author: Ross, J.

text:
    Krueger, Appellant, v. The Schoenling Brewing Co., Appellee.

      (No. 6896
    Decided February 9, 1948.)

      Mr. Walter K. Sibbald, for appellant.

      Messrs. Kane, Kennedy, Brant é Morris and Messrs. Kyte, Gonlan & Heekin, for appellee.
   Ross, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton county. The case was tried to a jury which rendered a verdict in favor of the plaintiff in the sum of $15,000. The court, however, sustained a motion of the defendant for judgment notwithstanding the verdict, and judgment was rendered accordingly.

The question presented to this court is whether upon the statements in the pleadings or upon the evidence received upon trial the defendant is entitled by law to judgment in its favor. (Section 11601, General Code.)

The weight of the evidence is not involved.

It is a question whether reasonable minds would differ upon the conclusions properly inferable from the pleadings or evidence. Wilkeson, Admr., v. Erskine & Son, Inc., 145 Ohio St., 218, 61 N. E. (2d), 201. The plaintiff is entitled to the benefit of thé rule requiring the most favorable construction of all the evidence in his favor.

The action was instituted to recover damages for breach of an oral contract. The answer constituted a general denial.

In the petition, the plaintiff alleges that the defendant was engaged in the manufacture of beer and that in May, 1934, the oral contract, upon which the action is based, was entered into by'the parties.

The plaintiff' claims that by such contract it was stipulated that the plaintiff should “solicit and establish retail sellers of 'beer as customers of the defendant” and “the defendant agreed that so long as the customers so established by plaintiff were satisfied to deal with the defendant through plaintiff and so long as defendant sold beer to said customers defendant would pay to plaintiff a commission on all such sales.”

Plaintiff further alleges that at first defendant paid plaintiff a commission of $1 per barrel and later increased such commission to $1.40 per barrel, and that a commission on cases of bottled beer of 15c per case was ldter reduced to 7%c per case. Plaintiff claims that his commissions under the arrangement with defendant amounted to $150 per month, that “the defendant breached said contract by refusing to pay plaintiff the commissions due him,” and that the'defendant has continued and will continue to furnish his customers beer “but now refuses and in the future will refuse to pay plaintiff his commissions on such sales.”

The plaintiff alleges full performance on his part and readiness and willingness to perform and claims damages in the sum of $50,000.

Evidence was introduced sustaining substantially the allegations of the petition.

The question thus presented is purely one of law, whether what occurred between the parties constituted an enforceable contract, for the breach of which plaintiff was entitled to compensation.

In fairness to plaintiff it should be stated there was evidence that after the plaintiff began the sale of beer in May, 1934, he was successful in securing many customers for defendant’s beer, that the plaintiff spent ■considerable sums of money in building up this business ; that later there was some dissatisfaction among ■defendant’s customers with the quality of the beer, .and that for this reason the' commissions on barrel beer were increased.

Some two years later, however, the commission on .bottlé beer was decreased as alleged. There is also ■evideneé that in 1945, when the commissions of plaintiff were mounting, defendant sought to induce plaintiff to continue his employment on a salary basis, and that upon his refusal to accept such employment, the ■defendant found fault with plaintiff and ultimately refused to continue payment of commissions.

The implications of the plaintiff’s position are evident. , It is his contention that the defendant has bound itself to pay him commission on all beer sold to customers, wherever he was. instrumental in securing ■original- purchasers of defendant’s beer, and that as long as the defendant continues to furnish such customers with beer, the defendant is bound to pay him the commission A^hich he was receiving when the relationship of employer and employee was terminated.

That is the plaintiff’s contention, regardless of the fact that he need exert himself no further after the ■original effort, that the cost of production might ulerease greatly, that the defendant might have to expend large sums in retaining such customers secured by plaintiff and in keeping them satisfied, that plaintiff might have secured an original order from a customer for a small amount of beer, who, through the efforts of the defendant and other salesmen many years later, might be induced to purchase large quantities, and that such a situation would continue as long as plaintiff lived and the original customers saw fit to patronize the defendant.

It is not the function of a court to protect a party to a contract against the consequences ensuing therefrom merely because the action of the party entering into the agreement may later develop an improvident situation as far as he is concerned, if both parties dealt at arms’ length and no fraud or misrepresentation intervened. On the other hand, inequality of obligation may be considered in construing the terms of an agreement and whether the language used by the parties was understood as conferring upon one a grossly unequal advantage. The conduct of the parties operating under such an agreement also may be considered as indicating what was mutually understood to constitute the contract between them. Courtright v. Scrimger, 110 Ohio St., 547, 144 N. E., 294.

It appears from the evidence of plaintiff that in the beginning, the plaintiff and the president, who was also general manager of the defendant, were friends, that plaintiff applied to him for a job, that he was told that the defendant was already fully supplied with salesmen, and that plaintiff was finally employed on a commission basis, after being refused other employment. In the beginning, the plaintiff was one of three salesmen who contributed to the building up of the defendant’s business. Even the evidence of plaintiff does not justify the conclusion that plaintiff was solely responsible for the success of the business of defendant.

It was the opinion of the trial court that such a contract as is here claimed by plaintiff to exist, carrying a lifetime obligation to the plaintiff, could not be sustained as binding upon the defendant corporation in the absence of some act of authorization or ratification on the part of the directors of the company. The plaintiff claims that the long course of dealing between the parties showed knowledge of the directors, and, hence, implied ratification. It is not necessary to predicate the conclusion of this court upon the basis of lack of authority in the president and general manager or failure to show a ratification.

The terms of the agreement could not have been understood by either party as constituting a lifetime obligation on the company. It is obvious that the parties contemplated the current course of business and that neither had in mind a situation where the plaintiff would sever his connection with the defendant as a salesman and employee, and still be entitled to commissions on the sales of beer to his original customers for the rest of his life. The initiating incidents of the relationship, the continued efforts of plaintiff until discharged, the changes in the amount of commissions, the inequality in obligation of the parties — all indicate that an implication was involved in the agreement that the payment of commissions was dependent upon the continued employment of plaintiff by defendant and that the relationship of employer and employee could be terminated by either party at will.

In 9 Ohio Jurisprudence, 422, 423, “Contracts,” Section 194, will be found statements supporting the view herein expressed. In the text it is stated, quoting from Ohio Crane Co. v. Hicks, 110 Ohio St., 168, 143 N. E., 388:

“We recognize the fact that where a contract is plain and unambiguous, it does not become ambiguous by reason of the fact that in its operation it will work a hardship upon one of the parties thereto and a corresponding advantage to the other, that it is not the province of courts to relieve parties of improvident' contracts, but that, where a contract is equally subject to several interpretations, one of which presupposes rational action upon the part of all parties thereto and the other irrational action upon the part of one of the parties thereto, courts in seeking to determine the intention of the parties will assume that the parties entering into the contract were each exercising reason, and give to the contract such reasonable construction as it will bear.” See, also, Section 195, Id.

In reaching the conclusion that the parties intended to limit the payments of commissions to the period covered by employment relationship, it is not intended to hold that the contract was unreasonable and, therefore, unenforceable, but, on the contrary, that it is unreasonable to believe, taking into consideration all the admitted facts that the parties at the time they entered into the agreement intended to require the payment of commissions during the life of plaintiff. If such eventuality was not considered by either party or in fact by both parties, there was no meeting of the minds upon this provision and the plaintiff cannot enforce an obligation which was not considered by the parties and assumed by the defendant. There is nothing in the evidence to suggest that such a lifetime obligation was considered by either party. The evidence on the contrary sustains the conclusions that the plaintiff was to receive commissions on beer purchased by customers as long as he remained a part of this organization manufacturing and selling beer.

It is claimed by plaintiff that this agreement as construed by him is not a lifetime contract. If the defendant must pay the plaintiff commissions on beer sold customers originally secured by him as long as they continue to purchase beer, it would seem only one eventuality could terminate this obligation, and that, the death of plaintiff.

Of course, the defendant could refuse to sell to such customers or they could cease purchasing defendant’s beer — but this does not affect the situation where the1 defendant does sell and the customers continue to purchase.

It is the evident position of the plaintiff that as far as he is concerned, his full obligation has been performed when he secures a customer who continues to purchase beer.

The lack of mutuality in extent of obligation is apparent. If the defendant uses its facilities to continue patronage of the customers, all during the life of plaintiff, all its exertion and expenses merely tend to fix its continued obligation to the plaintiff without further effort on his part.- Is it conceivable that the, defendant or even the plaintiff at the time the relationship of employer and employee was established, contemplated any such one-sided arrangement? It is certainly unreasonable to so suppose.

Plaintiff relies upon Fuchs v. United Motor Stage Co., Inc., 135 Ohio St., 509, 21 N. E. (2d), 669. That case involves what is commonly known as a “requirement contract.” The obligation of the defendant was there to sell what was required. A consideration existed for such obligation. The plaintiff was obligated to pay for the merchandise he bought. The inapplicability of the rules considered and announced in the Fuchs case to the instant situation would seem apparent without further comment.

The undisputed facts sustain the conclusion of the trial court.

The construction of the contract advanced by plaintiff requires a deteimination by the court that the parties entered into an agreement lacking mutuality, indefinite in terms, and requiring the assumption of an obligation by defendant wholly unreasonable in scope.

The judgment of the Court of Common Pleas of Hamilton county is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Middleton, P. J.

license: Public Domain

text:
    Huntsman, Admr., Appellant, v. Chesapeake & Ohio Ry. Co., Appellee.
    (No. 977
    Decided November 10, 1945.)

      Messrs. Martin <& Reed and Mr. William P. Moloney, for appellant.

      Messrs. Wilson & Rector and Mr..Henry A. Micldey, for appellee.
   Middleton, P. J.

This action comes into this court-on appeal on questions of law frorn the^Common -Pleas Court of Marion county.

Briefly, the amended petition sets out that Franldin - LeRoy Huntsman was driving in Columbia street in the city of Marion, Ohio, about eleven-thirty at night on March 22, 1941; that Columbia street is intersected at approximately right angles by the tracks of the defendant railroad company; that while passing over these tracks Huntsman’s automobile was struck on the northbound track by an engine which was being .operated backwards and south contrawise to the traffic operated on such-track, and Huntsman was killed; that the engine was being operated without lights; that no signal by whistle or bell of the approach of the engine was given; and that the death of Huntsman was due to negligence of the defendant railroad company.

Although the amended petition sets forth many grounds of negligence, plaintiff in his brief sets out and relies on only two grounds of negligence on the part of the defendant: First, in operating its engine in the nighttime without having the same equipped with a headlight as required by law. Second, in operating its engine in the nighttime without giving signal either by the sounding of a whistle or the ringing of a bell as required by law.

To the amended petition, the defendant filed an amended answer which admits that plaintiff was the qualified and acting administrator of the decedent’s estate; that plaintiff’s decedent, Franklin LeRoy Huntsman, died on March 23, 1941; that defendant is a corporation as alleged; that Columbia street is a public street in Marion; that about 12 p. m., March 22, 1941, plaintiff’s decedent was driving an automobile easterly on Columbia street; that when the automobile reached the intersection defendant was operating an engine toward and over such crossing which engine collided with the automobile; and that as a result of such collision plaintiff’s decedent spstained injuries from which he died. The amended! answer then pleads a general denial.

As a second defense, defendant sets forth that the death of plaintiff’s decedent resulted solely from his own negligence in that decedent, although he saw and heard, or in the exercise of ordinary care for his own safety should have seen and heard, defendant’s approaching engine, he drove his automobile onto the track in front of the engine without looking vor listening for its approach.

Defendant, by way of a third defense, charges plaintiff’s decedent with contributory negligence.

To this amended answer the plaintiff filed a reply which is a general denial.

On these pleadings, thé case was submitted to a jury and a judgment for the defendant resulted.

A motion for new trial was overruled.

Plaintiff sets forth the following assignments of error:

1. The judgment herein is contrary to law.

2. The judgment is against the manifest weight of all the evidence.

3. Error of the court in giving special requests of the defendant before argument.

4. Error of the court in the charge to the jury.

5. Error of the court in overruling the motion for new trial.

The only errors argued by plaintiff in his brief are numbers three, and four.

The court, before argument, at the request of the defendant, gave the following special charges:

“When the employees of the defendant in charge of its locomotive approached the crossing in question and saw Franklin Huntsman also approaching the crossing in his automobile said employees had the right to assume that Huntsman would stop before going onto the track and thus avoid colliding with the automobile.

‘“In order to find defendant guilty of negligence proximately causing the collision with the automobile of Franklin Huntsman you must find that the employees in charge of its locomotive failed to exercise ordinary care to avoid the collision after they discovered Huntsman in a position of peril.”

Defendant cites as authority for those charges the case of New York, Chicago & St. Louis Rd. Co. v. Kistler, 66 Ohio St., 326, 64 N. E., 130. Although it is true that practically the same statements appear in the Kistler case as those given by the court in the instant case„ in the special charges complained of, the facts in the Kistler case, differ decidedly from the facts in the case at issue. In the Kistler case the locomotive was being run forward; the collision happened in daylight; and it was conceded that the whistle for the crossing was given. There was also evidence tending to prove that the bell on the locomotive was rung. In the instant case the collision occurred at night; the locomotive was being run backwards; and there was a conflict in the evidence as to whether there was any light on the engine, whether the whistle was blown, or whether the bell was rung.

No fault can be found with the statements in the Kistler case in view of the facts in that case. However, the facts in the Kistler case and the facts in the case before this court are so different as to make the law laid down in the Kistler case inapplicable to the case at issue.

In. the instant case, the special charge as given, while purporting to define the duty of defendant, had the effect of placing an absolute duty upon the deceased to stop before going onto the track and thus avoid collision with the locomotive. It fails to take into' account any claims of negligence on the part of the defendant. In effect, it charges that plaintiff’s decedent saw, or in the exercise of ordinary care should have seen, the engine approaching, and heard, or in the exercise of ordinary care should have heard, the whistle signal and the ringing of the bell. In the absence of such conclusions, which upon the facts of the case were matters for determination by the jury and not by the court, there would have been no duty on the part of plaintiff’s decedent to stop before going upon the tracks.

The undisputed evidence in the case is that Huntsman did nonstop, and the court in so charging found Huntsman guilty of negligence which proximately caused his death. In giving such charge' the court found that the defendant was not guilty of any negligence, as set out in the amended petition, even though there was a conflict in the evidence on the issue of lights and the giving of signals and a further conflict in the evidence as to whether the deceased could see the approach of the locomotive.

The court erred to the prejudice of plaintiff in giving this special charge to the jury.

The second special charge given to the jury assumes to state the care required of the defendant after it discovered Huntsman in a position of peril.

In the opinion of this court, this does not charge the doctrine of last clear chance, although it approaches such a charge very closely. Last clear chance was not an issue in the case and no issue in the pleadings warranted that charge.

The same thing is true of special charge No. 2 as is true of special charge No. 1. It removed from the consideration of the' jury any* issue of negligence, claimed by plaintiff, on the part of the defendant except snch negligence of defendant as might have arisen from failure to exercise ordinary care to avoid the collision after it discovered Huntsman in a position of peril.

The giving of such charge was erroneous.

The defendant claims that, although the giving of the special charges might be error, under the two-issue rule the verdict cannot be disturbed.

It is true there are two issues in the case, the issue of negligence on the part of the defendant, and the issue of contributory negligence on the part of plaintiff’s decedent. Unless the special charges affect both issues, the verdict cannot be disturbed.

As stated above, the first special charge finds in effect that the collision resulted from plaintiff’s decedent’s own negligence and not from the negligence of the defendant. As such is the effect of this charge and as the charge as given disposed of both issues, the two-issue rule cannot apply.

Assignment of error No. 4, the only other error argued in plaintiff’s brief, the court finds without merit.

For the reasons given it is the conclusion of this court that the trial court erred in the giving of the charges before argument, and consequently that the verdict is contrary to law. For the same reasons, the court erred in overruling plaintiff’s motion for new trial.

The other assignments of error the court finds without merit.

The judgment of the trial court is reversed and the. cause remanded for new trial.

Judgment reversed.

Jackson and Guernsey, JJ., concur.


author: Hurd, P. J.

text:
    Soeder et al., d. b. a. Soeder Sons Milk Co., Appellees, v. Soeder, d. b. a. Tip Top Dairy Co. et al., Appellants.
    (No. 20698
    Decided December 8, 1947.)

      Mr. Maxwell J. Gruber, for appellees.

      Messrs. Roth & Pollack, for appellants.
   Hurd, P. J.

This action in equity, now in this court on appeal on questions of law and fact, originated in the Common Pleas Court of this county wherein the plaintiffs, William Soeder and Edward Soeder, brothers, doing business as Soeder Sons Milk Company, prayed for a permanent injunction against the defendants, appellants, John Soeder, another brother, and the Tip Top Dairy Company, a partnership of which the defendant, John Soeder, is a partner, from soliciting the trade and business of plaintiffs, appellees. For convenience, the parties will be designated hereinafter as plaintiffs. and defendants, as they appeared in the trial court.

The Common Pleas Court found for the plaintiffs on all issues and granted a permanent injunction restraining the defendants from soliciting the trade and business of the plaintiffs and concerns doing business with plaintiffs “which trade and business the plaintiffs had or obtained .during the period of time the defendant, John Soeder, 'was employed in a confidential and fiduciary position.” By agreement of the parties, the cause' is here submitted upon the original pleadings and the record made in the trial court.

The material'facts are that the plaintiffs, William Soeder and Edward Soeder, have been operating for a period of over 30 years as a partnership, the Soeder Sons Milk Company, a wholesale general dairy, pasteurizing, processing and distributing business in Cuyahoga county, succeeding to the business of their father which commenced in 1890. The defendant, John Soeder, likewise has been engaged in a wholesale general dairy, pasteurizing, processing and distributing business in Cuyahoga county for a period of approximately 30 years and for 25 years up to November, 1941, operated under the name of The Maple Leaf Dairy Company, a corporation, wherein the stock was wholly owned by him and his wife, a third person holding one share as a nominee.

In December, 1941, the creditors of The Maple Leaf Dairy Company filed a petition in bankruptcy in the District Court of the United States for the Northern District of Ohio, Eastern Division, and immediately thereafter The Maple Leaf Dairy Company filed its petition for bankruptcy in that court. A trustee was appointed and the trustee was authorized by the court in February, 1942, to sell and convey to one Andrew Dolence the dairy equipment, trucks, goodwill, and other assets of the corporation, subject to all claims thereto and liens thereupon, of the Lorain Street Bank, the Morris Plan Bank and the Sumner Motor Service, Inc. The sale was thereafter confirmed by the District Court.

It appears from the record that the assets of the bankrupt were purchased by Dolence at the instance of and for the benefit of the plaintiffs herein, for the sum of $4,000, plus an,agent’s commission of $750, making a total of $4,750 paid by the plaintiffs, and thereafter title to the assets of the bankrupt estate were conveyed to the 'plaintiffs subject to the liens above set forth.

In November, 1941, some months prior to the sale in bankruptcy, the defendant, John Soeder, entered the employ of the plaintiffs and at that time brought with him a list of the customers of The Maple Leaf Dairy Company which he turned over to the Soeder Sons Milk Company. The result of the entire transaction was that the business of The Maple Leaf Dairy Company was eventually merged into the business of the Soeder Sons Milk Company.

Subsequent to the purchase of the assets from the trustee in bankruptcy, the defendant, John Soeder, signed a statement dated April 11, 1942, acknowledging receipt from the Soeder Sons Milk Company of $4,750 “in cash for all Maple Leaf Dairy Company equipment, trucks, bottles, cases, cans, machinery, complete with goodwill.” While this statement recites receipt of $4,750, the fact is that he did not receive this money but that this sum merely represents-the amount paid to the trustee in bankruptcy, plus the agent’s commission ,as hereinbefore set forth.

The evidence shows that thereafter, John Soeder worked for the plaintiffs for a period of about four years and ten months. During the first two years his work was of an ordinary character, not involving confidential matters, such as taking care' of the rationing program of the company and attending to accident cases and other incidental matters. Thereafter he was assigned to other work. He was given and exercised authority to order materials, supervise employees, contact customers, assimilate the records between plaintiffs, their customers and supplier, had'access to- and was familiar with all the contracts, books and records of the plaintiffs, assisted in building up and merging the goodwill of The Maple Leaf Dairy Company with that of the plaintiffs, and in doing so he became familiar with the capacity of the plant, the employees, the equipment, the problems and all phases of' the business of the plaintiffs. At times, during the absence of the plaintiffs, he was in full charge of the business and Was directly in charge of and responsible-for the operations of the company.

On August 31, 1946, he left the employ of the plaintiffs and entered into partnership with one Rossi, under the firm name of the Tip Top Dairy Company, the defendant herein. Thereafter it appears that he and Rossi began to solicit the customers of the SoederSons Milk Company for the benefit of the Tip Top-Dairy Company, whereupon this action .was brought for injunction and equitable relief against the defendants.

There is evidence in. the record concerning the sale-of certain personal property by the defendants to the-plaintiffs and concerning the purchase and extinguishment of the liens subject to which the sale was made by the trustee in bankruptcy. However, inasmuch as we consider this evidence immaterial and irrelevant, we deem it unnecessary to advert to the same in detail.

We do not find from the evidence that there was any express contract by the terms of which the individual ■defendant, Soeder, was restricted from entering into the milk business or from soliciting the customers of plaintiffs. We do, however, find that the defendant, Soeder, while never a member of the partnership, did after the first two years of his employment become sufficiently conversant with the business of the plaintiffs to enable him to acquire information relative thereto of a confidential nature. On the other hand, we find that the list 'of customers of The Maple Leaf Dairy Company (shown on defendants’ exhibit 1, being 66 in number) was not acquired in a confidential or fiduciary relationship, but on the contrary was brought to plaintiffs by the defendant Soeder when he entered their employ.

The law of this state is well settled that in the absence of an express contract not-to do so, an employee upon engaging in a competitive business may solicit the trade or business of his former employer and will not be enjoined where there is no disclosure or use of trade secrets secured in the course of his employment. See Curry v. Marquart, 133 Ohio St., 77, 11 N. E. (2d), 868.

In the same case the Supreme Court emphasized the principle of law that disclosure of secrets secured by an employee in the course of confidential employment such as lists of customers, will be restrained by the injunctive process.

We think, therefore, that defendant, Soeder, while free to engage in a competitive business, may not solicit for himself or the Tip Top Dairy Company those customers of plaintiffs of. which he learned during the time he was employed in a confidential capacity.

This leaves for consideration the question of whether he may solicit the former customers of The Maple Leaf Dairy Company the list of which he brought to the plaintiffs at the time of his employment by them in November, 1941. In respect of these customers he was not bound by contract, nor was knowledge of them acquired by him in a confidential capacity. But it is urged by plaintiffs that solicitation of these'customers is barred because of their purchase of the goodwill of the old business.

There is a clear distinction between voluntary and involuntary transfers of goodwill. Where there is a voluntary transfer of goodwill, the ■ vendor • having a right to conduct a competing business will not be permitted to destroy the value of the goodwill by direct solicitation of the old customers.

On the other hand, where, there is an involuntary transfer of goodwill, as by sale through insolvency, bankruptcy or foreclosure proceedings, the rule is otherwise, and the vendor may even directly solicit the customers of the old business. This principle of law is well stated in 82 A. L. R., 1038, as follows:

“In the case of an involuntary sale of a business together with its goodwill, the former owner is not prevented from again conducting a similar business, and he may directly solicit the customers of the old establishment.” (See Note 4 below for supporting authorities.)

The one case there cited, contra, is clearly distinguished on the facts. In that case the parties re^ sumed business under the old name and engaged in-other unfair practices and an injunction was properly issued. In the instant case, however, the parties have not assumed the old or a similar name and have not engaged in other unfair trade practices.

Considering now the statement ■ signed by the defendant, Soeder, on April 17, 1942, acknowledging the-receipt of $4,750, it is our opinion that because in fact this sum was not paid to the defendant Soeder, it must fail as an agreement for want of "consideration. If any binding effect can be claimed for this particular document, the undisputed evidence discloses that the plaintiffs had a period of over four years from the date of their purchase of the assets from the trustee in bankruptcy, to acquire, solidify and attach to themselves the goodwill of The Maple Leaf Dairy Company.

It has been held in Ohio that while the seller of a business, including goodwill, cannot impair the goodwill by soliciting directly the old customers before the buyer has had time to make them his own, nevertheless, “three years must be considered sufficient time in which to attach that goodwill to itself, and make it its own” and that “to hold otherwise would be unreasonable, in restraint of trade, and contrary to public •policy.” With this principle of law we are in complete accord.

Therefore, upon a consideration of the facts and ■circumstances as disclosed by the entire record, we •conclude that the defendants should not be enjoined from soliciting the customers of The Maple Leaf Dairy Company, the assets and goodwill of which were acquired by plaintiffs through the trustee in bankruptcy, the list of which was brought to the plaintiffs by the ■defendant Soeder at the time he entered their employ.

We are in full accord with the decision of the trial court that the defendants should be restrained from soliciting the other customers of the plaintiffs, which trade and business the plaintiffs had or obtained during the period of time the defendant Soeder'was employed in a confidential relationship.

A finding and decree for plaintiffs and for the defendants will be entered accordingly.

Decree accordingly.

Morgan and Skeel, JJ., concur.

        Curry v. Marquart, supra (syllabus):
      “In the absence of an express contract not to engage in a competitive pursuit, an employee upon'taking a new employment in a competing business, may solicit for his employer the trade or business of his former customers and will not be enjoined from so doing at the instance of his former employer where there is no disclosure or use of trade secrets or confidential information relative to the trade or business in which he had been engaged and which he had secured in the course of his former employment.”

        Curry v. Marquart, supra (at page 79):
      “The authorities are quite uniform that disclosures of trade secrets by an employee secured by him in the course of confidential employment will be restrained by the process of injunction and in numerous instances attempts to use for himself or for a new. employer information relative to the trade or business in which he had been engaged, such as lists of customers regarded as confidential have been restrained.”

      See 24 American Jurisprudence, 817, 818, Section 23 and 24 under heading of “Good Will.”

      See James Van Dyk Co. v. F. V. Reilly Co. (1911), 73 N. Y. Misc., 87, 130 N. Y. Supp., 755; In re Brown (1926), 242 N. Y., 1, 44 A. L. R., 510, 150 N. E., 581; Buffalo Oyster Co. v. Nenno (1928). 132 N. Y. Misc., 213, 229 N. Y. Supp., 210; Green & Sons v. Morris (1914), 1 Ch (Eng.), 562; C. H. Batchelder & Co. v. Batehelder (1914), 220 Mass., 42, 107 N. E., 455; Von Bremen v. Mac Monnies (1910), 200 N. Y., 41, 32 L. R. A. (N. S), 293, 93 N. E., 186, 21 Ann. Cas., 423. But see S. F. Myers Co. v. Tuttle (1910, C. C.). 183 F., 235.

      See S. F. Myers Co. v. Tuttle (1911, C. C.), 188 F., 532.

      See Suburban Ice Mfg. & Cold Storage Co. v. Mulvihill, decided March 29, 1926, 21 Ohio App., 438, 153 N. E., 204 (Motion to cer.tify overruled June 15, 1926).


author: Guernsey, J.

text:
    Huntsman, Admr., Appellee, v. Chesapeake & Ohio Ry. Co., Appellant.

      (No. 994
    Decided May 24, 1947.)

      Messrs. Martin & Reed and Mr. William P. Molon'M/, for appellee.

      Mr. Henry A. Mickley and Messrs. Wilson & Rector, for appellant.
   Guernsey, J.

This is an appeal on questions of law, from a judgment of the Common Pleas Court of Marion county, in an action wherein the appellee herein, Fremont Huntsman, as administrator of the estate of LeRoy Huntsman, deceased, was plaintiff, and the appellant herein, Chesapeake & Ohio Railway Company, was defendant.

The action is one for damages for the wrongful death of plaintiff’s decedent, claimed to have been caused by the negligence of the defendant in operating, at night, one of its locomotives backward and to the .south on its northbound main track, to and over Columbia street in the city of Marion, Ohio, at the same 'time plaintiff’s decedent was engaged in driving his automobile in an easterly direction on Columbia street and on and over the railway crossing on such street, plaintiff’s decedent being killed as a result of such locomotive colliding with the automobile.

At the trial of the case in the Common Pleas Court, the jury returned a verdict in favor of the plaintiff in the sum of $2,000, and defendant’s motion for new trial having been overruled, the court entered judgment for that sum on the verdict. That is the judgment from which this appeal is taken.

Such of the evidencie as is essential to a determination of this appeal will be discussed under the various assignments of error.

The defendant assigns error in the following particulars :

1. The court erred in overruling defendant’s motion for a directed verdict, made at the close of plaintiff’s evidence and renewed at the close of all the evidence.

2. The court erred in the admission of incompetent, hearsay evidence, highly prejudicial to defendant, and objected to by defendant.

3. The court erred in refusing to withdraw from the consideration of the jury, certain allegations of the amended petition, motion for such withdrawal having been made by defendant before the case went to the jury.

4. The court erred in refusing to 'permit counsel for defendant to refer to the allegations of the amended petition, in the argument.

5. The court erred in his charge to the jury.

6. The verdict is contrary to law and against the manifest weight of all the evidence.

7. The verdict of the jury is not.supported by the evidence but is manifestly the result of passion and prejudice.

These assignments will be discussed in the order mentioned, except that assignments 6 and 7 will be discussed together.

An inspection of the record in this case discloses that it is admitted by both parties that the defendant, preceding and' at the time of the collision of the locomotive operated by it, and the automobile in which plaintiff’s decedent was driving, was operating the locomotive backward and to the south on its northbound main track, to and over Columbia street in the city of Marion; that at the same time plaintiff’s decedent was operating his automobile in an easterly direction on Columbia street and on and over the railroad crossing on such street, and was killed as a result of the locomotive colliding with the automobile on the railroad street crossing; and that the collision occurred in the night season. The record discloses further substantial credible evidence that the locomotive, at and preceding the collision, was being operated without the whistle thereof being blown or the bell thereof being rung, and without a lighted headlight casting its rays of light in the-direction in which it was being operated backward, as required by statute. That evidence was sufficient to require the submission to the jury, of defendant’s negligence as charged in the amended petition.

The record diácloses further substantial credible evidence to the effect that plaintiff’s decedent, before attempting to cross the railroad crossing, slackened the speed of his automobile which was going at a speed of about 15 miles an hour, and he and the other occupant of his automobile looked in both directions along the railroad tracks for approaching trains and neither saw nor heard any nor saw any light on any locomotive.

As the collision occurred in the night season when visibility is less than in daytime, the facts above mentioned required the submission to the jury of the question as to whether plaintiff’s decedent was contribu-' torily negligent in failing to see or hear the approach of the locomotive and stop his automobile in time to avoid injury.

“One looking for the approach of a locomotive in the nighttime naturally expects to see a headlight, and, if he looks both ways, at a time when looking will be effective, and sees none, he may well infer that no train is approaching.” New York, Chicago & St. Louis Rd. Co. v. Van Dorp. 36 Ohio App., 530, at page 533, 173 N. E., 445.

There being substantial credible evidence tending to prove negligence on the part of the defendant, as charged in the amended petition, directly and proximately causing plaintiff’s decedent’s injuries and resulting death, and substantial credible evidence from ■which the jury might properly infer that plaintiff’s decedent was not contributorily negligent in failing to see or hear the approach of the locomotive and stop his automobile in time to avoid injury, the court did not err in refusing to direct a verdict in favor of the defendant.

Under this assignment the defendant contends the court erred in admitting, over defendant’s objection, the following testimony of the administrator who was also the father of the decedent and one of the persons for whose benefit the action was brought, to wit:

“Was there*any arrangment made with Franklin (the decedent) with reference to the maintenance of a home for you and Mrs. Huntsman? A. He said, he would always take care of us regardless of whether he got married, or didn’t.”

That testimony of a conversation not in the presence of the defendant, was hearsay and self-serving, and the court erred in admitting the same. Cheeseman, Admr., v. Kyle, 15 Ohio St., 15; Watts v. Shewell, 31 Ohio St., 331; In re Estate of Ruhl, 36 Ohio Law Abs., 250, 43 N. E. (2d), 760; Beck v. Gage, 21 C. C. (N. S.), 160, 34 C. D., 771; judgment affirmed, Gage, Admr., v. Beck, 76 Ohio St., 575, 81 N. E., 1186.

However, the amount of the verdict in this case is amply supported by other evidence, so the admission of that testimony does not appear to have prejudiced the jury, and the court is not justified in reversing the judgment for this error.

The court did not err in refusing to withdraw from the consideration of the jury an allegation of the amended petition that the statutory whistling signal was not given, as the testimony of the other occupant of decedent’s automobile, and the two occupants of the automobile which preceded decedent’s automobile over the railroad crossing, the safety of each of whom depended upon their hearing the whistle, if blown, and all of whom were in easy hearing distance of the whistle, if bjown, that they did not hear it, was sufficient to require the submission of this allegation to the jury notwithstanding the testimony of witnesses on behalf of the defendant that the whistle had been blown.

Before the submission of the case to the jury certain allegations in the amended petition, of various acts of negligence by the defendant were, at the instance of the defendant and with the consent of the plaintiff, withdrawn from the consideration of the jury. •

_ _ _ Following the opening argument of plaintiff’s counsel to the jury, counsel for defendant made the following statement to the jury: “In the amended petition they charge there was heavy traffic up and down the street, and that will be withdrawn from the jury; and, they charge no crossing watchman or gates, and that will be withdrawn from yonr consideration.” Counsel for plaintiff objected to that statement and asked the court to have counsel for defendant confine themselves to the issues. The court then directed counsel for defendant to proceed with their argument, except that they proceed upon the basis of the amended petition as it now stands.

Counsel for defendant contend that they expected to argue to the jury that as there was no’ basis f.or the allegations withdrawn from the consideration of the jury, the same taint applied to the allegations of negligence submitted to the jury, but there is nothing in the record to show what they intended to argue, based on the statement objected to. In this situation, it does not appear that the court' erred in directing counsel to confine their argument to the allegations of the amended petition as it stood after the allegations above referred to were withdrawn, as from the statement objected to, the court might properly assume that counsel for defendant intended to argue the merits of the issues which had been withdrawn from the jury.

Under this assignment, the defendant contends the court erred in the following portions of its charge to the jury:

(a) “Now, ladies and gentlemen of the jury, failure on the part of the railroad company to exercise ordinary care to keep such lights burning as required by the statute just read to you, if that failure should be the direct and proximate cause of the injury herein complained of, would be negligence on the part of the defendant railroad company.”

(b) “Ordinary prudence requires that a person in the full enjoyment bf the faculties of hearing and seeing, before attempting to pass over a .known railroad •crossing, shall use them for the purpose of discovering and avoiding danger from an approaching train, or ■engine, and the omission to do so, without any reasonable excuse therefor, is negligence and will defeat an action by such person for an injury to which such negligence directly contributed. But the failure to' use such precaution will not be regarded as negligence on the part of such person if under all the circumstances •of the case a person of ordinary care and prudence would be justified in omitting to use the same.”

(c) “A person who fails to look and listen if approaching a known railroad track cannot recover unless .there was a ‘reasonable excuse’ for his failure to take such precaution.”

The defendant contends that, in that part of the charge above designated a-s (a), the court in effect instructed the jury that if the headlight was not burning, that would be negligence as a matter of law, and that that was erroneous, under the decision of the Supreme Court in the case of Ann Arbor Rd. Co. v. Stoianoff, 89 Ohio St., 440, 106 N. E., 1045, in which it is held that the question of whether the railroad company is negligent in not having its headlight burning, is one for the jury to determine from all the evidence in the case, .and is not one that can be determined as a matter of law.

The case mentioned was decided before the Supreme Court began to apply consistently, the fixed and rigid rule of negligence per se to the non-compliance with the provisions of safety statutes, so the decision mentioned is not in conformity to the mor'e modern line ■of decisions on the same subject, and is contrary to the law as established at this time.

However, irrespective of whether the decision men-' tioned is the law on the subject at the present time, an inspection of that part of the charge discloses that it simply charges the rule of ordinary care in respect to the headlight, and did not charge that the failure to have the headlight burning was negligence per se, and the instruction was not erroneous.

The defendant .contends that the portions of the charge above mentioned as (b) and (c) were- in effect a charge that: ‘ ‘ The evidence in this case is such that you may find that plaintiff’s decedent was relieved of the duty to look and listen for the approaching train,’* and that there is not a scintilla of evidence to support this unwarranted instruction, or such finding.

The first sentence of the instruction above designated as (b) is taken verbatim from the first paragraph of the syllabus in the case of Pennsylvania Co. v. Rathgeb, 32 Ohio St., 66, and the portion of the charge designated as (c) is. based on the decisions in the above cases.

The directions designated as (b) and (c) are correct statements of the law, but are applicable only to cases in which there is evidence tending to prove a state of facts which, if found by the jury to be true,, would constitute a reasonable excuse for such person omitting to exercise his faculties of seeing and hearing for the purpose mentioned. Typical examples of such states of fact is one showing a railroad crossing over the street or highway is'guarded by gates in charge of a gateman employed by the railroad company, and the gateman is present and the gates are open, indicating a clear track and safe crossing. (Cleveland, C., C. & I. Ry. Co. v. Schneider, 45 Ohio St., 678, 17 N. E., 321); or one showing that the .person approaching the crossing is a guest in the vehicle approaching the same, and is not the driver, in which the question of whether such person was negligent in not looking or listening is a question for the-jury.

In the case at bar there is no evidence of any facts or circumstances constituting a reasonable excuse for plaintiff’s decedent in not looking and listening during his approach to and crossing over the railroad crossing.

The natural tendency of the charge as given was to mislead the jury in believing that they could find, upon the facts before them, that plaintiff’s decedent exercised ordinary care and prudence if he omitted to either look or listen, which is not a correct statement of the law as applied to the facts of the case. To constitute a correct statement of law, as applied to the facts of the case, the clause “without any reasonable excuse therefor” should have been omitted from the first sentence of the instruction designated as (b), and the second sentence of this instruction should also have been omitted. And the clause “unless there was a ‘reasonable excuse’ for his failure to take such precaution” should have been omitted from the instruction designated as (c).

This error in the charge requires reversal of the judgment.

There is substantial credible evidence to support the verdict and judgment, and the verdict and judgment are not against the weight of the evidence, and it does not appear from the record that they were the result of or prejudice.

For the error in the charge, above mentioned, the judgment will be reversed and the cause remanded to the Common Pleas Court for a new trial and further proceedings according to law.

Judgment reversed.

Jackson, P. J., and Middleton, J., concur.


text:
    Steelmaterials Corp., Appellee, v. Stern, Appellant.

      (No. 6855
    Decided November 17, 1947.)

      Messrs. Weinberger & Grad, for appellee.

      Mr. Samuel Plotnick, for appellant.
   Ross, J.

This is an appeal on questions of law from a judgment of the Municipal Court of Cincinnati, entered in favor of the plaintiff upon a verdict, instructed at the close of all the evidence.

Certain procedural irregularities require considera-' tion and disposition before proceeding to the principal .assignment of error.

The trial court erroneously refused to permit the ■defendant to interpose a conditional motion for an instructed verdict. The plaintiff made such motion ■at the close of all the evidence. The defendant, before the court had ruled upon plaintiff’s motion, also made a motion for instructed verdict but stated it was made with the condition that if overruled the defendant should have the right to go to the jury. This action was taken in order to avoid submission of the case to the court. (First National Bank v. Hayes & Sons, 64 Ohio St., 100, 59 N. E., 893.) That a party may properly make his motion for an instructed verdict so conditioned' is clearly indicated, in Buckeye State Building & Loan Co. v. Schmidt, 131 Ohio St., 132, 2 N. E. (2d), 264; Levick v. Bonnell, 137 Ohio St., 453, 30 N. E. (2d), 808. See, also, 39 Ohio Jurisprudence, 877, Trial, Section 220.

The trial court was in error in refusing to accept the motion of the defendant for an instructed verdict,, because it -was accompanied with the reservation of a right to go to the jury, if overruled. However, this error was not prejudicial, unless such motion should have been granted. It will be necessary to determine-from the evidence in the record (1) whether the motion of plaintiff for an instructed verdict was properly granted, and (2) . whether a like motion made by defendant should have been granted, although there is-some doubt from an examination of the record whether the defendant withdrew his motion.

In passing upon the plaintiff’s motion, the defendant is entitled to the benefit of the most favorable construction of all the evidence (Wilkeson, Admr., v. Erskine & Son, 145 Ohio St., 218, 61 N. E. [2d], 201) and any conclusion thereon must be sustained by evidence-requiring inferences upon the existence of which reasonable minds could not differ. Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 189 N. E., 246; Wilkeson v. Erskine & Son, supra, at page 229.

In the amended bill of particulars it is alleged that the plaintiff sold to the defendant certain described’ merchandise upon authority received from the “Navy Material Redistribution and - Disposal Office,” that the total value of such merchandise was $791.28, upon which sum the defendant paid $245, leaving a balance-due of $546.28, .for which judgment was prayed.

The defendant filed a statement of defense in which the bid and initial payment of $245 .were admitted. It is alleged, however, that the entire balance of purchase price was paid to the plaintiff “on February 5, 1946, immediately preceding release of the materia] to the defendant, and no part' of the purchase price of said goods and materials remains unpaid. ’ ’

Defendant further denied plaintiff had the right to do business in the state of Ohio.

No reply was filed to that statement of defense.

The rules of the Municipal Court of Cincinnati do not provide for automatic denial of the allegations of new matter in a statement of defense in the type of action herein involved. It is the claim of the plaintiff that the case was tried as if a reply had been filed. This claim will be considered with other questions presented by the state of the record before this court.

, In connection with the principal question involving the propriety _ of the instructed verdict in favor of plaintiff, it appears that the chief claim thereon is that the defendant failed to prove authority in the employee of plaintiff to receive payment of the balance of the purchase price upon delivery of the materials.

From the transcript of the evidence it appears that' the defendant was called, as upon cross-examination, and testified that he had submitted the bid and 'paid the deposit as alleged and obtained all the materials.

The treasurer of the plaintiff company testified that he knew the amount due from the defendant, and-that the amount had not been paid. The defendant objected to this testimony on the ground that it did not constitute the best evidence. His objection was overruled. No. error appears in such ruling. On cross-examination, the treasurer of the plaintiff company testified that the materials involved were located at “our Elmwood Plant” (some distance from the main office of the company), that he did not know what went on at the Elmwood plafit, that if money had been paid there and not turned over to him as treasurer he would be. unaware of such payment, and that no one at the Elmwood plant had the right to receive any payment. No objection was made to the question or answer covering this statement, which, of course, tends'to negative the affirmative defense of payment set up by the defendant in his statement of defense. It would appear, therefore, that the defendant did accept the position of plaintiff at the trial as if a reply had been filed.

Licenses showing the right of plaintiff to do business in Ohio y^ere introduced in evidence.

It appears further from the testimony of the treasurer that a man by the name of Gerber, an employee of the plaintiff, had charge of the Elmwood plant where the materials for sale were stored, and had the right to release the materials to the defendant, but had no right to receive payment therefor.

A lieutenant commander of the Navy testified for the defendant that certain typewritten forms covering the transaction involved were given to the defendant, These forms were admitted in evidence. Prom these, it appears that the defendant was invited to make a bid on certain materials listed in the forms, which materials were located at the Elmwood plant of the plaintiff, that the bid was to be made to the Navy office, and that inspection of materials could be arranged by contacting William Gerber, the employee of plaintiff in control of the plant.

The defendant then testified that the plaintiff had requested that he obtain the materials from the Elm-wood plant and take them away, that he went to the plant, saw Gerber (who was seated at the trial table during the triál and after an order' was made excluding witnesses),1 that he had seen Gerber when inspecting the goods before making his bid, that he obtained the materials from Gerber, that he had to wait a half hour before settlement was made, that he paid the balance due (the amount now claimed by plaintiff), in cash to Gerber, and obtained a release of the materials, that the payment was made in the plaintiff’s office of the plant, that two other employees of plaintiff were also present in plaintiff’s office at the time payment was made, that defendant did not know their names, that defendant’s father was also present and one of defendant’s employees, who has since moved away to an address unknown to defendant, that when going out of the plant he was stopped by the gateman, who permitted him to pass when he showed the releases given to him by Gerber, that he, the defendant was an ex-service man and had had no previous experience in such transactions, that no demand was made upon him -for the balance claimed due until some eight months after he had paid the balance upon taking the goods from the Elmwood plant, and that at that time the plaintiff demanded the entire purchase price with no credit for the deposit, that he told plaintiff how he had paid for the materials, and that later, after conference with plaintiff at its Cincinnati office, plaintiff admitted credit for the deposit and demanded the balance.

On cross-examination, the defendant stated that Gerber called several persons, including the “home office” on the phone before giving the defendant the releases, and that the defendant is unable to locate the releases and a receipt, marked paid in full, the same having become mislaid in his files in the eight months intervening between receipt of the goods and demand for payment. •

The father of defendant corroborated payment of the balance to Gerber and the release of the. goods by him.

It is apparent from a review of the transcript of the evidence that factual' issues were thus presented, involving whether the defendant had paid for the materials and whether the employee of the plaintiff had actual or apparent authority to receive such payment. These factual issues should have been submitted to the jury under proper instructions and the trial court committed error, prejudicial to the defendant, in instructing a verdict for the plaintiff upon evidence which suggested inferences upon which reasonable minds might differ. See 2 American Jurisprudence, 103, Agency, Section 127.

The judgment of the Municipal Court of Cincinnati , is reversed and the case remanded to that court for trial.

Judgment reversed.

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


author: Conn, J.

text:
    Zywiczynski, Appellant, v. Zywiczynski, Appellee.
    (No. 4254
    Decided December 1, 1947.)
    Mr.. Thaddeus N. Walinski, for appellant.

      Messrs. Boyle, Lewis & Warner, for appellee.
   Conn, J.

On December 30, 1936, tbe (defendant, Agnes Zywiczynski, was awarded a judgment of divorce from tbe plaintiff, Henry Zywiczynski, on ber cross-petition,' and also awarded the exclusive right to occupy the premises owned jointly by the parties and in which they had previously resided, so long as she desired to reside therein, and during such occupancy pay all taxes and assessments and “keep said property in good condition of repair and pay for said repairs. ’ ’

It was adjudged further that if the defendant desired to sell her undivided one-half interest in the reál estate she should first obtain the approval of the court that the price was fair and reasonable. Upon such sale being made, the net proceeds were to be divided equally between the parties.

In the years following, motions to modify and show cause were considered by the trial court from time to time, and'on December 5, 1946, the defendant filed a motion for an order requiring plaintiff to pay one-half of the cost of a new furnace or, in lieu thereof, an order authorizing the deduction of such amount from plaintiff’s share of the proceeds upon, any sale of the property. In the motion, it was alleged that the furnace then in the residence property was old and beyond repair and that a new furnace constitutes .a capital improvement.

On June 9, 1947, the trial court granted defendant’s motion and adjudged that plaintiff be required to pay one-half of the cost of a new furnace, to wit, $205.50, and that if he fails or refuses so to do, the defendant, her heirs or assigns, upon sale of the property, were to have “a credit of $205.50 in addition to defendant’s undivided half interest in said property. ’ ’

From the judgment of the trial court, plaintiff has appealed to this court on questions of law.

We will first consider the contention of defendant that the order appealed from is not a final order. Section 12223-2, G-eneral Code, provides that

“* * * an order affecting a substantial right made in • a special proceeding * * * is a final order which may be reviewed, affirmed, modified or reversed ® * A”

The appeal herein is taken from an order made in a special proceeding, which order directly affects the undivided one-half interest and legal right of plaintiff in the real estate jointly owned by the parties. This legal right so affected by the judgment appealed from is substantial and it appears that the contention of the defendant, therefore, is not well taken. Armstrong, Recr., v. Herancourt Brewing Co., 53 Ohio St., 467, 42 N. E., 425; In re Guardianship of Moyer, a Minor, 68 Ohio App., 319, 40 N. E. (2d), 695.

Plaintiff seeks a reversal of the judgment of the trial court on two grounds: First, that the trial court did not have jurisdiction to enter the judgment, and, second, that the installation of a new furnace to take the place of the old is the exclusive obligation of defendant, which duty is imposed on her as incident to her occupancy of the premises as a residence.

The question of jurisdiction appears to be answered by the terms of the judgment entry itself. The defendant is granted the exclusive occupancy of the residence property as long as she desires, with the obligation to “keep said property in good condition of repair and pay for said repairs, ’ ’ and also the ‘further duty to obtain approval of the court as to the selling price in event she desires to sell the property. Furthermore, the cause is expressly continued as. to alimony. Thus the court has retained not only jurisdiction of the subject matter, but also of the parties.

The remaining question is not free from difficulty. Defendant contends that the installation of a new furnace is a capital improvement and relies chiefly on certain decisions of the Board of Tax Appeals. However, the rule in tax cases is not necessarily controlling in ascertaining or determining the obligation resting on defendant' in the instant case. Broadly speaking, the obligations of the defendant in respect to the care and preservation of the property are analogous to those of a tenant for life, circumscribed in the instant case by the provisions of the original judgment entry.

Generally, it is the duty of the life tenant to make-such repairs as are necessary to preserve the property, prevent waste and where there is deterioration or decay, to restore the property to its original condition. We call attention to the following statement of the rule in 16 Ohio Jurisprudence, 437, Section 51:

“The tenant for life is entitled to the full use and enjoyment of the property, the only restriction upon this use being that the estate of those who are to follow him in possession shall not be permanently diminished in value by his neglecting to do that which an ordinarily prudent person would do in the preservation of his own property, or by doing those things which are no.t necessary to the full enjoyment of the particular estate, and which have the effect permanently to diminish the value of the future., estate. ”

The cases generally indicate that the term “repairs” and the term “improvements” are not capable of exact definition but in the application of these terms it appears that the former relates to the preservation of the property in its original condition, while the latter is applied where permanent changes are made enhancing the value of the premises. See annotation, 128 A. L. R., 199 and following pages.

It may be inferred from the record before us that at the time defendant came into the exclusive possession of the premises, a decade or more ago, the dwelling house contained a furnace and that it was in reasonably good condition; also, that by reason of the subsequent use by defendant for the purpose of furnishing necessary heat for the residence occupied by her, it became defective and worn, and finally had to be replaced.

We call attention to the American Law Institute’s Restatement of Property, 457, Section 139, Estates for Life, and the “criterion of preservation” on page 459, part of which we quote as follows:

“c. Criterion, of preservation. Whether a specific repair or act of preservation is comprehended within the duty ‘to preserve the land and structures in a reasonable state of repair’ is a question of fact dependent upon the circumstances of each case. A repair or act of preservation is clearly within such duty whenever such repair or act is necessary to prevent a progressive deterioration of the land or structures or whenever the condition existing as a result of the failure to make such repair will amount to substantial deterioration of the land or structures from the condition in which such land and structures were at the time of the commencement of the estate for life. A repair necessary to make good ordinary wear and tear is not within this duty unless such repair is also within one of the two groups described in the next preceding sentence. * * *”

The requirement that the defendant “keep said property in good condition of repair” is broader and more inclusive than the duty merely to make repairs. The former is related to the premises as a whole for use as a place of residence. The latter is more restrictive and relates to some condition of the property in particular which has become defective from use and which is restored to the condition in'which it originally existed or approximately so.

“Good condition of repair” connotes that the tenant shall make such repairs and replacements from time to time as are reasonably necessary, in order to keep the property as a whole in a tenantable condition, and substantially in the condition it was in at the beginning of the tenancy.

We conclude that by virtue of the duty resting on defendant to protect and preserve the legal interest of plaintiff in the property during the period of its oecupáncy by her, and by virtue of the provisions of the original judgment of the trial court, expressly imputing to the defendant the duty to keep the property in good condition of repair, as a condition of her use and occupancy, there is imposed on her the obligation to replace the worn-out furnace by another one and pay the cost of same.

Judgment reversed.

Carpenter, J., concurs.

Stuart, J., not participating.


author: Skeel, J.

text:
    Adams, Appellant, v. Samuels et al., Appellees.
    (No. 20637
    Decided June 16, 1947.)

      Mr. Stanley E. Lloyd and Mr. W. P. Strangward,. for appellant.

      Mr. Philip Novitch, for appellees.
   Skeel, J.

This action comes to this court on questions of law from a decree for the defendants in an action for specific performance in the Common Pleas Court. /

The defendants entered into a written contract with one Clifton Corprew, whereby the defendants agreed to sell their property located at 2332-34 East 57 street, Cleveland, Ohio, to Corprew for $5,300; $100 down and $2,400 to be escrowed with I. S. Hurwitz, Standard building, within 30 days; the sellers to take back a first mortgage for the balance of the purchase price at six per cent interest. The.purchaser was to pay the taxes for 1944 and thereafter.

Clifton Corprew assigned all his right, title and' interest in and to the contract to the plaintiff. The plaintiff proceeded to carry out the terms of the agreement. The defendants refused to proceed unless the original buyer obligated himself upon the mortgage and when he agreed to do so, the defendants then demanded payment • in full. This new demand was verbally made. When the purchaser agreed to meet such demand, the defendants then refused to proceed with the transaction and claimed that the contract was too indefinite to be enforced. The reason assigned for not proceeding to transfer the property under the claim of indefiniteness, was that the due date and terms of payment of the mortgage were not provided for by the agreement.

There can be no question that under the agreement between the parties, the defendants were entitled to the credit of Clifton Corprew on the mortgage securing the balance of the purchase price. The contract did' not provide against assignment, and therefore the benefits of the contract were assignable.

The fact that there was an obligation imposed on Corprew to sign and deliver a mortgage to the sellers to secure the payment of a part of the purchase price, and that the assignment could not relieve him of that obligation, cannot affect the plaintiff’s right to procure by assignment all the benefits of the contract. The evidence is uncontradicted that in carrying out the purchaser’s obligations under the agreement, Corprew offered to lend his credit on the mortgage so that the tender of performance included every right to which the defendants were entitled.

The demand of the defendants for payment in full of the entire purchase price, which offer was accepted by the plaintiff,. was, in fact, an offer to make a new contract which not being in writing was unenforceable, so that the obligations of the earlier contract remained in full force and effect.

There is, therefore, but one defense to the plaintiff’s action for specific performance and that is: Was the failure to provide for the due date and payments on the purchase-money mortgage such a circumstance as made the contract unenforceable because of indefiniteness?

In considering this question it must be kept in mind that the defendants through their agent drew the contract. They are seeking to avoid legal responsibility under such contract because it is claimed to be too indefinite to enforce. A court of equity should not assist a party to avoid legal responsibility under the terms of a written contract which they drew, unless to do so would, in fact, require the court to make a new contract for the parties, or include terms which the parties did, not include therein." jBut, if a contract for’the sale of land is sufficiently definite so that the obligations of each of the parties can be determined from the instrument without adding other terms by parol testimony, a court of equity will, if all the other facts necessary "in a specific performance action are present, decree specific performance.

The only obligation upon the defendants under the terms of the written contract, is to transfer the title to the property described therein to the plaintiff. The plaintiff ’ agrees to pay $2,500 in cash which he has legally tendered, and to give back a purchase-money mortgage-for the balance due with interest at six per cent.

Where no time' is fixed for the payment of an obligation and the debt is to be represented by a negotiable instrument, the. courts will presume that the par- ■ ties intended that the time of payment would be upon demand. The principle is the same as that provided for in the Negotiable Instrument Code of Ohio. Section 8112, G-eneral Code, provides:

“An instrument is payable on demand

# * # # «

“2. In which no time for payment is expressed.”

In 7 American Jurisprudence, 870, Section 145, under the general' heading, “Bills and Notes” it is provided:

“It is no objection to the validity of an instrument that it has no time of payment mentioned. Nor does the failure to specify the time of payment make it nonnegotiable, since where no date is mentioned, it is payable on demand.”

See, also, 10 Corpus Juris Secundum, 742, Section 247.

The application of that principle to a contract for the sale of real estate in which the vendor, defendant, agreed to take back a purchase-money mortgage in which the due date of the obligation of the mortgage was not provided for has been followed in two New Jersey cases.

In Green v. Richards (1872), 23 N. J. Eq., 32, the court said:

.“The only material part of this contract that is not definite, is the credit to be given on the mortgage, and whether with interest or not * * *. Here there is no agreement for any time. The purchaser is not entitled to any credit. In such case the mortgage should be made payable on demand and it is the duty of a court of equity, in order to prevent a fair and just agreement from being defeated by a mere technical objection, to presume that such was the intention of the parties, and to give the agreement that construction. This makes the written agreement certain in all its parts.”

Also, in the case of Luczak v. Mariove (1921), 92 N. J. Eq., 377, 112 A., 494, affirmed in 1922, 93 N. J. Eq., 501, 116 A., 925, the court said:

“In the absence of definite terms in the contract, a court, of equity will, if necessary; presume it to have been the intention of the parties that the mortgage-should be made payable on demand (Green v. Richards, 23 N. J. Eq., 32) and will also presume, in the absence of a specified rate of interest, that the mortgage carries the legal rate of interest after demand. And, if the omission of these terms from the contract be attributed to the negligence of the parties, such negligence on the part of the defendants will not be permitted to defeat specific performance.”

We conclude, therefore, that the plaintiff was.entitled to a decree of specific performance and the decree of the trial court is reversed and the cause remanded with instructions to enter such decree for the-plaintiff.

Insofar as this holding is in conflict with a prior judgment of this court in the case of Bentley v. Miller, 18 C. C., 865, 9 C. D., 851, we are not disposed to follow the law of that case.

Decree reversed.

Hurd, P. J., and Morgan, J., concur.


text:
    Sting et al., Appellees, v. Rothacker, Appellant.
    (No. 444
    Decided November 10, 1947.)

      Messrs. Hull & Hawk, for appellees.

      Mr. Leo W. Kenny, for appellant.
   Conn, J.

This is an action to quiet title and the case is here on an appeal on questions of law and fact from the finding and judgment in favor of plaintiffs in the trial court.

The parties are owners of resident properties located on the west side of Carbon street in the city of Fremont, Ohio, and which properties lie adjacent to each other. These properties are each improved for residence purposes, including driveways and garages. The total distance between the dwelling houses of the parties is between 15 and 16 feet and at different times each of the owners of these properties built cement sidewalks and driveways and finally, the entire space between the houses and extending from the front to .the garages in the rear was completely paved.

It appears from plaintiffs’ petition that the land in controversy is a strip of land 3Q inches in width off the south side of plaintiffs’ property. However, the evidence discloses that the controversy relates to the joint use by the parties of a strip of land 26 inches wide off the south side of plaintiffs’ property and extending from the street line thereof to the front line of the garages in the rear.

Prior to 1924, this 26-inch strip of land was unpaved and it lay between the south edge of the two-ribbon cement drive as then located on plaintiffs’ lot and the north edge of the cement drive as then located on defendant’s lot.

In the latter part of the year 1924, the defendant’s predecessor in title laid cement in the 26-inch strip so that'it formed a solid cement juncture with the north edge of the cement on defendant’s property and the south edge of the cement on plaintiffs’ property.

Following plaintiffs’ purchase of their property and some time in May, 1944, the two-ribbon drive on their property was converted into a solid driveway with the south edge abutting the north edge of the cement which was laid on the 26-inch strip in 1924’.

The evidence discloses that from the time the 26-inch strip was converted into solid cement in 1924 and continuously to June, 1946, the owners of the respective properties made joint use of this strip of land for driveway purposes as a means of ingress and egress to and from their respective properties.

In June, 1946, plaintiffs had a survey made of their lot and from this survey it appears that the south line of the 26-inch strip coincided with the south line of plaintiffs’ lot. In other words, the survey showed that this strip of land, the use of which is in dispute, lies wholly within the lines of plaintiffs’ lot. Shortly after the survey was made, plaintiffs set several iron stakes in the cement drive on a line about one inch north of the south line of their lot as established by the survey and strung a cable on these stakes.

This placing of the stakes in the cement drive and the cable thereon was met by a protest from the defendant, which took the form of well-directed blows of a sledge in the hands of defendant’s husband against the obstruction placed in the drive. Shortly thereafter, this action was begun.

The evidence shows also that defendant’s ingress to her garage from the street and egress therefrom was difficult and inconvenient during the time the obstruction set in the cement was maintained.

Plaintiffs claim that they have a right to rely on the deed to their property and the record title; that they had no notice or knowledge of any burden thereon in the form of an easement; and that the evidence does not show an open, notorious and adverse claim by defendant and her predecessors in title. It is claimed further that permission was given to lay the-cement in the 26-inch strip; that the permission given is the equivalent of a license to make this improvement; and that a license can never ripen into an easement.

If the- subsequent use of this strip, following the paving, were permissive, that is to say, by express permission or license, and not mere acquiescence, no matter how long the use continues, it would not ripen into an easement by prescription. 1 Ohio Jurisprudence, 518, Section 24; 15 Ohio Jurisprudence, 63, Section 45.

Plaintiffs have the burden of proof on the issue that the use made of this 26-inch strip was pursuant to an oral license and therefore not adverse. The record does not show any agreement in reference to the use of the strip of land in dispute for driveway purposes by the owners of these adjoining properties and the plaintiffs have not met the burden of proof on this issue.

It affirmatively appears that this strip of land, the use of which is in issue in this case, was used by the parties and their predecessors in title without “let or hindrance” for a period of 21 years and more prior to the commencement of this action.

We feel that the case of Pavey v. Vance, 56 Ohio St., 162, 46 N. E., 898, wherein-the character of the use is substantially the same, is decisive of the issues in this case. We quote the syllabus as follows:

“1. Where one uses a way over the land of another without permission as a way incident to his own land and continues to"do so with the knowledge of the owner, such use is, of itself adverse, and evidence of a ■claim of right. And where the owner of the servient ■estate claims that the use was permissive, he .has 'the burthen of showing it.

“2. When one who is the owner of a tract of land uses a way over the land of another for the convenience of egress and regress to his own land, without let or hindrance and without obstruction for the period of twenty-one years, he thereby, in the absence of anything to the contrary, acquires a right-by prescription to its use as an incident to his land; and the right will pass by a conveyance or descent of the land.”

On the issues joined in the pleadings and the evidence, there must be a finding for defendant and against the plaintiffs and that defendant has a prescriptive right to use the strip of land in dispute for driveway purposes jointly with the plaintiffs as a means of ingress to and egress from their respective properties. •

Plaintiffs’ petition is dismissed at plaintiffs’ costs.

Petition dismissed.

Stuart and Carpenter, JJ., concur.


author: Matthews, P. J.

text:
    Madden, Appellee, v. Farm Bureau Mutual Automobile Ins. Co., Appellant.
    (No. 6892
    Decided March 12, 1948.)

      Messrs. Bolle, O’Donnell S Cash and Mr. John R. Balm, for appellee.

      Messrs. Pogue, Helmhols, Culbertson & French, for appellant.
   Matthews, P. J.

This is an appeal from a judgment rendered in favor of- the plaintiff upon an agreed statement of facts.

The defendant, a mutual insurance company, issued to the plaintiff a “standard automobile combination policy” in which it agreed to indemnify him against loss and expense resulting from certain hazards resulting from his ownership in operation of the automobile, classified as “pleasure and business” owned by him, in consideration of the payment.of a premium allocated to each hazard insured against.

The judgment in this action is for $500, which is the maximum amount of indemnity provided for payments for medical services under the following provision in the policy:

“To pay to or for each person who sustains bodily injury, caused by accident, while in or upon, entering' or alighting from (1) the automobile classified as ‘pleasure and business’ if the injury arises out of the use thereof by or with the permission of the named insured, or (2) any other private passenger automobile with respect to the use of which insurance is afforded under the policy, if the injury arises out of the use thereof and results from (a) the operation of said automobile by the named insured or spouse or by a private chauffeur or domestic servant of either or (b) the occupancy of said automobile by. the named insured or spouse, the reasonable'expense of necessary medical, surgical, ambulance, hospital and professional nursing services and, in the event of death resulting from such injury, the reasonable funeral expense, all incurred within one year from the date of accident.”

The plaintiff was on his way from Cincinnati, Ohio, to Columbus, Ohio, in the automobile described in the policy and while enroute stopped on Montgomery road in Norwood, Ohio, to change a tire. He had changed the tire and was in the act of placing the tire which he had removed in the trunk compartment, in the rear part of the automobile, and in doing so was standing-on the street just behind the automobile and touching or almost touching it and was leaning forward with the upper part of his body and arms in the rear compartment of the automobile, when he was struck by an approaching- automobile going in the same direction, and wedged between it and his own automobile, and suffered the injuries, in the treatment of which the medical expense was incurred.

The contention of the defendant, appellant herein, is that the occasion on which the plaintiff received his injuries does not bring it within the terms of the policy. In passing- upon this contention, we must keep in mind the ivell established rule that insurance policies, such as this, must be construed most strongly against the insurer and any doubt or ambiguity resolved in faVor of the insured.

Now, the plaintiff is the named insured, so it is clear that he is a beneficiary of the policy and entitled to recover for damage resulting from a risk insured against, unless excluded by some positive unambiguous provision in the policy.

“What was the risk insured against? It is recited in the policy that the injury must arise out of the use of the automobile with the consent of the insured. Now did this injury arise out of the use of the automobile? Defendant’s counsel call attention to the fact that the plaintiff was placing the tire, which he had just removed, in the rear of the automobile, and urge that this was not a use 'of the automobile, but was in fact a maintenance of it; in other words, that it was placing the automobile in condition for use. But at the time he changed these .tires the plaintiff was using the automobile to transport himself from Cincinnati,to Columbus. The changing of the tires was just as much a part of the use of the automobile for that journey as stopping to replenish the gasoline or oil, or for the change of a traffic light, or to remove ice, snow, sleet, or mist from the windshield. By such acts, the journey would not be abandoned. Such adjustments are a part of the use of the automobile — as much so as the manipulation of the mechanism by the operator. By the purpose and intent of the plaintiff, appellee herein, he was on his way to Columbus and the automobile was being used as the means of transportation.

So we conclude that the injury was inflicted as the result of the risk insured against."

The defendant argues that the plaintiff was not “in” or “upon” of “alighting” or “entering” the automobile at the time he was injured.

It is certain that he was not in the customary place of a driver or passenger, and it is conceded that this is not necessary. But it is said he was outside the automobile, and was not either entering or alighting. However, he was using the automobile and was in such relation to it as to subject himself to the hazard insured against and was injured as a direct result of that risk. If we adopt the defendant’s interpretation, we attribute to the insurer the intent to issue a policy insuring against a certain risk and then limiting the 'class insured so that there may be no recovery in certain instances of injuries resulting from the risk. It seems to us that it was the intent of the insurer, by the language used, to provide for coverage in every case in which the owner was using the automobile and in such a position in relation thereto as to be injured in its use. In reaching a conclusion on this subject, not only the act in which the insured was engaged at the time, but also his purpose and intent must be considered. So construed, the entire paragraph creates a field of coverage broader than a narrow construction of the words considered separately and independent of one another would indicate.'

While the plaintiff does not say any part of his body was touching the automobile at the time, the inference is pretty strong that there was some touching, and the evidence is clear that the upper part of his body and hands and arms were inside the rear compartment. He was not completely in the automobile, nor was he completely out of it. The terms of the policy do not specify any particular part of the automobile in which he was required to be, or that he should be completely in. The addition of the words “entering” or “alighting” certainly indicates that the parties had no intention to so restrict the liability. Under such circumstances, we are of the opinion that the trial court was justified in construing the policy so as to cover this injury.

Defendant’s counsel rely strongly on Turner v. Fidelity & Casualty Co., 274 Mo., 260, 202 S. W., 1078. That was a case in which the court was called upon to construe an accident indemnity policy providing for double indemnity when death should occur from any bodily injury “sustained by the assured ® * * while in or on a private conveyance (excluding bicycles, motorcycles and saddle-horses).” It will be observed that the liability was not in any way dependent upon the cause of death. The only basis of liability was the presence of the insured in or on a private conveyance when he was injured, no matter from what cause. There was no doubt created by the language as to the right given to the insured to recover co-extensive with the risk insured against. And the words “in” or “on” were not enlarged by the words “entering” or “alighting.” In the instant case the language of the policy is broader as to the beneficiary and the liability was made to depend upon the cause of the injury as a factor at least equal to the position of the beneficiary in relation to the automobile at the time of the injury.

What we have said concerning Turner v. Fidelity & Casualty Co., supra, is equally applicable to the other cases relied upon by defendant.

Counsel suggest that if the plaintiff is allowed to recover, a pedestrian, who should be struck by the automobile 'while passing alongside or between it and another parked automobile, would be entitled to recover on the policy. We think the case of a stranger having no relation to the automobile stands upon an entirely different footing. Pie would not be using the automobile in any sense whatsoever. Pie would not be using the automobile on a journey at the time.

Without attempting to lay down any general rule, we are of the opinion that under the circumstances of this case and under the rule requiring a construction most favorable to the insured, we must hold that the language of this policy must be construed to cover the risk in favor of the plaintiff.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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


text:
    Cailey, Appellant, v. Hutzel, Appellee.
    (No. 6903
    Decided January 26, 1948.)

      Mr. Bernard J. Gildap and Mr. Fred L. Eoffman, for appellant.

      Mr. Kenneth P. Mooter, for appellee.
   Ross, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton'county, entered upon a verdict instructed for the defendant at the close of plaintiff’s evidence.'

The action was instituted to recover damages resulting from a collision of automobiles operated by the parties.

The evidence introduced in the trial court is here presented in a narrative bill of exceptions. Prom tin's, it appears that the- plaintiff and defendant were operating automobiles southwardly on a highway known at Montgomery road, and at the time of the collision were within the limits of the village of Silverton. This highway is sufficiently wide to accommodate six lanes of traffic, three north and three south. The lanes are unmarked. The defendant driving southwardly on the highway arrived at a stop sign located at the intersection of Ohio avenue. The light was red against north and south hound traffic. His automobile was located just west or, to the right of the center line of the highway. The plaintiff, also proceeding southwardly on the highway, occupied the lane immediately west or to the right of that occupied by the defendant’s vehicle. The light changed to green for north and south bound traffic as the plaintiff neared the intersection and he drove his automobile in a course parallel to that of the defendant, the two vehicles then proceeding across the intersection in parallel lines, the plaintiff’s automobile to the right of that driven by the defendant. The plaintiff proceeding at a more rapid speed moved ahead of the defendant’s automobile. When a short distance past the intersection the defendant, intending to drive into a service station on the west or right side of Montgomery road, turned his automobile to the west or right and clipped the left rear fender of the plaintiff’s automobile, as it was passing his automobile, causing the plaintiff’s vehicle to swerve and ultimately crash into a pole, entailing the damage^ of which complaint is made.

It is evident that the front part of the plaintiff’s automobile had proceeded to a point beyond that opposite the defendant seated in the driver’s seat of his vehicle, so that had the defendant exercised the slightest degree of care, he must have observed that in turning his automobile to the right it would be bound to collide with that of the plaintiff passing it to the west or right. That which must have been so obvious occurred, and the defendant’s automobile collided with the left rear portion of plaintiff’s automobile.

The defendant justifies the action of the trial court in instructing a verdict for the defendant upon the ground tliat the plaintiff was violating the provisions of Section 6307-28, General Code. This section reads as follows:

(a) The operator of a vehicle or trackless trolley may overtake and pass upon the right of another vehicle or trackless trolley which is making or about to make a left turn.

“(b) The operator of a vehicle or trackless trolley may overtake and, allowing sufficient clearance, pass another vehicle or trackless trolley proceeding in the same direction either upon the left or upon the-right on a roadway with ^unobstructed pavement of sufficient width whenever such roadway has been divided into four or more clearly marked lanes for moving traffic, or whenever within municipalities traffic is moving in two or more substantially continuous lines in the same direction, provided such movement can be made in safety. No person shall drive off the pavement or upon the shoulder of the roadway in overtaking or passing-on the right.”

The question of whether the action of the plaintiff (if it be considered a violation of that section of the statute) was the proximate cause of the damages to his automobile would be one for the jury.

Aside from that consideration, however, it would seem that the latter provisions of the section (even if they be considered to state more than a rule of conduct) were designed to cover the instant problem.

The vehicles involved were being- operated in a municipality. The two vehicles constituted elements of “traffic” on the highway. They were proceeding in two continuous lines, in the same direction, and had the defendant remained in the line or lane in which he was obviously proceeding, no injury would have occurred to anyone, and the plaintiff’s passage of the defendant’s automobile could have been made in perfect safety.

The situation here developed is one familiar-to almost every operator of an automobile. Vehicles, within the limits provided by law, proceed at fairly rapid speeds. In the wide highways now found throughout the state, especially in the more traveled portions within municipalities, automobiles are bound to proceed on their courses at varying speeds, resulting in the passing of those proceeding more slowly, moving in parallel lines. Whether the lanes are marked or unmarked, these courses follow more or less well defined limits fixed by the width of the various vehicles. The driver of the vehicle approaching from the rear, following a straight course, parallel to the slower moving vehicle certainly has a right to presume, in the absence of some warning, that the respective courses so indicated will not be changed.

The plaintiff in this case did nothing which, as a matter of law, could be found, by-the court to consist of a violation of a statutory mandate defining such action as negligence per se and the proximate or contributing cause of the damages resulting to his automobile. Whether the conduct of the defendant was the proximate cause of such damages, and whether the conduct of the plaintiff contributed to the resulting injury to his vehicle are factual questions requiring the decision of a jury.

The judgment of the Court of Common Pleas is reversed and the case is remanded for a new trial according to law.

Judgment reversed.

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