author: Guernsey, J.

text:
    Hinkle, Appellee, v. Lennox Furnace Co.; Board of Review, Bureau of Unemployment Compensation, Appellant.
    (No. 957
    Decided March 4, 1948.)

      Mr. F. W. Gooding, for appellee.

      Mr. Hugh 8. Jenkins, attorney general, and Mr* John M. Woy, for appellant.
   Guernsey, J.

This is an appeal on questions of law.

The plaintiff, appellee herein, Andrew F. Hinkle,' ■who will hereafter he referred to as claimant, was employed as a sweeper by the Lennox Furnace Company of Lima, Ohio. He was employed from September 26, 1946, until October 22, 1946, but did not work from October 12, 1946, to October 20, 1946. He returned to work and worked on October 21, 1946, and on October 22, 1946, and then quit his' employment. When he left his employment on October 22,1946, he returned to his home with a temperature of .102.6 degrees. Before quitting his work he consulted a doctor who informed him that he could not do the kind of work he had been doing. He informed him also that he then had a bronchial ailment, and his heart was also affected. The doctor informed him also that he should do no heavy work but was okay for watchman and checking •and the like and was able to do only light work. He called for his pay check on November 1. Claimant, at the time of hearing before the referee, was 58 years of age and had varicose veins in his legs and also had hernia. Claimant’s employer was willing and ready fo continue him in same employment but claimant refused to continue. Claimant, after quitting his employment, made applications for employment to various employers for lighter work than he had been doing, but did not obtain employment.

On November 2, 1946, claimant filed a claim for unemployment compensation which was allowed by the administrator.

On November 27, 1946, the employer protested the allowance of the claim and on December 9, 1946, upon reconsideration of the claim, in accordance with the provisions of Section 1346-4, General Code, the administrator denied benefits upon the ground that the claimant had voluntarily quit his work without just cause and was, therefore, disqualified under the provisions of paragraph d (9) of Section 1345-6, General Code.

On December 12, 1946, claimant appealed to the Board of Review from the decision of the administrator denying benefits.

On January 28, 1947, a hearing was held in Lima before a referee who affirmed the decision of the administrator, denying benefits upon the ground that claimant was not available for work, as prescribed in paragraph a (4) of Section 1345-6,-General Code, rather than upon the basis of his voluntarily quitting his employment without just cause, as previously held.

The claimant then filed an application for a further appeal before the Board of Review, which was disallowed by the board on May 16, 1947.

An appeal was then taken by the claimant to the Common Pleas Court of Allen county.

On application of the.Board of Review it was duly made a party defendant to the action in the Common Pleas Court.

On the hearing of the appeal by the Common Pleas Court it reversed the decision appealed from, for the stated reason that the same is manifestly against the weight of the evidence, and remanded the cause to the Bureau of Unemployment Compensation for further proceedings in accordance with its judgment of reversal.

That is the judgment from which this appeal is taken by the defendant Board of Review, appellant herein.

In his application for unemployment compensation the claimant made the following statements, among others, to wit:

“I left Lennox Furnace Company because of illness. I was able to work as of 10-26-46 doing the type of work covered by medical statement attached. I have had 4 nights watching and about 1 year checking materials at the Lima Tank Depot. ”

In the file of the Bureau- of Unemployment Compensation, certified to the Common Pleas Court is a copy of the written statement of Albert W. Veit, M. D., which is apparently the medical statement referred to by the claimant in his above-quoted staetment as being attached to the application. This statement is in the words and figures following, to wit:

“Dr. Albert W. Veit “Wapakoneta, Ohio “11-6-46

“Mr. A. F. Hinkle has hernia, varicose veins and moderate myocarditis & is unable to do heavy work. Watchman, checking and the like would be more the type of work he should do. ’ ’

The report of the referee shows that on the hearing before him the only evidence submitted was the testimony of claimant, which is as follows:

“Began March 8, 1943, at Lima Tank Depot and worked until 11-30-45 at which time company changed name to Lima Ordnance Depot and he continued on under this name until Sept. 20, 1946. Was sent to company Dr. for examination & he said work I was doing (material handler) was too heavy for my condition & should have lighter work. Since they had no job open doing lighter work I was laid off. Began SepL 26, 1946, at Lennox Furnace Company. Was employed as sweeper but had to take big scoop shovel full of steel shavings & scatter them on oily floor and scoop them up after they soak up the oil and wheel them away in a wheel barrow. Got sick about 14th of Oct., 1946, and was off a week. Went back & worked the 21st and 22nd and came home with 102.6 degrees temperature. Went to Dr. and he said not to do that kind of work. Called for check on Nov. 1. Now had bronchial ailment — also heart affected. Supt. of plant was notified both times that I was sick. Dr. said no heavy work. OK for watchman and checking and the like. Able only to do light work. 58 years old. Tried Graham Company in Wapakoneta for job. Tried several times and left application at Lima Tank. Tried Lennox again and inquired around. Can’t be continually on feet — varicose veins in legs. Also have hernia. No lifting. When I took job at Lennox I didn’t know that sweeping included cleaning floor with metal shavings and wheeling them out. I quit about Nov. 2 by telling Supt. about Dr.”

Based upon that testimony, the referee made the following findings of fact, to wit:

“On September 26, 1946, claimant was employed by the Lennox Furnace Company as a sweeper. His duties consisted of scattering steel shavings on the oily floor and after the shavings had soaked up the oil to load them on a wheelbarrow with a big scoop shovel and wheel them away. He testified that he is 58 years of age and that this work was too heavy for him. He testified that he became too ill to continue this work on October 21, and that his doctor advised him that he could not perform work of that kind. He is only able to do light work such as a watchman’s job or something of a similar nature. ’ ’

Upon those findings of fact he made the following conclusion of law, to wit:

“Inasmuch as claimant’s physical condition and age limit the type of work he can do to work of a very light 'nature, it must be concluded that he has limited his 'availability to such an extent as to be disqualified by virtue of Section 1345-6 a (4), General Code of Ohio, which provides that a claimant must be able to work and available for work in his usual trade ór occupátion.”

It is the contention of defendant board that the judgment of the Common Pleas Court is contrary to law in that the claimant was precluded by the following provisions of paragraph a of Section 1345-6, General Code, as amended in 121 Ohio Laws, 635, and as in effect at the time of claimant’s employment, and subsequent thereto, from being entitled to any benefits, to wit:

“a. No individual shall be entitled to any benefits unless he or she

“(4) is able to work and available for work in his usual trade or occupation, or in any other trade or occupation for which he is reasonably fitted; and

“(5) is unable to obtain work in his usual trade or occupation or any other employment for which he is reasonably fitted including employments not subject to this act.”

As supporting that contention the defendant board relies upon the decision in the case of Brown-Brockmeyer Co. v. Board of Review, 70 Ohio App., 370, 45 N. E. (2d), 152, and also the decision in the case of Mary Homer Stevens v. Selby Shoe Co., Inc., in the Court of Appeals of the Fourth Appellate District, Scioto county, Ohio, decided on January 15, 1945, which case has not been officially reported, in which the decision in the Brown-Brockmeyer case is approved and followed.

In the first, second and third paragraphs of the syllabus in the Brown-Brockmeyer case, supra, it is held:

“1. In order to recover compensation under the provision of the Unemployment Compensation Act that ‘no individual shall be entitled to any benefits unless he or she is capable of and available for work’ (Section 1345-6, General Code, 118 Ohio Laws, 266),- the claimant must be capable of and available for work which he or she had been doing. Therefore, a claimant, although justified in leaving her job because of ill health caused by the working conditions, can not recover unemployment compensation where the job remained open for her and she refused to return to it.”

“2. Unemployment compensation is not in the nature of sick benefits.

“3. The term ‘fitted’ as used in the Unemployment Compensation Act providing that ‘no individual shall be entitled to any benefits unless he or she is unable to obtain work in his usual trade or occupation or any other employment for which he is reasonably fitted * * *’ (Section 1345-6, General Code, 118 Ohio Laws, 266), refers to training and experience and is not synonymous with the word ‘suitable,’ which means adapted to the claimant’s physical condition.”

We quote the pertinent provisions of Section 1345-6, General Code (118 Ohio Laws, 266), as construed in that decision.

“(b) No individual shall be entitled to any benefits unless he or she

“ (1) Is capable of and available for work;

“ (2) Is unable to obtain work in his usual trade or occupation or any other employment for which he is reasonably fitted including employments not subject to this act, or is suffering loss of remuneration by reason of involuntary partial unemployment (as defined in Section 1345-1).”

We agree with the construction placed by the court on the provisions as they were quoted in the decision in the Brown-Broclimeyer case, supra.

However, the pertinent provisions of that section have been amended subsequent to that decision and prior to the decision in the case of Mary Homer Stevens v. Selby Shoe Co., Inc., supra., and as in effect at the time covered by the latter decision, and the rendi'tion thereof, and at the present time, are as follows:

“Section 1345-6.

“a. No individual shall be entitled to any benefits umless he or she

“(4) is able to work and available for work in his usual trade or occupation, or in any other trade or ‘occupation for which he is reasonably fitted; and

“ (5) Is unable to obtain work in his usual trade or •occupation or any other employment for which he is reasonably fitted including employments not subject "to the unemployment compensation act.”

It will be noted that in the amended section, paragraph a (4) of Section 1345-6, General Code, has replaced paragraph b (1) of the section as construed at the time of the decision in the Brown-Brockmeyer •Company case, supra, and the claimant’s test of eligibility for benefits prescribed in paragraph b (1) has been changed so that two alternative tests, instead of the single test prescribed in paragraph b (1), are now prescribed.

The alternative tests of eligibility now prescribed, are:

1. Ability to work and availability for work in his usual trade or occupation.

2. Ability to work and availability for work in any other trade or occupation for which he is reasonably fitted.

If claimant qualifies on either test he is eligible to receive benefits so far as the provisions of paragraph a (4) of the section are concerned.

It will also be noted that in the amended section, paragraph a (5) of Section 1345-6, General Code, has replaced paragraph b (2) of the section as construed at the time of the decision in the Brown-Brockmeyer case, supra.

The phrase “or any other employment for which he is reasonably fitted” is incorporated in the amended provisions, and the term “reasonably fitted” is used’ in the same sense as it was used before the amendment.

The general purpose and intent of the section has not been changed by any of the amendments thereto.

We agree that paragraphs two and three of the syllabus in the Brown-Brockmeyer Co. case, above quoted, are applicable to the section as amended, but are of the opinion that paragraph one of the syllabus in that case, apparently followed and applied by the referee in the instant case, by reason of the change in phrasing of the provisions hereinbefore quoted has not been applicable to the Section 1345-6, General Code, since the amendment hereinbefore mentioned.

Consequently we are of the opinion that the referee in his decision, and the Court of Appeals of the Fourth Appellate District, in its unreported decision above mentioned, erred in following and applying the holding in paragraph one of the syllabus in the Brown-Brockmeyer Co. case, supra, and in not giving proper effect to the changes made in the tests of eligibility for benefits under the provisions of Section 1345-6, General Code, as amended, hereinbefore mentioned.

Giving effect to these changes, the claimant is eligible for benefits if he is able to work and available for work in any other trade or occupation for which he has reasonable training and experience, notwithstanding he is not able to work and is not available for work in his usual trade or occupation.

The phrases “able to work” and “available for work,” as used, prescribe and are intended to prescribe two separate and distinct states of fact. The phrase “able to work,” as used, means “physical capability to work,” while the phrase “available for work,” as •used, does not comprehend “physical capability to work” as it would in the ordinary sense, but means '“readiness to work.”

We will, therefore, apply these tests of eligibility, to the claimant in the instant ease.

It appears from the quoted testimony and findings •of fact, that claimant is physically capable of performing certain types of light work such as watching, checking, or similar work, so that within the meaning of the provisions he is able to work.

It appears from the claimant’s application for compensation that he had four nights of experience and training in night watching, and about one year of experience and training in checking materials at the Lima Tank Depot.

Although the referee made no finding in this respect, it appears from the quoted testimony, which is uncontroverted, that claimant began work on March 8, 1943, at Lima Tank Depot, and worked until November 30, 1945, at which time company changed name to Lima Ordnance Depot, that he continued to work on under this name until September 20,1946, and that the work -done by him included the handling of materials, which tends to prove that claimant has had sufficient training and experience to qualify him to work as a watchman, checker, or in some similar capacity, it being a matter of common knowledge, of which the courts take judicial notice, that work of this character does not require any special training or experience.

Although the referee made no finding of facts in this respect, the quoted testimony, which is uncontroverted, tends to prove that claimant was ready to work as a watchman, checker, or the like, which work he was physically capable of performing and for which he was reasonably fitted by training and experience, and it is a matter of common knowledge, of which the courts take judicial notice, that men are-being employed in the capacities mentioned, in Lima,. Ohio, where claimant is located and sought such employment. It is also apparent from the record that claimant was unable to secure such employment.

The manifest weight of the evidence, therefore, establishes that although claimant was not able to work and available for work in his usual trade or occupation, he was able to work and available for work in other occupations for which he is reasonably fitted,, and was unable to obtain such work and was, therefore, eligible to receive benefits.

For the reasons mentioned, we find that the Common Pleas Court did not err in reversing the decision of the referee as being manifestly against the weight of the evidence and we, therefore, affirm the judgment of the Common Pleas Court, at the costs of the defendant board.

The legal questions involved in this case are the-same as were involved in the case of Mary Homer Stevens v. Selby Shoe Co., Inc., in the Court of Appeals of the Fourth Appellate District, Scioto county, decided on January 15, 1945, above mentioned, and we find that the judgment upon which we have agreed upon in this case is in conflict with the judgment pronounced upon the same question by the Court of Appeals of the Fourth Appellate District, Scioto county, in the case above mentioned, wherefore the record in the instant cause is certified to the Supreme Court of Ohio for review and final determination.

Judgment affirmed..

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


source: Caselaw Access Project

author: Matthews, P. J.

license: Public Domain

text:
    Patterson, Appellant, v. Pollock et al., Appellees.
    (No. 6934
    Decided December 20, 1948.)

      Mr. Henry B. Street and Mr. Walter K. Sibbald, for-appellant.

      Mr. Nathan Soling er, for appellee Abe E. Robinson..
   Matthews, P. J.

Tbe notice of appeal recites that' the appeal is on questions of law from the order of the-Common Pleas Court entered on the 26th day of November 1947, ordering the plaintiff, appellant herein,, to restore the cause to its status prior to the making of certain entries therein set aside by placing the funds obtained from the Globe Wernicke Company in the-custody of the clerk of the court.

The plaintiff’s action was on a written contract dated February 14,1947, whereby the defendant agreed, to pay to the plaintiff $4,600 as consideration for an order which the plaintiff had obtained from the GlobeWernicke Company for the manufacture of certain office supplies. The plaintiff gave the defendant credit' for $400, which he had paid and prayed judgment for-$4,200, with interest.

The defendant was a nonresident and, on that-ground, an order of attachment and garnishment was obtained,’ naming the Globe Wernicke Company as-garnishee. By letter to the clerk of courts, the GlobeWernicke Company acknowledged that it owed the-defendant $4,755.54, which it stated it withheld pending the action of the court.

Thereafter, Abe E. Robinson, by leave of court, filed an application for leave to intervene. In this application he alleged that the plaintiff was “in fact a constructive trustee for the applicant in the subject-matter of the petition.” This application was supported by the affidavit in which he set forth that the-plaintiff had been his employee; that while he was so-employed affiant had initiated negotiations with the ■Globe Wernicke Company for this order to manufacture office supplies, and then assigned the task of continuing the negotiations to the plaintiff as his agent; that plaintiff continued the negotiations as his agent until February 7,1947, and was paid a salary by affiant for so doing; that on that date plaintiff abruptly withdrew from affiant’s employ without notice of any kind, .and immediately proceeded to continue the negotiations on his own behalf, resulting in the contract sued upon by the plaintiff; and that the plaintiff violated his duty of loyalty to the affiant and by reason thereof became a constructive trustee for affiant’s benefit. •

The court granted the application to intervene, to which no exception was taken. Thereupon, Robinson filed an intervening petition, setting forth in somewhat ■greater detail the averments of his affidavit in support •of his application for leave to intervene. The prayer was that the court grant the prayer of the petition, but impress a trust upon it in favor of the intervenor and ‘ ‘ such additional relief as may be proper in the circum•stances. ’ ’

To that intervening petition, the plaintiff answered, admitting that he had been employed by the intervenor with a drawing account, and denying all other allegations.

The defendant entered a general denial to the inter•vening petition.

Neither the plaintiff nor the defendant challenged the legal sufficiency of the intervening petition.

The law relating to the duty of the agent after termination of the agency is set forth in Section 396 of 2 Restatement of the Law of Agency, as follows:

“Unless otherwise agreed, after the termination of the agency, the agent:

“ (b) Is subject to a duty to tbe principal not to use or disclose to third persons, on his own account or on account of others, in competition with the principal or to his injury, trade secrets, written lists of names, or-other similar confidential matters given to him only for the principal’s use or acquired by the agent in violation of duty. The agent may use general information concerning the method of business of the principal and the names of the customers retained in his memory, if not acquired in violation of his duty as agent. ’ ’

See, also, 2 American Jurisprudence, 219, Section 272, where it is said:

‘ ‘ After the termination of the agency, according to the American Law Institute’s view on the point, an agent, unless there is a contrary agreement, is subject to a duty to the principal not to use or disclose to third' persons, on his own account or on account of others, in competition with the principal or to his injury, trade secrets, written lists pf names, or other similar confidential matters given to him only for the principal’s use or acquired by the agent in violation of duty. The agent may use general information concerning the method of business of the principal and the names of' the customers retained in his memory, if not acquired in violation of his duty as agent.”

It is manifest that the intervenor by his allegations that be had specifically delegated to the plaintiff the duty of continuing the negotiations initiated by intervenor with The Globe Wernicke Company and that the plaintiff without notice to him and in betrayal of' the trust reposed in him, proceeded to negotiate on his own behalf, intended to bring himself within the rule just quoted. We do not consider that the case presented requires us to determine whether he has succeeded as though upon demurrer. There is no doubt'. whatever that a violation of the rule creates a cause of action in favor of the principal.

While the pleadings were in this state, the attorney for the plaintiff presented an entry to the court and the court directed that it be spread upon the journal reciting that differences of opinion had arisen between the plaintiff and his counsel making it impossible for counsel to further represent the plaintiff; that plaintiff had discharged his counsel and counsel acknowledging payment in full for his services, upon his application he was “removed of record as counsel for plaintiff.”

On the same day the order removing counsel of record was journalized, the plaintiff presented an order dissolving the attachment and releasing the garnishee and authorizing it to dispose of any funds it was holding in any way it saw fit.

On the following day, the plaintiff personally presented an entry reciting that all matters in controversy had been compromised, settled, and fully satisfied and that “the petition hertofore filed is hereby dismissed.” This was ordered entered by the court and was so entered.

Four days after the dismissal, the intervenor filed a motion to set aside the entry dismissing the action, the entry dissolving the attachment, and also the entry permitting plaintiff’s counsel to withdraw on the ground that all the entries had been made without notice to the intervenor. In his motion, the intervenor asked the court to require the parties to restore the case to its status prior to the making of the entries of which he complained.

As the result of a hearing on the motion, the court .found that the entries complained of were presented without notice to the intervenor and without informing the court of the interest of the intervenor and that immediately following the journalization of the entries, the funds that had been sequestered in the hands of The Globe Wernicke Company, as garnishee, had been obtained by the plaintiff and defendant and distributed by them. On this finding, the court sustained the motion and set aside and held for naught all the challenged entries and ordered the plaintiff and defendant to restore the cause to its status prior to the making of the entries, by placing the fund obtained from The Globe Wernicke Company in the custody of the clerk of courts within three days, where it would be held subject to the further order of the court. The plaintiff appealed from this order and assigned as errors that the plaintiff had the absolute right to dismiss his petition, and, therefore, the court erred in setting aside the entry of dismissal, and also that the court had no jurisdiction to require the plaintiff to restore the case to its status prior to dismissal by paying the money collected from the garnishee to the clerk of courts to abide the further order of the court.

(1) We are cited to Section 11586, General Code, and the case of State, ex rel. Cash, v. Rose, Judge, 136 Ohio St., 143, 24 N. E. (2d), 455, construing it, and the claim is made that the court disregarded the absolute right given the plaintiff to dismiss his action when it set aside the entry of dismissal. It will be noted that the entry in the case at bar does not in express terms purport to dismiss the action. It recites that the controversy between plaintiff and defendant had been settled and that “the petition — is hereby dismissed.” The intervening petition is not' mentioned. In the Cash case, supra, the court, speaking of plaintiff’s right to dismiss, said at page 146: “She was, therefore, in the absence of any intervening party seeking affirmative relief, entitled to prosecute or dismiss her action at her election.” (Emphasis ours.) It may be that the plaintiff by the language used had in mind the quoted language and intended only to abandon his position as a plaintiff seeking relief. However, the case has been presented to this court as though the entry that the court set aside effected the dismissal of the entire action including the intervening petition. We hold that if the order of the court had that effect it was erroneous in the absence of consent by the intervenor. We also hold that no prejudice could result to the plaintiff by the action of the court in setting aside the entry, because if it left the action still pending on the issues raised by the intervening petition and the answers thereto, the plaintiff remained a party to the action, amenable to all lawful orders of the court.

(2) We have already pointed out that the intervening petition contains averments showing a'breach of loyalty on the part of the plaintiff as the agent of the intervénor, from which a cause of action against the plaintiff arose. Now is this cause of action of such a nature as to give the intervenor an interest in or title to the cause of action asserted by the plaintiff against the defendant? It is clear that the intervenor has no independent right against the defendant. Whatever right he has must be derived from his relation to the plaintiff.

In 2 Restatement of the Law of Agency, at Section 399, the rule is stated as follows:

“A principal whose agent has violated or threatens to violate his duties has an appropriate remedy for such violation. Such remedy may be:

*****

“(d) An action of quasi contract or an equitable action to enforce a constructive trust * *

By the last clause of Section 314 of 2 Restatement of the Law of Agency, it is said: “One who receives such things without notice but who is not a bona fide purchaser is subject to liability as a constructive trustee or to the extent to which he has been unjustly enriched.”

In 40 Ohio Jurisprudence, 308 et seq., Section 114, it is stated that: “If, however, the employee has secured a lease, or made profits * * * by virtue of his confidential relation with his employer, the court of equity may, through the device of a constructive trust, impress this lease, profit, or advantage with a trust in favor of the employer-cestui que trust.”

The circumstance that the advantage obtained by the employee is in the form of a chose in action when the employer discovers the disloyalty and asserts his right is unimportant.

In his discussion on what may constitute the subject matter or corpus of a trust it is said in 1 Bogert on Trusts and Trustees, 358, Section 114, that: “The word ‘thing’ * * * includes, of course, both tangible and intangible entities. The creditor’s claim against a debtor, the stockholder’s claim against his corporation, are ‘things,’ as well as an automobile or a tract of land.

“Interests in choses in action are among the more common types of trust property.”

This whole subject of the right of the cestui que trust of a chose in action to enforce the trust, and the method of so doing, is discussed at length in 1 Scott on Trusts, at page 124 et seq. At page 124, it is said: •“ It is now well settled, however, that in order to avoid multiplicity of actions the beneficiary may join the obligor as a codefendant with the trustee, and thus the whole matter can be disposed of in a single suit.”

We conclude on this phase of the case that Robinson had a right against the plaintiff, which he could assert in any form of action appropriate to the circumstances and that as the circumstances existing at the time this action was filed, the debt owing by the defendant constituted the trust res an action in which plaintiff and defendant were parties, to enforce the intervenor’s claim against it would have been appropriate and that as the intervenor found an action already pending between them involving that subject matter, it, his intervention therein, was- justified by the facts and the law. That such right of intervention is clear is manifest by reason of the provision of Section 11263, General Code, and its interpretation set forth in 30 Ohio Jurisprudence, 793 et seq., Section 65 et seq.

See, also, on this subject 39 American Jurisprudence, 939, Section 67, and 39 American Jurisprudence, 928 et seq., Section 55 et seq.

(3) But it is said that assuming all that has been said to be correct, nonetheless the court had no power to order the plaintiff and defendant to restore the status quo by paying into the custody of the clerk of courts the amount of money which they had obtained from the garnishee by improperly securing its release from the obligation to hold to await an order of the court after a hearing on due notice to the parties.

In 14 American Jurisprudence, 370, Section 171, it is stated:

‘ ‘ The ‘ inherent powers ’ of a court are such as result from the very nature of its organization and are essentia] to its existence and protection and to the due administration of justice. It is fundamental that every court has inherent power to do al] things that are reasonably necessary for the administration of justice within the scope of its jurisdiction. ’ ’

In 11 Ohio Jurisprudence, 644, Section 9, it is said: ’“The.power of a court to enforce its own proper orders is fundamental and inherent * * * The right to grant a rehearing is one of the essentials that inheres in the jurisdiction of the Supreme Court.”

Of course, the power to punish for contempt is one of the most frequent occasions for exercising the inherent power of the court. Such power is not infrequently exercised to punish those who impose on the court. When such imposition exists it would seem that an order requiring the relinquishment of the advantage obtained by the imposition, would be the minimum requirement.

In United States v. Morgan, 307 U. S., 183, at 197, 83 L. Ed., 1211, 59 S. Ct., 795, the court said:

“What has been given or paid under the compulsion of a judgment the court will restore when its judgment has been set aside and justice requires restitution.” The court cites in support: Northwestern Fuel Co. v. Brock, 139 U. S., 216, 219, 35 L. Ed., 151, 11 S. Ct., 523; Ex parte Lincoln Gas & Electric Co., 257 U. S., 6, 66 L. Ed., 101, 42 S. Ct., 2; and Baltimore & Ohio Rd. Co. v. United States, 279 U. S., 781, 73 L. Ed., 954, 49 S. Ct., 492.

It has been suggested that the court lost all jurisdiction by reason of the payment by the garnishee on the theory that loss of jurisdiction over the res terminated the power of the court. That might be true if the jurisdiction of the court had been dependent solely upon retention of the res, but in this case the court had acquired jurisdiction of both the plaintiff and defendant. The defendant had entered a general appearance by filing an answer to the plaintiff’s petition and the plaintiff and defendant had entered their appearances to the intervening petition by filing answers thereto.

We find nothing in the record that would preclude the attorney for the plaintiff from withdrawing as attorney of record, and, for that reason, the order setting aside that order is reversed.

For the reasons given, the other orders are affirmed.

Judgment accordingly.

Matthews, P. J., and Hlldebrant, J., concur in the syllabus, opinion and judgment.

Ross, J., concurs in that portion of the opinion reversing the order of the trial court, and dissents as to that portion of the opinion affirming orders of the trial court, and concurs in paragraphs one and four of the syllabus.


author: Hildebrant, J.

text:
    McNees, Appellee, v. The Cincinnati Street Ry. Co., Appellant.

      (No. 7027
    Decided January 10, 1949.)

      Messrs. Hoover, Beall, Whitman & Eiehel, for appellee.

      Mr. C. R. Beirne, for appellant.
   Hildebrant, J.

This is an Industrial Commission case, in which the dependent widow’s claim was denied by the commission for the reason “that the claim be disallowed on rehearing for the reason that the claimant has failed to prove by the preponderance of the evidence that the decedent’s death was the result of an injury sustained in the course of, and arising out of employment with the employer named herein.”

On appeal to the Common Pleas Court the following interrogatory was propounded to the jury:

«i “Was the cause of Taylor McNees’ death, the mental strain and excitement of the driving conditions which prevailed as he drove the trolley bus on the night of January 17, 1944?”

The jury answered the interrogatory* ” Yes,” and returned a general verdict for the defendant.

Plaintiff moved for judgment notwithstanding the general verdict, on the ground that the evidence in the case and the special verdict of the jury in answer to the interrogatory justified and required such a judgment. The court granted the motion.

The principal question in the case is whether decedent suffered an injury within the meaning of the law in the course of and arising out of his employment by the defendant, who is an employer qualified under the law to pay compensation direct.

There is no substantial dispute as to the facts surrounding the death.

The record reveals that decedent had been employed for a number of years by the defendant as an operator of its trolley busses. Plaintiff testified that decedent, who was 57 years of age, was in apparent good health, except that for a period of a year or more he had complained of shortness of breath, dizziness and a pain around his heart, and down his left arm. Decedent was described by a fellow workman as being by temperament excitable, anxious about his work with respect to whether he was to be assigned to. a hard or easy run, and as one who worried about the performance of his regular duties, and that on the night of, and shortly before, his death the decedent was quite excited. Decedent was driving an old style, hard to steer trolley bus on the night of January 17, 1944, about 11 p. m., outbound on the McMicken-Main run, and the night was so foggy that one could not see more than two or three feet ahead. Close to the end of his outbound run, he picked up an inbound woman passenger, asking her help in guiding the path of the bus to the end of the line. His trolleys came off at the terminal and a fellow workman testified he was quite excited about it, and they had some trouble getting him started on his inbound run. Inbound, his route was somewhat irregular for some distance at the start, which he traversed with .the aid of a passenger who testified that he stood on the step in the opened door of the bus and assisted in keeping on the course by observing -the distance to the curb and calling right and left directions to the operator, and at the same time a youth located directly behind the driver made a game of it by calling out exactly opposite directions, although told by the driver to keep quiet. On reaching a comparative straightaway about a mile inbound, the bus ..got so far .off course that the trolleys came off the wires. Decedent got out and attempted to replace the -trolleys. While stalled for that reason, another bus ■came up from the rear and the driver of that bus testified he got out and helped try to replace the trolleys without success. Decedent was in and out of his bus two or three times during these efforts. The drivers agreed to try having the second bus push the first into position to reconnect the trolleys. The driver of the •second bus testified he tried to push the other bus, but •was able to move it only three or four feet, as it seemed to have the brake on, and that on going to investigate, he-found decedent slumped over his steering wheel; that he asked him if he was sick, and he answered “yes,” whereupon, with help he stretched decedent out on the floor of the bus and called a police car, which took decedent to the hospital, where he was pronounced -dead on arrival, as the result of a coronary thrombosis. A woman passenger on the bus testified that decedent •slumped over his steering wheel with a gurgling sound.

There was evidence tending to show unusual physi•cal exertion required in piloting the bus at a speed of •five miles per hour over a wavering irregular course.

The medical testimony offered by plaintiff was con-filled to one expert witness who never saw decedent, who answered a hypothetical question to the effect that the physical strain involved in the driving conditions would and probably did cause the thrombosis. Questioned at call of the defendant, the doctor who examined decedent at the hospital and stated the cause of his death, testified that the mental strain was more apt to have caused the death. Both doctors admitted the thrombosis could be caused by either physical or mental strain or both, or could arise without any apparent strain of any kind being involved.

Under those facts, the question is: Was decedent’s death caused by an injury received in the course of and arising out of his employment?

Starting with the original act of 1911, followed by that of 1913, and through the amendment of Section 1465-68, G-eneral Code, in 1937, by the addition of the following paragraph: “The term ‘injury’ as used in this section and in the workmen’s compensation act shall include any injury received in the course of, and. arising out of, the injured employee’s employment,” the Supreme Court has in a long line of decisions construed and defined the term “injury” as used in the Constitution and statutes and as applied to the limitless diversity of facts with which it has been confronted.- These decisions reveal the reasons and background which have actuated the court by necessity in order to maintain the constitutional differentiation between injury and disease, to append to the bare terms “injuries” and “injury” as used in the Constitution and statutes such language as accidental, physical, traumatic, accidental in origin and cause, accidental in character and result, and used as related to diseases which are occasioned by or. follow as a result of physical injury or acceleration of a pre-existing condition, aggravated by physical injury. For a detailed and discerning history of the judicial construction from the inception of the law, reference is here made to the article entitled “When is an Injury Not an Injury,” by Stephen D. Hadley, of the Akron Bar, reported in 25 Ohio Opinions, 485.

In the case of Malone v. Industrial Commission, 140 Ohio St., 292, 43 N. E. (2d), 266, referring to the 1937 amendment and stating the rule of statutory construction, the court, at page 299, said:

“WThen an existing statute is repealed and a new statute upon the same subject is enacted to include an amendment, as in this case, it is presumed that the Legislature intended to change the effect and operation of the law to the extent of the change in the language thereof.”

We conclude, therefore, that by the amendment, the Legislature intended to do away with all limitation on the word “injury” previously placed thereon by judicial construction, save only the constitutional differentiation made between “injury” and “disease.” This seems to be in accord with the concurring opinion in the Malone case, supra, wherein it is stated:

“Under the effective legislative definition, the word ‘injury,’ as applied in the Workmen’s Compensation Act, includes ‘any injury received in the course of, and arising out of, the injured employee’s employment.’

“It therefore includes every injury thus occurring. Inquiry is thereby limited to determining whether the physical disability in question was caused by trauma and did not result from disease, and whether it occurred in the course of and arose out of the employment. ’ ’

Limiting our inquiry here in conformity to the statement immediately above, it is apparent that the ■coronary thrombosis struck this decedent in the course ■of his employment, and while he was at the steering wheel of his trolley bus. It further appears that by the accident of weather he was exposed to a hazard greater than the general public, who were not required to drive a cumbersome vehicle on the public streets carrying passengers for hire with the consequential responsibility for their safety. It further appears that the driving conditions forced upon the decedent an unusual manner of performing his work and quite out of the ordinary in seeking directions from a passenger located on the step of the opened .door, and complicated as it incidentally was by counter instructions in this case, these circumstances would seem to supply what was missing in the case of Nelson v. Industrial Commission, 150 Ohio St., 1, 80 N. E. (2d), 430, to make it a compensable injury as indicated by the statement of the court at the bottom of page 9:

“In every muscular movement there is stress and strain, but, unless there is something unusual or out of the ordinary in the manner of doing his work, which a person is either forced to undergo or undergoes voluntarily, his death is not compensable when he dies from a condition which has long been with him.” (Emphasis ours.)

Clearly, there was increased physical strain in peering into the blanket of fog, straining to keep on the course. These facts would seem to supply the causal connection between the employment and the mishap, in the light of medical testimony to the effect that the blood pressure could be increased thereby.

As to the question of trauma, it appears to be answered by the following statement in the Malone case, supra, at page 300:

“This court is still committed to the proposition that a compensable injury under the Workmen’s Compensation Act must be accidental and traumatic in character. This is necessary to differentiate compensable injury from disease which is not compensable unless caused by an injury, and except occupational diseases for which special provision has now been made under the law. Such holding, to the effect that a compensable injury must-be accidental and traumatic in character, is in harmony with the holdings of practically all courts of last resort of states where Workmen’s Compensation Acts are in-force. And this court lakes the further position that accidental and traumatic injuries, having the other essential elements of a compensable injury, are compensable whether they are the result of accidental means or the result of the mishap itself proxiribately causing the harm or damage.'” (Emphasis ours.)

We conclude, therefore, that decedent’s death was the result of a sudden mishap occurring by chance, unexpectedly and not in the usual course of events at a particular time and place, and, therefore, compensable under the law.

Plaintiff’s motion for judgment was not based on any claimed inconsistency between the general and special verdicts of the jury, although here such verdicts are inconsistent, but was specifically directed at the general verdict based upon the evidence and the answer of the jury to the special interrogatory.

The facts as to what happened on the night of the death are not in dispute, the only difference in the record going to the opinion of the medical experts, wherein one views physical strain, the other mental strain as more probably the cause of the coronary thrombosis. Even this is not a clear cleavage of opinion, since both admit the thrombosis might be caused by either type of strain, both types in combination, or even without strain at all.

We are of the opinion that the evidence conclusively showed the death due to the unusual stress of the employment at the particular time and place under conditions, not shared in by the public in general, so that' both physical and mental strain to which decedent was-subjected combined to produce the coronary thrombosis as the direct and proximate cause of his death.

The answer to the special interrogatory is not now-inconsistent with a compensable injury or death, in view of the amendment making any injury, or in other-words, every injury compensable suffered in the course of, and arising out of the employment.

Therefore, assuming all the factá claimed by way of' defense and supported by evidence, to be true, nevertheless, there are no facts proven which render the-death under the circumstances here not compensable.

The action of the trial court in granting the plaintiff’s motion for judgment notwithstanding the general verdict is, therefore, sustained (Mahoning National Bank v. City of Youngstown, 143 Ohio St., 523, 56 N.. E. [2d], 218).

This result would seem to be in accord with the current trend and weight of authority in similar cases,, as indicated by the text from 58 American Jurisprudence, 756, Section 255:

“By the weight of authority, the-sudden and unexpected breaking of some portion of the internal structure of the body, as in the case of cerebral hemorrhage,, apoplexy, hernia, etc., or the failure of some essential function thereof, as in the case of heart failure, paralysis, and similar afflictions, brought about by the exertions of the employee while engaged in the performance-of his duties, or by the conditions of the employment, even without any external happening of an accidental’ nature, is to be regarded as an accidental injury within the meaning of the terms ‘injury by accident,’ ‘injury próximately caused by accident,’ ‘personal injury accidentally sustained,’ and similar expressions, as used in compensation statutes, as well as a simple personal injury, although there are holdings to the contrary. And this is true notwithstanding the workman may have been suffering from, a pre-existing infirmity which constituted a predisposing cause of such disablement. It is said, in this connection, that an internal injury which is sudden, unusual, and unexpected is none the less accidental because its external cause is part of the victim’s ordinary work. And the general rule has been held applicable where such affliction results from blood pressure intensified by vigorous muscular activity, while the employee is performing his work in the usual manner, without any extraordinary effort. It is especially applicable where the disablement or affliction is due to extraordinary effort or overexertion. Heart failure, paralysis, or similar affliction, resulting from excitement caused by some. event occurring in the course of the employment has also been held to constitute a personal injury by accident arising out of the employment.”

The judgment is affirmed.

Judgment affirmed.

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

Matthews, J., dissents.


author: Conn, J.

text:
    Grant et al., Appellants, v. Hickok Oil Co., Appellee.
    (No. 4327
    Decided November 22, 1948.)

      Mrs. Jane Myers Sutter, Mrs. Eva Epstein Shaw and Mr. Norman E. Bischoff, for appellants.

      Messrs. Kirkbride, Cole, Frease & Mittendorf, for appellee.
   Conn, J.

This is an appeal on questions of law and fact and was submitted on the original pleadings, transcript of the evidence, docket and journal entries, stipulation of facts, deposition, affidavit and building plans filed in this court, arguments and briefs of counsel.

The plaintiffs in this case are the owners of certain lots in Leesdale Extension and bring this action to obtain a permanent injunction against defendant, enjoining it from erecting a gasoline station and lubritorium on lots 181, 182 and the west 4 feet of lot 183 in such subdivision, on the ground that certain restrictions were “imposed upon said lands in pursuance of a general plan of the subdivision and with the intent that they should run with the land,”- whereby the-property was restricted and the use of same limited' for residence purposes.only for a period ending January 1, 1950.

The answer of defendant admits that certain restrictions were contained in deed for lot 183 dated June 17, 1930, and denies that the restrictions in the deed are-binding on the defendant, and expressly denies that lots 181 and 182 are subject to any restrictions or that “any restrictions were imposed upon said lands in pursuance of a general plan and with the intent that such restrictions should run with the land and should accrue to the benefit of every part of the land and to-the owners and holders of said land, and denies that there was a general plan.”

In addition to certain other specific denials and a general denial, the answer contains second and third •defenses. However, in view of the conclusion we have reached, it becomes unnecessary to consider these defenses and the issues raised thereon.

Counsel for the parties entered into a stipulation •embracing the following facts relevant to the issues raised on the pleadings, and upon this stipulation and the evidence it conclusively appears as follows:

1. The plat of Leesdale Extension executed and placed of record by The Centrada Realty Company, the owner of the platted land, did not contain any restrictive covenants. A set-back line is shown on the plat and is described as “building line.”

2. Following the platting, The Centrada Realty Company executed a deed for lot 175 and also a deed for lot 182, and thereafter executed and delivered a •deed for all the remaining lots in the subdivision to The Dime Savings Bank & Trust Company, trustee. No restrictive covenants were inserted in any one of 'these deeds.

3. The Dime Savings Bank & Trust Company, trustee, subsequently conveyed six lots by separate deeds ■of conveyance and each of such deeds contained restrictive convenants and all the remaining lots were subsequently conveyed to The Ohio Savings Bank & Trust Company, trustee, by deed, and this deed contained no restrictive covenants.

4. The Ohio Savings Bank & Trust Company, trustee, or S. H. Squire, Superintendent of Banks in charge •of the liquidation of the bank, conveyed 25 lots or parts •of lots which conveyances contained restrictive covenants. The Superintendent of Banks subsequently •conveyed by deed to Leesdale, Inc., 75 lots and parts ■of two other lots, which conveyance contained no restrictive covenants.

5. The defendant holds the legal title to lots 181, 182 and the westerly 4 feet of lot 183, which it acquired by warranty deed and which contained no restrictive-covenants; that no such covenants were inserted in any of the deeds in the chain of title for lots 181 and' 182 extending from the original owner, The Centrada Realty Company, down to the defendant, but in two of' the deeds in the chain of title for the undivided one-half of lot 183, restrictive covenants were inserted' either by recital or by reference.

6. It further appears that restrictive covenants were inserted by recital or reference in one or more-deeds in the respective chains of title to 37 lots or parts of lots in the subdivision from the time of the first deed to the commencement of this action, and that no such-covenants are found in any of the deeds to the 83 remaining lots.

On the whole record, it is manifest that plaintiffs-have failed to establish by a preponderance of the evidence the allegation in the petition that a general plan of uniform restrictions relative to the purpose-for which the lots in Leesdale Extension may be used was in fact adopted.

If we look at the plat of this subdivision as executed', and recorded by the owner of the land, we do not find1 any provision, suggestion or hint of a general plan. If we examine the deeds executed by the allotter conveying each and all of the 120 lots in this plat, we find' no restrictive covenants whatever. Furthermore, it appears that in about 70 per cent of the conveyances-subsequently made over a period of two decades or more, no restrictive covenants were inserted in any one of the several deeds.

If the original owner had in mind a general plan of restriction as to use of the lots in the subdivision, it wholly failed to take the necessary steps to make if effective.

It is well settled in Ohio that a court of equity will1. enforce the observance of valid restrictive covenants as to the use of property which run with the land where the grantee has notice of such covenants. Stines v. Dorman, 25 Ohio St., 580; McGuire v. Caskey, 62 Ohio St., 419, 57 N. E., 53; Brown v. Huber, 80 Ohio St., 183, 88 N. E., 322, 28 L. R. A. (N. S.), 705; Adams v. Donovan, 97 Ohio St., 83, 119 N. E., 252; Arnoff v. Chase, 101 Ohio St., 331, 128 N. E., 319; Cleveland Baptist Assn. v. Scovil, 107 Ohio St., 67, 140 N. E., 647; Dixon v. Van Sweringen Co., 121 Ohio St., 56, 166 N. E., 887; Whitmore v. Stern, 25 Ohio App., 344, 158 N. E., 203; 13 Ohio Jurisprudence, 994, Section 174.

Considerable evidence has been offered or tendered in an effort to show notice that the lots in Leesdale Extension were uniformly restricted and that the uniform provisions of the restrictive covenants thereby precluded defendant from improving its property by erecting thereon a gasoline filling station.

It is obvious that if no general plan of restriction was established, the matter of notice, constructive or otherwise, would not be material for the reason that defendant could not be chargeable with notice of something that was nonexistent.

Be that as it may, we have considered carefully the claim of plaintiffs that defendant had notice that the allotment was restricted to private residence purposes at the time it acquired its property.

It appears well established that a grantee in a conveyance of land is deemed to have notice where the restrictive covenant is inserted in his deed of conveyance which he accepts; or where a covenant of such character is found in any deed in the chain of title of lot or parcel of land conveyed to the grantee; or where there is a plan of uniform restrictions in an allotment, even though the restrictive covenants were omitted from the grantee’s deed in a particular instance, as such omission is not material on the issue of notice where it clearly appears a general, uniform plan of development had been adopted incident with the platting of the land or such plan was subsequently adopted by the owner and placed of record. Adams v. Donovan, supra; Brown v. Huber, supra; Hayslett v. Shell Petroleum Corp., 38 Ohio App., 164, 175 N. E., 888; West Hill Land Co. v. Ritchie, 18 C. C. (N. S.), 183, 32 C. D., 677.

Some evidence was tendered and received that certain lots were sold on land contracts with restrictive covenants therein “for the protection of the seller and of the various purchasers of lots in said Leesdale Extension * * V’ The contracts provided that restrictive covenants would be effective until January 1, 1950, and among other things limited the use of the property for private residence purposes. It further appears some of these contracts were filed for record and recorded in the deed records of this county. However, the statute (Section 8543, General Code) authorizing the recording of deeds and instruments for the conveyance or incumbrance of lands does not apply to land contracts, and where such contract is recorded the record thereof is not constructive notice. 40 Ohio Jurisprudence, 922, Section, 14; Churchill v. Little, 23 Ohio St., 301; Kessler v. Bowers, 23 Ohio App., 194, 155 N. E., 402; Standard Oil Co. v. Moon, 34 Ohio App., 123, 170 N. E., 368; Stanton v. Schmidt, 45 Ohio App., 203, 186 N. E., 851.

It may be further noted that one or more lot owners cannot enforce observance of building restrictions against another lot owner in the same allotment unless it appears that the restrictive covenants were designed and adopted for the protection of all lot owners pursuant to a uniform plan and adopted for the uniform improvement of all the lots in the allotment. Kiley v. Hall, 96 Ohio St., 374, 117 N. E., 359, L. R. A. 1918B, 961; Lopartkovich v. Rieger, 66 Ohio App., 332, 33 N. E. (2d), 1014; Solar v. Ruehlman, Jr., 33 Ohio App., 224, 168 N. E., 861; Hayslett v. Shell Petroleum Corp., supra; Snow v. Socony Vacuum, Oil Co., 46 Ohio Law Abs., 317, 69 N. E. (2d), 200; 13 Ohio Jurisprudence, 991, 992, Section 171.

As previously pointed out, there are no restrictive covenants in the chain of title to lots 181 and 182, but as to lot 183, covenants of this character were inserted in the deed of conveyance as to the undivided one-half of such lot and incorporated by reference in a subsequent deed. These covenants contain no reference to a general plan or that they conform to a uniform plan for the entire allotment or that they were covenants designed for the benefit of other lot owners in the subdivision.

Under the situation thus presented, the restrictive covenants appealing in two of the deeds in the chain of title for lot 183 are not available to plaintiffs as a basis for injunctive relief for the reason that these covenants are not in themselves any notice that like covenants obtain as to the other lots in the subdivision and for the further reason that it does not appear that they were intended for the benefit of any one other than the grantors.

Our conclusion is that plaintiffs have not sustained by a preponderance of the evidence the issues raised on the pleadings and the evidence and are not entitled to the injunctive relief as prayed for, and that the petition of plaintiffs should be dismissed.

Finding for defendant. Petition dismissed at plaintiffs ’ costs. Injunction dissolved.

Decree accordingly.

Carpenter and Fess, JJ., concur.


author: By the Court.

text:
    Nickerson, Appellant, v. Nickerson et al., Appellees.
    (No. 2028
    Decided February 18, 1949.)

      Mr. Gus Byttner, for appellant.

      Messrs. Landis, Ferguson, Bieser & Greer and Mr. Irvin G. Delscamp, for appellees.
   By the Court.

This cause is submitted on motion of defendant Margaret Nickerson, appellee herein, to dismiss the appeal or affirm the judgment on the ground that no bill of exceptions, assignments of error or brief had been filed by plaintiff, appellant herein.

Notice of intention to appeal on questions of law was filed on October 27, 1948. The failure to file a bill of exceptions within the time prescribed by law does not necessarily require the dismissal of the appeal. If the errors complained of appear on the face ■of the record a bill of exceptions would not be required. There being no assignments of error, the court can not determine whether a bill of exceptions is required. 'The motion will be overruled on that ground.

The filing of assignments of error and brief is controlled by Rule VII which requires the appellant to file the same within 50 days after filing notice of appeal. No good cause has been shown for failure to file assignments of error and brief within the required time.

This court has consistently held that the failure of the appellant to file assignments of error and brief within the time required by Rule VTI is ground for dismissal of the appeal. Anderson v. Indus. Comm., 135 Ohio St., 77, 19 N. E. (2d), 509; Peck v. County Commrs., 28 Ohio Law Abs., 702; Seifer v. Indus. Comm., 29 Ohio Law Abs., 52; Brown, Gdn., v. Brown, 35 Ohio Law Abs., 527, 42 N. E. (2d), 456; State, ex rel. Merrill, v. Moore, 52 Ohio Law Abs., 301, 82 N. E. (2d), 765.

The motion to dismiss the appeal on the latter ground is sustained.

Motion sustained.

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


author: Wiseman, P. J.

text:
    Edwards et al., Appellants, v. Ohio State Students’ Trailer Park Co-operative, Inc., Appellee.
    (No. 4220
    Decided February 4, 1949.)

      Messrs. Postle & Peters, for appellants.

      Mr. P. L. Thornbury, for appellee.
   Wiseman, P. J.

This is an appeal on questions of law from the Common Pleas Court of Franklin county which denied a permanent injunction in an action wherein the plaintiffs, appellants herein, sought to enjoin the defendant, appellee herein, from erecting a trailer park on 22 lots owned by it in the Braemar Addition on the ground that defendant violated deed restrictions.

The case was submitted to the trial court upon a stipulation as to certain facts and the evidence. The plat of the Braemar Addition was filed of record in 1925 and contained no restrictions whatsoever. The plat contained 66 lots, 22 of which fronted on Olen-tangy River road. Only 11 of the 22 lots fronting on such road were subject to restrictions, the remaining 55 lots were not. Title to 51 lots in the addition, including the 22 lots owned by the defendant, which are involved in this case, was acquired by John H. Hislop from the original owners of the plat, and the deed therefor contained no restrictions. John H. Hislop conveyed without restrictions 22 lots to the defendant. In the deeds to 11 of the 22 lots fronting on Olentangy River road from the original owners of the plat, there were restrictions which were, in substance, that only one single-dwelling house, costing not less than $8,000, shall be erected thereon and that there shall be a 60-foot setback from Olentangy River road.

The plaintiffs, being 10 owners of lots fronting on Olentangy River road, seek an injunction against the defendant on the ground that the erection of a trailer park on 22 lots which it owns, the deed to which contained no restrictions, constitutes a violation of the restrictions in the deeds to the lots owned by plaintiffs. In the deeds to the 11 lots restricted, as herein stated, the original grantors and owners of the plat and the purchasers covenanted and agreed that in the deed to each of the other lots there shall be restrictions calling for one single-dwelling house. However, the record shows that the deeds to other lots in the plat did not contain such restrictions. The deed from Hislop to the defendant contained the following provision:

‘ ‘ This deed is executed and delivered by the grantor herein and accepted by the grantee herein subject to all easements, exceptions and conditions of record in any manner affecting the use of said premises.”

Are the plaintiffs entitled to the equitable relief prayed for? This case was tried before Judge Cecil J. Randall, who rendered an exhaustive and a well-reasoned written opinion, a copy of which is found in the record. We are in complete accord with the findings and conclusions of the trial judge.

Before the plaintiffs would be entitled to relief it would be incumbent upon them to show that there was-a general and uniform plán or scheme of development of such addition, including the lots owned by the defendant, that all the lots were intended to be bound by-uniform restrictions for the benefit of the purchasers-of all lots in the addition, and that the defendant had: notice thereof at the time of purchase. The trial court found that there was no evidence of a general and uniform plan of development of the allotment, except as-indicated in the deeds to 11 of the 22 lots fronting onOlentangy River road, which contained uniform restrictions. We are in accord with that finding.

The legal principle involved may be stated as follows :

Where it appears that there was a purchase of lots-without restrictions in an allotment and where the conveyance of 55 of 66 lots in the allotment contained no-restrictions in accord with the plan of uniform restrictions contained in conveyances of 11 lots, the purchasers of the 55 lots may not be enjoined in the use of such lots in violation of restrictions as to the 11 lots,, notwithstanding the fact that in the deeds to the 11 lots the grantors, the original owners of the allotment,, and the purchasers convenanted and agreed that in the-conveyance of other lots in the allotment the deeds-shall contain like restrictions.

This case falls within the principle of law laid down in Adams v. Donovan, 97 Ohio St., 83, 119 N. E., 252.

As we find no error in the record prejudicial to the rights of the appellants, the judgment is affirmed.

Judgment affirmed..

■ Miller and Hornbeck, JJ., concur.


author: Ross, J. Matthews, P. J.,

text:
    The Cincinnati & Suburban Bell Telephone Co., Appellee, v. City of Cincinnati, Appellant.

      (No. 7037
    Decided January 10, 1949.)

      Messrs. Frost db Jacobs and Mr. Carl G. Werner, for appellee.

      Mr. Henry M. Bruestle, Mr. Robert E. Steman and Mr. William A. McClain, 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, rendered upon a motion of the plaintiff for judgment non obstante veredicto in favor of the defendant.

The action was brought by plaintiff to recover for damages to its conduits sustained when the defendant, in repairing a break in a water line in a street in the-city of Cincinnati, broke through the conduits and cut the telephone cables contained therein.

The answer was in effect a general denial.

The plaintiff alleged four specifications of negligence: (1) That the defendant failed to observe the telephone company manholes, from a location of which the city could have ascertained the position of its conduits in the street; (2) that plats were available furnished by plaintiff on previous occasions to the-city showing the location and depth of plaintiff’s conduits, and that the city made no request for such plats; (3) that a custom prevailed whereby the city was accustomed to call for such plats before making excavations endangering the conduits, and the city in this-case failed to make such request; and (4) that the city withdrew any supervision over the workmen making the excavation, who thus had no guidance in avoiding injury to the conduits.

Plaintiff proved the amount of damage to the conduits, there being no evidence indicating that the amount claimed was not just and reasonable compensation for the admitted damage.

The city received notice of the break in the water line at 1:55 p. m. The valve men arrived in the vicinity ■of the break in the line at 2:15 p. m. They located its approximate location at 2:30 p. m. They “salted” the street to prevent freezing, and turned off the water in a flat building. The city maintenance crew were dispatched to the location at 3:00 p. m., and arrived at • 3:40 p. m. The supervising foreman did not arrive until 4:30 p. m.

The water line is located in McMillan street, a main street, extending in a general east and west direction across the hills, just above the principal business district of the city. It is heavily traveled by streetcars, busses, trucks and automobiles. At the time work was •commenced by the maintenance crew, traffic on the street was very heavy, and the men of the crew were compelled to work under great difficulties, being required to constantly take measures in order to permit passage of streetcars. Pumps were used to dispose of the water constantly filling the excavation and the •crew was unable for some time to locate the exact position of the break. The position of the city is that by reason of all these circumstances it was impossible for the city employees to use ordinary precaution to avoid striking the conduits, for as stated in the city’s-brief:

“The city employees were blocked by the streetcar tracks on the north side and by the telephone ducts on the south side. To shut off the escaping water, employees of the defendant had to dig where they did in-order to get to the ferrule. It was impossible to avoid striking the telephone ducts because they were lying next to the surface of the street without a cushion of dirt which ordinarily separates them from the base of the street paving. With water pouring out of the hole, and in the absence of a cushion of dirt, there was no possible way to see or determine when the air-hammer reached the telephone ducts.”

The city is not an insurer against damage to the-conduits. Nor, on the other hand, has it a right to-ignore their existence, and even where required to-make prompt repairs to a water line, proceed with no exercise of care for their safety. Both the conduits and water lines are lawfully situated beneath the-pavement of the street. In 41 Ohio Jurisprudence, 120,. Section 166, “Waters and Waterworks,” it is stated:

“It was stated in the preceding section that a municipality engaged in the operation of a waterworks system engages in a proprietary function. Therefore,, such municipality is charged with the exercise of ordinary caro, that is to say, such care as ordinarily prudent persons generally exercise under the same or similar circumstances. It follows then that a municipality is liable for negligence in the operation of its water system. ’ ’

See, also, Interstate Sash & Door Co. v. City of Cleveland, 148 Ohio St., 325, 74 N. E. (2d), 239.

The burden rested upon plaintiff to prove that the damage to its conduits was caused by the negligence of the city in making the excavation. An examination of the record can lead only to the conclusion that the city exercised no care of any description in making the excavation, but, on the contrary, proceeded with an entire disregard to possible injury to the conduits. As hereinbefore stated, the claim of the city is that by reason of the peculiar situation presented the employees of the city were required so to proceed. The evidence wholly fails to sustain the claim of the city that a sudden emergency was presented, requiring precipitate action. The time schedule hereinbefore noted shows that, from the time notice was given of the break until the damage was done, there was ample opportunity to ascertain the location of the conduits and to adopt reasonable measures to prevent injury to the conduits.

It is not overlooked that we are here presented with a situation where the' trial court has overridden the verdict of the jury in favor of the defendant. In effect, the situation is the same as if the trial court had sustained a motion for an instructed verdict. J. & F. Harig Co. v. City of Cincinnati, 61 Ohio App., 314, 22 N. E. (2d), 540. Nor is the rule requiring favorable construction overlooked.

In Wilkeson, Admr., v. Erskine & Son, Inc., 145 Ohio St., 218, at page 228, 61 N. E. (2d), 201, Section 183, “Trial,” 39 Ohio Jurisprudence, 802, 803, 804, is quoted with approval. In that section of the subject of “Trial” it is stated:

“The trial judge, in ruling upon a motion, to direct a verdict or for a nonsuit on the evidence introduced, must not only assume the truth of the evidence in behalf of the party against whom the motion is directed, but must construe the evidence most strongly in favor of that party, or, as it is sometimes expressed, must give the most favorable interpretation or intendment in his behalf, and adopt the view most favorable to his contention, or consider it in the light most favorable to him, of which such evidence is susceptible. To this end the trial judge should give, the party, against whom the motion is made, the benefit of all reasonable inferences that can be drawn from the evidence offered and consider as proved such reasonable inferences favorable to him as the facts proved warrant — as are deducible from the evidence given — without carrying the inferences to an illogical conclusion. In other words, the evidence must be construed favorably to the submission of the case to the jury, and the trial judge should indulge in every possible consideration in favor of such submission.

“Formerly, if there could be said to be a scintilla of evidence in favor of such party on all material issues, the court had to submit "the case to the jury. Under the present rule, however, if, after giving the evidence such favorable construction, reasonable minds can reasonably come to but one conclusion and that conclusion is adverse to the party against whom the motion is made, the judge should direct a verdict against him.”

It is by those requirements the action of the trial court must be tested. When so tested, the record is conclusive against the existence of any evidence showing even the slightest degree of care. Even if the incidents involved in the operation by the city could be considered as an “emergency,” the evidence does not sustain the presence of the appropriate degree of care required under such circumstances. As before stated, the position of the city is that the situation presented eliminated any requirement for care of any degree or description. The presence of an emergency does not eliminate the necessity for appropriate care. In 29 Ohio Jurisprudence, 424, Section 35, “Negligence,” it is stated:

‘ ‘ The general rule is that one who in a sudden emergency acts according to his best judgment, or who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence. An emergency, however, does not change the requirement of ordinary care. A person confronted with a sudden emergency is required to use only that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances. In other words, he is not held to the exercise of such good judgment as might be required where opportunity existed for reflection and choice of action. In cases of emergency, one is not held to a nicety and delicacy of judgment. The circumstances of the emergency and the apparent danger must be taken into consideration in determining the question of the exercise of ordinary care, or the question of contributory negligence. There is an ex post facto wisdom, which, after everything has been done without success, can suggest that something else should have been attempted, but this is a sagacity much more astute than ordinary human foresight, and can hardly furnish a fair rule by which to determine the propriety of what has been done in good faith, and with judgment exercised under the best light afforded.”

It is stated in 2 Restatement of the Law of Torts, Section 296:

“In determining whether conduct is negligent toward another, the fact that the actor is confronted with a sudden emergency not caused by his own tortious conduct which requires rapid decision is a factor in determining the reasonable character of his choice of action.”

The record shows the existence of no situation described in these definitions of an emergency.

See, also, 38 American Jurisprudence, 686, “Negligence,” Section 41.

Two other contentions of the city require consideration. It is claimed the court erred in its charge to the jury. Any error occurring in the charge to the jury is immaterial to this presentation, which is concerned with the correctness of the action of the trial court’ in rendering judgment notwithstanding a verdict for the defendant. The verdict is not here under consideration.

Upon the claim of the rejection of evidence tendered by the city, it can easily be seen that if proper evidence was excluded, which would have shown some care on the part of the city, a judgment predicated upon the absence of such evidence, if sustained, would render the defendant helpless to raise the question of such error, if not here considered, in passing upon the validity of the judgment non obstante veredicto.

It is the claim of the defendant that it was prevented from introducing evidence tending to show it was confronted with an emergency in making the excavation in search of the break in the water lines. An examination of the record discloses that the only evidence so excluded was the answers to questions which called for a conclusion of the witness as to the existence of an emergency. The defendant was in no way prevented from proving what occurred. It was only refused the right to introduce the answer to the categorical question: “Was this an emergency?” This could have been no more than the opinion of the witness. The court in no way limited the city in establishing the facts.

The city also claims error in the admission of evidence. The basis upon which the judgment is sustained is the absence of any evidence, either in that introduced by plaintiff or defendant, showing the exercise of the slightest degree of care on the part of the city to prevent the injury to plaintiff’s conduits.

Nothing appears in the record indicating that the admission of any evidence offered by the plaintiff had the effect of preventing the defendant from proof of care in any respect.

It thus appears from the record that the plaintiff fully sustained the burden resting upon it to prove negligence, for the record conclusively shows that the city exercised no care of any description or degree in making the excavation. This conclusion is reached after giving the defendant the benefit of every favorable interpretation of the evidence.

As to the amount of the judgment, there was not the slightest attempt to rebut the evidence showing the extent of the plaintiff’s damages, and the reasonable cost of repairing the damage caused by the city’s total lack of care. The evidence of plaintiff is also unimpeached, showing the action of plaintiff in minimizing its loss.

There being no evidence in any way raising a question as to the amount found by the court to be the reasonable cost required tó compensate plaintiff for the damage, the court was fully justified in rendering judgment for such undisputed sum.

The judgment should be affirmed.

Judgment affirmed.

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

Matthews, P. J.,

dissenting. I have no hesitancy in concurring in paragraphs one, two, three and four of the syllabus, and in the statement of law contained in the opinion. My dissent is from the action of the court in treating its conclusion from conflicting evidence that defendant was negligent as though such negligence had been found by the trier of the issues; of fact. Just the contrary is the fact.

In two places in the opinion are found statements-indicating that the defendant admitted that it had not exercised ordinary or reasonable care. Of course iff the defendant had made any such admission, the court' would have been fully justified in instructing a verdict' for the plaintiff for such damages as were proven, but even that would not justify taking from the jury the-right to assess the damages. However, there was no such admission. On the contrary, the whole effort off the defendant was directed toward showing that it had exercised due care and that the damage to the plaintiff’s property occurred notwithstanding such-care. The defendant placed four witnesses on the stand, who testified to the circumstances under which the work was done and how it had been done, and' why it was done in that way. It is true the plaintiff' with that “ex post facto wisdom” suggests certain things that should have been done, but quoting again from the opinion, those things “can hardly furnish a fair rule by which to determine the propriety of what has been done.” Certainly, the ex post facto views of the plaintiff should not be hardened into a rule of law by which to judge the defendant’s conduct.

This case is not predicated upon the doing or failing to do a specific act which the law has declared to be negligent. It is not claimed that any act or failure to act was negligence per se. It is the ordinary ca.seof a claim of failure to exercise ordinary care. In 38 American Jurisprudence, 1051, Section 346, it is said:

“Ordinary care is that degree of care which a person of reasonable prudence would exercise under a given state of facts. Before legal liability for conceded damages can be imposed upon a defendant, the court' must inquire and determine the character of duty which the law, under the facts, imposed upon the defendant as the basis of liability. As a result, the legal duty.or the standard of human conduct under any given circumstances must be declared by the court as a preliminary to the submission of the case to the jury. Whether, under proper instructions, the standard of care which should have been exercised was exercised is a question of fact for the jury to be determined from their knowledge of mankind and of how persons of reasonable prudence usually deport themselves in relation to their surroundings. Possessed of a yardstick with which the law presumes them to be familiar — the reasonably prudent man — the jury apply it to the conduct in question and determine whether it measures up to that standard.”

'It is for the jury and not for the court to apply the yardstick and to determine the credibility of the witnesses.

In the same volume (38 American Jurisprudence) at page 1041, Section 344, it is also stated: “Generally, whether a particular act constitutes negligence is a mixed question of law for the court and fact for the jury, and negligence cases in which a nonsuit may be allowed or a verdict may be directed are exceptional. ’ ’ If directing a nonsuit is the exception in such cases, certainly, directing a verdict or entering a judgment for the plaintiff upon whom the burden of proof rests should be rare indeed.

In addition to deciding the issue of negligence, the court decided the issue of damages and assessed the full amount claimed against the defendant as though the defendant had conceded the amount to be correct. There was no such admission. The jury was under no duty to accept the testimony of the plaintiff’s witnesses as to the extent of the damage.

For these reasons, I dissent from the conclusion reached by my associates. In my opinion, this judgment should be reversed and the cause remanded for further proceedings according to law.


author: Miller, J.

text:
    Eiber Realty Co., Appellee, v. Dunifon, Admr., Appellant.
    (No. 4126
    Decided October 8, 1948.)

      Messrs. Coolidge, Becker é Wall, for appellee.

      Mr. Hugh 8. Jenkins, attorney general, and Mr. John M. Woy, for appellant.
   Miller, J.

This is an appeal on questions of law to reverse a judgment of the Common Pleas Court of Franklin county reversing the finding and decision of the Administrator of the Bureau of Unemployment Compensation which had denied appellee, the Eiber Realty Company, the unemployment compensation merit rating of 0.9 per cent earned by its predecessor, Arthur Beerman, doing business as the McCook Bowl.

The record in this case discloses that prior to March 1, 1946, Arthur Beerman conducted two unincorporated businesses. One was the real estate business known as Arthur Beerman Realty Company; the other, a bowling business, known as McCook Bowl. These businesses were physically separated by several miles and had no connection with each other except that they were owned by the same individual. The character of the two businesses was entirely different. Separate books and records were maintained in separate offices. The businesses were operated separately by entirely different personnel. Separate accounts for each business were sent to the appellant which considered them as one account for which a merit rating of 0.9 per cent was given.

Early in January 1946, Beerman decided to transfer his unincorporated real estate business to a corporation to be formed for that purpose. Pursuant to this plan the Arthur Beerman Realty Company was incorporated on January 10, 1946, but because of Beerman’s absence from the city the actual transfer was delayed until March 1, 1946. On February 28, 1946, because of the tax situation and on advice of counsel, Beerman decided to transfer the McCook Bowl bowling business to the appellee.

Prior to March 1, 1946, the appellee was wholly owned by Arthur Beerman, was operated solely as a real estate holding company and not subject to the Unemployment Compensation Act. On March 1, 1946, all the assets of the realty company were transferred to the Arthur Beerman Realty Company, a corporation, and on the same day all the assets of the McCook Bowl were transferred to the appellee. The employees of the McCook Bowl, however, were paid by Arthur Beerman through March 1st, although ,the transfer was effective as of the 1st of March. After completing •these transactions the appellee filed its unemployment compensation return using its predecessor’s merit rating of 0.9 per cent. This rating was not allowed by •the administrator who increased the • rating to 2.7 per cent. An application for a review and redetermination ¡of this rate was filed by the appellee on the ground that the Eiber Realty Company, as successor in inter-est to Arthur Beerman, doing business as McCook Bowl, was entitled to succeed to the 0.9 per cent merit rating of that enterprise under Section 1345-4 (c) (1), ’General Code. The decision of the administrator rejected the appellee’s contention. The administrator found that the transfers by Beerman of the two businesses to the two corporations were parts of a single plan and were simultaneous and ruled that since the appellee did not succeed to both businesses owned by Beerman at the time of the transfer, it was not entitled to succeed to the .0.9 per cent merit rating. The Common Pleas Court reversed the decision of the administrator and it is from that judgment this appeal ■is taken.

The administrator held Mr. Arthur Beerman to be ;a single employer of the real estate business and of •the bowling business; that he had only one account with the appellant even though he reported it under .an “A” and “B” account. This séems to us to be a ■proper legal conclusion, for Section 1345-1 b (1), General Code (121 Ohio Laws, 703), provided:

“* * * All individuals performing services for an 'employer of any person in this state, who maintains two or more establishments within this state, shall be •deemed to be employed by a single employer for the •purpose of this act.”

Under that section Arthur Beerman was the employer for both the real estate business and the bowling business and his merit rating under the act was established from the combined unemployment records of the two businesses. A separate rating could not be fixed for each business. Therefore, neither of these businesses had an individual rating on March 1, 1946. Section 1345-4 c (1), General Code (121 Ohio Laws, 711), provided:

¡i* * # If an employer shall transfer his business or shall otherwise reorganize such business, the successor in interest is hereby required to assume the resources and liabilities of such employer’s account and to continue the payment of all contributions due under this act.”

We are of the opinion that the above statute requires that an employer, in order to transfer his business so that his successor in interest acquires and assumes the resources and liabilities of such employer’s account, transfer the business in its entirety. The fact that they are two separate businesses and different types of business does not change the situation because he is considered as only one employer and to transfer the account so that one gets credit for the contributions paid on which the merit is based, it is necessary that he transfer all his business. The rate is determined from all the contributions he makes even though it be on different types of business. His rate is based upon the experience shown by all his activities. If he transfers only one of his businesses he still retains the merit rate, but the transferee, if he succeeds to only a part of the employer’s business, has to take the new rate. Our conclusion on this interpretation of this section of the General Code is fortified by the fact that prior to October 1, 1941, the appellee would be entitled to the relief it is seeking here. This section then provided:

“If any employer shall transfer his business in whole or in part or shall otherwise reorganize such ■business, the successor in interest is hereby required to assume (in proportion to the extent of such transfer, as determined by the commission) the resources .and liabilities of such employer’s account, and to continue the payment of all contributions due under this act.” (Emphasis ours.)

It will be noted that section provided for a. partial transfer of an employer’s business, which provision has now been eliminated. It must clearly be presumed that the Legislature intended to abolish a portion of a transfer of an employer’s business when it struck out •of the act the words “in whole or in part.” Counsel for the administrator properly call our attention to the fact that, even though it so desired, the appellant •could not establish a merit rate when a partial transfer of the business is made, as no separate record is required to be kept by the administrator for each separate business of an employer. The act considers the •employer as conducting only one business even though it may consist of several independent units.

The appellee urges that even though we find the •statute does not permit partial transfers, this does not affect the present situation because the real estate business was transferred, effective March 1, 1946, and that the bowling business was not transferred to the appellee until March 2, 1946, because Beerman paid the ■employees of the bowling business for the first day of March. However, the record shows that this was done as a matter of convenience as these employees’ payday period included the first day of March. The record definitely shows that the transfer of both businesses took place on March 1, 1946. Mr. David Hart■zell, an employee of the appellee, so testified. The appellee claims that it was never the intention to transfer both of the businesses as a single plan, as the corporation to receive the real estate business was organized in January, 1946, and it was not until February 28th that it was decided to transfer the bowling-business. These facts are no doubt true, but on February 28 the original plan was modified and at that time-the plan was adopted to transfer both businesses which-, was accordingly done on March 1st.

The construction of this part of the Unemployment-Compensation Act presents a new question in this-court, and cases cited by counsel, with one exception,, are of little benefit, since the statutes of the other-states are not the same as our own. The one case-excepted above is that of State, ex rel. Employment Security Commission of North Carolina, v. News Publishing Co., 228 N. C., 332, 45 S. E. (2d), 391, which-case seem to be quite similar to the case at bar. The-facts in that case show that the employer operated two-separate and distinct departments, one the printing, of a newspaper and the other a job printing business,, and each department was conducted as a separate-business. Each had its own books of account, pay-roll' records, personnel, etc. The employer had paid all unemployment contributions on the employees in both-departments. On September 1, 1946, the employer formed a new corporation for the job-printing department and then sought to have a part of his reserve account transferred to the new corporation, it being conceded that if such transfer could be made, the new corporation would succeed to the merit rating then in force for the predecessor employer. The North Carolina statute with reference to transfers, while not worded exactly the same as ours, is substantially the-same.

The court in that case held that the statute authorizing the transfer of the reserve accounts created under the state Employment Security Law restricts the-transfer to those cases where the account is to be transferred in toto, and even then the account can be transferred only to such employing unit defined in the statute as may acquire the organization, trade, or business of another for whom a reserve account had been theretofore established and maintained.

The court further held that the publishing company, which maintained a department publishing a newspaper and a department conducted as a separate business which operated a job printing house, was the “employer” within the meaning of the statute defining an employer to be any employing unit which in each of 20 different weeks within either current or preceding calendar year employed eight or more individuals, so that a printing house which acquired only those assets of the publishing company used in the job printing business was not entitled to a transfer of part of the reserve account created under the Employment Security Law pursuant to the statute authorizing a transfer with the consent of the employer and approval of the Employment Security Commission when business of the employer is acquired.

For the foregoing reasons the judgment of the Common Pleas Court is reversed and the order of the administrator is affirmed.

Judgment reversed.

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