author: Montgomery, J.

text:
    Dakovich, a Minor, Appellant, v. Henrich et al., Appellees.
    (No. 2266
    Decided October 8, 1947.)

      Messrs. Quinn £ Quinn, for appellant. .

      Messrs. Burt, Carson, Lynch £ Miller, for appellees.
   Montgomery, J.

This cause having been submitted to a jury in the Court of Common Pleas, a verdict was returned for defendants. Judgment having been rendered thereon, this appeal was perfected.

Vincent C. Henrich was, and is, the lessee of certain property in the city of Massillon, on the rear of which is located a barn. At the time of the accident suffered by plaintiff he was, and he now is, the owner of two Palamino mares. They were at that time two years old, not broken for riding. He had owned them about nineteen days. During these nineteen days, they had had no exercise except for being led up and down an alley. Prior to their purchase they had spent a part of each day in a pasture field.

In a portion of this barn, he had constructed for them two stalls, known as tie stalls, as distinguished from box stalls. The stalls were side by side, perhaps twelve feet in length by six or seven feet in width. There was in them a wooden floor, about two inches thick, laid over the cement floor of the barn. The front and outside of the stalls were of wood full length; between them was a wooden partition some four feet high. The rear of the stalls was open, with a chain running across each one, and about four feet from the ground.

■ On the night in question, July 29, 1944, Henrich was in the barn caring for these colts. The plaintiff, then a child about three and a half years old, asked to see him and the horses. His wife, the appellee, Marie Henrich, took the child into the barn, to the open space in the rear of the stalls. One of the colts, lunging backward, kicked this child in the face, producing a serious temporary injury, at least. There is a direct conflict in the medical evidence as to whether the injury is permanent, further than leaving a scar on the lip.

The amended petition charged that:

“The defendants or either of them were negligent in the following respects,- which proximately caused or contributed to cause her injuries, to wit:

“(1) In failing to provide proper protection for persons standing at the rear of said stall where said accident occurred by placing boards or other barrier separating said stall from the rest of the barn.

“ (2) In failing vto erect barriers to prevent persons from approaching near enough to said stall to be within reach of the colt in said stall, or otherwise warn them not .to approach near said stall, when the defendants knew or in the exercise -of ordinary care should have known that said colt was untrained and nervous and would be apt to kick without any apparent provocation.

“(3) In failing to personally hold the plaintiff or otherwise prevent her from approaching within range of the kicking colt, although the defendants knew that plaintiff was a child of the tender age of three years and three months and not cognizant of the habit of said type of animal to kick when approached from the rear, whereas the defendants knew that said colt was untrained and was in the habit of kicking under similar situations and conditions.”

But at the conclusion of the evidence, the trial court, properly, because of a failure of any evidence to sustain it, withdrew from the consideration of the jury the clause in the third charge of negligence that “the defendants knew that said colt was untrained and was in .the habit of kicking under similar situations and conditions.”

The answer admitted that this child was struck by the hoof of the mare and sustained some injury. It denied any negligence and denied that the mare 'was of a vicious nature or apt to kick without provocation.

Errors are assigned: That the verdict is manifestly against the weight of the evidence; that the court erred in its general charge and in its refusal to give a special request to charge.;' and that there was error in the admission and exclusion of evidence.

As to the evidence, suffice it to say that we cannot find any prejudicial error in admission or exclusion of it. There was no error in the charge so far as it is directed toward Vincent Henrich.

The verdict is not manifestly against the weight of the evidence as to either of the appellees, and as to Vincent Henrich, we fail to see how it could have been different. There is nothing to indicate faulty construction of the stalls, although horsemen generally prefer box stalls for the good of the horses in the matter of exercise. There-is nothing to indicate that this defendant had any knowledge of vicious acts or vicious propensities on the part of this animal. He did not know that his wife and the child were in the barn until he heard the child scream.

As we have stated, the verdict is not manifestly against the weight of the evidence so far as Marie Henrich is concerned. But her status is different from that of her husband’s. We have heretofore quoted the specifications of negligence set forth in the amended petition, and it will be noted that there w\as a sort of a pleading in the alternative, “the defendants or either of them.” In the.course of oral argument we propounded to counsel for the appellees this proposition : That, conceding, for the sake of argument, that there was no partnership or joint enterprise upon the part of these defendants, the liability of Vincent Hen-rich, if any, lay in his failure properly to maintain these premises for the reasonable protection of an invitee. That, so far as the defendant Marie Henrich is concerned, the negligence, if any, chargeable to her was in the failure to use proper care in conducting this young child into this stable in such proximity to these horses. To these two propositions counsel acquiesced. What was our first impression, as then propounded, has, from a study of the record, become a confirmed convictióií. And while there might not b.e any adequate proof of negligence on the part of Vincent Henrich so far as the duty imposed upon him is concerned, a different situation would hold as to his wife.

The contention was made below that thése parties were partners or engaged in a joint enterprise. The record shows conclusively that such was not the fact.

However, the trial court charged specifically that, in order to hold Marie Henrich liable, the jury must find her engaged in a joint enterprise with her husband. In fact, he stated: “If you find that Marie Hen-rich was not engaged in a partnership or joint enterprise in the operation of this stable you will not proceed against her any further, and your verdict so far as Marie Henrich is concerned, shall be in favor of Marie Henrich and you will not consider her as a defendant in determining the remaining issues.”

This seems to us to have been clearly erroneous and possibly prejudicially erroneous. While the case was not strong against her, and the jury might have brought in a verdict upon her behalf, even though properly charged, yet there was sufficient evidence to go to the jury under proper instructions as to whether she exercised due care in taking this child into the barn and within the proximity of these horses. She knew, or ought to have known, being interested in horses, that it is essential, when coming within reach of one of them, to speak so that the presence of the speaker will be known, that horses, particularly young, spirited horses, become excited over people approaching without warning, and especially over the sudden appearance of a child or children.

The court in charging this matter of joint enterprise overlooked or ignored completely this specification of negligence directed toward Mrs. Henrich alone. And when, at the conclusion' of the general charge, counsel for plaintiff asked that there be giyen a charge showing the degree of care owed to a child of tender years, that request was refused. The jury should have been so ■ charged. See 38 American Jurisprudence, 892, 893, Section 207.

For errors in the charge, as indicated, and for these reasons alone, the judgment in favor of Marie Hen-rich must be, and it is, reversed, and the judgment in favor of Vincent Henrich is affirmed.

Judgment reversed in part and affirmed in part.

Putnam, P. J., and McClintock, J., concur.


source: Caselaw Access Project

author: Hildebrant, J.

license: Public Domain

text:
    Myles, a Minor, Appellant, v. Meineke et al., Appellees.
    (No. 20806
    Decided February 17, 1948.)

      Messrs. Grossman, Garter, Hamilton <& Rosenman, for appellant.

      Messrs. Harrison & Marshman, for appellee Melvin Wm. Meineke.

      Messrs. Bulldey, Butler & Pillen, for appellee Indemnity Insurance Company of North America.
   Hildebrant, J.

This is an appeal on questions of law direct from the Municipal Court of Cleveland.

Plaintiff suffered injuries when he was wrongfully shot by one Meineke, a private policeman on duty at the time for The Lees-Bradner Company.

Recovery here is sought on two bonds, one required bv the city of Cleveland, the other by the state of Ohio, each signed by defendant Meineke and defendant Indemnity Insurance Company of North America.

The conditions of the city bond are: •

“The conditions of this obligation are such that whereas, the said Melvin Wm. Meineke was on the tenth day of June, 1942, commissioned as a private policeman in the city of Cleveland;

“Now, if the said principal shall faithfully, honestly, and impartially perform and discharge the duties of private policeman while he shall hold such commission in accordance with the laws of the state of Ohio, and the charter and ordinances of the city of Cleveland, then this obligation shall be void, otherwise to remain in full force and virtue in law.”

The conditions of the state bond are:

“Whereas, the General Code of Ohio, in authorizing such an officer to go armed requires that he first give bond to the state of Ohio ;

“Now, therefore, any person injured by improper use of the weapon carried by the said Melvin Wm. Meineke, shall have recourse under this bond; but if the public shall be saved harmless from any improper use of such weapon carried by the said Melvin Wm. Meineke, then this obligation shall be void.”

Any question as to the right to sue on these bonds is settled affirmatively by reference to American Guaranty Co. v. McNiece, 111 Ohio St., 532, 146 N. E., 77, 39 A. L. R., 1289.

Prior to the bringing of this action, plaintiff recovered a judgment of $10,000 against The LeesBradner Company for the injury and damage occasioned by the wrongful shooting by Meineke, which judgment was paid by its insurer, The Fidelity & Casualty Company of New York, which company became a party defendant herein by intervention and in whose favor the Municipal Court rendered judgment on the two bonds in suit, finding it to be subrogated "to the rights -of the injured party, having paid the judgment and entitled to recover its loss within the limits of the bonds from Indemnity Insurance Company of North America, as surety for Meineke, the wrongdoer, and, hence, primarily liable.

Plaintiff claims the city ordinance and state statute requiring the bonds created new causes of action separate and distinct, and not related to the common-law rights' of the plaintiff, so as to be barred by the recovery in that action. Phillips Sheet & Tin Plate Co. v. Griffith, Admx., 98 Ohio St., 73, 120 N. E., 207, is cited in support of plaintiff’s contention, wherein recovery against the county under a mob statute was held not to be a bar to a suit against defendant company for wrongful assault

In that case the court pointed out that the issues were entirely different, the common-law action being-one for damages only, and the statutory remedy against the. county being an additional one dependent upon an entirely different state of facts, and in effect affording some remedy for harm by unknown participants in a mob constituting a breakdown of constituted county authority, for which it ought to be held responsible.

The ordinance and statute requiring bonds give no new or additional remedy for the wrong, but merely provide a limited security in the enforcement of the existing common-law remedy against a wrongdoer who may be insolvent.

Commenting on the Phillips Sheet & Tin Plate Co. v. Griffith, Admx., case, supra, the court in Herron v. City of Youngstown, 136 Ohio St., 190, at page 199, 24 N. E. (2d), 708, says:

“* * * and that although Section 6287, General Code, provides for reimbursement to the county from any of the persons composing the mob in case the county is obliged to pay, nevertheless the county and the defendant were each liable on an entirely different state of facts in different causes of action, and that one recovery was not a bar to the other. See, also, Briner v. Scheibel, 154 Tenn., 253, 290 S. W., 5, 50 A. L. R., 1052.

“The former action of the plaintiff against the lessees and this action against the city are based upon the same wrongful act for which the plaintiff is entitled to but one satisfaction. In case the city is obliged to respond in damages in this action there exists the right of subrogation and right of reimbursement in favor of the city as against the lessees.”

Here, Meineke is the wrongdoer and his surety liable only by reason thereof, so that its liability is predicated solely on the identical and same wrongful act, fixing the liability of Meineke. It is elementary that plaintiff is entitled to but one satisfaction of his wrong. Becovery if allowed the plaintiff here would amount to an additional satisfaction for the one wrong.

There can be no controversy here but that Meineke, the wrongdoer, is primarily liable with The Lees-Bradner Company, being only secondarily so, and, on payment of the judgment against it, subrogated to the rights of the injured party against the wrongdoer. By its contract, The Fidelity & Casualty Company of New York stands in the shoes of The Lees-Bradner Company.

Having paid the judgment against The Lees-Bradner Company, secondarily liable in full, no claim on the part, of plaintiff remains against Meineke, primarily liable. Again, it is elementary that if plaintiff has no claim against the principal, he can have none against the. surety. However, the one secondarily liable haying satisfied the wrong in full is subrogated to the rights of the injured party against the wrongdoer for whom the Indemnity Insurance Company of North America is surety. Losito v. Kruse, Jr., 136 Ohio St., 183, 24 N. E. (2d), 705, 126 A. L. R., 1194. The Fidelity & Casualty Company of New York occupying that position then becomes the injured party, and the person for whose benefit the bonds were intended and required, and entitled to the proceeds thereof.

The judgment of the Municipal Court is affirmed, and the cause remanded for execution thereon.

Judgment affirmed.

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

Matthews, P. J., Ross and Hildebrant, JJ., of the First Appellate District, sitting by designation in the Eighth Appellate District.


author: Ross, J.

text:
    McAtee, Appellant, v. The Western & Southern Life Ins. Co., Appellee.

      (No. 6940
    Decided April 19, 1948.)

      Mr. John P. Boh, for appellant.

      Messrs. Kyte, Gonlan <& Heehin, for appellee.
   Ross, J.

The plaintiff appeals upon questions of law from two orders of the Court of Common Pleas of Hamilton county, entered on the 9th day of December 1947. The case was tried to the court without a jury and resulted in a judgment for defendant. The only two orders of the trial court entered on that day 'were ‘(1) an entry overruling the plaintiff’s motion for judgment non obstante veredicto and (2) an entry ■overruling the plaintiff’s motion for a new trial.

The court, on the 22nd day of -October 1947, made .-and entered on its journal a finding in favor of the defendant. Final judgment was entered in favor of' the defendant, on October 23, 1947. Motions for judgment non obstante veredicto and for new trial were filed on October 25, 1947. These motions were-overruled on December 9, 1947.

Summons was served on the defendant on April 25, 1947. Section 11599-1, General Code, requiring motion for judgment non obstante veredicto to bellied before judgment did not become effective until September 27, 1947.

The motion for judgment non obstante veredicto,. under the practice in force at the time the action was commenced, was properly filed. The entry overruling that motion is a final order from which appeal on questions of law may be taken to the Court of Appeals.. Cincinnati Goodwill Industries v. Neuerman, 130 Ohio St., 334, 199 N. E., 178; Hoffman v. Knollman, 135 Ohio St., 170, 185, 20 N. E. (2d), 221; Massachusetts-Mutual Life Ins. Co. v. Hauk, 72 Ohio App., 131, 51 N.E. (2d), 30.

It has been consistently held that the overruling of' a motion for new trial, where no final judgment is-entered, is not a final order or judgment from which an appeal to the Court of Appeals may be taken on questions of law. Reliance Ins. Co. v. Pohlking, 27 Ohio Law Abs., 248; In re Estate of Evans, 42 Ohio Law Abs., 7, 59 N. E. (2d), 161.

In 1945, the Legislature amended Section 11578,, General Code, and as to actions commenced after the effective date of such amendment, October 11,1945, motions for new trial were addressed to the final judgment of the court when approved in writing and filed for journalization, rather than as before to the verdict or decision of the court.

Where a motion for new trial is filed, usually the order overruling same will be the final entry in the-action.

The Court of Appeals, under the 1912 amendment of Section 6, Article IV of the Ohio Constitution, was ■given jurisdiction to review only “judgments” of courts of record inferior to the Courts of Appeals. By judicial construction, this term, “judgments,” was extended to include such “final orders” as had the dignity of judgments at the time of the adoption of the 1912 amendment. Chandler & Taylor Co. v. Southern Pacific Co., 104 Ohio St., 188, 135 N. E., 620; Pilgrim Distributing Corp. v. Galsworthy, Inc., 148 Ohio St., 567, 572, 76 N. E. (2d), 382.

By an amendment to Section 6, Article IV of the •Constitution of Ohio, the Legislature was given full power to provide for the review of “judgments and ■final orders” of courts of record inferior to the Court •of Appeals. This power was not as wide-as that conferred by the Constitution of 1851 upon the Circuit Courts, which provided that the Circuit Courts should have “such appellate jurisdiction as may be provided by law.” Even when-the Legislature acts it will be limited to provisions for review of “judgments and final orders.” And the meaning of those terms as used in the amendment will be limited as before by the scope of their definition as understood and accepted at the time of the adoption of the amendment.

The Legislature can no more designate an order final, which is not so in fact, than could it in the past, or now denominate an action a chancery case which •did not meet the requirements specified by judicial construction. Borton v. Earhart, 144 Ohio St., 334, 59 N. E. (2d), 37.

It becomes unimportant, therefore, to determine whether the Legislature, as far as the jurisdiction of the Court of Appeals is concerned, has now attempted, or will in the future attempt, to clothe- the action of the trial court in overruling a motion for new trial with-, the dignity of a final order, if such action does not constitute a final order within the purview of the-amendment. However, it does become important to-determine whether the' action of the Legislature after the 1944 amendment of Section 6,' Article IV, has-changed the character of the action of the court in. overruling a motion for new trial by reason of the new function of a motion for new trial in its attack upon a judgment, rather than upon a verdict or decision.. Section 11578, General Code, amended, effective October 11, 1945.

In effect today the motion is now an application to-vacate a judgment as well as a motion for new trial.

In Cox v. Cox, 108 Ohio St., 473, 141 N. E., 220, théSupreme Court sustained the judgment of the Court of Appeals in affirming an order of the court of Common Pleas overruling a motion to vacate a judgment of such trial Qourt. The question of the finality of the-order of the trial court in overruling the motion to vacate was not discussed, but apparently the Supreme-Court considered that the Court of Appeals had jurisdiction in appeal on questions of law.

In Cox v. Cox, 104 Ohio St., 611, 136 N. E., 823,. this matter was definitely considered, and there can be no doubt that the Supreme Court, considered such action of the trial court in overruling a motion to vacate-a final order.

See, also, Chandler & Taylor Co. v. Southern Pacific Co., supra, and Baldwin v. Lint, 53 Ohio App., 349, 5 N. E. (2d), 413.

It must be concluded, therefore, that the overruling-of a motion for new trial is a final . order in that as to actions commenced after October 11, 1945, the motion is essentially a motion to vacate a judgment as-well as a motion for a new trial.

Section 11576, General Code as amended and effective October 11, 1945, provides in part:

“A final order, judgment or decree, shall be vacated, ■and a new trial granted by the trial court on the application of a party aggrieved, for any of the following •causes affecting materially his substantial rights # * # ? ?

Such being the case, the appeal was properly taken from the action of the court on both motions and the assignments of error applicable to such action must be here considered. ' .

The action of the trial court on these motions will ■be considered as applicable to both motions.

The plaintiff in her petition states that she is the beneficiary of a certain policy of insurance issued by the defendant upon the life of William McAtee, who died on the 16th day of December 1946; that the amount •of such policy became due and payable to her but the defendant has refused to pay the amount of insurance, ■due her; that all premiums due under the policy have been paid; and that all conditions required to be performed have been duly and fully executed.

In the answer of the defendant, for a first defense, defendant admits the execution of the policy, the payment of the premiums, the amount of insurance, proof ■of claim, the death of the insured, demand and refusal ■of payment of the amount of the policy. Other allegations of the petition are denied.

For a second defense, the defendant alleges that the insured was not in sound health on the date of the ■delivery of the policy, as required by the terms thereof in order to fix liability upon the insurer, that upon •discovery of such facts the premiums paid by the insured were tendered plaintiff and refused, and the •defendant is ready and willing to pay such premiums, ■as the court may find due.

A reply was filed which is essentially a general denial of the allegations of the answer, inconsistent with the-allegations and claims of the plaintiff.

Upon the motion of the plaintiff for judgment non obstante, it must appear from the pleadings and evidence 'that the plaintiff is entitled to judgment as a matter of law, that is, giving the evidence of the defendant every reasonable construction in its favor, still the plaintiff should recover.

This contention of the plaintiff in this respect is-' predicated upon the claim that, when the defendant introduced an application for the insurance in evidence and it appeared in the application that the insured had’ stated that he was in sound health, and when it further appeared from the evidence that the defendant had failed to attach the application or a copy thereof to the policy delivered to the insured, the defendant by virtue of the terms of Section 9389, General Code, was thereafter forever precluded from denying such fact. An examination of the record shows the introduction of- a copy of the application in evidence by defendant, and that no copy thereof was attached to the policy or given the insured.

Section 9389, General Code, provides:

“Every company doing business in this state shall return with, and as part of any policy issued by it, to any person taking such policy, a full and complete-copy of each application or other document held by it which is intended in any manner to affect the force or validity of such policy. A company which neglects so-to, do, so long as it is in default for such copy, shall beestopped from denying the truth of any such application or other document. In case such company neglects-for thirty days after demand made therefor, to furnish-such copies, it shall be forever barred from setting up as, a defense to any suit 'on the policy, any incorrectness or want of truth of such application or other document.”

That section and its predecessor, Section 3623, Revised Statutes, have been considered several times by the courts of this state.

In Lamarand v. National Life & Accident Ins. Co., 58 Ohio App., 415, 16 N. E. (2d), 701, the third paragraph of the syllabus is:

“Section 9389, General Code, which provides that a copy of each application affecting an insurance policy shall be furnished the. insured, and that neglect or refusal to do so shall estop the insurer from denying the truth of any such application, does not prevent the insurer from defending on the ground that the insured was not in sound health at the date of application, bu¿ merely bars a defense on the ground of misrepresentation.”

An examination of the opinion shows that that holding was obiter dictum. On page 420 of the opinion it is stated:

“The jury, on the disputed evidence before it, returned a general verdict for the plaintiff and, in answer to special interrogatories submitted to it, said that the insured did not have cancer on March 12, 1934, and did not have cancer prior to that date, and was in sound health on that date. Upon the whole record we cannot say that the verdict is against the manifest weight of the evidence, or that there is not sufficient evidence to sustain it. This finding disposes of the claim of the insurance company that its motions for a directed verdict should have been sustained.

“The appellee, though successful, complains of a matter which requires our attention. Section 9389, General Code, provides as follows: * * *.”

The court, on page 422 of the opinion, cites the ca,se of “Metropolitan Life Ins. Co. v. Howle, supra.” Two-cases under that style are cited by the court on page 420 of the opinion; 62 Ohio St., 204, 56 N. E., 908, and 68 Ohio St., 614, 68 N. E., 4. In the first case, Section 3623, Revised Statutes, was not considered, but, on-the contrary, Section 3625, Revised Statutes, was. The first paragraph of the syllabus is:

“Section 3625, Revised Statutes, applies to false-answers to interrogatories in the application for a life insurance policy, but does not apply to conditions in the policy itself.”

Section 3625, Revised Statutes (now Section 9391,. General Code) provided:

“No answer to any interrogatory made by. an applicant, in his or her application for a policy, shall bar the-right to recover upon any policy issued upon such application, or be used in evidence upon any trial to recover upon such policy,- unless it be clearly proved’ that such answer is willfully false and was fraudulently made, that it is material, and induced the company to issue the policy, and that but for such answer the policy would not have been issued; and, moreover, that the agent or company had no knowledge of the falsity or fraud of such answer.”

Section 3623, Revised Statutes, is substantially present Section 9389, General Code.

In the second case, Metropolitan Life Insurance Co. v. Howle, 68 Ohio St., 614, the court construed the application of Section 3623, Revised Statutes. The first paragraph of the syllabus is:

“Where under Section 3623, Revised Statutes, a ful! and complete copy of the application'for insurance has-not been returned with the policy, the insurance company while so in default is estopped from denying the-truth of such application, but to make such estoppel available the facts constituting the estoppel must be plead by the plaintiff.”

In the opinion, on page 617, it is stated:

“Upon the trial the defendant, insurance company, had a witness upon the stand with one of the applications for insurance in his hand, and was proceeding to prove that the answers to the several questions therein were made by said Sarah Howie, and that said answers were false, when counsel for plaintiff below objected on the ground that said defendant had failed to prove in open court that it had returned with said policy a complete copy of said application as required by Section 3623, Revised Statutes. The court sustained the objection, and excluded both of said applications, to which the defendant excepted.

m * # * #

“Under the provisions of this section a failure to return a full and complete copy of the application with the policy, works an estoppel, so long as the company shall be in default, and in case of neglect to furnish such copy for thirty days after demand made therefor, such neglect shall be a bar to any and all defenses growing out of such applications and the answers to questions therein contained. The bar here provided for is a permanent estoppel. To make an estoppel or such bar available the facts constituting the same must be plead in all cases where the same is practicable.

“In this case the plaintiff below should have plead the estoppel in his reply, but instead of so doing he contented himself with a general denial, and thereby denied the existence of such applications. As the applications in this case in fact existed, he should have admitted that fact in his reply, and avoided their effect by pleading the failure to return copies, and thereby made the estoppel available. The defendant company wagi not required in its answer to say whether a full and complete copy of the application bad been returned with each policy or not. The denial of the existence ■of the applications might be taken as an argumentative denial of theii' return with the policies*, but pleadings should be direct and not argumentative. As the pleadings stood the court erred in excluding the evidence.”

It appears from a statement of that case at pages 615 to 617 that as its second defense the insurer- stated that the policies were issued because of false warranties in the application, and that the plaintiff filed only a general denial in the reply.

In the instant case, the application is not mentioned by either party. The defendant insurer defended upon the ground that the insured was not in sound health at the time such policy was delivered. The application was first brought into the case by the defendant, and was admitted over the objection of the plaintiff.

It would seem at first that the rule in the case of Metropolitan Life Ins. Co. v. Howle, 68 Ohio St., 614, would apply, but a different situation is presented in the instant case. In the Howie case, the plaintiff was advised of the existence of an application by the insured, because the existence and force of such application was alleged by the defendant insurer in the answer. In the instant case, as far as anything in the pleadings or evidence shows, the first knowledge the beneficiary (who is the plaintiff) had of an application having been signed, executed, or delivered by her insured was when the defendant introduced such application in evidence. How can the plaintiff be required to plead facts constituting an estoppel of which she may be, and, as far as this record shows, was, wholly ignorant?

Such being the case, if it appears that such a plaintiff is not made aware of the existence of an application either in pleading or otherwise until such application is introduced in evidence by defendant, plaintiff may invoke the estoppel provisions of Section 9389; General Code, and the defendant is estopped to deny the truth of any statement contained in such application.

The dilemma of the defendant in the instant case is apparent. It needed the application in order to furnish a waiver, but when it introduced the application in evidence, the provisions of Section 9389, General Code, took effect and the application having stated the insured was in sound health at the time the application was signed the insurer cannot deny this fact. The application was signed on August 20,1946. The policy became effective August 26, 1946.

The insured died on December 16, 1946. The cause of death was cerebral hemorrhage. There is competent evidence that the decased consulted a physician on June 15, 1946, who recommended that he obtain an electrocardiagrám, because he found pain in the patient’s chest in the region of the heart. After the report was received, the physician told the insured he had “a condition suggestive of cardio-vascular disease, suggestive of it” and prescribed sedative and rest. This “disease” mentioned indicates an impairment of the veins of the heart. The physician who made the car diagram, on June 16, 1946, testified:

“Q. As the result of your examination of Mr. McAtee and as the result of the electro-cardiagram, what did you find his condition to be at that time? A. At that time my conclusion was that he had—

“(Question objected to by counsel for plaintiff; the objection was overruled and counsel for plaintiff excepted.)

“The Court: > All these questions of the doctor are objected to and overruled for the reason that I stated.

“A. My conclusions were that the evidence showed the existence of hyper-tension, systolic and diastolic, high blood pressure with some manifestations on the part of the blood vessels to the heart that we speak of as anginal pattern.

“Q. Is that a serious type of disturbance? A. It is a disease of circulation through the blood vessels of the heart and would necessarily have serious effects.

“Q. Did you send Mr. McAtee back to Dr. Cavanaugh? A. I referred the patient back.”

Now we are confronted with the positive fact that on August 20, 1946, the insured was in sound health. This is the effect of the • estoppel in the application. There is no evidence except that just mentioned that, after that date or on August 26, 1946, the insured was not in sound health. It may be argued that the disease from which the physicians - stated the insured was suffering could not be cured, that the cause of the death was directly attributable thereto, and that he must have still been suffering from it on August 26, 1946. This ignores the definite fact that the insurer is es-topped to deny that the insured was in sound health on August 20, 1946.

There being no evidence that after the date of the application or that on the date the policy became effective the insured was not in sound health, the plaintiff was entitled to judgment for the amount of the policy, the only defense being that the insured was not in sound health on the day the policy became effective.

Such being the case, the motion for judgment non obstante veredicto should have been granted, and this court, therefore, enters the judgment which the trial .court should have rendered and remands the case to the Court of Common Pleas of Hamilton county for execution of this judgment.

Judgment reversed.

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


author: Matthews, P. J.

text:
    Mazza, a Minor, Appellant, v. Greenstein, Appellee. Mazza, Appellant, v. Greenstein, Appellee.
    (Nos. 6926 and 6927
    Decided March 8, 1948.)

      Messrs. Ginocchio & Ginocchio, for appellants.

      Mr. John M. McCaslin, for appellee.
   Matthews, P. J.

One of these cases is by a minor to recover damages on account of personal injuries received in a collision between a bicycle on which he was riding and an automobile operated by defendant’s employee. The other action is by the minor’s father to recover for loss of services and expenses incurred in the treatment of the son’s injuries. By agreement, the two cases were tried as one in the Common Pleas Court and are presented to this court on the same record.

At the close of all the evidence the court instructed verdicts "for the defendant, overruled the motions for a new trial and entered judgments for the defendant in each case. It is from those -judgments that these appeals are presented.

The cause of action as presented in the son’s petition is as follows: That he was a minor 11 years of age; that on March 7, 1946, at about 5:15, p. m., he was riding a bicycle in an easterly direction down grade on St. Lawrence avenue in the city of Cincinnati; that at that time an employee of defendant was backing a Plymouth sedan automobile in a northerly direction on a private driveway oq, premises abutting on St. Lawrence avenue; and that as plaintiff was proceeding on the south side of St. Lawrence avenue the employee suddenly and without warning backed the Plymouth automobile out of the driveway and negligently and unlawfully struck and collided with plaintiff and his bicycle with great force, damaging the bicycle and injuring him. The plaintiff alleged that the collision was caused solely through defendant’s negligence In operating his automobile, without due regard for the safety of the plaintiff in the lawful use of a public highway, in failing to give- any warning, in entering upon the public highway from a private driveway without ascertaining that the same could be done safely, in failing to keep a proper lookout, in failing to have the automobile under proper and reasonable control so as not to endanger the plaintiff in the use of the -street, in failing to stop or change his course so as to avoid striking the plaintiff, in failing to yield plaintiff the right of way, and in failing to exercise reasonable care in backing out of the driveway.

The question presented by this appeal is whether the record shows any substantial evidence in support of the alleged cause of action for submission to the jury. We therefore turn to the evidence for the answer to this question, and in doing so we emphasize those portions of the evidence favorable to the plaintiff’s cause.

The plaintiff testified that:

“A. I was riding a bicycle.

“Q. As you started to go down the last hill there on St. Lawrence, before you get to 4331, how were you riding your bicycle ? A. I was riding using my coaster brakes and just riding down the hill.

“Q. Which way were you looking? A. I was looking straight ahead.

“Q. Did you see any automobiles in front of you in the street? A. No, I didn’t see any.

“Q. Did you see any automobiles anywhere around the street? A. No.

“Q. Tell us what happened as you passed 4331?

A. All at once something-1 didn’t know-it poppe'd out and I saw something black and when I woke up I was laying on the ground.

* * # # #

“Q. As I understand your testimony you never saw this automobile until yOu were getting up off the ground? A. Yes.

<£Q. Is that right? A. Yes.

££Q. That is true, isn’t it ? A. Yes.

“Q. Were there any other automobiles either going-up or down St. Lawrence avenue? A. No.

££Q. Were there any other automobiles parked on either side of St. Lawrence avenue at this time? A. ■No.

££Q. Were.you pumping or coasting down? A. I was coasting and using my coaster brakes.

££Q. You were coasting and using your coaster brakes and you say .you were just one and one-half feet from the center of the street? A. About that.

£ £ The Court: To the right of the center he says.

££Q. Is it to the right or left of the center ? A. To the right.

££Q. How can you recall so accurately you were about one and one-half feet from the center? A. I remember I was more on one side than the other.

££Q. So that being the case you estimate the distance you were to one side as 1-% feet? A. I say about that.

* # * # *

££Q. Was there any occasion for you to ride out in the center of the street? Was there anything to-prevent you from riding nearer the curb? A. No. You are supposed to ride in the street.

££Q. My question was — maybe you didn’t understand it. Why were you riding out near the center rather than nearer the side or curb? A. I don’t know; I was just riding that way.

££Q. Did you see this automobile at anytime before you were getting up off the ground? A. I didn’t see it once-

££Q. You didn’t see it when it was standing over in the driveway or on the sidewalk or in the gutter or any place else? A. When I got up off the ground I saw it.

“Q. Then is the first time you knew there was-any automobile in the neighborhood, is that correct?" A. Yes.

“Q. As you were going down this St. Lawrence-avenue did you say you were looking straight ahead?' A. Yes.

“Q. Was there anything to obstruct your'view as you were looking ahead and coming down St. Lawrence avenue from seeing a car in the driveway or on the sidewalk or entering St. Lawrence avenue? A. No; I was just looking straight ahead.

“Q. What I am asking you is this, you say you* were looking straight ahead and coming approximately right down the middle of St. Lawrence avenue within* a foot or two of the middle? A. Yes.

Q. Was there anything to prevent you from seeing an automobile standing or moving out of a driveway? A. No:

“Q. You don’t know what part of the machine and" your bicycle came together, do you?. A. No.”

One Penseh, called by the plaintiff, testified that she looked from the window of her residence fronting-on St. Lawrence avenue, just after this collision, and', that:

“Q. And where was the automobile ? Whereabouts-on the street was the automobile? A. Well I would say it was approximately a foot from the center of' the street.

‘‘ Q. And is that a wide or narrow street? A. Well" it is a narrow. It is more narrow in that part than it is in the other part of the street.

“Q. Now how much of the car would you say was in the street? Was the car entirely in the street or was-it partly some place else? A. Well I would say it was approximately half way. It was about on a half turn — you know how, when you turn out of the driveway and you back up — I guess he was going up the street. Oh, I would say, well, the back end, from the •one side, was approximately a foot from the center of the street.”

It was admitted that the defendant’s employees were engaged in delivering groceries and for this purpose had driven the automobile onto the private driveway leading to thé garage attached to or forming a part of the residence and that the automobile had remained parked there while one of the employees took the groceries to the rear door. When he .returned the operator operated the. automobile down the driveway, but the exact position of the automobile on the ■driveway and how far it was backed into the street were in dispute. It was also admitted that the yard udjacént to the driveway was at a higher level than the driveway, thereby obstructing to an extent in dispute the view of the automobile when it was parked on the driveway. It is clear from the photograph of the premises that if the automobile was parked wholly on the driveway, only a small part of the top was visible .across the yard. One of the defendant’s employees testified that when the automobile was parked the rear part extended onto the sidewalk and that after the .groceries were delivered the automobile was backed .so that it extended 63 inches into the "street, where it was stopped1, and that it was stationary there, and was waiting for the plaintiff (whom they saw approaching) to pass, when he rode his bicycle against the right rear fender of the automobile. The other ■employee corroborated this in the main, excepting that his testimony tended to prove that the automobile was parked entirely on the driveway.

The driver of the automobile testified that while the automobile was standing on the driveway and before he started to back it he saw the minor plaintiff approaching on his bicycle and that he was 400 feet away at that time and that when he stopped with the rear wheels in the gutter, he saw him again when he was 100 feet away, and that he was on the left side of St. Lawrence avenue, and looking to his left and did not have his hands on the bicycle bars.

The defendant’s automobile was 15 feet long.

St. Lawrence avenue was 21 feet, l-% inches wide-from curb to curb at this point. The sidewalk was five feet wide. There was an unpaved strip between the sidewalk and the curb, concerning the width -of which the evidence seems to be conflicting. The father of plaintiff testified that it was 5 feet, % inch wide,, and that the curb was 23 inches wide. No witness gave any greater dimension.

The trial court concluded that this evidence had no substantial tendency to prove any negligence on the part of the defendant and did prove negligence on the part of the plaintiff directly causing this collision and his injuries, and, that, therefore, no issue of fact was presented for submission to the jury.

Defendant’s counsel cites Winkler v. City of Columbus, 149 Ohio St., 39, 77 N. E. (2d), 461, holding that where a plaintiff testifies one way on direct examination and contrariwise on cross-examination, showing contributory negligence, he is bound by whichever statement shows negligence on his part and cannot recover if such negligence directly contributes to his injuries. We follow this rule in evaluating the plaintiff’s own testimony, although we find no actual conflict. We also apply the rule that he, the plaintiff, is entitled to every reasonable inference to be drawn from his own testimony as well as from the testimony of •other witnesses and the circumstances.

Accepting the plaintiff’s testimony as true, as the trial court was obliged to do in passing on the motion for an instructed verdict, he was proceeding along St. Lawrence avenue on his right side in a lawful manner about one and one-half feet from the center of- the street. He was looking forward and saw no automobile in the street or any other obstruction in his path, until the very instant of the impact of his bicycle with some obstacle which he later learned was the ■defendant’s„automobile operated by his employees.

This 'testimony certainly raises no inference of negligence on plaintiff’s part. Plaintiff, a minor, was a little under 11 years of age, but if he had been an .adult and held to the standard of reasonable care applicable to him as an adult, that testimony would have raised no inference of negligence against him. However, we 'believe the law of Ohio still is that a minor 11 years of age is charged with only that degree of •care which children of the same age, education, and experience, of ordinary care and prudence are accustomed to exercise under the same or similar circumstances. 29 Ohio Jurisprudence, 560 et seq.; Cleveland, C., C. & St. L. Ry. Co. v. Grambo, Sr., 103 Ohio St., 471, 134 N. E., 648, 20 A. L. R., 1214.

Certainly, the plaintiff, a minor, looking ahead and ■seeing no obstruction in his path, had a right to con-■chide that he could continue in a ‘lawful manner along that path with safety to himself and without danger to others. No injury could happen to him or to any •other person in' so doing, except by a totally unforeseen and unforeseeable occurrence, resulting from the intervention of some other human agency.

We co'nclude that it cannot be said as a matter of law that the plaintiff, a minor, was barred-from recovery by reason of his own negligence.

Now let us consider the defendant’s theory of the case and the conduct of his employees.

They were emerging from a private driveway onto a public street. They must be taken to have known that Section 6307-43; General Code, required them to stop and yield the right of way to all approaching traffic. They also must be taken to have known that Section 6307-37, General Code, required them to give ample warning before backing and whilé backing to exercise vigilance so that others would not bé injured. And, as they testified, they knew the plaintiff, a minor, was approaching and would pass them in his course; that the law. required them to exercise reasonable care that harm not come to him by their presence. If, as they testified, they saw the eleven-year-old plaintiff coasting down the hill on the left side of the street without having his hands on the bicycle bars and not looking where he was going, would a reasonably prudent person have backed into the street, thereby reducing the width of his path of safety by more than five feet, without giving any warning? If we accept the minor’s testimony that he was on the right side of the street and accept defendant’s employees’ testimony as to the location of the automobile in the street, it left the-minor a space of five feet wide in which to pass. And if we accept the plaintiff’s testimony as to where the collision occurred the automobile was backed so far into the street as to entirely block his passage.

But it is said that a person is required by law to look where he is going and if he does not he is negligent and that it is not sufficient for him to say that he looked and did not see because the law charges him with-seeing the obvious. And that is true. But the' law does not require Mm to admit the presence of, an object for the purpose of charging him with seeing it. The presence of the automobile at the point of collision until the instant of collision was disputed. As the minor came down the hill he looked forward and did not see the automobile in the street. That is evidence that it was not there. Negative testimony is just as competent as positive testimony. The probative value of both depends on the circumstances. 20 American Jurisprudence, 1037 et seq. It certainly is not evidence that it was there and that he failed to see it.

There is no inconsistency in asserting that the automobile was not in the street as the minor approached and that it was there when he arrived at the point of collision. The automobile was a mobile object under the control of the defendant’s employees. They=had the power to move it into the minor’s path. The fact that the automobile was on the driveway and immediately thereafter in the minor’s path and that at all times the defendant’s employees had control of it is circumstantial evidence, that they moved it into the path of .the bicycle. It 'is rare indeed that an action ex delicto is tried without frequent recourse to circumstantial evidence. 20 American Jurisprudence, 259 et seq. The fact that the automobile was on the driveway as the minor approached and that he did not see it, does not destroy the probative value of his testimony that he looked straight ahead and saw no automobile or other traffic in the street. It was natural for him to look to see whether it was safe for him to proceed and to pay little, if any, attention to objects and movements outside his path.

On the whole record we are of the opinion that there was substantial evidence of defendant’s negligence directly causing the minor-plaintiff’s injuries and that whether his conduct met the standard of care required of a boy of his age, intelligence and experience, and, if not, whether his failure to exercise such care contributed to the collision were all issues of fact to be determined by the jury. We, therefore, conclude that the court erred in instructing the jury to return verdicts for the defendant.

We find no other error upon the record.

For these reasons, the judgments are reversed and the causes remanded for further proceedings, according to law.

Judgments reversed.

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


text:
    The State of Ohio, Appellee, v. McLeod, Appellant.
    (No. 3903
    Decided February 27, 1948.)

      Mr. Harold D. Parker, for appellee.

      Messrs. Reed & Diefenbach, for appellant.
   Hildebrant, J.

Defendant was convicted in the Municipal Court of Akron, without a jury, of assault and battery on one Shadrosky. He made the issue of-self - •defense.

The court excluded the evidence of threats made by the young brother of Shadrosky, the day before, to have his older brother come the next day and beat up •on the defendant. v

On the next morning Shadrosky called at defendant’s home and asked for him. He was informed by ■defendant’s wife that defendant was not at home, and was ordered to leave the premises, and not to return ■and cause a disturbance. He returned that evening and talked to the defendant through the screen door, inviting him to come out and talk like a man. Defendant ordered him to leave the premises, which he refused to do, and during the course of this conversation, defendant squirted from a small syringe a quantity of ordinary household ammonia through the screen •and into the face of Shadrosky. Shadrosky turned and ran off the porch and out to the sidewalk, with the defendant following to the edge of the porch. Shadrosky then turned on defendant and advanced to the porch, where he. administered a beating to the defendant. "There was a great disparity between the physical condition of Shadrosky and the defendant — the former being 27 years of age, an ex G. I. and in first class physical condition, while the defendant was 63 years of q,ge, and claimed to suffer from arthritis in his hands. It must be borne in mind that all the action took place on the premises of the defendant, who •claimed to have acted in defense of his person and property.

Under the circumstances above,' it was error, prejudicial to the defendant, for the court to refuse to admit and consider the evidence of the threats made the •day before by the younger brother of Shadrosky. Obviously, they had a direct bearing on whether the defendant had a good reason to apprehend danger to himself, as it apparently materialized in Shadrosky’s 'visit and attitude.

In general, every man has the right to defend himself and his property by the use of such force as circumstances require to protect himself against such danger as he has good reason to apprehend, and the measure of that force depends upon the nature of the assault taken together with all other circumstances, such as the physical disparity between the parties here, and it is only when one uses a greater degree of force than is necessary under all the circumstances that it is not justifiable on the ground of self-defense.

The law does not'require of the defendant- any nice distinction as to the least amount of force necessary, but whether the force used was excessive is a question for the trier of the facts under proper instruction. Evidence of threats is admissible on the issue of self-defense. See 3 Ohio Jurisprudence, 214, Section 9 ■et seq.; 4 American Jurisprudence, 182, 198, 199, Sections 108 and 153.

The true question of fact to be ascertained is the bona fide belief of the defendant as to his imminent peril. In Marts v. State, 26 Ohio St., 162, it is stated in the second paragraph of the syllabus:

“Homicide is justifiable on the ground of self-defense, where the slayer, in the careful and proper use of his faculties, bona fide believes, and has reasonable ground to believe, that he is in imminent danger of death or great bodily harm, and that his only means of escape from such danger will be by taking the life of his assailant, although in fact he is mistaken as to the existence or imminence of the danger.”

In State v. Cope, 78 Ohio App., 429, at page 438, 67 N. E. (2d), 912, the court quotes from Nelson v. State, 42 Ohio App., 252, 181 N. E., 448:

“ ‘While the courts of this state have not always pursued an even course in defining the fear which one' must entertain in order to rely upon self-defense, it seems now to be finally determined that guilt is personal, and that the conduct of. any individual is to be measured by that individual’s equipment mentally and physically. He may act in self-defense, not only when a reasonable person would so act but when one with the particular qualities that the individual himself has would so do. A nervous, timid, easily frightened individual is not measured by the same standard that a stronger, calmer, and braver man might be. State v. Sheets, 115 Ohio St., 308, 152 N. E., 664.’ ”

See, also, Armuleuis v. Koblitz, 114 Ohio St., 73, at page 75, 150 N. E., 620.

By virtue of Section 13444-19, General Code, the court admitted testimony of prior use of the ammonia syringe as a weapon by the defendant. It is sufficient to state here that .this court finds that section has no application to this case, and it was prejudicial error to admit any such evidence.

No other error, appears, prejudicial to defendant-appellant.'

The judgment of the Municipal Court of Akron is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

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

Matthews, P. J., Ross and Hildebrant, JJ., of the First Appellate District, sitting by designation in the Ninth Appellate District.


author: Metcalf, P. J.

text:
    The Ohio Water Service Co., Appellant, v. City of Circleville, Appellee.
    (No. 197
    Decided February 6, 1947.)

      Messrs. Dtmbar & Dunbar and Mr. Carl G. Deist, for appellant.

      Mr. Joseph W. Adkins, Jr., city solicitor, and Mr. Tom A. Renick, for appellee.
   Metcalf, P. J.

In order to better understand the issues involved in this appeal it is necessary to briefly outline a prior proceeding had between the parties hereto in the Common Pleas Court of Pickaway county in an appropriation 'action by the city of Circleville against The Ohio Water Service Company, being cause Number 19162 in that court.

On December 4, 1944, tbe city of Circleville filed an application as provided by law .for tbe assessment' of compensation to be paid by that city for tbe water supply system then owned by The Ohio-Water Service Company. This application set out the metes and bounds description of five parcels of real property together with the personal property which is enumerated as “all franchises, permits, consents, licenses, grants, privileges, immunities, leases, contracts of every kind and description and wheresoever situated in said county, together with all and singular the plants, buildings, improvements, additions, hereditaments, easements, whether owned by prescription or grant, right-of-ways, rights and other appurtenances. Also all the distribution mains, pipe lines, hydrants and service lines, meters, settings, equipment and all other property of The Ohio Water Service Company at Circleville, Ohio, of every kind, nature and description. ’ ’

On. May 3, 1945, the city and the water company entered into an agreed and stipulated inventory setting out specifically all the property for which compensation was to be assessed by the jury.

Thereafter a trial was had before a jury wherein the stipulated inventory of the personal property- was used as the basis of the -téstimony as to the value of the personal property being appropriated; the jury returned a verdict on July 30, 1945, assessing the “compensation to be paid by the city of Circleville to The Ohio Water Service Company for its property set forth in the application and stipulated inventory herein at the sum of four hundred twenty thousand dollars ($420,000).”

On October 15, 1945, the court confirmed the verdict of the jury and adjudged that upon payment within six months by the city of the award, the city of Circleville should take possession of the property heretofore mentioned and be vested with an_absolute title therein in fee simple.

From that judgment of confirmation and order of possession, The Ohio Water Service Company filed its notice of appeal to this court on October 29, 1945. Thereafter on February 1, 1946, the Common Pleas Court suspended the execution of its order of October 15, 1945, so far as the same compelled the city to pay the award within six months therefrom, adjudging’ that the city should have a further period of six months from the final determination of the appeal then pending in this court.

On February 14,1946, the water company dismissed its appeal and on July 10, 1946, within the six months period as ordered by the court the city paid to the clerk of courts the sum of $420,000, together with all costs on its part to be paid. Thereupon the court issued a writ of possession to the city placing it in possession of the property theretofore appropriated in the court using as a description in the writ a certified copy of the agreed and stipulated inventory. The city is now in possession and operating the water system so appropriated. Subsequent to the taking of possession of the water system by the city, the water company presented an itemized statement for money covering additions and expenditures to the plant since the hearing before the jury and also filed a, motion to quash the writ of possession, which motion, was overruled but neither of these latter actions on the part of the water company has any bearing’ on .the issues in the instant appeal.

We come now to the subject of this appeal. On July 13, 1946, The Ohio Water Service Company filed its petition in the Court of Common Pleas of Pickaway county substantially relating* the history of cause No. 19162 hereinabove set out, alleging three separate causes pf action: First, to quiet the tille in plaintiff to the property that was the subject of the appropriation proceeding involved in the foregoing cause No. 19162; second, for declaratory judgment adjudicating plaintiff’s rights relative to the appropriation statutes and the equipment and property placed in the water system subsequent to the appropriation proceedings; third, asking that the city be enjoined from taking the company’s property.

To that petition the city demurred on the following grounds:

“1. That the court has no jurisdiction of the subject matter of the action.

“2. That there is another action pending between the same parties for the same cause. ■

“3. The petition does not state facts which show a cause of action.”

Upon hearing, the Common Pleas Court sustained the demurrer in all its branches and the plaintiff not caring to plead further judgment was entered accordingly dismissing plaintiff’s petition from which this appeal on questions of law arises.

It is the contention of plaintiff, appellant herein, that the Common Pleas Court had no jurisdiction to make and enter its order of October 15, 1945, wherein it confirmed the verdict of the jury and adjudged the city of Cirdeville to be entitled to the possession and ownership of the waterworks system allegedly appropriated. Plaintiff takes this view on the sole ground that there is no provision of law authorizing a municipality to appropriate personal property, either separately or in connection with the condemnation of -real property, for the purpose of a waterworks system. No claim is made of any defect in the legislative proceedings had by the city in appropriating the property in canse No. 19162 and it is in effect conceded by the-plaintiff in the instant case that if the city had authority to appropriate personal property for waterworks purposes and if jurisdiction is conferred upon the-Common Pleas Court in such cases then the petition; in the' instant case is without merit; but plaintiff contends in substance that neither the city was authorized to appropriate the personal property of plaintiff nor was the court clothed with jurisdiction to issue any order relative thereto and for that reason the court’s-order of October 15, 1945, is void ab initio and, therefore, its petition in the instant appeal is good as-against the demurrer.. It should be said at this point-that plaintiff has abandoned its first cause of action,, that of quieting title, but strongly urges, for the reason-just hereinabove stated, that it is entitled to the relief' sought by way of declaratory judgment and injunctiverelief.

In support of its position plaintiff urges that the-only authority for the appropriation proceedings had-by the defendant, appellee herein, referred to must of necessity be predicated upon Sections 3677 to 3697, inclusive, General Code, which sections are found in Part First, Title XII, Division III, Chapter 1, of the General Code entitled “Appropriation of Property.” And more particularly plaintiff' claims that Section 3677, General Code, is applicable. The pertinent part of this section reads:

“Municipal corporations shall have special power to appropriate, enter upon and hold real estate within-their corporate limits. Such power shall be exercised for the purposes, and in the manner provided in this chapter. * * *

“13. For providing for a supply of water for itself and its inhabitants by the construction of wells, pumps, cisterns, aqueducts, water pipes, dams, reservoirs, reservoir sites and waterworks, and for the protection thereof; and to provide for a supply of water for itself and its inhabitants, any municipal corporation may appropriate property .within or without the limits of' the corporation; and for this purpose any such municipal corporation may appropriate in the manner provided in this chapter, any property or right or interest therein, theretofore acquired by any private corporation for any purpose by appropriation proceedings or otherwise. * * *”

While this court does not agree that this statutory authority as outlined in the foregoing section is the only-power or in fact the necessary power granted a municipal corporation authorizing it to appropriate property for a water supply, yet we feel called upon to construe that section as it applies or may apply to . the proceedings had by the city of Circleville. It is clear to this court that, in order to give force and effect to the provisions thereof, the only reasonable interpretation and construction that can be placed upon subsection 13 above quoted is, that it was not only the intention of the Legislature to empower a municipal corporation to own and construct within or without its corporate limits all the necessary lands, buildings, wells, pumps, cisterns, pipes, dams, hydrants and all the other necessary accessories to the complete installation and maintaining of a water system from its source to the consumer, but that it was also the purpose and intent of the Legislature that the municipality be authorized and empowered to appropriate the complete utility or waterworks, if one was so functioning, not an incomplete part thereof, regardless of the nature of the property so long as it is a necessary part of the, system of obtaining or producing, processing and delivering water to the municipality or its inhabitants. The section says that for this purpose the municipal corporation may appropriate any property theretofore acquired by the private corporation for any purpose.

It would seem an idle gesture to authorize a municipal corporation to appropriate only real estate of a utility corporation, which corporation had already installed the necessary equipment to carry the water from its source to the city or consumer inhabitant and then compel the city on the one hand to reconstruct, to purchase anew or to parallel the lines or duplicate “the equipment of the utility corporation or on the •other hand to compel the utility corporation to give up by appropriation proceedings its real estate only •and have remaining all and sundry the personal property and equipment necessary to carry on the many phases of obtaining, processing and delivering water. 'The injustice of such a construction of the statute under consideration should be patent to anyone.

The Legislature must have had in mind a situation as presented in the instant appeal when it deliberately used the words “any property” in subsection 13 in lieu of real estate or land. To give that subsection any •other interpretation or construction would defeat the very purpose of its enactment.

In the opinion óf this court the.second paragraph •of the above section wherein power is granted to municipal corporations to appropriate, to enter upon dnd to hold real estate within the corporate limits does not place a limitation upon the authority granted a municipal corporation under subsection 13 to own or appropriate “any property” within or without the limits .of the corporation for a water supply. Both the situs and kind of property were changed in subjection 13 and the purpose for which it was changed, that of providing a supply of water for the city and its inhabitants, is clearly enunciated.

If Section 3677 does not yield to the construction we have placed upon it then it must fall as being inconsistent with the constitutional provisions found in Section 4, Article XVIII of the Constitution of Ohio. That section reads:

“Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for any such product or service. The acquisition of any such public utility may be by condemnation or otherwise, and a municipality may acquire-thereby the use of, or full title to, the property and franchise of any company or person supplying to the municipality or its inhabitants the service or product of any such utility.”

Section 4,’Article XVIII, along with the other sections of that article, became a part of the Ohio Constitution in 1912, known as the home-rule amendments. This section specifically grants the power to a municipality to acquire within or without its corporate limits any public utility the product or service of which is to be supplied to the municipality or its inhabitants. It specifically states that in acquiring this the acquisition may he by condemnation or otherwise. .And in doing so the municipality acquires full title to the pr&perty, not just real estate", but all the property of the company supplying the municipality or its in-inhabitants with the service or product of such utility.

Section 4, of Article XVIII has been before the Supreme Court of Ohio on several occasions and in each instance this section has been held to be self-executing. Plaintiff concedes this but claims that it gives no power to the municipality to exercise eminent demain in the absence of statutory enactment.

Keeping in mind that the section itself provides that,, in acquiring any public utility the product or service of which is to be supplied to the municipality ■or its inhabitants, the same may be done by condemnation, we think the first paragraph of the syllabus in Dravo-Doyle Co. v. Village of Orrville, 93 Ohio St., 236, 112 N. E., 508, is in point. It reads:

“1. Section 4, Article XVIII of the Constitution, confers plenary power on ‘any municipality’ to acquire, construct, own, lease and operate any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants, and to contract with others for any such product or service. ’ ’

It is urged by plaintiff that that is a contract ease but the point in the holding, so far as it affects the instant case, is the fact that the Supreme Court definitely holds that this section confers plenary power on “any municipality” to acquire. It is interesting to note the comment of Judge Johnson speaking for the court on page 242 where he says, “The constitutional convention was not content to leave the subject of the public utilities of the cities and villages of the state entirely to legislation. It wrote into Article XVIII— the home-rule amendment — specific provisions touching that subject, including authority to acquire and operate such utilities, * *

In State, ex rel. City of Toledo, v. Weiler, 101 Ohio St., 123, 128 N. E., 88, the Supreme Court of Ohio again held that municipalities of the state are empowered by constitutional provisions to acquire any public utility, the product or service of which is to be supplied to the municipality or its inhabitants and further held that grant of power from the Legislature is not a prerequisite. On page 127 of that case Judge Matthias speaking for the court said: “Such authority is conferred npon and may be exercised by every municipality regardless of whether or not it has adopt- > ed a charter * * *.” And then this pertinent comment follows: “This conclusion is warranted by reason of' the broad and comprehensive terms of Section 4, Article XVIII, above referred to, for plenary power is-thereby conferred upon each and every municipality of the state to deal with the subject * * *.”

The fact that the court was dealing at that time with the power ■ to levy taxes and issue bonds does not change the applicability of the ruling to the instant case because the court found the financing in acquiring-a utility a necessary incident to the enjoyment of the-power granted to acquire the utility.

In Columbus v. Public Utilities Commission, 103 Ohio St., 79, 133 N. E., 800, at page 124, Judge Johnson,, in a concurring opinion, in referring to Sections 4 and 5 of Article XVIII of the Ohio Constitution, said, “By that amendment the municipalities of the state-were given plenary power to deal with the subject involved in this controversy. Since that amendment they have full and exclusive authority in the making of contracts for the product or service of public utilities free from any supervisory or other control' by the state. Those provisions are self-executing.”

In Priest v. Wapakoneta, 24 Ohio Law Abs., 214, 32 N. E. (2d), 869, the Third District Court of Appeals for Ohio in an exhaustive opinion construes along with other sections, Section 4, of Article XVIII of the Ohio-Constitution and it is there held that the various-grants of power to municipalities under these sections relative to acquiring as well as financing public utilities, being express and exclusive delegations of power as to a particular subject, are subject only to the restrictions on the exercise of such powers contained in the provisions of the various sections of this-•article and that Section 4 along with the other sections therein mentioned are self-executing, permissive and plenary.

Therefore, from an examination of Section 4, Article XYTII of the Ohio Constitution, -as well as from the great weight of authority, this court has no hesitancy in reaching the conclusion that if there was no statutory amendment whatever touching the subject the city of Circleville was fully authorized to pass the legislation and make application for the appropriation had in'cause No. 19162. It must be understood, however, that we also reach the conclusion that Section 3677, General Code, although passed prior to the constitutional amendment under discussion, lends itself as being consistent with and not in conflict with this •constitutional provision.

Having reached this conclusion, it would seem that there should be no difficulty in determining that the Common Pleas Court had jurisdiction in the appropriation proceedings. The Common Pleas Court is •one of general jurisdiction. Section 4, Article IY of the Constitution of Ohio provides that the jurisdiction •of the Courts of Common Pleas and all the judges thereof shall be fixed by law. Pursuant to that provision, Section 11215, General Code, provides that “The Court of Common Pleas shall have original jurisdiction in all civil cases * *

In addition to those provisions the chapter on appropriation herein referred to in Section 3631 sets forth the procedure, after the necessary legislation is passed by the city to carry the appropriation into effect, by making application to the Common Pleas Court, among other courts therein enumerated. It is true, that'this section sets forth that the application is to be made to the court in the county in which the land •sought to be taken is- located. We do not think that the word “land” is controlling, as Section 3681 is-in pari materia with and must be read in conjunction with Section 3677 of the same chapter. This latter section,- providing that “any property” may be appropriated for a water supply, it necessarily follows that the court in the county where the property is situated, to which the application is made has jurisdiction not only of the subject matter but of the parties as-well.

The only position that is tenable in the instant appeal is that the city of Circleville was authorized to appropriate the property, that is the complete utility so appropriated, and that the Common Pleas Court had jurisdiction to enter the judgment and order attacked in the petition in the instant appeal. Under such circumstances the order of1 the court of October 15, 1945, placing the city of Circleville in possession of the property so appropriated upon the payment of the amount found due by the jury was lawful. Therefore, the allegations in the petition in the instant case-raise questions that have been adjudicated and finally determined between the same parties and concerning the same subject matter and are therefore res judicata,. and the appropriation proceedings cannot be so collaterally attacked.

There may be some question as to whether cause No. 19162 was still pending at the time plaintiff filed its petition in the instant case but that is a minor question and in no way affects the judgment of the trial court in sustaining the demurrer at least on the first and' third grounds thereof.

The judgment of the trial court will be affirmed.

Judgment affirmed..

Gillen and McCurdy, JJ., concur.


text:
    Reed et al., Appellees, v. Ramey et al., Appellants.

      (No. 6874
    Decided December 15, 1947.)

      Mr. Charles K. Pulse and Mr. Vernon W. McDaniel,. for appellees.

      Messrs. Schear és Klein, for appellant Ramey.
   Ross, J.

This is an appeal on questions of law from, the Municipal Court of Cincinnati, in which a judgment on the pleadings was rendered in favor of the-, plaintiffs upon their motion. The defendant Ramey’smotion for judgment was denied.

The pleadings consisted of an amended bill of particulars and an answer which contained, in addition to specific denials, certain admissions and a general denial. All the allegations of the amended bill of particulars are to be construed most favorably to the defendants on the plaintiffs’ motion, and the defendants, are entitled also to those allegations of the answer favorable to them, not denied by the plaintiffs. No reply was filed by plaintiffs.

This action in which the plaintiffs seek a judgment for $316.73 is classified as a “first class” case by the-rules of the Municipal Court of Cincinnati,, of which rules .this court is required to take judicial notice, such-obligation resting upon the trial court. Glicklich v. Garfield, 31 Ohio Law Abs., 129.

Rule XIV of the Municipal Court of Cincinnati* Rules of Practice, provides in part: .

“No reply pleadings in third class cases wil] be required-pleas of confession and avoidance, set-off and counter-claim, will be considered as denied by the plaintiff, without pleading, as justice requires. In first class cases affidavits of reply shall be filed on or before the fifth day after rule day for statement of defense.” s

Rule XIX provides:

“In all first class cases the provisions of the Ohio Code of Civil Procedure governing the practice and procedure of Courts of Common Pleas, so far as the same are applicable to the Municipal Court and consistent with the act of April 7, 1913, establishing said Municipal Court, and not inconsistent with the rules otherwise adopted for the practice and procedure of said Municipal Court, shall be held to apply to and govern the proceedings in said Municipal Court.”

Section 11329, General Code, provides:

'“Excepting averments as to value, or the amount of ■damage, for the purposes of an action, every material -allegation of a petition, not controverted by the answer, and every material allegation of new matter in ■an answer not controverted by the reply, shall be- taken as true. New matter alleged in a reply shall be-deemed controverted by the adverse party as upon a denial or avoidance as the case may require.”

It is thus apparent that the proper allegations, of the answer not inconsistent with allegations in the amended bill of particulars must in this ease be- taken as true, no reply having been filed thereto.

It is apparent, of course, that no judgment can be rendered on the pleadings in favor of the plaintiff upon his motion therefor, where essential factual predicates for such judgment are issues of fact produced by affirmance and denial of the parties.

The assignments of error raise the general questions ¡of whether the trial court erred as a matter of law in .granting plaintiffs’ motion for judgment and denying defendant Ramey’s motion for judgment. While the effect of the absence of a reply may be here- indirectly considered, there cannot be said to be any decision of the Municipal Court of Cincinnati upon a question of practice, hence, the provisions of Section 1558-27, General Code,, are not involvéd.

Although the action was brought against two defendants as members of a partnership, only one of them, John P. Ramey, the only appellant, filed an answer.

Turning to the amended bill of particulars it appears that the plaintiffs entered into a'contract with the defendants as a partnership, doing business as the R. & R. Engineering Company, by which the latter were engaged to furnish and install a furnace and heating plant in tlie residence of the plaintiffs for the sum of $675. Contrary to- the statement of plaintiffs in their brief, there is no allegation either in general or specific terms that the defendants agreed “to apply the contract price to the payment of the material and labor hills.” The ne'arest allegation to this is that the defendants “were by virtue of and contract with plaintiffs bound and obligated to pay” such bills. (Exact quotation.) This is a mere conclusion of law, and has no standing as an allegation of fact.

It is alleged further by the plaintiffs that the installation was made and that, upon demand of the defendants, payment was made to the defendants of the full contract price.

Ramey in his answer denies that plaintiffs made payment to him of the contract price, and states that if paid it was paid to “the defendant Ralph S. Miller after plaintiffs had full knowledge of the dissolution of the partnership of R. & R. Engineering Co.”

The plaintiffs allege that the defendants represented that all the bills incident to such installation due and owing materialmen, subcontractors and laborers had been paid in full. The defendant Ramey in his answer denies he made such representation and his general denial covers his partner. So that such allegation is fully controverted.

It is alleged further in the amended bill of particulars that the defendants failed to pay The Cincinnati Stamping & Furnace Company the sum of $316.48 for material furnished defendants and installed in the residence of plaintiffs under the contract with the defendants, and that by reason of such failure The Cincinnati Stamping & Furnace Company filed a mechanic’s lien upon the real property of plaintiffs in which the furnace was installed, that such lien holder made demand upon plaintiffs for payment and threatened foreclosure of such lien, and that plaintiffs were required to and did pay the lien of $316.48 on May 12, 1947.

The defendant Ramey in his answer merely admits that the plaintiffs paid the furnace company. His general denial traverses the allegations of plaintiffs that a lien was filed against their property, that the furnace company demanded payment, and that it threatened to foreclose the lien. So then the only uncontroverted fact upon this phase of the action is that the plaintiffs paid the furnace company $316.48, which sum was indebtedness of the partnership assumed by Miller. Some comment is made by defendant Ramey that such payment was made after the original bill of particulars was filed. The allegation would have been proper in a supplemental bill of particulars and the amended bill of particulars may be so considered. McMurray v. Vaughn’s Seed Store, 117 Ohio St., 236, 239, 157 N. E., 567; City of Cincinnati v. Cameron, 33 Ohio St., 336.

Plaintiffs allege that by reason of the failure and neglect of defendants to pay the materialman, the consequent assertion of a claim against them and filing of a lien upon their property which they were required to pay, the plaintiffs have suffered damage in the amount of $316.48, for which amount with incidental costs, they ask judgment.

Of course, the filing of the lien and threat to foreclose as well as the demand for payment having been ■denied,’ the allegation of damage rests, only upon the ■uncontroverted statement that the partners failed to pay the furnace company. Before considering the .situation thus confronting the trial court upon the motions of plaintiffs* and the defendant Ramey for judgments, the allegations, admissions, and denials of the answer of Ramey should be considered in detail, although to some extent a repetition of what has been hereinbefore noted.

The -defendant Ramey in his answer states that he was a member of a partnership with his codefendant Ralph S. Miller, doing business as alleged by plaintiffs, that they conducted such business until' August 2, 1946, when such partnership was dissolved, Miller taking all assets by bill of sale from Ramey and assuming all partnership obligations, and such facts were thus known to plaintiffs and that they consented to same; that at the time such dissolution and transfer of assets took place, there was owing to The Cincinnati Stamping & Furnace Company the sum of $316.48; and that the plaintiffs with full knowledge of such dissolution agreement and bill of sale, and consenting to the terms therein set forth paid to Miller the balance of the contract price without requiring Miller to see that all bills for material furnished plaintiffs were paid, and without demanding any affidavit showing such bills were paid.

The answer concludes with this statement:. “This answering defendant denies all and singularly the allegations set forth in the amended bill of particulars not herein specifically admitted to be true.”

Now’ this action is against the individual members of the partnership for a claim based upon a partnership contract. The defendant Miller is not contesting the claim against him and we are not concerned with any rights or defenses he might have asserted,

Two questions are presented: (1) Was the court in error in rendering judgment against Ramey upon these pleadings? (2) And if so, should the court have rendered judgment on these pleadings in favor of Ramey?

Ramey, of course, is jointly responsible for the partnership obligations, with Miller. The partnership has been dissolved. This in no way excuses Ramey from any obligation which was created by virtue of the partnership relation. 30 Ohio Jurisprudence, 1100, “Partnership,” Section 117. Apparently, the action of the plaintiffs sounds in tort. “Plaintiffs say that they were required to pay said mechanic’s lien by reason of the failure and neglect of the defendant to pay for material as aforesaid and that they have, therefore been damaged” etc. (Emphasis added.) However, if the plaintiffs are entitled to any relief under the facts stated, they are not bound by allegations implying a tort. Ketcham v. Miller, 104 Ohio St., 372, 136 N. E., 145; Triff, Admx., v. National Bronze & Aluminum Foundry Co., 135 Ohio St., 191, 20 N. E. (2d), 232, 121 A. L. R., 1131. Miller received payment of the balance of the contract price. He had a perfect right to receive this sum, and, of course, there was a duty upon him to pay the material-men.

Ramey states he made no representations as to payment of bills for material and his general denial has the effect of denying that Miller made such representations. There was an obligation on Ramey as well as Miller to see that the furnace company was paid. The dissolution did not relieve Ramey frorh this obligation.

As far as the uncontroverted allegations of the pleadings are concerned, the plaintiffs paid the furnace company voluntarily, without even demand and no duress or compulsion, and with no demand upon either Ramey or Miller that the debt of this furnace company be paid by them. Under, such admitted facts they could only be mere volunteers. It is sufficient to charge Ramey upon the doctrine of subrogation. It is claimed this equitable right may not be asserted in an action in the Municipal Court of Cincinnati, because it has no jurisdiction in equity.

If this action had been filed in the Common Pleas Court, it would have been, as it is in the Municipal Court, an action for the recovery of a certain sum of money only. The Municipal Court of Cincinnati is given the same jurisdiction as that entertained by the Common Pleas Court in actions for money only where the amount sought to be recovered does not exceed the sum of $1,000, and is in excess of the exclusive jurisdiction of justices of the peace.

Certainly, this action could have been maintained in the Common Pleas Court, and if subrogation could there be recognized, it must be recognized in the Municipal Court of Cincinnati.

In 38 Ohio Jurisprudence, 305, “Subrogation,” Section 56, it is stated:

“A distinction is drawn between an action for money only, the right to which grew out of subrogation, and the right to enforce subrogation in a court of equity.» Subrogation and the rights under subrogation,are by assignment by operation of law. When any person pays the debt of another under such circumstances that he is entitled to be subrogated to the creditor’s place, he becomes an assignee in law of the right to whatever the creditor has the right to do, and, if he is compelled to pay, he is entitled to bring an action to recover money, which is based upon the right growing out of subrogation and is in no sense an action to enforce subrogation in a court of equity;”

In Krotine v. Link, 36 Ohio App., 537, 173 N. E., 443, it is stated in the syllabus to the opinion:

“Subrogation and rights arising thereunder arise/ through assignment by operation of law.

“Action to, recover money based upon right growing-out of subrogation not being to enforce subrogation held ‘action at law’ within municipal court’s-jurisdiction.” See, also, Toohey v. Simmons, 60 Ohio App., 84, 19 N. E. (2d), 517.

If the facts noted justify the application of the doctrine it may be asserted in the Municipal Court of Cincinnati. But do these facts justify the application of the rule? ,

In 38 Ohio Jurisprudence, 256, “Subrogation,” Section 9, it is stated:

“A stranger or volunteer, as those terms are used with reference to the subject of subrogation, is one who, in no event resulting from, the existing state of affairs, can become liable for the debt and whose property is not charged with the payment thereof and cannot be sold therefor.”

See, also, Farm Bureau Mutual Auto Ins. Co. v. Buckeye Union Casualty Co., 147 Ohio St., 79, 67 N. E. (2d), 906.

In 50 American Jurisprudence, 699, “Subrogation,” Section 23, it is stated:

“The right of subrogation is not necessarily confined to those who are legally bound to make the payment, but extends as well to persons who pay the debt in self-protection, since they might suffer loss if the obligation is not discharged. In this class are included subsequent encumbrancers paying off a prior encumbrance. The extent or quantity of the subrogee’s interest which is in jeopardy is not material. If he has any palpable interest which will be protected by the extinguishment of the debt, he may pay the debt and be entitled to-hold and enforce it just as the creditor could. It would seem that one acting in good faith in making his payment, and under a reasonable belief that it is necessary to Ms protection, is entitled, to subrogation, even though it turns out that he -had no interest to protect. ’ ’

Among the uncontr overted facts, there is nothing-to indicate whether the furnace company was in position 'to assert a lien against the plaintiffs. As far as their allegations go, the plaintiffs may have paid a debt which never could have been .asserted against them. It is only by virtue of the lien laws that they could be placed in jeopardy. The‘debt was the debt only of the partners, hence, as far as the allegations,, which could be considered upon the motion for judgment by the plaintiffs, is concerned, the plaintiffs paid a debt which they never could be required to pay, and in doing so were mere volunteers.

What has been said indicates that, in view of the situation thus placed before the trial judge on these-motions, no judgment either for the plaintiffs or the-.defendant Ramey could be rendered on the pleadings which presented factual issues that only a trial could determine.

One of my associates has suggested that it should be said that if the uncontroverted allegations of the amended bill of particulars . showed that the plaintiffs had paid the debt of the defendants under duress,, compulsion, or justifiable apprehension or fear, then-the judgment of the trial court would be correct. Unquestionably this is true. So if the facts untraversed had shown that the -furnace company threatened to-foreclose a lien on plaintiffs’ property, or that it had a lien on plaintiffs’ property which could be foreclosed, then the plaintiffs were fully warranted in-protecting their title and ownership of the property from possible ‘ sale under foreclosure by paying the-creditor, and would have a right to collect the amount of sucli payment from the defendants. Under such circumstances, they conld .not be considered mere volunteers. See 50 American Jurisprudence, 699, supra. Under the uncontroverted facts, however, this situation is not presented.

The trial court committed error, prejudicial to the defendant Ramey in rendering judgment on the pleadings, and such judgment is, therefore, reversed and the case remanded to the Municipal Court of Cincinnati for further proceedings according to law.

Judgment reversed.

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