author: Middleton, J.

text:
    Benjamin, Appellee, v. Lawson, Appellant.
    (No. 985
    Decided April 9, 1947.)

      Mr. Roy W. Roof and Mr. Frank Wiedemann, for ■appellee.

      Messrs. Martin & Reed, Mr. J. C. A. Arter and Messrs. Gable é Gable, for appellant.
   Middleton, J.

Plaintiff’s action is one for damages for personal injuries resulting from a fall on defendant’s premises.

Her petition alleges that the defendant was the owner of a three story residential apartment building in the city of Marion, Ohio; that plaintiff had occupied an apartment in the building for a period of three years prior to the date of injury; that the building was constructed with a hallway through the center of the building, with apartments on each side of the hallway; that on entering or leaving plaintiff’s apartment it was necessary to walk through the hallway; that on the 8th day of January 1943, the defendant, or his agent or servant, on the third floor of the building, removed a part of the flooring from the east end of the hallway, leaving an uncovered hole in the hallway of approximately three feet square in size; that the defendant failed and neglected to place any covering or protection over the hole or to place any light near the hole or to place any warning sign near the hole, but negligently permitted the same to be and remain open; that by reason of the defendant’s carelessness and negligence in so failing to provide a covering for the hole, or to guard the same with warning signs or to place a light near the same so that the hole could be seen by plaintiff, plaintiff did, on the 9th day of January, while walking through the hallway at about 6:30 o’clock in the morning while leaving her apartment, fall into the hole injuring herself to her damage in the sum of $20,000 for which she prays judgment.

The defendant filed an answer setting forth four defenses.

The first defense admits he was the owner of the apartment building on the date set out in the petition.

For a second defense he avers: “Defendant says that sometime prior to January 9, 1943, he entered into an oral contract with T. Cunningham, a plumbing contractor, doing business in Marion, Ohio, to fix and repair a gas line on the second floor of said Union Block. That by the terms of this contract defendant agreed to pay for the work and the contractor agreed to supply all materials, labor and supervision.

“Defendant says he did not retain or exercise any control over the performance of the work and that by reason thereof, T. Cunningham was an independent contractor. ’ ’

For a third defense he avers: “That the injuries complained of by the plaintiff resulted solely from her own negligence in the following respects: That plaintiff knew or should have known that repair was being made in the hallway and that although she knew or should have known this fact she failed to exercise ordinary care for her own safety.”

For a fourth defense he avers: “If the defendant is guilty of any negligence in any manner causing said injury to plaintiff, all of which this defendant expressly denies, then the defendant says that plaintiff was guilty of negligence directly contributing to her own injury in the following respects: That as plaintiff entered the hallway, she knew or should have known that repair was being made therein’, or in the exercise of ordinary care would have known this fact, she entered said hallway without looking and observing the condition of said hallway.”

Plaintiff filed a reply in which she denied each and every allegation contained in the first, second, third and fourth defenses of defendant’s answer which are inconsistent with the allegations set forth in plaintiff’s petition.

Trial was had on those pleadings and judgment was recovered by the plaintiff in the sum of $12,120.

Defendant’s assignments of error set forth eight grounds of error as follows:

1. The court erred in overruling the motion of the defendant for a new trial.

2. The court erred in its general charge to the jury.

3. The court erred in refusing to give to the jury before argument the instruction requested and tendered in writing by the defendant.

4. Conduct of trial court amounting to abuse of discretion prejudicial to rights of defendant.

(a) Statement of case by trial court.

(b) Trial court’s attempt to impanel the jury.

(c) Trial court forcing defendant’s exhibit into the case. Unwarranted argument with reference thereto in presence of jury.

5. The verdict of the jury is against the manifest weight of the evidence and not sustained by a preponderance of the evidence.

6. The verdict of the jury is contrary to law and not sustained by sufficient evidence.

7. The court erred in overruling the motion of the defendant made at the close of the evidence of the plaintiff to instruct the jury to return a verdict for defendant and likewise for the same instruction at the close of all the evidence.

8. The verdict of the jury was excessive and was given under the influence of passion and prejudice.

The first and second assignments of error will be reserved for consideration last and the other assignments considered in their order.

Third Assignment of Error.

The court properly refused to give to the jury before argument, the instruction requested, as it was too limited in its scope and would have, if given, been in effect a direction of a verdict for the defendant. Whether the act of the plaintiff constituted contributory negligence was a. question for the jury.

Fourth Assignment of Error.

(a) At the time the trial court made the statement of the case to the jury, complained of by the defendant, the defendant made no objection, and not having objected at the time, he waived any error the statement may have contained.

(b) The trial court was well within its province in its examination of tentative jurors and there was nothing prejudicial in such examination as shown by the record. Again, no objection was made by the defendant at the time.

(c) The exhibit received in evidence by the court on its own motion was later withdrawn by the court and was not submitted to the jury. If there was any error in the court’s action it was cured by withdrawing the exhibit from the consideration of the jury. There was nothing prejudicial to the defendant in the comments the court made at the time in the presence of the jury.

Fifth and Sixth Assignments of Error.

There is ample evidence in the record to justify the verdict of the jury, and the claim, that the verdict is against the manifest weight of the evidence, is not sustained by a preponderance of the evidence, is contrary to law and is not sustained by sufficient evidence, is without merit.

Seventh Assignment of Error.

The court finds.no error in the action of the court in overruling defendant’s motion for a directed verdict for the defendant, there being ample evidence in the record to support all the essential averments set out by plaintiff in her petition.

Eighth Assignment of Error.

The amount of a verdict is a. question within the province of the jury and there is nothing in the record in this case to support the claim that the verdict is excessive or was given under the influence of passion and prejudice.

Second Assignment of Error.

Defendant’s second assignment of error is that the court erred in its general charge to the jury, first, in-defining the issues, and, second, in assuming that the persons performing the work of removing a part of the floor of the hallway were the servants, agents and employees of the defendant, for whose negligence the defendant would be liable, and instructing the jury accordingly.

The portions of the charge complained of are as follows:

“Now directing your attention to the claim of the plaintiff against the defendant, the court finds the issues to be these:

“First: Was the defendant, his agents, servants and employees, negligent in one or more of the ways and manner claimed in plaintiff’s petition and to which your attention has been directed?

“Second: If so negligent, was such negligence the direct and proximate cause of the injury to plaintiff as alleged?

“Third: If so negligent and so injured, was plaintiff damaged by reason thereof, and if so, in what amount?

“Fourth: Was the plaintiff guilty of contributory negligence, that is, negligence directly and proximately contributing to her injury?

“Fifth: Did the injuries complained of by the plaintiff result solely from her own negligence?”

Following that instruction the court charged the jury as to the burden of proof on the issues mentioned, and then as to the circumstances under which the defendant would be liable in case the work mentioned was performed by an independent contractor, as alleged by the defendant in his answer.

The court then charged the jury that “the negligence, if any, upon the part of the agent, servant and employee of the defendant, would be the negligence of the defendant”; and later charged that “the negligence, if any, upon the part of those you find to be the agents, servants and employees of the defendant, would be the negligence of the defendant. ’ ’

The portions of the general charge above quoted are the ones of which the defendant complains.

As a second defense in his answer the defendant pleaded facts showing that prior to January 9, 1943, he entered into an oral contract with T. Cunningham, a plumbing contractor doing business in Marion, Ohio, to fix and repair a gas line on the second floor of Union Block, neither retaining nor exercising any control over the performance of the work, and that T. Cunningham thereafter, pursuant to the contract, performed the work which included the opening in the floor of the hallway above mentioned, as an independent contractor; and he contends that all the evidence in the case tends to prove that T. Cunningham, in his capacity as an independent contractor, performed this work through his own agents, servants and employees, A. J. Merkle and Harvey Bell, and that there is no evidence that the defendant caused the work to be performed by his own agents, servants and employees, or that A. J. Merkle and Harvey Bell, or either of them, were the agents, servants and employees of the defendant; and consequently that the court erred in defining the issues and in charging upon the subject of the negligence of the agents, servants and employees of the defendant.

The only evidence introduced by the plaintiff in any way reflecting on the relationship of the defendant to the plumbers engaged in doing the work, is the evidence of Helen Wiseman, the daughter of the plaintiff. This testimony is as follows:

“Q. And while you were in the apartment did Howard Lawson and someone come into the apartment? A. Yes.

“Q. Tell what happened when they came in there? A. I went in the front room to turn the radio off after I had my lunch, and on my way out I thought I heard' a key rattle in the door, and 1 didn’t say anything, and' I was standing by the bathroom door and Mr. Lawson and the plumber came in and they were looking at the-pipe under the stove and walked back out and looked at the hole where it was cut out in the hall floor, and talked about it.

“Q. This hole was where? A. Where you go back the hall on the right hand side, a place about this wide- and about that long.

“Q. How many inches or feet wide? A. I am not a good judge, but I know it was that big, because you-can tell where it was, the boards had been taken up and put back.

“Q. About two feet long? A. Yes.

# * * # #

“Q. When you say Howard Lawson and the plumber-go out and look at this hole, what next happened? A. They went back downstairs.”

All the evidence introduced by the defendant tended to prove that the work was performed by T. Cunningham as an independent contractor, through his agents,, servants and employees, as above mentioned.

The question then arises whether the evidence quoted is sufficient to require the submission to the jury of the issue as to whether the persons actually engaged in the performance of the work were the agents, servants or employees of the defendant, Lawson, or the-agents, servants and employees of Cunningham as an. independent contractor.

Although we have made diligent search, we have been unable to find any reported cases in Ohio bearing on the. question, but we have found the three following rules formulated from the decisions of the courts in-other jurisdictions:

“As a general rule, no presumption exists that an •employee is either a servant or an independent contractor, and the burden is upon the party having the affirmative of the issue to show the relation to be such ■as to entitle him to recover.”

“It has been held that in an action against an employer for injuries, a presumption arises that a person working on the defendant’s premises and performing work for the benefit of the defendant is a mere servant, ■and if the defendant seeks to avoid liability on the ■ground that such person is an independent contractor, the burden is upon him to show the independence of the employee.” 27 American Jurisprudence, 538, ■Section 59.

“On the other hand, though such a doctrine has apparently not been explicitly formulated, it would at least seem to be a reasonable inference from the decisions as a whole that no presumption that the relation •of the parties was that of master and servant can be entertained, when the case has been developed to a point ■at which the nature of the employment — whether general, or with a view to a specific result — the character ■of the work contracted for, and the industrial status of the person engaged have been disclosed by the testimony.” 65 L. R. A., 460, footnote.

From a consideration of those rules we formulate a further rule which we feel is in accord with the Ohio •decisions generally applicable to -the subject matter, and this rule is that while no presumption arises that a person working on the defendant’s premises and performing work for the benefit of the defendant is a mere servant, evidence of such facts is sufficient for the submission to the jury of an issue as to whether •such person is working in the capacity of a servant for the defendant, and if the defendant seeks to avoid liability on the ground that such person is an independent contractor, the burden is upon him to show the independence of the employee.

The testimony herein quoted tends to prove the existence of the relationship of master and servant between the defendant Lawson and the persons engaged in the manual performance of the work, within the rule above mentioned, and required the submission of an issue of such relationship to the jury, and the other testimony in the case required the submission of an issue as to whether the work was being performed by T. Cunningham as an independent contractor, through such persons as his servants, agents and employees, and, in the event the jury should find in the affirmative on that issue, the submission of a further issue as to whether T. Cunningham, his servants, agents and employees were negligent in one or more of the ways and manners claimed in plaintiff’s petition; and, in the event the jury should find in the affirmative on that issue, the submission of a further issue as to whether such negligence was the direct and proximate cause of plaintiff’s injury; and, if the jury should find in the affirmative on such issue, the submission of a further issue as to whether such injury might have been anticipated as a direct and probable consequence of the work contracted for, if reasonable care is omitted in the course of its performance. The court, therefore, erred in its charge to the jury in assuming that the relationship of master and servant existed between the defendant and the persons engaged in the manual performance of such work, and in defining the issues in the case.

There being error in the charge, the first assignment of error, refusal of the court to grant a new trial, is sustained.

The errors above mentioned were prejudicial to the •defendant and require the reversal of the judgment of the Court of Common Pleas.

The judgment, therefore, is reversed at the costs of the plaintiff, appellee herein, and the cause is remanded for a new trial and further proceedings according “to law.

Judgment reversed.

Jackson, P. J., and Guernsey, J., concur.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    In re Estate of Decker.
    (No. 442
    Decided December 9, 1947.)

      Mr. Hugh 8. Jenkins, attorney general, 'and Mr. ■Joseph F. Ford, for appellant.

      Messrs. Estabrook, Finn <& McKee, for appellees.
   Miller, J.

This is an appeal on questions of law ■from the Court of Common Pleas of Miami county, wherein it was determined that the valuation for tax purposes of 245 shares of stock in the Val Decker Packing Company was $375 per share.

The record discloses that Louis P. Decker died testate on January 15, 1944, leaving the 245 shares of stock, valued at $350 per share, among the assets of the estate. An application was filed with the Probate-Court on December 9, 1944, to determine the inheritance tax. This application contained a listing of the stock at a value of $350 per share and the Probate-Court forthwith determined the inheritance tax applicable to the various successions. The Tax Commissioner, under authority of Section 5345-1, General' Code, filed a motion in Probate Court asking that court to vacate its order and finding and to issue an. order of appraisement to the auditor of Miami county for an official appraisal. Pursuant to that motion the original determination of tax was vacated, and the-order for an appraisal by the county auditor was issued. A hearing was had by the auditor who thereafter found the stock had a value of $550 per share instead of $350 as listed in the application. On the basis-of this official appraisal by the county auditor, a new determination of inheritance tax was made by the-Probate Court. To that determination of the Probate Court exceptions were filed by the executors and the-successors. Upon the hearing of the exceptions, it was found by the Probate Court that the value of the stock was $375 per share. No record was made of' those proceedings from the finding in which a notice of' appeal on questions of law and fact was filed on behalf' of the Department of Taxation. Upon hearing it was-found and determined by the court that the auditor’s appraisement should be modified so as to sustain the-last determination in the Probate Court fixing the-value of the shares at $375 each. It is from that ruling that this appeal is prosecuted.

Briefly, the errors assigned are:

1. Error in determining that the Department of Taxation had the burden of going forward with its case when the court should have held that such burden was -on the representatives of the estate.

2. Error in determining that the value of the stock was $375 per share and in determining that the appellees had sustained the burden of proof in such finding.

In the hearing before the Court of Common Pleas, the question was presented as to who should proceed in the case. The court held that the Department of Taxation should proceed, but also held that the burden of proof should be upon the appellees. The court recognized that the hearing was de novo but held that the state should proceed first with its proof. This was a matter which rested within the sound discretion -of the court.

In. 2 Ohio Jurisprudence, 710, Section 638, it is ■stated:

“The discretionary power to change the order of proceeding on the trial, vested in the trial court by •statute, may be exercised in determining which party ■shall open and close the evidence and argument. * * * it will not be reviewed except upon a plain case of error, and where it appears that prejudice has resulted.”

2 Ohio Jurisprudence, 711, Section 639, reads, in part:

“But as these rules must, necessarily, often be applied or relaxed according to circumstances apparent -only to the court conducting the trial, much is left to the discretion of that court, and, speaking broadly, it •may be said that it is within the discretion of the trial ■court either to admit or to reject competent evidence -offered out of the regular order, and that, unless the record discloses an abuse of discretion, its action in this regard will not be disturbed on error.77

The record discloses that the state had full and complete opportunity to offer any testimony or evidence it desired and to fully cross-examine. It was deprived of no right and, therefore, there was no prejudicial error.

We shall consider the next two assignments of error together, as they both relate to alleged error in the-reducing of the value of the stock: The difficulty in. determining the value of the stock is due to the fact that practically all the shares are held by members of the Decker family and no sales of stock have been made in recent years. All the stock of the Val Decker Packing Company is held in a voting trust and the-shareholders have no right to vote for members of the-board of directors or any other officers of the company and have absolutely no control in the management of the company. This fact was commented upon by both the probate judge and the common pleas-judge as having a tendency to decrease somewhat the-market value of the stock. We are in accord with the conclusions of the two courts below. We have carefully examined the testimony and exhibits contained in the bill of exceptions and are of the opinion that the finding of the court was sustained by the greater weight of evidence.

The record discloses that the state of Ohio offered no-direct evidence either in- the hearing before the auditor or the Common Pleas Court as to the value of the shares of stock. The auditor seems to have arrived at his conclusions from an analysis of the books, records and financial statements of the company. On the other hand, the appellees offered expert testimony of three witnesses placing the value of stock from $300 to-$350 per share. One of these witnesses, Troy Kaichen ' of Cincinnati, Ohio, qualified as a stockbroker with 18 years experience in the business, during which time he had occasion to value stocks both listed and unlisted, in an effort to determine their fair value. He testified that be was familiar with the methods commonly used by bankers and appraisers in this work. He also testified that he had assisted as a valuation expert with relation to federal, estate and succession taxes. The methods he used in arriving at his conclusion that the stock was worth $300 per share were' those measures which are ordinarily used for business purposes in estimating values of property, such as business, actual property, value of actual assets and «mount and nature of present and contingent liabilií íes.

L. H. Willig placed a value on the shares of $350 : ach. The record discloses that he has been a certified public accountant since 1924 and has been actively engaged in that profession since that time. He testified that he had numerous valuation matters in connection with securities, especially in the matter of federal assets; that his firm had been handling the accounting in tax matters for the Val Decker Packing Company since 1937; and that he was familiar with the operation of the company. The methods he employed in determining the valuation of the stock were also those ordinarily used for business purposes.

I. H. Jones testified before the county auditor, the record of which testimony was admitted in evidence in this case, that he was vice-president of the Winters National Bank & Trust Company of Dayton, Ohio, since 1936, and that prior to that he was an examiner in the state banking department for eight years and as such examiner his duties consisted primarily in the examining of banks, which meant the determinination of assets, and for a period of about eight months he had charge of the liquidation of the Union Trust Company of Dayton, Ohio. As such liquidation officer, it was his duty as a state official to pass judgment on the values of corporation stocks. He testified in detail as to the methods he used in arriving at the value of the stock, in the instant case, which were also those used ordinarily for business purposes, and his opinion was that the stock was worth $350 per share.

The record shows that the United States, for taxation purposes, has placed a value on the shares of $375 each.

The county auditor in his report made an analysis of the condition of the company and found, “in view of the foregoing analysis, there is no apparent reason for placing a much lesser amount on the stock than that shown by the records of the corporation, such value being $1,000 per share on January 1, 1944, immediately preceding the death of Louis F. Decker.”

It was held in In re Estate of Jones, 23 Ohio App., 74, that the book value of stock cannot be considered as its actual market value; that the actual market value of the stock does not depend upon one thing, but upon many, to wit, (a) the value and sale of stocks of a similar kind, (b) the activities of the corporation during the periods of its existence, (c) its earnings at the time of the death, (d) the actual financial condition of the corporation at the time as compared with previous dates during its existence, and (e) the future prospects of the corporation, in a financial way, and dividends that had been paid during the years of the corporation.

Appellees’ exhibit 15 in the record of proceedings held before the county auditor may throw some light upon the reason the auditor fixed a value of $550 per share upon the stock. This exhibit is a letter from J. S. Edwards, assistant tax examiner for the state of Ohio, to Mr. Charles S. Ross, in which he stated, “my own thought in the matter would be that a true value of somewhere around $500 to $650 would not be unreasonable.”

It is for the foregoing reasons that we find that the appellees proved by a preponderance of the evidence in the trial court that the value of the stock was $375 per share, and the trial court was correct in so finding.

It is the contention of the state that the auditor used practically every accepted test in arriving at his conclusion, and that such determination should be presumed to be correct and should not be set aside or modified in the absence of clear and convincing evidence showing it to be incorrect.

In the case of In re Estate of Seidensticker, 75 Ohio App., 73, 60 N. E. (2d), 74, this court held:

“The Probate Court, in determining the amount of inheritance tax, acts in a judicial as well as an administrative capacity, has the same power in respect thereto that it has in respect to other matters rightfully lodged with it, and may, in accordance with such power, set aside its determination based upon a mistaken appraisal and make a second determination based upon the true appraisal.”

Section 5346, General Code, provides:

“* * * any person dissatisfied with the appraisement and determination of taxes, may file exceptions thereto in writing with the Probate Court * * *. Upon the hearing of such exceptions, said court may make such order as to it may seem just and proper in the premises. # * #”

Therefore, when the Probate Court was called upon to hear the exceptions by the estate of Louis F. Decker, the court had the right to make such order as to it seemed just and proper in the premises. Since the Probate Court had the right “to make such order as to it may seem just and proper in the premises” upon the hearing of exceptions to the county auditor’s valuation under Section 5346, General Code, it would seem that the statutes give a clear path for courts reviewing the Probate Court’s decision to decide for themselves what order was “just and proper in the premises.”

We find no error in the record, and the judgment is affirmed.

Judgment affirmed.

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


author: Wiseman, P. J.

text:
    Walcott, Appellee, v. Fuller, Appellant.

      (No. 4077
    Decided February 10, 1948.)

      Messrs. Wiles & Doticher, for appellee.

      Messrs. Hamilton & Kramer and Mr. Joseph R. Hague, for appellant.
   Wiseman, P. J.

This is an appeal on questions of law from the judgment of the Municipal Court of Columbus in favor of the plaintiff in the sum of $275 for damages resulting from an automobile collision. The case was tried to the court without the intervention of a jury.

The plaintiff in his petition alleges that on December 17,1945, he was driving his automobile in a westerly direction on First avenue in the city of Grandview Heights and when he reached a point west of Gladden avenue, the defendant who was operating a motor vehicle in a westerly direction on First avenue, turned left directly into the path of the plaintiff, striking and damaging the motor vehicle of the plaintiff. Plaintiff alleges the direct and proximate cause of the accident was the negligence of the defendant in this, to wit: In failing to keep a lookout; in failing to have his automobile under control; and, in failing to give any signal of his intention to turn or vary the direction of his automobile prior to changing the same. Plaintiff states that his automobile was reasonably worth $1,100 before the accident and $850 after the accident. Plaintiff asks damages also in the sum of $50 for the loss of use of his automobile for the period of one week.

The answer of the defendant is in the nature of a general denial, and that if plaintiff sustained any damage it was caused solely by his own negligence.

The defendant assigns as errors: That the judgment is against the manifest weight of the evidence and is not sustained by any evidence; that the court erred in failing to sustain defendant’s motion for a directed verdict at the conclusion of the plaintiff’s case and at the close of all the testimony; and that the judgment was contrary to law.

The several assignments of error will be considered together.

The evidence presented on behalf of the plaintiff tends to prove that the accident happened at about 1:30 p. m.; that the street was covered with ice and snow and was slippery; that the plaintiff and defendant were both driving in a westerly direction on First avenue, the defendant in front traveling at a speed between ten and fifteen miles per hour, and the plaintiff in the rear of the defendant traveling at a speed of about five miles per hour greater than the defendant; that the plaintiff overtook the defendant, pulled to the center of the street, and blew his horn to pass the defendant on his left side; that the defendant, without giving a signal, suddenly turned to the left to enter a driveway on the south side of the street; that, before the defendant made the left turn, the front wheels of plaintiff’s automobile were about even with the rear wheels of the defendant’s automobile; that the plaintiff turned to the left and applied his brakes; and that, because of the slippery condition of the street, the plaintiff’s automobile skidded or slipped into the defendant’s automobile just as it was entering the driveway, the rear end extending into the street several feet. The right front end of the plaintiff’s automobile came in contact with the left rear end of the defendant’s automobile.

The defendant testified he did not see the plaintiff’s automobile until the impact occurred and that he did not hear the sound of the horn. When questioned as to whether he gave a signal he testified, “1 wouldn’t say that I did,” and as to whether he looked to the rear for other vehicles before turning, he testified, “1 wouldn’t say that I did or I wouldn’t say that I didn’t because I don’t recall of that fact.” Before making the turn, defendant was driving on the north side of the street in the lane for westbound traffic and the plaintiff was driving to the left and rear of defendant’s automobile.

Is the “assured clear distance ahead” rule applicable? Section 6307-21, General Code. The defendant invokes the rule and cites the case of Higbee Co. v. Lindemann, 131 Ohio St., 479, 3 N. E. (2d), 426, as authority for a denial of plaintiff’s right of recovery. In that case a truck had stopped in the street some distance from the curb. The court in discussing the failure of the driver of the other vehicle to stop within the “assured clear distance ahead,” on page 480 stated:

“The driver of the truck, without signal or other warning, and without being required to do so by any obstacle in its path, but for the purpose of making delivery of some merchandise, brought it to a stop with its right hand wheels four or five feet from the curb. At the time of the collision and during the progress of her automobile from the intersection of Detroit avenue, a few hundred feet to the south, the plaintiff ‘was at such a distance behind the Higbee truck as that she could have brought it to a stop within the assured clear distance ahead’ of her automobile.”

In Smiley v. Arrow Spring Bed Co., 138 Ohio St., 81, 33 N. E. (2d), 3, 133 A. L. R., 960, it is held that the rule is not applicable where the “assured clear distance-ahead” is suddenly cut down without the fault of the driver by the entrance within such clear distance-ahead and into his path or line of travel of some ob-. struction which renders him unable in the exercise of ordinary care to avoid colliding therewith.

In Higbee Co. v. Lindemann, supra, the truck did not leave the lane of traffic in which it had been traveling and had stopped. That case is clearly distinguishable from the facts in the instant case. For a discussion of the application of the rule to different situations reference is made to the following cases decided by this court: Kohnle v. Carey, 80 Ohio App., 23, 67 N. E. (2d), 98; Reeves v. Joe O. Frank Co., 76 Ohio App., 1, 62 N. E. (2d), 886; Proctor v. White, 22 Ohio Law Abs., 115.

In the instant case, in determining whether the trial court committed error in overruling defendant’s motion, this court is required to give the evidence a construction most favorable to the plaintiff. The defendant admitted he did not see the plaintiff until the impact and according to his testimony it is apparent that the defendant gave no signal before making a left turn which he was required to do. Section 6307-38, General Code. On this evidence the trial court was warranted in finding that the plaintiff had proven two specifications alleged in the petition, to wit: Failure to keep a proper lookout for other vehicles on the street before making a turn; and failure to give a signal of his intention to make the turn.

Was the plaintiff guilty of contributory negligence? We do not think so. The plaintiff had a right to pass the defendant’s automobile. He proceeded to do so in a lawful manner. He was operating Ms automobile' in a different lane of travel. Sections 6307-27 and 6307-29, General Code. The only act of negligence charged against the plaintiff is that he failed to stop within the “assured clear distance ahead.” However, the evidence clearly shows, as already pointed out, that the defendant suddenly changed the direction in which he was driving and turned to the left directly in the path of, and in such close proximity to,, the plaintiff’s automobile by reason of which, in the-exercise of ordinary care, neither the space nor opportunity was given to the plaintiff to avoid a collision. .Under this state of facts the “assured clear distance” statute (Section 6307-21, General Code) is not applicable. To hold otherwise, a driver in passing another motor vehicle in a lawful manner would do so* at his peril.

The evidence supports the amount of damages awarded. The judgment is not against the manifest weight of the evidence and is not contrary to law. The judgment is sustained by sufficient evidence and no error was committed in overruling defendant’s motion at the close of all the evidence.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


author: By the Court. By the Court.

text:
    United Ins. Co., Appellee, v. Hutchinson, Appellee; Unemployment Compensation Board of Review, Appellant.
    (No. 3882
    Decided September 23, 1946.)

      Messrs. Benoy, Saxby & Sebastian, for appellee The United Insurance Company.

      Mr. Hugh S. Jenkins, attorney general, and Mr. John M. Woy, for appellant.
   By the Court.

This is an appeal from the judgment of the Common Pleas Court of Franklin county, which overruled a motion interposed by the Unemployment Compensation Board of Review to dismiss the action for lack of jurisdiction.

The board of review allowed benefits to the claimant, Moreland Hutchinson, and the employer, The United Insurance Company, filed an appeal in the Common Pleas Court of Franklin county. The board of review was made a party defendant by motion in accordance with the Unemployment Compensation. Act.

All three assignments of error challenge the jurisdiction of the Common Pleas Court of Franklin county to-hear and determine the appeal. The determination of this question requires the court to construe the provisions of Section 1346-4, General Code (120 Ohio-Laws, 690), a part of the eighth paragraph of which-provides as follows:

“Any interested .party as defined in this act may, within thirty days after notice of the decision of the-board was mailed to the last known post office address of the parties, appeal from the decision of the board of review, or of a referee where an appeal has been disallowed by the board, to the Court of Common Pleas-of the county wherein the appellant, if an employee, is resident or was last employed or of the county wherein appellant, if an employer, is resident or has his principal place of business in Ohio.’’ (Italics ours.)

The United Insurance Company, being the employer,, filed its appeal in the Common Pleas Court of Franklin county on the ground that it “is resident” in that county. The record shows that The United Insurance-Company is a foreign corporation organized under the laws of the state of Illinois and with its headquarters in Chicago. The insurance company is authorized to do business in Ohio and has agencies in-several of the larger cities of this state, including Columbus and Cleveland. The claimant worked for the Cleveland agency. He had never worked for the Columbus agency. The agencies of the insurance company in the several cities of Ohio are entirely independent of each other. Each of these agencies deals-■directly with the home office in Chicago. No one agency in Ohio exercises any authority or supervision over •any other agency. Upon this set of facts we cannot find that the “principal place of business” of the insurance company was in Franklin county. The right ■of the Common Pleas Court of Franklin county to entertain jurisdiction hinges on the determination of the ■question as to whether the insurance company was a resident of Franklin county, within the provisions of Section 1346-4, General Code.

As a general proposition the residence of a corporation is in the state or jurisdiction of its creation. The question arises, however, as to whether the United Insurance Company, being a foreign corporation but doing business in Ohio, had acquired a residence in any one of the counties in which it had an agency and particularly in Franklin county.

In 13 American Jurisprudence, 281, Section 148, the text is as follows:

“Whether a corporation is to be considered a resident of a particular place, by virtue of doing business there, depends entirely upon the connection in which the question arises. Where the problem is one of statutory construction, it must be solved in the light of the purposes of the act. In the absence of express statutory provision fixing the locality of the residence of a corporation for particular purposes within the state by which it was created, the general rule is that its residence is where its principal office or place of business is.” (Italics ours.)

In 10 Ohio Jurisprudence, 1152, Section 881, this proposition is stated as follows:

“While it has been said to be well settled that a cor-portion created by the laws of one state may be reincorporated by the act of another state, and thus become a domestic corporation, and while a foreign corporation may be made a domestic corporation of another state by the legislature thereof, at least in regard to property and acts within the territorial jurisdiction, it is nevertheless well settled that compliance-with the Ohio statutes as to the doing of business therein by foreign corporations does not change the foreign corporation into a domestic one, or change its citizenship.” (Italics ours.)

On page 1154, the following language is used:

“A foreign corporation derives whatever powers, it may have or justly exercise from the laws of another state, and cannot be deemed domestic to Ohio. N01can a domestic corporation, as such, become a nonresident of Ohio; neither can a foreign corporation have a legal residence in this state. It is conclusively presumed to be a nonresident.” (Italics ours.)

In 8 Fletcher Cyclopedia Corporations (Perm. Ed.),. 440, the rule is stated:

“The rule is also well settled that the legal existence,, the home, the domicile, the habitat, the residence, the-citizenship of the corporation can only be in the state-by which it was created, notwithstanding it may lawfully do business in other states, therefore as to all other states it is a foreign corporation, unless it is completely domesticated so as to become a new creation, and at least for jurisdictional purposes corporations will be conclusively presumed to be citizens and residents of the state by which they were created.” (Italics ours.)

See, also, Cleveland Cliffs Iron Co. v. Madigan, 17 C. C. (N. S.), 340, 343, 32 C. D., 177 (affirmed without opinion, 88 Ohio St., 533, 106 N. E., 1067); Ins. Co. v. Francis, 78 U. S. (11 Wall.), 210, 216.

It is contended on behalf of the plaintiff that for certain purposes a foreign corporation may be con•sidered a resident of this state and in support thereof -a line of authorities is cited, most of which relate to •the service of summons or process on officers or agents within the state. We are of the opinion that this line of ■authorities has no application to the question before this court. Special provisions of the statute control these matters. We are required to determine the intention of the Legislature in the use of the word “resi•dent” in the enactment of Section 1346-4, General Code. We are convinced that the Legislature never •intended in the use of the term “resident” to confer on a foreign corporation all the attributes of a domestic ■corporation, and permit a foreign corporation to establish a residence within this state. To hold otherwise would require this court to conclude that the United Insurance Company had a residence in every county in the state in which it had an agency, and it could have filed an appeal in the Court of Common Pleas in .■any one of several counties.

As heretofore stated, the claimant was employed by the Cleveland agency and his rights arose under that •employment. Whether an appeal could properly be filed in the Common Pleas Court of Cuyahoga county is not before this court. It is sufficient for this court to decide that construing the provisions of Section 1346-4, General Code, the United Insurance Company was not a resident of Franklin county and did not have a principal place of business in that county. Certainly the law of Ohio should afford a forum in which the appellant can properly file an appeal. However, we hold that the Common Pleas Court of Franklin county did not have jurisdiction to entertain this appeal.

The judgment of the lower court will be reversed.

Judgment reversed.

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

(Decided October 15, 1946.)

On Application for rehearing.

By the Court.

The contention is made that the effect of the holding of this court is to deny the appellant a remedy by appeal under Section 134-6-4, Generali Code, and that, therefore, the statute is unconstitutional and void. We did not have before us and did not determine the question whether an appeal could be maintained in some other county of the state. Perhaps such an action can be maintained and an action is now pending in the Common Pleas Court of Cuyahoga county. It was sufficient for this court to hold that such an action could not be maintained in Franklin county.

The application is denied.

Application denied.

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


author: By the Court.

text:
    The Industrial Rescue Mission, Appellant, v. City of Columbus, Appellee.
    (No. 4098
    Decided February 19, 1948.)

      Mr. W. B. Cockrell and Mr. Homer Z. Bostwick, for appellant.

      Mr. Richard W. Gordon, city attorney, Mr. Hugh K. Martin and Mr. Robert E. Leach, for appellee.
   By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin county. Demurrer was sustained to the plaintiff’s amended petition on the ground that it does not state facts sufficient to constitute a cause of action. The plaintiff electing not to plead further, judgment was entered against it.

In the amended petition it is alleged that plaintiff is a corporation not for profit, organized under the laws of the state of Ohio with its principal place of business in Columbus, Ohio, and that the city of Columbus is a municipal corporation duly organized under the laws of the state of Ohio. Plaintiff alleges that the purpose of its organization is to care for, house and feed the needy and poor in the city of Columbus; that the city of Columbus through its authorized representatives and officers sent needy and poor persons to the plaintiff for shelter and food; that •during the period from March 1, 1933, to June 30, 1933, the city through its Central Application Bureau, .a public charity in such city, made investigations and kept records of facts relating to persons demanding public relief; that such investigations, information and recommendations of the bureau were accepted by the ■city; that the city agreed to pay plaintiff for all applicants applying for public relief, approved and recommended by the bureau at the rate of 45 cents per day for food and shelter for each applicant; and that there was a contract or memorandum covering each applicant sent to the plaintiff by the city, signed by the representatives or proper officers or case workers for the •city. It is alleged that the contract or memorandum in writing provides in substance for authorized care to be given by the plaintiff to residents of the city of Columbus. Plaintiff further alleges that during the period from March 1, 1933, to June 30, 1933, it furnished applicants public relief directed to it by the city as aforesaid and that at the rate of 45 cents per •day, the city of Columbus owes the plaintiff the sum of $3,587.40 together with interest.

First, the demurrer is based on the provisions of '■Section 2293-2, G-eneral Code, which is a part of the Uniform Bond Act, and in part provides:

“ * * * But no subdivision or other political taxing unit shall create or incur any indebtedness for current operating expenses, except as provided in Sections 2293-3, 2293-3a, 2293-4, 2293-7 and 2293-24 of the Ueneral Code.” .

The exceptions have no application.

The phrase “current operating expenses” as used in the above section is defined in Section 2293-1, General Code, as follows:

“(f) ‘current operating expenses’ and ‘current expenses’ shall mean the lawful expenditures of a subdivision, except for permanent improvements, and except payments for interest, sinking fund and retirement of bonds, notes and certificates of indebtedness of the subdivision.”

We are of the opinion that-the claim of the plaintiff is not excluded by the provisions of this section but falls in that category of indebtedness for current operating expenses which shall not be incurred by a municipality.

Second, the demurrer is based also on the failure to allege in the amended petition an appropriation by the city council of the amount of money claimed to be due the plaintiff, as required by Section 5625-33, General Code, and by Section 30 of the charter of the city of Columbus. Section 30 of the charter provides:

“No money shall be drawn from the treasury of the city, nor shall any obligation-for the expenditure of money be incurred, except pursuant to appropriations made by the council * #

Section 5625-33, General Code, in part provides:

“No subdivision or taxing unit shall:

# * # * *

“(b) Make any expenditure of money unless it has been appropriated as provided in this act [Sections 5625-1 to 5625-39, General Code].”

There is no allegation in the amended petition showing a compliance with the provisions of the city charter or the state statute governing the matter.

Finally, it is contended that the amended petition is demurrable because it fails to allege that the city auditor first certified to the city council that the money for ■such contract was in the treasury of the city and not •appropriated for any other purpose. Such certification is required by Sections 159 and 161 of the charter ■of the city of Columbus which provide as follows:

“Section 159. N.o contract, agreement, or other obr ligation, involving the expenditure of money, shall be ■entered into, nor shall' any ordinance, resolution, or order for the expenditure of money be passed by the -council, or be authorized by any officer of the city, unless the auditor first certify to the council or the prop•er officer, as the case may be, that the money required for such contract, agreement, obligation or expenditure, is in the treasury, to the credit of the fund from which it is to be drawn, and not appropriated for any •other purpose, which certificate shall be filed and immediately recorded.. The sum so certified shall not thereafter be considered unappropriated until the ■city is discharged from the contract agreement or obligation.”

“Section 161. All contracts, agreements or other •obligations entered into and all ordinances passed, resolutions and orders adopted, contrary to the provisions of the precéding sections, shall be void, and no person whatever shall have any claim or demand against the city thereunder, nor shall the council, or •any officer of the city, waive or qualify the limits fixed by any ordinance, resolution or order, as provided in Section 159, or fasten upon the city any liability whatever, in excess of such limits, or release any party from an exact compliance with his contract under such ordinance, resolution or order.”

A similar provision is found in Section 5625-33, General Code, which in part provides:

“No subdivision or taxing unit shall:

“ (d) make any contract or give any order involving the expenditure of money unless there is attached thereto a certificate of the fiscal officer of the subdivision that the amount required to meet the same (or in the case of a continuing contract to be performed in whole, or in part, in an ensuing fiscal year, the amount required to meet the same in the fiscal year in which the contract is made), has been lawfully appropriated for such purpose and is in the treasury or in process of collection to the credit of an appropriate fund free from any previous encumbrances. Every such contract made without such a certificate shall be void and no warrant shall be issued in payment of any amount due thereon.”

It has been held that a petition which fails to allege such certification is demurrable. Broken Sword Stone Co. v. Trustees, 5 N. P. (N. S.), 573, 18 O. D. (N. P.), 136, affirmed by the Supreme Court without opinion in 78 Ohio St., 444, 85 N. E., 1120; Soeder v. City of Cleveland, 16 C. C. (N. S.), 260, 26 C. D., 508. The case of the City of Youngstown v. First National Bank, 106 Ohio St., 563, 140 N. E., 176, involved an emergency contemplated by Section 4373, General Code, which authorized the mayor to appoint temporary additional patrolmen in case of riot or other like emergency. That case is clearly distinguishable from the case at bar. In the instant case the plaintiff rests its cause of action on contract and, therefore, is amenable to the provisions of Section 5625-33, General Code. Since the amended petition failed to allege a compliance with the provisions of that section it was demurrable.

Finding no error in the record the judgment is affirmed.

Judgment affirmed.

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


text:
    Schottenstein, Appellant, v. DeVoe, Appellee.
    (No. 6955
    Decided June 1, 1948.)

      Mr. Sol Goodman, for appellant.

      Messrs. Steer, Strauss é Adair, for appellee.
   By the Court.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton county. A verdict was instructed for the defendant at the close of plaintiff’s evidence. The court entered the following judgment:

“Entry dismissing cause at plaintiff’s cost:

“This cause came on for trial upon the pleadings and plaintiff’s testimony and evidence, and the court coming now to consider defendant’s motion for dismissal at the conclusion of plaintiff’s case, finds that said motion was well taken and ought to be granted.

“The court further finds that the within action arose out of a real estate transaction between the parties; that amount claimed by plaintiff in his petition is a deposit made by defendant in connection with said real estate transaction; that in connection with said real estate transaction a contract was made in which the plaintiff, Ben Schottenstein, as seller and as agent for himself as seller, agreed not to claim any part of defendant’s deposit if the transaction for any reason was not completed.

“Therefore, it is ordered, adjudged and decreed that this cause be and the same hereby is dismissed at plaintiff’s costs.

“To all of which plaintiff excepts.”

The correctness of the conclusion of the trial court depends upon the construction to be placed upon a contract entered into by the plaintiff (seller) and the defendant (purchaser). By the terms of this contract, which is in the form of an offer by the purchaser and acceptance by the seller, the purchaser agrees to pay the sum of $21,500 for certain real estate described in the contract. The purchaser agrees to pay cash on delivery of the deed. The seller agrees to furnish a deed of genera] warranty. It is further provided in the offer of the purchaser, accepted by the seller:

“I — we hereby deposit one thousand dollars ($1,000) with seller as earnest money to apply on the purchase price, which is to be retained by him until the terms of this contract have been complied with. Said earnest money to be refunded if offer is not accepted or if title of said real estate is not as above set forth. This offer to remain open for acceptance until 31st day of July, 1946 — midnight.

“(Signed) Jack J. DeVoe.”

Below this offer appears the following:

“I — we hereby approve and accept the foregoing proposition and agree to sell said real estate upon the above terms and conditions and represent that I — we are the owner in fee simple and agree to pay Cleneay & Nourse Co., and Irwin Frieman, co-op, as broker the commission, amounting to five per cent of the above sale price. If deal does not go through for any reason we will claim no part of deposit nor any commission.

“(Signed) Ben Schottenstein.

Cincinnati, Ohio .... 19..

“I — we hereby acknowledge receipt of one thousand dollars ($1,000), earnest money as above provided.

“By Ben Schottenstein.”

A heavy line extending entirely across the page is printed below the signature of DeVoe and another below the first signature of Schottenstein.

It appears that a check for $1,000 was delivered to plaintiff (seller) contemporaneously with the execution of the contract on July 31, 1946, by the purchaser, and payment was stopped by the purchaser on August 8th.

The action is predicated upon the defendant purchaser’s liability upon the check.

In a preliminary clause, in the answer, the execution and delivery of the check to the plaintiff seller and that payment was stopped thereon are admitted,, and otherwise the allegations of the petition are denied. ,

For a first defense, the defendant purchaser alleges an absence of good and valuable consideration for the check.

The second defense is based upon a failure of consideration.

For a third defense, it is alleged that plaintiff is unable to perform his contract because he sold the property to a third person.

For a fourth defense, the defendant alleges that no claim was to be made against such check as a deposit if, for any reason, the sale was not completed, and that the sale of the premises to a third person and failure to complete sale to defendant is a defense to obligation upon the check.

For a fifth defense, the defendant alleges failure to tender a deed of general warranty to the defendant.

For a sixth defense, the defendant alleges that the check was delivered upon condition it was not to be “deposited and honored” before the time the purchase of the property was completed, and that the sale was not completed and the condition imposing obligation upon defendant on the- check has not occurred.

A reply, denying the factual allegations of the answer, was duly filed.

The plaintiff testified that he was handling the sale of the property for his wife, that the legal title was in his wife’s name, that he and his wife are partners in a business, that sometimes title is taken in the name of one and sometimes in the name of the other, that after payment was stopped on the check, he sold the property to another purchaser for $20,500, and that this sale was made within the 30-day period mentioned in the contract.

It appears from the evidence that when payment was stopped on the check, the purchaser was notified that the seller presumed therefrom that the purchaser did not intend to go through with the sale. In this letter, however, the attorney for the seller notified the purchaser that his action in stopping payment on the check did not relieve him from his obligation to pay the amount of the check, and the purchaser was asked to let the attorney know whether payment would be made, or whether it would be necessary to file suit. The purchaser admitted he did not have money on deposit to cover the check, and that he never at any time offered to make it good. Defendant further stated when he stopped payment on the check he intended to i ‘ drop the deal. ’ ’

From statements made by the court in ruling upon the defendant’s motion for judgment at the conclusion of plaintiff’s evidence, and in the final judgment entry, noted hereinbefore, it is clear that the sole basis for the action of the court was the language in the contract — “If deal does not go through for any reason we will claim no part of deposit nor any commission. ” (Emphasis added.) Now this statement follows immediately after a statement in which the seller agreed to pay certain real estate brokers a commission of 5 per cent on the purchase price. It seems clear that the clause referring to the deal not going through applied not to the purchaser, but to the responsibility of the seller to pay a commission to the brokers. To construe the language in question, as found by the court, is to say the seller would claim no part of the deposit if the purchaser for no reason decided to cancel the deal. Such a construction would entirely destroy the obligatory provisions of the contract and completely destroy it as a binding contract to purchase and sell. The rule is familiar that isolated clauses in a contract cannot be selected as determining its effect, when, upon reading the whole contract, a reasonable construction requires a different conclusion. It is apparent that the parties intended to execute a binding contract of purchase and sale and that if, for any reason, the contract was not consummated, the brokers would not claim any part of the deposit or ask for any commission. The latter clause as to the deal falling through manifestly modifies only the clause immediately preceding it, providing for payment of commission.

An examination of the contract shows that the seller unqualifiedly accepted the offer of the purchaser. There was no stipulation of any kind modifying this acceptance. The seller added certain language, which evidently, as just stated, applied not to the offer of the purchaser but to the obligation just assumed, to pay a commission. If it could by any strained construction be applied to the relation created by the offer and acceptance between the purchaser and seller, then it was mere gratuitous sufplusage as far as the principal contract was concerned and wholly unenforceable by the purchaser. Unless the offer is qualified in the acceptance, a binding contract exists. See 12 American Jurisprudence, 546, Contracts, Section 55; 1 Restatement of Contracts, 68, 69, Section 62.

The contract having been broken and the obligations of the purchaser repudiated, the seller has a right to retain the deposit on the purchase price. See 55 American Jurisprudence, 927, Vendor and Purchaser, Section 535.

There was nothing in the evidence submitted by the plaintiff indicating that he was not entitled to collect upon the check of the purchaser. The affirmative defenses of the answer were never reached, a verdict having been instructed at the close of plaintiff’s evidence.

While the evidence in the case indicated that the-record title was -not in the seller at the time the offer was accepted, it is also apparent that the personal and business relationships of the plaintiff and his wife were such as to render the title of the plaintiff sufficient to sustain the obligations assumed by the purchaser, and this conclusion is sustained by the fact that the plaintiff later sold the property to another purchaser. See 55 American Jurisprudence, 718, Vendor and Purchaser, Section 271.

Nothing appears in the plaintiff’s evidence justifying a conclusion that the plaintiff is not within the purview of the general rule, viz., that it is not necessary for the vendor to have title to property at the time the contract of sale is executed.

The trial court was in error in rendering judgment for the defendant upon the evidence submitted by plaintiff, and such judgment is reversed and the case remanded for a new trial.

Judgment reversed.

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


text:
    The State of Ohio, Appellee, v. Tarrant, Appellant.
    (No. 4115
    Decided February 25, 1948.)

      Mr. Ralph J. Bartlett, prosecuting attorney, and Mr. Edmund B. Paxton, for appellee.

      Mr. Ralph Merchant, for appellant.
   Miller, J.

This is an appeal on questions of law .from the Court of Common Pleas of Franklin county. The indictment on which the defendant was tried in substance charges that the defendant unlawfully had carnal copulation against nature with a certain beast, to wit, a dog. A jury trial was waived and the case was tried to the court which made a finding of guilty and a judgment was duly entered. Briefly, the facts developed at the trial were that Virginia Tarrant, the defendant, appellant herein, while in an intoxicated condition, took into her mouth the male organ of a dog and engaged in the act of sodomy over some period of time.

The first four errors assigned are directed to the legal proposition that such act of defendant did not constitute an offense as defined by Section 13043, General Code, which provides, in part:

“Whoever has carnal copulation with a beast, or in any opening of the body, except sexual parts, with another human being, shall be guilty of sodomy.”

Defendant contends that the term, “carnal copulation,” is restricted in its meaning so that it means only the joining of the sex organ of a human being with the sex organ of a beast. If this is a true interpretation of the statute, then the defendant cannot be guilty. We think that the intention and purpose of the Legislature was to enact an act that would make unlawful unnatural acts of sex expression as between one human being and another and as between a human being and a beast. Our present statute is the result of a process of statutory evolution, the process always leading* towards the enactment of a law that would prohibit unnatural sex acts as between human beings, and any form of sex acts as between human beings and a beast. In the early development of our law the crime of sodomy was defined as “whoever shall have carnal copulation against nature, with another human being or with a beast, shall be deemed guilty of sodomy.” The defects of the above-quoted statute are readily detected. The phrase, “against nature,” is so broad as to encompass a very wide field of conduct. In all criminal cases it has always been the law that the various elements constituting the crime should be those that can be defined and ordinarily understood. The phrase, “against nature,” defied such a simple definition and the statute was therefore defective and objectionable.

Later, the statute read:

“Whoever shall have carnal copulation in any opening of the body, except sexual parts, with another human being, or with a beast, shall be deemed guilty of sodomy.”

It ■ is apparent that this definition did not clearly express the legislative intent. From a casual reading of it, one could reach the conclusion that carnal copulation with a beast in the sexual parts could not have been sodomy, and therefore was not prohibited by law. That statute was therefore repealed and Section 13043, General Code, was adopted. We believe that the present statute makes unlawful certain forms of sex expression as between a human being and a beast. W'e can only get the full import of the statute when we give a meaning to the phrase, “carnal copulation,” as used therein and a meaning that is consistent with the entire context of the statute. The defendant wishes to give the term, “carnal copulation,” as used in Section 13043, General Code, two meanings, one meaning where it concerns human beings and another meaning where it concerns a human being and bis or her conduct with a beast. We do not feel that the Legislature ■ever intended such a construction. The term, carnally, is defined in 12 Corpus Juris Secundum, 1151, as “in a manner to gratify animal appetites or lusts.” In the same volume and page, the phrase “carnal knowledge ’ ’ is defined as ‘ sexual bodily connection, ” “ sexual intercourse. ’ ’

Where a term is used in a statute it is a rule of construction that the court will give to it that meaning which is consistent with the entire context of the statute. From the very wording of the statute it is obvious that the Legislature meant for the phrase, “carnal copulation, ’ ’ to embrace something more than just the joining of the sex organs of the opposite sex. The statute says “whoever has carnal copulation with a beast, or in any opening of the body, except sexual parts, with another human being * * If the term means what the defendant contends it does, then there is no reason to place in the statute the exception, that is, where one human being has carnal copulation with another in the sexual parts. The statute, in order to he given meaning, must be held to mean that there are openings of the body other than sexual parts where there might be carnal copulation. The courts have-never hesitated to hold that, where one takes the sex organs of another into his mouth, such act constitutes-sodomy. We believe that the only difference in what constitutes the offense of sodomy in Ohio as between human beings and between a human being and a beast is that, in the case of a beast, any carnal copulation, constitutes sodomy, while there are exceptions to such acts as between human beings. The term as it refers-to human beings is not given a different meaning than the one that is given in referring to a.beast, but it is rather limited in the extent of its application. If the-act would be carnal copulation for human beings to-perform, we fail to see how it could be logically argued?, that it is not carnal copulation when performed by a human being and a beast.

The defendant relies upon the case of State v. Forquer, 74 Ohio App., 293, 58 N. E. (2d), 696. In that case the Court of Appeals for Huron county held that the act of cunnilingus was not made a crime by Section 13043, G-eneral Code. We hold that that case on the facts is distinguishable from the case at bar. Without making any effort to define the phrase, “carnal copulation,” the court there said that it was constrained to hold that the act of cunnilingus was not within the pui'port of the statute. The defendant here is not charged with' such offense.

The next assignment of error- is that the finding of' the court is against the manifest weight of the evidence. We can find no error in this assignment as the-record discloses that several eye-witnesses testified to-the acts complained of. The court had the opportunity to see and observe these witnesses and to observe-their demeanor on the witness stand. It was the sole-province of the trial court in this instance to weigh ■the testimony and we think that the record supports the finding of the court.

Another error alleged is that the court should have sustained the motion for a new trial upon the grounds of newly discovered evidence which could not have been discovered with reasonable diligence and produced at the trial. The allowance of a motion for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial court .and its rulings thereon cannot be assigned as error unless material facts were admitted, or are found by the court to be true, and they in probability would ■change the result, or there has been a manifest abuse ■of discretion. We find that there was no admission or finding of such facts and that there was no abuse ■of discretion. The judgment is affirmed.

Judgment affirmed.

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


author: Hildebrant, J.

text:
    Kerr et al., Appellants, v. Parsons, Appellee.
    (No. 170
    Decided June 25, 1948.)

      Mr. Allen C. Boudebush and Messrs. Ely, White & Davidson, for appellants.

      Messrs. Nichols, Speidel & Nichols, for appellee.
   Hildebrant, J.

This is an action for damages,, wherein plaintiffs charge the defendant falsely represented there was an ample and sufficient supply of water for all ordinary household purposes, inducing) plaintiffs to buy the premises. Following a jury verdict, judgment was entered for the defendant. The apr peal is on questions of law.

Error is assigned to the giving of the following two special charges at the request of defendant:

“I charge you, ladies and gentlemen of the jury, that if you find from the evidence that the defendant, William Parsons, or his agent, S. L. Larkin, honestly believed and had reasonable grounds to believe that the well on said premises contained sufficient water for all ordinary household purposes and did not, in fact, falsely and purposely misrepresent the water supply in said well, then and in that event there can be no recovery for the plaintiffs.”

“I charge you, ladies and gentlemen of the jury, that the present action is brought to recover damages for fraud or deceit practiced in the sale of land'. To entitle the plaintiffs to recover any amount there must be bad faith on the part of the defendant. If any representations made by the defendant, William Parsons, or his agent, S. L. Larkin, when made were believed to be true and the facts of the case were such as to justify the belief, there can be no recovery by the plaintiffs and your verdict must be for the defendant.”

It is stated in 55 American Jurisprudence, 962, Section 569:

“A purchaser of land who is induced to enter into the contract of purchase by the fraud or misrepresentations of the vendor or his agent or representatives has, as a general rule, an election to pursue one of several remedies. He may, despite the fraud, elect to affirm the contract, retain the property received under it, and bring an action at law for fraud and deceit against the vendor to recover the damages sustained by reason of the fraud or misrepresentations * *

19 Ohio Jurisprudence, 422, Section 134, states:

“Statements by the vendor of real property as to its condition, quality and character are generally regarded as mere expressions of opinion and, when such is the case, do not constitute fraud. But some courts hold that false representations as to the quality of land may constitute fraud, if made under such circumstances as will justify reliance thereon. In Ohio, misrepresenting the quality of land is a cheat which will entitle the purchaser to recover for his injury.”

As to the remedy, it is stated in 40 Ohio Jurisprudence, 940, Section 36: •

“Another remedy available to the purchaser is an action to recover damages resulting from the fraud of the vendor.”

Generally as to instructions by the court in a fraud case, it is stated in 19 Ohio Jurisprudence, 532, 533, Section 261:

‘ ‘ In an action based upon fraud, it is the duty of the court to instruct the jury as to what constitutes fraud. As a right of action founded on fraud is elusive in its nature, it is peculiarly necessary for the court to define the issues precisely and concretely. # * What the court should do is to limit the issue to be determined by the jury in accordance with the case made and charge the law of fraudulent representation as applied to that precise point. * * * A charge to the jury ought riot only to be correct, but to be so adapted to the case and so explicit as not to be misunderstood or misconstrued by the jury so that they will be misled.”

At page 535, Section 263, it is stated as to knowledge:

‘ ‘ The court in its instructions must clearly state the law as to the requirements for holding the defendant liable. A charge that the defendant is not liable for a misrepresentation if he honestly believes it true clearly states the law when connected with other instructions that such belief, where there are no good reasons for it, will be no excuse. So a charge that the defendant would not be liable for fraud and deceit if he honestly believed the representation made by him, but that the jury should consider all the surrounding circumstances, and if the defendant had good reason for believing his statement false, he would be chargeable with knowledge, clearly and concisely states the issues of fact and the law applicable to them. ’ ’

In the record, plaintiffs affirmatively exonerate the agent of knowledge of the falsity of representations made by him, so that the defendant is the sole person here charged with knowingly making false representations, but since they were in fact made through an agent, the following from Restatement of the Law of Agency, 460, Section 212, seems pertinent here :

“A person is subject to liability for the consequences of another’s conduct which results from his directions as he would be for his own personal conduct if, with knowledge of the conditions, he intends the conduct, or if he intends its consequences, except where the one directing or the one acting has a privilege or immunity not available to the other.

“a. The rule stated in this section is not dependent upon the law of agency but results from the general rule, stated in the Restatement of Torts, that one causing and intending an act or result is as responsible as if he had personally performed the act or produced the result.”

The comment at page 462 states:

“The master may be liable although the actor is not liable. This is true in .those cases in which liability is based upon knowledge of facts which the master has but which the servant does not have. ’ ’

It thus becomes apparent that if the agent relied upon the statements of the principal in making his representations to the plaintiffs, his honest belief and lack of knowledge in their falsity would not relieve his principal.

It, therefore, appears that the inclusion of the agent in the two special charges was error. In effect the jury is told that if the agent honestly believed the representations made by him, its verdict must be for the defendant. This is incorrect and confusing, and prejudicial to the defendant.

While not prejudicial to the plaintiffs, the general charge seems incomplete in failing to include a proper •charge as to the knowledge of defendant.

Included in the general charge is a charge on warranty, which might be applicable to a sale of personal property under Sections 8394 and 8395, General Code, but seems to have no application to a sale of real estate.

Ordinarily, there is no implied warranty as to the condition of real estate sold or leased, and oral evidence of a warranty would not be admissible to add to a deed or lease. 4 Thompson on Real Property (Perm. Ed.), 2 et seq., Sections 1545, 1546. An express warranty, to be enforceable, would be required to be in writing to satisfy the statute of frauds.

The evidence here is of representations only — not of promises — and the case should have been submitted to the jury solely upon the issue of fraud, that is, as an action in deceit.

It was, therefore, prejudicial error, to so charge.

The judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

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


author: Ross, J.

text:
    Wilder, a Minor, Appellant, v. Martin et al., Appellees.
    (No. 157
    Decided April 30, 1948.)

      Mr. August A. Rendigs and Messrs. Smith & Kirk, for appellant.

      Messrs. Stanley & Stanley and Mr. G. L. Schilling, ■for appellees.
   Ross, J.

A motion to dismiss the appeal on questions of law having been filed, the jurisdiction of this court to entertain such appeal is first considered.

The appeal was addressed to the action of the trial court overruling two motions made by plaintiff after judgment in a proceeding in aid of execution.

The first motion is in the following terms:

‘ ‘ Comes now the plaintiff and moves the court for an order directing the defendant A. B. Martin to deliver his passenger automobile, to wit, his 1942 Chevrolet sedan, to the sheriff of this county, to be by said sheriff sold as on execution and the proceeds thereof applied toward the satisfaction of plaintiff’s judgment.’-’

The second motion is:

“Comes now the plaintiff and moves the court for an order directing the defendant George I. Martin, made party to this proceeding, to pay to the plaintiff to be applied toward the satisfaction of plaintiff’s judgment against the defendant A. B. Martin, the sum of $1,000 received by said defendant George I. Martin from the defendant to this proceeding Sarah E. Martin in October of 1946 and the further sum of $3,000 allegedly borrowed from said defendant Sarah E. Martin by said defendant George I. Martin during the summer of 1946.”

Those motions were, therefore, made in a special proceeding and in an action after judgment.

At the time of the adoption of the 1912 and 1944 amendments to Section 6, Article IY of the Ohio Constitution, it was provided by statute that an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, is a final order. See Section 6707, Revised Statutes; Section 12258, General Code, repealed; Section 12223-2, General Code.

The Supreme Court has repeatedly held that orders considered' final at the time of the adoption of the amendments to Section 6 of Article IV are to be considered the equivalents of “judgments.” See Chandler & Taylor Co. v. Southern Pacific Co., 104 Ohio St., 188, 190, 193, 135 N. E., 620; Cincinnati Polyclinic v. Batch, 92 Ohio St., 415, 111 N. E., 159. The 1944 amendment specifically mentions “final orders.”

The orders made "upon the motions certainly affected substantial rights of the parties, and were made in a special proceeding and after judgment in an action.

In Wilson v. Columbia Casualty Co., 118 Ohio St., 319, 160 N. E., 906, it was held:

“Under Sections 11769 and 11781, G-eneral Code, upon an examination of a judgment debtor after execution issues, if it is shown to the satisfaction of the Court of Common Pleas, or a judge thereof, or a probate judge, of the county in which the debtor is found, that the judgment debtor has property which he unjustly refuses to apply toward the satisfaction of the judgment, such court or judge may order any property of the judgment debtor, or money due him, not exempt by law, in the hands either of himself or other person or of a corporation, to be applied toward the satisfaction of the judgment. The fact that such property belonging to and in the absolute control and disposition of the judgment debtor is in the hands of a person not residing in this state does not defeat the jurisdiction of the court to make such order upon the judgment debtor of whose person the court has jurisdiction.

“When an order in aid of execution has been made, commanding a judgment debtor to apply to the payment of a judgment money belonging to him and under his absolute control and disposition, which he has received and wrongfully and fraudulently sent out of the state with intent to prevent the same being applied on such judgment, and the judgment debtor has not-exercised due diligence to comply with such order in aid of execution, the court may order him confined for contempt of court until he complies with such order.”

Section 11781, General Code, provides:

“The judge may order any property of the judgment debtor or money due to him, not exempt by law in the hands either of himself or other person or of a corporation, to be applied toward the -satisfaction of' the judgment, but the earnings of the debtor for his personal services, within thirty days next preceding-the order shall be applied only in accordance with the provisions of Sections 11721, 11725 and 11728-1 of the-General Code.”

If the debtor or others had property under their control which was subject to execution, the orders should have been made pursuant to the tenor of the motions. The overruling of such motions constituted final orders, equivalent to judgments within the terms of Section 6, Article IV of the Constitution, and appeals on questions of law from those orders were properly filed.

The motion to dismiss the appeal is overruled.

This appeal does not involve the question of the-duty of the alleged garnishee to respond to the order,, or what relief the plaintiff may have upon the refusal to so respond. The question now presented is whether the trial court, in view of the evidence presented to-it, committed error prejudicial to the plaintiff, in refusing to make the orders.

As to the first motion there was ample evidence requiring an order to the defendant to deliver his automobile to the sheriff. As far as the record is concerned, there is nothing to indicate the automobile is-not in his possession. This order should have been granted. The court in its entry refers to an affidavit. of the sheriff. Such affidavit is not made a part of the bill of exceptions, although such an affidavit appears among the original papers.

The action of the trial court upon such first motion is reversed and the cause remanded to the Common Pleas Court of Clinton county for further proceedings in accordance with law.

As to the second motion, the evidence is in conflict whether George Martin has or has not property of the defendant which may be reached by order of garnishment. In such state of the record, the trial court could not make an order on such garnishee to deliver. The plaintiff, is relegated to an independent action, by which sequestered property of the judgment debtor may be reached.

The trial court properly overruled such motion.

Entries may be presented accordingly.

Judgment accordingly.

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


author: Stevens, J.

text:
    Newman, Appellee, v. The East Ohio Gas Co., Appellant; et al., Appellee.
    (No. 3875
    Decided October 24, 1947.)

      Messrs. Brouse, McDowell, May, Bierce é> Wortman, for appellee Robert S. Newman.

      Messrs. Buckingham, Doolittle <& Burroughs and Messrs. Jones, Day, Cockley & Reavis, for appellant.

      Mr. Roy R. Browne, director of law, for appellee city of Akron.
   Stevens, J.

Robert S. Newman is an inhabitant of the city of Akron, Ohio.

On December 3, 1946, the council of the city of Akron passed an ordinance granting to The East Ohio Gas Company the right to occupy “the streets, alleys, public grounds and public places of the city for the transportation and supply of natural gas to the city and its inhabitants and the transportation thereof in and through the said city” up to and including November 15.1950.

Section 3 of the ordinance stated that in the event of a shortage of gas, “preference shall be given to. that class of users known as (1) residential, (2) commercial, (3) industrial.”

Section 4 of said ordinance provides that “said' company shall extend its pipes and mains for the furnishing of natural gas to and upon any dedicated street within the limits of the city, and shall supply natural gas thereon, whenever at least one customer on an. average of each additional one hundred (100) feet of pipe in the street or streets in which the extension is-to be run shall first agree in writing to take a supply of gas at the then established rate.”

On December 16, 1946, this ordinance was accepted' in writing by The East Ohio Gas Company, whereupon the ordinance in all of its provisions became a valid contract between the city of Akron and The East Ohio-Gas Company, subject to the provisions of Article-XVIII of the Ohio Constitution; and on January 2,. 1947, that contract became legally operative.

• On February 6, 1947, The East Ohio Gas Company filed emergency rule 26, which had been adopted by it,, with the Public Utilities Commission of Ohio; which rule became effective upon the filing and approval thereof by the commission.

On April 11, 1947, rule 26 was amended to its present form by The East Ohio Gas Company, and said rule, as amended, was approved by the Public Utilities Commission.

Rule 26, as amended, provides:

“A. From April 1, 1947, until this emergency rule is amended or cancelled, the company will not supply gas to gas heating equipment intended to replace equipment using other fuel.

“B. In special medical hardship cases, supported by the filing of all necessary evidence satisfactory to the company, paragraph ‘A’ may be modified.”

On March 27, 1947, and with full knowledge of the existence of rule 26, the plaintiff, Robert S. Newman, installed a conversion burner in order to, burn gas in his furnace, where he formerly had used coal.

On April 2, 1947, Newman was notified by The East Ohio Gas Company that, unless he removed the conversion burner, or qualified as a medical hardship case within rule 26, the company would discontinue all service to him.

Newman’s suit seeking a permanent injunction followed.

Trial in the Court of Common Pleas resulted in the issuance of a permanent injunction by that court. Whereupon this appeal on questions of law was perfected.

The question presented for determination in this action is this:

Where a municipality has passed an ordinance governing the various rights, duties and responsibilities of the municipality and of a public utility (gas company) for the furnishing to the municipality and its inhabitants of the product of the utility, and the utility has accepted in writing the proposal thus made, and there has not been and cannot be, by reason of lapse of time, a referendum thereon, may the Public Utilities Commission, by'a regulation thereafter adopted by the utility, and approved by the commission, alter the contractual obligations of the parties to such contract?

As we view this situation, the answer to the foregoing question is contained in the decision of the Supreme Court of Ohio in City of Akron v. Public Utilities Comm., 126 Ohio St., 333, 185 N. E., 415.

True, that was a rate case, but the general statement concerning the inviolability of a contract in all of its provisions makes it clear that the court was of the opinion that, where the municipality and the utility had entered into a valid contract in writing, through the enactment of a franchise ordinance and its acceptance in writing by the utility, the commission was without power to alter that contract.

Here, that rule is fortified by the fact that rule 26 was enacted after the contract became effective; and to give said rule effect herein would result in its retroactive op'eration.

The City of Akron v. Public Utilities Comm. case, supra, has been followed and approved by the Supreme Court of Ohio as recently as East Ohio Gas Co. v. Public Utilities Comm., 137 Ohio St., 225, at page 239, 28 N. E. (2d), 599.

Upon the basis of the foregoing authority, we are of the opinion that, in case of conflict between rule 26 and the franchise ordinance, the ordinance controls, and the ■ commission is powerless to change the contract without the consent of the parties thereto.

On the subject of conflict between rule 26 and the franchise ordinance, the ordinance provides for the furnishing of gas to the inhabitants of the city of Akron, without discrimination, except, as provided in the ordinance, in case of shortage.

Rule 26 removes the right of certain inhabitants of Akron (those who have theretofore used fuel other than gas for heating) to use gas as a fuel for heating.

Such rule patently conflicts with the provisions of the franchise contract, which permits inhabitants of Akron who desire to do so, to use gas for heating without limitation, except in case of shortage, and in that event provides the order of their preferment.

We hold that rule 26, original, and as amended, even though approved by the Public Utilities Commission, -cannot alter vested rights under the franchise contract, and that plaintiff was clearly entitled to an injunction.

The judgment is affirmed.

Judgment affirmed.

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


text:
    Riesenbeck, Appellee, v. Bauer, Appellant.
    (No. 6873
    Decided December 1, 1947.)

      Messrs. Cottle, Campbell & D ruff el and Mr. Wm. R. Pettit, for appellee.

      Mr. Fred L. Hoffman, for appellant.
   By the Court.

This is an appeal from a judgment rendered by the Municipal Court of Cincinnati. The plaintiff’s and defendant’s automobiles collided in a street intersection in the city of Newport in the state of Kentucky. Both automobiles were damaged. The plaintiff’s action was to recover for the damage done to his automobile. The defendant filed-a cross-claim for the damage done to his automobile.

The plaintiff alleged that there were traffic lights at the intersection; that he entered the intersection on the green light, which gave him the right of way; that the defendant entered the intersection at a negligent rate of speed without keeping a lookout and without having his automobile under control; and that as a direct result it collided with the plaintiff’s automobile.

The defendant in his counter-claim alleged that he-entered the intersection on the green light, which gave him the right of way, and that while he was in the intersection, on his right side of the street, the-plaintiff, suddenly and without any warning, entered the intersection against the red traffic light and negligently attempted to make a left turn directly in front of defendant’s automobile, without proceeding-beyond the center of the intersection.

The defendant also charged the plaintiff with failing to keep a lookout and to have his automobile under control. He alleged that these acts of negligence, and' not his negligence, directly caused the collision.

The case was tried to the court without the intervention of a jury. The defendant requested the court to state in writing its 'finding of facts separately from-its conclusions of law “and in connection therewith to include specific findings upon the following questions of fact,” and then set forth 15 specifications. In compliance with this request, the court made a finding-which seems to embrace all the specifications and then stated, under the heading, “conclusions of law”:

“The court finds that the defendant was guilty of negligence in the operation of his automobile and that such negligence was the proximate cause of the accident, and that the plaintiff was not guilty of any negligence. Therefore judgment should be rendered for the plaintiff in the amount of one hundred seventy-five ($175) dollars.”

Judgment for the plaintiff was rendered on the findings and conclusions. The appeal is from that judgment.

No bill of exceptions was filed. The sole claim is that the judgment is not ’supported by the findings.. In compliance with the request for specific findings, the court found, among other things:

‘ ‘ Plaintiff had entered said intersection, on the green traffic light, by driving westwardly along Eleventh street and was making a left-hand turn so as to proceed south on Monmouth street, at the time of the collision.

“Defendant had entered said intersection by driving northwardly along Monmouth street and was proceeding in the same direction at the time of the collision.

“Plaintiff’s car was damaged to the extent of $120 and defendant’s car to the extent of $66.25.

“Plaintiff first saw defendant’s automobile when it was in the intersection and ten feet away from plaintiff.

“The collision took place in the southeast quarter of the intersection.

“In driving through the intersection plaintiff drove to the south of the center line of Eleventh street before he reached the center line of Monmouth street.

“In turning to left plaintiff was proceeding to the left of the center point of the intersection.

“Defendant was operating his automobile on his right-hand side of the street immediately prior to and at the time of the collision.”

It is urged that those specific findings indicate that plaintiff was negligent in making a left turn without proceeding beyond the center of the intersecting street, and while it is shown that the light favored plaintiff when he entered the intersection, it is not shown that defendant entered on the red light, and it is consistent with the findings to conclude that there was a change of lights between the time plaintiff entered the intersection and the time when defendant entered.

There is no doubt that it can be reasonably argued from these specific findings that plaintiff was negligent in the way he made the left-hand turn. It cannot be argued that such turn in any way contributed to the collision, because there- is no finding on that subject.

There is, also, no doubt that the findings are much more specific as to the plaintiff’s conduct than the ■defendant’s conduct. That, however, results from the fact that the defendant’s specifications in his request for findings were confined to the plaintiff’s conduct without any specification designed to develop the specific findings of the court on defendant’s conduct. The result was that the.only finding on the defendant’s ■conduct is found under the heading, “conclusions of law,” hereinbefore quoted. That conclusion was one -of fact and it is immaterial that it is found under an improper heading. No prejudice could result therefrom. Furthermore, no objection was made thereto on that ground in the trial court or in this court.

In Peter v. Union Mfg. Co., 56 Ohio St., 181, 207, 46 N. E., 894, the court set forth the rule for interpreting ■special finding of facts in the following language:

“In reviewing a judgment based upon a finding of fact, a reviewing court should steadily lean towards that construction of the finding which would support the judgment * *

See, also, Jack v. Hudnall, 25 Ohio St., 255, 18 Am. Rep., 298. Applying that rule of construction, we conclude that there is no conflict between the finding that the defendant was negligent and that his negligence caused the collision, and the specific findings made at the defendant’s request. The plaintiff charged the defendant with several acts of negligence other than entering the intersection on the red traffic-light, that is, charged him with excessive speed, failure to keep a proper lookout, and failure to have the automobile under proper control. In the absence of any request for a more specific finding, the general finding was sufficient.

We conclude that the findings of the court support the conclusion of law that the defendant is liable for the damages proven. However, the. findings show damage only to the extent of $120, whereas the judgment rendered is for $175. It should be modified as to the amount.

For these reasons, the judgment is reduced to $120, and, as modified, is affirmed.

Judgment modified and affirmed.

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