author: Hurd, J.

text:
    Robinson, Appellee, v. Robinson, Appellant.

      (No. 20366
    Decided October 28, 1946.)

      Messrs. Edgert & Edgert, for appellee.

      Mr. Harry E. Davis, for appellant.
   Hurd, J.

This is an appeal on .questions of law from the judgment of the Court of Common Pleas of Cuyahoga county wherein the court dismissed the petition and cross-petition for divorce because "of divorce proceedings in Ashtabula county. The material facts are not in dispute.

On February 26, 1944, Anna B. Robinson filed in the Court of Common Pleas of Cuyahoga county against her husband, William Robinson, a petition for divorce and alimony and a motion for -an order to require the defendant to vacate the premises jointly occupied by the parties at 8615 Folsom avenue, Clevelaud, Ohio, and to restrain the defendant-from interfering with the plaintiff or molesting her.

On the 2nd of March 1944, certified copies of the petition, motion and summons were served on defendant who, on the same day, filed a motion to dismiss plaintiff’s motion above described.

On the next day, March 3, 1944, the plaintiff and defendant were in court, both represented by counsel, when the motion of the. plaintiff came to be heard on its merits. The court, upon consideration, granted the motion of the plaintiff but also granted relief to the defendant by an order restraining the plaintiff from selling, encumbering and disposing of the real property located at 8815 Folsom avenue and from disposing of any war bonds held iii plaintiff’s name but purchased by the defendant. Those interlocutory orders of the court were embodied in a-journal entry signed by the trial judge, filed on March 8, 1944. Thereafter, on March 20, 1944, the defendant filed an answer and cross-petition wherein the real property on Folsom avenue was described by metes and bounds, government bonds to the sum of $2,000 were described by number and denomination, and other personal property was appropriately described. The prayer of the cross-petition was for a divorce, a division of the real and personal property of the parties and for other equitable relief.

According to the docket entries the defendant, on April 4, 1944, filed a motion to modify alimony pendente lite, which motion was granted “Order see journal. ’ ’

While those proceedings were pending, the plaintiff, on October 11, 1944, filed another petition for divorce in Ashtabula county without disclosing the fact of the pending proceedings in Cuyahoga county and without making any reference to any of the real and personal property, the subject of litigation in Cuyahoga county.

In the action commenced in Ashtabula county, the plaintiff attempted to procure service by publication based upon her affidavit that the address of defendant was to her unknown.

Attached to the bill of exceptions in that proceeding is a certified copy of a journal entry of the Court of Common Pleas of Ashtabula county, introduced by plaintiff in the proceedings below, by the terms of which entry the plaintiff was, on the 22nd of January 1945, granted a decree of divorce on the ground of extreme cruelty, in an uneontested hearing, the defendant being in default of answer and appearance.

Thereafter, on March 3, 1945, the plaintiff, by deed in which she described herself as “single,” sold and conveyed the real property at 8615 Folsom avenue, Cleveland, Ohio, to Jack L. and Elizabeth Thomas, which deed was duly recorded with the Cuyahoga county recorder on March 24, 1945, in volume 5850, page 737, of the records of deeds.

Next in the chronological order of events was the filing of a proceedings in contempt by defendant in Cuyahoga county on the 8th of October 1945, charging the violation of the court order in Cuyahoga county on the part of the plaintiff in selling and conveying the real property. That hearing was set for November 9, 1945, but was passed indefinitely for the reason that defendant had been unable to secure service upon plaintiff. Thereafter, on the 27th of November 1945, the defendant filed an amended answer and cross-petition, personal service of which was had on plaintiff on December 12, 1945. That was the state of the record when the case came on for final hearing on the merits in the Common Pleas Court of Cuyahoga county on the 6th of March 1946.

At that hearing, the plaintiff introduced in evidence a certified copy of her divorce decree as set forth in the journal entry of the Common Pleas Court of Ashtabula county together with a transcript of the docket entries therein. The trial judge upon receiving that evidence refused to admit any evidence proffered by the defendant and summarily dismissed the petition and the cross-petition, holding that the parties had been divorced and that he had no jurisdiction to proceed with the case further, although the defendant made a statement for the record in which he offered to show by evidence that the affidavit on which the service by publication was allowed in Ashtabula county was false and fraudulent; that the defendant’s address was well known to the plaintiff; that the plaintiff had visited him where he roomed and at his place of employment, and that the defendant had visited the plaintiff at her invitation at the residence on Folsom avenue; that while the injunction issued by the Court of Common Pleas of Cuyahoga county was in full force and effect, the plaintiff, in violation of the restraining order, sold and conveyed the real property described in the pleadings; that the personal property consisting of $2,000 in government bonds had been disposed of by plaintiff; and that the other personal property had disappeared. The trial court then made the following entry:

“Petition and cross-petition dismissed because of divorce proceedings in Ashtabula county.”

There are three assignments of error as follows:

1. That the trial court erred in dismissing the answer and cross-petition of the defendant.

2. That the trial court erred in not making a division or disposition of the communal property as prayed for in both petition and answer and cross-petition.

3. That the trial court erred in recognizing a divorce decree granted to plaintiff in Ashtabula county, Ohio, in an action instituted after an identical action had been filed in this county and which was pending and undetermined when the Ashtabula county decree was granted.

Considering and treating these assignments of error together, the principal question emerging is whether the trial court erred in holding that the action of the plaintiff in filing a petition and securing a divorce in Ashtabula county divested the Court of Common Pleas of Cuyahoga county of jurisdiction. We think the trial court erred in so holding.

It was clearly the duty of the trial court to bear the evidence sought to be introduced by the defendant on his cross-petition and to adjudicate upon the issues joined.

The plaintiff having first invoked the jurisdiction of thé Common Pleas Court of Cuyahoga county, and while orders were pending therein restraining her from disposing of real and personal property, could not circumvent the force or effect of such orders or divest the Court of Common Pleas of Cuyahoga county of jurisdiction by attempting to invoke the jurisdiction of the Common Pleas Court of another county within the state.

It is a fundamental proposition of law that when a court, competent to adjudicate upon a matter in litigation, obtains jurisdiction over the parties by the service of process, such court alone has power to adjudicate upon the questions at issue and no other court can deprive it of such jurisdiction.

That proposition of law applies especially when the’ issue is joined by the parties by- appearance and pleadings, thereby unreservedly invoking and subjecting themselves to the jurisdiction of the court.

In the comparatively recent case of Miller v. Court of Common Pleas of Cuyahoga County (decided March 22, 1944), 143 Ohio St., 68, 54 N. E. (2d), 130, the Supreme Court allowed a writ of prohibition staying the Court of Common Pleas of Cuyahoga county from proceeding to adjudicate issues in a divorce suit therein commenced by the husband on August 31, 1943, when it appeared that the Court of Common Pleas of Allen comity had first acquired jurisdiction by suit therein commenced by the wife on August 23, 1943, upon which proper service was had on the husband on August 24, 1943. In a per curiam opinion at page 70 the court said:

“ ‘It is a fundamental rule that, as between courts of concurrent and coextensive jurisdiction, the one whose power is first invoked by the institution of proper proceedings and the service of the required process acquires the right to adjudicate upon the whole issue and. to settle the rights of the parties to the exclusion of all other tribunals. This rule obtains in divorce actions. * * 14 Ohio Jurisprudence, 410, Section 30. Sec, also, 11 Ohio Jurisprudence, 726, Section 81, citing ex parte Bushnell, 8 Ohio St., 599, and other authorities.” (Emphasis ours.)

The case of Creager v. Creager, 22 Ohio App., 261, 154 N. E., 316 (motion to certify overruled), is another divorce case presenting a question of conflict of decisions between Ohio courts of concurrent and competent jurisdiction. In that case the husband filed his petition on January 12, 1926, in the Common Pleas Court of Darke county for a divorce and custody of Ms minor sqn, and summons was issued and served on the defendant on January 13,1926. While the wife, commenced her action in Lucas county on January 6, 1926, summons was not served on the husband until January 15, 1926, two days after the wife had been served in the Darke county case. Each court proceeded to tlie trial of the respective suits commenced therein and each court granted relief to the respective plaintiffs therein. The wife, who was defendant in the Darke county case, prosecuted err’or to the Court of Appeals which held (paragraph two of the syllabus):

“Where a question of conflict of jurisdiction arises, the court otherwise having jurisdiction would obtain precedence by priority of actual service of the summons upon necessary parties, and by priority of the decree of divorce based on such service.”

And on pages 263 and 264, the court .in a per curiam opinion said:

“We have the question of the conflict of jurisdiction squarely presented in this case.

“Upon full consideration, we are of opinion that the Court of Common Pleas of Darke county, by the prior service of summons, obtained full jurisdiction of the action for divorce and custody of the child, and that such court was not bound to yield jurisdiction to the Court of Common Pleas of Lucas county upon the subject matter involved in the Darke county case.

To the same general effect are the cases of Fessenden v. Fessenden, 32 Ohio App., 16, 165 N. E., 746; Picker v. Picker, 46 Ohio App., 82, 187 N. E., 749.

The law is so well settled in the state of Ohio on this question of jurisdiction that we think it is not necessary to look elsewhere for authority. However, in the leading case of Dunham v. Dunham, 162 Ill., 589, 44 N. E., 841, 35 L. R. A., 70, the Supreme Court of Illinois at page 612 states:

“It is well settled that, as between different courts in the same state, having concurrent jurisdiction, the one first obtaining, jurisdiction of the cause will retain it until the matter is disposed of, and that the prior suit may be pleaded in abatement to the second suit. (Gindete v. Corrigan, 129 Ill., 582; Howell v. Moores, 127 id., 67; Plume & Atwood Manf. Co. v. Caldwell, 136 id., 163; Mason v. Piggott, 11 id., 85; 1 Ency. of Pl. and Pr. 750.)

That proposition of law has been consistently followed by the courts of Illinois in later decisions.

Upon full consideration we are of the opinion that the jurisdiction of the Common Pleas Court of Cuyahoga county having first been invoked by the plaintiff and the issues therein having been joined by appearance and pleadings of both parties, the Court of Common Pleas of Cuyahoga county acquired the right to adjudicate upon the whole issue and to settle the rights of the parties to the exclusion of all other tribunals. It, therefore, follows upon reason and logic that the entire proceedings subsequently instituted by the plaintiff in the Common Pleas Court of Ashtabula county were a nullity having no force or effect upon the issues joined in the instant case.

While we think that our holding on the question of jurisdiction is dispositive of the issues raised by the assignments of error on appeal, it appears to us that, in the absence of an adequate and satisfactory explanation, the element of fraud appearing on the face of the record was such as to require the trial court to hear the evidence proffered by defendant.

The law is clear that, where fraud is practiced on jurisdictional grounds in securing a decree in one court while-proceedings are pending in another court, then any decree so procured is void. That is also true when the decree is procured in another state where the evidence shows that the complainant wrongfully and fraudulently caused the foreign court to assume jurisdiction by practicing a fraud upon the foreign court with respect to time of residence and by concealing the address of the spouse when the same was in fact known to the complainant. See 17 American Jurisprudence, 385, Section 470; Dunham v. Dunham, supra; Atkins v. Atkins, 393 Ill., 202, 65 N. E. (2d), 801; Wynn v. Wynn, 254 Ill. App., 254; Williams v. North Carolina, 325 U. S., 226, 89 L. Ed., 1577, 65 S. Ct., 1092, 157 A. L. R., 1366.

For the reasons stated we conclude that the trial court erred in dismissing the petition and cross-petition because of the proceedings in Ashtabula county.

Therefore, the action of the Court of Common Pleas is reversed and the cause is remanded for further proceedings, upon the issues joined, according to law.

Judgment reversed.

Skeel, P. J., and Morgan, J., concur.


source: Caselaw Access Project

author: Ross, J.

license: Public Domain

text:
    Stanforth, Appellant, v. Smith, Trustee, et al., Appellees. (Two cases.)

      (Nos. 6693 and 6696
    Decided October 26, 1946.)

      Mr. Edward M. Ballard, for appellants.

      Mr. John M. McCaslin, for appellees.
   Ross, J.

In the first of these actions, the plaintiff sues as the husband of Dorothy Stanforth for loss of services, consortium and expense due to injuries received by her when she fell down a stairway in the house which she and her husband rented from the defendants.

In the second case the wife, Dorothy Stanforth, sues for damages for such injuries.

Demurrers to the second amended petitions filed in each case were sustained by the trial court and the plaintiffs not desiring to plead further, judgment was rendered in each case for the defendants. The demurrers were sustained on the ground that the second amended petitions did not state causes of action.

Appeals on questions of law were taken from such judgments to this court.

A demurrer raises only those matters of law which are developed upon the face of the pleading. Section 11309, General Code, provides in part:

“The defendant may demur to the petition only when it appears on its face either: * * *

“10. That the petition does not state facts which show a cause of action.”

See, also, Section 11311, General Code.

The first paragraph of the syllabus in Guardian Life Ins. Co. v. Veser, 128 Ohio St., 200, 190 N. E., 405, is as follows:

“For the purpose of testing the legal sufficiency of a pleading, a demurrer admits not only the proper and well-pleaded factual allegations thereof, but also the fair, reasonable and' favorable intendments and inferences arising therefrom.?’

The allegations of the pleadings attacked by the demurrer in each ease contain statements that the plaintiffs in each case were tenants of the defendants.

In the husband’s case it is stated: “The defendants obtained title to the above residence on the above date under the terms of the will of Edna Witham Smith, who was the owner of the said residence at the time plaintiff and her family rented and entered into possession of the said house.” (Emphasis added.) The use of the word “her” is evidently a mistake and should be “his.”

In the wife’s second amended petition, it is alleged: “* * * at the time the plaintiff and her family rented and entered into possession of said house.” And, again: “Plaintiff lived as a tenant in said dwelling house and her family was sole occupant thereof and in sole possession and control.”

It is evident from such allegations, therefore, that the plaintiff in each case was a tenant of the defendants and that each had participated in the renting of such premises from the defendants.

The second amended petitions contain substantially the same allegations as to the physical characteristics, of the premises, the city ordinances involved, and the manner in which Dorothy Stanforth was injured:

“The said house is one story in front fronting on the street and two stories in the back fronting on a yard with an outside passageway leading up to the street.

“There is a stairway of fourteen steps in said house leading from a platform between two bedrooms on the street level down to a platform between two rooms on the yard level. From this platform doors lead to the two adjoining rooms and there is a door from one of these rooms leading out to the yard and the outdoor passageway leading around the house to the street level.

“There was no handrail installed on said stairway.

“In maintaining the property in this condition the defendants and their predecessor m title, Edna Witham Smith, violáted certain sections of Chapter Seven of the Building Code of the city of Cincinnati which were in full force and effect at the time the Stanforth family rented the house and have been in full force and effect ever since. Said provisions are as follows:

‘‘ Chapter 7

“Means of Egress

“Section 1700. General

“(a) Means of Egress Defined. The term ‘Means of Egress’ shall include required exit doors, stairways, fire-escapes, passageways and ramps or other passages provided for a safe and continuous means of exit from a building to a public thoroughfare.

“(b) Scope of this Chapter. The requirements of this Chapter shall apply to buildings of all occupancies, except that specific requirements of the egress sections of Chapter 5, shall take precedence for the occupancies to which they apply.

“(c) Existing buildings. Existing buildings shall, as far as practicable, be made to conform to the minimum egress requirements of this Code. The Commis sionev-oi-Buildings may at any time serve a written notice upon the owner, lessee or manager of such buildings, directing any additions, alterations, removals or any other provision which may be necessary to make such buildings conform to these requirements, and/or to provide for the safety of the occupants and the public. Additional fire escapes may be required where necessary to provide two safe means of egress from existing buildings.

“(d) Change of Occupancy. Where a change of occupancy occurs, the building* shall be made to comply with all egress requirements for the new occupancy. ’ ’

“Sec. 1704. e. Railings.

“(e) Buildings. All stairways shall have walls or substantial balustrades or effective guards on each side and handrails shall be placed on at least one side of every stairway. Stairways exceeding 44 inches in width shall have handrails placed on each side. Stairways more than 88 inches wide shall also be provided with one or more continuous intermediate handrails substantially supported and the number and position of intermediate handrails shall be such that there are not more than 88 inches between adjacent handrails.

“Handrails and railings shall be placed not less than 30 inches above-the nosing of treads and ends of handrails shall, where practicable, be returned to the wall.

“On the said 8th day of April the said Dorothy Stanforth undertook to descend the said stairway and as a result of the lack of a handrail as aforesaid, fell down the said steps.” (Emphasis added.)

It is the contention of the defendants that the ordinances quoted do not require handrails or a stairway, such as is described in the pleading.

If the ordinance requires such handrail on the type of stairway involved there is a mandatory duty upon the owner and tenant to comply with the ordinance and failure so to do, causing injury, is negligence per se. Doster v. Murr, 57 Ohio App., 157, 12 N. E. (2d), 781; Bevan v. Century Realty Co., 64 Ohio App., 58, 27 N. E. (2d), 777; Marqua v. Martin, 109 Ohio St., 56, 141 N. E., 654.

It is, however, apparent that the stairway described in the second amended petition was not one covered by the quoted city ordinances. It is to be noted that it is alleged that the stairway connected a “platform” on the street level in the house with a platform on the rear yard level in the house, and a door opened from such platform to a room having a door to the rear yard.

It was no more a “means of egress” as described in the ordinance than any other portion of the house might be considered so.

A stairway connecting an attic room with a room on the second floor might also be considered a means of egress from such attic room down through the house, through other rooms to the street. The “stairway” in question did not provide for a safe and continuous means of exit from a building to a public thoroughfare.

The trial court committed no error in sustaining the demurrers to the second amended petitions, for the reasons above.

However, there is an additional reason for sustaining the conclusion of the trial court.

The plaintiff in each case was a tenant of the defendants. As pointed out, the allegations in the pleadings so state. The ordinance in question put an equal duty upon the owner and lessee. (See paragraph (c) supra.)

‘In any event, the plaintiffs rented the entire building and with their children were the sole occupants thereof and had sole control thereof. The absence of the railing must have been perfectly apparent to these tenants when they rented the building. They are presumed to know the law and if the railing was required by law, they accepted the building knowing that such requirement was not fulfilled.

If the owner was guilty of negligence per se in not complying with the law, these tenants are equally guilty of contributory negligence in accepting sole control over premises they are. presumed to know violated the city ordinances in question.

None of the cases cited by plaintiffs covers the situation here presented. This is not a case of a multiple family dwelling, nor is the plaintiff a stranger to the relationship of landlord and tenant. It is not a case of a concealed defect. The instant case resembles most strongly the circumstances existing in the case of French v. Huston, 7 Ohio Law Abs., 55, wherein the Sixth Appellate District Court of Appeals held in the syllabus:

“Tenant who, in violation of ordinance requiring gas stove to be equipped with flue, operates landlord’s stove, knowing that such stove is not so equipped, cannot recover from landlord for damages caused by such lack of equipment.” '

For these reasons, the judgments of the trial court dismissing the “petitions” are affirmed.

Judgments affirmed.

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


author: Hildebrant, P. J.

text:
    United Aircraft Products, Inc., Appellee, v. Warrick, Appellant.
    (No. 6480
    Decided March 26, 1945.)

      Mr. L. H. Mattern, Mr. J. D. Chamberlain and Messrs. Gray don, Head & Ritchey, for appellee.

      Mr. Gus W. Byttner and Mr. H. G.. Dybvig, for appellant.
   Hildebrant, P. J.

The trial court issued a decree of specific performance of a contract between the parties for the transfer to plaintiff of all defendant’s interest in certain inventions relating to the manufacture of airplane accessories made by defendant while in plaintiff’s employ, and granted an injunction against disclosure of trade or business secrets, or information secured during such term of employment.

The notice of appeal is given on questions of law and fact. However, the requirements as to bond set forth in Section 12223-6, General Code, not being met, the appeal will be retained here as effective on questions of law only. Damar Realty Co. v. City of Cleveland, 140 Ohio St., 432, 45 N. E. (2d), 209.

Plaintiff manufactures, engineers, develops, designs, and sells aircraft accessories- and had particularly designed and dealt in oil temperature regulators 'and pressure controls. Its products are used on government combat vehicles and their development is confidential and secret. It maintains extensive facilities, including testing facilities, for the conduct of that business.

Defendant, a graduate mechanical engineer, was employed by plaintiff in its engineering department continuously from September 1,1940, to January 13,1943. Prior to such employment, defendant had no knowledge of plaintiff’s plant, products, engineering, and development problems and technique. On May 15, 1941, defendant, together with a fellow employee, conceived and sketched certain inventions, having to do with oil cooling and pressure control.

Incident to a change in active management occurring about May 1, 1941, so-called “put on contracts” were prepared and submitted to all plaintiff’s employees, ’the stated object being to reduce to writing the existing verbal arrangement within the plant between plaintiff and its employees with reference to new developments and inventions within the plant and the secrecy thereof.

Subsequent to the preparation of the “put on contract,” but prior to its submission to the employees for signature, defendant’s coinventor refused work submitted on a similar project, for the reason that the same seemingly was in conflict with their invention made at their own homes after hours and without use of company facilities. On request, that invention of May 15, 1941, was disclosed to the company’s patent attorney, who expressed to the coinventors his opinion that such work on the outside was contrary to the company’s practice.

Thereafter, the “put on contract” was submitted to defendant prior to a conference requested by defendant with reference to his claim to the invention of May 15, 1941, he having refused to sign the “put on contract” before such conference.

. Defendant’s version is that at the conference held on August 22, 1941, between the president, ex-vice-president, patent attorney, himself, and coinventor, a separate verbal agreement was entered into between the parties, whereby the coinventors were to patent the invention of May 15,1941, have a free hand in developing it within the plaintiff’s plant and receive a proportionate share of the profits realized therefrom, to be determined by the company.

The plaintiff’s version is that it was pointed out to the coinventors that the information and knowledge enabling them to conceive the sketch of May 15, 1941, necessarily came to them by virtue of their employment with plaintiff company, that independent development and patent application by them were contrary to the known existing and verbal arrangement between the company and its employees, and that no royalties could be paid to them in connection with the sketch of May 15, 1941. After such reprimand, the coinventors were assured that they would suffer no penalty by way of discrimination in opportunity for advancement with the company, and it agreed to pay the $30 required to be advanced by the coinventors for the patent search, incident to their application previously made.

Shortly after the conference, on the same day, defendant executed the “put on contract,” set forth immediately below:

“Agreement

“This agreement made this 22nd day of August, 1941, by and between Edward C. .Warrick, hereinafter referred to as the party of the first part, and United Aircraft Products, Inc., an Ohio corporation, hereinafter called the company.

“Witnesseth:

“Whereas, the company is engaged in the improvement, design and manufacture of technical and commercial apparatus, much of which is of a- scientific character and is manufactured especially for specialized military and naval uses, which work is necessarily of a secret character; and

“Whereas, the company employs in connection with such work a corps, of engineers, an important portion of whose duties is to conduct experiments and to make improvements relative to such apparatus; and

“Whereas, the party of "the first part desires to become employed as, or now is, a member of said engineering corps, and whereas one important part of his duties for which he will r.eceive, and/or now receives, his salary, is the development and invention of improvements in both existing designs of apparatus and in such new fields of endeavor as are determined or approved by the company.

“In consideration of his employment as above stated and the payment of his salary, the party of the first part agrees that he will not, except to the extent authorized by the company communicate or give any information, or disclose any drawings respecting or concerning any work or activity on which the company is or may be engaged, where the party of the first part has knowledge or should have known under the circumstances that the company and/or the United States Government desires to keep such work or activity secret.

“The party of the first part further agrees that any and all inventions, discoveries or improvements in any way relating to aircraft parts and accessories, or other items of manufacture, manufactured and/or sold by said company during the term of said employment, or to processes or apparatus particularly adapted to the manufacture of such parts, accessories, or other items invented by him during the term of said employment, or to improvements on any such inventions whenever made by him in the line of work assigned to him by said company, or any other line of work or investigation which the company is, or may be, engaged in, during the term of said employment, which inventions or discoveries or improvements are now known to the party of the first part, or discovered or made by the party of the first part, either in whole or in part, during the term of said employment, shall immediately become the absolute property of the company and shall be immediately disclosed to the company for the sole use and benefit of the company, and the party of the first part agrees to make application for such letters patent on said inventions as the company may consider necessary, desirable or useful, and to sign and execute any and all papers incident to the filing, prosecution and perfection of said applications and the letters patent issued thereon; the company, however, to bear and defray the costs and expenses incident to the procuration of said letters patent.

“The party of the first part further agrees that without further consideration he will sell and assign all his right, title and interest to such inventions to the company, its successors or assigns, and give the company> the right to have the United States letters patent issued thereon, issued in the name of the company, and will give the company the right to apply for and obtain patents on such inventions in any and all countries foreign to the United States as the company may select. No termination or cancellation of this agreement will relieve the first party’s obligation hereunder to sign and execute any papers necessary to enable the company to obtain for its own use, patent protection on said inventions, anything to the contrary herein notwithstanding.

“Edward C. Warrick

“In witness whereof, the said company has caused this agreement to be duly signed by its proper officer, and the party of the first' part has hereunto subscribed his name and affixed his seal at Dayton, Ohio, the day and year first above written.

“United Aircraft Products, Inc.,

“By Cleeman Withers.”

Defendant’s contention here, based on the allegations of his second amended answer, is:

First: That he refused to execute the “put on contract” until induced to do so by a contemporaneous agreement between the parties, whereby he turned over to the plaintiff the particular inventions of May 15, 1941, in reliance upon the promise of plaintiff to-pay him a proportionate share of the benefits derived from the exploitation of the inventions, and, by reason of the verbal agreement, the inventions of May 15, 1941, were not intended to be included in the “put on contract. ” ’

Second: That the intent of the “put on contract,” as shown by its terms, does not include inventions made prior to August 22, 1941, the date thereof.

It is clear that the purpose and intention of plaintiff in the preparation and submission to its employees of the “put on contract” was to renew, make whole, and integrate in the written memorial the existing practice, understanding and agreement extant between plaintiff and each of its employees with reference to the subject matter of the “put on contract.” That defendant was aware of this is evident, as the record reveals he had opportunity to examine the “put on contract” a few days prior to August 22, 1941, and he testified:

“Q. Tell the court why you refused to execute it. A. Because the ‘put on contract’ covered everything from the time we started working at United Aircraft Products until the termination of the employment. This invention we had made on our own would have been covered by this ‘put on contract,’ and we didn’t think that was fair. ’ ’

It, therefore, appears that defendant’s first contention amounts to a claim that the “put on contract” was a partial integration only and he seeks to prove by parol evidence a separate independent agreement. The law applicable to partial integration should, therefore, apply.

By the parol evidence rule, the integration of an agreement makes inoperative, to add to or vary the agreement, all contemporaneous oral agreements relating to the same subject matter; and, also, unless in certain circumstances, not present here, all prior oral or written agreements relating thereto. I't is stated that where there is integration of part of the terms of a contract a contemporaneous oral agreement operates to vary those terms only to the same extent as if the whole contract had been integrated. The oral agreement relied on here would be admissible only to establish the meaning of the integration, not necessary here, as the court considers the “put on contract” clear, or to prove facts rendering the agreement void or voidable, for fraud, illegality, duress, mistake, or insufficiency of consideration, affording grounds for relief by way of rescission or reformation, or for denying the remedy of specific performance. Expressed differently, the oral agreement would not be superseded or invalidated by subsequent or contemporaneous integration relating to the same subject matter, if not inconsistent with the integrated contract and made for a separate consideration, or if it is such an agreement as ought naturally be made as a separate agreement by parties situated as were the parties to the written contract. See 1 Restatement of the Law of Contracts, Section 237 et seq. The inherent probabilities present here are all against the defendant as it would have been very simple to except the invention of May 15,1941, in the “put on contract” itself, if such was the intention of the parties and a reliance on the claimed oral agreement, together with a complete lack of certainty as to the proportionate share to be paid defendant and committing arbitrary determination of amount to plaintiff, lacks such ordinary prudence as to furnish a clear example of the reason for the rule.

In 12 American Jurisprudence, 758, Section 235, it is stated:

“However, a written contract may properly be varied by an.oral agreement only where it is collateral, is not inconsistent with express or implied conditions of the written contract, and is one which the parties could not reasonably be expected to embody in the writing. ’ ’

In 17 Ohio Jurisprudence, 524, 525, Section 425, it is stated:

“Where it is apparent from the writing itself that it does not embody the entire contract of the parties, but only some distinct and separable part, the case is not within the rule, and parol evidence which does not contradict the terms.of what is written, but is consistent therewith, is admissible. In other words, where the verbal agreement is not inconsistent with, but supplementary to, the written agreement, parol evidence is admissible. In one ease it is said that when it is made to appear by proper and competent means that the writing contains only part of the agreement entered into, parol evidence is competent to show what the parties really did agree to, with reference to the subject matter of the contract. It has been held that to make such evidence admissible there must be such averments of fraud or mistake as would authorize a reformation of the instrument.

“As shown above, there is a presumption that a writing includes the entire agreement of the parties. To permit terms to be ingrafted by mere parol evidence upon a written agreement would be attended with all the danger, laxity, and inconvenience which the general rule is calculated to exclude; for an agreement might, by such additions, be as effectually altered as if its very terms had been changed by parol evidence.”

While the court below, in generous avoidance of technicalities, admitted evidence on the theory that the allegations of defendant’s second amended answer were tantamount to pleading fraud, defendant does not specifically plead it, nor claim it in oral argument. Since the evidence admitted clearly tends to contradict not only the writing, but the clear implication of fact ■from the writing, that it expresses the whole agreement, it would clearly not be admissible in the absence of such claims of oppression. From the comprehensive and helpful citations furnished by all counsel, as well as by the court’s independent research, it appears that, the parol evidence rule has been frequently vindicated by both 'the admission and rejection of evidence in a proper case, depending upon the precise facts of each case. From the circumstances here it seems clear to the court it was not error prejudicial to defendant to limit the evidence adduced to proof of fraud.

Coming now to consider the construction of the “put on contract” resorted to by defendant, wherein its terms are labeled as being all in praesenti and the words “during the term of said employment” are limited to that period of employment after August 22, 1941, only, thereby excluding from its operation and effect all inventions made during employment but prior to the date of the execution of the “put on contract,” the court will follow the general rules as to necessity of construction, examining tbe writing from the familiar four corners, and construing it most strongly against tbe drawer thereof, with a view to ascertaining the meaning of the language used, and not the intention of any of the parties different therefrom :

The first three paragraphs set forth the parties and are descriptive of the specialized character of the plant operation and duties of its corps of engineers and the secret character of the work.

Paragraph four states, in substance, in part, that defendant “now is” a member of the engineering corps •and that one important part 'of his duties for which he “now receives” his salary is the development and invention of improvements, etc. ‘So far, the contract clearly refers to conditions and things existing prior to its execution.

Paragraph five states: “in consideration of his employment as above stated,” that is, the prior existing employment and so long as it continues, “and the payment of his salary, ’ ’ clearly salary paid in the past and as earned in the future, defendant agrees not to disclose secret information concerning work or activity in which the company “is or may be engaged” when defendant “has knowledge or should have known under the circumstances” that the company or the government desires secrecy. The phrase “is or may be engaged” clearly connotes present activity which is prior to the contract and carries .with it, to complete the whole connotation and thought, past activity as well. 'The phrase “has knowledge” must mean knowledge presently acquired which is prior to execution of the 'contract and logically must include knowledge acquired in the past, so that he has it in the present.

Paragraph six refers to any and all inventions without limitation of any kind “during the term of said employment,” that is, the employment referred to above, which covers existing or old employees, hence must logically refer to the whole term of employment from its inception, even though that inception antedated the “put on contract.” The additional alternative provisions of paragraph six, including the phrase' ‘ ‘ during the term of said employment, ’ ’ are in the same category. In addition, the following language appears in paragraph six, to wit, “which inventions or discoveries or improvements ‘are now known’ to the party of the first part, or discovered or made by the party of the first part, either in whole or in part, during the term of said employment.”

It, seems clear that an invention now known, discovered, or made, either in whole or in part, would have to be an invention in existence at the time of the execution of the “put on contract” and necessarily arrived at during the term of employment prior thereto. Attempting to cover such inventions clearly shows that the phrase “during the term of said employment” refers to employment prior to the “put on contract,” as well as after.

Entertaining the above views, it appears there is no reason for the application of rules of construction whereby the court might be led into the error of making a contract for the parties.

It appears further that defendant’s invention of July 21, 1941, was disclosed and patent application made and assigned to plaintiff in compliance with the “put on contract.” Hence, by their own acts, the parties have placed a construction on the contract including inventions prior to August 22, 1941. The courts will follow the interpretation indicated by the conduct of the parties. Courtright v. Scrimger, 130. Ohio St., 547, 144 N. E., 294.

The record shows further plaintiff maintained a merit award system pursuant to which defendant accepted a substantial award for meritorious work, seemingly inconsistent with his claim of a separate parol agreement.

In view of the foregoing, it is obvious that not only must any contention against the equitable jurisdiction of the court fail, but it appears the facts here present a case peculiarly apt for the exercise of that jurisdiction.

Considering now the injunctive relief granted, in 4 Pomeroy’s Equity Jurisprudence (5 Ed.), 941, it is stated:

“An injunction restraining the breach of a contract Is a negative specific enforcement of that contract. The .jurisdiction of equity to grant such injunction is substantially coincident with its jurisdiction to compel a specific performance. Both are governed by the same doctrines and rules; and it may be stated as a general proposition that wherever the contract is one of a class which will be affirmatively specifically enforced, a court of equity will restrain its breach by injunction, if this Is the only practical mode of enforcement which its terms permit. Where the agreement stipulates that certain acts shall not he done, an injunction preventing the commission of those acts is evidently the only mode of enforcement * *

The evidence clearly shows a threatened breach and we find the injunction below properly granted.

There being no errors on the record, prejudicial to defendant, the judgment of the court below is in all respects affirmed.

Judgment affirmed.

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

Matthews, J., not participating.


author: By the Court.

text:
    Huston, Appellant, v. The Travelers Ins. Co., Appellee.
    (No. 3915
    Decided October 22, 1946.)

      Mr. Carl 11. Valentine, for appellant.

      Messrs. Wright, Ha-rlor, Purpus, Morris & Arnold and Mr. H. B. Arnold, Jr., for appellee.
   By the Court.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin county, which rendered judgment for the defendant in an action wherein the plaintiff, as beneficiary, sought to recover $2,000 insurance on the life of her husband who was the holder, as an employee, of a certificate of insurance issued by The Travelers Insurance Company under a group insurance policy, to the Columbus Metal Products, Inc. The matter was tried to a jury and at the close of the case by consent of parties the jury was withdrawn and the case submitted to the court.

The plaintiff, appellant herein, in her assignments of error claims the trial court erred in the following particulars, to wit:

First: The trial court erred in overruling plaintiff’s motion, made upon the completion of the introduction of evidence by the defendant, to direct the jury to return a verdict in her favor.

Second: The trial court erred in finding and entering judgment in favor of the defendant.

Third: The trial court erred in overruling.plaintiff’s motion for a new trial.

All three assignments of error revolve around a law question and will be considered together. The husband of the plaintiff was employed by the Columbus Metal Products, Inc., at the time the group policy of insurance was issued. He was regularly employed until January 15, 1944, except for short periods during which he was incapacitated by reason of illness. After January 15, 1944, he Avas wholly- disabled, was unable to work and did not work up to August 21,1944, the date of his death which was caused by angina pectoris. On April 3,1944, the Columbus Metal Products, Inc., notified the insurance company that the insurance on decedent was terminated.

The defendant contends that by reason of such notice the contract of insurance was not in force on August 21, 1944, the date of death of the insured. The plaintiff contends that the notice was ineffectual to terminate the contract of insurance according to the terms of the policy.

Because of the legal question raised we deem it advisable to set forth certein provisions in the master policy and also certain provisions contained in the certificate issued to the insured. The master policy provided that:

“The company iwill issue to the employer for delivery to each employee whose life is insured hereunder an individual certificate setting forth a statement as to the insurance protection to which he is entitled, to whom payable, and containing provision to the effect that in case of the termination of the employment for any reason whatsoever the employee shall be entitled to have issued to him by the company without further evidence of insurability, and upon application made to the company within thirty-one days after such termination and upon the payment of the premium applicable to the class of risks to which he belongs and to the form and amount of the policy at his then attained age, a policy of life insurance, in any one of the forms customarily issued by the company, except term insurance, with permánent total disability benefit equivalent to that provided hereunder,' in an amount equal to the amount of the employee’s protection under this policy at the time óf the termination of his employment. ’ ’

The master policy provided further:

“Termination of Insurance. — The insurance of any employee covered hereunder shall end when his employment with the employer shall end except in a case where at the time of such termination the employee shall be wholly disabled and prevented by bodily injury or disease from engaging in any occupation or employment for wage or profit. In such case the insurance will remain in force as to such employee during the continuance of such disability for the period of three months from the date upon which the employee ceased to work and thereafter during the continuance of such disability and while this policy shall remain in force until the employer shall notify the company to terminate the insurance as to such employee. Nothing-in this paragraph contained shall limit or extend the permanent total disability benefit to which an employee shall become entitled under this policy.

“Temporary lay-off or leave of absence for reasons other than physical disability as aforesaid shall not be considered as termination of employment for the purpose of this insurance, unless the employer shall so elect. ’ ’

The certificate issued to the insured contained the following provision:

“The insurance of any employee covered under said policy shall end when his employment with the employer shall end or prior thereto when the employee shall cease to pay t'o the employer the required amount to apply toward the premium for this insurance, except in a case where at the time of termination of employment the employee shall be wholly disabled and prevented by bodily injury or disease from engaging in any occupation or employment for wage or profit. In such case the insurance will remain in force as to such employee during the continuance of such disability for the period of three months from the date upon which the employee ceased to work and thereafter during the continuance of such disability and while the group policy shall remain in force until the employer shall notify the’company to terminate the. insurance as to such employee. Nothing in this paragraph contained shall limit or extend the permanent total disability benefit to which the employee shall become entitled under the policy.”

The certificate provided also:

“Conversion privilege. — Any.employee of the employer covered under this group policy shall, in case of the termination of employment for any reason whatsoever, be entitled to have issued to him by the company without further evidence of insurability, and upon application made to the company within thirty-one days after such termination and upon the payment of the premium applicable to the class of risks to which he belongs and to the form and amount of the policy at his then attained age, a policy of life insurance in any one of the forms customarily issued by the company, except term insurance, with permanent total disability benefit equivalent to that provided hereunder in an amount equal to the amount of the employee’s protection under this policy at the time of the termination of his employment.”

The sole question for determination is whether the notice given oh April 3, 1944, was effectual to terminate the insurance. Obviously, according to the provisions of the certificate the insurance remained in effect for a period of three months from the date the insured ceased to work and “thereafter during the continuance of such disability and while this policy shall remain in force until the employer shall notify the company to terminate the insurance as to such employee.” Did the notice given April 3, 1944, which purported to terminate the insurance as of that date, which was prior to the expiration of the three months period, effectually terminate the insurance? The law relative to the términation of fire insurance contracts is urged as being applicable to the termination of life insurance contracts. While we recognize there is a distinction in the character and purpose of the two classes of insurance, nevertheless, the same fundamental principles of contract law are applicable.

Where the notice terminating a fire insurance contract stipulates a date of termination earlier than that provided in the policy, the notice is effectual to terminate the insurance after the expiration of the full time stipulated in the policy, and the fact that the notice fixes a shorter period than that prescribed in the policy does not invalidate it as a notice of termination of insurance to become effective at the expiration of the prescribed time. Ralston v. Royal Ins. Co., 79 Wash., 557, 140 P., 552; American Glove Co. v. Penn. Fire Ins. Co., 15 Cal. App., 77, 113 P., 688; Hanover Fire Ins. Co. v. Wood, 209 Ala., 380, 96 So., 250. The case of Oldfield v. Chevrolet Motor Co., 198 Iowa, 20, 199 N. W., 161, 35 A. L. R., 889, cited by counsel for the plaintiff apparently takes the other view but is contrary to the weight of authority according to the note found in 35 A. L. R., 889. It must be observed that case did not involve a contract of insurance. See, also, 6 Couch on Cyclopedia of Insurance Law, 5087; 32 Corpus Juris, 1249, 1250; 45 Corpus Juris Secundum 91, 92.

The one case which is claimed to be on all - fours with the instant case involving a life insurance contract is Black v. Travelers Ins. Co., 231 Ala., 415, 165 So., 221. In that case the same issues were raised as in the case at bar. The insured was wholly disabled and notice to cancel the insurance was given by the employer before the expiration of the three months after the insured ceased to work. The plaintiff contended, as in the instant case, that notice given before the expiration of the three months period was ineffectual to cancel the insurance; that the notice may not be given until after the expiration of the three months period. The defendant in that case is the defendant in the instant case, and from an examination of the opinion of the court we conclude that the policy under consideration contained provisions similar to those in the policy in the instant case. The court in its opinion says:

“The rule is well settled in this and other jurisdictions that, when the notice declares that the cancellation is presently operative, or fixes a time shorter-than that prescribed, where the policy requires a certain number of days ’ notice, it becomes effective at the expiration of the prescribed period. Hanover Fire Ins. Co. v. Wood, 209 Ala., 380, 96 So., 250; 32 Corpus Juris, 1249, 1250, Section 437, Note 18; 35 A. L. R., p. 899, et seq., note. We think that the provision in the policy that its liability may continue for three months, and ‘until the employer shall notify the company to terminate the insurance as to such employee,’ does not mean that the notice may not be given during those three months. The term ‘until’ means, we think, the time fixed by the notice in words or effect to be after the expiration of the three months’ period, but no such requirement is properly inferred as to the time when the notice shall be given."

Plaintiff relies on the case of Emerick v. Connecticut General Life Ins. Co., 120 Conn., 60, 179 A., 335, 105 A. L. R., 413. In that case it was held (as set forth in paragraph one of the headnotes in 105 A. L. R., 413):

“The coverage of an employees’ group insurance policy, which by its terms was to ‘automatically cease with the termination of employment,’ is not terminated by dropping from the pay roll an employee who had been laid off and notifying the insurer that his insurance is to be cancelled, where no notice of termination of employment was given the employee, who under the terms of a policy had a right (to the exercise of which notice of termination of employment was essential) within thirty-one days after the termination of employment to take out a policy in any of the forms customarily issued by the insurer, without further evidence of insurability.”

We are of the opinion that the decision in that case hinged on the interpretation of the phrase “termination of employment” and may be distinguished on the basis of the factual question involved. Moreover, we find that Ohio courts have refused to follow it. See Betteley v. Fisher Bros. Co., 32 Ohio Law Abs., 83, judgment affirmed by the Supreme Court in 137 Ohio St., 534, 30 N. E. (2d), 1000.

See, also, Aetna Life Ins. Co. v. Lembright, 32 Ohio App., 10, 166 N. E., 586; Thull v. Equitable Life Assurance Society, 40 Ohio App., 486, 178 N. E., 850.

The plaintiff contends that the employer should give notice to the insured of its intention to terminate the insurance in order that the insured may avail himself of the conversion privilege. That point was stressed in the Emerick case. In the instant case neither the master policy of insurance nor the certificate issued to the insured required such notice to be given, and we, therefore, hold that the employer was under no obligation to give notice to the insured. See Betteley v. Fisher Bros. Co., supra; Thull v. Equitable Life Assurance Society, supra.

We have been furnished with an exceedingly well prepared opinion of Judge Leach in which he very ably discussed the issues raised and the law applicable thereto. We approve of his reasoning and conclusions. Finding no error in the record, the judgment of the trial court is affirmed.

Judgment affirmed.

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


author: Hornbeck, P. J.

text:
    Howard, Admr., Appellant, v. Pennsylvania Rd. Co., Appellee.

      (No. 3799
    Decided July 8, 1946.)

      Mr. Hugh Huntington and Mr. E. D. Howard, for appellant.

      Messrs. Burr, Porter, Stanley & Trefinger, for appellee.
   Hornbeck, P. J.

This is an appeal on questions of law from a judgment for the defendant, appellee herein, upon a verdict of the jury in its behalf. The action was for damages for the alleged wrongful death of plaintiff’s decedent, Angelo L. Ardit, caused by the negligence of the defendant company in the operation of its locomotive at its railroad crossing at Grandview avenue in the city of Grandview Heights, Franklin county, Ohio.

Plaintiff’s decedent was driving his automobile northwardly 'on Grandview avenue approaching the railroad crossing where the collision occurred. It is undisputed that the Ardit automobile slowed down arid came almost to a stop at a distance from the crossing varying from 15 to 25 feet. The train involved in the collision was a freight moving in an easterly direction. The negligence averred was that the engine had no lighted headlight, that no watchman gave a warning of an approaching train and that the engineer failed to warn traffic of his approach by failing to either sound the whistle or ring the bell on the locomotive.

In the answer of defendant after denial that the locomotive was not lighted, ancf an averment that the headlight on the locomotive was lighted, and after a denial that the automobile of plaintiff’s decedent was struck by the locomotive and an averment that plaintiff’s decedent drove his automobile into the side of the locomotive, it was admitted that no whistle on the locomotive was sounded and no bell rung prior to or at the time of the collision because of an ordinance No. 1941 of the city of Grandview Heights then in full force and effect which provided that:

“It shall be unlawful for any railroad company * * * to blow or sound any locomotive steam whistle or other steam whistle or to sound any locomotive bell within the corporate limits of the city of Grandview Heights, Ohio.”

The answer averred also that at the time of and prior to the collision there was a crossing watchman stationed in the ceriter. of the highway north of the tracks and with a lighted lantern gave and continued to give a signal of the approach and passage of the locomotive and train. The contributory negligence of plaintiff’s decedent was plead in three particulars.

Plaintiff, replying to the answer of defendant, admitted the passage of the ordinance which is plead, but denied that it was in full force and effect on the date of the 'collision for the reason that it is in conflict with the statutes of Ohio in such cases made and provided, and is therefore void; and further said that if such ordinance is valid, which is denied, the same, by its terms, does not apply to railroad crossings.

On the trial, at the conclusion of the submission of the testimony, the court sustained the motion of the defendant to strike from the petition the first and second assignments of negligence, namely, the failure to ring the bell and sound the whistle on the locomotive. The court also, at the request of the defendant, submitted three interrogatories to the jury:

1. “Did Angelo Ardit drive or attempt to drive his automobile across the Grandview avenue railroad crossing when a human flagman, Leonard Agriesti had given or continued to give a signal of the approach or passage of train? A. Yes.”

2. “If an ordinarily prudent person, when approaching the tracks of the Pennsylvania railroad in Grand-view avenue under conditions like or similar to which existed when Angelo Ardit approached said tracks on the occasion of the collision had looked effectively for a locomotive or train approaching Grandview avenue, from the west, would such an ordinarily prudent person have discovered or become aware of the approach or presence of the locomotive or train in time to have stopped this automobile in a place of safety? A. Yes.”

3. “Did Angelo Ardit as he approached the tracks of the Pennsylvania railroad in Grandview avenue, on the occasion of the collision look to the west for an approaching locomotive or train at a time when, at a place where, and in a manner that looking in that direction for that purpose would have been effective? A. No.”

Eight errors are assigned:

1. (a) The trial court erred in holding the Ordinance 19-41 of the city of Grandview Heights to be valid; (b) In refusing to hold such ordinance or a part thereof to be invalid; and (c) In ordering plaintiff’s first and second allegations of negligence to be stricken from the petition.

2. The trial court erred in submitting the interrogatories of defendant to the jury, and in returning them to the jury, with improper instructions.

3. The trial court erred in further charging the jury respecting decedent’s alleged contributory negligence, after the general charge fully covering that matter had been given and after other proceedings had intervened.

4. The trial court erred in holding that it was the duty of the engineer to comply with the ordinance so long as it had not been held invalid.

5. The trial court erred in holding that the defendant, the engineer was chargeable with only ordinary care when approaching a crossing on a dark night, knowing that warnings, required by statute, were not being given.

6. The trial court erred in his charge to the jury respecting the question of emergency or immediate danger.

7. The verdict was against the manifest weight of the evidence.

8. The trial court erred in overruling plaintiff’s motion for a new trial.

The second, third, fifth, seventh and eighth assignments of error are not supported by the record.

The interrogatories were properly submitted and the answers to them clearly establish the negligence of plaintiff’s decedent contributing as a proximate cause of his injury and death. There is ample support in the record for the answers to the interrogatories and for the general verdict.

In the light of the general verdict, we cannot say the interrogatories, or any one of them, were improperly submitted. If the general verdict had been for the plaintiff, a negative answer to interrogatory No. 2 would have presented a difficult question. However, the general verdict implies that physical conditions were such that either a watchman was on duty giving warning of the approach of the train, or the headlight on the locomotive was lighted and the train visible and that plaintiff’s decedent, had he looked effectively, could have seen the approaching train. The use of the term “looked effectively” would have made it difficult of application if the jury had found that the accident occurred at a time when it was dark and the headlight was not lighted. The question includes the conditions existing at the time plaintiff’s decedent approached the tracks which, in view of the implications of the general verdict, make the answer consistent.

We pass upon the other errors assigned because it is mandatory for us to do so under Section 12223-21, General Code.

Two questions are urged respecting the ordinance: That if valid it was not observed in that the employees of defendant company did not sound any warning either by whistle or bell in the situation presented which created an emergency and placed plaintiff’s decedent in immediate danger.

It will be observed from the pleadings that the proviso in the ordinance that it shall not be construed to prohibit the blowing of any locomotive steam whistle or the sounding of any locomotive bell in cases of emergency or immediate danger is not brought into the case either by the answer or the reply thereto. The trial judge, however, took the ordinance in its entirety and held that because of the proximity of the automobile of plaintiff’s decedent to the intersection of Grandview avenue and the railroad tracks of defendant company, when observed by the engineer, and particularly, because the automobile had almost come to a stop within 15 to 25 feet from the tracks, no emergency was created.

The ordinance does not prohibit the blowing of a whistle or the sounding of a bell in case of emergency or any immediate danger. If the fireman who apparently had charge of the bell had sounded it immediately prior to the collision, would he not have had a defense that' the occupants of the automobile were in immediate danger, if charged with a violation of the ordinance? The record at least presents a factual question if an emergency was created wherein the occupants of the automobile were in immediate danger. The engineer testified that immediately before the collision with the automobile of plaintiff’s decedent, two automobiles had just barely crossed ahead of the engine and that he thought he was going to strike them. When, then, the automobile of plaintiff’s decedent at about the same time approached the track, there was presented a factual issue whether the bell or the whistle or both should have been sounded and also if there was sufficient time to sound them effectively. Certainly, the next question for consideration of the jury had it found that an emergency did exist was whether the failure to sound the bell or whistle was a proximate cause of the collision. The automobile admittedly was moving slowly and the train was proceeding at a rate of speed from five to eight miles an hour. Neither witness who testified on the subject said that the automobile came to a complete stop but manifestly it slowed down and the engineer may properly have concluded that it was coming to a complete stop. The failure to submit the question of the signals to the jury by the striking out of specifications of negligence relating thereto, though erroneous, could not have been prejudicial to the plaintiff on the state of the record because it appears that in the exercise of ordinary care plaintiff’s decedent should have observed the locomotive, independent of any sounding of a whistle or bell.

But it is contended that the ordinance is invalid as in conflict with statute, Section 8853, General Code, a law of general application. In support.of that claim plaintiff cites Leis v. Cleveland Ry. Co., 101 Ohio St., 162, 128 N. E., 73, paragraph two of the syllabus; Fitzgerald v. City of Cleveland, 88 Ohio St., 338, 103 N. E., 512, Ann. Cas. 1915B, 106; City of Mansfield v. Endly, 38 Ohio App., 528, 176 N. E., 462.

Section 8853, General Code, provides:

“Every company shall attach to each locomotive engine passing upon its road, a bell of the ordinary size in use oh such engines, and a steam or compressed air whistle. When an engine in motion and approaching a * * * town road crossing * * * the engineer or person in charge thereof, shall sound such whistle at a distance of at least eighty and not further than one hundred rods from such crossing, and ring such bell continuously until the engine passes the crossing.” Section 8854, General Code, provides:

“The provisions of the next preceding section shall not interfere with the proper observance of an ordinance passed by a city or village council regulating the management of railroads, locomotives and steam whistles thereon, within the limits of such "city or village.”

It is the claim of the defendant that the ordinance under consideration is valid as coming within the exceptions of that part of Section 8854, General Code, which provides that Section 8853, General Code, is not to “interfere with the proper observance of an ordinance passed by a city or village council regulating the management of * * * locomotives and steam whistles thereon, within the limits of such city or village.” The language clearly does support the ordinance as it affects the' sounding of a whistle. Whether it extends to the prohibition,of the sounding of a bell is a much closer and more difficult question. If the language of the ordinance prohibiting the sounding of a bell may be considered as regulating the management of locomotives, then it may be sustained. The court probably so construed language of similar import in Pennsylvania Co. v. Hensil, 70 Ind., 569, 573, 36 Am. Rep., 188. At the time of that decision the Indiana statute relating to the giving of signals at road crossings provided (as set forth in the case of Katzenberger v. Lawo, 90 Tenn., 235, at page 241, 16 S. W., 611, 13 L. R. A., 185) that:

“Nothing therein contained shall be so construed as to interfere with any ordinance or bylaw that has been or may be passed by any city or town, regulating the management or running of engines or trains within such city or town.”

The trial judge took that view in the instant case and we are not disposed to hold otherwise. We are in accord with the contention of plaintiff that Section 8853, General Code, is a law of a general nature and that the ordinance must be considered in the light of Section 3, Article XVIII, Ohio Constitution, and may not be given application if in conflict with general law.

No prejudicial error affecting the rights of plaintiff, appellant herein, appearing in this case, the judgment will be affirmed.

Judgment affirmed.

Wiseman and Miller, JJ., concur.


author: Matthews, J.

text:
    Board of Education of Addyston Village School Dist., Appellant, v. Nolte-Tillar Bros. Construction Co. et al., Appellees.
    (No. 6685
    Decided November 25, 1946.)

      Mr. John J. Cooney and Mr. Roy L. Struble, for appellant.

      Mr. Francis T. Bartlett and Mr. A. A. Rendigs, Jr., for appellees.
   Matthews, J.

This is the second appearance of this case upon the docket of this court. The first appeal was from an order of the Common Pleas Court overruling a motion of the defendants for a judgment notwithstanding the verdict. The defendants had filed also a motion for a new trial which the court had granted, and so at the time this court heard the appeal the case stood upon the docket of the trial court for trial of the issues raised by the pleadings. By the appeal, the defendants sought to avoid the new trial, their claim being that on the record made at the trial they were entitled to judgment and, therefore, the court had erred in overruling their motion for judgment. This court held against them on that issue and affirmed the action of the trial court in overruling their motion for judgment. The order of the trial court granting a new trial was not involved in that appeal excepting that had this court reversed the order of the trial court in overruling the defendants’ motion for judgment it would have resulted in a final judgment for defendants, which would have nullified the order granting the. new trial. The order of the trial court granting the new trial was in general terms, specifying no ground therefor, and the judgment of this court on the appeal was equally general, reciting only that the record showed no prejudicial error, and remanding the canse without any direction as to the course to be pursued on the new trial. The opinion of this court on the first appeal is reported in 71 Ohio App., 469, 49 N. E. (2d), 99.

The record before this court on that appeal showed that the case had gone to trial upon an amended petition and the defendants’ answers thereto.

In the amended petition, the plaintiff alleged that it had entered into a written contract with the defendant, Nolte-Tillar Bros. Construction Company, whereby Nolte-Tillar Bros. Construction Company agreed “to provide all materials and perform aíl labor for the construction and completion of a public school building in Addyston, Ohio, in accordance with certain duly adopted plans and specifications,” and that the defendant, the New Amsterdam Casualty Company guaranteed the faithful performance of the contract by Nolte-Tillar Bros. Construction Company.

It was alleged that Nolte-Tillar Bros. Construction Company did construct the building, but that it violated the contract by failing “to construct mortar joints in outside brick walls with well mixed and tempered materials and failed to lay bricks in full beds of mortar with joints completely filled and slush-ed with .mortar and failed to construct said walls in a substantial and permanent manner as provided for in said contract and specifications.” It was alleged also that it failed to construct the roof “as provided for in said specifications” and as a result the roof leaked.

It will be observed that there was no direct allegation of the terms of the contract, and only by inferring from the allegations of the respects in which the contract was broken can any of the terms of the contract be discovered.

It will also be observed that no reference was made to any provision for arbitration.

The answer of the defendants admitted the execution of the contract and the construction of the building and then denied the breach of the contract alleged by the plaintiff.

It was upon those pleadings that the trial proceeded, which resulted in the verdict for the plaintiff, the record of which was under review in the first appeal to this court.

The sole issue raised by the first appeal was whether this court could say that, in view of those pleadings and the record of the trial thereon, the defendants were in a position to assert error in overruling their motion for judgment. At most we are concerned now with the extent, if any, to which the course of the second trial was required to conform to the pronouncements on the first appeál.

So far as the record showed, neither of the parties had based any claim upon the provision for arbitration, although the written contract introduced in evidence contained that provision. Failure to comply with the arbitration provision was advanced for the first time on appeal as a reason for invalidating the order of the court overruling the motion for judgment.

Reference to the opinion of this court will show that the waiver by the defendants of their right to-arbitration was based on their action in answering and proceeding to trial without asserting whatever rights they might have under the contract or statute. And it was that state of the record that caused this court to affirm the action of the trial court in overruling the motion for judgment. The cases cited in support of our conclusion make it clear that it was the attitude of this court to review the former action of the trial court then under consideration, and that it was not an attempt by us to anticipate and control the action of the parties at the second trial. The case pends for retrial and, of course, the record of that trial is still to be made. Should an appeal be taken from the judgment there rendered, the same principle will be applied thereto as was applied to the record of the first trial.

Whatever remains of the doctrine of “the law of the case” after the overruling of the case of Gohman v. City of St. Bernard, 111 Ohio St., 726, 146 N. E., 291, 41 A. L. R., 1057, by the case of New York Life Ins. Co. v. Hosbrook, 130 Ohio St., 101, 196 N. E., 888, 118 A. L. R., 1283, it is clear .that it can have no application to a case where the rule announced by the appellate court was for its own guidance in the consideration of the record on the appeal and not for the guidance of the trial court upon a retrial that had already been granted, at which other issues raised by amended pleadings might be presented.

After this court had affirmed the action of the trial court in overruling the defendants’ motion for judgment, the defendants sought and obtained leave to amend their answers by alleging as an additional defense, that they had, under the contract, the right to have the dispute settled by arbitration in the manner set forth in the contract, and applied for a stay of trial to permit arbitration.

By way of avoidance, the plaintiff replied that this court had, on appeal, held that the defendants had waived any right to have the dispute submitted to arbitration.

On motion of the defendants, the court struck all the allegations relating to the waiver based on the ruling of this court, and the plaintiff not desiring to plead further, the court ordered a stay of the trial until the contractual provisions for arbitration had been complied with. It is from that order that this second notice of appeal has been given.

The case comes before the court upon the defendants’ motion to dismiss on the ground that the order is not final and, therefore, cannot be the basis for an appeal.

On this motion, we consider only whether the order is one from which an appeal may be taken and not whether the court was right or wrong in making it.

It is clear that the effect of the order is to postpone the trial indefinitely until such time as the parties have arbitrated the dispute or until the failure or refusal of the parties to arbitrate causes the court on motion of one of the parties or upon its own motion to proceed in accordance with the statutes relating to' arbitration or other laws until the cause.is merged in a final judgment. What course the trial would take after arbitration cannot be determined from the record.

By Section 12223-2, General Code, a final order is defined as “An order affecting a substantial right in-an action, when in effect it determines the action and prevents a judgment ***.’-’

Now does this order determine the action and prevent a judgment? We think not. It amounts to no more than a postponement of the trial. It does not prevent the plaintiff from refusing to comply with the order of the court to arbitrate the dispute. The only consequence of such refusal would be the entering of a judgment for the defendants, which would be a final order, on appeal from which the validity of the stay and order to arbitrate would be presented.

In 2 American Jurisprudence, 915, it is said:

“An order requiring the parties to a pending action to proceed to arbitration and to stay trial of the action pending .the filing of the áward is not a final judgment for purposes of appeal. Nor is an order denying a stay of an action until arbitration can be had in accordance with the terms of the contract on which the action is based appealable.”

The case of Schoenamsgruber v. Hamburg-American Line, 294 U. S., 454, 79 L. Ed., 989, 55 S. Ct., 475, is cited in support of that statement and an examination of the case discloses that the facts and the United States statutes relating to arbitration are closely analogous to the facts in this case and the Ohio statutes relating to arbitration.

Our conclusion is that the order from which the appeal has been attempted is interlocutory and not final and is, therefore, not appealable.

For these reasons, the motion to dismiss the appeal is granted.

Motio'ii granted.

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


text:
    The State of Ohio, Appellant, v. Ahlbrandt, Appellee.
    (No. 6672
    Decided July 1, 1946.)

      Mr. John D. Ellis, Mr. Robert J. Paul and Mr. Harry Meier, for appellant.

      Messrs. Ragland, Dixon & Murphy, for appellee.
   Hildebrant, P. J.

The conviction of defendant, in a trial by jury in the Municipal Court of Cincinnati, was reversed and the cause remanded for new trial by the Common Pleas Court, the language of the judgment and mandate being as follows:

“This cause came on for hearing upon the appeal of appellant, the transcript, and the original papers and pleadings from the Municipal Court of the city of Cincinnati, Ohio, and was argued by counsel; on consideration whereof, the court finds that there is error apparent upon the face of the record to the prejudice of the appellant.

“It is therefore considered by the court that the judgment of the aforesaid Municipal Court of Cincinnati, Ohio, be reversed and held for naught.

“It is further ordered that the said appellant be granted a new trial.

“To all of which appellee excepts.”

It is assigned as error here that the court failed to comply with Section 12223-21, General Code, requiring the reviewing court to state the error or errors found in the record upon which the judgment of reversal is founded.

It is argued that the above section of the Code does not apply in a criminal case. That is the question to be determined here.

In 116 Ohio Laws, 104, House Bill No. 42 is entitled:

“An act to establish a simplified method of appellate review; to enact Sections 12223-1 to 12223-49, inclusive; to amend Sections 11560, 11562, 11564, 11571, " Í1572, 11604, 13459-3, 13459-4, 13459-5, 13459-6, 13459-7, 13459-8, 13459-9, 13459-10, 13459-11, 13459-14 * * * of the General Code.”

It is, therefore, apparent that the General Assembly intended the Appellate Procedure Act to be amendatory of and include within the scope of its application appeals in criminal cases, not otherwise specifically covered by the provisions on appeals in the Code of Criminal Procedure.

Section 12223-3, General Code, provides:

“Every final order, judgment or decree of a court * * * may be reviewed as hereinafter provided, unless otherwise provided by law * * V’

The chapter on appeals in the Code of Criminal Procedure does not “otherwise provide by law” for what the mandate shall contain in case of a reversal. Section 12223-1, General Code, provides:

“1. The word ‘appeal’ as used in this act shall be construed to mean all proceedings whereby one court reviews or retries a cause, determined by another court, an administrative officer, tribunal, or commission.

“2. The [words] ‘appeal on questions of law’ shall be construed to mean a review of a cause upon questions of law including the weight and sufficiency of the evidence and shall include all the proceedings heretofore and otherwise designated in the General Codeias proceedings in error. * * *”

Section 13459-6, General Code, in the chapter on appeals in the Code of Criminal Procedure, setting forth what judgment may be rendered, is amendatory of Section 13459-6, General Code, as found in 113 Ohio Laws, 213, and, in the portion here involved, merely substitutes the term “appeal” for the term “petition in error.” It, therefore, appears that Section 12223-1 et seq., General Code, apply also to appeals in criminal cases, unless otherwise provided in the chapter on appeals in the Code of Criminal Procedure.

That Section 12223-21, General Code, applies to criminal cases was held in State v. Brunswick, 69 Ohio App., 407, 413, 44 N. E. (2d), 116. In State v. Gossler, 74 Ohio App., 486, 57 N. E. (2d), 670, it was held that Section 12223-1 et seq., General Code, insofar as they are specific, treat of civil procedure, although they are not so designated; that their application to criminal procedure is not precluded if the language in the light of the whole appellate act so requires; hut that the assumption is that appellate procedure in criminal cases will be found in those sections codified under criminal procedure, i. e., Section 13459-1 et seq., General Code.

In City of Akron v. Huber, 78 Ohio St., 372, 85 N. E., 583, Judge Shauek indicated, at page 374, that when the mandate fails to specify the grounds of reversal, as required, the judgment should be vacated and the cause remanded for the performance of that duty, if necessary on the state of the record.

Here, it is impossible for the Municipal Court to know from the mandate .upon what errors the judgment of reversal is founded.

Section 12223-39, General Code, has been noted by the court and considered as mérely cumulative.

The judgment of the Common Pleas Court is, therefore, vacated, and the cause remanded to that court for correction of the mandate to the Municipal Court by stating therein the grounds of reversal.

Judgment' accordingly.

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