause of action against either or both defendants.

The appeal to this court is from that judgment, and we are asked to reverse the action of the trial court and remand the cause for trial.

The cause of action stated in the pleading, and orally by counsel, in brief, was as follows: The U-Drive-It Company owned and operated a truck in its business, the left front wheel of which was equipped with a type of rim and lock ring not designed to fit the wheel and “as a result of the mismatching of the lock ring and the rim * * * [the] said lock ring was loose and insecure, * * * was held in place by an inadequate bearing surface, and * * * its mounting bevel did not fit the mounting bevel of the rim, so that it was likely at any time during the normal usage of the truck to blow off under the pressure of the inflated tire, causing the tire to be released, the tube to blow out, and the truck to get out of control.”

In August, 1946, the U-Drive-It Company traded the truck to the Spot Motor Company, which thereupon advertised it for sale. Subsequently, G-otthart T. Thrash, the father of the minor plaintiff, purchased it from the Spot Motor Company upon its representation that it was “in good operating condition.” Thrash purchased the vehicle for general hauling use in connection with his business. Later, while it was being so used “at a lawful and proper rate of speed, said lock ring on the left front wheel suddenly and without warning blew off, and immediately thereafter the outer bead of the tire was released from the rim. By reason of the sudden release of the left front tire bead, the truck became unmanageable, so that without fault of the driver it ran off the left side of the roadway and was hurled over an embankment. At said time and place the plaintiff, Ronald Thrash, was ridinglas a passenger) in the rear body of said truck, and as the truck rolled over [and] down the embankment plaintiff was crushed underneath * * *, causing him * * * serious injuries * * *.”

The following- specific charges of negligence were made against the respective defendants, which negligence in each case, it was asserted, proximately caused the plaintiff’s damages.

As to the defendant Spot Motor Company:'

“1. In failing to inspect said truck before reselling, to determine whether its tires were properly mounted with matching rims and lock rings.

“2. In failing to warn said Gotthart T. Thrash that the left front tire was insecurely mounted and that the truck was dangerous to operate, although the defendant knew, or in the exercise of ordinary care ought to have known, of the danger and hazard of said mismatched rim and lock ring.

“3. In lulling- said Gotthart T. Thrash into a false sense of security by representing to him that the truck was in good operating condition, although the defendant knew, or in the exercise of ordinary care ought to have known, that said truck was in a dangerous and hazardous condition to drive.

“4. In placing on the market and selling to a purchaser, for use upon the public highways, a truck containing a latent and inherently dangerous defect, to wit, a mismatched rim and lock ring. ’ ’

As to the defendant U-Drive-It Company:

“1. In equipping the left front wheel of said truck with a mismatching rim and lock ring, which the defendant knew, or in the exercise of ordinary care ought to have known, made the lock ring insecure and likely to blow off.

“2. In failing to warn the Spot Motor Company of the mismatched rim and lock ring.

“3. In failing to warn Gotthart T. Thrash, the purchaser of said truck, that the rim and lock ring were' mismatched and insecure, although the defendant had actual knowledge that said Gotthart T. Thrash had purchased said truck from the Spot Motor Company.

“4. In failing to install on the left front wheel of said truck a lock ring of the proper type and size before putting said truck on the market where it would come into the hands of a purchaser who would use it upon the public highways.

“5. In placing upon the market for eventual sale to the public a motor truck containing a latent and inherently dangerous defect which would be hazardous to the life and limb of any one in the vicinity of the truck while it was being operated upon the highway.”

In our consideration of the problems before us, we assume the truth of the allegations and charges made in the petition and opening statement of counsel, and consider such allegations as constituting the actual facts in the case.

At the outset, we find no cases in this state treating the same factual matter, although there are some which seem to lay the foundation of the branch of the law which we must examine.

In respect to the Spot Motor Company, did it owe a duty of care and vigilance to anyone other than the father of the injured boy, he being the immediate purchaser?

More than a half century ago, there arose in this county a case in which the Supreme Court of Ohio recognized tort liability for the negligent sale of an inherently dangerous drug, regardless of privity of contract. A druggist negligently sold oil of bitter almonds instead of oil of sweet almonds to a customer for the use of his wife. After taking it internally, the wife died. Chief Justice Owen stated:

“It is not a sound proposition to say that a dealer in drugs, having in stock, and for sale, deadly poisons, owes no duty to persons who do not deal directly with him in relation to them. The public safety and security against the fatal consequences of negligence in keeping, handling and disposing of such dangerous drugs, is a consideration to which no dealer can safely close his eyes. An imperative social duty requires of him that he use such precautions as are liable to prevent death or serious injury to those who may, in the ordinary course of events, be exposed to the dangers incident to the traffic in poisonous drugs.” Davis v. Guarnieri, 45 Ohio St., 470, at p. 492, 15 N. E., 350, 4 Am. St. Rep., 548.

Whether the old rule, based upon the opinion in Winterbottom v. Wright, 10 Meeson & Welsby, 109, 152 Eng. Repr., 402, that a manufacturer or vendor is not liable for negligence to one with whom he had no contractual relations, ever was strictly followed in this state, need not here be discussed. Certainly, at the time of the oil of bitter almonds decision, there was recognized the liability, of a negligent seller of things whose normal function was to injure or destroy, to a person other than the one in privity of contract.

In the year 1916, a rather startling decision was rendered by the Court of Appeals of Neiv York. It is interesting to note that the court had at the time a precedent similar to ours in the bitter almond case — viz., Thomas v. Winchester, 6 N. Y., 397, 57 Am. Dec., 455. The 1916 New York decision held that the principle that the manufacturer of goods is liable for injuries to third persons for defects therein, is not limited to things which in their normal operation are implements of destruction, but if the nature of the things— a new automobile, for instance — is such that it is reasonably certain to place persons in peril when negligently made, liability attaches, irrespective of contract, for failure to properly inspect and discover defects, coupled with knowledge of probable dangers therefrom. It was further held that the duty is independent of contract, and the obligation arises at law. MacPherson v. Buick Motor Co., 217 N. Y., 382, 111 N. E., 1050, L. R. A. 1916F, 696, Ann. Cas. 1916C, 440.

In respect to liability to third persons irrespective of privity of contract, Judge Cardozo, in writing for the New York court, expressed the thought, in reference to the sale of an automobile by a manufacturer, that Chief Justice Owen expressed in reference to the negligent sale of the drug. Cardozo, J.: “In such circumstances, the presence of a known danger, attendant upon a known use, makes vigilance a duty. We have put aside the notion that the duty to safeguard life and limb, when the consequence of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law.”

In Sicard v. Kremer, 133 Ohio St., 291, 13 N. E. (2d), 250, the Supreme Court of this state again approved the doctrine of the drug cases, and incidentally cited with apparent approval MacPherson v. Buick Motor Co., supra.

Consonant with the reasoning of the Ohio courts in relation to drugs and the celebrated New York case in relation to the sale of a new automobile, a majority of courts in the country which have had similar problems in recent years, have applied the general principles therein pronounced.

Reflecting the current opinions with reference to the sale of defective dangerous articles, including new and secondhand automobiles, is the following statement in 42 A. L. R., 1243, at p. 1250: ‘ ‘ Where, in the exercise of ordinary sense [care], the seller of an article must know that if it is defective it will be imminently dangerous to persons whom he knows will come in contact therewith, a duty rests upon such seller to use ordinary care to ascertain the condition of the article and see that it is safe, especially where, by representation or warranties that the article is safe, he induces the sale; and if he fails to exercise ordinary care to ascertain the safety of the article, and as a result he actually sells it in an imminently dangerous condition, he is liable for personal injuries proximately resulting therefrom, at least, to that class of persons who he knows must come in contact with the article * * See, also, 170 A. L. R., 611, at p. 676, and cases cited; 5 American Jurisprudence, Automobiles, Section 349; 65 Corpus Juris Secundum, Negligence, Section 100 et seq.

Again reflecting the modern authorities and apposite the foregoing, there may be found in 2 Restatement of the Law of Torts (Negligence) the following:

“Section 388. One who supplies directly or through a third person a chattel for another to use, is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be in the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

“ (a) knows, or from facts known to him should realize, that the chattel is or is likely to be dangerous for the use for which it is supplied:

“(b) and has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition; and

"(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be so.”

Under comment "c” of this section (388), the term "suppliers” applies to "vendors, lessors, donors or lenders irrespective of whether the chattel is made by them or by a third person.”

"Section 389. One who supplies directly or through a third person a chattel for another’s use knowing that the chattel is unlikely to be made reasonably safe before being put to a use to which the supplier should expect it to be put, is subject to liability for bodily harm caused by such use to those whom the supplier should expect to use the chattel or to be in the vicinity of its probable use * *

A few of the cases and texts commenting on the ideas of duty and obligation in the law of torts here under discussion, in addition to those already cited, are the following: Flies, v. Fox Bros. Buick Co., 196 Wis., 196, 218 N. W., 855, 60 A. L. R., 357; Egan Chevrolet Co. v. Bruner, 102 F. (2d), 373, 122 A. L. R., 987; McLeod v. Holt Motor Co., 208 Minn., 473, 294 N. W., 479; Jones v. Raney Chevrolet Co., 217 N. C., 693, 9 S. E. (2d), 395; Bock v. Truck & Tractor, Inc., 18 Wash. (2d), 458, 139 P. (2d), 706; McGuire v. Hartford Buick Co., 131 Conn., 417, 40 A. (2d), 269; 170 A. L. R., 611, at p. 676. See, also, documentation of Manufacturer’s liability in 164 A. L. R., 569.

It now remains to state the law on this phase of the case, and then apply it to the Spot Motor Company. We pronounce the rule as follows: When a dealer in secondhand or used motor vehicles sells a used car which he knows, or in the exercise of ordinary care should know, is imminently dangerous to life or limb when put to ordinary use, without notice to the purchaser of its defects or bad qualities, or when, by representations or warranties that the vehicle is in good operating condition, he or it induces the sale, such dealer is liable to any person who suffers an injury as a proximate result of a defective condition of the vehicle (existing at the time of the sale) when said vehicle is being used for the normal purposes for which it is designed. Under such circumstances, liability attaches to the seller for injuries which might have been reasonably anticipated, whether there was any contractual relationship between the parties or not.

The argument that this company was not the creator of the dangerous condition in installing a lock ring and rim which was not adaptable to the type of wheel in use on the vehicle, is not tenable. This jural problem was decided in MacPherson v. Buick Motor Co., supra. There, the defective wheel was not made by the Buick Company, it was bought from another manufacturer. We subscribe to the precedent there established.

It is bur conclusion that the pleadings and statements of counsel were sufficient to state a case against the Spot Motor Company, and, as a consequence, the court erred in entering its judgment for the said company.

The defendant U-Drive-It Company was charged with creating the dangerous condition, and with negligence in “placing upon the market for eventual sale to the public a motor truck containing a latent and inherently dangerous defect, which would be hazardous to the life and limb of anyone in the vicinity of the truck, while it was being operated on the highway,” in failing to warn its vendee, the Spot Motor Company, of the condition of the truck, as well as its failure to notify the purchaser, Thrash, although it knew of the sale to Thrash, and knew that said truck would be used for the purpose for which it was designed.

Heretofore, reference has been made to MacPherson v. Buick Motor Co., and approval has been given to the principles therein pronounced. It will be noted, however, that there the court was speaking of the sale of a new automobile, to be used by persons other than the immediate purchaser without new tests after it left the factory where the consequences of negligence were reasonably to be foreseen to third person purchasers in, the marts of trade. In the course of the opinion, the distinguished jurist who authored it, drew an analogy in the law which measures the liability of landlords, as follows: “If A leases to B a tumble-down house he is not liable, in the absence of fraud, to B’s guests who enter it and are injured. This is because B is then under the duty to repair it, the lessor has the right to suppose that he will fulfill that duty, and, if he omits to do so, his guests must look to him.” (Compare Burdick v. Cheadle, 26 Ohio St., 393, 20 Am. Rep., 767.)

So, here, the U-Drive-It Company had the right to suppose that its vendee, the Spot Motor Company, engaged in the business or trade of buying and selling used cars, would, in the absence of representation or warranty that the car was in good and safe condition, fulfill its duty to examine and repair an old and dangerous vehicle before selling it for use on the highways without making disclosure to its vendee of the vehicle’s dangerous condition. And, especially, did the U-Drive-It Company have the right to suppose that its vendee would not misrepresent the dangerous car to a purchaser, while knowing that the vehicle was to be put to use on the highways.

On the theory that foresight of the consequences measures the creation of the duty and consequent liability, injury to third persons was not here to be reasonably foreseen as tbe result of the sale to the Spot Motor Company, in the absence of false representations.

In deciding this phase of the case, we must appraise and measure the interests, the experience and the business or economic sense of a community. Every one knows that it is common practice for owners of used cars to sell them or trade them in on other cars to secondhand dealers. The amount of money received from the sale or the amount of credit given on the purchase of another, is generally dependent on the make, age and condition of the vehicle. The used car dealer has general knowledge of the various degrees of imperfection in old and worn cars, and has the technical knowledge to ascertain defects and weaknesses, and he buys them on that basis. They are not sold with the knowledge or expectation that they will be resold to third persons without examination or tests. They are sold to a person or company engaged in and practicing a trade or business, and the rule is general that there need be no warning to one in a particular trade or business against a danger generally known to that trade or business. Rosebrock, Admx., v. General Electric Co., 236 N. Y., 227, 140 N. E., 571.

It is our conclusion that the court properly entered its judgment in favor of the U-Drive-It Company.

Judgment affirmed in part and reversed in part.

Hunsicker, P. J., and Stevens, J., concur.


author: Hunsicker, P. J.

text:
    Roberts, Appellee, v. Fargo, Appellant.
    (No. 4299
    Decided November 26, 1952.)

      Mr. E. F. Mooneyham, for appellee.

      Mr. Clarence W. May and Mr. John D. May, for appellant.
   Hunsicker, P. J.

Emma Roberts, while riding as a passenger in an automobile operated by her husband, Frank C. Roberts, was injured in a collision of such automobile and one being driven by Walter D. Fargo, the appellant herein.

The accident occurred at the intersection of Burt avenue and Wooster road, north, in the city of Barberton, Summit county, Ohio. Burt avenue intersects Wooster road from the west at a right angle, but does not extend through Wooster road, thereby making a “T” intersection. Traffic at this intersection is controlled by a traffic signal light.

Emma Roberts said her husband, Frank, had stopped on Burt avenue at this intersection because the traffic signal was red; and that when the signal light changed to green, he drove into the intersection, intending to turn left, or north, on Wooster road, and waited for pedestrians to cross from the east to the west side of Wooster road, north.

At this time an Akron Transportation bus was standing on Wooster road, north, at the same intersection and to the north thereof, having discharged and taken on some passengers. This bus was waiting to proceed south when the traffic signal light would permit it to move forward.

Walter Fargo said he was stopped at this same intersection headed south, on the east side of the bus, also- awaiting the change of the traffic light. When such light changed to green, Fargo proceeded to move forward, when his automobile came into contact with the side of the Roberts car as it came out of Burt avenue into the intersection against the light, causing Emma Roberts to sustain certain injuries.

The testimony is in conflict as .to the exact position of the Roberts automobile. Fargo-claimed the Roberts car was not stopped in the intersection, but that it came out of Burt avenue in front of the bus after the traffic light had changed from red to green for traffic to move forward on Wooster road, north; that Roberts made a sharp left turn in coming out of Burt avenue onto Wooster road against the light, and thereby caused the collision.

-A jury returned a verdict for Mrs. Roberts, and, from the judgment rendered thereon, an appeal on questions of law is before this court.

Walter D. Fargo for his assignments of error says:

“1. The court erred in failing to give Fargo’s special request No. II.

“2. The court erred in failing to give Fargo’s special request No. III.

“3. The court erred in failing to give Fargo’s special request No. IV.

“4. The court erred in giving plaintiff’s special request No. 1.

“5. The court erred in its general charge.”

Counsel for appellant, Walter D. Fargo, insist that, in a former appeal involving the same parties, arising out of a former trial concerning the same collision, special request before argument No. II, as presented by Fargo, was approved by this court, and hence the trial court in the second trial committed prejudicial error in refusing the identical request given by the trial court in the prior trial.

This court did not approve such special request. This court specifically said in that appeal (Roberts v. Fargo, No. 4000, Summit County, decided November 30, 1949, unreported): ‘ ‘ The giving of Fargo’s special request No. II under the circumstances herein, did not constitute prejudicial error.” This we do not believe constituted an approval of the request, which is as follows:

“The Court instructs you, as a matter of law, that if you find by a preponderance of the evidence that the injuries complained of by the plaintiff, Emma Roberts, were caused directly, proximately and solely by the negligence of Mr. Roberts, the plaintiff’s husband, in the manner in which he operated his car at the time and place complained of, then your verdict should be for the defendant, Walter D. Fargo, in this action, and against the plaintiff.”

It may readily be seen that such request assumes that Mr. Roberts was guilty of negligence “in the manner in which he operated his car.” The trial court did not commit error in refusing to charge the jury before argument as requested by Fargo.

At the conclusion of the charge to the jury, the trial court said “Anything further?” to which counsel for Fargo replied “No request for further instructions on our part.”

It is now claimed on the part of Fargo that the trial court should have charged on the subject of the sole negligence of Mr. Roberts, since that matter had been brought to the attention of the court by special request before argument No. II.

It has long been the rule in Ohio that, if a charge is correct as to the issues presented, but omits some matter which might have been included, such omission does not constitute reversible error unless called to the attention of the trial court. Rhoades v. City of Cleveland, 157 Ohio St., 107, 105 N. E. (2d), 2; Lytle v. Pennsylvania Rd. Co., 91 Ohio App., 232, 108 N. E. (2d), 72; 2 Ohio Jurisprudence (Pt. 2), Appellate Review, Section 746, and cases there cited.

Was the trial court required to charge on the matter of the sole negligence of Mr. Roberts, because it was requested before argument, notwithstanding such request was not brought to the attention of the trial court at the conclusion of the charge?

Counsel have called our attention to a case decided by this court (Wharton v. Long, 18 Ohio Law Abs., 147), claiming that such case is authority for the position they advocate herein.

A careful reading of the opinion therein discloses that, after the special request to charge before argument was refused, and at the close of the general charge, counsel again requested a charge on the subject contained in the special request. This condition of affairs does not appear in the instant case. We have found no case in Ohio which sustains the proposition contended for by counsel for the appellant.

The Supreme Court of Ohio in the case of Schreiber v. National Smelting Co., 157 Ohio St., 1, 104 N. E. (2d), 4, said:

“1. In an action for personal injuries alleged to have resulted from defendant’s negligence the defendant may prove under his general denial that the injuries were caused by the negligence of a third person.

“2. Where, in an action for personal injuries, suffered while plaintiff was a guest passenger in an automobile, against the operator of another motor vehicle, the answer of the defendant is in the form of a general denial, evidence as to the manner in which the automobile in which the plaintiff was riding was operated by the driver thereof is competent. If such evidence establishes as a matter of law that the driver of the automobile in which the plaintiff was riding violated the assured-clear-distance-ahead rule, it is proper for the court to charge the jury that such driver was guilty of negligence; that his negligence cannot be imputed to the plaintiff who was a guest passenger in the automobile; that the defendant is not liable if the jury should find that such negligence of the driver of the automobile was the sole cause of the collision; and that the defendant is liable if the jury should find that the defendant was guilty of any negligence which proximately caused or contributed to the collision and the injuries resulting therefrom.”

Certainly it was proper for the trial court to charge on the subject of the sole negligence of a third person if the evidence presented facts sufficient to justify such charge; but where a charge is free from errors of commission, and where the issues are fully presented to the jury, and counsel have indicated that they desire no further instruction, it is not incumbent on the court to inquire of counsel as to subject matter which is contained in an inaccurate special request before argument.

Section 11560, General Code, says:

“An exception shall not he necessary, at any stage or step of the case or matter, to lay a foundation for review whenever a matter has been called to the attention of the court by objection, motion, or otherwise and the court has ruled thereon. Error can be predicated upon erroneous statements contained in the charge, not induced by the complaining party, without exception being taken to the charge. ’ ’

This section, however, does not relieve counsel of the duty to call the court’s attention to any omission in a charge, unless the jury was misled by the instruction given. Karr, Admr., v. Sixt, 146 Ohio St., 527, at p. 536, 67 N. E. (2d), 331; Columbus Ry. Co. v. Ritter, 67 Ohio St., 53, 65 N. E., 613; Casanova v. Wagner, 85 Ohio App., 278, 88 N. E. (2d), 312.

In the case of Rhoades v. City of Cleveland, supra, the court said, at pp. 108 and 109:

“As a general rule, in the absence of statutory provisions to the contrary, a party, represented by counsel, may not ordinarily avail himself of an error which was not called to the attention of the trial judge and which could and might have been corrected by the trial judge if it had been called to his attention. Adams v. State, 25 Ohio St., 584.

“The reasons for this general rule are stated in the opinion at page 257 in State v. Tudor, 154 Ohio St., 249, 95 N. E. (2d), 385. As pointed out in that ease at page 258, there is in Ohio, by reason of certain statutory provisions (Section 11560, General Code), an exception to this general rule where errors in the charge of the court are involved. See Columbus Ry. Co. v. Ritter, 67 Ohio St., 58 [53], 64, 65 N. E., 613; State v. McCoy, 88 Ohio St., 447, 454, 103 N. E., 136. However, where such errors in the charge of the court are errors of omission and not errors of commission, the general rule applies, and, unless counsel has requested the court to supply the omissions, such errors of omission will not ordinarily justify a reversal. Columbus Ry. Co. v. Ritter, supra (paragraph two of the syllabus); State v. McCoy, supra (paragraph three of the syllabus); Beeler v. Ponting, 116 Ohio St., 432, 156 N. E., 599.”

We believe that it is the duty of counsel, at the conclusion of the general charge, to advise the trial court of any additional proper subjects which such counsel may desire to be made a part of the general charge, and counsel cannot rely on the fact that certain matter was not included in the charge, which was requested as a special charge before argument, when such charge is otherwise complete.

The trial court in the general charge said:

“I have purposely .refrained from directing your attention to any question as to whether Mr. Roberts was negligent in the operation of his automobile, since that would not and could not be controlling in this case. When I say since that, since the determination of your consideration of that question would not control. ’ ’

Did the trial court by the use of this language commit error prejudicial to the substantial rights of the defendant?

A defendant in a negligence case is permitted under a general denial to establish, if he can, an efficient independant cause — which, in the instant case, the defendant claimed was the negligence of Mr. Roberts.

It is also proper for the court to charge on the subject of the sole negligence of a third party, where such third-party negligence is properly in the case.

The ultimate question, however, in the instant case, was not who was negligent, or whose negligence caused the injury, but whether the defendant was negligent in a manner proximately causing the injury. The trial court properly defined the issues as between Mrs. Roberts and Fargo.

As we have pointed ont above, if the defendant desired, in the instant case, a charge on the question of the sole negligence of a third person, it was incumbent upon him to call that matter to the attention of the trial court at the conclusion of the general charge. A failure to so charge is an omission that can and should be corrected by a request for additional instructions.

The issue as made by the pleadings and the evidence was between the parties, Mrs. Roberts and the appellant, Fargo. When the trial judge instructed the jury that the negligence, if any, of Mr. Roberts was not controlling, he stated a correct principle of law, for, in the charge as a whole, he limited the issue to the question as to whether the defendant was guilty of negligence which prosimately caused the injuries which Mrs. Roberts sustained.

We therefore determine that, when the court charged as it did concerning the conduct of Mr. Roberts, it did not commit error prejudicial to the substantial rights of the appellant.

We have examined all other claimed errors, and find none prejudicial to the substantial rights of the appellant.

Judgment affirmed.

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


author: Guernsey, J.

text:
    The State of Ohio, Appellee, v. Cimpritz, Appellant.

      (No. 328
    Decided June 3, 1952.)

      Mr. Webb D. Tomb, for appellee.

      Mr. Francis M. Marley, for appellant.
   Guernsey, J.

This is an appeal on questions of law from a judgment of conviction and sentence, by the Common Pleas Court of Seneca County, Ohio, rendered upon a verdict of guilty of an offense charged in an indictment returned by a grand jury of said county.

The indictment mentioned is based on the provisions of Section 12439, General Code, which reads as follows:

“ [Having possession of burglar’s tools.] Whoever has or keeps in possession tools, implements, or other things used by burglars for house breaking, forcing-doors, windows, locks or buildings, or other places where goods, wares, merchandise or money are kept, with the intention of using such tools or implements burglariously, shall be imprisoned in the penitentiary not less than one year nor more than five years.”

Omitting the formal parts of the indictment, it is in words and figures as follows:

‘ ‘ That Frank Cimpritz on the 6th day of December, 1951, at the county of Seneca aforesaid, unlawfully did have in his possession certain implements, to wit; one 26-inch wrecking bar; one 8-pound sledge hammer; one 11-inch cold chisel; one rubber mallet and one 2-wheel freight truck, commonly used by burglars for breaking and entering houses and other buildings, with intent then and there feloniously and burglariously to use and employ the said implements, he, the said Frank Cimpritz, then and there well knowing said implements to be commonly used by burglars for breaking and entering houses and other buildings, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio.”

By agreement of the parties this cause was tried by and submitted to a jury with cause No. 3481 in the Common Pleas Court of Seneca County, wherein the defendant was charged with the crime of attempted burglary.

Among the exhibits introduced in evidence at the trial were the items of property described in the indictment above set forth, and a large crowbar or wrecking bar, being state’s exhibit No. 10, not mentioned in said indictment.

The evidence in the case proves conclusively that the items mentioned in the indictment above set forth were all found in the trunk compartment of a 1941 Cadillac automobile which was owned and operated by the defendant. Said automobile, at the time it was discovered by members of the police department of the city of Fostoria, was being driven by the defendant in a northerly direction on Town street in said city and turned to the right about 300 yards south of San-dusky street in said city, into a dead-end street or driveway running in an easterly direction from said Town street and known as Stadium drive. It was stopped by members of said police department while it was being driven by the defendant in a westerly direction on said Stadium drive towards Town street. The trunk compartment of the automobile was locked at the time it was taken into custody by the police officers. The police officers were unable to locate the key to the trunk compartment.

The items mentioned in the indictment were found by the police officers after said automobile had been taken by them to the police station and later to a garage where a garage mechanic, at the request and under the direction of the police officers, had removed the rear seat of the automobile, thereby giving access to said trunk compartment.

There was no evidence that said automobile was seen or discovered by any of the members of said police department or any witness in the cause, other than defendant, prior to the time it was so discovered, stopped and taken into custody by the members of the police department. At the same time the automobile was taken into custody the police arrested the defendant.

About 15 minutes before said automobile was taken into custody by the police and the defendant arrested, the metal crowbar or wrecking bar, state’s exhibit No. 10, was found by police officers at the entrance to Al’s Supermarket. At the time it was found by the police officers said bar was leaning in an upright position in a groove of a pillar in the front entrance of Al’s Supermarket. There were indentations in the door and door frame of the front entrance of said store showing that said bar had been used in an attempt to pry open said entrance door.

Shortly before the bar was found, the defendant had been observed by a police officer standing near said entrance and stooping over to pick np some object which he placed in an upright position in the corner where said bar, state’s exhibit No. 10, was subsequently found.

All the implements mentioned as burglar tools in the indictment are implements in common use for lawful purposes so that, by Section 12439, General Code, it was incumbent upon the state to prove that the implements mentioned in the indictment were intended by the defendant to be used burglariously.

The large crowbar or wrecking bar, state’s exhibit No. 10, found at the entrance of the store was of the same character in this respect as the implements described in the indictment.

The evidence in the case tends to prove beyond a reasonable doubt that the large crowbar or wrecking bar, state’s exhibit No. 10, was intended by the defendant to be used burglariously, as it was so used. But there is no evidence tending to prove that the implements mentioned in the indictment were intended by the defendant to be used burglariously or that said implements were so used. There is no evidence that the large crowbar or wrecking bar, state’s exhibit No. 10, was ever in the possession of the defendant except at the time he picked up the same near the entrance to the store and placed it in an upright position in said entrance.

There is no evidence that any of the implements described in the indictment were at any time at or near the entrance of said store, which was attempted to be burglarized. Consequently, there is no evidence tending to prove that the implements described in the indictment were intended to be used burglariously.

The intention of the defendant to use said implements burglariously is an essential element of the offense charged in the indictment and the defendant should not be convicted of such offense without such proof.

Among his assignments of error, defendant assigns error in the refusal of the court to grant his motion for a directed verdict made at the close of the state’s case.

An examination of the record discloses that the defendant did not stand on this motion but introduced evidence on his defense in chief, and that at the conclusion of all the evidence in the case the defendant failed to renew said motion for a directed verdict. This conduct of the defendant is a waiver of his motion made at the conclusion of the state’s case and the refusal of the trial court to grant said motion can not be considered as an error by this reviewing court.

Defendant’s assignment of error that the verdict and judgment are not sustained by sufficient evidence was included as a ground for new trial in defendant’s motion for a new trial filed in the trial court and can be and is considered by this court on this appeal.

The trial court erred in not granting defendant’s motion for a new trial on the ground that the verdict of guilty was not sustained by sufficient evidence, as the state failed to adduce any evidence tending to prove that the defendant intended to use any of the implements described in the indictment, burglariously.

For this error the judgment of the Common Pleas Court is reversed, at costs of appellee, and the cause is remanded to the Common Pleas Court for a new trial and further proceedings accordingly to law.

Judgment reversed.

Middleton, P. J., and Ahl, J., concur.


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    Hartenstein, Appellee, v. New York Life Insurance Co., Appellant.

      (No. 4272
    Decided August 6, 1952.)

      Messrs. Englebeck & Kaufmann, for appellee.

      Mr. Carl D. Sheppard, for appellant.
   Doyle, J.

Mrs. Irma L. Hartenstein, as the beneficiary of a life insurance policy issued upon the life of her husband, Alfred D. Hartenstein, sued the New York Life Insurance Company to recover double indemnity provided for in the policy for death resulting “directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means * * *; provided, however, that such double indemnity benefit shall not be payable if the insured’s death resulted, directly or indirectly, from (a) self-destruction, whether sane or insane * * * M

It is alleged in the petition “that on or about the 16th day of November, 1949, and while said policy was in full force and effect, the said Alfred D. Hartenstein did die by violent, external and accidental means as the proximate result of being struck by a railroad locomotive while an occupant of an automobile. ’ ’ The defendant company filed its answer, and, after certain admissions, denied that the insured died “directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means ’ ’ within the meaning of the policy, but that the death was caused by “self-destruction.” The reply to the answer, in addition to a general denial, specifically denied “self-destruction.”

At the close of the evidence and pursuant to the charge of the court, the jury rendered its verdict for the beneficiary and against the insurance company. The case is now before this court on appeal from the judgment entered by the Court of Common Pleas of Summit County, on the verdict so rendered.

Error, claimed to be prejudicial to the defendant company, is presented in the following terms:

“ (1) * * * the verdict of the jury is contrary to the manifest weight of the evidence and is contrary to law.

“ (2) The court erred in its charge to the jury after the argument of this cause.

“(3) The court erred in the rejection of evidence offered by the defendant, to which rejection the defendant at the time excepted.

“(4) The court committed other errors manifest upon the face of the record.”

The testimony of the several persons who were near the scene of the tragedy and witnessed the conduct and activity of the insured was for all practical purposes essentially the same on the question of how he met his death. In brief, there is testimony tending to prove that the insured drove his automobile on an improved highway to a point several hundred feet from a well-marked main line, four-track railroad crossing, and then parked for “fifteen or twenty minutes.” His unusual conduct was such as to attract the attention of a nearby workman. Several automobiles at about this time came to the crossing and stopped to give way to a forty-car loaded Baltimore and Ohio freight train, which was approaching at a speed of approximately 40 miles an hour. While the warning lights were flashing, and the train’s whistle was blowing, the insured drove his car away from its parked position, passed around the several automobiles ahead, which had been stopped for the train, hesitated momentarily at the boundary of the crossing, and then proceeded slowly to the track upon which the train was approaching, where the automobile came to a stop. In a “matter of seconds” the inevitable collision occurred, and the insured was thrown from his car to the side of the tracks, while the train continued on through the crossing, carrying the automobile on the front of the engine. Death followed quickly. In addition to the warning signals, there is evidence that the train could be plainly seen in the broad light of the day by all who approached the crossing.

From these facts there arose a jury question, in view of the pleadings, whether this death resulted from accidental means or from self-destruction. The jury found, as stated above, that it resulted from accidental means.

During the trial evidence was introduced, and later rejected by the court, tending to prove a motive for suicide. It appears that the insured was, at the time of his death, the secretary of one of the lodges of a prominent international fraternal society. In his capacity as secretary, he received the income arising from the payment of dues, etc., and it was his duty to deposit it in a local bank, named by action of the lodge, as depository. Several weeks before his death, an annual audit of these funds was commenced by a designated committee of the lodge, and there was tentatively revealed that, while the secretary’s books showed $23,401.76 on hand, the reconciliation with the depository bank indicated $13,607.76 in amount. While this evidence given at the time of the trial created only an inference that the insured was responsible for it, nevertheless, in view of the later history of the insured, and the circumstantial setting of the means of death, we think the testimony had probative value and was admissible.

It is argued by the appellee that “The most that can be said for the evidence * * * relative to the * * * lodge is the claim of members * * * that the accounts * * * were, at the time of the death * * *, short. It might be inferred, and inferred only, that Alfred D. Hartenstein was responsible for the shortage. That, however, is as far as the inference could go. To infer that such a shortage was a motive for suicide would be to base an inference upon an inference, the first inference being that by reason of the claimed shortage it might be inferred that * * * (the insured) was responsible for it. To further infer that this constituted a motive for * * * self-destruction * * * is unquestionably basing an inference upon an inference, which is inadmissible in the Ohio law.”

The trial court, in rejecting the evidence, apparently adopted this reasoning. The jury was told that “It is the law in Ohio that an issue cannot be proved by basing one inference upon another, because that proof would be too conjectural and too speculative.”

Under the circumstances of this case, either the insured died “directly and independently of all other means from bodily injury effected solely through external, violent and accidental means,” or he died from ‘ ‘ self-destruction. ’ ’

On the question of suicide or self-destruction, intent is indeed an element. (We presume the insured sane— there was no evidence to the contrary. We therefore treat the question as one of ‘ ‘ suicide. ”) If a sane person loses his life as a direct result of his own conduct, without an intention to destroy himself, he has not committed suicide, even though he has been grossly negligent or guilty of wanton or willful misconduct.

Intent is a ripened purpose to effect a certain result, and, as stated, must exist in suicide. Motive is an entirely different thing. Generally speaking, motive has to do with the inducement, the reason, the cause or the incentive for the intent — that condition of mind which incites the actibn.

There are usually two evidential steps in the establishment of motive: (a) evidence of facts and circumstances, known to the person, which would tend to excite an emotion seeking an outlet in action; (b) the emotion or passion itself, likely to lead to a certain outlet in action — for instance, suicide.

In the textbooks may be found the illustration of the prosecution of A by B in a suit at law, which is said to have been a “motive” for A’s subsequent assault and battery upon B. Here the “motive” actually was not the lawsuit, because the motive is the emotion, the state of mind. The fact of the lawsuit, however, does tend to prove the state of mind. Thus, any evidence of facts and circumstances known to an individual which tends to prove in him an emotion, which emotion may have a tendency of seeking an outlet in action by suicide, is always admissible in evidence, when the question of suicide is an issue in the case. I Wigmore on Evidence (Third Ed.), Section 117, et seq.; II Wig-more on Evidence (Third Ed.), Section 385, et seq.

In the case before us, it is of no particular consequence whether the insured was or was not a defaulter. The fact that he was called upon to account for the accuracy and honesty of his stewardship in the handling of his lodge’s financial affairs, under circumstances tending to show various questionable discrepancies, is' competent and relevant, as tending to prove a state of. mind. There are a number of authorities (with which we do not disagree) which hold that wide latitude of inquiry as to existence of a motive to commit suicide should be permitted, to enable the insurer to overcome, if he can, the presumption against suicide (Hrybar v. Metropolitan Life Ins. Co., 140 Ohio St., 437, 45 N. E. [2d], 114), and that the rejection of such evidence is error. Occidental Life Ins. Co. v. U. S. National Bank of Denver, 98 Colo., 126, 53 P. (2d), 1180; Occidental Life Ins. Co. v. Graham, 22 F. (2d), 528; Prudential Ins. Co. of America v. Morris, 72 F. (2d), 824.

See, also, Blackburn v. State, 23 Ohio St., 146 (defense of suicide in homicide case).

The establishment of a motive for suicide or self-destruction is not necessary. Yet if it can be found as a probable fact, it becomes an item of evidence. Motive is always relevant under such a claim, and the absence of any showing of an emotion or passion is a circumstance which may be considered against the claim.

Much is made of the so-called judicial slogan which is said to obtain in this state, that “An inference of fact cannot be predicated upon another inference, but must be predicated upon a fact supported by evidence.” Second paragraph of syllabus in Sobolovitz v. Lubric Oil Co., 107 Ohio St., 204, 140 N. E., 634. See, also, St. Mary’s Gas Co. v. Brodbeck, Admr., 114 Ohio St., 423, 151 N. E., 323; and Lashure v. East Ohio Gas Co., 119 Ohio St., 9, 162 N. E., 41.

We are not gifted with the power to discern with mathematical certainty whether the Supreme Court of this state did or did not intend to pronounce an all-purpose rule. We are inclined to think that it did not, because of various of its decisions in years gone by, and because of its most recent decision in City of Cleveland v. McNea, 158 Ohio St., 138, 107 N. E. (2d), 201. It is probable that the Supreme Court meant only to say that, in passing upon the sufficiency of evidence, if one of the premises is not sufficiently proved, the entire syllogism fails. 1 Jones Commentaries on Evidence (Second Ed.), Section 365; Ensel v. Lumber Ins. Co. of New York, 88 Ohio St., 269, 102 N. E., 955.

Professor Wigmore, in his inimitable provocative style, says:

“It was once suggested that an ‘inference upon an inference’ will not be permitted, i. e., that a fact desired to be used circumstantially must itself be established by testimonial evidence; and this suggestion has been repeated by several courts, and sometimes actually enforced. There is no such orthodox rule; nor can be. If there were, hardly a single trial could be adequately prosecuted. For example, on a charge of murder, the defendant’s gun is found discharged; from this we infer that he discharged it; and from this we infer that it was his bullet which struck and killed the deceased. Or¿ the defendant is shown to have been sharpening a knife; from this we argue that he had a design to use it upon the deceased; and from this we argue that the fatal stab was the result of this design. In these and innumerable daily instances we build up inference upon inference, and yet no court (until in very modern times) ever thought of forbidding it. All departments of reasoning, all scientific work, every day’s life and every day’s trials, proceed upon such data.- The judicial utterances that sanction the fallacious and impractical limitation, originally put forward without authority, must be taken as valid only for the particular evidentiary facts therein ruled upon. * * I Wigmore on Evidence (Third Ed.), Section 41.

The logic of authorities adhering to the text set out in the preceding paragraph finds expression and application in a host of cases. In Neely v. Provident Life & Accident Ins. Co., 322 Pa., 417, 185 A., 784, the learned Justice Maxey of the Supreme Court of Pennsylvania stated:

‘ ‘Both in the activities of laymen and in the administration of justice there are many examples of the permissible drawing of more than one inference from a primary established fact. When jurors in their deliberations arrive by a process of reasoning at an acceptable inference of fact, they have a right to add such fact to any previous facts found by them and proceed by ratiocination from such fact or facts to additional inferences of fact and then proceed still furr ther by like process until they arrive at the ultimate conclusion on the issue trying.”

The famous case of State v. Hauptmann, 115 N. J. Law, 412, 180 A., 809, certiorari denied, 296 U. S., 649, 80 L. Ed., 461, 56 S. Ct., 310 (Lindbergh kidnapping and murder), is another authority in point, and is cited by the Pennsylvania court in the case noted above.

Neither time nor space permits extensive discussion of the many reasons for or against the rule or its various modifications and exceptions. Eeference is made to the volumes of Jones and Wigmore heretofore cited and to the detailed annotation in 95 A. L. R., 162. et seq., with especial reference to “III. Modifications or explanations of, or exceptions to, supposed general rules”; likewise to the documentation and discussion of Ohio cases by Allen B. Diefenbach in Vol. 15 Ohio Bar Assn. Rep., 541.

In the case before us, we do not have the question of the proof of an ultimate fact based upon inference predicated upon another inference, as did the Supreme Court in Sobolovitz v. Lubric Oil Co., supra; St. Marys Gas Co. v. Brodbeck, Admr., supra; and Lashure v. East Ohio Gas Co., supra. We have before us only the question of the sufficiency of the evidence offered to prove an evidentiary fact (motive).

In stating and applying the rule as we understand it to be to the facts before us, we hold that an inference cannot be based upon evidence which is speculative or uncertain — evidence which raises only a conjecture or possibility. However, in the proof of an evidentiary fact, if the evidence from which the first inference (emotion) is drawn, has probative value (a shortage in the bank accounts, etc. — unusual and peculiar conduct at the railroad crossing), and the inference of an emotion is a reasonable one (which we find it to be), then the second inference may be reasonably drawn — i. e., the inference that the emotion so found to exist sought an outlet in action. From this evidence, a jury could reasonably find the evidentiary fact of “motive.” A ruling to the contrary on the so-called claim of “inference upon an inference” would always preclude the establishment of a state of mind — an emotion — except in those cases in which the person himself has attested to his mental state.

The judgment will be reversed, and the cause remanded for error in the court’s refusal to consider the evidence offered to establish motive. The judgment entry will state that we find no other error of a prejudicial character.

Judgment reversed.

Hunsicker, P. J., and Stevens, J., concur.


text:
    Kirschner, Appellee, v. Richter Concrete Corp., Appellant.
    (No. 7574
    Decided June 2, 1952.)

      Mr. Leonard Kirschner, for appellee.

      Mr. John M. McCaslin, Jr., for appellant.
   Per Curiam.

The plaintiff ordered three loads of ready-mixed concrete from the defendant, to be delivered on a designated day. The concrete consisted of three cubic yards in each load contained in a revolving cylinder upon a heavy delivery truck.

The plaintiff had employed certain workmen to use this concrete in the making of a platform in his rear yard, 100 feet from the street. What their authority was other than to spread this concrete is not disclosed.

When defendant arrived to deliver the concrete, the plaintiff was not there to receive it and give instructions as to the exact place and method of delivery. The defendant’s driver parked the truck at the curb in front of the house and went to the rear to make inquiry. He found these workmen and inquired of them as to where delivery should be made. They requested him to make delivery. He was asked to deliver the concrete in the rear where it was to be spread. To do this required running the loaded truck over two runway strips leading from the sidewalk to the rear. He asked the workmen whether it was “all right to come over the driveway.” They said “Yes. We haven’t got no wheelbarrows and that is an awful longways to wheel that concrete as much as it is going to take to go back there. It is perfectly all right to come over the driveway.” The driver said “Well it is liable to get busted up.” One of the laborers said “Well, if it gets busted up we will fix it on the last load. ’ ’

The driver thereupon ran the loaded truck over the concrete driveway and damaged the driveway by cracking and crushing the runways in many places.

In the bill of particulars in this action, it is alleged that the defendant recklessly drove the truck over the driveway without warning the plaintiff that it would damage the driveway.

There is no evidence of failure to warn. If the workmen in the rear had authority in the premises, the defendant did give a warning to the plaintiff, as has already been disclosed. There was no contrary evidence.

There is no evidence as to the authority of these workmen other than that they were engaged as manual laborers to spread this concrete.

On this evidence, the Municipal Court found for the plaintiff and rendered judgment for the damage proven. No special finding of facts was made.

On appeal to the Common Pleas Court, the judgment was affirmed and the case is here on appeal from the Common Pleas Court.

In view of the state of the record, the question before this court is whether upon any rational theory of the evidence and any applicable principle of law, the judgment can be sustained. If it can, it is our duty to affirm the judgment.

In the absence of a license or authority from the owner, the defendant had no right to enter and damage the driveway. The burden of justification rested upon it.

Certainly, the order for concrete by the plaintiff did not give a license to the defendant to destroy the driveway. The defendant’s justification must rest upon the proposition that the workmen engaged in spreading concrete were authorized by the plaintiff to give his consent.

If we assume that these workmen would have had authority to direct delivery, could it have been done without injury to the property, it is quite another thing to say that their authority extended to permitting the destruction of the driveway. The court could reasonably conclude that their authority did not extend that far.

The defendant knowing that the driveway would likely be damaged and require reconstruction is not in a position to say that that was within the apparent authority of the workmen, even assuming that they had authority to direct delivery if it could be done without damage to the property.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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