text:
    Rath, Appellant, v. Industrial Commission of Ohio, Appellee.

      (No. 794
    Decided May 21, 1954.)

      Mr. Leander P. Zwick, Jr., and Mr. Harold E. Gottlieb, for appellant.

      Mr. C. William O’Neill, attorney general, Mr. Paul Tague, Jr., and Mr. James Videan, for appellee.
   Putnam, P. J.

This action arose on appeal from an order of the Industrial Commission denying the plaintiff, Esther Rath, the right to participate in the Workmen’s Compensation Fund for the reason that her husband’s death was not próximately related to an injury sustained in the course of and arising out of his employment with the Hazel-Atlas Glass Company.

The issues having been joined by petition and answer, the cause came to trial before a duly impanelled and sworn jury. At the conclusion of the plaintiff’s case, the defendant moved the court to direct a verdict in its favor. The trial court sustained the defendant’s motion and entered judgment for the defendant.

This appeal on questions of law results. The assignments of error as argued to this court are as follows:

1. The court erred in directing a verdict in favor of the Industrial Commission at the end of the plaintiff’s case.

2. The court erred in sustaining objections to the hypothetical questions propounded to the plaintiff’s expert medical witnesses.

3. The court erred in sustaining objection to the admission of the death certificate in evidence.

4. The court erred in ruling that the cause of death shown on the death certificate is not competent evidence to show the cause of death.

The issues, as stated by the appellant in this case, are as follows:

Is a certificate of death duly filed with the Registrar of the Bureau of Vital Statistics admissible in evidence to show the medical cause of death? Did the plaintiff present some evidence showing an accidental injury within the meaning of the Workmen’s Compensation Act so as to require the case to be submitted to the jury?

The facts in this case are briefly as follows:

Theodore Rath, the decedent, was 35 years old, married and had two children. His wife, Esther Rath, is the claimant. Rath had worked for the Hazel-Atlas Glass Company at Zanesville as an operator of a bottle-making machine for about 17 years. On July 1,1948, he reported for work, as usual, at 6 a. m. Shortly thereafter, he got a pint of milk and some other food, presumably for breakfast. Shortly after he consumed this food, he felt sick and vomited. He continued at work until about 8:30, when he complained to his brother, who was operating an adjacent machine, that he was not feeling well. He called a replacement for his machine and went to the dispensary. He asked the nurse in charge for some soda, which she gave him. He drank this and then asked for a glass of water. The nurse turned to get a glass of water and as she did she noticed that Rath slumped in his chair. She ran to him and supported him, and called for help. He was placed on a cot. Immediately thereafter, the company doctor, Dr. Gaudy, was called; he arrived within ten or fifteen minutes. Rath was dead when the doctor arrived. The nurse stated that Rath lived only a few minutes after he was placed on the cot. The doctor examined him, took the statement of the nurse and then went to see his wife, the claimant, Esther Rath. He had a conversation with her in the presence of Rath’s brother. At that time, Esther Rath told him that Rath had had pains in his chest before and had taken soda to relieve it. She said she had advised him to go to a doctor for a check up, but he had refused. Thereafter, Dr. Gaudy signed a death certificate in which he stated that the cause of death was “coronary thrombosis,” “duration 10 minutes.” The medical certificate also stated, in answer to question 21, “I hereby certify that I attended the deceased found dead on arrival and that death occurred on the date and hour stated above. Immediate cause of death coronary thrombosis duration 10 minutes.” The other parts of the question were unanswered. There was no autopsy. Question 22 was not answered. The evidence also tends-to show that between the hours of 6:30 and 8:30 a. m. on this date the temperature around Zanesville was from 61 to 72 degrees, and that the temperature in the factory at the place where the decedent was working was from 10 to 15 degrees higher than the outside temperature. The job of the deceased consisted of molding glass bottles in forms from molten glass which came into the molds from a tank several feet away from the mold. It was the heat from this tank and from the molten glass which raised the temperature within the factory higher than that outside.

The first contention on this appeal is that the hypothetical question propounded to the doctors was incompetent because it contained the assumption taken from the death certificate that the cause of death was coronary thrombosis. There is no other evidence as to the cause of death.

The death certificate itself had been offered in evidence but was rejected. Its rejection by the trial judge was based upon the holding in the case of Carson v. Metropolitan Life Ins. Co., 156 Ohio St., 104, 100 N. E. (2d), 197, 28 A. L. R. (2d), 344. The appellant claims that the death certificate was admissible under the holding of the Supreme Court in the case of Perry v. Industrial Commission, 160 Ohio St., 520, 117 N. E. (2d), 34. These cases must be resolved in the light of Section 1261-66, General Code (Section 3705.05, Revised Code), which provides in part:

‘ ‘ The director of health, or person authorized by him, shall upon request and upon the payment of a fee of fifty cents supply to any applicant a certified copy of the original certificate of any birth, death, or stillbirth, registered according to law. Such certified copy of such original certificate of birth, death or stillbirth shall be prima facie evidence in all courts and places of the facts therein stated.”

In the Carson case, supra, the court held that a statement in the death certificate that death was from suicide was not competent evidence to establish death by such means. This conclusion obviously was based upon the ground that such a statement was not a statement of fact but of opinion. In the Perry case, supra, the court held that a statement in the death certificate that the immediate cause of death was coronary sclerosis, which for all practical purposes is the same as coronary thrombosis, as in this case, was a statement of fact and not an opinion and was, consequently, competent. The only difference between the Perry case and the instant case is that in the Perry case the certifying doctor had been in attendance upon the patient prior to his death. This fact is seized upon by the appellee in this case to distinguish it, and as a basis for the argument that the doctor’s certification in the instant case is based upon hearsay and is, consequently, the statement of an opinion and not of a fact. This is the question we must resolve in the first instance.

It is our judgment that the appellee’s contention cannot be sustained, and we hold, following the Perry case, supra, that the death certificate, as to the cause of death, was competent under the facts in this case and should have been admitted into evidence. This conclusion is based upon the following considerations, among others:

In the case of suicide the question is not whether a gunshot wound or a strangulation or a drowning or death under the wheels of a railroad train was the immediate cause of death, but as to whether the particular individual willfully caused the same to be done. This is a question of a state of mind and of a motivating cause. To the writer of this opinion, this involves a guess of the mental process of the decedent and, in accordance with the Supreme Court’s decision, becomes a matter of opinion based on many facts unrelated to the field of medicine. However, when a doctor states that the cause of death is due to a gunshot wound, tuberculosis, a rupturing of a blood vessel in the brain, commonly known as a stroke, coronary thrombosis, heat exhaustion, hemorrhage, or any other primary cause of death, such statement is a statement of a fact and not of opinion. It is true that this statement of fact results from an opinion formed from many sources. The diagnosis may be from considerations arrived at from long treatment; it may be from short treatment and a history of the case; it may also be from an examination of a body after death. It would not be necessary in all cases to hold an autopsy. Physical appearance and previous symptoms might well enter into the ultimate conclusion. In any event, however, it is a fact stated by the doctor which has to do with a primary physical cause and not with a mental motivation. If we were to take the appellee’s theory, it is difficult for this writer to see how we ever could implement the legislative mandate in Section 3705.05, Revised Code, regarding any statement by a doctor as to the cause of death. It must be remembered that this is only prima facie evidence. In many cases diagnoses differ, and it could be that upon a trial of an ultimate fact as to the cause of death in many obscure cases it might be determined that the cause of death was different from that given in the death certificate. As stated above, this death certificate, under the facts in this case, was competent evidence as to the cause of death and it should have been admitted.

The second question involved is whether there was any medical evidence, and medical evidence was necessary in this case, to show that there was any direct proximate causal relationship between the occupation of the decedent and his death, and whether his death was accidental within the meaning of the statute. We have heretofore determined in the preceding paragraph that the hypothetical question propounded to the doctors for the claimant was not incompetent because it contained therein the assumption that death was due to coronary thrombosis. The further question then presents itself as to whether the hypothetical question was incompetent because it was improperly framed in that it did not contain the query as to whether there was a direct or proximate relationship. This court in reviewing the decisions of the lower court in this county has heretofore held that the hypothetical question must contain either the word, “proximate” or “direct,” as modifying the word, “causal.” (See the ease of Fox v. Industrial Commission, ante, 245.) In the instant case the medical testimony for the claimant, as far as the testimony of Dr. Rusoff is concerned, violates this rule; and for that reason alone the lower court was correct in ruling out his testimony. However, the other medical testimony of the claimant, that of Dr. Harry C. Powelson, shows that the hypothetical question propounded to him ended as follows:

“Doctor assuming these facts to be true, do you have an opinion as to whether there is or is not a direct causal relationship between the incident described as occurring just preceding the death of Mr. Rath on July 1, 1948, and his death from the causes stated, which occurred as described above?”

We hold that this question does not violate the rule pronounced by this court in the Fox case, supra. Consequently, it follows that there was some medical evidence in this case of a competent nature to go to the jury as to that question in issue.

The other question presented is whether this cause of death, coronary thrombosis, could have been induced and caused by the heat to which the decedent was subjected. Under the doctrine announced in Malone v. Industrial Commission, 140 Ohio St., 292, 43 N. E. (2d), 266, it is our judgment that this becomes a question of fact for the jury. The majority of this court has been fairly strict in following the pronouncements of the Supreme Court in the case of Nelson v. Industrial Commission, 150 Ohio St., 1, 80 N. E. (2d), 430. However, in the instant case, there is a disputed question of fact as to whether the decedent ever before had symptoms of degenerative arterial disease. There is also a disputed question of fact as to whether previous degenerative arterial disease is a prerequisite to the onset of a coronary thrombosis. While the writer of this opinion has definite ideas upon the the subject, that does not, under the circumstances in this case, obviate the necessity of a trial court presenting that proposition to a jury under proper instructions.

It can only be observed in conclusion, as has been said many times before, that a decision on a directed verdict is different than a decision setting aside a verdict on a motion for a new trial on the weight of the evidence.

Under the reasoning and conclusions above set forth, the trial court was in error in directing a verdict in this case and the same should have been presented to the jury. However, the writer has grave doubts as to whether, under the medical testimony of the appellee as proffered in this case, conditionally, a verdict for the plaintiff could be sustained.

Specifically, all the grounds of error complained of by the appellant are sustained except as to the medical testimony of Dr. Rusoff, which was properly excluded. The judgment is reversed, and the cause is remanded for further proceedings in accordance with law.

Judgment reversed and catise remanded.

Montgomery and McClintock, JJ., concur.


source: Caselaw Access Project

author: Fess, P. J.

license: Public Domain

text:
    Wadsworth, Appellee, v. Dambach et al., Appellants.
    (No. 270
    Decided May 24, 1954.)

      Mr. Melvyn J. Stauffer, for appellee.

      Messrs. True & Meyer, for cross-petitioners.

      Mr. C. William O’Neill, attorney general, and Mr. Joseph S. Deutschle, Jr., for appellant.
   Fess, P. J.

On motion of appellee, an appeal on questions of law and fact was dismissed on tlae ground that the primary relief sought, as disclosed by the allegations of the petition and cross-petition, is at law. The appeal is retained for determination on questions of law. Plaintiff and cross-petitioners bring this action against the defendants for a declaratory judgment with respect to the provisions of Section 1427 General Code (Section 1533.45, Revised Code).

Section 1427, General Code, provides:

“No person shall draw, set, place, locate or maintain any net whatever on any of the reefs of the Lake Erie fishing district, except by permission of the chief of the division of wild life, or draw, set, place, locate or maintain any net whatever, in any channel or passage lying between any islands or between any island and the mainland in such district at a greater distance from the shore of such islands or mainland than one-fourth the distance across such channel or passage; nor set, locate, place or maintain any net or string of nets opposite another net or string of nets in such a manner as will close off more than one-fourth the distance across any such channel or passage; nor shall any person draw, set, place, locate or maintain any net whatever in Sandusky Bay within the area bounded by an imaginary line running from a point in the north shore one-half mile west of and parallel to the Sandusky Bay motor vehicles bridge toward the south shore to a point in said line one-half mile west of the abutment of the southerly opening of said bridge, thence in a southerly direction to a point on the south shore in the middle of the west end of Woodland Trail, Bayview Allotment, and an imaginary line running from the north shore toward the south shore one-half mile east of and parallel to the New York Central railroad bridge to a point in said line one-half mile east of the abutment of the southerly opening in said railroad bridge, thence in a southerly direction to a point in the New York Central Railroad right-of-way three thousand feet from said railroad bridge abutment; nor within one hundred and twenty-five rods of each side of a line drawn straight from the center of the new highway embankment to Eagle Island and of a line drawn straight from the center of the New York Central railroad embankment to the Baltimore and Ohio elevator dock in Sandusky for a distance of two miles from each embankment along each line. All points so designated where the above so-called imaginary lines touch the shore shall be clearly marked by some suitable marker installed by the conservation department. No person shall draw, set, place, locate or maintain any net whatever within a radius of one-half mile from a pier or breakwater built or maintained by the United States government, or at within one-half mile from the mouth of any river flowing into Lake Erie, or within one-half mile of any embankment, dam or bridge in any bay connected with or flowing into Lake Erie, or more than one-fourth the distance from shore across any bay whose waters flow into Lake Erie, or set, place, locate or maintain any net or string of nets opposite another net or string of nets in such manner as will close off more than one-fourth the distance across such bay.”

Petitioners are owners of land abutting upon Sandusky Bay and for a number of years have been engaged in commercial fishing by the use of seines along the beaches fronting upon their premises and extending into the bay. They allege that the Division of Wildlife, Department of Natural Resources, and its predecessor executive and administrative officers charged with the enforcement of the provisions of Section 1427, General Code, have, uniformly since the original enactment of the statutes incorporating such provisions, interpreted such provisions as applying only to fyke nets, trap nets and other set twine and have uniformly interpreted such acts not to apply to seines and the operation of seines and the laying out and pulling thereof within the described areas; and that relying upon said uniform interpretation of the statute, petitioners have invested large sums of money in seines and seining equipment which can not properly or profitably be operated, laid out or pulled from the shores without laying them within the described areas.

Petitioners allege further that the defendants, contrary to many years administrative interpretation which has been acquiesced in by the Legislature, are now claiming that the statute applies to the use of seines in such areas and prohibits the operation thereof therein, and that defendants threaten to enforce against petitioners the provisions thereof. Petitioners pray for a declaratory judgment and injunctive relief.

The question presented is exclusively one of statutory construction. It is elemental that where the language of a statute is plain and unambiguous and conveys a clear and definite meaning there is no occasion for resorting to the rules of statutory interpretation. McCormick v. Alexander, 2 Ohio, 65; Sears v. Weimer, 143 Ohio St., 312, 55 N. E. (2d), 413; Wachendorf v. Shaver, Recorder, 149 Ohio St., 231, 236, 78 N. E. (2d), 370. Neither is it the function of a court to set forth what it thinks the statute under consideration should provide, or to give to the statute an operation which the Legislature does not intend. Nothing may be read into or out of the statute which is not within the manifest intention of the Legislature or gathered from the act itself. Sears v. Weimer, supra.- The question is not what did the General Assembly intend to enact, but what is the meaning of that which it did enact. Slingluff v. Weaver, 66 Ohio St., 621, 64 N. E., 574.

Does the phrase “any net -whatever” as employed in Section 1427, General Code, include a “seine?” The word “whatever” neither adds nor detracts from “any net” and has been deleted in the Revised Code. According to the dictionary, a seine is a large not of a particular type. In general, words of a statute in common use will be construed in their ordinary acceptation and significance and with the meaning commonly attributed to them. Baker v. Powhatan Mining Co., 146 Ohio St., 600, 67 N. E. (2d), 714; State, ex rel. Church of the Nazarene, v. Fogo, Registrar, 150 Ohio St., 45, 79 N. E. (2d), 546, Application of this principle would exclude any further interpretation of the statute. But the question as to the meaning of a term used in a statute is not necessarily what that terms means in general use, but what it means in the particular statute in which it is found. In State, ex rel. Belford, v. Hueston, 44 Ohio St., 1, 4 N. E., 471, the court construed the words “senior judge” to mean the judge who had served longest under his present commission and not the judge who had been longest in continuous service.- Compare State, ex rel., v. Fogo, supra, holding that the term “school” did not include “Sunday school” and “Bible school.” In Baker v. Powhatan Mining Co., supra, although the court applied the principle that a word in a statute will be given its ordinary connotation, the court held that the word “strike” as used in the unemployment compensation act in-eludes cessation of work and therefore a labor dispute. There is a further principle that in construing the language of a statute regulating a business "it should be given the meaning as understood in the business rather than its ordinary meaning. 50 American Jurisprudence, 263, Section 277; 82 Corpus Juris Secundum, 652, 654, Sections 330, 331. Innumerable cases have been decided construing the meaning of ordinary words as used in a statute. Cf. 82 Corpus Juris Secundum, 676, 681, Section 338; 37 Ohio Jurisprudence, 578 to 586, Section 315 et seq. In general, in the absence of specific statutory definition, any word used in a statute may be subject to judicial interpretation. Although admittedly the question is not free from doubt, we conclude that there is sufficient ambiguity in Section 1427, General Code, for the admission of evidence to ascertain whether it was the intent of the General Assembly to prohibit the use of seines in the prescribed area.'

Incident to a determination of this appeal we have reviewed the history of the legislation culminating in the current form of Section 1427, General Code, and have examined the following statutes: 66 Ohio Laws, 348 (1869); 68 Ohio Laws, 41 (1871); Section 6968, Revised Statutes; 77. Ohio Laws, 135 (1880); 78 Ohio Laws, 247 (1881); 80 Ohio Laws, 109 (1883); 81 Ohio Laws, 94 (1884); 82 Ohio Laws, 243 (1885); 83 Ohio Laws, 189 (1886); 84 Ohio Laws, 222 (1887); 85 Ohio Laws, 271 (1888); 86 Ohio Laws, 317 (1889); 87 Ohio Laws, 275 (1890); 88 Ohio Laws, 69 (1891); 89 Ohio Laws, 26 (1892); 92 Ohio Laws, 384 (1896); 93 Ohio Laws, 303 (1898); 94 Ohio Laws, 215, 321, 349 (1900); 95 Ohio Laws, 377, 394 to 401 (1902); 97 Ohio Laws, 461, 475 (1904); 98 Ohio Laws, 257 (1906); 99 Ohio Laws, 364, 373 (1908); Sections 1425 to 1465, General Code (1910 Edition); 102 Ohio Laws, 97 (1911); 108 Ohio Laws, Pt. 1, 577, 587 (1919); 108 Ohio Laws, Pt. 2, 1107 (1920); 113 Ohio Laws, 551, 577, 697 (1929); 123 Ohio Laws, 84, 141 (1949); and 124 Ohio Laws, 290, 292 (1951).

The first act for the protection of fish applied to inland waters only. 66 Ohio Laws, 348 (1869). It employed the expression “put in, keep up, draw or use any fish net, fish seine or fish pound for the purpose of catching fish,” etc. This act, as amended in 1871 (68 Ohio Laws, 41), was carried into Section 6968 of the Revised Statutes in revised phraseology, referring to “fish pound, fish net, fish trap, or fish seine, except seines to catch minnows.” Section 6968, Revised Statutes, was frequently amended in the ensuing twenty years. The first effort to regulate fishing in Lake Erie was made in 1884 (81 Ohio Laws, 94). Prior to 3.902, the statutes made a distinction between “nets” and “seines” and in referring to “nets” employed the phrase “set, place or locate” and in referring to “nets and seines” employed the phrase “draw, set, place or locate. ’ ’

Regulation of the placing of nets in the Sandusky Bay area was first enacted in 1896 (92 Ohio Laws, 384). Section 6968-1, Revised Statutes, as amended, provided in part as follows:

“No person shall draw, set, place, locate or maintain any pound-net, seine, gill-net, trap or fish-net whatever in the waters of Lake Erie between the 15th day of December and the 15th day of March; nor in Sandusky Bay” between certain dates “no person shall set, place, locate or maintain any pound or trap-net in Lake Erie at a greater distance than eight miles from the shore or mainland. No person shall set, place, locate or maintain any pound or trap-net in such waters at a greater distance than four miles from the shore of any island, provided, however, that no person shall set, place, locate or maintain any fish-nets in any channel or passage lying between any island and any other island * * * No person shall set, place, locate or maintain any gill-net * * * in any waters of Lake Erie [except] where the water is fifty feet deep or over. No person shall set, place, locate or maintain any fish-nets on any of the reefs of Lake Erie. No person shall set, place, locate, or maintain any net whatever within a radius of one-half mile from any pier or breakwater built and maintained by the United States government * * * nor within one-half mile of any embankment, dam or bridge in any bay or river connected with or flowing into Lake Erie, nor more than one-third the distance across any bay or river whose waters flow into Lake Erie.” (Emphasis added.)

In the penalty section (6968-2) it is provided:

“* * * No person shall draw, set, place, locate or maintain any fish-net, trap, pound-net, seine, gill-nets or any device for catching fish as is by law forbidden; and any nets, seines, pound-nets, gill-nets, or other devices for catching fish, set, placed, located or maintained in violation of the provisions of the laws of the state, shall be taken wherever found by the fish wardens or other proper officer; and all such nets and other devices for catching fish are hereby declared a public nuisance and shall be forfeited to the state.” (Emphasis added.)

The fifth subparagraph of Section 6968-4, Revised Statutes, provided:

“The finding of any nets, fishing devices or other articles set or maintained in violation of any law shall be prima facie evidence of the guilt of the person or persons owning or operating the same.”

It will be noted that although the separate classification of “nets” and “seines” is not as distinctive as in prior enactments, the 1896 amendment does continue the distinction between drawing a seine and setting a net. In the 1902 amendment (95 Ohio Laws, 377, 394 to 401), the distinction between net and seine substantially disappears, but the phrase “draw, set, place, locate or maintain” is applied to “pound-net, gill-net, seine, trap-net, or fish-net whatever.” It also provided that “no person shall draw, set, place, locate, or maintain any net whatever * * * more than one-fourth the distance across any bay or river whose waters flow into Lake Erie.” In the 1908 consolidation and revision of the laws relating to fish and game (99 Ohio Laws, 364, 373) the phrase “draw, set, place, locate or maintain” was employed uniformly to nets and seines and “any net whatever. ’ ’ The provisions of this act were carried as Sections 1425 to 1465 of the 1910 General Code.

In 1911 (102 Ohio Laws, 97), Section 1439, General Code, was amended to read as follows:

“No person shall draw, set, place, locate or maintain any net whatever on any of the reefs of the Lake Erie fishing district, or draw, set, place, locate or maintain any net whatever in any channel or passage lying between any islands or between an island and the mainland in such district at a greater distance from the shore of such island or mainland than one-fourth the distance across such channel or passage; nor shall any person draw, set, place, locate or maintain any fish net within a distance of one hundred and twenty five (125) rods of a line drawn through the center of Sandusky Bay within a distance of two miles on either the west or east side of the track of the Lake Shore and Michigan Southern Railway crossing such bay.”

The prohibition against fishing on reefs is old, having been first enacted in 1883 (80 Ohio Laws, 109), but this 1911 amendment is the origin of the restriction relating to fishing in the particular area involved in the instant case.

In the 1919 codification of the fish and game laws (108 Ohio Laws, Pt. 1, 577, 589), Section 31 (Section 1420, General Code) starts out “no person shall draw, set, place, locate, maintain, or have in possession, a pound net, crib net, trammel net, fyke net, set net, seine, bar net, fish trap,” etc. Section 32 (Section 1421, General Code) provides that carp may be taken in any number, “except that they may not be taken with a net other than a seine,” etc., and also that “it shall be unlawful to set or leave stationary a seine that will prevent fish from entering or going from the mouth of any river,” and “in the Lake Erie fishing district a seine of smaller mesh may be used. ’ ’ Section 38 (Section 1427, General Code) appears in substantially its present phraseology, except that it retains the restriction with respect to drawing, setting, etc., of any fish net within a distance of 125 rods of a line drawn through the center of Sandusky Bay within a distance of two miles on either the west or east side of the track of the New York Central Railroad crossing of such bay.

On April 5, 1929 (113 Ohio Laws, 551,-577), incident to the creation of the Department of Conservation, Section 1427, General Code,'was re-enacted. The only change was the substitution of the “conservation commissioner” for the “secretary of agriculture.” But on April 27, 1929 (113 Ohio Laws, 697), an act was filed in the office of the Secretary of State amending Sections 1421, 1425, 1427 and 1447. Since each of these acts was passed .concurrently, Section 1427, as amended in 113 Ohio Laws, 577, and Section 1427, as amended in 113 Ohio Laws, 699, were each included in Page’s Ohio General Code. The only change in Section 1427 reported on page 577 of 113 Ohio Laws was the insertion of “conservation commissioner” in lieu of “director of agriculture.” But Section 1427, recorded on page 699 of 113 Ohio Laws, restored the Director of Agriculture and further provided “nor shall any person draw, set, place,-locate or maintain any (* * *) net whatever (* * *) in Sandusky Bay within one hundred and twenty-five rods on each side of a line drawn-straight from the center of the new highway embankment to Eagle Island and of a line drawn straight from the center of the Nexo York Central Railroad embankment to the Baltimore and Ohio elevator dock in Sandusky for a distance of two miles from each embankment along each lined’ The italicized portion of the quotation was new language.

In the act approved May 9, 1949 (123 Ohio Laws, 84, 141), creating the Department of Natural Resources, Section 1427 (113 Ohio Laws, 699) and Section 1427 (113 Ohio Laws, 551) were repealed and Section 1427 (113 Ohio Laws, 551) was reenacted by inserting “chief of the division of wild life” for ‘ ‘ conservation commissioner. ’ ’

On June 2, 1951, Section 1427, General Code, was again amended in its present form. 'This amendment also provided that “all points so designated where the above so-called imaginary lines touch the shore, shall be clearly marked by some suitable marker installed by the conservation department.”

We now come to an analysis of the phraseology employed in the 1951 act (124 Ohio Laws, 290) amending Sections 1421, 1425, 1427, 1427-1 and 1454, and enacting Section 1427-2, General Code. As indicated above, the statutory distinction formerly made with respect to nets and seines and setting nets and drawing seines disappeared a number of years ago.

Section 1421 provides in part that “carp, mullet, * * * sheepshead and moon-eyed shiners may be taken with a seine only.” It provides further that “on or after March 15, 1946, the meshes of one-third of each wing of a seine shall measure not less than five inches, stretched mesh, fishing measure, measured on the bar as provided in Section 1428-4 of the General Code, in the bays, * * * bordering upon * * * Lake Erie, except such of these waters that are in the Lake Erie fishing district where they may be taken xuith other nets as provided in this act.” This phraseology would seem to indicate that seines were included in the word “nets.”

The section provides further that nothing in the act shall be construed to permit the use of any net whatever in any stream flowing -into Lake Erie east of the mouth of Sandusky Bay except a minnow net. The section provides further that on or after January 1, 1952, “no person shall draw, set, place, locate or maintain any net or seine whatever except minnow net in that portion of Sandusky Bay or Lake Erie” in the area of Cedar Point, Johnson’s Island and the loading dock of the Baltimore & Ohio Railroad. The section provides also that no person shall draw, set, place, locate or maintain any net whatever, except a minnow net, in another portion'of Sandusky Bay.

In Section 1425 it is provided that no person shall use in fishing in the Lake Erie fishing district any gill net, bar net, trap net, crib net, fyke net, pound net, seine or trotline, without having painted or stamped thereon the name of the owner, etc.

In Section 1427, the interpretation of which is in question in the instant case, the phrase “draw, set, place, locate or maintain any net ivhatever” is employed three times without specifically naming any particular class of nets or mentioning ‘ ‘ seines. ’ ’

Section 1427-1 provides that no person shall draw, set, place, locate or maintain any net whatever within one-quarter of a mile of any island or reef in Lake Erie, etc.; and that no person shall draw, set, place, locate or maintain any net whatever, except a seine, dip net or bar net within one-quarter of a mile of the mainland. This section provides further that no seine or net of any kind, except minnow net, shall be placed, located, pulled or maintained, etc.; and no seine shall be set, placed, located or maintained in Sanduskky Bay, etc. From analysis of these several provisions of the 1951 act, it is apparent that in certain instances the term “net whatever” was intended to include “seine” and that in several instances a seine is excepted from the term “net,” but, nevertheless, there is sufficient ambiguity presented to receive evidence relating to the intention of the Legislature.

As hereinbefore indicated, in construing the language of a statute regulating a business, it should be given the meaning as understood in the business rather than its ordinary meaning. 50 American Jurisprudence, 263, Section 277; 82 Corpus Juris Secundum, 652, 654, Sections 330, 331.

Section 1427, General Code, undertakes to regulate commercial fishing and is penal in character. Penal statutes and statutes which impose restrictions upon the conduct of business must be strictly construed and their scope can not be extended beyond the usual meaning of their terms. Clymer v. Zane, 128 Ohio St., 359, 191 N. E., 123, 93 A. L. R., 1245. The evidence is undisputed that in the business of commercial fishing in the Sandusky Bay area the term seine is distinguished from and is not includable within the term net.

There is unoontradicted evidence in the record that from 1911 to 1949 no effort was made by the officers in charge of the enforcement of the provisions of Section 1427 to prohibit the use of seines in the prescribed area. Lack of enforcement alone is insufficient to establish administrative interpretation of a prohibitory statute. Louisville & Nashville Rd. Co. v. United States, 282 U. S., 740, 75 L. Ed., 672, 51 S. Ct., 297; Union Stock Yard & Transit Co. v. United States, 308 U. S., 213, 84 L. Ed., 198, 60 S. Ct., 193; Central Elevator Co. v. People, ex rel., 174 Ill., 203, 51 N. E., 254, 43 L. R. A., 658. Nevertheless, nonaction by administrative officers may be indicative of lack of statutory power. In re Kansas City Star, 346 Mo., 658, 142 S. W. (2d), 1029, 130 A. L. R., 1168; Hennessey v. Personal Finance Co. of N. Y., 176 Misc., 201, 26 N. Y. Supp., (2d), 1012; State, ex rel, v. Schaaf, 198 Wash., 52, 86 P. (2d), 1112.

“Authority actually granted by Congress of course can not evaporate through lack of administrative exercise. But just as established practice may shed light on the extent of power conveyed by general statutory language, so the want of assertion of power by those who presumably would be alert to exercise it, is equally significant in determining whether such power was actually conferred.” Federal Trade Commission v. Bunte Brothers, Inc., 312 U. S., 349, 352, 85 L. Ed., 881, 61 S. Ct., 580.

Furthermore, it is well known that frequently proposed legislation is not only recommended by but is actually drafted by administrative officers prior to its introduction.

Lack of enforcement, coupled with testimony of administrative officers that in their opinion the statute was not intended to.prohibit seining, affords a predicate to draw an inference supporting a finding so construing the legislative intent, especially when such administrative interpretation is long continued and the Legislature has not seen fit to change such interpretation in the passage of amendments to the statute.

Where a statute has received a contemporaneous and practical interpretation and the statute as interpreted is re-enacted, the practical interpretation is accorded greater weight than it ordinarily receives, and is regarded as presumptively the correct interpretation of the law. While the acquiescence of the Legislature seems to be of small matter where there is no evidence to the effect that the statute or contemporaneous interpretation was called to the Legislature’s attention, it is believed that when action has been taken upon a statute by the Legislature, and where a practical and contemporaneous interpretation was called to its attention, the failure of the Legislature to change the interpretation should be regarded as presumptive evidence of its correctness. 2 Sutherland Statutory Construction (3 Ed.), 523, Section 5109.

But after an extended period of contemporaneous interpretation, the defendants charged with the enforcement of the act have overruled such prior construction. The basic ground for sustaining contemporaneous interpretations of long standing is the fact that reliance has been placed thereon by the public and those having an interest in the interpretation of the law. The record in the instant case discloses that the petitioners have so relied upon the former administrative interpretation. The change in interpretation merely presents a conflict in the evidence to determine the greater weight thereof for consideration by the court in arriving at a proper judicial construction of the statute. Administrative interpretation of a given law, while not conclusive, is, if long continued, to be reckoned with most seriously and is not to be disregarded and set aside unless judicial construction makes it imperative to do so. Industrial Commission v. Brown, 92 Ohio St., 309, 311, 110 N. E., 744, L. R. A., 1916 B, 1277; State, ex rel. Automobile Machine Co. v. Brown, Secy, of State, 121 Ohio St., 73, 76, 166 N. E., 903; State, ex rel. Schweinhagen, v. Underhill, Clerk, 141 Ohio St., 128, 132, 46 N. E. (2d), 861.

It is contended by the defendants that administrative interpretation should be established only by formally adopted written regulations, or premised upon opinions of the Attorney General. Most eases dealing with administrative construction arise under such formal regulations and opinions. In the instant case there is no evidence of the promulgation of any formal regulation or the rendering of any opinion by the Attorney General, but there is testimony from two former commissioners of conservation that incident to their administration of the provisions of Section 1427, General Code, they construed them as prohibiting fishing by stationary or set nets but not by the use of seines. Such testimony does not have as high a probative value or weight as a formal administrative regulation, but is admissible for consideration by the trier of the facts.

In the light of the evidence in the instant case, the finding of the Common Pleas Court is not manifestly against the weight of the evidence. Having so construed the statute upon the evidence, this court can not hold that the judgment is contrary to law.

Error is assigned to the admission of testimony over objection of a witness who testified that a conservation officer in charge of the Sandusky Bay area, since deceased, told the witness he could seine in that area and that the act did not apply to seines. This is a type of hearsay that might fall into the category of a historical fact, but the admission of what a deceased person said during his lifetime violates the fundamental basis of the hearsay rule. However, the admission.of this particular item of testimony can not be found prejudicial, in the light of other competent testimony concerning the same matter.

Error is also assigned to the overruling of the demurrer to the petition on the ground that enforcement of a criminal statute will not be enjoined unless such statute is clearly unconstitutional and its enforcement would infringe upon property rights, thus causing irreparable injury for which there would be no adequate remedy at law. Although the petitions contain allegations of unconstitutionality, the basis for the complaint is the enforcement of the provisions of the act against petitioners without statutory authority. The allegations are sufficient to state a cause of action for a declaratory judgment, and the demurrer was therefore properly overruled.

Error is also assigned to the granting of the injunction. In dismissing the appeal on questions of law and fact, we held that the allegations with respect to injunctive relief were superfluous and unrelated to the averments stating a cause of action for a declaratory judgment. The prayer for injunctive relief is merely incidental to obtaining a declaratory judgment and full and complete relief was afforded by the entry of the declaratory judgment.

It is, therefore, concluded that the judgment be modified by the elimination of all provisions therein for an injunction and, as so modified, the judgment is affirmed. The temporary injunction issued by this court is dissolved.

Judgment accordingly.

Conn and Deeds, JJ., concur.


author: Griffith, J.

text:
    Floyd, Appellee, v. City of Cleveland, Cleveland Transit System, Appellant.

      (No. 23315
    Decided January 12, 1955.)

      Mr. Chester K. Gillespie, for appellee.

      Mr. Robert F. Mooney and Mr. Robert Fletcher, for appellant.
   Griffith, J.

Plaintiff, while riding on a trackless trolley bus of the defendant, was requested by the operator to restrain an epileptic during a seizure so as to avoid injury to the other passengers on the bus.

Plaintiff’s assailant entered the bus and, after a brief conversation with the operator, fell to the floor in an epileptic attack. The plaintiff responded to the request of the operator after attempts to revive the man were unsuccessful and went to help the man, who was lying on the floor.

While the plaintiff was ministering to the epileptic, the bus driver said, “Well, I believe I’ll call the ambulance,” and then departed from the bus.

In the absence of the operator, the man who had collapsed regained consciousness, rose to his feet and asked the plaintiff, “What in hell are you doing to me?” and then struck the plaintiff a powerful blow in the face, breaking his nose; then he jumped from the bus and ran up the street. The testimony indicates clearly that the plaintiff’s assailant was just another passenger on the bus.

This is not an action for the tort of a passenger upon the plaintiff, but is an action in negligence against the carrier for its failure to exercise the highest degree of care for the protection of the plaintiff consistent with the practical operation of the bus.

In 10 American Jurisprudence, 256, Section 1439, we find the following:

“A carrier is liable for injuries inflicted upon one of its passengers through the negligence or wilfulness of a fellow passenger or a stranger when, by the exercise of proper care on its part, the act of violence might have been foreseen and prévented. In general, a common carrier is held to a high degree of care and vigilence to protect its passengers from the acts of fellow passengers or strangers, and it is liable for any injuries sustained as a result of its negligence in this respect. The employees of a carrier are regarded as invested with all the powers of a police officer for the purpose of protecting passengers from assault by fellow passengers or strangers. The duty of a carrier to protect passengers from acts of fellow passengers, as well as the extent of its liability for failure to adequately discharge this duty, is considerably less in England than in the United States.”

At page 259, Section 1441, we find the following :

“A carrier is liable for acts of misconduct or improper conduct on the part of its passengers or strangers resulting in injury to a fellow passenger only in the event that the employees of the carrier knew or, in the exercise of due care, should have known of the imminency of the tort and failed to prevent its occurrence after a sufficient opportunity to do so. It is not essential that the employee of the carrier possess actual knowledge to the effect that improper conduct is about to take place if, with the exercise of proper care, he could have learned of circumstances indicating the probability of the tortious conduct or behavior.”

And at page 273, Section 1466, we find the following:

“A common carrier is not liable for an assault by a stranger on a passenger if it could not have anticipated and prevented the assault by the exercise of the proper degree of care and prudence. A carrier will be held liable, however, for an assault on a passenger by a stranger, if it could have been anticipated and prevented by the exercise of reasonable care and diligence.”

Did the' bus driver know from all the circumstances that injury to this plaintiff passenger was threatened or impending?' Should he have anticipated the assault? The epileptic had fallen and was lying prostrate on the floor of the bus. The operator called upon the plaintiff to assist him in the emergency. Did the operator leave the plaintiff in a known perilous condition? He said, “I’ll call the ambulance.” He left no one in charge of the bus except the plaintiff.

In the exercise of proper care on the part of the operator of the bus, should this assault not have been foreseen and prevented?

The operator was invested with all the powers of a police officer for the purpose of protecting passengers on his bus, and for the purpose of protecting passengers from assault by fellow passengers or strangers.

In the case of Paal v. Cleveland Ry. Co., 11 Ohio App., 462, the first paragraph of the syllabus is as follows:

“The liability of a carrier for injuries inflicted upon a passenger by reason of an unprovoked assault by a fellow passenger, depends upon the presence or absence of evidence showing that the employee of the carrier knew, or by the exercise of due care should have known, from all the facts and circumstances, that injury to the passenger was threatened or impending; and in the absence of such evidence, it is not error for a trial court to enter nonsuit for the carrier at the conclusion of plaintiff’s evidence.”

In the opinion, on pages 464'and 465, we find the following:

“The rule governing such a situation seems to be that a carrier of passengers for hire is liable or not liable for an injury inflicted upon a passenger by reason of a third person maldng an unprovoked assault upon him dependent upon the presence or absence of evidence showing that the employees of the carrier knew, or by the exercise of due care should have known from all facts and circumstances in the case, that injury to the passenger was threatened or impending. The facts and circumstances of the case must disclose a situation such that the employees in the exercise of the highest degree of care should have anticipated the impending assault.”

The trial court found for the plaintiff, and we cannot say that the conclusion of the court is manifestly against the weight of the evidence. For this reason, the judgment is affirmed.

Judgment affirmed.

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

Grieeith, J., of the Seventh Appellate District, and Doyle and Hunsicker, JJ., of the Ninth Appellate District, sitting by designation in the Eighth Appellate District.


author: Conn, J.

text:
    City of Toledo, Appellee, v. Hammond, Appellant.
    (No. 4676
    Decided February 5, 1953.)

      Messrs. Cobourn, Yager, Notnagel, Smith & Moran, for appellee.

      Mr. Louis R. Young, police prosecutor, and Mr. Robert A. Burns, for appellant.
   Conn, J.

Defendant was arrested on an affidavit filed in the Municipal Court of Toledo charging him with a violation of Section 21-6-8 of the Traffic Code of Toledo, which is in identical language with Section 6307-20, General Code, a section of the Traffic Code of Ohio, as codified and re-enacted in 1941.

The ordinance referred to in terms prohibits the “reckless operation of vehicles,” and is as follows:

“Section 21-6-8. ■ Reckless Operation of Vehicles. No person shall operate a vehicle, trackless trolley or street ear without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles, trackless trolleys and street cars, and so as to endanger the life, limb or property of any person while in the lawful use of the streets or highways.”

Upon trial, the defendant was found guilty. From the judgment of conviction, defendant appeals to this court on questions of law, and fact. Upon the submission of thq cause, the appeal on questions of law and fact was dismissed sua sponte and the cause retained on questions of law.

Numerous errors of the trial court are assigned. However, the alleged errors discussed in the brief and oral argument, briefly stated, are:

1. The ordinance upon which the charge is grounded is too vague and indefinite to support the charge laid against defendant, and for conviction, and that rights guaranteed to defendant under the Constitution were violated.

2. On the evidence introduced, no offense was proved.

3. The court erred in its ruling as to admission of evidence.

Relative to the first assignment of error, we call attention to the well-known rule that a court does not consider and determine the constitutionality of an ordinance or statute unless the disposition of the case requires it to do so in order to secure the defendant in his legal rights. In other words, if there is another error assigned upon which the court can satisfactorily dispose of the case and rest its judgment, the alleged unconstitutionality of the act upon which the charge is predicated is regarded as immaterial. 8 Ohio Jurisprudence, 302, Section 199; Village of Strongsville v. McPhee. 142 Ohio St., 534, 53 N. E. (2d), 522.

The second assignment of error is grounded on the claim that the evidence wholly fails to sustain the charge laid against defendant. The evidence in support of the charge was brief and of little probative value. One witness was called by defendant, and counsel stipulated that if defendant and his wife were called to testify their testimony would corroborate the testimony of this witness.

The record discloses that the complaining witness and defendant, at the time the charge was made, resided in adjoining properties on Ontario Street in Toledo; that on the afternoon of the day the alleged violation of the ordinance occurred, the complaining witness parked a Ford motor vehicle on the street in front of defendant’s premises; that thereupon she went into the house where she lived and sat by the front window; that there was parking space at the time in front of the property where this witness lived; and that later in the same afternoon, defendant, accompanied by his wife and a guest, undertook to park his motor vehicle in front of his own property for the convenience of his passengers and to unload baggage, and in doing so pushed complainant’s motor vehicle forward to provide adequate space.

The evidence shows further that complainant’s vehicle was unoccupied at the time; that no violent force was directed against the vehicle of complainant and no damage inflicted. It may be inferred from the evidence that the front bumper of defendant’s vehicle came in contact with the rear bumper of complainant’s vehicle, and that the bumpers of these vehicles were of the kind commonly placed on the front and rear of motor vehicles and are so placed for the purpose of protecting these vehicles and absorbing the shock if and when contact is made.

It is knowledge common to every observing person that the bumper on a motor vehicle is designed to receive bumps, and the size and strength of bumpers and the purpose which they serve' are well known, and are facts of which the court takes judicial notice. It is common knowledge also that the “parking problem” includes not only a place to park but the exacting task of maneuvering the vehicle in proximity with and parallel to the curb or side of the street. A like task arises when it is desired to move the vehicle from the parking space and into the flow of traffic.

The court takes judicial notice that the laborious task of placing a motor vehicle in a parking space at the curb or removing it therefrom very frequently brings bumpers into contact and that this is the common experience of all who operate motor vehicles.. Under these circumstances, when such contact is made and it is not of a violent character but is made with due regard for the legal rights of others, both in respect to person and property, no violation.of the ordinance occurs and in our opinion a charge so made could not be sustained.

The evident purpose of the ordinance is to impose a duty on all persons using a public street to have due regard for the safety and legal rights of other persons thereon, and not to endanger the life, limb or property of any person in the lawful use of such street.

On the record before us, no person had been endangered in his life or limb and no property damaged. There is no evidence in the record of any violent or uncontrolled contact with complainant’s motor vehicle. It is pertinent to note that the time and energy of the courts should not be employed to hear matters unworthy of serious consideration, and thus be diverted from their normal functions, nor should the courts be called upon 1o serve as a channel for the venting of personal spleen and ill-humor.

The charge laid in the affidavit is wholly unsupported by the evidence and no violation of the ordinance is shown. The conclusion reached makes it unnecessary to consider the remaining assignments of error.

On the record in this case, the defendant is entitled to be discharged, and it is so ordered.

Judgment reversed and defendant discharged.

Fess and Savord, JJ., concur.


author: Per Curiam.

text:
    The State of Ohio, Appellee, v. Belle Vernon Milk Co., Appellant.

      (No. 673
    Decided June 1, 1954.)

      Mr. Bernard W. Freeman, prosecuting attorney, for appellee.

      Messrs. Young & Young and Mr. Wm. L. Colfee, for appellant.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Common Pleas Court finding the defendant guilty and imposing a fine of $200 and costs. The indictment charged that the defendant “did unlawfully offer for sale and sell milk marked as grade A and the butter fat content of twenty-seven bottles of which milk averaged less than 3.5 per cent butter fat.as required by law.” Section 3717.04, Revised Code (Section 12719, General Code), and Section 3717.99, Revised Code.

Section 3717.04, Revised Code, provides:

“No person shall sell, exchange, deliver, or have in his custody or possession with intent to sell or exchange, or expose or offer for sale as pure milk, any milk from which the cream or part thereof has been removed.
“Sections 3717.01 to 3717.13, inclusive, of the Revised Code do not prohibit the sale, exchange, or delivery or the having in custody or possession with intent to sell, exchange, or deliver, standardized milk, which is milk of which the original fat content has been changed by partial skimming or by the addition of skimmed milk, cream, or milk rich in fat, and which contains not less than three and one half per cent of milk fats and twelve per cent total solids, if the vessel containing such milk is labeled ‘standardized milk’ and if the percentage of butterfat contained in such milk or in unstandardized milk sold at retail is plainly stated on the label. A two tenths of one per cent tolerance shall be allowed on one or more bottles, cans, or vessels, but an average of twenty-five bottles, vessels, or cans shall contain the required stipulated percentage of fat. ’ ’

The indictment does not in terms follow the statute, although the terminology of the section is awkward and unclear. It will be observed that the sale as pure milk of any milk from which the cream or any part of it has been removed is prohibited. The section provides further that Sections 3717.01 to 3717.03 relating to adulterated milk and cream do not prohibit the sale of standardized milk containing not more than 3.5 per cent of milk fats if the vessel containing such milk is labeled “standardized milk” and if the percentage of butterfat contained in such milk or in unstandardized milk sold at retail is plainly stated on the label. Section 12719, General Code, applied the exception to the provisions “of this chapter” rather than to the preceding three sections. Reference to Sections 3717.01 to 3717.13 only in Section 3717.04 is no doubt a mistake incident to the enactment of the Revised Code. But it is unnecessary for us' to determine upon this appeal whether the exception provided in Section 3717.04 is intended to apply to the sale of milk from which cream has been removed.

The evidence discloses that the County Sanitarian of Huron County purchased milk from the Kroger store and from the Sternbaum Supermarket in Norwalk between July 31 and August 19, 1953, and that the contents of the 27 paper containers, upon laboratory test, averaged less than 3.5 per cent butter fat. Although the sanitarian could not recall the exact language printed on the containers, he said they were labeled vitamin I) homogenized milk, bottled by Belle Vernon Milk Company. None of these containers was introduced in evidence. Although the witness stated that the butterfat content was printed on the cartons, he was not asked about the percentage. He could only describe the language on the containers in general terms. Although he said the milk winch he purchased from the two stores was bottled by the defendant, it is obvious that he had no such knowledge except as he gleaned it from the legends on the cartons.

The evidence discloses that the milk was sold by the two retailers in Norwalk and there is no competent proof that the defendant sold such milk. The evidence also lacks that degree of certainty required in a criminal case to prove that the milk tested in the laboratory was that purchased in Norwalk. There is likewise no evidence that the retailers in Norwalk were acting as agents or distributors for the defendant.

Although proof of guilt may be established by circumstantial evidence, where the evidence shows that an unlawful sale has been made by a party other than the defendant, there must be additional proof that such sale was at the instance of the defendant in order to support a conviction. In a civil case, proof of the legend on the container may be sufficient to support an inference that the milk was bottled by the defendant, but it is insufficient to predicate a further inference that it whs sold by the defendant. Cf. Sobolovitz v. Lubric Oil Co., 107 Ohio St., 204, 140 N. E., 634.

The judgment of the Common Pleas Court is reversed and the defendant discharged.

Judgment reversed.

Fess, P. J., Conn and Deeds, JJ., concur.


author: Wiseman, J.

text:
    Frings, Appellee, v. Farm Bureau Mutual Fire Ins. Co., Appellant.
    (No. 496
    Decided February 28, 1955.)

      Messrs. Faust & Harrelson, for appellee.

      Messrs. Shipman & Shipman, for appellant.
   Wiseman, J.

This is an appeal on questions of law from a judgment rendered for the plaintiff by the Common Pleas Court of Miami County.

The petition consists of two causes of action arising out of damage to the residence of the plaintiff caused by a fire. Plaintiff alleges that the damages sought to be recovered in both causes of action were covered by the insurance policy issued by the defendant company.

In the first cause of action plaintiff asks for damages caused to the dwelling house by reason of the fire. Defendant confessed judgment for the amount claimed in the first cause of action. In the second cause of action, plaintiff asks for damages caused to the furnace, consisting of a fire hox boiler, thermostat and electrical equipment which operated the stoker furnace.

The question for determination is stated concisely by counsel for appellant in their brief as follows: Whether loss of the furnace, controls, and electrical equipment operating the furnace comes within the terms of the policy of insurance, it being contended by appellant that such loss was the result of a “friendly” fire, and, therefore, such loss is not covered by the policy. The trial court held that the fire was a “hostile” fire and that the loss was covered by the policy.

The sole assignment of error is that the judgment rendered in favor of the plaintiff was contrary to law.

The case was submitted to the court on an agreed statement of facts, a jury being waived.

The pertinent provisions of the policy are:

“Insurance under item 1 on page one shall cover the dwelling building described therein, including building equipment and fixtures and outdoor equipment pertaining to the service of the premises (if the property of the owner of the dwelling), while located on the described premises, but not trees, shrubs, plants or lawns. ”

It is well established that the furnace and controls installed in a residence are a fixture. Holland Furnace Co. v. Trumbull Savings & Loan Co., 135 Ohio St., 48, 19 N. E. (2d), 273. Thus it would seem that under the plain provisions of the policy plaintiff is entitled to recover. But the defendant company contends that the fire, with respect to the damage to the furnace and controls, was a “friendly” fire and not covered by the policy. There is little case law in Ohio on this question. In 29 American Jurisprudence, 767, Section 1016, it is stated:

“A distinction is usually drawn by the courts between a friendly and a hostile fire.”

In 45 Corpus Juris Secundum, 861, Section 809, it is stated:

“While there seems to be authority to the contrary, it must be a hostile fire, that is, one which becomes uncontrollable or breaks out from where it was intended to be, and becomes a hostile element. ” .

The principle is stated by the Supreme Court of Idaho in Mode, Limited, v. Fireman’s Fund Ins. Co., 62 Idaho, 270, 110 P. (2d), 840, as reported in 133 A. L. R., 791, as follows:

“The meaning of the term ‘loss by fire’ in fire insurance policies as being a ‘hostile’ and not a ‘friendly’ fire has been so extensively and long recognized that it must be considered, even under liberal construction, that both insured and insurer contracted with such definition in mind as determinative of what losses are covered.”

The question presented to this court is whether the fire was a “friendly” fire or a “hostile” fire. We are in entire accord with both the logic and conclusions of Judge Porter, and are disposed to adopt his opinion as our own. We quote a major part of his opinion as follows:

“The claim arose out of a fire which occurred December 17, 1951 — one which originated with a defective thermostatic control on the stoker. The defect was such that the stoker fed coal to the furnace on the insured’s property continuously, the heat becoming so intense that it melted the outer wall of the fire box and the flames escaped into the water compartment, through the outer wall of the water compartment and ignited the property insured.

“While the stipulation does not cover it, I think it fair to assume that if the fire had pursued its natural course, it would have completely destroyed the insured property.

“The language of the contract is the usual language employed in such policies and insures ‘against all direct loss by fire * * * except as hereinafter provided, to the property * * V The perils not included are set out on page 2, beginning at line 11, but none is applicable.

“Such contracts must be construed most strongly against the insurer. Stillpass v. Fidelity & Guaranty Fire Corp., 71 Ohio App., 197 (1942). Where, by their express terms, such policies insure the plaintiff against loss or damage to his buildings by fire as the one does in this case, they are broad enough to include all fires however originating, and all damages therefrom regardless of their character. If such policies expressly except certain occasions of fire, all other occasions or causes are included in the risk. An exception which the insurer desires to enforce should be plainly expressed. Appleman, Insurance Law and Practice, Volume 5, Section 3082.

“However, the courts make distinctions between friendly and hostile fires,.saying that ‘fire’ as used in fire policies means a ‘hostile’ fire and not a ‘friendly’ fire. Pacific Fire Ins. Co. v. C. C. Anderson Co. of Nampa (D. C. Idaho), 47 P. Supp., 90.

“ ‘If the fire burns in a place where it is intended to burn, although damages may have resulted where none were intended, the fire is a friendly fire, and the insurer is not liable for damages flowing therefrom. A friendly fire refers to one which remains confined within the place intended, and refers to a fire in a furnace, stove, or other usual place. A hostile fire, on the other hand, means one not confined to the place intended, or one not intentionally started; and it is generally considered to refer to such a fire which, if it had pursued its natural course, would have resulted in a total or partial destruction of the insured property. When a friendly fire escapes from the place it ought to be to some place where it ought not to be, causing damage, it becomes a hostile fire for which the insurer is liable. ’ Appleman, Insurance Law and Practice, Volume 5, Section 3082.

“One of the authorities for the foregoing text statement is the leading case of Progress Laundry & Cleaning Co. v. Reciprocal Exch. (Tex. Civ. App., 1937), 109 S. W. (2d), 226 at 227, which appears to be on all fours with the case at bar. In other words, the dispute was as to the insurer’s liability for damages to a furnace from a fire which originated with the furnace and escaped from it to the insured property. As to the insurer’s liability for the damage to the boiler the court said that when the lower tubes of a boiler melted and the fire under the boiler entered and burned in the compartment intended for water (this case) a fire became a hostile fire, so that damages thereafter occasioned to the boiler were within the coverage of a fire policy.

“The court, therefore, held that when the fire became hostile, ‘ all the damages to the boiler and its component parts thereafter occasioned by the fire were such as coming under the coverage of the policy. ’

“This court feels that the rule as stated by the Texas court is supported both by reason and authority. Its application to the agreed facts requires a finding for the plaintiff.

“The cases cited by the defendant have been examined and found distinguishable. They are:

First Christian Church v. Hartford Mutual Ins. Co., decided by the Tennessee Court of Appeals, April 20, 1954, Vol. 8, P. 277, C. C. H. ‘Fire and Casualty Cases’; McGraw v. Home Ins. Co. of New York, 93 Kan., 482, 144 P., 821; American Towing Co. v. German Fire Ins. Co., 74 Md., 25, 21 A., 553; and Mitchell v. Globe & Rep. Ins. Co., 28 A. (2d), 803.

“The Tennessee case contains an excellent review of the authorities. It involves a claim for boiler damage but ‘there was no appreciable damage done to anything other than the furnace.’

“That being the case, the court said, ‘under the circumstances it is evident that this was a “friendly” as distinguished from a “hostile” fire which caused the damage to the furnace.’

‘ ‘ The Kansas case involved a claim for damages to a laundry boiler, and the question before the court' was whether the fire was intentionally set, or whether the fire was caused through the negligence of an employee. It was not a case such as the one before this court where the fire was communicated to the insured property.

ÍÍ # # *

“The case of Mitchell v. Globe, etc., supra, was one growing out of a claim for damage to a boiler where the flame was not communicated to the insured property so it is not applicable.

“But the early Atlantic case, the American Towing case, did involve a claim for damages to a boiler, and for damage to the insured boat, to which flames from the boiler were communicated. It has received no discussion by leading text writers on the subject, but seems rather to be limited to marine losses by fire (Appleman, supra, Section 3261, n. 12 [P. 413]).

“While there are no Ohio cases in point, the case of Still-pass v. Fidelity & Guaranty Fire Corp., supra, should be noted because it arose out of facts which called into question whether or not a fire was ‘friendly’ or ‘hostile.’

‘ ‘ There is no statement of facts, but from what was said in the opinion, it is reasonable to assume that there was originally an innocent fire, followed by an explosion of fumes from something stored on the premises, followed by fire which was communicated to the property insured.

“After reviewing the Ohio cases relied on by the appellant, Judge Matthews noted that the distinction between a ‘friendly’ fire and a ‘hostile’ fire, while no doubt sound when properly construed and applied, is of very little value in reaching a conclusion in a specific case which turns on the application of the exact language of the policy to the circumstances disclosed by the evidence. ‘It requires more discrimination,’ he said, ‘than that expressed by such slogans. In this case the fire was both friendly and hostile. While it was serving the purpose intended, it could be said to be friendly, but when it got beyond control and became destructive, it ceased to be friendly and became hostile. ’

“That respected court cited with apparent approval the holding of Renshaw v. Missouri State Mut. Fire & Marine Ins. Co., 103 Mo., 595, 15 S. W., 945, in which the loss sought to be recovered resulted from a fire which followed an explosion set off by a gas flame’s ignition of fumes of explosives stored. Of particular interest in that decision is the statement cited with approval — ‘It could make no difference how innocent the original fire, whether used to light or heat a room, or to run machinery ; if communicated to the property insured, the loss would be by fire. It is seldom, conflagrations originate from other causes than that of an innocent and lawful fire.’ (Emphasis supplied.) ”

We also conclude that the fire was a “hostile” fire; that the loss occurring to the furnace and controls was caused by a “hostile” fire; and that the plaintiff is entitled to recover.

We find no error in the record prejudicial to the rights of the appellant; the judgment is affirmed.

Judgment affirmed.

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

      “The furnace was a single circulating steam furnace, with a fire box entirely enclosed with the exception of the door and smoke outlet, cast-iron jacket (which not only served as an outer wall of the fire box, but also as an inner wall for the boiler), an outside wall of the furnace (which also served as the outer wall of the boiler) so spaced that the water from which steam was generated in the boiler surrounded' the box. The outside wall of the furnace was also cast iron and was covered with asbestos.”


author: Matthews, P. J.

text:
    Longo, Appellee, v. Walter, Appellant.
    (No. 7901
    Decided November 29, 1954.)

      Messrs. Hoover, Beall, Whitman & Eichel, for appellee.

      Messrs. Weinberger & Grad, for appellant.
   Matthews, P. J.

This is an appeal on questions of law and fact in an action for specific performance of a contract for the purchase of real estate. At the trial in this court it developed that there was no dispute that the plaintiff signed a written document in which it was recited that the defendant, appellant herein, “has contracted to sell” and John Longo “has contracted to buy” the property therein described for $16,000. This was followed by the provision that “title to be free, clear and unencumbered and shall be conveyed by deed of general warranty with release of dower by seller’s spouse. ’ ’

The testimonium clause was as follows: “In witness whereof, August Walter, ........, his wife, the sellers, and John Longo, the buyer, have hereunto set their hands this the 4th day of February, 1953. ’ ’

The only signatures that followed this clause were those of August Walter and John Longo. August Walter’s wife did not sign.

The first contention of the defendant is that inasmuch as it appears on the face of this written document that August Walter and his wife are described in the testimonium clause as the “sellers” no contract between August Walter and John Longo came into existence — that unless and until Mrs. Walter signed, there was no intent to become bound.

It is correct, as stated in 12 American Jurisprudence, 519 and 520, Section 23, that “A contract is not made so long as, in the contemplation of both parties thereto, something remains to be done to establish contract relations. The law does not make a contract when the parties intend none, nor does it regard an arrangement as completed which the parties thereto regard as incomplete.”

Therefore, the question is whether August Walter and John Longo had the intent when they signed and exchanged copies (which they did) to become bound to one another, notwithstanding the failure or refusal of Mrs. Walter to sign. That is a question of fact to be determined from all the circumstances.

The document , contains internal evidence that Mrs. Walter was not regarded by August Walter and John Longo as one of the contracting parties. In the first paragraph, which we have quoted, she is not mentioned as one of the contracting parties. It is true that in the testimonium clause Walter’s wife is mentioned and described as one of the “sellers,” but it is manifest that had she signed, she would not have been bound by any of the contractual provisions other than the provision relating to the release of dower.

There certainly is no condition precedent to its taking effect expressed in the contract.

Plaintiff, appellee herein, offered evidence aliunde to prove the intent of the parties. One of the items was a written agreement or offer by Mr. Walter executed the day before the written contract sued upon was executed. The plaintiff -also introduced evidence of conversations between Walter and Longo at the time of signing that it was not necessary for Mrs. Walter to sign, and other evidence indicating that Walter signed knowing that Mrs. Walter would not sign and manifesting an intent to contract notwithstanding Mrs. Walter’s refusal to sign.

The defendant accepted a payment of $500 upon the purchase price and delivered to the plaintiff the deed conveying the property to him (Longo), so that Walter would have a description to use in preparing the new deed.

We are of the opinion that all this evidence was competent and relevant upon the issue of the intent of the parties in signing this document. None of it varies the terms of the written document. All it does is to supply the purpose of the parties in executing it.

We conclude that this document bound the parties, notwithstanding the absence of Mrs. Walter’s signature.

Finally, it is contended that specific performance of this contract cannot be enforced because Mrs. Walter cannot be required to release her inchoate right of dower. It is said that as Walter could not have obtained specific performance and as the rule in equity requires that the remedy must be mutual, Longo is likewise precluded. We do not think the equitable rule leads to this conclusion. Walter agreed to convey a free, clear, and unencumbered title by deed of general warranty. If he did not have that title at the time the contract was entered into, it was his obligation to get it in time to perform. If he had or controlled a partial title, it was the option of the buyer to say whether he desired the title which was in the power of the seller to convey, with an equitable abatement from the purchase price. In 81 Corpus Juris Secundum, 451, Section 21, it is said: "Specific performance with a proportionate abatement for the price may be awarded notwithstanding the defect in land or title is considerable." And on the same page, it is stated that:

"A court of equity will not compel a wife to release her inchoate dower right or similar statutory right under a contract of her husband to sell the land to which she is not a party, or direct the husband to procure his wife to join him in the conveyance ; but the failure or refusal of the wife to execute the deed is no obstacle to specific performance against the husband where the purchaser is willing to pay the full purchase price.”

See, Cities Service Oil Co. v. Viering, 404 Ill., 538, 89 N. E. (2d), 392, 13 A. L. R. (2d), 1448, and annotation.

In view of the fact that the plaintiff has agreed to accept a conveyance by a general warranty deed without any abatement from the purchase price and without any determination of the value of the inchoate right of dower, we are of the opinion that the equities favor the plaintiff, and that he is entitled to specific performance.

A decree similar to that entered in the Common Pleas Court may be presented.

Judgment accordingly.

Ross and Hildebrant, JJ., concur.


text:
    Clemens, Appellant, v. Bishop, Appellee.
    (No. 667
    Decided April 19, 1954.)

      Mr. R. W. Kilbourne and Messrs. Young & Young, for appellant.

      Messrs. Freeman & Freeman, for appellee.
   Fess, P. J.

This is an appeal on questions of law from a judgment entered upon a verdict for defendant. The litigation arises out of an automobile collision at or near the intersection of Hasbrook Road and State Route No. 61. in Huron County, Ohio, at about 4:30 p. m. on June 11, 1950. Previous to the collision it had rained and the pavement of route No. 61 was wet. At the time of the accident it was misty. State Route No. 61 runs north and south. Hasbrook Road approaches route No. 61 at right angles from the east and deadends at route No. 61. The usual “stop” sign is erected on the north side of Hasbrook Road and also the “stop ahead” sign further to the east. There are slight elevations on each road as it approaches the intersection. As defendant approached the intersection on Hasbrook Road, intending to turn south on route No. 61, plaintiff’s driver approached the intersection from the south.

Defendant testified that before entering the intersection he came to a complete stop, looked both ways, saw no approaching traffic, and slowly entered the intersection, crossed the center line, turned south and when his automobile was entirely over the center line in the southbound lane, plaintiff’s automobile skidded, veered to its left, struck the left rear door of defendant’s car and pushed it over onto the westerly berm of the highway. Defendant’s testimony was corroborated by his wife who was his only passenger. Plaintiff’s driver testified that as he approached the intersection at a rate of 50 miles per hour, he observed defendant’s automobile approaching from his right at a moderate rate of speed, but that defendant entered the intersection without stopping. When the driver became aware of the failure of the defendant to stop, he was about 100 feet from the intersection. Confronted with this emergency, he applied his brakes, but was unable to stop before colliding with the left rear door of defendant’s car. He said that at the time of the collision one-third to one-half of defendant’s car was on the east half of route No. 61. The driver was not certain whether his car skidded on the damp pavement, but he did say that it moved forward in a straight line. He said also defendant’s car cut the corner. The driver’s testimony was corroborated by the plaintiff, his mother. Conclusions reached from physical evidence of damage to automobiles are often inaccurate, but it should be stated that photographs of defendant’s car disclose a substantial dent in the left rear door and fender. It came to rest on the west berm, two feet off the paved portion of the highway, fronting east and slightly toward the south at a point opposite the southerly berm extended off Hasbrook Road. It may reasonably be inferred from the position of defendant’s car after the collision that at the time of impact he had not completed his turn onto route No. 61. The other car suffered damage to its left front corner (light, fender and wheel), and came to rest also on the westerly berm of route No. 61, headed northwest about 25 feet north of defendant’s car. It is difficult to conceive how this result could have occurred if plaintiff’s car, in skidding, had side-swiped defendant’s automobile. The position of plaintiff’s car on the west side of the highway may be attributed to damage to its left front wheel.

Error is assigned concerning the giving, upon request of the defendant, the following pre-argument special instruction:

“2. I say to you as a matter of law that if you find from the evidence and by a preponderance thereof that at the time of the collision between the motor vehicle in which plaintiff was a passenger and the automobile of the defendant, the automobile of defendant was entirely to the westerly side of the center line of Route 61, then your verdict must be for the defendant.”

Plaintiff asserts that this request to charge is contrary to the rule in Kohn, Admx., v. B. F. Goodrich Co., 139 Ohio St., 141, 38 N. E. (2d), 592, and that “the fact that the auto in which plaintiff was riding came into collision because it skidded across the road does not necessarily prove negligence on the part of her driver; Satterthwaite v. Morgan, 141 Ohio St., 447, at page 453.” In the Goodrich case, defendant’s driver skidded on an icy pavement over the center to his left upon the opposite lane of travel and struck plaintiff’s decedent. It was held prejudicial to charge upon plaintiff’s request that a violation of the statute requiring motor vehicles to keep to the right is negligence per se, without explaining to the jury what would or would not constitute a violation of the statute. The charge as given was purely an abstract principle of law. The court says, at page 146:

“If the court properly defines the issues and states the law with reference thereto in such form that the jury should understand the application thereof to the evidence, the charge is not vitiated by abstractness. Special instructions likewise must contain language which shows the application of a definite and pertinent legal principle to evidence in the cause on trial. ’ ’

In proceeding to determine whether the giving of the abstract charge was prejudicial, the court pointed out that according to plaintiff’s evidence it was inferable that defendant’s driver was on the wrong side of the road and was endeavoring, while going at an unwarranted rate of speed on a slippery way, to get back to the right side. Under such evidence the court properly charged that the violation of the statute was negligence per se. But the court further pointed out that defendant’s evidence tended to show the driver was proceeding on the right-hand side and that 20 feet from decedent the truck, without fault of the driver, suddenly skidded across the bridge and hit the decedent. The court concluded that if, as defendant claimed, it was impossible for the driver, traveling on the right, to keep the truck from going to the left, there would be no violation of the statute. Therefore, the court further concluded that without any explanation whatsoever of the application of the abstract charge to the evidence, the giving of it was prejudicial.

Judges Conn and Deeds are of the opinion that in its effect the charge tells the jury to return a verdict for the defendant without regard to any exculpatory circumstances which might have excused the driver of plaintiff’s car from colliding with defendant’s automobile in the west half of the highway. It may be,inferred from the evidence that defendant, who was bound to yield the right of way to plaintiff’s driver, may have succeeded in crossing over to the west half of the highway by proceeding over the other driver’s right of way, and plaintiff’s driver, confronted by the emergency thus created by the defendant, in an endeavor to extricate himself from the hazard may have veered to his left or skidded over onto the opposite lane and collided with defendant’s automobile, without fault on the part of such driver. In other words, the pronouncement of a rule of absolutely no liability on the part of the defendant in case the collision occurred in the westerly lane regardless of circumstances is error prejudicial to the plaintiff. Judges Conn and Deeds are also of the opinion that the charge ignores the element of proximate cause of plaintiff’s injury as between the conduct of the defendant and that of her driver, whose negligence, if any, may not be imputed to plaintiff. A majority of this court, therefore, conclude that the giving of charge No. 2 was prejudicial error.

Judge Fess is of the opinion that the charge in question is different from the wholly abstract charge in the Goodrich case. As the court said in the Goodrich case, most charges contain a modicum of abstract matter. In fact, the charge in the instant case is — if the jury find the collision took place entirely to the westerly side of the center lane, its verdict should be for the defendant. In other words, if the jury believed defendant’s testimony that he was entirely within his own lane of travel when the collision occurred, there could be no recovery against him. No assumption of fact is included in the charge. It is predicated upon a finding from the evidence. It applies a principle of law to the primary issue in the case — was the defendant guilty of negligence.

Neither contributory negligence nor negligence of plaintiff’s driver, unless it is the sole proximate cause (Schreiber v. National Smelting Co., 157 Ohio St., 1, 104 N. E. [2d], 4), is involved. The charge in the Goodrich case was wholly abstract. The decision proceeds on the premise that the giving of an abstract statement of law is ipso facto erroneous but that it is not necessarily prejudicial unless the want of explanation and application to the evidence imports to the charge such abstractness as to make it prejudicial. The first paragraph of the syllabus is as follows:

“The giving of a special instruction, requested before ar-. gument, which, though stating a pertinent legal principle, does not concretely apply it by apt language to evidence in the case, constitutes error, which, if prejudicial, requires reversal of the judgment.”

A majority of the court are of the opinion that the charge tells the jury to return a verdict for the defendant without regard to any exculpatory circumstances. But in context and arrangement, the charge is not different from the frequently employed charge that if the jury find the plaintiff guilty of contributory negligence proximately contributing in any degree to his injury the verdict must be for the defendant. The suggestion of the majority that the charge fails to comprehend the possibility of defendant successfully crossing , the opposite driver’s lane of travel over into defendant’s lane is a possibility, but no such circumstance is presented by the evidence in the instant case. Defendant’s evidence tends to show that he was entirely within his own lane of travel. Plaintiff’s evidence tends to show that defendant was within plaintiff’s driver’s lane of travel. The case was submitted to the jury upon this conflict in testimony. Judge Pess is therefore of the opinion that it does not affirmatively appear that error prejudicial to the defendant resulted from the giving of special charge No. 2.

Additional error is assigned concerning the giving upon request of the defendant of the following special instruction:

“3. I say to you as a matter of law that the vehicle occupied by the plaintiff had the right of way over the vehicle operated by defendant at the intersection of Hasbrook Road and State Route No. 61 only in the event that the vehicle occupied by the plaintiff was being operated in a lawful manner.”

Essentially, this charge presents only an abstract proposition of law. It does not say, if you find from the evidence that the vehicle in which plaintiff was riding was not at the time proceeding in a lawful manner, but was proceeding in violation of law, such vehicle lost its preferential status under the law, and thereupon the relative obligations of the drivers of the converging vehicles are to be governed by the rules of common law, that is, each driver owes the other the duty of exercising ordinary care. Cf. Conn, J., in Zimmer v. Rabkin (Wood County Common Pleas Court, unreported); 2 Ohio Instructions to Juries (Fess), 201, Section 70.19; Morris v. Bloomgren, 127 Ohio St., 147, 187 N. E., 2, 89 A. L. R., 831. The sole negligence of plaintiff’s driver was not an issue in the case, nor can the negligence of plaintiff’s driver be imputed to plaintiff. A requested pre-argument instruction not only must be a correct statement of the law, but it must relate to an issue in the case. See: Sheen v. Kubiac, 131 Ohio St., 52, 1 N. E. (2d), 943. Compare, Cincinnati Traction Co. v. Forrest, 73 Ohio St., 1, 75 N. E., 818; Toledo Rys. & Light Co. v. Campbell, 79 Ohio St., 441, 87 N. E., 1142; and St. Paul Fire & Marine Ins. Co. v. Baltimore & Ohio Rd. Co., 129 Ohio St., 401, 411, 195 N. E., 861. It is, therefore, concluded that the giving of special instruction No. 3 may have misled the jury and was prejudicial to the plaintiff.

Other errors assigned have been considered and found nonprejudieial.

For error prejudicial to the plaintiff in the giving of special instruction No. 2 (Conn and Deeds, JJ., concurring) and in the giving of special instruction No. 3 (Fess, P. J., Conn and Deeds, JJ., concurring), the judgment is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Conn and Deeds, JJ., concur.

      In his answer defendant admits the occurrence of the collision and some resulting injury to plaintiff and neglects to deny plaintiff’s allegations of negligence; but the case proceeded to trial as if such allegations were denied.