text:
    Wardwell, Appellee, v. Cincinnati Street Ry. Co., Appellant.
    (No. 6535
    Decided February 3, 1946.)

      Mr. John A. Thorburn, for appellee.

      Mr. G. R. Beirne, for appellant.
   By the Court.

This is an appeal from a judgment of the Municipal Court of Cincinnati, awarding property damages to plaintiff as the result of a collision between plaintiff’s automobile and a bus of defendant, occasioned as both vehicles, being driven in a westwardly direction on Dale road, came in contact when plaintiff turned his automobile to the left in front of the bus to enter the driveway of his residence situated on the south side of Dale road.

No witnesses were called by either party and the case was presented to the court, without a jury by agreement of counsel, on a stipulation as to what the witnesses would say if called to- testify. The entire stipulation is set forth, as follows:

“It is stipulated and agreed by and between counsel for the plaintiff and counsel for the defendant as follows:

“That on January 23, 1945, at about 6:55 p. m., the plaintiff, Joseph Wardwell, was driving his 1940 Pontiac sedan westwardly on Dale road, a forty-foot highway, not landed for traffic, in Cincinnati, Hamilton county, Ohio, and that behind him there was a bus of The Cincinnati Street Railway Company, the defendant, being operated by Alfred R. Jansen, an employee of the company in the course of his employment. Said bus was also being operated in a westwardly direction; that thereafter, the plaintiff started to turn his automobile to his left toward the south side of Dale road, to enter the driveway at plaintiff’s home located at 1759% Dale road and opposite Newfield street, which comes into Dale road from the north but does not cross Dale road; that as the plaintiff’s automobile was turning and facing in a southwesterly direction, it was struck on the left side by the defendant’s bus which was, at the time of the collision, preparing to pass plaintiff’s automobile on the-left side thereof and said bus was at the time of said collision on the south side of Dale road and to the left of the center thereof; that at the time of said collision it was dark and there was no daylight.

“It is further agreed that neither plaintiff nor defendant will call any witnesses to testify in this case, but that if called Joseph Wardwell will testify that he is the plaintiff and lives at 1759% Dale road and was driving his automobile, immediately before the collision, westwardly on Dale road on the right hand side thereof but in that part of the right or north half of Dale road nearest to the center thereof; that he gave a hand signal of'his intention to make a left turn and also looked around and saw that the bus was one hundred feet away, and that he was almost crosswise in the street and headed into his driveway on the south side of Dale road, when the bus struck the left rear of his auto; that the rear stop lights of his auto were out of order but his tail light was burning.

“Joseph Wardwell, Jr., son of the defendant, would testify that he was a passenger in his father’s automobile at the time of the collision and that the bus laid down skid marks fifty feet long. In all other respects, his testimony would be the same as that of his father.

“Keating Armstrong would testify that he was a passenger on the bus in the second seat from the front on the right hand side and was facing forward; that the bus was going westwardly on Dale road behind plaintiff’s automobile, when the plaintiff’s automobile was going approximately ten miles per hour; that the bus started to pass plaintiff’s automobile on the left and in order to do so, the bus went to the left of the center of Dale road and that as it did so the plaintiff’s automobile turned left in front of the bus from that part of the north half of Dale road nearest to the north curb and that the plaintiff gave no signal of his intention to make the turn before making the turn; that at the time plaintiff’s automobile turned in front of the bus, the bus was approximately eighteen feet away.

. “Dorothy Trimble, if called to testify, would testify that she was a passenger on the bus in the second seat from the front on the left side thereof, and saw plaintiff’s automobile turn left in front of the bus from that part of the north half of Dale road nearest to the north curb thereof, when the bus was about thirty feet away and on the south side of Dale road preparatory to passing plaintiff’s automobile, and that the plaintiff gave no hand signal of his intention to make the left turn.

“Harvey Schaedle would testify, if called as a witness, that he is employed as a highway safety patrolman in the Cincinnati police department, and that he arrived at the scene of the accident after it had occurred ; that Dale road is a through highway and that traffic entering Dale road from side streets is required to come to a stop before doing so; that he looked for skid marks at the scene of the accident but found none.

“It is further stipulated that the bus came to a stop-when the front end was opposite the entrance of the' plaintiff’s driveway; that it struck the left rear of.' plaintiff’s automobile; that plaintiff’s automobile came to a stop in tbe driveway but with its right rear in the grass south of the south side of Dale road and west of said driveway.

“It is further stipulated that if Augusta Weiss were called as a witness, she would testify that she was a passenger on the bus seated in the first seat on the left hand side; that the bus was following plaintiff’s automobile about forty feet behind it and turned to the left on the south side of Dale road, to pass plaintiff’s automobile and when the bus was about twenty feet from plaintiff’s automobile, the plaintiff, without giving a hand signal of his intention to turn, turned left to go into a driveway on the south side of Dale road across the front of the approaching bus and the bus hit the left rear fender.

“Alfred R. Jansen, if called to testify, would testify that he was the operator of the defendant’s bus; that he was proceeding westwardly on Dale road behind plaintiff’s automobile and that when plaintiff’s automobile was on that part of the north side of Dale road next to the north curb, he turned'the bus to the left of the center thereof on the south half of Dale road, to pass the automobile, after giving a horn signal of his intention to pass plaintiff’s automobile, and that when his bus was eighteen to twenty feet east of the plaintiff’s automobile, the automobile turned left in / front of the bus and the driver of the automobile gave no signal of his intention to make the left turn; that the bus made no skid marks and stopped so that the front end was opposite the entrance of plaintiff’s-driveway; that when the bus was on the left side of Dale road and preparing to pass the plaintiff’s automobile, the left hand side of the bus was approximately four to six feet from the south side of said road.

“Damage plaintiff’s car stipulated to be $66.67.”

Examination of the above stipulation fails' to reveal any substantial evidence tending to show negligence on the part of the defendant. The mere happening of the collision cannot be relied upon to show such negligence.

The judgment is therefore reversed, and the cause remanded with instructions to enter final judgment for the defendant, at the costs of the plaintiff.

Judgment reversed.

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


source: Caselaw Access Project

author: Hildebrant, P. J.

license: Public Domain

text:
    Vockell et al., Appellees, v. Selmeier, Appellant.
    (No. 6591
    Decided February 4, 1946.)

      Mr. Fred W. Murphy and Mr. William C. Schueh, for appellees.

      Messrs. Ratterman, Cowell S Fletcher, for appellant.
   Hildebrant, P. J.

In a forcible entry and detainer action before a justice of the peace who rendered judgment of restitution, an appeal on questions of law was taken to the Court of Common Pleas, where the judgment was reversed. The appeal here on questions of law attacks the legality of the appeal to the Court of Common Pleas, it being claimed there was a failure to file the notice of appeal required by law.

This court has no jurisdiction to consider the errors complained of, for the reason that under the statute no final order has been entered in the court below. Section 12223-26, General Code, provides:

“Except when the reversal is because the justice has no jurisdiction of the appellant or of the subject of the action, the cause shall be retained by the court for trial and final judgment.”

The judgment of reversal, not being for lack of jurisdiction, is, therefore, not a final order, and the cause must be retained for trial by the court below and proceed to judgment before an appeal may lie here. McLean v. Johnson, 20 C. C. (N. S.), 503, 31 C. D., 403; Kelley v. Hunter, 12 Ohio, 216; Longworth v. Sturges, 6 Ohio St., 143; Ry. Co. v. Bailey, 39 Ohio St., 170; Bradley v. Wacker, 13 C. C., 530, 7 C. D., 565.

The appeal is dismissed.

Appeal dismissed.

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


author: Matthews, J.

text:
    City of Cincinnati, Appellant, v. Hyams, Appellee. (Two cases.)
    (Nos. 6550 and 6551
    Decided November 13, 1945.)

      Mr. John D. Ellis, city solicitor, and Mr. Robert J. Paul, for appellant.

      Mr. Arthur G. Friche and Mr. Louis Rubenstein, for appellee.
   Matthews, J.

The accused was convicted, as the result of a trial without a jury in the Municipal Court of Cincinnati in two proceedings, of knowingly having in his possession memoranda of wagers, commonly known as race-horse slips and pay-off slips, contrary to municipal ordinances. He was fined $200 and costs in each case, but one-half of the fine was remitted.

Appeals were taken to the Common Pleas Court, where they were consolidated for the purpose of hearing'. That court reversed the judgments and ordered the release of the accused, on the ground that the judgments were manifestly against the weight of the evidence.

The city of Cincinnati has appealed to this court from those judgments of reversal.

As the accused offered no evidence, the appeals raise the sole question of whether the Common Pleas Court was correct in concluding that the judgments of the Municipal Court based on that evidence were manifestly against the weight of the evidence.

Before considering the evidence, let us determine the rule by which an appellate court should be governed in testing the sufficiency of the evidentiary basis of a judgment rendered by a trial court in a criminal case.

In Breese v. State, 12 Ohio St., 146, 80 Am. Dec., 340, the court stated in the fourth paragraph of the syllabus the following rule:

“A judgment will not be reversed because the verdict is contrary to the evidence, unless it is manifestly so, and the reviewing court will always hesitate to do so where the doubts of its propriety arise-out of a conflict in oral testimony.”

Speaking of Breese v. State, supra, the Supreme Court, in Cooper v. State, 121 Ohio St., 562, at 570, 170 N. E., 355, said:

“Breese v. State, supra, was a case where the evidence of the state was circumstantial, and there was not only a sharp conflict between the evidence of the state and that of the defense, as to the circumstances, but also a discredited and unconvincing explanation made by the accused of his possession, after the burglary, of a portion of the goods stolen, so that, to arrive at a verdict at all, it was necessary for the jury to determine wherein the truth lay between conflicting testimony — to believe the testimony of certain witnesses and wholly disbelieve the testimony of certain other witnesses — and by that process to reach a conclusion beyond a reasonable doubt that the accused was guilty, and so render its verdict. This court very properly held that the jury and the trial court were in a better position to determine what testimony was true and what testimony was not true; and in that respect it would not substitute its judgment for the judgment of the jury and the trial court.”

See, also, 2 Ohio Jurisprudence, 767, et seq.

The general rule is stated as follows in 3 American, Jurisprudence, at pages 397, 398:

“Appellate courts are loath to disturb the findings •of the jury on criminal prosecutions and are not inclined to pass on questions not properly brought before them. Thus, in prosecutions for embezzlement where there was persuasive evidence to go to the jury of the fact, as found, that an agent appointed to liqui-. date the affairs of an insolvent bank declared and paid a dividend on stock belonging to himself, the appellate court refused to review the finding even though the agent claimed that the stock belonged to a third person.” '

It is manifest that a reviewing court must-accept the probative value placed upon evidence by the trial court, based on the credibility of witnesses and the permissible inferences from proven facts.

In testing the sufficiency of this evidence, the unexplained failure of the accused to testify is a fact to be, considered. Both by the constitutional (Section 10, Article I, Constitution) and statutory (Section 13444-3, General Code) provisions, that failure may. be considered by the court and jury and made the subject of comment by counsel. Of course, the permission to consider the accused’s failure to- testify necessarily means that, if no other reason appeared, his unexplained failure to testify when he had full opportunity to do so would justify the trier of the facts in drawing the inference that he had no explanation to make of the. incriminating evidence introduced against him. Halsey v. State, 42 Ohio App., 291, at 295, 182 N. E., 127.

Let us now consider the evidence. It should be noted at the outset that there are many exhibits which are not attached to the bill of exceptions in any way, and although the bill shows that exhibits were admitted in evidence, there is no recital anywhere in the bill that they had been attached to or made a part of it. In that situation we doubt very much whether we have the power to consider this bill as containing all the evidence. ' However, as our conclusion would be the same, we have concluded to give the accused the benefit of considering the exhibits as properly before us and the bill as containing all the evidence.

On the night of September 23, 1944, at 9:45 o’clock, the accused appeared at the Cincinnati city hall in an agitated state, and, when asked what was wrong, said that some one had taken a shopping bag containing $200 and some “other property” — cheeks, bank books, and keys — from his automobile which he had parked at. Ninth and Linn streets while he went into a cafe for a few minutes. The officers to whom this had been said went with him to Ninth and Linn streets in an effort to discover the thief. While there, the accused told them that “he did not want-to mix in court and to drop it right there.” Apparently the search for the thief ended at that time.

Although the accused did not care to have the'police continue searching, he manifestly was anxious to have his shopping bag and its contents returned to him. This is' shown by the fact that he caused to be inserted in the next afternoon issue of a newspaper an offer of a reward of $200 for the return of the ‘ ‘ shopping bag with personal papers.” In this advertisement he gave his residence telephone number, but did not otherwise disclose his identity.

On the following morning about 9:30 o’clock, that is, about twelve hours after the accused notified the police of the theft, two boys found an empty shopping bag or bags under the Western Hills viaduct. The record does not show how far that was from the scene of' the theft, and the omission does not seem material. Whether it was one or two bags that was found is not certain. Sometimes the reference in the testimony was in the singular and sometimes in the plural. As the exhibit came to this court it was one container composed of two bags, one forming a sort of lining for the other. The container was empty. Scattered on the ground within from two to four feet of this container were cardboard tickets, long paper slips, a bank book, memorandum books advertising accused’s place of business, keys and more than 40 checks signed by various persons and endorsed in blank by the payees. There was no money. On the cardboard tickets was printed “Win — Place—Show,” with blank spaces above in which figures were written in pencil. Each card had a number in large print in both words and figures, and in small type were the words “Not responsible for mistakes'. Watch ticket writer;” In the right lower corner in large red type were the words, “Valley Cigar Store. 6117 Vine St. ’ ’ The pay-off slips were so printed to facilitate keeping a record of the results of races.

These slips were later identified by the witnesses for the city as cards and slips used in betting, or race-horse slips,-and Yalley Cigar Store as the trade name under which accused did business. The “race-horse slips” and “pay-off slips” by their form and wording indicate their character, and this was emphasized by comparison with the “Form Sheet” published by American Racing Record introduced in evidence which shows the winning horse and the odds.

The boys collected all these objects, placed them in the shopping bag and in due time delivered them to a sub-station of the Cincinnati, police department. The officer in charge had seen the newspaper advertisement and by telephoning to the number given learned that it was the accused who had advertised the offer of the reward. In that way, the boys were placed in communication with the accused and collected the rewárd about a week after the theft. The property was sent to the police headquarters at city hall to await disposition.

On September 30th, the accused appeared at police headquarters and claimed as his the 40 checks totaling $2,005.36, 42 keys, a beer opener on two key rings, and a bank book. The record does not show that he expressly disclaimed ownership of the shopping bag, the memorandum books and the race-horse and pay-off slips. It does show that although he advertised that the shopping bag contained “personal papers” he made no claim to them or to a letter addressed to him about opening a “book” at a named location. He then claimed everything of any value, although none of it except the bank book had any mark identifying it as his property, and failed to claim the other articles, notwithstanding they either had his name or place of business, or both, on them.

The trial court on that evidence found the accused guilty of knowingly possessing race-horse slips and pay-off slips at Ninth and Linn streets in the city, of Cincinnati — the place where he said the shopping bag and contents had been taken from his automobile. It is claimed by the accused that the evidence is insufficient to support his conviction. The claim is that there is no evidence that the race-horse slips and pay-off slips . were at any time' at the corner of Ninth and Linn streets. ’ It is said that the only proof is'that they were under the Western Hills viaduct and that the accused was admittedly not there, and, therefore, could not have had possession of them- at that place, nor at Ninth and Linn streets.

Of course, it is contrary to all reason to suppose that these articles originated or sprang into being under the Western Hills viaduct. In the nature of things, they had to be brought there from some other place. From where, and how? Is there evidence from which a rational answer .can be made? It is clear that there is no direct testimony on the subject. However, the trial court found an answer-in the circumstantial evidence in the record. The question before us is whether this court can say that that circumstantial evidence falls so far short of the standard of probative value required in a criminal case as would require-this court to say the trial court’s finding is manifestly wrong. The standard is proof beyond a reasonable doubt, and reasonable doubt is defined by Section 13442-3, General Code, as “not a mere possible doubt, because everything relating to human affairs or depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the cáse which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.”

The trial court after analyzing and considering the evidence found the accused guilty, thereby declaring that the evidence had cansed.it to have an abiding conviction to a moral certainty of the accused’s guilt. Our task as an appellate court is to decide whether the trial court erred in so declaring, and, in reaching our conclusion, we are required to give every reasonable construction to the evidence and only reverse if we should find that the judgment is manifestly against the weight of the evidence. We must, therefore, also analyze and consider the evidence.

There can be no doubt that the accused was at Ninth and Linn streets. It is equally clear that he had a shopping bag there containing 40 checks, a bank book, 42 keys and a beer opener on two key rings. It is equally clear, because accused claimed them, that these same 40 checks, 42 keys, a beer opener on two key rings and a bank book were under the Western Hills viaduct twelve hours thereafter, lying within two feet of a shopping bag.

The accused admitted that these articles were taken from his possession at Ninth and Linn streets by a thief and were found under the Western Hills viaduct. He admits that the shopping bag contained “other personal papers” at Ninth and Linn streets, but does not admit that the race-horse slips and pay-off slips were in that bag or that he referred to them in his advertisement as “personal papers.” But the proof is clear that the race-horse slips and pay-off slips, upon which his name and place of business were printed, were found under the Western Hills 'viaduct at the same time and in the. same place as the other articles which he admits had been taken from him at Ninth and Linn streets. The trial court concluded that the race-horse slips and the pay-off slips came from the same place, at the same time and in the same way.

It is urged that in a criminal case the evidence must remove every reasonable hypothesis save that of the guilt of the accused. What hypothesis is offered as to the presence of these race-horse slips and pay-off slips, hearing the printed name and place of business, under the Western-Hills viaduct along.with the other articles which accused admits belonged to him and were in his possession at Ninth and Linn streets? It is said that some one in passing over Western Hills viaduct may have thrown them over and that they landed there. These race-horse slips and pay-off slips are light. There were many of them — how many is not clear. Some may have been joined together, but under the most favorable construction of the record, it is still clear that the hypothesis presents the spectacle of several pieces of paper being thrown from a bridge, floating through the air and all coming to rest within three feet of one another, and within the same distance of the articles which accused admits were stolen from him at Ninth and Linn streets. It might happen — but is it probable?

As against this hypothesis, we have evidence that a shopping bag was stolen, which contained $200 and these- articles which accused admits belonged to him, that it contained “other personal papers,” and that all these things, were found under the. Western Hills viaduct, the shopping bag empty and all the articles within three feet of it excepting the money which is missing. What thought is naturally produced? Is it not that the thief, while under the viaduct emptied the bag, took the money and left the other articles ? And is not that hypothesis infinitely stronger than that these race-horse slips had been thrown from the viaduct? It seems to us that the one is natural and reasonable, and the other fantastic and unreasonable. The evidence does not present two or more equally plausible or logical hypotheses.

Let us test the reasonableness of the conclusion that the thief brought these race-horse slips from Ninth and Linn streets in another way. Suppose the thief were on trial for stealing the race-horse slips and it had been proven that he had been at Ninth and Linn streets, that the race-horse slips had been there commingled with the checks, the bank book, the keys and beer opener, and that the thief had admitted he had deposited these articles, other than the race-horse slips, under the Western Hills viaduct, but notwithstanding the race-horse slips were found under the Western Hills viaduct within three feet of the other articles, denied that he had taken them there. Would anyone have believed him?

We think the circumstantial evidence satisfactorily proves that these race-horse slips and pay-off slips were in the possession of the accused at Ninth and Linn streets, and that he had knowledge of their character.

The accused had full opportunity to take the stand to refute his ownership and possession of these articles, which had printed on- them his name and place of business, but chose to remain silent. That fact the trial court had a right to consider in weighing this evidence.

We cannot conclude that the trial court was manifestly wrong in deciding that the accused’s guilt had been proven beyond a reasonable doubt.

Por these reasons, the judgment of the Common Pleas Court is reversed, and that of the Municipal Court affirmed.

Judgment reversed.

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


text:
    The Globe Indemnity Co., Appellee, v. Schmitt, Appellant. The Globe Indemnity Co., Appellant, v. Schmitt, Appellee.
    (Nos. 6613 and 6614
    Decided February 18, 1946.)

      Messrs. Vogue, Hoffheimer & Vogue and Mr. J. A. Culbertson, for The Globe Indemnity Company.

      Mr. Robert G. McIntosh, for Alois Schmitt.
   Hildebrant, P. J.

Both parties appealed on questions of law from the action of the Common Pleas Court following an affirmance by this court in the same case, No. 6509, Globe Indemnity Co. v. Schmitt, 76 Ohio App., 35, 63 N. E. (2d), 169.

The facts as set forth in that report are:

‘ ‘ The plaintiff had executed a policy of casualty insurance to The John Shillito Company. By reason of the alleged negligence of an independent contractor employed by the insured, a pedestrian using the sidewalk extending along the place of business of the insured, was injured. The plaintiff settled with such pedestrian for her claim against insured. This action was brought to recoup from such independent contractor, the defendant, the amount so paid by the insurer plaintiff.

‘£ The trial was to a jury.

“The plaintiff requested a special verdict. The request was granted and the verdict was -proposed to the jury in the form of a questionnaire. This method is approved in Dowd-Fecler Co. v. Schreyer, 124 Ohio St., 504, 179 N. E., 411.

“ Motions were made both by plaintiff and defendant for judgment upon the special verdict and a motion for a new trial was filed by the plaintiff, appellant herein. The trial court overruled both motions for judgment on the verdict and refrained from passing upon the motion for new trial, * * *.”

This court held in the second paragraph of the syllabus in Globe Indemnity Co. v. Schmitt, supra:

“When a motion for new trial is filed after a special verdict is rendered, the Court of Common Pleas has no power to render a judgment upon such special verdict until such motion for new trial is overruled and such special verdict sustained.”

Upon the consideration by the trial court of the motion for new trial, the same was granted, and, again, both parties moved for judgment on the special verdict, and both such motions were overruled.

Both parties challenge the action of the court and appeal on questions of law, claiming to be entitled to judgment on the special verdict.

This court will reiterate that:

“If the special verdict was regular and complete and the plaintiff was entitled by law to judgment, and this was improperly refused by the trial court, this court would be required to render the judgment which the trial court should have rendered.”

Section 11599, General Code, prior to its amendment effective October 11, 1945, provided:

“When a trial by jury has been had, judgment must be entered by the clerk in conformity to the verdict, unless the verdict is special, or the court orders .the case to be reserved for future argument or consideration immediately after the time for the filing of a motion for a new trial if it has not been filed. When a motion for a new trial is filed, then such judgment shall be entered only when the court has sustained such verdict by overruling the motion. Upon such overruling it shall immediately be entered.”

From a reading of the above section, it again appears that the trial court was not only required to render the judgment requested, but had no power to do so until it had not only passed on the motion for new trial, but had overruled the same. Boedker v. W. E. Richards Co., 124 Ohio St., 12, 176 N. E., 660.

It follows that the action of the tr-ial court is subject to review only on the question of abuse of discretion in granting the motion for a new trial, otherwise, it was not a final order. And that abuse of discretion is required to be clearly shown. See numerous citations in 1943 Cumulative Supplement, 2 Ohio Jurisprudence, 144, Section 126.

We are now required to examine the proceedings to see if the special verdict was regular and complete entitling either plaintiff or defendant to have judgment entered thereon, so that granting of the.motion for new trial amounted to an abuse of discretion.

For the most part, the answers of the jury to the interrogatories contained in the special verdict are responsive and adequate to • provide a basis for judgment for the plaintiff and the decision here turns on the answers to five questions, being numbers 7 to 11, inclusive, which are:

“7. While the defendant was occupied with duties incident to the loading of his truck, and while said iron grills had been so removed, did one Nellie Sullivan, not an employee of the said John Shillito Company, walk in an easterly direction over and along the said sidewalk, between Elm and Race streets, adjacent to said store premises, and step upon the metal covering suspended in one of said openings, which was unprotected, and did the covering collapse under her weight while so walking, and was she precipitated into the space under the said sidewalk occupied by the said -the John Shillito Company, and fall to the floor of the basement and suffer severe bodily injuries? Answer: She did — while defendant’s agent was sweeping.

“8. In removing the iron grill over the said sidewalk opening did the said defendant fail to exercise that degree of care which persons of ordinary care and prudence would exercise under the same or similar circumstances, without providing an approved guard or barricade to. protect the said Nellie Sullivan? Answer: No — he éxercised normal care.

“9. Did the defendant fail to provide a barricade such as set forth in Section 1952 of the Code of Ordi-. nances of the City of Cincinnati? Answer:-We do not know what the city ordinance considers an approved barricade — but we consider a human body a sufficient guard in this case.

“10. Did the defendant fail to exercise that degree of care which persons of ordinary care and prudence would exercise under the same or similar circumstances by not giving the said’ Nellie Sullivan warning of the fact that said opening was unprotected? Answer: No.

“11. Were any of these acts of the defendant the proximate cause of injuries to the said Nellie Sullivan? Answer: Yes.”

The specifications' of negligence contained in the amended petition are that no approved barricade or guard required by the ordinance was erected and, therefore, defendant was guilty of negligence per se, and that failure to warn the injured party amounted to negligence.

Plaintiff argues there was admitted violation of the city ordinance, showing negligence per se, so that nothing remained for the jury but the question of proximate cause, upon which it received a favorable answer in the special verdict, so that interrogatories propounded as to defendant’s conduct in that connection were superfluous and it is, therefore, entitled to judgment.

It is said of special verdicts in 39 Ohio Jurisprudence, page 1145:

‘ ‘ Such verdicts cannot be aided by intendment or by extrinsic facts. The finding must be so clear, consistent and complete that the proper judgment can be rendered as a legal conclusion from the pleading and findings of fact constituting the special verdict, without looking beyond such findings of fact to any evidence disclosed by the record. In other words, resort cannot be had to the testimony, even though uncontradicted, for facts wherewith to supplement such special verdict.”

The law has been applied in the following pertinent cases: Dowd-Feder Co. v. Schreyer, 124 Ohio St., 504, 179 N. E., 411; Penna. Rd. Co. v. Vitti, Admr., 111 Ohio St., 670, 146 N. E., 94; Wills v. Anchor Cartage & Storage Co., 38 Ohio App., 358, 176 N. E., 680; Gendler v. Cleveland Ry. Co., 18 Ohio App., 48. See, also, 1943 Cumulative Supplement, 39 Ohio Jurisprudence, 1142, Sections 412 and 413.

Here, the special verdict appears to be so indefinite, incomplete, and contradictory as to be inadequate for the court on the pleadings and findings of fact to apply the law. That conclusion seems further to be in accord with the now declared legislative policy appearing in amended Section 11600, General Code, as follows: “* * * Where a verdict is so indefinite, uncertain or defective that a judgment can not be rendered thereon, the court shall order a new trial.”

It is said in Steiner v. Custer, 137 Ohio St., 448, at page 451, 31 N. E. (2d), 855:

“However, the granting or refusing of a motion for a new trial rests largely in the sound discretion of the trial court, and it has often been held by the courts of this state that the setting aside of a general verdict and the granting of a motion for a new trial is not such a final order as may be reviewed, unless it clearly appears that the trial court abused its discretion. Hoffman v. Knollman, 135 Ohio St., 170, 183, 20 N. E. (2d), 221, 227; 2 Ohio Jurisprudence, 728, Section 651.

“The meaning of the term ‘abuse of discretion’ in relation to the present controversy connotes something more than an error of law or of judgment. Black’s Law Dictionary (2 Ed.), 11. Such term has been defined as ‘a view or action “that no conscientious judge, acting intelligently, could honestly have taken.” ’ Long v. George, 296 Mass., 574, 579, 7 N. E. (2d), 149, 151.”

We, therefore, find no abuse of discretion in the action of the trial court in sustaining the motion for new trial.

, The judgment is affirmed, and the cause remanded to the Court of Common Pleas of Hamilton county, for further proceedings according to law.

Judgment affirmed.

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


author: Stevens, P. J.

text:
    Beam, Appellee, v. Baltimore & Ohio Rd. Co., Appellant.
    (No. 3657
    Decided February 26, 1945.)

      Mr. Ray J. McGowan and Mr. Charles F.- Scanlon, for appellee.

      Messrs. Wise, Roetsel (& Maxon, for appellant.
   Stevens, P. J.

Plaintiff (appellee) brought this action in the Court of Common Pleas of Summit county, Ohio, to recover from defendant (appellant) for personal injuries suffered by plaintiff when his feet and legs were crushed by being run over by a freight car operated by defendant at Warren, Ohio.

Plaintiff alleged in his petition that:

‘ < * * * Tbe Baltimore & Ohio Railroad Company is a railroad corporation, and at all times hereinafter mentioned and for a long time prior thereto, owned, operated and controlled an interstate railway through the state of Ohio, and particularly Trumbull county in said state, and various other states, and operated over the same passenger, freight and mixed trains. Plaintiff further avers that at all of the times herein referred to the defendant was engaged in interstate commerce and traffic by rail, and this action is brought under and by virtue of the Federal Employers ’ Liability Act of April 22, 1908, and amendments thereto.

“Plaintiff further says that on the 5th day of September, 1941, and prior thereto he was in the employ of the defendant company as a brakeman; that at approximately 1 o’clock p. m. on said date, in the performance of his duties for the defendant as such brakeman, he was on board one of the cars of a moving freight train which was being operated over and along the defendant’s track in the city of Warren, Trumbull county, Ohio, when suddenly and without warning to the plaintiff the slack between the freight cars to the rear of the plaintiff was taken up, causing said cars to come in violent contact and in such a manner as to throw the plaintiff from his position on said car and under the wheels of the moving train.

“Plaintiff further says that as a direct result of said occurrence both of plaintiff’s legs were cut off at a point seven inches below the knees * * *.

“Plaintiff says that his injuries, disability, pain and suffering, expenses and loss of earnings which he suffered as hereinbefore set forth, were directly and proximately caused by the negligence of the defendant acting by and through its duly authorized employees acting in the scope of their employment, in the following respects, to wit:

“1. In that the defendant, through its engineer, failed to control the slack, which caused the plaintiff to be thrown from said train, when in the exercise of ordinary care such slack could have been controlled.

“2. In that the defendant caused said train, and particularly the car on which plaintiff was riding, to jerk in a sudden, unusual and unexpected manner, when the. defendant knew, or in the exercise of reasonable care should have known, the plaintiff’s position on said train. * * * ”

Plaintiff then alleged damage in the amount of $100,-000, for which he prayed judgment.

The answer of defendant admitted that it was a railroad corporation, operating on said date an interstate railway in Trumbull county, Ohio, but denied that at the time of said occurrence it was engaged in interstate commerce, and that the action was under the Federal Employers’ Liability Act; admitted that on said date plaintiff was in its employ as a brakeman, and that as such brakeman he was on board one of the cars of a moving freight train operated over and along defendant’s track in Warren, Trumbull county, Ohio, and that his legs were cut off about seven inches below the knees, by the wheel or wheels of a car of said train, but denied the averments of negligence contained in the petition, and that his injuries were caused by any negligence on its part.

As a second defense, defendant pleaded assumption of risk.

When the cause came on for trial, defendant, at the conclusion of plaintiff’s evidence, separately moved that each specification of negligence set out in plaintiff’s petition be withdrawn from the consideration of the jury; which motions were sustained as to all of such specifications except the specification above set forth marked “1,” and one other upon which ruling was reserved by the court. As to this latter, the court withdrew that from the consideration of the jury at the conclusion of all of the evidence.

Defendant then moved for a directed verdict, which motion the court overruled.

The court then permitted plaintiff to amend his petition by adding thereto the specification' of negligence hereinabove set forth'as “2,” and overruled defendant’s motion to withdraw that specification of negligence from the jury, and for a directed verdict for defendant.

At the conclusion of all the evidence, defendant moved for a directed verdict, which motion was overruled.

Defendant then presented the following interrogatories for submission to the jury:

“Was the defendant negligent?” and “If so, state fully the particular act or acts of which the negligence consisted.” The first was answered “Yes,” and the second was answered “We find that the act of negligence on the part of the defendant consisted in the incorrect operation of the brakes and incorrect control of the train at the time of the accident.”

Each of said answers was signed by 11 of the jurors.

In addition, the jury returned a general verdict for plaintiff for $75,000.

Motions for judgment notwithstanding the verdict, and for a new trial, were filed and overruled, and judgment was entered on the verdict.

This appeal on questions of law followed.

The first, question to be considered is that dealing with the subject of interstate commerce, and the applicability of the Federal Employers ’ Liability Act.

That act — Title 45, Section 51, Chapter 2, U. S. Code, as amended August 11, 1939 — provides:

“Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, * * * for such injury * * * re-suiting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier * # *

“Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.”

It is apparent from a reading of the above provision of the act that, if defendant, a common carrier by railroad, was, at the time of plaintiff’s injury, engaged in interstate or foreign commerce, as those terms are defined by statute, and construed by the courts, then plaintiff, coneededly an employee of defendant and alleged to be acting within the scope of his employment at the time of his injury, was entitled to bring his action for negligence against defendant, under the provisions of the Federal Employers ’ Liability Act.

What does this record disclose upon the subject of interstate commerce?

The 23 cars of iron ore being hauled from Cleveland, Ohio, to Warren, Ohio, by the defendant were in part ore transported by the steamer Crete from Superior, Wisconsin, and in part ore carried by the steadier Angeline from Marquette, Michigan, to Cleveland, Ohio.

While these steamers were in transit and before they reached the lower Lake Erie port, W. A. G-osewisch, of the purchasing department of Republic Steel Corporation, was called by H. L. Gobeille, the assistant manager of the marine department of the Cleveland Cliffs Iron Company, which company acted as agent for Republic Steel Company, and told of the movement of ore in these boats. Gosewiseh then ascertained which of the Republic Steel Company plants was to receive the ore, and advised the Cleveland Cliffs Iron Company, by a written confirmation of telephone conversation, what disposition was to be made of the ore upon arrival.

Plaintiff’s exhibit Gr is demonstrative of the procedure followed:

“Republic Steel Corporation

“Purchasing Department

“Cleveland, Ohio

“No. 572.

“August 29, 1941.

“Mr. A. E. R. Schneider, Cleveland-Cliffs Iron Co., Union Commerce Bldg., Cleveland, Ohio.

“Confirming telephone in regard to : conversation of -

“Steamer Crete

“Ore Sagamore

“Tons 8800

“Due to arrive 9/2

“Dock at Corrigan McKinney

“Ship to Warren

“Via B & 0

“Equipment Hoppers

Republic Steel Corporation

“W. A. GrosewischrCR

‘ ‘ Purchasing Department. ’ ’

It appears that both of the vessels hereinbefore referred to were unloaded almost immediately upon arrival at the Corrigan-McKinney dock in Cleveland, their contents being placed in freight cars for which arrangement had been previously made by the Republic Steel Company, and that part of the cars so loaded made up in part the train upon which plaintiff was injurecl. That train then left ihe docks at Cleveland, and proceeded in a substantially continuous movement to its final destinations — vis., Warren and Youngstown, Ohio.

If .the transportation of the ore by the ships is to be considered as terminated upon the arrival of the ships and their contents at Cleveland, Ohio, and the further movement of the ore by railroad is an independent transaction, then, of course, the shipment of the ore from Cleveland to Warren was an intrastate shipment.

However, it has been said that the tests to be applied in determining whether a shipment is one of interstate commerce do not depend on “through billing, uninterrupted movement, continuous possession by the carrier, nor unbroken bulk,” as none of these “is an essential of a through interstate shipment.” B. & O. S. W. Rd. Co. v. Settle, 260 U. S., 166, at page 171, 67 L. Ed., 189, 43 S. Ct., 28.

“2. * * * Every part of every transportation of articles of commerce in a continuous passage from a commencement in one state to a prescribed destination in another is a transaction of interstate commerce.

. “Every carrier who transports such goods through any part of such continuous passage is engaged in interstate commerce, whether the goods are carried upon through bills of lading or are rebilled by the several carriers.” United States v. Colorado, etc., Rd. Co., 157 F., 321, 85 C. C. A., 27, 15 L. R. A. (N. S.), 167, 13 Ann. Cas., 893.

“5. Whether transportation is intrastate or interstate # # is determined by continuity of movement combined with unity of plan.” Sherman v. Southern Pacific Co., 34 Cal. App. (2d), 490, 93 P. (2d), 812.

“1. If one car in a train is engaged in an interstate movement, the whole train is engaged in ‘interstate movement’ * * Smith v. Salt Lake & Utah Rd. Corp., 99 Utah, 393, 105 P. (2d), 338.

To us it seems clearly apparent that the entire transit of the ore in question from Marquette, Michigan, and Superior, Wisconsin, to Warren and Youngstown, Ohio, was a continuous movement, accomplished under a unity of plan to move said ore in interstate commerce.

Such being our conclusion, we hold that the plaintiff was legally justified in bringing this action under the Federal Employers’ Liability Act; and, under this evidence, we further hold that the trial court did not err in instructing the jury as a matter of law that the movement being made at the time of plaintiff’s injury was one in interstate commerce. See Fairport, Painesville & Eastern Rd. Co. v. Meredith, 46 Ohio App., 457, 189 N. E., 10; affirmed, 292 U. S., 589, 78 L. Ed., 1446, 54 S. Ct., 826.

As to appellant’s assignment of error 1, and all of its subheads, we find no error prejudicial to the substantial rights of appellant.

Under appellant’s assignments of error, the next question for consideration is the issue of defendant’s alleged negligence.

The two specifications of negligence hereinabove set forth are based upon the duty allegedly owed to the plaintiff by defendant to exercise reasonable care in the operation of its equipment so as not to injure plaintiff ; and defendant, under the federal statute, is made answerable for the negligent acts of its employees.

Negligence under the federal act remains what it has always been — i. e., the violation of a duty owed to him who complains of its violation; “the lack of due care under the circumstances; or the failure to do what a reasonable and prudent man would ordinarily have done under the circumstances of the situation; or doing what such a person under the existing circumstances would not have done.” Tiller, Exr., v. Atlantic Coast Line Rd. Co., 318 U. S., 54, at page 67, 87 L. Ed., 610, 63 S. Ct., 444, 143 A. L. R., 967.

In this case we have the evidence (expert and lay) of the plaintiff, exhibiting the theory upon which plaintiff claims his right to recover from defendant, which, if true, demonstrates the defendant’s violation of the duty alleged to be owing to plaintiff.

Opposed to plaintiff’s evidence is that produced by defendant, which, in number of witnesses, greatly exceeds that adduced by plaintiff. The gravamen of defendant’s contention, supported by its evidence, is that plaintiff’s injury could not and did not occur as claimed by plaintiff’s witnesses.

This is the typical negligence case, where the evidence on one side is diametrically opposed to that produced by the other side. In such situation, submission to the jury of the sharply contradictory claims is required, unless the court can say as a matter of law that, from a consideration of all the evidence, reasonable minds may reasonably reach but one conclusion, and that adverse to the claims of plaintiff; in which event it is the duty of the court to direct a verdict for defendant.

We have carefully examined the entire contents of this record, and from that examination we are unable to say that the trial court was required to so resolve the evidence as to necessitate a directed verdict for defendant.

On the contrary, we are of the opinion that there was introduced, and properly admitted, substantial evidence upon which reasonable minds might reasonably reach different conclusions. In such event, the case was one which was properly submissible to a jury; as was done by the trial court. See Grand Trunk Western Ry. Co. v. Heatlie, 48 F. (2d), 759; Toledo, St. L. & W. Rd. Co. v. Howe, 191 F., 776.

In an action under the Federal Employers’ Liability Act—

“3.' Probative facts from which negligence and its causal relation to an accident may reasonably be inferred, warrant submission of those issues to the jury.” Tennant, Admx., v. Peoria & Pekin Union Ry. Co., 321 U. S., 29, 88 L. Ed., 520, 64 S. Ct., 409.

Apropos of the limitation on the right of a reviewing court to substitute its judgment for that of a jury, the same case states:

“8. Courts are not free to reweigh the evidence and set aside a jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable. ’ ’

It is our conclusion that, as to appellant’s assignment of error 2, and all of its subheads (a to d, inclusive), no prejudicial error intervened.

It is next claimed by appellant that the trial court erred in the admission of certain evidence offered by plaintiff, and in refusing to withdraw from the consideration of the jury certain evidence upon motion made by appellant therefor.

It is the contention of appellant that the court erred in permitting plaintiff to testify as an expert witness, and in allowing the answers thus elicited from plaintiff to constitute the basis for hypothetical questions addressed to plaintiff’s witness Kirkpatrick.

The uncontradicted evidence shows that plaintiff had been a brakeman in the employ of defendant for many years prior to his injury; that he was required to familiarize himself with the operation of trains, including the braking thereof; that he was subjected to periodic examinations thereon, and received statements from the railroad company showing that he had satisfactorily passed his examinations.

His experience, plus his technical study of manuals furnished by defendant, in the opinion of. the trial court qualified him to testify as an expert witness upon those subjects.

Whether he was qualified by education or experience to testify as an expert, was a matter to be determined by the trial court, whose decision thereon will not be disturbed unless clearly shown to be erroneous. Bradford Glycerine Co. v. Kizer, 113 F., 894; 17 Ohio Jurisprudence, Evidence, Section 334.

We find no prejudicial error in the ruling of the trial court permitting plaintiff to testify as an expert, nor in the use of answers given by plaintiff as the factual predicate for hypothetical questions directed to the witness Kirkpatrick.

We are further of the opinion that the court did not err in permitting the witness Kirkpatrick to express an opinion ‘£ that the release of the air brake in front of the depot was not proper operation of the locomotive.” See Jones v. Norfolk Southern Ry. Co., 176 N. C., 260, 97 S. E., 48; Ohio & Indiana Torpedo Co. v. Fishburn, 61 Ohio St., 608, 56 N. E., 457, 76 Am. St. Rep., 437.

Appellant next claims that one of counsel for plaintiff was guilty of misconduct because of the character of the argument made by him in the closing argument to the jury.

We have carefully examined that argument in its entirety, and it is our unanimous conclusion that no error prejudicial to the appellant’s substantial rights occurred in argument.

The claimed error in the charge of the trial court involves the following circumstances of the trial:

The court had given to the jury, at the request of the defendant, several instructions before argument, and, after argument, had fully instructed the jury, and had confined its instruction on the subject of damages to the following:

■ “You will consider the nature and extent of the plaintiff’s injury, the shock to his nervous system, the pain and suffering he has undergone, the impairment of his earning capacity, the future pain and suffering which you find the plaintiff is reasonably certain to undergo, and the permanency of his injury.

“In considering the question of decreased earning capacity you will take into account the plaintiff’s age at the time of the injury, his state of health and ability to earn money, and the amount of his earnings at the time he was injured. Remember it is your duty, if you find the plaintiff should recover, to award him such an amount of money that will fairly and justly compensate him for his injury and not an amount that will extravagantly compensate him. Be just and fair to both plaintiff and defendant.”

At the conclusion of the charge, one of counsel for th.e defendant addressed the court as follows:

“Let the record show the defendant at this time asked the court to charge the jury that in considering the matter of damages they can consider only such loss of earnings as the evidence shows to be reasonably certain to occur in the future, that in determining such amount they can award only the present value of such amount as they find from the evidence to be reasonably certain to occur.

“The court is not requested to charge in this specific language but to charge correctly upon the subject matter covered by this request.”

Thereupon counsel and court withdrew from the court room, and later returned; and the court further instructed the jury as follows:

“The court further charges you, ladies and gentlemen of the jury, that in considering the matter of damages, in the event you feel that the plaintiff is entitled to recover, you can consider only such loss of earnings that the evidence shows to be reasonably certain to occur in the future, and that in determining such amount you can only award the present value of such amount as you feel from the evidence to be reasonably certain to occur in the future.”

The first claim is that the court committed prejudicial error by the use of the word “feel” instead of the word “find” in the foregoing charge.

The mistake was unfortunate, but there is nothing in the record to even remotely indicate that the defendant was prejudiced thereby; on the contrary, the language used in some of the charges given before argument, and at different places in the general charge, cautioning the jurors against being influenced by their feeling or sympathy, and to base their verdict upon facts as they find them to be, renders it highly improbable that such mistake milled or had any effect upon the jury in this case.

Over-nice distinctions in the use of words should not be resorted to'by reviewing courts in the examination of the. proceedings of trial courts, unless, in a, given instance, men of ordinary intelligence would be likely to be misled in the performance of their duties as jurors.

It is also claimed that it was error to direct the jury to consider impairment of earning capacity as an element of damages, because “there was no evidence from which the jury could determine the extent of impairment of plaintiff’s earning capacity.”

We are of the opinion that the rule invoked in behalf of this contention has no application to the facts and circumstances of the instant case.

Damage to earning capacity in the instant case was not special damage: it was a damage implicit in the injury, a damage plainly to he seen and understood by any jury of ordinary men and women. Moreover, the evidence disclosed that plaintiff’s vocation was that of a railroad brakeman and had been for years; that he was earning $280 a month; that his expectancy of life was about 25 years; that both of plaintiff’s legs were cut off below the knees; that by reason of his injury he had been necessarily idle for two years; and that the stumps of his legs at the time of trial were ulcerated from trying to wear his 11% pounds of artificial legs and feet.

That was not only ample evidence of present damage to earning capacity, but also some evidence of a reasonably certain loss of earning capacity to occur in the future; it was perfectly apparent to an ordinary person that in the future plaintiff could not follow his vocation of brakeman, and it was reasonably certain that there were scores of other vocations which his injuries would prevent him ¿rom following.

Our conclusion is that it was not error for the trial court to submit to the jury the question of the impairment of the earning capacity of the plaintiff as an element of damage, nor do we find any prejudicial error in any of the other respects concerning which complaint is made of the court’s charge.

It is also asserted- by appellant that the court erred in overruling the motion of defendant for a new trial because the verdict of the jury is manifestly against the weight of the evidence and is not sustained by sufficient evidence.

We are unable to say that the verdict of the jury is manifestly against the weight of the evidence, or is not sustained by sufficient evidence. There was ample evidence in this record, which, if believed by the jury, would have warranted the return of a verdict for plaintiff, and we are not disposed to disturb the jury’s finding thereon.

It is also claimed that the damages are excessive, and appear to have been given under the influence of passion and prejudice.

There were no interrogatories propounded to the jury, answers to which would have manifested the elements entering into the amount of the general verdict.

The verdict, while large, is such that we are unable to say it is excessive, taking into consideration the nature and extent of the injuries, their permanency, and the disabling character thereof.

There appears to us to be nothing in this record upon which a claim of passion and prejudice could properly be predicated.

It is our opinion that both parties hereto had a fair, full and impartial trial, free from prejudicial error, and that the judgment of the trial court should be, and is hereby, -affirmed.

Judgment affirmed.

Washburn, J., and Doyle, J., concur.


author: Wiseman, J. By the Court.

text:
    Chastang, Appellant, v. The Mutual Life Ins. Co. of New York, Appellee.

      (No. 3866
    Decided March 7, 1946.)

      Mr. Manuel Koslen, Mr. Charles J. Chastang and Mr. Wm. S. Schwarts, for appellant.

      Mr. Lewis W. Dawson, Mr. Wm. Marshall Bullitt and Messrs. Arnold, Wright, Purpus & Harlor, for appellee.
   Wiseman, J.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin county, wherein the plaintiff, appellant herein, instituted an action for a declaratory judgment which had for its purpose the determination of his rights and status as a policyholder in The Mutual Life Insurance Company of New York, defendant, appellee herein.

For the purpose of brevity, the plaintiff, Charles J. Chastang, will be referred to as “plaintiff” or “Chastang,” and the defendant, The Mutual Life Insurance Company of New York, will be referred to as “defendant company.”

The plaintiff brought the action on his own behalf and on behalf of all others similarly situated.

The record shows that, by agreement of the parties, the cause was submitted to the trial court as a class action, upon the pleadings, interrogatories, answers thereto, stipulations and exhibits. The trial court rendered two separate opinions and also a separate findings of fact and conclusions of law.

It was stipulated and agreed that Chastang, who at all times was a resident of the state of Ohio, on January 19, 1929, in Cincinnati, Ohio, had issued to him by the defendant company a $5,000 policy of insurance on his life, such policy being designated as a “Limited Payment Life Policy with Double Indemnity for Death by Accident and Increasing Total and Permanent Disability Benefits” and being policy No. 4,097,734; that Chastang kept the policy in full force and effect; and that the defendant company is a corporation organized and existing under and by virtue of the laws of the state of New York, and licensed to do business as a ■ foreign insurance company in the state of Ohio. ' It was further stipulated and agreed that the policy was issued pursuant to an application made in writing by Chastang upon a form presented to him by the agent of the defendant company for the above described insurance,' and that at the time the application was made Chastang paid such agent in cash the first semiannual premium in the amount of $66, of which $2.80 was the premium for the double indemnity benefit, and $7.95 the premium for the disability benefits.

The record discloses, and the trial court so found, that for seven years after the policy was issued to Chastang the defendant company paid to him the same dividend (in dollars and cents) per $1,000 face amount • of life insurance specified in Chastang’s policy as it paid to other policyholders of the same age, same expectation of -life, and who held exactly similar policies to that held by Chastang but which did not contain any provision for disability benefits; that beginning in 1937 and continuously through 1942, the defendant company annually paid to Chastang a smaller dividend (in dollars and cents) on his policy than it paid to other policyholders of the same age, same expectation of life, and who held exactly similar policies to that held by Chastang but which did not contain any provision for disability benefits. The record shows that the dividends (per. $1,000 face amount of insurance) which the defendant company paid during the calendar years 1930 to 1942, both inclusive, (1) on Chastang’s policy No. 4,097,734 with disability benefits, and (2) on a corresponding policy without disability benefits, were as follows:

Dividends paid on Dividends which would Policy No. 4,097,734 have been paid on cor-Year with Disability Benefits (per $1,000) responding policy issued without Disability Benefits (per $1,000)

1930 $6.74 $6.74

1931 6.82 6.82

1932 6.60 6.60

1933 5.47 5.47

1934 5.37 5.37

1935 5.42 5.42 -

1936 5.14 5.14

1937 3.34 5.98

1938 3.01 5.65

1939 1.6Í 4.25

1940 2.57 5.21

1941 .45 4.54

1942 .45 4.63

The defendant company changed its dividend payment policy in 1937, due to the fact that the defendant company and all other insurance companies for a number of years prior to 1937 found that losses suffered for disability benefits were far in excess of the anticipated losses. The insurance companies set about to rectify the situation by reducing the dividend payment on life insurance policies which contained disability benefits. The defendant company made this change in 1937 so that thereafter the dividends paid on a life insurance policy which contained disability benefits were less than the dividends paid on a life insurance policy which contained no disability benefits provision.

In 1942, the plaintiff instituted this action to have . the court determine, declare, adjudge and decree the rights, duties, obligations, status, and legal relations of the plaintiff and defendant company under the terms and provisions of the insurance contract, and under the provisions of Section 9403, General Code; and further to have the court determine, declare, adjudge and decree that under the provisions of Section 9403, General Code, and under the terms of the life insurance contract issued to the plaintiff, and in accordance with the intent of the parties thereto, it is the legal and contractual duty and obligation of the defendant company to pay to the plaintiff and to others similarly .situated for the years 1937, 1938, 1939, 1940, 1941 and 1942 the same dividend per each $1,000 face amount of life insurance in force as the defendant company paid during such years to individuals of plaintiff’s same life insurance class, who had not purchased disability benefits insurance. While the plaintiff in his petition prayed for other relief, in substance, the gist of the plaintiff’s action is as herein stated.

At once we are met with thé contention that the court was without jurisdiction. The question as to whether the court has jurisdiction of the subject matter can be raised at any stage of the case. It is contended that the plaintiff seeks relief which would require the court to exercise visitorial powers over the defendant company, it being a foreign corporation. The principle of law involved is very well established and stated in the second paragraph of the syllabus of the case of Relief Assn. v. Assurance Society, 140 Ohio St., 68, 42 N. E. (2d), 653, as follows:

“Courts of Ohio are without jurisdiction to entertain an action against a foreign corporation where the result of granting the relief asked would be to interfere with the management of such corporation or the exercise by the board of directors of such corporation of a discretion vested in them by the laws of the state of creation or domicile of the corporation.”

See, also, Ellis v. Mutual Life Ins. Co. of New York, 237 Ala., 492, 187 So., 434; 11 Ohio Jurisprudence, 718.

Does the relief sought in the instant case require this court to exercise visitorial powers over the defendant company? We do not think so. The gist of plaintiff’s action is to “determine, declare, adjudge and decree the rights, duties, obligations, status and legal relations of plaintiff and all others similarly situated and defendant company under the terms and provisions of the insurance contracts * * * and under the provisions of Section 9403 of the General Code of Ohio.” The relief sought will not interfere with the internal management of the defendant company or in any manner disturb the board of directors in the exercise of a discretion vested in them by the laws of the state of New York. This court is asked to determine the rights of the plaintiff and all others similarly situated in light of the action of the defendant company, which can be done without interfering with the internal management of, or the exercise of visitorial powers over, the defendant company.

Plaintiff in his first, second, fourth, sixth and seventh assignments of errors, contends in substance that the trial court committed prejudicial error in determining that Section 9403, General Code, did not apply, but that Section 9404, General Code, did apply, in determining the plaintiff’s rights, and that the trial court committed prejudicial error in not requiting the defendant company to continue paying dividends according to its established custom and practice and in failing to hold that the agreement of life insurance and the agreement of disability benefits insurance are two separate and distinct agreements of insurance. •

The one vital question for the court to determine, around which all other matters revolve, is whether the policy of insurance issued to Chastang consisted of two separate contracts, to wit, (1) for life insurance, and (2) for disability benefits, each of which must be considered as an entire separate contract; or whether the. disability benefits feature of the policy was an integral part of one life insurance- policy, and the policy regarded as one entire contract. There are no reported eases in Ohio, consequently this case becomes one of first impression. In cases where this issue has been raised, the courts have uniformly held that the policy constituted one entire contract. Rhine v. New York Life Ins. Co., 248 App. Div., 120, 273 N. Y., 1, (1936), 6 N. E. (2d), 74, 108 A. L. R., 1197; Rubin v. Metropolitan Life Ins. Co., 251 App. Div., 382, 278 N. Y., 625 (1938), 16 N. E. (2d), 293; Barnett v. Metropolitan Life Ins. Co., 258 App. Div., 241, 285 N. Y., 627, (1941), 33 N. E. (2d), 554; Sullivan v. Penn Mutual Life Ins. Co., 100 F. (2d), 560 (C. C. A. 7) (1938); Blackburn v. Home Life Ins. Co. of New York, 19 Cal. (2d), 226, 120 P. (2d), 31 (1942); and Pratt v. Mutual Life Ins. Co. of N. Y., 157 Kan., 710 (1944), 145 P. (2d), 113; Maynard v. Mutual Life Ins. Co.. 179 Tenn., 267, 165 S. W. (2d), 385.

The gist of the plaintiff’s case is that if the insurance contract is separable he would possess a life insurance contract separate and apart from the disability benefits provision and that on the life insurance contract he would be entitled to receive the same dividend as is received by holders of life insurance policies which did not contain the disability benefit provision. If the plaintiff’s contract of insurance is regarded as one entire contract, he cannot prevail.

In the instant case, the disability benefits provision of the life insurance contract was issued in connection with and as a part of a policy of ordinary life insurance. The disability benefits provision of the policy could not be continued in force independently of the death benefit, consequently the disability benefits provision cannot stand alone as an independent contract. The disability benefits provision was written into and was interwoven with and dependent upon the life insurance provision and was an integral part of the policy. Even, where the disability benefits insurance provision was printed upon a separate rider page which was attached to the policy of life insurance, it has been held that the rider was a part of the life insurance contract and both documents constituted one entire contract; Rubin v. Metropolitan Life Ins. Co., supra; Blackburn v. Home Ins. Co. of New York, supra.

The plaintiff contends that, inasmuch as the semiannual premium in the amount of $66 was broken down to- show that $2.80 was the premium for the double indemnity benefit and $7.95 was the premium for disability benefit, the court would be justified in concluding that the policy of insurance was separable and that by mathematical calculation the premium for life insurance . amounted to $55.25 and was in payment of a contract of life insurance, and that $7.95 was the premium in payment of a disability benefits contract. The stipulation in the policy of the amount of the-premium for the double indemnity benefit and for disability benefits was made under instructions of the Superintendent of Insurance, so that if the policyholder wished to terminate the disability benefits feature he would be advised as to the amount of the premium which would be due on the life insurance policy alone. We hold that the policy of insurance held by the plaintiff constituted one entire contract.

The plaintiff contends that he should receive the same dividends on the life insurance feature of his policy as are received by other holders of life insurance policies of the same age, same expectation of life, and who. held exactly similar policies to that held by the plaintiff, but which did not contain any provision for disability benefits, and that any losses which the defendant company has suffered greatef than were anticipated on the disability benefits provision of the insurance contract should not operate to reduce the dividends which the plaintiff claims are due him on the death benefit provision of the insurance contract. The plaintiff cites Section 9403, General Code, enacted in 1910, which provides as follows:

“No life insurance company doing business in this state shall malfb or permit any distinction or discrimination in favor of individuals between the insured of the same class and equal expectation of life in the-amount of payment of premiums, or rates charged for policies of life or endowment insurance, or in the dividends or other benefits payable thereon, or in any other of the terms and conditions of the contracts it makes; nor shall any such company, or any agent thereof, make any contract of insurance or agreement as to such contract, other than is plainly expressed in the policy issued thereon.” (Italics ours.)

Plaintiff contends that the defendant company since 1937, in paying to him and to others similarly situated a smaller dividend than was paid to those holding life insurance contracts which did not provide for disability benefits, made a distinction and discrimination between policyholders in the same class and with equal expectation of life, in violation of the provisions of Section 9403, General Code. However, it is contended by the defendant company that Section 9403, General Code, does not apply but that Section 9404, General Code, does apply, which latter section in its present form was amended in 1933 and in part provides as follows:

“No life insurance company, doing business in this state, whether on the group insurance plan or any other plan, shall make or permit any distinction or discrimination in favor of individuals between insurants of the same class and equal expectation of life in the amount or payment of premiums or rates charged for policies of insurance, or in the dividends or other benefits payable thereon, or in any other of the terms and conditions of the contracts it makes; nor, except as otherwise expressly provided by law, shall any such company, or any agent thereof, make any contract of insurance or agreement as to such contract, other than as plainly expressed in the policy issued thereon.” (Italics ours.)

The trial court in its first opinion found that Section 9403, General Code, applied and had not been violated by the defendant company. , In a subsequent opinion the trial court held that Section 9403, General Code, was not applicable inasmuch as that section sought to control “policies of life or endowment insurance,” and that Section 9404, General Code, did apply since it was broader in scope and applied to “policies of insurance,” which aptly described the policy in question. We approve of the judgment of the trial court. However, this court holds that whether Section 9403 or 9404 is applied to the facts in this case, no distinction or discrimination has been made by the defendant company, and that such statutes have not been violated in the manner'in which it has declared and paid dividends on the policy of insurance held by the plaintiff. Both sections of the statute provide that no distinction or discrimination shall be made between “insured of the same class and equal expectation of life.” Clearly, the risk assumed by the defendant company under the plaintiff’s policy was greater than it would have been if the contract of insurance had not contained a provision for disability benefit insurance.

This court holds that the plaintiff, being insured by the defendant company in a life insurance contract with a disability benefit provision as an integral part of the contract of insurance, is not in the same class as the holder of a similar life insurance policy which does not contain a disability benefit provision. We find that the defendant company equitably apportioned its divisible surplus to the plaintiff and other policyholders in the same class.

The plaintiff contends that the trial court committed prejudicial error in refusing to admit in evidence exhibit B. The.record shows that exhibit B was a certain book published by the defendant company in 1926- and described as “The Mutual Life Insurance Company of New York — Premium Rates, Guarantees and Rules, Regulations ¿md Instructions for Local Agents and Solicitors.” In the stipulation, the parties agreed that “said book shall be received in evidence.” However, in such stipulation the parties agreed also that they should have the right to except ‘ ‘ to any and all statements in the stipulation, upon the ground of incompetency, irrelevancy, or immateriality.” In view of the latter stipulation, we are of the opinion that the defendant company reserved the right to object to the introduction of exhibit B into the evidence. Exhibit B contained a printed statement as follows: “The guaranteed cash, loan, and other values are the same as those in policies, without disability benefits, and such values will increase each year in the same manner, and the amount of dividends will be the same as if each premium had been paid when due instead of being waived.” Nowhere does the record disclose that the plaintiff had any knowledge of, or in any way relied oil, any'statement in “Exhibit B” at the time he purchased the insurance. The trial' court found and this court holds, that exhibit B did not constitute any part of the plaintiff’s contract of insurance, that the entire contract between plaintiff and defendant company was contained in the application for insurance and the policy which was subsequently -issued. Pratt v. Mutual Life Ins. Co. of New York, supra. We hold that prejudicial error was not committed in refusing to admit exhibit B into the evidence.

Plaintiff contends that the trial court committed prejudicial error in its separate findings of fact No. 5 by going outside the record. We do not find that the record in this case supports the contention of the plaintiff.

Furthermore, the plaintiff contends that the judgment of the trial court is against the manifest weight of the evidence. We are of the opinion that there is ■ ample evidence in this case to support the judgment of the trial court. The judgment of the trial court is affirmed.

Judgment affirmed.

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

(Decided March 7, 1946.)

On Motion to dismiss assignment of error and brief.

By the Court.

The cause is submitted on motion by plaintiff to dismiss defendant’s assignment of error and brief, and to strike its brief from the files.

Counsel for plaintiff regard defendant’s brief in the nature of an assignment of error. We do not so regard it. It is not prepared as an assignment of error and does not comply with the rules of court in regard thereto. Furthermore, counsel for the defendant assured this court they they were not urging an assignment of error in this case.

Inasmuch as the court is of opinion that the brief is not an assignment of errors and counsel for defendant have conceded the point, the matter is a closed question in this court. If counsel for plaintiff is concerned about the status of defendant’s brief as constituting an assignment of errors, the conclusion which we have reached may be carried into the journal entry. The whole matter becomes of little moment in view of the fact that the opinion released this day is an affirmance of the judgment of the trial court and it is only in the event of a reversal that the court could consider the defendant’s brief as an assignment of errors. That branch of the motion will be overruled.

The motion to strike defendant’s brief from the files on the ground that it was not filed within the time prescribed and does not comply strictly with Rule VTI' as to form, will be overruled. The court finds these facts to be true; however, it lies within the broad discretion of the court to waive any defect as to form which is not of a serious nature, and in order to expedite the final disposition of -the ease, to permit the defendant’s brief to be filed as within rule. Waller v. Leach, 44 Ohio Law Abs., 127.

Motion overruled.

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


author: Miller, J.

text:
    White, Appellant, v. White, Appellee.
    (No. 3792
    Decided October 15, 1945.)

      Mr. Charles R. Doll and Mr. Frank Shearer, for appellant.

      Mr. Ray E. Htighes and Mr. H. A. Glascor, for appellee.
   Miller, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas, Division of Domestic Relations, Franklin county, Ohio.

On June 25, 1943, the plaintiff filed her petition asking for a divorce, custody of the minor children, support money for the children, alimony for herself and other equitable relief. ‘

To this petition the defendant filed an answer and cross-petition. The matter came on for hearing upon the pleadings and the evidence on March 18, 1944. At the conclusion of the hearing the court dismissed the petition of the plaintiff, awarded the defendant a divorce on his cross-petition, granted the plaintiff custody and control of the three minor children of the parties and ordered the defendant to pay the sum of $250 per month as support money for the plaintiff and the children.

On October 18, 1944, the defendant filed his motion, containing two'branches, to change and modify the order, judgment and decree of March 18, 1944. In the first branch of the motion the defendant sought a change of custody of the three children previously awarded to the plaintiff, and an order confining their custody and control to him. The court sustained this branch of the motion in part by awarding two of the children to the custody of the defendant. In the second branch defendant sought to modify the order awarding plaintiff $250 per month as and for permanent alimony and support for their children. This branch was sustained and the plaintiff was awarded $10 per week for the support of the child retained in her custody. In its order, judgment and decree of March 18,1944, the court found in part as follows:

‘ ‘ The court finds that the plaintiff is and has been a good mother and that she has given their children reasonably good care as such.”

. On the hearing of defendant’s motion to modify, the court permitted evidence to be introduced tending to show the unfitness of the plaintiff as custodian of the children at and before the time she was awarded their custody, to wit, March 18,1944. This evidence was objected to and at the close of all the evidence the plaintiff moved the court to expunge from the record all such evidence. This motion was overruled and exceptions noted.

The most recent pronouncement on this question is found in the case of Rauth v. Rauth, 73 Ohio App., 564, 57 N. E. (2d), 266. There the court said in paragraph three of the syllabus:

“In a hearing on a motion to modify an order awarding custody of a child, evidence tending to show the unfitness of the custodian of the child, at or before the time such award was made, is not admissible. Evideuce only of the unfitness of the, custodian since the time of the award may be so introduced.”

We have no transcript of the testimony offered in the original hearing. Counsel for the appellee urge that counsel for the appellant waived objections to this evidence when one of them said, “I have no objection to the whole record being introduced.” It is admitted in the record that-several witnesses who did not testify at the original hearing testified at the hearing on the motion. These witnesses told of the drinking habits of the plaintiff and of her association with a married man prior to-March 18, 1944. The defendant-urges that these witnesses refused to testify in the original proceeding, and that, since such evidence was not obtainable then, it now becomes admissible. Such we do not think to be the law. In this hearing the court was limited to hear only testimony showing conditions which árose subsequent to the granting of the decree on March 18, 1944. We do not have the means of knowing what evidence influenced the' court in arriving at its decision, but we feel that statements of the plaintiff’s association with a certain married man prior to the decree would have a direct bearing upon the fitness of this plaintiff to have the custody of these minor children. We, therefore, feel that this was pre- ■ judicial error.

The appellant contends further that the court erred and abused its discretion in allowing her only $10 per week as support money for the daughter allowed to remain in her custody. This contention seems to us to be well grounded as the defendant testified that his gross earnings as a practicing physician averaged anywhere from $1,200 to $1,500 per month. This child is entitled to maintenance in conformity with the defendant’s station in life and an allowance of only $10 per week would be inadequate to meet this requirement. This was error and an abuse of discretion.

Tbe defendant contends that tbe court erred in allowing tbe election of the child, Phyllis, aged ten years, to control as to which parent she should live with. This selection was made in compliance with Section 8033, General Code, and was properly made. We find no error under this assignment.

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

Judgment reversed.

Hornbeck, P. J., and Montgomery, J., concur.

Montgomery, J., of the Fifth Appellate District, sitting by designation in the Second Appellate District.