author:
Fess, J.
      Conn, J.,

text:
    Ross, Appellant, v. Heberling, Appellee.
    (No. 478
    Decided April 28, 1952.)

      Messrs. Dewey & Dewey, for appellant.

      Messrs. Culbert, Hyser & Culbert, for appellee.
   Fess, J.

This is an appeal on questions of law from a judgment dismissing plaintiff’s second amended petition after the sustaining of a demurrer thereto.

Plaintiff, a minor seven years' old, brings his action for damages against the defendant as owner of an apartment building on account of the alleged negligent construction of an outside stairway leading from the sidewalk to the second floor on which is located an apartment occupied by plaintiff’s uncle, whom plaintiff and his father had visited before his fall. The handrail consisted of an iron pipe, thirty inches above the steps, supported by three upright pipes located at the bottom, middle and top of the stairway, so that there was no guard or barrier between the rail and steps to prevent a child from falling off the stairway. Plaintiff and his father started down the steps, which were covered with ice and snow, and when plaintiff was down about three steps he slipped and fell off the steps between the handrail and steps to the sidewalk below, sustaining the injuries of which he complains. Plaintiff alleges that the stairway was used in common by all defendant’s tenants on the second floor and that defendant was in possession and control thereof.

Regardless of whether the so-called “handrail” statute (Section 1006, General Code) applies to outside stairways (Herbst v. Young Women’s Christian Assn., 57 Ohio App., 87, 11 N. E. [2d], 876. Cf. Goldberg v. Agudath B’Nai Israel Congregation, 66 Ohio App., 379, 34 N. E. [2d], 73), the settled common-law rule in effect in Ohio requires the owner of an apartment building to exercise ordinary care to keep common stairways in a reasonably safe condition. The rule exacts ordinary care on the part of a landlord to repair defects of which he has actual knowledge, or of which he would know had he exercised reasonable care in inspecting the premises in his possession or under his control. Tair v. Rock Investment Co., 139 Ohio St., 629, 631, 41 N. E. (2d), 867. Where a landlord maintains a stairway for the use of his tenants, he is, in general, liable for any injuries arising from his neglect to keep same in proper repair, and such duty extends not only to his tenant but also to members of his family, employees, guests and invitees. Davies, a Minor, v. Kelley, 112 Ohio St., 122, 146 N. E., 888; 52 Corpus Juris Secundum, 39, 58; 32 American Jurisprudence, 561, 567, Sections 688, 691. Cf. Ripple v. Mahoning National Bank, 143 Ohio St., 614, 621, 56 N. E. (2d), 289.

The petition alleges that the stairway was improperly guarded to protect a small child from falling off the steps. A question of fact is thereby presented for determination by the jury, unless no duty to provide additional guards other than the rail is imposed upon a landlord as a matter of law. It is said that there is no common-law duty imposed upon the owner to keep lighted, hallways and stairs used in common by his tenants (Petrey v. Lieuzzi, 76 Ohio App., 19, 61 N. E. [2d], 158; McKinley v. Niederst, 118 Ohio St., 334, 160 N. E., 850), but as indicated above, there is a common-law duty to exercise ordinary care to keep stairways in proper repair. It follows that an owner is also under a duty to exercise ordinary care in the construction and maintenance of stairways. No duty was imposed upon the landlord by reason of his failure to remove the ice and snow from the steps. Turoff v. Richman, 76 Ohio App., 83, 61 N. E. (2d), 486.

With respect to children, it has been held that the landlord may assume that those in authority will protect them and prohibit them from wandering in such places where they may be injured, and therefore the landlord, because of the possibility of injury to children, is not required to provide safeguards not otherwise necessary. 52 Corpus Juris Secundum, 68, Section 419. On the other hand, it has been held that use of a common stairway for a proper use by a young child is proper, whatever the manner, and me landlord must anticipate any manner of proper use. Saad, Admr., v. Papageorge, 82 N. H., 294, 133 A., 24. In the cited case, the child was unattended and the intermediate guardrail was defective, but the decision supports the theory that the landlord could reasonably anticipate the use of the stairway by children. See 2 Restatement of the Law of Torts, 814, Section 302, Comments i and m.

In the instant ease, whether the defendant as an ordinarily prudent person could have foreseen that children would use the unguarded stairway and fall off it presents a mixed question of law and fact for the jury under appropriate instructions as disclosed by the evidence adduced at the trial. Whether the proximate cause of the injury was the ice and snow, the failure of the accompanying parent to protect the child, or the negligence of the defendant in maintaining the unguarded steps is also a matter to be developed by the evidence at the trial and determined, by the jury. It is therefore concluded that, reviewing the allegations in their most favorable light to the plaintiff (Section 11345, General Code), the petition states a cause of action.

The judgment dismissing the petition is therefore reversed and the cause remanded to the Common Pleas Court with directions to overrule the demurrer.

Judgment reversed.

Conn and Savord, JJ., concur.

Conn, J.,

concurring. I concur in the judgment of reversal, but would place it on a somewhat different ground. The issue raised on the demurrer is the legal sufficiency of the petition. Under the rule of liberal construction, and also the rule that the demurrer of defendant admits all allegations well-pleaded, it appears that plaintiff’s petition stated a cause of action, grounded on the violation of a duty owing by defendant to plaintiff. At this time it can not be anticipated whether this is a common-law or statutory duty, or one arising out of contract.

It is conceivable that the answer of defendant may set up a complete defense and the issue of his liability be determined as a matter of law. On the other hand, as pointed out in the opinion of Judge Fess, an issue of fact or a mixed question of law and fact may arise on the pleadings. It is my opinion that these considerations are not raised by the demurrer.

I would overrule the demurrer on the ground that the petition states a good cause of action.


source: Caselaw Access Project

author: Hildebrant, P. J.

license: Public Domain

text:
    Mente, Appellee, v. Albers Super Markets, Inc., et al., Appellants.
    (No. 7474
    Decided December 10, 1951.)

      Messrs. Lindhorst & Dreidame, for appellee.

      Messrs. Clark, Pogue & Williams, for appellants.
   Hildebrant, P. J.

This appeal on questions of law is from a judgment entered on a jury verdict awarding damages to plaintiff for injuries sustained by reason of the partial consumption of a wiener or “hotdog” containing a foreign substance.

The plaintiff submitted her case on her own testimony and that of her mother-in-law.

It is not controverted that plaintiff purchased the wiener involved in a sealed package at a retail outlet of the defendant, excluding the possibility of any foreign substance getting in the wiener while in the store.

The court excluded as immaterial proffered testimony on behalf of the defendant as to who manufactured and the method of manufacture of the wiener, calculated to prove the impossibility of any foreign substance getting into the wiener during its process of manufacture.

The burden of proof rested upon the plaintiff to prove that the wiener actually contained a foreign substance, so that evidence by the manufacturer detailing the method of processing and manufacture of the particular wiener involved seems logically to be material, relevant and probative on the likelihood of any foreign substance getting into the product during such processing and manufacture.

The sole testimony that the wiener contained a foreign substance coming from the plaintiff and her mother-in-law, it became the peculiar province and duty of the jury to judge of the credibility of those witnesses in determining the ultimate fact to be proved.

The proffered evidence reflecting on defendant’s claim that it was impossible for a foreign substance to get into the product during processing and manufacture seems likewise material, relevant and of probative force in aiding the jury in its duty of determining the credibility of the witnesses.

The principles adhered to by this court in Witham v. Kroger Grocery & Baking Co., 51 Ohio App., 499, 1 N. E. (2d), 949, are both applicable and decisive of this case.

It, therefore, appears that the exclusion of the proffered testimony was error, prejudicial to the defendant, and for that reason the judgment is hereby reversed and the cause remanded for further proceedings according to law.

No other error prejudicial to appellant is apparent upon the record.

Judgment reversed.

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


author: Per Curiam.

text:
    Perkins, Appellant, v. World Ins. Co., Appellee.
    (No. 533
    Decided May 1, 1952.)

      Mr. Robert E. Fuller and Mr. Richard E. Morgan, for appellant.

      Mr. Marcus C. Downing, for appellee.
   Per Curiam.

This is an appeal upon questions of law from a judgment of the Common Pleas Court of Hancock County in an action wherein the appellant, Robert L. Perkins, was plaintiff and the appellee, World Insurance Company, was defendant.

The action is one brought by the plaintiff on an accident and health type policy of insurance with death benefits, issued by the defendant to Vivian G. Perkins, in which the plaintiff, husband of the insured, is named as beneficiary of death benefits.

The Common Pleas Court rendered judgment in favor of the defendant. This is the judgment from which this appeal is taken.

Plaintiff-appellant assigns error in that the judgment of the Court of Common Pleas is contrary to the weight of the evidence and is contrary to the law applicable to the facts.

The instant cause was submitted to the trial court and is submitted to this court upon the pleadings, an agreed statement of facts and the exhibits, including the policy of insurance and premium receipts.

Paragraph 3 of the standard provisions of the policy of insurance upon which this action is based provides as follows:

“3. If default be made in the payment of the agreed premium for this policy, the subsequent acceptance of a premium by the company or by any of its duly authorized agents shall reinstate the policy, but only to cover accidental injury thereafter sustained, and such sickness as may begin more than ten days after the date of such acceptance.”

As disclosed by the statement of facts in the case of Schwer, Admx., v. Benefit Assn. of Railway Employees, Inc., 153 Ohio St., 312, 91 N. E. (2d), 523, this paragraph is substantially the same as clause 3 of the standard provisions of the insurance policy under consideration in said cause.

In that case, the Supreme Court, interpreting, construing and applying said clause, held in paragraph three of the syllabus:

“Where a policy of insurance provides that upon a default in the payment of a monthly premium the subsequent acceptance of a premium by the insurer or its authorized agent will reinstate the policy, such acceptance of premium for such purpose constitutes a new contract, and to effectuate such reinstatement of the insurance contract it must be shown that the receipt of the payment was knowingly accepted by the insurer or its agent for the purpose of reinstatment of the policy and not as a payment of overdue premiums on the original contract of insurance. ’ ’

In this ruling the Supreme Court apparently considered the policy provision relating to reinstatement as contemplating a new contract prescribing a different period of coverage and/or a different date for the payment of premium than prescribed in the contract of insurance in effect at the time the default in payment of premium occurred, which contract would have continued in effect if the payments made by the insured were considered as payments on overdue premiums.

The official premium receipt, stamped “Reinstatement,” dated December 1, 1948, shows receipt by the insurance company of a quarterly premium amounting to $15 “paying until 12 o’clock noon, central standard time March 1, 1949.” This receipt changed the original policy of insurance from an annual basis to a quarterly basis with corresponding change in the date upon which premiums were to be paid thereafter.

The official receipt issued under date of March 14, 1949, for premium payment of $15 shows conclusively that the next premium due date was three months from March 1, 1949, being June 1, 1949.

The official premium receipts issued under dates of June 9, 1949, September 14, 1949, and December 7, 1949, are upon different forms than the receipts issued prior to June 9, 1949. The form on which these receipts are printed is in two colors, the left two-thirds thereof being a yellow figured design and the right one-third thereof being white.

The number of the policy and the words, “Premium Receipt,” appear on the left yellow figured part followed on the same part by a notation: ‘ ‘ This receipt is issued subject to the conditions on reverse side hereof,” which immediately precedes the following blocked data in the receipt issued under date of June 9, 1949, to wit:

NEXT PREMIUM DUE Amount DATE DUE

3 Mos from Date Paid Mo Day Yr

3 3 0 3 3 1 1 9 15 00 06 01 49

The left colored portions of the receipts under dates of September 14, 1949, and December 7, 1949, respectively, differ from the yellow portion of the receipt issued under date of June 9, 1949, in that in the right block of the September receipt appear the figures, “9 01 49,” and in that in the right block of the December receipt appear the figures, “12 01 49, ’ ’ instead of the figures, “06 01 49,” appearing in the June receipt.

On the right white side of each of these receipts appears a printed acknowledgment of receipt of payment of premium which in addition recites:

“This receipt to be valid must be dated and countersigned by a person authorized to receive premiums.”

This acknowledgment and recital bears the printed signature of “D. L. Éilers, Treasurer.”

Below this signature appear two blank lines, the first for the rubber stamping of the date and the second for the rubber stamping of the signature of the cashier or agent countersigning the same.

The rubber-stamped date in the June acknowledgment of receipt of payment is “Jun 9 1949,” in the September acknowledgment of receipt of payment is “Sep 14 1949,” and in the December acknowledgment of receipt of payment is “Dec 7 1949.” All these receipts bear the rubber-stamped signature of “C. S. Borin.”

Upon the reverse side of each of said receipts one of the conditions referred to on the face of each of said receipts as being conditions upon which said receipt is issued is in the words following, to wit:

“Payment of the premium, if made on or before the due date, as shown on the face hereof, keeps your policy in continuous force, for the period for which the premium has been paid, and if made after that date, reinstates the policy on the date of this receipt, subject to the terms and conditions of said policy.”

Considering these receipts in connection with the other exhibits in the case and the agreed statement of facts it would appear that reasonable men could not reach any reasonable conclusion other than that the phrase, “Next Premium Due 3 Mos. from date,” refers to the date appearing in the block to the right on the yellow part of the receipt and not to the date rubber-stamped in the blank following the acknowledgment of receipt of payment, and that such receipts contemplated the advance payment of quarterly premiums upon March 1, June 1, September 1, and December 1 of each year that the policy should remain in effect.

Consequently the quarterly premium for the quarter year commencing in March 1950 became due on March 1,1950, and upon nonpayment thereof on said date the policy lapsed and was not in force at the time of the death of the insured on March 8, 1950, and applying the above quoted ruling of the Supreme Court the plaintiff had no right of action on said policy.

However, assuming that the official receipts mentioned constituted some evidence of change in dates of the times such policy of insurance should remain in effect, as opposed to the evidence referred to in the preceding paragraphs, a finding and judgment for plaintiff based on such evidence would have been manifestly against the weight of the evidence.

Furthermore, if the date December 7, 1949, appearing upon the last acknowledgment of payment of premium, is considered as the commencement date of the last quarterly period of coverage, the insurance expired on March 7, 1950, before the death of insured.

For the reasons mentioned, we find that plaintiff’s assignment of error is without merit and that the judgment of the Common Pleas Court should be and is hereby affirmed at the costs of the plaintiff, and the cause remanded for execution.

Judgment affirmed.

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


author: Matthews, J.

text:
    Friedman, Appellee, v. City of Cincinnati, Appellant.
    (No. 7544
    Decided April 14, 1952.)

      Mr. James G. Headley and Mr. Robert E. Bernens, for appellee.

      Mr. Henry M. Bruestle, city solicitor, Mr. J. B. Grause, Jr., and Mr. Maurice W. Jacobs, for appellant.
   Matthews, J.

This is an appeal from a judgment rendered on a verdict for the plaintiff for damages on account of personal injuries received in a fall upon the sidewalk in front of 1019 West Liberty street in the city of Cincinnati. The plaintiff’s contention was and is that the sidewalk was in a defective condition, caused by the failure of the defendant to use reasonable care to maintain it in a reasonably safe condition for travel in the ordinary manner, or, in other words, by its failure to keep the sidewalk in repair and free from nuisance, as it was required to do by Section 3714, General Code. While the defendant’s answer placed in issue the plaintiff’s allegations that it had failed in its duty to keep this sidewalk in repair and free from nuisance, the record contains sufficient evidence to carry that issue to the jury, and this court would not be justified in disturbing its finding thereon. The real defense, and the one earnestly urged upon our consideration, was and is that the plaintiff failed to exercise due care for his own safety.

At the time of this accident, the plaintiff was on his way from his home in the city of St. Bernard to his place of employment at the post office annex at Liberty and Dalton streets, in the city of Cincinnati. He went by public conveyance from his home and usually alighted at Western avenue, at the ball park, but, on this occasion, he missed that stop and proceeded on the bus to the next stop, which was at Liberty street and Freeman avenue. It does not appear in the record where the post office annex is in relation to these points, but, presumably, Liberty street and Freeman avenue is one square farther from the annex than Freeman avenue at the ball park. The plaintiff usually reported for duty at 11 o’clock in the morning and it was about that time when he arrived on the sidewalk in front of 1019 West Liberty street, proceeding westwardly.

The only evidence as to what happened at the time and place of the accident is contained in the plaintiff’s own testimony. He testified as follows:

“Q. Then where did you go? A. I proceeded west on Liberty street.

“Q. You had an accident on that date? A. I did.

“Q. Where did that happen? A. At 1019 West Liberty.

“Q. What time of day was it? A. Approximately 11 then.

“Q. What kind of day was it? A. Mucky day.

‘ ‘ Q. From the point where you got off the bus at the southwest corner of Liberty and Freeman what route did you follow? A. I went down Liberty street.

“Q. On which side of the street? A. On the south side.

“Q. Were you familiar with the neighborhood? A. No, I was not.

“Q. Had you ever walked over Liberty street before? A. No, I had not.

“Q. When you arrived at 1019 Liberty street, tell the jury in your own words just what happened and how it happened? A. I was walking along the sidewalk proceeding to the annex, and I saw this sidewalk there and it was broken and I used due caution * * *

“Mr. Grause: I object and ask that portion go out.

“The court: That part of the answer may be stricken and the jury is instructed to disregard'it.

“Q. Tell us what you did? A. My feet slipped from under me and I went down.

“Q. Describe the condition of the sidewalk. A.The sidewalk was broken, a portion of it was slanted.”

There were steps leading up to the adjoining building and these steps extended out into the sidewalk space. He testified that his left leg “was closest to the steps” and that his foot went out from him in that location. He also testified that traffic was very heavy on West Liberty street at that time.

On cross-examination, he testified:

“ Q. In other words, you were traveling alone at the time and there was nobody around at the time you fell. A. Not to my knowledge.

“Q. As to the 17th, for twenty-four hours, and as to the 18th, up to the time of your accident, it was absolutely dry and there was no precipitation of rainfall or snowfall, or anything like that? A. The 17th I said I didn’t know; that 18th there was water there on the sidewalk.”

On redirect examination, he testified:

“Q. And at what rate were you walking at the time you were hurt? A. Normal.”

On recross-examination, he said he approached the place where he was hurt at a normal rate of speed.

There is no evidence that plaintiff’s fall was caused by any movement of any portion of the sidewalk, or that he stumbled on any uneven surface, or that his foot caught upon any obstruction or depression. As stated by plaintiff’s counsel in their brief: “Plaintiff elected to pass over the solid slanted portion of the sidewalk, and in doipg so his left foot slipped out from under him, causing him to fall and sustain the injuries complained of.” The record does not disclose the cause of his slipping, unless we are justified in drawing an inference from the fact that it took place upon a sloping.surface.

It is thus seen that there is no claim that the plaintiff’s injuries were caused by any hidden defect. If any unusual or' abnormal condition of the sidewalk had anything to do with his fall, it was the slanting of the concrete block upon which he stepped, of which he was fully aware before and at the time he stepped upon it. Notwithstanding this knowledge, the plaintiff asserts that the circumstances presented an issue of fact as to whether he exercised due care in electing to step on the slanting concrete slab. He claims that he had no alternative course that did not present equal or greater hazards or was not unreasonably circuitous. The only evidence as to the hazards of an alternative course is his testimony that the traffic on West Liberty street was very heavy at that time. We find no evidence in the record as to the existence of other routes by which he could have reached his destination, other than his statement that he would have been required to retrace his course 300 feet to the bus stop, then go one square to Sherman, and down Sherman to the annex. How far that would be is not stated. However, let us examine this doctrine of alternate routes as applied to injuries received from conditions of which the injured person had full knowledge at and before the receipt of his injuries. Does the doctrine apply to a case where no hidden defect existed? Does it authorize a recovery notwithstanding the general rule that where a person proceeds with full knowledge and awareness of all the facts and is injured without any other intervening cause, he is the author of his own injury?

The plaintiff relies on several Ohio cases. We shall examine them.

The facts in City of Toledo v. Fuller, 7 C. C. (N. S.), 598, 17 C. D., 729, do not present a case of an injury resulting from a condition of which the plaintiff knew and deliberately chose to expose himself. The plaintiff was injured while walking on a board sidewalk, accompanied by another pedestrian. Her companion stepped upon a loose board “which flew up and tripped her down.” The plaintiff testified tha.t she “did not know that these boards were loose at this particular point.” Manifestly that does not show an injury resulting from a static condition of which the plaintiff was fully aware.

The facts in City of Cincinnati v. Guth, 11 C. C. (N. S.), 382, 20 C. D., 834, are almost identical with those in City of Toledo v. Fuller, supra, and need no further comment.

Smith v. City of Toledo, 11 C. C. (N. S.), 167, 20 C. D., 454, affirmed, City of Toledo v. Smith, 79 Ohio St., 459, 87 N. E., 1133, was another case of an injury while using a board sidewalk. The plaintiff was injured by stepping upon a decayed plank, which broke. “At the particular point where the injury was received, the sidewalk, according to the testimony of the plaintiff, appeared to be in fair condition. ’ ’ It was a case of a concealed or hidden defect causing an injury. It was not a case of injury resulting from a known, obvious, static condition.

In City of Cincinnati v. Green, 9 Ohio Law Abs., 213, the accident occurred at night. While the plaintiff knew of the defective condition, she did not knowingly subject herself to the hazard while it was in full view.

It seems to us that the Supreme Court stated the correct rule in the syllabus to Village of Conneaut v. Naef, 54 Ohio St., 529, 44 N. E., 236, and that the rule thus stated has never been departed from or modified by the Supreme Court, although some attempts have been made by trial and intermediate courts. It is: “One who goes voluntarily upon an accumulation of ice on a walk of a village cannot maintain an action against such village for a personal injury resulting to him, if the source of danger is plainly visible.”

Coming now to the more recent decisions of the Supreme Court, the first one that has been discussed at the bar is Highway Construction Co. v. Sorna, 122 Ohio St., 258, 171 N. E., 312. In that case the defendant, under a contract with the village of Maple Heights, was engaged in a street improvement, in the course of which it had made a cut which left an abrupt or perpendicular offset or bank of dirt 12 to 18 inches in height at a street crossing, so that a person desiring to cross was obliged to step down to the new level, cross the street and then step up a similar distance on the other side. No boards or other means of retaining the dirt was provided. No other means of crossing existed at that point, and no other means of getting across except by wading through mud and water, through dense traffic, over a circuitous route of many blocks existed. The plaintiff attempted to cross at the regular crossing where the excavation had been made, stepped on the edge of the embankment, which crumbled under ber weight, and caused her to fall, by reason of which she was injured. She sued the contractor. The case was submitted to the jury which returned a verdict for the plaintiff and answered this interrogatory : “Did the plaintiff see and know the nature and character of the excavation on Anthony street before and at the time of passing over it? A. Yes.” It was claimed that this answer required a judgment for the defendant, notwithstanding the general verdict. The Supreme Court held otherwise. The defendant relied upon City of Norwalk v. Tuttle, 73 Ohio St., 242, 76 N. E., 617, and particularly the second paragraph of the syllabus, providing:

“One who voluntarily goes upon a sidewalk of a city which is obviously, and by him known to be, in a dangerous condition, cannot recover on account of injuries which he may thereby sustain, even if the negligence of the city is admitted or shown. (Schaefler v. The City of Sandusky, 33 Ohio St., 246, and The Village of Conneaut v. Naef, 54 Ohio St., 529, approved and followed.)”

The Supreme Court in Highway Construction Co. v. Sorna, supra, at page 265 said:

“This principle of law is well settled in Ohio, and this court so recognizes. However, we do not regard the same as applicable to this case, for the reason that Mrs. Sorna’s injury was not caused by the open and apparent defects of which she had knowledge, to wit, the excavated street, but by another latent, hidden defect in such street or crossing, of which she had no knowledge, to wit, the condition of the bank and its liability to crumble, although she had passed in safety over the same route on previous occasions, using the crossing in about the same way she did at the time of the injury, which bank the defendant negligently failed to properly protect and safeguard. ’ ’

It can be readily seen that tbe facts of the case at bar called for the application of the principle propounded in City of Norwalk v. Tuttle, supra, rather than that propounded in Highway Construction Co. v. Sorna, supra. There was no hidden or concealed defect proven in the case at bar.

A more recent pronouncement of the Supreme Court on this subject is found in Winkler v. City of Columbus, 149 Ohio St., 39, 77 N. E. (2d), 461. The facts are so nearly identical that the decision is dispositive of this case. The court construed the testimony of the plaintiff and found that it contained an admission that she knew of the defective sidewalk before and at the time she ventured upon it and that precluded a recovery by her. At page 43, the court said:

“Where one steps on an apparently good sidewalk but owing to some hidden defect an injury occurs, a plaintiff may be justified in claiming a ‘latent defect,’ but where the step is taken on an obviously defective walk we see no justification for attempting to distinguish between apparent and latent defects of such walk. In this case plaintiff deliberately stepped upon a walk which she saw and realized was a defective walk. Certainly the tilting of a piece of concrete in a defective walk is not an unusual concomitant of a defective walk. When plaintiff stepped upon such piece of concrete in a defective walk she took the risk.”

It will be observed that the court mentioned the tilting of a piece of concrete and still held that the plaintiff, having used an obviously defective sidewalk, was precluded from recovering by her own conduct.

While Johnson v. Citizens National Bank of Norwalk, 152 Ohio St., 477, 90 N. E. (2d), 145, falls into a different factual category, it is enlightening for its discussion of the various “step in the dark” cases in which the factual differences are pointed out. The court approved the dissenting opinion of the Court of Appeals, in which the distinction was made between the cases in which the plaintiff had opened a door and voluntarily stepped in the dark, and cases in which the plaintiff had opened a door and been drawn by the door or otherwise involuntarily into the dark and been injured. Voluntarily stepping into a dark place raises an inference of negligence which, unless refuted, requires a judgment for the defendant.

Recovery is denied in both categories for the same fundamental reason, and that is expressed by the maxim, volenti non fit injuria, although frequently expressed in terms of contributory negligence.

We are of the opinion that the trial court should have sustained the defendant’s motions for an instructed verdict and for judgment.

For these reasons, the judgment is reversed and final judgment entered for the defendant.

Judgment reversed.

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


author: Guernsey, J.

text:
    Kaufman et al., d. b. a. Blue Cafe, Appellants, v. Village of Paulding et al., Appellees.
    (No. 104
    Decided May 16, 1951.)

      Messrs. Sutphen & Hummer, for appellants.

      Mr. William L. Hay, for appellees.
   Guernsey, J.

This is an appeal upon questions of law and fact, from a judgment of the Common Pleas Court of Paulding County, Ohio, in an action wherein the appellants, Pañi Kanfman and Fred Kaufman, partners doing business as Blue Cafe, were plaintiffs, and the appellees, the village of Paulding, Ohio, and others, were defendants.

The plaintiffs are partners, doing business as the Blue Cafe in Paulding, Ohio, and operate a short order restaurant, in connection with which business they are engaged in the sale of beer and intoxicating liquors. They are the holders of D-l, D-2 and D-3 permits issued by the Department of Liquor Control of the state of Ohio, which they held at the time of the commencement of this action in the Common Pleas Court, and also at the time of the passage of ordinance No. 491 of the village of Paulding, hereinafter referred to.

The defendants are the village of Paulding and the officers of such village who are charged with the enforcement of its penal ordinances.

On the 16th day of October 1950, the council of the village of Paulding duly passed an ordinance designated as ordinance No. 491 of said village, by the terms of which it is provided that it is unlawful for the holders of permits issued by the'Department of Liquor Control to sell or offer for sale on Sundays, beer or intoxicating liquors within the corporate limits of said village; and that whoever, within the limits of said village, should sell or offer for sale beer on Sundays should be guilty of a misdemeanor and punished by fine and imprisonment as set forth in said ordinance; and that any person who drinks any beer or intoxicating liquor on Sunday, within the limits of the village of Paulding on the premises of the holders of such permits, should be deemed guilty of a misdemeanor, and punished as therein provided.

Said ordinance was duly approved and signed by the mayor of said village, and a copy thereof was duly published according to law, and it is the intention of the defendants that said ordinance will be enforced as a valid ordinance, effective within the corporate limits of said village of Paulding.

Said ordinance No. 491 makes no provision for the return of any portion of the permit fees paid by the holders of permits from the Department of Liquor Control, and no part of the fees paid by the plaintiffs for the permits held by them has been returned or repaid to them or offered to be returned or repaid.

In their petition herein, the plaintiffs, after averring in substance the facts above mentioned, aver further that the provisions of ordinance No. 491 prohibiting the sale or offer for sale of beer on Sundays within the corporate limits of said village by the holders of permits designated as D-l, D-2 and D-3, and the provisions therein prohibiting the drinking of beer and intoxicating liquor on Sundays in the village of Paulding, Ohio, are in conflict with the Constitution of the United States, and the Constitution of the state of Ohio, and the Liquor Control Act passed by the Legislature of the state of Ohio and now in full force and effect, and particularly the sections thereof designated as Sections 6064-3, 6064-15, 6064-20 and 6064-22 of the General Code of Ohio, and with the regulation of the state Board of Liquor Control, originally designated as regulation No. 30, but now designated as regulation No. 49 of the Ohio Board of Liquor Control, in effect at the time said permits were issued and also in effect at the time said ordinance was passed, and adopted under authority of Section 6064-3 of the General Code of Ohio.

In their petition the plaintiffs aver further that the provisions of ordinance No. 431 prohibiting the drinking of any beer on Sundays within the corporate limits of said village of Paulding, on the premises of the holders of said permits, is also in conflict with the above-numbered sections of the General Code and the regulation of the Board of Liquor Control, above mentioned, and the Constitutions of the United States and the state of Ohio.

Plaintiffs aver further that defendant officers of said village are of the opinion that said ordinance is lawful and enforceable and, unless restrained by proper order in this action, will enforce or attempt to enforce the provisions thereof as against the plaintiffs who are the lawful holders of the permits hereinabove described; and that if the defendants are permitted to enforce the unlawful provisions of said ordinance their action will result in great injury and damage, not only to these plaintiffs but to numerous other holders of like permits within the corporate limits of said village, and will result in a multiplicity of actions.

Plaintiffs aver further that the enforcement of the provisions of said alleged ordinance would result necessarily and proximately in the loss of trade and good will among a large number of their customers and patrons and thus cause plaintiffs great and irreparable injury for which they have no adequate remedy at law.

Plaintiffs pray for an order of the court construing said alleged ordinance as being in direct conflict with the laws of the state of Ohio, in the particulars hereinbefore set forth, and invalid and of no force and effect and declaring that the rights of these plaintiffs as holders of said liquor permits should not be affected or infringed by said alleged ordinance because of its invalidity; and further declaring that said ordinance by reason of its invalidity is unenforceable and that the defendant officers of said village should be prevented and restrained from enforcing or attempting to enforce said ordinance; and that an order be issued restraining the defendant officials of the village of Paulding, Ohio, and each of them, from enforcing or attempting to enforce the provisions of said alleged ordinance.

By agreement of the parties, the cause was submitted to this court on a transcript of the evidence in the Common Pleas Court, including a written stipulation of the parties as to the facts but not the legal conclusions in said petition pleaded and hereinbefore set forth.

Plaintiffs do not plead in their petition or specify in their brief any provision of the Constitution of the United States of which the provisions of said ordinance may be violative, and we find no provision of the Constitution of the United States of which the provisions of said ordinance may violate.

We will therefore consider whether the provisions of said ordinance in any way violate the provisions of the Constitution of the state of Ohio or are in conflict with the statutes of the state of Ohio and regulations adopted pursuant thereto, and are therefore void.

All municipalities in this state have the power expressly and directly conferred by Section 3, Article XVIII of the state Constitution, “to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

The ordinance in question is a local police regulation which the village of Paulding, under the constitutional provisions above mentioned, had the power to adopt and enforce within its limits unless the same is in conflict with the general laws of the state.

By the provisions of Section 6064-22, General Code, certain restrictions are set forth under which sales of beer and intoxicating liquor may be made under any and all classes of permits authorized by the Liquor Control Act, which, as they are stated, are in addition to those restrictions lawfully imposed by the rules, regulations or orders of the department.

This statute prohibits the sale of beer to any person under eighteen years of age and intoxicating liquor to any person under twenty-one years of age, and prohibits the sale of intoxicating liquor after 2:30 a. m. on Sunday or on any election day between the hours of 6 a. m. and 7:30 p. m. This statute then provides as follows:

“Nothing in this section shall prevent a municipal corporation or village from adopting an earlier closing hour for the sale of intoxicating liquor on Sunday or to provide that no intoxicating liquor may be sold on Sunday. ’ ’

The quoted provision of the above section has the effect of preserving to municipalities the power to adopt an earlier closing hour than 2:30 a. m. for the sale of intoxicating liquor on Sunday, and also the power to provide that no intoxicating liquor may be sold on Sunday.

Section 6064-1 of the General Code, among other things, provides that, as used in the Liquor Control Aqt, the phrase, “intoxicating liquor,” includes any and all liquids and compounds containing more than 3.2 per centum of alcohol by weight and are fit to use for beverage purposes, from whatsoever source and by whatsoever process produced, by whatsoever name called and whether or not the same are medicated, proprietary, or patented alcohol and any and all solids which contain any alcohol, and any and all confections which contain any alcohol.

In the same section it is prescribed that “beer” includes all malt beverages containing one-half of one percentum or more of alcohol by weight but not more than 3.2 per centum of alcohol by weight.

Under the provisions of Section 3 of Article XVIII of the Constitution and the above-quoted provision of Section 6064-22, General Code, the village of Paulding had the power to adopt the regulation prohibiting the sale of intoxicating liquor on Sunday and such regulation is not in conflict with any statutes of the state so that all the provisions of said ordinance of the village of Paulding prohibiting the sale of intoxicating liquor on Sunday are valid and enforceable.

Both the D-2 and D-3 permits held by the plaintiffs authorizing the sale of intoxicating liquor were issued to and are held by them subject to the exercise by the municipality of the power to enact an ordinance prohibiting the sale of intoxicating liquor on Sunday, and, such permits being issued and held subject to the exercise of such power, the permit holders are not entitled to any refund of any part of the payment made by them for such permits, and such permits do not authorize the sale of intoxicating liquors by the holders thereof contrary to the provisions of said ordinance.

The D-l permit held by plaintiffs authorizes them to sell beer at retail, either in glass or container for consumption on the premises where sold, and to sell beer at retail in other receptacles or in original packages containing not less than one container and in total quantities at each sale of not more than one hundred twenty-eight fluid ounces and not for consumption on the premises where sold.

The word, “beer,” is used in the sense it is defined in Section 6064-1, General Code, as above mentioned, and is not an “intoxicating liquor” within the meaning of the Liquor Control Act.

The power reserved to municipalties, under the provisions of Section 6064-22, General Code, above quoted, to adopt an earlier closing hour for the sale of intoxicating liquor on Sunday or to provide that no intoxicating liquor may be sold on Sunday does not comprehend the power to adopt a regulation prescribing that beer may not be sold on Sunday, and there is no other statutory provision conferring such power.

Whatever power a municipality has to adopt a regulation prohibiting the sale of beer on Sunday is conferred by the provisions of Section 3, Article XVIII of the Constitution, above mentioned. This constitutional provision confers such power upon municipalities, subject only to the condition that such a regulation shall not conflict with the general laws of the state upon the same subject matter.

In the case of City of Akron v. Scalera, 135 Ohio St., 65, 19 N. E. (2d), 279, decided February 8, 1939, it was so held. And it was further held that an ordinance of the municipality prohibiting therein the sale of beer on Sunday is a valid local police regulation and is not in conflict with the Liquor Control Act (Section 6064-1 et seq., General Code).

In the opinion in that case it is stated that the attention of the court has not been directed to any rule or regulation adopted by the Board of Liquor Control with reference to the sale of beer on Sunday, and that the court is not called upon to determine whether an ordinance in conflict with any such rule or regulation would be violative of the constitutional requirements that local regulations shall not be in conflict with general laws.

Since that decision was announced there have been no changes in the provisions of the Liquor Control Act relating to the sale of beer, so it is clear that there are no provisions of said act with which the provisions of the ordinance in question, prohibiting the sale of beer on Sunday conflict.

The question then arises as to whether the provisions of the ordinance conflict with the regulation adopted by the Board of Liquor Control, pursuant to the provisions of Section 6064-3, General Code, originally designated as regulation No. 30 but now designated as regulation No. 49 of said board.

The provision of the regulation originally designated as No. 30 and now designated as No. 49, applicable to holders of D-3 permits, is as follows:

“No beer whether by the package or by the glass shall be sold or delivered or be consumed on the premises of a permit holder on Sunday between the hours of 1 a. m., and 5:30 a. m.”

In the case of Neil House Hotel Co. v. City of Columbus, 144 Ohio St., 248, 58 N. E. (2d), 665, it was held that regulation No. 30 (now No. 49) of the Liquor Control Board was duly adopted and promulgated by said board pursuant to the authority conferred on said board by Section 6064-3 of the General Code, and that it constitutes the due exercise of the administrative power adequately conferred, and represents in effect, the voice of the General Assembly heard through an agency of its creation.

It was further held that the provisions of an ordinance of the city of Columbus fixing different closing hours for the sale of beer and intoxicating liquors, than prescribed in said regulation, being in conflict therewith, were ineffective and invalid.

Whether the provisions of the ordinance in question related to sale of beer and intoxicating liquors on week days, as distinguished from Sundays, or upon Sunday as distinguished from week days, does not appear from the opinion in that case, and the power of a municipality to fix earlier closing hours for the sale of intoxicating liquors on Sunday, or to provide that no intoxicating liquor may be sold on Sunday, reserved to municipal corporations in the hereinbefore-quoted provisions of Section 6064-22, General Code, was not discussed or considered.

Counsel have furnished to the court copies of the record and briefs in the case in the Supreme Court, and we find on inspection thereof that the provisions of the ordinance held invalid related to sales on week days and also sales on Sundays, but that in their briefs counsel did not suggest any different rules of law applying to Sunday sales than apply to week-day sales, and did not call the attention of the court to the hereinbefore-quoted provision of Section 6064-22 of the General Code, and argued only the question as to whether the provisions of the ordinance were in conflict with regulation No. 30 of the Board of Liquor Control.

For these reasons we do not consider that case as holding that a municipality may not prohibit the sale of intoxicating liquor on Sunday within its limits.

However, we do consider it as holding that a regulation such as regulation No. 30 (now No. 49) of the Liquor Control Board, although restrictive in form, is permissive in character and within the purview of Section 3 of Article XVIII of the Constitution of Ohio and constitutes a part of the general laws of the state; and that an ordinance such as the ordinance of the village of Paulding, in question, prohibiting sales of beer on Sunday, where the power to enact such an ordinance is not reserved to villages or municipalities by statute, is invalid as conflicting with said regulation No. 30 (now No. 49) prescribing that no beer shall be sold or delivered or consumed upon the premises of the permit holder on Sunday between the hours of 1 a. m. and 5:30 a. m.

This court is constrained to follow these holdings of the Supreme Court, irrespective of what the opinions of the members of the court might otherwise be. 11 Ohio Jurisprudence, 778, Section 131.

For the foregoing reasons, and following the Supreme Court decisions mentioned, we adjudge and declare:

1. The provisions of the ordinance of the village of Paulding prohibiting the sale of intoxicating liquor on Sunday are valid and enforceable.

2. The provisions of said ordinance prohibiting the sale of beer on Sunday are invalid and unenforceable.

We further adjudge and decree that an order of injunction issue herein permanently restraining the defendants herein from enforcing the provisions of said ordinance prohibiting the sale of beer on Sunday.

We further adjudge and decree that the plaintiffs shall pay one-half and the defendants the other one-half of the costs of this action, both in the Common Pleas Court and the Court of Appeals.

Judgment accordingly.

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


text:
    The State of Ohio, Appellee, v. Ward, Appellant.
    (No. 2173
    Decided May 1, 1952.

      Mr; Mathias H. Heck, prosecuting attorney, Mr. Herbert M. Jacobson and Mr. Walter A. Porter, for' appellee.

      Mr. Eldon F. Hoerner, for appellant.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Juvenile Court of Montgomery County.

The defendant was charged under Section 1639-45, General Code, with contributing toward the neglect of her five months old child, in that being the parent she abandoned such child. A jury having been waived, the cause was tried by the court, and the defendant was found guilty and sentenced.

There was. evidence of a substantial character to support the conviction. While there was conflict in the evidence, it was the duty and province of the trial judge to resolve the conflict.

The husband of the defendant was called by the state and was permitted to testify. Section 13444-2, General Code, provides, in part:

“Husband and wife shall be competent witnesses * * * to testify against each other in all actions, prosecutions, and proceedings for personal injury of either by the other, bigamy or failure to provide for, neglect of, or cruelty to their child or children under sixteen years of age.” (Emphasis ours.)

The husband of the defendant was a competent witness and it was not error to permit him to testify against his wife.

We find no 'assignment of error well made.

Judgment affirmed.

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


author: Wiseman, J.

text:
    Grundstein, Appellant, v. Suburban Motor Freight, Inc., Appellee, et al., Appellant.

      (No. 4680
    Decided March 5, 1952.)

      Mr. Carrington T. Marshall, Mr. 1. M. Harris and Mr. O. H. Both, for appellants.

      Mr. Dalton B. Kincaid and Mr. William L. Schmidt, for appellee.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County.

The plaintiff instituted an action for a declaratory judgment, requesting the court to declare the rights of the parties arising out of a purported lease entered into between the defendant company and plaintiff’s grantors. The defendant company filed an answer and cross-petition in which it prays for specific performance based upon an option to purchase which is contained in the lease.

In the cross-petition defendant alleges that Richard H. Grundstein is the husband of the plaintiff, Yetta B. Grundstein, and claims an inchoate dower interest in the premises. Defendant prays that the husband be ordered to release his inchoate right of dower and for general equitable relief. The trial court entered a decree in favor of the defendant company.

A recitation of the facts is necessary for an appreciation of the issues involved. On September 15, 1942, the defendant company made a written offer to lease certain real estate owned by Berkhemer and White, at an annual rental of $3,000, payable at the rate of $250 per month, in advance, on the first business day of each month.

With respect to the duration of the term the contract provides “for a term of the duration of the present war and six (6) months thereafter, beginping October 1, 1942.” The rental contract contains other provisions usually found in a lease, the last two paragraphs being as follows:

“Lessee to have privilege of purchasing the above described premises at any time during term of occupancy at a consideration price of twenty-five thousand dollars ($25,000) by giving lessor sixty (60) days notice in writing of its intention so to do.

“It is understood that this agreement is to be effective in lieu of formal lease.”

The document was signed by the defendant company by James R. Riley, president, in the presence of two witnesses. On September 17, 1942, Berkhemer and White agreed and accepted the proposition in writing, both signing in the presence of two witnesses. The document was not acknowledged by either of the parties and was not recorded. The defendant entered into possession, paid the rent according to the terms of the rental contract and still retains possession.

On October 28,1947, Berkhemer and White conveyed the premises by general warranty deed to the plaintiff, Yetta B. Grundstein, and on the same date executed an assignment on the original rental contract as follows:

“Assignment by Lessor

“For value received, the undersigned hereby sells, assigns and transfers to Yetta B. Grundstein and assigns, all interest in the within lease and the rents thereby secured.

“Signed, Oct. 28, 1947

“Wm. F. Berkhemer

“H. R. White.”

The defenadant paid rent to the plaintiff from November 1, 1947, np to January 31, 1950, after which the rent was tendered to plaintiff.

The events which provoked this litigation are as follows:

On December 6,1949, plaintiff served on the defendant a notice to leave the premises, which was based on her conclusion that the rental contract had terminated. On December 27, 1949, plaintiff notified the defendant in writing that the rent on and after February 1, 1950, would be $400 per month. On January 5, 1950, the defendant gave notice in writing to the plaintiff that it had elected to exercise and accept the option to purchase the real estate for $25,000. On February 16,1950, the plaintiff refused in writing to recognize the exercise of the option and refused the tender of the rent at the rate of $250 per month. The action was instituted February 21, 1950. On March 31, 1950, the defendant paid into court the sum of $25,000, the option price mentioned in the rental contract, which amount is still being held by the clerk of courts pending the outcome of this litigation.

The trial court decreed that there was a valid rental contract subsisting between plaintiff and defendant; that the meaning and effect of the provision, “for duration of the present war and six (6) months thereafter,” as used in the rental contract, describes the term of the lease which became effective October 1, 1942, and does not terminate until six months after there has been a formal declaration of peace between the belligerent nations; that the option to purchase could be exercised by defendant at any time during the term of the lease, viz., until six months after a formal declaration of peace between the belligerent nations; that defendant had the right to exercise the option on January 5, 1950; and that defendant was not a month to month tenant but occupied said premises under a valid and subsisting lease.

The court found further that the defendant duly exercised the option to purchase, including the making of the proper tender of the purchase price, but that Yetta B. Grundstein and Richard H. Grundstein, her husband, failed and refused to convey the premises. The court decreed that Yetta B. Grundstein and Richard H. Grundstein, who was ordered to join in the conveyance for the purpose of releasing his inchoate right of dower in such premises, should execute and deliver to defendant a good and sufficient deed for the premises and that upon their failure to do so within ten days from date of entry, the decree should operate as such conveyance. The court ordered the $25,000, which had been placed on deposit with the clerk of courts, to be delivered to Yetta B. Grundstein upon the delivery of the deed or the recording of the decree by the county recorder. The court found that Yetta B. Grundstein had retained a check for $250 tendered by the defendant for the rent for the month of February 1950 and that there is due plaintiff the sum of $50 as rent for the period from March 1, 1950, to March 6, 1950, for which sum judgment was rendered against the defendant.

The first question raised involves the validity and the legal effect of the rental contract or lease. We have no difficulty in finding that the rental contract was intended by the parties to be a lease. The last paragraph provides that the agreement is to be effective in lieu of a formal lease. At the outset it is well to state that the issues presented must be determined upon equitable principles. ‘ ‘ Equity looks to the substance and not to the form.” The rights of the parties under the contract and the equitable relief granted would be the same whether the court denominated the document a lease or a rental contract. A defectively executed lease is treated in equity as a contract to make a lease. Lithograph Building Co. v. Watt, 96 Ohio St., 74, 117 N. E., 25. In a declaratory judgment action, especially where the defendant in his cross-petition prays for specific performance, the rights of the parties will be declared, whether such rights are in law or equity. R. K. O. Distributing Corp. v. Film Center Realty Co., 53 Ohio App., 438, 449, 5 N. E. (2d), 927.

What was the duration of the term? The lease provides “for a term of the duration of the present war and six (6) months thereafter beginning October 1, 1942.” The court will take judicial notice that the war referred to is World War II. It is agreed by counsel for both plaintiff and defendant that the words, ‘ ‘ duration of the present war, ’ ’ are ambiguous. Plaintiff contends that the words, “duration of the present war,” mean the continuation of hostilities and that the parties intended to give this meaning to the words used. Hostilities ceased on August 14, 1945, and six months thereafter would be February 14, 1946, which is the date the plaintiff claims the lease terminated. If the lease terminated February 14, 1946, the exercise of the option came too late.

Where there is an ambiguity, parol evidence is admissible to show the intention of the parties. Hoover v. Sandifur (1946), 25 Wash. (2d), 791, 171 P. (2d), 1009, 168 A. L. R., 170. Under this rule testimony was taken to show the intention of the parties at the time the lease was executed. The evidence shows that the premises then occupied by the defendant were taken over by the United States Government under a lease, the term of which was “for duration of the war and six (6) months thereafter.” The defendant being compelled to vacate desired to secure other premises upon which to conduct its business. The president of the defendant wanted a lease with respect to duration similar in its terms to the lease taken by the Government on the premises which it then occupied. This information was conveyed to the broker who drew the lease here involved. The agents of the defendant clearly stated that it wanted a lease “for the duration of the present war and six (6) months thereafter.” The defendant wanted this provision in the lease for the very obvious reason that it desired to occupy the new premises as long as the United States Government occupied the premises which it leased. The words were deliberately chosen to accomplish a definite purpose. The evidence shows that the broker was the agent for the lessors.

The fact that the United States Government relinquished possession of the premises formerly occupied by the defendant sometime prior to the time that difference arose between the parties hereto is irrelevant and cannot be considered in determining the intention of the parties at the time the contract was executed. The United States Government might still be occupying the premises under the terms of its lease. Malbone Garage, Inc., v. Minkin (1949), 272 App. Div., 109, 72 N. Y. Supp. (2d), 327, affirmed without opinion in 297 N. Y., 677. The record discloses that one of the lessors, White, testified as follows:

“Q. Do you remember why those words were used in the lease? * * # Witness: I would say because they wanted the property six months after the war, that is what my idea of the thing was, that is to be able to move out.”

The plaintiff contends that the parties intended to enter into a temporary lease and that the words under construction were intended to give the defendant the right of occupancy during hostilities and for six months thereafter. It does not appear that the defendant ever intended to give this meaning to the words used. The evidence bearing on the intention of the parties supports the contention of the defendant, and on the basis of this testimony the trial court could not reasonably conclude that the parties intended to give the words, “duration of the present war,” any meaning other than what they legally connote. On the basis of the evidence presented, the trial court was justified in concluding that the intention of the parties was to use these words in their technical legal sense. Ellis v. Fraternal Aid Union (1921), 108 Kan., 819, 197 P., 189, 190.

Furthermore, it is a well established principle of law that where words are susceptible of more than one meaning, the courts will adopt that interpretation which the parties themselves by their subsequent acts have placed upon such words. Courtright v. Scrimger, 110 Ohio St., 547, 144 N. E., 294; Cincinnati v. Gas Light & Coke Co., 53 Ohio St., 278, 41 N. E., 239; Fagan v. Ulrich (1915), 166 App. Div., 342, 152 N. Y. Supp., 37, affirmed without opinion 222 N. Y., 696. In the application of this principle of law it is well to observe that over 18 months after February 14, 1946, the date on which the plaintiff claims the lease terminated, the lessors in a letter to the defendant recognized the validity of the lease and that it still was in effect by requesting the defendant to do some work and stating, “This is your responsibility as outlined in our contract. We are sure you see the value of having the needed work finished before the winter months arrive.” Also, in the assignment of the lease, dated October 28,1947, the lessors considered the lease as still in effect.

In a legal sense, the existence of World War II continues until terminated by ratification of peace treaties or by proclamation of competent authority. Ellis v. Fraternal Aid Union, supra; 56 American Jurisprudence, 142, Section 13, and cases cited.

Research discloses that the courts in other jurisdictions have given different interpretations to the words, “duration of the present war.” 13 Words and Phrases (Perm. Ed.), 1952 Cumulative Supplement, 173; 168 A. L. R., 173; and 1951 A. L. R. Blue Book, 683. However, an examination of these authorities will show that the courts always attempted to ascertain the intention of the parties and give effect thereto. In cases where the court construed the words, “duration of the present war,” or, “duration of the war,” to mean the continuation of hostilities, such interpretation was based on some evidence which indicated that the parties intended to give this meaning to the words used. On this issue we are in accord with the judgment of the trial court.

Thus far we have discussed the provisions of the lease and the rights of the parties from the standpoint of a legally executed lease. The lease in the instant case does not fall within the provisions of Section 8517, General Code, which provides that leases for a term not exceeding three years are not required to be executed as provided in Section 8510, General Code. The defendant seeks relief during a period beyond the three years. People’s Building Loan & Savings Co. v. McIntire, 14 Ohio App., 28, 31. Section 8510, General Code, provides that a lease must be in writing, signed, attested by two witnesses and acknowledged by the lessor. In the instant case, the lease is defective in that it was not acknowledged by the lessors. What are the rights of the parties under a defectively executed lease where the term exceeds three years? In Ohio the principle is well established that at law, if the lessee takes possession under a defectively executed lease and pays rent, a tenancy is implied. The duration of the term of the tenancy which is implied depends upon the provisions for the payment of the rent. Wineburgh v. Toledo Corp., 125 Ohio St., 219, 222, 181 N. E., 20, 82 A. L. R., 1315; Lithograph Building Co. v. Watt, supra; Toussaint Shooting Club v. Schwartz, 84 Ohio St., 440, 95 N. E., 1158; Baltimore & Ohio Rd. Co. v. West, 57 Ohio St., 161, 49 N. E., 344; R. K. O. Distributing Corp. v. Film Center Realty Co., supra; Shell Petroleum Corp. v. Jackson (C. C. A. 6, 1935), 77 F. (2d), 340; Newberry v. Marshall (C. C. A. 6, 1942), 125 F. (2d), 973; 24 Ohio Jurisprudence, 789, 790, Section 54. See, also, 6 A. L. R. (2d), 685, 695.

If the rent is reserved annually, although payable in monthly installments, as in the instant case, a tenancy from year to year will be implied. Baltimore & Ohio Rd. Co. v. West, supra. This principle of law rests on the theory that in law a defective lease does not create a legal estate. A tenancy will be implied and all provisions of the lease are effective except the duration of the term. Lithograph Building Co. v. Watt, supra; Baltimore & Ohio Rd. Co. v. West, supra; People’s Building Loan & Savings Co. v. McIntire, supra. Thus, at law, the defendant held a tenancy from year to year. On October 1, 1949, the defendant entered a new year, and on January 5, 1950, when defendant exercised its option, it did so “during term of occupancy, ’ ’ as provided in the rental contract. The plaintiff, however, strongly urges that the defendant held under a tenancy from month to month, or at best from year to year, and that relief can be granted only under such a tenancy. This result would obtain at law. Even at law, under a tenancy from year to year, the defendant properly exercised the option to purchase ; but we are in a court of equity, where equitable principles must be applied and where a more complete remedy is afforded. R K O Distributing Corp. v. Film Center Realty Co., supra; Hennessy v. Moreland, 90 Ohio App., 178, 104 N. E. (2d), 195.

The plaintiff strongly relies on Wineburgh v. Toledo Corporation, supra, claiming that the principle announced in that case controls and that defendant holds under a monthly tenancy. We do not agree. In that case the action was at law and not in equity, and the rent was reserved monthly and not annually as in the instant case. The court recognized this distinction in its opinion when it said on page 223:

‘ ‘ Whether reformation or other equitable remedy is available to the landlord under this or similar circumstances, it is not necessary to decide in this action, for that question is not here presented. ’ ’

In equity, part performance takes the instrument out of the operation of the statute. Possession taken under the lease constitutes part performance. The trial court properly exercise its equity powers in decreeing that in equity the defendant was occupying the premises under a valid and subsisting lease which did not terminate until six months after a formal peace treaty had been signed by the belligerent nations or a formal proclamation by a competent authority had been made ending the war.

In the instant case, the defendant does not specifically pray for a reformation of the rental contract, and the court did not decree a reformation, although the facts would warrant such reformation. If a reformation had been asked for and decreed it could only have affected the acknowledgment. No reformation was required with respect to the terms of the lease. In certain instances, and this is one, a reformation of the instrument is not a prerequisite to granting equitable relief thereunder. Globe Ins. Co. v. Boyle, 21 Ohio St., 119, 130. The fourth paragraph of the syllabus is as follows:

“When in such case the record shows that the petition, and the facts found by the court, warrant an order of reformation, and that, without such formal order, the proper final judgment has been rendered, it is not error in a reviewing court to affirm the judgment. ’ ’

The court on page 131 stated that the failure to grant reformation was not prejudicial; it was only a matter of form, for which the judgment could not be reversed.

We hold that where the defect in the lease consists in the failure of lessors to acknowledge the lease, as provided in Section 8510, General Code, and where the provisions and terms of the lease do not require reformation, a reformation of the lease with respect to the acknowledgment is not a necessary prerequisite to granting equitable relief thereunder.

The plaintiff contends that she is not responsible for the alleged contract entered into between the defendant and Berkhemer and White on the ground that she assumed no responsibility. The defendant took possession under the lease and is still in possession. The plaintiff purchased the property from Berkhemer and White while the defendant was in open and notorious possession. The plaintiff took an assignment of the interest of Berkhemer and White in the lease, with knowledge of the lease, its terms and possession by the defendant. Any right which defendant could assert against Berkhemer and White may be asserted and enforced against the plaintiff. Kemp v. Feldman, 84 Ohio App., 154, 81 N. E. (2d), 319; Dunkel v. Hedges, 15 Ohio App., 259; Schloss v. Brown, 13 Ohio App., 294. In the latter case the court, on page 296, held:

“* * * The lease to Schloss, though not attested as required by Section 8510, General Code, was good between the parties as a contract. An imperfectly executed lease may operate to create an equitable estate in the lessee, if it be plainly shown that the instrument was intended as a lease and was accepted and treated as such by the lessee. * * * [Cases cited.]

“* * * If Brown was not a bona fide purchaser, he would take the property subject to the equitable right which is now admitted to have existed against Holzberger. It is the settled rule in Ohio that a purchaser of land which is in the actual possession of the third party, known to him, is chargeable with notice of any equitable title of the party in possession whatever the same may prove to be.” (Cases cited.)

On page 297, ibid, the court finally held:

“The undisputed evidence shows that Brown was aware of the possession of the premises by Schloss. He, therefore, acquired the ownership from Holzberger, subject to the equitable rights of Schloss arising under the unrecorded contract of lease.” See, also, 24 Ohio Jurisprudence, 747, Section 13.

The contention is made that the trial court erred in rendering judgment against Richard H. Grundstein requiring him to release his inchoate right of dower. In the cross-petition, Richard H. Grundstein, husband of plaintiff, was made a party-defendant, although erroneously mentioned in the record at several places as a party-plaintiff. Richard H. Grundstein filed a waiver of service of summons and entered his appearance but filed no answer. The allegation in the cross-petition is that Richard H. Grundstein is the husband of the plaintiff and claims an inchoate dower interest in the premises. A part of the prayer of the cross-petition is that Richard H. Grundstein be ordered to execute the deed with his wife releasing his claim for dower. ' There are no provisions in the lease or in the option which would indicate that the lessors were married and agreed to convey free of dower, and much less with respect to the plaintiff as the grantee and assignee of the lessors. The defendant, in its cross-petition, did not attempt to make this matter an issue and no evidence was taken thereon. The allegation contained in the cross-petition to the effect that Richard H. Grundstein was the husband of the plaintiff and claimed his right to inchoate dower is in accord with the facts.

Was it proper to enter a decree against Richard H. Grundstein requiring him to join in a deed with his wife for the purpose of releasing his inchoate right of dower? We do not think so. Inchoate right of dower is a contingent interest in the land of the consort and is of substantial value. The right to inchoate dower cannot be taken away or barred by any act of the consort. Section 10502-1, General Code; 14 Ohio Jurisprudence, 679, Section 66. In the instant case, the husband has the same right to inchoate dower as the wives of the lessors would have had if the lessors were married. The fact that the husband was made a party to the action is of no legal consequence; no decree can be entered against the husband unless on the whole record there is some support for it. Neither the pleadings nor the evidence supports the decree. People’s Savings Bank Co. v. Parisette, 68 Ohio St., 450, 67 N. E., 896, 96 Am. St. Rep., 672; Jewett v. Feldheiser, 68 Ohio St., 523, 530, 67 N. E., 1072; Urbanski v. Szelaszkiewics, 15 Ohio App., 4; Caple v. Crane, 10 Ohio App., 461; Edmund v. Boring, 30 C. C. (N. S.), 238, 35 C. D., 659; Koester v. McKinney, 17 Ohio Law Abs., 441. In Koester v. McKinney (opinion by Judge Hornbeck), the wife joined the husband in a mortgage which was foreclosed and in the action the wife was made party-defendant. It was held that she could assert her inchoate dower against the holders of mechanic’s liens who were made party-defendants, even though she filed no answer to the petition. In Edmund v. Boring, supra, it was held that where the husband did not sign a contract of sale with his wife, the owner, the land would be ordered transferred in a suit for specific performance, subject to the husband’s right of contingent dower. In the Urbanski case, it was held that where an option to purchase is not signed by the wife of the owner, and the purchaser seeks specific performance, subject to the wife’s dower, a decree will be granted. In the case of Caple v. Crane, supra, the court found from the evidence that the option to purchase provided for conveyance free of dower, and, the wives of the owners not being made parties, the cause was remanded.

The court on page 467 stated the question for determination as follows:

“This presents an important and somewhat difficult question, namely: Shall a decree of specific performance be entered against the defendants requiring them to execute a deed in which their wives shall join; or, if the wives refuse to join, a decree of specific performance against the husbands, with an abatement from the purchase price sufficient to cover the present worth of the contingent right of the dower of the wives ?’’

In discussing the nature of the remedy afforded to the purchaser and the character of the decree to be entered, the court discussed at length and followed the case of People’s Savings Bank Co. v. Parisette, supra. The court finally held that the wives of the owners not being made parties to the suit, a decree for specific performance requiring conveyance free of dower could not be entered and remanded the cause to the lower court.

The court in People’s Savings Bank Co. v. Parisette, supra, had before it a state of facts similar to those presented in the instant case and discussed the character of the decree which may be entered. We quote from the court’s'opinion, beginning on page 460:

“What was the contract specific performance of which plaintiff demanded, and what the breach, if any? The parties were the vendor, the husband, and the vendee, the plaintiff. The paper itself carries the information that it was when drawn contemplated to be executed by some one other than the vendor, and since the plaintiff was aware that he had a wife living, the inference is natural that she was the person whose signature had been expected. The paper further showed that she had not signed, and the fact found is that she had made no agreement to sign or sell the property, or release her inchoate right of dower. Furthermore, the absence of her signature would suggest a refusal by her. The company knew, therefore, that it was dealing with the husband alone as to his right and title in the property, it knew that the wife could not be compelled to sign, and that, therefore, the contract was impossible of specific execution if construed to include her dower. It knew that it was accepting a contract which on its face did not purport to sell any interest but that of the husband, and especially did not purport to sell or agree to convey any inchoate dower of the wife: In this situation of affairs the company chose to agree to pay the stipulated price for just what the option purported to sell. No fraud, or overreaching, or mistake of any kind is charged. The vendor is ready to convey just what the stated terms of his contract obligate him to convey. How ‘can the company reasonably demand that the court import into the contract a stipulation to convey by a deed containing a covenant against this dower right, when no agreement of that character, nor respecting incumbrances of any kind, is expressed, and when in all probability, had such a demand been made of the vendor, he would have refused to comply with it? We think it cannot. The effect of the construction contended for by counsel would be either to attempt to arrive at a sum to be deducted absolutely by a process admittedly speculative, or to suspend the payment of a considerable portion of the purchase money to the grantor during the joint lives of himself and his wife, which, it seems to us, could never have been within the contemplation of the parties when this optional contract was signed. Plaintiff was in a court of equity pressing an inequitable demand. We think it was properly refused. On the plaintiff’s own construction of the option the company is in the attitude of one who takes the promise of another to do that which it is known he cannot perform except by the concurrence of a third person. Such purchaser contracts with full notice of the uncertainty attending the seller’s ability to perform, and, not having been misled to his injury, cannot now ask the extraordinary aid of a court of conscience in repairing such loss, if any, as he has sustained by the vendor’s failure to complete his contract.” See, also, Barnes v. Christy, 102 Ohio St., 160, 174, 131 N. E., 352; 46 A. L. R., 748, 756.

In the Parisette case it must be observed that the purchaser who instituted the action sought a decree against the wife in the same manner as the purchaser in the instant case seeks a decree against the husband. In that case the wife did not sign the contract of sale with the husband who was the sole owner. The lower court decreed that the plaintiff was not entitled to relief against the wife, and that the plaintiff was not entitled to a deed from the husband, except upon payment of the entire purchase money provided for in the option. In the application of the law laid down in the Parisette case to the facts in the instant case, we are of the opinion that the defendant is not entitled to a decree against the husband, Richard H. Grundstein. On this issue the judgment is reversed.

Plaintiff contends that the trial court erred in rendering a money judgment for $50 for rent for a portion of the month of March 1950. The trial court found that the plaintiff had retained a check for rent for the month of February 1950 and also rendered judgment against the defendant for $50 for rent from March 1, to March 6, 1950. The sixty-day period stated in the lease after giving notice of the exercise of the option expired March 6, 1950. Apparently the court concluded that defendant owed rent up until the expiration of the sixty-day period at the termination of which the exercise of the option became effective. We are in accord with the judgment of the trial court in finding that the defendant owed rent up until March 6, 1950, at the rate stipulated in the lease and was not obligated to pay rent thereafter.

In her petition, the plaintiff does not ask for consequential or coercive relief. Such additional relief may be given if facts warranting it are properly pleaded. American Life & Accident Ins. Co. of Kentucky v. Jones, Admr., 152 Ohio St., 287, 297, 89 N. E. (2d), 301. Whether the trial court could grant coercive relief by entering a money judgment is not properly presented to this court for determination. On this question the plaintiff cannot be heard to complain as the judgment was in her favor and she is not prejudiced thereby. The defendant did not file a cross-appeal.

The contention of plaintiff that it would be inequitable to enforce specific performance in a period of advancing values after a lapse of eight years is not tenable. The fact that the property has increased or decreased in value since the contract was executed will not of itself warrant a refusal to enforce its terms. 3 Thompson on Real Property, 500, Section 1335.

We have considered all errors assigned, although not separately discussed, and find no errors assigned well made, except No. 10 which relates to the judgment erroneously entered against Richard H. Grundstein. On this issue the judgment is reversed, and, because of the unsatisfactory condition of the record on this question, the cause is remanded for further proceedings according to law.

Judgment accordingly.

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


author: Phillips, J.

text:
    Miller, Appellant, v. Jackson, Appellee.

      (No. 699
    Decided December 8, 1951.)

      Mr. Harry Brohaio, for appellant.

      Messrs. Brookes, Lynch & McDonald, for appellee.
   Phillips, J.

Plaintiff appealed to tbis court on questions of law from a judgment of the Court of Common Pleas entered upon a special jury verdict returned for defendant in plaintiff’s action against Mm to recover damages for personal injuries.

Tbe evidence discloses that during daylight, about 4:30 or 5 o’clock, on tbe afternoon of December 31, 1949, plaintiff, aged 69 years, was crossing from tbe easterly to the westerly side of Eighth street (Ohio state route 7), an improved, duly dedicated public highway of the city of East Liverpool and state of Ohio, approximately where Division street leads off therefrom to the north, when she was struck by an automobile operated by defendant in an easterly direction thereon at a speed estimated by various witnesses between 15 and 25 miles per hour.

Plaintiff testified that before attempting to cross Eighth street where, the evidence discloses and the jury found, she had an unobstructed view to the west of 555.7 feet to a traffic light, she looked in both directions thereon, and there was no traffic approaching from either direction; that at that time her bodily movements were normal and unrestricted; and that as she started across Eighth street she was hurrying.

Defendant testified that as he traveled the 555.7 feet distance from the westerly traffic light, where he had stopped, to the point where plaintiff was struck, where there was a traffic light not in operation, he was'following another automobile; that that automobile veered right toward the south curb and stopped, as if to park; that as he drove around it he observed plaintiff immediately in front of the stopped automobile, and rushing directly into the path of travel of his automobile; that he “pulled” his automobile to the left or north side of Eighth street to avoid striking plaintiff, but as westbound traffic was approaching he was forced to operate his automobile to the right or south side of Eighth street, and at that moment plaintiff ran into the side of his automobile, slightly indenting the rear of the right front fender.

Plaintiff contends that the trial judge charged erroneously on plaintiff’s contributory negligence, since contributory negligence was not raised by the pleadings nor shown by plaintiff’s evidence.

Apparently plaintiff’s contention on this question is, as counsel for defendant states by brief: “In other words, plaintiff urges that if she can so control her evidence that no evidence of negligence on her part be permitted to there appear, then the rules of the game forbid the jury to consider the defendant’s evidence of plaintiff’s negligence, no matter how devastating such evidence may be.” Defendant contends “plaintiff’s evidence certainly did raise a presumption of her negligence.”

Defendant’s contention is supported by the case of Detroit, Toledo & Ironton Rd. Co. v. Rohrs, 114 Ohio St., 493, 502, 151 N. E., 714, where it is said:

“When he says he did look, and the conditions establish the fact that any one who looked would have seen, then, if he says he did not see, his own evidence establishes the fact that he did not look, though he may think he did.”

Further, the Supreme Court has held:

“* * * the burden of proof rests upon the plaintiff; and if upon the entire case the plaintiff’s proof upon the issue of defendant’s negligence is fully balanced or left in equipoise obviously a preponderance cannot exist.” Bradley v. Cleveland Ry. Co., 112 Ohio St., 35, 40, 146 N. E., 805.

Clearly, “if contributory negligence is not made an issue by the pleadings, but is developed by the evidence, it becomes the duty of the court to charge the jury in respect to that issue.” Bradley v. Cleveland Ry. Co., supra.

In our opinion, plaintiff’s evidence was such as to warrant the trial judge charging on the issue of contributory negligence.

Next, plaintiff contends that the trial judge erred to her prejudice by not charging on the issue of defendant’s assured clear distance ahead as he approached the place where plaintiff was struck.

In the case of Smiley v. Arrow Spring Bed Co., 138 Ohio St., 81, 33 N. E. (2d), 3, 133 A. L. R., 960, the controlling case on the question of assured clear distance ahead, the Supreme Court said that the general statute is not applicable if defendant’s “assured clear distance ahead is suddenly cut down or lessened, without his fault, by the entrance within such clear distance ahead and into his'path or line of travel of some obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding therewith.”

In the more recent case of Erdman v. Mestrovich, 155 Ohio St., 85, 97 N. E. (2d), 674, the Supreme Court said:

“Where a pedestrian crossing a street intersection enters the path or lane of travel of a motor vehicle approaching the intersection at a right angle to the path of the pedestrian and the pedestrian by his act enters suddenly the vehicle operator’s assured clear distance ahead, at a point less distant than the forward limit thereof, and is struck by the vehicle, a charge to the jury in a personal injury action by the pedestrian against the operator predicated on a violation of the assured-clear-distance-ahead rule should not be given, unless there is evidence tending to show that the pedestrian came into the operator’s assured clear distance ahead at a point sufficiently distant ahead of the motor vehicle as to have permitted the operator, in the exercise of ordinary care, to have stopped his motor vehicle before striking the pedestrian.”

In our opinion, the evidence in the case we review justified the trial judge refusing to charge the jury on the issue of defendant’s assured clear distance ahead.

In response to defendant’s request for a special verdict, the trial judge, erroneously plaintiff claims, submitted a list of 53 questions prepared by him, constituting a special verdict, to the jury as part of his charge, which will be disposed of hereinafter, among which was question number 24, affirmatively answered by the jury, inquiring as to whether defendant was not crossing Eighth street on a marked crosswalk.

“ ‘Crosswalk.’ (a) That part of a roadway at an intersection included within the connections of the latteral lines of the sidewalks on opposite sides of the highway measured from the curbs, or in the absence of curbs from the edges of the traversable roadway.” Section 6307-2, General Code.

As to whether and how plaintiff crossed Eighth street, on direct examination plaintiff said she crossed it from “that telephone pole there, I stopped right there, and that is where I started across to go straight across to this hill. * * * I was going from this pole to that like I was going from this pole here to that pole there.” On cross-examination, she testified that she started across Eighth street, “on the upper side” (westerly) of the pole.

There is no evidence of a marked crosswalk where plaintiff was struck. The evidence is such that the jury well could have found, without returning a verdict against the manifest weight of the evidence, that the pole to which plaintiff refers in her testimony was not within the extension of the theoretical crosswalk with westerly property line of Division street. There is no evidence that at any time in her journey from the easterly side of Eighth street to the place thereon where she was struck that plaintiff was within such theoretical crosswalk.

The verdict of the jury on this issue of the case we review was not against the manifest weight of the evidence.

In the interest of accuracy, we quote from the brief of plaintiff’s counsel his contention with reference to the submission, by the trial judge, to the jury of “a list of 53 questions covering almost every phase of both law and fact,” prepared by the trial judge, to which plaintiff’s counsel objected, “mainly because they were a mixture of law and fact and because we [the] court made the questions themselves a part of his charge. As we understand it, a special verdict is founded on questions or issues of fact only. The object of a special verdict is to separate law and fact. The one for the jury, the other for the court. Here the questions of law and fact were thoroughly mixed. ’ ’

The office of a special verdict is to find sufficient ultimate facts to enable the court, unaided by the evidence, to apply the appropriate law thereto and render judgment.

“ * # * if as a matter of fact the special verdict states essential facts apart from the conclusions of law, upon which a judgment may be founded,” a special verdict “which contains some conclusions of law is” not “thereby invalidated.” Noseda v. Delmul, 123 Ohio St., 647, 651, 176 N. E., 571, 76 A. L. R., 1133.

‘ ‘ The jury are the exclusive judges of the facts, but they should be required to return as their conclusions from the evidence the ultimate facts in the case and not a recital of the evidence. However, the inclusion of evidence supporting facts found in a special verdict will not render it defective if ultimate facts are found which warrant a judgment. Nor are conclusions of law proper in a special verdict, and they must be disregarded just as are evidentiary matters. They do not destroy the effect of ultimate facts found, and if those are sufficient to sustain a judgment the special verdict should stand.” Dowd-Feder Co. v. Schreyer, 124 Ohio St., 504, 515, 179 N. E., 411.

The jury answered affirmatively question 16: “Was the defendant driving his automobile with that degree of care which a person of ordinary prudence would have exercised under the same or similar circumstances?” Obviously the jury did not answer question 17: “If your answer to the last question was no, then state in what manner the defendant failed to use ordinary .care ? ’ ’

Defendant contends “these two questions, and the response of the jury to them, were dispositive of the case.”

“The burden of proof was upon the plaintiff here to establish the material allegations of the petition.” Noseda v. Delmul, 123 Ohio St., 647 at 653.

The jury found that plaintiff had not sustained her burden, and with that finding we can not interfere.

We concur in defendant’s contention that the jury’s answers to question 16 disposed of plaintiff’s cause of action, and were it not for the fact that a statutory duty is imposed upon this court we would hot have disposed of plaintiff’s assigned grounds of error as we have done.

In our opinion, the charge of the trial judge reveals no superfluous instructions to the jury. However, if it did, it was plaintiff’s duty to identify any such superfluous instruction and to show she was prejudiced thereby, which she has failed to do.

The judgment of the Court of Common Pleas must be, and hereby is, affirmed.

Judgment affirmed.

Nichols, P. J., and Griffith, J., concur.