author: Ross, P. J.

text:
    Tag, Appellant, v. Linder, Appellee.
    (No. 7164
    Decided October 31, 1949.)

      Mr. Sol Goodman and Mr. Albert R. Fingerman, for appellant.

      Mr. Paul J. Crone, for appellee.
   Ross, P. J.

This case is in this court on appeal on questions- of law from a judgment of the Court of Common Pleas, dismissing the action of plaintiff, at the close of the evidence.

The plaintiff brought an action against his landlord, alleging a rental charge in excess of a maximum permitted by and under the provisions of an act of Congress, and praying for the recovery and penalties permitted thereunder.. The plaintiff was in error in.that he predicated his request for relief on an act of Congress enacted.in 1942, later repealed, when under, the Act of 1947 he was entitled to such relief if. the facts alleged in his petition were sustained by evidence. The trial court concluded and found that it was without jurisdiction to entertain the action because of the mistaken conception of the plaintiff as to the appropriate act of Congress and dismissed the petition solely upon that ground.

In taking such action the trial court was in error. ■

As far as the allegations of the petition identified a particular act of Congress as furnishing a remedy, such allegations amounted to mere conclusions of law, had no place in the petition, and should be treated as surplusage.

The issues in an action are created by the factual allegations in a petition.

In Schaefer v. First Natl. Bank of Findlay, 134 Ohio St., 511, at page 520, 18 N. E. (2d), 263, it is stated.

“When the plaintiff pleads all the facts .the court should give him the relief he is entitled toy-.whétlier in equity or by declaratory judgment; even thei prayer is not controlling. Riddle & Parker v. Roll, 24 Ohio St., 572; Tiffin Glass. Co. v. Stoehr, 54 Ohio St., 157, 163, 43 N. E., 279; State, ex rel. Masters, v. Beamer, 109 Ohio St., 133, 151, 141 N. E., 851.”

See, also, Cook v. Crider, 63 Ohio App., 12, at page 16, 24 N. E. (2d), 966.

In Allen v. Ry. Co., 57 Ohio St., 79, at page 85, 47 N. E., 1037, it is stated:

l “A petition which contains all the facts necessary to bring the plaintiff within the rights granted by 'staf'il ute is good, even though it avers other, but uotocoíiítradictóry, facts, not necessary to the right of irewh-ery. In such cases the additional facts will be regarded as surplusage, and need not be established on the trial.”

In 31 Ohio Jurisprudence, 597, “Pleading,” Section 58, it is stated:

“It is an elementary principle of code pleading that, in order to sustain a cause of action, all of the operative ultimate facts essential to the cause of action must be pleaded; that is, such facts as, under the substantive law, operate to invest one with a right, or devest another of a right, or to show a wrongful interference with an existing right. It is, however, neither necessary nor proper to state the legal obligation; it is only necessary to plead the operative facts which show that the pleader is entitled to the relief sought, even though the relief sought may be predicated upon one or more grounds; the pleader need not characterize the facts alleged, or classify them under the respective nominal grounds of such relief, although in practice the custom is, in nearly all pleadings, to characterize the-operative facts and classify them. The pleading is addressed to the court, and it becomes the duty of the court to add the law to the operative facts. Even though, as stated elsewhere, it is an elementary principle in pleading that where a statute, upon certain conditions, confers a right or-gives a remedy unknown to the common law, the party asserting the right ■or availing himself of the remedy must, in his pleadings, :bring himself or his case clearly within the statute, it is well settled that the pleader should state only th'e- operative facts which bring the case within the rule of duty created by the statute. It is unnecessary to plead a public statute of Ohio or of the United States. In other words, a petition states a good cause of action if its allegations can be fairly construed to .show any dereliction of the duty defined by the statute, proximately resulting in injury and damage to the plaintiff, without pleading the terms of the statute. A petition which contains all the facts necessary to bring the plaintiff within the rights granted by statute is good even though it avers other, but not contradictory, facts, not necessary to the right of recovery. In such cases the additional facts will be regarded as surplusage, and need not be established on the trial.”

See Warner v. Industrial Commission, 69 Ohio App., 378, at 384, 43 N. E. (2d), 885.

In Gerend v. City of Akron, 137 Ohio St., 527, at page 532, 30 N. E. (2d), 987, Section 58 (Id.) is quoted with approval.

Section 203 (a) of the Housing and Rent Act of 1947, as amended and in force at the time the cause of action stated in the petition arose, provides:

“After the effective date of this title, no maximum rents shall be established or maintained under the authority of the Emergency Price Control Act of 1942, as amended, with respect to any housing accommodations.”

Section 204 of such act provides in part:

“(a) The Housing Expediter shall administer the powers, functions, and duties under this title; and for the purpose of exercising such powers, functions, and duties, and the powers, functions, and duties granted to or imposed upon the Housing Expediter by Title 1 of this act, the Office of Housing Expediter is hereby extended until the close of March 31, 1949.

“(b) (1) Subject to the provisions of paragraphs (2) and (3) of this -subsection, and subsections (h) and (i), during the period beginning on the effective date of this title and ending on the date this title ceases to be in effect, no person shall demand, accept, or receive any rent for the use or occupancy of any controlled housing accommodations greater than the maximum rent established under. the authority of the Emergency Price Control Act of 1942, as amended, and. in effect with respect thereto on June 30, 1947:

* * *"

Section 205 of the act provides in- part:

“Any person who demands, accepts, or receives any payment of rent in excess of the maximum rent prescribed under section 204 shall be liable to the person from whom he demands, accepts, or receives such payment (or shall be liable to the United States as hereinafter provided), for reasonable attorney’s fees and costs as determined by the court, plus liquidated damages in the amount of (1) $50, or (2) three times the amount by which the payment or payments demanded, accepted, or received exceed the; maximum rent which could lawfully be demanded, accepted, or received, whichever in either case may be the greater amount: Provided, That the amount of such liquidated damages shall be the amount, of; the. overcharge or overcharges if the defendant proves that the violation was neither willful nor the result of failure to take practicable precautions against the occurrence of the violation. Suit to recover such amount, may be brought in, .any federal, state, or territorial court of competent jurisdiction within one year after the date of such violation: * * *”

It-would appear, therefore,'that the • plaintiff stated a. pause of action, of which the court' had jurisdiction of the subject matter, and that the petition of plaintiff was- erroneously dismissed. :•

¡ The, judgment is reversed and .the cause remanded fo,r.;fnrther proceedings accprding to 'law.

Judgment reversed.

■mRoss, P. J., HiLDEBRANT.and-Matthews,' JJ., concur in the syllabus, opinion and judgment.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    Kemp, Appellant, v. Lormer, Appellee.
    (No. 4349
    Decided January 24, 1949.)

      Mr. William D. Driscoll, for appellant.

      Messrs. Marshall, Melhorn, Wall £ Bloch, for appellee.
   Carpenter, J.

From a judgment for defendant entered on a verdict directed at the close of plaintiff’s case, and from an order overruling a motion for a new trial, plaintiff appealed on questions of law. The journal entry does- not state the basis on which the court made the direction, but from the bill of exceptions it appears that in doing so it said “that there is no evidence of negligence on the part of the defendant.”

Plaintiff contends that; there was error in the rejection of evidence and in directing the verdict.

In December 1946, plaintiff, James Kemp, and the Lormer family, including the son Robert, the defendant, were near neighbors in the village of Holland in Lucas county. The Lormers lived on the north side of Second street which was paved with asphalt. Their house was about 20 feet back from the sidewalk. Mr. Kemp’s home was on Erie street which crossed Second street east of the Lormers. The section was a residential one.

About 6:45 p. m. on December 6, Kemp, who was 83 years old and quite hard of hearing, alighted from a bus at Clark and Second streets, about 200 feet west of Lormers, and walked east on the sidewalk on the north side until he came to the Lormer driveway where he turned south to cross the street to an alley in the rear of his home.

The distance from the walk to the pavement was between 10 and 12 feet. When he had taken one step off the sidewalk, he was struck by the Lormer automobile, then being backed out of the driveway by the defendant. Kemp sustained some injuries and this action was for the resulting damages.

The lights on the automobile- were burning, as was the street light at the Clark-Second intersection 200 feet to the west.

The defendant was called for cross-examination and testified that the driveway was on the west side of his house. Over objection, he was finally permitted to say that there was a space of 50 feet between his home and the-next house to the west. That was important, for that was the direction from which Kemp approached on the sidewalk to the place of collision. ■ ' '■

• Defendant said his automobile had been parked 50 feet1 or more from the sidewalk, and that he did not look to the west until he was within. 15 feet from the walk and could then see to the end of Second street. He said also that the rear window was “befogged with moisture” and he could not see through it, and that “looking directly back would be extremely difficult because of the construction of the car but I looked to the southeast and to the southwest perhaps in the direction of the sidewalk as I was going out. ’ ’

The evidence record then shows the following:

“Q. What did you do if anything to assure yourself that you could back out of the driveway into the street without hitting anyone?

“Objection:

“The court: Sustained.

“Q. What did you do if anything to observe that your path was clear ?

“Objection:

“The court: The objection is sustained.”

After the automobile struck the plaintiff, it stalled. The defendant said he found him two feet out in the street “under the left rear bumper at the junction of the fender and bumper.” It does not appear whether there was a curb on that street.

The above testimony was on cross-examination of the defendant, who had by amended answer admitted “that at said time and place a collision occurred between said automobile and the plaintiff, resulting in certain injuries to* the plaintiff.” Just why there were objections to the questions above quoted is not clear to this court, and why the objections were sustained is even more difficult of understanding. It was not incumbent upon the cross-examiner to tender what he expected the answer would be. Martin v. Elden, 32 Ohio St., 282. Neither the trial court nor this court can now know what those answers might have be.en. Had the defendant been required to answer, it is possible that it might have been obvious to the trial court that the direction should have been denied, hence the prejudicial character of the action the court took.

The plaintiff, as a pedestrian, had a right to use the street as he was doing, and whether he was negligent in any respect may have been a fact question for the jury’s determination. It was not a matter of law for final action by the court.

Section 6307-475, General Code, which requires a pedestrian to look “in both directions to see what is approaching” before stepping into a public road, does not apply here. That section applies to traffic on a street. Plaintiff had not reached the street, and that law did not require him to look behind.

It was the duty of the defendant, as he backed the automobile out of the private driveway across the public sidewalk and into the street on that dark night, to exercise ordinary care not to injure a pedestrian who was rightfully on that public street. Section 6307-46c, General Code. Whether he did use that care was a jury question. Had the jury found him negligent, there would have been a fact question of proximate cause.

No decisions of Ohio courts are cited to this court and it has found none very similar to this case. In other jurisdictions there have been many. Some of those are cited in the annotations in 67 A. L. R., 649, and 118 A. L. R., 244, and in 2 Blashfield's Cyclopedia Automobile Law and Practice, 279.

Crawley v. Jermain, 218 Ill. App., 51, was a more extreme case than the instant one, in that the plaintiff was an aged woman whose sight and hearing were both impaired, yet recovery by her was allowed for injuries sustained as were those of Mr. Kemp. The court said:

“It is beside the question that he [defendant] was honking the horn of his car, because, aside from giving snch warning, it was incumbent upon him to proceed across the sidewalk cautiously so as to avoid running-over pedestrians rightfully proceeding upon the same. ”

To the same effect are the following recent cases. Many more might be cited. Chew v. Coffin, 144 Neb., 170, 12 N. W. (2d), 839; Brandes v. Freitas, 116 Cal. App., 459, 2 P. (2d), 830; Thomas v. Spinney, 310 Mass., 749, 39 N. E. (2d), 753; Guyan Chevrolet Co. v. Dillow, 264 Ky., 812, 95 S. W. (2d), 796: Moore v. Vance, 4 La. App., 353; Levy v. White, 5 So. (2d), 28.

For error in sustaining objections to the evidence above noted and for the direction of the verdict, the judgment is reversed and the cause; remanded for a new trial.

Judgment reversed and cause remanded.

Conn and Fess, JJ., concur.


author: Montgomery, P. J.

text:
    Davis et al., Appellees, v. Commercial Credit Corp., Appellant.

      (No. 2371
    Decided February 3, 1950.)

      Mr. James W. Anderson and Mr. Frank T. Bow, for appellees.

      Mr. Clayton Hoffman and Mr. Willis J. Grant, for appellant.
   Montgomery, P. J.

The action in the Court of Common Pleas was brought by the plaintiffs, appellees herein, John J. Davis and Mary Davis, against Commercial Credit Corporation, H. S. Black, William J. Ross and Arthur W. Cox. No service of summons was had upon the defendants Black and Ross and the fair inference is that they “fled the realm.” and could not be found. The defendant Cox was the local office manager of the defendant Commercial Credit Corporation. The verdict of the jury was against the corporation in the sum of $700, and there was no finding made as to the defendant Cox. Prom the judgment entered upon the verdict the Commercial Credit Corporation perfected this appeal.

On November 29, 1946, the plaintiffs had executed and delivered to Union Construction Company a contract for the residing of the outer walls of their dwelling house with white asbestos siding, for the sum of $1,040. The Union Construction Company was the name under which Black was doing business and Ross was Black’s agent.

On the back of the contract form the following statement appeared:

“Owner to receive $25 for any jobs sold directly or indirectly through home.”

On the same date, the plaintiffs executed what was termed an “FHA Title 1 Credit Application,” a promissory note, and what was termed as “FHA Title 1 Borrower’s Completion Certificate.”

FHA is the designation ordinarily accorded to a certain governmental alphabetical agency.

An exact copy of the promissory note in question is as follows:

“PROMISSORY NOTE

“524716 No. 256-118

“230615th N.E. Canton Ohio Nov. 29,1946.

“Undersigned, jointly and severally, promise to pay to Union Construction Co., seller, or order, the sum of eleven hundred ninety-five dollars 79/100 dollars ($1,195.79) in 36 consecutive monthly instalments of $33.22 each (except that the final instalment shall be the difference between the amount of this note and the sum of the preceding instalments), the first to become due Jan. 14, 1946, balance of instalments to be paid on the same date of each month thereafter until paid, at the office of Commercial Credit Corporation, at Canton, Ohio, with interest after maturity of entire balance as herein provided at the highest legal rate.

“Undersigned hereby waive presentment, protesl, and notice of protest and all benefit of valuation, appraisement and homestead or other exemption laws, and agree to pay all expenses incurred in collection, including 15 % of the amount hereof as attorneys ’ fees if placed with an attorney for collection after default. If any instalment hereof is not paid when due, the total amount owing herein shall become immediately due and payable at the option of the holder hereof. Undersigned agree to pay authorized F. H. A. “late charges” (5c per $1, maximum $5) on any instalment more than 15 days past due.

“Value Received. John J. Davis

Mary Davis

■ “Form 1169 A 6-46-400M”

This note, except for the names of the parties, the amount of the note, the amount of the monthly installments and the addresses, was on a printed form, which printed form recited on its face that the same was to be paid “at the office of Commercial Credit Corporation at Canton, Ohio.”

On the back of the note there was an assignment by “Union Construction Co.-, H. S. Black, owner,” but this assignment followed a printed form in this language: “Without recourse pay to the order of Commercial Credit Corporation.”

The difference between the contract price of $1,040 and the amount of the note of $1,195.79 is listed on a statement by Commercial Credit Corporation, plaintiffs’ exhibit C, as “discount charges $155.79.”

The note, but not the other papers, was assigned to Commercial Credit Corporation on November 30, 1946, the day following the execution of the note. Shortly thereafter the makers of the note received notice from Commercial Credit Corporation that it was the owner of the note, of which fact they had not been advised theretofore, and shortly thereafter they paid to Commercial Credit Corporation the amount of the note as then due. Thereafter they brought this suit in the Court of Common Pleas.

The claim of the plaintiffs was that Commercial Credit Corporation and Cox had conspired with Black and Ross to cheat and' defraud these plaintiffs and that the same was shown by the manner in which signatures were obtained on the various instruments, by the purchase under the existing circumstances of the note, and by the representation by Commercial Credit Corporation that it was a holder in due course of the note.

The defense was that the note had been paid, and that previously thereto it had been purchased by the corporation from Black for a valuable consideration, before maturity, and without notice of defects.

As hereinbefore stated, upon the issues thus made, the cause went to trial and there was a verdict of $700 for the plaintiffs, upon which judgment was entered. From such judgment this appeal was perfected.

Appellant properly says that these two questions are raised in this cáse:

(a) Were Commercial Credit Corporation and Cox engaged in a conspiracy to defraud these plaintiffs and other borrowers?

(b) Was the Commercial Credit Corporation at the time it purchased the note in question, a holder in due course, as defined by Section 8157, General Code?

To the first question we unhestitatingly answer “yes.” To the second question we with equal lack of hesitation answer “no.”

The original defendant Black had been engaged in different cities in installing asbestos siding upon houses, particularly in Erie, Pennsylvania. There he had been charged with doing inferior work and with inducing home owners to sign contracts and notes with agreements of $25 credits, as in the instant case.

Before the execution of the instruments signed by the plaintiffs herein, the defendant Commercial Credit Corporation had knowledge of the history of Black’s performances in Erie, Pennsylvania, and it had knowledge at least a week before the purchase of the Davis paper of at least one other case in the city of Canton, wherein the claim had been made of fraud on the part of Black through his agents and the special contract involving $25 credit.

It is true that the defendant corporation is a Maryland corporation and that the one which financed Black’s operations in Erie was a Pennsylvania corporation. But the record is clear that both of them were subsidiaries of a concern known as Commercial Credit Company, of which one James Bennett was general or division manager, with his offices in Cleveland; that he had supervision over both these corporations ; and that with knowledge of what had happened in Erie he authorized Cox to proceed with the arrangement with Black in Canton.

Cox, as local manager, had information as to complaints already made in Canton, so that knowledge had been brought, before the alleged purchase of the Davis note, of defective work, of fraudulent representations and of the general nature of Black’s operations both in Erie and in Canton.

The corporation supplied Black with the printed forms, which were long documents containing credit statements, promissory notes and completion statements, and Black or his agents would represent to the signers of these agreements that they would be reimbursed, if the contracts were signed, by allowances to them for holding their property out as “bait for other suckers. ’ ’

There can be no question in the minds of the members of this court as to the fraudulent operation and as to the knowledge of the Commercial Credit Corporation of those facts.

Of course, in a charge of conspiracy the basis of action must be more than the conspiracy itself. There must be resultant damage, and such did result in the instant case. Here there was concerted action on the part of Black and the corporation to accomplish a fraudulent result, beneficiante each of them, and as the result thereof the damage did ensue to the plaintiffs.

The verdict of $700 ou which judgment was rendered was under the evidence a fair assessment of the damages sustained as the result of this conspiracy, and upon this evidence we will touch briefly.

Appellant contends that under Section 8157, General Code, and the evidence in this case it is entitled to be regarded as a holder in due course, on the theory that it took the note in good faith and for value, without notice of infirmity or defect in the title of Black. We have hereinbefore stated the factual situation as to this knowledge.

But the legal proposition is answered by Section 8161, General Code, which is:

“To constitute notice of an infirmity in the instrument or defect in the title of the person^ negotiating it, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.”

Under the facts shown by the record and which we have epitomized in this opinion, the appellant must be held to have had actual knowledge, such that its action in taking the instrument amounted to bad faith, and consequently it cannot claim the benefit of the due-course statute, Section 8157, General Code.

While it is common knowledge that in recent years there has been a tremendous amount of transactions similar to this one throughout the United States, there has so far been a dearth of authority controlling the proposition under such facts.

The nearest approach to it which we have found or which has been suggested by counsel is that in the ease of Commercial Credit Co. v. Childs, 199 Ark., 1073, 137 S. W. (2d), 260, 128 A. L. R., 726, the first paragraph of the A. L. R. headnotes of which is:

“1. A finance company which had prepared and delivered to an automobile dealer forms of notes and conditional sales contracts bearing a printed form of assignment to itself, and which, on the day of the sale of a car by the dealer, took an assignment of the sales, contract and purchaser’s note, is to be regarded as a party to the transaction against whom the defense of fraud and misrepresentation may be made, rather than as an innocent purchaser for value before maturity. ’ ’

And attention may be directed to the annotations in the A. L. R. report.

Certainly, this was a magnificient setup for the appellant : A piece of work worth, according to some of the evidence, $390, but in any event not much more than that, with a note given in advance of the work for $1,040, with added carrying charges to the extent of $155.79, with a guarantee by FHA if there should be default by the makers of the note and if the corporation should have advanced too much money.

To claim good faith under such a situation seems to us to pass the bounds of all hope of any belief.

Now, briefly, as to the evidence. It is contended that the court erred in admitting the evidence offered as to the value of the work. We see no error in the admission of such evidence. In particular complaint is made of the fact that a building permit issued by the city of Canton was admitted, which set forth the amount of the proposed improvement as $390, and the complaint is made that the jury obviously accepted this amount, deducted it from the contract price and rendered a verdict for $700. Why should not this have been done? The application was made by Black as the proposed contractor, and in view of our conclusion as to the eon-¿¡piracy between him and the appellant, there could be no better or more potent evidence on behalf of the plaintiffs. We have considered the objections to the charge and the failure to give the special requested charges. We see no error in that respect. In fact; we see no error in this record. '■

Here, in brief, is a situation wherein a so-called ■‘fly by night” contractor, doing inferior work, conspired with a credit corporation to take his paper for the purpose of collecting its full face, on the theory that the corporation was a holder in due course. Here the amount of the damage sustained by the plaintiffs was set forth with reasonable certainty and the verdict and judgment were just and right. The judgment is affirmed.

Judgment affirmed.

McClintock and Putnam, JJ., concur.


text:
    Bradshaw, Appellant, v. Wilson, Appellee.

      (No. 4404
    Decided January 9, 1950.)

      Mr. J. W. Starritt, for appellant.

      Messrs. Shumaker, Loop, Kendrick & Winn, for appellee.
   Carpenter, J.

This appeal on questions of law brings to this court for review a judgment for the defendant entered on a verdict returned on the direction of the court at the close of the plaintiff’s evidence. The action is one for damages alleged to have resulted to plaintiff from the malpractice of the defendant, a specialist in orthopedic surgery.

On June 19, 1946, plaintiff sustained a spiral com-minuted fracture of the humerus of her right arm just above the elbow. The next day she employed defendant to “reduce the fracture and to attend her during her convalescence.”

The specifications of negligence on the part of defendant as charged in the amended petition may be grouped into two classes:

(1) Failure to properly reduce the fracture; and (2) permitting it to become infected and otherwise failing to take proper care of it during the period of convalescence.

The answer admits defendant’s employment, denies negligence and alleges that plaintiff left the hospital, where defendant was attending her, without his consent and signed a document releasing him from any responsibility for any complications that might arise.

From the evidence it appears that plaintiff’s injury occurred on the night of June 19, 1946; that the next day.she was received as a patient at Mercy Hospital, Toledo; and that, on the advice of her physician, defendant was employed to reduce the fracture and attend her. After an X-ray was made, defendant proceeded to reduce the fracture by an open operation, placing two screws in the broken bones and a cast upon the arm. The next day another X-ray was made.

Shortly after this, infection developed in the wound and defendant cut a hole in the cast in the area of the operation to enable the wound to drain and to be treated. A sinus drainage also developed. At that, time defendant told plaintiff that her arm was getting along ‘ ‘ all right. ’ ’

Plaintiff testified that, after about a month and while the wound was still draining, defendant permitted her to go to her home, but, under his directions, she went to Ms office where he continued to dress the wound. He then told her to go to the outpatient clinic of Mercy Hospital where she wont daily for two weeks, and when defendant returned from a vacation she returned to the hospital as a patient where she stayed another month under the care of defendant and Ms assistant. The wound in her arm was still draining.

On August 24, 1946, another X-ray was taken at the hospital. A resident surgeon at the hospital, who attended her under Dr. Wilson’s direction, testified that a separation of the fractured parts of the bone was shown by this X-ray. All the X-rays which were taken are in evidence as exhibits, and the August 24th one shows obviously the separation of the bones as described by that surgeon.

On October 23, 1946, another X-ray was taken which the same witness testified showed one of the screws to be loose and a loose fragment of bone which he said “not having a good blood supply, became necrotic but not infection; but it is draining.” He also said that such pieces of bone frequently have to be removed by surgical operation.

At this juncture in the trial a serious error in evidence occurred. On direct examination this physician, defendant’s assistant, was asked the question:

“Now state whether or not in September or October, 1946, from your examination, from what you had observed and from your experience in the army and your private experience, whether or not it was your opinion that an operation was necessary?”

Objection by the defendant to this was sustained, and the offer to prove was:

“If the witness had been allowed to answer the question he would have testified that in his opinion an operation was necessary.”

This was prejudicial error, especially in the light of what took place later in the treatment of plaintiff.

■ In the course of the trial, objections were sustained to numerous other questions on direct examination, which seem to this court to have been proper, but, as no offers to prove were made, prejudice to plaintiff does not appear.

After the second month in the hospital under Dr. Wilson’s care, she was again permitted to go home but returned to the outpatient clinic where defendant’s assistant dressed the arm. During that time the loose screw came out into the dressing, and on November 11, 1946, another X-ray was taken at Mercy Hospital, which plainly shows but one screw in the bones and separation of the parts of the bone; at least shows that there was no union of the parts of the humerus.

The evidence tends to show that through ail this dofendant was in charge and directed the care given the plaintiff, and that the sinus drainage was due to the loose fragment of bone which could be seen in the X-rays. Plaintiff testified that she suffered severe pain in her arm and hand during all this time.

On November 25, 1946, plaintiff was transferred to Maumee Valley Hospital. The defendant’s assistant said that this was done “as an economic factor.”

With this change, a new period in the treatment of plaintiff’s arm began. Two other physicians, both orthopedic surgeons, took over her case. They took X-rays, which showed them that no union of the bone had taken place and the wound was still draining. She was given frequent doses of penicillin and sulfa-mereigine until December 12, 1946, when the surgeons operated upon the arm. One of them testified that the purpose of the operation was to remove “a piece of dead bone and a screw from the area of the fracture * * *, it was an isolated screw, not holding anything. Therefore it was removed.” This was the second screw which had been put into the bone by defendant on June 20, 1946, when he reduced the fracture.

In February 1947 another operation was performed by these surgeons and one of them testified, describing what was done :

“* * * to bone-graft the fracture, repair the radial nerve * * * a plate with four screws was applied, with same bone graft lying alongside the bone and with the bone ends of the fracture squared off, placed in apposition. ’ ’

After these operations, the drainage stopped, and in a month plaintiff was able to use her arm.

The foregoing summary of the evidence is that most favorable to the plaintiff. The familiar rule for trial courts to follow on a motion to direct a verdict is restated in the syllabus of the recent case of Purdy, Admr., v. Kerentoff, 152 Ohio St., 391, 89 N. E. (2d), 565." Whether such motion should be sustained “depends upon the evidence and reasonable inferences theiefrom treated in the light most favorable to plaintiff. ’ ’

Referring to the two groups of the errors assigned, on number one, that the reduction operation was negligently done, it can well be said that no witness testified to support this technical proposition and, if plaintiff’s cause depended upon that contention, the judgment would have to be affirmed.

On the charges of neglect and lack of due care during the period of convalescence, the above summary of the' evidence indicates that it tended to prove that Dr. Wilson had plaintiff under his care from June 20 to November 25, 1946, a period of five months. From the first there was drainage from the wound and he dressed it constantly during that whole period. From the testimony of defendant’s assistant it seems that this resulted from infection which may have been cleared up' by the antibiotic treatment he administered, but the sinus drainage which was due to the dead piece of bone continued until plaintiff went to the Maumee Valley Hospital. It was also said that an operation was necessary' to remove the dead bone. This was done later by the other surgeons.

One of the screws which was put into the bone by defendant came out of the arm of its own accord and later the other screw was removed because “it was an isolated screw, not holding anything.”

During all this time defendant did nothing to correct this worsening condition, of the presence of which his own X-rays informed him. From all this the jury could well have inferred neglect on the part of the defendant.

In addition to this, there is the further evidence that, when plaintiff was transferred to the other hospital and the other doctors took over the case, they were able to clean up the arm and in a few weeks after their treatments and operations were completed she could use her arm. That this could be done gave rise to the obvious inference of neglect in what had not been done bv the defendant. Richeson v. Roebber, 349 Mo., 132, 159 S. W. (2d), 658, 141 A. L. R., 1.

At page 12 in the annotation of the A. L. R. report of the above-cited case there are assembled citations of numerous cases holding that expert testimony is not always necessary to prove malpractice. In Francis v. Brooks, 24 Ohio App., 136, 156 N. E., 609, this court sustained a judgment which was not supported by expert testimony. The defendant there was a dentist.

It is urged that there is no evidence that anything defendant did or did not do proximately caused plaintiff's damages. That might be true if her damages were limited to the ultimate shortening of her arm and the limitation in its use she finally experienced. But what about the pain and suffering she endured during the five months Dr. Wilson had charge of her case ? If it can be inferred that he was negligent in any respects in his treatment, it may also be inferred that her pain and suffering were caused by that neglect. These questions were for the jury, and as the record stood at the close of plaintiff’s evidence they should have been so submitted. For this error, and the error in evidence noted above, the judgment is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Conn and Fess, JJ., concur.


text:
    Ferguson, Appellee, v. Buddenberg et al., Appellants.
    (No. 7225
    Decided May 15, 1950.)

      Mr. Albert M. Freiberg, for appellee.

      Messrs. Ginocchio & Ginocchio, for appellants.
   Ross, P. J.

This appeal on questions of law is from a judgment of the Court of Common Pleas of Hamilton County, predicated upon a verdict in favor of the plaintiff, which was by remittitur reduced from $2,250 to $1,000. Such verdict included a sum for punitive damages.

The action is predicated upon fraud, that is, upon false representations as to the existence of an intention to personally use the premises rented to plaintiff, and sole reliance upon such representations by which plaintiff was induced by defendants to relinquish a right of occupancy secured to him by law.

Only by virtue of the Federal Housing and Rent Act could such an alleged relinquished right be shown to exist. The plaintiff, a tenant from week to week, had no common-law right to occupy the premises longer than the landlord desired. There is no state statutory inhibition against the eviction of the plaintiff.

What right did the housing act confer † Simply the right to be free from “an action or proceeding to recover possession.”

The defendants simply served a notice to vacate the premises. The plaintiff voluntarily acquiesced in the request to vacate. He had a valid defense against any possible later unlawful action to evict.

If the defendants were guilty of an abuse of process, the plaintiff would have, upon proof of same, an adequate remedy at law.

Plaintiff* claims that the right of plaintiff to remain in the premises was a “status imposed upon them by federal law.”

The federal law iherely protected plaintiff from an unlawful action or proceeding. There is no inhibition in the federal act against a request by the landlord to the tenant to leave the premises. The statement that such acquiescence in such request would prevent resort to legal proceedings has no force, since such proceedings could not be unlawfully maintained.

No protest of any kind was made by the plaintiff. As far as the evidence shows he may have been perfectly content in any event to seek other and better quarters.

To permit the maintenance of the present action would open the door wide to a recourse to the courts whenever, after voluntary change of quarters, the vacating tenant discovered that the landlord had rented such vacated quarters for an additional amount.

If the plaintiff had any rights in the premises, he voluntarily released and waived such rights by vacating the premises without protest.

Although some authority without this state is shown contrary to these conclusions, in no case in Ohio has such an action as the instant proceeding been countenanced. The adequate protection of the federal housing act, being in derogation of the common-law rights of the defendants, should not be extended beyond its clearly expressed scope.

The motion of the defendants for an instructed verdict, made at the conclusion of all the evidence, should have been granted, and this court will enter the judgment for the defendants which the trial court should have rendered.

As we so conclude, it becomes unnecessary to pass upon the claims of the defendants, which would induce this court to set aside the judgment for passion and prejudice in the verdict, and that such verdict is against the manifest weight of the evidence.

Judgment reversed.

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


author: Wiseman, J.

text:
    Shaman, Appellant, v. Roberts et al., Appellees.

      (No. 4373
    Decided February 6, 1950.)

      Mr. Robert L. Mellman, for appellant.

      Mr. Paul L. Selby, Jr., and Mr. Robert B. Morrison, “for appellees.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Municipal Court of Columbus.

The plaintiff’s assignor, The Ike Topper Structural Steel Company, took a default judgment on a liquidated claim against Ansel Lorimer, hereinafter called defendant, on November 21,1940. On June 4,1949, defendant filed his petition to set aside the judgment on the ground that he had not been served with process. The trial court set aside the default judgment and from that ruling this appeal is taken.

The plaintiff-appellant, Reva Shaman, the assignee of The Ike Topper Structural Steel Company, assigns two grounds of error:

1. The trial court erred in overruling plaintiff’s demurrer to defendant’s petition to vacate the judgment.

2. The order of the trial court in vacating the judgment was contrary to law, was not sustained by sufficient evidence, and was contrary to the manifest weight thereof.

To the defendant’s petition to vacate the plaintiff filed a demurrer on the ground that the petition was not filed within three years after the entry of the judgment. Plaintiff contended that the defendant’s petition to vacate was grounded on an irregularity as provided in Section 11631, General Code, and that under the provisions of Section 11640, General Code, proceedings for the vacation of a judgment under Seetion 1Í631, Genera] Code, must be commenced within three years after the date of the judgment. The plaintiff cites in support of this proposition Corry v. Campbell, 34 Ohio St., 204; Baylor v. Killinger, 44 Ohio App., 523, 186 N. E., 512; Pierce v. Egbert, 16 Ohio Law Abs., 300. We are not required to construe Section 11640 and to determine whether the petition to vacate was required to be filed, within three years after the date of the judgment or, as is contended by the defendant, within three years after the defendant has notice of the judgment. The petition to vacate alleges facts which would render the judgment void and not voidable. Sections 11631 to 11643, inclusive, General Code, apply to voidable judgments only and have no application to void judgments. Snyder v. Clough, 71 Ohio App., 440, 50 N. E. (2d), 384. See, also, O'Dell v. O’Dell, 78 Ohio App., 60, 64 N. E. (2d), 126. The petition to vacate alleges that ‘ ‘ said judgment was obtained without any service of process upon him.” Where there is no service of process the court is without jurisdiction to render judgment. Any judgment which is. rendered, where no process has been served, is void ab initio. Hayes v. Kentucky Joint Stock Land Bank of Lexington, 125 Ohio St., 359, 181 N. E., 542; Kingsborough v. Tousley, 56 Ohio St., 450, 47 N. E., 541: Levy v. Foley, 75 Ohio App., 220, 61 N. E. (2d), 615; 49 Corpus Juris Secundum, 55, 480; 23 Ohio Jurisprudence, 836. The allegation in the petition is good against demurrer and Sections 11631 to 11643, inclusive, Genera] Code, have no application. The demurrer was properly overruled.

The record shows that the summons was served on the defendant by mail as provided in Section 11297-1, General Code. It is conceded that the Municipal Court of Columbus adopted a rule authorizing service by mail and that this rule was in full force and effect at the time service was made. The record shows that a true copy of the summons was deposited in the mail and addressed to the defendant at his correct address, and that the envelope was not returned by the postal authorities as undelivered. The pertinent facts in this case are brought before this court in the form of a stipulation, which contains the following statement:

“* * * the defendant, Ansel Lorimer, testified as follows: ‘That prior to and during the month of September, 1940, he resided with his family at No. 28 Glencoe Road, Columbus, Ohio, and that he had resided at said address continuously up to the date of his testimony; that he had never received any summons or notice of any hearing on the original petition filed herein; that it was the practice of the family to place all mail addressed to defendant Lonmer %n a, certain place in the home; that no summons or notice was ever in such place; that he had never seen any mail containing such summons or notice and that the first notice he received of any proceeding in this case was when he was served with an order to- show cause why the said judgment should not be revived. ’ ” (Emphasis ours.)

The facts of record on their face show that service was made in conformity with the provisions of Section 11297-1, General Code. These facts establish a presumption of valid' service, but this presumption is rebuttable. It is conceded that it is not a prerequisite to valid service that the defendant receive the envelope containing the summons. However, the evidence adduced by the defendant must be given weight in determining whether the presumption in favor of valid service has been rebutted. The defendant testified that it was the practice to place mail addressed to him in a certain place in the home, and that the envelope containing the summons was never at that certain place.

The trial court was the sole judge of the credibility of the witness and the weight to be attached to his testimony. It was within the province of the trial court to draw any reasonable inference from the testimony given. A reasonable inference may be drawn that, since the envelope was not deposited in the customary-place in the home, it was not delivered to the defendant’s residence. The trial court found that the evidence presented by the defendant rebutted the presumption in favor of valid service. We are not disposed to disturb that finding since it is supported by the evidence.

The judgment of the trial court in sustaining the petition to vacate the judgment is not contrary to-law, was sustained by sufficient evidence and is not contrary to the manifest weight of the evidence. The judgment is, therefore, affirmed.

Judgment affirmed.

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


author: Fess, J.

text:
    Rice, Appellant, v. The Hancock Mfg. Co., Appellee.
    (No. 461
    Decided May 2, 1949.)

      Messrs. Hull $ HawJc, for appellant.

      Mr. Alexander L. Hyser, for appellee.
   Fess, J.

At the close of the case the court below instructed the jury to return a verdict in favor of the defendant on the petition and submitted to the jury the determination of the issues arising upon the cross-petition of the defendant. Pursuant to the instructions the jury returned a verdict in favor of the defendant on the petition. The jury also returned a verdict on the cross-petition against the plaintiff in the sum of $479. From the judgment entered on the verdicts, plaintiff appeals on questions of law.

On September 19, 1947, plaintiff was driving her automobile in a westerly direction upon U. S. route 20 in the village of Clyde, Ohio. When north of the easterly entrance to Camp Grand, she attempted to make a left turn and a collision occurred with a truck of the defendant which had been proceeding in an easterly direction. At the scene of the collision the highway is divided for westbound and eastbound traffic by a white line. ' The lane for westbound traffic is 16 feet ■wide and that for eastbound traffic 24 feet wide.

Plaintiff testified that, just prior to making her left-hand turn, she stopped north of and parallel with the white line; and that she held out her hand and watched through the rear-vision mirror a truck which had been following her. She noticed a passenger car approaching from the west, but did not see the truck until it was •“way over next to me and heading right for me.” Süe stated that at the time of impact the front of her car was over the line about a foot. This statement is inconsistent with her statement that she stopped north of the line. . It may be inferred, however, that she meant she had stopped north of the line prior to turning to her left. She stated also that her car came into contact with the front end of the second trailer back of the tractor, which “jackknifed and hit the head end of my car.”

The evidence is conclusive that but one trailer was attached to the tractor. She also stated that after the collision the truck and trailer were clear over the •curb upon the grass and her car was clear over the ¡line on the south side of the pavement. On cross-examination she admitted that when she was making the left turn she saw the automobile a good block to the west but did not see the truck until immediately before the collision because it was immediately back of the automobile. A witness for the plaintiff testified that after the collision he observed “burn marks’-' on the highway made by the tractor and trailer and extending 221 feet; that these marks began near the curb and swung to the left to the center of the road and from there to the right or to the south berm of the road. He testified also that tire marks from plaintiff’s car were observed four or five feet south of the center line. A pencil sketch made by this witness while on the stand shows all these marks south of the white line.

Plaintiff’s testimony in its most favorable light (Theatre Co. v. Lautermilch, 118 Ohio St., 167, 160 N. E., 683; Hamden Lodge v. Gas Co., 127 Ohio St., 469, 189 N. E., 246), shows that plaintiff’s car was a foot, over the white line dividing the traffic at the time of the collision. Although the white line did not divide the highway equally, it seems to be conceded that it divided the use of the highway between westbound and eastbound traffic. No explicit rule of conduct is prescribed by the Uniform Traffic Act for making a left-hand turn at a point other than an intersection. Section 6307-25. General Code, provides that a vehicle shall be driven upon the right half of the highway except when making a left-hand turn under the rules governing ,such movements. Section 6307-30, General Code, provides that no vehicle shall be driven to the left of the center line in overtaking and passing traffic proceeding in the same direction unless such left side is clearly visible and is free from oncoming traffic, etc. Since plaintiff was not engaged in passing another vehicle, this section does not apply.

Section 6307-38, General Code, provides that no person shall turn a vehicle from a direct course upon a highway unless and until such person shall have exercised due care to ascertain that such movement can „be made with reasonable safety to the users of the highway. This section prescribes a rule of conduct and a violation thereof is not negligence per se. Cf. Heidle v. Baldwin, 118 Ohio St., 375, 161 N. E., 44. The making of the left turn over the dividing line of the highway was negligence. But in view of the fact that the south lane of the highway for eastbound traffic was 24 feet wide with adequate room to avoid colliding with plaintiff’s car, reasonable minds could well differ as to whether plaintiff’s negligence proximately contributed to her injury. Glasco v. Mendelman, 143 Ohio St., 649, 56 N. E. (2d), 210.

The judgment entered on the verdicts is therefore reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Conn and Carpenter, JJ., concur.


author: Matthews, J.

text:
    Albers, Appellee, v. Continental Casualty Co., Appellant.

      (No. 7172
    Decided December 5, 1949.)

      Messrs. Nichols, Wood, Marx & Gmter and Mr. Leonard D. Sluts, for appellee.

      Messrs. Long & Bloom, for appellant.
   Matthews, J.

The plaintiff-appellee recovered a judgment in the Municipal Court of Cincinnati upon an insurance policy providing for indemnity for loss resulting from bodily injury effected through accidental means. The specific provision of the policy upon which the plaintiff relies is as follows:

“ ‘Injury’ as used in this policy means bodily injury which is the sole cause of the loss and which is effected solely through accidental means while this policy is in force.”

As the result of an injury described as a pneumothorax, plaintiff required medical attention which cost him the amount for which he was awarded judgment. This appeal is from that judgment.

The trial was conducted without the intervention of a jury and the trial judge made a specific finding of facts and conclusions of law, upon which the judgment was based. However, we have before us a bill of exceptions containing all the evidence by which the soundness of the finding of facts must be tested.

The defendant-appellant asserts that the plaintiff failed in two respects essential to his recovery in this case. The first was that there was no evidence of injury effected through accidental means. The second was that the plaintiff failed to make proof of loss within the time required to fix liability under the terms of the policy, or failed to show waiver of such notice. The special finding of the trial court was adverse to the defendant’s contentions in both respects.

We have examined the bill of exceptions and are of the opinion that the. finding on the subject of waiver of notice is supported by the evidence.

The only issue left, for consideration is whether there was any substantial evidence to support the finding that the plaintiff sustained a bodily injury effected solely through accidental means.

Two medical experts testified — one called by the plaintiff and one by the defendant. Although the injury was described in the bill of particulars as a spontaneous pneumo-thorax, these experts differed sharply on the distinction between a spontaneous pneumothorax and a traumatic pneumo-thorax. They seemed to agree that a pneumo-thorax is a' rupture or lesion of the walls of the lungs resulting- in the escape of air from the lungs into the thoracic cavity in which the lungs are suspended. The expert called by plaintiff testified that the two terms were not- mutually exclusive, and that spontaneous pneumo-thorax may be either traumatic or nontraumatic. He placed the injury to the plaintiff in the traumatic class. In view of this testimony, the finding that the plaintiff suffered a bodily injury is supported by sufficient evidence and narrows the issue before us to the single question whether that injury was effected solely through accidental means.

The answer to that question depends on the proper interpretation of the plaintiff’s own testimony.

Shortly before December 22, 1947, the plaintiff had been found in good health by a competent physician who had subjected him to a general physical examination. On that day plaintiff attended a luncheon of the Knights of Columbus at the Metropole Hotel in Cincinnati. It was at that luncheon that the event happened which is the basis of the plaintiff’s claim. We quote his description of the occurrence:

“A. Well, on that particular day I was preparing myself for the chairmanship of a program which we were to disclose the following week, and naturally I was busying myself about the luncheon room, and I left my table, after I had sat down to eat my luncheon, and I hadn’t yet started when the thought came to me that I hadn’t approached several gentlemen at the table adjacent concerning the program we were to have the following week. I went to that table. Inasmuch as the luncheon was already under way I stooped down from my standing position to speak to these men who wore seated at the table and 1 placed my arms around two ■of them so I would get my head down so that—

“Q. Who wer.e these men, do you remember? A. Frank Ramacher, Ed Waldvogel and Ed in a humoi’ous kind of way, in response to my request made a joking kind of statement and we all got a big kick out of it at the table. It caused me to laugh heartily, harder than I usually do and as I laughed I had my arms stretched out, in a stooping position. I began to straighten up and I felt a terrible pain in my báck between my shoulders. I didn’t know whether I had a sudden attack of heartburn or what, or what the pressure was, but 1 felt a terrible pressure like that. I didn’t want to make a show of myself so I went back to my table and sat down, Vincent Ruthemeyer sitting to my left I said to him—

"* * *

“A. Well, Vincent Ruthemeyer was sitting to my right and I began getting weaker and under more severe pressure. I couldn’t imagine what was wrong and with this pressure began to cramp and get nauseated, and it went up through my neck and the side of my face. I felt like I was getting paralyzed.”

He consulted two doctors who were present. After leaving the luncheon meeting, he consulted a chiropractor on the same day and when he reached his home he called his physician who attended him during the1 resulting disability. No issue was made as to his disability or as to the reasonableness of the medical expense incident thereto.

Perhaps it will clarify the issue some by excluding two categories. We are not considering the terms of a health insurance policy. If we were, we would have no difficulty in affirming the judgment. It is not sickness which creates liability under the policy we are considering. It is not injury generally, but bodily injury effected solely through accidental means.

Nor are we concerned with a policy that limits liability to injuries effected by external means or violence. If it appears that the injury was occasioned by accidental means, the absence of external violence does not preclude a recovery.

We are not helped by cases construing the provision in the Constitution empowering' the General Assembly to provide for compensation to workmen “for injuries occasioned in the course of their employment, ’ ’' and by the statutory provisions for compensation for injuries or death “in the course of employment.”

Neither the Constitution nor the statutes expressly limit compensation to injuries caused by accidental means, and the courts have not so construed them. In such cases the courts are called upon to distinguish between “injury” and “disease” and whether the disability — injury or disease — has a causal connection with the employment. As the court said in Malone v. Industrial Commission, 140 Ohio St., 292, 300, 43 N. E. (2d), 266, “accidental and traumatic injuries, having the other essential elements of a compensable injury, are compensable whether they are the result of accidental means or the result of the mishap itself proximately causing the harm or damage. ’ ’

We are concerned here with the interpretation of the language of a contract and with the application of the disclosed meaning to the facts. As this contract was prepared by the defendant, it must be construed most strongly against it.

Before considering the precedents on such contracts, let us analyze the plaintiff’s testimony.

We find him in attendance at a luncheon and incidentally engaged in arranging a program for a meeting the following week and in so doing going from table to table in the dining room. After these visits he sat down at a table and was about to start eating his lunch when he discovered he had overlooked one table at which certain gentlemen were seated. Thereupon, he left his table and went to that table to talk to those gentlemen who were at that time engaged in eating lunch. Now up to this time, surely nothing unforeseen, unexpected or accidental had occurred. As the gentlemen to whom he wished to talk were seated eating their lunch, he. stooped down to get his head on an appropriate level with theirs. To place himself in a still better position to hear and be heard over the din of the dining room, he placed an arm around two of the men with whom he intended to engage in conversation. It is not suggested that there was anything in this that was involuntary or unintentional. When the three men were in that position, the plaintiff made a request of one of them who in response “in a humorous kind of way — made a joking kind of statement” which caused them all to laugh; the plaintiff harder than he usually did. The plaintiff was accustomed to laughing at jokes and his reaction in this case was not unexpected. Certainly, up to this point, nothing unexpected or out of the natural course of things had transpired. The humor seems to have been invited and there is no suggestion that the humor produced a paroxysm, or that the laughter was uncontrollable. The mirth may have been uncontrolled, but not uncontrollable. While plaintiff was still laughing he started to straighten up, However, right at this point he felt a terrible pain in his back between his shoulders. As later disclosed the pain resulted from a pneumo-thorax produced by a lesion or rupture of the lung membrane.

It is impossible to reach any conclusion other than that the injury to the lung was the only accidental occurrence in this whole affair. Such injury was not produced by any prior happening of an accidental nature. There was nothing abnormal — nothing unusual in what had taken place. It was the effect that was unusual.

Defendant’s counsel rely confidently upon New Amsterdam Casualty Co. v. Johnson,. Admx., 91 Ohio St., 155, 110 N. E., 475, in support of its position. The plaintiff’s counsel frankly admit their difficulty because of that case, but seek to distinguish it. In our opinion they have failed. We can see no distinction and the case has been frequently cited with approval. We quote the syllabus of that case:

“Where an insured holding an accident policy indemnifying him against bodily injuries which independently of all other causes are effected solely and exclusively by external, violent and accidental means, suffers an injury due to the dilation of the heart following the voluntary taking of a cold-water bath, it will not be considered as the result of an accident where under the circumstances attending the dilation, there is no evidence that anything occurred which the insured had not planned or anticipated, excepting the dilation and its consequences.”

In Burns v. Employers’ Liability Assurance Corp., 134 Ohio St., 222, 16 N. E. (2d), 316, the court considered a policy insuring against bodily injury caused solely by accidental means. Drinking water had become infected by the breaking of a sewer pipé and as a result the plaintiff’s husband had died of amoebic dysentery. Although the case could, perhaps, have been decided on the sole ground that decedent had died from disease rather than bodily injury, the court took occasion to consider generally the requirement for recovery under an accident policy, quoted with approval from New Amsterdam Casualty Co. v. Johnson, Admx., supra, and in its own language said: ‘ ‘ The element of accident must be found to exist in the means or cause which produced the bodily injury rather than in the result.”

The Supreme Court was called upon again to apply the language of an accident policy, similar in all material respects to the policy here under consideration, in Mitchell v. New York Life Ins. Co., 136 Ohio St., 551, 31 N. E. (2d), 858. It appeared that the plaintiff’s husband had died as the result of a ruptured sigmoid caused by a self-administered enema by connecting a rubber tube to a faucet in a bathtub. The trial court found for the plaintiff and the Court of Appeals affirmed. The plaintiff claimed that the city water pressure was suddenly increased, and that this supplied the accidental means by which the sigmoid was ruptured. The Supreme Court found that there was no evidence of any increase in the water pressure and no evidence that the decedent did not exercise control over the flow of water which caused his injury. The Supreme Court reversed the judgment on the authority of New Amsterdam Casualty Co. v. Johnson, Admx., supra. The court also cited and commented on several other cases construing policies insuring against injury caused by accidental means, and, while recognizing a conflict in the authorities in other jurisdictions, reached the conclusion that New Amsterdam Casualty Co. v. Johnson, Admx., was in accordance with the great weight of authority. Judge Hart wrote a dissenting opinion, but he agreed that, to recover on this kind of a policy, the evidence must show not only an accidental result, but also that that result was caused by accidental means.

In Hassay v. Metropolitan Life Ins. Co., 140 Ohio St., 266, 43 N. E. (2d), 229, a policy insuring against bodily injury or death caused solely through external, violent and accidental means was before the court. There was no doubt that the insured’s death had been caused by external and violent means. The insured’s wife owned a house which was wrecked by a terrific explosion. After the explosion the insured’s body, badly burned and mangled, was found near the wrecked building. A rag smelling of gasoline was lying near his body. The court held that, upon proof of death by external and violent means, the law raises a prima facie presumption that it was accidental, and that when the evidence is susceptible of different interpretations, a jury issue is presented. The jury had found for defendant and the judgment for it was affirmed. New Amsterdam Casualty Co. v. Johnson, Admx., supra, was approved again. Judge Hart delivered a dissenting opinion, but he wrote into it an approval of New Amsterdam Casualty Co. v. Johnson, Admx.

It should perhaps be noted that there is no requirement of external and violent means in the policy here under consideration, but there is the requirement of bodily injury effected solely by accidental means. There was no proof of external and violent means in this case and, therefore, no presumption arises that the means of injury was accidental. The burden of so proving was on the plaintiff and he was not aided by any presumption.

In the presence of these pronouncements by the Supreme Court, we find it unnecessary to inquire into the state of the law in other jurisdictions on the subject, or to resort to any original reasoning.

For these reasons, the judgment is reversed, and the cause remanded, with instructions to enter final judgment for the defendant.

Judgment reversed.

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


author: Conn, J.

text:
    McGilvery et al., Appellants, v. Shadel et al., Appellees.

      (No. 4390
    Decided December 12, 1949.)

      Messrs. DeMuth é Schneider, for appellants.

      Mr. Joseph G. Gluclc and. Mr. M. M. Garfinkel, for appellees.
   Conn, J.

This is an appeal by plaintiffs on questions of law and fact and was submitted on the pleadings, transcript of the docket and journal entries and evidence taken in the trial court, arguments and briefs of counsel. Upon the conclusion of plaintiffs’ evidence, the trial court sustained the motion of defendants Elmer G. Shadel and Margaret Shadel for a judgment in their favor.

This is an action for specific performance of a contract for the purchase of a parcel of land on which a church building had been erected for religious service, such services having since been discontinued.

There are two issues raised by the pleadings and the evidence, to wit, (1) Was the agreement between the trustees and the defendants Shadel evidenced by a sufficient memorandum in writing, within the meaning of the statute of frauds?, and (2) Was this action begun in the names of the real parties in interest?

It is admitted in the answers of defendants Shadel that they are husband and wife; that the husband, Elmer G. Shadel, is the owner of the residuary estate in such real property; and that he has no interest in the building thereon.

The evidence shows that the church of the Evangelical Association was known as the Salem Church; that services were discontinued in that church in the summer of 1945; and that a short time prior to September 28, 1945, the president of the board of trustees went to the home of Elmer G. Shadel to inquire if he would buy the church building and, he not being interested, negotiations were then undertaken to buy the land;

The record does not disclose how many times the parties met in negotiating the sale and purchase of the land, but all the conferences were at the home of the Shadels except the last meeting, which was held in the post office in Whitehouse,Ohio, by prearrangement, at which time Elmer G. Shadel was paid $25 cash on the purchase price of the land, pursuant to the agreement, and for which he gave a receipt as follows:

“Sept. 28, 1945

“Received from Albert Weckerly twenty five dollars ($25), as part payment on two hundred and seventy five dollars $275, on church lot.

“Elmer G. Shadle.”

The record discloses further that defendants Shade! were informed that the plaintiffs had purchased the church building and lot from the trustees, and that the deed for the land should be made to them. Subsequently, to wit, January 21, 1946, counsel for plaintiffs wrote a letter to defendant, Elmer G. Shadel, requesting that a deed be executed to plaintiffs. In reply to this letter, Mrs. Shadel wrote the following letter:.

“Waterville, Ohio, Jan. 22

“Dear Sir:

“In regards to your letter. It is true that we sold the church ground to McGilvery and have receipt for $25.

“In going about to have a deed written up found that we only had 1/3 interest in it so put a hault [sic\ on it.

“Now you realize how it stands, so we feel that we can do nothing about it unless the other airs [sic] sign off. We would be glad to return the $25.

“Yours truly

“Mr. and Mrs. Elmer Shadle.”

On January 25, 1946, counsel for plaintiffs advised defendants Shadel by letter that he approved the title and would be “satisfied with a deed from Eirner G. Shadel and wife for the property.” A warranty deed in due form, correctly describing the land, was prepared and sent to defendants Shadel and they were requested to sign same. This deed was returned unexecuted to plaintiffs’ counsel, with the following letter:

“Waterville, Ohio, Feb. 1st, 1946.

“E. Donald Demuth:

“Dear Sir:

“I am very sorry to inform you that the property described in the warranty deed form which you enclosed in your letter; is not for sale. Margaret Shadle is not interested in selling the property; and will not sign legal papers for the sale thereof. Hoping this explains matters to your satisfaction.

“Thanking you for your trouble,

“Respectfully yours,

“Elmer G. Shadle.”

Shortly thereafter, this action for specific performance was begun by plaintiffs.

The contention of defendants Shadel that there is no memorandum of the contract in writing within the meaning of the statute of frauds will be first considered.

It is apparent that the memorandum is something more than a receipt for the payment of money, as it is expressly stated therein that the $25 is “part payment on two hundred and seventy five dollars on church lot.” This writing is in the handwriting of and is signed by the owner of the land, who testified that fie had in mind the “Evangelical lot, Evangelical church lot” when he “wrote that.” However, there are other writings “signed by the party to be charged,” as already referred to. In the letter written by Mrs. Snadel, she refers to the contract for the sale of “the church ground to McGilvery” and offered as an excuse for not furnishing a deed as requested the statement that they “found that we only had 1/3 interest.” Upon a deed being mailed to the Shadels in the usual form, with the description of the church lot by metes and bounds, Elmer G. Shadel wrote a letter returning the deed, stating therein that the property described in the warranty deed “is not for sale, Margaret Shadel is not interested in selling the property and will not sign legal papers for the sale thereof.”

These writings, signed by the parties, together with the deed for the land, submitted by plaintiffs, wherein the “church lot” is fully described, refer to the same subject matter and are logically related to the agreement in point of time. When read together, they unmistakeablv constitute “some memorandum” of the agreement and appear to satisfy the statute.

Early in Ohio, the Supreme Court in the case of Thayer v. Luce, 22 Ohio St., 62, held:

“Several writings, though made at different times, may be construed together, for the purpose of ascertaining the terms of a contract required, by the statute of frauds, to be in writing and signed by the party to be charged therewith.

“If some only of such writings be so signed, reference must be specifically made therein to those which are not so signed; but if each of the writings be so signed, such reference to the others need not be made, if, by inspection and comparison, it appear that they severally relate to or form part of the same transaction.”

See, also, 19 Ohio Jurisprudence, 603, Section 75; 49 American Jurisprudence, 695, Section 392; Restatement of the Law of Contracts, Section 208.

Defendants Shadel place much reliance on Kling, Admr., v. Bordner, 65 Ohio St., 86, 61 N. E., 148, and the much more recent case of Schmidt v. Weston, 150 Ohio St., 293, 82 N. E. (2d), 284. We wish to call particular attention to the issues in those eases. In the Klmg case the action was predicated on a letter written to plaintiff by her son at the request of plaintiff ’s sister, who was ill and in need of care. The letter expressly stated that “if you come and stay with her, after her death all that is left after her debts and funeral expenses are paid shall be yours.” Plaintiff prayed for the amount of the net estate and upon trial recovered-' judgment for the amount prayed for. Following the-verdict, plaintiff obtained leave to file an amended petition setting up a second cause of action on a verbal contract entered into a few days later than the one set up in her original petition, but creating the same obligation. The Supreme Court construed those contracts as agreements concerning an estate in lands, as the estate consisted principally of real property.

It is pointed out in the opinion that the letter did not contain a promise to plaintiff “to transfer to her by any mode of conveyance the defendant’s estate or any part of it that is capable of identification,” particular reference being made to that portion of the letter referred to above.

The court held that the agreement was within the statute and the part performance relied on was insufficient, and that plaintiff’s remedy would be to seek to recover the value of her services. From the foregoing recital, it is apparent that the facts in the Klmg ease are substantially dissimilar to the facts in the instant case.

The Schmidt case was an action for specific performance of a contract for the sale of land, and the question in that case was whether parol evidence could “be received to correct a discrepancy in the description of the land.” The property was described as “premises owned by H. C. Weston located in West Richfield twp.,” but there was no such township. The court noted in its opinion that there was no attempt to reform the contract before that action was begun. The court held that “the description must be in itself capable of application to something definite before parol testimony can be admitted to identify any property as the language described,” and that the memorandum was insufficient under the statute.

In the instant case, the property is identified and accurately described, as shown by competent evidence in writing.

It is pertinent to this discussion to call attention to the established rule in Ohio that the syllabus of a case decided by the Supreme Court of Ohio states the law of that particular ease. This rule was adopted in 1858. 5 Ohio St., v. 94 Ohio St., ix, and reporter’s note.

It may be observed further that the rule of law stated in the syllabus of a case decided by the Supreme Court, or where reliance is placed on language found in the court’s opinion, the law thus announced may not be subsequently applied and construed beyond the area limited by the particular facts in each case. Baltimore & Ohio Rd. Co. v. Baillie, 112 Ohio St., 567, 148 N. E., 233; Leube v. Prudential Ins. Co., 147 Ohio St., 450, 456; 72 N. E. (2d), 76; Ward v. Bickerstaff, 79 Ohio App., 362, 365, 73 N. E. (2d), 877.

It is claimed further by defendants Shadel that plaintiffs are not the real parties in interest, and that there is no privity of contract between plaintiffs and defendants. On the record before us, the contention is not well founded. Competent evidence was offered to the effect that defendants Shadel were informed that plaintiffs were purchasing the church lot and building, and it is easily inferable from the record that it was the understanding between the parties that the deed for the lot would be made directly to the plaintiffs. This conclusion is confirmed by the documentary evidence.

It appears also that when the deed to plaintiffs was submitted to the owners for execution, or at any other time, no objection was made as to the manner of conveyance. That plaintiffs are the real parties in interest is further shown by the cash payment for the property, the making of substantial improvements by plaintiffs and their possession of the property since March 1946.

Judgment is awarded for plaintiffs as prayed for.

Judgment accordingly.

Carpenter and Fess, JJ., concur.


text:
    Burcham, Appellant, v. Coney Island, Inc., Appellee.

      (No. 7170
    Decided November 21, 1949.)

      Mr. John M. McCaslin, Jr., for appellant.

      Messrs. Rendigs <& Fry and Mr. Robert M. Dennis, for appellee.
   Ross, P. J.

This is an appeal from a judgment of the Court of Common Pleas of Hamilton County which reversed a judgment of the Municipal Court of Cincinnati for the plaintiff, on the ground that such judgment of the Municipal Court of Cincinnati was against the manifest weight of the evidence.

The Court of Common Pleas entered final judgment for the defendant.

This latter action of the Common Pleas Court can be sustained only if (1) no cause of action was alleged or shown to exist by some substantial evidence or (2) the defendant sustained in this case the defense of contributory negligence by uncontroverted evidence.

If such action of the Court of Common Pleas can be sustained on either of these grounds, then its action upon the weight of the evidence need not be considered.

The case was tried to the court without a jury.

In the bill of particulars the plaintiff alleges that the defendant “operates an amusement park with a parldng lot adjacent thereto”; that “he delivered his motorcycle to defendant’s agents for the purpose of keeping it while plaintiff was absent in the amusement park ’ ’; that plaintiff paid a consideration of ten cents therefor; and that upon his return to the parking lot he demanded his motorcycle and the defendant refused or failed to return it to him. Judgment is prayed for in the amount of $750.

By stipulation, the value of the motorcycle was agreed to be $650, and this was the amount of the judgment rendered against the defendant.

In effect, the defense is a general denial.

The evidence must be construed most favorably to plaintiff upon consideration of the power of the Court of Common Pleas to render final judgment.

Plaintiff, the only witness in his behalf, testified that he drove into the park, paid ten cents admission and ten cents for the motorcycle and “we were motioned down the fence”; and that he drove the motorcycle down the fence and parked there “and as we were going by I asked the cop or the policeman if he would watch the motorcycles and he said yes, as he had a number of times before and we went on into the park and watched the fireworks and we came back and I couldn’t see my motorcycle, and I went up to the cop and asked where my motorcycle was, and he said two fellows rode out on the motorcycle before; and I asked him if he seen the motorcycle and if he got down close to look. He said no — he just noticed two motorcycles go out.”

The following facts appear from the undisputed evidence :

The “cop” is employed by the amusement company to preserve order in the amusement park. He is stationed at a point constituting the entrance from the amusement park to the parking lot which is capable of accommodating 1,000 automobiles and 15 motorcycles, a small area being set apart for the latter. No ticket or receipt is given for any .vehicle and no specific spot in the area is allotted to any vehicle. Owners of automobiles or motorcycles may lock their vehicles or not, as they choose, but plaintiff’s motorcycle could not he locked because the ignition lock was broken. However, he could have rendered it useless as a vehicle by removing a part of the mechanism, but he took no precaution of any kind to protect it against theft other than to ask the “cop’’ to watch it.

No employee of the defendant was authorized in any way to assume responsibility for any vehicle and had no authority to do anything except to designate the general areas in which motor vehicles could he parked by their owners.

The plaintiff testified that the park policemen had several times in the past agreed to “watch the plaintiff’s motorcycle as he did in the instant case.”

From the evidence it is clear that such policeman was in a different class from the regular parking lot attendants. He was dressed in a different manner and, although stationed near the entrance from the amusement park to the parking lot, took no part in the parking except to indicate the general locality in which motorcycles were to be placed. The plaintiff stated that he knew where this area was located, having placed his motorcycle there on previous occasions, and that he chose the particular spot in which to park it.

The plaintiff stated: “The lock was broke. I could have fixed it so it couldn’t run, hut I didn’t have any idea it would be stolen out of the parking lot. ’ ’

In view of this statement, it is strange why he should have asked the “cop” to watch it. The park policeman denied he was so requested. From the record, outside of a mere wave of the hand toward the area set aside for motor vehicles by a park policeman as distinguished from a parking lot attendant stationed at the entrance to the parking lot from the amusement park, there is not the slightest indication that the policeman had anything to do with the parking of any motorcycle. It must have been evident to any reasonable person that he had no connection with the parking lot. The plaintiff put his motorcycle where he wanted in the general area, and he used no precaution of any ■nature to prevent its theft. It was after he had so deposited the motorcycle and left the parking lot that he requested the amusement park policeman to “watch” it. It must be considered that, under these circumstances, if he did request the park policeman to •“watch” his motorcycle as distinguished from 15 others, the acquiescence of the policeman must be considered as a personal favor to the plaintiff and there was not the slightest foundation, based upon the conduct of the defendant or its employees, justifying the conclusion that such agreement by the policeman was within the scope of his employment. All the evidence points to the contrary conclusion.

Certainly the plaintiff had no reasonable ground to suppose that the park policeman would devote his entire time in guarding the safety of the plaintiff’s motorcycle in total disregard of his other obvious duties. Just what the plaintiff expected by the use of the word, “watch,” is not clear.

There is no evidence to indicate either a definite contract of bailment as alleged by plaintiff in his bill of particulars or the existence of acts or conduct upon the part of the defendant or its employees justifying a reasonable person in believing that such an obligation of bailment was assumed.

When the owner of a motor vehicle drives it into a parking lot, he must be aware that more than one relationship between the operator and himself may be created. The owner may be merely interested in securing a place to leave his vehicle, or he may also wish to secure its safety. It is only reasonable to require the owner of the vehicle to use reasonable measures to insure the acceptance of responsibility by the operator of the parking lot, if the added burden of bailment is desired by the owner of the vehicle.

In Agriculture Ins. Co. v. Constantine, 144 Ohio St., 275, 58 N. E. (2d), 658, it is stated in the syllabus:

“"Whether the relationship between a driver who offers and a parking lot operator who accepts a motor vehicle for the purpose of parking, is that of bailor and bailee or of lessor and lessee, depends upon whether the parking lot operator assumes control over and custody of such vehicle, or simply grants permission to park the vehicle at a designated place upon the parking lot.”

The judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

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


text:
    Morrin, an Infant, Appellant, v. Bond, Appellee.

      (No. 4437
    Decided February 20, 1950.)

      Mr. Steven L. MarJcowshi, for appellant.

      Messrs. Winchester é Winchester, for appellee.
   Fess, J.

This is an appeal on questions of law from a judgment entered upon a verdict for defendant, directed by the court at the conclusion of plaintiff’s case.

Plaintiff, a minor, brought his action by his father and next friend against the defendant for injuries sustained in a collision which occurred at the intersection of Angel drive and Fortune drive, outside the city of Toledo, in Washington township, Lucas county, Ohio. The streets intersect at right angles — Angel drive running north and south and Fortune drive east and west. Angel drive is a cinder road and Fortune drive is tar-bound macadam. The streets are approximately 18 feet wide and there are no curbs or sidewalks adjacent thereto.

The accident happened about 2:00 p. m. on July 25, 1942, when the child was seven years old. Plaintiff was riding his bicycle south on Angel drive and approaching Fortune drive. He testified that he was riding on the portion of the cinder road to the left of the center and expected to make a left-hand turn into Fortune drive enroute to his home. He said also that prior to entering Fortune drive he stopped about a foot away from the drive and looked and listened but saw or heard no approaching vehicle. His view to his left was obscured by some vines. Upon entering the intersection he was struck by the automobile driven by the defendant. The child denied that he ran into the side of the automobile. Another witness testified defendant was driving 30 miles an hour and did not stop or retard his speed before entering the intersection. This witness did not see the child on the bicycle or any collision therewith but observed the automobile swerve to its left and enter the garden at the southwest corner of the intersection. Following the collision there was blue paint from the bicycle on the chrome of the automobile bumper between the headlight and the center of the car.

The boy’s mother testified: “Mr. Bond (defendant) made the statement then that he didn’t mean to do it. He also stated that he didn’t see — he didn’t know the object he had struck until after he had done it.”

The boy’s father testified: “He (defendant) said at the time that he didn’t mean to do it and he didn’t see him until he was on him and he says he didn’t mean to do it. ’ ’

After plaintiff rested, on motion of the defendant, the court directed the jury to return a verdict for the defendant. Neither negligence nor contributory negligence is presumed (Bush, Admr., v. Harvey Transfer Co., 146 Ohio St., 657, 669, 67 N. E. [2d], 851) and a presumption of negligence does not arise from the mere fact that a collision occurs (Pitt, Admx., v. Nichols, 138 Ohio St., 555, 37 N. E. [2d], 379). But in the instant case the evidence at the close of plaintiff’s case disclosed circumstances from which a rational conclusion may be drawn that the defendant was negligent. The boy’s mother and father testified that the defendant said he did not see the child until when or after he struck him. Section 6307-20, General Code, provides that “No person shall operate a vehicle * * * without due regard for the safety and rights of pedestrians and drivers # # * of all other vehicles, * * * and so as to endanger the life, limb or property of any person while in the lawful use of the streets or highways.” In Section 6307-2, General Code, a bicycle is classified as a vehicle. See, also, Section 6307-50, General Code. Since the boy said he was on the left-hand side of the road and intended to make a left-hand turn, it may be inferred that, although approaching from defendant’s right, the child lost his preferential right of way (Morris v. Bloomgren, 127 Ohio St., 147, 187 N. E., 2, 89 A. L. R., 831) and could not be said to have been lawfully using the highway. But even in such event the motorist was bound to exercise ordinary care in entering and crossing the intersection. This court has recently said that one approaching or crossing an intersection in a lawful manner is relegated to the duty of exercising ordinary care with respect to one unlawfully within the line of travel. Erdman v. Mestrovitch (Court of Appeals for the Sixth Appellate District), unreported. See, also, Souder v. Hassenfeldt, 48 Ohio App., 377, 194 N. E., 47; Schwab v. Keeler, 81 Ohio App., 291, 79 N. E. (2d), 176.

Since the defendant failed to see the plaintiff before he struck him, the jury might infer that defendant was operating his vehicle without due regard to plaintiff.

A rational conclusion might also be drawn that the defendant violated the assured-clear-distance-ahead provision. Tresise v. Ashdown, Admr., 118 Ohio St., 307, 58 A. L. R., 1476. In order to avoid the legal imputation of negligence arising from such violation, the motorist must establish that, without his fault, compliance with the rule was rendered impossible. Smiley v. Arrow Spring Bed Co., 138 Ohio St., 81, 87, 33 N. E. (2d), 3. No doubt, upon retrial, defendant’s evidence will disclose that his assured clear distance was suddenly cut down by the sudden entrance of the boy and bicycle into his line of travel. But on the state of the evidence at the close of plaintiff’s case, defendant did not see the plaintiff and did not stop within the assured clear distance ahead.

Plaintiff’s evidence tended to show he was guilty of negligence, but in collisions between a motorist and a pedestrian the Supreme Court has held that the question of proximate cause is for the jury, where reasonable minds may differ. Smith v. Zone Cabs, a Partnership, 135 Ohio St., 415, 21 N. E. (2d), 336; Glasco v. Mendelman, 143 Ohio St., 649, 56 N. E. (2d), 210; Betras, Admr., v. G. M. McKelvey Co., 148 Ohio St. 523, 76 N. E. (2d), 280.

Although in the latter case cited the Supreme Court denied that those cases adopted the doctrine of comparative negligence, the principle is a relaxation of the rule that where reasonable minds do not differ the question is for the court and not the jury as applied to the question of proximate cause in collisions involving a motorist and a pedestrian. The principle ñas not been applied to other types of cases, such as railroad crossing cases, but if the question of proximate cause is one for the jury in cases involving motorists and pedestrians, there is no reason why it should not be applied to a collision between a motorist and a child riding a bicycle.

"Whether plaintiff’s conduct met the standard of care required of a boy seven years old and of his intelligence and experience, and, if not, whether his failure to exercise such care contributed to the collision were issues of fact to be determined by the jury. L. E. & W. Railroad Co. v. Mackey, 53 Ohio St., 370, 41 N. E., 980; Scherer, an Infant, v. Wood, 19 Ohio App., 381; Girard v. Smrek, a Minor, 52 Ohio App., 135, 3 N. E. (2d), 60; Mazza v. Greenstein, 82 Ohio App., 145, 80 N. E. (2d), 216.

We, therefore, conclude that, upon the state of the evidence at the close of plaintiff’s case, giving plaintiff the benefit of every reasonable inference arising from such evidence, reasonable minds could reach different conclusions with respect to the negligence of the defendant, the contributory negligence of the plaintiff and the proximate cause of the injury.

The judgment is, therefore, reversed, and the cause remanded for a new trial.

Judgment, reversed and cause remanded.

Conn and Carpenter, JJ., concur.