author: Hurd, J.

text:
    Martin, Appellee, v. Martin, Appellant.
    (No. 21491
    Decided December 19, 1949.)

      Mr. H. W. Kiser, for appellee.

      Messrs. Beach <& Warner, for appellant.
   Hurd, J.

This is an appeal on questions of law from the Court of Common Pleas of Cuyahoga County from a judgment rendered in favor of plaintiff on a motion filed by the defendant on November 10, 1948, approximately five years after the final decree of divorce- and alimony had been entered in favor of the plaintiff.

By the motion, the defendant made the following request:

“ (1) For an order clarifying, construing and enforcing the prior orders of this court herein as relates to alimony and support of minor child, said prior orders having been entered on or about October 27, 1943, and on or about December 3, 1946, and to declare and determine what, if any, obligations this defendant may have thereunder for the present and future, and (2) for appropriate order or orders relative to funds deposited by him with the clerk of this court incident to appeal to the Court of Appeals, No. 21234 therein, wherein said Court of Appeals on or about October 25, 1948, affirmed the order of this court.”

Acting on this motion the Common Pleas Court on March 31, 1949, found in part as follows:

“The funds deposited with the clerk of this court in lieu of appeal bond under a prior order is equal to the balance of payments due plaintiff as alimony to November 1, 1948, and said appeal having been fully determined in favor of the plaintiff she is entitled to said funds.”

Included in the same order is the following:

“Defendant agreed to pay to the plaintiff for alimony and division of property, a lump sum out of which plaintiff agreed to support the minor children of the parties. Payments on the lump sum must be made monthly by the defendant to the plaintiff in aggregate amounts equal to 28.095 per cent of his annual income as shown by certified copy of his income tax return as filed, submitted to plaintiff’s attorney, but in no event greater than $150 per month, nor less than the amount specified by the last order of the court or subsequent agreement of the parties, unless defendant -shows reduced income through no fault of his own to a point where 28.095 per cent thereof would be less than the amount of such order or agreed monthly payment. Such adjustment as may be further necessary in compliance with the above formula shall be made concurrently with the submission to plaintiff’s attorney of the income tax return for the next preceding year as a self7regulating rule, jurisdiction being- reserved by the agreement for determination by the court of any dispute relating to the cause of such reduced income which may reflect upon the right to further reduction of monthly payments by the defendant.

“The court further finds that the income of the defendant has been reduced through no fault of his own below $4,700 per year, and that from and after November 1, 1948, he is entitled to some reduction of the amount of his monthly payments.

“It is therefore hereby ordered, adjudged and decreed, that the remaining balance of funds deposited with the clerk of court in lieu of appeal bond under prior proceedings herein, be released and paid over to the plaintiff; that the portion of the agreement of the parties on which issue has been joined in this proceeding, be and hereby is construed in accordance with the finding’s of this court; that from and after the first day of November, 1948, monthly payments of the defendant shall be reduced to $80 per month subject to adjustment in accordance with the construction of the contract herein determined with reference thereto ; that the defendant shall pay the costs of this proceeding for which judgment shall be entered and execution may issue.”

A motion for new trial having been overruled on April 4,1949, the defendant appealed to this court, the following being the assignments of error:

1. The judgment of the trial court is contrary to law.

2. The trial court was without jurisdiction to enter said judgment.

3. The judgment of the trial court is contrary to the undisputed evidence.

4. The trial court erred in holding that the approved agreement provided for a lump sum award for alimony and support of minor child.

5. The trial court erred in overruling defendant’s motion for new trial.

6. The trial court erred in failing to find specifically as to defendant’s income as requested.

To insure a clear understanding of the issues presented on this appeal, we deem it advisable to detail in chronological sequence some of the entries heretofore made in this case.

The parties will be designated herein as plaintiff and defendant respectively, as they appeared in the trial court.

On the 27th day of October, 1943, Mary L. Martin, the plaintiff, was granted a decree of divorce from Ray 0. Martin, on the ground of gross neglect of duty. At that time provisions were made for alimony and the support of Lois Ann, then aged 16 years, and Mary Lou, then aged 11 years, the issue of such marriage, the custody of whom was granted exclusively to plaintiff, with right of visitation by the defendant.

While service was made by publication upon defendant, then and now residing in the vicinity of Washington, D. C., the court found that the parties had entered into an agreement for permanent alimony for the plaintiff, out of which she was to provide for the necessary support, care, education and maintenance of the minor children.

The court incorporated the agreement of the parties into the decree, the part which is germane to the present discussion being in language as follows:

“The husband shall and will pay to the wife a sum equal to one hundred and fifty dollars ($150) per month for a period from date hereof to the date when the said younger child would reach the age of twenty-one years, payable at the rate of one hundred fifty dollars ($150) per month so long as the husband’s income reasonably permits such payments. In the event that the husband’s income shall be so reduced that the said monthly payments shall be an unreasonable proportion of the husband’s annual income, through no fault of Ms own, then the amount of said monthly payments shall be reduced to a sum to be determined by agreement of the parties hereto, or, if no such agreement can be reached between the parties, then by decree of the court having the original jurisdiction of the subject matter hereof. The wife shall and will provide out of said sum for the necessary support, care, education and maintenance of the said two minor children of the parties during minority and consequent dependency.”

Tt was specifically provided by the agreement embodied in the decree that all rights or claims for settlement of property, right of dower, alimony, both temporary and permanent, the care and support of the minor children, and all rights or claims arising out of or in any wise incident to the marriage contract of the parties which either of them might have or claim to have against each other, or in and to the property of each other, were thereby settled, adjusted, released and forever discharged.

Thereafter, on October 29, 1946, the defendant having failed to make payments in accordance with the decree, plaintiff; filed a motion for an order against the defendant to show cause why he should not be adjudged in contempt of court for failure to comply with the court order for the support, maintenance and care of herself and her two minor children, and on November 29, 1946, the defendant filed a motion to modify the original decree. Thereafter, on . March 1, 1947, the court made an entry effective as of December 1, 1946, approving an agreement to amend the original agreement in part. The journal entry in respect thereof provides in part as follows:

“The court further finds that the parties herein .have agreed to' change the original “agreement” of the parties as reflected in the journal entry herein, in the following respects: That the defendant is entitled, by reason of his reduced income, to have his monthly payments reduced from one hundred and fifty dollars ($150) per month to one hundred and ten dollars ($110) per month, commencing as of December 1, 1946, and continuing until further order of court, or the agreement of the parties herein; that the defendant shall submit to the counsel for the plaintiff a certified copy of his income tax return as filed by him from year to year during the period of time this agreement is in effect; that in the event defendant’s income increases or decreases from his present income of four thousand seven hundred dollars ($4,700) then said allowance of one hundred ten dollars ($110) shall be increased or decreased proportionately, provided, however, that said total amount of monthly payments to be made by the defendant shall at no time exceed one hundred and fifty dollars ($150) per month and provided further, that all other terms and conditions of the original agreement and journal entry shall remain in full force and effect.’’ (Emphasis supplied.)

In June, 1947, the defendant having stopped all payments under the original and amended decrees, the plaintiff filed a complaint under the provisions of Section 13008, General Code, and the defendant was indicted by the grand jury of Cuyahoga county for neglect of and failure to support a minor child of the parties. Thereafter, on May 13, 1948, he was ar-. raigned in the criminal division of the Common Pleas Court and entered a plea of “not guilty.”

Contemporaneously with his arraignment, and while the charge of neglect was pending in the criminal division, the defendant filed a motion in the civil branch of Common Pleas Court to modify the decree entered on March 1, 1947 (which was effective as of December 1, 1946), to reduce the amount of payments because of alleged changed conditions. Thereupon the motion came on to be heard by the court on June 16, 1948, and an order was entered, which in part was as follows :

The court- further finds that, on motion of the defendant said installments were reduced by agreement incorporated into an order of the court from $150 to $110 per month on December 3, 1946; that all installments were duly made in accordance with the order of the court to and including the month of June, 1947; that defendant has paid nothing thereon since that date and one child, still a minor at the time of this hearing, has been without any support from the defendant for approximately one year last past; that there has accrued in unpaid installments to and including the installment for the month of June, 1948, an aggregate sum of $1,320 under the modification order of December 3, 1946, and by reason thereof defendant is not entitled to any further modification by way of reduction of installments during the continuance of said default. It is therefore ordered, adjudged and decreed that defendant’s motion be and hereby is dismissed.”

Whereupon a motion for new trial having been overruled, an appeal was perfected to this court which affirmed the judgment of the Common Pleas Court in all respects, on October 25,1948.

Considering first that part of the order above quoted, holding that the plaintiff is entitled to the funds on deposit with the clerk of courts, it is the judgment of this court that the judgment of the Common Pleas Court having been affirmed by this court on a prior appeal from a motion to modify and to show cause, by our entry of October 25, 1948, the balance of payments due plaintiff as alimony to plaintiff to November 1, 1948, now on deposit with the clerk of courts shall be forthwith paid to plaintiff in accordance with the prior order of the Court of Common Pleas as previously affirmed by this court, and that this matter cannot properly be the subject of appeal in this proceeding.

Our prior affirmance in October, 1948, of this part of the judgment of the trial court makes it ‘■‘•res jtidicata.” There is no point in or reason for affirming our prior affirmance. The debt is fixed and the money is on deposit for its payment under order of court. It should be paid without further delay. As to that part of the court order this appeal should be and is dismissed.

We shall next consider the claim that the court erred in finding that the defendant agreed to pay to plaintiff for alimony and division of property “a lump sum” out of which plaintiff agreed to support the minor children of the parties. It is clear that the original agreement provided for the payment by the husband of a sum, equal to $150 per month for a period from the date of the agreement (March. 9, 1943) to the date when the younger child would reach the age of twenty-one years. There seems to be no ambiguity contained in this provision. In express terms, it fixes the amount for which the husband shall ultimately be liable. In other words, the parties, by their own agreement measured or fixed the extent of the defendant’s liability. The husband was thereby released from ail claims of any kind or nature arising or growing out of the marriage contract. True, the amount of the monthly payments was subject to variance, contingent upon conditions, but the total obligation is certain. In such cases, where the court has formally approved the agreement of the parties as part of its decree, the court is without jurisdiction to alter or change the terms at the instance of one party over the objection of the other. Therefore, we find no error prejudicial to the rights of the defendant in respect of this finding and decree of the trial court.

We now come to a consideration of the finding that payments “must be made * * * by defendant in aggregate amounts equal to 28.095 per cent of his annual income.” While there appears to be no specific assignment of error relating to this provision, we find no support for the fixing of an arbitrary ratio or mathematical formula in either the original agreement or the amendment thereto. While the entry of March 1,1947, effective as of December 1,1946, uses the term, ‘ ‘ proportionately, ’ ’ placing a limitation of a maximum monthly payment at $150, it does not fix an exact ratio or formula and contains the provision “that all other terms and conditions of the original agreement and journal entry shall remain in full force and effect.” From this we conclude that the following provision of the original agreement is still in full force and effect:

“In the event that the husband’s income shall be so reduced that the said monthly payments shall be an unreasonable proportion of the husband’s annual income, through no fault of his own, then the amount of said monthly payments shall be reduced to a sum to be determined by agreement of the parties hereto, or, if no such agreement can be reached between the parties, then, by decree of the court having the original jurisdiction of the subject matter hereof.”

Indeed the record indicates the parties placed this same construction upon their agreement. This is indicated both by their conduct and likewise by their testimony.

The next question for consideration is the finding of the court to the effect that “the income of the defendant has been reduced through no fault of his own, from $4,700 per year, and that from and after November 1, 1948, he is entitled to some reduction of the amount of his monthly payment” and the consequent reduction by the court of the payments to $80 per month.

From an examination of the record, and the various decrees and modifications thereof, we are of the opinion that in any application for modification the burden is upon the defendant to show that he is unable to make monthly payments in the original sum of $150 per month, or the reduced sum of $110 per month, through no fault of his own. If this is shown by the defendant, and if the parties are unable to agree upon the reduced amount of the monthly payments, then the court having original jurisdiction of the subject matter shall determine the amount.

Our examination of the record in this case confirms us in the view indicated by the trial court to the effect that the defendant, having remarried, has acquired “a new interest and is trying as much as he can, as far as the law will let him, to forget his'past obligations.” The record is quite clear that while the defendant was claiming ill health, he was unwilling to have a doctor examine him and testify in the case and was also unwilling to permit the court to select a doctor to examine him and report to the court, and, at one point in the record, under questioning by the court, the defendant admitted that his health was good.

The record is clear that no progress was made after the defendant ceased making payments until an indictment was returned by the grand jury for failure to support a minor child, at which time it appears that in order to escape the consequences of criminal prosecution he deposited with the court a sum sufficient to provide for support for a limited time pending hearing on his motion to modify, and thereafter, when the criminal proceedings were dismissed, sought by another application to be relieved of the burdens of the prior orders entered by agreement.

Neither is the record of his conduct convincing in respect of his efforts to obtain employment. There is an apparent effort, as disclosed by the record, to avoid and if possible be exonerated from his obligations. On this phase of the matter we find no error on the part of the trial court in fixing a reduced sum in the amount of $80 per month until further order of the court.

We cannot say we are entirely in accord with the finding of the trial court that his income has been reduced from the sum of $4,700 per year through no fault of his' own, based upon our examination of this record, but we are of the opinion that this finding is not prejudicial to the rights of the defendant and we conclude that a reduction in payments from the original sum agreed upon of $150 per month to a sum agreed upon of $110 a month, and then to a sum of $80 per month, as fixed by the court when the parties were unable to agree, is not unreasonable or prejudicial in the light of the evidence shown by the record.

In this hearing the trial court was required to weigh the evidence for and against the defendant’s claims, and it was entirely within the discretion of the court to believe or not to believe all or any part of the testimony of the parties and their witnesses in reaching a conclusion and judgment upon the issues. The court likewise was free to consider all the facts and circumstances, together with the conduct of the parties as indicated by the history of the case. In so doing it was not within the province of the trial court to make a new agreement for the parties. It is our conclusion that, with the one exception herein noted, there was ample evidence to support the findings and judgment of the trial court.

The defendant assigns as a ground of error that upon his oral request the trial court failed to make a specific finding as to the amount of his income. There is no warrant or authority in law to require the court to make such a finding of fact which is- peculiarly within the knowledge of the defendant himself.' Further, the evasiveness and equivocation of the defendant as .shown by the record would justify the trial court in disregarding his entire testimony on this subject. Furthermore, we find no authority, statutory or otherwise, for an application for an order “clarifying, construing and enforcing prior orders,” particularly where the application is made some five years after the term in which the decree is rendered.

Therefore, we find no error in the failure of the trial court to make a specific finding in respect of defendant’s income in the particular hearing now under review.

In conclusion, therefore, we dismiss the appeal so far as it relates to the order requiring the clerk of courts to deliver to plaintiff the sum now on deposit under the earlier order of the court, later affirmed by this court, on the ground that this issue was decided favorably to plaintiff by our entry of affirmance of October 25, 1948.

The judgment is modified so far it fixes an arbitrary formula of monthly payments at 28.095 per cent of defendant ’s income, as we hold that the parties are relegated to their original agreement in respect of monthly payments. In all other respects the judgment is affirmed.

Judgment accordingly.

Skeel, P. J., and McNamee, J., concur.


source: Caselaw Access Project

author: Conn, J.

license: Public Domain

text:
    The State, ex rel. Wonderland, Appellant, v. Shuba, Appellee.
    (No. 4565
    Decided December 3, 1951.)

      Messrs. Zachman, Boxell, Bebout <& Torbet, for appellant.

      Mr. Harry B. Kirtland, for appellee.
   Conn, J.

This is an appeal on questions of law by the complainant in a bastardy proceeding from a judgment of the Domestic Relations Division, Juvenile Branch, of the Court of Common Pleas.

■ The complaint, filed June 3, 1950, charged the accused with being the father of complainant’s child, to which charge the accused plead not guilty.

At the opening of the trial, the accused presented to the court his written waiver of trial by jury. Over the objection of complainant the case was tried by the court without a jury and the accused was found not guilty.

Complainant appealed from the judgment of the trial court, and assigns as error the determination of the issue of accused’s guilt under her complaint by the court without a jury and over the objection of the complainant.

The complaint in this case was filed, and subsequent proceeding's had, pursuant to those provisions of Division VIII of Title IV, Part Third of the Code, denominated Quasi-Criminal Actions and found in Chapter 2, Bastardy, being Sections 12110 to 12135, inclusive, General Code (now Sections 8006-1 to 8006-24, General Code).

While the codifying commission classified the statutes relative to prosecutions in bastardy as “quasi-criminal,” and in some respects they partake of such character, the courts of this state have uniformly applied to such prosecutions appropriate sections of tim Code of Civil Procedure. The reason for this, as expressed in the opinions of the reported cases, is that the underlying purpose of the statutes is not to punish the putative father, but to. require him to meet his moral duty and obligation to contribute to the support of his illegitimate child and relieve the public of that burden.

Prior to the amendment of the Bastardy Act in 1923 (110 Ohio Laws, 296), a settlement and compromise under the provisions of Section 12114, General Code, was a bar to a prosecution subsequently commenced under Section 13008, General Code, a part of the Criminal Code. McKelvy v. State, 87 Ohio St., 1, 99 N. E., 1076. Under the terms of the proviso added to that section by the amendment, this bar was removed.

Section 12123, General Code (117 Ohio Laws, 808), contained specific provisions for the order or judgment of the court when the accused was adjudged to be the father of the illegitimate child. It. expressly-provided that “the court shall thereupon adjudge that he pay to the complainant such sum as the court may find to be necessary for her support, maintenance and necessary expenses, caused by pregnancy and childbirth together with costs of prosecution, and a reasonable weekly sum to be paid complainant for support and maintenance of said child up to eighteen years of age. ’ ’

The several amendments to the statutes during recent years relating to bastardy proceedings (110 Ohio Laws, 296; 117 Ohio Laws, 806; and 119 Ohio Laws, 731) express an intention on the part of the Legislature to protect and extend the civil rights of the mother and her bastard child. This is accomplished, not by way of punishment of the putative father, but in compelling him to meet his moral and legal duty to the mother by making provision “for her support, maintenance and necessary expenses” and a further sum to be paid-her “for support and maintenance of said child. ’ ’

Among the authorities holding that the intrinsic character of a bastardy proceeding is civil rather than criminal, we cite the following: State, ex rel. Merrill, v. Moore, 83 Ohio App., 525, 82 N. E. (2d), 323; State, ex rel. Pennington, v. Barger, 74 Ohio App., 58, 57 N. E. (2d), 815; State, ex rel. Gill, v. Volz, 156 Ohio St., 60, 100 N. E. (2d), 203; Duncan v. State, ex rel. Williams, 119 Ohio St., 453, 164 N. E., 527; 5 Ohio Jurisprudence, 543, Section 5.

In the recent case of State, ex rel. Gill, v. Volz, supra, it, was contended by the accused that “a bastardy proceeding may not qualify as a civil action in which a verdict may be rendered upon concurrence of only three-fourths or more of the members of the jury.” The court did not adopt the contention, but on the contrary held that a bastardy proceeding “is essentially a civil action,” and that, pursuant to Section 11420-9, General Code, the jury may return a verdict when .three-fourths or more of its members concur.

A jury may be waived in an action arising on a contract, under the provisions of Section 11421-1, General Code (a part of the act known as “The Jury Code”), when both parties consent, and in other actions with the assent of the court. There is no authority under that section for a trial by the court on the waiver of one party and over the objection of the other.

It appears from the brief of appellant that the trial court in accepting the accused’s waiver of a trial by jury may have applied Section 1639-44, General Code. This section provides:

“Any adult arrested under the provisions of this chapter, at any time before hearing, may demand a trial by jury, or the judge upon his own motion may call a jury. The statutes relating to the drawing and impaneling of jurors in criminal cases in the Court of Common Pleas, other than in capital cases, shall apply to such jury trial. The compensation of jurors and costs of the clerk and sheriff shall be taxed and paid as in criminal eases in the Court of Common Pleas.”

■ However, the accused was arrested, and the subsequent .proceedings had, pursuant to the provisions of the Bastardy Act. The rights of defendants prescribed in the above section are expressly limited to the “provisions of this chapter” and may not be extended to proceedings in bastardy.

Under the authorities, it appears to be settled in this state that the trial of actions in bastardy pro governed by the Code of Civil Procedure, so far as applicable, and that complainant had the right under the Constitution of this state to have the issue raised on her complaint tried by a jury. It follows that the denial of this right was error and prejudicial to complainant.

Judgment reversed.

Fess and Savord, JJ., concur.


author: Per Curiam.

text:
    Kelley Motors, Inc., Appellant, v. Adams, Appellee.
    (No. 484
    Decided November 3, 1951.)

      Mr. Kenneth L. Rush, for appellant.

      Mr. William T. Ricks, for appellee.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Clark County.

The plaintiff instituted an action in replevin to secure the possession of an automobile which had been sold to the defendant. The defendant filed an answer and cross-petition for damages in the amount of $350 and also prayed that plaintiff be ordered to deliver to him (defendant) a certificate of title for the automobile. The cause was tried to the court without the intervention of a jury. The court rendered judgment for the defendant in the amount of $1,895, together with interest, upon a showing that the automobile in question had been disposed of by plaintiff after it had been repossessed.

Plaintiff, appellant herein, has filed nine separate assignments of error, all hinging upon one question of law which was raised by the pleadings and the evidence. The determinative issue was raised on the defendant’s answer and cross-petition, wherein it is alleged that on November 19, 1949, defendant purchased a new 1950 Ford automobile from the plaintiff at the list price of $1,895; that defendant, on that date, gave to the plaintiff a cheek in the sum of $410 and delivered to the plaintiff his old 1949 Ford automobile ; that the check for $410 and his old automobile were taken as payment for the new 1950 automobile; that on such date the plaintiff, through its agents, transferred the license plate from the 1949 automobile to the 1950 automobile; that the plaintiff delivered to the defendant the 1950 automobile and in turn took possession of the defendant’s old 1949 automobile; that no certificate of title was issued to the defendant for the 1950 automobile; and that the defendant did not issue to the plaintiff a certificate of title to the old 1949 automobile. The above allegations are supported by the evidence.

The evidence shows further that the 1949 automobile which was traded in had formerly been in the plaintiff’s place of business under repair as a wrecked car a week prior to the consummation of the deal in question; that the defendant at that time purchased the 1949 automobile from a third person; that the trade-in value of the 1949 automobile, according to the customary practice of the plaintiff company, had to be approved by one of the officers of the company; - that at the time of the delivery of the new 1950 automobile to the defendant the trade in value of the old 1949 automobile had not yet been approved by an officer of the company; that within a few minutes after the defendant drove away from the plaintiff’s place of business in the new 1950 automobile, the officers of the plaintiff company discovered that the old 1949 automobile was the same wrecked automobile which-had been in their place of business under repair a week prior thereto; that upon discovering this fact, the plaintiff sent its agent immediately to the defendant’s residence and demanded a return of the 1950 automobile, and on the same day returned to the defendant his old 1949 automobile, together with the check in the amount of $410; that upon demand, the defendant refused to deliver possession of the 1950 automobile to the plaintiff, whereupon it instituted this action in replevin; and that after the plaintiff secured possession of the 1950 automobile, it conveyed such automobile to a third person.

The facts above stated require the application of the provisions of a section of the Ohio Certificate of Title Act (Section 6290-4, General Code), which is as follows:

“No person acquiring a motor vehicle from the owner thereof, whether such owner be a manufacturer, importer, dealer or otherwise, hereafter shall acquire any right, title, claim, or interest in or to said motor vehicle until he shall have had iss%ied to him a certificate of title to said motor vehicle, or delivered to him a manufacturer’s or importer’s certificate for the same; nor shall any waiver or estoppel operate in favor of such person against a person having possession of such certificate of title or manufacturer’s or importer’s certificate for said motor vehicle for a valuable consideration. No court in any case at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle, hereafter sold or disposed of, or mortgaged or encumbered, unless evidenced by a certificate of title or manufacturer’s or importer’s certificate duly issued, in accordance with the provisions of this chapter.” (Emphasis ours.)

Numerous cases have been decided by the reviewing courts of this state applying the provisions of this section. The court does not deem it necessary to discuss all these cases. The latest pronouncement of the Supreme Court is found in Kelley Kar Co. v. Finkler, 155 Ohio St., 541, 99 N. E. (2d), 665, which was an action in replevin. The third paragraph of the syllabus is as follows:

“Under the provisions of Section 6290-4, General Code, an Ohio court cannot recognize the right, title, claim or interest of any person in or to any motor vehicle sold or disposed of or mortgaged or encumbered in Ohio after the effective date of that section of the Code unless such right, title, claim or interest is evidenced by a certificate of title or manufacturer’s or importer’s certificate duly issued in accordance with the provisions of the Certificate of Title Act.”

The court, in the Finlder case, on page 547, states:

“In Mielke v. Leeberson, 150 Ohio St., 528, 83 N. E. (2d), 209, 7 A. L. R. (2d), 1342, this court held that the language of Section '6290-4, General Code, means exactly what it says. ’ ’

The court then quotes the syllabus of the Mielke case and on page 548 states:

“Since ‘the right, title, claim or interest of’ plaintiff ‘in or to’ the motor vehicle here asserted is not evidenced by ‘a certificate of title or manufacturer’s or importer’s certificate,’ that claim of right cannot be recognized and the plaintiff cannot prevail in this action. ’ ’

The effect of the latest ruling of the Supreme Court is that the possession of a certificate of title is the sine qua non to the assertion of any right, title, claim, or interest in or to any motor vehicle. This court is in accord with the reasoning of Judge Carpenter of the Court of Appeals of the Sixth Appellate District, as stated in Crawford Finance Co. v. Derby, 63 Ohio App., 50, 25 N. E. (2d), 306, and Associates Investment Co. v. LeBoutillier, 69 Ohio App., 62, 42 N. E. (2d), 1011.

In the Derby case, on page 54, Judge Carpenter stated:

“On the other hand, from the whole scheme of the Certificate of Title Act, especially the sections quoted above, it is apparent that the Legislature intended to set up one and only one method by which liens on or titles to a motor vehicle could be acquired. To a purchaser, it makes a certificate of title issued by a clerk of courts on a proper application, accompanied by the preceding certificate, either manufacturer’s or owner’s, the sine qua non to any right or title therein. ’ ’

In the case at bar, plaintiff at all times held the certificate of title to the new 1950 automobile. Under the provisions of Section 6290-4, General Code, the defendant, since he did not possess the certificate of title to the automobile, did not acquire any right, title, claim, or interest in or to such automobile, and the court, under the provisions of that section, could not recognize any right, title, claim, or interest of the defendant thereto, on the ground that the defendant’s interest was not evidenced by a certificate of title. By application of the law laid down in the Fmkler case, we are of the opinion that the plaintiff in the instant case was entitled to the possession of the 1950 Ford automobile.

The failure of the defendant to obtain possession of a certificate of title to the 1950 automobile appeared in the pleadings.' The plaintiff demurred to the first amended answer and cross-petition and also to the defendant’s second amended answer and cross-petition, which demurrers were overruled. The plaintiff assigns as error the action of the trial court in overruling the demurrers. Since the plaintiff pleaded over and went to trial, it cannot now predicate error on the action of the trial court in overruling such demurrers. However, the defendant’s evidence did not rise higher than his pleading and the trial court committed prejudicial error in rendering judgment for the defendant. The judgment was not sustained by sufficient evidence and was contrary to law. The court coming now to render the judgment which the trial court should have rendered, enters judgment for the plaintiff.

Judgment reversed.

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


author: Hornbeck, J.

text:
    In re Campfield: Campfield, Appellant, v. The State of Ohio et al., Appellees.
    (No. 4496
    Decided October 5, 1950.)

      Mr. Wayne 8. Gerber, for appellant.

      Mr. Herbert 8. Duffy, attorney general, and Mr. Alan E. Schwarsivalder, for appellee warden.
   Hornbeck, J.

This is an appeal from a judgment of the Common Pleas Court denying petitioner’s prayer for release by a writ of habeas corpus.

Seven errors are assigned but they may all be included in one, namely, that the court erred in failing to hold that the sentence and judgment were void because predicated upon an indictment which charges no offense against the defendant.

The indictment, so far as pertinent, charges that the petitioner “unlawfully and knowingly, falsely pretend, with intent to defraud, to one C. E. Lunsford, that he, the said L. E. Campfield had installed certain wiring and fixtures in the residence of the said C. E. Lunsford and. that said house was ready for electricity to be turned on therein, by which- such false pretenses, the said L. E. Campfield then and there did obtain from the said C. E. Lunsford money of the Value of $122 of the personal property of the said C. É. Lunsford, with intent then and there to cheat and defraud the said C. E. Lunsford out of the same. Whereas, in truth and in fact said house had not been properly or completely wired for electricity and the said L. E. Campfield at the time so falsely pretended as aforesaid, well knew the false pretenses were false in fact and induced the said C. E. Lunsford to part with his money.”

Unless the language of the indictment, that “in truth and in fact said house' had not been properly and completely wired for electricity,” negates the false pretense set up in the earlier part of the indictment, namely, “that said house was ready for electricity to be turned on therein,” the indictment states no offense. Harris v. State, 125 Ohio St., 257, 181 N. E., 104, paragraph 2 of the syllabus.

We are satisfied that the later language of the indictment cannot, by any reasonable interpretation of its meaning, negative the false pretense set up therein. If the petitioner had admitted all the subject matter of the indictment with which he was charged it would not constitute the offense of obtaining money under false pretense or any other crime in Ohio. The petitioner may have represented that he had installed certain wiring and fixtures in the residence of the prosecuting witness and he may have done that which he represented although he may not have properly or completely wired the residence for electricity. Clearly the averment that the house had not been properly or completely wired did not negative the representation that he had installed certain wiring and fixtures. The indictment is as faulty in its effect as if no negation whatever had been attempted. Indeed it is more flagrantly defective than the indictment in Harris v. State, supra.

It is urged that, although the indictment is uncertain, ambiguous, and defective in substantial matters, the irregularity could be corrected by a bill of particulars and that the petitioner having failed to demand such bill could not be heard to deny the validity of the indictment.

In State v. Collett, 44 Ohio Law Abs., 225, 58 N. E. (2d), 417, a member of' this court, at pages 232 and 233, quoted from 27 American Jurisprudence, 672, as follows:

“ ‘The office of a bill of particulars is to supply the accused and the court additional information concerning an accusation that the defendant has committed an act or acts constituting a criminal offense.

“ ‘It is designed to be used only where the indictment is sufficient on demurrer * * V ”

We cited a number of eases which disclose that a bill of particulars does not serve the office of providing an essential element of the crime charged. The indictment itself must charge an offense. We concluded in the second paragraph of the syllabus of State v. Collett, supra, that “the bill of particulars * * # contemplates something over and above the mere essentials of the averments necessary to state an offense and something further and more specific than is set forth in the forms of indictments prescribed by the statute. ’ ’

The infirmity in the indictment here is not that it is uncertain, vague, and irregular, but that it states no offense.

We are cognizant of the nice distinction which is sometimes made between an act which does not constitute any offense known to the law and the determination by a court' of general jurisdiction whether particular acts constitute a specific offense. This distinction is too nice to be given application here.

State v. Whitmore and State v. McNary, 126 Ohio St., 381, 185 N. E., 547, are cited and particularly the language of Judge Stephenson in the opinion where he said, in substance, that an indictment which was insufficient to constitute an offense could be cured by demanding a bill of particulars wherein was set forth the facts which would constitute an offense. This language of the opinion is clearly obiter because the judgments were predicated upon the determination that the indictments under consideration did charge offenses, and, therefore, that bills of particulars were not required to accomplish that purpose.

In the Harris■ case, supra, the indictment was tested by an appeal from the judgment, and Judge Jones, who wrote the opinion, said:

“If one of the vital and material elements identifying and characterizing the crime has been omitted from the indictment such defectiv.e indictment is insufficient to charge an offense, and cannot be cured by the court, as such a procedure would not only violate the constitutional rights of the accused, but would allow the court to convict him on an indictment essentially different from that found by the grand jury.”

The court not only reversed the judgment but ordered the defendant discharged.

Situations analogous to that presented here were held to support discharges by writs of habeas corpus in State, ex rel. Bailey, v. Henderson, Warden, 76 Ohio App., 547, 63 N. E. (2d), 830, and In re Moreno, 83 Ohio App., 54, 82 N. E. (2d), 325.

The errors assigned are well made. The judgment is reversed and the petitioner discharged.

Judgment reversed.

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


text:
    Le Feber, Appellant, v. City of Norwood, Appellee.
    (No. 7352
    Decided January 22, 1951.)

      Mr. Stewart S. Cooper, for appellant.

      Mr. Jos. W. Shea, Jr., city solicitor, for appellee.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Hamilton County in favor of the defendant. Trial was to the court without a jury.

The pertinent facts essential to a determination of the issues presented are not in dispute.

A part of the evidence presented consists of an agreed statement of facts duly filed in the trial court.

It appears that the plaintiff had performed certain services for the defendant. There is no complaint as to the character or extent of such services. Payment for such services is specifically provided for in the contract between the parties.

This contract provides in part:

“3. The owner agrees to pay the engineer as compensation for such professional engineering service a percentage of the entire cost of construction in accordance with the following schedule of basic minimum fees:

( ( -K*

“a. Sixty (60%) per cent of the total fee when working or contract plans and specifications with detailed estimates of cost are completed, and bids received and accepted.

( ( * * *

“In the event the owner does not proceed with'the construction of the improvements for which plans have been authorized and prepared as designated 1 (a) above, the owner agrees to pay the engineer the lump sum of $15,000. In the event of the abandonment of the project, this shall become the only sum due and payable.”

The evidence is conclusive that the defendant, for reasons best known to it, has not proceeded with the construction and improvement. A financing program was inaugurated, including the issuance of bonds. The proceeds thereof are in the treasury of the defendant. It advertised and received bids, but did not accept any. The project appears to be at a standstill. Bids were received in the fall of 1947. Nothing further has been done. The petition was filed June 24, 1949.

Referring to the portion of the contract quoted, it will be noted that it is therein stated that “in the event the owner does not proceed with the construction of the- improvements * * * the owner agrees to pay the engineer the lump sum of $15,000.”

Two things are clearly undisputed in the evidence. The owner has not proceeded with the construction. There is no evidence that the owner has abandoned the improvement. It will be observed that it is only where such is the case that the sum of $15,000 shall be “the only sum due and payable.” Of course, the owner not having accepted bids, the plaintiff cannot claim payment under the schedule. (Paragraph 3, [a] supra.)

It is obvious also that the payment of $15,000 shall be considered as a credit upon a schedule payment when the owner accepted a bid upon the improvement.

The essential facts and the inferences therefrom being clearly undisputed, it appears to this court that the plaintiff at this time is entitled to the sum of $15,000 as a credit upon a later schedule payment, unless the owner shall hereafter abandon the project.

The judgment of the Court of Common Pleas is, therefore, reversed, and final judgment may be here entered accordingly.

Judgment reversed.

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


text:
    The State, ex rel. Carr, v. Savord, Judge.
    (No. 21724
    Decided January 30, 1950.)

      Messrs. VanAJcen, Whiting & Nash, for relator.

      Messrs. Halle, Haber, BericJc & McNulty, for respondent.
   Per Curiam.

This cause comes to this court at this time on a motion to quash service upon a petition for a peremptory writ of mandamus, the respondent entering his appearance only for this purpose.

The petition alleges in substance that the respondent at all times referred to in the petition was a duly elected, qualified and acting judge of the Common Pleas Court of Erie County, Ohio, and that he was at all times referred to and still'is, for the purposes of this action, a duly assigned, qualified and acting judge of the Common Pleas Court of Cuyahoga County by reason of his assignment to that court by Chief Justice Carl V. Weygandt of the Supreme Court of Ohio, in pursuance of the authority vested in him as Chief Justice.

It is claimed by the relator that a bill of exceptions was presented to the trial judge in the case of Mignon S. Carr v. The Yellow Cab Company, being case No. 576753 on the docket of the Common Pleas Court of Cuyahoga County, in which the relator was named plaintiff; that when the case came on for hearing before the respondent as judge of such court, with a jury, a journal entry for final judgment in favor of the defendant in the action was approved by such judge and filed with the clerk of the court for journalization; and that within the proper time allowed by law the relator filed a narrative bill of exceptions which was thereafter transmitted to the respondent trial judge for allowance and signature, but that the judge refused to allow and sign said bill of exceptions for reasons set forth which are not germane to the issue immediately before us.

The record shows that the trial judge was served with summons in Brie county on the petition for mandamus here under consideration and that the motion to quash service is made on the ground that the action should have been commenced in Erie county where the trial judge resides and exercises jurisdiction.

The members of this court, upon consideration of the question presented, are of the opinion that an action against a trial judge to compel the settling of a bill of exceptions in a case tried by him is‘properly brought in the county in which the case was tried, even though the trial judge is a resident of another county and was sitting in the county where the cause of action arose by assignment of the Chief Justice of the Supreme Court of Ohio.

Motion overruled.

Hurd, McNambe and Doyle, JJ., concur.

Doyle, J., of the Ninth Appellate District, sitting by designation in the Eighth Appellate District.


author:
Wiseman, J. Wiseman, J. Per Curiam.

      Per Curiam.

text:
    Senn, Admx., Appellee, v. Lackner, d. b. a. Lackner Chevrolet Co., Appellant.

      (No. 2125
    Decided January 17, 1951.)

      Messrs. Estabrook, Finn & McKee, for appellee.

      Messrs. Iddings, Jeffrey, Weisman & Rogers, for appellant.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery County entered on a verdict rendered in favor of the plaintiff. The action is for wrongful death arising out of an automobile accident which occurred on U. S. highway No. 25 near the boundary line between Warren and Butler counties.

The defendant-appellant was engaged in the sale of new and used automobiles in the city of Miamisburg, Ohio. The driver of defendant’s automobile had been employed as a salesman by the defendant on March 15, 1949. The accident occurred oh April 23, 1949, at about 8:30 o’clock in the morning. The salesman resided in Cincinnati and was using an automobile owned by the defendant to travel from his residence to the defendant’s place of business at the time the accident occurred. The salesman’s hours of employment were from 9 a. m. until 5:30 p. m.

The salesman was driving in a northerly direction and the plaintiff’s decedent was driving in a southerly direction at the time of the collision. There is evidence supporting the claim that when the two automobiles were sixty yards apart two dogs started to cross the highway from the east side, that the salesman’s automobile struck the first dog, and that at that time he swerved his automobile from the northbound traffic lane across the center line of the highway and collided with the automobile being driven by plaintiff’s decedent in the southbound traffic lane.

In her amended petition plaintiff alleges five specifications of negligence as follows:

(1) In causing and permitting defendant’s automobile to run into and collide with the automobile of plaintiff’s decedent.

(2) In failing to keep defendant’s automobile under control.

(3) In operating defendant’s automobile at a high rate of speed, to wit, 55 miles per hour, a speed greater than was reasonable and proper under the circumstances there and then existing.

(4) In failing to change or divert the course of defendant’s automobile after defendant’s agent saw, or in the exercise of ordinary care ought to have seen, the dangerous and perilous position of the automobile of plaintiff’s decedent.

(5) In failing to keep defendant’s automobile on the right side of the road.

The defendant filed an amended answer denying the allegations of negligence and specifically denying that the driver of the automobile owned by the defendant was his duly authorized agent as alleged, or that he was acting in the service of or on the business of the defendant, and as a further defense pleaded contributory negligence on the part of the decedent. To the amended answer the plaintiff filed a reply denying each and every allegation set forth in the amended answer inconsistent with the averments of plaintiff’s petition.

The defendant in his brief states that there are two principal issues presented, first, the agency of the driver of defendant’s automobile, and, second, whether the negligence of defendant’s driver, if any, was the proximate cause of the collision.

Fourteen errors are assigned. The first, second and third relate to the admission and exclusion of evidence. One of the plaintiff’s witnesses, an occupant of the automobile driven by plaintiff’s decedent, testified that “as he was getting closer and closer, and we were getting closer to the dogs the first dog was near the center of the roadway, and about this time the oncoming car, in an attempt to avoid hitting the second dog, swerved into our lane, hitting the first dog. ’ ’ Defendant’s counsel interposed an objection and moved' to strike. The record is none too clear whether the entire answer was sought to he stricken, or only the words, “in an attempt to avoid hitting the second dog.” In their brief counsel for defendant contend that the entire answer should be stricken. The objection and .motion were overruled. The words last quoted should have been stricken, but we find no prejudicial error resulting. The remainder of the answer was competent, - relevant, and material.

The plaintiff’s decedent had been a classified civil service employee at Wright Field, Dayton, Ohio, and was rated as “Radio Engineer, P-4” at an annual salary of $5,232. There was testimony introduced to show that from 1942 to the date of his death, plaintiff’s decedent had received ten promotions which stepped up his annual salary from $1,800 to $5,232. His service record, which was “excellent,” was placed in evidence. Several witnesses were permitted to testify for the plaintiff relative to the opportunity for promotion of decedent. One witness had been the immediate superior of the decedent. Another was in charge of the administrative work of the laboratory and responsible for carrying out the proper pay schedule at Wright Field. A third witness was employed at Wright Field as chief of aircraft radiation laboratory and was familiar with the evaluation process that governs the efficiency ratings entered on service records and the time factors controlling promotions. All three witnesses had been acquainted with the plaintiff’s decedent and familiar with the work performed by him. All three testified, in answer to a hypothetical quéstion, that a person with decedent’s qualifications and service record had a good opportunity for promotion. Was this testimony admissible?

The plaintiff contends that in determining the pecuniary injury suffered by the next of kin of the decedent the jury had the right to consider not only the earnings of decedent at the time of his death, but, also, the reasonable expectancy of his earnings in the future. That this is the established measure of damages is conceded. Crotenkemper v. Harris, Admr., 25 Ohio St., 510; Schendel v. Bradford, 106 Ohio St., 387, 391, 140 N. E., 155; New York, Chicago & St. Louis Ry. Co. v. Roe, Admr., 4 C. C. (N. S.), 284, 15 C. D., 728; Acker v. Columbus & Southern Ohio Electric Co., 42 Ohio Law Abs., 430, 60 N. E. (2d), 932; Bartlebaugh v. Pennsylvania Rd. Co., 51 Ohio Law Abs., 161, 78 N. E. (2d), 410, affirmed in 150 Ohio St., 387, 82 N. E. (2d), 853. But is testimony on the part of a witness relative to the prospects of decedent for promotion competent?

In Hesse, Admx., v. Columbus, Sandusky & Hocking Rd. Co., 58 Ohio St., 167, 50 N. E., 354, the court, on page 171, held:

* * Against the objection of the defendant the trial court permitted witnesses to testify that the plaintiff’s intestate was in the line of promotion when he received the fatal injuries. The jury were otherwise fully informed as to the intestate’s habits, health, position and capacity to earn. These and other like circumstances constituted the existing facts from which the jury were to determine the amount of damages which they should assess. The evidence to which the objection was made was introduced to show a supposed probability that his capacity to earn would have become greater in the future. It started an inquiry which could have no other effect than to consume time unduly and to introduce speculative considerations into the assessment of damages. Brown, Admr., v. The Chicago, R. I. & Pac. Ry. Co., 64 Iowa, 652.”

We are unable to determine from the opinion in that case the source of information of the witnesses, or whether the witnesses were properly qualified to testify on the subject. Hence, that case cannot be considered a precedent on the question raised here.

In the instant case the testimony was in the nature of opinion testimony given by witnesses qualified as experts. The witnesses were given a hypothetical set of facts and asked to state what chances a person, under such hypothetical facts, possessed for promotion. The general rule is that an opinion or conclusion of a witness is incompetent and inadmissible. The reason for such exclusion is that it invades the province of the jury as the trier of the facts. However, exceptions to the general rule have been found to be necessary to the proper administration of justice. A well recognized exception is where scientific and specialized knowledge or experience is required in a particular art, science, trade or business and for which the general ■ common sense and practical experience of 'the jury are inadequate. 17 Ohio Jurisprudence, 421, Section 331. Any evidence which would assist the jury in fixing the reasonable expectancy of future earnings was competent. The work in which the plaintiff’s decedent had been employed was of a highly technical character in a field concerning which the public and the jury would have little knowledge. The system under which promotions were granted was likewise complicated and technical. Therefore, it was the obligation as well as the right of the plaintiff to offer any testimony having probative value as to the probable future earnings of plaintiff’s decedent. In our opinion this evidence was competent.

In this type of action it is proper to introduce by a qualified witness evidence as to the cost of a simple annunity based on the life expectancy of the decedent and yielding two-thirds of his annual salary at the time of his death, which proportion is conceded to be the amount contributed by decedent toward the family, support. Bartlebaugh v. Pennsylvania Rd. Co., supra.

Photographs of the highway at the place of collision, taken the day after the accident, were properly admitted, as the evidence shows that the marks on the highway, as shown on the photographs, existed immediately after the collision. There was evidence to support the conclusion that the photographs clearly represented the condition of the highway immediately after the collision, and, therefore, they were admissible. 17 Ohio Jurisprudence, 579, Section 472; 39 Ohio Jurisprudence, 626, 627, Section 49.

Prior to the trial, the deposition, of the defendant’s salesman was taken. On cross-examination at the trial plaintiff’s counsel questioned the salesman relative to statements made in the deposition, which statements were at variance with his testimony in court respecting the speed of plaintiff’s decedent’s automobile immediately before the collision. Counsel for the defendant, on redirect examination, sought to establish that in the deposition the witness had made other statements consistent with his testimony in open court respecting the speed of decedent’s automobile. Objection was sustained to defendant’s counsel reading such questions and answers from the deposition. Inconsistent statements may be shown on cross-examination to impeach a witness (Coca Cola Bottling Works Co. v. Meyer, 28 Ohio App., 468, 162 N. E., 826; Sabo v. State, 29 Ohio App., 200, 163 N. E., 496, affirmed in 119 Ohio St., 231, 163 N. E., 28; Saunders v. Wiggins, 48 Ohio App., 174, 192 N. E., 745), but an impeached witness cannot be rehabilitated by showing prior consistent statements (Cincinnati Traction Co. v. Stephens, 75 Ohio St., 171, 79 N. E., 235; Miller v. Piqua Transfer & Storage Co., 57 Ohio Law Abs., 325, 92 N. E. [2d], 452; 42 Ohio Jurisprudence, 437, Section 429; 58 American Jurisprudence, 457, Section 817; 140 A. L. R., 49 [citing Cincinnati Traction Co. v. Stephens, supra]; 41 L. R. A. [N. S.], 878; 3 Jones on Evidence [4 Ed.], 1612, Section 869).■

We find no misconduct on the part of the trial judge as claimed under defendant’s fifth assignment of error.

For his fourth and sixth asssignments of error the defendant contends that the court erred in overruling defendant’s motion for a directed verdict made at the close of plaintiff’s testimony and at the close of all the testimony. When defendant elected to proceed to present his defense he waived his right to predicate error on the action of the court at the close of plaintiff’s case. Wilkeson v. Erskine & Son, 145 Ohio St., 218, 61 N. E. (2d), 201; In Re Estate of Robinson, 145 Ohio St., 55, 61, 60 N. E. (2d), 615; Halkias v. Wilhoff Co., 141 Ohio St., 139, 47 N. E. (2d), 199; Youngstown & Suburban Rd. Co. v. Faulk, 114 Ohio St., 572, 578, 151 N. E., 747; 39 Ohio Jurisprudence, 872, Section 216.

The action of the court in overruling the defendant’s motion for directed verdict at the close of all the evidence is properly challenged and will be considered, together with the eleventh assignment of error, i. e., that the verdict and judgment are against the manifest weight of the evidence, are not sustained by sufficient evidence, and are contrary to law, and the twelfth assignment of error, i. e., that the court erred in overruling defendant’s motion for judgment non obstante veredicto, and the thirteenth assignment of error, i. e., that the court erred in overruling defendant’s motion to vacate and set aside the judgment and grant a new trial. These assignments of error raise the question as to the sufficiency of the evidence on the two major issues, viz., whether the driver of defendant’s automobile was negligent, and, if so, whether the defendant was chargeable with the negligent acts of the driver on the ground that the driver was defendant’s agent and acting within the scope of his employment at the time of the collision. On the question as to whether the driver was negligent we have no difficulty in finding, on the basis of the whole record, that the verdict was not against the manifest weight of the evidence, that it was sustained by sufficient evidence, and that it was not contrary to law. There was ample evidence to support the verdict to the extent it established that the driver of defendant’s automobile was guilty of negligence which was the proximate cause of the collision.

We come now to consider the principal question in the case: Was the driver of defendant’s automobile acting as agent for defendant and within the scope of his employment at the time and place of collision?

The evidence when construed most favorably to plaintiff shows that the driver of defendant’s automobile was employed as a salesman by the defendant on a fixed salary to sell automobiles for the defendant at his place of business in the city of Miamisburg; that his working hours were from nine a. m. until five-thirty p. m.; that he resided in Cincinnati, Ohio; that the salesman did not own an automobile, but that it was his purpose to purchase a new automobile from defendant; that he planned later to move his residence to Miamisburg; that the defendant granted permission to the salesman to use a used automobile owned by the defendant to drive to his residence in the evening and return to his place of employment in the morning; that the salesman had a choice to use or not to use an automobile for such transportation and if an automobile were used he had a choice of which automobile to use; that the automobile used at the time of collision, was equipped with, dealer license plates of the defendant; that the salesman at times purchased gasoline for the automobile so used for which he was not reimbursed; that the salesman had other means of transportation to and from his place of employment by the use of a bus line; that no consideration passed or was agreed upon between the defendant and the salesman on account of the use of such used automobile for such purpose; that the duties of the salesman were to handle prospective purchasers at defendant’s place of business and to sell automobiles; that the salesman was authorized to sell used automobiles owned by the defendant at a fixed price to any person at any time or place, regardless of the place of residence of the purchaser; that the sales actually made by the salesman were made at defendant’s place of business; that the automobile driven by the salesman at the time of the collision was taken by the salesman with the consent of the defendant for the purpose of going to his residence in the evening and returning to his place of employment the next morning; that at the time of the collision the salesman -was driving from his residence in Cincinnati to his place of employment in Miamisburg.

It will be observed that the collision occurred at eight-thirty a. m. and that the salesman’s duties did not begin until nine a. m. at the defendant’s place of business.

Was the salesman acting under .the direction or control of defendant at the time of collision? Was the salesman acting in the discharge of his duties as salesman at the time? Was the salesman engaged at the time in the prosecution of the defendant’s business? The latest expression of our Supreme Court on this question is Rogers v. Allis-Chalmers Mfg. Co., 153 Ohio St., 513, 92 N. E. (2d), 677, in which the court, on page 526, said:

“In order to obligate a master to respond in damages for the negligence of a servant it is necessary not only that the servant be acting within the scope of his employment but the master must have the power of control and direction over the conduct of the servant. ’ ’

In the instant case the facts do not meet the test. There is no evidence whatever that the defendant had “the power of control and direction” over the salesman while the salesman was driving from his residence to his place of employment. The controlling rule is simply stated but the difficulty always lies in its application. In Lima Ry. Co. v. Little, 67 Ohio St., 91, 65 N. E., 861, it was held that the test of the master’s liability is “whether such act was done by the servant while engaged in the service of, and while acting for the master, in the prosecution of the master’s business.”

In Nagy v. Kangesser, 32 Ohio App., 527, 168 N. E., 517, it was held that the employee’s act must be a “part of actual duty connected with employment.” In that case the accident happened while the employee was driving his own automobile on his way to work.

In Conart Motor Sales, Inc., v. Shullo, 70 Ohio App., 423, 46 N. E. (2d), 415, the facts were similar to those in the instant case. In that case the driver of plaintiff’s automobile was a salesman for plaintiff and at the time of the accident was driving a car owned by the plaintiff from the plaintiff’s place of business to the salesman’s residence for the purpose of eating his dinner, intending to return to his place of employment. The court held that the salesman was not on his master’s business at the time of the collision, that the rule of respondeat superior did not apply, and that a plea of contributory negligence in a suit by the employer against a third person is not a good defense.

In Cutwein v. C. & S. Auto Supply Co., 18 Ohio Law Abs., 577, where similar facts appear, this court held that “it is not error to direct a verdict for the defendant, where the evidence shows that the employee had borrowed the company car for personal use the night before, and was returning it to the defendant when the collision occurred.” In that case the employee was driving to his place of employment in the morning when the collision occurred.

In Brown v. Bond, 190 Miss., 774, 1 So. (2d), 794, the court held, as disclosed by the third paragraph of the syllabus:

“The mere permission of master for servant to use his automobile in going to and from his meals or his home does not render servant master’s ‘agent’ or render master liable for servant’s negligence while so doing. ’ ’

In 57 Corpus Juris Secundum, 326, Section 574b, the text is as follows:

“The facts that in perpetrating the injury complained of the servant, while acting for some purpose of his own, used facilities or instrumentalities supplied by the master and that the injury could not have been inflicted without such facilities or instrumentalities impose no liability on the master. The master is liable only when his facilities or instrumentalities are being used by the servant for the purpose of advancing the employer’s business or interests. This is true even though the facilities or instrumentalities causing the injury were used with the consent of the master or were maintained by the master entirely for the use of the servant, and it has been held that the fact that the facilities furnished were dangerous by reason of defects therein is immaterial.”

The only possible theory upon which this case could have been submitted to the jury would have been on the ground that a reasonable inference of agency arose from the fact that' the evidence showed that the automobile being driven by Fink at the time of the collision was owned by the defendant and had been taken by Fink with permission of the defendant on the night before the collision' occurred. In Dowd-Feder. Co., Inc., v. Truesdell, 17 Ohio Law Abs., 647, affirmed in 130 Ohio St., 530, 200 N. E., 762, this court held that in the absence of any evidence presented by the defendant used car company as to the nature of the business the salesman was engaged in while driving defendant’s automobile, the inference that the salesman was acting within the scope of his employer’s business is sufficient to sustain a verdict for the plaintiff. It must be observed that in the Dowd-Feder Go. case the defendant failed to introduce any evidence as to the nature of the business the driver of the defendant’s car was engaged in at the time of the collision. In the case at bar there is positive and overwhelming evidence in proof of the fact that the defendant granted permission to the salesman to take the used car on the night before the collision for.the purpose of going to his residence in Cincinnati; that at the time of the collision he was driving this used car from his residence to his place of employment; that the accident occurred at 8:30 a. m. and that his duties at his place of employment did not begin until 9:00 a. m.; that at the time the defendant granted Fink permission to use the car the purpose of its use was the convenience of Fink and not the defendant; that at the time the collision occurred the car was being used not in furtherance of the master’s business, but for the personal convenience of Fink. This evidence is not contradicted. We recognize the rule that in the absence of evidence to the contrary a reasonable inference may arise with respect to the question of agency. However, where the evidence is positive and uncontradicted, as in this case, with respect to the matter of the permissive use of the defendant’s car by the driver for the purpose of the driver’s personal convenience and not in furtherance of the master’s business, no inference may be drawn- that at the time of the collision the driver was acting within the scope of his employment. One of the latest pronouncements of the Supreme Court on this question is found in Jackson v. Frederick, 152 Ohio St., 423, 426, 89 N. E. (2d), 645, which approved and followed White Oak Coal Co. v. Rivoux, Admrx., 88 Ohio St., 18, 102 N. E., 302, 46 L. R. A. (N. S.), 1091, Ann. Cas. 14C, 1082. See, also, Hillman v. Service Packing Co., 67 Ohio App., 254, 36 N. E. (2d), 433; Zarn, Admx., v. Dominique, 39 Ohio App., 442, 449, 177 N. E., 850; House v. Stark Iron & Metal Co., 33 Ohio Law Abs., 345, 34 N. E. (2d), 592.

In the latter case the court, on page 353, said:

“* * * The situation differs radically from those cases where the vehicle being operated is the ordinary automobile, which may be in the possession of the driver under varying circumstances, none of which would constitute or tend to constitute him the agent of the owner. We have many eases where an automobile is operated without the owner’s consent, where the driver is out on a joy ride. We have cases where the driver is employed by the owner of the automobile, but his occupation does not include the operation of the automobile. We have cases where the automobile owned by the defendant is operated by the defendant’s authorised agent, but at the time of the accident is being used not for the principal’s business, but for some purpose in which the driver alone is interested.” (Emphasis added.)

The following cases cited may be distinguished on the facts: Amstutz v. Prudential Life Ins. Co., 136 Ohio St., 404, 26 N. E. (2d), 454; E. S. Gahagen Co. v. Smith, 48 Ohio App., 290, 194 N. E., 26; Standard Motor Sales Co. v. Miller, 30 Ohio App., 7, 164 N. E., 55; Rhude v. Koehl, 85 Ohio App., 223, 88 N. E. (2d), 269; Bolatin-Drabkin Furniture Co. v. Batten, 18 Ohio Law Abs., 113; Authorized Dealers, Inc., v. Alms & Doepke Co., 12 Ohio Law Abs., 158. In Fink v. Industrial Commission, 25 Ohio Law Abs., 21, the court found that the employee was serving the interest of the master as well as his own and that the master had the right to control the actions of the employee.

An interrogatory was submitted to the jury which required it to state specifically what business of his employer the driver of the defendant’s automobile was engaged in at the time the accident occurred, which was answered: “Transportation in the course of selling used cars for his-employer. ” The case of the plaintiff is not strengthened by this answer. In fact, the answer of the jury demonstrates a weakness in the case of the plaintiff as there is no evidence to support the answer or from which a reasonable inference may be drawn to that effect. t

In our opinion any inference as to ag'ency was so completely refuted by the uncontradicted evidence on the subject that reasonable minds could not differ on this matter; reasonable minds could only conclude that the salesman at the time and place of collision was not acting within the scope of his employment or in furtherance of his master’s business. The court should have.sustained defendant’s motion for directed verdict and defendant’s motion for judgment non obstante veredicto.

If we are incorrect in our judgment that the evidence on the question of agency was insufficient as a matter of law.to submit the case to the jury, we have no hesitancy in concluding that on the basis of the whole record the verdict and judgment are contrary to the manifest weight of the evidence and that the judgment should be reversed on that ground.

For the seventh assignment of error defendant contends the court erred in giving before argument special instruction No. 4 requested by the plaintiff.

This instruction reads as follows:

“I charge you as a matter of law that if Henry T. Fink at the time of the accident was doing something he was authorized to do, which may be fairly inferred or implied from the nature of his employment and the duties incident to- it, he may be said to have been in the course of his employment. Or it may be stated in this way: Was Henry T. Fink, at the time of the accident, doing an act in furtherance of Elmer Lackner’s business, which he was expressly or impliedly authorized to do ? ”

While we do not approve of the court giving a special instruction in the form of a question, we do not believe that the statement of the court in the form of a question constituted prejudicial error. The first part of the charge was proper. This charge in its entirety is approved in Weygandt’s Ohio Charges (2 Ed.), Section 821 B.

Defendant for his eighth assignment of error claims the court erred in refusing to give a special instruction before argument, requested by the defendant, which reads as follows:

“I charge you, as a matter of law, that to maintain an action for negligence, the negligence complained of must be the direct and proximate cause of the injuries inflicted. I further charge you that proximate cause in the law of negligence is such a cause as operates to produce 'particular consequences without the intervention of an independent, unforeseen cause, without which the injuries would not have occurred.”

In onr opinion this was a correct statement of the law. See 29 Ohio Jurisprudence, 478, Section 64. In Baltimore & Ohio Southwestern Ry. Co. v. Moloney, Admx., 7 C. C. (N. S.), 437, 20 C. D., 792, a charge in the identical language was approved. Counsel for the plaintiff contend that the charge was.properly refused since it did not attempte to define intervening cause and make the proper application. A special charge is not intended to cover every principle or all the law of the case. Hunter v. Brumby, 131 Ohio St., 443, 3 N. E. (2d), 353; Makranczy v. Gelfand, Admr., 109 Ohio St., 325, 338, 142 N. E., 688; Swing v. Rose, 75 Ohio St., 355, 369, 79 N. E., 757; Curlis v. Brown, 9 Ohio App., 19, 22. See, also, 39 Ohio Jurisprudence, 1034, Section 315. In this charge the court attempted to define only proximate cause. Since the charge was a correct statement of the law the refusal of the court to give it constituted reversible error.

We find no error committed in refusing to withdraw from the jury allegation.s contained in plaintiff’s petition regarding the speed of defendant’s automobile as claimed in his ninth assignment of error, since there was some evidence introduced from which a reasonable inference may be drawn. Whether the speed of defendant’s automobile was greater than was reasonable or proper under the circumstances was a question to be submitted to the jury. Swoboda v. Brown, 129 Ohio St., 512, 196 N. E., 274.

There was no ■ issue made on the doctrine of last clear chance either in the pleadings or evidence and no charge .was given with reference thereto.

We find no-prejudicial error in the general charge as claimed by defendant in his tenth assignment of error.

Counsel for the defendant, for the fourteenth assignment of error, claim that other errors of law occurred at the trial, but no other errors are pointed out or discussed by defendant in Ms brief, and the court finds no other errors existing.

The court finds that reversible error was committed in refusing to give the special instruction before argument requested by defendant, and that the verdict and judgment are against the manifest weight of the evidence. Such error standing alone would require the cause to be remanded for a new trial. But on the determinative issue of agency, reversible error was also committed in overruling defendant’s motion for a directed verdict at the close of all the testimony, and in overruling defendant’s motion for judgment non obstante veredicto. Such errors are based on a failure of proof on a vital issue in the case and as a matter of law the defendant was entitled to judgment in his favor. In such case the reviewing court May enter the proper judgment. Accordingly, judgment is entered for defendant.

Judgment reversed.

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

(Decided March 8, 1951.)

On Application for rehearing.

Wiseman, J.

There is no rule controlling applications for rehearing, but this court has followed the practice of considering such applications if seasonably filed, where the questions raised merit consideration.

Plaintiff contends that a presumption of agency arose by reason of the fact that the automobile driven by Pink at the time of the collision carried dealer’s license plates of the defendant, and, therefore, that a jury question was presented.

In support of this proposition plaintiff cites Freder- icks v. Birkett L. Williams Co., 68 Ohio App., 217, 40 N. E. (2d), 162, the second paragraph of the sylla-:bns of which is as follows:

“The presence of an automobile dealer’s license plates on an automobile being driven by the sales manager of such dealer creates a rebuttable presumption that the automobile is being driven under the authority of and upon the business of the dealer. ’ ’

On page 223, ibid, the court cites the unreported case of Harten-Brooks Co. v. Gayer (Sixth Appellate District), supporting this proposition. The court cites also 1-2 Huddy on Automobiles (9 Ed.), 394, Section 180, to the effect that the rule stated above is the general rule. An examination of Huddy does not support the claim that the rule stated is regarded as the general rule.

On page 224 of the Fredericks case the court stated that “in Ohio, the question of agency such as here presented must be governed by the rule of respondeat superior,” and then concludes:

“Under Ohio statutes and decisions and in most other jurisdictions, the most that can be said under the facts here shown is that a rebuttable presumption arose that Cozad was operating the car owned by the company and operating it on company business; and that the evidence offered in rebutting the presumption thus arising presented a jury question. Ball v. Hail, 196 Ark., 491, 118 S. W. (2d), 668.”

In the Fredericks case the ownership of the automobile was in dispute. Evidence as to its bearing dealer’s license plates was relevant in establishing ownership. The presumption of agency could spring only from the fact of ownership. In that case the court held that the fact of the use of dealer’s license plates raised a rebuttable presumption. Both in this opinion and in the original opinion this court recognizes that proposition of law. However, in the instant case ownership of the automobile was not in dispute. The defendant admitted ownership. Hence the evidence showing that the automobile involved in the collision had upon it the dealer’s license plates of the defendant loses some of its probative effect. In our principal opinion we discussed the inferences which may be drawn from the fact of ownership of the automobile and the effect of the rebutting evidence. We concluded that on the basis of the whole record reasonable minds could not come to different conclusions with respect to the issue of agency.

Defendant’s liability rests upon the application of the-rule of respondeat superior. The rule of respon-deat superior arises out of the relationship of the parties — the relationship of master and servant or of principal and agent. In order to permit recovery it would have to be shown that the relationship between the defendant and Fink was that of master and servant or of principal and agent, at the time of the collision. The test of a master’s liability is not whether a given act was done during the existence of the servant’s employment, but whether such act was done by the servant while engaged in the service of and acting for the master in the prosecution of the master’s business. 26 Ohio Jurisprudence, 620-628, Sections 598-606.

In the Fredericks case the court cited the case of Ball v. Hail, 196 Ark., 491, 118 S. W. (2d), 668, in support of the proposition adhered to. That case did not involve the use of dealer’s license plates. It is authority for the proposition that a rebuttable presumption arose from the fact that the salesman was driving the dealer’s automobile at the time of the accident and that the salesman was acting for the dealer. The court held that where the only rebutting- testimony on the subject was given by the dealer and the salesman, the question whether the - salesman was acting within the scope of his employment at the time of the accident was a jury question. The court in that case referred to Mullins v. Ritchie Grocer Co., 183 Ark., 218, 35 S. W. (2d), 1010, among other cases, in support of this proposition. The Mullins case is authority for the proposition that “where evidence rebutting a presumption that an employee was acting within the scope of his employment when driving his employer’s automobile is contradictory, the question is for the jury; but, where the facts are undisputed, the question is for the court. ’ ’ That case lays down a proposition of law which is in accord with°our principal opinion.

In a later Arkansas case, Brooks v. Bale Chevrolet Co., Inc., 198 Ark., 17, 127 S. W. (2d), 135, the court, on page 21, held:

“It is true that if an automobile causing an accident belongs to the defendant and is being operated at the time of the accident by one of the regular employees of the defendant, there is a reasonable inference that at such time the employee was acting within the scope of his employment and in furtherance of the master’s business.

“But this is only a prima facie presumption or inference — a presumption or inference deducible from the naked facts of physical ownership, contract of employment, and permissive or directed operation.

“When, as in the instant case, it is shown by undisputed evidence that five young people met at half past ten o’clock on Saturday night, drove from one to two hours without important purpose, then directed their course to a night club and were well on their way to that objective when .the accident occurred, presumption of pursuit of the master’s business must give way to the obvious facts. ’ ’ '

In Ford & Son Sanitary Co. v. Ransom (1948), 213 Ark, 390, 210 S. W. (2d), 508, the court discussed the Mullins case and on page- 393, quoted from it as follows :

‘ ‘ * * * The inference or presumption of fact, however, may be rebuted or overcome by evidence adduced by the defendant during the trial. Where the evidence on this point is contradictory, the question is one for the jury. Where the facts are undisputed and uncontradicted, it becomes a question for the court.’,” The question here presented is discussed in 5 A. L. R. (2d), 199, the text being as follows:

“That the presumption or' the inference of an owner’s consent to another’s operation of his automobile, or the agency of such operator, arising from proof of ownership, or proof of ownership coupled with proof that the driver was in the general employment of the owner, is rebuttable and will be overcome by proper countervailing evidence, is universally held or conceded.

( ( # *

“The great weight of authority recognizes that the presumption from proof of ownership of an automobile alone, or coupled with proof that the driver was in the general employment of the owner, that at the time of the accident the car was being driven by the driver in the business of the owner within the scope of the driver’s employment, may and will be overcome as a matter of law and the plaintiff’s prima facie case will fail, with the procedural consequence of a directed verdict or binding instructions for the defendant, or a judgment non obstante veredicto for the defendant, or a judgment of nonsuit against the plaintiff, upon clear, direct, undisputed, positive, convincing, uncon-troverted, unequivocal, and credible, and, according to some cases, substantial, countervailing evidence showing without contradiction, improbability, and with certainty not susceptible of more than one inference by reasonable men, that the driver was not in the employ of the owner or that he was not at the time of the accident acting in the business of the oioner or within the scope of his employment, but in his own business or. for his own pleasure having no connection with the business of the owner; or that the automobile was not in the possession of the owner or his servant, but in the possession of someone else, not the servant of the owner, and the circumstances do not support a reasonable inference to the contrary.” (Emphasis ours.)

It is contended by the plaintiff that the testimony given by the defendant and Fink, although uncontra-dicted and undisputed, was not of sufficient weight to overcome the presumption of agency which arose by reason of the fact that the defendant was the owner of the automobile involved in the collision.

In 5 A. L. R. (2d), 203, we find this statement:

“There is some conflict in the decisions as to the degree and character of proof necessary to rebut or overcome such presumption. By some authorities it is held that the presumption disappears when met by positive proof or substantial proof or by evidence which the jury has the right to believe or by the un-contradicted testimony of the defendant. Others hold that the presumption is not overcome by the testimony of the defendant alone or by the testimony of interested witnesses or by evidence which the jury has the right to disbelieve. The authorities are, however, in almost complete agreement that- the presumption is conclusively overcome by clear, positive, and undisputed evidence.”

This was the view taken by this court in its principal opinion.

This court, in Arthurs v. Citizens’ Coal Co., 37 Ohio Law Abs., 438, 47 N. E. (2d), 654, held:

“* * * qy^ |3rirc[en 0f pi’oof remains upon plaintiff at all times, and where the defendant presents clear and conclusive testimony to the contrary and plaintiff goes no farther, the latter must fail in his proof.”

On page 441, it is stated:

“The strength of the prima facie rule necessarily depends on the circumstances and evidence in each particular case. * * *

“It disappears when surrounding circumstances are such that its recognition is unreasonable.

< < * & ft

“And if so overcome by proof that the automobile was not in the owner’s possession or .that of his servant, or was not being used by the servant within the scope of his employment, the defendant is entitled to a directed verdict in his favor.

i i ^ '.t5 ^

“So the fact that, from the ownership of an automobile being operated upon the highway, an inference arises that it was being operated by or on behalf of the owner of the car, and under circumstances which would render him liable for injuries caused by it, does not require the court to submit the question of the owner’s liability to the jury, if there is undisputed and uncontroverted evidence that at the time of the injury the driver of the car was not engaged in the employer’s business. ’ ’

We refer also to a most exhaustive opinion on this whole question by the Supreme Court of the State of Washington in 1942 under the title of Bradley v. S. L. Savidge, Inc., 13 Wash. (2d), 28, 123 P. (2d), 780, the seventh paragraph of the syllabus of which is. as follows:

“The presumption of agency arising from ownership of a vehicle concerned in an accident may be overcome by competent evidence from either interested or disinterested witnesses, provided that their testimony is uncontradicted, unimpeached, clear, and convincing, and in such a case the presumption disappears entirely from the case, casting upon the plaintiff the burden of establishing by a preponderance of .the evidence the fact that at the time of the accident the driver o'f the vehicle was the agent of the owner and was acting within the scope of his authority; and if the plaintiff fails in that respect the defendant is entitled to a directed verdict.”

In the opinion the court reviewed innumerable opinions from courts of almost all the states in the Union and cases arising in the federal jurisdiction. The only Ohio case cited by the court in support of the proposition therein announced is White Oak Coal Co. v. Rivoux, 88 Ohio St., 18, 102 N. E., 302, 46 L. R. A. (N. S.), 1091, Ann Cas., 1914C, 1082.

On page 6‘2 of the Bradley case the court concluded :

“After a careful study of our cases and those from other jurisdictions to which we have called attention, we conclude that there is no good reason for adhering to the rule that the presumption in cases of this nature may only be overcome by disinterested testimony, but every good reason is demonstrated in the authorities cited that cases of this character should be subject to the same rules governing' other presumptions or inferences of fact.

“Litigants are entitled to have their cases decided upon the evidence presented in accordance with general rules. A litigant should not be penalized because the truth comes from himself or from his employees. Every witness is presumed to tell the truth and his evidence should be accorded that presumption.”

The court on page 63 of the Bradley case departed from former rulings and held:

“Departing, however, from the rule as heretofore declared in a number of our own cases to the effect that such presumption may'be overcome only by disinterested testimony, and following what we conceive to be the correct rule as declared by the great weight of authority, including many decisions of this court, we now hold that the presumption may be overcome by competent evidence from either interested or disinterested witnesses, provided that their testimony is uncontradicted, unimpeached, clear, and convincing. When evidence of that degree and character is submitted by the defendant, the presumption disappears entirely from the case, casting upon the plaintiff the burden of producing competent evidence to meet the evidence of the defendant, and of establishing by a preponderance of the evidence the fact that, at the time of the accident, the driver of the offending automobile was the agent of the owner and was acting within the scope of .his authority. If the plaintiff fails in that respect, the court is required, upon motion of the defendant, to direct a .verdict in the latter’s favor. The pronouncement of this rule requires and results in the overruling of those cases, hereinbefore cited, which have proceeded on a contrary view.”

We adhere to the ruling laid down in the principal opinion that the evidence introduced by the defendant on the question of agency was sufficient to overcome the presumption which arose by reason of defendant’s ownership of the automobile involved in the collision, and that on the state of the whole record reasonable minds could not arrive at different conclusions on the issue of agency. The trial court should have sustained the motion to direct the verdict in favor of the defendant.

Application denied.

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

(Decided March 22, 1951.)

On Motion to release supersedeas bond.

Per Curiam.

Defendant has filed a motion for an order releasing the supersedeas bond heretofore filed.

The supersedeas bond, filed to stay execution under the provisions of Sections 12223-9 and 12223-14, General Code, is effective until all remedies of the adverse party are exhausted and the appeal is finally determined.

This court, in a journal entry filed March 17, 1951, reversed a judgment in favor of plaintiff. The plaintiff may secure a review of the judgment by the Supreme Court. If this court should release the bond at this stage of the proceedings and if the Supreme Court should reverse the judgment of this court, the plaintiff would be without remedy on the bond. Until there is a “final determination” of the rights of the parties in this appeal the bond will not be released.

Motion overruled.

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

(Decided April 26, 1951.)

On Motion to certify.

Per Curiam.

Plaintiff has filed a motion to certify the record of this case to the Supreme Court for review and final determination on the ground that the judgment rendered by this court is in conflict with the judgment of the Court of Appeals of the First Appellate District in E. S. Gahagan Co. v. Smith, 48 Ohio App., 290, 194 N. E., 26, and the judgment of the Court of Appeals of the Eighth Appellate District in Fink v. Industrial Commission, 25 Ohio Law Abs., 21.

We are of the opinion that in each of those cases facts appear which are not present in the case at bar. In the case of E. S. Gahagan Co. v. Smith the court found that the driver-salesman had reported for work; that the accident happened during working hours; that at the time of the accident the driver was returning from lunch, which he ate at his home; and that he was driving to the sales room for the purpose of securing an automobile to demonstrate to a customer.

In the case of Fink v. Industrial Commission the court found that the employer had the right to control the action of the employee and that the interests of the employer were being conserved at the time of the collision. The Fink case was a workmen’s compensation case, which is distinguishable from cases where the doctrine of respondeat superior applies. Rogers v. Allis-Chalmers Mfg. Co., 153 Ohio St., 513, 92 N. E. (2d), 677, 18 A. L. R. (2d), 1363.

The defendant contends that the Supreme Court has made a pronouncement on the applicable principle of law in the case of Jackson v. Frederick, 152 Ohio St., 423, 89 N. E. (2d), 645, and urges that any conflict with another Court of Appeals is now of no consequence. Whipp v. Industrial Commission, 136 Ohio St., 531, 27 N. E. (2d), 141. The suggested conflict does not relate to the applicable principle of law, but rather to the application of an established principle of law to the proven facts. While we believe a fine line of distinction may properly be drawn between the judgments in the two cases claimed to be in conflict witb the judgment of this court, there is still some doubt in our minds, and we resolve all doubt in favor of the movant.

Motion sustained.

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