author:
Hornbeck, P. J.
      Geiger, J.,

text:
    Auferheide, Appellant, v. Thal, Appellee.
    (No. 1847
    Decided June 21, 1945.)

      Mr. Paul L. Birt and Mr. A. K. Meclc, for appellant.

      Messrs. Landis, Ferguson, Bieser & Greer,- for appellee.
   Hornbeck, P. J.

TMs case is before us on appeal on questions of law from a judgment of the Common Pleas Court of Montgomery county, Ohio, wherein the court directed the jury to return a verdict in favor of the defendant.

The issues may be gathered from the allegations of the amended petition and the answer thereto. Briefly, the amended petition states that on November 14,1942, and previous thereto, the defendant was the owner of and in control of a building located on East Fifth street in the city of Dayton, Ohio; that the basement of the building was rented by the defendant to and was used by the Booth Furniture Company; that the first and second floors were rented by the defendant to The Gilbert Shoe Company, which company in turn sublet the second floor to Alfred S. Daneman, doing business as the Allied Furniture Company; that Daneman rented the fourth floor from the defendant; that the defendant was in control of the elevator and passageway to and from the same; that a power freight elevator had been installed in the rear of the building for the use of defendant’s tenants, and was in use on such date; and that plaintiff was an employee of the "Allied Furniture Company and it was a part of his duties to operate the elevator between the first and fourth floors of the building.

It is further asserted that on November 14 the plaintiff thought the elevator was at the first-floor landing and attempted to enter what he thought was the elevator cage but the elevator had, without his knowledge, been raised to the second floor, and was at the second floor; that there was no gate or other obstruction to bar his entrance into the elevator shaft; and that he fell into the elevator pit and injured himself as described.

It is alleged that his injuries and the damage resulting therefrom, were caused by the negligence of the defendant in four particulars, which may be epitomized as follows:

1. That the defendant maintained the elevator for the use of the tenants, and that it was in such a worn-out and defective condition that the gate thereto at times did not close when the elevator was moved up and down from one floor to another.

2. That the elevator shaft was not equipped at the first-floor landing with self-closing gates, and that the failure to so equip it was in violation of the General Code of Ohio.

3. The defendant, in violation of the requirements of the General Code, failed to have the elevator lighted.

4. The defendant, in violation of such requirement, failed to have the landing edges of the threshold of the first floor and the car platform plainly visible.

Plaintiff asked judgment in the sum of $25,000.

The defendant, Joseph Thai, for his answer, admitted that he owns the building; and that the first and second floors were rented to The Gilbert Shoe Company, which in turn sublet the s'econd floor to the Allied Furniture Company, the plaintiff’s employer. Defendant also admitted that the. plaintiff fell and received some injury. He denied all other allegations, especially the allegations of negligence charged against him, but said that the plaintiff’s injuries were due solely to the plaintiff’s own negligence; that the plaintiff, in attempting to board the elevator in this building without first determining that the elevator was at the landing on the first floor, and in walking into a place where he could not see what was before him, was chargeable with negligence which contributed to cause his injury.

Before the case had been submitted to the jury, a motion was made by the defendant for an instructed' verdict on the grounds, first, that the plaintiff had failed to show any negligence on the part of the defendant in connection with the maintenance or operation of the elevator, all the testimony indicating that, although the defendant owned the property, he was out of possession and control insofar as the elevator was concerned, and, second, that the plaintiff’s own testimony had clearly raised a showing of contributory negligence on his own part, which had not been refuted in any manner by any other testimony of the plaintiff.

After this matter was argued by counsel to the court, the court sustained the motion.

Errors complained of are (1) refusal to permit plaintiff to introduce testimony that the defendant carried insurance on the elevator, upon the issue of the control of the elevator by the defendant; (2) permitting the defendant to tell the jury that one of the lessees, partially using the elevator carried elevator insurance; (3) allowing the defendant to make other statements as to insurance; (4 and 5) allowing counsel for defendant to suggest that plaintiff received compensation for his injuries from the Industrial Commission and received expenses from the Industrial Commission; (6, 7 and 8) sustaining the motion for a directed verdict, overruling plaintiff’s motion for a new trial, and entering judgment against plaintiff; (9) not allowing plaintiff to offer proof that there was a type of elevator gate which would have prevented the accident claimed to have occurred; and (10) not allowing proof of a former accident through the operation of the elevator.

Without going into further detail, it would appear, in addition to those things admitted in the pleadings, that the plaintiff was engaged by The Allied Furniture Company and operated the elevator for it in moving furniture between the first and fourth floors. It appeared that on the day of the accident, at lunch time, plaintiff brought the elevator to a stop on the first floor and, before leaving the second floor, turned out the lights there and thereby also the small light in the elevator, which had no controlling switch in the elevator. There was no light at the elevator platform. It appears that the elevator was used by the tenants on the several floors, at least one of which rented of the defendant. The approach to the elevator was from a loading platform at the rear of the store room, by a narrow passageway between stacked articles.

The gates, which were intended to close automatically the elevator shaft when the elevator was removed, had, at times, failed’to function properly.

When plaintiff reached the position with respect to the elevator shaft, where he thought the gates were in position, they were not there having stuck when the elevator was moved to the second floor. Plaintiff stepped off the platform into the elevator pit, fell and injured himself.

Errors Nos. 6 and 7. The major and controlling assignment of error relates to the action of the trial court in directing a verdict against plaintiff because of his contributory negligence. In our judgment, upon the evidence in its entirety, there was an issue of fact on this question which should have been submitted to the jury for determination.

The two leading cases in Ohio cited are Flury v. Central Publishing House of Reformed Church, 118 Ohio St., 154, 160 N. E., 679, and McKinley v. Niederst, 118 Ohio St., 334, 160 N. E., 850.

Paragraph three of the syllabus of the Flury case is:

“The testimony of a plaintiff invitee, in an action for negligence, that from a lighted room he opened a closed metal-covered sliding door, was confronted with total darkness beyond the door, that he then stepped into such total darkness, to his injury, without any knowledge, information or investigation as to what such darkness might conceal, raises an inference of negligence on his part which, in the absence of any evidence tending to refute such inference, will require a directed verdict for the -defendant.” (Emphasis ours.)

Paragraph two of the syllabus in the McKinley case is as follows:

“The testimony of a plaintiff, tenant in an apartment house housing several tenants, with halls and stairways in common, that she passed out of her apartment into a hallway in total darkness, with full knowledge of the existence of a stairway leading downward only a few steps from thé door of her apartment, and proceeded forward in the direction of such stairway seeking to descend 'the same and fell to her injury, raises an inference of negligence on her part, which, in the absence of any evidence tending to refute such inference, justifies the trial court in directing a verdict in defendant’s favor.” (Emphasis ours.)

The emphasis directs attention to the differentiating facts between the cited cases and our case.

The plaintiff in his employment, under instructions, was required to turn out the light on the second floor which operation also turned out the light in the elevator. There was no light control by a separate switch in .the elevator and no light on the landing platform. Pursuant to instructions, the plaintiff, on entering the areaway leading to the elevator, closed the doors to. avoid creating drafts throughout the building. The plaintiff regularly entered the building and proceeded through the areaway to the elevator, knowing the landmarks and how to make his progress to the elevator with the little light he had to guide him and by objects with which he was familiar. The entrance to the elevator into which the plaintiff moved upon opening the doors was not completely dark. In both cited cases the injured person stepped into pitch-darkness. In the instant case, when the plaintiff opened the door there was enough light for him to see the elevator shaft and the gates, had they been in place, and to see through the shaft to the other side of the pit. He testified he saw the landing platform and also what, in the dim light, he thought were the gates in front of the elevator. What he actually observed was an object, an elevator gate, which had been placed there but a short time before on the opposite side of the opening to the shaft and which could have been mistaken for the gates at the entrance to the elevator on the side from which the plaintiff would enter. In the situation with which he was confronted, he took other precautions which on other occasions had been sufficient to protect him. The fact that, if he had observed many other and different precautions, he might have avoided the accident is not sufficient to support the conclusion that, as a matter of law, he was contributorily negligent. It is quite true that there was ample support for a determination by the jury that his negligence contributed to cause his injury, but the right to have a jury pass‘on this question should not have been taken from plaintiff.

Error No. 1. The court should have admitted the insurance policy which the defendant carried to indemnify him for damages which he might be required to pay by reason of' the improper condition of the elevator. This was a circumstance, along with other testimony, reflecting upon the question whether the defendant exercised control over the elevator, the landing platform and the entrance thereto, particularly, at the first floor.

Error No. 8. Although it was a close question, there was an issue of fact whether defendant exercised some joint control over the elevator at the place where the plaintiff was injured.

Under the contract between the Gilbert Shoe Company and the Allied Furniture Company, the latter agreed “to make all repairs in the interior of the building * * * and to indemnify lessor, The Gilbert Shoe Company, from damages * * * by reason of any repairs or improvements which may be made by said lessee on said premises but that it would not make any major repairs without the written consent of lessor.” The extent to which the Allied Furniture Company made repairs on the elevator, the landing platform and equip•ment is not. developed with particularity in the record. At the time this contract was made, the Booth Furniture Company was not a tenant in the building and afterwards was rented the basement and possibly an upper floor by the defendant. Defendant stated in his testimony that, at the time the Booth Furniture Company’s lease was under consideration, he became impatient with the Gem City Elevator Company and made a deal with the Otis Elevator Company to do the work on the elevator. Thus, notwithstanding the contract between the Gilbert Shoe Company and the Allied Furniture Company, the defendant leased to the Booth Furniture Company the basement which necessitated use of the elevator by the Booth Company. If it be conceded, which is in doubt, that the Allied Furniture Company agreed with the Gilbert Company unconditionally to maintain the landing platform and the gates at the first floor, the jury might well have found that the defendant elected to exercise some control over this equipment at least at the first floor where the elevator was loaded and unloaded. The question whether he was in joint control, insofar as the plaintiff was concerned, is factual.

Error No. 9. It was the obligation of those who provided the elevator in defendant’s building to make use of the best and most improved machinery and devices in such general practical use in freight elevators as was required by the tenants in the Thai building'. The plaintiff did not develop or proffer testimony of sufficient weight to make a question for the jury whether the gates in use on the elevator were such as was required to be provided under the law. The evidence, as offered, on this subject was properly refused.

Assignment of error No. 4 is well taken.

Other assignments or error are not well made.

The judgment is reversed and the cause remanded.

Judgment reversed and cause remanded.

Miller, J., concurs.

Geiger, J.,

dissenting. Without going into detail, but after reading the record in its entirety and all the pleadings filed in this case, I arrive at the conclusion that the court was not in error in instructing a verdict in favor of the defendant. The plaintiff had sufficient knowledge of the operation of the elevator and was in charge of such operation without any control by the owner.' lie also had knowledge that the elevator at times failed to respond as it should, in that the gates did not fall back into a protecting position after the elevator cage had left one floor for another. But all this was known to the plaintiff. Had he availed himself of the information that he had and recognized the possibility that the elevator might have been moved from the floor where he had left it half an hour before, the accident would not have occurred. See paragraph three of the syllabus of Flury v. Central Publishing House of Reformed Church, 118 Ohio St., 154, 160 N. E., 679, and the second paragraph of the syllabus of McKinley v. Niederst, 118 Ohio St., 334, 160 N. E., 850.

The fact that the owner may have sought additional protection through an additional policy did not put him in control of the operation of the elevator, which control remained with the several tenants of the building using the elevator.


source: Caselaw Access Project

author: Guernsey, P. J.

license: Public Domain

text:
    In re Estate of Shapes.
    (No. 461
    Decided February 21, 1944.)

      Mr. C. Cecil Huntsman, for appellant Mary Alice Shafer.

      Mr. Donald A. Dietsch, for appellee Trudie L. Shafer.
   Guernsey, P. J.

This is an appeal on questions of law and fact from a judgment of the Probate Court of Hancock county, overruling exceptions of Mary Alice' Shafer to the inventory of the estate of Alvin Ross Shafer, deceased, filed by Aubrey R. Moul, administrator with the will annexed, and adjudging that Trudie L. Shafer is entitled to the exempt property set off to her in schedule A-l and to the year’s allowance set off to her in schedule P in the inventory and appraisement.

In her exceptions to thé inventory, Mary Alice Shafer, who is the sole legatee and devisee under the last will and testament of Alvin Ross Shafer, pleads the terms of a separation agreement made and entered into by and between the decedent Alvin Ross Shafer and Trudie L. Shafer, his wife and surviving spouse, under date of J une 16, 1943, as barring Trudie L. Shafer from any rights in the property set off to her as exempt in schedule A-l and to the year’s allowance set off to her in schedule P, as the surviving spouse of Alvin Ross Shafer.

To these exceptions, Trudie L. Shafer filed a reply in which she pleads that she is the only true and lawful surviving spouse of Alvin Ross Shafer, deceased, and that the separation agreement dated September 13, 1941, which the exceptor cites as a bar, is and was null and void and ineffective as against her for the following reasons:

“That said separation agreement itself recites and shows that no actual consideration was paid to Trudie L. Shafer other than one-half of the money and property already legally due her independently of the agreement. There was absolutely no consideration to support the release provisions of the agreement, quoted in full by the exceptor. That said agreement was a fraud upon Trudie L. Shafer, as she received absolutely nothiiig for the alleged release provisions and' was obtained by Alvin Ross Shafer taking his wife to his own counsel and without having any legal counsel of her own to explain the highly technical nature of the instrument itself.

“That after signing the instrument, Trudie L. Shafer and Alvin Ross Shafer became reconciled and lived together and specifically agreed between themselves that the separation agreement be abrogated and have no legal effect whatsoever.”

The prayer in this reply is that the court dismiss the exceptions filed to the allowance set forth in the inventory ; for an order setting aside the alleged separation agreement; and for such other and further relief as may be proper.

To this reply, the exceptor, Mary Alice Shafer, filed a pleading which she designated “answer and reply of Mary Alice Shafer” and which amounts to a general denial of the allegations thereof.

Neither the exceptions filed by Mary Alice Shafer nor the pleading designated “answer and reply of Mary Alice Shafer” contains any averments which show the contract of separation to have been fair, reasonable and just to Trudie L. Shafer under the then existing circumstances.

Under the provisions of Section 6, Article IV’of the Constitution of Ohio the only appellate jurisdiction conferred on the Court of Appeals is in the trial of chancery cases, that is, a retrial of the facts in such cases.

As the jurisdiction of the Court of Appeals is prescribed by the Constitution it cannot be enlarged-or diminished by statute.

The question therefore arises as to whether this case is a chancery case, within the purview of such constitutional provision, and retriable upon the facts.

By the provisions of Section 8, Article IY of the Constitution of Ohio, jurisdiction in probate and testamentary matters and in the settlement of accounts of executors and administrators is conferred upon the Probate Court. By virtue of the constitutional provisions conferring such jurisdiction, the Probate Court has plenary power fully to dispose of any of those matters properly before the court, and such power comprehends the power to adopt and apply such remedies, legal or equitable, as may be suitable for such purpose. Insofar as these matters are concerned, Section 10501-53, General Code, prescribing that the Probate Court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is otherwise limited or denied by statute, adds nothing to the jurisdiction of the court.

However, the procedure of the court in the exercise of its jurisdiction may be prescribed by statute, and is so prescribed in matters of exceptions to accounts and inventories.

The jurisdiction conferred on the Probate Court by the Constitution comprehends jurisdiction of all matters which were the subject of adjudication in the instant case, and although the attack on the validity of the separation agreement, made by Trudie L. Shafer in her reply to the exceptions of Mary Alice Shafer to the inventory, invoked a remedy which ordinarily may be invoked only in chancery cases, such remedy was incidental to the exercise by the Probate Court of the jurisdiction conferred on it by the Constitution, and did not change the character of the case from a probate and testamentary matter, and an accounting by an executor or administrator, into a chancery case. See In re Estate of Gurnea, 111 Ohio St., 715, 146 N. E., 308; Squire, Supt. of Banks, v. Bates, 132 Ohio St., 161, 5 N. E. (2d), 690.

The court, therefore, sua sponte determines that'the case is not a chancery case; that, therefore, it does not have jurisdiction of the appeal as an appeal upon questions of law and fact; and that the appeal stands as an appeal upon questions of law only and will be so considered, a bill of exceptions, assignments of error and briefs of the parties having been heretofore filed herein perfecting the appeal as an appeal upon ■questions of law.

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

Trudie L. Shafer was married to Alvin Ross Shafer, the decedent, on September 10, 1940, following his divorce on such date from Mary Alice Shafer.

After her marriage she expended $2,976.46 in improvements to the real estate occupied by herself and husband, the title to which was in the name of Alvin Ross Shafer.

Under date of October 26, 1940, Alvin Ross Shafer executed and delivered to her a deed conveying to her an undivided one-half interest in such premises.

The premises mentioned are the'premises referred to in the separation agreement.

Under date of September 13, 1941, Trudie L. Shafer and Alvin Ross Shafer entered into a separation agreement in writing, which is in the words and figures following :

“These articles of separation, made and concluded at Findlay, Ohio, this 15th day of September, 1941, by and between A. R. Shafer and Trudie L. Shafer, husband and wife, witnessetfi:

“That whereas, the parties have agreed upon an immediate separation, and

“Whereas, the said A. R. Shafer has this day paid to the said Trudie L. Shafer the sum of nineteen hundred and seventy-five dollars ($1,975), the receipt of which is hereby acknowledged, said sum being the value of the interest of the said Trudie L. Shafer in the real estate formerly occupied by the parties hereto, and on this day sold to T. B. Clymer and Winifred Clymer, and for the value of the interest which the said Trudie L. Shafer had in one (1) farm tractor, and

“Whereas, the said Trudie L. Shafer has assigned, conveyed and transferred to said A. R. Shafer the following personal property:

■ “1. All of the household furniture which the said A. R. Shafer had in the residence lately occupied by said parties before the said A. R. Shafer and Trudie L. Shafer were married.

“2. All of the farm machinery, implements and farm equipment now owned by the said A. R. Shafer and located on the real .estate formerly occupied by said parties.

“3. All growing corn and ear corn on the premises formerly occupied by the parties, being approximately three (3) acres.

“4. 1 1938 Ford sedan automobile.

“And whereas, in consideration of the premises, the said A. R. Shafer does hereby assign, convey and transfer to said Trudie L. Shafer any and all interest which he may have in all of the household furniture, goods and effects in the residence lately occupied by said parties, except that part which he reserved to himself hereinabove, and

“Whereas, the said parties have agreed, and hereby do agree, to sell all of the hay, oats, wheat, livestock and chickens which are on the premises formerly occupied by the parties hereto and divide the proceeds received from the sale thereof equally between them.

“Now therefore, in consideration of the premises, each party hereto does hereby release and discharge the other from all obligations of support, and from all other claims, rights and duties arising dr growing out of said marital relation; and said parties mutually agree that each party hereto may freely sell or otherwise dispose of his or her own property, by gift, deed, or last will and testament, and each party is by these presents hereby barred from any and all rights or claims by way of dower, inheritance, descent, distribution, allowance for twelve (12) months’ support, right to remain in the mansion house, and all rights or claims as widow, widower, heir,' distributee, survivor, or next of kin, and all other rights or claims whatsoever, in or to the estate of the other, whether real or personal, and whether now owned or hereafter to be acquired, which may, in any manner, arise or accrue' by virtue of said marriage.

“And each party hereto, for the considerations aforesaid, does hereby release and relinquish to the other, and to the heirs, executors, administrators, devisees, legatees and assigns of the other, all claims or rights of dower, inheritance and a distributive share, or as widow, widower, heir, survivor, distributee or next of kin, in and to all of the estate of the other, whether now owned or hereafter acquired, and all claim or right to an allowance for twelve (12) months’ support, or to reside in the mansion house, and- all other rights or claims whatsoever, which may, in any manner, arise or accrue by virtue of said marriage.

“And each party further agrees that the other party shall have full liberty to dispose of all his or her property, real and personal, whether now owned or hereafter acquired, during life, or by last will and testament, and that, upon tbe death of such party, all of his or her property, real and personal, which shall not have been disposed of, during life or by last will and ■ testament, shall descend to, vest in and be distributed to, such person or persons as would be entitled to the same by the statutes of descent and distribution of the state of Ohio then in effect, had the surviving party died during the life of the other party.

“And each party hereby waives any right which he or she may have, to administer the estate of the other party, upon the death of such other party.

“Each party hereto further agrees, upon request of the other, to execute and acknowledge any and all deeds or other instruments of release or conveyance to enable such other to sell, convey, mortgage, or otherwise dispose of or encumber his or her own real property, free from any apparent right of dower therein.

“In witness whereof the parties have hereunto set their hands the day and year first above written.

4 ‘ Signed and acknowledged ' A. R. Shafer in presence of: '

“Marcus C. Downing

“Edythe W. Morgan Trudie L. Shafer. ”

The terms of the separation agreement were fully executed by the parties thereto, and at the time of the execution thereof the parties separated and lived apart.

On a number of occasions subsequent thereto, and prior to February 28, 1942, Trudie L. Shafer came to and was seen at the residence which Alvin Ross Shafer maintained at Rawson, Hancock county, and Alvin Ross Shafer, at such residence, stated to Mrs. Carnahan, his sister, that he was “so glad that him and Trudie could live together,” and it was stated-that Trudie told Mrs.. Carnahan she had been there several weeks.

Trudie L. Shafer did not testify as to whether she and Alvin Ross Shafer had lived together at any time subsequent to the execution of the separation agreement , and there is no evidence tending to prove that she and Alvin Ross Shafer specifically agreed that the separation agreement should be abrogated, as alleged in Trudie L. Shafer’s reply to the exceptions.

There is no evidence showing ,what property, if any, either of the parties had at the time of the execution of the separation agreement, which is not covered by the agreement, or as to the state of health of either of the parties or their respective ages at the time of the execution thereof, or as to other then existing circumstances of the parties, except as hereinbefore mentioned.

Mary Alice Shafer, the exceptor, appellant herein, is the divorced wife of Alvin Ross Shafer and was, at the time of his death, living in his home and keeping house for him.

As shown by the transcript of docket and journal entries of the Probate Court, Alvin Ross Shafer died on May 22, 1943.

The errors which the appellant assigns may be summed up as follows:

1. Error in overruling the motion of exceptor for a new trial.

2. Error in that the finding and judgment are against the manifest weight of the evidence.

3. Error in that the finding and judgment are contrary to law.

4. Error in the admission of evidence, offered by Trudie L. Shafer under her reply to the exceptions, to which the appellant objected.

5. Other errors apparent upon the face of the record.

The claimed errors will be considered in the order mentioned.

1. An inspection of the record discloses that no motion for new trial was filed. No motion having been filed, error cannot be predicated upon the overruling of a motion for new trial, although the judgment entry recites that a motion for a new trial was overruled.

2. No motion for new trial having been filed, the. weight of the' evidence may not be reviewed by this court. 2 Ohio Jurisprudence, 264, Section 228.

3. Under this assignment of error appellant makes two general contentions. First. That, although the validity of the separation agreement was put' in issue by the reply of Trudie L. Shafer to the exceptions, within six months from the appointment of the administrator of the estate of decedent, such attack was unauthorized in law and did not, within the purview of Section 10512-3, G-eneral Code, constitute an attack on the validity of such agreement, within six months after the death of the decedent, the Probate Court was without power to set the agreement aside, and the agreement -is, under the provisions of such section, deemed valid. Second. That there is no evidence that the provisions of the separation agreement were unfair, or that the parties thereto had by their conduct rescinded or abrogated the same.

The appellee contends that the filing of a motion for new trial in the trial court is a condition precedent to the signing and allowance of a bill of exceptions; that, as no motion for new trial was filed in this case, the bill of exceptions should be stricken from the files; and that the errors demonstrable thereby, including this assignment of error, may not be reviewed by this court.

In support of this contention she relies on the case of Edward Wren Co. v. Retail Clerks Union Local No. 190, 28 Ohio Law Abs., 95, a decision of the Court of Appeals of the Second District which announces the rule that the filing of a motion for a new trial is a condition precedent to the allowance of a bill of exceptions.

We have carefully checked the reported cases in Ohio, including the cases of State, ex rel. Porter, a Taxpayer, v. Clark et al., Bd. of Commrs., 112 Ohio St., 133, 146 N. E., 815, and Chapman v. Manix, 17 Ohio Law Abs., 16, cited in the opinion in the Wren case in support of this rule, and find no cases supporting the announced rule, except the cases of Schwenkel v. Schwenkel, 23 Ohio Law Abs., 321, and Stale, ex rel. Warner, v. Smith, 23 Ohio Law Abs., 313, which were decided by the same Court of Appeals.

It has been uniformly held that the filing of a motion for new trial upon the ground that the finding of a court or jury is against the manifest weight of the evidence and the overruling of such motion by the trial court are conditions precedent to a review of the weight of the evidence.

It has also been held that the filing of a motion for new trial upon the grounds of misconduct of the prevailing party, accident or surprise which ordinary prudence could not have guarded against or newly discovered evidence, and the overruling of such motion by the trial court are conditions precedent to a review of assignments of error based on such grounds. Weaver v. Columbus, Shawnee & Hocking Valley Ry. Co., 55 Ohio St., 491, 45 N. E., 717; 2 Ohio Jurisprudence, 263, Section 227.

But we find no reported cases, other than the cases decided by the Court of Appeals of the Second District, above-mentioned, holding that the filing and overruling of motions for new trial are conditions precedent to the review of any other ground of error.

An error of law for want of proof arises where there is no evidence to establish one or more facts the existence of which is essential to recovery. Turner v. Turner, 17 Ohio St., 449, 452.

Where the trial court is not called upon to weigh the evidence but to apply the law when the ultimate facts are not in dispute, the case assumes ,a legal phase and a motion for new trial need not be filed in order to review claimed error in the application of the law to the facts. Jacob Laub Baking Co. v. Middleton, 118 Ohio St., 106, 120, 160 N. E., 629; Inglish v. Industrial Commission, 125 Ohio St., 494, 182 N. E., 31, 83 A. L. R., 210.

■ In the cases of Travelers' Indemnity Co. of Hartford, Conn. v. M. Werk Co., 33 Ohio App., 358, 169 N. E., 584, and Fairley v. Wilmington College, 19 Ohio Law Abs., 380, it was held that although the Court of Appeals cannot pass on the weight of the evidence in the absence of a motion for new trial, such motion is not necessary to a determination of the question whether there was any evidence to support plaintiff’s claim.

' From these holdings we conclude that the rule announced in the Wren case, supra, is erroneous; that the filing of a motion for a new trial and the overruling of same are not conditions precedent to the allowance of a bill of exceptions; that, consequently, the bill of exceptions should not be stricken; and that this court may review this assignment of error and the errors complained of on this appeal notwithstanding the fact that no motion for a new trial was filed.

Section 10512-3, General Code, prescribes that any antenuptial or separation agreement to which the decedent was a party shall be deemed valid unless action to set it aside is begun within six months after the appointment of the executor or administrator of the estate of such decedent, or unless within such period of time the validity of such agreement is otherwise attacked.

As hereinbefore mentioned, the Probate Court has constitutional jurisdiction of probate and testamentary matters, and the accounts of executors and administrators. Such constitutional jurisdiction necessarily comprehends jurisdiction of inventories and exceptions ■ thereto, as inventories are essential to the accounting of executors and administrators. Incident to this constitutional jurisdiction in the premises, the Probate Court has plenary power to dispose of any matters properly before it, including the power to adopt and apply remedies which are legal or equitable in their nature.

The reply of Trudie L. Shafer to the exceptions constituted a direct attack on the validity of the separation agreement which the court, in the exercise of its constitutional jurisdiction, had power to determine. This attack was- made within six months from the date of the appointment of the administrator so it was made within the time prescribed by Section 10512-3, General Code, and was made in such a manner that it was necessary for the court, in order to dispose of a matter properly before it, to determine whether the agreement was valid.

The case of Juhasz v. Juhasz, 134 Ohio St., 257, 16 N. E. (2d), 328, 117 A. L. R., 993, is not in point as in that case no attack on the validity of the agreement (antenuptial) was made in the Probate Court in a form in which the validity thereof could be adjudicated by the court.

For the reasons mentioned, the first contention of appellant, under this assignment of error, is without merit.

As above mentioned, the second contention of appellant under this assignment of error is that there is no evidence that the provisions of the separation agreement were unfair, or that the parties thereto had by their conduct rescinded or abrogated the same.

As will be noted from the statement of facts, the separation agreement provided for an immediate separation of the parties and a division of property between them, and was fully executed.

Agreements of this character which have been executed are not subject to rescission, revocation or abrogation by reconciliation of the parties and the resumption of marital relations alone, but only by clear agreement between the parties that they should be so revoked. Lucas v. Lucas, 26 Ohio Law Abs., 664; Leedy v. Malcolm, 8 Ohio Law Abs., 640.

In the instant case, although there is evidence tending to prove reconciliation and resumption of marital relations, there is no evidence tending to prove any agreement between the parties that the separation agreement should be rescinded, revoked or abrogated. The evidence therefore is insufficient in law to sustain the finding of the trial court that the agreement was abrogated.

Whether the separation agreement was fair presents another question.

The validity of separation agreements is determined in acccordance with the general rules applicable to transactions and agreements between parties occupying confidential relations with each other. Section 7999, General Code; Hoagland v. Hoagland, 113 Ohio St., 228, 148 N. E., 585; Garver, Exr., v. Miller, 16 Ohio St., 527.

In the last-cited case it was held that a parol post-nuptial agreement between husband and wife, made in view of a voluntary separation, and fully executed on the part of the husband, whereby, for a consideration which, in the light of all the circumstances of the parties at the time the contract is made, is fair, reasonable and just, the wife relinquishes all claim to a distributive share of the husband’s personal estate, in case she survive him, will be upheld and enforced in equity; but that it is an essential element of the foregoing proposition that the terms of the contract shall be fair, reasonable and just to the. wife, in view of all the circumstances of the parties at the time when it was made; and that such contract can be made available, in pleading, as a full defense to an action by the wife for a distributive share of her deceased husband’s estate, only when accompanied by such averments as show it to have been fair, reasonable and just to her. Otherwise expressed, if the contract be relied on in pleading, either as a cause of action or as a matter in defense, the pleading must contain averments which show the contract to have been fair, reasonable and just to the wife under the circumstances existing at the time of making. If such becomes a question of fact, the proof must lead the mind of the chancellor satisfactorily to the same conclusion. It is not sufficient, either as a matter of pleading or of proof, to set up the naked contract and its execution by the husband. In addition to this, facts must be averred or proved, or both, as the exigencies of the case may require, showing that the terms of the contract in favor of the wife were fair, reasonable and equitable under the circumstances of the parties at the time it was made. See, also, 2 Pomeroy’s Equity Jurisprudence (4 Ed.), 2038, Section 956.

Applying the foregoing rule to the instant case, it was not essential that the exceptor, in her exceptions, plead facts showing the contract to have been fair, reasonable and just to the wife, Truche L. Shafer, under the then existing circumstances, as the contract, not • having been attacked as prescribed by Section 10512-3,' General Code, was deemed valid, but when the contract was attacked by Trudie L. Shafer, the widow of the decedent, in her reply to such exceptions, it became, incumbent upon the exceptor to plead and prove the facts mentioned.

The exceptor failed to plead such facts and, as shown by the statement of facts,' there are no facts in evidence from which a. determination conld be made that the contract was fair, reasonable and jnst to the wife, Trudie L. Shafer, under the circumstances existing at the time of* its execution.

In this situation it was the duty of the trial court, by reason of the failure of pleading and proof on the part of the exceptor of these essential facts, to hold that the contract was invalid, and the finding of the court in that respect is not erroneous.

4. The appellant, in her briefs herein, fails to specify any errors in the admission of evidence so that this assignment will not be considered by the court.

5. The appellant also fails' to specify in her briefs any errors under this assignment so the court is not required to and will not consider this assignment.

. For the reasons mentioned, we find no error in any of the particulars assigned and argued in appellant’s brief, and the judgment of the Probate Court is affirmed at costs of appellant, and the cause remanded for execution.

Judgment affirmed.

Jackson and Middleton, JJ., concur.


author: Skeel, P. J. Lieghley, J., Morgan, J.,

text:
    Bankers Indemnity Ins. Co., Appellant, v. Cleveland Hardware & Forging Co., Appellee.
    (No. 19874
    Decided February 26, 1945.)

      Messrs. Payer, Bleiweiss S Mollison, for appellant.

      Mr. T. J. Duffy and Mr. Charles Sanford, for appellee.
   Skeel, P. J.

This cause comes to this court on appeal on questions of law. The plaintiff brought this action in the Common Pleas Court, seeking judgment against the defendant, in the sum of $9,933.70.

The facts which are the foundation of plaintiff’s ' claim are as follows:

The plaintiff issued a policy of insurance to indemnify The Burdett Oxygen Company against loss because of injuries sustained by any one other than an employee through its negligence in the conduct of its business. The Cleveland Hardware & Forging Company, defendant herein, required the use of nitrogen gas as a part of one of its manufacturing processes in its die casting department., The Cleveland Hardware & Forging Company claimed to have ordered from The Burdett Oxygen Company, just prior to the accident hereinafter described, two tanks of nitrogen gas. The Burdett Oxygen Company claims that oxygen was ordered. The Burdett Oxygen Company delivered oxygen gas and when it was put into use by The Cleveland Hardware & Forging Company’s employees a, severe explosion occurred and three of its employees were killed. The Cleveland Hardware & Forging Company was a subscriber to the state industrial employees insurance fund; and the dependents of the three deceased employees were paid the full'benefits provided for by the workmen’s compensation law in a total sum exceeding $20,000. Thereafter the dependents of the three deceased employees brought separate wrongful death actions against The Burdett Oxygen Company claiming that the company was negligent in delivering oxygon, a highly dangerous and explosive gas, instead of nitrogen; and that as a proximate result of such negligence the deceased employees came to their death.

The plaintiff herein was called upon, because of its insurance contract with The Burdett Oxygen Company, to defend such actions. After investigating the eases it concluded that the negligence of the defendant in {lie instant action was the primary cause of the death of its employees, and that if there was any negligence on the part of The Burdett Oxygen Company it was secondary to that of such defendant. The plaintiff {hereupon notified the defendant in the instant case of its intention to hold it responsible to the full extent of the plaintiff’s losses arising out of the wrongful death actions. The plaintiff then compromised such actions, paying out on behalf of The Burdett Oxygen Company $9,933.70 and upon being subrogated to the rights of The Burdett Oxygen Company instituted this cause seeking judgment against the defendant for the full amount which plaintiff was compelled to expend to settle the wrongful death cases.

Upon trial to the court, the right to a jury having been waived, the case was submitted upon an agreed statement of facts which in substance sets forth the facts as above stated and further provided that the plaintiff could introduce further evidence to support its contentions. The court refused to hear further evidence and upon motion by the defendant entered judgment for the defendant on the ground that the defendant, having complied with the Workmen’s Compensation Act, was by the Constitution of the state of Ohio relieved of any further liability arising out of the injury or death of any of its employees while at work and acting within the scope of his employment.

There are two questions presented for our consideration. The* first question is: If it be admitted that both the hardware company and the oxygen company were liable to the next of kin of the deceased employees of the hardware company, then, as between the hardware company and the oxygen company is there any ground upon which it could be found that the hardware company was primarily liable and the oxygen company secondarily liable for such damages, so that if the oxygen company was compelled to pay such damages it • would have a right to recover the damages thus paid from the hardware company?

The first cause of action of the petition of the plaintiff does not allege facts- which, if established by the evidence, would give the oxygen company the right to judgment upon the theory that the hardware company was primarily liable and the oxygen company secondarily liable for the deaths of the hardware company’s employees.

The basis of the claim of the plaintiffs in the wrongful death actions was that the defendant therein, The Burdett Oxygen Company, negligently supplied oxygen gas in containers, that failed to disclose the kind of gas contained therein, instead of nitrogen gas which The Cleveland Hardware & Forging Company claims to have ordered. If these facts were established and they were found to be a proximate cause of the deaths of The Cleveland Hardware & Forging Company’s employees,. The Burdett Oxygen Company would be liable to the full extent of the pecuniary loss sustained by the next of kin. And this would be true even though The Cleveland Hardware & Forging Company was also negligent in permitting its employees to use the gas and such negligence was also a direct and proximate cause-of the deaths.

The rule to be applied under such circumstances is stated in 30 Ohio Jurisprudence, 769, Section 46, as follows: •

“Stated broadly, the rule in Ohio is that if an injury is tlie result of neglect to perform a common duty resting on two or more persons, the injured party may, at his election, sue all of the parties owing the common duty jointly, or sue each separately, although there may have been no concert of action between them.” See, also, Village of Mineral City v. Gilbow, 81 Ohio St., 263, 90 N. E., 800, 25 L. R. A. (N. S.), 627; North Amherst Home Telephone Co. v. Jackson, an Infant, 4 C. C. (N. S.), 386, 16 C. D., 89.

Under these circumstances, if one of the tort-feasors • fully compensates the person injured, such tort-feasor can not recover from the other tort-feasor on the basis that the negligence of the former was more remote in point of time or was comparatively of less consequence in causing the accident. Once it is determined that a person was negligent ahd that such negligence was a proximate cause of an injury, the right of a recovery against him is complete and is independent of the active negligence of any other person that may assist in causing the same injury.

In the case of Wery v. Seff, 136 Ohio St., 307, 25 N. E. (2d), 692, the fifth paragraph of the syllabus is as follows:

“When two or more persons, under circumstances creating primary accountability, directly produce a single, indivisible injury by their concurrent negligence, they are jointly and severally liable, even though there is no common duty, common design or concerted action. ’ ’

In that case the negligence of a father and son was involved. The father negligently put his automobile in the hands of his son, a minor under sixteen years of age, in violation of a city ordinance, and the son while thus in charge of the motor vehicle, negligently injured the wife of plaintiff. On page 312, the court said:

“In the present case no primary and secondary liability is involved. Under the averments of the petition, father and son are primarily liable, because the alleged injuries were attributable to their coexisting and combined negligence; the wrongful conduct of the one coupled with that of the other brought about the result complained of. Consequently, they are properly join-able in one action. 30 Ohio Jurisprudence, 769, Section 46.

“Should the elder Seff pay the damages he could not recover over against his son. ‘There is no right of contribution between persons whose concurrent negligence has made them liable in damages.’ Royal Indemnity Co. v. Becker, 122 Ohio St., 582, 173 N. E., 194, 75 A. L. R., 1481. See, also, U. S. Casualty Co. v. Indemnity Insurance Co., 129 Ohio St., 391, 397, 195 N. E., 850, 853.”

The exception to be found to this rule is where a party by his affirmative act negligently injures another under such circumstances that because of the responsibilities of a third party under the law, although such third party committed no affirmative act of negligence, such third party may also be held responsible for such injury. Under such circumstances the person who created the dangerous condition is said to be primarily liable and the other is secondarily liable. In the event the one secondarily liable is compelled to respond in damages to the injured party, ho may recoup his loss from the one who actually created the danger. Such wrongdoers are not joint tort-feasors and cannot bo joined as defendants in the same action by the party injured.

Herron v. City of Youngstown, 136 Ohio St., 190, 24 N. E. (2d), 708, is a leading ease on this question. The plaintiff there was injured while walking over a steel trapdoor which was a part of the sidewalk covering a basement.entrance to the abutting property. The steel door sagge.d under the weight of Herron when he stepped upon it, causing the handle on the door to protrude upward above the surface of the door and the wálk, so that his foot caught in the stirrup-handle, throwing him to the ground and fracturing his leg. The door was maintained for the exclusive benefit of the property owner and lessees. It was claimed that the door had been in a state of disrepair and in a dangerous condition for a number of years and although the city of Youngstown had nothing to do with its construction or maintenance, it had full notice of its defective condition.

The court in that case held:

“1. When a city becomes liable in damages by reason of the' sole negligence of an owner of abutting property on a public street in creating and maintaining for his own use and benefit a trapdoor in a sidewalk, the property owner is primarily liable and the city secondarily liable to the injured party, and, if the city is obliged to respond in damages to the injured party under its liability, it will be subrogated to the right of the injured party and may recover over its loss from the property owner, the one primarily liable.

“2. Where a liability arises against both a city and an owner of property abutting in a public street in favor of a party injured by the sole negligence of such property owner in creating and maintaining for his own use and benefit a trapdoor in a sidewalk, such injured party may sue either the property owner, primarily liable, or the city, secondarily liable, or both in separate actions, as a judgment against one, until satisfied, is no bar to an action against the other, the injured party being entitled to satisfaction from either the city or property owner, or from both.”

And on page 195, the court said:

“It is not important as to how the liability of the owner and the lessees to the plaintiff, if any, for the creation or maintenance of the nuisance which caused the injury to plaintiff, shall be shared or allocated between them; but it is important that the owner or lessees, singly or in combination, were the actual wrongdoers in the maintenance of this nuisance in the sidewalk. ■ If it was wrongfully maintained, they became liable to plaintiff for all actionable negligence and all the damages to the plaintiff arising from such negligent acts. That they were the actual wrongdoers, if the plaintiff suffered any legal wrong, cannot be questioned. They were the only actors who could be chargeable with any actual wrongdoing.

"But because of the responsibility of a municipality under the law, for the safe condition of its streets and alleys, it may also become liable to persons who are injured upon them through defects which were not created or maintained by the municipality itself. Section 3714, General Code.” See, also, Morris v. Woodburn, 57 Ohio St., 330, 48 N. E., 1097; Bello v. City of Cleveland,, 106 Ohio St., 94, 138 N. E., 526; Canton Provision Co. v. Gauder, a Minor, 130 Ohio St., 43, 196 N. E., 634; First Natl. Bank of Warren v. Gillen, 73 Ohio St., 394, 78 N. E., 1125.

The same result may obtain where one is injured by a servant and his master’s liability is created solely by the doctrine of “respondeat superior.” Losito v. Kruse, Jr., 136 Ohio St., 183, 24 N. E. (2d), 705, 126 A. L. R., 1194.

There is another claim set forth in the plaintiff’s petition which should be noticed. The plaintiff charged that the actions for wrongful death of the three employees of The Cleveland Hardware & Forging Company were brought against The Burdett Oxygen Company because the defendant in the instant action wrongfully informed the legal representatives of the deceased employees that the employees came to their death as a result of the negligence of The Burdett Oxygen Company, when in truth, the accident causing the deaths resulted from the sole negligence of The Cleveland Hardware & Forging Company. Even if these facts be admitted, there could be no recovery from the defendant either by The Burdett Oxygen Company or by any one who has succeeded to its rights by subrogation.

If The Burdett Oxygen'Company was not negligent or if there was negligence on its part which was not a proximate cause of the explosion, then certainly the actions for wrongful death could not have succeeded. Under such a state of facts, The Burdett Oxygen Company could not recover from The Cleveland Hardware & Forging Company money paid in settlement of a claim for which it was not legally liable. The allegation that The Cleveland Hardware & Forging Company wrongfully told the representatives of the deceased employees that The Burdett Oxygen Company’s negligence caused the accident, is a mere expression of opinion and standing alone does not state a cause of action for the return of money expended in the settlement of such cases.

The second question presented is: Do the provisions of the Workmen’s Compensation Act and constitutional provisions in relation thereto, providing against the common-law liability of an employer who is a contributor to the insurance fund as provided by law, protect such employer from further liability to a third person who has been sued by the representative of a deceased employee of such employer, such employee having been killed while acting in the course and scope of his employment, where the action against such third person is founded on alleged acts of negligence on his part as a proximate cause of such employee’s death and where such third person then brings action against the employer to recoup what he paid in settlement of such claim against him on the theory that the negligence of the employer was the primary cause of the employee’s death and that such third person was only secondarily liable?

We find no decided cases in Ohio on this question. The constitutional provision (Section 35, Article II) is as follows:

“For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen’s employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, determining the terms and conditions upon which payment shall be made therefrom. Such compensation shall be in lieu of all other rights to compensation, or damages, for such death, injuries, or occupational disease, and any employer who pays the premium or compensation provided by law, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease. * * *”

Section 1465-70, G-eneral Code, provides in part as follows:

“Employers who comply with the provisions of Section 1465-69 shall not be liable to respond in damages at common law or by statute, for any injury, disease or bodily condition, whether such injury, disease or bodily condition is compensable under this act or not, or for any death resulting from such injury, disease or bodily condition, of any employee, wherever occurring, during the period covered by such premium so paid into the state insurance fund, or during the interval of time in which such employer is permitted to pay such compensation direct to his injured or the dependents of his killed employees as herein provided.”

The constitutional provision for an insurance fund for the benefit of injured workmen, passéd to support and strengthen the statutes then in effect, and statutes on the subject of workmen’s compensation completely changed the theory of liability of an employer to his employees for injuries sustained by them while acting in the course and scope of their employment, from the common-law doctrine of negligence, modified in some respects by the employer’s liability acts passed in the late nineties, to the theory that compensation shall be paid upon a limited basis, regardless .of fault to all employees injured while acting within the course and scope of their employment except where such injuries are purposely inflicted. This change in employer-employee relationship constituted one of the greatest beneficial social developments of modern times. In order to accomplish its purpose of protecting the injured employee it was found necessary to make a complete change in the theory of the employer’s responsibility. The employer, except in the case of a self-insurer, is compelled to contribute designated sums based upon the amount of his payroll to maintain the insurance fund. This fund is under the complete control of the Industrial Commission, a state agency, and the employer has no power whatever in the matter of determining whether one of his employees is entitled to share in the fund because of injuries sustained. In an action by an employee seeking the right to participate in the fund, the employer is not a proper party to the action.

For the obligations thus imposed upon the employer under the Workmen’s Compensation Act the employer is relieved of any liability at common law because of injuries, death or occupational diseases that befall his employees while acting in the course and scope of their employment, and it makes no difference whether the claim is presented by the employee or one who claims the right of retribution because of damages which he has .been compelled to pay to such employee.

There is another section in the act which supports the theory that the Legislature intended to relieve the complying employer from all common-law liability. That is Section 1465-93, General Code, which provides that a minor is deemed sui juris “for the purposes of this act, and no other person shall have any cause of action or right to compensation for an injury to such minor workman *. * V’

The courts have held that such provision is an absolute bar to a loss of service action by a parent. 42 Ohio Jurisprudence, 592, Section 19.

We conclude, therefore, that the plain intention of the Legislature was to provide against any liability at common law of a complying employer because of the death or injury of its employees. The trial court was correct in ruling for the defendant on its motion for judgment upon the pleadings, the opening statement and the agreed statement of facts, and such judgment is affirmed.

Judgment affirmed.

Lieghley, J., concurs in judgment.

Lieghley, J.,

concurring. I concur in the judgment of affirmance pronounced by the majority in the event that this court has jurisdiction to decide the issues presented. It is my opinion that this court does not have jurisdiction so to do.

On April 11, 1944, the case came before the trial court and jury was waived. Judgment was rendered for defendant on motion for judgment upon the pleadings and opening statement of counsel. A motion for a new trial was. filed on the following day by plaintiff.

On September 7, 1944, the trial court vacated the judgment of April 11,1944, and proceeded to substitute a judgment as of April 11, 1944. A judgment was thereupon rendered for defendant on the pleadings, stipulation of facts and the opening statement of counsel. No motion for a new trial was filed to this entry of judgment.

Whether the motion for a new trial is deemed to have been filed to either entry of judgment, or both, it did not result in a re-examination of the facts. The facts were stipulated and in considering the motion for a new trial the trial court was called upon to do no more or less than apply the law to those facts.

The notice of appeal was not filed until October 2, 1944, being over 20 days after the entry of judgment of September 7, 1944, and filed therefore too late, as in either event the filing and pendency of the motion for new trial did not toll the statute.

Morgan, J.,

concurs in paragraph three of the syllabus and in the judgment. I recognize the cogency of the opinion expressed by Judge Lieghley. However, if it be held that this court has jurisdiction to decide this case on its merits, it is my opinion that the case should be affirmed on the sole ground that inasmuch as defendant'was a subscriber to the workmen’s compensation fund and the statutory compensation for the death of its three employees referred to in plaintiff’s petition has been paid, the defendant is protected from any liability to the plaintiff in this case on any theory of primary and secondary liability, by reason of the provisions of Section 35, Article II of the Constitution of Ohio and Section 1465-70, G-eneral Code.

Decisions by New York courts and a federal decision construing the New York Constitution and laws on a similar question have been cited, in which cases a different result, was reached.

Rappa v. Pittston Stevedoring Corp., 48 F. Supp., 911, 912; Westchester Lighting Co. v. Westchester County Small Estates Corp., 253 App. Div., 764, 1 N. Y. Supp. (2d), 14, affirmed in Westchester Lighting Co. v. Westchester County Small Estates Corp., 278 N. Y., 175, 15 N. E. (2d), 567, which also answered certified question (253 App. Div., 903, 3 N. Y. Supp. [2d], 393).

It is doubtful to what extent the above decisions apply to the Ohio Constitution and laws which are different from'those in New York. If they are applicable I do not believe that they state the rule which should be followed in Ohio.

The provision in Section 35, Article II of the Ohio Constitution that “any employer who pays the premium or compensation provided by la'w, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease” is intended to give and does give to the employer who complies with the conditions complete protection from any and every claim against him based on the death of or injuries to any of his employees. I am the more constrained to take this position because in the thirty years in which we have had workmen’s compensation laws in Ohio, and during the time in which Section 35, Article II has been in force, our attention has not been called to any case where a claim similar to this one has been allowed or asserted.

Employers in this státe have been rightly encouraged to rely that by paying the premiums and compensation provided by the workmen’s compensation laws of the state they have complete protection from any further claims of any kind by reason of the death of or injuries to its employees, except where specific exceptions may be made by statute and none such is claimed in this case.

To hold that employers are not so protected would undermine, in my opinion, the basic principles of workmen’s compensation in this state.


author: Geiger, J.

text:
    Hayman, Admx., Appellant, v. The Pennsylvania Rd. Co., Appellee.
    (No. 3804
    Decided July 12, 1945.)

      Messrs. Benoy, Saxby $ Sebastian, for appellant.

      Messrs. Burr, Porter, Stanley & Treffinger and Mr. Charles S. Gillispie, for appellee.
   Geiger, J.

This matter is before this court on appeal on questions of law from a judgment of the court below sustaining defendant’s motion to strike certain portions of the petition and, -plaintiff not desiring to further amend her petition upon the order of the court, in which the motions to strike were treated as a demurrer, dismissing the petition.

The petition presents an unusual state of facts, and, because of the matters considered by the court, it becomes advisable to recite the allegations of the petition somewhat more at length than might otherwise be justified.

The plaintiff, Roberta C. Hayman, is the administratrix of the estate of Richard Ellis Hayman, deceased. One of the lines of the defendant extends in an easterly and westerly direction through Franklin county and through the village of Black Lick. The tracks of the company extending through such village consist of three parallel contiguous tracks which pass over a public highway known as the ReynoldsburgNew Albany road. The defendant maintains a flasher signal light at such crossing, which flasher is set in operation when locomotives or trains stand upon or approach the grade crossing.

On the date in question, plaintiff’s decedent was driving northwardly on the Reynoldsburg-New Albany road in his automobile and approached' the tracks at the grade crossing, stopping before attempting to cross over the railroad tracks, at which time the flasher signal was in operation. He looked toward the east. It was stated that on many occasions prior to the date, the flasher signal was in operation on account of locomotives and cars standing near or approaching slowly the crossing. At the time the decedent so approached the railroad tracks and brought his car to a stop, the defendant was backing a locomotive, without cars attached, in a westerly direction upon the northernmost track and gave no signal of approach by either bell or whistle. The tender of the locomotive was approaching the highway at a time when the plaintiff’s decedent, after looking to the east, started his automobile forward from a standing position and attempted to cross over the crossing and had so crossed the northernmost track of the crossing that the front and a large part of his automobile was across the track, when the locomotive came into collision with his automobile. The locomotive was known and used as a “pusher” or “helper” locomotive. The crew in charge of the locomotive was composed of an engineer, fireman and signalman. The tender was provided with a cupola having a seat and glass windows and, at the time of the accident, opened in a westerly direction, and was constructed to provide a place for carrying the signalman whoso view of the tracks was unobstructed while the locomotive was backing. The rules of the defendant provided that these three employees must keep a lookout for obstructions on the track, receive and transmit to the engineer necessary signals and do all things necessary for the safe movement of the locomotive. At the time of the collision, the cupola was occupied by the signalman, but he was not paying attention to his duties and was not looking forward, so that, when the “defendant’s tender collided with the decedent’s automobile, said signalman failed to see said automobile on the crossing and failed to see, hear or feel the impact of said collision, and failed to give a signal to the engineman to immediately stop said locomotive.”

At the same time, neither the engineman nor the fireman was looking forward in the direction in which the locomotive was traveling, and neither of them saw or discovered the decedent’s automobile upon the tracks until after the automobile had collided with a switch standard.

The petition then states the unusual incident of the accident and asserts that the tender of the locomotive struck the decedent’s automobile at the rear thereof, caught it up on the north side and pushed it to the west a distance of approximately 1;000 feet before stopping. It is asserted that the front end of the automobile protruded beyond the tender of the locomotive, north of the track, and continued to ride on the tender for approximately 1,000 feet and, approximately 400 feet - west of the highway crossing, the west portion of the automobile so protruding on the north of the track struck a switch standard located north of and immediately contiguous to the tracks, causing the standard to be broken, oft. The decedent was thrown from the automobile to the ground on the defendant’s right of way at a point approximately 580 feet from the highway. It is alleged that the backing locomotive, at the time of the collision, was proceeding, at a speed of 20 miles per hour, and that, had either the engineman, fireman or signalman been looking forward and the signal been given by the signalman or fireman to the, engineman, the locomotive could have been instantly stopped before the automobile struck the standard. It is asserted that in and by the collision of the automobile with the switch standard and solely by reason thereof, plaintiff’s decedent received the injuries from which he died. It is further alleged in substance that during all of such distance, while the plaintiff’s decedent was in a position of peril from which he could not extricate himself, the engineman in charge of the locomotive failed and neglected to stop the same, and “during all of said distance * * * each member of the crew in violation of their duties, were not looking forward in a westerly direction, and each failed to observe persons attempting to give warning of the peril in which . the plaintiff’s decedent was placed, while decedent’s automobile was being carried on the tender as aforesaid. Notwithstanding the noise incident to the collision, and the force of the impact of the collision of the tender with his automobile at said grade crossing, neither of the members of said crew in charge of the locomotive discovered the peril of the plaintiff’s decedent in time to stop said locomotive and avoid the accident. ’ ’

It is stated that decedent’s death was solely and approximately caused by the negligence and carelessness of the defendant’s servants in charge of the lo-comotive in not discovering decedent’s perilous position.

The defendant filed a motion to.strike out certain matters in the petition, which it designates in three branches. The motion of the defendant in all branches was sustained. Branches one and two, are not of importance enough to comment upon. The whole question centers around the action of the court in striking what is designated as the 13th paragraph of plaintiff’s petition, which we have quoted above. The final entry in the case is to the effect that the cause came on to be heard on the defendant’s motion, and the court, on consideration thereof, found that the motion as to each of the three branches was well taken and sustained the same. “Plaintiff, not desiring to amend or further plead, the court treats said motion as to the petition as a demurrer to the petition, and treating said motion as such demurrer, finds that the same is well taken, and does sustain the same, and does order the plaintiff’s petition to be dismissed at the cost of the plaintiff. Plaintiff excepts.”

From this final entry, the plaintiff appeals.

Under the peculiar facts plead, there might be a close question as to whether the last clear chance doctrine might be available to the plaintiff or whether the negligence of both plaintiff’s decedent and defendant concurred and continued and, therefore, the plaintiff would have no right of recovery. However, this matter, so far as the plaintiff is concerned, is definitely settled by her statement in her brief, to wit, “plaintiff bases her case on the doctrine of the ‘last clear chance.’ It presents a clear and unadulterated case of ‘last clear chance’ or as called by many authorities, the ‘humanitarian doctrine.’ ”

Defendant contends that in this state the last clear chance doctrine cannot be availed of without the specific allegation that the défenclant’s servants actually saw the decedent in a position of peril and actually knew same. This brings the matter in controversy sharply to the attention of the court. If the plaintiff has clearly invoked the doctrine of the last clear chance, then it is for the court to determine whether, under the allegations of the «petition, there was the necessity of statement to the effect that the defendant’s servants actually saw or knew of the perilous condition of the plaintiff’s decedent after his car was first struck by the backing locomotive. Counsel for both sides have given their attention largely to the question of the allegations necessary in the determination of the issues necessary in the application of the doctrine of the last clear chance.

There is no doubt that there has been some confusion in the judgments of the several courts of Ohio, and they are not easy to reconcile. Also, it appears that in many, other jurisdictions, a rule has been established definitely contrary to that asserted by the defendant in this case as to the necessity of actual notice before the defendant can be held liable on account of its failure to exercise its duty under- the doctrine of avoiding the injury to a person after he by his own negligence is placed in a perilous position.

It is quite apparent that the plaintiff in this case has not only failed to assert that the defendant was actually advised of the perilous-position of the decedent, but the allegations of the petition are definitely in denial of any such claim. The plaintiff repeats in several different forms the allegations that the defendant, due to the negligence of its servants, was not advised of the perilous position of the plaintiff’s decedent and had no knowledge of the fact that the automobile was riding on the tender of the locomotive before the automobile struck the standard, causing decedent’s death. If the law of Ohio is to the effect that the plaintiff might recover after plaintiff’s decedent had, by his own negligence, placed himself in a position of peril from which he could not extricate himself, and the defendant, through its own negligence, failed to discover the perilous position of the plaintiff’s decedent so as to avoid the accident, then it would appear that the question as to the liability of the defendant should have been submitted to the jury under proper instructions. However, if the law of Ohio is to the ' effect that the defendant, under conditions narrated in the petition, must first have been actually advised of. the peril of plaintiff’s decedent and, after such knowledge, hy its own negligence had failed to exercise proper care to avoid the accident, then the petition does not state facts sufficient to constitute a cause of action and the court below was not in error in sustaining the. demurrer to the petition, or rather in sustaining the motion which it considered as a demurrer.

This case has been presented by both sides in a masterly manner. We shall not make a detailed examination of the position taken by either side, nor shall we give any detailed analysis of the decisions on this point in the state of Ohio.

The most pertinent case is that of Cleveland Ry. Co. v. Masterson, 126 Ohio St., 42, 183 N. E., 873, 92 A. L. R., 15, the syllabus of which is, in part, as follows:

“1. Where a plaintiff, by his own fault, has caused himself to be placed in a perilous situation, he may recover under the rule of the Oast clear chance,’ notwithstanding his negligence, if the defendant did not, after becoming aware of plaintiff’s perilous situation, exercise ordinary care to avoid injuring him.

“2. If recovery is predicated upon a state of facts invoking that rule, an instruction by the court, to the effect that if the plaintiff was guilty of such negligence his negligence would not preclude recovery, if the defendant failed to use ordinary care ‘after he saw or in the exercise of ordinary care should have seen’ the plaintiff in a dangerous situation, is erroneous. The rule, in Ohio requires the defendant to use due care after knowledge of plaintiff’s peril. (Erie Rd. Co. v. McCormick, 69 Ohio St., 45, approved and followed; the first proposition of the syllabus in Railroad Co. v. Kassen, 49 Ohio St., 230, disapproved.)

“3. A petition, setting forth a state of facts as a basis for' the application of the doctrine of the last chance but which, in that connection, merely alleges that defendant saw or could have seen the plaintiff in a perilous situation, is insufficient to invoke the rule * * *.

“4. A .plaintiff may, in his petition, plead a case of ordinary negligence and may also plead a state of facts invoking the last chance rule; and he may recover under whichever aspect the proof in the case assumes.” (Emphasis ours.)

Under the principle of the fourth paragraph of that syllabus it might have been possible for a plaintiff to so frame his pleading as to be entitled to a recovery under an allegation of simple negligence or under the doctrine of the last clear chance, whichever aspect the proof in the case might thereafter have assumed. However, as hereinbefore stated, the plaintiff in this case distinctly and exclusively relies upon the doctrine of the last clear chance and does not assert any right to claim under allegations and proof of ordinary negligence.

The Masters on case is á very interesting one and seems to state the final position taken by the Supreme Court of Ohio. Counsel for plaintiff in the instant case in their brief endeavor to minimize the effect of that case by the assertion that the facts did not justify the decision of the court.

Chief Justice Marshall, in an opinion concurring in the judgment but dissenting from the rules announced by the several paragraphs of the syllabus, reviewed in an interesting way the various cases in the state of Ohio. He stated that he concurs in the judgment of reversal upon the sole ground that the issue of the last clear chance doctrine was not made by the pleadings, and it was therefore reversible error to receive evidence upon that issue and it was also error to instruct the jury upon that issue. Although Chief Justice Marshall’s opinion is a concurring opinion, it is, as he stated, on the sole ground that the issue of last clear chance doctrine was not made by the pleadings.

The first paragraph of the syllabus in Railroad Co. v. Kassen, 49 Ohio St., 230, 31 N. E., 282, 16 L. R. A., 674, disapproved in the Master son ease, supra, is as follows : •

“It is a well settled rule of the law of negligence, that the plaintiff may recover, notwithstanding his own negligence exposed him to the risk of the injury of which he complains, if the defendant, after he became aware, or ought to have become aware, -of the plaintiff’s danger, failed to use ordinary care to avoid injuring him, and he was thereby injured.”

The Kassen case was a leading case for many years in Ohio and seems to have been largely concurred in on the ground that after Kassen had fallen from the first train the employees of the railroad were informed of his perilous position but failed to notify the second train which killed him. Some courts have taken the position that notice to the railroad employees riding on the first train from which Kassen fell was as a matter of fact notice to and knowledge to be imputed to the company which should have avoided the accident by notifying the operators of the second train.

The third paragraph of the syllabus of Erie Rd. Co. v. McCormick, Admx., 69 Ohio St., 45, 68 N. E., 571, is:

“In an action against a railroad company by one who, by his own fault is upon its track and in a place of danger, to recover for a personal injury caused by the failure of its employees operating one of its trains to exercise due care after knowledge of his peril, if is necessary to show actual knowledge imputable to the company. Railroad Co. v. Kassen, 49 Ohio St., 230, distinguished.”

On page 55 of the McCormick case, Shauck, J., stated:

“By introducing into the instruction given the phrase, ‘if the engineer in charge of the train ought, by the exercise of ordinary care, to have seen the deceased in his perilous position,’ and by other expressions in the charge involving the same conception, the court gave to the jury an erroneous view of the law. * * * upon the only ground alleged in her petition upon which she might recover there is an entire absence of evidence, to wit: the actual knowledge of the engineer of McCormick’s peril.” (Emphasis ours.)

Tracing the course .of decisions in Ohio, we.have examined the earlier cases. In Cincinnati & Zanesville Rd. Co. v. Smith, 22 Ohio St., 227, 10 Am. Rep., 729, concerning trespassing animals killed by a train, it is stated that, “if the servants of the company, having the train in charge, by the exercise of ordinary care, and with due regard to their duties for the safety of the persons and property in their charge, could have seen such animals on the track in time to have saved them, it was their duty to have done so, and for their negligence in this respect, where the owner is not guilty of contributory negligence, the company will be liable. ’ ’ (Emphasis ours.)

Of course there is a marked distinction between that case and the case at bar, and that case probably cannot be considered as an authority for the proposition that if the defendant in the case at bar could have discovered the perilous position of the decedent a recovery might be had.

Lake Erie & Western Rd. Co. v. Weisel, 55 Ohio St., 155, 44 N. E. 923, held that where the neglect of the owner of trespassing animals permits them .to go upon the right of way of the railroad company, liability on the part of the company arises.only when it is shown that injury to the animals resulted from the intentional act or gross carelessness of those operating the train.

In Drown v. Northern Ohio Traction Co., 76 Ohio St., 234, 81 N. E., 326, 118 Am. St. Rep., 844, 10 L. R. A. (N. S.), 421, it was held:

“The doctrine of ‘last chance,’ as formulated in Railroad Co. v. Kassen, * * * does not apply where the plaintiff has been negligent, and his negligence continues, and, concurrently with the negligence of defendant, directly contributes to produce the injury; it applies only where there is negligence of the defendant subsequent to, and not contemporaneous with, negligence by the plaintiff so that the negligence of defendant is clearly the proximate cause of the injury and that of the plaintiff the remote cause.

“Since the plaintiff can recover only upon the allegations of his petition, he cannot recover upon negligence which warrants the application of the rule of ‘last chance’ without alleging it in his petition.”

Although the petition of the plaintiff in the case at bar does not specifically allege the doctrine of the last clear chance, yet by inference such doctrine may be regarded as alleged, especially since plaintiff asserts that she relies upon the last clear chance.

Steubenville & Wheeling Traction Co. v. Brandon, Admr., 87 Ohio St., 187, 100 N. E., 325, holds that where a motorman operating a car upon a public street discovers, or by the exercise of ordinary care and watchfulness should discover, that the driver of a smaller vehicle is about to cross the track in front of the car, it is the motorman’s duty to use ordinary vigilance to stop or check the car in order to avoid a collision. Such a rule would more nearly apply to the duty of the operators of the train to avoid the original collision and has no application to the last clear chance rule.

West, Recr., v. Gillette, Admr., 95 Ohio St., 305, 116 N. E., 521, related to a crossing accident and it was there held that the fact that the driver of a smaller vehicle may have been originally negligent in the matter of going on the crossing will not, as a matter of law, defeat his right of recovery for the injury if the motorman of a streetcar has not used ordinary vigilance after discovering him. This of course relates to the first collision and has no direct application to the doctrine of last clear chance.

It was held in Pennsylvania Co. v. Hart, 101 Ohio St., 196, 128 N. E., 142:

“It is error for the trial court * * * to charge the doctrine of ‘last clear chance’ where there is no evidence tending to prove a state of facts bringing the case within the rule.”

In that case, it was stated by Robinson, J., on page 200:

“For the defendant in error to have brought himself within the rule [last clear chance] and to have entitled himself to a charge of the court upon the subject, the evidence must have tended to show that, while his negligence may have contributed toward getting him in the position of danger, all negligence on his part had ceased for a sufficient time prior to the accident to have enabled the plaintiff in error, after it knew of his situation of peril, to have avoided the accident.” (Emphasis ours.)

The syllabus of Brock v. Marlatt, Admx., 128 Ohio St., 435, 191 N. E., 703, is:

“The last clear chance rule has no application to any situation except where the injured party through his own negligence has placed himself in a position of peril. The doctrine presupposes the antecedent negligence of the plaintiff, and an instruction on such issue is not proper where the negligence of the defendant and contributory negligence of the plaintiff are concurrent. (Cleveland Ry. Co. v. Masterson, 126 Ohio St., 42, and Pennsylvania Co. v. Hart, 101 Ohio St., 196, approved and followed.)”

In Schaaf v. Coen, Recr., 131 Ohio St., 279, 2 N. E., (2d), 605, the second paragraph of the syllabus is:

‘ ‘ Contributory negligence of plaintiff will not bar recovery in a case where the doctrine of ‘last clear chance’ is applicable, if the proximate cause of plaintiff’s injury was the failure of defendant to seasonably' exercise his ‘last, clear chance’ to avoid injury after becoming aware of plaintiff’s perilous position.” (Emphasis ours.)

In the Schaaf case, Day, J., stated:

“The controlling consideration, however, is not whether plaintiff was guilty of contributory negligence, but rather whether defendant became aware of plaintiff’s position of peril in time to have avoided injury by the exercise of ordinary care. If defendant could have avoided plaintiff’s injury, the doctrine of ‘last clear chance’ * * * must be applied in the case. * * *.

“The rule generally recognized is that in a case where the doctrine of ‘last clear chance’ is applicable, plaintiff’s contributory negligence will not bar recovery if the proximate cause of his injury was defendant’s failure to seasonably exercise his ‘last clear chance’ to avoid injury after becoming atoaré of plaintiff’s perilous position.

“ ‘Where.a plaintiff * * has caused himself to be placed in a perilous situation, he may recover under the rule of the “last clear chance,” notwithstanding his negligence, if the defendant did not, after becoming atuare of plaintiff’s perilous situation, exercise ordinary care to avoid injuring him.’ ” (Emphasis ours.)

In Ross v. Hocking Valley Ry. Co., 40 Ohio App., 447, 178 N. E., 852, this court considered whether a charge was one touching the primary duty of the defendant toward the plaintiff or was a last clear chance instruction, then reviewed the evidence and concluded that the undisputed state of the record disclosed that the engineer did not see the plaintiff at any time, nor did the fireman until within 20 feet of the plaintiff. A brakeman testified that he had seen the plaintiff after ho was 200 to 250 feet on the bridge, but this brakeman did not continue a lookout ahead, and the court stated that the pertinence of the plaintiff’s special charge No. 5 became evident wherein it stated: “If you find that an employee or employees of the defendant upon the engine could, in the exercise of ordinary care, have discovered plaintiff in a situation of danger in time to have avoided injuring him,” etc.

The court then said:

“This case accentuates the difficulty which is presented in last clear chance charges in determining whether or not the obligation enjoined upon the defendant begins after the peril of the plaintiff is discovered or begins when, by the exercise of. ordinary care, it could have been_ discovered. The decisions of the Supreme Court are not as clear as desired, but insofar as we are able to interpret them, they sustain the action of the trial judge. * * *

“The position of Ohio on this question is well stated in 45 Corpus Juris, 990: ‘In some jurisdictions recovery is permitted only where defendant fails to exercise ordinary care to avoid the injury after becoming actually aware of the peril of the injured person.’ ” (Emphasis ours.)

The court stated that Ohio is listed in the states supporting the text. See 45 Corpus Juris, 990 et seq., Section 542, and citations; 38 American Jurisprudence, 906, Section 220.

The court below in the instant case took the position that under the rule in Ohio there should be an allegation that the defendant actually knew of the peril of the plaintiff and after such knowledge failed- to use proper care in avoiding an injury. In view of the cases tlmt we liave cited and especially in view of the decision of our own court, which has not been reversed, we feel obliged to sustain the position of the court below and affirm its judgment dismissing the plaintiff’s petition.

Judgment affirmed.

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


author: Conn, J.

text:
    Brown, Appellant, v. The Wheeling & Lake Erie Rd. Co., Appellee.
    (No. 508
    Decided June 18, 1945.)

      Mr. Earl 8. Miller, for appellant.

      Messrs. Young & Young, for appellee.
   Conn, J.

This canse is here on an appeal on questions of law from a judgment of the Court of Common Pleas of Huron county.

The plaintiff brought an action against The Wheeling & Lake Erie Railroad Company, to recover damages for personal injuries resulting from the alleged negligence of the defendant. The parties will be -referred to as they appeared in the trial court.'

Plaintiff alleged in his petition that the defendant, on November 13,1943, and for many years prior thereto, maintained gates and a watchman at the grade crossing of its tracks on Benedict avenue in the city of Norwalk; that the gates were erect and open when the defendant was not using the grade crossing and were closed when defendant was about to use or was using the same; that the crossing was in the trough of a depression from which such street rose in either direction; and that on the south side of the tracks on Benedict avenue buildings on either side of the street were built closely to the street and tracks.

It was further alleged that on such date, at about four o’clock a. m., plaintiff was operating a truck as an employee of the Hollywood Cartage Company and was approaching the grade crossing from the south; that as he approached the tracks of defendant he retarded his speed and, observing that the gates were open, proceeded across the tracks of defendant; that, while he was passing over the crossing, the gates were lowered and a westbound train of defendant collided with the motor truck operated by plaintiff, whereby he sustained personal injuries; that defendant was negligent in the several particulars alleged'; and that such negligence was the proximate cause of plaintiff’s injuries.

Tlie defendant in its answer denied it was negligent and averred that the injuries sustained by plaintiff were caused by his own negligence.

When the case came on for trial, defendant obtained leave to file a supplement to its answer, alleging that on ^February 21, 1945, in cause No. 19886 in the Common Pleas. Court of Huron county, entitled Louis A. Haas v. Hollywood Cartage Co., a special finding of fact was returned by the jury that such cartage company was guilty of negligence at the time and place alleged in plaintiff’s petition in such cause, and “that said negligence consists of the acts and conduct of the plaintiff in this cause whereby this action is barred.”

The parties waived trial by jury and submitted the cause to the court on the plea in bar which was sustained, and plaintiff’s petition was dismissed.

• As appears by the judgment entry, it was stipulated, among other things, that the plaintiff was in sole charge of and was operating the motor truck of the Hollywood Cartage Company, at the time of the collision; that Louis A. Haas, plaintiff in the above-mentioned action against the Hollywood Cartage Company, at such time was in charge of the gates at the grade crossing, acting within the scope of his employment; and that he alleged in his petition that such collision was caused by the negligent operation of the motor transportation outfit in charge of Loyie H. Brown, the plaintiff in this action.

It was also stipulated that the Hollywood Cartage ‘ Company, in its answer in the action brought against it, alleged that whatever injuries Louis A. Haas received were directly and proximately caused by his negligence in failing to ring the bell at the grade crossing and in failing to close the gates or give any notice or warning of the approaching train until it was too late to prevent a collision; that a general verdict was returned for defendant in such action, with a special finding of the jury that the Hollywood Cartage Company was negligent in the operation of its motor vehicle at the time of the collision. It was also stipulated that no motion for a new trial was filed by the cartage company.

Plaintiff predicated his appeal originally on two assignments of error, but subsequently filed a supplemental brief and specified a third assignment that ‘ ‘ the judgment pleaded in bar was not in fact a judgment.”

In the brief of plaintiff it is pointed out that, at the time the plea in bar was filed and sustained, the judgment had been suspended by the filing and pendency of a motion for a new trial. However, nothing appears in the record supporting the claim of plaintiff in this regard, and the merits of the issue presented in the third assignment can not be considered.

The determinative issue presented here is raised on the second 'assignment of error. Did the trial court err in sustaining defendant’s plea in bar and rendering final judgment in its favor? In other words, was the special finding of the jury that the Hollywood Cartage Company was negligent in the operation of its motor vehicle at the time of the collision conclusive on the plaintiff in the instant case?

The doctrine that the final adjudication of a cause of action by a court of competent jurisdiction is conclusive on the parties and their privies is inherent in our jurisprudence. This doctrine rests on the ground that, where a party, or one in privity with him, has litigated or has had the opportunity to litigate a demand or cause of action in a court having jurisdiction, he is not permitted to relitigate the same matter. 23 Ohio Jurisprudence, 962, Section 731; 30 American Jurisprudence, 910, Section 165; Vasu v. Kohlers, Inc., 145 Ohio St., 321, 61 N. E. (2d), 707; Evers v. Williams, Admr., 43 Ohio App., 555, 184 N. E., 19.

Furthermore, where an issue of fact has been determined in an action, the parties are precluded from relitigating such particular factual issue in a subsequent action, being estopped by the verdict or finding of fact. 23 Ohio Jurisprudence, 966, Section 733..

In other words, the doctrine of res judicata and of estoppel by judgment or verdict are each founded on the principle that a litigant against whom a defense based on such a doctrine is raised, who has litigated or has had the opportunity to litigate the same matter in a former action in a court of competent jurisdiction, is precluded or estopped-thereby.

Such rule of practice and procedure is well settled in this state and prevails generally. 30 American Jurisprudence, 908, Section 161 et seq.-, 34 Corpus Juris, 742, Section 1154, et seq.

As illustrative of the practice and procedure outside Ohio, we cite the case of Pesce v. Brecher, 302 Mass., 211, 19 N. E. (2d), 36, where the facts were very much like those in the instant case and where the court held that the judgment in the former action was not a defense.

We quote the syllabus as follows:

“A judgment for the plaintiff in an action of tort for property damage sustained in a collision of a motor truck of the defendant operated by his employee and an automobile operated by the plaintiff and found to have been caused by negligence of the employee did not bar on the ground of res judicata a later action by the employee against the plaintiff in the former action for personal injuries sustained in the same collision and alleged by the employee to have been caused by negJigence of that plaintiff, although the employee testified at the trial of the former action.”

That case was cited and followed in Dicarlo v. Scoglio and Totaro v. Scoglio,. 317 Mass., 773, 60 N. E. (2d), 762, decided on February 26, 1945.

On the record before us, we do not have a situation where an issue between the same parties or their privies has been determined by a court having jurisdiction and where the well-known rule prevails that the judgment rendered is conclusive as to what was determined as well as to every other issue which could have been properly litigated in the same case. 23 Ohio Jurisprudence, 961, Section 730; Norwood v. McDonald et al., Admrs., 142 Ohio St., 299, 52 N. E. (2d), 67; Wright, Admr., v. Schick, 134 Ohio St., 193, 16 N. E. (2d), 321, 121 A. L. R., 882; Conold v. Stern, 138 Ohio St., 352, 35 N. E. (2d), 133, 137 A. L. R., 1003; Quinn, Aud., v. State, ex rel. Leroy, 118 Ohio St., 48, 160 N. E., 453.

Plaintiff was not a party to the former action and if, by reason of his relation to the defendant therein, it could be said that the special verdict rendered in that case in some measure precluded him, it affirmatively appears that he had no opportunity in the in-' stant case to litigate the issue of defendant’s negligence or the issue of the proximate cause of his injuries and consequent damages.

Since the issues raised on the pleadings were not and could not be adjudicated in the former action, it follows that neither the doctrine of res judicata nor estoppel by verdict or judgment may be applied herein, and the judgment of the trial court is reversed and the cause remanded thereto for further proceedings.

Judgment reversed and cause remanded.

Carpenter and Stuart, JJ., concur.