text:
    ORDINARY CARE REQUIRED OF LESSEE TO PREVENT OVERFLOW OF SINKS.
    Court of Appeals for Hamilton County.
    Heil v. Proctor,
    Decided, May 16, 1919.

      Allegations as to Negligence in Permitting Water to Overflow Sink— Indefiniteness and Uncertainty in Petition Waived by Answer— Duty of Lessee to Shut off Flow of Water on Floor Occupied by Him.

    1 A petition which merely alleges that the defendant negligently and carelessly caused and allowed water to overflow the sink and drains and run through the floors into the rooms occupied by the plaintiff as tenant, should, on motion, be made more definite and certain ■by setting out what the negligent acts or omissions were.
    2. Indefiniteness and uncertainty in a petition are waived by answer, and in such event can not be the basis for directing a verdict for the defendant at the close of the evidence for the- plaintiff.
    3. The duty rests upon the lessee of an upper apartment to use ordinary, care to shut off the flow of water into a sink, and to prevent obstructions to the outlet of the sink, and the duty to use that care continues although the landlord had on various occasions shut off the water in the supply pipe in the hallway when there was danger of freezing.

      Ochiltree &■ Dussol and H. E. Englehardt, for plaintiff in error.

      Hachett, Yeatman <# Harris, contra.
   Richards, J.

On and prior to February 19, 19.17, the plaintiff, Nellie A. Heil, occupied, for the purpose of conducting a printing shop, the fifth floor of a building known as No. 124 Government Place, Cincinnati, and the defendant, Frederick Proctor, occupied the sixth and seventh floors of the same building, which floors he used in his business of bookbinding. On the date named, the rooms occupied by the plaintiff were flooded with water coming from the sixth floor of the building. This action was brought by her for the purpose of recovering the damage to her property caused by the saíne being flooded by water coming from the rooms occupied by the defendant.

At the close of the evidence offered on behalf of the plaintiff •the trial judge directed a verdict for the defendant, and judgment was rendered thereon, and it is now contended that the trial judge erred in directing the verdict. The action of the trial judge was based upon the ground that the allegations of the petition were insufficient to charge the defendant with negligence, and upon the further ground that the evidence which was introduced did not make a case for the plaintiff sufficient to be submitted to the jury.

It appears from the averments of the petition that both parties to this litigation were tenants of the same landlord, who owned the entire building and sublet the same to various tenants, and that there was a sink on the sixth floor of the building, in the rooms occupied by the defendant, which sink was used by him in conducting his business as occasion might require. The petition avers ‘‘that the defendant, his servants and agents negligently and carelessly caused and allowed large quantities of water to overflow said sink and drains and run and flow through the floors and down into the rooms occupied by the plaintiff as tenant,” and it is urged that this is merely the averment of a conclusion and not sufficient to charge the defendant with any negligent act. The petition was not assailed by motion or demurrer and no objection was made at the opening of the trial to the introduction of any evidence under the petition. This court is of opinion that the petition would be subject to a motion to make more definite and certain, but that the defendant having answered by a general denial and gone to trial without objection it is too late thereafter to contend that the petition was insufficient to charge the defendant with actionable negligence. If the defendant contended that the petition was too indefinite and uncertain in the respects named, it should have been assailed by motion as indicated in New York, C. & St. L. Ry. v. Kistler, 66 Ohio St., 326. The rule applicable in such cases is well stated in 3 Bates’ Pleading, Practice, Parties and Forms, 2263, that an averment that an act, omission or conduct is negligent is generally deemed an averment of fact and not demurrable as being a mere conclusion, and if not objected to by motion will sustain evidence of any negligence in relation to the general conduct charged. See also Altman v. Devou, 18 N. P. (N. S.), 487, a decision of the Common Pleas Court of Hamilton County, affirmed by the court of appeals without opinion. See also Laithe v. McDonald, 7 Kans., 254.

We have no difficulty in reaching the conclusion that while the petition was subject to a motion to make more- definite and certain, the fact of its indefiniteness and uncertainty in charging negligence could not be a basis for directing a verdict for the defendant.

It is insisted, however, that the evidence offered by the plaintiff was not sufficient to take the case to the jury. . The evidence tended to show that the defendant and his employes carried the key to the rooms occupied and used in his business, and that water was supplied through a faucet to the sink on the sixth floor used by him; that on the morning of February 19, 19.17, certain glue pots and other utensils were found in the' sink; that soft, mushy glue had escaped therefrom and was in the bottom of the sink and had clogged the outlet; and that water had overflowed from the sink onto the floor and thus found its way down into the rooms of the plaintiff. Some evidence was introduced tending to show that on certain occasions, when there was danger of freezing, the janitor or elevator man, employed by the owner of the building, turned off the water in the hallway, and that when so shut off no water would flow through the faucet into the sink used by the defendant, and that on Saturday, February 17, it had not been shut off by the employes of the landlord. It is not apparent from the record how the defendant would know whether the landlord’s employes on the occasion under investigation would or would not believe that there was danger of freezing, or whether they would or would not shut off the water in the block; or -how the failure to do so would excuse the defendant for leaving the faucet in the sink open from Saturday afternoon until Monday morning, if he did do so. Manifestly the duty rested on the defendant himself to use ordinary care in closing the faucet or preventing obstructions in the sink used by him. ¥e have no doubt that sufficient evidence was offered to require that the case should have been submitted to the jury, and for error of the court in directing a verdict for the defendant the judgment will be reversed and the cause remanded for new trial.

Kinkade and Chittenden, JJ., concur.


source: Caselaw Access Project

author: Dunlap, J.

license: Public Domain

text:
    OCCUPATIONAL DISEASE.
    Court of Appeals for Cuyahoga County.
    Industrial Commission of Ohio v. McManigal.
    Decided, June 13, 1919.

      Employee Breathes Poisonous Fumes While at Worh — Pneumonia Results with Fatal Results — Widow not Entitled to Compensation.

    Where an employee in the course of his employment is compelled to breathe poisonous gases and as a result thereof develops pneumonia causing his death, such does not constitute an “occupational disease.”

      Samuel Doerfler and B. A. Baslci/n, for plaintiff in error.

      John A. Cline, contra.
   Dunlap, J.

Heard on error.

Hugh McManigal, the plaintiff’s decedent, was an electrical worker in the employ of the F. M. Grant Co. of Cleveland, and in February, 1917, with other workmen, was engaged in installing electric wires and conduits in a new factory building, partly completed, and owned by the Peerless Automobile Co. of Cleveland.

The building had a gabled roof and ceiling and was heated by open stoves or salamanders, between thirty and fifty in all, burning coke, and throwing off carbon-monoxide and carbon dioxide gases.

The electrical conduits were being attached to and along certain iron beams in the roof, and McManigal was required to work close to the ceiling, suspending on a temporary scaffold.

The air in the building was so contaminated with gas that workmen experienced therefrom a feeling of suffocation, headache, dizziness and a soreness in the chest and eyes, and were compelled to go outside for air about every half-hour. At the end of the day’s labor workmen also experienced from these gases a listless feeling.

The evidence shows that McManigal, at his work on the beams near the ceiling, breathed in these gases for live days, and was caused considerable anoyance; likewise was compelled to frequently leave his woi’k and come down for fresh air. He was seen to cough frequently and hold his chest as though in pain.

On the evening of February 24, 1917, he was taken sick with, chills and fever, but arose the next morning and worked all that day, which was Sunday. On Sunday evening he again suffered from a fever, but nevertheless worked the following day, which was Monday. On Monday evening, being no better, and quite sick, his wife called a physician and he was found to be suffering from pneumonia, from which he died on March 4, 1917, leaving a widow and two children.

The F. M. Grant Co. was insured under the Workmen’s Compensation Act, and McManigal’s -widow made application to the Industrial Commission for compensation, basing her claim on the ground that Hugh McManigal’s death was caused.by breathing in the gas fumes at the plant of the Peerless Automobile Co., which produced pneumonia, the immediate cause of his death.

The commission, however, denied her claim, and she thereupon filed a petition in the common pleas court, and the case proceeded to trial, with a verdict in her favor.

We think that the case as here stated does not show a case of occupational disease, but does show that the decedent came to his death by accidental causes, and upon the. authority of Industrial Commission v. Roth, 98 Ohio St., 34 (120 N. E., 172), the judgment in favor of plaintiff will be affirmed.

Judgment affirmed.

Vickery and Sayre, JJ., concur.


author: Hamilton, J.

text:
    STATUS OF ACTION BY ALIEN ENEMY.
    Court of Appeals for Hamilton County.
    Hirlinger v. Zander, Exrx., et al.
    Decided, June 30, 1919.

      Aliens — Effect on a Pending Suit of the Plaintiff Alien Becoming an Alien Enemy.

    A suit properly instituted in a state court by an alien against a citizen of this state will not be dismissed because plaintiff subsequently becomes an alien enemy by reason of a declaration of war between the United States and the government of which he is a subject, but such suit should be suspended during the continuance of the war by continuing the case from term to term until the declaration of peace.
    Motion to dismiss petition in error.

      Poivell <& Smiley, for plaintiff in error.

      Galvin (& Boner and Spangenberg & Spangenberg, for defendants in error.
   Hamilton, J.

Heard on error.

This action was originally filed in the Court of Common Pleas of Hamilton County on February 23, 1917, prior to the declaration of the state of war between the United States and Germany, and the case was pending at the time of the declaration of war. No further proceedings were had in that court until October 4, 1918, when the defendants filed a motion to dismiss the petition, basing their motion on the fact that the plaintiff was an enemy alien, residing in the German Empire. The state of war was declared between the United States and the German Empire April, 1917. Upon consideration of the motion, the court of common pleas sustained the same and dismissed the action at plaintiff’s cost.

The reasons set forth in the motion for dismissal of the petition in error are: first, because the plaintiff in error has no standing or right in law to institute such proceedings or any proceedings in this court, inasmuch as said plaintiff in error is an enemy alien residing in Germany; second, because said proceeding in error was instituted by the attorney claiming to be her counsel without authority obtained from her, or any other person acting in her behalf; third, because such owner of attorney, if any existed, was revoked by the declaration of war, wherefore Attorney Powell is without legal power to represert plaintiff in error before this court, or subject her to its jurisdiction; and, fourth, because the petition in error does not raise any questions which would otherwise invest this court with jurisdiction to review the proceedings in error.

The presentation in the briefs of counsel on motion to dismiss involves all the questions that might be presented on the merits of the case, and the determination of the questions on the motion will determine the merits of the case.

The first question which we wall consider is: Did the trial court err in dismissing the petition and rendering judgment for costs against plaintiff? Defendants in error rely upon the act of Congress entitled “Trading with the Enemy Act,” and the amendments thereto, which, among other things, provides as follows:

“Nothing in this act shall be deemed to authorize the prosecution of any suit or action at law or in equity in any court within the United States by an enemy or ally of enemy prior to the end of the war, except ks provided in section ten hereof.”

Section 10 relates solely to patent rights, trade-marks and copyright matter.

The suit was filed in the common pleas court by an alien against citizens of the United States prior, to the declaration of war between the United States and Germany and was pending at the time of the declaration of war. These facts bring the case clearly within the rule laid down in the decision of Spear, J, in the case of Plettenberg, Holthaus & Co. v. I. J. Kalman & Co., 241 Fed., 605. The syllabus of that case is as follows:

“A suit, properly instituted in a federal court by an alien against a citizen of the United States, will not be dismissed because plaintiff subsequently becomes an alien enemy, by reason of the declaration of war between the United States and the government of which he is a subject, but may be suspended on motion of defendant during the continuance of the war.”

It is well settled that our courts are open to alien enemies residing here during the continuance of the war. Nyitray v. McAlonan, 27 C. C. (N. S.), 545, and cases there cited. It is also well settled that an alien enemy residing in an enemy country could not properly institute a suit against a citizen of the United States, during the continuance of the war. Porter v. Freudenberg (1915), 1 K. B. 857, and cases therein cited.

"The plaintiff in error, a German subject, sued to set aside a will of a deceased relative, a resident of this country. She brought her action and it was pending before the German government was at war with the United States. There are strong legal inhibitions against the commencement or maintenance during the war of a suit or action by an alien enemy, the inhibition being provided for by the act entitled “Trading with the Enemy Act,” above referred to. The reason for this is that if the alien enemy through the action should recover property it might add to the resources of the power of which he is subject, then at war with this country, in whose court he seeks redress. The inhibition is, however, co-extensive only with the war. It does not abate an action or suit begun while the courts are open to aliens. The law of the land extends judicial power to controversies between aliens and citizens of the United States. The action instituted before war was declared was properly brought. At the time óf the institution of the suit plaintiff was' not an enemy alien, but afterwards became such.

In the case of Watts, Watts & Co. Ltd. v. Unione Austriaca di Navigazione, 248 U. S., 9, the court say at page 22 of the opinion:d

“Under these circumstances, we are of opinion that the decree dismissing the libel should be set aside and the case remanded to the District Court for further proceedings, but that no action should be taken there (except such, if any, as may be required to preserve the security and the rights of the parties in statu quo) until, by reason of tbe restoration of peace between the United States and Austria-Hungary, or otherwise, it may become possible. for the respondent to present its defense adequately.”

• Our conclusion, therefore, is that the action should not have been dismissed by the trial court, but merely suspended during hostilities by continuing the case from term to term until the declaration of peace.

The objection on the ground that the attorney was without authority to prosecute this proceeding in error is disposed of by the holding in Porter v. Freudenberg, and in the Watts case, supra, where the exception'is made that no further proceedings should be taken by the lower court during the continuance of hostilities “except such, if any, as may be required to preserve the security and the rights of the parties in slatu quo” until the restoration of peace.

In the case of Pennywit v. Foote, 27 Ohio St., 600 (22 Am. Rep., 340), the court say, at page 631:

“Numerous cases may be cited to show that agencies in private affairs, relating to property of an alien enemy, within the agent’s country, so far as their acts are not in violation of the non-intercourse regulations, and are not for the benefit of his principal, or protection of his property, are not revoked. We have been referred to none, however, showing that such agencies extend beyond the protection and care of his principal’s property and interests, to the creating new obligations. The attorney in this case might well have continued his employment, for the purpose of saving the rights of his clients; but it can harly be claimed that it was within the scope of his employment to waive his clients’ right to have the action suspended, and; by his appearance, confer a power upon the court, which otherwise it did not possess, to bind them by a judgment, when war made it im-. possible for him to have a day in court.”

The original suit was filed by counsel who now file this petition in error, and it was not only their right to file the petition in error, to protect the interest of their client against a dismissal of the action, but it was their duty to do so. While their authority to act is limited to such acts as may be required to secure the rights of the plaintiff in error and maintain a statu quo with reference to the suit, the proceeding in error here does no more than that. For the same reason the plaintiff in error had the right and standing in law to institute this error proceeding, but for the sole purpose of maintaining her suit in statu quo in the trial court pending the continuance of hostilities.

For the reasons above stated the motion to dismiss the petition in error will be overruled.

The judgment of the trial court will be reversed, the judg.ment of dismissal set aside, and the trial court instructed to suspend the action until the conclusion of peace between the United States and Oermany.

Judgment accordingly.

¡8'hohl, J. concurs. Cushing, J., not participating.


text:
    DUPLICITY OF NAMES AS AFFECTING TITLE.
    Court of Appeals for Cuyahoga County.
    Novogroder et al v. Di Paola et al.
    Decided, July 7, 1919.

      Title — Clouded by Duplicity of Names — Specific Performance Denied and Contract for Purchase and Sale Canceled.

    Two names were used by an owner of real estate, one as grantee of the premises in question and the other as vendor and grantor.

      Held: Such duplicity of names constitutes such a cloud upon the title that the’ owner will be refused specific performance of a contract to sell such premises, where the contract called for a title free from clouds.

      Scott, Bissell & Waterworth, for plaintiffs.

      B. D. Nicola, contra.
    Heard on appeal.
   Dunlap, J.

This cause is here upon appeal. The suit as originally started was for an injunction to restrain the recording of deeds and asking for a cancellation of a certain contract for the transfer of lands. It resolves itself by virtue of the pleadings into a suit for specific performance, and we shall here treat the ease as such a suit, the cross-petition of the defendants, Santo Di Paola and Angelina Di Paola, becoming virtually the petition in the case.

It will be sufficient for the purposes of this opinion to state that the answer to this cross-petition sets up as a defense that the Di Paolas are unable to carry out the terms of the contract in the respect that they are unable, to comply with that provision of the contract which required the furnishing of a certificate of title showing the property free from encumbrances, liens and clouds, excepting certain specified mortgages.

The contention of Novogroder that a certain lease, stands as a cloud upon the title, or did so stand at the time he filed his petition, is, we think, not well taken. Its cancellation was secured, as we. think, within the time provided by the contract, with the extensions agreed upon, and this cloud upon the title was entirely removed before the filing of the cross-petition seeking specific performance. It had disappeared as completely as had the liens of certain judgments, which also required similar cancellation before they ceased to be clouds. While in our opinion this canceled lease gives rise to no bar to the granting of relief which a court of equity would be unable to pass, yet we do find a bar to the granting of this relief in another feature of this cause.

Di Paola, as the evidence shows, is a very illiterate man. One of his properties, which, by this contract, he was to exchange, was bought by him several years ago. lie could not write his own name. He had learned from some one to write a very simple name, the name of “D. Sam,” and finding it a convenient one he adopted that name for his business dealings, and when he bought this property took it in the name of “D. Sam.” Nothing of this kind, however, showing the identity of D. Sam and Di Paola, appears upon the court or other records of this county. Later, he used his own name, Di Paola. The contract is drawn in the name of Di Paola without revealing that part of his property is in the name of D. Sam. Naturally, the abstract company was unable to certify that the property was in the name of Di Paola when it was in the name D. Sam, and an attempt was made to meet this difficulty by the drawing of a deed in which the name of the grantor appears as “Di Paola, sometimes known as D. Sam,” the deed being signed “Di Paola.”

In this shape the deeds from Di Paola to Novogroder were placed in escrow awaiting the time that the abstract company could certify the title to be in Di Paola, free and clear of all encumbrances, liens and clouds whatsoever, etc. While the trusted attorney for both parties knew that D. Sam and Di Paola were one and the same person, and was doubtless prepared to establish this fact in a court of equity, can it be said that this fact, unestablished by any court and not shown by any record at the time this cross-petition for specific performance was filed, did not constitute a cloud upon the title? It may be granted that the attorney who was entrusted with this work by both parties knew the fact, but his mere recital in the deed does not establish the fact. Under this situation the abstract company, as we have stated, would have found it impossible to certify this property in the name of Di Paola. Unquestionably a.cloud here existed which has not been removed up to this day. If removed at all, it has only been by virtue of the evidence in the ease as heard by this court. Bearing in mind that this suit was not brought for the purpose of quieting title or removing clouds, and that the equities of this case are to be determined as of the date of the filing of this suit, or at least as of the date of the answer and cross-petition asking for specific performance, have the Di Paolas done sufficient in the way of tendering deeds free from clouds to entitle them to specific performance ?

This contract was peculiarly worded; but it is not the province of the court to make contracts, but to enforce them. It is true that Novogroder may be captious, and his lawyers and his present counsel may be hypercritical, but if he contracted for a cloudless title lie has a right to have a cloudless title. “D. Sám” looms as a cloud upon the horizon. Di Paola can not, by his mere word that he is D. Sam, contained in the deed, remove that cloud.

Such holding by a court of equity would be the establishment of a dangerous precedent, the dangers of which should be apparent and need not be pointed out. The grantee of property under this contract does not have to take such a deed simply because it is tendered. It is true no one rises up to claim the property as “D. Sam.” It is true that in this case Di Paola swore that he was “D. Sam,” but this only serves to accentuate the fact that this use of a name- is a cloud upon this title, because it required evidence in a court to show that Di Paola and D. Sam were one and the same individual. The distinction between a cloud upon title, and an encumbrance to title must at-all times be borne in mind. Thus, some of the definitions of a cloud upon title are as follows:

“A cloud upon title is a title, or incumbrance, apparently valid, but in fact invalid.” Bissell & Adams v. Kellogg, 60 Barb. (N. Y.), 617, 629; Teal v. Collins, 9 Ore., 89, 92, and Goodkind v. Bartlett, 136 Ill., 18, 21 (26 N. E., 387).
"A cloud upon one’s title is something which shows prima facie some right of a third person to it.” Waterbury Savings Bank v. Lawler, 46 Conn., 243, 245.
“A cloud upon a title is but an apparent defect * * * the density of the cloud can make no difference in the right to have it removed. Anything of this kind that has a tendency, even in a slight degree, to cast doubt upon the owner’s title, and to stand in the way of a full and free exercise of his own. ership, is * * * a cloud upon his title which the law should recognize and remove.” Whitney v. Port Huron, 88 Mich., 268, 272 (50 N. W., 316).
“A cloud on title is a title or encumbrance apparently valid, but in truth invalid. The test is: If an action should be brought based on the claim shown by the cloud, would the owner of the property have to offer evidence to defeat the claim?” Haggart & McMasters v. Chapman & Dewey Land Co., 77 Ark., 527 (92 S. W., 792; 7 Ann. Cas., 333); Pixley v. Huggins, 15 Cal., 127, and Dailey v. Koepple, 164 Ala., 317 (51 So., 348).

Where extrinsic facts are required to show invalidity, a cloud on title exists. Allott v. American Strawboard Co., 237 Ill., 55 (86 N. E., 685).

In our opinion the situation presented by the ease at bar discloses a cloud if the authorities which we have here quoted shall have weight in the consideration of this case. If this suit were based on a contract requiring- simply a marketable title, the question which we would have to solve would be different. "We do not feel like forcing this title on to the plaintiff in this ease by the exercise of the equitable power of the court. We do not think we ought to force upon him the possible necessity of defending this title, and perhaps establishing at some future time that Di Paola and D. Sam are one and the same person. We think that when Di Paolas filed their answer and cross-petition asking for specific performance, such a condition existed that Novogroder had a right to refuse this title because of the existence of a cloud thereon, which was not removed, and because the deed tendered was not in accord with the contract.

For this reason specific performance will have to be refused and the prayer of the petition asking for a cancellation of the contract will be granted, the defendants to pay the costs.

Judgment for plaintiffs.

Washburn and Vickery, JJ., concur.


author: Shoi-il, J.

text:
    TRANSACTIONS BETWEEN CORPORATIONS HAVING COMMON BOARDS OF DIRECTORS.
    Court of Appeals for Lucas County.
    (Shohl, P. J., Hamilton and Cushing, 'JJ., of the First District, sitting by designation.)
    Truman v. Coghlin Mach. & Supply Co. et al.
    Decided, June 30, 1919.

      Corporations — Dealings Between, Where Under Control of the Same Individuals — Subject to Scrutiny and Must be Based on Good Faith —Fee to Attorney of Stockholder.

    1. Directors of a corporation must deal with it in the utmost good faith, and when two corporations have a majority of directors in common, transactions between them are subject to scrutiny and are sustained only if they are fair and made in good faith.
    2. Such transactions are not illegal i£ the terms are fair.
    3. When a stockholder brings suit on behalf of the corporation, and thereby brings a fund to it, the court may order his attorney fees paid from such fund.

      Rupert Holland and John O. Zabel, for plaintiff.

      Fritsche, Kruse & Winchester and Alex. L. Smith, for defendants.
   Shoi-il, J.

Heard on appeal.

This case is here on appeal. Plaintiff, a stockholder in The Francis Machinery Company, brought this action on its behalf against the Coghlin Machinery & Supply Co., and William Coghlan and James A. Kirkby, its principal officers. Truman originally had a one-half interest in the Toledo Auto Tool Co'. Defendant Coghlin was president, general manager, treasurer and the chief stockholder of the Coghlin Machinery & Supply Co., a corporation engaged in selling tools and supplies. Kirkby was also an officer, and they and their wives 'were all the stockholders. Among their customers was the Foster Machine Co. of Elkhart, Indiana. In 1915, Mr. Coghlin was at Elkhart, when the Foster Machine Co. wanted to have him manufacture for them certain box tools which they needed, stating that they were willing to pay 87% per cent, of their list price. Coghlin then returned to Toledo and took the matter up with Truman and others. There is a conflict of testimony as to the precise agreement between them. The court finds that in substance there was a verbal contract between the Coghlin and Truman companies for 100 of these box tools.

Truman was associated with one Rakestraw, and thereafter Coghlin acquired Rakestraw’s interest in the Auto Tool Co. Truman then sold him 10 shares more, 5 of which he gave to Kirkby, so that the plaintiff had .40 per cent, of the stock, Kirkby 5 per cent., and Coghlin, 55 per cent.

The Auto Tool Co. was annoyed by claims that were being made against it, so it was decided to incorporate a new company. Accordingly the Francis Machinery Co. was incorporated under the laws of Ohio, and it purchased all the assets of the Toledo Auto Tool Co., which ceased to do business. There is nothing in the corporate records of the Francis Machinery Co. that establishes that it assumed the obligation of the Auto Tool Co., in respect to the agreement to manufacture the box tools for the Coghlin Company. Coghlin became president, general manager and treasurer of the Francis Machinery Co., as well as director, elected a majority of the directors, and was thus the controlling factor in that concern as well as in the Coghlin Company. The business was carried on for eight months and tools were manufactured under the direction of Truman, the plaintiff, who was a practical machine tool manufacturer. They were taken to the Coghlin company and billed to it on the basis of the original figures given by Truman to Coghlin at the outset of the whole transaction, about January 12, 1916. Truman received a drawing account of $31.25 a week. The company made certain- profits, aggregating about $6,000, which were declared in dividends. The Coghlin company, however, was making large profits, which the record shows aggregated over $27,000, by the sale of the product to the Foster company and others. "When Truman learned of the large profits that were being made, he demanded that the Francis Machinery Co. be given an accounting for them, which was denied.

A chattel mortgage in the sum of $5,398.11 was given by the defendants for the Francis Machinery Co. to the Coghlin Machinery & Supply Co. to secure the purchase price of certain machinery. They then procured the ratification of this action by the Francis company through their control of it. Ultimately a sale was had and the Coghlin company bought in the mortgaged property for $3,000.

Plaintiff made due demand upon the directors of the Francis Machinery Co., and, failing to secure corporate action, brought suit on its behalf.

It is elementary that the directors owe their corporations the duty of dealing with them in the utmost good faith. (Thomas v. Matthews, 94 Ohio St., 32, 43.) And where two corporations have a majority of their directors in common, transactions between them are subject to scrutiny, and are sustained only if they are fair and made in good faith. McGourkey v. Toledo & O. C. Ry., 146 U. S., 536, 552 (36 L. Ed., 1079; 13 Sup. Ct., 170); Wardell v. Railroad Co., 103 U. S., 651, 658 (26 L. Ed., 509); 3 Cook, Corporations (7 Ed.), Sec. 658, and 2 Thompson, Corporations (2 Ed.), Sec. 1242. See also 2 Machen, Corporations, Secs. 1563-1606.

The dominant position which the director William Coghlin occupied toward both of the corporations imposed upon him the obligation to see that the Francis Machinery Co. was treated fairly in.the dealings with his other company.

It is true that at the time the original contract was made between the Coghlin company and the Toledo Auto Tool Co., he had no connection with the latter. However, most of the merchandise was sold after he had acquired his interest and had become a director in the Francis company. That corporation was intended to be and was a distinct legal entity from the Auto Tool Company, the assets of which it purchased. So far as the record shows it did not assume its obligations. -If it did assume the obligation to fulfill the contract, it was only by virtue of some action taken after Coghlin acquired control and when his duty to protect it had already arisen by operation of law. There is no foundation whatever for a claim that the Francis company was obligated to sell any tools after the 100 of each type called for by the oral contract of the Auto Tool company. As to all later sales it stands admitted that Coghlin controlled both parties.

Plaintiff contends that it is entitled to all the profits made. As to the $4,990 worth of tools delivered by the Toledo Auto Tool Co. prior to April 17, 1916, when the Francis Machinery Co. began to do business, plaintiff is not entitled to relief. Furthermore, plaintiff’s contention overlooks the fact that it was the Coghlin Machinery & Supply Co. that procured the agreement with the customer and carried out all negotiations with it. The transactions were not sales by the Francis Machinery Co. to the Foster Machine Co. but were purchases by the Coghlin Machinery & Supply Co. of goods to be sold at a profit to the Foster company. There is nothing necessarily illegal in a purchase by the Coghlin Machinery & Supply Co. from the Francis Machinery Co., provided that the prices were fair.

We are of opinion therefore, that the Coghlin Machinery & Supply Co. is not without right with respect to the profits that accrued in the transaction. Upon consideration of all the evidence, facts and circumstances, the court finds that the Coghlin Machinery & Supply Co. and the Francis Machinery Co. are each entitled to one-half of the profits accruing out of the business in question after April 17, 1916. It follows, therefore, that, at the time the chattel mortgage was given, The Francis Machinery Co. was entitled to substantial credits, which had not been allowed it, and that the mortgage and sale pursuant thereto should be set aside.

Defendants have stated their willingness to account for the value of everything which was realized out of the liquidation of the Francis Machinery Co., and when this is carried out the proper result will be accomplished.

The plaintiff, therefore, is entitled to an accounting between the Francis Machinery Co. and the Coghlin Machinery & Supply Co. to ascertain the amount of profit made by both concerns in their transactions. One-half of the profits will be awarded to each.

hi cases of this kind, plaintiff having procured a fund for the Francis Machinery Co., it is proper that an attorney fee should be allowed him to defray his expenses of litigation, which said fee should be paid by the Francis Machinery Co. (Cook Corporations, Sees. 748, 879.) The court will reserve jurisdiction to fix the amount on further hearing.

In view of the fullness of the evidence in respect to the profits made, if counsel can arrive at an agreement in respect to the results, it will not be necessary to appoint a master to take an accounting. If counsel are unable to agree, each side may present such entry as accords with its views, based upon this opinion.

Judgment accordingly.

Hamilton and Cushing, JJ., concur.


author: Richards, J.

text:
    AS TO THE FILING AND USE OF DEPOSITIONS.
    Court of Appeals for Lucas County.
    Currier v. Toledo (City).
    Decided, December 16, 1918.

      Depositions — Duty of Officer Talcing — Available for Use of Either Party, Subject to Competency and Relevancy.

    By virtue of the provisions of Section 11538, G. C., the officer before whom a deposition is taken must transmit the same to the clerk of court, and the deposition becomes when taken, whether filed or not, an official document under control of the court and may be used by either party according to its competency or relevancy.

      Marion W. Baco'me, for plaintiff in error.

      Ralph Emery, Director of Law, and Charles T. Laivton, Assistant Director of Law, contra.
   Richards, J.

Heard on error.

The plaintiff, Catherine Currier, brought this action against the city of Toledo to recover damages for personal injuries claimed to have been suffered by her by reason of a defect in a sidewalk. The defendant duly served notice to take plaintiff’s deposition and the same was taken before a notary public in the city, the plaintiff appearing not only in person, but by counsel, who, after she had been examined by counsel for the city, also propounded questions, which were answered by her. It is not very clearly shown whether the notary was paid his fees for taking the deposition, but after the same was transcribed he filed the same with the director of law of the city. Having voluntarily delivered the same to counsel for the city it is unimportant so far as this case is concerned whether his fees were paid or not. The deposition was never filed in the common pleas court, where the action was pending. Some time after the deposition was taken plaintiff died, and an administrator was appointed and the action revived in his name. Counsel for plaintiff on learning that the deposition had not been filed in court proceeded by various motions in an attempt to procure an order of the court requiring the same to be done; but his applications were overruled. Thereupon the action came on for trial and plaintiff was not permitted to require production of the deposition, nor to obtain an inspection of the same, nor to prove its contents other than in the general way of a statement that it tended to substantiate the right of the plaintiff to a recovery. It seems that at the time of the injury of Catherine Currier she was the only one present, and perhaps the only one whose testimony would be valuable in showing the circumstances under which she was injured. The trial court rendered a judgment in favor of the defendant and this proceeding in error is brought to secure a reversal of the same.

The city contends that as the deposition was taken under a notice served by it, and as the deposition was never filed, it is a private paper belonging to the city and not under the control of the court. We can not assent to. this contention. By the provisions of Section 11538, G. C., the officer before whom a deposition is taken is required to transmit the same to the clerk of the court where the action is pending, and in the performance of his uuty the notary who took this deposition should have filed the same in the court of common pleas. Having delivered the same to counsel for defendant the document still remained an official one and under the control of the court. The rule is so stated in various textbooks and authorities, and, indeed, we know of no authority permitting the party who causes a deposition to be taken to retain the same from the files in the absence of a statute authorizing such action. We call attention to 13 Cyc., 963, where it is said that neither the commissioners nor the parties have the right to retain depositions. The rule is stated as follows in 6 Encyclopedia of Pleading and Practice, 632:

“The officer before whom a deposition is taken is not the agent of either party, but must act for all parties alike, being the officer of the court, and when the deposition is regularly taken it is for the use of either party according to its competency and relevancy.”

See also 4 Encyclopedia of Evidence, 476.

The question was directly before the court in First Nat. Bank v. Forest, 44 Fed.; 246, in which case a decision was rendered by Shiras, J., fully considering and discussing the contentions of counsel on both sides and reaching the conclusion that a deposition when taken is not under the control of the party at whose instance it was taken and that an order should issue requiring that it be filed in court. The officer before whom a deposition is taken is acting as an officer of the court and is supposed to be impartial as between the parties. The same ruling is made in a case entitled In re Rindskopf, 24 Fed., 542; in Mott Iron Works v. Standard Mfg. Co., 48 Fed., 345; and in Bennett v. Williams, 57 Pa. St., 404.

The contentions made by the city have undoubtely been made in good faith and we have no doubt that counsel on learning the construction placed by the court on the .Ohio statute will be glad to’comply with the ruling and file the deposition in court.

The trial court was in error in holding that the deposition was under the control of the party who had caused the same to be taken.

Judgment reversed and cause remanded for further proceedings.

Chittenden and Kinkade, JJ., concur.


text:
    EFFECT OF RELEASE FROM INJURED MAN ON ACTION FOR THE INJURIES SUSTAINED.
    Court of Appeals for Lucas County.
    (Shohl, P. J., Hamilton and Cushing, JJ., of the First District, sitting by designation.)
    Affield v. Paige Dairy Co.

    Decided, July 13, 1919.

      Actions for Personal Injuries — Void Release Without Effect — Voidable Release Must be Bet Aside Before Action for Injuries in, Brought— Fraudulent Application for Workmen’s Compensation — Whether Applicant Possessed Mental Capacity a Question for the Jury.

      1. Where a release of a cause of action for damages for personal injuries is void, it is not a bar to such an action, and the plaintiff may, if it is set up by answer as a bar to his right of action, by reply aver the facts that make it void; but if it is not void, but only voidable, he can not maintain his action until such release is set aside.
    2. A fraudulent and void application for compensation from the state insurance fund, executed by one employee while mentally incapacitated and filed without his knowledge or consent, does not bind such employee or confer jurisdiction upon the industrial commission.
    3. In an action brought under the provisions of Section 1465-76, General Code, the question of mental capacity to execute an application for compensation from the state insurance fund is one of fact for the jury under proper instructions from the court. (Perry v. O'Neil & Co., 78 Ohio St., 200, and Broion v. Kiechler Mfg. Co., 98 Ohio St., 440, approved and followed.)
    Heard on error.

      Charles A. Thatcher, for plaintiy in error.

      Marshall <& Fraser and Stephen Brophy, for defendant in error.

       Motion for an order directing the 'Court of Appeals to certify its record in this case overruled by the Supreme Court, October 21, 1919.

   Hamilton, J.

This is an error proceeding seeking to reverse and set aside a judgment of the Court of Common Pleas of Lucas County, Ohio, dismissing the plaintiff’s petition.

A brief history of the case and the different steps taken is necessary for an understanding of the issues involved.

Frederick H, Affield, the plaintiff in error, was employed as a workman in the automobile repair department of the defendant. 'While engaged as such workman he was injured in an elevator accident in the establishment of the defendant, on August 4, 1917.

The defendant company employed more than five men and paid a premium to the state insurance fund. A few days after the injury an application for compensation out of the state insurance fund was signed by Affield and filed with the Industrial Commission of Ohio. On January 10, 1918, following, Affield filed an application with the Industrial Commission for leave to withdraw his application for compensation, claiming that he had no knowledge of the signing and the filing of the application; that he ivas not in a mental condition to understand what he was doing and that the signature had been fraudulently procured and was filed with the commission without his knowledge; and that he was without mental capacity to understand the application and its purport. Affidavits on the question were filed with the commission by both-the plaintiff and defendant, and the consideration of the commission resulted in a refusal to permit the plaintiff to withdraw his application, finding him to be mentally responsible at the time of the signing and filing. Affield, thereupon, appealed to the court of common pleas from the finding of the commission refusing permission to withdraw the application. The court held it was without jurisdiction in the premises and dismissed the -appeal. No further action was taken on the question o-f the withdrawal of the application, or on the finding of the court of common pleas dismissing the appeal for want of jurisdiction.

July 27, 1918, plaintiff, ignoring the application or any proceeding theretofore had, filed his petition in the Common Pleas Court of Lucas county claiming damages from the defendant company on account of the injuries claimed to have been received while in the employ of said company at their place of business, and averring the violation of the law in the maintenance of the elevator without proper safety devices, and in the failure to post notices of their having paid the premium in the state, insurance fund. The defendant company answered, and in their first defense set up the application by Affield for an allowance from the state insurance fund on account of his injuries, and all the proceedings relative to the application for leave to withdraw by Affield, claiming these proceedings and the application to be a bar to the prosecution of the suit in the common. pleas court. In the second defense they answered to the merits.

The plaintiff thereupon filed a reply, averring, among other things, that after receiving the severe injuries of which he complains in his petition he was removed to a hospital, and that while there confined an employee of the defendant whose name he is informed is 'William Michaelis called upon the plaintiff and told plaintiff that he wished to make a report of the fact that plaintiff had been injured; that said person did not tell plaintiff to whom this report was to be made and did not read said report to plaintiff; that at said time plaintiff was suffering great mental and physical distress because of the injuries which he received, and was not mentally capable of transacting business of any kind or character; and that said Michaelis wrote matters upoi a piece of paper, the nature and extent of which plaintiff does not know, and told plaintiff that it was simply a statement of the fact that he was injured, and induced plaintiff to sign his name to said paper.

The plaintiff further says that “his signature to said paper was procured fraudulently and by the substitution of another paper for the one which said Michaelis told plaintiff he was signing, and plaintiff is informed and believes and therefore avers that said paper which he so signed purports to be an application for compensation under the state insurance law; that his signature was procured to said paper for the purpose of deceiving and defrauding him out of his just rights, and that he did not know and had no means of knowing the contents of the same, and was misled, deceived and tricked into signing said paper; that the mind of plaintiff and the said Mdchaelis did not unite upon any agreement upon the part of the plaintiff to sign a paper purporting to be an application for compensation, and that the same is wholly null and void, and of no binding effect upon plaintiff.”

When the case was called for trial the defendant company moved the conrt that the cause be first tried and submitted to the court upon the first defense of the defendant’s answer, without the intervention of a jury, to which plaintiff objected. Thereupon, the court granted the defendant’s motion, to which plaintiff at the time excepted. Thereupon, the plaintiff moved that a jury be called to try this cause, which motion the court overruled, to which plaintiff at the time excepted.

The cause was submitted to the court upon the petition of plaintiff, the first defense of the answer, and the reply, without the intervention of a jury. Upon consideration, the court found Affield to be mentally competent when he made the application, and that by filing the same with the Industrial Commission he elected to take compensation out of the state insurance fund; that no fraud or deceit was practiced upon him and he was bound by his action so taken; and that the application for compensation is a bar and a defense to the present action. The court thereupon dismissed the petition. Motion by plaintiff for a new trial was overruled and exceptions noted, and the case is brought into this court for review both by appeal and error.

Plaintiff in error urges, as grounds for reversal, error of the court in hearing the cause on the petition, the first defense of the answer, and the reply, without the intervention of a jury; and that the finding of the court was against the weight of the evidence.

It is urged by the defendant in error that the action before the Industrial Commission finding the application properly executed and filed, and finding that Affield was mentally capable of executing and filing the paper, and that no fraud was praetieed upon him, was a final determination of the rights of the plaintiff, and in support of that proposition defendant in error cites Sec. 1465-90, O. C., which provides:

“The board shall have full power and authority to hear and determine all questions within its jurisdiction, and its decision thereon shall be final. ’ ’

Section 1465-76, G-. C., provides:

“Such injured employe * * * may, at his option, either claim compensation under this act or institute proceedings in the courts for his damage on account of such injury; and such employer shall not be liable for any injury to any employee * * * except as provided in this section; * * *.
“Every employee * * * who makes application for an award, or accepts compensation from an employer who elects, under See. 22 of this act, directly to pay such compensation waives his right to exercise his option to institute proceedings in any court, except as provided in Section 43 hereof ? ’

This action is not one of the exceptions in Section 43. The law is unambiguous and clear that if the plaintiff filed an application -with the Industrial Commission for an allowance from the state insurance fund he can not maintain this action. And it is further clear that to give the commission jurisdiction in the premises a valid application must be filed. If the commission had jurisdiction under the provisions of the law, its findings would be final. In his reply in this ease the plaintiff denies the signing and execution of the application, and denies the filing of the same, and avers the application was not read to him; that he was told it was a report of the injury; and that at the time he was suffering great mental and physical distress because of the injuries which he had received and that he was not mentally capable at the time of transacting business of any kind or character; that he did not know and had no means of knowing the contents of the application; and that his signature was procured thereto fraudulently and that the application is wholly null and void. These averments, if true, show the application to be void and of no effect, and such a paper filed with the Industrial Commission could not confer jurisdiction on the commission to take any •action in the premises, and could have no more binding effect on the plaintiff than if the application had not been made. This being true, the plaintiff had the right to maintain an independent action, ignoring wholly any proceeding before the Industrial Commission.

Finding the plaintiff to have the right to maintain an independent action, disregarding any proceeding before the Industrial Commission, the remaining question is, Did the common pleas court err in hearing the matter on the petition, the first defense of the answer, and the reply, involving the mental capacity of the plaintiff, without the intervention of a jury ? In the case of Perry v. O’Neil & Co., 78 Ohio St., 200, the first paragraph of the syllabus is:

“A release of a pause of action for damages for personal injuries, that is void, is not a bar to such an action, and the plaintiff may, if it is set up by answer as a bar to his right of action, by reply aver the facts that make it void; but if it is not void, but only voidable, he can not maintain his action until the release is set aside. ’ ’

The question then turns on the proposition as to whether or not the application was void or only voidable. While there are some averments in the reply which would tend to make the application only voidable, other averments would show the same to be absolutely void. The averments that the plaintiff did not know what he was signing, that he was without mental capacity to transact any business at the time of the signing of the application, are facts, which, if proven, would show the application not voidable, but void, and were proper averments, upon which the plaintiff was entitled to have the consideration of a jury. Tn the case of Brown v. Kiechler Mfg. Co., 98 Ohio St., 440, decided by the Supreme Court of Ohio the 19th day of March, 1918, the Supreme Court on reversing the Court of Appeals of Hamilton County, Ohio, held that the mental capacity of the plaintiff to contract at the time he signed the paper writing purporting to be a release, as set forth in the answer, is a question of fact, to be determined by a jury under proper instructions, citing the ease of Perry v. O’Neil & Co., supra, with approval, and remanded the cause to the Superior Court of Cincinnati, Ohio, for further proceedings and trial according to law.

We are of the opinion that the instant ease is clearly within the rules laid down in the cases of Perry v. O’Neil & Co., and Brown v. Kiechler Mfg. Co., supra, and that the trial court erred in hearing .and determining the case as it did, and for this reason the judgment is reversed, and the cause remanded for further proceedings and trial according to law.

Judgment reversed and cause remanded.

8'hohl and Cushing, JJ., concur.


author: Vickery, J.

text:
    QUESTION OF NEGLIGENCE WHEN AN INTOXICATED WOMAN WAS STRUCK BY A STREET CAR.
    Court of Appeals for Cuyahoga County.
    Cleveland Railway v. Nicholson.

    Decided, July, 1919.

      Negligence — Automobile Stalls on Street Railway Track — Intoxicated Woman Attempting, in the Darkness and Rain, to drank It — Is Struck by a Street Oar — Application of Doctrine of Last Chance— Contributory Negligence a Question for the Jury — Charge of Court.

    1. Every person is required to exercise ordinary care in the avoidance of danger, and voluntary intoxication is no excuse for failure to perform such obligation.
    2. Where in a street railway accident the injured party was prior to and at the time of such accident under the influence of liquor, it is a question for the jury whether or not such party under the circumstances exercised or was capable of exercising ordinary care.
    3. Where such party remains on the track in front of his or her automobile, with full knowledge of the approach of an electric car, such conduct constitutes contributory negligence on the part of the injured party and will bar a recovery.

      4. The doctrine oí the “last clear chance” applies only where a party saw or by the exercise of ordinary care could have seen the injured party in time to have prevented the accident.
    5. Where tne issue of contributory negligence is presented either by the pleadings or the evidence, or both, such issue should be submitted to the jury under proper instructions from the court.

      Squire, Sanders & Dem/psey, for plaintiff in error.

      Howell, Roberts & Duncan, for defendant in error.

      Motion for an order directing the Court of Appeals to certify its record in this case overruled by the 'Supreme Court, December 22,1919.

   Vickery, J.

This cause comes into this court on a petition in error to the Common Pleas Court of Cujmhoga County, to reverse a judgment in the sum of $2,000 obtained by Clara Nicholson against the Cleveland Railway Company. Various errors are alleged as reasons why such judgment should be reversed, but only three have been really urged in this court in oral argument; they are, first, the verdict is not supported by sufficient evidence; second, error in the charge of the court; and, third, the refusal of the court to charge as requested by the railway company.

The action arose in this way: Mrs. Nicholson, on the day of the injury, started out with a friend, Mrs. Garnhart, in a Ford automobile, to visit some friends on the west or south side of the city, and they stopped several times on their way at various saloons, where they drank whiskey and beer, and when they reached their destination they were regaled with more whiskey and beer. Eventually they started home, but it was after dark and was raining very hard. When they reached a point on Scranton avenue, on the south side of the city, the automobile became stalled on the tracks of the railway company. The record shows that one of the characteristics of. a Ford automobile is that when it is stalled, the electric lights go out. This automobile, not being equipped with oil lamps, then stood on the tracks in the midst of a heavy rain, at night, in total darkness, except what might have come from the street lamps, and just where the lamps were located and how much light they reflected. upon this particular spot is a matter of dispute. But while the automobile was in this position a Cleveland Railway ear turned on to Scranton avenue from Clark avenue, coming toward the place where the automobile was stalled, in the dark, and ran into it and smashed it somewhat, and the plaintiff, having alighted from the automobile in order to crank it, and being in front of it, was injured also, which accident, both to the automobile and to herself, resulted in the suit at bar and the judgment which is sought to be reversed.

Different minds might disagree as to whether the evidence was such as would warrant the verdict, and we might not be able to say that it was error in the trial court not to have granted the motion for a new trial, nor are we able to say that there was error in the general charge of the court. It is claimed that it was insidious and insinuating. If it was, it must have been in the tone of the voice of the trial judge, or else in the manner of emphasizing words, for the charge reads very well, and all the questions touched on were ably handled, and so we can not say that there was error in the general charge; but we think nevertheless the judgment must be reversed for the reasons which we now give.

After the general charge of the court the railway company by its counsel asked the court to give the following;

“1st. If you find that the plaintiff was immediately, prior to and at the time of the collision under the influence of liquor, it will be your duty to take that fact into consideration in determining whether the plaintiff exercised or was capable of exercising ordinary care under the circumstances, and if you find she did not exercise sueh care, or was not capable of doing so by reason of sueh intoxication, she was negligent, and if such negligence caused or contributed to cause a collision, your verdict must be for the defendant. ’ ’

It will be remembered that the evidence showed that the plaintiff had been drinking quite considerably in the afternoon, and there is evidence in the record to show that at the very time of the accident she showed evidence of at least partial intoxication, and we think under the circumstances this was a proper request, and the court not having taken care of that in his general charge, this request, or the substance oí it, should have been given, and it was error not to have done so.

“Every person is bound to an absolute duty of exercising his intelligence to discover and avoid dangers that may threaten him, and intoxication voluntarily produced can constitute no excuse for a failure fully to xierform this obligation. He is bound to exercise his intelligence and activity in full measure, and if it appears that from voluntary drunkenness he has deprived himself of capacity so to do, and that as a result he has suffered an injury, he will be denied legal redress therefor. * # * The question arising upon this issue is generally one for the jury’s determination. But evidence is always admissible to establish drunkenness at the time of the injury complained of, unless, indeed, it should be conceded or conclusively established that the injured person did everything for his protection that he could have done if sober. ’ ’ 20 Ruling Case Law, page 127, Section 107, and eases cited.

Now, as to the second request, which was as follows:

“The plaintiff admits that she knew the ear was coming, and yet remained in front of the machine where she claimed she was subsequently knocked down by the collision. The court charges you that if you find under these circumstances she was guilty of negligence in so remaining in that position, contributing directly to produce the collision, your verdict must be for the defendant on the question of injury to the plaintiff, and you shall, in that event, award no damages to plaintiff on account of personal .injuries. ’ ’

We think this request should likewise have been given, for it will appear from the record that the plaintiff admitted that she knew the street car was bearing down on her automobile, and notwithstanding that fact she remained in front of it, trying to crank it, when she had ample time to get into a place of safety and neglected so to do. It will be remembered that the doctrine of the last chance was invoked in this suit, and was charged by the court, and the verdict could be based on no other theory than that of the doctrine of last chance.

Now the doctrine of last chance could apply, if at all, only so far as injuries to her automobile were concerned, for, if the motorman did or should have seen the automobile standing on the track, there is no evidence that he did or could have seen the plaintiff in front of the automobile; and her admission and the evidence in the record plainly showed that she knew that the street car was coming’ down on her, and her apparent negligence in thus staying, she having ample time to get away and choosing to stay in a place of impending danger, surely amounted to a continuing act of negligence and the concurring cause of the injury to the extent of her personal injuries. As the petition only asked for $59 for injuries to her automobiLe, the greater or almost the entire amount of the verdict must have been for her personal injuries, which, under the record, the jury might have found were the result of her own hardihood and foolishness in staying in a place of danger. Therefore, this second request should have been given.

We understand that the court refused these requests on the theory that as the original answer did not plead contributory negligence the defendant was compelled upon order of the court to set up its grounds of claimed contributory negligence before it was permitted to introduce evidence to show any contributory negligence, and as neither of the grounds set up claiming contributory negligence were the ones called for to make these two requests proper, the court held that the railway company could not avail itself of 'them. We do not so understand the law. We understand the rule to be, as laid down in Rayland Coal Co. v. McFadden, 90 Ohio St., 183, 193, where the court say, in substance :

“But where the evidence shows that both parties are guilty of negligence which contributed to the injury even through the answer is a general denial, the court must properly charge on contributory negligence. ’ ’

We think the law of Ohio at the present time may be stated thus:

If contributory negligence is brought into the case, either by the pleadings, or by the evidence when that issue is not raised by the pleadings, contributory negligence must be submitted by the court to the jury under proper instructions from the court. Latham v. Columbus Ry. & Light Co., 8 N. P. (N. S.), 185; Dory v. Sebald, 15 N. P. (N. S.), 302; Cinicinnati, H. & D. Ry. v. Levy, 8 C. C. (N. S.), 353; Cincinnati Trac. Co. v. Forrest, 73 Ohio St., 1; Cincinnati Tract. Co. v. Stephens, 75 Ohio St., 171; Glass v. William Heffron Co., 86 Ohio St., 70; Behm v. Cincinnati, D. & T. Trac. Co., 86 Ohio St., 209, and Rayland Coal Co. v. McFadden, supra, and a number of decisions rendered by our own court.

An examination of these authorities will show the law. to be as stated above, and if the answer of the defendant only sets out some claims of contributory negligence, and the evidence shows more, surely if the rule be that if there is no pleading the defendant shall have the advantage of contributory negligence when the evidence brings it into the case, then defendant ought not be barred of the advantage of contributory negligence shown by the evidence if he has not 'been broad enough in his claims in the pleading; particularly must that be so when the court, against the will of a party, compels him to plead something, when under the authorities he might introduce the evidence though no pleading set it up.

Therefore, for failure to give these two requests after argument, or the substance of them, the general' charge not having covered the questions raised by these two requests, the case should be and is hereby reversed and remanded to the court of common pleas for further proceedings in accordance with law.

Judgment reversed and cause remanded.

Dunlap and Washburn, JJ., concur.


text:
    SPECIFIC PERFORMANCE OF CONTRACT TO SELL BEER.
    Court of Appeals for Lucas County.
    Welker v. City Brewing Co.
    Decided, February 24, 1919.

      Construction of Provision in Contract Rendering It Void if “the State Goes Dry” — When Siich Provision Became Effective.

    1. The words “In the event * * * tbe state of Ohio goes dry” used in a written contract executed in 1917 providing for the sale of beer at wholesale for a period of five years, and stipulating that the contract shall be void on the happening of the above event, will be construed to relate, not to the time the state prohibition amendment was adopted in 1918, but to the time the same was to become effective, to-wit, May 27, 1919.
    2. In such a case specific performance will lie to compel a compliance with the contract until the amendment rendered the traffic in intoxicating liquors Unlawful becomes effective.

      Hackett <& Lynch, for plaintiff.

      Graves & Stahl, for defendant.
   Richards, J.

Heard on appeal.

The parties to this litigation entered into a written contract on November 10, 1917, by the terms of which the plaintiff, who is operating a saloon in the city of Toledo, agreed to purchase from the defendant not less than 400 barrels of beer per year for a term of five years, the beer to be delivered at his place of business at $9.00 per barrel, and the defendant agreed to furnish the same to him. at the price stipulated and for the time named. The brewing company further agreed to install a suitable set of bar fixtures and to provide certain plumbing and partitions for Welker, all of which was to be paid for by the application on the indebtedness of $1.00 per barrel of beer delivered.

This action was brought for the purpose of compelling the specific performance of the contract during the time that intoxieating liquors may lawfully be sold in Ohio. The common pleas court rendered a decree in favor of the plaintiff, from which decree the defendant appealed to this court. The written contract contains the following clause:

“In the event Eudolph Welker loses his license, or the State of Ohio goes dry, this agreement is to be null and void.”

The parties entered upon the performance of the contract and the defendant delivered to the plaintiff, during the first year of the contract, 399 barrels of beer, pursuant to its terms, which was a substantial compliance for that year.

At the general election held in Ohio on November 5, 1918, there was submitted to the voters the question of adopting a constitutional amendment prohibiting the manufacture and sale of intoxicating liquors as a beverage in the state, and at this election a majority of the votes oast were in favor of such prohibition. By the provisions of the amendment so adopted the same was to become effective on May 27, 1919. The defendant contends that the language quoted from the contract, “In the event * * * the State of Ohio goes dry.” applies to the day of the general election when the electors of the state of Ohio voted in favor of the adoption of the prohibition amendment to the Constitution, while the plaintiff contends that the language quoted refers to the time that the amendment so adopted shall go into effect, which date will be May 27, 1919, and it thus comes about that the interpretation to be placed upon this language of the contract becomes of vital importance. The language “State of Ohio goes dry” is a common expression, often heard, and is an expressive slang phrase, but one not of strict legal accuracy. It can not, of course, be said that Ohio is now “dry,” azid it certainly will not legally beeozne so pz’ior to the, 27th of May, 1919. To use, before November 5, 1918, the phrase “if Ohio goes dry,” or to use now the expressiozz “that Ohio has gone dry, ’ ’ could only be interpreted as aziticipatery of the approaching drouth, which will not come before May 27, 1919. We think the laziguage used by the parties must be held to refer to the tizne when the state would become legally “dry,” and that will be the date when the azzzendment beeozzies effective. Our view on this interpretation is strengthened by the construction which the parties themselves put upon the language before any controversy arose as to its meaning. Beer was furnished by the defendant to the plaintiff under this contract up to the 7th of December, 1918, although it had become apparent, long before that date, that a majority of the voters in Ohio had voted in favor of the adoption of the prohibition amendment. The language used by the parties not being entirely free from ambiguity, the construction which they placed upon the expression used will be given great weight by the courts. 6 R. C. L., 852, Sec. 241; 9 Cyc., 588; Lentz v. Fritter, 92 Ohio St., 186, 194, and the Globe-Rutgers Fire Ins. Co. v. Sherwin-Williams Co., 23 C. C. (N. S.), 390.

In view, then, of the language used by the parties and the practical construction placed on the same by the parties themselves, we hold that the time intended and referred to in the contract is the date that the amendment to the constitution will become effective, to-wit, May 27, 1919.

Counsel for defendant insist, however, that the contract is one for the sale of a commodity which can be bought in the market and that such a contract will not be enforced by an order for specific performance. The general rule undoubtedly is that the terms of a contract to furnish ordinary chattels will not be enforced by specific performance, but to this rule there are numerous exceptions. In determining whether the contract at bar comes within the general rule, or within one of the exceptions thereto, attention must be given to the nature of the contract and the peculiar circumstances now existing. By a proclamation of the President of the United States the brewing of beer is now prevented, and the quantity now on hand can not be increased by further manufacture. It is evident that this quantity will constantly decrease between this date and the date when prohibition will become effective. The contract fixes the price at $9.00 per barrel, and the plaintiff is only able to buy at the present time by paying $15.00 or $16.00 per barrel, and the general principles of economies would seem to indicate that as the quantity of the commodity decreases the price may be expected to increase. The plaintiff is not able, at the present time, to supply Ills trade by beer purchased in the city of Toledo, but is able to do so, at the pi’ice of $15.00 or $16.00 per barrel, by purchasing the same in Milwaukee. Whether he can continue to so purchase from now on until the traffic shall become unlawful is not apparent, and it can not be shown what price would have to be paid between the present time and the date when prohibition shall become effective. In the event that plainti should bring an action for damages at the present time, it would be impossible to show the quantity .that he would need to supply his trade. The amount of his damages would be very difficult, if not impossible, of ascertainment, by reason of the peculiar conditions existing. In the event of the plaintiff’s inability to procure a supply it would naturally result that he would have to suspend business, and the damage resulting therefrom would be very difficult to assess. Under such circumstances specific performance will lie. The rule has been thus announced in the Equitable Gas Light Co. v. Baltimore Coal Tar & Mfg. Co., 63 Md., 285, which involved a contract for the supply of coal tar produced at the defendant’s works during a period of five years.

The rule was applied in Central Altagracia, Inc. v. Javierre & Gil, 3 Porto Rico Fed. Rep., 256, which case was one involving a contract to supply to a sugar manufacturing plant, cane growing on a nearby tract, the loss of which would cause the mill to close down; in Texas Co. v. Central Fuel Oil Co., 194 Fed. Rep., 1, where the litigation arose over a contract to deliver oil as produced from oil wells; and in Gloucester Isinglass & Glue Co. v. Russia Cement Co., 154 Mass., 92; (26 Am. St. 214.)

The general principle is clearly stated in 3 Pomeroy’s Equity Jurisprudence (4 Ed.), Sec. 1401 et seq.

It is evident that the contract in the case at bar and the peculiar circumstances existing when construed together constitute an exception to the general rule and that the case is one in which specific performance may lie.

Decree for plaintiff.

Chittenden, J., concurs.

Kinkade, J., dissents.


text:
    CONTROL OF THE PRACTICE OF MEDICINE.
    Court of Appeals for Summit County.
    Shaw v. State of Ohio.

    Decided, April 30, 1919.

      Constitutional Laio — Sections 1274-1, et seq, Providing for Registration for Limited Practice of Medicine and Surgery — Not an Unreasonable Exercise of the Police Power.

    Sections 1274-1 to 1274-7 General Code, relating to the practice of medicine in the limited branches, are not rendered unconstitutional as being an improper and unreasonable discrimination, or as being an unreasonable exercise of the police power, merely because Section 1288, General Code, provides that the laws relating to the practice of medicine and surgery shall not relate to an osteopath who passes an examination in anatomy,' physiology, obstetrics and diagnosis.

      Holloway & Chamberlain, for plaintiff in error.

      C. C. Boetsel, Prosecuting Attorney, and W. A. Spencer, Assistant Prosecuting Attorney, for defendant in error.

       Affirmed by the Supreme Court, Shaw v. State of Ohio, January 13, 1920.

   Dunlap, J.

Heard on error.

The plaintiff in error, Fred Shaw, was tried and convicted in the probate court of Summit county, on an affidavit and information charging him with unlawfully practicing medicine and surgery in the state of Ohio without having first obtained a certificate from the state medical board so to do. The judgment of the probate court was affirmed by the common pleas court on error proceedings instituted in that court, and the case brought here on error to review the judgment of the common pleas and probate courts.

The errors complained of in the brief and upon argument relate to the suffieiencey of the information, the claim being that it is defective in form and substance, that tbe trial court erred in overruling a motion to quash it, and also in overruling a de murrer to the same. The further claim is made that there was error in the refusal of the court to give certain requested charges before argument to the jury.

Some claim is made in argument that' the affidavit did not charge the crime with sufficient definitenesss to apprise the accused of the nature of the offense. With regard to this claim we are of the opinion that in this respect the affidavit is sufficient, and this claim must be disallowed.

The main contention is that the sections of the General Code relating to the control of the practice of medicine and surgery and the limited branches thereof, Secs. 1274-1 et seq. General Code, under which this conviction was had, are unconstitutional, or at least that no proper conviction can be had under them in the present ease. We shall not burden this opinion with a quotation of those statutes.

The bill of exceptions taken upon the trial and filed in this ease, does not contain the evidence adduced upon the trial. It is simply a statement to the effect that the state to maintain its action gave in evidence certain testimony tending to prove the matters therein set forth, that the defendant gave in evidence certain testimony tending to prove the issues raised by his plea of not guilty, and that at the conclusion of the evidence and before argument the defendant requested the court to give certain instructions in writing to the jury, not as a series, but as separate propositions of law. It then sets forth the instructions so requested. We therefore have no means of knowing whether the proof tended to show that plaintiff in error was engaged in the practice of one or more of the limited branches of medicine, whether it tended to show that he was engaged in the general practice, or as an osteopath. S‘o far as the bill of exceptions discloses, we only know that evidence was offered tending to prove the matters set forth in the information. Consequently we are forced to disregard the statement of the brief for plaintiff in error to the effect that he is an electropath, and therefore practicing one of the limited branches above referred to.

The argument of counsel for plaintiff in error upon the question of unconstitutionality seems to be directed from the point of view of one practicing one of these limited branches, and the claim is made that the requirements by way of examination for their practice are an unreasonable exercise of the police power of the state.

There seems to exist in the minds of counsel for both parties a slight misapprehension of the meaning and construction of the medical laws of Ohio. Thus, one of the principal arguments of plaintiff in error, and indeed, the principal argument is to the effect that because Section 1288, General Code, provides among other things that the laws relating to the practice of medicine and.surgery shall not relate to an osteopath who passes an examination in anotomy, physiology, obstetrics and diagnosis, the law relating to the practice of limited branches is unconstitutional, because of the fact that an examination on many other subjects is required for those desiring to practice what are •known as the limited branches, and, osteopathy being also a limited branch, an improper and unreasonable discrimination exists, rendering the law unconstitutional.

This argument is not sound and is not based upon a true premise. Osteopathy is not regarded by the statute, as one of the limited branches of medicine and surgery, but is regarded as purely and simply osteopathy, whatever that may be; nor is it true that the examination provided for applicants for a license to practice osteopathy, in Section 1288, General Code, above referred to, is the only examination required for that purpose. The examination required upon the subjects of anatomy, physiology, obstetrics and diagnosis, provided for in said section, is an examination given by the state medical board, but that examination is not given until after compliance with the provisions of the next section, Section 1289, which provides for a number of very high requirements upon the part of one desiring to practice osteopathy, including evidence of proper preliminary education and a certificate from an osteopathic examining committee to the effect that the applicant has passed a satisfactory examination in pathology, physiological chemistry, gynecology, minor surgery, osteopathic diagnosis, and the principles and practice of osteopathy. Provision is then made in the next section for the appointment of a state osteopathic examining committee, its organization, etc.

It is quite evident, therefore, that at the time of the passage of the original law, which was in 1902, what was known as the practice of osteopathy had gained considerable foothold in the state. Efforts had been made to prevent its practice, and some of its practitioners had been arrested as unlawfully practicing medicine and surgery under the then existing medical laws. The first of these cases to reach the Supreme Court was the case of State v. Liffring, 61 Ohio St., 39. It was then held that the practice of osteopathy did not come within the terms of the existing laws. The law was then amended by the Legislature, but the amendment thus made was held void by the Supreme Court in the case of State v. Gravett, 65 Ohio. St., 289, for the reason that four years of study were required for the practice of osteopathy, while a less time was required for study of those contemplating the regular practice of medicine and surgery. This was deemed by the Supreme Court as a diseimination and as sufficient reason for holding the amendment unconstitutional.

To meet this situation, the law of 1902 above referred to was enacted. An examination of the legislative records of that session of the Legislature will reveal the fact that at that session of the Legislature the osteopaths of Ohio caused to be introduced into the house of representatives a bill entirely divorcing thé respective practices of osteopathy and medicine, and providing for recognition of osteopathic methods of healing and the establishment of a state board of osteopathic examiners entirely separate and distinct from the state medical board. The osteopaths were desirous of obtaining legal recognition to prevent unauthorized and uneducated quacks from assuming to practice osteopathy and also to prevent interference by the medical ■ authorities of the state with what they considered the legitimate practice of their profession.

There was much objection to this proposed law, some of it no doubt being prompted by the more or less selfish desires of the medical practitioners, but the solid and enduring argument against the passage of this and all similar laws is and must be that encouragement should not be given to a separation or division of the healing art into schools, to the setting up of one against the other, and to the creation of rivalry among them; that every encouragement ought to be given to an exactly opposite tendency, to-wit, the gathering together under the general head of medicine of all the knowledge of the world concerning the healing art; and that when some discovery of importance is made in this field it should not instantly justify the birth of a new school of healing or therapy, at once seeking to divorce itself from its proper sphere, but should gain its recognition through the constituted medical and scientific channels.

It is not to be wondered at that the Legislature did not sanction this proposal. Had it taken this step, such might very well be regarded as- a precendent for the establishment of all kinds of boards, and we would today, in view of the partial recognition that has been given to so-called limited branches, probably have the state medical board, the state osteopathic board, the state chiropractice board, the state electro-therapeutic board, the state mechano-therapeutic board, the state suggestive-therapeutic board, the state Christian Science board, the state board of massage, and perhaps also the state board of chiropody. It is questionable when the process would ever end. As it was in 1902, when what we may call the osteopathic law was passed, these limited branches did not exist, or at any rate were in such embryonic state as to have negligible influence. There was osteopathy, however, not claiming to be a limited branch, but claiming all the dignity of a complete school of healing, and after a short period of existence, embracing, perhaps, a decade, demanding all the recognition and legal sanction which had only just been accorded to medicine after the lapse of thousands of years since the beginning of the world. No, the Legislature was not, and in the nature of things could not be, qualified to grant this demand. It did see fit, however, to go part way. It recognized the existence of the cult and its probable right to exist, and to grow and prosper. It said to the osteopaths: “We don’t understand and your therapy any more than we understand the method of cure by drugs, but we do have certain ideas about what any person and every person who attempts to practice the healing art should at least know and be reasonably informed about. We hold it'to be fundamental that your school teaches the same anatomy, the safe principles of physiology and obstetrics that are taught by medicine, and that you recognize the differences between different diseases and recognize the importance of diagnosis. Upon these subjects there can be no glaring difference between medicine and osteopathy. We are not greatly concerned about your method of cure, but we are greatly concerned that you should know what you are about to attempt to cure. We are more concerned that you should properly diagnose the ease which you are called to treat than we are about your therapy or method of cure.” And so it passed the law of 1902, found in 95 O. L., 212, being now Sections 1286 to 1293, inclusive, General Code.

These sections provide in general terms for two examinations for applicants, one by a board of osteopathic examiners, upon all things which they regard as essential for the practice of osteopathy, and one by the state medical board, on subjects which to the lay minds of the Legislature appeared common and fundamental to all the branches of the healing art. Some slight and immaterial amendments have since been made by the Legislature, but the law in the main still stands as the medical law of the state.

To it has since been added, as the cults or schools began to' grow in influence, certain provisions for the practice of the so-called limited branches of medicine or surgery, Section 1274-1 providing for the limited branches of chiropractice, naprapathy, spondylotherapy, mechano-therapy, neuropathy, psycho-therapy, magnetic healing, chiropody, Swedish movements and massage, and then (comprehensively, so as to be done with it, perhaps), “such other branches of medicine or surgery * * * that may now or hereafter exist, except midwifery and osteopathy.” The reason for these last exceptions undoubtedly was that laws already existed providing for their practice. All of these limited branches were placed by the law under the control and guidance of the state medical board, consistently with the theory conceived by the Legislature in 1902 and permeating the law where provision was made for osteopathy alone. Provision is then made in Section 1274-2 for an examination of applicants for practice in these limited branches, which seems to be perfectly reasonable so far as such applicants are concerned, and against which such applicants have no just ground for complaint.

It will thus be seen that counsel is in error in claiming that applicants for permission to practice any of the limited branches provided for in Section 1274-1 are being discriminated against in favor of those who practice osteopathy, even if osteopathy be regarded as a limited branch, for the list- of subjects prescribed for examination does not appear as formidable as the list assigned for the examination of osteopaths.

The argument, therefore, fails.

It was perhaps quite unnecessary to go into the History of this legislation in order to pass upon the constitutionality of the statutes in question, as that no longer seems an open question since the rendering of the following decisions: Triplett v. State; 23 C.C.(N.S.), 172; State v. Hughes, 83 Ohio St., 445, reported without opinion, and State v. Marble, 72 Ohio St., 21, 25. Nevertheless, we have seen fit to give the above reasons in answer to the argument made in this case, because they embrace a viéw of the situation not presented by the authorities.

As to the other ground of error, namely, that the court refused to give certain instructions in writing to the jury before argument, it is sufficient to say that the statute providing for special instructions before argument applies only to civil cases.

We find no error in this record prejudicial to the rights of the plaintiff in error, and the judgment will be affirmed.

Judgment affirmed.

Washburn and Vickery, JJ., concur.