author: Guernsey, P. J.

text:
    Good, Appellee, v. Robinson, Appellant.
    (No. 176
    Decided February 25, 1949.)

      Mr. 8. 8. Beard, for appellee.

      Messrs. Myers <& Myers and Mr. Robert D. TouVelley for appellant.
   Guernsey, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Van Wert county, in an action wherein the appellee,. Paul L. Good, was plaintiff, and the appellant, Della Robinson, was defendant.

The action is one for specific performance of an agreement entered into between the parties for the sale •of certain real estate by defendant to plaintiff, and for damages for delay in performance.

• On the trial in the Common Pleas Court judgment was rendered in favor of plaintiff decreeing specific performance of the agreement upon which the action is based, and awarding $500 as damages to plaintiff for defendant’s delay in performance. That is the judgment from which this appeal is taken.

In his petition the plaintiff, for his first cause of action against the defendant, makes the following .averments:

On or about the 29th day of May 1946, Wellington N. Robinson, husband of the defendant, died testate seized in fee simple of the real estate in the petition •described, which is the real estate described in the contract upon which this action is based.

Thereafter, defendant filed an application in the Probate Court of Van Wert county, asking that the will and codicil of Wellington N. Robinson be admitted to probate, and the will and codicil were admitted to probate on the 13th day of June 1946.

Thereafter, William Postnaught was duly appointed as executor of the last will and testament of Wellington N. Robinson, deceased, and is still acting as such executor.

The executor caused an inventory and appraisement of the estate to be made and duly filed the same with the Probate Court of Van Wert county, which inventory and appraisement was duly approved by the court.

Wellington N. Robinson was the owner of the tracts of real estate which are particularly described in the petition, situated in the township of Liberty, county of Van Wert and state of Ohio, and together contain 240 acres.

The aforesaid real estate was appraised by the appraisers of the estate at the sum of $48,000, and thereafter the executor filed an application for reappraisement of the premises and the premises were again appraised at the sum of $48,000, which appraisal was approved by the Probate Court.

On or about the 16th day of August 1946, the defendant made, executed and delivered to plaintiff a •contract in writing, a copy of which is attached to the petition, marked exhibit A, and made a part thereof the same as if fully written therein.

By the terms of the contract, the defendant agreed ~to sell the real estate described in the petition and plaintiff agreed to buy the real estate, subject to the terms contained in the contract.

The contract was contingent upon the defendant obtaining her approval of an election lo take the aforesaid property at its appraised value by the Probate Court of Van Wert county.

Pursuant to the terms of the agreement, the defendant, on the 3rd day of January 1947, filed her election in the Probate Court of Van Wert county, praying for authority to purchase the real estate described in the petition at its appraised value; and thereafter on the 5th day of February 1947, the Probate Court of Van Wert county, granted the prayer of the petition and ordered William Fostnaught, executor of the last will and testament of Wellington N. Robinson, deceased, to sell and convey the real estate hereinbefore described to the defendant therein, and the executor thereafter complied with the order of the court and executed, acknowledged and delivered to the defendant, a deed for the aforesaid premises.

By reason thereof defendant is now in position to comply with the terms of her contract with the plaintiff.

The defendant notwithstanding the aforesaid contract has notified the plaintiff that she will not comply with the terms of the contract and on the 10th day of February 1947, she tendered a return of the check-given as a down payment on the real estate as stipulated in the contract which the plaintiff refused to accept; on the 11th day of February 1947, the defendant again notified plaintiff, through her attorney B. A. Myers of Celina, Ohio, that she would not make and execute a deed conveying the real estate as provided for in the contract.

By reason of the absolute and unconditional refusal of the defendant to proceed with the contract plaintiff has not made a tender of the balance of the purchase price due on the real estate described in the contract.

Plaintiff is now and has at all times since the signing of the contract been ready, willing and able to perform the conditions of the contract as therein provided for, and now brings into court and tenders to the defendant the balance of the aforesaid purchase price required of him to be paid by the terms of the contract and hereby tenders performance of each and all of the covenants and conditions of the contract required of him to be performed.

As an inducement for the defendant to sign the contract he offered to pay an additional sum of $500 which sum he likewise brings into court and tenders the same to the defendant.

On the 24th day of February 1947, the defendant executed, acknowledged and delivered to The Peoples Savings Bank of Van Wert, Ohio, a mortgage deed for the purpose of securing an indebtedness of $21,000, payable on or before one year after date, which mortgage is filed in volume 112, page 586 of the mortgage records of Van Wert county.

The price agreed to be paid for the premises, at the time the contract was executed and now, is the fair cash market value of the premises.

Plaintiff pleaded a second cause of action for damages in his petition, but later filed a supplemental petition covering the subject matter of the second cause of action and before any evidence was submitted in the cause in the Common Pleas Court, elected to stand on the cause of action for damages pleaded in the supplemental petition rather than the second cause of action pleaded in the petition, and waived his right to proceed on the second cause of action pleaded in the petition. Consequently we will not set forth the allegations contained in the second cause of action.

In his petition, the plaintiff prays that the defendant may be ordered to perform the terms of the contract and execute and deliver to the plaintiff her deed of general warranty for the premises described in the petition; that she may be required to give immediate possession of the premises to plaintiff; that the court may order a sufficient amount out of the proceeds of the sale paid into this court by the plaintiff paid to The Peoples Savings Bank of Van Wert, Ohio, in order to obtain the release and cancellation of its mortgage on the premises; that plaintiff may recover damages against defendant in the sum of $10,000 for her failure to deliver the possession of the premises on the 1st day of March 1947, and for such other and further relief as equity and the nature of the case may require.

The agreement referred to in the petition, and attached thereto as exhibit A, is in the words and figures following, to wit:

‘ ‘ Agreement.
“This agreement entered into at Van Wert, Ohio, this 16th day of August, 1946, by and between Della Robinson, hereinafter referred to as the seller, and Paul L. Good, hereinafter referred to as the buyer, witnesseth:
‘ ‘ Said seller in consideration of the sum of one hundred ($100) dollars in hand paid, the receipt of which is hereby acknowledged, and of the promises and agreements of said buyer hereinafter contained, does for herself, her heirs, executors, administrators and assigns, hereby agree to sell to said buyer, his heirs and assigns, the following described real estate situate in the township of Liberty, county of Van Wert, and state of Ohio, to wit:
“The west half of the southeast quarter of section nine, town three south, range two east, subject to Ohio Power easement recorded in vol. 127, page 439, also subject to Western Farm Bureau Electric easement recorded in vol. 139, page 219.
“Also the southwest quarter of section nine, town three south, range two east, subject to Ohio Power Company easement recorded in vol. 127, page 439 and Oil Lease (L. 21, P. 584) in favor of J. O. Yahn and C M. Purmort, containing in all 240 acres.
“Exclusive of ail growing crops now on said premises which are under the control of William Fostnaught, executor of the estate of Wellington N. Robinson, deceased.
“Said buyer agrees to purchase said property for the sum of fifty-one thousand six hundred ($51,600) dollars, payable as follows: The sum of one hundred ($100) this day paid shall be applied on the purchase price and the sum of fifty-one thousand five hundred ($51,500) shall be paid within thirty (30) days after said seller notifies said buyer that the Probate Court of Van Wert county has approved her election to take the above described premises and after the executor has given to said seller a good and sufficient deed for same.
“Said seller agrees to give possession of the said property on or before March 1, 1947, said property being subject to a crop lease now in existence until said time and upon payment of the amounts referred to above and shall deliver to said buyer, his heirs or assigns a good and sufficient warranty deed for said premises.
“It is mutually agreed that the buyer shall be liable for all taxes arid assessments starting with the year of 1947 and all subsequent years.
“It is mutually agreed that this contract is continued upon the Probate Court of Van Wert county, Ohio approving the election of seller to take the property herein described at its appraised value in the estate of Wellington N. Robinson, deceased.
“It is further agreed that, should said court not approve said election that seller not be permitted to take said premises, that this contract shall be null and void and seller shall return to buyer the $100 paid hereunder.
“Witness our hands at Van Wert, Ohio, this 16th day of August, 1946.
“Della Robinson
‘' Seller
“Paul L. Good
“Buyer.”

Tn her answer to the petition the defendant for her answer to plaintiff’s first cause of action makes the following admissions and averments:

She admits the following allegations set out in the first cauSe of action of plaintiff’s petition:

The facts stated in paragraphs 1, 2 and 3 on the first page of plaintiff’s petition.

Defendant further admits that Wellington N. Robinson, deceased, was the owner of the real estate described in the petition, consisting of 240 acres of land as set out in the first paragraph of plaintiff’s petition on page 2 thereof. Defendant further admits that such tract of real estate was appraised by the appraisers of the estate in the original inventory and appraisement at the sum of $48,000.

Defendant further admits that thereafter the executor, William Fostnaught, filed an application for a reappraisement of the tract of real.estate and that the premises 'were reappraised at the sum of $48,000, which appraisal was approved by the Probate Court.

The defendant by way of answer further says that on or about August 16, 1946, a contract was prepared and signed by her and the plaintiff, but specifically denies that the contract was delivered by her to plaintiff, and further denies that the contract was fully consummated at such time. Defendant also specifically denies that the $100 cash payment referred to in the contract was delivered to or accepted by her.

Defendant further, by way of answer, says:

After William Fostnaught was appointed and qualified as executor of the last will and testament of Wellington N. Robinson, deceased, he did within the time prescribed by law' have an appraisement made pursuant to an order of the Probate Court which was duly filed with the court. Within the time prescribed by law defendant filed a petition to purchase the land referred to herein and an additional tract of land containing 40 acres and appraised at $6,000, claiming the right to purchase the land as surviving spouse of the decedent as provided by the law of Ohio. Her petition to purchase was filed prior to August 16, 1946, the date of the alleged written contract referred to in plaintiff’s petition herein. The Probate Court at the time of the signing of the alleged contract referred to by plaintiff herein, had not acted upon defendant’s petition to purchase or approved her petition to purchase. The alleged contract referred to in plaintiff’s petition herein had a clause therein written providing as follows:

“It is mutually agreed that this contract is continued (contingent) upon the Probate Court of Van Wert county, Ohio approving the election of seller to take the property herein described at its appraised value in the estate of Wellington N. Robinson, deceased.”

After she had signed the alleged contract referred to in plaintiff’s petition, to wit, on or about the 31st day of October 1946, William Postnaught, executor of the estate of Wellington R. Robinson, deceased, filed an answer in the Probate Court to this defendant’s petition to purchase the real estate of the deceased, objecting to defendant’s petition and prayed:

“That the petition of the defendant be denied for the reason that the lands in the petition described con stitute more than file mansion house and the lands adjacent thereto and used in conjunction therewith: that said lands constitute more than one-third of the gross value of said estate; that the appraisement is so manifestly inadequate that sale at such price would unconscionably prejudice the rights of defendants, and asks that said premises be reappraised, and for ail proper relief.”

Thereafter the Probate Court of Van Wert county denied the defendant’s petition to purchase upon the ground that the real estate described in the petition to purchase, consisting of two tracts, was in excess of that prescribed by law, which the surviving spouse would be authorized to take or purchase under the law. Further the court held that the appraisement was inadequate and ordered a new • appraisement of the real estate. Pursuant to that order, a new appraisement was made and notice was given this answering defendant of the new appraisement.

On August 16, 1946, the day the alleged contract referred to in plaintiff’s petition was signed by her, there was an additional verbal understanding between the plaintiff and defendant, to which no reference was made in the written contract and which was offered by the plaintiff as an inducement to the defendant to sign the contract, that plaintiff would pay to the defendant a sum in addition to the consideration set out in the alleged written contract, of $500, which sum was to have been paid in cash on such date. Plaintiff did not pay the sum or offer to pay the sum until several weeks thereafter and not until the defendant had advised the plaintiff that she would not accept the contract and would not deliver him the deed for the lands.

On Monday, August 20th, after the defendant bad conferred with ber attorney, Kerns Wright, she went to the plaintiff’s home and advised the wife of plaintiff that she would not accept the contract which had been signed, but to her knowledge had not been delivered. Plaintiff’s wife advised the defendant that she would promptly advise the plaintiff of this fact, the plaintiff being away from the city of Van Wert in connection with his business.

A short time thereafter, the exact date being unknown to the defendant, she directly advised the plaintiff that she was not going to accept the contract or the $500, which plaintiff had proposed to pay her.

Defendant admits that on the 3rd day of January 1947, she again filed a petition to purchase the 240-aore tract of land referred to. On the 5th day of February, the Probate Court of Van Wert county, approved her petition to purchase.

Defendant further admits that on the 10th day of February 1947, she instructed Mr. Kerns Wright, who held in his office, the alleged contract and check for $100 from and after August 16, 1946, to return the cheek to plaintiff and in this connection she alleges and says as a fact that she had never received or accepted the contract or check or removed the same from the office of Kerns Wright.

Defendant further alleges and says that the plaintiff picked up a copy of the alleged contract from the desk in the office of Kerns Wright, attorney, after the same had been signed by her, without any authority from her and took the same with him at the time he left the office, upon the representation that he was going to get the $500 additional cash which he had offered the defendant, or was offering the defendant as an inducement to sign the alleged contract.

Defendant further says that because of the facts, allegations and statements hereinabove set out in her answer, the alleged contract upon which the plaintiff bases his claim herein, was not delivered, was not fully consummated, was secured by him fraudulently and without any legal agreement upon her part.

The prayer of the answer is that plaintiff’s petition be dismissed, and that plaintiff’s first cause of action as set out in plaintiff’s petition be dismissed, and for her costs.

Tn his reply to the answer of the defendant, the plaintiff makes the following admissions and averments :

He admits that.William Fostnaught was duly appointed and qualified as executor of the last will and testament of Wellington N. Robinson, deceased, and that he had an inventory and appraisement made pursuant to an order of the Probate Court which was duly filed with the court, and avers that the same was approved by the court, and that the defendant filed a. petition to purchase the land referred to in the petition herein, together with an additional tract of land containing 40 acres of land which was appraised at $6,000.

Plaintiff avers, however, that the defendant well knew that the additional 40 acres of land was not adjacent to the mansion house located on the premises described in the petition, and well knew that she had no right to elect to take the additional tract of land at the appraised value.

Plaintiff further admits that defendant’s petition was filed prior to August 16, 1946, and that the Probate Court at the time of the signing of the contract referred to in plaintiff’s petition had not acted upon the petition to purchase at the appraised value.

He further admits that the contract contained the provision quoted in defendant’s answer.

Plaintiff further admits that on or about the 31st day pf October 1946, William Fostnaught, as executor of the estate of Wellington N. Robinson, deceased, filed an answer objecting to defendant’s petition as alleged in the answer.

Plaintiff further admits that thereafter the Probate Court denied defendant’s petition to purchase for the reasons set forth in defendant’s answer and that a new order of appraisement was made.

Plaintiff further admits that on the 16th day of August 1946, at the time of the execution and delivery of the contract referred to in the plaintiff’s petition, there was an additional verbal understanding between the defendant and this plaintiff by the terms of which this plaintiff agreed to pay defendant $500 in addition to the amount stipulated in the contract. Plaintiff denies, however, that such sum was to be paid in cash on such date.

Plaintiff for further reply to the answer of the defendant says that he denies each and every, all and singular, the allegations therein contained, except such allegations as have hereinbefore been specifically admitted to be true.

Plaintiff for further reply to the answer of defendant specifically denies that he picked up a copy of the contract in the office of Kerns Wright, an attorney at law, without any authority from her and took the same with him at the time he left the office upon the representation that he was going to get the $500 additional cash which he had offered the defendant.

His prayer for relief is the same as in the petition.

Plaintiff thereafter filed his supplemental petition. In his supplemental petition he adopts all the allegations and averments contained in the original petition and makes them a part thereof the same as if fully written out therein.

In his supplemental petition he avers that he has been deprived of the income from and the use of the promises described in the original petition, since the 1st day of March 1947; that by reason thereof he has suffered additional damages in the amount of $6,000; and that defendant has harvested the crops grown on the premises, to all of which the plaintiff was entitled under the terms of his contract, heretofore set out in his original petition herein.

The prayer is for additional damages in the snm of $6,000 in addition to the relief prayed for in his original petition herein.

Defendant then filed her answer to the reply, and answer to the supplemental petition.

In her answer to the reply she makes the following averments:

The petition to purchase the 240-acre tract and the additional 40-acre tract was prepared by attorneys and that she relied absolutely upon their ability and experience in connection with the filing of the petition. She was in good faith and had no knowledge of the law.

The petition to purchase was a matter of record and the plaintiff had full access thereto. The matter was discussed in their negotiations and in connection with the proposition made by the plaintiff to her to purchase the 240-acre tract and by reason thereof the plaintiff was charged or should be charged with full knowledge thereof. Because of the facts stated in plaintiff’s answer and facts herein set out, the proposed contract relied upoil by the plaintiff and the signing thereof by the defendant was unjust, inequitable and fraudulent and should not be binding upon the defendant.

In defendant’s answer to the supplemental petition the defendant reiterates and alleges as fully as if written herein the facts set out in her answer and the facts set out in her answer to the plaintiff’s reply and by reason thereof denies that the plaintiff has been damaged as claimed in any sum whatsoever and further says that, there was in fact no contract as the basis therefor.

She prays that plaintiff’s petition be dismissed, and for her costs.

The pertinent facts in evidence, as shown by the record, are as follows:

Testimony of the defendant Della Robinson, called by the plaintiff as a witness for cross-examination by him:

That at the time the alleged agreement was signed, the parties knew that defendant did not have title to the real estate in question and that she could not convey the same to plaintiff, or to anyone, unless the election which was then pending in the Probate Court was allowed; that the parties were dealing solely on the basis of the allowance of the election that was then pending and discussed the fact that the election covered not only the 240 acres in question, but also an additional tract of 40 acres not described in the petition and not included in the alleged agreement. That it was for this reason that the alleged contract was made contingent upon the allowance of the pending petition, and defendant securing title to the 40 acres as well as the premises involved in this suit.

That plaintiff proposed to pay $500 in cash to defendant in addition to the consideration stated in the written agreement, to charge the amount of his personal expenses and that defendant could conceal the receipt thereof and that thereby both parties could evade income tax liability for such amount.

That the defendant stated that she would not accept the proposal until it had been submitted to her attorney, particularly the secret payment of $500, and that although the written papers were signed, they were to be held and not to become effective until she notified plaintiff of the advice of the attorney who was to advise her in the matter. That she promptly notified plaintiff that Mr. Wright had advised her not. to go through with the deal and that she was rejecting the proposal.

In connection with her testimony it was stipulated by counsel that B. A. Myers represented defendant on and from February 11, 1947, and that he was her attorney at the time he wrote a letter on or about February 11, 1947, addressed to Mr. Steve Beard, attorney at law, Van Wert, Ohio, who is the attorney for plaintiff, the original of which is attached to the bill of exceptions and marked exhibit B.

The testimony of J. P. Bailey, a witness called on behalf of plaintiff, says in substance, that he is cashier of The Peoples Savings Bank, Van Wert, Ohio, and that the bank had a mortgage on the Della Robinson farm of 240 acres located in Liberty township, Van Wert county, Ohio. The principal sum of the mortgage is $21,000: interest as of date, $235.67. The mortgage, by its terms, may be paid at any time, and upon payment the mortgage would be released. The checks of plaintiff, marked exhibits E and F in the bill of exceptions, in the sum of $21,500 and $30,000, respectively, are each sufficient to satisfy the mortgage indebtedness and acceptable by the bank in payment of same.

Testimony of Eugene McNeill, now the judge of the Common Pleas Court of Van Wert county and prior to assuming his duties as common pleas judge, engaged in the practice of law, was called as a witness on behalf of plaintiff:

“I was associated with Mr. Wright to the extent that we had our offices together. I was acquainted with the defendant Delia Robinson. I dictated the agreement, a copy of which is attached to the bill of exceptions, marked exhibit A, in the office shared by Kerns Wright and myself in the IOOF Building at Van Wert. That I, my office girl Velma Schaadt, Paul Good and Della Robinson were present at the time the instrument was prepared. The instrument was signed by Mr. Good and Della Robinson in my presence. It is my impression that only two copies of the instrument were signed. At the time, there was a check written by Mr. Good for $100 which I saw. After the instruments were signed, one copy which was not signed was given to the office girl for the files. I believe Mr. Good took one copy and put it in his pocket. It is hard to say accurately at the time. After they were signed, maybe I better put it that way, after the contracts were signed, I left briefly on some other business. Mr. Good and Mrs. Robinson were talking. When I came back, Mr. Good’s copy was gone, not in sight; Mrs. Robinson’s copy was still lying on the corner of Mr. Wright’s desk and the check there, both there at the time I came back.
“Mrs. Robinson asked if I would place the contract and check in the safe. I picked them up and gave them to the office girl, Velma Schaadt, with instructions to put them in Mr. Wright’s safe.
“I was not in the office with Mrs. Robinson and Mr. Good during all the time they were together up to the time the papers were signed.
‘ ‘ They came into the office at approximately 1:30 and from 1:30 to about 3 o’clock preliminary matters in negotiation were going on between the parties and at that time I had an appointment at Mr. Beard’s office on a settlement of a divorce case that we had, and I left, and 1 imagine it was approximately 3:30 when I came back. I left about 3 o’clock and returned about 3:30. When I left they were there and when I returned they were there. Then they were in my office and Mr. Good went into Mr. Wright’s office and Mrs. Robinson and I went back to the library. We talked there a little bit and went up into Mr. Wright’s office. During the conversation then before the deed was drawn up I left for about 5 or 6 minutes while assuming negotiations were in progress. Then after the deed was drawn up and signed, I left again for about another 5 or 6 minutes and returned just at the time Mr. Good was leaving.”

In reply to a question “Now did you hear any conversation concerning $500,” he stated: “To put it, there was some conversation. At the time after they had generally agreed upon the terms in here, there were certain other matters they were discussing. In the discussion of that they said that whatever they decided on that, they didn’t want in the contract. I said anything they didn’t want in the contract on that day, I didn’t want to hear. That is when I left the first time. When I returned, they said they had made certain agreements. What all agreements were, I do not know. They did state to me that they had agreed on certain matters which were not expressed in the agreement, and what they are I do not know.

“When I returned Mr. Good was still there and prepared to leave, but one copy I could no longer see in existence.

“I went to the back office and came back and Mrs. Robinson was still there and she asked me if Mr. Good was returning. I said I didn’t know; he didn’t say anything to me. A little later she said that she would go on home and asked if I could put the check and her copy of the contract, have it put in Mr. Wright’s safe. The check and contract were still lying on Mr. Wright’s desk.

“I didn’t hear her say anything about the contract not being final until she talked to Mr. Wright. '

“She said several times that she would like to discuss the agreement with Mr. Wright. She said that she would like to have, to await Mr. Wright’s approval. I didn’t see her have the contract in her hands after it was signed.

‘ ‘ I gave the contract and the check to Miss Schaadt at our office. Mrs. Robinson never came to me to' get-them. I never saw her get them.

“Nothing was said by Mrs. Robinson in my presence with reference to the signed instrument not being' effective until after she had conferred with Mr. Wright.”

Willis King, William R. Poling and Raymond E„ Feigert, witnesses called on behalf of plaintiff, all testified on the question of damages by reason of delay in transfer of the real estate.

Except for the contention of defendant that no damages may be awarded because the contract sued upon is unenforcible, no question is raised as to the amount of the damages awarded, so it is unnecessary in our consideration of this case to discuss the evidence of these witnesses.

Testimony of Alice Good, wife of plaintiff, called) as a witness on his behalf:

“Della Robinson called at the residence of Alice-Good and her husband after the contract was signed) and said ‘Well, you just tell him (Mr. Good) I have changed by mind about that, and he’ll know.’ ”

Testimony of Paul L. Good, plaintiff, in his own behalf:

“I identify checks marked plaintiff’s exhibits E and F calling for a total of $51,500 and tender them to defendant. I also identify and tender to defendant $500 in one-dollar bills.
“The copy of the written contract entered into between him and defendant has been in his possession since August 16, 1946. I came into physical possession of same after both copies were signed, one of therm being given to me and the other to Mrs. Robinson by Mr. McNeill. T wrote the check for $100 and gave it to Mrs. Robinson and it was attached to the contract-
“If the court should enter a decree awarding the premises to me 1 am willing to endorse the checks so they may be cashed by the defendant.”
The $100 check was read in evidence.
In connection with his testimony, the following papers were offered and admitted in evidence: Plaintiff’s exhibit A, which is the contract; plaintiff’s exhibit B, a letter dated February 11,1947, written by B. A. Myers to Mr. Beard; plaintiff’s exhibit C, which is a letter written by Kerns Wright to Mr. Beard; plaintiff’s exhibit D which is a copy of a letter addressed by Mr. Beard to Mr. Wright.
Plaintiff’s exhibit B, referred to in the evidence, ls in the words and figures following, to wit:
“February 11, 1947.
“Mr. Steve Beard,
“Attorney at law,
“Van Wert, Ohio. Re: Paul Good v. Delia
Robinson.
“My dear Mr. Beard:
“As attorney for Della Robinson, please advise Mr. Paul Good your client, that Della Robinson still insists that she had no contract or agreement with Mr. Good to sell him the 240-acre tract of ground, known as the Wellington N. Robinson home and that she will not make and execute a deed, conveying said tract to Mr. Good. She insists that before this alleged contract was to become binding, that she was to have a conference with Mr. Kerns Wright, who was acting as her attorney at that time and who was at Hamilton lake. She did confer with Mr. Wright and promptly thereafter refused to proceed further with the contract and in fact, never accepted the $100 check which was left in Mr. Wright’s office.
“There were other conditions involved. The Probate Court did not approve and confirm her petition to purchase, a reappraisement was ordered and considerable delay has intervened. She has been advised that land has depreciated in value since the alleged contract was made, but nevertheless, she stands upon her original claim that she did not agree to the contract to sell and does not expect to sell the farm at this time if .a deed is made to her.
“Under the law, if you have a valid contract, in my opinion, you could not ask for specific performance, and if Mr. Good has any claim ¿t all, it would be for damages and in my opinion, in view of the present conditions, he would not have a just claim for damages in any sum whatsoever.
“I am writing this letter in order that you might be fully advised of her position and further that Mr-Good might be advised that she will uot deliver him' a deed. If you have any inquiries in regard to this matter, kindly address them to the writer.
“Yours truly,
“B. A. Myers.”

Plaintiff’s.exhibit C, referred to in'the evidence, is in the words and figures following, to wit:

“February 10, 1947.
‘ ‘ Mr. S. S. Beard,
“Marsh Building,
“Van Wert, Ohio.
Re: Wellington N. Robinson
Estate.
“My dear Mr. Beard:
“In pursuance of a letter of B. A. Myers da tod February 8th, we hand you herewith check of Paul Good in favor of Della Robinson dated April 16, 1946 for the sum of $100 drawn on the Peoples Savings Bank of Van Wert, Ohio.
“Very truly yours,
“Kerns Wright.
“KW-VES
‘ Erie.
“cc. B. A. Myers, Celina, Ohio.”

Plaintiff’s exhibit D, referred to in the evidence, is in the words and figures following, to wit:

“February 12, 1947.
“Mr. Kerns Wright,
“Attorney at law,
“Van Wert, Ohio.
“Dear Mr. Wright:
“This will acknowledge receipt of your letter of February 10, inclosing check issued by Paul Good in ' favor of Della Robinson, dated August 16, 1946, m the sum of one hundred dollars ($100) drawn on the Peoples Savings Bank, Van Wert, Ohio.
“Upon instruction of Mr. Good, I am returning the check. Will you please notify Mrs. Robinson that Mr. Good is ready, willing and able to carry out the terms of his contract with her.
“Yours very truly,
“Attorney at law.
“SSB :MEA
“Inc. check
“cc B. A. Myers, Celina, Ohio.”

That is all the evidence offered, except plaintiff’s exhibit A to the bill of exceptions, which is the same as plaintiff’s exhibit A to the petition, hereinbefore set forth.

The defendant assigns error in the following particulars :

1. In overruling the motion of defendant for judgment, in refusing to render judgment, in favor of defendant, on the pleadings.

2. In overruling the motion of defendant to dismiss at the close of plaintiff’s evidence.

3. The finding and judgment are manifestly against the weight of the evidence.

4. The finding and judgment below are contrary to law.

5. The finding and judgment below are not supported by sufficient evidence and are contrary to law.

These assignments will be considered in the order mentioned, the last three assignments being considered together.

Under the first assignment of error the defendant contends that as the pleadings show that at the time the agreement was entered into the plaintiff had a petition pending in the Probate Court, to take the premises described in the agreement, and in the petition in this case, together with a 40-acre tract of land in addition thereto, at their appraised value. The clause of the agreement quoted in the answer and the clause of the agreement immediately following the same, which reads as follows, “It is further agreed that should said court not approve said election that seller not be permitted to take said premises, that this contract shall be null and void and seller shall return to buyer the $100 paid hereunder,” referred to her then pending election.

And defendant further contends that as the pleadings further show her then pending election was denied by the court, the agreement pursuant to the provisions of the quoted clauses became null and void, entitling defendant to judgment on the pleadings.

On the other hand, the plaintiff contends that the quoted clauses referred to any election to take the premises described in the agreement, at their appraised value, that might be made by the defendant and approved by the court, and consequently that the election to take the premises, filed after the date of the agreement, and approved by the court, fully complied with the conditions set forth in the clauses, and the agreement did not become null and void and is enforcible.

An inspection of the above mentioned clauses discloses that no reference is made to a “pending” election, and that the election referred to in the first clause is “the election of seller to take the property herein described at its appraised value in the estate of Wellington N. Robinson, deceased.”

The only premises described in the agreement are the premises described in the petition and such premises do not include the 40-acre tract included in the election of the defendant, pending in the Probate Court at the time the agreement was entered into.

While the definite article “the” in the first quoted clause above mentioned, appears before the .word “election,” it is used to qualify the phrase of which the word “election” is the first word, and to make definite the character of the election, that is, ‘ ‘ election of seller to take the property herein described at its appraised value,” and not to designate any particular election that has been or may be made by the seller to take the property at its appraised value.

By the terms of the first quoted clause the contract is contingent upon the Probate Court of Van Wert county, approving the election of seller to take the property described in the agreement at its appraised value, and there being no other or further limitation-prescribed as to the character of the election, it comprehends any election of the seller to take the property at its appraised value, irrespective of any election by her to take any other property, or of the time of the appraisal, or of the time such election is made.

The words “said election” appearing in the second clause above quoted refer back to the word “election” as used in the first clause, and with the meaning hereinbefore set forth.

Those clauses of the agreement are not in any way ambiguous and clearly contemplate that the contract is contingent upon the Probate Court approving any election of the seller to take the property described in the agreement, at its appraised value, and if the Probate Court does not approve any such election, that the contract shall be null and void and seller shall return to buyer the $100 paid thereunder.

It is only in cases where a contract is ambiguous that resort may be had to evidence of the situation of the parties and conditions existing at the time the contract is entered into, as an aid in construing the contract.

As the contract was not ambiguous in the respects mentioned, the existence of facts showing the situation of the parties and the existence of conditions existing at the time it was entered into, including the fact that defendant then had an election pending in Probate Court to take the real estate and other real estate, nmy not be considered by the court in construing the same.

Although the election of the seller, pending at the time the agreement was signed, was denied by the court, such denial did not render the agreement null and void as the defendant subsequently made an election in conformity with the terms of the agreement, which was approved by the court, and thus the thing occurred upon which the validity of the contract was dependent, and the agreement did not become null and void.

For the reasons mentioned, this assignment of error is without merit.

2. In addition to the issue as to whether the written agreement by its terms became null and void by reason of defendant’s election to take the real estate, pending in Probate Court at the time the agreement was signed, being denied by the court, which we have discussed, the following issues were treated by all the parties and by the trial court as being raised by the pleadings in the case.

1. Whether plaintiff’s check, payable to the order of defendant, for the sum of $100, being the amount of the down payment specified in the written agreement, was delivered to the defendant.

2. Whether the duplicate copy of the written agreement was delivered to the plaintiff.

3. Whether the parties had orally agreed that the written agreement would not take effect or become binding upon them until the $500 orally agreed by the parties to be paid by plaintiff to defendant as an inducement to her to sign the agreement, had been paid or tendered in conformity with the terms of the oral agreement.

4. Whether the parties had orally agreed that the written agreement was to become effective and binding upon them only in event the oral and written agreements of the parties were approved by Kerns Wright, defendant’s attorney.

The last mentioned issue is not clearly raised by the pleadings, but was submitted to and tried by the Common Pleas Court without objection by either of the parties, as if properly raised by the pleadings, ánd the findings of fact of the trial court are predicated upon such issue being properly raised by the pleadings.

That the plaintiff adopted this construction of the pleadings is obvious from the fact that all the testimony introduced upon this issue, is the testimony of defendant elicited upon her cross-examination by plaintiff.

While the letter of defendant’s attorney to plaintiff’s attorney, identified as exhibit B attached to the bill of exceptions, might be construed as limiting to some extent the defenses available to defendant, such construction cannot be adopted in this case, as the plaintiff himself, upon cross-examination of the defendant, elicited the facts, in support of each and all of such defenses and thereby waived any right to insist upon such construction.

In reviewing the record on this assignment of error we will, therefore, have to consider the evidence adduced upon such defense as if the same were properly pleaded and not restricted.

This is a chancery case.

On the motion of the defendant for a nonsuit of plaintiff and dismissal of plaintiff’s petition, made at the close of the evidence adduced by the plaintiff, in a chancery case such as this it is the duty of the court to first determine whether there is evidence tending to prove each element of the case essential to a recovery by plaintiff, and if he finds there is no evidence tending to prove any essential element of the case, to sustain the motion for nonsuit and dismissal; and, second, if he finds there is evidence to prove each element essential to a recovery by the plaintiff, to weigh the evidence in the case and then determine whether a recovery by the plaintiff is sustained by a preponderance of the evidence on each essential element, and if he determines it is not sustained by a preponderance of the evidence on each essential element, to sustain the motion for dismissal.

As shown by the record in this case the plaintiff testified that a duplicate of the written agreement was delivered to him by the scrivener, who was his agent.

On the other hand, the defendant, on her cross-examination by plaintiff, testified that the parties made certain oral agreements not appearing in the written instrument, first, to the effect that the contract was not to become effective or binding upon the parties until the plaintiff paid defendant $500 as an inducement to enter into the written agreement, and that this amount was to be paid on the day the written agreement was signed; and, second, that the contract was not to become effective and binding upon the parties until the written, and oral agreements had been approved by her attorney.

She further testified that neither of these conditions had been complied with, and that a duplicate copy of the agreement had uot' been delivered either by her or the scrivener to the plaintiff.

The defendant’s testimony is corroborated to some extent by the testimony of the scrivener to the effect that both the plaintiff and defendant informed him they had made certain oral agreements with reference to the subject matter of the contract, which were not to be incorporated in the written agreement, and of the nature of which he is not aware, and that he did not deliver a duplicate copy of the written agreement to plaintiff.

While evidence of the delivery by a party or his agent of a duplicate of an agreement of the character mentioned, to the other party to the agreement, in the absence of evidence to the contrary, tends to prove it was intended to take effect upon such delivery, the evidence of defendant, elicited upon her cross-examination by plaintiff, tends to prove that by oral agreement between the parties to the written agreement, conditions were annexed to the formation of the alleged contract and to the obligations upon the promises therein of such character that the written agreement would uot become effective even if a duplicate of same was delivered by her or her agent to the plaintiff.

Although testifying at the trial, the plaintiff did not deny the testimony of defendant in the respects mentioned, except as to the delivery of the duplicate of the contract to him by the scrivener, and no evidence was introduced in the case proving or tending to prove that the testimony of defendant in the respects mentioned, other than as to the delivery of duplicate copy of the contract to plaintiff, was not true.

The testimony of the defendant in the respects mentioned tended to prove two separate conditions precedent to the formation of the written contract upon which the action is based. '

As is said in 9 Ohio Jurisprudence, 464, Contracts, Section 229:

“* * ^Conditions may be annexed to the formation of a contract or to the obligations upon promises therein. In other words, the contract may not come into existence until the happening of some event or the performance of some act. There may be no actionable liability to perform a certain promise contained in the contract until the occurrence of some event or the performance of some act. A condition going to the existence of a contract may be contained in the offer or the acceptance.”

To the same effect, is the opinion in the case of Mumaw v. Western & Southern Life Ins. Co., 97 Ohio St., 1, at page 9, 119 N. E., 132, and the decision in the case of Dependabilt Homes, Inc., v. Haettel, 81 Ohio App., 422, 76 N. E. (2d), 616.

Directly in point as to an oral agreement between the parties to a written instrument, that the same is not to become effective until it is approved by counsel of one of the parties is a condition predecent to the taking effect of the written instrument, is the case of Ware v. Allen, 128 U. S., 590, 32 L. Ed., 563, 9 S. Ct., 174, wherein it is held that where, before the signing of a written instrument, it was agreed between tbe parties thereto that it was to be of no effect unless, upon consultation with the counsel named, the defendant should be assured that the transaction out of which it arose was lawful, proof that they were advised by such counsel that such transaction was illegal shows that the instrument never came into effect and that the conditions upon which it was to become operative never occurred.

The testimony of the defendant, in the respects mentioned, not being denied by plaintiff, and there being no evidence of any kind to contradict it, must be presumed to be true. In support of this proposition we quote from the opinion in the case of Hayes v. Kentucky Joint Stock Land Bank, 125 Ohio St., 359, at page 362, 181 N. E., 542:

“No other person testified to the contrary * * *. Her positive statement is not contradicted by any other witness, or by any other circumstance. Standing uncontradicted, it must be accepted as proof, in the absence of any testimony or circumstance from which a contrary inference can be drawn. The record discloses none.”

The above quotation refers to the testimony of the defendant in the case who had filed a petition praying for the vacation of a default judgment rendered against her in the cause, upon the ground that she had not been served with summons in the case although the return of the summons issued for her showed service was made upon her by leaving an attested copy thereof at her usual place of residence, the defendant contending and testifying that the place where the copy of the summons was left for her was not her usual place of residence.

The Common Pleas Court entered judgment on her petition to vacate, finding the service of summons to be valid. The petitioner then prosecuted error to the Court of Appeals which affirmed the judgment of the Common Pleas Court, and error was then prosecuted by the petitioner, to the Supreme Court. The Supreme Court, basing its decision on the above quoted reasoning, reversed the judgment of the Court of Appeals and entered final judgment vacating the judgment against the petitioner.

That the uncontradicted testimony of a party, elicited by cross-examination by the adverse party, is effective for the purpose mentioned in the opinion in the case of Hayes v. Kentucky Joint Stock Land Bank, supra, appears from the decision in the case of Zarn, Admx., v. Dominique, 39 Ohio App., 442, 177 N. E., 850, wherein, in the second paragraph of the syllabus, it is held:

“On a motion by defendant at the close of plaintiff’s evidence for a directed verdict, the uncontradicted testimony of a defendant called by plaintiff for cross-examination must be deemed true.”

Applying the same reasoning to the testimony of the defendant in the instant case as to the parties to the written contract agreeing that it was not to become effective, operative or binding upon the parties unless and until the $500 orally agreed to be paid her as au inducement to sign the written contract, was paid on the day the written contract was signed, and that the written contract would not become effective until the oral and written agreements of the parties had been approved by defendant’s attorney, and that such conditions precedent had not happened, such testimony must be presumed to be true, there being no testimony to the contrary.

This testimony therefore established two complete defenses to the enforcement of the written agreement, neither of the conditions precedent to its taking effect and becoming operative having been complied with. Such defenses having been established by the uncontroverted testimony of the defendant, the court erred in not granting defendant’s motion made at the close of plaintiff’s evidence, for nonsuit and dismissal of this case.

In view of our holding on this assignment of error, it .is unnecessary to consider assignments of error Nos. 3, 4 and 5.

For the error mentioned, the judgment of the Common Pleas Court will be reversed and this court rendering the judgment the Common Pleas Court should have rendered on the motion, will render and enter final judgment dismissing plaintiff’s petition at his costs. It is further adjudged that plaintiff pay the costs of this appeal.

Judgment accordingly.

Jackson and Middleton, JJ., concur.


source: Caselaw Access Project

author: Hurd, P. J.

license: Public Domain

text:
    Nardi, Appellant, v. Reliable Trucking Co., Appellee.

      (No. 20951
    Decided June 7, 1948.)
    . Messrs. Smdell db Svndell, for appellant.

      Messrs. Snyder, Seagrave, Roudebush & Adrion, for appellee.
   Hurd, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Cuyahoga county, wherein a verdict and judgment were rendered in favor of the defendant, in an action for personal injuries alleged to have been sustained by the plaintiff growing out of a collision between a three-arid-one-half-ton stake truck and a police tow truck, the latter being driven by the plaintiff.

The accident occurred on February 2, 1945, at about 1:20 p. m., in front of a loading platform at 4616 Hamilton avenue in the city of Cleveland, Ohio. Both parties agree that the street was covered with a layer of ice at the time and place of the collision. There is evidence in the record tending to show that one Albert Toth, the driver for the defendant, Reliable Trucking Company, first drove his truck down East 45th street north to Hamilton avenue and then east to a place opposite the loading dock of the Cleveland Brass Manufacturing Company, at which point he drove his truck to the north side of Hamilton avenue and parked the truck headed east, at an angle along side the north curb with the rear end of the truck extending out into the street. The truck was equipped with rear view mirrors on the right and left sides and had a rear-window in the cab which was at the time of no benefit to the driver because his view was obscured with a load of corrugated paper boxes.

Toth testified in substance that after he had stopped his truck in the position above indicated, he looked in both directions even to the extent of getting out of his truck onto the running board to do so but saw no traffic coming in either direction. Thereupon he got into the cab and started to back the truck across the highway. The first that he knew of a collision was when he “heard a crash behind the truck.”

Plaintiff testified that he drove the police tow truck north on East 45th street and had turned east on Hamilton avenue and proceeded east at about 18 to 20 miles per hour. He testified further that:

“As I approached 4629 Hamilton avenue 1 saw the big truck parked on the north side of the street and I saw he started to back up and I blew my horn and put my brakes on and he come suddenly and he rammed right into me as 1 had my hand on the horn, and he pushed me against the right side of the door and smashed all my left side door in, and knocked the horn button on the ceiling and came down on the floor board and 1 laid down on the seat * *

On cross-examination he testified in substance that he began pumping his brakes and sounding his horn when he first saw the truck backing up; that he was 35 to 55 feet from the truck at that time; that, he pumped his brakes once or twice but the defendant’s truck kept backing up; that his brakes were on full about three or four feet before the impact and at the moment of the impact; that he had slackened his speed to four or five miles per hour at the time of the impact; that he could not stop on the icy pavement before the impact; and that he could not move to the right because he would have run into the parked cars.

There is evidence in the record tending to show that after the collision the right rear of defendant’s truck was pinned against the left side of plaintiff’s truck; and that the defendant’s truck after the collision was across the highway about eight feet south of the center line of Hamilton avenue and eight feet north of the south curb.

It was stipulated that the width of Hamilton avenue at the point of the collision was 38 feet, 11/2 inches.

The plaintiff sets forth two assignments of error as follows:

1. Error in the general charge to the jury.

2. Abuse of discretion in refusing to grant a new trial for misconduct of a juror.

Considering first, the charge of misconduct of a juror upon which counsel have cited and quoted many authorities, we have reached the conclusion since the refreshing decision of the Supreme Court in the case of Pearson v. Gardner Cartage Co., Inc., 148 Ohio St., 425, 76 N. E. (2d), 67 (which was decided since the trial of the instant case), that the question of misconduct of jurors on voir dire examination is a matter exclusively within the sound discretion of the trial court, when the propriety of the participation of such juror is properly raised, and the Court of Appeals may not reverse on this ground unless it clearly appears that the trial court abused its discretion in accordance with Section 11364, General Code, in overruling the motion for new trial. We find no abuse of discretion by the trial court in this respect.

This brings us to a consideration of the principal assignment of error, namely, that the court erred in its charge to the jury. The particular part of the charge complained of is as follows:

“I charge you that where one, without fault of his own, is placed in a position of great mental stress or sudden emergency, the same degree of care is not required of him as required of one who is acting under normal conditions. The test to be applied by you is whether the person in such position if you find either of these parties in this lawsuit have been placed in such position of great mental stress or sudden emergency, that it attempted to do what a reasonably prudent person would have done under the same or similar circumstances. If, therefore you find from all the evidence — well T think that is sufficient on that point.” (Emphasis added.)

It is claimed that this charge of the court was prejudicially erroneous in the following respects:

1. It injected a new issue into the case not raised by the pleadings or the evidence, namely, that the defendant driver may have been confronted with an emergency.

2. It defined and applied a different and lesser standard of care to the defendant driver than the standard of care set forth in Section 6307-37, General Code.

3. It was an incomplete definition of the doctrine of emergency as applied to this case and it failed to relate the doctrine of emergency to the doctrine of contributory negligence.

4. It placed too great a burden on the plaintiff to prove not only negligence but also that the defendant driver was not in an emergency.

We think the evidence in this case was such as to entitle plaintiff to a charge on the doctrine of sudden emergency, particularly in view of the evidence of an icy pavement, the testimony of the driver of defendant that he looked for traffic before starting to back up, that he saw none although plaintiff’s truck was there, the testimony of plaintiff that he continually sounded his horn before the collision and other facts in the evidence too numerous to detail, all tending to show a situation of peril and emergency.

On the other hand, we find there is no evidence in the record which would justify an inference that defendant was confronted by a sudden emergency or that he was in a perilous situation. On the contrary, the emergency, if any, was created by the conduct of defendant’s driver in backing his truck in such a manner as to obstruct the highway.

The effect of the charge of the court in giving defendant the benefit of the sudden emergency doctrine was to inject an issue into the case which was not raised by the pleadings or the evidence. See 2 Ohio Jurisprudence, 952, Appeal and Error, Section 774:

“ Injecting new issues into case — It is clearly reversible error for the court in its instructions to inject into the case issues and questions not raised by the pleadings or the evidence, if they have a tendency to confuse the questions properly in the case and to mislead the jury lo the prejudice of the plaintiff in error.’’

See, also, Pearlstein v. A. M. McGregor Home, 79 Ohio App., 526, 73 N. E. (2d), 106 (motion to certify overruled April 30, 1947), and other cases cited therein.

Considering next, the claim that the charge of the court reduced the statutory degree of care required of defendant in backing his vehicle across the highway to the lesser degree of ordinary care, we think the claim of plaintiff well founded, in view of the decision of the Supreme Court in the case of Bush v. Harvey Transfer Co., 146 Ohio St., 657, 67 N. E. (2d), 851.

In the instant case the court read to the jury Section 6307-37, General Code, as follows:

“No person shall start a vehicle which is stopped, standing or parked, unless and until such movement can be made with reasonable safety; and before backing operators of vehicles shall give ample warning while backing and shall exercise vigilance not to injure persons or property on the highway.” The court then said to the jury:
“I charge you that the violation of this statute would constitute negligence per se actionable negligence. ’ ’

Thus the court submitted for consideration of the jury a standard of statutory duty devolving upon the defendant in backing his automobile truck across the highway, the violation of which would constitute negligence per se. The standard of care required by statute was then reduced to ordinary care when the court, in its charge stated :

“The test to be applied by you is whether the person in such position, if you find either of these parties in this lawsuit have been placed in such position of great mental stress or sudden emergency that it attempted to do what a reasonably prudent person would have done under the same or similar circumstances. [f, therefore, you find from all the evidence— well I think that is sufficient on that point.”

In the case of Bush v. Harvey Transfer Co., supra, the trial court was presented with an analogous situation. In that case the court charged that the violation of Sections 6307-64 and 6307-100, General Code, relating to the stopping or parking of vehicles upon the paved or main traveled portions of the highway would constitute negligence per se. However, before argument, the court had given a special charge, No. 4, reading as follows:

“I charge you that where one without fault of his own is placed in a situation of sudden emergency he is not to be held to the exercise of the same care and circumspection that is required of one who is acting finder normal conditions where no emergency is present. The test to be applied is, whether or not the person in such a situation of sudden emergency did or attempted to do what a reasonably prudent person Would have done under the same or sin hilar circimistanees.
“If, therefore, you find from the evidence in this case that the driver of the Harvey Transfer Company truck, Hobart Hopper, without fault of his own, was placed in a situation of sudden emergency and that while in such a situation he did or attempted to do what any reasonably prudent person would, have done under the same or similar circumstances, then he was not negligent.” (Italics Supreme Court.)

At page 664, Hart, J., speaking for the majority of the court said:

“The court, by this special charge, attempted to state what the law required the driver of the Harvey truck to do when his truck became disabled on the public highway. Two members of the Court of Appeals were of the opinion that the special charge was erroneous and prejudicial to the plaintiff. This court concurs in this view. Since the failure to comply with the provisions of a safety statute constitutes negligence per se, a party guilty of the violation of such statute cannot excuse himself from compliance by showing that ‘he did or attempted, to do what any reasonably prudent person would havé done under the same or similar circumstances. ’ A legal excuse, precluding liability for injuries resulting from the failure to comply with the statutory requirements respecting the operation of a motor vehicle on the public highways, must be something that would make it impossible to comply with the statute, something over which the driver has no control, an emergency not of the driver’s making causing failure to obey the statute, or an excuse or exception specifically provided in the statute itself. The instruction of the court in the instant case substituted the rule of ordinary care for the specific requirements of the statute. It made the duty of the defendant, Harvey Transfer Company the same as it would have been had the statute not been enacted. Kormos v. Cleveland Retail Credit Men’s Co., 131 Ohio St., 471, 3 N. E. (2d), 427. See Matz, Admr., v. J. L. Curtis Cartage Co., 132 Ohio St., 271, 275, 7 N. E. (2d), 220; Swoboda v. Brown, 129 Ohio St., 512, 522, 196 N. E., 274; Simko v. Miller, 133 Ohio St., 345, 13 N. E. (2d), 914; Kohn, Admx., v. B. F. Goodrich Co., 139 Ohio St., 141, 146, 38 N. E. (2d), 592; Satterth waite v. Morgan, Jr., 141 Ohio St., 447, 48 N. E. (2d), 653; Kadlec v. Al Johnson Construction Co., 217 Iowa, 299, 252 N. W., 103; Schwind, Jr., Admr., v. Gibson 220 Iowa, 377, 260 N. W., 853; Young v. Hendricks. 226 Iowa, 211, 283 N. W., 895; Andrew v. White Bus Line Corp., 115 Conn., 464, 161 A., 792; Giancarlo v. Karabanowski, 124 Conn., 223, 198 A., 752.”

The principle enunciated in the case of Bush v. Harvey Transfer Co., supra, is equally applicable to the situation presented in the instant case.

We conclude, therefore, that in this particular respect the charge of the court was prejudicially erroneous.

We think that the charge was also erroneous in that the court did not relate the doctrine of sudden emergency to the doctrine of contributory negligence as it might apply to the plaintiff. The court had been specifically requested to give such a charge as appears in the record as follows:

“The court: Is there anything further occurs to counsel?
“Mr. Sindell: Ask the court to charge the doctrine of emergency as set out in syllabus 3, 55 Ohio St., 343, because the way you stated it you made it appear that the defendant’s truck could have been an emergency. The only emergency was to the plaintiff.”

At the close of the charge plaintiff’s counsel again excepted.

“Mr. Sindell: Let the record show on behalf of the plaintiff * * * we take special exception to the court's refusal to charge the third syllabus of 55 Ohio St., 343, or any modification of the question of emergency, because we stale that when the .Judge charged emergency in his charge, he made it appear as though the defendant could have been involved in an emergency as well as the plaintiff, whereas, in fact the only emergency that was created was by the defendant’s act, if any, and the plaintiff was placed in that emergency. The defendant never claimed that he was in any emergency nor did his evidence tend to show an emergency.”

The doctrine of sudden emergency referred to in Pennsylvania Rd. Co. v. Snyder, 55 Ohio St., 342, 45 N. E., 559, 60 Am. St. Rep., 700, is as follows:

“When a person without his fault is placed in a situation of danger, he is not to be held to the exercise of the same care and circumspection. that prudent persons would exercise where no danger is present; nor can it be said that, as matter of law, he is guilty of contributory negligence because he fails to make the most judicious choice between hazards presented, or would have escaped injury if he had chosen differently. The question in such case is not what a careful person would do under ordinary circumstances, but what would he be likely to do, or might reasonably be expected to do in the presence of such existing peril, and is one of fact for the jury.”

We think it unnecessary to extend this opinion to any further length, consequently we will omit any discussion of the fourth point claimed by the plaintiff as constituting error on this phase of the case.

In conclusion, we wish to emphasize the proposition that this court is not attempting to pass upon the ultimate questions of fact presented by the record— whether the defendant’s driver was guilty of a violation of a statutory duty and, therefore, guilty of negligence per se, or whether the plaintiff was contributorily negligent., as well as the question of proximate cause. These are all questions of fact for the determination of the jury under proper instuctions of the court on questions of law.

For the reasons stated the judgment, in favor of the defendant is reversed and the cause is remanded to the Common Pleas Court for a new trial in accordance with this opinion.

Judgment reversed.

Morgan and Skeel, JJ„ concur.


author: Montgomery, J.

text:
    Grossglaus, Appellee, v. Board of Elections of Stark County; France, Appellant.
    (No. 2329
    Decided January 31, 1949.)

      Messrs. Burt, Carson, Lynch & Vogelgesang, for appellee.

      Mr. Ian Bruce Bart, Mr. William L. Hart, Jr., and Mr. L. Darrell Ake, for appellant.
   Montgomery, J.

There is presented to us a motion to dismiss the appeal on the ground that the matter involved is now a moot question. We are now passing upon this motion and upon no other phase of this lawsuit.

The appellee, Harry W. Grossglaus, instituted an action in the Court of Common Pleas of Stark County against the board of elections of that county and Richard R. Prance, and, issues having been made, the cause was tried and the court granted a permanent injunction restraining the Board of Elections of Stark County from conducting a recount of votes cast at the election in November 1948 for sheriff of that county.

The board of elections did not appeal. The appeal was by Richard R. Prance. It is to this appeal -that this motion is directed.

In support of the motion it is contended that the question has become moot, because, subsequent to the judgment of the Court of Common Pleas, pursuant thereto and based thereon, the board of elections proceeded to issue a certificate of election as sheriff of Stark county, to Harry W. Grossglaus, and to certify the result of the election to the Secretary of the State of Ohio.

It is argued, in effect, that the whole thing being now a fait accompli, no order could now be issued from a court affecting the result.

The leading case on the matter of moot question is, of course, Miner v. Witt, Clerk, 82 Ohio St., 237, 92 N. E., 21, the syllabus of which is:

‘ ‘ It is not the duty of the court to answer moot questions, and when, pending proceedings in error in this court, an event occurs without the fault of either party, which renders it impossible for the court to grant any relief, it will dismiss the petition in error.”

It is urged by the appellee further that no order could be made now which would attack the certification to the Secretary of State.

Counsel on both sides stress the case of State, ex rel. Shriver, County Engineer, v. Hayes, 148 Ohio St., 681, 76 N. E. (2d), 869, paragraph one of the syllabus of which is:

“A certificate of election is conclusive as to the result of an election until set aside or vacated in some manner authorized by law, and is not subject to collateral attack; and, although not conclusive when directly attacked, such certificate is prima facie evidence of the matters therein certified.’ ’

So far as that case is applicable to the matter now before us, it seems to us that the pertinent part of the holding is that the certificate is “prima facie evidence” and only that. It certainly is not conclusive.

If we interpret that decision correctly, it is simply in accord with the statutes of Ohio governing recounts of votes; and to certain sections of the General Code, relating to elections, we direct attention.

Section 4785-158, General Code, provides in part:

“Such certificates of election shall be issued by such election officials after the expiration of the time within which applications for recounts of votes shall have expired and after recounts of votes which shall have been applied for, shall be completed.”

In the instant ease it cannot be argued that time will run against the appellant, because the recount was held up only by the injunction proceedings against the board of elections and against him.

Section 4785-162, General Code, provides, ámong other things:

“Upon completion of the recount of the ballots of all precincts listed in an application for a recount, or upon stopping the recount prior to such time as herein provided for, the board shall promptly prepare and certify an amended abstract showing the votes cast in each precinct in its county * * * If the nomination, election or question or issue concerning which such recount. was made, was submitted only to electors within a county, the board shall make an amended declaration of the result of such election, in the same manner as required by law in the making of its original declaration of the result of such election.”

This section of the Code makes further provisions as to what shall happen in the event that a recount should show a result, different from the original count and carries specific provisions as to an amended declaration of results m the event that a recount should change the results. A study of this very long section seems to us to reveal conclusively the proposition that there shall be an amended abstract and an amended certification, which fact in turn clearly shows that the original certification is only prima facie evidence of the result.

In other words, under a fair construction of this statute itself, and following what we regard as the right interpretation of the Shriver case, no one is bound by the certification heretofore made in the instant case, if it. should thereafter be determined properly that the original certification was not based upon the facts.

Of course, if, perchance, we should find the Common Pleas Court to have been in error, we would not render directly any judgment affecting the ministerial acts heretofore performed; we would simply reverse the judgment of the lower court and that would leave the parties where they were prior to the granting of the injunction in that court. The board of elections would then in that event be enabled to proceed with the recount, if it cared to do so voluntarily, or if it declined to proceed might well be subjected to an action in mandamus to produce that result.

We mention this latter proposition simply for the purpose of indicating that further proceedings are not foreclosed by reason of the present situation, and that, although this court would not, upon a hearing of the merits of the case, render a judgment other than an affirmance or reversal, it would still, in the event of the latter contingency, open the way for a further determination of the issue, and, hence, the situation as it now presents itself is not one which renders impossible the granting of some subsequent relief to the appellant, if, upon a hearing upon the merits, he should be found to be entitled to it.

The motion to dismiss the appeal is overruled.

Motion overruled.

Putnam, P. J., and McClintock, J., concur.


author: Ross, J.

text:
    Evegan et al., Admrs., Appellees, v. Cincinnati Street Ry. Co., Appellant.

      (No. 6998
    Decided October 25, 1948.)

      Mr. Joseph Schwarts and Mr. Sol Goodman, for appellees.

      Mr. John M. McCaslin, for appellant.
   Ross, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton County, overruling a motion for judgment in favor of the defendant, notwithstanding the disagreement of the jury. Motion for a directed verdict and judgment for defendant was also made at the conclusion of all the evidence and overruled by the court.

The sole question thus presented is whether the defendant was entitled to a judgment, upon the evidence as a matter of law.

It is the contention of the defendant appellant that the evidence in the case permits reasonable minds to draw only one conclusion and that is that the sole cause of the death of plaintiffs’ decedent, was her own negligence.

This requires a review of all the evidence presented to the trial court.

This evidence sustains the position of the defendant-appellant. It would serve no purpose to encumber this opinion with the details of the record.

It is sufficient to say that it clearly appears from the record that the streetcar of the defendant was being operated in a perfectly lawful manner, proceeding southwardly on Linn street, and that the plaintiffs’ decedent attempted to run in front of the streetcar, evidently hoping to reach a position where she could board the car. It is evident also that the operator of the streetcar was taken by surprise when decedent ran in front of the car and he did everything possible to avoid striking the decedent.

The moving streetcar must have been perfectly apparent to the decedent. The only conclusion possible is that she ran in front of it and misjudged its speed or her ability to pass in front of it.

The inescapable conclusion is that the negligence of the decedent was the proximate cause of her death.

Although ordinarily the question of whether negligence was the proximate cause of injury is a factual one for a jury’s determination, yet, when the relation of such negligence to injury is so apparent that reasonable minds must admit the negligence as capable of only one proximate result, namely the injury, a question of law only is presented requiring an adjudication by the court of responsibility upon the party so shown to be negligent. If such were not the case, no court, either trial or appellate, would be justified in ever rendering judgment where the question of the proximate result of the negligence of either party was involved.

The courts of this state have consistently exercised this power inherent in them when confronted with evidence requiring such legal conclusion. Buell, Admx., v. New York Central Rd. Co., 114 Ohio St., 40, 150 N. E., 422; Cleveland, C., C. & St. L. Ry. Co. v. Lee, Admr., 111 Ohio St., 391, 145 N. E., 843.

The following statement in the opinion of New York Central Rd. Co. v. Stevens, Admr., 126 Ohio St., 395, 408, 185 N. E., 542, 87 A. L. R., 884, is significant:

“It is apparent that he left a place of safety and stepped into the zone of danger. We cannot escape-the conclusion that this action on the part of Stevens constituted negligence which proximately contributed to his injury and prevents his recovery. The facts, as-shown by the plaintiff’s own testimony as to how the accident happened, will warrant no inference, in our judgment, that the plaintiff at the time of the injury was exercising due care for his own safety.
“The Court of Common Pleas should have directed a verdict for the railroad company, and the Court of Appeals should have so ordered.”

In Masters v. New York Central Rd. Co., 147 Ohio St., 293, 303, 70 N. E. (2d), 898, the Supreme Court sustained the right of a court to determine the existence of proximate cause as a matter of law.

In the instant case the decedent dashed in front of a streetcar, which she must, have seen approaching her so rapidly that her body was tossed a number of feet after impact. No factual issue for the consideration of a jury is presented under such circumstances and a court must find both negligence and proximate cause-as a matter of law.

The motion of the defendant for a directed verdict, made at the conclusion of all the evidence, should have been sustained, and the trial court should have rendered judgment as requested by the defendant. Consequently, the judgment must be reversed.

Some contention is made that the operator of the streetcar was guilty of a failure to exercise due care in its operation. Where, however, in a case such as the instant one, all the evidence produced at the trial by the parties presents no factual issue as to negligence of the plaintiff and requires the legal conclusion that his negligence was the proximate cause of his injuries, the negligence of the defendant becomes an immaterial issue, since any negligence of the plaintiff which proximately contributed to his injuries'prevents recovery by him and requires an instructed verdict, for the defendant.

‘ ‘ Where a Court of Appeals reverses the trial court on the ground that the proof fails to show actionable negligence on the part, of defendant, it becomes the duty of the Court of Appeals to render final judgment for the defendant. (Greyhound Lines, Inc., v. Martin, 127 Ohio St., 499, approved and followed.)

“Where a Court, of Appeals reverses a judgment of the trial court, for the assigned reason that, the trial court, erred in not sustaining the motion of defendant for a directed verdict, made at the close of ail the evidence, it becomes the duty of the Court of Appeals to render the judgment which the trial court should have rendered and not. to remand the cause to the trial court for further proceedings. (Majoros v. Cleveland Interurban Rd. Co., 127 Ohio St., 255, approved and followed.)” Leighton v. Hower Corp., 149 Ohio St., 72, 77 N. E. (2d), 600, paragraphs two and three of the syllabus.

Judgment is here entered for the defendant.

Judgment reversed.

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


author: Hornbeck, J.

text:
    City of Columbus, Appellee, v. Rader, Appellant.
    (No. 4009
    Decided February 3, 1948.)

      Mr. Robert E. Leach, traffic prosecutor, for appellee.

      Mr.'Russ Bothwell, for appellant.
   Hornbeck, J.

Defendant was tried and sentenced in the Municipal Court of Colnmbus for the violation of Section 1309a of the ordinances of the city in that, as a driver of an automobile, he unlawfully “failed to yield to traffic on the right, causing accident.”

Five errors are assigned, which may be encompassed in two, namely: Did the city make proof of any offense by the defendant and is the judgment against the manifest weight of the evidence ?

The affidavit does not make reference to any specific ordinance but in general terms charges that the defendant acted contrary to the ordinances of the city’ in such cases made and provided.

Section 1309a of the ordinances reads:

“Right of way at intersections. Excepting where otherwise provided, the operator of a vehicle, streetcar or trackless trolley shall yield the right of way at an intersection to a vehicle, streetcar or trackless trolley approaching from the right.”

Section 1245 of the ordinances reads:

“Right of way. The right of a vehicle * * * to proceed uninterruptedly in a lawful manner in the direction in which it or he is moving in preference to another vehicle * * * approaching from a different direction into its or his path.”

The evidence discloses that the defendant, driving eastwardly on Fifteenth avenue in the city of Columbus, came into the intersection of that avenue with Hamilton avenue and collided with a Ford automobile driven northwardly by one Joseph Massara. The paths of the cars and their relative locations in the intersection at the time of the collision were established, in part, by the testimony of officer Robert Baus who, without objection, introduced a map showing the respective positions of the cars. This chart was made from information given to the officer by the drivers of the cars which came into collision. Massara, driver of the Ford, testified and, in connection with his testimony, drew a plat showing the position of the cars shortly prior to the collision. Both maps show the Ford driven by Massara, which was to the right of the defendant at the intersection, over the center line and to the left thereof an appreciable distance. The record does not substantially contradict the effect of these maps as to the location of the cars.

There is some testimony^of Massara that the accident occurred to his right of the center, and that at one place he was a little further to the right than shown by his drawing. Opon the whole, however, it cannot be reasonably said that the record permits of any other conclusion than that the Massara car at the time of the collision was to his left of the center of the street. The map of the officer shows that the front of the car of the defendant had gotten slightly over and beyond the center line of Hamilton avenue projected. In the map drawn by Massara the cars had not come into collision and it. seems probable that it could be deduced from this map that part of defendant’s car was over the center line of Hamilton •avenue at the time of the collision. The defendant did not take the stand.

It is the contention of defendant that Massara’s right of way was assured to him only if he was proceeding in a lawful manner as he came into the intersection. Plaintiff insists that the Massara car had the absolute right to proceed into the intersection, which right must have been accorded to him by the defendant and further that the burden of showing the unlawful driving of the Massara car was upon the defendant.

It. is our opinion that it was a material element, of plaintiff’s case that it show that the Massara car had the right of way at the intersection and that if it was being driven in an unlawful manner it had no such right of way. The burden of proof in this case does not become important because, without respect, to the party upon whom it is placed, there is no room for doubt upon the record that the Massara car was being driven on the left of the center of the street. Massara, in driving his car on the left of the center, violated Section 6307-25, General Code, which required him to keep to the right side of the center of the street on which he was driving.

A determination of the question which is new in a criminal action must be made from the language of the ordinances, which is identical with the language of certain sections of the Code, namely, former Sections 6310-28 and 6310-28a, General Code, now Sections 6307-2 and 6307-40, General Code, and Morris v. Bloomgren, 127 Ohio St., 147, 187 N. E., 2, 89 A. L. R., 831. That case was a civil action growing out of a collision at an intersection between the plaintiff, Morris, driving westwardly and the defendant, Bloomgren, driving northwardly. Morris, approaching from the right, claimed the right of way. The defendant asserted and ottered proof to establish that the plaintiff was driving at an excessive rate of speed when he entered-the intersection. .Thus, the claim of the unlawful operation of plaintiff’s automobile related solely to speed but Judge Jones in his opinion and the court in the syllabus do not restrict their pronouncements as to what would constitute driving in an unlawful manner to speed only as affecting plaintiff’s right of way. The first, paragraph of the syllabus states that Section 6310-28, General Code, making it mandatory for the driver on the left at the intersection to yield the right of way to the automobile approaching from the right, and Section 6310-28a, General Code, defining right of way, are cognate sections and should be construed together. The third paragraph of the syllabus reads: „

“The phrase, ‘in a lawful manner,’ found in Section 6310-28, General Code, is a sine qua, non obligation placed upon the vehicle upon which the right of way is conferred. If such vehicle is not proceeding in a lawful manner in approaching or crossing the intersection, but. is proceeding in violation of a law or ordinance, such vehicle loses its preferential status and the relative obligations of the drivers of the converging vehicles are governed by the rules of the common law.”

At pages 153 and 154, Judge Jones says:

“If the privileged occupant of the right of way is not so proceeding, if at the time of approaching or crossing the intersection he is driving at an unlawful, excessive speed, or if he should be found violating Section 12603, or should be driving through the intersection on the left or wrong side of the highway, such driver would not be proceeding in a lawful manner, and could not claim the preference given him by the quoted traffic sections.” (Emphasis ours.)

As we interpret that opinion, right of way is known to the statute only when and if the operator of the preferential car is, at the time of entering the intersection, driving in a lawful manner. If he is not so driving, right of way ceases to be an issue. The statutes, and here the ordinances, are cognate and must be read and construed together. There were but two cars involved. If the Ford car to the defendant’s right was not proceeding in a lawful manner, then the right of way ordinance was without effect and there was no right of way which the defendant was required to yield. Certainly, although Massara lost his preferential right, the defendant was not relieved from his civil obligation to exercise due care.

There is sound logic in the claim of plaintiff that the obligation upon the defendant should be absolute, that he should accord to an oncoming car to his right the right to proceed and that he cannot be permitted to avoid this obligation, but under the interpretation of Morris v. Bloomgren, we cannot say that there was any right of way to be yielded to Massara under the applicable provisions of the ordinance and the Code when he violated the law in driving into the intersection.

We are fully cognizant of the fact that contributory negligence is not involved in a criminal prosecution and if there was only the question of the right of the defendant to assert negligent conduct on the part of the plaintiff, we would readily hold that it had uo place in this appeal. But it is an essential of “right of way” written into the ordinance under which it is claimed defendant is prosecuted that the car claiming the right shall proceed in a lawful manner. Clearly this material obligation essential to'the application of right of way was not observed by the driver of the Ford.

In the situation thus developed there was no right of way which the defendant was obligated to yield and he could not be found guilty of such an offense.

Although it is not made the subject of an assignment of error, and we, therefore, express no final opinion on the subject, we direct attention to the language of the charge, which is that the defendant as a driver of an automobile “unlawfully failed to yield to traffic on the right, causing accident contrary to the ordinances of said city in such cases made and provided.” The applicable ordinances relate to right of way at intersections but there is nothing whatever in the affidavit which charges that the defendant failed to yield the right of way at an intersection. This certainly is proper, if not a requisite, subject matter to be incorporated in the affidavit.

The judgment is reversed because manifestly against the weight of the evidence and the cause remanded for further proceedings according to law.

Judgment reversed.

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


author: By the Court.

text:
    The City of Columbus, Appellee, v. Highsmith, Appellant.
    (No. 4224
    Decided January 22, 1949.)

      Mr. Richard W. Gordon, city attorney, and Mr. Walter W. Grelle, Jr., for appellee.

      Mr. Carrington T. Marshall and Mr. B. P. Levmson, for appellant.
   By the Court.

The appeal is on questions of law from a judgment of the Common Pleas Court affirming a judgment of the Municipal Court of Columbus, finding the defendant, appellant herein, guilty of the offense charged against him and sentencing him to pay the costs of the prosecution.

Six errors are assigned, the first of which is that, “The judgment of the Municipal Court is contrary to law,” and the fifth that, “The affidavit upon which defendant Highsmith was tried and upon which he was found guilty does not state any offense as defined by the ordinance under which he is charged and upon which he was convicted and fined.”

These assignments raise the same question, namely, the sufficiency of the affidavit to charge an offense punishable by law.

The affidavit, so far as material to our question, charges that the defendant, being a driver of an automobile, “did unlawfully fail to yield the right of way, to wit, to an automobile, 1940 Chevrolet coach, license 834D D (47), being driven by Alfred Ray Reynolds, in violation of Section 1309C contrary to the ordinance of said city in such cases being provided.”

Ordinance 1309-c reads: “Right of way when making left turn within intersection. The operator of a vehicle, streetcar or trackless trolley within an intersection intending to turn to the left shall allow the right of way to any vehicle, streetcar or trackless trolley approaching from the opposite direction.”

No motion to quash, plea in abatement or demurrer to the affidavit was filed in the trial court. Defendant, going to trial on the general issue, waived any defect in the form of the affidavit. Section 13439-11, General Code. Notwithstanding the failure of defendant to test the sufficiency of the affidavit by demurrer, if it does not state an offense the question may be raised upon review. Geiger v. State. 5 C. C., 283, 3 C. D., 141. We are, therefore, required to determine whether the affidavit charged an offense.

Defendant cites City of Columbus v. Rader, ante, 143, 78 N. E. (2d), 424, a case decided by this court. The judgment there rested upon a determination that the conviction was against the manifest weight of the evidence. We were careful to state that no infirmity of the affidavit was urged upon the appeal and that we were not making any adjudication as to its sufficiency either in form or substance. In the cited case, unlike this case, the affidavit made no reference to any specific ordinance but in general terms charged that the defendant acted contrary to the ordinances of the city of Columbus in such cases made and provided. We said:

“The applicable ordinances relate to right of way at intersections but there is nothing whatever in the affidavit which charges that the defendant failed to yield the right of way at an intersection. This certainly is proper, if not a requisite, subject matter to be incorporated in the affidavit.”

Here, there is the charge that the defendant failed to yield the right of way in violation of a specific ordinance, namely, Section 1309-c. It is our opinion that the affidavit states an offense under the liberal provisions of Sections 13437-4 and 13437-11, General Code.

The other assignments are based upon the claim that the evidence did not support the finding and judgment of the trial court.

Evidence on behalf of the prosecution disclosed that Reynolds had his Chevrolet parked in a parking lot, just west of Wall alley, facing West Broad street; that the entrance and exit at the lot was from and to Broad street; that the exit was from 50 to 55 feet to the west of Wall alley; and that the Chevrolet moved out into West Broad and was straightened up so that it was moving due east and as it came to Wall alley projected into Broad, the defendant’s automobile collided with the Chevrolet, striking it on the rear left side of the body. Reynolds says that there was no line of traffic ahead of him and that he saw no automobile parked along the south side of Broad street.

The defendant testified that he was moving eastwards on Broad street and when he had reached a place opposite Wall alley, he stopped his automobile and waited for some three or four minutes, gave the proper signal and started to drive his automobile across Broad and into Wall; that as he did so, Reynoids emerged from behind or from the side of a truck which had just cleared Wall alley moving east on Broad; that there was an automobile parked on the south side of Broad street next to the curb and east of Wall alley; that the Reynolds automobile as it came forward and struck defendant’s automobile was headed in a northeastwardly direction; and that the left front bumper and fender of the automobile which defendant was driving were damaged.

Defendant urges that in the situation with which he was confronted an ordinance of the city of Columbus, 1309-d, required Reynolds to yield the right of way to defendant’s automobile. It provides:

“The vehicle joining the flow of traffic on the road or highway from a standing position, an alley, a building, a private property, shall yield the right of way to all other vehicles.”

We agree that if the record required the conclusion that the Reynolds car had not gotten into the line of eastbound traffic as defendant’s automobile approached, the ordinance would have application, but clearly upon the testimony adduced in behalf of the prosecution, the Reynolds automobile had the right of way and if the collision occurred as testified by Reynolds and supported in particulars by Officer Baird, the finding of guilt was supported. Upon the diverse versions of Reynolds and defendant of the occurrences, the trial judge was required to discern which one was truthful. The situation presented has been considered and the law pronounced as early as Breese v. State, 12 Ohio St., 146, 80 Am. Dec., 340, in the fourth paragraph of the syllabus:

“A judgment will not be reversed because the verdict is contrary to the evidence, unless it is manifestly so, and the reviewing court will always hesitate to do so where the doubts of its propriety arise out of a conflict in oraJ testimony.”

The judgment of the Common Pleas Court affirming the judgment of the Municipal Court will be affirmed.

Judgment affirmed.

Wiseman, P. .1., Miller and Hornbeck, JJ., concur.