author: Hurd, J.

text:
    Youngstown Metropolitan Housing Authority, Appellee, v. St. Stephen’s Club, Appellant. St. Stephen’s Club, Appellant, v. Youngstown Metropolitan Housing Authority, Appellee.
    (Nos. 3569 and 3572
    Decided December 31, 1952.)

      Mr. C. F. Hammon and Mr. G. J. Hoyt, for appellee in both cases.

      Messrs. Manchester, Bennett, Poioers & TJllman, for appellant in both cases.
   Hurd, J.

These cases, appealed here on questions of law, originated in the Common Pleas Court of Ma-honing County. Because the actions are between the same parties and the questions presented are identical, the cases are considered together.

In case No. 3569, the Youngstown Metropolitan Housing Authority, hereinafter designated as the authority, petitioned to have a jury empanelled to assess compensation for the land which it desired to appropriate from St. Stephen’s Club, hereinafter designated as the club. In that suit, the club sought to contest the right of the authority to appropriate the land under the power of eminent domain.

In case No. 3572, the club filed its petition, praying for an order permanently enjoining the authority from proceeding with the appropriation proceedings on the ground, primarily, that the authority had not the right to appropriate its property because the use to which it purported to put such property is not a public use under Section 19, Article I of the Constitution of Ohio. The injunction case was submitted on an agreed statement of facts, which is part of the record herein, it being stipulated that a transcript of the testimony taken upon the application to empanel a jury in the appropriation case shall be made a part of the record also. In each ease, the trial court found in favor of the authority, holding the Ohio Housing Law to be a valid, constitutional enactment, and that the authority had the right to appropriate land of the club for the uses stated. The injunction prayed for against the authority in the appropriation proceedings was denied, but the trial court granted a limited injunction, refusing the authority permission to pay for or take possession of the land until the provisions of the cooperation agreement had been complied with in respect of rezoning the land for multiple residence purposes.

Pertinent parts of the agreed statement of facts are as follows:

The Youngstown Metropolitan Housing Authority operates and intends to operate the housing project being located on the land to be appropriated in accordance with the United States Housing Act of 1937, as amended. (Title 42, Section 1401 et seq., U. S. Code.) That act defines “low-rent housing” in Section 2 (50 Stats. at L., 888), as follows:

“The term ‘low-rent housing’ means decent, safe, and sanitary dwellings within the financial reach of families of low income, and developed and administered to promote serviceability, efficiency, economy, and stability, and embraces all necessary appurtenances thereto. The dwellings in low-rent housing as defined in this act shall be available solely for families whose net income at the time of admission does not exceed five times the rental (including the value or cost to them of heat, light, water, and cooking fuel) of the dwellings to be furnished such families, except that in the case of families with three or more minor dependents, such ratio shall not exceed six to one.”

The annual contributions contract, which had been drawn by the director of the Chicago field office of the Public Housing Administration, was submitted to, approved and executed by the Youngstown Metropolitan Housing Authority as of November 25, 1952, and was approved by the director of the Chicago field office of the Public Housing Administration, and is the contract under which the project referred to as No. Ohio 2-3 will operate.

The ordinance authorizing execution of the cooperation agreement and the co-operation agreement, are exhibits herein. The annual contributions contract, the resolution of the authority authorizing the execution of the annual contributions contract, and a copy of the development program adopted by the authority are exhibits herein.

The authority was organized under the Ohio Housing Authority Law. (Sections 1078-29 to 1078-50, General Code.)

In the appropriation case, it was decreed that all the preliminary steps entitling the authority to have a jury assess compensation under the provisions of the Code had been duly complied with, and that the authority had the right to appropriate the land described in the petition.

The St. Stephen’s Club is a nonprofit organization, a corporation, and the owner of the land sought to be appropriated. The land is part of Youngstown out-lot No. 1343, consisting of approximately eighteen acres located in the vicinity of Albert and Victor streets on the east side of Youngstown, and it is now zoned as residential A. The project which the authority seeks to erect upon such land would require rezoning to residential B.

It is stipulated that the property in question is not a slum area; that it is vacant land, without any buildings whatsoever; and that the authority has submitted to the zoning commission plans and other data for the advice of the commission as provided by Section 1078-43, General Code.

It is stipulated further that the housing authority presented to the planning director, who represents the city planning commission, a complete layout or site plan, showing the street layout, the location of the buildings, existing streets, existing utilities, proposed streets and proposed utilities for the advice of the city planning commission; and that the director of that commission in turn referred the data to the city engineer, who advised the housing authority as to what to do about the width of certain streets and other matters. This was done prior to September 12, 1952.

It is stipulated further that a copy of the entry made on the hearing in the appropriation case and all exhibits referred to in the agreed statement of facts shall be received in evidence and become part of the record herein.

Two grounds of error are assigned, as follows:

1. Assuming that the question was properly before the court in the appropriation case, the court erred in finding that the housing authority had the right to appropriate the club’s land, and in permitting the trial for the assessment of compensation to proceed.

2. The court in the injunction suit erred in finding that the housing authority had the right to appropriate the club’s land and in refusing to enjoin the housing authority from proceeding with the trial for the assessment of compensation.

Thus, there is presented the broad question of the right of a housing authority to exercise the power of eminent domain and to appropriate land for the purpose of erecting a housing project for families in low income brackets in general conformity with the purpose and design of the controlling legislation.

Considering the first assignment of error concerning the issues raised in the appropriation case, we are of the opinion that inasmuch as it was conceded by the club that all the preliminary steps as to resolution of intent, resolution of appropriation, publication and notice to owners had been duly complied with, the only issue presented was the assessment of compensation and damages. We reach this conclusion on the authority of Emery v. City of Toledo, 121 Ohio St., 257, 167 N. E., 889; Sargent v. City of Cincinnati, 110 Ohio St., 444, 144 N. E., 132; P. C. C. & St. L. Ry. Co. v. City of Greenville, 69 Ohio St., 487, 69 N. E., 976. See, also, City of Cincinnati v. Vester, 281 U. S., 439, 74 L. Ed., 950, 50 S. Ct., 360; Sears, Trustee, v. City of Akron, 246 U. S., 242, 62 L. Ed., 688, 38 S. Ct., 245; Jones v. Village of Maumee, 20 Ohio App., 455, 152 N. E., 765; Shepard Paint Co. v. Board of Trustees of Franklin County Veterans Memorial, 88 Ohio App., 319, 100 N. E. (2d), 248; 15 Ohio Jurisprudence, 998, Section 334.

It is our opinion, however, that although the club was erroneously permitted to contest the right to appropriate in an appropriation suit, it is not thereby barred by the doctrine of election of remedies from prosecuting the injunction suit and from a consideration of its appeal in that action by this court.

This brings us to a consideration of the second assignment of error concerning the issues raised in the injunction suit.

Section 19, Article I of the Constitution of Ohio provides in part:

“Private property shall ever be held inviolate, but subservient to the public welfare * * * [and] where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury * * V’

Section 1078-34a, General Code, provides:

“A housing authority shall have special power to appropriate, enter upon and hold real estate within its territorial limits, and such authority is hereby author* ized to acquire the fee simple title * * * in any property within its territorial limits which it shall deem necessary to appropriate for the purposes of the housing authority. Such power shall be exercised by a housing authority in the manner provided for appropriation proceedings by municipal corporations.” (Emphasis added.)

At the outset, it should be observed that the club does not here challenge the constitutionality of the entire housing authority law (Sections 1078-29 through 1078-61&, General Code), conceding in their brief that “the Supreme Court in the case of State, ex rel. Ellis, v. Sherrill, 136 Ohio St., 328, at least inferentially upheld the act when considered as a whole.” However, it selects from the entire act for attack Section 1074-34a, General Code, quoted, supra, on the ground that that section attempts to authorize the taking of private property by eminent domain for a private use, in violation of Section 19, Article I of the Ohio Constitution. In support of its argument, the club cites and quotes from Dayton Metropolitan Housing Authority v. Evatt, Tax Commr., 143 Ohio St., 10, 53 N. E. (2d), 896, 152 A. L. R., 223; Columbus Metropolitan Housing Authority v. Thatcher, Aud., 140 Ohio St., 38, 42 N. E. (2d), 437; and In re Application for Exemption From Taxation of Real Property of Cincinnati Housing Authority, 155 Ohio St., 590, 99 N. E. (2d), 761. In all those cases, the attention of the Supreme Court was centered upon one issue only, and that was whether property of housing authorities is “public property” and “used exclusively for a public purpose,” and as such, whether it is exempt from taxation under Section 2, Article XII of the State Constitution.

In the Columbus case, decided in 1940, and in the Dayton case, decided in 1944, with two judges dissenting, the Supreme Court upheld the board of tax appeals in denying applications for exemption. In the Cincinnati case, decided June 20, 1951, the issue was changed by reason of the amendment of Sections- 5356 and 1078-36, General Code, effective October 6, 1949, declaring property of housing authorities to be public property and exempt from taxation. In that case, the board of tax appeals had granted an application for exemption from taxation of the Cincinnati housing authority, and while five judges expressed the opinion that the decision of the board of tax appeals should be reversed on the ground stated, namely, that the property in question is not ‘ ‘ public property used exclusively for any public purpose,” two judges of the court did not concur in that view. Therefore, five members of the Supreme Court not being sufficient to declare Sections 5356 and 1078-36, General Code, unconstitutional, the decision of the Board of Tax Appeals was affirmed and the real property of the housing authority in question was held to be exempt from taxation.

We have reviewed these cases at some length, only because counsel for the club indicate a strong reliance upon the dicta of these cases, with special emphasis upon the Dayton case. By reason of the latest pronouncement of the Supreme Court in the Cincinnati case, supra, we think that the force of the argument is largely dissipated. However, it is our considered opinion that these tax exemption cases, so strongly relied upon, have no application to the issues in the cases here under review.

From time immemorial, sovereign states have jealously guarded rights of taxation in order to furnish revenue for support of government. In this respect Ohio has been no exception. In its constitutional provisions, its legislative enactments, and its judicial decisions, the taxing power is carefully established and strictly construed against exemption and in favor of taxation for the purpose of protecting the sovereign power of the state in the field of taxation. Hence it is, that the Supreme Court has strictly construed tax exemption statutes.

"The fact remains, however, that it is the theory of government that all property should bear its equal share of the cost and expense of government, and, since the law .does not favor exemption of property from taxation, before particular property can be exempt it must clearly fall within the class of property authorized to be exempt by the Constitution. Again, since the sole power to exempt from taxation is vested in the General Assembly, except as the Constitution itself makes certain exemptions, and it has provided for the taxing of all property ‘except only such property as may be expressly exempted,’ the accepted rule is that an exemption cannot be presumed, or implied and read into a statute; or, stated conversely, to have an effective exemption, it must be expressed in clear and unmistakable terms, or at least with reasonable certainty, as the laws relating to exemption from taxation, being in derogation of equal rights, are strictly construed as against such exemption and in favor of the taxing authorities.” 38 Ohio Jurisprudence, 852, Taxation, Section 114, and cases therein noted.

We think that tax exemption cases must be clearly distinguished from appropriation cases. Despite the dicta, which at times may have been used in discussing tax exemption statutes in relation to property of public housing authorities, no such language has been used in respect of the power of eminent domain. While public bodies, such as the state, and various subdivisions thereof, frequently appropriate under the power of eminent domain for an exclusively public use, such public use purpose is not always required as a condition of the exercise of rights of eminent domain. We need only point to privately owned public utilities such as light, power,' communication, and transportation companies as examples where the right of eminent domain is conferred, and where the services to the public result in profit to stockholders and bondholders. Hence, it is clear that the Constitution does not require as a condition precedent that all property taken by the conferred right of eminent domain shall be exclusively for public use. In our opinion, the case of State, ex rel. Ellis, City Solicitor, v. Sherrill, City Manager, 136 Ohio St., 328, 25 N. E. (2d), 844, is presently dispositive of the issues here presented. That was an action in mandamus where the city manager was directed by the court to execute a co-operation agreement with the Cincinnati housing authority, similar to the agreement in evidence in this case. Thus, the Supreme Court must have found that there was a clear duty devolving upon the city manager, a ministerial officer, to execute the agreement although he had failed to do so because of an “expressed doubt as to the validity of the action of the city council and of the constitutionality of the laws under which the council purported to act.”

The court, in disposing of the case on the merits, observed that it could not be concerned with the wisdom or policy displayed by the Congress in enacting the federal housing act and concluded with a statement which appears to be all-embracing, leaving no room to doubt the constitutionality of any of its provisions, as follows:

“Since the passage of the United States Housing-Act, followed by necessary and appropriate enactments in different states to take advantage of the national bounty, frequent attacks have been made upon this legislation and the steps taken thereunder as to constitutionality and on almost every other conceivable ground. Such legislation and the ensuing activities have been upheld generally by the courts, as is shown by the following representative cases, recently decided: Housing Authority of County of Los Angeles v. Dockweiler (Cal. Sup.), 94 P. (2d), 794; Laret Inv. Co. v. Dickmann (Mo. Sup.), 134 S. W. (2d), 65; Matthaei v. Housing Authority of Baltimore (Md. App.), 9 A. (2d), 835; Allydonn Realty Corp. v. Holyoke Housing Authority (Mass. Sup.), 23 N. E. (2d), 665; Stockus v. Boston Housing Authority (Mass. Sup.), 24 N. E. (2d), 333; In re Brewster Street Housing Site in City of Detroit (Mich. Sup.), 289 N. W., 493; Romano v. Housing Authority of the City of Newark (N. J. Sup.), 10 A. (2d), 181; Chapman v. Huntington, W. Va. Housing Authority (W. Va. Sup. Ct. App.), 3 S. E. (2d), 502. The writ as prayed for will issue.”

In Blakemore v. Cincinnati Metropolitan Housing Authority, 74 Ohio App., 5, 57 N. E. (2d), 397, the Court of Appeals of the First Appellate District upheld the power of the housing authority to appropriate property by denying an injunction to a property owner, the action having been brought on the ground that the appropriation was not for a public use and violated the due process clause of the Federal Constitution. To the same effect is Kathman v. Cincinnati Metropolitan Housing Authority, 18 Ohio Opinions, 369, 5 Ohio Supp., 133. In those cases, the Court of Appeals and the Common Pleas Court recognized the authority of State, ex rel. Ellis, v. Sherrill, supra. Neither of those cases were appealed. We find nothing contra in Ohio.

We hold, therefore, that Section 1078-34a, General Code, conferring the power of eminent domain upon metropolitan housing authorities is a valid constitutional enactment in the interests of the “public welfare.”

It remains only to determine if the plan formulated by the authority comes within the purview of the housing acts, both state and national, and whether the judgment and discretion of the authority is being reasonably exercised within lawful limits.

The record shows that the authority proposes to erect on the land in question a housing project consisting of 304 dwelling units for the express purpose of providing sanitary housing conditions for families of low income and thereby to provide for the preservation of public health, morals, safety and welfare of the citizens of the community.

The Public Housing Administration has agreed to loan to the authority approximately $3,500,000 to be secured by bonds to be issued upon the property of the authority. The co-operation agreement entered into between the city of Youngstown and the authority, duly authorized by ordinance of the city council as an emergency measure, provides for the service of the project by the usual utilities furnished by. the city and that the city co-operate in rezoning the territory so that the project may be erected with multiple-dwelling units. The co-operation agreement provides further for the demolition by the city of an equal number of substandard dwelling units, which will result in the elimination of congested and unsanitary housing conditions now existing in certain slum areas within the territory of the authority, and which meets with the requirements of the housing act in two principal purposes (1) the eradication of so-called slum areas “injurious to the health, safety and morals of the citizens of the nation,” and (2) as a concomitant thereof the furnishing of low-rent dwellings to families of low income.

The record shows that all necessary conditions precedent have been complied with, and it was conceded in the appropriation case that the authority had taken all the preliminary steps prerequisite to instituting the appropriation action.

We must conclude, therefore, that the evidence shows a carefully conceived plan in conformity with the purpose and design of the controlling legislation. We think the argument advanced by the club that the authority may not proceed in this case because the land is vacant and not located within a slum area is untenable. There is no such limitation provided in the housing act. Furthermore, the Supreme Court, in the Sherrill case, supra, decided this question. See page 329, where it is stated:

“First, that money in the snm of $7,100,000 to be loaned by the United States Housing Authority to the Cincinnati Housing Authority for the construction of two low rent housing projects on vacant land.” (Emphasis added.)

In the Sherrill case the Supreme Court cited in support of its decision, as one of the representative cases of other jurisdictions, Housing Authority of County of Los Angeles v. Dockweiler, 14 Cal. (2d), 437, 94 P. (2d), 794.

In that case it was held, inter alia, as disclosed by the fifth headnote in the Pacific Reporter:

“Slum clearance and public housing projects for low-income families, being public uses, warranted granting of power of eminent domain to housing authority of the county of Los Angeles and other local housing authorities * * *.” (Emphasis supplied.)

In Riggin v. Dockweiler, 15 Cal. (2d), 651, 104 P. (2d), 367, decided by the Supreme Court of California in July 1940 (about five months after the Sherrill case), it was held, as disclosed by the Pacific Reporter headnote:

“The federal and state housing acts were enacted to provide for low-cost housing incidental to slum clearance, but there is no requirement that the new structures be confined to shim areas * * (Emphasis added.)

There remains one further question. The authority, by way of argument and brief, complains because the trial court provided by its decree in the injunction case that payment and possession should be enjoined until adequate zoning changes have been made, but provided that the “defendant may make deposit of the amount assessed with the court in order to provide the basis for an order to entitle the defendant to make the necessary zoning changes.” In the absence of a cross-appeal by the authority, we do not consider that the action complained of is before us for review and, therefore, do not determine that question.

It is our conclusion, for the reasons stated, that the judgments of the trial court must be and, therefore, are affirmed.

Judgments affirmed.

Skeel, P. J., and Kovachy, J., concur.

Skeel, P. J., Hurd and Kovachy, JJ., of the Eighth Appellate District, sitting by designation in the Seventh Appellate District.


source: Caselaw Access Project

author: Wiseman, P. J.

license: Public Domain

text:
    Ezzo, Appellant, v. Ezzo, Appellee.
    (No. 4854
    Decided February 19, 1953.)

      Mr. Carl G. Nappi, for appellant.

      Mr. Horace 8. Kerr, for appellee.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Franklin County, Division of Domestic Relations, which modified a decree of divorce previously granted to the plaintiff (wife) upon a hearing on a petition, filed after term by the defendant (husband), to vacate or in the alternative to modify the decree of divorce on the ground of fraud practiced by the wife in obtaining the decree, and for equitable relief.

The plaintiff-wife, appellant herein, has assigned 13 separate grounds of error which raise several legal questions. We are satisfied that the judgment'is not against the manifest weight of the evidence, and we find no error in the admission or exclusion of evidence.

Appellant contends that the court erred in refusing her an opportunity to introduce evidence in defense. The record shows that at the end of the husband’s case, appellant’s counsel stated to the court what such evidence would show, and, thereupon, the court ordered that such evidence be stipulated. Thereafter, counsel for appellant stated that he would abide by the decision of the court. It is the opinion of this court that the record shows a submission of the case on the evidence presented and the stipulation, and no prejudicial error intervened.

Appellant contends that the judgment is contrary to law. In the original decree the court made no order with respect to the property or with respect to alimony. The record title to the real estate was in the name of appellant. After the divorce was granted, appellant sold the real estate and the proceeds of the sale are now held under a restraining order. After hearing on the petition, the court found on the issues joined in favor of the husband and ordered appellant to pay to the husband one-half of the proceeds derived from the sale of the real estate, and to that extent ordered the decree of divorce modified.

We discuss briefly the procedural steps taken. The petition to vacate or modify was not filed in the domestic relations branch of the Common Pleas Court. The petition seeks to vacate or modify the decree on the ground of fraud. The petition also states a good cause of action in favor of. the husband and against the appellant in equity and at law, independent of the allegations supporting a vacation or modification of the divorce decree. The several causes of action are not separately stated and numbered, but there are allegations made which give rise to several causes of action. Because of the nature of the proceedings and the fact that the decree of divorce was attacked, the cause was referred to the Division of Domestic Relations. However, the cause was later tried by Judge Dana P. Reynolds of the Common Pleas Court. In our opinion it is not material whether the trial judge heard and determined the issue as a regular judge of the Common Pleas Court or as a judge of the Common Pleas Court, Division of Domestic Relations, which is indicated in the caption on the judgment entry. As a judge of the Common Pleas Court, the trial judge was empowered to hear and determine the issue and render judgment either in equity or at law. Section 1532, General Code, among other things, establishes the Division of Domestic Relations of the Common Pleas Court of Franklin County, and in part provides: ‘ ‘ Such judges shall exercise the same powers and have the same jurisdiction as is provided by law for judges of the Court of Common Pleas. ” In Miami Conservancy District v. Silvey, 8 Ohio Law Abs., 668, which was decided by the Court of Appeals for Montgomery county in 1930, a similar question was presented and it was held:

“In other words having been elected as judge of the Court of Common Pleas, Division of Domestic Relations, he may either act as judge of Court of Common Pleas in its general relations or in cases that come strictly within those relating to the Division of Domestic Relations. ’ ’

In Metz v. Metz, 17 Ohio Law Abs., 531, decided by the Court of Appeals for Franklin county in 1934, in the opinion on page 535, it is said:

“The judge of the Division of Domestic Relations is a common pleas judge, so designated by statute and by virtue thereof has like power.”

In Tanner v. Tanner, 78 Ohio App., 178, 62 N. E. (2d), 654, which was decided by the Court of Appeals for Franklin county in 1945, in the opinion and beginning on page 180, it is said:

“The judge of the Court of the Division of Domestic Relations is a judge of the Common Pleas Court and we have held in Miami Conservancy District v. Silvey, 8 Ohio Law Abs., 668, that, although not ordinarily exercised, the court has jurisdiction over and beyond that which is commonly understood as being included in the term ‘ domestic relations. ’ ’ ’

The husband in his petition did not claim the interest in the real estate as alimony; neither did he claim one-half of the proceeds derived from the sale of the real estate as alimony or as a division of property. The claim of the husband as set forth in his petition was grounded on the promise of appellant, made at the time the husband conveyed his undivided one-half interest to her, that she would reconvey to him the Undivided one-half interest, or that she would remit to him one-half of the proceeds of the sale when the property was sold. It is the contention of the husband that appellant held the undivided one-half interest in said real estate, and that now, since the property has been sold, she holds one-half of the net proceeds of the sale in trust for him. In the praecipe to the petition, the cleric was directed to endorse the summons: “Action in equity,” etc. On the issues so joined, the court found for the husband-petitioner. There is ample evidence to support the judgment by the required degree of proof. The court ordered appellant to pay to the husband one-half of the proceeds of the sale and further ordered the decree of divorce modified to that extent. It was not essential to order a modification of the decree of divorce since the decree by its terms was in no way inconsistent with the judgment rendered in the instant proceeding.

We do not find the judgment to be contrary to law. However, in our opinion the judgment should be modified by striking any reference to a modification of a divorce decree. This court is competent to render the judgment which the trial court should have rendered. Section 12223-38, General Code. This court affirms the judgment modified as above indicated.

Judgment modified and, as modified, affirmed.

Miller and Hornbeck, JJ., concur.


author: Per Curiam.

text:
    Eaton, Appellant, v. Askins, Appellee.
    (No. 4852
    Decided March 2, 1953.)

      Messrs. Herbert <& Dombey and Mr. Joseph E. Bowman, for appellant.

      Messrs. Ballard, Dresbach, Crabbe é Neivlon and Mr. Lloyd E. Bilger, for appellee.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Franklin County entered on a verdict in favor of the defendant.

Plaintiff, a pedestrian, appellant here, while crossing a street at a street intersection came into contact ivith an automobile driven by the defendant and was injured.

The first error assigned is that the court charged the jury on “pure accident” and on negligence and contributory negligence. The language of the court cannot be considered a full charge on unavoidable accident, as claimed by the plaintiff, although, the court did state that if the jury found that the injuries of the plaintiff were due to a “pure accident” he could not recover. The defendant did not plead unavoidable accident as a defense. The plaintiff charged the defendant with negligence in driving with defective brakes: The defendant testified that immediately before the accident the brakes operated perfectly. The evidence of the plaintiff shows that after the accident there was no tension in the foot brakes as a result of a blown cylinder on the left rear wheel, which permitted the fluid to leak out. The defendant testified that after the impact he stopped the automobile within a few feet in the intersection, and later drove the car through the intersection and parked it about one car length from the intersection. The evidence presented by the plaintiff is to the effect that after the impact the defendant’s car moved approximately 60 feet before it came to a stop. It is contended on behalf of the defendant that in view of this evidence a charge such as was given was proper, and in all events could not be considered to be prejudicial error.

The law is well established that to charge at the same time on unavoidable accident and on negligence and contributory negligence constitutes error. Uncapher v. Baltimore & Ohio Rd. Co., 127 Ohio St., 351, 188 N. E., 553; Williams, a Minor, v. Burrell, 43 Ohio App., 341, 182 N. E., 889.

In the case at bar, the defendant in his answer admitted certain allegations in the petition and then interposed a general denial. The issue of contributory negligence was raised by the evidence. In our opinion the issues thus made bring the case within the rule announced in the Uncapher and Williams cases. The question for this court to determine is whether the error committed was prejudicial. In passing on the motion for new trial, the trial judge, in discussing this matter, stated that he referred to “pure accident” only to point up the duty of the plaintiff affirmatively to prove negligence. This particular point was not emphasized in the charge. No undue prominence was given to it. In this respect there is a distinction between the case at bar and the Williams case wherein the court gave a complete charge on unavoidable accident and then emphasized it again in a supplemental charge upon request by the jury. When the charge here is considered in its entirety, we are of the opinion that the jury was not misled and that prejudicial error was not committed. We are supported in this conclusion by the language of the Supreme Court in the XJncapher case, beginning at the bottom of page 359:

“* * * it is doubtful whether the language of the trial court can be construed as injecting the issue of unavoidable accident into the case. * * *

‘ ‘ The language used in this paragraph of the charge with reference to unavoidable accident was most unhappy, but was it not a mere statement of an abstract proposition of law?

( ( * * #

‘ ‘ Taking the charge of the court as a whole, it would seem that the trial judge was endeavoring to impress some law upon the jury to the effect that negligence is a fact, and like any other fact must be proven and cannot be presumed. However, this is a mere divination.

“Giving due consideration to all the facts in this case and to the charge of the trial judge as an entirety, was this particular part of the charge prejudicial?”

After reviewing the testimony bearing on the negligence of the plaintiff, the court concluded that no prejudicial error had intervened.

.In view of the evidence presented, the court did not err in charging on the duties and rights of a pedestrian and a driver of a motor vehicle, where the pedestrian was crossing a street at a place other than the crosswalk. The language of the court of which complaint is made in the third assignment of error was improper, but in our opinion was not prejudicial when the charge is considered in its entirety. We do not believe the jury was misled thereby.

We do not find the fourth assignment of error well made.

Plaintiff contends in his fifth assignment of error that the court erred in giving defendant’s special instruction No. 1, which is as follows:

“I charge you, that if you find that the plaintiff, Clinton Eaton, as he was proceeding across Mount Vernon avenue, did not use his senses of sight and hearing, or such care for his own safety as a reasonably prudent person would have done under the same or similar circumstances, then the plaintiff, Clinton Eaton, was negligent, and if you further find that the plaintiff’s own negligence directly caused or contributed in the slightest degree to cause the injuries and damages complained of, your verdict must be for the defendant.” (Emphasis ours.)

It is contended that the use of the words, “in the slightest degree,” invokes the scintilla rule which was abandoned in the case of Hamden Lodge v. Ohio Fuel Gas. Co., 127 Ohio St., 469, 189 N. E., 246. In that case the “reasonable minds rule” was applied to test the sufficiency of the evidence on a motion for a directed verdict against the plaintiff. The plaintiff here contends that the same rule should be applied to test the proof of contributory negligence. Since the decision in the Hamden Lodge case, our Supreme Court has seen fit to approve the language used in special instruction No. 1.

In Chesrown v. Bevier, 101 Ohio St., 282, 128 N. E., 94, the court on page 284 said :

“That special charge II is a correct statement of the law must be conceded, although we prefer the word ‘any’ to the words ‘the slightest,’ and since there was evidence tending to prove that the negligence of the plaintiff below directly contributed to his injury,-it was error to refuse to give it to the jury. ’ ’

In Bartson v. Craig, an Infant, 121 Ohio St., 371, 169 N. E., 291, the court approved a charge as follows:

“If you find from the evidence that the plaintiff’s own negligence directly caused or contributed in the slightest degree to cause the injuries complained of, then your verdict must be for the defendant. ’ ’

In Bradley, an Infant, v. Mansfield Rapid Transit, Inc., 154 Ohio St., 154, 167, 169, 93 N. E. (2d), 672, the court approved a similar instruction. See, also, Stout v. Wagner, 87 Ohio App., 473, 83 N. E. (2d), 231, where this court approved an instruction given so far as material in identical language. The court did not commit error in giving special instruction No. 1.

The ease was properly and ably tried. It is unfortunate that words were used in the charge which gave rise to the errors assigned. To justify a reversal, it is not sufficient to show that it was possible the jury may have been misled, but rather it must be shown that the jury was probabily misled in a matter materially affecting the complaining party’s substantial rights. Ohio Farmers Ins. Co. v. Cochran, 104 Ohio St., 427, 135 N. E., 537.

Upon the whole record, we do not find error materially affecting the substantial rights of the plaintiff. In our opinion substantial justice has been done.

Judgment affirmed.

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


author: Hornbeck, P. J.

text:
    Brown, Appellee, v. Johnston et al., Appellants.
    (No. 2169
    Decided April. 8, 1952.)

      Miss Gertrude A. Bucher and Mr. A. K. Meek, for appellee.

      Messrs. McLeran, Kelly <& McLeran, for appellants.
   Hornbeck, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court for $190 with interest, and for costs, in favor of the plaintiff and against the defendants.

Plaintiff’s second amended petition, upon which he went to trial, contained three causes of action. The trial judge entered judgment on the first cause of action only, in which cause of action plaintiff set out a written contract between the parties dated January 6, 1949, by the terms of which the plaintiff was to buy from the defendants certain real property described therein and to pay therefor the sum of $8,500 with interest, in monthly installments of $100 each. After the payment of $1,150 on the purchase price, the plaintiff defaulted.

It is alleged that the contract contained the following clause:

“It is also agreed that upon the failure of the purchasers to make the payments provided for in this contract, that the agreement shall then, at the option of the sellers, become void.”

It is alleged further that defendants elected to exercise their option under the quoted clause and thereby made the purchase contract void. The premises were surrendered to the defendants on or about May 5, 1950. Plaintiff averred that the reasonable rental value of the premises was $30 per month and prayed for a refund of the $1,150 paid on the purchase price, less a credit thereon of $30 per month, the alleged fair rental value of the premises for the time during which they were occupied by the plaintiff.

Defendants, answering, admitted the contract, the payments, the default, and the repossession of the premises as pleaded in the petition. They denied the other allegations of the petition and said that on March 24, 1950, by mutual agreement, the following notation was placed on the contract:

“By agreement of parties this contract is cancelled and J. S. Johnston and Eulah Johnston are released of all obligations on their part to be performed.” .

Plaintiff in his reply asserts that the supplemental agreement set up in the answer was entered into for the sole purpose of permitting ‘ ‘ the defendants to enter into a contract with plaintiff’s sister, to purchase the real estate referred to in this lawsuit, for the balance due on said contract, and the defendants then did not make said sale to the plaintiff’s sister, and therefore said release never became operative, and is of no force and effect, and no consideration has been given plaintiff to release any right he has to recover herein from the defendants, and said release was made for the benefit of said sister and not for the benefit of the defendants.”

We do not find any specific assignments of error, but defendants in their brief argued generally that the trial court did not appreciate the import and meaning of the supplemental contract; that the amount allowed the plaintiff as a refund on the sum paid on the purchase price is not supported by the record; and that there should have been no money judgment for the plaintiff upon any theory, and especially because of the damages which plaintiff had done to the property by its misuse.

At the time of the oral presentation of this appeal, counsel were in agreement that the one question presented related to the weight of the evidence.

We have examined the briefs of the parties. The plaintiff’s brief is devoted largely to propositions of law and fact which were resolved against him by the trial court. If it were necessary to support the judgment of the trial court or that we support that court’s finding that the defendant overreached the plaintiff in the transaction here involved, or that the supplemental contract Avas induced by reason of an agreement between the parties hereto and plaintiff’s sister wherein she Avas to buy the property upon the terms claimed by plaintiff, we Avould have difficulty in supporting the judgment.

Defendants in their brief urge that the petition does not state facts constituting a cause of action, and cite 9 Ohio Jurisprudence, 598, 599, Section 345; 40 Ohio Jurisprudence, 1077, Section 170; Ashbrook v. Hite, 9 Ohio St., 357, 358, 75 Am. Dec., 468; Witherow v. Witherow, 16 Ohio, 238; and Scott’s, Exr., v. Exr. and Heirs of Barber, 14 Ohio, 547. These citations in the main go to the proposition that where a purchaser makes default in stipulated payments provided by a purchase contract, the vendor may refuse to perform without incurring liability to refund any of the purchase price. All of these citations are sound but have no application here because plaintiff’s action is not predicated upon the contract. If it were, he could not recover.

By the provision of the contract, particularly by the supplemental agreement, the contract was rescinded. This remanded the plaintiff to such relief as he would be entitled to, under the facts developed, had there been no contract. A somewhat similar situation was presented in the case of Swee v. Bregenzer, 19 C. C. (N. S.), 563, 564, 32 C. D., 554, where it is said in the opinion:

“The cause of action is not based upon any situation in the contract referred to in the petition. That contract, according to the allegations of the petition, is no longer subsisting. It has been rescinded by the defendant, and the plaintiffs, accepting that rescission, and recognizing that the contract has no longer any existence, sue to recover the money paid by them while it was a subsisting contract. In such a case the law raises an obligation which may be enforced in an action as for money had and received. While it may be necessary for the plaintiffs to resort to the contract as evidence to establish their right to recover, the action itself is not on the contract.”

Three cases are cited. The principle upon which the plaintiff may maintain his action'here is set ont and supported by citations from many of the-states in the Union. See the annotation to Nicolopooles v. Hill (217 Ala., 589), in 59 A. L. R., 185, 218, where it is stated:

“Where the vendee is in default, the parties may mutually agree to rescind a contract * * * or where the contract has been abandoned or rescinded by the consent of the vendor, the general implication is that he will account to the vendee for the amount received on the purchase price.”

Here the plaintiff in his petition recognizes his obligation to have any judgment in his behalf reduced by the fair rental value of the premises in which he lived.

It is not necessary to remind counsel in this case that this court may not reverse a judgment of the trial court, unless it is patently and manifestly against the weight of the evidence, and the trial court must be accorded the privilege of weighing and evaluating the testimony and the credibility of the witnesses. So testing this judgment, we cannot hold that it is against the weight of the evidence.

Some aspects of this case tend to support the contention of the defendants that the property was materially and seriously damaged by its misuse by the plaintiff. There is a strong suggestion in the evidence that plaintiff, and probably others who lived in the house with him, used the basement for the purposes for which commodes are properly employed.

Plaintiff contended that he agreed to pay too high a price for the property and that he was unable, because of his meager earnings, to meet the payments. This was not decisive. Had it been, we doubt if it were established. He did meet the payments for eleven and one-half months, and he had the property so arranged that he could pay the monthly installments required with very little, if any, of the rent being paid from his earnings. On the other hand, notwithstanding the condition of the property, probably caused, in part, by its misuse, the defendant was compensated for its occupancy at the rate of $60 per month when the federal rent control authority had fixed the rent at $30 a month; and, eventually, he sold the property for the same price at which plaintiff had contracted to buy it.

Analyzing the testimony in all of its facets, we are of opinion that the trial court, in the face of a difficult case, made a fair and reasonable adjudication of the issues, although many material facts were imperfectly developed.

The judgment is affirmed.

Judgment affirmed.

Wiseman and Miller, JJ., concur.


author: Matthews, P. J.

text:
    Pare, Appellant, v. Gemco Engineering & Mfg. Co., Inc., Appellee.
    (No. 7740
    Decided June 8, 1953.)

      Messrs. Kelly & Sullivan, for appellant.

      Messrs. Harmon, Colston, Goldsmith & Hoadly, Mr. Henry B. Street, and Mr. Douglas G. Cole, for appellee.
   Matthews, P. J.

The plaintiff, who was an experienced steeple jack, was employed by Noel Rigging Company to assist in razing and removing two cupolas and the platform surrounding them, located in a large factory building owned by The Cincinnati Chemical Company. A part of this building had been leased to the defendant, but this lease had expired at the time material to this case. The part of the building not leased by the defendant had been, and was, unoccupied, and it was in this unused part of the building that the cupolas were located. The Cincinnati Chemical Company sold the cupolas and platform to The Liberty Paper Stock Company, and it was this latter company which employed the Noel Rigging Company to tear down the cupolas and platform preparatory to their removal from the premises. The plaintiff was injured while engaged in this work as an employee of the Noel Rigging Company.

In that part of the building occupied there was located a bridge crane which operated on tracks or rails and was used by the defendant to shift heavy metallic objects from one location to another as required in the conduct of its business. One of these rails was located near and within reaching distance of the cupolas and platform as the plaintiff was engaged in dismantling them. The plaintiff knew that the wheels of the crane were likely to pass along this rail at any time. • There had been a partition of wood and wire screening separating the space where plaintiff was working from the rail, but in the process of demolishing the cupolas this partition had been removed. In the process of tearing down the cupolas and platform, a point was reached where the plaintiff was engaged in using an acetylene torch to burn through rivets or bolts and thereby loosen the supports of the platform. While doing this he was standing on a metal beam about four inches wide, facing and leaning toward an open space with the floor more than 20 feet below and with this rail something more than three feet above the metal beam upon which he was standing, and to his right. While it is not directly stated, it is a fair inference that the plaintiff lost his balance, or, at least, thought he was about to lose it. At any rate, he threw his right hand up and grasped the beam upon which the rail was located so that a part of his hand extended over the rail, and just at that instant the wheels of the crane passed along the rail. As a result, the plaintiff received a severe injury to his hand by reason of it being caught between one of the wheels and the rail. Whether it was the front or rear wheel does not appear from the record.

This action was instituted by plaintiff to recover damages on account of the injury to his hand. Upon this showing, the defendant, at the close of the plaintiff’s evidence, moved for an instructed verdict, which the court sustained, and entered judgment for the defendant. Thereafter, the court overruled the plaintiff’s motion for a new trial, and this appeal is from that judgment.

While appellant has assigned many specific errors, his counsel state in their brief that the case was tried on three theories: “ (1) By statute defendant was required to provide a ‘safe place’ for defendant [sic] to work (Secs. 871-15-16, O. G. C.) (2) Defendant violated a statutory duty in not guarding the wheels of the crane, a piece of ‘dangerous machinery’ (Sec. 1027 [7] O. G. C.), and (3) Defendant was under a common-law duty to exercise reasonable care, under the circumstances, not to injure the plaintiff. ’ ’

(1) It is manifest that the principal purpose of Section 871-15, General Code, is to protect employees, by requiring- employers to provide them with a safe place to work and only incidentally to extend that same security to others who happen to be in the place of employment. It must be shown first that the employer owed a duty to his employees to keep their place of employment in a safe condition, that he defaulted in that duty, and that the nonemployee or- frequenter who was injured was rightfully there.

In the case at bar, the plaintiff was not a frequenter of the place provided by the defendant for its employees. He was a frequenter or employee on adjoining premises, although in the same building. He had no right to be on the defendant’s premises. When he extended his hand over the beam and rail, he was technically a trespasser toward whom the plaintiff owed no duty to so prepare the premises that he could trespass in safety.

We believe the reasoning in the case of Popowich v. American Steel & Wire Co., 13 F. (2d), 381, is dispositive of this phase of this case. The court was called upon to construe Section 871-15, General Code, and apply it to a set of facts showing that the plaintiff was rightfully upon the employer’s premises, but not at a place where its employees worked. Plaintiff in that case was not a trespasser. The court held, as stated in the syllabus:

“Employee of independent contractor, receiving- injuries while washing- windows for defendant at place where no employee of defendant was required to work, held not entitled to recover, under Gen. Code Ohio, Secs. 871-15, 871-16, requiring safe place of employment for employees and frequenters, since ‘place of employment, ’ as used therein, means place where some employee is required to work, either temporarily or permanently. ’ ’

(2) Next, it is urged that the defendant violated Section 1027, General Code, in failing to provide a cover or guard for the wheels of the crane. There is no evidence of any law or rule prescribing a specific kind of cover or guard, and there is no evidence of any customary method of covers or guards. In this connection, it is urged that the court erred in excluding testimony tending to prove that covers or guards were and had been in use in similar situations. This testimony was offered in an effort to comply with the rule referred to in Jackson v. Cincinnati Gas & Electric Co., 70 Ohio App., 139, 42 N. E. (2d), 218, and Engelhardt, a Minor, v. Philipps, 136 Ohio St., 73, 23 N. E. (2d), 829.

An examination of this record discloses that the court did sustain objections to questions apparently designed to develop evidence of the use of covers as well as brakes and bells, but many of these questions were repetitions of questions which had been answered. In no instance did the plaintiff proffer an answer to any question to which an objection had been sustained. Toward the close of the trial, counsel did ask leave to proffer an answer to a question, which the court declined to permit, because the question was a repetition, of a question which had already been answered. As the witness’ answer was in the record before the jury, a proffer could add nothing.

The plaintiff was fully aware that these wheels were moving almost constantly along this rail. The sounding of a bell could have added nothing to his awareness. And the presence of brakes could have furnished no protection against injury from the sudden placing of plaintiff’s hand on the rail immediately in front of the approaching wheel.

Furthermore, the evidence shows that the crane was provided with two wheels, proceeding along the rail about six feet apart. There is no evidence as to which wheel ran over the plaintiff’s hand. For aught 'that appears in this record, the plaintiff may have grasped the rail after the front wheel had passed by and had his hand injured by the rear wheel. There is no claim that the rear wheel should have been covered or guarded.

Section 1027, General Code, imposed no duty on defendant to plaintiff, who, without right so to do, placed his hand upon the rail.

(3) Finally, it is claimed that the defendant violated its common-law duty to exercise ordinary care, and that its failure in that regard was the cause of the plaintiff’s injury. It is true, of course, that in all, or at least most, situations when a person is in proximity to another, he must exercise reasonable care so as not to subject others to unreasonable risks because of his conduct. But every person assumes the ordinary risks of the situation as well as those risks that arise because of his own conduct. In this, case, the plaintiff, by placing his hand upon this rail, assumed the risk incident to that act. The unfortunate result is attributable to his own act and not to any negligence of defendant.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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


text:
    Rose, Appellee, v. Kelsey et al., Appellants.
    (No. 7739
    Decided June 22, 1953.)

      Mr. Paul J. Crone, for appellee.

      Mr. Robert Fosdick, for appellant Lottie L. Kelsey.

      Messrs. McIntosh, Moore d> Katz, for appellant Buckeye Union Casualty Company.
   Matthews, P. J.

This is an appeal by a paid surety on a realtor’s bond given in compliance with Section 6373-35, General- Code, from a judgment of the Municipal Court of Cincinnati.

L appears from the record that the defendant casualty company, appellant herein, became surety in the penal sum of $1,000 for the year 1950, and that upon the renewal of the realtor’s license for 1951, it was paid a premium for that year. No new bond was executed. The default upon which the judgment was rendered in this case took place in 1951.

By answer, the defendant surety alleged that a judgment for $1,000 had been theretofore rendered against it for another default, which was the full amount of its liability on the bond sued upon.

The defendant introduced in evidence a certified copy of the transcript of the record of the case in which the judgment was rendered in support of its defense. This record shows that the contract out of which the realtor’s default arose was entered into on December 5, 1950, and that the judgment against the realtor included interest from December 5, 1950. At no place does it appear when the realtor defaulted. Inferentially, at least, it appears that the receipt of the money by the realtor and her default occurred simultaneously. If so, the breach upon which the judgment was rendered occurred in 1950, whereas, the breach sued on in the case at bar occurred in 1951.

The record suggests several interesting questions as to the liability of a compensated surety on a realtor’s bond on which renewal premiums have been paid. Is its liability limited to the amount of the penalty in the original bond, or did the acceptance of a premium for a succeeding year bind the surety to another penalty in the same amount? The statute furnishes no definite answer to this question. It does provide in Section 6373-38, General Code, that all licenses shall expire on December 31 of the year in which they are issued, and that they may be renewed upon application, without recommendation or examination, if made before that date. It could be argued that as the law expressly dispenses with recommendation and examination on a renewal, it indicated an intention that all other conditions, including the bond of the original application, were renewed. When does the liability of the surety attach? Does it attach at the inception of the transaction between the realtor and his customer or when the realtor defaults in his duty toward the customer under the act? Is the fact that the bond is an indemnity against default in the performance of many and continuous duties, rather than of a specific duty, material? Is an unsatisfied judgment against the surety for the full amount of the penalty for one default a defense to an action against the surety based on another default?

We have found no Ohio case furnishing an answer to any of these specific questions. A case having some relevancy to the question of whether a separate penalty is imposed by each renewal is that of Rankin, Recr., v. United States Fidelity & Guaranty Co., 86 Ohio St., 267, 99 N. E., 314, and the whole subject is elaborately discussed in the annotations to the cases of State, ex rel. Freeling, Atty. Genl., v. New Amsterdam Casualty Co. (110 Okla., 23, 236 P., 603), in 42 A. L. R., 829, and United States v. American Surety Co. of New York (172 F. [2d], 135), in 7 A. L. R. (2d), 940. The annotations show that in most cases the decision turned on the specific facts. About the only general rule to be derived from them is that the contract must be construed most strongly against the obligor. As this is a bond required by statute, it would seem that the spirit and purpose of the law should determine the matter in the absence of any specific provision in the statute. The purpose would seem to be to have the public protected by indemnity of $1,000 at all times, which purpose would not be served by a bond, the full extent of the liability of which had been exhausted.

By Section 6373-33, General Code, the board of rea] estate examiners is given authority to make rules and regulations as to the form and manner of filing applications. Under that authority, it has prescribed a bond not only for a person seeking an original license, but also for a realtor seeking a renewal, thereby indicating its intention to require a new bond on renewal or at least the equivalent of a new bond by payment of the renewal premium, thereby continuing the original bond.

We are inclined to and do hold that under the statute each year is a separate unit, and that each renewal must be accompanied by a bond to answer for any default during that year! If we are right, then satisfaction of a default in a prior year would be no defense to an action based on a default in a. later year. And if satisfaction would not be a defense, for stronger reasons an unsatisfied judgment, based on such default, would not be a defense.

As we have found that these two defaults do not appear to have occurred in the same year, we are not required to consider the effect an unsatisfied judgment for one default would have upon the liability for another default occurring in the same year.

For these reasons, the judgment is affirmed.

Judgment affirmed.

Ross and Hildebrant, JJ., concur.


text:
    Krueger, Appellant, v. Tucker, Appellee.
    (No. 7783
    Decided October 26, 1953.)

      Mr. C. R. Beirne, for appellant.

      Messrs. Harmon, Colston, Goldsmith & Roadly and Mr. Henry B. Street, for appellee.
   Per Curiam.

This is an appeal on questions of law from an order granting a new trial. The jurisdiction of this court depends upon whether the record clearly shows that the trial court acted unreasonably, arbitrarily, or unconscionably. We, therefore, confine ourselves to a consideration of the record as it bears upon the question of abuse of discretion.

The jury had returned a verdict for the plaintiff. At that point, one of the jurors called on the trial judge and told him that two of the jurors had gone to the scene of the accident, made observations, and reported their observations to the other jurors during, their deliberations. The court told her that she had done right in coming to him and that ‘ ‘ from what you have said I feel that the jury did not follow the law as the court gave it to them but went out and did what they pleased.”

After this interview, the judge notified the defendant’s attorney, and he notified the plaintiff’s attorney that the interview had taken place, but did not tell him what had been said. However, a court reporter was present and took notes of the conversation. These notes were transcribed and filed with the papers in the case where plaintiff’s attorney found them while preparing the bill of exceptions.

The conduct of those jurors was made the basis of one of the grounds alleged for a new trial. Affidavits were filed and several jurors testified as to what had happened. It is clear that nothing was said to the judge privately which was not developed in open court. The parties were, therefore, informed of everything which was before the court and which might have influenced the court in reaching a decision on the motion for a new trial.

It is urged that the judge had prejudged the motion, and that that is disclosed by what he said in the interview. We cannot agree with counsel on this point. The juror told him of acts by other jurors which obviously constituted misconduct, and which were contrary to the law and the instructions of the court. The judge said that from the recital he felt that the jurors had disobeyed the law and instructions. We do not construe this language as indicating a closed mind. He did not say he believed what had been told him. It was an opinion based on a hypothesis. He stated the natural reaction of a lawyer to such conduct on the part of a juror, and, at the hearing on the motion for a new trial, the conduct of the jurors was fully developed, so that there was nothing within the knowledge of the judge on this subject that was not also within the knowledge of counsel for both parties. The evidence discloses no extraneous fact that might have influenced the judge in passing upon the motion for a new trial.

It should be said also that the new trial was granted on two other grounds, namely, that the verdict is manifestly against the weight of the evidence, and that the damages were excessive and arrived at through passion and prejudice.

Our conclusion is that the record fails to show an abuse of discretion and, therefore, that this court has no jurisdiction to review the order appealed from.

The appeal is dismissed.

Appeal dismissed.

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


author: Hurd, P. J.

text:
    Scharf, Admx., Appellee, v. The Gardner Cartage Co., Appellant.
    (No. 22639
    Decided June 8, 1953.)

      Mr. A. H. Budnik, for appellee.

      Messrs. Arter, Hadden, Wykoff S Van Buser, for appellant.
   Hurd, P. J.

This is an action in tort for wrongful death, appealed here on questions of law from a judgment of the Court of Common Pleas of CuyahogaCounty, rendered on a verdict in favor of plaintiff in the sum of $75,000.

The accident occurred on December 9, 1949, on the premises of The National Tube Company at Lorain, Ohio. It was due to the sudden collapse of a boom section attached to a 20-ton moto-erane, the property of defendant (herein called Gardner), which, in falling, struck plaintiff’s decedent on the head, causing instant death.

At the time of the accident, plaintiff’s decedent was an iron worker employed by The Eichleay Corporation, an independent contractor (herein called Eichleay), which was engaged under contract with The National Tube Company in erecting an overhead stripper crane.

Some time prior to December 7, 1949, Eichleay requested Gardner to deliver to the job on the premises of The National Tube Company three 20-ton moto-cranes with 65-foot boom sections attached. Gardner owned only one such crane, which is the equipment involved in this suit, although two cranes and extra boom sections were furnished by Gardner from outside sources. With its own crane Gardner supplied a crane operator and an oiler, both employees of Gardner, at an agreed rental of $120 per day, which amount included the wages of the two employees, the agreement being that the equipment was to be furnished and delivered “fully operated and serviced as required by job superintendent” of Eichleay. There were no other employees of Gardner engaged in the work on the premises of The National Tube Company at any time.

At the time of the accident, Gardner’s crane, operated by one McCrone, an employee of Gardner, was engaged in shifting along the ground a girder weighing from 30 to 35 tons, and being 80 to 85 feet long, preparatory to a final lift that would place the girder in its permanent overhead position. The girder had been stored on the ground and had to be swung in a 90-degree arc for raising. Only one end was being lifted at the time of the accident, the weight thereof being variously estimated from eight tons to one-third or not over one-half of the total weight.

The evidence is clear that defendant Gardner’s crane operator was taking directions from a “signal man,” who was an employee of Eichleay. In this operation, the operator watched the signal man and followed his signals and directions. In making a lift the crane would boom straight up, lift, and then boom out. It was when the order was given to ‘ ‘ boom out ’ ’ that a boom section attached to the crane collapsed or buckled at a point where it had been previously repaired.

Plaintiff’s petition sets forth four separate specifications of negligence. The first three specifications in substance charge the defendant, Gardner, with negligence in supplying to Eichleay a boom section for use on the moto-crane, which boom section was fatally defective in that it was of insufficient strength and lifting capacity, due primarily to the fact that it had been improperly repaired with metal of a different kind than the rest of the structure, to wit, soft angle iron to which had been applied a “spot weld” instead of a complete weld, and that Gardner knew, or in the exercise of ordinary care should have known that the repaired section would not be of sufficient strength and rigidity to withstand the stress and strain required to be put thereon, and, hence, knew or in the exercise of ordinary care should have known that the boom section would be likely to buckle and fall, thus rendering it dangerous to those working in the vicinity of the crane.

The fourth specification charges negligence of Gardner, through its crane operator, under the doctrine of respondeat superior, alleging in substance that the crane operator knew or should have known the weight and lifting capacity of Gardner’s moto-crano and the boom thereof, and that he attempted to lift material of weight which he knew, or should have known, would cause the boom to buckle and fall.

Additional facts are stated in the opinion.

Defendant assigns 16 separate grounds of error, the principal grounds being that the court erred in the following respects:

In failing to instruct the jury that at the time of the accident the crane operator was a loaned servant and, as such, was under the control of Eichleay and not under the control of Gardner.

In refusing defendant’s request to charge before-argument that as a matter of law, and under the evidence, the operator of the crane at the time of the accident was a loaned servant, and that Gardner was not liable or responsible for his negligence, if any.

In giving plaintiff’s special request to charge before argument, instructing the jury that at the time of the accident, the crane operator was a servant of and under the control of Gardner.

In giving plaintiff’s special request to charge before argument, instructing the jury that it was the duty of Gardner to provide boom sections for use on its boom crane which boom sections were reasonably safe and suitable for work being done by Eichleay, without regard to whether Gardner had knowledge of the nature of the work being done.

In admitting in evidence that portion of plaintiff’s exhibit 1, relating to the responsibility of the seller, that provision having application only where the seller is performing the work.

In failing to instruct the jury upon the meaning and application of that portion of plaintiff’s exhibit 1 relating to the responsibility of the seller, and in permitting plaintiff’s counsel to argue to the jury concerning that portion of plaintiff’s exhibit 1.

In overruling defendant’s motion for judgment made at the close of plaintiff’s evidence and renewed at the close of all the evidence.

Under the issues and the assigned errors, the first question to be determined is whether Gardner is liable to respond in damages for the negligence, if any, of McCrone, the crane operator, at the time of the accident.

Upon a consideration of the undisputed facts shown in the record, we conclude that McCrone, although a general employee of Gardner, was, at the time of the accident, in the special service of Eichleay, the independent contractor, under whose exclusive direction and control the work was being performed. The facts here show clearly an agreement between the parties, whereby Gardner loaned the equipment “fully serviced and operated.” For the purposes of service and operation a crane operator and an oiler were supplied at a specified per diem rental. Gardner had no control or direction over the construction work then being performed. Eichleay, through its job superintendent, and not Gardner, was in complete and exclusive control of the work and the workmen on the job, including Gardner’s loaned employees. The true criterion of responsibility under the facts here presented is control and direction of the work and employees.

In view of the factual situation here presented, the principles enunciated in Halkias v. Wilkoff Co., 141 Ohio St., 139, 47 N. E. (2d), 199, apply, particularly as set forth in the fourth paragraph of the syllabus, which reads:

“When one party loans his servant to another for a particular employment in the business and under the direction of the latter, the servant, for anything done in that employment, must be regarded as the servant of the party to whom he is loaned, although he remains the general servant of the party who loaned him.”

In McAndrews v. E. W. Bliss Co. (C. C. A. 6, 1951), 186 F. (2d), 499 (certiorari denied, 342 U. S., 821, 96 L. Ed., 621, 72 S. Ct., 41), the United States Circuit Court of Appeals affirmed a judgment for defendant, based upon peremptory instructions in its favor by the District Court of the United States for the Northern District of Ohio, Eastern Division. In that case, as in this case, The Eichleay Corporation was the independent contractor, and, except for the issue of a defective boom, that case is directly in point.

The Court of Appeals in the Me Andrews case held:

“Where employer assigned crane operator to assist crew of independent contractor in the dismantling [of an] * * * overhead travelling crane at employer’s plant, and crane operator, in performing such work, was under sole direction of independent contractor’s foreman, employer could not be held liable for crane operator’s alleged negligence resulting in injury to member of independent contractor’s crew.”

For other authorities to the same effect, see: Denton v. Yazoo & Mississippi Valley Rd. Co., 284 U. S., 305, 76 L. Ed., 310, 52 S. Ct., 141; Peters v. United Studios, Inc. (1929), 98 Cal. App., 373, 277 P., 156; Standard Oil Co. v. Anderson (1908), 212 U. S., 215, 53 L. Ed., 480, 29 S. Ct., 252; Bartolomeo et al., Admrs., v. Charles Bennett Contracting Co. (1927), 245 N. Y., 66, 156 N. E:, 98; Western Marine & Salvage Co. v. Ball (1930), 59 App. D. C., 208, 37 F. (2d), 1004, certiorari denied, Ball v. Western Marine & Salvage Co., 281 U. S., 749, 74 L. Ed., 1161, 50 S. Ct., 353.

On this phase of the case we pronounce the rule to be that where equipment is supplied under a rental agreement “fully operated and serviced” at a specified per diem rental and the supplier of such equipment, as bailor, furnishes his own employees along with such equipment to operate the same on the premises of another, such supplier, as the general employer, is not liable for tbe negligence of such employees, where it is shown that such supplier exercised no direction or control over such loaned servants in the manner or way in which the work for which the equipment was supplied was to be done or accomplished, but that the bailee exercised complete arid exclusive direction and control over the operation of such equipment and its operators, and further that such supplier had no interest in the work being done except for the rental of his equipment so supplied. In such a situation such servants must be regarded as the servants of the party to whom they are loaned, even though they remain in the general employ of the supplier.

In view of the facts of this case and the applicable law, we hold that it was error prejudicial to the rights of defendant Gardner to charge the jury that at the time of the accident the crane operator was a servant under the control of Gardner and to refuse Gardner’s request to charge under the loaned-servant rule.

We come now to consider error assigned in admitting in evidence that portion of plaintiff’s exhibit 1 relating to “responsibility of seller” and in permitting plaintiff’s counsel to argue this proposition to the jury.

The record shows that the request for rental of the equipment was made by one Samuel E. Langfitt, Jr., who was the superintendent on the job for Eichleay. The request was in the form of a telephone conversation, Langfitt testifying that it took place about four to six weeks prior to December 9, 1949. He testified also that he told the person to whom he spoke that the equipment desired was to lift 30 tons.

Joseph Kelley, an office employee of Gardner, testified that he took the order by telephone from Langfitt, and that an entry was made on his work sheet and that the date the order was to be filled was December 7, 1949. There is no evidence in the record showing that any conditions with respect to responsibility were discussed at that time.

On December 1, following, Eichleay sent from Pittsburgh a requisition to Gardner with instructions to ship to Eichleay, in care of The National Tube Company, Lorain, Ohio, with a notation appearing on its face as follows:

“Services of Lorain 20 ton truck cranes (as required by job superintendent) fully operated and serviced, $120/day.”

At the lower part, under the printed words quoted, appear the typewritten words “request by job superintendent.” On the back of the requisition under heading, “conditions,” certain conditions as to the responsibilities of the “seller” were set forth in great detail.

That part which was introduced in evidence over the objection of Gardner reads as follows:

“By the acceptance of this order, seller assumes all risk of damage to property or injuries to persons, including death resulting therefrom, arising out of the performance of the work, or in connection therewith, or appertaining thereto, sustained by seller, the employees of seller, the employees of buyer, and/or other persons, and hereby agrees to protect, indemnify and save harmless buyer and/or its affiliates against any and all claims, suits and demands therefor, whether chargeable to the negligence of buyer and/or its affiliates, or otherwise.

“Seller will further be responsible for all material and workmanship until finally completed and until finally accepted by buyer, and agrees if the work is to be done on buyer’s premises, to keep such premises free and clear of all mechanics’ liens.

“Seller shall be responsible for loss of, or damage to, any and all machinery or equipment upon which work is to be performed by seller, while in possession or control of seller, however such loss or damage shall occur.”

Other parts of the printed matter show that the conditions relate to sale of goods, material and articles. No part of the conditions relate to a loan or rental of equipment such as that involved in the case at bar.

The argument of counsel to the jury, to which particular objection was made, is as follows:

“But here is the killer. The little print he talks about. Oh, yes. Does it make it any less effective that it is in small print than if it were in large print? Oh, he is deathly scared of that little print, and well he should be.

“Please, ladies and gentlemen, read this, and here is your answer to the whole lawsuit. Under ‘responsibility’ you will catch it on the right hand column under the heading ‘responsibility.’ It just takes 20 seconds to read.

“ ‘By the acceptance of this order, seller’ — that is the Gardner Cartage Corporation — ‘assumes all risk of damage to property or injuries to persons, including death resulting therefrom, arising out of the performance of the work or in connection therewith or appertaining thereto, sustained by seller, the employees of seller, sustained by the employees of buyer’ the employees of the Eichleay Company — ‘I agree’ says the Gardner Corporation — ‘that we will pay the damages for people that are killed on this job.’ They said so themselves, and let them get out of it. If I am wrong, interpret it yourselves when you read it. ’ ’

It is our conclusion that the quoted paragraphs do not have any bearing upon any issue involved in this case. According to the language used, the most that can be said for it is that it imposes upon the seller an obligation of indemnity by virtue of which Eichleav would be indemnified and saved harmless ‘ ‘ against any and all claims, suits, and demands therefor, whether chargeable to the negligence of buyer, or otherwise,” a matter not here in issue. In no sense could the language be interpreted as being for the benefit of the plaintiff. We think that evidence on this extraneous issue was incompetent, immaterial and irrelevant, that its admission constituted error prejudicial to the rights of Gardner, and that the court, upon objection of defendant, should have excluded this evidence and should not have permitted counsel for plaintiff to argue the question to the jury.

The principal issue remaining for consideration is the asserted liability of Gardner for negligence in furnishing a defectively repaired boom section. Questions raised on this issue involve the claim that the court erred in giving plaintiff’s request before argument No. 6, which reads:

“You are instructed that it was the duty of the defendant, The Gardner Cartage Company to provide sections for use on its crane boom which were reasonably safe and suitable to use in the performance of the work being done on December 9,1949. ’ ’

Involved also are the assignments of error grounded upon the refusal of the court to grant the motion for final judgment at the close of the entire case, and for judgment non obstante veredicto.

There is evidence in the record supporting the specifications of negligence to the effect that the section of the boom which collapsed had been previously repaired by the insertion of metal of a different land than the rest of the section, to wit, soft angle iron in one part of the boom section, which had been welded, ground smooth and painted, and that it was this part of the boom which “buckled or collapsed.” There was evidence tending to show also that the welding was not a “complete weld” bnt that the boom section was ‘ ‘ spot welded, ’ ’ which seriously weakened it. The evidence is crystal clear that it was the budding of this inherently weak boom section which was the proximate cause of the accident and resulting death.

There is evidence tending to show also that the repaired boom section had been freshly painted and that because of this it looked like a new section. This evidence was produced through the testimony of one Aaron Ernie, who was foreman of the iron workers on the job for Eichleay. He testified that when he examined the boom section after the accident, he found “it had been rebuilt but never completed”; that the “cross staves going across the boom section were just spot welded where they should be fully welded and it was these two staves that let go”; and that “there was an inferior angle iron used on the one corner of the rebuilt boom that twisted easily after the two cross staves let go.”

The same witness gave the following significant testimony :

“Q. How did that boom section appear to you as you observed it when it was brought in before the accident? A. The section, when it was brought in was freshly painted section. It looked to me like it was a new section.

“Q. Was that because it was freshly painted? A. That’s right.”

From the foregoing, it appears that the boom section, which collapsed when used on the moto-crane, was an inherently dangerous instrumentality, as defectively repaired, which condition was not obvious because of its appearance of newness due to the freshly applied coat of paint.

Joseph C. Gardner, president of defendant, Gardner, under cross-examination testified that he could not say that the defective boom was one of the boom sections furnished by his company; but there is evidence in the record, although disputed, tending to show that the defective boom section was furnished by Gardner, and that after the accident, it was taken into the Gardner yard and sold for scrap. There is evidence also, although disputed, that the 20-foot section was on the boom when it was sent out. We think the actual ownership of the defective boom section is not a controlling factor, since it was admitted by Gardner that a number of boom sections were sent out by Gardner and the crane operator was using the boom section on Gardner’s equipment at the time of the collapse.

From the evidence, we conclude that questions of fact were presented for determination by the jury under proper instructions by the court as to whether Gardner was negligent in failing to supply a boom section which was reasonably safe and suitable for use in the performance of the work, and whether such negligence, if any, proximately caused or proximately contributed to cause the death of plaintiff’s decedent.

This is true, we think, even though Eichleay may have been guilty of negligence also in failing properly to inspect the equipment. In other words, if Gardner was negligent, Gardner would not be relieved of liability because decedent’s employer, Eichleay, was negligent in not discovering the negligence or preventing its natural result.

This proposition, under somewhat different circumstances, is well stated in Rosebrock, Admx., v. General Electric Co., 236 N. Y., 227, 140 N. E., 571, where Judge Crane, in an opinion concurred in by Judges Pound, Cardozo and Hogan, said at page 240:

“If under the circumstances of this case the defendant were negligent it was not relieved of liability because the purchaser [decedent’s employer] was negligent in not discovering the negligence or preventing its natural result. ’ ’

The record shows that Gardner, among other activities, was in the business of supplying construction equipment such as moto-cranes and boom sections. Certainly one in such business has the duty of exercising ordinary care to see that the equipment supplied is reasonably safe and suitable for use in the type of work for which it is supplied. This is a duty which is imposed by law, aside from contract.

The following statement of Judge Cardozo in MacPherson v. Buick Motor Co., 217 N. Y., 382, 111 N. E., 1050, L. R. A. 1916F, 696, Ann. Cas. 1916C, 440, is often quoted:

“We have put aside the notion that the duty to safeguard life and limb, when the consequence of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law. ’ ’

We find no Ohio case directly in point on the issue of the liability of bailors to third persons for the dangerous and defective condition of instrumentalities loaned or bailed for hire.

In Hilleary v. Bromley, 146 Ohio St., 212, 64 N. E. (2d), 832, the Supreme Court had occasion to pass upon the duty of a bailor to a bailee. In that case the plaintiff brought an action to recover damages for injuries alleged to have resulted from the negligence of defendant in furnishing him a ladder which was defective and inadequate for the purpose for which it was used. The trial court directed a verdict for the defendants at the close of plaintiff’s evidence. The Court of Appeals affirmed and the Supreme Court reversed and remanded, holding that plaintiff had adduced evidence sufficient to entitle him to have his case submitted to the jury.

The first paragraph of the syllabus of the Hilleary case reads:

“The legal rights and duties arising out of bailment are founded upon the contemplation of benefit accruing to one party or the other, or to both; and where both the bailor and bailee are benefited by the transaction, it becomes the bailor’s duty to exercise ordinary care to make the chattel which is the subject of bailment safe for its intended purpose, or to inform the bailee of any unsafe condition in the chattel which it was the duty of the bailor, in the exercise of ordinary care, to discover.”

In the later case of Drexler, an Infant, v. Laboy, 155 Ohio St., 244, 98 N. E. (2d), 410, Hilleary v. Bromley, supra, is cited with approval in the opinion by Judge Taft, at page 251.

Neither of those cases involves the question of liability to third persons. Therefore, by way of analogy we look to cases covering sales of defective equipment resulting in injuries to third persons.

In Wood v. General Electric Co. (1953), 159 Ohio St., 273, 112 N. E. (2d), 8, the Supreme Court held that a subpurchaser of an inherently dangerous article could recover from a manufacturer for negligence in making and furnishing the article which caused the harm to the subpurchaser. The court held further that such an action must be grounded in tort and cannot be based on implied warranty of fitness for use. See the second paragraph of the syllabus.

To the same effect is Thrash, a Minor, v. U-Drive-It Co., 158 Ohio St., 465, 110 N. E. (2d), 419, where the court held that a dealer in used motor vehicles is liable to respond to a third person in damages, for personal injuries because of the failure to exercise reasonable care to discover defects in such a vehicle sold by him. The fourth paragraph of the syllabus reads:

“Although a dealer in used motor vehicles is not an insurer of the safety of the vehicles he sells, he is generally under a duty to exercise reasonable care in making an examination thereof to discover defects therein' which would make them dangerous to users or to those who might come in contact with them, and upon discovery to correct those defects or at least give warning to the purchaser. Such rule is of particular significance where the sale of such a vehicle is accompanied by representations or warranties as to its fitness for use.”

In that case, the Supreme Court affirmed the judgment of the Court of Appeals for Summit County. Both the Court of Appeals and the Supreme Court cited with approval the landmark case of MacPherson v. Buick Motor Co., supra, and at page 470, Judge Zimmerman, in the course of the opinion, said:

“The principle announced in the MacPherson case is a reasonable and salutary one and has been widely approved in the cases and by text writers. See 2 Restatement of the Law of Torts, 1073 et seq., Section 394 et seq. Compare Carter v. Yardley & Co., Ltd., 319 Mass., 92, 64 N. E. (2d), 693, 164 A. L. R., 559; 65 Corpus Juris Secundum, 629, Negligence, Section 100C et seq.”

From a consideration of Supreme Court decisions we can logically conclude that in respect to liability to third persons, the rule in relation to sales of dangerously defective equipment is grounded in tort and not contract. Wood v. General Electric Co. and Thrash v. U-Drive-It Co., supra.

The principle upon which the rule is founded has its genesis in MacPherson v. Buick Motor Co., supra, as indicated by the opinion of Judge Zimmerman in the Thrash case, hereinbefore quoted in part.

The question naturally arises as to whether the principle of liability to third persons established in respect to sellers, should also apply to lenders or bailors for hire.

In 2 Restatement of the Law of Torts, 1095, Section 408, appears the following:

‘ ‘ One who leases a chattel as safe for immediate use is subject to liability to those whom he should expect to use the chattel, or to be in the vicinity of its probable use, for bodily harm caused by its use in a manner for which, and by a person for whose use, it is leased, if the lessor fails to exercise reasonable care to make it safe for such use or to disclose its actual condition to those who may be expected to use it. ’ ’

Based on these conclusions, the reasoning set forth in a comparatively recent case decided by the same court that decided MacPherson v. Buick Motor Co., involving liability to third persons of bailors for hire is cogent and persuasive.

In La Rocca v. Farrington (1950), 301 N. Y., 247, 93 N. E. (2d), 829, the Court of Appeals of New York sustained a verdict in favor of the plaintiff (employee of a shipyard company), who sued two parties defendant for injuries sustained when a link of chain holding the boom of a tractor crane in place broke while the crane was being used by plaintiff and other employees of the shipyard company. The crane belonged to defendant Turner Dock Transfer Company, Inc., which made a business of renting out such equipment and which had rented it to defendant Farrington, who kept it for two days only and then sublet or rented it to plaintiff’s employer. The verdict was sustained in favor of plaintiff against both defendants (the independent contractor, employer of plaintiff, not being a party).

The majority of the court, in a per curiam opinion, said in part:

“* * * The principle of the MacPherson case, supra, is no longer limited to manufacturers but has been extended to ‘suppliers’ as well, a designation which also covers owners and lessors. (See Restatement, Torts, Sections 388, 408; Connors v. Great Northern Elevator Co., 90 App. Div., 311, affirmed 180 N. Y., 509; Richards v. Texas Co., 245 App. Div., 797, motion for leave to appeal denied 268 N. Y., 728; MacKibbin v. Wilson & English Constr. Co., 263 App. Div., 1014, motion for leave to appeal denied 288 N. Y., 738.) Maritime cases such as Muscelli v. Starr Contr. Co. (296 N. Y., 330) and Caldarola v. Moore-McCormack Lines (295 N. Y., 463), are distinguishable under the maritime ruling placing full responsibility upon a charter party.

“The fact that the plaintiff’s employer, as lessee of the crane, had an equal opportunity to discover the defect and would thus be within the compass of the MacPherson [case] doctrine does not serve to relieve the owner of liability. (Wanamaker v. Otis Elevator Co., 228 N. Y., 192.)”

Thus we conclude that the holding that the principle that it is a bailor’s duty to exercise ordinary care to see that the bailed chatttel is safe for its intended use and that such bailor incurs liability for injuries caused by hidden defects extends to suppliers, including owners and lessors thereof, is equally applicable to the facts of the instant case and is not contrary to any authoritative decision in Ohio.

It may be observed also that the holding in the La Rocca case that the fact that the employer subleasing the tractor crane from the owner’s lessee had equal opportunity with the owner to discover the defect did not relieve the owner from liability for injuries to the employee of the independent contractor as a result of such link breaking is in complete consonance with our holding here. To the same effect see the quotation from Rosebrock v. General Electric Co., supra.

In Wujnovich v. Equipment Corporation of America (D. C.), 54 F. Supp., 465, the plaintiff, an employee of The Crucible Steel Company, was injured when the boom of a crane fell and struck him. Defendant equipment company filed a third party complaint against the steel company alleging the steel company was solely negligent. A verdict was rendered against the equipment company alone, upon which judgment was entered.

On motion for new trial and to set aside the verdict, at page 467, the court said:

“It [the steel company] had the right to rely on the fact that the equipment was in proper condition to operate for the purposes for which it was leased. See Trusty v. Patterson, 299 Pa., 469, 149 A., 717; Lambert v. Richards-Kelly Co., 348 Pa., 407, 35 A. (2d), 76; Sagonowich v. Hachikian, 348 Pa., 313, 35 A. (2d), 343; Ebbert v. Philadelphia Electric Co., 330 Pa., 257, 198 A., 323.

< < * * #

“The third point raises the question of whether or not we erred in charging the jury that the defendant warranted the crane to be suitable for the purpose the Crucible Steel Company was to use it. We are of the opinion that one who supplies machinery to another warrants the safe and proper assembly of the machine he supplies for the purposes for which it was adapted. See Ebbert v. Philadelphia Electric Co., 330 Pa., 257, 198 A., 323.”

Before concluding, we wish to note that counsel for Gardner cite the Thrash case, supra, in support of their claim for final judgment, arguing that the position of defendant, U-Drive-It Company, which, as the original agency was relieved from liability, is comparable to their position in this case. We think this argument is untenable, because there is here no intervening agency to break the chain of causation. Only three parties are involved here, namely, Gardner, the bailor, Eichleay, the bailee, and plaintiff’s decedent who was fatally injured due to the defective equipment. In our opinion the position of Gardner is more comparable to that of Spot Motor Company, than that of U-Drive-It Company, a proposition covered by the fourth paragraph of the syllabus quoted above.

We think it unnecessary to belabor this point further. Suffice it to say that on the facts of this case, the plaintiff has adduced evidence sufficient to entitle him to have his case submitted to the jury on the issue of negligence in supplying a boom section which was defective due to improper repair.

We hold, therefore, that the trial court did not err in giving to the jury plaintiff’s requested charge No. 6, and in overruling the motions for final judgment and for judgment non obstante veredicto.

Because of errors prejudicial to the rights of defendant, herein set forth, the judgment of the Common Pleas Court is reversed, and the cause is remanded. We find no other prejudicial errors upon the face of the record.

Judgment reversed.

Kovachy and Skeel, JJ., concur.