author:
      Per Curiam.
     Ross, J.,

text:
    Rogers, Appellee, v. Anchor Motor Freight, Inc., Appellant.
    (No. 7683
    Decided March 2, 1953.)

      Mr. Robert N. Gorman and Mr. Robert R. Boone, for appellee.

      Messrs. Pogue, Helmholtz, Culbertson é French, for appellant.
   Per Curiam.

As the plaintiff was the only person present at the instant his automobile collided with the defendant’s trailer, the proof of the circumstances of that collision rests entirely on his testimony. Whether an issue of fact was presented also rests upon the same foundation.

The trial court held that an issue of fact determining liability was presented, and submitted the issues to the jury.

The jury resolved the issues in favor of the plaintiff and returned a verdict of $45,000 in his favor, upon which judgment was entered. It is from that judgment that this appeal on questions of law is taken.

At various stages of the proceedings in the trial court and in the appropriate ways, the defendant, appellant herein, raised the question of the legal sufficiency of the plaintiff’s evidence and all the evidence for submission to the jury and to sustain the verdict and judgment. The trial court overruled all defendant’s motions, and the claim that error was committed in so doing is the principal ground urged on this appeal for the reversal of the judgment. However, two specific alleged errors are pointed out, which, it is claimed, necessitate a reversal of the judgment and a remand for a new trial, even assuming that it should be determined that the evidence is sufficient to carry the case to the jury. We shall consider these claims of error before passing to a consideration of the assertion that the evidence shows as a matter of law that no liability exists.

1. On cross-examination of the plaintiff, he was asked this question:

“So when you say that the equipment of the defendant was 65 or. 75 feet in front of you when the other ear left your lane of traffic you didn’t have your car under such control that you could stop within the assured clear distance ahead?”

The court sustained an objection to this question.

The distance of 65-to 75 feet was the distance between plaintiff’s automobile and defendant’s trailer when the third automobile ceased to obstruct the plaintiff’s vision so that he was able to see defendant’s trailer. The plaintiff’s case depended on his ability to avoid the collision after he saw the trailer, and he had testified fully on both direct and cross-examination on that subject. There was no occasion to have recourse to a hypothetical assured clear distance ahead. Without stopping to consider the form of the question and whether it would be competent in other circumstances, we conclude that, in view of the plaintiff’s very full testimony directed to the circumstances, as they existed according to his testimony, no possible prejudice could have resulted to the defendant because of this ruling.

2. It is urged that the verdict is excessive.

The plaintiff is a physician and surgeon and was 59 years of age at the time he was injured. He had graduated from medical school in 1920 and had practiced since then in Cincinnati, and, at the time of this occurrence, derived an income in excess of $20,000 annually from his practice. According to the evidence, his injuries had rendered him incapable of pursuing his profession, which incapacity will continue for the remainder of his life, resulting in the entire loss of his income from the pursuit of his profession. There was evidence of other loss in addition to the physical injuries, including pain and suffering.

The judgment is large in amount, but we are unable to say that it is excessive.

3. We come now to the assigned error upon which the defendant places the most emphasis, that is, that the plaintiff’s own testimony shows that he was operating his automobile at a speed greater than would permit him to stop it within the assured clear distance ahead, in violation of Section 6307-21, General Code, and, that, therefore, plaintiff’s, testimony shows that he was guilty of contributory negligence as a matter of law.

In order to determine the validity of this claim, it is necessary to consider the plaintiff’s testimony.

The plaintiff testified that at about midnight on December 3, 1950, he left his country home near New Bichmond in his automobile, destined for his home in Cincinnati. He was unaccompanied. He was proceeding westwardly on the north side of U. S. route 52, which at the point of this collision is 22 feet wide. He had proceeded less than two miles and there was apparently no traffic to the west of him as he approached a point in route 52 where its south edge is intersected by Palestine road and the north edge by Iglauer’s drive, when suddenly the lights of an automobile appeared 250 to 300 feet westwardly and diagonally across his lane of travel. Whether any part of this automobile was in plaintiff’s lane of travel when he first became aware of its proximity, or whether only the beam from its lights was in such lane of travel is not clear. At any rate, the automobile was in his lane of travel almost at once. At that time the plaintiff was traveling 45 miles per hour, but when he saw the automobile lights diagonally across his path, he pressed on the brake and slowed down to 35 miles per hour or less. The automobile lights changed from a diagonal position to a position straight down the plaintiff’s path, headed directly toward him. The plaintiff testified that he could have stopped his automobile going at 35 or 45 miles per hour before it would have reached the location of this third automobile, but that if the third automobile continued toward him down his path, there would have been a head-on collision notwithstanding; so instead of stopping or slowing down, he swerved his automobile about five feet to his right, hoping thereby to avoid the collision at the risk of being obliged to steer his automobile onto the berm and possibly into the ditch on his right side of the road. In so doing he kept his gaze upon the edge of the road and thereby avoided being blinded by the lights of the oncoming automobile. It so happened that the operator of the third automobile, just before reaching the plaintiff’s automobile, suddenly veered to his right, and the two automobiles passed each other without contact. The third automobile continued down the highway, and the identity of the operator has not been discovered.

It is manifest that this untoward incident created an emergency containing elements of imminent peril, and that while it continued the plaintiff was completely preoccupied in attempting to avoid the peril.

As soon as the plaintiff passed this automobile which he had barely avoided, and which had obstructed his forward view, he was immediately confronted with the defendant’s unlighted trailer-truck, 65 to 75 feet ahead of him, parked on the north edge of the highway and extending about five feet into his lane of travel, which truck he then saw for the first time. He had his foot on the brake and turned as far as he could to the left in an effort to avoid colliding with the truck, but was unable to do so.

We believe the foregoing is a fair summary of the essential facts to which the plaintiff testified. His credibility rested with the jury. It saw fit to believe him, and there is nothing in the record that would justify this court in disturbing the jury’s conclusion.

That the defendant was negligent is not seriously disputed. There were no lights of any sort upon its truck at the time. There were no flares or fusees in the highway. The truck was unattended. The gasoline had been exhausted, and the operator had gone back to New Richmond to replenish it.

The defendant’s contention is that the plaintiff violated Section 6307-21, G-eneral Code, in that he operated his automobile at a speed greater than would permit him to stop it within the assured clear distance ahead.

On the other hand, the plaintiff contends that, at the inception of this incident, he could have stopped his automobile within the assured clear distance ahead; that the sudden and unexpected entry of the automobile going in the opposite direction into the assured clear distance, the emergency which it created, and his preoccupation in avoiding colliding with it made it impossible for him to see the defendant’s truck until the intervening automobile passed; and that then he was so close to the truck that it was impossible to avoid colliding with it.

We have examined the cases in which Section 6307-21, General Code, has been construed and applied. All of them recognize that a sudden and unexpected intervention of a new agency within the assured clear distance ahead affects the application of the statute and may relieve the plaintiff from the charge of negligence per se in colliding with another object in the highway.

In the procession of cases in which the statute has been construed, the rule has been stated, restated and refined as varying circumstances have pointed out the desirability of a more comprehensive definition. Perhaps the latest definition is found stated in negative form in the syllabus of the case of McFadden, Admx., v. Elmer C. Breuer Transportation Co., 156 Ohio St., 430, 103 N. E. (2d), 385, as follows:

“The question of whether the operator of a motor vehicle was negligent in failing to comply with the ‘assured-clear-distance-ahead’ rule contained in Section 6307-21, General Code, is not presented to the trier of the facts where there is no substantial evidence (1) that the object with which such operator collided was located ahead of him in his lane of travel, and (2) that such object was reasonably discernible, and (3) that the object was (a) static or stationary, or (b) moving ahead of him in the same direction as such operator, or (c) came into his lane of travel within the assured clear distance ahead at a point sufficiently distant ahead of him to have made it possible, in the exercise of ordinary care, to bring his vehicle to a stop and avoid a collision.”

As stated in the second paragraph of the syllabus of Erdman v. Mestrovich, 155 Ohio St., 85, 97 N. E. (2d), 674, the rule of the statute is:

“Violation of the assured-clear-distance-ahead rule consists of the operation of a motor vehicle at a greater speed than will permit the operator thereof to bring it to a stop within the assured clear distance ahead, unless such assured clear distance ahead is, without his fault, suddenly cut down or lessened by the entrance within such clear distance and into his path or lane of travel of an obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding therewith.”

Applying the rule announced in these cases to the evidence in the case at bar causes us to reach the conclusion that an issue of fact, and not of law, is presented as to plaintiff’s conduct and required submission of such issue to the jury for its determination.

We think it is conclusively established that a motorist can free himself of a charge of violation of the statute and of negligence per se in colliding with an object ahead of him in the highway by proof that, without his fault, a sudden, unexpected situation developed that could not be anticipated by the exercise of reasonable foresight, and by reason thereof his assured clear distance ahead was lessened and that before he could extricate himself from such situation, and because thereof, he collided with the object ahead. Having thereby freed himself of the charge of negligence per se, he is entitled to recover, or, at least, to have the issue of fact resolved, provided he also prove that the defendant was negligent, about which, in the case at bar, there could be no doubt if the jury believed the plaintiff.

In Matz, Admr., v. J. L. Curtis Cartage Co., 132 Ohio St., 271, 7 N. E. (2d), 220, it was held, as stated in the syllabus, that:

“The driver of a motor vehicle, who, after nightfall, without his fault, is forced, by an oncoming automobile, to the side of the highway and into an unlighted parked truck, with which otherwise he would not have collided, cannot be said as a matter of law to be guilty of violating the ‘assured clear distance’ provision of Section 12603, General Code. (Paragraph three of the syllabus in Kormos v. Cleveland Retail Credit Men’s Co., 131 Ohio St., 471, approved and followed.)

“Section 614-86, General Code, applies only to motor transportation companies and does not confer upon the Public Utilities Commission power to regulate the use of public highways by the general public.”

An examination of the printed record in the Mats case discloses that in all essentials the facts are indistinguishable from those in the case at bar. Defendant’s counsel point out that in the Mats case the intervening automobile was only 20 to 25 feet away when it came into the lane in which Matz was driving, thereby requiring Matz to turn abruptly; that the lights from the intervening automobile did not interfere with Matz’s view ahead; that it required 20 to 25 feet for Matz to stop his automobile at the speed at which he was going; and that he was so close to the defendant’s unlighted truck, parked near the curb to his right, that he was unable to avoid colliding with it. He admits, as he must, that evidence of those facts presented a case for submission to the jury, but contends that the evidence in the case at bar does not. Let us compare the evidence in the two cases.

It is true that the automobile that intervened and cut down the plaintiff’s assured clear distance ahead was 250 to 300 feet from him when the plaintiff first saw the rays of light diagonally across his lane of travel, but the plaintiff could not anticipate at that time that the operator of that automobile would enter his lane of travel and proceed straight down it toward him until a collision was barely avoided by each turning to his right. While there is no estimate in feet of how close the two automobiles were to each other when the intervening automobile left the plaintiff’s lane of travel, it is fairly to be inferred that they were very close and perhaps less than 20 to 25 feet apart. But, assuming that the distance was greater, the plaintiff, operating his automobile at a speed that would permit him to stop it within the assured clear distance, had a right to concern himself with the only peril of which he was aware. In doing so he was acting in an emergency which had suddenly cut down his assured clear distance and made it impossible for him to see the defendant’s truck because of the obstruction.

Counsel point out that Matz’s view ahead was not obstructed, whereas the plaintiff’s view was obstructed by the lights. Counsel is mistaken when he says the lights obstructed the plaintiff’s view. He testified that it was the body of the automobile that obstructed his view and that he was not blinded by the headlights because his sight was focused on the edge of the highway toward which he was turning and toward which he was required to turn in order to avoid the approaching automobile. If the Matz case and the case at bar differ in this respect, it would seem to us that the evidence in the case at bar presents valid reasons for the plaintiff not knowing of the presence of defendant’s unlighted truck and, therefore, that he had no reason to regulate his conduct on an assumption that it was present, whereas, Matz, knowing or being charged with the duty of knowing, should have taken it into consideration.

As to the difference in distance from the parked truck when the intervening obstruction was removed and the plaintiff became aware of the parked truck in his lane of travel, we think its only significance is its bearing on whether the plaintiff could have avoided colliding with the truck by the exercise of reasonable care. The plaintiff testified that he was unable to bring his automobile to a stop within the distance or avoid the truck by turning. Our attention has been called to no countervailing evidence. Certainly, this evidence presented an issue of fact as to whether the plaintiff had exercised reasonable care to avoid the collision after the emergency had ended and he had become aware of the defendant’s unlighted truck in his path.

Counsel point out also that in the case at bar the plaintiff chose to continue on at 35 miles per hour for nearly 200 feet and turn to his right to avoid the collision, whereas Matz had no choice. While we do not think it mattered, the Matz record does not bear this out. Matz was not necessarily required by the situation to come into collision with the défendant’s automobile. As the facts disclosed, he veered farther to the right than was necessary in order to avoid the oncoming automobile, and one of his contentions was that if the truck had had lights on it, he would have seen it and would not have veered so far to the right. In the case at bar the plaintiff testified that he weighed two alternatives, namely, to stop in his lane of travel or to turn to his right, and concluded that as the oncoming automobile was proceeding directly toward him in his lane of travel, turning out was to be preferred to stopping. Whether his decision was such as would have been made after deliberation may be debatable, but the law does not hold a person to such a standard where choices are required to be made instantly in the presence of a sudden emergency.

On the whole case, we conclude that the evidence presented issues of fact to be submitted to the jury, and that they were presented fairly under instructions free from error.

For these reasons, the judgment is affirmed.

Judgment affirmed.

Matthews, P. J., and Hildebrant, J., concur.

Ross, J.,

dissenting. This case presents an appeal on questions of law from a judgment of the Common Pleas Court of Hamilton County in favor of the plaintiff, entered upon a verdict awarding the plaintiff $45,000 as compensation for personal injuries received by him when an automobile driven by him collided with a truck operated by defendant.

As the writer views the appeal and record of the trial court, only two alternatives are presented, either to affirm the judgment or render final judgment for the defendant in pursuance of appropriate action taken by the defendant in the trial court. All assignments of error predicated upon grounds other than the claim that the trial court should have rendered judgment in favor of defendant are resolved in favor of the plaintiff. Such assignments of error have been considered fully in reaching such conclusion.

The defendant’s assertion that it is entitled to final judgment here is predicated upon its claim that the plaintiff was guilty of negligence as a matter of law in violating Section 6307-21, General Code, by driving his automobile at a speed greater than would permit him to stop within the assured clear distance ahead. The burden of proof to establish such contention was on the defendant.

The plaintiff relied upon the existence of an intervening cause excusing compliance with the statute. The duty to show such excuse rests on the plaintiff.

In determining whether the defendant is entitled to final judgment, the testimony of the plaintiff given at the trial constitutes a controlling consideration in that if statements made at that time show that he is not entitled to recover, final judgment against him is required, regardless of any other evidence which may be in his favor. Winkler v. City of Columbus, 149 Ohio St., 39, 77 N. E. (2d), 461. The evidence of what happened immediately prior to and at the time of the collision is almost entirely confined to plaintiff’s testimony, as he alone was present, and only he can testify as to what occurred.

From plaintiff’s own testimony at the trial, it appears that he was a physician and surgeon and occupied a home a mile or two to the east of New Richmond, Ohio; that he left his home about midnight on December 3, 1950, and proceeded westwardly on route 52 toward Cincinnati, Ohio; that after rounding a curve in the road, he observed the light of an automobile approaching him from the west; and that this automobile, proceeding eastwardly, at the time he first saw it, was some 250 to 300 feet away. The evidence shows conclusively that such point was where the New Palestine road joins route 52 from the south, and that directly opposite such juncture is a driveway to the Iglauer property. The plaintiff was unable to say whether the eastbound automobile came north out of the New Palestine road or not. He stated that it “instantly” went across route 52 into the north or westbound lane of traffic in which he was lawfully proceeding, and then “instantly” returned to its proper south or eastbound lane of traffic.

Plaintiff stated that he then saw the eastbonnd car proceeding toward him in his westbound lane of traffic, that he was afraid to stop, but that he reduced his speed from 45 to 35 miles an hour and drove his car to the north side of his lane of travel so that he could “take the ditch” if it was necessary to avoid a collision. A careful reading of all plaintiff has stated on this phase of the matter indicates that the eastbound car simply swerved into the west lane of traffic and then out again, and it is reasonable to suppose that the driver of the eastbound car became aware of the approach of plaintiff’s automobile simultaneously with plaintiff’s awareness of its presence and that that driver was as anxious to avoid a collision as the plaintiff. The evidence shows also, without doubt, that defendant’s unlighted truck, with no fusees or flares burning in its vicinity, was parked in the westbound lane of traffic directly in plaintiff’s path, just a few feet to the east of where such eastbound car came into plaintiff’s view. Plaintiff stated that the truck completely “occluded and obscured Iglauer’s drive.”

Plaintiff testified further that when he saw such eastbound automobile and when he was proceeding at a rate of 45 miles per hour, “he was in my lane on the north side of the road, in my lane of travel, and I concluded then that the best thing was not to stop but to pull over and if necessary to take the ditch on the upper side to keep from a head-on collision. And 1 did pull over and had my foot on the brake all the time. And I moved from where I was approximately at the middle — traffic middle line of the road; I moved over to the far side of the upper lane of travel, that is north some, probably, I should say, maybe five feet, and while I was moving that distance over he again instantly turned his car and moved back over in the south lane and proceeded on towards New Richmond.”

Plaintiff stated he was not blinded by the lights of the eastbound ear, but that he could not see what was beyond it and did not become aware of the unlighted truck in his path until he had again flicked on his bright lights when he was some 65 to 75 feet distant from the truck and too close to avoid a collision. Plaintiff stated that his car, a 1947 Buick sedan, was in perfect. running condition, that the brake mechanism of the automobile was in perfect condition, and that the surface of the road was dry and the night clear. No lights othér than those on plaintiff’s car and those of the eastbound car were present on route 52. Plaintiff stated he was perfectly familiar with route 52, having traveled it for some 14 years.

Plaintiff stated further in answer to a question on cross-examination as to whether he assumed a clear path ahead of him:

“I wasn’t making any assumption at that time. 1 knew nothing about anything that lay beyond me.” (Emphasis added.)

Plaintiff stated that when he slowed from 45 to 35 miles-an hour, and when he was some 250 to 300 feet from the eastbound car when it first became visible to him, that he “could have stopped” but thought it best to proceed to the north side of the road. He stated: “Fortunately when I turned a little in my lane he turned to the other and he did clear out from in front of me.” And again, he testified that he (the plaintiff) traveled 175 feet after he saw the eastbound car and before it passed him. It will, therefore, be noted that the plaintiff testified that he traveled 175 feet while the eastbound car traveled 75 feet.

Plaintiff’s testimony on this point is as follows:

“Q. Now, I don’t know whether I understand your answer or not, doctor. Do I understand you to mean that after you saw this machine that you say was coming toward you that you traveled 175-feet before it passed you? A. I traveled 175 feet before it passed me, before it cleared out from in front of me. While I was traveling that 175 feet that car was moving towards me all the time. I was eating up speed and eating up time, and that car was moving all the time, and that car had been traveling about 75 feet while I had been traveling 175 feet. I was slowing down and had my foot on the brake all the time.

“Q. In other words, after you saw it, as I understand you, you drove about 175 feet in your lane of traffic before this car cut over to the eastbound lane? A. South side of the road, yes.

“Q. The south side of the road? A. That’s correct.

“Q. Now, up to that time were you blinded by the lights of that machine? A. No, because I was watching the road and the lights were bright, but I was watching the road and the side of the road and the berm so as to keep in my lane of traffic. Wasn’t blinded.

“Q. But so far as what lay beyond that machine you were blinded, were you not? A. I couldn’t see over the car.

“Q. You couldn’t see beyond those lights? A. I couldn’t see over those lights or over the automobile. I knew there was an automobile in front of me because the lights of an automobile were in front of me. You assume that.”

Counsel for the defendant tried to get a statement from plaintiff indicating what distance was required to enable plaintiff to stop when traveling at 35 miles per hour, but plaintiff was most indefinite on this point. Plaintiff did state, however:

“A. I couldn’t stop it in 75 feet — 65—75 feet, whatever that distance might have been.

“Q. Well, could you tell us in what distance you could have — A. I could have stopped my car up the road, as I told you — and I had about 175 feet or 250 feet, and I could have stopped my car any time along there. Of course, after I first noticed him I could have stopped my car, but he might have run into me. But how long and how far it takes to stop a car at different speeds I’m not a mathematician or a genius. I don’t know.”

Plaintiff testified further that his high lights cast a beam 200 feet ahead, which would reveal any discernible object.

At the time the eastbound car moved into the westbound lane of traffic, the assured clear distance ahead applicable to plaintiff was between 250 to 300 feet and at that point, and within some 200 feet, plaintiff could have stopped his car.

Plaintiff stated that the truck was parked a very few feet east of the point where such assured clear distance ahead was so limited, although it could not be seen by reason of the intervention of the oncoming car. This car “instantly” resumed its eastbound lane, and yet plaintiff proceeded on not knowing what was beyond the point where it entered the westbound lane of traffic. The plaintiff asserts that he had a right to assume that such west lane of traffic, over which he was proceeding, was free of obstruction.

The case of Hangen, a Minor, v. Hadfield, 135 Ohio St., 281, 20 N. E. (2d), 715, is cited in support of such contention. The syllabus of that case is as follows:

“1. Under the language of Section 12603, General Code, providing that no person shall drive any motor vehicle in and upon any public road or highway at a rate of speed greater than will permit him to bring it to a stop within the assured clear distance ahead, the questions of proximate cause and negligence on the part of such driver must, under proper circumstances, be submitted to the jury.

“2. A driver who has failed to comply with these provisions of Section 12603, General Code, may excuse such failure and avoid the legal imputation of negligence per se by establishing that, without his fault, and because of circumstances over which he had no control, compliance with the law was rendered impossible. (Paragraph 3 of'the syllabus in the case of Kormos v. Cleveland Retail Credit Men’s Co., 131 Ohio St., 471, approved and followed.)

“3. These provisions of Section 12603, General Code, do not require the driver of a motor vehicle approaching the crest of a hill on a public highway to anticipate that his proper path will be obstructed by another automobile driven in the opposite direction in a manner contrary to law. ’ ’

Any statement of law in a syllabus must be read framed within the purview of the facts involved in the case. Baltimore & Ohio Rd. Co. v. Baillie, 112 Ohio St., 567, 148 N. E., 233.

In the Hangen case, supra, as set out in paragraph three of the syllabus, the plaintiff had just passed over the crest of a hill and started down when he was confronted with a car proceeding toward him in his lane of traffic. The facts are stated more fully at page 285, as follows:

“In the instant case the speed of the two automobiles was approximately the same as that of the cars involved in the Skinner and Gumley cases. But here the analogy ends, and the four cited cases are readily distinguishable from the one now before the court. In this case the collision occurred about ten o’clock in the morning. The day was clear, and the surface of the highway was dry. As the plaintiff drove eastward over the crest of a hill he suddenly observed the defendant’s automobile approaching toward the west on the plaintiff’s, or south, side of the road. According to the plaintiff’s evidence the defendant’s car was about 250 feet away and directly in the plaintiff’s path. The plaintiff immediately applied his brakes and steered his car still farther to his right until its right wheels were on the south or right berm. As this was done the plaintiff’s car began to skid and turn. As it continued to skid and turn it veered to the plaintiff’s left and toward the middle of the highway. In the meantime the defendant likewise was attempting to steer his car to his right or proper side of the road. He applied the brakes, and his car, too, began to skid and turn. The exact point of the collision is in dispute. The defendant insists that he had turned to his left or south side of the road when he overtook a boy on a bicycle, but that he had regained his right or north side of the highway by the time the collision occurred. This is denied by the plaintiff. He admits that when his car turned crosswise on the road one wheel projected a foot or two north of the middle, but insists that only the right front wheel of the defendant’s car had regained the north side of the road. The plaintiff says further that he saw no boy on a bicycle. ’ ’

The facts involved in the Hangen case were in dispute, and, in any event, entirely dissimilar to those here presented.

In Smiley v. Arrow Spring Bed Co., 138 Ohio St., 81, 33 N. E. (2d), 3, 133 A. L. R., 960, however, Judge Hart, in the opinion, stated at page 88:

“In this connection, by way of extenuation or exoneration, it has been suggested in certain cases that the driver of an automobile in operating his car has a right to assume, until he has notice to the contrary, that others on the highway will obey the law. Under the ordinary rules of negligence this is true, but in the light of the requirements of the statute under consideration, the rule above referred to has little, if any, application. Linquist v. Thierman, supra [216 Iowa, 170]. The statute is a safety regulation and imposes upon the operator of a motor vehicle at all times the unqualified obligation to be able to stop his car within the distance that discernible objects may be seen. By force of the statute the motorist may therefore assume nothing that is not assured to him by the range of his vision.”

In the Smiley case the facts involved were:

“After dark on December 3, 1936, the defendant’s truck being operated in a westerly direction on highway route No. 422 near Parkman, Ohio, became disabled and was parked without lights on the north side of the highway. While the truck was thus located, plaintiff operating his automobile in the same direction behind the truck collided with it, demolishing the automobile and injuring the plaintiff, for which damages and injuries he seeks recovery.

“Plaintiff brought this action in the Municipal Court of Cleveland charging the defendant with negligence in parking the truck on the highway in violation of Sections 12614-3 and 6310-1, General Code. There was some dispute as to.the exact location of the truck on the highway at the time of the accident, but this is unimportant in the application of the law to this case. On the other hand, the defendant charged the plaintiff with contributory negligence as a matter of law in operating his automobile at a speed of from 30 to 35 miles per hour and in violating the assured-clear-distance statute, Section 12603, General Code, as a result of which his automobile collided with defendant’s truck. The plaintiff sought to avoid the operation of this statute by claiming that defendant’s truck was parked 30 feet beyond the crest of a hill where it was not visible to the plaintiff until his automobile had passed over the hill and that he was partially blinded by the lights of another vehicle approaching from the opposit direction, which vehicle, at the moment of the collision, was passing defendant’s truck.”

To say the least, it would seem that the dogmatic statements in the syllabus of Hangen, a Minor, v. Hadfield, supra, are qualified by the Smiley case, wherein the judgment of the Court of Appeals, sustaining a verdict for plaintiff, was reversed and judgment entered by tbe Supreme Court for tbe defendant.

It seems clear that the Supreme Court, as the law stands now, does not hold in favor of an unqualified assumption that the rightful lane of a motorist is free from obstruction by one violating the rules of due care. If such an assumption is warranted, then the obligations imposed by Section 6307-21, General Code, are abrogated, for it is just that assumption that is negatived by the statute.

Obviously, the defendant was negligent, and such negligence was a contributing cause to plaintiff’s injuries. It may be admitted also that the driver of the eastbound car was negligent, and that such negligence was a contributing cause of plaintiff’s injuries; also, that the questions presented here are whether the plaintiff was guilty of a violation of the statute, and whether such a violation was a contributing cause of his injuries. If the trier of the facts is. permitted to determine whether the plaintiff is guilty of negligence in failing to adjust his speed to the assured clear distance within his view, then the specific rule of the statute is abrogated in favor of the common-law rule which it modifies.

The ease of Matz, Admr., v. J. L. Curtis Cartage Co., 132 Ohio St., 271, 7 N. E. (2d), 220, is relied upon as an authority conclusively resolving the issues presented in favor of the plaintiff, in that it is claimed that the Mats case, under conditions similar to those prevailing here, allocates determination of the issues presented to the jury rather than the court, placing responsibility on the jury to determine whether, under all the circumstances involved, the plaintiff used appropriate care.

Paragraph one of the syllabus in the Mats case is:

‘ ‘ The driver of a motor vehicle, who, after nightfall, without his fault, is forced, by an oncoming automobile, to the side of the highway and into an unlighted parked truck, with which otherwise he would not have collided, cannot be said as a matter of law to be guilty of violating the ‘assured clear distance’ provision of Section 12603, General Code. (Paragraph three of the syllabus in Kormos v. Cleveland Retail Credit Men’s Co., 131 Ohio St., 471, approved and followed.) ”

The facts involved in the Mats case are stated in the opinion, at page 274, as follows:

“Plaintiff testified on the trial that he was driving east on Mentor avenue at the rate of thirty miles per hour, with his left front wheels about one foot south of the center of the street; that his bright headlights illuminated the road about 250 feet ahead and lighted it up from the center to the south curb; that he was following, sixty feet behind another eastbound car; that two westbound automobiles approached him, driving midway between the center and north curb of the roadway; that after the eastbound car had passed these two automobiles, the rear westbound automobile drove out of line and two or three feet over onto the plaintiff’s side of the roadway; that at this time the plaintiff was about 20 to 25 feet from this westbound automobile; that he was obliged to turn suddenly and unexpectedly to the right to avoid a head-on collision with this car; that at the speed he was traveling it would require 25 to 30 feet to stop; that he could not stop before hitting the rear end of the defendant’s truck;.and that the lights of the oncoming cars in no way interfered with his view to the east along his side of the road.

“The plaintiff’s claim of negligence was that there were no lights burning on defendant’s truck and no flares were placed on the road. There was evidence tending to prove that the place of the accident was lighted to some extent by street lights and that the lights of the westbound cars illuminated the street to some extent. There was testimony to the effect that the night was dry and clear. ’ ’

Again, the law prononneed must be read in view of the facts involved. See Baltimore & Ohio Rd. Co. v. Baillie, supra.

It seems clear that the facts involved in the Mats case and the instant case are radically different when compared. In the Matz case the plaintiff-administrator, who was driving the car in which his wife was' killed, was following “60 feet behind another car,” so that the distance was a constant “assured clear distance” for him. In the instant case, taking into consideration the braking quality of his car and the temporary intervention of the eastbound car, plaintiff had an “assured clear distance ahead” of some 250 to 300 feet when that distance was determined by the intervention of the eastbound car. However, plaintiff stated that the intervention was “instantly” removed and that he was not blinded by the oncoming lights.

In the Matz case it appears that the intervening car crossed into the path of the plaintiff’s car when but 20 to 25 feet from it, and, as far as the facts show, continued on in the plaintiff’s lane of traffic; and that the plaintiff .in that case had no choice but to immediately swerve out of the path of the intervening car, resulting in an immediate collision with the defendant’s truck.

A case in which excuse for compliance with the statute is developed is McFadden, Admx., v. Elmer C. Breuer Transportation Co., 156 Ohio St., 430, 103 N. E. (2d), 385. The facts are stated in the second paragraph of the syllabus as follows:

“Where, in an action for the wrongful death of the operator of an automobile which collided with a roll of steel, 34 inches in height, 3 feet, 11 inches in diameter and weighing over 13,000 pounds, which dropped from defendant’s truck, which was going in the opposite direction, into the path of the operator of the automobile, the defendant truck, owner admits negligence proximately contributing to the collision but asserts as a defense that the operator of the automobile was guilty of contributory negligence in that he violated the provision of Section 6307-21, General Code, commonly referred to as the assured-clear-distance-ahead rule, the burden is upon the defendant, in order to make a prima facie case of such contributory negligence, to present substantial evidence (a) that the object with which such operator’s vehicle collided had been in his path or lane of travel before the collision at a sufficient distance ahead of him to have made it possible for him, in the exercise of ordinary care, to stop such vehicle and avoid a collision, and (b) that such object was a reasonably discernible one.”

In the first paragraph of the syllabus, the court laid down the law as applicable to the statute. It is stated therein:

“The question of whether the operator of a motor vehicle was negligent in failing to comply with the ‘assured-clear-distance-ahead’ rule contained in Section 6307-21, General Code, is not presented to the trier of the facts where there is no substantial evidence (1) that the object with which such operator collided was located ahead of him in his lane of travel, and (2) that such object was reasonably discernible, and (3) that the object was (a) static or stationary, or (b) moving ahead of him in the same direction as such operator, or (c) came into his line of travel within the assured clear distance ahead at a point sufficiently distant ahead of him to have made it possible, in the exercise of ordinary care, to bring his vehicle to a stop and avoid a collision. ’ ’

In the opinion, at page 434, this statement is amplified :

“The decisions of this court have established that the operator of a motor vehicle violates this statute if he drives at such speed that he collides with a reasonably discernible object (1) which is located ahead of him in his lane of travel and which object is (a) static or stationary (Skinner v. Pennsylvania Rd. Co., 127 Ohio St., 69, 186 N. E., 722; Watt v. Jefferson Trucking Co., 130 Ohio St., 99, 196 N. E., 887; Kormos v. Cleveland Retail Credit Men’s Co., 131 Ohio St., 471, 3 N. E. [2d], 427; Smiley v. Arrow Spring Bed Co., 138 Ohio St., 81, 33 N. E. [2d], 3, 133 A. L. R., 960), or (b) moving ahead of him in the same direction (Gumley, Admr., v. Cowman, 129 Ohio St., 36, 193 N. E., 627; Higbee Co. v. Lindemann, 131 Ohio St., 479, 3 N. E. [2d], 426; Bickel v. American Can Co., 154 Ohio St., 380, 96 N. E. [2d], 4), or (2) which appears in his path at a sufficient distance ahead of him to give him time, in the exercise of ordinary care, to bring his automobile to a stop and avoid a collision (Klever v. Reid Brothers Express, Inc., 151 Ohio St., 467, 86 N. E. [2d], 608; Erdman v. Mestrovich, 155 Ohio St., 85, 97 N. E. [2d], 674; Sherer v. Smith, a Minor, 155 Ohio St., 567, 99 N. E. [2d], 763).”

Another case mentioned in the consideration of this case is that of Erdman v. Mestrovich, 155 Ohio St., 85, 97 N. E. (2d), 674, where a pedestrian ivas struck by the defendant’s automobile at a street crossing. The defendant claimed that the plaintiff suddenly darted in front of his automobile and that he could not avoid striking him. The trial court refused to charge on the assured-clear-distance-ahead rule. The Court of Appeals reversed, and was reversed by the Supreme Court. In the Erdman case the evidence was in conflict.

Still another case involving the rule is that of Sherer v. Smith, a Minor, 155 Ohio St., 567, 99 N. E. (2d), 763. In the opinion, at page 570, it is stated:

“This court held, in effect, in the recent case of Erdman v. Mestrovich, 155 Ohio St., 85, 97 N. E. (2d), 674, that the assured-clear-distance-ahead rule has no application in a situation where a person, motor vehicle or object suddenly enters the path of another motor vehicle from the side, unless such person, motor vehicle or object comes into the view of the operator of the other motor vehicle at a point sufficiently distant ahead to enable such operator, in the exercise of ordinary care, to stop his vehicle and avoid a collision.

“Applying such holding to the instant case wherein plaintiff and defendant entered the intersection from different directions, each claiming he proceeded on a green light, and where both of them testified that neither saw the automobile of the other until a second before the crash, we are of the opinion that the trial court herein properly removed from the consideration of the jury the ‘assured-clear-distance-ahead’ provision of Section 6307-21, General Code.”

The instant case, it is apparent, is dissimilar to many of the cases considered, in that in the latter are present direct conflicts as to the facts involving the collision. There is no divergence in the evidence in the instant case as to what occurred immediately prior to and at the time of the collision, for, as has been said, these facts are established by the plaintiff’s testimony. There is thus presented squarely to the court the duty of determining the applicability of the statutory rule and the relation of a violation of the rule to plaintiff’s injuries.

In the instant case also, there is not involved a collision with an intervening agency. It must be apparent that, since the eastbound car became visibile to the plaintiff at a point, in effect, identical with the location of the truck with which plaintiff’s automobile collided, he had ample time to control his automobile, so that he would neither have collided with the approaching vehicle or the truck which he did not see or take precaution to see. Had plaintiff’s automobile collided Avith the eastbound automobile, SAverving in and out of his lane of traffic, a different problem Avould have been presented. The emergency, if it existed, Avas eliminated almost as soon as it Avas created, and yet the plaintiff, not knowing what was beyond the point Avhere his vision Avas temporarily obscured, proceeded on at a speed which manifestly did not permit him to stop when the lane before him became clear to his vision. The existence of the eastbound car shortened his assured clear distance ahead and required consistent action on the part of plaintiff to bring himself within the protection of the rule. The undisputed facts — disclosed by his own testimony — were that plaintiff continued at a speed that made it impossible for him to stop at the point Avhere he ceased to have an assured clear distance ahead, and the point where his path Avas blocked by the defendant’s truck. The considered necessity for movement to the north side of the road did not relieve him from the constant requirement to regulate his speed to the known distance of safety. It does not seem that there can he any question that such failure was a contributory cause of his own injuries.

Aside from the requirements of the statute, the facts involve much the same principle found in the so-called “step in the darkness cases” such as McKinley v. Niederst, 118 Ohio St., 334, 160 N. E., 850; and E. Kahn’s Sons Co. v. Ellswick, 122 Ohio St., 576, 172 N. E., 668. To proceed onward, not knowing Avhat was in his path, seems to he conclusive evidence of contributory negligence, justifying final judgment against the plaintiff. Judgment should be so rendered accordingly.


source: Caselaw Access Project

author: Matthews, P. J.

license: Public Domain

text:
    Fireman’s Fund Indemnity Co., Appellant, v. Shelby Mutual Casualty Co., Appellee.
    (No. 7716
    Decided May 18, 1953.)

      Messrs. Bolle, O’Donnell, Gash, Fee £ Halm, for appellant.

      Messrs. Davis £ Farley, for appellee.
   Matthews, P. J.

This is an action by one insurance company to compel another insurance company to contribute a share of a sum of money paid by one in proportion to the ratio their policies bear to one another. The Court of Common Pleas rendered judgment for the defendant. This appeal on questions of law is from that judgment.

The plaintiff issued a “comprehensive general liability” policy to Moskowitz Bros. Among other things, it insured Moskowitz Bros, against, loss from “bodily injury liability” in favor of any individual in a sum not exceeding $100,000. The policy contained a condition limiting its liability in the event of other insurance in this language:

“If the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss.”

The defendant issued to Jack Hoffman and Sam Greenbaum, doing business as Apex Waste Material Company a “national standard automobile” policy insuring them against loss not exceeding $50,000 to any person for bodily injury caused in the operation of specified trucks in the conduct of their business. The policy contained a provision that “use of the automobile for the purposes stated includes the loading and unloading thereof.” It also contained a definition of insured, as follows:

“With respect to the insurance for bodily injury liability and for property damage liability the unqualified word ‘insured’ includes the named insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission. ’ ’

The policy included also a provision similar to that contained in the plaintiff’s policy, limiting liability to a proportionate amount of the loss in the event the insured had other insurance.

On October 20, 1950, while both insurance policies were current, Sam Greenbaum was injured while on the premises of Moskowitz Bros. A truck owned by Hoffman and Greenbaum, doing business as Apex Waste Material Company, arrived, loaded with scrap metal, which they had sold to Moskowitz Bros. The truck was one, in the operation of which, the defendant had agreed to indemnify Apex Waste Material Company against loss resulting from claims based on bodily injury. The truck was backed into the loading dock of Moskowitz Bros. Two employees of Moskowitz Bros, were engaged in dragging an iron plate, six feet square, along the dock, intending to use it to bridge from the rear of the truck to the dock. As they were passing Sam Greenbaum, the plate slipped from their grasp and fell on Greenbaum’s foot, injuring it.

Greenbaum made claim against Moskowitz Bros, for damages on account of his injuries. Moskowitz Bros, notified their insurer, the plaintiff in this case. The plaintiff notified the defendant and called upon it to pay a proportionate share of any settlement.

Greenbaum commenced an action against Moskowitz. The defendant refused to participate in the defense of the action on the ground that the unloading of the truck had not begun and “therefore Moskowitz Bros, was not an insured under its policy. ’ ’

Thereafter, the plaintiff compromised the claim for $2,750, which, it is agreed, was reasonable, and it was agreed also that $400 was a reasonable fee for services in that case. This action is for $1,050, which is one-third of the total.

Much of the argument before us was devoted to a discussion of whether the unloading of the truck was in process at the time Greenbaum was injured. On the one hand, the defendant contended, as it did in its refusal to participate, that the unloading had not started ; and, on the other hand, the plaintiff contended that the unloading had begun within the -meaning of the policy. Each cited and commented on many cases to elucidate this point. However, we do not believe the decision of the ease requires a decision on that point.

We prefer to place our affirmance of this judgment upon two other reasons advanced by defendant, either of which we deem sufficient.

(1) As already noted, both policies contained a provision limiting the insurer’s liability to a proportionate share in the event its insured had other insurance. Assuming that its insured (Moskowitz Bros.) had other insurance, the limit of the plaintiff’s liability was its proportionate share. If its insured had no other insurance, then the plaintiff’s obligation was to afford complete indemnity to the maximum amount named in the policy. In either contingency, any payment made by it was in discharge of its obligation and no one else’s. Any sum paid beyond its obligation was the act of a mere volunteer, giving rise to no cause of action in his favor. On this point, we are of the opinion that the case of Farm Bureau Mutual Automobile Ins. Co. v. Buckeye Union Casualty Co., 147 Ohio St., 79, 67 N. E. (2d), 906, is dispositive of this case. We quote the sixth, seventh and eighth paragraphs of the syllabus of that case:

“One who, with knowledge of the facts and without legal liability, makes a payment of money, thereby becomes a volunteer.

“Equity will not aid a volunteer.

“If the policy of each of several insurers limits its liability to such' proportion of a loss as the amount insured by such insurer bears to the total applicable limit of liability of all valid and collectible insurance against such loss, the payment by one insurer of more than its proportion of a loss creates no right to contribution from the other insurers.”

(2) The other reason, equally conclusive, supporting the validity of the judgment is that the-proof shows no other insurance to which the provision relating to contribution could apply.

As we view it, the plaintiff’s insured had no other insurance. Its insured was Moskowitz Bros. It is not suggested that they had any other insurance covering this risk. The existence of such other insurance is essential to bring into operation the contribution provision.

It is true that Hoffman and Greenbaum, doing business as Apex Waste Material Company, were insured against loss from claims based on personal injury under the policy issued to them by the defendant, but we fail to find any legal or equitable principle that would require it to share the burden of a risk it had not assumed.

Assuming that Greenbaum’s injury was occasioned in the use of the truck of Apex Waste Material Company, that would impose no obligation upon the defendant. Its policy did not insure the partners constituting Apex Waste Material Company against accidental injury to themselves. It was indemnity insurance in their favor against the claims of others.

Greenbaum made no claim against Apex Waste Material Company, the defendant’s insured. It is fundamental that a partner has no cause of action at law against the partnership of which he is a member. A litigant cannot sue himself. The rule is so fundamental and long standing that it would be difficult to trace it to its source. It is emphasized in bold type in 68 Corpus Juris Secundum, 552.

As defendant’s policy imposed no liability upon it to its insured, that is an additional reason for our conclusion that defendant is under no obligation to share the plaintiff’s burden of indemnifying its insured.

For these reasons, the judgment is affirmed.

Judgment affirmed.

Matthews, P. J., Ross and Hildebrant, JJ., concur.


author: Ross, J.

text:
    Sinclair Refining Co., Appellant, v. Romohr et al., Appellees.
    (No. 171
    Decided July 7, 1953.)

      Messrs. Smith & Nichols, for appellant.

      Miss Helen Pulse Roades and Messrs. Nichols, Speidel & Nichols, for appellees.
   Ross, J.

This is an appeal on questions of law and fact from a judgment of the Court of Common Pleas of Clinton County, Ohio. The record made below and a stipulation are agreed to be the evidence presented to this court. This action is one to quiet title to certain real estate. The defendants prayed also for a decree quieting title to the area in dispute.

The plaintiff asserts ownership to lots Nos. 102, 103, and 104 in C. Lazenby’s addition to the village of Blanchester, Ohio, which property is also described by metes and bounds.

The defendants assert ownership of lots Nos. 100 and 101 in such addition. It is alleged in their answer that the defendants acquired title to such lots from the administrator of the estate of Nannie A. Jack, who succeeded to the title from Lewis Jack; that lot No. 101 adjoins lot No. 102 on the east; that the western boundary of such lot is marked by a garage and fence which had been in existence for more than 21 years, having been erected by the defendants’ predecessors in title; and that such line has been constantly disputed by plaintiff and its predecessor in title for more than 21 years, they having claimed that the garage and fence are an encroachment upon lot No. 102.

In the alternative, defendants claim title and possession of lot No. 101, as defined by a fence line, by virtue of a correct and true fixing of such line by a survey, and, also, by adverse possession, if such line is not fixed by correct survey.

No reply was filed by plaintiff.

From the evidence it appears that there are no authentic monuments in the village of Blanehester from which lot lines can be definitely located; that the garage located on the disputed area was erected in 1922 by Lew Jack, husband of Nannie A. Jack, on a line with a fence along the disputed area; that lots Nos. 102, 103, and 104 were owned by the Public Oil Corporation from 1920 to 1930, and, thereafter, owned by the plaintiff; that the garage and fence were removed by the defendants in 1951, and replaced by a new fence along the same line; that Nannie A. Jack died in 1949, having been in possession of lots Nos. 100 and 101 since 1899; that lots Nos. 100 and 101 were sold on September 12, 1949, by Nannie A. Jack’s administrator in an action brought for the sale thereof to pay the debts of her estate; and that the auctioneer at the public sale designated the garage and fence as the boundary of the property being sold, the defendants being advised that there was a dispute as to the line and being assured by the attorney for the administrator that the line would be sustained along the fence.

It appears, therefore, that the line of the present fence has been definitely marked by a garage, a fence, and by other structures since 1922. The attempt of the plaintiff to show that this fence line is not the true boundary between lots Nos. 101 and 102 fails; largely because of the absence of definite, authentic monuments in the village of Blanchester from which true courses and distances may be run. Apparently, also, this line was definitely recognized and fixed at the administrator’s sale, although involved in a dispute.

Possibly the task of the court should end here with this conclusion in favor of the defendants.

The defendants, however, rely on the defense of adverse possession, as well as the claim of a true boundary fixed by the fence. As to this defense and counterclaim of the defendants, who .seek also to quiet the title against the plaintiff, the plaintiff says the defendants have no privity with either the heirs of Nannie A. Jack or with her; that her administrator had no possession of the real estate he sold at public sale to pay debts sufficient to connect the adverse possession of Nannie A. Jack and her heirs with that acquired by the defendants at the administrator’s sale. The weight of authority fails to sustain this position of the plaintiff.

The better rule is stated in Stalcup v. Lingle, 76 Ind. App., 242, 131 N. E., 852, where the court said in the second paragraph of the syllabus:

“The possession of the purchaser at an administrator’s sale, and of the administrator for the purpose of sale, and of the heirs of the decedent, constitute one continuous possession, all referable to and connected with the possession of the decedent. ’ ’

To the same effect are the cases of Acton v. Lamberson, 102 Ore., 472, 202 P., 421; Rogers v. Johnson, 125 Mo., 202, 28 S. W., 635; Ricker v. Butler, 45 Minn., 545; and Cochrane v. Faris, 18 Tex., 850. See, also, 4 Tiffany Real Property (3 Ed.), 437, Section 1146; 18 Ohio Jurisprudence, 675, Executors and Administrators, Section 614; 1 American Jurisprudence, 882, Adverse Possession, Sections 154, 155; and 2 Corpus Juris Secundum, 656, Adverse Possession, Section 96 b.

The theory running through these authorities is that heirs take the title of the intestate, subject always to the rights of creditors of the decedent, and that, where the administrator at public sale transfers title to and possession of property sold to pay debts, he transfers the residual interest of the heirs who would otherwise have been entitled to both the title and the right to possession. It is unquestioned that the heirs would have had such privity with their ancestor as to permit tbem to tack their possession to the ancestors, and a deed from such heirs would have carried the chain of privity of adverse possession to their grantee.

Another contention of the plaintiff is that the deed to lots Nos. 100 and 101 did not convey the disputed area. This position is not sustained by the Ohio authorities. 1 Ohio Jurisprudence (2d), 742, Adverse Possession, Section 55. See, also, Paulken v. Rose, 31 Ohio Opinions, 260, a well-considered opinion (Common Pleas) by Fess, J.

The several positions of the plaintiff are untenable, and the defendants are entitled to a decree quieting their possession and title against the plaintiff, along the established fence line.

A decree similar to that entered by the trial court may be presented.

Judgment accordingly.

Mattheavs, P. J., Ross and Hildebrant, JJ., concur.


author: Hurd, P. J.

text:
    The State, ex rel. Cullitan, Prosecuting Attorney, v. Stookey et al.

      (No. 22409
    Decided May 11, 1953.)

      Mr. Frank T. Cullitan, prosecuting attorney, Mr. Ralph Vince and Messrs. Jones, Day, Cockley é Reavis, for relators.

      Mr. Wilbert J. O’Neill and Mr. R. J. Newton, for respondents.
   Hurd, P. J.

On December 7, 1951, relator instituted in this court an original action in quo warranto (under Section 12318, and related sections of the General Code) asking for a judgment of ouster against Donald H. Thorburn, claiming to hold office as a director of The Gas Machinery Company, an Ohio corporation.

The controversy relates to the voting rights of a certain block of 200 shares of stock of the company, which rights are claimed both by Joseph C. Calhoun, Jr., as trustee, who supports the relator in this suit, and by Kenneth W. Stookey, one of the respondents, who supports Donald H. Thorburn, the principal respondent.

Upon the issues being made by appropriate pleadings, the parties made application to this court for appointment of a special commissioner to conduct hearings and submit to the court in writing findings of fact and conclusions of law, the court reserving full power of review.

Pursuant to such order, Paul J. Bickel was appointed special commissioner, hearings were had and testimony was presented on both sides, whereupon the special commissioner filed his report which contains an analysis of the pleadings, together with his findings of fact and conclusions of law, and, finally, a recommendation that judgment be entered in favor of respondent Thorburn, denying an order to oust him as director, and sustaining his right to occupy the office of director.

Thereafter, briefs were filed by the respective parties, extended oral arguments were heard, and we come now to a decision on the motion to confirm the report and recommendation of the special commissioner.

There is no serious dispute as to the facts, but there is serious dispute as to the conclusions of law. Therefore, we include herein a statement only of such facts and parts of the commissioner’s report as are necessary to indicate the reasons for our decision.

On June 24, 1948, The Gas Machinery Company, through the unanimous action of its board of directors (Stookey not voting) authorized Stookey to purchase 200 shares of its treasury stock at $225 per share, or $45,000; such amount to be paid over a period of 10 years. Stookey gave a promissory note for $45,000 to the company, bearing interest-at the rate of two percent per annum, maturing in 10 years, and the company issued certificate No. 105 to Stookey for the 200 shares of stock. The note was to be secured by the company retaining possession of the stock certificate so issued to Stookey, together with a stock power conveying (if certain requirements of the purchase were not complied with) the 200 shares or part thereof back to the company. No formal pledge agreement was entered into, and, by resolution, it was provided that issuance of the 200 shares gave Stookey the immediate right to vote such shares and receive dividends on the entire number. However, this transaction was not one for an absolute purchase but was a continuing offer on the part of the company to authorize and help Stookey to purchase the stock upon the following conditions:

1. That he remain with the company.

2. That if he should die, or leave the company, before the expiration of the 10-year period (prior to the full payment of such note) the note should be can-celled, and he or his estate should receive as many full shares at $225 per share as would most nearly equal the total of such principal payments paid.

3. That if still with the company at the end of the 10-year period, and if such note is not paid in full, Stookey should receive as many full shares as the payments theretofore made would most nearly equal the total of such principal payments; the balance of the note to be cancelled by the company.

Concerning this transaction, the report of the special commissioner contains the following comments under the heading of conclusions of law:

“The first question to be considered in this case is whether or not there is in issue the question whether the transactions between the company and Stookey under date of June 24, 1948, had the legal effect of vesting in Stookey the immediate ownership of the 200 shares, the voting rights in respect of which are in dispute in this case. The transactions in question are evidenced by the resolution adopted by the board of directors on that date (plaintiff’s exhibit 11) Stookey’s promissory note of the same date given to the company (plaintiff’s exhibit 13) stock certificate No. 105 (plaintiff’s exhibit 15) issued by the company in Stookey’s name, and the stock power (plaintiff’s exhibit 18) delivered by Stookey to the company in connection with his re-delivery to the company of stock certificate No. 105. As hereinafter stated, these transactions may merely have resulted in the granting by the company to Stookey of an option, without consideration, to purchase 200 treasury shares of the company. However, at the hearing before the commissioner and in the briefs thereafter filed with the commissioner, both sides took the position that the transactions above mentioned, resulted in a sale consummated on June 24, 1948, by the company to Stookey, of 200 treasury shares of the company at $225 per share, that payment for the shares was made by Stookey’s note in the principal sum of $45,000 dated June 24, 1948, maturing by its terms ten years from date and bearing interest at the rate of two per cent per annum; that said note" was secured by the pledging by Stookey with the company of the shares so purchased from the company and that upon the happening of certain events, Stookey, or his estate, would be entitled to receive delivery of a certificate representing the number of shares paid for and the company would reclaim or ‘recapture’ the shares not finally paid for by credits on the note..

“Both sides assumed that from and after June 24, 1948, dividends were properly payable to Stookey on the 200 shares and that the shares could be voted, the only dispute being as to whether Stookey had transferred such voting rights to Calhoun.

“Plaintiff, in his brief herein filed, expressly disclaims any advantage that might result from holding that the transactions resulted only in the granting of an option to Stookey. * * *

“Likewise, in the brief for Stookey, Steinwedell, Thorburn, and the company, defendants * * * it is contended that the transactions here under consideration resulted in an immediate sale and that the 200 shares have voting rights.

“The question therefore arises whether the court should make an independent determination of the legal effect of the transactions in question, so far as the validity of the issuing- of the 200 shares to Stookey is concerned, regardless of the fact that the parties hereto have tendered no issue on that point. If, in spite of the apparent agreement of all parties to this suit that the 200 shares were actually sold to Stookey on June 24, 1948, the court decides that it is necessary to determine that question sua sponte, then the following are my legal conclusions in respect thereto:

“1. The resolution (plaintiff’s exhibit 11) imposes no obligation on Stookey to purchase any of the 200 shares. While the resolution provides that he shall give a note for the entire ptirchase price, and the note so given on its face is an unqualified obligation to pay, the resolution and the note must be considered together, and so taken, the note becomes illusory and of no effect, because paragraph 2 of the resolution provides that if, at the end of the ten-year period, full payment of the note has not been made, the note shall be can-celled and returned to Stookey, and the company shall then deliver to him shares in a number theretofore paid for by him at the price of $225 per share, it being implied that the other shares revert to the company. A similar provision applies in the event of his death or his ceasing to be affiliated with the company prior to full payment of the note. Thus, Stookey need never pay the note and the company cannot enforce it against him. Davis v. Rolley [124 Kan., 132], 257 Pac., 746 (Kans.), is a similar case.

“2. The provision in the note for payment of interest is without effect, because it was put in there on the assumption that the note imposes an obligation on Stookey.

“3. As Stookey did not become obligated to purchase any of the shares, there was no consideration for delivering the shares to him, he was not entitled to the shares, and the stock certificate issued to him was without legal effect. The last sentence of Section 8623-22 of the General Code as it stood prior to the amendment thereof in 1949, is applicable:

‘Promissory notes, drafts or obligations, of a subscriber or purchaser, shall not be accepted in payment for shares, nor shall shares be issued for future services.’ (Emphasis ours.)

“Even if the note were an obligatory one, the quoted sentence would be applicable. For note on this subject, see 58 A. L. R., 708.

“4. Section 8623-36 cited by defendants, which authorizes the sale of shares to employees, uses the terms ‘sale’ and ‘payments’ in their ordinary sense, and payment by means of a note which is not obligatory does not constitute payment within the meaning of that section.

“5. The shares in question, therefore, continued to be owned by the company as treasury shares and no dividends would be payable thereon, and no one could vote them.

“6. In the event that from time to time Stookey made payments on account of the principal of the note, such payments were merely payments on account and would not result in the immediate purchase and ownership by him of any shares, this for the reason that the resolution provides that in three cases, namely, his death, his ceasing to be affiliated with the company, or the expiration of ten years without having made full payment of the note, the company shall deliver shares to him to the extent paid for, which provisions seem to exclude an obligation on the part of the company to make deliveries of shares piece-meal from time to time.

“7. The shares still being owned by the company, the total number of shares outstanding at the time of the shareholders’ meeting held on November 30, 1951, was 857 and not 1057, and neither Stookey nor Calhoun could vote the 200 shares. It follows from this that the motion to remove the board was carried by the vote of 436 shares cast in favor thereof as against 421 shares cast against.

“8. It also follows that if the board was removed as above mentioned, then the directors elected at the meeting were Steinwedell, Stookey, Calhoun, Kyle and Knochel, and that the 1000 votes (based on the 200 shares) cast by Stookey in favor of Thorburn were without effect, and therefore judgment should be entered ousting Thorburn from office. * * *.

“The foregoing conclusions of law, if followed by the court, would be dispositive of this case and there would not remain any issue as to whether the 200 shares were deposited under the voting trust agreement, or whether irrespective of such deposit, Calhoun became vested with the voting rights thereof. ’ ’

In the opinion of this court, the foregoing conclusions of law are sound and necessarily dispositive of the issues in this case. The transaction of June 24, 1948, whereby a promissory note was delivered and accepted in payment for 200 shares of stock, was in direct violation of the provisions of Section 8623-22, General Code, and could not, and did not result in a consummated sale as of that date. This must be true, because the transaction purported to give the purchaser, by a conditional promissory note, dividends and voting rights in a certificate of stock which, by reason of the prohibitory provisions of the statute, he did not then lawfully acquire and which for the same reason he does not now own and which, due to conditions subsequent, he-may never own. The special commissioner, in Ms report, recommends that this case shall not be decided on the basis of such conclusions for the reason that the parties in interest have considered the transaction of June 28, 1948, as resulting in a consummated sale and have considered the promissory note as constituting the purchase price of the shares subject to conditions subsequent and, further, because the shareholders are not questioning the lack or inadequacy of the consideration therefor, and because at annual meetings of the shareholders, no shareholder objected to the voting of the shares as such, and, finally, because at the hearing before the special commissioner, neither side tendered any issue on the validity of the issuance of these shares to Stookey and the payment of the dividends thereon.

In our opinion, these considerations are not valid reasons for ignoring the plain and unambiguous provisions of the statutes of Ohio enacted for the purpose of regulating and controlling the issuance of and payment for corporate shares.

So far as we are able to ascertain, the constitutionality, or the validity of this provision has not been questioned in any authoritative Ohio cases. However in other jurisdictions, under statutes forbidding the issuance of stock except for money paid and property received, a note given in payment for corporate stock does not constitute “money paid” or “property received” and is not a good consideration for the issuance of stock according to the majority rule. See Annotation, 58 A. L. R., 708, supra, and cases therein cited.

However, as we view it, there is no good reason to analyze or discuss to any extent decisions of other jurisdictions in view of the plain and specific prohibitory language of the Ohio statute.

It is fundamental that a corporation, being a mere creature of the statute, can act in no other manner than that prescribed by the corporate laws of the state, and' cannot be permitted to disregard the absolute and manifest provisions contained therein. It is also of more than passing interest to note that when Section 8623-22, General Code, was amended, effective September 9, 1949, paragraph 3 thereof again contained the provision that promissory notes, drafts, or other obligations of a subscriber or purchaser shall not be accepted in payment of shares.

The parties inter se se for reasons of their own may have chosen to act without regard to the plain provisions of the statute. But when the jurisdiction of a court of law is invoked, it is fundamental that the court must follow and apply the law. It necessarily follows, therefore, that we may not validate by judicial sanction or decree a transaction which is unenforceable for want of consideration in violation of law.

Quo warranto is an extraordinary remedy, sometimes called a prerogative writ, designated in Section 12303, General Code, as a civil action. It is an action at law and not in equity and we must be governed in our judgment by the legal principles so clearly applicable to the facts in issue.

For the reasons stated, the motion to confirm the recommendation of the special commissioner that judgment be entered in favor of Thorburn and denying an order ousting him as a director and sustaining his right to occupy the office of director is overruled, and an order of ouster is allowed as prayed for.

Judgment accordingly.

Kovachy and Skeel, JJ., concur.


author: Younger, J.

text:
    The State of Ohio, Appellee, v. Steele, Appellant.
    (No. 165
    Decided December 18, 1952.)

      Mr. Reeder G. Hutchinson, for- appellee.

      Mr. Edwin S. Diehl, for appellant.
   Younger, J.

The defendant in this case was tried in the court of G. J. P. Louys, justice of the peace, Defiance township, Defiance county, on an affidavit charging him with operating a motor vehicle while under the influence of alcohol. After conviction, and affirmance of said conviction by the Common Pleas Court of Defiance County, an appeal to this court was taken in case No. 162. This court reversed the judgment of the Common Pleas Court for error in not con-

sidering the bill of exceptions filed in that court on December 1, 1951, and remanded the cause for a new trial with instructions to consider the bill of exceptions “in connection with a consideration of such of the errors assigned as may be exemplified thereby.”

Thereafter, on June 13, 1952, the Common Pleas Court of Defiance County heard the cause “upon the transcript and original papers of the justice of the peace court G. J. P. Louys, the assignment of errors, the bills of exceptions, and the briefs of the appellant, plaintiff-in-error, the appellee, defendant-in-error” and arguments of counsel, and, finding no error apparent upon the record to the prejudice of the appellant and that the judgment of the justice of the peace was sustained by the evidence, affirmed the judgment.

Prom this second judgment of the Common Pleas Court, the cause now comes to this court on appeal on questions of law.

The defendant assigns error in a number of particulars, but in his brief he expressly limits the assignments to the following issues :

1. Should the affidavit, upon which the arrest was made and the warrant to arrest was issued, have been dismissed because the officer making the affidavit was not present when any of the facts alleged occurred and had no positive knowledge of his own as to such acts?

2. Did the court err in admitting testimony over the objection of the defendant and in excluding testimony offered by the defendant to which he excepted at the time?

3. Was there sufficient evidence before the court to support the judgment of conviction?

In regard to the first issue, there is no connection between the knowledge which a police officer without a warrant must possess in order to make an arrest for the commission of a misdemeanor, and the amount of knowledge sufficient for him to have in order to sign an affidavit for the issuance of a warrant to arrest. Police officers may arrest for the commission of a misdemeanor without a warrant only where the offense was committed in their presence. We are not here considering the civil liability of a person making an affidavit for the issuance of a warrant to arrest. So far as the sufficiency of the affidavit is concerned, in a criminal proceeding the person making it need not have any personal knowledge of the facts alleged or have seen any of the acts committed.

Therefore, the Common Pleas Court was correct in affirming the judgment of the justice of the peace in refusing to dismiss the affidavit.

In this case, however, sergeant Grant, who signed the affidavit, did have some personal knowledge of the facts. He was called to the scene of the accident and arrived shortly after it occurred. The defendant and his automobile were still there. Grant talked to the defendant, observed the position of his automobile after the accident, and observed his speech, his actions, and his manner of walking.

The second issue is upon the admission and rejection of evidence by the justice of the peace. We have carefully read the entire testimony before the justice and find the second assignment of error to be without merit.

The third issue is that the evidence is insufficient to support a verdict of guilty.

The testimony of several witnesses for the state was to the effect that immediately after the collision and at the scene the defendant was confused and bewildered ; that he did not talk coherently; that he had a “weaving,” “staggering,” “swaying” or “unsteady” walk; that he had a “strong ©dor of alcohol on his breath”; and that “he was under the influence of liquor.”

The defendant testified that he had “two or three bottles of beer” several hours before the accident, that he had a diabetic condition and on his physician’s orders had used no hard liquor for over five years, and that, at the time, he was operating his car “in a normal condition.” A tavern keeper testified that when the defendant left the tavern an hour or so before the accident he was in a normal condition.

Under this conflicting testimony it was the duty of the trier of the facts, which in the instant case was the justice of the peace, to determine which witnesses to believe. He believed the witnesses for the prosecution and we cannot say that such evidence, if believed to be true, is insufficient to sustain a conviction for driving while under the influence of alcohol.

There are many and various degrees of being under the influence of alcohol, ranging all the way from the puritanical definition of “ever so slight,” such as is received from a small drink of fermented fruit juice or a small glass of beer or even a teaspoonful of whiskey for medicinal purposes to the more rugged or the famous drunkard’s definition:

“Drunk is not he, who from the floor Can rise again and still drink more. But drunk is he who prostrate lies Unable either to drink or rise.”

It is as equally absurd to permit the state to. obtain a conviction on the first definition as it is to require it to prove that the accused was in the sad state shoivn by the latter. Neither of such definitions certainly was the legislative intent when the present statute was enacted.

So far as we are aware, no clear-cut expression of what constitutes “under the influence” has been promulgated by the courts of this state, and there certainly ought to be some common-sense rule to use in dealing with this important and increasingly menacing problem.

In our opinion, being “under the influence” of alcohol or intoxicating liquor means that the accused must have consumed some intoxicating beverage, whether mild or potent, and in such a quantity, whether small or great, that the effect thereof on him was to adversely affect his actions, reactions, conduct, movements or mental processes, or to impair his reactions, under the circumstances then existing so as to deprive him of that clearness of the intellect and control of himself which he would otherwise possess.

It is not necessary to find the accused in a high state of excitement, enthusiasm, elation, frenzy or delirium, or even pugnacious to find him “under the influence,” as it is common knowledge that some persons react to the influence of liquor by becoming dull, sleepy, dejected or sad. And it is common knowledge also that different people react differently at different times.

Physical conditions, mental strain, lack of food, and tempermental variations in individuals affect in varying degrees the tolerance of the same individual to alcohol as these conditions increase or decrease with such individuals from time to time. So, it is' important that the effect on Ms actions and reactions under the circumstances then existing be borne in mind. It is not how many drinks of this or that the accused has had. A drink is not the same to all persons. There is a-difference between a sip and “three fingers,” yet each may be some person’s “drink.” It is not a question of how much liquor would have such-and-such an effect upon an ordinary person. The question is what effect did the liquor the accused consumed have on him at the time under consideration.

The Superior Court of Pennsylvania in Commonwealth v. Buoy, 128 Pa. Sup. Ct., 264, 193 A., 144, announced a rule largely in conformity with our opinion herein expressed, as follows:

“The Commonwealth was not obliged to prove that appellant was so intoxicated or drunk that he could not properly function or safely drive a car. The statute does not require proof of intoxication. All that the statute requires is that the appellant be under the influence of intoxicating liquor while operating a motor vehicle. * *• * The expression, ‘under the influence of intoxicating liquor,’ covers not only all the well known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in intoxicating liquors, and which tends to deprive one of that clearness of intellect and control of himself which he would otherwise possess.”

Applying the tests we have set forth above to the testimony of the state’s witnesses that immediately after the collision and at the scene the defendant was confused and bewildered; that he did not talk coherently ; that he had a weaving, staggering, swaying or unsteady walk; and that he had a strong odor of alcohol on his breath, we must conclude that this testimony, if believed, as it was by the trier of the facts, showed that the amount of alcohol consumed by the defendant, whether mild or potent, much or little, was such that it did then adversely affect his actions and impair his reactions. Such testimony is sufficient to warrant a conviction.

Judgment affirmed.

Middleton, P. J., and Guernsey, J., concur.