author: Hurd, P. J.

text:
    The State of Ohio, Appellee, v. Reed, Appellant.
    (No. 21217
    Decided December 20, 1948.)
    Mr. Frank, T. Cullitan, prosecuting attorney, and Mr. Harvey G. Mock, for appellee.
    Mr. Sidney B. Fmk and Mr. H. G. Holland, for appellant.
   Hurd, P. J.

On February 6, 1948, at about 1:30 p. in., the defendant, Ralph Reed, together with three companions, Esson, LaDuca and Muncy, attempted a pay-roll robbery at The Reliable Steel Plate Company located at 2330 East 79 street, Cleveland, Ohio. The four had previously met at room 1 of the Netley hotel in Cleveland, at approximately twelve noon. There they planned the robbery. They left the hotel room some time between 12:30 and 1 p. m., and first drove past the scene of the crime.

Upon their return, Reed, together with Esson and LaDuca, entered the offices of the company and Muncy remained in the car outside. Reed entered the office first. All three were masked and Reed and LaDuca had loaded guns. Three women employees were in the office at the time. The three defendants forced the women employees into a washroom. After some 20 minutes elapsed and while the conspirators were waiting for the pay roll to be returned from the bank by the bookkeeper of the company, the owners of the company, Mr. Emanuel Margulis and his son, George Margulis, returned to the office from lunch, immediately Reed and LaDuca, at the point of guns, demanded the pay roll from them, and when informed that they did not have the pay roll, LaDuca, with a gun pressed to the stomach of the elder Margulis, demanded their wallets. The father turned his wallet over to LaDuca. Reed held a gun to the back of the son, George Margulis, and while he held his gun on the son the telephone bell rang and one of the girls went to answer the telephone. At the same time as the son started to lower his hands to turn his wallet over to Reed, Reed shot him in the back. The wounded man was taken to a hospital where he died about a half hour later. The defendants then took the contents of the petty cashbox in the company’s office and started to leave. Reed, after having fired the shot into the back of George Margulis turned his gun on the father of the victim and the other employees and told them-not to move and the men ran out of the place. They escaped in the car in which Muncy was sitting.

By a peculiar coincidence, it happened that two employees of the telephone company were working as-installers on a pole on Lucille avenue near the scene of the robbery. They observed the robbers’ car as it swerved around the corner. They noticed that the man nest to the driver was masked and was' holding a gun and that there were two occupants in the back seat of the car. The telephone men immediately cut in on a line and called the police, giving them a description of the car. The police arrived shortly thereafter and searched the area. They observed a car answering the description going north on Bast 82nd street and they gave chase. Being spotted by the police the get-away car was pulled to the curb in front of 8113 Linwood avenue and the occupants took to flight on foot.

Later LaDuca was observed walking on Linwood avenue. He was arrested and searched and $55 was found in his pocket which he admitted was the money he had taken from the wallet of the senior Margulis. Other police officers searching the vicinity observed the head of a man projecting from the northwest corner of a building at 8113 Corey avenue. The police ran around the building and came upon a man standing with a loaded gun in his hand and confronting a woman. The police disarmed him and found upon his person some papers. belonging to The Reliable Steel Plate Company. This man was James Esson. As Esson was being searched for more weapons, he told the police that he had a toy pistol at the time of the stick-up and had disposed of it in a yard at the south-side of Corey avenue in the rear of one of the garages. The police proceeded to the garage and were apprised by citizens that another man had gone into the garage. In the garage the police found Edsel Muncy, the driver of the automobile in which the men made their get-away. The police then proceeded to the Netley hotel at 8803 Euclid avenue where Sam LaDuca had a room. There they apprehended defendant, Reed, in the hallway of the hotel. Reed told the police that he was a roommate of LaDuca and took them to the room that he and LaDuca had occupied. Reed had in his pocket a handkerchief folded in a triangular fashion. He told the police where he had thrown the gun he had used in the robbery as well as another handkerchief mask used in the robbery. Reed’s gun a nickel-plated colt automatic was found in a basement window well at 8119 Linwood avenue. There was a bullet in the firing chamber and five in a clip. In searching LaDuca’s room the police found. 14 bullets on the floor of the clothes closet which defendant Reed admitted belonged to him.

When the four men were brought in for questioning they all made and signed written statements admitting their part in the crime.

On February 24,1948, defendant, Reed, was indicted jointly with James Esson, Sam LaDuca and Edsel Muncy on two counts charging the defendants with murder in the first degree for the killing of George Margulis.

The first count charged as follows: “Do find and present that Ralph Reed, James R. Esson, Sam LaDuca and Edsel Ford Muncy, on or about the 6th day of February, 1948, at the county aforesaid, unlawfully, purposely and while in the perpetration of robbery, killed George Margulis contrary to the form of the statute in such case * *

The second count charged murder in the first degree with deliberate and premeditated malice.

The defendant, Reed, was tried separately to a court and jury. The jury returned a verdict of guilty as-charged in the first count in the indictment, without a recommendation of mercy. The defendant was sentenced to death in the electric chair on September 23, 1948. A motion for new trial having been overruled, error was prosecuted to this court where a stay of execution was granted, pending appeal.

It was admitted by the defendant on the stand as-well as in a statement which he gave to the police, that he fired the shot which killed Margulis, in the course of the robbery. Defendant claimed, however,, that the shooting was accidental and that he did not purposely kill the deceased. The record shows that both Reed and LaDuca had criminal records and had become acquainted while serving time in the Mansfield-Reformatory.

There are ten assignments of error which for purposes of discussion can be consolidated and reduced to three. (1) Error of the court in charging on the subject of confessions; (2) error of the court in the admission of certain evidence alleged to be prejudicial to the rights of defendant; (3) that the verdict is manifestly against the weight of the evidence.

We will consider first the error claimed in the charge of the court on the subject of confessions. The complaint is made that the statement of the defendant admitted in evidence and to which the court referred was not a confession and that, therefore, it was error for the court to charge the jury on this subject. We think this contention is untenable. A reading of . the defendant’s signed statement voluntarily given to the police unmistakably shows that he participated in the planning of the robbery. The following excerpt from his statement supports this contention:

“The fellows started talking and I said ‘I am not accustomed to this, I am a burglar, but I will 'do anything to get some money right away.’ Bill said the place he had in mind was all right and the pay roll would be waiting for us. He said there would be one man and two girls and they would give up the pay roll without any argument.”

His statement also shows active participation in the crime with a loaded gun, as instance the following excerpt:

“The second time we came back we entered the building. I went in first * * * 1 told the three girls to behave themselves and not say anything and nobody would be hurt. I said all we wanted was the pay roll. We all had guns in our hands and we all had masks on, made out of a handkerchief. Bill told the girls to go in the back in the ladies washroom and we watched them and we waited. It seemed like a half hour to me. The two fellows that run the place came in and we and Sammy all stuck them up. I just said ‘Put up your hands,’ and they put them up and Sam LaDuca said to me ‘you take care of this guy.’ Then he started to search the other guy. The one he searched I think was •the boss. I started to frisk the other one and he had his overcoat on and »when I did that the gun went off and he just fell and I run. ’ ’

Further on in the statement is the following:

“Q. What did you do with the automatic you had? A. I threw it in like a cellar window place in a house.
‘ ‘ Q. Showing you a 380 nickle-plated Colt automatic with pearl handles, Serial No. 99280 with a nick out of the pear] on the back, is this your gun? A. Yes sir.
“Q. Is this the gun you had in your hand when it went off in the stick-up or robbery at this place on East 79 St.? A. Yes.”

By way of defensive matter we find the following statement:

“Q. Is there anything else you want to tell us about this matter? A. I didn’t know the safety was off the gun and I didn’t expect it to go off. I just tried to-scare him. I didn’t want to shoot him. That’s all.”

That statement was properly admitted in evidence-in the trial of the case and the jury had it with them, in their jury room. Of course the defendant did not say in haec verba “1 purposefully shot the decedent.”' To the contrary, he denied a purposeful killing. In-view of the contents of this statement we think it was' pot only proper but the duty of the court, to charge on the proposition of law concerning confessions. Therefore we find no error in this respect.

The next claim of error which is argued seriously is-in the admission of a statement by a codefendant named' Esson, made to the police while he was being taken to-the police station. It appears that he was asked who-his accomplices were. Referring to defendant, Reed, he said he was accompanied by another boy named “Red,” he did not know his first or his surname. The officer while testifying to this answered questions as-follows:

“Q. Did he say how long he had known him? A-He told us he had known him about three days.
‘‘Q. Yes? A. At the same time Esson admonished us to be very careful when apprehending this Reed. Very dangerous.”

When objection was made by counsel for defendant,, the court inquired of officer Cavanaugh who was testifying as to whether this was part of the conversation, to which the witness answered ‘‘Yes, Sir,” and the court thereupon overruled the objection which had been made. This conversation took place about 20' minutes after the shooting and before Reed was apprehended about one-half hour after the shooting, at theNetley hotel.

In view of these facts, it is the claim of the state that the statement made by Esson to officer Cavanaugh to be careful when apprehending Reed was, therefore, competent and admissible as part of the res gestae, it being contended that evidence falls within the rule of res gestae where the words spoken are in such close connection with the acts done that they are part of them. It is also contended that the rule applies to words spoken by a participant in a crime. In support of this contention the state cites the cases of State v. Lasecki (1914), 90 Ohio St., 10, 106 N. E., 660, L. R. A. 1915E, 202, Ann. Cas. 1916C, 1182, and State v. Habig, 106 Ohio St., 151, 140 N. E., 195.

We are not inclined to agree with the contention of the state on this subject of res gestae as applied to the statement of the coconspirator in this case.

It is held in State v. Lasecki, supra, that the doctrine of res gestae as applied to exclamations should have its limits determined not by the strict meaning of the word “contemporaneously” but rather by the causal logical or psychological relation of such exclamation with the primary facts in controversy. In that case the exclamation of a boy four years of age that “the bums killed pa with a broomstick” was made from ten to thirty seconds after a fatal assault upon the father. Certainly there was also a logical and psychological relation with the primary fact in controversy, namely the crime charged.

In the Rabig case the robbers were in flight carrying with them the proceeds of the robbery and it was held that the killing of a policeman in the course of their •attempted escape was homicide committed in perpetration of robbery and was thus part of the res gestae.

In the present case there is presented a different set of facts. True, the statement was made about 20 mintutes after the crime and also that the defendant Reed was still in flight or at least had not yet been apprehended. It is possible of course that the utterance of codefendant Esson was made under the stress of what had just occurred, particularly the memory of seeing the deceased shot down in the course of the-robbery. He may at that time have been obsessed with the thought that Reed was a dangerous man and under the impulse of the moment warned the officers to-be careful. He might have feared there would be another killing. On the other hand, his statement may have been influenced by a thought of self-preservation. He may have had time to reflect and was attempting, to gain the good will of the officers by making this statement.

However, we find no causal, logical or psychological relation to the crime charged and the statement made. Neither do we consider that the statement made was so connected with the primary fact in issue as to form, part of the same transaction or occurrence, nor does it tend to prove or disprove any fact in issue. Therefore we believe the statement should have been excluded as part of the res gestae.

This leaves for consideration the question of' whether it affirmatively appears from the record that the defendant was or may have been prejudiced thereby. In this respect we must be governed by the provisions of Section 13449-5, General Code, the pertinent part of which provides as follows:

“No motion for a new trial shall be granted or verdict set aside, nor shall any judgment of conviction be-reversed in any court * * * for the admission or rejection of any evidence offered against or for the accused' unless it affirmatively appears oh the record that the accused was or may have been prejudiced thereby.”

It is our view that the statement volunteered by thecodefendant to the police officer was not prejudicial! to the rights of defendant in this case.

We conclude from the entire record that defendant was not prevented by the admission of this testimony from having a fair trial.

There are two other instances in the record of which complaint is made, where testimony was admitted over the objections of the defendant. In each instance however the court instructed the jury to disregard the testimony of which complaint is made We think the instructions of the court in this respect were definite and explicit and that, therefore, no prejudicial error resulted.

Finally, it is the contention of counsel for defendant that the verdict in this case was manifestly against the weight of the evidence.

We cannot agree with this contention. As heretofore stated, the statement of the defendant himself indicates that he participated in tbe planning of this robbery and proceeded to the scene of the crime armed with a deadly weapon. Expert opinion evidence was introduced showing that a five-pound weight was required to pull the trigger of the gun. In his statement to the police the defendant admitted that he was a burglar but that he would do anything to get money right away. He also testified that on leaving he pointed the loaded gun at the others and said “please do not move.” The jury could well take into consideration all of these statements together with the evidence given by the defendant in exculpation of his acts by claiming that the shooting was accidental.

By way of brief, counsel for defendant state: ‘ ‘ The defendant, with three others, planned a robbery. During the robbery a shot fired from the gun held by the defendant killed a certain George Margulis. These facts were conceded and the case turns upon two propositions; first did the defendant purposely kill George Marguiis; second, if he did, should the verdict of the jury have contained a recommendation of mercy?”

On the first proposition, the act of killing in the course of a robbery being conceded, an issue was made as to whether the killing was purposeful. No method has yet been found whereby the processes and workings of the human mind can be analyzed and measured to a degree of absolute certainty. Therefore, it is necessary to determine purpose and intent from acts and conduct. That a person is presumed to intend the natural and probable consequences of his voluntary act is too axiomatic to require discussion here.

The jury could very well consider that when defendant with others planned the robbery and took with him a loaded gun for the execution of such a crime of violence that he may even at that moment have formed a purpose or intention to kill if necessary in the accomplishment of his objective.

On the whole case, a question of fact was presented for the jury to determine the guilt, or innocence of the defendant of the crime charged, the state having the burden of proving guilt by evidence beyond a reasonable doubt. The members of the jury are the sole judges of the facts, the weight of the evidence and the credibility of the witnesses, and, having determined the issue as shown by their verdict, we cannot say that it is contrary to the manifest weight of the evidence.

On the second proposition, the defense argues that the jury should have granted mercy; that in effect there should not have been a “chair verdict” in this case.

In respect of this proposition, we must point out that this is a matter exclusively within the province of the jury, and this court is without jurisdiction to interfere by way of modification or reversal.

It is our conclusion that from all the evidence and under the provisions of Section 13449-5, General Code, the judgment of the Common Pleas Court should not be modified or reversed by this court.

The judgment, therefore, is affirmed.

Judgment affirmed.

Morgan and Skeel, JJ., concur.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    Icsman, Admr., Appellee, v. The New York Central Rd. Co. et al., Appellants.

      (No. 611
    Decided June 21, 1948.)

      Messrs. Murray & Murray, for appellee.

      Messrs. Flynn, Py & Kruse, for appellants.
   Carpenter, J.

This was an action for wrongfully causing the death of Beatrice Icsman. The verdict and judgment were for the plaintiff, and defendants appealed on questions of law. Their assignments of error are that judgment for them should have been ordered as a matter of law, on either their motions for a directed verdict or their motions for judgment notwithstanding the verdict.

About midnight November 4, 1944, decedent sustained fatal injuries while riding as a passenger in an automobile driven by Robert Schnell when it collided with the rear trucks of the locomotive tender of defendant New York Central Railroad Company, which was standing across Camp street in Sandusky on an industrial spur track. The defendant New York, Chicago & St. Louis Railroad Company was the owner of the track. Under Section 8814, General Code, both lessee and lessor of a railroad are jointly liable for the negligence of either.

It is admitted in the answer that a crossing sign was not maintained at that crossing as required by Section 8852, General Code. It is undisputed that no fixed or hand signs or signals were present, warning travelers on Camp street, from the north of the presence of a train on the crossing. These facts, together with the allegation that no whistle or bell was sounded by the engineer as the locomotive approached, as required by Section 8853, General Code, constitute the specifications of negligence.

The locomotive was engaged in switching some cars on the industrial sidings on the west side of the street, and under the circumstances a whistle sounded at the time and place required by the statute would not have warned the driver or occupants of the automobile that there would be a train across the street when they got there, so obviously this may be eliminated from consideration. Kramers v. Chesapeake & Ohio Ry. Co., 60 Ohio App., 556, 22 N. E. (2d), 227; Reed, Admr., v. Erie Rd. Co., 134 Ohio St., 31, 15 N. E. (2d), 637.

That the bell was ringing at the time of the collision was the positive testimony of all the witnesses on that subject save one of the occupants of the automobile, and she only said she did not hear it. So this element may be disregarded.

This left two fact questions before the court when it considered the defendants’ motions for judgment.

1. Could the failure of the defendants to provide the statutory crossing sign as required by Section 8852, General Code, have been a proximate cause of the death?

2. Were there “special circumstances rendei’ing the crossing peculiarly hazardous” at that time?

The answer pleaded that the death was “due entirely to the carelessness and negligence of the driver of the car * * * and to said decedent.” This was immaterial and added nothing to the general denial, except the hazard of error, as happened in Gottesman, Admr., v. City of Cleveland, 142 Ohio St., 410, 52 N. E. (2d), 644.

The issue of contributory negligence was not here raised in the pleadings, and, in the opinion of this court, not by the evidence. The negligence of the driver of the automobile could not be imputed to his passenger, the decedent. Because of this, the numerous decisions cited and discussed in the briefs that related to the negligence of drivers at grade crossings are not in point here.

The death of a passenger in an automobile was the subject of the claim in Reed, Admr., v. Erie Rd. Co., supra. That case had many points of similarity with the case at bar, except that there the crossing involved was “an ordinary country crossing, with an unobstructed view” of the tracks, the train was moving and the automobile struck the forty-second car back from the locomotive. The statutory crossing sign was on the opposite side of the track and, because of the train, was not visible to the travelers with the decedent. It was urged that there should have been signs on both sides, but this was disposed of by the comment in the opinion, that the presence of the train on the crossing “affords an effective danger signal to approaching travelers.” That observation furnishes a negative answer to the first question above propounded.

In the second paragraph of the syllabus in Capelle v Baltimore & Ohio Rd. Co., 136 Ohio St., 203, 24 N. E. (2d), 822, the court expressed the rationale of its decisions on this phase of grade-crossing collisions. In that case the automobile in which plaintiff was riding as a passenger collided with a train standing on a grade crossing in the open country. That paragraph of the syllabus is as follows:

“In general, a person who drives, or is driven, into the side of a railroad train standing or moving over a grade crossing cannot, in the absence of special circumstances rendering the crossing peculiarly hazardous, recover from the railroad company for injuries received thereby.”

Were there such special circumstances in the case at bar?

Immediately to the north of this crossing on Camp street, the direction from which the Schnell automobile was approaching, there was a subway where the main line of the New York Central railroad crosses that street on a separate grade. The spur grade crossing was just at the crest of the upgrade on the south side of the subway.

The defendants called as a witness a civil engineer who testified that 69.3 feet north of the south rail of the spur track the center of the pavement on Camp street was .41 of a foot lower than that rail; 100 feet north of the north rail, it was 1.24 feet lower; 105 feet, 1.42 feet; and 180 feet, 5 feet lower. It was a very dark and cloudy night and there was some evidence that it was misting at the time of and before the collision, all witnesses agreeing that a light rain was falling soon after.

It appears also that Camp street was a much-traveled thoroughfare, but there was no other traffic on it at the time in question. The locomotive engineer testified that the engine had stopped on the crossing “forty or fifty seconds’’ before the collision occurred.

Due to illness, the driver of the automobile was not able to testify, and the only other occupant of the auto, a woman who rode in the rear seat, testified that when they were about fifteen feet from the train, “I just looked up and there the engine was. I was looking straight ahead and I Ipoked up and there was the train. ’ ’

The headlights on the automobile were lighted, but there was no evidence as to how much, if at all, the light from them as the automobile came up that rather sharp grade illuminated the locomotive tender.

Although a railroad company is required by the statutes to provide certain signs and signals at grade crossings for the protection of travelers on the highway, it is sometimes said that these only represent the minimum of care required. If the situation of a crossing is such that ordinary care may require additional safeguards, the company may be negligent in failing to provide them, and whether it is is usually a question of fact, for the jury. Grand Trunk Ry. Co. v. Ives, 144 U. S., 408, 36 L. Ed., 485, 12 S. Ct., 679; Railway Co. v. Schneider, 45 Ohio St., 678, 17 N. E., 321; Weaver v. Columbus, S. & H. Ry. Co., 76 Ohio St., 164, 81 N. E., 180; Franklin v. Nowak, 53 Ohio App., 44, 4 N. E. (2d), 232; Loos v. Wheeling & L. E. Ry. Co., 60 Ohio App., 527, 22 N. E. (2d), 217.

In the opinion, at page 551, in the recent decision of Woodworth, Admx., v. New York Central Rd. Co., 149 Ohio St., 543, 80 N. E. (2d), 142, this principle was recognized when the court said:

“The law does not require railroad companies to place signals, gates or flashers at highway crossings unless ordered by the Public Utilities Commission, or unless such crossings are especially dangerous or there exist special circumstances which render such precautions necessary for the public safety.” Citing Railway Co. v. Schneider, supra.

Whether, in the instant, case, the special circumstances which existed at the crossing in question rendered it peculiarly hazardous that night as the Sehneil automobile approached from the subway, and whether the defendants exercised ordinary care to safeguard against those hazards, presented fact questions for the jury, and the court did not err in so submitting them. Its judgment is affirmed.

Judgment affirmed.

Conn and Fess, JJ., concur.


author: By the Court.

text:
    Univis Lens Co., Appellee, v. United Electrical, Radio and Machine Workers of America, CIO, et al., Appellants.
    (No. 2011
    Decided November 16, 1948.)

      Messrs. Smith, Schnacke & Compton, for appellee.

      Messrs. Davis, Davis <& Bandelman and Mr. John Ober, for appellants.
   By the Court.

This cause is submitted on two motions of appellants for extension of time within which-to file an assignment of errors and brief and also on motion of appellee to dismiss the appeal on the ground that the assignment of errors and brief and their bill of exceptions were not filed within time.

The question which is raised herein relative to the failure to file assignment of errors and brief was determined in Univis Lens Co. v. United Electrical, Radio & Machine Workers of America, 84 Ohio App., 323, to which reference is hereby made. The state of the record with respect to this matter in the instant case is similar to that in the principal case. In that case, we held that when an application for an extension of time within which to file assignment of errors and brief is filed within time, the court will exercise a broad discretion in granting additional time within which to file assignment of errors and brief. We would be disposed to grant additional time in this case but for the fact that on October 29, 1948, the appellants filed their assignment of errors and brief. The court will order such assignment of errors and brief to remain on file and as having been filed within time. Motion of appellee to dismiss the appeal on the ground that the assignment of errors and brief were not filed within time will be overruled.

The court now considers the motion of appellee to dismiss the appeal because of the failure to file a bill, of exceptions. On August 20, 1948, the court dismissed the appeal on questions of law and fact and retained the case as an appeal on questions of law. Pursuant to the provisions of Section 11564, General Code, the court, on August 20, 1948, made an order requiring the appellants to prepare and settle the bill of exceptions within a period of 30 days thereafter. The “settlement” of the bill of exceptions as used in Section 11564, General Code, refers to the settlement m the trial court. Rule VII of the Courts of Appeals 'has no application to an order made under the provisions of this section. The term “settlement” is used synonymously with “filed.” It appears that the bill of exceptions was “settled” in the trial court within the 30-day period. The bill has not yet been filed in this court. There is no statutory provision or rule of court applicable to this situation. The time within which the bill may be filed in this court must be fixed by order of this court. The court has made no such order. The words “prepare, settle and file his bill of exceptions herein’’ as used in the order under date of August 20, 1948, referes to the settlement and filing in the trial court and not in this court. The filing of the bill of exceptions in this court is a mere formality which this court will permit to be done in furtherance of justice. The defendants are given ten days after the date of the filing of the entry journalizing this opinion within which to file the bill of exceptions in this court.

Judgment accordingly.

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


text:
    Garland, Appellee, v. Gilbert, Exr., et al., Appellants.
    (No. 2029
    Decided February 18, 1949.)

      Mr. 1. C. Delscamp, for appellee.

      Mr. W. B. Earley, Mr. G. A. Funkhouser and Messrs. Baggott & Johnston, for appellants.
   By the Court.

This cause is submitted on motion of plaintiff, appellee herein, to affirm the judgment of the Court of Common Pleas on the ground that no bill of exceptions has been filed within 40 days after the overruling of the motion for new trial.

A bill of exceptions is not required to review alleged errors appearing on the face of the record. Section 11564, General Code. Prom the record it appears that the errors complained of may be exemplified without a bill of exceptions.

The motion is overruled.

Motion overruled.

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


author: Matthews, J.

text:
    Ross, a Minor, Appellee, v. Stricker, Appellant.

      (No. 7045
    Decided April 4, 1949.)

      Messrs. Doyle, Tomlin & Doyle, for appellee.

      Mr. C. R. Beirne, for appellant.
   Matthews, J.

This action arose as the result of a collision between two automobiles, one of which was operated by the plaintiff and the other by the defendant. The plaintiff claimed damages on account of personal injuries. The defendant, by cross-petition, asked for compensation on account of personal injuries and for the damage to his automobile. As the result of a trial, a jury found for the plaintiff on ail issues and assessed his damages at $5,000. Judgment was entered on this verdict, to which the defendant excepted. Within the time allowed, by law, the defendant filed a motion for a new trial. On consideration of this motion, as shown by the journal entry, the court gave the plaintiff the alternative of accepting a remittitur of $1,100 from the verdict within three days, or of having the court grant a new trial, to which the defendant excepted. The plaintiff immediately accepted the remittitur, and thereupon the court overruled the motion for a new trial and entered judgment for the plaintiff for $3,900.

It is from that judgment that this appeal was taken.

At the outset, the plaintiff, appellee herein, claims that the defendant, appellant herein, is precluded from questioning the validity of that judgment, by reason of the circumstances under which it was rendered and its satisfaction as shown by the record. That contention requires first consideration.

The journal shows that on the same day that the judgment was entered, there was spread upon the journal a recital, as follows:

“Fred Strieker, defendant herein having thru the Auto-Owners Insurance Company of Lansing, Michigan, paid to the clerk of courts of this honorable court, the sum of thirty-nine hundred ($3,900) dollars and costs, in full satisfaction of the judgment rendered herein, said clerk is hereby authorized and directed to pay over to the said M. Richard Doyle, resident guardian of the estate of Gerald Ross, a minor, said sum of thirty-nine hundred ($3,900) dollars.”

Later, a motion was made to correct the recitals of that entry, stating or implying that the defendant had paid or participated in this settlement of the plaintiff’s judgment. That the court had jurisdiction to correct the entry of satisfaction upon this motion is not questioned. 23 Ohio Jurisprudence, 1353, Section 1371 ; Kipp v. Bowman, 20 Ohio Law Abs., 698, at 702. Upon a hearing of this motion, the court found that the defendant did not consent to the entry of satisfaction and, therefore, set the entry aside and made an order in accordance with the facts as found by it as follows :

“It is further ordered that the judgment heretofore-rendered herein in the amount of three thousand nine-hundred and 00/100 ($3,900) dollars and court costs having been fully paid and satisfied by the Auto-Owners Insurance Company of Lansing, Michigan, as the liability insurer of the defendant, Fred Strieker,, by virtue of the right of said insurance company to-pay said judgment under the terms of its insurance-contract with the said Fred Strieker, satisfaction may be entered of record.”

The plaintiff excepted to that order but no appeal' therefrom was taken by either party. However, the-evidence introduced on the hearing of this motion is-before the court in a bill of exceptions presented by defendant. The bill contains ample evidence to support the ruling of the court on this motion to correct the recital of satisfaction so as to exclude the implication-that the defendant’s claim against the plaintiff was-included in the settlement.

In the light of the evidence it is clear that the attorney of record had no express authority or direction to settle the defendant’s claim or intention so to do, but, on the contrary, was instructed by defendant to-appeal any adverse judgment. And the evidence shows that counsel for plaintiff knew of that limitation upon-the authority of defendant’s counsel of record and of his intention not to exceed it, and he also knew that the settlement of the plaintiff’s claim was being made by Auto-Owners Insurance Company that had issued to defendant a policy of indemnity against liability under certain circumstances and to a limited extent which authorized it to settle the plaintiff’s .claim without the defendant’s consent. By the terms of the policy, Auto-Owners Insurance Company was obliged to defend this action and the defendant agreed to cooperate in its defense which clearly included authority to attorneys selected by Auto-Owners Insurance Company to appear and defend for and on behalf of the defendant. However, this authority was not coupled with any interest and was revocable at defendant’s discretion. If he had chosen to do so, he could have refused to authorize Auto-Owners Insurance Company and its attorney to represent him and defend the action, and having given authority could have withdrawn the authority and discharged the attorney at any time. It is true that by so doing, he would have violated a condition of the policy and forfeited his right of indemnity, but that presents no limitation upon his power to withhold or withdraw authority. Luntz v. Stern, 135 Ohio St., 225, 20 N. E. (2d), 241. And where the amount claimed by the plaintiff exceeds the amount of the policy the insured may protect himself against that liability notwithstanding the policy gives the insurer the exclusive right to defend without interference, and by so doing the insured does not forfeit his right to indemnity to the limit of the policy. Traders & General Ins. Co. v. Rudco Oil & Gas Co., 129 F. (2d), 621, 142 A. L. R., 799.

The case at bar differs from that of Long v. Onion Indemnity Co., 277 Mass., 428, 178 N. E., 737, 79 A. L. R., 1116, in that in that case the court was considering the effect of an authority already exercised which was brought in question in an independent action by the insured against the third person with whom the insurer had effected a settlement. The insured having consented or acquiesced in the settlement was, of course, bound by it and could not, as the court held thereafter, maintain an action against the third person.

We think it clear also that where the insured permits the insurer to defend, its obligation requires it to exercise good faith and due care and skill, and certainly would not authorize a settlement to insured’s prejudice where no liability existed. Anderson v. Southern Surety Co., 107 Kan., 375, 191 P., 583, 21 A. L. R., 761, and Attleboro Mfg. Co. v. Frankfort Marine, Accident & Plate Glass Ins. Co., 240 F., 573.

The record in this case shows the parties recognized that the authority of Auto-Owners Insurance Company was not unlimited. The defendant asserted that he was under no liability to the plaintiff, and to the contrary that the entire liability rested upon the plaintiff, and refused to authorize a settlement that would in any way affect his right to assert his action against the plaintiff; and the plaintiff knew of this position of defendant, and he and Auto-Owners Insurance Company limited the settlement in such a way as to release Auto-Owners Indemnity Company alone. The defendant was not a party to that settlement and while it prevents the plaintiff from asserting any further action against the defendant, it had no effect upon the defendant’s cross-action against the plaintiff or upon the plaintiff alleging in his answer and proving at any subsequent trial the facts set forth in his petition.

We conclude that the trial court did not err in setting aside the entry of satisfaction; that the record does not show a settlement or satisfaction of the defendant’s cause of action; that his cross-action has not become moot; and that the settlement by Auto-Owners Insurance Company of the plaintiff’s cause of action is no bar to the prosecution of this appeal by the defendant. We, therefore, turn to a consideration of the record to determine whether any substantia] error to defendant’s prejudice intervened in the trial of the issues raised by defendant’s cross-petition and the plaintiff’s answer thereto.

The automobiles that collided were being operated at. the time by the plaintiff and defendant in opposite directions on Vine street, a public thoroughfare constituting the dividing line between the city of Cincinnati and an unincorporated portion of Hamilton county, Ohio. One of the charges of negligence made by plaintiff against the defendant was:

‘ ‘ In driving defendant.' vehicle to the left of the center line while overtaking and passing traffic proceeding in the same direction as was defendant and at a time when the left side of the roadway was not clearly visible and free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completed without interfering with the safe operation of plaintiff vehicle approaching from the opposite direction.”

Among other charges of negligence made by the defendant in his cross-petition against the plaintiff was:

“In operating said Pontiac automobile to his left of the center line of Vine street, contrary to the provisions of the state statute then in full force and effect. ’ ’

Each pleader alleged various details to serve as a predicate for the conclusion, which each alleged, that is, that operating a vehicle to the left of the center was negligence, but the act which each alleged against the other as having beeu done negligently was operating his automobile to the left of the center of the street respectively. The other acts which were alleged to have been negligently done, it is not necessary to consider.

The only real difference between the counter-charges made by the parties in their pleading is that the plaintiff negatived a possible justification for going to the left of the center, that is, in overtaking and passing traffic proceeding in the same direction. The general rule imposed by Section 6307-25, General Code, is that vehicles shall be driven upon the right side of the road. There are exceptions stated in that section, one of which permits a driver to cross to the left side when overtaking and passing another vehicle proceeding in the same direction, and Section 6307-29, General Code, limits that right by providing that it shall not be done unless such left side is clearly visible and free of oncoming traffic for a sufficient distance to permit the overtaking and passing without interfering with the oncoming traffic. The plaintiff alleged that the defendant was negligent in operating his automobile on the left side of the street and then in anticipation of defendant’s assumed attempt to justify, by the claim that he was engaged in overtaking and passing a vehicle going in the same direction, pleaded the non-existence of the facts that would justify him in so doing.

The evidence shows that there was a third automobile in the vicinity. The defendant had passed it, and it was so close that after the collision between the plaintiff’s and defendant’s automobiles, it struck the defendant’s automobile before the driver, according to his testimony, was able to stop it, although he was going only 20 miles per hour, but he estimated that the defendant’s automobile could have been anywhere from 20 to 50 feet in front of his automobile. The impression is created that the passing and the collisions occurred in a very short space of time, so short that he “saw this condition, it occurred and I was on my brakes.” The collision between his automobile and that of the defendant was “not too hard because I had almost stopped.” When the automobiles came to rest, the plaintiff’s automobile was on his right side of the street and the front of the defendant’s automobile was also on that side. Whose automobile was on the wrong side of the street before and at the time of the collision, and whether the intervention of the third automobile had anything to do with the final resting place of the automobiles was in dispute and dependent upon what inferences were drawn from many circumstances.

The plaintiff requested and the court gave the following special charge:

“I charge you as a proposition of law the law of Ohio provides that violation of a statute passed for the protection of the public is negligence in and of itself. Section 6307-29 of the Ohio General Code is a statute passed for the protection of the public. Such Section 6307-29 of the Ohio General Code provides as follows: ‘ (Driving to left of center line.) No vehicle or trackless trolley shall be driven to the left of the center or center line of the roadway in overtaking and passing traffic proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any traffic approaching from the opposite direction or any traffic overtaken.’
“If you find therefore from a preponderance of the evidence that Fred Strieker, the defendant in this case, drove to the left of the center line of Vine street in overtaking and passing traffic proceeding in the same direction at a time when such left side of Vine street was not clearly visible and free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any traffic approaching from the opposite direction, Fred Strieker, the defendant, was negligent, and if you further find by a preponderance of the evidence that such negligence, if any, was the proximate cause of the collision between the vehicle operated by the plaintiff, Jerry Ross, and the defendant Strieker’s vehicle, and if you further find from a preponderance of the evidence that Jerry Ross was free of any negligence, your verdict on the petition must be for Jerry Ross, and your verdict on the defendant Strieker’s cross-petition must also be for Jerry Ross.”

The defendant excepted to the giving of that special charge, and the giving of it is assigned as error.

The defendant requested and the court gave this special charge:

“I charge you that Section 6307-25 of the General Code of Ohio, which section was in full force and effect at the time of the happening sued upon in this case, is as follows: ‘Sec. 6307-25 Vehicles Shall be Driven on Right Side of Roadway; Exception. Opon all roadways of sufficient width a vehicle or trackless trolley shall be driven upon the right balf of the roadway, except as follows: 1. When overtaking and passing another vehicle proceeding in the same direction or when making a left turn under the rules governing such movements; 2. When the right balf of a roadway is closed to traffic; 3. Opon a roadway divided into three or more marked lanes for traffic under the rules applicable thereon; 4. Upon a roadway designated and sign posted for one way traffic; or 5. When otherwise directed by a police officer or traffic control device. ’
“1 further charge you that if you find by preponderance of the evidence in this case that the plaintiff, Gerald Ross, was driving a Pontiac automobile in a northerly direction on Vine street at the time and place of the happening sued upon in this case and that the east side (his right-hand side) of Vine street was of sufficient width upon which to drive said Pontiac automobile but that the plaintiff, Gerald Ross, drove said Pontiac automobile over and upon and across to his left side (the west side) of Vine street and without coming within exceptions set forth in the foregoing section of the General Code; and if you further find by a preponderance of the evidence that the defendant, Fred Strieker, was traveling in a southerly direction on the west side (his right-hand side) of Vine street and was not at. fault or negligent and you further find that the negligence of the plaintiff, Gerald Ross, was the direct or proximate cause of the collision between the vehicles, then your verdict on the petition must be for the defendant, Fred Strieker, and your verdict on the cross-petition must be for the defendant, Fred Strieker.”

And the court in its general charge stated the issue between the parties as follows: ‘‘so that the inquiry you are to make in this case is which of these vehicles crossed the left or to his left to the. center line of the street.”

It will be observed that the defendant based his special charge upon Section 6307-25, General Code, requiring vehicles to be driven on the right side of the road with, however, certain exceptions, one of which was ‘‘when overtaking and passing another vehicle proceeding in the same direction * * * under the rules governing such movements.” It will be noted also that the defendant’s special charge referred to the exception without stating the rules under which it would apply. It will be noted further that the plaintiff’s special charge fills the void in defendant’s special charge by setting forth the rules governing the passing of a vehicle going in the same direction. For that reason alone, we believe the plaintiff’s special charge was relevant and proper.

Counsel for defendant relies on Northern Ohio Ry. Co. v. Rigby, 69 Ohio St., 184, 68 N. E., 1046, but that case involved a charge that was refused and the question was whether it contained a correct statement of the facts and the law, and the court held that it was erroneous, in that there was an assumption of the truth of an allegation of fact which was in dispute, and that, therefore, the court properly refused to give it. And the rule in 39 Ohio Jurisprudence, 939, Section 259, relied on, states the general rule that there must be some basis in the evidence to support a hypothetical statement in a charge.

We are considering a special charge here in which the hypothesis is, in our judgment, supported by some evidence, which distinguishes it, and, furthermore, we are not considering a charge which was refused, but one which was given, and which raises an entirely different question and that is, whether substantial error has intervened to the prejudice of the defendant. If prejudicial error is not found, the judgment will not be disturbed, notwithstanding the giving of an erroneous or inapplicable charge. 2 Ohio Jurisprudence (Pt. 2), 1445, 1449, 1450, 1455, Sections 760, 761, 762, 763.

Both because there was evidence to support the hypothesis contained in the charge and also because the charge in any event could not have been prejudicial, we hold that the giving of this charge furnishes no ground for the reversal of the judgment.

It is urged that the court erred in admitting opinion ‘evidence of the place of the collision, based solely upon an inspection of photographs of the automobile taken immediately after the collision and where they had come to rest after the collision. These photographs were taken by officials of the police department of the city of Cincinnati. The plaintiff placed J. Stannard Baker on the stand in rebuttal. In response to questions, he testified that he held a degree of mechanical engineering from University of Wisconsin; that he was director of research of Northwestern University Traffic Institute; that various members of the Cincinnati police department had attended that Institute; that he had been engaged in traffic work since 1928; that he was the author of many monologues and articles published in various technical publications; that he had investigated traffic accidents and examined more than 600 photographs portraying such accidents; and that he had testified as an expert on traffic problems approximately 20 times. There is no doubt that the recital of his experience in the field of traffic accidents and their causes was impressive. After being thus qualified, he was shown these photographs, taken by the Cincinnati police officers, and was permitted to give testimony based solely on his inspection of these photographs. He was asked whether he had an oiiinion as to where these two automobiles came into collision and what that opinion was. In answer he said: “It was right over that debris.” tie had previously testified, over objection, that a collision caused the collection of road oil, dry dust and mud from the underside of the automobiles. The implication from this testimony was that the original collision of these automobiles was on the plaintiff’s side of the street and, therefore, that the defendant was violating the traffic rales at the time.

As already mentioned, in considering the applicability of the special charge, there was a third automobile involved and that almost simultaneous with the collision of the plaintiff’s and defendant’s automobiles, it struck the rear of defendant’s automobile. This fact did not appear in the photographs and the witness ’ attention was not called to it. Certainly, that was a relevant fact which might have affected his conclusion or opinion.

The trial court correctly stated that the inquiry was as to which of these vehicles crossed to the left of the street. In other words, that was the issue because under the circumstances existing the driver of that vehicle would be negligent.

The witness Baker was permitted to testify to his conclusions or opinions as to that exact issue and that from an inspection of the photographs and nothing else.

Of course, the general rule is that the testimony of witnesses must be confined to statements of facts within their own observation, knowledge, and recollection, as distinguished from mere opinions. 17 Ohio Jurisprudence, 412, Section 323. But there are exceptions, “for example, expert witnesses who have skill, learning, or experience in a particular science, art, or trade may give an opinion in a proper case upon a given state of facts relating thereto. And though some expressions are to be found in the cases indicating that opinions of skilled witnesses or experts represent the one instance in which the general rule excluding opinion evidence has been departed from, it is not true as a legal proposition that no one but an expert can give an opinion to a jury. Another well-established exception to the opinion evidence rule is that in matters more within the common observation and experience of men, nonexperts may, in cases where it is not practicable to place before the jury all the primary facts upon which they are founded, state their opinions formed from such facts, where such opinions involve conclusions material to the subject of inquiry.” 17 Ohio Jurisprudence, 415, 416, Section 325.

As Baker had not and could not testify to any observed data relevant to the issue in this case, his testimony cannot be supported as the opinion of a non-expert, based upon his observation. Indeed it was as an expert that he was presented to the jury. And assuming that it was the proper subject of expert testimony, we believe his testimony was inadmissible because it was not based on all proven relevant data, as already pointed out, and also because the testimony purported to decide the identical issue that the law commits to the decision of the jury. Upon this latter ground it is said in Fowler v. Delaplain, 79 Ohio St., 279, 87 N. E., 260, 21 L. R. A. (N. S.), 100, that: “A question to a witness which calls for his opinion on the precise issue of fact which the jury is sworn to determine from the evidence, is incompetent.” Authorities could be multiplied, but we deem the rule incontrovertible.

We are fully conscious that a wide discretion is lodged in the court as to the admission of opinion evidence and that judgments will not and should not be reversed because of the admission of such testimony, unless the court is convinced that the error was prejudicial. In this case we are so convinced. Our conviction springs from the state of the evidence. There were only three persons present at the time of this collision — the plaintiff, the defendant, and the driver of the third automobile. The plaintiff was 18 years old, had drunk several glasses of beer shortly before this collision which took place at about one o’clock in the morning. He testified that he was driving near the center of the street, but on his right side, when he saw an automobile coming toward him, that the collision took place at once, and that he was rendered unconscious and did not regain consciousness until the next day. His cross-examination leads to doubt as to whether he saw the approaching automobile on his side of the road and to conclude that all he saw was an automobile approaching on his left and the light from that automobile.

The defendant was evidently an adult, as he had been employed as production manager of a division of Sperti Corporation since July, 1943. He had taken the lady, whom he subsequently married, to a show, and then took the lady to her home, and then went alone to a restaurant where he had drunk a bottle of beer. This restaurant was near the place of the accident. He left the restaurant about one o’clock and proceeded southwardly on Vine street. He had passed an automobile driven by one Sigmund just before the collision took place.

The other witness who testified from observation on the scene at the time was Sigmund. He testified unequivocally that the defendant was on his right side of the street and that the plaintiff passed over to his left side, where all three automobiles were at the time of the collision and that the force of the collision threw the defendant’s automobile into his path, causing his automobile to strike the rear of the defendant’s automobile.

A verdict for the plaintiff on this testimony could be challenged, with reason, as contrary to the manifest weight of the evidence. And that is all the evidence supporting this verdict excepting the circumstance that after the two collisions the defendant’s automobile was astride the center line of the street, the front being about 4 feet on his left side. We point this out to show the probable weight of the opinion testimony of Baker as to the place of the collision between the plaintiff’s and defendant’s automobiles. It might well have tipped the scale in plaintiff’s favor.

Counsel for plaintiff urge that the defendant did not object to this opinion, and that he withdrew his objection and that he waived it. We do not think that is a correct interpretation of the record. The defendant having stated his objection at the inception, it was not necessary for him to repeat it at every step. And the court having ruled, no waiver resulted from cross-examination of the witness or of later offering evidence in conformity to the ruling.

Because of the unusual developments of this case in the trial court, resulting from the efforts of Auto-Owners Insurance Company to settle its liability, the trial judge, as shown by his affidavit, was not given an opportunity to pass upon the errors assigned for a new trial. While this affidavit of the trial judge cannot control the unvacated journal entry, inasmuch as the affidavit is in the record, we feel justified in calling attention to it as an added reason why substantial justice requires, a reversal of this judgment and remanding the issues raised by the cross-petition and the answer thereto for a new trial, on the ground that the court erred in overruling the defendant’s objection to the testimony of the witness Baker.

We find no other error in the record.

For these reasons, the judgment is reversed and the cause remanded, as aforesaid.

Judgment reversed.

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


text:
    Columbus Metropolitan Housing Authority, Appellee, v. Simpson et al., Appellants.
    (No. 4235
    Decided March 25, 1949.)

      Mr. Wm. Harvey Jones, for appellee.

      Mr. H. B. Yarnell, for appellants.
   By the Court.

This is an appeal on questions of law from the Municipal Court of Columbus which rendered judgment against the defendants, appellants 'herein, in a forcible entry and detainer action. The defendants assign as error that the judgment is contrary to law and that the court erred in refusing to enter a separate finding of facts and conclusions of law requested by defendants.

The plaintiff, Columbus Metropolitan Housing Authority, introduced the lease under which the defendants occupied the premises and a 15-day notice that the lease was terminated, the statutory three-day notice to leave the premises, both notices being properly served on defendants, and rested. No defense-was interposed.

The lease, which was executed in February 1946,. contained a provision that the lease was automatically renewed from month to month unless terminated by either party upon giving a 15-day notice in writing. The evidence shows that the 15-day notice was served on September 15, 1948, terminating the lease as of September 30, 1948. The three-day statutory notice-was served on October 1, 1948, and suit was instituted on October 7, 1948. Judgment was rendered on October 20, 1948. On October 23, 1948, a motion for new trial was filed which was overruled on November 8, 1948. On November 9, 1948, the defendants filed a request for a separate finding which was on that date-denied.

The request for a separate finding was not seasonably made and no error resulted in denying the request.

The plaintiff contends that the serving of the 15-day notice terminated the lease according to its terms and' that thereafter the defendants held over their term; and that plaintiff is entitled to restitution under the law of this state. The defendants contend that even-though the 15-day notice has been given, terminating the lease, they cannot be evicted without some cause being shown other than the termination of the lease.

The plaintiff is a corporation organized under the-laws of the state of Ohio.

Section 209(a) of the Housing and Rent Act of 1947 sets forth in six separate paragraphs grounds on which a tenant may be evicted. However, Section 209(b) of the same act became effective July 1, 1947 (Public Law 129-80th Congress) and provides as follows:

“Notwithstanding any other provision of this act, the United States or any state or local public agency may maintain an action or proceeding to recover possession of any housing accommodations operated by it where such action or proceeding is authorised by the statute or regulations under which such accommodations are administered: Provided, That nothing in this subsection shall be deemed to authorize the maintenance of any such action or proceeding upon the ground that the income of the occupants of the housing accommodations exceeds the allowable maximum unless sueh income, less any amounts paid to such occupants by the Veterans’ Administration on account of service-coniected disability or disabilities, exceeds the allowable maximum.” (Emphasis ours.)

The effect of subsection (b) of Section 209 was to remove housing authorities from the necessity of complying with tb provisions of Section 209(a). Under the provisions of Section 209(b) a housing authority may maintain an action to evict a tenant ‘ ‘ where such .action or proteeding is authorized by the statute or regulations under which such accommodations are administered.” This particular provision was preserved in Public Law 301 known as the McCarthy Act, effective July 31, 1947. It was also preserved in Public Law 901 (Housing Act of 1948) passed by Congress on August 10, 1948, amending the National Housing Act. (See Section 502(b), Title V, Housing Act of 1948.)

Consequently, the plaintiff could maintain the action if authorized by the statute of Ohio or a regulation under which such accommodations are administered. In the instant case, the lessees were bound by the provisions of the lease which permitted the housing authority to terminate the lease upon giving fifteen days written notice. In Brand v. Chicago Housing Authority (U. S. C. C. A.), 120 F. (2d), 786, where a number of tenants sought an injunction against eviction,, the court, in discussing the provisions of the lease-which gives the right of either party to terminate the lease on 15 days notice, on page 788, held:

“It is our opinion that this provision with reference to the termination of the tenancy is valid and binding upon plaintiffs in the same manner as though the lessor had been a private person rather than a governmental agency.”

The lease being legally terminated according to its terms, the lessees held over their term and have no right of occupancy thereafter. Section 10449, General Code.

The bringing of the action to recovet possession was authorized by the statutes of this stite and the provisions of the lease which may be construed as a regulation binding on the parties. Therefore, the judgment of the trial court was not contrary to law.

Finding no error in the record tjhe judgment is affirmed.

The filing of the application for rehearing, for which no provision is made by rule, has beei brought to the-attention of the court. The court has parefully reconsidered the matter and rendered this.as the only official opinion of the court.

Judgment affirmed.

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


author: Guernsey, J.

text:
    The Employers Fire Ins. Co. et al., Appellees, v. The Cliff Wood Coal & Supply Co., Appellant.
    (No. 964
    Decided June 25, 1948.)

      Mr. F. Wemmer Gooding, for appellees.

      Messrs. Gable <& Cable, for appellant.
   Guernsey, J.

This is an appeal on questions of law from a judgment of the Municipal Court of Lima, in an action numbered 14588 in that court, wherein the appellees herein, The Employers Fire Insurance Company, a corporation, of Boston, Massachusetts, and Ora M. Green, A. J. Downhour, John Querry and Thomas Sawyer, partners doing business as G & F Supply Company of Lima, Ohio, were plaintiffs, and the appellant herein, Cliff Wood Coal & Supply Company, was defendant.

The action is one for damages in the sum of $458.99 for injuries to a truck owned and operated by the partnership, which injuries were alleged to have been sustained through the negligence of an employee of defendant engaged in operating a coal truck owned by it.

The insurance company claims as subrogee of the partnership, to the extent of $358.99 of such damages, while the partnership claims- to the extent of $100 of such damages for which it was not reimbursed by the insurance company under its policy of insurance.

There is no dispute between the parties as to the amount of the damages, the only matter in controversy being as to whether the defendant is liable for the same.

The Municipal Court tried the cause without the intervention of a jury, no jury being demanded, and rendered judgment in favor of plaintiffs against defendant for the full amount claimed.

It is from that judgment the appeal is taken to this court.

As disclosed by the bill of exceptions, the following are the material facts in the case:

The Shawnee road is a north and south road west of the city of Lima. It is a black-top paved road of average width.

On December 30, 1946, defendant’s coal truck operated by its employee Emmett Taylor was being driven south on the west side of Shawnee road at a point about 1,000 feet north of the Ottawa river bridge when the driver of the truck turned to the left into and over the east side of the highway for the purpose of driving the truck into a lane running east from the highway which lane the truck entered.

For some time prior to defendant’s truck making such turn it had been followed on the highway by a concrete mixer truck owned by the plaintiff partnership and operated by its employee, one George Kill.

What happened immediately preceding and following th$ turn of defendant’s truck into and over the east side of the highway and into the lane, which is determinative of the rights of the parties to the action, appears in the testimony of Kill, introduced by plaintiffs in chief, and in a written statement made by Kill shortly thereafter, offered in evidence by the defendant, marked exhibit A and made a part of the bill of exceptions.

The material parts of the testimony mentioned are as follows:

“Q. Will you tell us just what happened out there at that time? A. Well, I imagine it was about four, little after four — around four — 1 was going south, going back to the plant to get another load of concrete, and I was following this coal truck, and I started around him and, I’d say oh, I was — I got on the left-hand side of the road and I was just ready to blow my horn to pass him and here he made a left turn in front of me. I hit the brakes and give a quick turn to the right. I missed him and swung on the road and lost control of the truck and it turned over, and he turned in the driveway and he came back, or came to the truck and just as I was getting out he asked me if 1 was hurt — .”

The material part of the written statement is as follows:

‘ ‘ My name is George Kill, age 24, and I live at 201 Pears avenue in Lima, Ohio. On December 30, 1946, I was working for Green and Sawyer contractors here in Lima and I was driving their concrete mixing truck south on the Shawnee road at about 4 in the afternoon. The road was dry and I was driving about 40 miles per hour. South of the Shawnee Country Club there is a road that turns east going back to the Shawnee stables, it is a lane. I had been following a truck driven by Taylor who was driving a truck for Cliff Wood Co. I had been following him 2 or 3 hundred feet behind him. As Taylor’s truck began to slow down he was still north of this lane going back on the Shawnee Rd. 1 saw him begin to slow, so decided to pass him on the left, but he didn’t signal with his hand and said so later. When the front of my truck was about even with the rear of Taylor’s I was slowed considerably from 40, when suddenly Taylor began to turn left into my path. We were both still about 75 feet north of the lane leading east. I was just getting ready to sound my horn when he began to pull to the left as I mentioned above. When I saw him pull to the left I was on the west side of the road, but I immediately applied the brakes and pulled sharply to the right and then I began to slide but I got past his truck on the west side of the road and after getting by him turned back to the left to straighten up my truck but it continued to slide. I had my brakes on all the time from the time I pulled to the right to miss him, until the truck turned over. My truck slid and swerved from side to side from where 1 first braked it to miss hitting him until it turned over just about 10 feet past the lane going east to the riding stables. My truck rolled completely at least once and it might have rolled more. It came to rest with its front facing east, crossways across the road and on its left side.”

The damages complained of were sustained in the overturning of the plaintiff partnership truck. There was no collision between the trucks.

There is no conflict in the evidence except on the question of whether the driver of defendant’s truck signalled his intention to turn. Defendant’s driver testified positively he gave such signal, while the driver of the plaintiff partnership truck testified positively that no signal was given by the driver of defendant’s truck.

The defendant assigns error in a number of particulars, all predicated upon its contention that the court erred in overruling the motion of the defendant for a verdict in its favor at the close of the testimony for the plaintiffs and renewed at the close of all the evidence in the case, for the reason, as contended by the defendant, that the evidence introduced on behalf of the plaintiffs, as well as all the evidence in the case, shows that plaintiffs’ employee operating plaintiffs’ truck was, as a matter of law, guilty of contributory negligence directly contributing to cause the injuries-sustained by plaintiffs’ truck, in that he drove his vehicle upon the highway at a greater speed than would permit, him to stop within the assured clear distance ahead, in violation of provisions of Section 6307-21, General Code, and in that he failed to signal defendant’s vehicle of his intention to pass it, as required by the provisions of paragraph (a) of Section 6307-27, General Code.

We will first consider whether, on the evidence in the case, the driver of the plaintiff partnership truck was guilty of contributory negligence in violating the provisions of Section 6307-21, General Code, and then consider whether he was guilty of contributory negligence in violating the provisions of paragraph (a) of Section 6307-27, General Code.

The evidence in this case shows conclusively that at. and immediately prior to the time defendant’s truck turned into and across the east side of Shawnee road and into the lane that it was proceeding in the west lane of traffic on the highway and plaintiff partnership truck was proceeding in the east lane of traffic on the highway.

The provisions of Section 6307-21, General Code, are applicable only to vehicles proceeding in the same lane of traffic, so the driver of the plaintiff partnership truck was not guilty of contributory negligence by reason of any violation of the provisions of that section, and the court properly overruled defendant’s motion for verdict in defendant’s favor for the violation by the plaintiff partnership’s driver, of such provisions of that section.

Section 6307-27, General Code, the other section which the defendant contends the evidence shows was violated by the driver of the plaintiff partnership truck, reads as follows:

“The following rules shall govern the overtaking and passing of vehicles or trackless trolleys proceeding in the same direction, subject to those limitations, exceptions, and special rules hereinafter stated:
“(a) The operator of a vehicle or trackless trolley overtaking another vehicle or trackless trolley proceeding in the same direction shall signal to the vehicle or trackless trolley to be overtaken and shall pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle or trackless trolley.
“(b) Except when overtaking and passing on the right is permitted, the operator of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.”

The word "overtake” and its derivatives, as used in the section, mean: "To catch up with and pass, as in an automobile.” Webster’s International Dictionary, Second Edition.

As under the provisions of paragraph (a) of the section the signal is required to be given by the operator of the overtaking vehicle "to the vehicle * * * to be overtaken,” it is clear that the signal is required to be given prior to the time passing is attempted.

The purpose of the section requiring the giving of a signal by the overtaking vehicle is to warn the driver of the overtaken vehicle of the intention of the driver of the overtaking vehicle to pass so that he will not turn his vehicle to the left into the lane of traffic of the overtaking vehicle and thereby obstruct or interfere with its passage, and so, if necessary to permit the passage of the overtaking vehicle he will give way to the right with the vehicle driven by him.

It is, therefore, obvious that the statute requires the signal to be given by the operator of the overtaking vehicle at such time and place before starting to pass, that the signal may be effective to accomplish the purpose mentioned.

It will be noted from the above quoted evidence in the instant case, that the driver of the overtaking vehicle violated the provisions of Section 6307-27, General Code, when he “started around” the overtaken vehicle without giving the required signal, that at the time the overtaken vehicle turned to the left into and across his lane of traffic, he had, by his failure to conform to the requirements of the section, operated his vehicle in such a position that the giving of a signal by him could not accomplish the purpose of the statute, and that he could have avoided a collision between the two vehicles only by proceeding in the manner he proceeded, resulting in the injuries to the truck driven by him.

While for the purpose of this case we must assume that the driver of the overtaken vehicle was negligent as a matter of law in failing to give a signal of his intention to turn, the driver of the overtaking vehicle, by his failure to comply with the provisions of Section 6307-27, General Code, above mentioned, was as a matter of law guilty of negligence directly contributing to the injuries sustained by the truck driven by him, precluding the plaintiffs from recovering damages from the defendant for such injuries.

For the reasons mentioned, the trial court erred in overruling the motion of the defendant made at the close of plaintiffs’ evidence and renewed at the close of all the evidence, for a finding and judgment in defendant’s favor.

For this error the judgment will be reversed, and this court, rendering the judgment the trial court should have rendered, will sustain, the motion and enter final judgment in favor of defendant, dismissing plaintiffs’ petition.

Judgment reversed.

Jackson, P. J., and Middleton, J., concur.


author: Hildebrant, P. J.

text:
    Cohen, Appellee, v. I. B. Goodman Mfg. Co., Appellant.
    (No. 6988
    Decided October 25, 1948.)

      Messrs. Paxton é Seasongood and Mr. J. Griffin Murphey, Jr., for appellee.

      Mr. Harry Kasfir, Mr. Joseph H. Hoodin, Mr. Arthur R. Heckerman and Mr. S. Arthur Spieget, for appellant.
   Hildebrant, P. J.

This is an appeal on questions of law from a money judgment for plaintiff for commissions earned under an oral contract of employment as a salesman for defendant, a manufacturing jeweler, which employment lasted from January 1, 1941, to June 1946.

The total amount of sales is agreed upon, as is the total amount of money paid to plaintiff by defendant, so that the sole dispute between the parties is as to the rates of commission agreed upon, which varied on four classifications of business according to the four different discounts given, which were 25%, 20%— 10% and 6% and net, or no discount 3%.

Plaintiff claims that the agreement was altered by the parties so from January 1, 1945, his computation shows a flat rate of 10% commission on all classes of business after January 1, 1945, until the employment terminated on May 31, 1946. Illustrative of the rival claims and computations is stipulated exhibit A, set forth below:

“Sales
“Discounts.
“Year 25% 20% 10% & 6% Net
“1941 $ 35,367.92 $ 9,142.88 $4,575.53 $14,914.39
“1942 44.093.83 18,082.34 1,017.74 20,247.23
“1943 65.245.83 8,187.48 823.72 4,221.56
“1944 36,239.65 36,197.81 1,092.41 3,947.78
“$180,947.23 $71,610.51 $7,509.40 $43,330.96
“Cohen-10% Cohen-12%% Cohen-15%
“Cohen -10% — Cohen $32,505.53
“ Goodman-5 % Goodman-8%% ■ Goodman-10%
“Goodman- 3% — Goodman $17,185.12
“1945 $33,699.92 $27,974.44 $1,253.79 $4,447.73
“1945 $17,756.71 $11,620.00 $ 53.72 $ 525.20
$51,456.63 $39,594.44 $1,307.51 $4,972.93
$97,331.51
“Cohen-10% Cohen-10% Cohen-10%
“Cohen -10% — Cohen $9,733.15
“ Goodman-5 % Goodman-8 %% Goodman-10%
“Goodman- 3% — Goodman $6,218.30
“H. C. Paid $33,613.73
“H. C. Claims Earned $42,238.68
“H. C. Paid $33,613.73
“H. C. Claims $ 8,624.95
Goodman
H. C. Paid $33,613.73
H. C. Earned $23,403.42
Goodman
Claims $10,210.31”

Obviously, the last year should be 1946.

The only persons who knew the agreed rates of commission were the plaintiff and' I. B. Goodman, president of defendant company, and they were the only witnesses who testified as to the rates set forth in the rival claims appearing by stipulated exhibit A.It is, therefore, apparent that the problem for the jury in determining, in truth and in'tact, just what rates were agreed upon for the four classes of business is remitted almost solely to a minute scrutiny and analysis of the testimony of the plaintiff and I. B. Goodman. The choice then must necessarily rest on considerations of credibility, correctness of memory, and authenticity of record evidence.

Throughout the record certain inconsistencies in plaintiff’s claims as to the rates appear. For example, his exhibit I, consisting of notations as to the rates which he testified were made at the time the oral contract of employment was agreed upon, shows his claimed rates as to only three classifications of business, omitting any notation as to the fourth or net class. Again, in plaintiff’s exhibit 19, he states, and, again, only as to three classes of business:

“I have the original figures of the amount of commission paid, which you gave me when 1 started with you. I have same on your own stationery; also have witnesses of the amount of commissions which were paid to me, and this is what they were to be: On 25%, 10% commission; on 20%, 10% commission, on 10 and 6. 12% commission, and I am certainly going to hold .you to that agreement.”

If his recollection on September 19, 1946, as set forth in the letter, constituting exhibit 19 is correct, the computation would be appreciably different from that appearing in stipulated exhibit A, at time of trial.

In his letter of July 10, 1946, plaintiff’s exhibit 12, the plaintiff claims to have commissions due of $6,600, •and states:

“Inasmuch as I have not received a final statement from you, I would like to call your attention that I still have commissions due of $6,600. This covers the period from January 1st, 1941 to January 1st, 1946, and also commissions on all orders sold which you accepted for the year 1'946.”

That figure obviously had to be computed at rates different from those set forth by plaintiff in stipulated exhibit A. The plaintiff testified further that the flat rate commission of 10% became effective in March of 1944, rather than January 1, 1945, as shown by stipulated exhibit A.

Error is assigned to the following portion of the •charge of the court, to wit:

‘ ‘ The court instructs you that the figure, the ultimate figure that you will award, if you so award a figure, must be either one figure or another and that the amounts involved are not divisible. The amounts in the different classifications have been totaled for your benefit and the question is was it 10 per cent in the first column there or was it 5 per cent, and so on down the line. There is no disagreement as to the amounts involved, so that if you find for the plaintiff in this case you will find for $8,624.95.”

It is claimed the above charge invaded the province of the jury to weigh the conflicting evidence given by plaintiff. himself and required'any verdict for him to be at his highest claim, and excluded the possibility of finding plaintiff correct as to some rates and Goodman correct as to others, and nullified that portion of the charge, wherein the court correctly informed the jury of its power to believe all, párt, or none of the testimony.

The court finds the objection to the charge above stated to be valid, and that the charge is prejudicially erroneous, as an invasion of the province of the jury. The syllabus in Painesville Utopia Theatre Co. v. Lautermilch, 118 Ohio St., 167, 160 N. E., 683, states:

“Whenever, from conflicting evidence of the same witness or of different witnesses, it becomes necessary to weigh such conflicting evidence to determine wherein the probable truth lies, or from a combination of circumstances determine an ultimate fact upon the determination of which different minds might reasonably arrive at different conclusions, it is the province of the jury to perform that function. It is reversible error for the court to invade the province of the jury.”

By limiting a finding for plaintiff to the one computation, shown in stipulated exhibit A, the charge was effective to nullify the correct portion of the charge, informing the jury of its right to believe part and disbelieve part of any witness’ testimony, and therefore, misleading and prejudicial, as held in Bosjnak v. Superior Sheet Steel Co., 145 Ohio St., 538, 62 N. E. (2d), 305, wherein it is stated in the fifth paragraph of the syllabus:

“Generally, where, in instructing the jury, the court states a correct rule or principle of law and also states an incorrect rule or principle of law with reference to •the same subject matter, no presumption arises that the correct rule was applied by the jury in the consideration of the issue presented, and the error in giving the incorrect rule will be deemed prejudicial.”

It is argued that the charge is correct in limiting the amount to the computation appearing in stipulated exhibit A, in event of a finding generally for plaintiff, by reason of the stipulated exhibit itself, and that any other charge would be going behind the stipulation. If that position be tenable, the sole issue of the rates would disappear from the case. As the court regards the stipulation, made for the simplification of the issues, by eliminating any dispute as to total sales and total payments to plaintiff, as an aid to court and .jury, the only things agreed upon as facts were total sales and total payments to plaintiff — leaving the rates set forth as rival claims as of time of trial to be proven on trial. This view is substantiated in the record when the trial court stated to the jury:

“Members of the jury, you will understand now that the figures you see on the board are agreed between the parties as being the sales made by Mr. Cohen for the Goodman Company during the years which they reveal on the board, so there is no dispute about those figures in so far as- they apply to the amount of sales made. Now, the other figures are •explanatory.”

For the reasons given, the judgment is reversed, and the cause remanded to the Court of Common Pleas for further proceedings according to law.

No further error, prejudicial to defendant, appears in the record.

(Judgment reversed.

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