author: Boss, J.

text:
    Focht, Appellant, v. Justis, Appellee.
    (No. 6851
    Decided November 17, 1947.)

      Messrs. Peck, Shaffer é Williams, for appellant.

      Messrs. Rendigs & Fry, for appellee.
   Boss, J.

This is an appeal on questions of law from a judgment of the Common ,Pleás Court of Hamilton county, entered upon an instructed verdict in favor of the defendant at the close of all the evidence.

The plaintiff instituted action to recover damages for injuries received by her when struck by an automobile operated by the defendant.

The petition contains the usual allegations of negligence on the part of the defendant. The answer denies negligence on the part of the defendant and, in the alternative, alleges contributory negligence on the part of the plaintiff.

The action of the trial court can be justified only if, giving all the evidence a construction most favorable to the plaintiff (Wilkeson, Admr., v. Erskine & Son, Inc., 145 Ohio St., 218, 61 N. E. [2d], 201), it appears that (1) the defendant was not guilty of negligence, or (2) if guilty of negligence, such negligence was not the proximate cause of plaintiff’s injuries, or (3) that plaintiff was guilty of negligence which contributed to her injury, or (4) that an inference of negligence arose from the plaintiff’s evidence which was not rebutted by other evidence in the case.

Any or all of those conclusions must be sustained by evidence, upon consideration of which reasonable minds cannot differ as to the inferences to be drawn therefrom. Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 189 N. E., 246. See, also, Wilkeson, Admr., v. Erskine & Son, Inc., supra, at page 229.

Obviously those rules exclude from the consideration of this court much of the evidence introduced at the trial, which is antagonistic to the claims of the plaintiff.

A considerable portion of the argument and briefs deals with consideration of the duty of the plaintiff to negative a presumption of contributory negligence arising from her own evidence.

Where the motion for an instructed verdict in favor of the defendant is made at the conclusion of the plaintiff’s evidence on the ground of unrebutted inference of contributory, negligence, of course, the rebuttal must appear in the plaintiff’s evidence. Where such motion is overruled and the- defendant goes forward with his evidence, any error arising by reason of such ruling of the trial court is waived. When such motion is made at the conclusion of the defendant’s evidence, the plaintiff is entitled to the benefit of all the evidence to furnish a rebuttal. •

In Buell, Admx., v. New York Central Rd. Co., 114 Ohio St., 40, 150 N. E., 422, the applicable rule is clearly stated:

“Where, in an action for negligence, a motion is made for directed verdict in defendant’s favor at the close of plaintiff’s evidence on the ground that plaintiff’s evidence raises a presumption of contributory negligence, the issue raised by such motion requires that plaintiff’s evidence be given the most favorable interpretation, and, if such evidence under such interpretation is susceptible of no other reasonable inference than, that of negligence on his part directly contributing to the injury, and defendant’s conduct is not shown to be willful or malicious, and plaintiff is not aided by any other evidence in the case, it becomes the duty of the court-to direct a verdict.

“When the defendant makes such motion, and the same is overruled, and proper exceptions allowed, and such motion is renewed at the close of all the evidence, aiid again overruled with proper exceptions, and the question is argued on motion for new trial and upon error in the Court of Appeals, it becomes the duty of this court to examine the record to determine whether a presumption of contributory negligence arises from plaintiff’s testimony, and whether such presumption is met by any other .evidence in the case, and, if in the opinion of this court such presumption prevails, it is the duty of this court to render final judgment.” (Emphasis added.)

And, on page 49, in the opinion of that case it is stated:

“Neither does the testimony of any witness introduced by the defendant aid the plaintiff or help rebut the presumption of decedent’s negligence.”

Thus, in the instant case, it is indicated that the plaintiff is entitled to the benefit of any evidence introduced by the defendant to rebut any presumption of negligence which may arise from the plaintiff’s own evidence.

It is true that the following is stated later in the opinion of the Buell case:

“Contributory negligence is an affirmative defense, and the testimony of the defendant in support of such issue is always a question of fact to be submitted to the jury, but a different rule applies where the plaintiff’s own testimony raises the presumption, and such presumption is not rebutted by any other evidence in the case or by the attendant circumstances.

“For the foregoing reasons it was the duty of the trial court to have directed a verdict for defendant at the close of plaintiff’s testimony.”

No sound reason appears why the general rule of waiver should be modified in cases where an inference of negligence conclusively arises from the plaintiff’s evidence, if the defendant sees fit to go on and in so doing performs the task of rebuttal previously resting upon the shoulders of the plaintiff.

Such was the burden resting upon the trial court at the time the motion for an instructed verdict was made at the conclusion of all the evidence in the case. It is the action of the trial court in granting that motion which may or may not constitute error, not the action of that court upon the motion made at the close of the plaintiff’s ease, any error in which was waived by the defendant when he proceeded to introduce evidence which then became available also to the plaintiff.

Turning then to the transcript of the evidence and bearing in mind the .favorable position of the plaintiff, it appears that Observatory avenue is a street in the city of Cincinnati, extending in a general easterly and westerly direction; that Edwards road is a street intersecting Observatory avenue at right angles and extending'north and south; that-Observatory avenue is 40 feet wide between curbs, with a five-foot sidewalk on the north side, with a space two feet and six inches between the south line of the sidewalk and the north curb; that Edwards road is a street 40 feet wide north of the north line of Observatory avenue and 30 feet wide south of the south line of Observatory avenue; that the sidewalk on the west side’ of Edwards road is five feet wide, with a space two feet and six inches between the east edge of the sidewalk and the west curb of Edwards road; that the northwest and southwest corners of the intersection are cut off by curves; and that a row of “buttons” indicates the western limit of the west crosswalk across Observatory avenue. This intersection is equipped with traffic lights at the four corners, which flash, red, amber and green.

.It appears further that the plaintiff, a woman over 70 years of age, on July 1, 1946, a bright sunshiny day, at about noon, having been shopping to the north of Observatory avenue, walked south on the west sidewalk of Edwards road. She reached the north curb of Observatory avenue and, as the traffic light at the southwest corner of the intersection turned amber (after the red), stepped down off the curb from the middle of the West Edwards road sidewalk onto the crosswalk, and attempted to proceed south across Observatory avenue upon such crosswalk, when she was struck by the left front portion of an automobile operated by the defendant (a man 65 years of age) at some point in Observatory avenue, north of the center line thereof. Plaintiff was rendered unconscious and remained so for some time. She had no recollection' of anything which occurred until she regained consciousness in a hospital. She was severely injured. There is evidence that she. looked to the -right or west before stepping off the curb, but no evidence that she looked to the left or east.

The defendant had driven his automobile north on Edwards road and upon reaching Observatory avenue found the traffic light at the northeast corner of the intersection showing red against him. This was the -red signal which immediately preceded- the amber •light upon which the plaintiff had stepped off the •curb at the northwest corner of the intersection. The situation, therefore, at that time was that the defendant was waiting for the north and south green light to proceed, while the plaintiff was walking south on the amber light which preceded such green light.

Another automobile at that time was proceeding south on Edwards road, coming toward the defendant. The light turned green for south traffic just as the second automobile reached, the intersection and it was driven on through without stopping'. The automobile of the defendant turned west from Edwards road onto Observatory avenue in front of the automobile driven south on Edwards road although the driver of this southbound vehicle did not slacken his speed of from 25 to 30 miles an hour. The defendant states he did not see this southbound automobile or the plaintiff until she stood five feet away holding up her hand in front of him as if to ward off being struck. The defendant states that as he was making his left-hand turn he only saw two vehicles on the south side of Observatory avenue facing east. He sounded no horn nor gave any other signal of his intention to turn west on Observatory avenne from bis position on tbe east side of Edwards road south of Observatory avenue. However, one witness stated a left flasher light on the front part of defendant’s automobile was operating.

The force of the collision of the defendant’s automobile with the plaintiff "knocked her about eight feet in front of his machine.” The plaintiff was about three or four feet out on the crosswalk when she was struck. The plaintiff was, therefore, knocked in a westerly direction from the path she was following, south across Observatory avenue. Her body rested,, after being struck, ten feet west of the west curb of Edwards road, and, as the west curb of Edwards road is seven feet and six inches from the west line of the Edwards road sidewalk, it is apparent the plaintiff was well east of the west line of the crosswalk at the time she was struck and knocked in a westerly direction eight feet.

The operator of the southbound automobile on Edwards road stated that he was traveling at the rate of 25 to 30 miles an hour as he approached the intem section and "retained my speed as I hit the intersection”; that he was watching the defendant’s automobile "because he turned in front of me at the intersection as I was going through”; and that' such automobile crossed 15 or 20 feet in front of him.

We will now consider the questions presented to the trial court, and now to this court, by the motion of the defendant for an instructed verdict at the close of all the evidence.

(1) Does the evidence show that the defendant was negligent?

Section 6307-38, General Code, provides in part:

"(a) No person shall turn a vehicle or trackless: trolley from a direct course upon a highway unless: and until such person shall have exercised due carato ascertain that such movement can be made with reasonable safety to other users of the highway and then only after giving a clearly audible, signal by sounding the horn if any pedestrian may be affected by such movement or after giving an appropriate signal in the event any traffic may be affected by such movement.

“(b) A signal of intention to turn right or left shall be given in sufficient time in advance of the movement indicated to give ample warning to other users of the highway who would be affected by such movement.” (Emphasis added.)

The only suggestion of compliance with the statute is that a flasher light was operating on the left front portion of the defendant’s automobile. Until the significance of such a signal is apprehended, not only by drivers of vehicles, but also by pedestrians, it cannot be said such a signal is an effective compliance with the requirements of the statutes. It is asserted that the statute has no application to left turns at street intersections. It seems obvious, on the contrary, that the exigencies of such a situation require full compliance with the statute. The defendant’s automobile was about to be driven directly across the path of vehicles and pedestrians rightly proceeding south on Edwards road. Had it not been that the significance of the flasher signal was apprehended by the driver of the southbound automobile on Edwards road, a collision might have there occurred. There is no evidence that if the plaintiff had seen this signal she would have understood its significance. It is claimed, however, that failure to give an appropriate signal could not have been the proximate cause of plaintiff’s injuries, because she would not have seen it if it had been given because she did not look to her left. Whether, if an appropriate signal had been given, her attention would have been attracted is a matter of conjecture. However, it is to be remembered that the defendant was much farther to the south of plaintiff than he was to the east or her left. Be that -as it may, the statute provides also for other measures of care specifically applicable to pedestrians who may be affected by the change of direction of a vehicle. These measures manifestly were not observed by the defendant and logical inference justifies the conclusion that had these measures been taken the plaintiff would not have been injured because her attention would have been arrested and she would have been duly warned of her danger in time to prevent injury.

It is a matter of such common occurrence as to be a matter of common knowledge that drivers of vehicles especially when making left-hand turns across the path of pedestrians either slow down their vehicles, permitting pedestrians to cross, or sound the horns upon the vehicles warning the pedestrians of their approach. The fact that the defendant did not see the plaintiff, who was most obviously present on the crosswalk, is no excuse for running her down, but rather increases the inference of negligence against him.

The trial court was not justified in finding as a matter of law that there was no negligence on the part of the defendant, that such negligence was not the proximate cause of the injuries to plaintiff, or that the plaintiff was guilty of negligence contributing to her injuries. The trial court so held because she did not look to the left as she stepped off the curb onto the street. If the plaintiff had looked to the left what would she have seen? Nothing which would have caused her injury in Observatory avenue east of the west curb of Edwards road, because there was nothing in the whole avenue, either in the north or south half of it, which could or did cause her injury. Remember, the plaintiff stepped off the curb on the amber light, as she had a right to do.

Section 6307-13, General Code, provides:

“Whenever traffic is controlled by traffic-control signals exhibiting the words ‘go,’ icaution,’ or ‘stop’ or exhibiting different colored lights successively one ■ at a time, or with arrows, the following colors only shall be used and said terms and lights shall indicate and apply to operators of vehicles, street cars and trackless trolleys and pedestrians as follows:

“(a) Green alone or ‘go.’

“1. Pedestrians facing the signal may proceed across the roadway within any marked or unmarked crosswalk.

“2. All other traffic facing the signal except as provided under Sections 35 and 56 [Sections 6307-35 and 6307-56, General Code] may proceed straight through or' turn right or left unless a sign at such place prohibits either such turn. But such traffic shall yield the right of way to vehicles, street cars and trackless trolleys lawfully within the intersection and to pedestrians lawfully within a crosswalk at the time such signal is exhibited.

“(b) Yellow alone or ‘caution’ when shown following the green or ‘go’ signal.

“All traffic facing the signal shall stop provided that any traffic within the intersection shall be permitted to continue cautiously through the intersection.

“(c) Yellow alone or caution when shown following the red or ‘stop’ signal..

“1. Pedestrians facing the signal may 'proceed across the roadway within any marked or unmarked crosswalk.

“2. All other traffic facing the signal shall stop and shall remain standing until ‘green’ or ‘go’ is shown alone.

“ (d) Red alone or ‘stop.’

“1. No pedestrian facing such signal shall enter the roadway.

“2. All other traffic facing the signal shall stop before entering the intersection and shall remain standing until authorized to proceed by a traffic-control device.

“(e) Traffic-control device authorizing turn with red or ‘stop’ signal.

“1. No pedestrian facing such signal shall enter the roadway.

“2. All other traffic facing such signal may cautiously enter the intersection only to make the movement indicated by the traffic-control device, but shall yield the right of way to pedestrians lawfully within a crosswalk and to other traffic lawfully using the intersection.

“(f) Green arrow alone.

“All traffic facing such signal may enter the intersection only to make the movement indicated by such arrow but shall yield the right of way to pedestrians lawfully within a crosswalk and to other traffic lawfully using .the intersection.” (Emphasis added.)

The defendant was required to remain stationary until the green signal flashed, authorizing him to proceed. The plaintiff, if she had looked directly at the defendant, would have seen merely a parked automobile which could have remained parked, could have proceeded to the right, and east, and could, have been ■driven directly north out Edwards road or possibly have - made a left-hand turn west' on Observatory avenue. In any event, if- she had seen it, she would have had the right to assume the driver would comply with the law and use due precaution for her safety. The amber light remains on for a few seconds before the green light, so that the plaintiff proceeding on the amber light' walked several steps south on the crosswalk before the defendant had the right to move his automobile. There was, therefore, no inference of contributory negligence arising from her evidence which she was required to rebut, and there, of course, was no evidence of negligence on her part, which by any logical inference can be shown to have contributed to her injuries.

A reading of all the evidence presents.a clear picture of what occurred. The defendant, immediately upon the green light. turning in his favor, swung his automobile across Edwards road into Observatory avenue. He did this so quickly that an automobile traveling at the rate of 25 to 30 miles an hour and crossing the north line of a 40-foot street, as that same light turned green, was not required to slacken speed and the defendant passed some 20 feet in front of it. The defendant for some strange reason had his attention focused on two cars facing east on Observatory avenue, waiting for the green light to permit them to proceed east. The plaintiff did not see the southbound automobile. The defendant did not see the plaintiff and he most certainly did not use “due care to ascertain ’ ’ that his left turn could be made with reasonable safety to the plaintiff. That he did not see her does not justify his failure. She was there, because she was struck by his automobile.

On no basis was the trial court justified in instructing a verdict for the defendant.

The judgment of the Common Pleas Court is reversed and the cause remanded for trial according to law.

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


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    Merriam, Appellant, v. Bonded Oil Co., Appellee.
    (No. 4149
    Decided May 6, 1946.)

      Mr. J. W. Starritt, for appellant.

      Messrs. Welles, Kelsey, Fuller, Cobourn & Earring-ton, for appellee.
   Carpenter, J.

Judgment reversed. .This appeal on questions of law is from an order granting defendant’s motion for a new trial. The assignment of error is that such action was an abuse of discretion.

The grounds of the motion were:

1. The verdict of $2,500 for plaintiff was against the. weight of the evidence.

2. The verdict was contrary to law.

3. Error in exclusion and admission of evidence.

4. Other errors occurring at the trial.

The grounds upon which the motion was granted, as stated in the journal entry,' were that the verdict “is not sustained by the evidence and is contrary to law.”

At a former trial, a verdict for the defendant was returned on the direction of the court and judgment entered accordingly. On appeal on questions of law, this court, finding that the evidence presented a jury question, reversed the judgment and ordered a new trial. No appeal was taken from that judgment of reversal, and so far as this court is concerned that judgment became the law of the case and was binding upon the trial court.

On neither trial did the defendant offer any evidence, and the plaintiff’s evidence on the last trial was the same or stronger for her in some respects than it was before.

What was the significance of the action of the court in granting the motion on the grounds stated by it?

The former judgment, based upon the directed verdict, was entered because the court found that there was no evidence to support the plaintiff’s cause on one or more essential elements of her claim -of which she had the burden of proof; in other words, that a verdict and judgment for her would have been “contrary to law. ’ This court having reversed that, judgment, it follows that the trial court had no right to grant a new trial on that ground on this record.

How about the other phase of the order — that the verdict “is not sustained by the evidence?” This expression omits the adjective “sufficient,” contained in subdivision 6 of Section 11576, General Code, which qualifies the noun “evidence.” If the term “sufficient evidence” had been used, it'-would have been synonymous with the phrase “weight of the evidence” as used in Section 11577, General Code, and in Section 6, Article IV of the Constitution of Ohio. Brittain v. Industrial Commission, 95 Ohio St., 391, 396, 115 N. E., 110; Waldron v. New York Central Ry. Co., 106 Ohio St., 371, 377, 140 N. E., 161.

The court is of the opinion that if the order were clear in this respect, as based upon the ground that the verdict was “not sustained by sufficient evidence” or was manifestly “against, the weight of the evidence,” the order could not be regarded as an abuse of discretion.

That proper application may be made of Section 11577, General Code, in the further proceedings herein, it is important that, the ambiguity be eliminated and, to that end, the order of the court granting the motion for a new trial is reversed and this cause is remanded to the Court of Common Pleas with directions to redetermine that motion in conformity with this opinion.

Judgment reversed.

Stuart and Conn, JJ., concur.


author: Guernsey, J.

text:
    Diemer, Appellee, v. The Putnam County Farmers Mutual Ins. Co., Appellant.

      (No: 355
    Decided June 5, 1947.)

      Messrs. Unverferth S Unverferth, for appellee.

      Mr. Claud L. Reciter, for appellant.
   Guernsey, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Putnam county, in an action wherein the appellee herein, Clarence C. Diemer, was plaintiff, and the appellant herein, The Putnam County Farmers Mutual Insurance Company, was defendant.

The action is one'brought on a policy of insurance, issued to plaintiff by the defendant against loss or damage by fire, lightning and storm, to recover from the defendant the value of 12 acres of grain, to wit, wheat; three acres of grain, to wit, rye; 15 acres of feed, to wit, straw; and 15 acres of feed, to wit, clover and alfalfa, destroyed by fire while growing on the premises occupied by plaintiff in Van Burén township in Putnam county.

In his petition the plaintiff alleges the value of the respective items mentioned to be as follows: Wheat, $700; rye, $162; straw, $180; clover and alfalfa $100, a total of $1,142.

The straw mentioned is the straw included in the growing wheat and rye, and the alfalfa mentioned is that growing on the same field as the growing wheat and rye. The growing wheat and rye were mature and ready for harvesting. The alfalfa was not in seed.

All the items mentioned are claimed by the plaintiff to come within the description of “hay,-grain and féed” insured against loss by fire, lightning and storm, under the terms of the policy, for the suni of $1,000.

In the agreed statement of facts incorporated in the bill of exceptions, all facts essential to a recovery by plaintiff are admitted, except the value of the various items mentioned and that such items are comprehended in the description in the policy, of the property insured.

The cause was tried to a jury which returned a verdict in favor of the plaintiff in the lump sum of $800, and judgment ■ was thereafter duly entered on the verdict.

That is the judgment from which this appeal is taken.

• There are a number of assignments of error, including various claimed errors in the charge and in that the verdict and judgment are contrary to law, all based on the general contention of defendant that the items of property in question being growing crops do not come within the description of “hay, grain and feed” insured against loss in the policy, so a consideration of that contention will be determinative of all claimed errors in the cause.

The rule that an insurance contract, the terms of which are open to more than one construction, shall be construed in favor of the insured is usually applied indiscriminately to policies of stock and mutual companies. 29 American Jurisprudence, 186, Insurance, Section 167.

The only case we have been able to find holding that the rule of construction mentioned is inapplicable to policies of mutual insurance companies issued to their members, is the case of Rickel v. Republic Mutual Fire Ins. Co., 129 Kan., 332, 282 P., 757. The reasoning upon which that decision is based is that a member of a mutual insurance company, to' whom the company has issued a policy, occupies the dual position of insurer and insured and, dealing with himself, is not entitled'to a favorable construction in his capacity as the insured.

The Ohio courts apparently follow the general rule of construction above mentioned without regard to whether the insurer is a stock company or a mutual company. 22 Ohio Jurisprudence, 340 to 344, Insurance, Section 185.

However, in the view we take of this case it is unnecessary to resort to the rule of construction mentioned, as the proper construction may be ascertained under the cardinal rule of construction for determining the intention of the parties, from the ianguage used in their agreement and the surrounding circumstances.

It will be noted that in the policy of insurance there is no qualification of the descriptive phrase “hay, grain and feed,” or of the items severally mentioned in the description as being the property insured.

However, it is not contended that any such items come within the category of “hay,” so it is only necessary to determine the, sense in which “grain” and “feed” are used in such phrase.

In 38 Corpus Juris Secundum,' 975,. the word “grain” is defined as follows:

“A generic term, defined collectively as the unhusked or the threshed seeds or fruits of various food plants, now usually the cereal grasses, but in commercial and statutory usage also flax, peas, sugar-cane seed, etc., the fruit of certain plants which constitute the chief food of man and beast; a kernel, especially of those plants, like wheat, whose seeds are used for food; a single small seed; a small hard seed; specifically a seed of one of the cereal plants collectively, the gathered seed of cereal plants in mass, also the plants themselves, whether standing or gathered. Sometimes the term is used to designate a crop in a field, or cereals in the straw. In accordance with the context or the connection in which it is employed the term may include barley, bran, broom corn, corn in general, corn and millet hay, flax, hay or stalk, maize, malt or malted barley, millet, millet hay., oats, peas, rye, sugar-cane seed, and wheat; but it has been held not to include cottonseed meal. ’ ’

The word “grain” is defined in substantially the same manner in 20 Cyc., 1288; and in 28 Corpus Juris, 757, and that part of the definition reading “Also, a term sometimes used to designate a crop in a field, or cereals in the straw,” is adopted in the Century Dictionary.

It would, therefore, appear that the word “grain” is properly used to designate a crop of whéat or rye growing in a field, and the plants themselves, whether standing or gathered, so that the growing wheat and rye in the instant case come within the description of “grain” in the policy of insurance. As used, the word “grain” comprehended both the kernels and the stalks upon which the kernels were growing. The loss occasioned by the fire was-the market value of the standing grain, including the kernels and the stalks, to be ascertained by computing the market value of the kernels as harvested, and the market value of the stalks as harvested, less the cost of harvesting the same, and in case such kernels of grain and the stalks were, intended to be marketed instead of for use on the premises, less the cost of marketing the same.

The stalks of grain, after the kernels are removed, constitute straw, the value of which is part of the value of the standing grain, and such stalks do not come within the policy description of “feed,” as separate and apart from “grain,” and the court erred in submitting the question of the value of the straw to the jury, under the classification of “feed.”

In Webster’s International Dictionary, Second Edition, the noun “feed” is defined ás “Food, especially for livestock; fodder. A food; a mixture or preparation used for feeding- livestock. ’ ’

In this vicinity it is generally used to designate a mixture or preparation used for feeding livestock; that is, a processed food, and is not used.to designate growing grass,. clover or alfalfa, so that the growing alfalfa did not come within the description of “feed” in the pólicy and the plaintiff was not entitled under the terms of the policy to recover for its loss, but was entitled to recover only for the loss of the growing or standing wheat and rye.

It is impossible to determine from the record in the case and the verdict of the jury, what part of the recovery by the plaintiff is attributable to the loss of the standing wheat and rye, or the loss of the growing alfalfa, and it is consequently impossible for the court to order a reduction of the judgment to thé amount attributable to the loss of the standing grain.

The verdict is contrary to law. insofar as it includes any amount for the loss of the growing alfalfa, and for that error and the error in the submission of the question of the value of the straw to the jury, under the classification of “feed,” the judgment will be reversed and the cause remanded for a new trial and further proceedings in accordance with this opinion, at the costs of the appellee.

Judgment reversed.

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


author: Hurd, P. J.

text:
    Lovich, Appellee, v. The Salvation Army, Inc., Appellant.

      (No. 20610
    Decided June 30, 1947.)

      Messrs. Harrison, Thomas, Spangenberg S Hull, for appellee.

      Messrs. McKeehan, Merrick, Arter & Stewart and Mr.. Clinton M. Horn, for appellant. /
   Hurd, P. J.

In this action originating in the Court of Common Pleas of Cuyahoga county, now before this court on appeal on questions of law, a recovery was had by plaintiff in the sum of $2,000 against the defendant, the Salvation Army, Inc., for personal injuries and illness as the result of an attack, of typhoid fever suffered while the plaintiff wias a resident of a hom'e for working girls known as “Evangeline Residence” conducted by the Salvation Army. The case was tried on a second amended petition containing the following specifications :

“Plaintiff says that at the time herein referred to the defendant was reckless and negligent in the following respects to wit:

# * * # # *

“(3) In serving to the plaintiff food and drink which was contaminated with typhoid infection.

“ (4) in serving food and drink which was unwholesome and infected and was prepared, served and sold in violation of the so-called pure food laws of Ohio.

“(7) In providing impure, infected and dangerous food and drink for plaintiff in violation and breach of its promise and/or implied warranty that the food provided, served and sold in said restaurant would be fit for human consumption and free from dangerous or harmful infections or bacterial contamination.

“Asa direct result of the negligent acts hereinbefore set forth, and of the breach of the implied warranty that the food served and sold would be fit for human consumption and free from impure substances and bacterial contamination, the plaintiff became infected with typhoid bacilli, was rendered seriously ill * *

Contained in the answer are allegations of defendant that it is incorporated as a religious and charitable organization not for profit and that the plaintiff was a beneficiary of its charity. Defendant denied generally any negligence on its part and denied specifically that it was negligent or. careless in the employment of a person to serve food who was a typhoid germ carrier as alleged in the amended petition.

A number of errors are assigned but the principal errors claimed are: (1) That the Common Pleas Court erred in instructing the jury to return a verdict for plaintiff and in submitting to the jury only one form of verdict, namely, a verdict for plaintiff; (2)' That the Common Pleas Court erred in overruling defendant’s motion for judgment at the'close of all the evidence.

We shall consider these assignments of error in the order named.

There was evidence that plaintiff was one of 350 young women residing in the home and one of the. 18 sufferers in the typhoid fever - epidemic that, broke out in the home in January, 1944.

The evidence bearing on the issue of the cause of the illness of plaintiff and other sufferers was the testimony of one Dr. Theo. G-. Duncan, chief of the subdivision of communicable diseases of the division of health of the city of Cleveland, who testified that an epidemiological survey was made under his direction. He described the measures taken to ascertain the source of infection which resulted in the identification of one Martha Brown as a typhoid carrier, who was in the employ of defendant in the kitchen, having been hired on September 14, 1943. This identification was made after a series of microscopic tests. Concerning Martha Brown, Dr. Duncan testified in part as follows:

“Q. Did your investigation reveal what the nature of her work was at the Evangeline Home? A. Yes.

“Q. What was it? A. As I remember she washed dishes. As I recall she went to work there about the 13th of September 1943 and her duties as I remember from what I got from the hospital, through the institution and herself, she was just simply a dishwasher up until a certain date in December, when she was given an additional job of making orange juice. That was about the 15th of December, some other employee was taken out of there for some reason and she had an additional job, which I learned later; I didn’t find that out at first.

‘ ‘ Q. Did you find that she then, since she had started making the orange juice, continued at that until she left the employment? A. Her history was that for about ten days she had the full responsibility in the morning of making the orange juice, and then she was given some help; she didn’t like it, she said the work was too hard for her, and she left. When I heard about this was on the 16th of January and I found her at home.

“Q. Coming back to Martha Brown, did you run a similar stool test on her? A. Yes, we ^ook three; we took two at home and both of them were positive, and she had no temperature, showed no illness whatsoever for several days, and I took her to the hospital and we took three or four other cultures and they were all positive for typhoid organism.

“Q. Assuming, doctor, that Martha Brown did prepare the orange juice subsequent to the 15th of December, 1943, for a time doing it herself without any help and for a time was assisted by someone else, and that continued up through the middle of January of 1944. A. That’s right.

“Q. Assume further, that all 18 girls who later contracted typhoid fever as you have described their cases to us, included orange juice as part of their breakfast during this period from and after the 15th of December, 1943; assuming that they then contracted the disease on or about the dates that you have indicated, within the range that you have indicated; now assuming those facts and further, doctor, 'that you found the plumbing and watey supply at this residence was quite all right and showed no typhoid source contamination ; assuming all those factors, doctor, do you have an opinion — and assuming furthermore, that you made an investigation of the food handlers that worked at the Evangeline Home during the period subsequent to the 1st of November, 1943, and that your investigations showed you that only one of those food handlers was a typhoid carrier, and further, that that carrier was Martha Brown, who had assisted in the preparation of the orange juice as described before; assuming all those facts, doctor, and assuming finally the fact that you determined positively that she was a typhoid carrier, will you please tell us whether or not you have an opinion as to the cause of the typhoid fever that these 18 persons contracted? Do you have an opinion, doctor? A. I have an opinion.

“Q. All right, please tell the jury what that is. A. The opinion is that this girl, who was harboring the organism typhoid fever, which was definitely proved by laboratory tests, was able to contaminate food or drinks that some of these individuals ate or drank, and in that way typhoid is spread by hand to mouth. In other words, you contaminate something that somebody else takes, and the reason we felt she did not contaminate more, it was just when she squeezed the orange squeezer, she probably contaminated it with some of the contamination on her hands, and the first one that got the orange juice got the organism from her hands, some of them got a certain amount, and it is our reason for believing it only affected a certain number, it washed off her hands.

“Q. Do you believe, then, doctor, that the orange juice these girls drank was the source of the contamination? A. I do.

“Q. And do you believe that the contamination was the presence of typhoid bacilli in the orange juice ? A. I do. * * *”

The foregoing testimony is the only direct evidence in the record in respect of the cause of the epidemic. A careful analysis thereof discloses, (1) that the doctor expounds a theory developed by him, based upon his investigations conducted after the outbreak of the epidemic, and (2) an opinion expressed upon an assumed hypothesis.

It will be noted that while the hypothesis excluded the plumbing and water supply, other hypotheses are not excluded, such as possible contacts of one or more of the residents with persons infected with the disease outside of the home. We think it is a matter of common knowledge that typhoid may be communicated by personal contact. It is well settled in Ohio that exr pert testimony may be received by the court to assist the jury in arriving at a just and correct verdict.- Insofar as such testimony aids the members of the jury in their deliberations it should be used. However, the members of the jury are the sole judges as to what weight the opinion of the expert is entitled to receive at their hands and should be instructed to give such testimony just such weight as they in their judgment deem it entitled to receive.

With respect to hypothetical questions, the opinions of experts based upon facts assumed are of no value unless the assumed facts forming the basis of such opinions are supported by the evidence and are true, and if the jury finds that the assumptions are not true, then it should disregard the answers to such questions. Such opinion evidence is but to supplement and not to supplant the judgment of the jury. There is a wide difference between unrebutted factual evidence and unrebutted opinion evidence, and in the instant case the court did not permit the jury, under proper instructions, to consider this evidence but instead directed a verdict for the plaintiff.

An issue was made by the testimony of the expert on the question of whether the orange juice prepared by Martha Brown, if it was prepared by her, was the source of the infection. An issue was also made whether the Evangeline Residence served contaminated food, and whether such serving was the proximate cause of the illness of the plaintiff. The burden of proof was upon the plaintiff to prove by a preponderance of evidence the essential allegations of her petition, and questions of fact were presented upon which reasonable minds might reasonably reach different conclusions.

On a review of the entire record and particularly upon consideration of the testimony of the expert witness, we are of the opinion/that the trial court erred in concluding as a matter of law that the sole source of the infection was the preparation of food by Martha Brown.

As was hereinbefore stated, neither the court nor the jury were required to accept the theory of the opinion of the expert witness as conclusive of the issues of fact raised by the pleadings and the evidence. Bahl v. Byal, 90 Ohio St., 129, 106 N. E., 766; Ohio & Indiana Torpedo Co. v. Fishburn, 61 Ohio St., 608, 56 N. E., 457, 76 Am. St. Rep., 437; Haas v. Kundtz, 94 Ohio St., 238, 113 N. E., 826; Manley v. Coleman, 19 Ohio App., 284; Dime Savings Bank v. Morton, 25 Ohio App., 157, 157 N. E., 825; Mieritz v. Ins. Co., 8 N. P., 422, 11 O. D. (N. P.), 759; Stith v. Indus. Comm., 59 W. L. B., 381, 12 O. L. R., 439.

See, also, Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 189 N. E., 246, and the long line of Ohio cases following this rule.

There is one other question presented by this record which makes it unnecessary to dwell at greater length on the action of the court in directing the jury to find for plaintiff, other than to conclude that su,ch action on the part of the court constituted prejudicial error.

We think that the trial court was correct in its conclusion that it was conclusively established that the defendant was a charity, that its operation of the Evangeline Residence was a charitable enterprise, and that the plaintiff was a beneficiary of the charity. There is no evidence in the record tending to show the failure on the part of the officers or those in charge of and managing and directing the operation of the Evangeline Residence of the Salvation Army to exercise due care in the selection or retention of any of its employees, including Martha Brown.

These facts bring the instant case squarely within the rule laid down by the Supreme Court in the cases of Cullen v. Schmit, 139 Ohio St., 194, 39 N. E. (2d), 146; Taylor v. Flower Deaconess Home and Hospital, 104 Ohio St., 61, 135 N. E., 287, 23 A. L. R., 900;.and Sisters of Charity v. Duvelius, 123 Ohio St., 52, 173 N. E., 737. At page 196 of the case of Cullen v. Schmit, the court states the' rule as follows:

“In conformity with the general rule this court has held that a charitable or eleemosynary institution is not liable for tortious injury except (1) when the injured person is not a beneficiary of the institution, and (2) where a beneficiary suffers harm as a result of failure on the part of the authorities of the institution to exercise due care in the selection or retention of an employee. Taylor v. Flower Deaconess Home & Hospital, 104 Ohio St., 61, 135 N. E., 287, 23 A. L. R., 900; Rudy v. Lakeside Hospital, 115 Ohio St., 539, 155 N. E., 126; Sisters of Charity v. Duvelius, 123 Ohio St., 52, 173 N. E., 737; Lakeside Hospital v. Kovar, Admr., 131 Ohio St., 333, 2 N. E. (2d), 857; Waddell, a Minor, v. Y. W. C. A., 133 Ohio St., 601, 15 N. E. (2d), 140; 10 American Jurisprudence, 687 and 691, Sections 140 and 144; 14 Corpus Juris Secundum, 548, Section 75.”

It appears that the trial court held that since there was no negligence shown in the employment of any of its servants the defendant could not be held responsible in damages on the theory of negligence. This conclusion was in accordance with well established principles of law. However the trial court held that the serving of contaminated food to plaintiff was a breach of an implied contract of sale of food and that since a charitable institution is liable on its contracts, the defendant was not entitled to the benefits of the rule of limited liability applying to charitable institutions in tort actions.

It appears that the court, as does the plaintiff herein, relied primarily upon sections of the General Code relating to the unlawful sale of adulterated and unwholesome food for human consumption and particularly the case of Yochem v. Gloria, Inc., 134 Ohio St., 427, 17 N. E. (2d), 731.

Section 8395, General Code, reads in part as follows:

“Subject to the provisions of this chapter and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows

“(1) When the buyer, expressly or by implication, makes known to Ihe seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment, whether he be the grower or manufacturer or not, there is an implied warranty that.the goods shall be reasonably fit for such purpose.”

Counsel for plaintiff in their brief set forth that in the case of Yochem v. Gloria, Inc., supra, our Supreme Court considered the applicability to food and drink sold by a restaurant of the implied warranty of fitness created by Section 8395, General Code, and points out that the plaintiff sued in that case for damages by reason of illness which resulted from drinking water contaminated with bacteria, served by the defendant restaurant. The first cause of action was based upon breach of implied warranty. The second cause of action charged a violation of the pure food laws. The trial court had refused to submit the first cause of action to the jury. The Supreme Court ruled that the failure of the trial court to submit to the jury the first cause of action based upon breach of implied warranty was reversible error.

In its first paragraph of the syllabus the court stated the law as follows:

“1. Under the provisions of Section 8395, General Code, relating to the subject of warranty, a restaurant • owner who supplies his customers with water, for ■drinking purposes from his own well impliedly warrants the reasonable fitness of such water for its intended use.”

The second paragraph of the syllabus is as, follows:

“2. Under such circumstances the supplying of water that is unfit for human consumption constitutes a violation of Section 12758, General Code, of the pure food laws of Ohio.”

Section 12758, General Code, cited by the Supreme Court in the second paragraph of the syllabus, provides a penalty for the sale of adulterated food as defined by the act. A careful examination of the case of Yochem v. Gloria, Inc., supra, seems to us not to sustain the argument advanced by plaintiff, because the Supreme' Court, after discussing the assignments of error at length", finally determined as expressed at page 431, and in the ’third paragraph of the syllabus, that a violation of the pure food statutes of Ohio constitutes negligence per se.

At page 430, as bearing on the question of the violation of the pure food laws, the court said:

“The plaintiff next complains that the trial court refused to charge the jury that a violation of the pure food and drug laws of Ohio is negligence per se. The correctness of the plaintiff’s position is shown by the unambiguous language of Section 5775, General Code, which provides ipsissimis verbis that ‘the term “food,” as used in this chapter, includes all articles used by man for food, drink, flavoring extract, confectionery, or condiment, whether simple, mixed or compound.’ However, the defendant contends that the water supplied to the plaintiff was not ‘adulterated’ within the meaning of Section 5778, General Code, which reads in part as follows: * *

-We think a clear inference which must be drawn from, the opinion of the court in that case is that whether there is a violation of'the pure food statutes which is negligence per se, or a breach of an implied warranty, the action sounds in tort, where personal injuries form the basis of an action for damages.

Numerous authorities are cited by opposing counsel ■in their able briefs concerning the question of whether this action insofar as it relates, to an implied warranty of fitness of foods sounds in contract or tort.

It would unduly burden this opinion to discuss the numerous authorities pro and con on this question and to trace the law of implied warranty in relation to> contracts of sale of food. There appears tó be a conflict of authority on this question. It is quite clear, however, that throughout the history of jurisprudence a clear distinction has always been made between the obligation imposed by contract and implied warranties which arise therefrom purely by operation of. law.

In the instant case, the petition of the plaintiff seems to be predicated primarily on negligence, because the plaintiff in her petition says that the defendant was reckless and negligent in the following respects, and in paragraph 7 of the specification states:

“In providing impure, infected and dangerous food and drink * * * in violation and breach of its promise and/or implied warranty that the food provided, served and sold in said restaurant would be fit for human consumption. ’ ’

We are not content, however, to rest our decision solely upon this language but for the purposes of this opinion we conclude that the plaintiff is relying upon an implied warranty of fitness as well.

We think by the greater weight of authority the action in this case is ex delicto and not ex contractu in the sense that it is based upon the violation of an obligation imposed by law. We think, also, this conclusion is in harmony with Ohio law, on this subject.

It would seem that, whether the liability is based upon a breach of implied warranty or negligence, the •result is the same. The action for damages for personal injury and illness is tortious in nature and the rule of limited liability in favor of eleemosynary or charitable institutions must be applied.

We conclude, therefore, that the court erred in directing a verdict for the plaintiff and in submitting to the jury the question of damages. The court also erred in failing to direct a verdict in favor of the defendant on its motion made at the conclusion of all the evidence, and therefore we proceed to render the judgment the trial court should have entered, and render final judgment for the defendant appellant.

Judgment reversed.

Morgan and Skeel, JJ., concur.


author: Nichols, J.

text:
    Hamilton, Appellee, v. Hamilton, Appellant.
    (No. 3904
    Decided May 19, 1947.)

      Messrs. Miller & Miller and Mr. Robert P. Duncan, for appellee. 1

      Messrs. Dargusch, Garen, Greek <& King, for appellant.
   Nichols, J.

Prior to their marriage in Kentucky in 1932, Lillian Hamilton was a resident of Columbus, Franklin county, Ohio, and W. E. Hamilton was a resident of Knox county, Tennessee. • After their marriage, husband and wife returned to their respective domiciles and during the marriage relation each continued to reside at the domicile acquired prior to marriage, although they visited together for short periods in Columbus, Ohio, and Knox county, Tennessee. 1

On February 10, 1940, pursuant to tbe provisions of Section 8426, Code of Tennessee, W. E. Hamilton obtained a decree of divorce from bis wife, in Knox ■county, Tennessee, on the ground that sbe, without reasonable excuse, wilfully absented herself from him for two years and refused to remove with him to Tennessee. In that action Lillian Hamilton was served by publication only, as provided by the Code of Tennessee. Sbe did not appear or make any defense to that action and in due course tbe court found tbe allegations of tbe complaint to be true and decreed “that tbe bonds of matrimony heretofore subsisting between tbe complainant and defendant be forever and perpetually dissolved and that tbe complainant be restored to all tbe rights of an unmarried man.”

At tbe date of that decree there was in full force and effect Section 8449, Code of Tennessee,, which read as follows: •

“If the bonds of matrimony be dissolved at tbe suit of tbe husband, the defendant shall not be entitled to dower in tbe complainant’s real estate, nor to any part of bis personal estate, in case of bis intestacy, nor to alimony.” ,

On October 23, 1940, Lillian Hamilton instituted an action against W. E. Hamilton in tbe Chancery Court of Knox county, Tennessee, seeking to set aside, on tbe ground of fraud, tbe divorce decree above referred to and in her action sbe alleged facts which, if proven, would have entitled her to that relief and also entitled her to a divorce and permanent alimony, for which sbe also prayed dn her bill of complaint. In tbe caption to such bill sbe represented that her residence and domicile was in Knox county, Tennessee, and in the bill she averred that W. E. Hamilton, at the time he-filed his bill for divorce, well knew she was a resident of the state of Tennessee.

In her complaint she prayed also for an injunction-restraining and preventing W. E. Hamilton from selling and disposing of “his property in the state of' Tennessee, or the state of Ohio, or elsewhere” pending-the further orders of the court. Such injunction was granted upon the pauper oath of complainant. Subsequently, the court, on motion of W. E. Hamilton and' on oral testimony, found that complainant was not entitled to prosecute the action and have the injunction remain in force upon the pauper oath, and ordered the complainant to give cost bond and injunction bond,, in default of which the case would be dismissed. She-gave bond as fixed by the court.

W. E. Hamilton was duly served with summons in-that action and filed his answer to the complaint, in-which answer he denied the allegations of fraud set up In the complaint, and alleged that for a period of' years the complainant had registered and voted in Columbus, Ohio, thus declaring her residence in Ohio. That allegation was not denied by complainant either-by pleading or on the hearing.

The Chancery Court of Knox county, Tennessee,, upon complainant’s application, allowed her to amend her original bill so as to set up a claim for homestead' rights in the real estate owned by the defendant, “in addition to alimony which she seeks in this case for her future support and maintenance.” ■

By its final decree, entered January 17, 1941, after hearing on the pleadings and evidence, the Chancery Court found that the complainant failed by the weight of the testimony to make out the allegations and charges in her bill, and further found that the complainant never had purposed to move to the state of Tennessee and reside or live with the defendant, as his wife, in that state, and that the procurement of divorce by the defendant, in Knox county, Tennessee, was not fraudulent and void but should “remain in full force and effect,” and thereupon dismissed complainant’s bill and dissolved the injunction previously granted.

A petition to rehear and enter a decree in her-favor in accordance with the prayer of the original bill was filed by the complainant, considered by the-court and disallowed and overruled, February 3,. 1941. No appeal was prosecuted by Lillian Hamilton, to the findings, judgment and'decree of the Chancery Court of Tennessee and the same became final.

The instant action was instituted by Lillian Hamilton against W. E. Hamilton in the Court of Common Pleas, Division of Domestic Relations, Franklin county,. Ohio, on June 17, 1943, the prayer of her petition being:

“Wherefore plaintiff asks that alimony for her sustenance and expenses during the pendency of the suit be granted her, and that she be decreed reasonable alimony out of the property of the defendant, William E. Hamilton, and that he be enjoined from disposing of his property, and for such other relief as she may be entitled to at law or equity. ’ ’

Defendant was duly served with summons and copy of the petition in Franklin county, Ohio, and on motion a temporary restraining order was allowed and defendant ordered to pay $100 per month as temporary alimony and $250 for expense money.

Before any further proceedings were had in this ease, the defendant died on July 2, 1943, and R. H. Leonard was appointed administrator of his estate, at Knoxville, Tennessee. On November 17, 1943, Walter R. Snyder was- appointed ancillary administrator by the Probate Court of Franklin county, Ohio. A motion to revive the action was filed by plaintiff on November 24, 1943.

Over the objection of the ancillary administrator, the court heard the motion to revive, permitted the plaintiff to introduce evidence of the divorce decree entered by the Tennessee court, revived the action, overruled defendant’s demurrer to the petition, and ■heard the case on its merits, the ancillary administrator by answer having. set up the judgments and decrees of the Tennessee courts, above referred to, and having alleged that the right of the plaintiff to alimony out of the property of the deceased defendant, W. E. Hamilton, had been fully adjudicated and determined by such judgments and decrees. Upon such final hearing the Franklin county court awarded plaintiff $7,500 as permanent alimony out of the estate and property of W. E. Hamilton, deceased.

In this appeal by defendant on questions of law thé following errors are assigned for reversal of the judgment of the Common Pleas Court and for final judgment for defendant:

1. The Common Pleas Court erred in reviving the action.

2. The trial court erred in overruling the demurrer to the petition.

3. The trial court erred in finding that the action' was not barred by the judgment of the court granting .-a divorce to W. E. Hamilton and the judgment of the Chancery Court of Knox county, Tennessee.

4. The trial court erred in awarding judgment for $7,500 to plaintiff in lieu of alimony and property rights in the property of W. E. Hamilton.

For an understanding of the claims made by the parties to this appeal, we first set forth the allegations of the petition, omitting the caption and referring • to the prayer thereof, as quoted above, without repetition:

“Petition.

“Plaintiff has been a bona fide resident of the state of Ohio for more than one year last past and has been a bona fide resident of the county of Franklin for more than thirty days last past.

“Plaintiff says that on the 8th day of August, 1932,, she was married to the defendant, William E. Hamilton, at Newport, Kentucky; that no children were born of said marriage. . . ;

“First cause of action.

“Plaintiff says that defendant ever since their marriage has failed and willfully neglected to provide plaintiff with the common necessities of life, so that plaintiff has been compelled to live upon the charity of her brother and her own exertions, although defendant had the ability to provide her with the common necessities of life.

“Plaintiff says that the defendant has paid her less than $100 a year since the date of their marriage. Plaintiff further says that about May, 1942, defendant disposed of approximately 3200 acres of land in the state of Tennessee and received therefor a consideration of approximately $35,000; that defendant is also possessed of 2,500 acres .of land in the state of Tennessee of the value of approximately $25,000, and 70 acres of coal land located near Athens, Ohio, of the approximate value of $5,000. Plaintiff further says that prior to August 1932, defendant was the owner of approximately 5,700 acres of land in the state of Tennessee, which was slate, marble and timber land, and 70 acres of coal land near Athens, Ohio; that after their marriage, defendant made Columbus, Ohio, his home for several months at a time, returning- to Knoxville, Tennessee, telling plaintiff that he was unable to support her and leading her to believe that fhe would make a home for her as soon as he realized ••any money from his properties; that defendant would write endearing letters to plaintiff, promising her that money would be realized from his properties for the mutual benefit of plaintiff and defendant. Plaintiff further says that after defendant realized moneys from the sale of said property, he did not give her any money or did not make any provision for her to live with him in the state of Tennessee; that by reason of defendant’s promises, plaintiff has been embarrassed and chagrined.

C Second cause of action.

* ‘Plaintiff says that the defendant, William E. Hamilton, has in disregard of his marital duties, for more than three years last past, been willfully absent from plaintiff.”

In our opinion, the petition states only a right or p.laim for alimony based on an existing marital relationship of the parties, and, therefore, its filing instituted an action for support, maintenance and expenses, as distinguished from alimony by way of division of property, which alimony can be allowed only on a claim of terminated marital relationship. There is no allegation in the petition that the marital relationfship had terminated, nor could the court grant a ■divorce after the death of the defendant. No mention as made of the decrees of the Tennessee, courts, although the plaintiff well knew that the validity of the divorce granted to W. E. Hamilton had been confirmed by the decree in the action she had instituted to set the same aside.' y

The prayer of the petition in the instant case is for alimony out of the property of the deceased defendant, based, of .course, on the facts stated in the petition. True, the prayer asks for such other relief as plaintiff may be entitled to at law or in equity, but the action is not one in chancery. The injunction sought and obtained was ancillary to the primary relief to which plaintiff might be entitled under the. allegations of her petition. The petition in this case having alleged only facts entitling plaintiff to allowance for her sustenance, support and expenses during the marital relationship, and not entitling her to a division of property, it follows that upon the death of defendant the action could not be revived against the ancillary administrator of the defendant, because the right of a wife to be supported by her husband ceases on his death, and her rights, if any, in the husband’s propérty, are then such as are provided by the laws of descent and distribution. As long as the marital relation exists (aiid there is no allegation to the contrary in this petition), the court’s jurisdiction is limited to an allowance for support, maintenance and expenses, during the separation. Materazzo v. Materazzo, 139 Ohio St., 36, 37 N. E. (2d), 967.

The petition in the instant case was evidently carefully drawn with the view of contesting in the Ohio courts the validity of the Tennessee divorce decree, in the event the defendant would set up the Tennessee decree under a claim of res judicata. The death of defendant before that issue was raised made it necessary for plaintiff to change her cause of action.

In our opinion the trial court could not revive an action upon a right which was not asserted in the petition, and was in error in receiving evidence of a fact not asserted in the petition, to wit, the fact of the Tennessee divorce, the validity of which plaintiff is now driven to assert if any benefit is to be derived from this litigation. It is difficult to see how she can rely on that divorce as a valid termination of the marital relationship without also being bound by the effect of that divorce granted for her own aggression, i. e., being barred of all rights to alimony out of the property of her former husband, as provided by the provisions of the Code of Tennessee, above quoted.

The fact that the court received such evidence clearly demonstrates that something additional to the cause of action stated in the petition was essential to the maintenance of the acti'on after the death of W. E. Hamilton. Thus thé court revived a cause of action not stated in the petition. For this there .is nq authority of law.

From what we have said, it necessarily follows that the demurrer filed by the ancillary administrator to the petition should have been sustained, and prejudicial error intervened in that respect.

Not only for the-reasons above stated, but for the further reason that the rights of the plaintiff to permanent alimony were finally adjudicated in the Chancery Court of Tennessee, the judgment of the trial court here is contrary to law under defendant’s plea of res judicata. The Chancery Court of Tennessee had jurisdiction of the persons of both parties to that action, as well as jurisdiction of the real estate of W. E. Hamilton, situate in that state. By plaintiff’s separate action against her former husband, brought in the Tennessee Chancery Court which had jurisdiction to grant her alimony as prayed for in her petition, the decree entered against her.in that state is binding against her here and must be given full faith and credit in the courts of Ohio and elsewhere in the United States. There is no evidence in this record by which the jurisdiction of the Tennessee Chancery Court over the subject matter or person of either party can be impeached. Williams v. North Carolina, 325 U. S., 226, 89 L. Ed., 1577, 65 S. Ct., 1092, 157 A. L. R., 1366. Plaintiff had a full hearing on her action in such Chancery Court. The court whose jurisdiction she invoked found no fraud on the part of W. E. Hamilton in his divorce action, confirmed the decree therein, and dismissed her petition.

But the trial court here, while recognizing the decree of the Chancery Court of Tennessee as final so far as the divorce obtained by W. E. Hamilton was concerned (as the court must have done before it could have granted the allowance of permanent alimony), took the view, from something said in the chancellor’s opinion, that the property rights of the wife were not adjudicated. In this we do not. concur. The statement of the chancellor, referred to by the able trial judge in the instant case, is no part of the decree. The Chancery Court had before • it for adjudication the entire relief sought by Lillian. Hamilton, its decree necessarily adjudicated all her rights to such relief, and she did not prevail. We cannot subscribe to the proposition that a party who fails to obtain relief in an action instituted by him may, nevertheless, select another jurisdiction and relitigate his rights to such relief.- He is as much bound by the decree when he fails as when he prevails. . .

In the instant case the award of alimony was made, in part at least, out of the property of decedent, situate in the foreign jurisdiction where plaintiff’s rights therein had been finally adjudicated. Such award is contrary to law under the circumstances of this case.

The judgment of the trial court is reversed for the prejudicial errors to which reference has been made here, and final judgment is entered for the defendant.

Judgment reversed.

Wiseman, P. J., and Montgomery, J., concur.

Nichols, J., of the Seventh Appellate District, and Montgomery, J., of the Fifth Appellate District, sitting by designation in the Second Appellate District.


author: Wiseman, P. J.

text:
    Glink, Appellee, v. Pennell, Appellant.

      (No. 4041
    Decided October 16, 1947.)

      Mr. Waymon B. McLeshey, for appellee.

      Mr. Edward F. Lynch, for appellant.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Municipal Court of Co-, lumbus. The plaintiff brought an action in forcible entry and detainer, in which the defendant filed a demurrer, claiming that the petition did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and, defendant not desiring to plead further, • the court rendered judgment for the plaintiff.

The defendant has assigned as error the action df the trial court in overruling defendant’s demurrer to the petition and rendering judgment for the plaintiff.

The plaintiff’s petition is as follows:

“Plaintiff states that the defendant has since the 15th day of March, 1947, and does' still unlawfully and forcibly detain from plaintiff possession of the premises located at and known as 1183 City Park avenue in the city of Columbus, Ohio; that said defendant entered upon said premises as the tenant of said plaintiff; that said tenancy expired on the date hereinbefore mentioned; that from said date said defendant has unlawfully and forcibly held over said term and that on the 10th day of March, 1947, said plaintiff served upon said defendant, as required by law, notice in writing to leave said premises.

“Wherefore, plaintiff asks process and restitution, together with such other and further relief to which he may be entitled in the premises.”

It will be noted that the plaintiff did not allege in his petition compliance with rent regulations issued under authority of the Emergency Price Control Act. Was the petition demurrable because compliance with rent regulations was not alleged? This precise question is not well settled by the case law in Ohio.

The plaintiff contends that he has complied with the provisions of Section 10452, General Code, which provide:

£ The summons shall not issue herein until the plaintiff files his complaint in writing with the justice, which shall particularly describe the premises so entered upon and detained, and set forth either an unlawful and forcible entry and detention, or an unlawful and forcible detention after a peáceable or lawful entry of the described premises. * * *”

Unquestionably, the plaintiff has alleged a good cause of action under Section 10452, General Code, and but for the rent regulations issued under the authority of the Emergency Price Control Act, the defendant’s demurrer ,was properly overruled. The question then presented is: What effect do the rent regulations have on the rights of a landlord in prosecuting an action in forcible entry and detainer under the Ohio statutes relating to sueh proceedings?

In several opinions decide'd by the courts of this-state, it has been held that the Emergency Price Control Act and 'rent regulations promulgated in pursuance thereof are not binding on the state courts in any case where price is not involved. Callahan v. Wasmire, 39 Ohio Law Abs., 595; Hurst v. Haak, 73 Ohio App., 189, 55 N. E. (2d), 594; Grant v. Herr, 40 Ohio Law Abs., 363, 57 N. E. (2d), 263. In 154 A. L. R., 1462, there appears a statement to the effect that the decision in Grant v. Herr, supra, is out of harmony with the rule adopted by most courts. A contrary view was taken in Hamrick v. Dufford, 71 Ohio App., 552, 50 N. E. (2d), 566, in which the court held that the provisions of the Emergency Price Control Act of 1942 and rent regulations promulgated by the Office of Price Administration are binding upon state courts. That view is supported by the following authorities-in other jurisdictions: Snyder v. Reshenk, 131 Conn., 252, 38 A. (2d), 803; Bell v. Dennis, 158 Kan., 35, 144 P. (2d), 938; Ritchie v. Johnson, 158 Kan., 103, 144 P. (2d), 925; Morrison v. Hutchins, 158 Kan., 123, 144 P. (2d), 922; Bumgarner v. Orton, 63 Cal. App. Supp. (2d), 841, 146 P. (2d), 67; Bauer v. Neuzil, 66 Cal. App. Supp. (2d), 1020, 152 P. (2d), 47; Lester v. Isaac, 63 Cal. App. (2d), 851, 146 P. (2d), 524; Wrenn v. Sutton, 65 Cal. App. (2d), 823, 150 P. (2d), 589^

^ All doubt is removed and the matter is put at rest by a decision of the Supreme Court- of the United States in the ease of Parker v. Fleming, 329 U. S., 531, 91 L. Ed., 395, 67 S. Ct., 463, decided January 20, 1947,. in which it held, as set forth in the fourth paragraph of the headnotes in 67 S. Ct., 463:

“The Emergency Price Control Act was intended; in part to prevent excessive rents in the public interest, and anti-eviction regulations of Price Administrator promulgated pursuant to the act were specifically •designed to prevent manipulative renting practices which would result in excessive rents. ’ ’

Accordingly, we hold that, under Article VI of the United States Constitution, the provisions of the Emergency Price Control Act and rent regulations promulgated under authority of the act are the supreme law of the land and are binding on state courts. The provisions of the act and the rent regulations issued thereunder impose additional burdens and restrictions on the rights of a landlord in prosecuting an action to dispossess a tenant under local law.

We revert to the principal question: Is the plaintiff required in the complaint to specifically aver compliance ‘with the rent regulations Í The Ohio authorities hereinbefore cited did not involve a question of pleading. In Kirschbaum v. Mobley, 26 Ohio Opinions, 333 (Municipal Court of Cleveland), and in Kinkopf v. Martoni, 37 Ohio Law Abs., 523 (Common Pleas Court of Cuyahoga county), 'it was held that compliance with the rent regulations is jurisdictional and must be alleged in the complaint. The cases hereinbefore cited- from Kansas and California take the same view of the matter. Both these states have statutory provisions similar to Section 10451, General Code, which provides for giving a three-day notice to the tenant to leave the premises, and Section 10452, General Code, which prescribes what the complaint shall contain.

A proceeding in forcible entry and detainer was not a remedy at common' law, but was given by statute. Yager v. Wilber, 8 Ohio, 398, 399. The Legislature deemed it advisable to prescribe specifically what the complaint of the landlord shall contain. Section 10452, General Code. A complaint is sufficient if if conforms to the provisions of this statute. 19 Ohio Jurisprudence, 187; Barto v. Abbe, 16 Ohio, 408; Brown, Gdn., v. Burdick, 25 Ohio St., 260; Ruminski v. Brenzo, 11 Ohio Law Abs., 351. Authors of forms of pleading (Swan Treatise [29 Ed.], 529; Bates [4 Ed.]? 1394, Section 1533 F.-2) suggest that in a landlord’s' complaint an allegation be made that the notice to leave the premises as required by Section 10451, General Code, has been given. This has been the accepted practice, although no such allegation is required by Section 10452, General Code, which is controlling. It has been held that if the complaint conforms to the statute no allegations of additional facts are required. Barto v. Abbe, supra; Brown, Gdn., v. Burdick, supra.

■ ■ It may. be conceded that in the absence of a statute which specifically provides what the plaintiff shall allege to constitute a good cause of action, compliance with such rent regulations, which are in the nature of conditions precedent, should be affirmatively pleaded under the ordinary rules of good pleading. However,when the Legislature has set forth specifically in a statute what allegations shall constitute a good cause of action, the ordinary rules of good pleading must give way to the statutory provisions. The Congress in enacting the Emergency Price Control Act very carefully refrained from making any attempt to control the procedural steps to be taken by the state courts in the exercise of their jurisdiction. Likewise, the Office of Price Administration very wisely provided in Section 6 (a) of the Rent Regulations that “no tenant shall be removed” rather than no action shall be begun. We find no provision in the Emergency Price Control Act or the rent regulations which expressly or by necessary implication attempts to control, limit or restrict the application of the plain and unequivocal provisions of Section 10452, General Code. Compliance with the rent regulations becomes a matter of .proof rather than a matter of pleading. The demurrer was properly overruled. The judgment is affirmed.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


author: Ross, J.

text:
    Gerbig, Appellee, v. Numrich, Appellant.

      (No. 6832
    Decided October 13, 1947.)

      Messrs. Cowell & Fletcher and Mr. Richard B. Baker, for appellee.

      Mr. Donald E. Calhoun, for appellant.
   Ross, J.

This is an appeal on questions of law from-a judgment of the Common Pleas Court of Hamilton county in favor of the plaintiff, who filed an action against the defendant, claiming .compensatory and punitive damages for fraud and misrepresentations-on the part of the defendant in a sale to plaintiff of a used automobile.

Prom an examination of the petition and evidence of plaintiff, it is apparent that the right of recovery is predicated on the case of Saberton v. Greenwald, 146 Ohio St, 414, 66 N. E. (2d), 224, 165 A. L. R., 599, in which, by a four to three decision, a judgment of this court was reversed. The Supreme Court held in paragraphs one and two of the syllabus:

“Section 8453, General Code, permits and Section 8449, General Code, does not forbid an action ex delicto against the seller where a sale of merchandise has been induced by fraud or misrepresentation.

“In an action to recover damages for a tort which involves the ingredients of fraud, malice or insult, a jury may go beyond the rule of mere compensation to the party aggrieved and award exemplary or punitive damages.”

Judicial subordination requires this court- (regardless of its continued adherence to the rule maintained in that case) to follow the law pronounced in the Saberton case. The salutary provisions of the sales act, so generally accepted throughout the nation, must be ignored and the action considered as a simple tort-action for fraud and misrepresentation.

Such being the case, however, the rules and principles applying to such an action must be followed. The facts in the instant case and those in the Saberton case are widely different.

The plaintiff in the instant action was shown a used automobile, brought to her by a friend, Albert Poole, in June 1945. It was driven by an employee of the defendant. It was examined before purchase by Poole, the plaintiff and a mechanic by the name of Murphy from whom plaintiff borrowed $100 to pay on the purchase price of the car. The plaintiff and Murphy drove the car before purchase. Poole called the plaintiff’s attention to a noisy gear.

The defendant told plaintiff the car had been in a fire, but “it had all the parts in it” and “he would fix anything when I brought it back” and that it was in “good condition” and would be warranted under “government warranty.”

The car was a Hudson coupe, 1939 model, and was, therefore, at least six years old at the time it was purchased by plaintiff. »

The warranty referred to provides:

‘ ‘ The used car described below is hereby warranted to be in good operating condition, and to remain in such condition under normal use and service for a period of 30 days after delivery, or 1,000 miles, whichever may first occur.

“We agree, if said vehicle is delivered during the above period to our place of business, to make with reasonable promptness any repairs or replacements which may be necessary to its good operating condition in accordance with normal use and service, at a cost to the purchaser named below of not more than 50% of the normal charge for such repairs and replacements. Our normal charge is not in excess of OPA ceilings.

“This warranty does not extend to tires, .tubes, paint, glass, upholstery, or to any repairs or replacements made necessary by misuse, negligence, or accident. ’ ’

The plaintiff complains that the engine overheated, that the window wiper and radio would not operate, that the oil leaked, but that “he finally fixed it.” The plaintiff drove the car until September 1945, when it was then found to have a cracked engine-block.

The plaintiff drove the car into a pole, damaging one of the lights and thereafter was refused a certificate by the operators of the city “Safety Lane” because of defective lights.

The car in August 1945 stalled and when it was pushed by another car, the transmission, which had become locked, was damaged. The plaintiff took.the car to the defendant who. replaced the damaged part of the transmission and the plaintiff paid the defendant for such repairs.

There is no evidence that the engine block was cracked at the time the car was sold to plaintiff. The plaintiff tendered the car to defendant, who refused to accept it, and it was left in the garage where the defect in the engine block was discovered.

The verdict was for $675.

The court charged the jury as follows:

“And if you should find that there were misrepresentations made by the defendant, and they were maliciously made, then you may include in the amount of damages which you find for the plaintiff a reasonable amount for attorney’s fees, and by way of punishment or detriment from others making like misrepresentations. Of course, that is all founded upon the question that you find that misrepresentations and fraud was committed by the defendant.”

■ Whether this verdict included attorney’s fees and punitive damages is a matter of conjecture.

The net result of the trial is that the plaintiff has the automobile and $675, if she is paid the amount of the verdict.

The evidence shows that the plaintiff did not rely entirely upon any statement or representation of the defendant, but rather upon the opinions of her two friends, as well as her own inspection; that the several defects appearing in the car were corrected by the defendant, upon request; that it was because of damages caused’ by plaintiff’s operation of the car that it was refused certification in the "Safety Lane”; and that .the serious damage to the car was caused when it was pushed while the transmission was locked.

There is no evidence showing when or how the engine block was cracked.

It appears, therefore, that the plaintiff purchased an automobile which she knew was six years old and had been in a fire, and that after driving it from June until August, she paid the defendant $65 to have the transmission repaired. Certainly, by that time she should have known whether the defendant was guilty of fraud and misrepresentation. When she paid the defendant, she evidently considered the damage her own responsibility.

The evidence, in this case, wholly fails to sustain the claims of fraud and misrepresentation, or that the car when delivered to the plaintiff was in any other condition than would be expected to exist in a used automobile six years old and one that had been in a fire.

The judgment of the Common Pleas Court is reversed, and judgment is here entered for the defendant.

Judgment reversed.

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