author: Wiseman, P. J.

text:
    Sumner, Admx., Appellant, v. Lambert et al., Appellees.

      (No. 2224
    Decided December 8, 1953.)

      Mr. Arthur T. Eaton and Mr. Robert B. Brumbaugh, for appellant.

      Messrs. Gurtner, Brenton S O’Hara, for appellees.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery County, which directed a verdict in favor of defendants at the close of the plaintiff’s case in an action for wrongful death.

The Hoke Plumbing Company, the employer of plaintiff’s decedent, held the primary contract to do the plumbing work for Forsythe Homes, Inc., which was engaged in building a large number of residences. The Hoke Plumbing Company engaged C. D. Webb to dig the ditches from the main sewer to the basement wall. Webb in turn subcontracted this work to Lambert Brothers, a partnership, the defendants herein, who were in the excavating business. The defendants contracted to dig a straight ditch of the required depth and approximately 30 inches wide, from the main sewer to the basement walls. The defendants were not required under their contract to do any sloping, shoring or bracing of the ditch wall.

On May 22, 1948, the defendants dug four ditches. The employees of The Hoke Plumbing Company, one of whom was plaintiff’s decedent, followed closely behind the .defendants’ excavating equipment to lay the tile in the ditch and make the connection with the main sewer. No precautionary measures were taken by The Hoke Plumbing Company or its employees in sloping, shoring or bracing the ditch walls while laying the tile and making connection with the sewer. When the Lambert Brothers finished the digging of the fourth and last ditch on the day in question, they moved their excavating equipment some distance away and left the job. Their work, had been finished and the premises.. were turned over to The Hoke Plumbing Company. Immediately the employees of The Hoke Plumbing-Company, who had completed the work of laying the tile in the other three ditches, began to lay tile in the fourth and last ditch. While other workmen of The Hoke Plumbing Company were laying tile in the ditch near the basement wall, the plaintiff’s decedent proceeded to make the connection with the main sewer. The ditch was approximately 50 feet long, extending in a northerly and southerly direction, and approximately four to five feet deep at the basement wall, being the north end, and from nine to 11 feet deep at the main sewer, being- the south end. The ditch was approximately 30 inches in width, with vertical sides. The earth was mostly sandy clay. The weather was fair and the earth was dry. The defendants excavated the ditch by the use of a steam shovel and piled the earth on the east side of the ditch. While the plaintiff’s decedent was in a crouched position in the south end of the ditch, and engaged in removing a small quantity of earth near the main sewer preparatory to making the connection, the wall on the east side of the ditch caved in and covered him with three feet of earth, causing his death by suffocation.

The case was presented to the jury on the second amended petition of the plaintiff, the amended answer of the defendants, and the reply of plaintiff.- Plaintiff’s claim was grounded on common-law negligence. Plaintiff alleged four specifications of negligence:

1. Failure to slope or step down the vertical sides of the ditch.

2. Failure to brace or shore the vertical sides of the ditch.

3. Undercutting the vertical sides of the ditch.

4. Piling the excavated earth so close to the edge of the ditch as to cause a cave-in, to wit, less than 18 .inches from the side of the ditch.

The defendants in their amended answer set up four defenses. The first defense, after making certain admissions, was a general denial. In the second defense the defendants alleged that the cavé-in occurred after the defendants had completed their work of excavating the ditch and while the premises were under the sole and exclusive control of the employer of plaintiff’s decedent. In the third defense, the defendants pleaded contributory negligence and in the fourth defense they pleaded assumption of risk. The reply was in the nature of a general denial.

The evidence showed that the cave-in occurred approximately two hours after the defendants had finished the excavating and after they had moved their equipment some distance away and left the job. The defendants had excavated in a similar manner approximately 134 of such ditches in the project. The defendants were not required under their contract with Webb to slope, shore or brace the sides of the ditch. The defendants under their contract were required only to excavate a straight ditch of approximately 30 inches in width, the required depth, from basement wall to the main sewer, and leave it in this condition for other contractors and their workmen to perform their work. The evidence shows that the defendants performed their work as required by the contract. A short time before the cave-in, some earth near the water main, which was approximately 8 or 9 feet from the main sewer, fell into the ditch, whereupon the employees of The Hoke Plumbing Company shoveled such earth out of the ditch.

There is conflict in the evidence as to the location of the excavated earth. Some of the witnesses testified that the excavated earth was piled so close that fine particles of earth rolled into the ditch; other witnesses testified that there was space for the workmen to walk between the edge of the ditch and the pile of earth. At the deep end of the ditch, where the cave-in occurred, and where a greater amount of earth had been excavated, the earth was piled four or five feet high. There is no evidence that the sides of the ditch had been undercut as alleged.

The plaintiff’s decedent was an apprentice plumber and had worked mostly indoors, but occasionally was assigned to work on this project, and he had previously assisted in the laying of tile and the making of connections with the main sewer. All the ditches excavated by the defendants on this project, numbering approximately 134, were excavated as straight ditches, without sloping, shoring or bracing. Furthermore, The Hoke Plumbing Company, the employer of plaintiff’s decedent, did nothing in the way of sloping, shoring or bracing the sides of any of these ditches to protect its employees.

At the close of plaintiff’s case the court directed a verdict for defendants, stating that there was no evidence that the sides of the ditch had been undercut; that the evidence shows that the sides of the ditch were vertical, without being sloped, shored or braced; and that there was considerable evidence indicating that the excavated earth was piled nearer than 18 inches from the side of the ditch. The court found that all four specifications of negligence coincided with specific safety requirements adopted by the Industrial Commission of Ohio. The court ruled that those requirements applied only to employers for the protection of their own employees and did not extend to plaintiff’s decedent, who.was not an employee of the defendants. The court ruled that plaintiff’s right of recovery was grounded on common-law negligence: that under the evidence, plaintiff’s decedent assumed the risk; and that, while there was a conflict in the evidence as to the location of the excavated earth, the evideuce left it to the conjecture of the jury as to the proximate cause of the cave-in.

The plaintiff, appellant herein, first filed 12 separate claimed errors. In his brief counsel for plaintiff does not discuss the 12 errors assigned, but discusses the claimed errors under three general headings, all which are embraced in the 12 errors previously assigned. We are required to pass on only the errors discussed in plaintiff’s brief.

The plaintiff contends that the court erred in directing a verdict for the defendants as it was contrary to law and the evidence. This assignment of error is all-inclusive, and under it several propositions are raised. The court, in sustaining the defendants’ motion for directed verdict, made a lengthy statement to the jury in which the questions raised in the trial were discussed. A statement of the court relative to proximate cause, assumption of risk, and specific safety requirements promulgated by the Industrial Commission of Ohio cannot be made the subject of an assignment of error on the basis of an improper charge to the jury. No charge is necessary in sustaining a motion for directed verdict, and anything said to the jury by the trial judge in so directing the verdict cannot be made the subject of error. Such matters can be made the subject of an assignment of error in determining whether the evidence in its entirety is or is not sufficient under the issues to warrant sending the case to the jury, or in determining whether the trial court erred in the admission or exclusion of evidence. These questions will be so discussed.

We find no error in the refusal of the trial court to permit the plaintiff to introduce into evidence' the specific safety requirements relating to building and construction work adopted by the Industrial Commission of Ohio, as revised effective July 15, 1942, and being bulletin No. 202. The plaintiff sought the introduction of such specific safety requirements for the purpose of giving the jury a standard of care by which to judge the conduct of the defendants in excavating the ditch. The trial court ruled, and we believe correctly, that the specific safety requirements had no application to the issues presented; that such requirements apply to employer and employee; and that plaintiff’s decedent was not an employee of the defendants. 65 Corpus Juris Secundum, 1061, Section 240; Garthe v. Ruppert, 264 N. Y., 290, 190 N. E., 643; Neadors v. Huffman, 191 Okl., 204, 127 P. (2d), 806; Mechler v. McMahon, 184 Minn., 476, 239 N. W., 605, 608.

The plaintiff sought to introduce into evidence certain photographs of the ditch, taken at the time persons were engaged in an effort to revive the decedent in the bottom of the ditch. The court ruled that such photographs were inadmissible on the ground they would prejudice the jury, since the photographs primarily depicted the efforts to revive the decedent. We agree with the trial court that the photographs would have had a tendency to stir the emotions of the jury to the prejudice of the defendants. Other photographs showing the condition of the ditch were admitted in evidence. Therefore, the exclusion of the photographs in question was not prejudicial.

After plaintiff rested, and before the court ruled on the motion of the defendants for a directed verdict, plaintiff requested leave to amend her petition and moved that the case be reopened for the purpose of introducing evidence to the effect that the work performed by the defendants was not done in a workmanlike manner and was not done according to the general custom, usage and practice of excavating contractors in the general vicinity. Defendants objected on the ground of surprise and departure from the allegations in the petition. Plaintiff’s motion was overruled. Plaintiff claims that the trial court abused its discretion. It will be observed that the request was not for an amendment of the petition to conform to the proof. As we view it, the plaintiff was not entitled to the amendment and the right to reopen the case as a matter' of right. Such matters lie within the sound discretion of the trial court. 39 Ohio Jurisprudence, 650, Section 76. We fail to find an abuse of discretion or the commission of prejudicial error in the action taken.

The trial court recognized the conflict in the evidence relative to the location of the excavated earth, but questioned whether the placing of the excavated earth near the side of the ditch was the proximate cause of the cave-in; and recognized that on this question the jury could only speculate or conjecture whether the location of the excavated earth caused the cave-in. The evidence shows that the loose dirt was piled four or five feet high and the evidence most favorable to the plaintiff was that it was so near the edge of the ditch that particles fell into the ditch. It was hot necessary that plaintiff be able to prove the cause of the cave-in by direct evidence, but it was sufficient if evidence supported the inferences which might reasonably be drawn by the jury. Whether the location of the excavated earth was a proximate cause of the cave-in, or caused more earth to fall or roll into the ditch and cover the decedent was a jury question, as were the questions of contributory negligence and assumption of risk on the part of plaintiff’s decedent in the light of the facts presented. 29 Ohio Jurisprudence, 718, 742, Sections 200, 206 and 207. We find these assignments of error well made, and this would require a reversal and a remand for new trial but for the ruling of this court on the principal issue in the case.

We come now to a consideration of the principal and determinative question in the case. It is contended by the defendants that they should not be chargeable with common-law negligence in failing to slope, shore or brace the walls of the ditch, or in piling the excavated earth too near the side of the ditch for injuries suffered by an employee of The Hoke Plumbing Company, after the defendants had completed their work, had left the job, and had placed the premises in the complete possession and control of The Hoke Plumbing Company and its employees. Without question, the evidence shows that The Hoke Plumbing Company had accepted the work of the defendants and had approved the work of excavation performed by the defendants without any precautionary measures being taken by the defendants in sloping, shoring or bracing the sides of the ditch. In fact, the evidence clearly shows that the defendants never contracted with Webb or The Hoke Plumbing Company to slope, shore or brace the sides of the ditch. The evidence shows that the defendants performed their work in accordance with the contract, to wit, to dig a straight ditch. Hid these facts impose a common-law liability on the defendants for negligence in the failure to slope, shore or brace the sides of the ditch? Unquestionably, The Hoke Plumbing Company owed a duty to its own employees to protect them against a cave-in while laying tile in the ditch. Can the defendants be held liable also? As a general rule, one tort-feasor may not claim exoneration on account of the fault of another. The facts in this case call for the application of the law with respect to the liability of subcontractors or independent contractors for an injury suffered by a third person. Counsel for the plaintiff cite 2 Restatement of the Law of Torts, 1024, Section 384, as authority for a principle of law holding the defendants liable. However, in the examination of this principle of law we find it to be applicable only “while the work is in his charge.” In the instant case the work on the ditch was no longer in charge of the defendants; the work of the defendants had been accomplished. At the time of the cave-in, the work was being done by The Hoke Plumbing Company, and. the ditch was in its sole possession and control. We find the principle of law stated in 2 Restatement of the Law of Torts, 1030, Section 385, to be applicable. This principle is stated as follows:

“One who on behalf of the possessor of land erects a structure or creates any other condition thereon is subject to liability to others within or without the land for bodily harm caused to them by the dangerous character of the structure or condition after his work has been accepted by the possessor under the same rules as those stated iri Sections 394 to 398, 403 and 404 as determining the liability of one who as manufacturer or independent contractor makes a chattel for the use of others.”

It will be observed that this principle of law is analogous to the principle of law fixing liability on a manufacturer of an article which is of a dangerous character, which fact is unknown to the user.

In comment b is found this statement:

“As the liability of a servant or an independent contractor who erects a structure upon land or otherwise changes its physical condition is determined by the same rules as those which determine the liability of a manufacturer of a chattel, it follows that such a servant or contractor who turns over the land with knowledge that his work has made it dangerous in a manner unlikely to be discovered by the possessor is subject to liability both to the possessor, and those who come upon the land with the consent of the possessor or who are likely to be in its vicinity. ’ ’

It will be observed that this principle of law has no application to the uncontradicted facts in this case. There is no evidence in this case to show that the defendants had knowledge that their work was inherently dangerous to any persons coining upon the premises for the purpose of doing further work. Furthermore, this principle of law is applicable only where the dangerous condition of the land is unlikely to be discovered by the possessor or other person coming upon the land. In the instant case, The Hoke Plumbing Company and its employees were able to observe equally as well as the defendants the condition of the excavated ditch and to determine whether it was dangerous.

Counsel for the plaintiff cite also a statement from 38 A. L. R., 431, Section 12. We do not believe that this statement of the law applies to the facts in this case for the reason that the defendants had performed their work under the contract, had moved their equipment from the premises, had turned over possession and control to the decedent’s employer, and their work had been accepted by such employer. The applicable principle of law is stated in 65 Corpus Juris Secundum, 613, Section 95, paragraph b, under the heading, “After Completion and Acceptance of Work.”

The rule of law is stated as follows:

“As a general rule, after the work has been completed and turned over to, and accepted by, the owner, the contractor is not liable to third persons for injuries suffered by reason of the condition of the work.”

The text under the headnote is as follows:

“It is a well-established general rule that, where the work of an independent contractor is completed, turned over to, and accepted by, the owner, the contractor is not liable to third persons for damages or injuries subsequently suffered by reason of the condition of the work, even though he was negligent in carrying out the contract, at least if the defect is not hidden but readily observable on reasonable inspection. A fortiori, the contractor is not liable where he performed the work in strict accordance with the terms of their contract or where the injury is not due to the condition in which he left the work. There are also well recognized exceptions to the general rule, one of which is that the contractor is liable where the work is a nuisance per se, or inherently or intrinsically dangerous, and another of which is that he is liable where the work done and turned over by him is so negligently defective as to be imminently dangerous to third persons, particularly where there is a continuous duty of inspection on the contractor after completion of the work, provided, in the ease of a dangerous situation, the contractor knows, or should know, of the situation created by him, and the owner or contractee does not know of the dangerous condition or defect and would not discover it by reasonable inspection. ’ ’

Again, on page 616, the text reads as follows:

“Also, like the general contractor, the subcontractor is not liable for injuries resulting from defective work after he has transferred control and possession to the general contractor, but he may be liable, under some circumstances, for damages sufféred by a third person after the work was completed and turned over, as where he so negligently performed the subcontract as to render the work or structure unsafe and dangerous when put to its contemplated use, and he knew of the dangerous condition, and the person injured did not know thereof and could not have ascertained it by careful inspection.”

It will be observed that this principle of law governing the liability of a subcontractor or independent contractor turns upon the following factors, i. e., the acceptance of the work by the owner or the general contractor: the knowledge of the dangerous condition on the part of the subcontractor or independant contractor; and the lack of knowledge of the dangerous condition on the part of the person injured. Numerous cases are cited from various jurisdictions supporting this proposition of law.

In the footnote on page 613 is found the reason for the rule, which is stated as follows:

‘ ‘ The rule is based on the reason that the negligence of the owner, and not that of the contractor, is the proximate cause of the injuries, the theory being that, by occupying and resuming exclusive possession of the work, the owner deprives the contractor of all opportunity to rectify his wrong. Miller v. Davis & Averill, 61 A. (2d), 253, 137 N. J. Law, 671.”

Again, on page 613, is found the footnote:

“Practical acceptance of the contractor’s work after completion thereof is sufficient to bring the case within the operation of the rule; a formal acceptance is not required.”

In the instant case, the evidence shows that there was a practical acceptance of the premises and control of the excavated ditch by The Hoke Plumbing Company after the defendants had finished the completion of the excavation and left the premises. The general principle of law stated above in its applicability to dangerous conditions is analogous to the position of the manufacturer of a dangerous article.

This analogy is stated in the footnote on page 613 as follows:

“Position of contractor after he has completed building which is accepted by owner is substantially that of a manufacturer around whom the common law generally throws a strong arm of protection, warding off claims of third persons, not direct purchasers, for personal injuries sustained from use of articles manufactured and sold by him, unless article causing injury is of an abnormally dangerous or noxious nature or nature of thing is such that it is reasonably certain to place life and limb in peril when negligently made. Hale v. Depaoli, 201 P. (2d), 1, 33 Cal. (2d), 228.”

Again, on page 614, it is stated:

“The outstanding reason for nonliability in these cases is that the causal connection which must exist between the negligent act and the injury has been broken. Grodstein v. McGivern, 154 A., 794, 303 Pa., 555.”

Also, on this proposition of law, see Higgins v. Otis Elevator Co., 69 Ga. App., 584, 26 S. E. (2d), 380; Johnston v. Long, 56 Cal. App. (2d), 834, 133 P. (2d), 409, 411; Kelburn v. P. J. Walker Co., 38 Cal. App. (2d), 545, 101 P. (2d), 747, 749; Price v. Johnston Cotton Co. of Wendell, 226 N. C., 758, 40 S. E. (2d), 344, 345; Delaney v. Supreme Investment Co., 251 Wis., 374, 29 N. W. (2d), 754, 758.

In Bogoratt v. Pratt & Whitney Aircraft Co., 114 Conn., 126, 157 A., 860, 866, the eleventh and twelfth Atlantic Reporter headnotes are as follows:

“Where independent contractor’s work is completed and accepted by owner, contractor is not liable to third persons for injuries subsequently suffered because of condition of work, even though he was negligent in carrying out contract.

“Where owner accepts independent contractor’s work that is in dangerous condition and fails to make it safe and third person is injured, it is owner’s negligence that is proximate cause of injury. ’ ’

In Miller v. Davis & Averill, Inc., 137 N. J. Law, 671, 61 A. (2d), 253, the fourth Atlantic Reporter headnote is as follows:

“Generally, an independent contractor is not liable for injuries occurring to a third person after contractor has completed work and turned it over to owner or employer and it has been accepted by owner or employer, even though injury results from contractor’s failure properly to carry out his contract, since, when work is finished by contractor and is accepted by employer, employer is substituted as the one responsible for existing defects.”

In Jones v. Beck (Texas Civil Appeals), 109 S. W. (2d), 787, the third Southwestern Reporter headnote is as follows:

“Where excavation done by subcontractor had been accepted and construction of concrete forms had been commenced by another subcontractor, excavating subcontractor ’s liability to carpenter employed by general contractor, for negligence in excavating, ceased in absence of hidden defects.”

In the case at bar, it is not alleged that there were any hidden defects in the excavation, known to the defendants and unknown to The Hoke Plumbing Company, or the plaintiff’s decedent.

We come now to consider a case which is similar to the instant case on the facts. In Walker v. McNichol Paving & Construction Co., 325 Pa., 267, 189 A., 673, 674, where a general contractor engaged to erect a building awarded a subcontract to the defendant to do excavation and work according to certain plans and specifications, and where the general contractors specified, “do not include any underpinning, caissons, shoring, sheet piling and/or pumping, as this work will be done by us or others employed by us, ’ ’ and where the defendant, eight days before the accident, had fully completed all excavation work as required under the contract without shoring, etc., and where the decedent was an employee of another subcontractor and was working when the wall of the earth and gravel above him caved in and he was crushed and killed as it slid into the excavation.

It is stated in the Atlantic Reporter headnote:

“Alleged duty of subcontractor whose contract in-eluded excavation and backfill work and excluded shoring and underpinning work, to remedy dangerous condition of wall of excavation, as respects injury to employee of another subcontractor, ended when subcontractor transferred control and possession of wall to general contractor.”

In the opinion, on page 269, it is stated:

“At the close of the testimony the trial judge directed a verdict for defendant upon the ground that when the excavation at the south bank was completed and the work taken over by the general contractor, the defendant’s liability with respect to the work was ended. The court below further held that the failure ;o shore as the excavation work progressed was not the proximate cause of the accident, but the cave-in of the bank was due to the negligence of the general contractor in failing to shore the wall promptly and properly after the excavation work was completed, and in permitting plaintiff and other workmen to assume places of danger in proximity thereto before the embankment had been made safe by proper shoring.”

On page 272, the court said:

“The unfortunate accident occurred not while defendant was excavating, but eight days thereafter. The proximate and sole cause of the accident was insufficient and inadequate shoring. The duty to shore the southern embankment was upon the general contractor and not upon this defendant. As we have pointed out, defendant’s liability ended when the general contractor took over the work and proceeded to put in shoring as it had agreed to do.”

This question is presented in extended annotations found in 41 A. L. R., beginnuing at page 79, and in 123 A. L. R., beginning at page 1197.

In applying what we conceive to be the true principle of law to the facts construed most favorably to the plaintiff, we find that the defendants were not liable for the death of the plaintiff’s decedent, even though defendants had failed to slope, shore or brace the walls of the ditch, and that the cave-in which caused the death of plaintiff’s decedent was caused by the failure to slope, shore or brace the wails of the ditch, for the reason that defendants had completed their work, the work had been accepted by the employer of plaintiff’s decedent, and that the work was not abnormally dangerous so as to bring the case within the rule stated, and that the condition of the ditch was as readily observable by the decedent as by the defendants. In applying the correct rule of law to the facts in this case the trial court properly directed a verdict for the defendants.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


source: Caselaw Access Project

author: Doyle, J.

license: Public Domain

text:
    Coletta, Appellant, v. The Ohio Casualty Ins. Co., Appellee.

      (No. 4264
    Decided January 21, 1953.)

      Messrs. Weick & Mason, for appellant.

      Messrs. Slabaugh, Guinther & Pflueger, for appellee.
   Doyle, J.

Anthony R. Coletta, the appellant, brought an action, in the Court of Common Pleas of Summit County, against The Ohio Casualty Insurance Company, wherein he sought to recover for a loss sustained by burglary on a claimed agreement with an agent of the defendant company to restore, to full face coverage, a burglary insurance policy theretofore issued by the defendant company to the plaintiff.

The case was submitted to a jury, which returned a verdict in favor of the plaintiff in the amount of $5,000. Following the verdict, a motion for judgment non obstante veredicto was sustained, and judgment was entered for the defendant. The court’s journal entry recites that the judgment was entered “for the sole reason that Richard Slusser, who made an agreement with the plaintiff, as testified by the plaintiff and found by the jury, had no authority from the defendant so to do, and the defendant is not bound thereby.”

From this final order, appeal has been duly made to this court, and it is here claimed that “the trial court erred in granting appellee’s motion * * *, and in rendering judgment against the appellant.”

It appears from the record that the plaintiff owned and operated a retail men’s clothing store in Akron, Ohio, and that on the 31st of March, 1949, the defendant company (The Ohio Casualty Insurance Company), through “Chas. E. Slusser, authorized agent,” issued a policy of insurance protecting him against loss from burglary in the amount of $5,000, with the following general endorsement on the policy, signed by the said general agent:

“In consideration of the premium at which this policy has been written, it is agreed that Item 4 c of the Declarations is amended to indicate that the burglary alarm system is maintained and will be kept in proper working order and connected at all times when the premises are not open for business while this policy is in force.”

The policy further provided, under the title “Exclusions”:

“The company shall not be liable * * * (b) for loss or damage * * * (3) contributed to by any change in the condition of the risk, or occurring while any protection or service promised in (b) or (c) of Item 4 of the Declarations is not maintained. ’ ’

Burglars broke into the store on the night of December 9, 1949, and stole merchandise valued at $4,036.74. In the course of the burglary, the “burglar alarm system” was destroyed. The company acknowledged liability, and later paid, for the loss in the amount above stated.

On the night of December 19, 1949 (ten days later), the store was again burglarized, resulting in a loss of more than $5,000. At the time of the second burglary, the store was not equipped with a burglar alarm system in working order.

Continuing, the record includes evidence indicating that the burglary insurance upon which the loss was paid was solicited by Richard Slusser, vice president and office manager of the Chas. E. Slusser Agency, Inc. The agency was a general agent for the defend-. ant company. Richard Slusser was, in addition to being an officer of the insurance agency company, a soliciting agent for the said corporation agency, which placed the insurance solicited by him and others in various insurance companies which it represented as general agent: and, pursuant to the solicitation of the insurance from the plaintiff by Richard Slusser, the burglary policy of the defendant was duly issued, and delivered by the said Richard Slusser, and payment of the premium was made to the corporate agency in response to a bill from it..

On the morning following the night of the first burglary, Richard Slusser again called upon the plaintiff, and the testimony tends to prove that Slusser said to the plaintiff that the loss in the burglary “decreased the policy” (presumably this referred to a provision in the policy that any payment or replacement made by the company for the loss in a burglary would reduce the limit of the company’s further liability by the amount so paid or the cost of replacement). The plaintiff thereupon replied that he wanted the policy reinstated to a full coverage of the face amount.

The testimony of the plaintiff then continued:

“A. * * * He [Slusser] said it would cost more money. I said ‘I don’t care, you just build the thing back up. ’ He said he would do it for me, not to worry about it * * *.

“Q. Tell us what further he said to you and what did you say to him? A. That I was getting in a real expensive burglary alarm system and it would take around two weeks to get it installed, and I wanted to be protected while they were installing the new one. He said ‘that’s all right, what type are they putting in?’ I told him the type, have the metal tape around the windows, the same type as the jewelry stores have on their windows. He said that was very fine, he would take care of the reinstatement of the policy and that I would be protected while they were finishing the new burglary alarm. * * *.

“Q. Was there anything further said about the premium for providing that provision? A. He said that I would be billed for the additional premium. ’ ’

The testimony of agent Richard Slusser, briefly, was to the effect that he told the plaintiff that “the policy would have to be reinstated back to the amount of $5,000,” that the plaintiff told him “to take care of it,” and that he “left it in my hands.” The testimony further indicated that he (Slusser) contemplated placing a rider on tlie policy to carry out the verbal agreement with the plaintiff, but later concluded that, as “there had been no payment on the policy at that time, ’ ’ it was not necessary to do anything about reinstating the policy, because, in the absence of the payment of a loss, he (the plaintiff) continued to have “a full $5,000 coverage.” (The loss, although subsequently paid, had not been paid at this time.)

“Q. For reinstating it — then you came to the conclusion after reading the clauses in this policy * * * concerning the payment, that there was no occasion ,o reinstate the policy until the payment was made, is that right ? A. • That’s right. ’ ’

It is obvious that this conclusion of Richard Slusser was erroneous, for the reason that, after the loss in the first burglary, the policy was charged with such loss, whether actual payment had been made or not, and coverage then extended only in an amount equaling the remainder, after subtracting the amount of the loss from the amount of the face of the policy. He therefore should have had a rider placed on the policy (as he had first planned), in the furtherance of his oral agreement to reinstate the policy to the full amount.

As heretofore stated, the trial court rendered judgment for the defendant notwithstanding the verdict, for the sole reason that Richard Slusser had no authority from the defendant insurance company to reinstate the policy to the full amount after the diminution of coverage following a loss by burglary.

To the following question we first direct our attention: Is there evidence to justify a conclusion that the defendant company could be bound by the acts of Richard Slusser?

1. There is an allegation in the petition which states in substance that the Chas. E. Slusser Agency, Inc., was a general agent of the defendant company, which “had general authority to sign, issue and deliver policies of insurance, collect the premiums thereon, and endorse riders thereon of changes or modifications in said policies * * *.” The answer of the defendant admits this allegation. It thus appears that no issue is presented in reference to the authority of the corporate agency to do the things therein pleaded. Its powers to act for its principal bring it within the classification of a general agent, as distinguished from a soliciting agent.

Among other “conditions applicable to coverages” as set forth in the policy, is the following: “By acceptance of this policy the assured agrees that it embodies all the agreements existing between himself and the company or any of its agents relating to this insurance, and no provision or condition of this policy shall be waived or altered except by written endorsement attached hereto, signed by the president or secretary of the company and countersigned by a duly authorized agent, nor shall any notice to any agent or knowledge possessed by any agent or any other person be held to effect a waiver or change in any part of this policy. ’ ’

It is stated by the defendant insurance company that “a solicitor of insurance has no authority to effect * * * a waiver” when the policy contains the above provision.

In review of the evidence, we reach the conclusion that it justifies a finding that Richard Slusser was more than a soliciting agent; he was the vice president and office manager of the corporation, Chas. E. Slusser Agency, Inc., a general agent; his.previous dealings with the plaintiff on behalf of the corporation of which he was an officer, and the conduct of the corporation itself (the agency company), reasonably interpreted, is shown to be such as caused him (Richard Slusser) to believe that he had the necessary authority to contract on behalf of the said general agent. Under such circumstances, he may be found to have acted for his principal. The rule which we are now applying is stated in Miller v. Wick Bldg. Co., 154 Ohio St., 93, at p. 98, 93 N. E. (2d), 467, as follows:

“If a party by his words or conduct, reasonably interpreted, has caused one, assuming to act as agent for such party in the making of a contract, to believe that such one had the necessary authority to make the contract, such party will be bound by the contract, regardless of whether any words or conduct of such party caused the other party to the contract to believe that the one so assuming to act as agent had authority to make the contract. Restatement of the Law of Agency, Section 26; Kimball v. Kimball Bros., Inc., 143 Ohio St., 500, 56 N. E. (2d), 60. * *.

“If the law did not impose liability upon the principal where there was such implied authority, then one who, in good faith and in reasonable reliance on words or conduct of another party causing him to believe that he had authority to do so, made a contract on behalf of such party would be exposed to liability for a breach of his implied warranty of authority to make such contract. Trust Co. v. Floyd, 47 Ohio St., 525, 26 N. E., 110, 12 L. R. A., 346. See Jackson v. Watkins, 128 Ohio St., 407, 191 N. E., 483.”

We hold that the above-stated rule binds a principal which has granted general powers to a corporate agent, thereby constituting such general agent its alter ego, when the said corporate agent, by its conduct, has caused one of its chief officers to believe that he possessed the necessary authority to make contracts for and on behalf of his principal.

In addition to the above rules which protect the agent of the general agent (the corporate agenqy) from personal liability, we find that the evidence á'nd its reasonable inferences justify the conclusion that the insured himself was led to believe, by the conduct of the corporate agency (the alter ego of the defendant company), that Richard Slusser had authority to make a contract. This rule is stated as follows:

“2. Even where one assuming to act as agent for a party in the making of a contract has no actual authority to so act, such party will be bound by the contract if such party has by his words or conduct, reasonably interpreted, caused the other party to the contract to believe that the one assuming to act as agent had the necessary authority to make the contract.” Miller v. Wick Building Co., supra.

This rule is applicable to a principal which employs as its general agent a corporation, which in turn, through its conduct, reasonably caused a third person to believe that one of its officers was clothed with authority to act and contract for it. In the case under review, there is a legal identity of the defendant insurance company and the corporate general agent. First National Bank of New Bremen v. Burns, 88 Ohio St., 434, at pp. 440, 441, 103 N. E., 93, 49 L. R. A. (N. S.), 764.

2. Finding as we do that the acts and conduct of Richard Slusser may be reasonably found to bind the principal within the bounds of a general agent’s authority, we next proceed to explore the extent of this authority. Can he enter into a contract with an insured contrary to conditions applicable to coverages in respect to changes and assignments set forth in a policy? These conditions are set forth supra.

It will be remembered that, after the first burglary, the policy was charged with the loss, and the testimony indicates that Richard Slusser, the agent, entered into an agreement with the insured that he would take care of the reinstatement of the policy to its full face value, and that he, the insured, “would be protected while they were finishing the new burglary alarm.” (If this agreement is true in fact, Richard Slusser, the agent, if unauthorized to contract for his principal, would seem to come within the purview of the first paragraph of the syllabus in Trust Co. v. Floyd, 47 Ohio St., 525, 26 N. E., 110, 21 Am. St. Rep., 846, 12 L. R. A., 346) :

“1. A person who contracts as agent, without having in fact authority to do so, is personally responsible to those, who, in ignorance of his want of authority contract with him, though he acts in good faith, believing that he is invested with such authority. ’ ’

In examining the many cases dealing with the authority of a general insurance agent, there is such a maze of inconsistent opinions and theories that one becomes almost discouraged at the outset in commencing an analysis. Some of the opinions even resist analysis. The general principles of the law of agency theoretically are applicable. However, some decisions so thoroughly depart from established doctrines of agency that it may be the courts are developing a new field of law applicable to insurance companies only. As pointed out by Professor Mechem (1 Mechem on Agency [Second Ed.], Section 1049), the home office is usually at a distant place and the local agent takes on in the mind of the insured a representative character not possessed by agents in other fields." The ordinary individual makes his contract without professional advice, trusting instead to the assurances of the agent of the opposite party.

In many of the policies under consideration by the various courts, are provisions like or similar to the provision above quoted, providing that no provision or condition of the policy shall be waived or altered except by written endorsement, etc.. In so far as such provisions purport to limit the insurance company itself from subsequently modifying its contract, they are invalid. A company cannot, by contract, disable itself from subsequently modifying its contract or prevent its subsequent conduct from having the effect the law says that it shall have. See: 5 Cooley’s Briefs on Insurance (Second Ed.), 4176. In other words, an insurance company cannot stipulate against the legal effect of its subsequent conduct. The rule was aptly stated by Oliver Wendell Holmes in Bartlett v. Stanchfield, 148 Mass., 394, 395, 19 N. E., 549, 550, 2 L. R. A., 625, as follows:

“Attempts of parties to tie up by contract their freedom of dealing with each other are futile. ’ ’

It follows, we think, that empirical or inductive logic requires the conclusion that, if a principal individually cannot disable himself from subsequently contracting orally to modify a written instrument, he cannot disable himself from contracting or binding himself through an authorized agent. Furthermore, if a general agent is vested with authority to conclude contracts, and to “sign, issue and deliver policies of insurance” (see admission in pleadings noted supra), such agent is vested with authority to elect the procedure in the making of the contract. If, as in the instant case, the election is made to not attach a rider or written memorandum to the contract, but to treat the old contract, in conjunction with an oral agreement, as full coverage under the policy, it would seem that such election comes directly within the powers conferred upon a general agent.

While recognizing the rule of many cases that a preliminary parol agreement, not incorporated in a subsequent written contract, cannot be shown in contradiction of a policy contract (the so-called “parol testimony rule”), we find no reason to deny a rule permitting a written policy contract to be subsequently modified by a parol agreement. The question usually involved under the latter is not the admissibility of the evidence, but the authority of the agent to make the modifying agreement. It would seem that the reasoning of Judge Turner in Hall v. Franklin Fire Ins. Co., 149 Ohio St., 216, at p. 225, 78 N. E. (2d), 360, followed similar lines in his statement:

“It is not necessary for us to pass upon the question of estoppel as we are of the opinion that under the provisions of Section 9586, General Code, the assignment of a policy of fire insurance to a new owner of the property covered does not differ in principle from the solicitation of a new policy on the same property.”

Of interest is the language of Judge Jones in John Hancock Mutual Life Ins. Co. v. Luzio, 123 Ohio St., 616, at p. 625, 176 N. E., 446:

“The agents of fire insurance companies ordinarily have the right to bind their companies before they actually issue the policy, to attach riders thereto, to make deliveries thereof, and to pass upon the insurability of the property. ’ ’

It is proper to here observe that knowledge of a general agent of an insurance company is legally equivalent to the knowledge of the principal. This rule of imputation of knowledge is not based upon the theory of actual notice, but rather on considerations of policy — i. e., that, where one seeks the advantages of doing business through general agents, fairness to the other party demands that the principal be in no better position than if he were transacting business in person.

We have been cited to the case of Fay, Admr., v. Swicker, 154 Ohio St., 341, 96 N. E. (2d), 196, certiorari denied, 342 U. S., 812, 96 L. Ed., 614, 72 S. Ct., 24, a four-to-three decision of the Supreme Court. The syllabus is as follows:

“1. At common law, ordinarily the knowledge of an agent, received while he is acting within the scope of his authority and in reference to a matter over which his authority extends, is imputed to such agent’s principal.

“2. A principal and a third party have the authority to enter into a contract supplanting with a diff erent rule the common-law rule as to the knowledge of such principal’s agent being imputed to the principal, and such contract is valid and enforceable in the absence of circumstances creating an estoppel or making the enforcement of such contract inequitable.”

As a subordinate appellate court, we, of course, recognize the pronouncements of the Supreme Court as the law of the state. As a court, however, whether subordinate or not, we recognize our right and duty to consider the pronouncement of a higher court in the light of the factual setting of the particular case.

The Supreme Court case above noted dealt with a false and fraudulent application for insurance‘made to a soliciting agent, which fraud was known to the agent. A policy was prepared by the company and sent to the soliciting agent, but never delivered to the insured. The company later, upon actually learning of the fraud, cancelled the policy as of the date of issuance. The case is- authority for the proposition that knowledge of a soliciting agent will not be imputed to the principal1 where the contract provides otherwise, in the absence of circumstances creating an estoppel or making the enforcement of such contract inequitable. We do not recognize this case as authority for the factual situation with which we are here dealing. The case before us concerns an independent agreement between a general agent and an insured concerning the terms of a contract of burglary insurance entered into in good faith and supplementing an existing, duly-issued policy.

It is our conclusion that the trial court erred in entering judgment non obstante veredicto.

There are Ohio cases treating the general subject of the authority of insurance agents- — both general and soliciting. They are well known to counsel and will not be here discussed. A few of them we cite, in addition to those cited, supra. Foster v. Scottish U. & N. Ins. Co., 101 Ohio St., 180, 127 N. E., 865; Ohio Farmers Ins. Co. v. Cochran, 104 Ohio St., 427, 135 N. E., 537; National Surety Co. v. Bohn, 125 Ohio St., 537, 182 N. E., 506; English v. National Casualty Co., 138 Ohio St., 166, 34 N. E. (2d), 31. See, also, Section 9586, General Code.

We have not deemed it necessary to discuss the legal questions of waiver and estoppel. To the student who would explore these questions in insurance law7, we cite 34 Yale Law Journal, 834; 21 California Law Review, 91; 62 Harvard Law Review, 87; 3 Williston on Contracts (Rev. Ed.), Section 745, et seq.

This decision, as said before, is based upon the right of the general agent to enter into a parol agreement modifying and supplementing an existing written contract.

Judgment reversed and cause remanded for further consideration.

Judgment reversed.

Hunsicker, P. J., and Stevens, J., concur.


author: Middleton, P. J.

text:
    The Hoosier Condensed Milk Co., Appellant, v. Doner, Appellee.
    (No. 187
    Decided July 6, 1951.)

      Mr. Collis Gundy Lane and Mr. Richard Huggard, for appellant.

      Messrs. Drury & Koch, for appellee.
   Middleton, P. J.

This is an appeal on questions of law from the Common Pleas Court of Van Wert County, Ohio, which court, at the conclusion of plaintiff’s case, granted the motion of the defendant for judgment in his favor and dismissed plaintiff’s amended petition.

The plaintiff’s claim, set out in its amended petition, is one for damages against the defendant, Doner, growing out of an automobile collision.

Defendant, for his amended answer to plaintiff’s amended petition, denies that the collision was due to any negligence on his part.

He annexes to his amended answer the following interrogatories to be answered by the plaintiff, to wit:

1. Was plaintiff insured against loss by reason of collision damage to said truck at the time said collision occurred?

2. (a). Was plaintiff paid a sum of money subsequent to the occurrence of said collision by any insurer by reason of said collision and alleged damage to its truck? (b) If so, what is the name and address of such insurer? (c) And, in what amount and (d) when was such payment made?

3. (a). Did plaintiff execute and deliver an assignment and transfer to such insurer of its claim or demand against defendant for damages to its truck growing out of the within collision, to the extent of the amount so paid? (b) If so, on what date or dates was such made and delivered to such insurer?

These interrogatories were answered by the plaintiff, as follows:

1. Yes.

2. (a) Yes.

(b) Employers Fire Insurance Company.

(c) $3,850.

(d) May 3, 1947.

3. (a) Yes.

(b) May 3, 1947.

On motion of defendant, Doner, The Employers Fire Insurance Company was made a party defendant and filed an answer.

In its amended answer, the insurance company states it had issued to the plaintiff its insurance policy in which it agreed to pay the plaintiff any loss or damage caused by collision of any automobile insured thereby with another object; that in the event of any payment thereunder the insurance company should be subrogated to all plaintiff’s rights of recovery therefor against any person; that plaintiff should do whatever necessary to secure such rights; that one of the automobiles covered thereunder was the tractor described in plaintiff’s amended petition; and that as a result of the collision described in plaintiff’s amended petition the insurance company was obliged to and did pay the plaintiff the sum of $3,850, taking therefor a subrogation receipt and assignment from plaintiff. Then follows the prayer that the insurance company be subrogated to the extent of $3,850 to any recovery had therein by plaintiff.

Upon trial, the insurance policy and the instrument designated as a subrogation receipt were offered and received in evidence.

The'insurance policy is numbered XF-2820101, and, in part, provides as follows:

“Coverage E-l — collision or upset. To pay for loss of or damage to the automobile, hereinafter called loss, caused by collision of the automobile with another object or by upset of the automobile, but only for the amount of each such loss in excess of the deductible amount, if any, stated in the declarations as applicable hereto. ’ ’

The policy provides further, with reference to subrogation, as follows:

“19. Subrogation. Coverages A, B, D, E-l, E-2, F, <3- and H. In the event of any payment under this policy, the company shall be subrogated to all the insured’s rights of recovery therefor against any person or organization and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights.”

Plaintiff offered evidence to show the damages resulting from the collision to be $3,950, which exceeded by $100 the amount the insurance company was required to pay under the provisions of the insurance policy.

At the conclusion of plaintiff’s evidence, the defendant, Doner, moved the court to dismiss the amended petition of plaintiff, for the reason that the evidence showed that the plaintiff is not the real party in interest, having assigned and transferred to another all claims and demands arising from or connected with the loss alleged in this action, and that the court direct a verdict in favor of the defendant, Doner. This motion was allowed by the court and a verdict for defendant was directed. From the judgment entered on that verdict this appeal is taken to this court.

The subrogation receipt shows on its face that it was given pursuant to the terms of the policy. To determine the force and effect of the receipt, resort must be had to the insurance policy, and to determine the intent of the parties at the time of the execution of the receipt, the receipt and the insurance policy must be considered together in the light of the circumstances existing at the time. 9 Ohio Jurisprudence, 404, Contracts, Section 177; Starr Co. v. Columbia Broadcasting System, Inc., 68 Ohio App., 352, 36 N. E. (2d), 861.

The liability of the insurance company under the terms of the insurance policy is to pay the loss or damage suffered by the plaintiff in such an amount as the loss is in excess of the deductible amount, to wit, $100.

By the terms of the policy, payment of the amount of the loss in excess of $100 was the limit of the liability of the insurance company under the terms of the policy, and the right of the insurer to subrogation or assignment of the insured’s rights of recovery was limited to the amount paid by the company under the terms of the policy. Upon payment by the insurance company of the loss provided for in the policy, the insured was required to execute and deliver to the insurance company such papers and instruments as were necessary to secure such right of subrogation.

The receipt which the insured signed was in pursuance of the terms of the policy and it can not be presumed that the parties intended anything more than was required by the terms of the policy.

In construing contracts the construction to be followed is that which presupposes rational action. Ohio Crane Co. v. Hicks, 110 Ohio St., 168, 143 N. E., 388; Krueger v. Schoenling Brewing Co., 82 Ohio App., 57, 79 N. E. (2d), 366; 9 Ohio Jurisprudence, 422, 423, Contracts, Sections 194, 195.

Following the rule of presupposed rational action, it will be assumed that the parties to the subrogation receipt were exercising reason and giving to the receipt a reasonable construction, and that the parties intended nothing more than the contract of insurance required.

The subrogation receipt transferred to the insurance company plaintiff’s right of recovery to the extent and in the amount, and only to the amount, which was paid to the insured by the insurance company.

The plaintiff is the real party in interest, and the court erred in directing a verdict for the defendant and entering judgment thereon, and for this error, the judgment is reversed.

Judgment reversed.

Jackson and Guernsey, JJ., concur.


author: Stevens, J.

text:
    The Forest City Material Co., Appellant, v. First National Bank of Akron et al., Appellees.
    (No. 4425
    Decided January 13, 1954.)

      Mr. Harry Efros, for appellant.

      Messrs. Slabaugh, Guinther & Pflueger, for appellee First National Bank of Akron.
   Stevens, J.

The petition of plaintiff, filed in the Court of Common Pleas of Summit County, alleged that plaintiff, on July 15, 1933, recovered a judgment in the Municipal Court of Cleveland, against defendant Akron Basket Co., Inc., for the amount of $1013, interest and costs; “that said judgment is in full force and effect and remains unsatisfied and unreversed; that a certificate of judgment lien was duly filed with the clerks of the Courts of Common Pleas of Cuyahoga County and Summit County, Ohio, on the 20th day of July, 1953; that execution was issued and returned wholly unsatisfied.” The praecipe filed therewith directed the clerk to endorse, upon the summons to be issued, ‘ ‘ Creditor’s bill, amount claimed with the probable costs of this action is $1200 * * *.”

The defendant First National Bank, after having been served with summons and a copy of plaintiff’s petition, answered. In that answer the bank stated that, at the time of service, there was on deposit with it, to the credit of Akron Basket Co., Inc., $1530.57; but that Akron Basket Co., Inc., was indebted to the bank upon a promissory note in the amount of $1600, and that said note contained this provision:

“And the makers, sureties, guarantors and endorsers hereby * * * (d) grant full rights of setoff against all accounts whether or not this obligation and such accounts are then due * *

Further, that, immediately after service of summons, it exercised the above contractual right of setoff, and applied on said note the balance of $1530.57, standing to the credit of Akron Basket Co., Inc., in a checking account. That, by reason thereof, it was not indebted to Akron Basket Co., Inc., in any amount.

The plaintiff demurred to the answer of the bank, for the reason that the answer did not state a defense to plaintiff’s petition. The Court of Common Pleas overruled the plaintiff’s demurrer, and, plaintiff not desiring to plead further, the petition of plaintiff was dismissed.

This appeal on questions of law seeks a reversal of that judgment of dismissal.

It is stated by counsel for appellant in his brief, and was stated by him in oral argument, that his petition is in the nature of a creditor’s bill under the provisions of Section 11760, General Code (Section 2333.01, Revised Code).

That section at the time of filing plaintiff’s petition provided (and presently provides in substance):

“Equitable and certain other assets.

“When a judgment debtor has not personal or real property subject to levy on execution sufficient to satisfy the judgment, any equitable interest which he has in real estate, as mortgagor, mortgagee, or otherwise, or any interest he has in a banking, turnpike, bridge, or other joint stock company, or in a money contract, claim, or chose in action, due or to become due to him, or in a judgment or order, or money, goods, or effects which he has in the possession of any person, or body politic or corporate, shall be subject to the payment of the judgment, by action. ’ ’

There is no allegation in the petition that the judgment debtor has not personal or real property subject to levy on execution sufficient to satisfy the judgment. The petition states only that4 4 execution was issued and returned wholly unsatisfied.”

The Supreme Court of Ohio, in Bomberger v. Turner, Admr., 13 Ohio St., 263, (82 Am. Dec., 438), paragraph 5 of the syllabus, in speaking of the necessity of pleading the statutory requirement above set forth, stated:

“5. In an action by a judgment creditor, under section 458 of the code [ said section is substantially in the words of section 2333.01, Revised Code], to set aside a fraudulent deed, and subject the premises 'to the payment of his judgment, he should aver that the judgment debtor has not sufficient real or personal property, etc.; but he need not aver that an execution has been issued and returned 4no property,’ etc. It is the fact, and not mere evidence of the fact, which that section requires as the basis of the action. ’ ’

That decision has been uniformly followed without modification up to the present time.

See: Palumbo v. Industrial Comm., 35 Ohio Law Abs., 169, 40 N. E. (2d), 675 (reversed on other grounds, Palumbo v. Industrial Comm., 140 Ohio St., 54, 42 N.E. [2d], 766).

In the case under consideration, the plaintiff filed a general demurrer to the defendant bank’s answer. That demurrer searched the record.

The rule with reference thereto is well stated in 31 Ohio Jurisprudence, Pleading, Section 202, as follows:

“Pursuant to the fundamental principle of pleading that a general demurrer searches the record, reaching the first pleading defective in substance, a demurrer to an answer searches the record, and challenges the sufficiency of the petition. * * * In such cases, however defective the pleading demurred to may be, judgment is given against the party whose pleading was first defective in substance. ’ ’

The petition of the plaintiff was defective in substance, because it failed to include the allegation, “the judgment debtor has not personal or real property subject to levy or execution sufficient to satisfy the judgment.” Under such circumstances, the trial court could properly do nothing other than enter judgment against the plaintiff, whose pleading was first defective in substance.

In view of the conclusion, which we have reached, we deem it unnecessary to pass upon the other errors assigned.

Judgment affirmed.

Doyle, P. J., and Hunsicker, J., concur.


author: Conn, J.

text:
    Klump, Appellant, v. Klump, Appellee.
    (No. 4751
    Decided February 8, 1954.)

      Mr. Harold T. Hanley, for appellant.

      Mr. Max Brits, for appellee.
   Conn, J.

Plaintiff brought an action in the Common Pleas Court against defendant, wherein she alleged that defendant had been guilty of extreme cruelty and gross neglect of duty towards her. Plaintiff prayed for divorce and alimony and that she be awarded the care, custody and control of the minor children of the parties, together with a reasonable amount for support and maintenance.

In her petition, plaintiff alleged that the parties were married on February 27, 1943; that two children, Sharon, born March 4,1944, and Donald, born September 7, 1949, were the only issue of said marriage; that defendant is the owner of 10 acres of land fronting on Lewis avenue on which he owns and conducts a business known as The Lewis Avenue Driving Range; that such land, improvements thereon, and other personal property were acquired since their marriage; that plaintiff has been employed for wages and her earnings have been used in the maintenance of the household and the acquisition of such property; and that plaintiff assisted defendant in operating the' driving range.

The defendant in his answer admits that the parties are the owners of such property; admits the allegations relative to marriage and children; denies generally the remaining allegations, and alleges that plaintiff has been guilty of gross neglect of duty and extreme cruelty and has separated from defendant several times.

The trial court found that defendant had been guilty of gross neglect of duty towards plaintiff and entered judgment in her favor, awarding her a divorce from defendant and a judgment for “alimony and property division,” and, also, awarding plaintiff the sole custody and control of the minor children.

The court found that the value of the Lewis avenue property and improvements was $15,000; that there was a mortgage lien on this property of $3,000; and, after deducting $6,000 as “non-coverture” funds, that “plaintiff be decreed as alimony and property division $3,000 * * *” and the household goods; and that each party have and retain the automobile then in possession. The court decreed further that defendant pay the balance due of $230 on the refrigerator and stove, and pay plaintiff the sum of $25 per week for the support of the minor children and, also, pay court costs and the sum of $150 for plaintiff’s attorney.

In plaintiff’s appeal to this court, she assigns as errors of the trial court, briefly restated, the following:

1. That the valuation of the land and improvements described in the petition is contrary to and manifestly against the weight of the evidence; error in failing to place a valuation on the 1951 Ford automobile owned by defendant and error in not requiring defendant to repay plaintiff’s father money advanced by him for rent of the dwelling house occupied by defendant’s family, in the amount of $350.

2. That the court erred in deducting the so-called noncoverture funds from the value of the real estate and in failing to award plaintiff reasonable and proper alimony based on a division of the property acquired during the marriage of the parties, pursuant to provisions of the statutes of Ohio.

3. That the court erred in overruling plaintiff’s motion for a new trial, particularly "on the ground of defendant’s misconduct in misrepresenting to the court that he did not receive any distributive share of his father’s estate and also that he was indebted to his father, which had been deducted from his distributive share, and also in debt to his sister for the entire amount to which he was entitled as an heir of his father.

Plaintiff’s appeal is on questions of law and fact. As this is not a chancery case, it can not be appealed on questions of law and fact, and the court, therefore, on its own motion, retains the appeal as one on questions of law.

In giving consideration to the merits of plaintiff’s appeal, we shall refer to the evidence somewhat in detail as disclosed in the bill of exceptions and the depositions taken in support of plaintiff’s motion for a new trial.

Defendant’s charges against plaintiff of gross neglect of duty and extreme cruelty, made in his answer under oath, were not supported by any evidence. On the other hand, the evidence affirmatively shows that during the entire period of the marriage of the parties of nearly 10 years, plaintiff has performed and sacrificially observed her marital duties, and did so under circumstances at times when the necessaries of life, such as food, clothing and shelter were not provided by defendant, although at all times he was well able to do so.

The evidence in this case shows abundantly that defendant has been guilty of gross neglect of duty toward plaintiff and the children of the parties, particularly in that defendant habitually sought the society of persons other than the members of his family, including women; that he spent much of his time playing golf, gambling and being away from home at night; and that the protests of plaintiff were unavailing, though frequently made.

The evidence shows also that plaintiff was obliged to seek employment and work for wages, excepting those times when too ill to do so, in order to provide the necessaries of life for herself and family, in addition to the work of caring for her home and children, and at times was obliged to seek help from her parents to meet rental payments and for food and clothing.

The evidence discloses that over the years the driving range was not very profitable, that defendant continued season after season to operate it, that out of season he worked where he could get work, and that he was capable of earning $2.25 per hour.

Following the final separation of the parties in January 1952 the defendant paid plaintiff the sum of $15 per week towards the support of the children and, until this action was commenced and during its pendency, defendant paid $22 per week pursuant to court order. During all this time plaintiff was employed and her take-home pay was approximately $46 per week. At the same time, plaintiff paid a maximum of $11 to $12 per week for domestic help in caring for the children while she was at work. The weekly expenses for maintaining the home, including rent, heat, light, food and other necessary expenses and not including clothing and medical services, averaged slightly more than $60 per week. It is apparent that the amount paid by defendant following the final separation of the parties was not adequate to meet the living expenses of his family.

Defendant testified that he purchased the ten acres of land on a cash basis for $9,000; that he built a one-room building thereon at a cost of $2,100; that he installed lights and other equipment and also built a fence at a cost of $6,500, for which he is still indebted; that he had borrowed $2,600 from his father; and that he owed the bank at Petersburg approximately $2,800 on a note and mortgage. He testified further that he did not receive anything out of his -ather’s estate, as the amount he owed his father for borrowed money and the amount he owed his sister for care following his mother’s death when he was nine years of age, was taken out, that it was agreed his brother and sister should get the rest of his share, and that he did not receive anything.

The statutes of Ohio define the respective rights and duties of the husband and wife, growing out of their marital relationship. We call attention to those which appear to be applicable.

Section 8002-3, General Code (amending Section 7997, General Code, 1951 [Section 3103.3, Revised Code]), provides:

‘/The husband must support himself, his wife, and his minor children out of his property or by his labor. If he is unable to do so, the wife must assist him so far as she is able. If he neglects to support his wife, any other person, in good faith, may supply her with necessaries for her support, and recover the reasonable value thereof from the husband unless she abandons him without cause. ’ ’

The statutory definition of the marital obligations of the husband provides the basis upon which an award of alimony to the wife may be made, upon breach of his obligations and duties, as specifically outlined in related sections of the Code, and which are in pari materia. The mandatory provisions of this statute as to the primary duty of the husband to support his wife and minor children are emphasized by the concluding provision of the above section.

It does not appear to have been the intention of the Legislature, when it placed in the statute the above proviso, which imposes on the wife the duty to assist the husband to support herself and the minor children, if he is unable to do so, to modify or dilute the primary and mandatory obligation of the husband to provide such support; nor does it have the legal effect of creating a joint liability of the parties. Young v. Young, 7 C. C. (N. S.), 419, 18 C. D., 179; Kintner v. Kintner, 78 Ohio App., 324, 65 N. E. (2d), 156.

The character of the husband’s obligations under the statute and the somewhat limited nature of its extent where a definite court order has been entered is illustrated in the following cases:

In Fickel v. Granger, 83 Ohio St., 101, 93 N. E., 527, 32 L. R. A. (N. S.), 270, it was held that the obligation of the husband to support his wife grows out of the marriage relation and continues after legal separation. A similar holding appears in Smith v. Smith, 86 Ohio App., 479, 92 N. E. (2d), 418. See, also, State, ex rel. Wright, v. Indus. Comm., 141 Ohio St., 187, 47 N. E. (2d), 209.

It has been held also that where the wife has been given the custody of the minor children and an order entered requiring the husband to pay a definite amount for support, he may stand on the order made, unless modified, and is not chargeable for medical expenses incurred for the minor children, or even expenses incurred by reason of the last illness and funeral, in event of death. Dodge v. Keller, 29 Ohio App., 114, 162 N. E., 750; Harker v. Wolff, 42 Ohio App., 540, 182 N. E., 592.

See, also, case note, 7 A. L. R. (2d), 491.

It follows that unless the mandate of the statute is observed, the primary obligation of providing sustenance and shelter to the family is shifted from the husband to the wife.

We call attention to the provisions of the Code which are related to the section under consideration (Section 8002-3, General Code). These sections specifically define the duties and obligations of the husband where the wife is entitled to alimony. We quote:

Section 8003-17, General Code (Section 3105.18, Revised Code), provides:

‘ ‘* * * The court may allow such alimony as it deems reasonable to either party, having due regard to property which came to either by their marriage, the earning capacity of either and the value of real and personal estate of either at the time of the decree. Such alimony may be allowed in real or personal property, or both, or by decreeing either such sum of money payable in grosks or by installments, as the court deems equitable. ’ ’

Section 8003-19, General Code [Section 3105.18, Revised Code], provides:

“Alimony may be allowed in real or personal property, or both, or by decreeing a sum of money, payable either in gross or installments, as the court deems equitable. ’ ’

It is apparent that the last section quoted above is substantially the same as the closing paragraph of Section 8003-17, General Code. The provisions of these sections have been combined and, with slight changes in the phrasing, form Section 3105.18, Revised Code, and appear to be applicable to both alimony and divorce proceedings.

In the amendment of Sections 11990 and 11991, General Code, the language omitted and added appears to evince an intention on the part of the Legislature to clarify the statutes only and not to soften the mandatory duty which is imposed on the husband by statute (Section 8002-3, General Code) to provide support for his wife and minor children. In other words, the legislative purpose does not appear to have been enfeebled by these amendments to the statutes, and it remains the imperative- duty of the trial court to award alimony to the wife where it has been adjudged that the proximate cause of the separation or divorce has been the breach of the marital contract by the husband. The following authorities give consideration to the obligations of the husband: McGinnis v. McGinnis, 9 Ohio App., 81; Coleman v. Coleman, 37 Ohio App., 474, 175 N. E., 38; Miller v. Miller, 78 Ohio App., 381, 66 N. E. (2d), 278.

Alimony is defined in 14 Ohio Jurisprudence, 459, Section 69, as follows:

“Alimony, which signifies literally nourishment or sustenance, is the allowance which a husband may be compelled to pay to his wife for her maintenance when she is living apart from him, or has been divorced * * *.

“Alimony under the Ohio statutes comprehends a division of property accumulated by the joint efforts of the husband and wife during their domestic partnership, as well as an allowance for separate maintenance and support in the nature of a pension. The term ‘ alimony’ is not applicable to an allowance made for the support and maintenance of minor children.”

Alimony is based on considerations of equity and public policy, and grounded on statutory obligations that the husband must support his wife and children. These obligations continue after separation and after a divorce granted the wife by reason of the husband’s aggression, as in the instant case. Fickel v. Granger, 83 Ohio St., 101, 93 N. E., 527, 32 L. R. A. (N. S.), 270; Smith v. Smith, 86 Ohio App., 479, 92 N. E. (2d), 418.

Where the husband has been found guilty of aggression and a divorce granted to the wife, alimony may be awarded out of future personal earnings of the husband and made payable in weekly payments, and such award may be made in addition to an allowance out of his personal and real property. Lape v. Lape, 99 Ohio St., 143, 124 N. E., 51, 6 A. L. R., 187; Thompson v. Thompson (Ohio App.), 110 N. E. (2d), 17.

It was held in Fisher v. Fisher, 78 Ohio App., 125, 64 N. E. (2d), 328, that “an equitable distribution of money and property acquired by the parties during their married life,” where a divorce is granted the wife, is not an award of alimony even though it is so designated. In the opinion of the court, at page 127, Judge Miller put his finger on the statutory duty imposed on the trial court, in clear and discriminating language, as follows:

“The court could well have made the property division which is carried in the entry if the decree had been granted to the husband for the wife’s aggression, because sucb division was nothing more or less than an equitable division of the property. Alimony begins when the court requires the payment to be made to a party from the aggressor’s property, money or earnings. ’ ’

The following authorities throw some light on the issues herein: Coffman, Admr., v. Finney, Admr., 65 Ohio St., 61, 61 N. E., 155, 55 L. R. A., 794; Shively v. Shively, 88 Ohio App., 7, 95 N. E. (2d), 276; and Young v. Young, supra.

It is pertinent to note that where a divorce has been granted to the wife and personal service is had on the husband, the judgment rendered is res judicata as to all issues existing between the parties, including alimony. Stephenson v. Stephenson, 54 Ohio App., 239, 6 N. E. (2d), 1005.

Plaintiff testified in detail as to the cost and expense in maintaining the home for herself and children, which was not challenged by the husband. It is clear that plaintiff’s income from her daily labor, together with the weekly payments made by defendant for the children, are inadequate to meet these necessaries. It follows that the lump sum award will be exhausted in a relatively brief time.

Where the husband chooses the society of third persons, including women, in preference to his own wife and children, he assumes the risk of his immaturity and the voluntary breach of his marital vows and obligations, and does not thereby accomplish a repeal of the statutes. In other words, when the husband has been adjudged guilty of misconduct and his wife obtains a divorce and custody of the minor children of the parties, the legal as well as the moral obligation of support and maintenance remain essentially the same as during the period when the husband faithfully recognized his marital obligations.

Upon the hearing on the motion for a new trial, plaintiff introduced evidence by way of deposition, tending to disclose facts wholly inconsistent with the testimony of defendant given during the trial, relative to his interest in his father’s estate. As already pointed out, defendant testified that he did not receive anything from said estate. However, documentary evidence in relation to the settlement of the estate, filed by the administrator thereof, shows that the defendant received the sum of $11,314.78, a “1/3 share of estate.” This evidence is in the form of a voucher signed “Donald A. Klump.” Further corroborative evidence was submitted by way of a cancelled check, issued by the administrator of said estate — “5-7-53”— payable to the order of “Donald A. Klump” for the amount of $11,314.78. This check was endorsed by the payee and also by J. S. Whitman, the brother-in-law of defendant.

The evidence shows further that the check was deposited in the joint savings account of J. S. Whitman and Claire Whitman, the latter being the sister of defendant, and the former, the sister’s husband. It appears further that no claim or claims were made by the administrator of the father’s estate against defendant for payment of loans, but it does appear that the defendant was paid by check one-third of the estate, there being three heirs.

The sister testified by deposition that she had rendered services to defendant from the time he was nine years old and following the death of his mother, and that defendant’s father was not able to pay her. She stated also that she had no contract, either oral or written, with defendant and no book account, as evidence of the alleged obligation.

It was disclosed further by the deposition of J. S. Whitman, that he had forwarded to defendant’s attorney $4,000 for the purpose of paying court costs, attorney fees and the $3,000 awarded to plaintiff as alimony.

This brief survey of this impeaching evidence brought in by deposition is materially inconsistent with the testimony given by defendant on the trial, and sustains a proximate relationship to the duty of the trial court in granting plaintiff reasonable alimony and entering judgment for same out of the personal and real property of defendant. The testimony of defendant relative to his father’s estate tended to mislead the trial court and was constructively fraudulent as against the plaintiff’s right to fair and reasonable alimony. It should be noted that the amount of the check received by defendant from the administrator of his father’s estate was more than ample in amount to discharge all his indebtedness, so far as disclosed by the record.

The crude and ill-advised plan of deception adopted by defendant, aided as it was by the temerity of his sister and her husband, was calculated to deceive the court and defraud the plaintiff. We come to the conclusion that the plaintiff is entitled to a new trial by reason of what appears to be the false and misleading testimony of defendant, and that the trial court erred to the prejudice of plaintiff in overruling her motion. In view of the conclusion reached, further discussion of assigned errors becomes unnecessary.

It is ordered that the case be reversed and a new trial granted as to the issue of reasonable alimony to which plaintiff is entitled out of the property of defendant, or out of his future earnings, or both.

The judgment is reversed, and the cause is remanded.

Judgment reversed.

Fess and Deeds, JJ., concur.


author: Doyle, P. J.

text:
    City of Akron, Appellee, v. Stouffis, a. k. a. Stouffer, Appellant.
    (No. 4392
    Decided December 9, 1953.)

      Mr. Roy E. Browne, director of law, and Mr. Harold F. White, for appellee.

      Mr. Alexander 8. Greenbaum, for appellant.
   Doyle, P. J.

Mike Stouffer was convicted in the Municipal Court of Akron, Ohio, upon the charge of unlawfully possessing “lottery tickets designed for the purpose of facilitating gambling, to wit, in carrying on a clearing house lottery scheme of chance in violation of Section 77, Revised Ordinances, as amended by city ordinance No. 171-1951.”

The charge was based upon a city ordinance (now appearing as Section 25 of Chapter 25 of the 1952 Code of the City of Akron) which in part provided:

“Any person who shall be or become the possessor, custodian or depositary * * * of any apparatus, device, sheets, slips, tickets, or books of any kind by whatever name, style, or title denominated or known, designed or used for the purpose of facilitating, enabling or assisting in gambling * * *, shall be deemed guilty of a misdemeanor and fined * *

In the appeal to this court from the judgment of conviction, numerous errors are claimed, which are asserted to be prejudicial and require a reversal of the judgment. We will pass on all of them and briefly discuss a few.

1. Constitutionality of the ordinance.

This court, in Mooney v. City of Akron, unofficially reported in 14 Ohio Law Abs., 321, speaking through Washburn, P. J., said: “When required in the regular course of judicial procedure, it is our duty to declare laws void if not within the legislative power, but we should never do so except in a clear case, and we are bound to indulge every reasonable presumption in favor of the validity of a legislative enactment. One branch of the government cannot encroach on the domain of another without danger, and the safety of our institutions depends in no small degree upon our observance of this salutary rule.”

In the case then under consideration, an ordinance in almost the identical language as the one now before us was under attack. Our analysis then of that ordinance is equally applicable to the present one. The ordinance legislates against the possession of certain articles designed or used for the purpose of facilitating, enabling or assisting in gambling. If a person has possession of such articles and uses them to assist in gambling, he has committed an offense. Likewise, if he has possession of such articles for the purpose of assisting in gambling, he has committed an offense. However, the. mere possession of such articles without use and without any purpose of assisting in gambling, is not an offense. The word “designed” as used in the ordinance may be interpreted as meaning “intended. ” It is one of the well-recognized meanings of the word. So, when the ordinance is interpreted to legislate against the possession of certain articles which the possessor either used, or intends to use, to assist in gambling, its constitutionality cannot be successfully attacked.

2. Unlawful search and seizure.

The evidence indicates that two police officers went to the accused’s place of business (a restaurant) on information that he was engaged in the ‘ ‘ numbers ’ ’ business. In the process of securing evidence, the officers asked him to loosen and lower his trousers. When complying with the request, two slips of paper, later identified as “numbers lottery” tickets, fell to the floor from his person or clothing. It is asserted that this constituted an unlawful search and seizure, and, as a consequence thereof, the admission of the tickets in evidence was unlawful and prejudicial.

In our consideration of this question, we need not be concerned with the many contradictory opinions of the federal courts. See “Unlawful Searches and Seizures” and cases cited in 47 Ohio Opinions, 405. The Supreme Court of Ohio has established the following rules, which we are obligated to follow. They are:

“3. An officer of the law who makes search and seizure in a dwelling or other premises, without a warrant or with an illegal warrant, in contravention of Section 14, Article I, of the Constitution of Ohio, is a trespasser, and amenable to an action for such trespass.

“4. In a criminal case, evidence obtained by an unlawful search is not thereby rendered inadmissible, and, if otherwise competent and pertinent to the main issue, will be received against an accused.

“5. An application or motion to suppress or exclude such evidence made before trial or during trial is properly denied. The court need not concern itself with the collateral issue of how the evidence was procured. * * *” State v. Lindway, 131 Ohio St., 166, 2 N. E. (2d), 490. See also: 150 A. L. R., 566, and cases therein cited.

In the case before us, although the officers might be considered trespassers or might be guilty of technical assault, nevertheless the evidence was admissible, because in cases of this kind the policy of this state is that the trial court need not concern itself with the collateral issue of how the evidence was obtained.

3. The weight of the evidence.

Proof of a person’s intentions at the time of the commission of an offense is usually of a circumstantial character. And one of the circumstances which may be considered is an accused’s failure to take the witness stand in his own defense, the legal significance of which is that the charge remains unchallenged, except only through the plea of not guilty. Section 13444-3, General Code, provided:

“On the trial of criminal causes, a person charged with an offense may, at his own request, be a witness, but not otherwise. The failure of such person to testify may be considered by the court and jury and may. be made the subject of comment by counsel.”

See also: Article I, Section 10, Constitution of Ohio.

In the light of this statute, the trial court, in determining the probative value of direct and circumstantial evidence from which inferences may be drawn, has the right to consider the unexplained failure of the accused to take the witness stand. City of Cincinnati v. Hyams, 77 Ohio App., 403, 67 N. E. (2d), 39.

As stated in Leslie v. State, unofficially reported in 7 Ohio Law Abs., 299:

“* * * When one is being tried for a crime which may mean even his life, and in any event his liberty, it seems almost unbelievable that if innocent he could be persuaded to refrain from raising his own voice in a protest of innocence. * *

In City of Cleveland v. McNea, 158 Ohio St., 138, at p. 142, 107 N. E. (2d), 201, the court stated:

“The trier of the facts was authorized to consider the failure of the defendant to testify or to make any explanation of the many incriminating facts, conditions and circumstances which he must have regarded as pointing definitely to his. guilt of the offense charged. ’ ’

In the case now before us for decision, we find that the established facts and the inferences to be drawn therefrom, including the inferences to be drawn from the failure of the defendant to take the witness stand, were sufficient for the trier of the facts to find the defendant guilty as charged. The fact of the possession of gambling papers, coupled with their concealment or attempted concealment on the person of the defendant, and further coupled with a refusal to testify why they were upon his person, is sufficient to permit an inference that the material was possessed with the intention of using it in gambling.

The law which safeguards a defendant from testifying against himself is not here involved. The defendant in this case refused to testify in favor of himself, as was his right, and, from that refusal, the Ohio Constitution and the statute hereinbefore set forth permit a court or jury to draw the inference that his honest testimony would not be favorable to his defense.

4. In consideration of other claimed errors, we find none prejudicial to the rights of the defendant.

The judgment is affirmed.

Judgment affirmed.

Hunsickbr and Stevens, JJ., concur.


text:
    Wilson, Appellee, v. Moore et al., Appellants.
    (No. 1028
    Decided November 30, 1951.)

      Mr. Robert Kelly, for appellee.

      Messrs. Meredith <& Meredith and Mr. Howard Guthery, for appellant.
   Middleton, P. J.

Plaintiff, Commodore Wilson, commenced this action against the defendant Chester Moore for conversion of money and, in addition to his petition, filed an affidavit setting forth that the defendant had fraudulently incurred the obligation upon which suit was brought.

An order of attachment was issued therein on August 22, 1949, and on that date, the sheriff attached a 1947 Hudson automobile.

The defendant The City Loan & Savings Company had a mortgage on the attached automobile, which mortgage was executed by the defendant Chester Moore on August 18, 1949, to secure a loan of $325. This mortgage was presented to the clerk of courts of Marion county, Ohio, for the purpose of having the lien noted on the certificate of title.

Subsequent to the attachment of the automobile, The City Loan & Savings Company was made a party defendant in this action, filed an answer and cross-petition setting forth their mortgage, and claimed it to be the first and best lien on the automobile.

The defendant Chester Moore did not answer, judgment^ was rendered against him, the automobile was sold by agreement of the parties, and all liens were transferred and made liens on the funds arising from the sale.

To the answer and cross-petition of the defendant The City Loan & Savings Company, the plaintiff filed a general denial.

The question to be decided is the priority of the lien of the plaintiff under his attachment and the lien of The City Loan & Savings Company by virtue of its mortgage noted on the certificate of title to the automobile.

Upon the hearing of this cause the parties made certain stipulations which, in part, included the following:

That plaintiff filed suit against defendant Moore on August 22, 1949, and obtained an order of attachment upon that day; that the sheriff seized the 1947 Hudson sedan, motor No. 17194991, and serial No. 17194991 at 4 p. m. on the 22nd day of August 1949; that the defendant Moore borrowed $325 from The City Loan & Savings Company at its Ironton, Ohio, office on the 11th day of August 1949 and executed a note evidencing said debt and a mortgage on the automobile described in the above stipulation, to The City Loan & Savings Company as security for said debt; and that the lien of the mortgage was noted on the certificate some time on August 22, 1949.

Evidence was offered by the defendant The City Loan & Savings Company and not denied by the plaintiff that Mrs. Steele, an employee of The City Loan & Savings Company, delivered the mortgage in question to the clerk of courts of Marion county at about 9:32 a. m. on August 22,1949, for the purpose of having the mortgage noted on the certificate of title to the automobile.

There was no direct evidence offered as to the actual time the notation of the lien was endorsed upon the certificate of title, or the time the certificate of title, with the notation of lien indorsed thereon, was delivered to The City Loan & Savings Company.

The only other witness testifying was Mrs. Uhl, employed by the clerk of courts, who testified she had little recollection of the facts surrounding the certificate of title in question or the endorsement of defendant’s lien thereon. Her testimony concerned for the most part the normal procedure followed in the clerk’s office in the notation of liens on certificates of title; that there were times when from one to three days would elapse before the time when mortgages were left at the clerk’s office and the time the notation of lien was endorsed thereon; but that the, actual date of the endorsement was stamped upon the title certificate. She testified further that the notation of lien was placed upon the certificate of title prior to the time the cash in the office was counted; that the counting of cash usually occurred between three-thirty and four o’clock in the afternoon; that the clerk’s office closed at four-thirty; that it could be as late as four-thirty on busy days before the cash was counted; and that all notations of liens were made prior to the counting of the cash.

Upon cross-examination, this witness testified that plaintiff’s attorney called at the title office on August 22 in regard to the title of Chester Moore; that she did not remember what time it was when he called at the office; but that at such time there was no lien noted upon the title.

The plaintiff offered no evidence.

Section 6290-9, General Code, provides in part:

“The holder of a chattel mortgage, trust receipt, conditional sales contract or similar instrument, upon presentation of said instrument to the clerk of courts of the county where such certificate of title was issued, together with the certificate of title and the fee prescribed by this chapter, may have a notation of such lien made on the face of such certificate of title. The clerk of courts shall enter said notation and the date thereof over his signature and seal of office, and he shall also note such lien and the date thereof on the duplicate of same in his files and on that day shall notify the registrar who shall do likewise. The clerk of courts shall also indicate by appropriate notation on such instrument itself the fact that such lien has been noted on the certificate of title.”

Upon presentation of its mortgage to the clerk of courts by the defendant The City Loan & Savings Company together with payment of the required fee. it was the duty of the clerk of courts at the time of such presentation to note such lien upon the certificate of title.

The undisputed evidence in this case is that the mortgage of The City Loan & Savings Company was presented to the clerk of courts at about 9:32 a. m., or a few minutes thereafter, on the morning of August 22, 1949, for the purpose of having such lien noted upon the title certificate.

The law indulges in certain presumptions, among which is the presumption that public officers have performed the duties of their respective offices.

In the instant case, at the time the mortgage was presented to the clerk of courts at 9:32 a. m., or a few minutes thereafter, together with the required fee, it is legally presumed that the lien was promptly endorsed upon the certificate of title, as required by law. This presumption is entitled to the same weight and has the same force in law as any proven fact. However, such presumptions are not absolute and conclusive and may be rebutted by proof to the contrary.

‘ ‘ The burden of proof imposed by law upon one who must prove the existence of a fact or a thing necessary to be proven in the prosecution or the defense of a lawsuit means the obligation to show it by proof.' When a party is not required to sustain the burden of proof upon some particular issue, a rebuttable presumption arising out of such issue may be overcome by evidence which counterbalances the evidence to sustain the presumption; however, when such party is required to assume the burden of proof upon an issue, any rebut-table presumption arising therefrom must be removed by the same degree of proof necessary to sustain the issue.” Kennedy, Exr., v. Walcutt, 118 Ohio St., 442, 455, 161 N. E., 336.

The plaintiff called no witnesses and offered no evidence upon the hearing of this cause other than contained in the stipulation and failed to show the existence of any fact to rebut the legal presumption that the defendant’s lien was noted upon the title certificate at the time it was presented to the clerk at about 9:32 a. m., on August 22, 1949.

By agreement of the parties, plaintiff’s claim did not become a lien until 4 p. m. on August 22, 1949.

From the entire record, we reach the conclusion that the lien of The City Loan & Savings Company is prior to the lien of the plaintiff, and that the finding and judgment of the court below is contrary to law.

This cause is remanded to the Court of Common Pleas, with instructions to enter final judgment in fav- or of the defendant The City Loan & Savings Company, finding that the lien of The City Loan & Savings Company is the first and best lien on the fund in the hands of the sheriff arising from the sale of the automobile after payment of costs.

Judgment accordingly.

Jackson and Guernsey, JJ., concur.