author: Wiseman, J.

text:
    Bennett, Appellee, v. The Dayton Memorial Park & Cemetery Assn. et al., Appellees; Ohio Liquidating Co., Appellant.
    (No. 2070
    Decided November 2, 1949.)

      Mr. Howard P. Williamson, for appellee Clifford R. Bennett.

      Messrs. 'Cowden, Pfarrer & Crew, for appellee The Winters National Bank & Trust Company.

      Messrs. Prong & Prong, for appellant.
   Wiseman, J.

This case is submitted on motion of the defendant, appellee, The Winters National Bank & Trust. Company of Dayton, to dismiss the appeal of the Ohio Liquidating Company.

The motion is grounded on the fact that the Ohio Liquidating Company was substituted as a party to the action in the place of the Stockholders Realization Corporation by entry made by the Common Pleas Court after judgment was entered. The entry provided that the order of substitution should be entered nunc pro tunc as of November 7, 1944, which was prior to the date of the judgment.

The contention of counsel for the bank is that only parties to the action are entitled to file an appeal from a judgment; that the judgment terminates the action; that any attempt on the part of the court to substitute a party after judgment is a nullity and that such substituted party has no right to take an appeal from the judgment. Counsel also contends that Section 11261, General Code, which provides for substitution of parties, gives the court authority to make substitution only while the action is pending and prior to judgment. We do not agree. Section 11261, General Code, in part provides as follows: “On any other transfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted for him.” There is no time limitation mentioned in this section within which the court may act. But we are also required to observe the provisions of Section 11363, General Code, which provides, in part, as follows: “Before or after judgment, in furtherance of justice and on such terms as it deems proper, the court may amend any pleading, process, or proceeding, by adding or striking out the name of any party * * *.” Under this section an amendment which is allowable may be made at any stage of the proceedings. It may be made after judgment as well as before judgment. However, after judgment the court should exercise its authority with caution in furtherance of justice. It therefore becomes immaterial that the entry substituting the Ohio Liquidating Company for the Stockholders Realization Corporation was entered nunc pro tunc. In support of the proposition that the court may exercise such power under Section 11363, General Code, after judgment, the court cites the following authorities: Henry v. Jeans, 48 Ohio St., 443, 28 N. E., 672; Industrial Gas Co. v. Jones, 62 Ohio App., 553, 24 N. E. (2d), 830; 30 Ohio Jurisprudence, 800, Parties, Sections 71, 73; 31 Ohio Jurisprudence, 944, Pleadings, Sections 338, 339, 348.

Motion to dismiss will be overruled.

Motion overruled.

Miller, P. J., and Hornbbck, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Bennett, Appellee, v. The Dayton Memorial Park & Cemetery Assn. et al., Appellees; Walker, Appellant.

      (No. 2070
    Decided November 9, 1949.)

      Mr. Howard P. Williamson, for appellee Clifford R. Bennett.

      Messrs. Coioden, Pfarrer <£ Crew, for appellee The Winters National Bank & Trust Company.

      Messrs. Myers, Mills, Boesch & Cline, for appellant.
   Wiseman, J.

This case is here on motion of the defendant, appellee, The Winters National Bank & Trust Company of Dayton, to dismiss the appeal of the defendant, appellant, George R. Walker, on questions of law and fact, and to retain the appeal on questions of law only.

The action was one in chancery, which was instituted November 24,1941. A referee was appointed who, after extended hearings, reported his findings of fact and conclusions of law, to which exceptions and motions for new trial were filed and overruled. The referee’s report was confirmed in an entry by the Common Pleas Court, which was journalized on July 1, 1949. This was a final order from which an appeal could be taken. The appellant, George R. Walker, on July 20, 1949, filed his notice of appeal on questions of law and fact from the judgment entered July 1, 1949. However, no appeal bond was given as required by Section 12223-6, General Code.

The record further shows that on July 5, 1949, the appellant filed his application for rehearing and motion for new trial, which was overruled on July 20, 1949. Thereafter, on July 25, 1949, the appellant filed a notice of appeal on questions of law and fact from the final order entered on July 1, 1949, and from the entry overruling the application for rehearing and motion for new trial enterd July 20, 1949. On July 25, 1949, an appeal bond in the sum of $1,000 was filed.

Inasmuch as this action was instituted in 1941, Sections 11578 and 12223-7, General Code, as amended October 11, 1945, have no application. The time within which a motion for new trial was required to be filed Is controlled by Section 11578, General Code, as it existed prior to the amendment. Von Gunten v. New Justice Coal Co., 147 Ohio St., 511, 72 N. E. (2d), 253; Wainscott v. Young, 81 Ohio App., 21, 77 N. E. (2d), 102; Heiland v. Hildebrand, 81 Ohio App., 25, 70 N. E. (2d), 678.

Under Section 11575, General Code, prior to the amendment effective October 11, 1945, a motion for new trial was defined as follows: “A new trial is a re-examination, in the same court, of an issue of fact, after a verdict by a jury, a report of a referee or master, or a decision by the court.” (Emphasis ours.) Under the provisions of Section 11479, General Code, the report of the referee stands as the decision of the •court, subject to review, and judgment may be entered thereon as if the court had tried the action. Mennel Milling Co. v. Slosser, 140 Ohio St., 445, 45 N. E. (2d), 306; 35 Ohio Jurisprudence, 127, Section 44. In the instant case motions for new trial were properly filed before the referee which were overruled. The motion for new trial filed on July 5, 1949, was not “duly filed” and therefore had no legal force or effect and did not toll the statute with respect to the time within which notice of appeal was required to be filed. See Section 12223-7, General Code, prior to amendment effective October 11, 1945.

Since the motion for new trial which was filed on July 5, 1949, had no legal force or effect to toll the statute it follows that the notice of appeal given on July 25, 1949, from the order overruling the motion for new trial was not filed within time and, likewise, the bond filed on July 25, 1949, was not filed within time and has no legal force or effect. The appellant is required to rest his right to appeal on the notice of appeal given on July 20, 1949. However, the failure to give the appeal bond within time reduces the appeal to one on questions of law. Section 12223-22, General Code.

The Court will make no order with respect to the filing of a bill of exceptions, assignments of error or briefs until such time as counsel in this case have had an opportunity to confer with the court.

The motion to dismiss the appeal on questions of law and fact will be sustained. The appeal is ordered to stand as an appeal on questions of law.

Motion sustained.

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


author: Hunsicker, J.

text:
    Arrow Aluminum Castings Co., Appellant, v. Thor Mold & Machine Co., Appellee.
    (No. 4074
    Decided February 1, 1950.)

      Mr. Martin B. Wilkinson and Mr. Russell G. Wood, for appellant.

      WIessrs. Roby ds Arenson, for appellee.
   Hunsicker, J.

In this appeal on questions of law, the sole question presented is, Did the trial court have the power to entertain a motion to correct the bill of exceptions in the instant case without an order of remand from this Court of Appeals, during the time in which the case was pending in this court pursuant to a perfected appeal and subsequent to its presentation on the merits but before judgment?

The facts disclose that the litigation herein involved was tried to final judgment in the Court of Common Pleas; appeal was perfected to this Court of Appeals; pursuant to the appeal, a bill of exceptions was prepared and filed in the Court of Common Pleas, under authority of Sections 11565 and 11566, General Code; a hearing was held in that court on objections to the said bill, at the conclusion of which the court corrected the bill by the inclusion of a stipulation of counsel made during the trial; the court thereupon allowed and signed the bill, and it was transmitted to the office of the clerk from whom it was received; the bill was then filed in the Court of Appeals; the case was then set for trial and heard in the Court of Appeals, but before final judgment was entered, counsel for the appellee (The Thor Mold & Machine Co.) filed a motion in the Court of Common Pleas, to delete from the bill of exceptions the very stipulation of counsel which the trial court had on previous hearing ordered included; the Court of Common Pleas sustained the motion and ordered the stipulation deleted.

The question now before this court is whether, under these circumstances, the trial court erred in its order. There was no remand for such purpose by this court under the provisions of Section 11572-a, General Code.

Broad powers of amendment of pleading, process or proceedings have been granted a trial court by virtue of Section 11363, General Code, but this section does not apply to the situation which confronts this court.

Section 11572-0, General Code, reads as follows:

“When justice requires it, upon notice to all parties, an omission in a bill of exceptions, occurring through accident or error, may be corrected by the reviewing court, or it may be remanded to the trial court for such correction. ’ ’

This section provides a method for the correction of errors in a bill of exceptions when a matter is before the reviewing court.

We have found no case directly in point. There are many cases in which the subject of correction of a bill is touched upon, but the errors have been clerical and the duty of correction ministerial. Corrections which have involved substance have been as the result of a remand or agreement of the parties.

On a matter of procedure as important as that before us, there should be announced a rule of general application, which we hereby state. The power to order the correction of a bill of exceptions or remand to the trial court for such purpose, where the case is awaiting a determination by the reviewing court, is a. power to be exercised only by such reviewing court under Section 11572-o, General Code.

The power to provide for the order of correction of a bill of exceptions under the situation presented herein, should lodge in one court only and not be divided between the trial court and the reviewing court.

We, therefore, determine that, where a cause' is pending in a reviewing court, awaiting determination by such court after having been orally argued arid submitted, and where a bill of exceptions has been filed in such reviewing court as a part of said cause, ■ the trial court does not have the power to order the bill of exceptions to be corrected without an order of remand for such purpose by the reviewing court.

This court in the case of State v. Westfall, 74 Ohio App., 523, at p. 526, 60 N. E. (2d), 188, said:

“There appears.to be no statutory time limitation within which a bill of exceptions, filed within the time limited by statute, may be corrected. In fact, a bill of exceptions in a criminal case has been remanded for correction by the Supreme Court of Ohio, and corrected by the trial court, after the case had been argued and submitted in the Supreme Court. Clark v. State, 119 Ohio St., 162, 162 N. E., 429. See, also, Trumpler, Admr., v. Royer, 18 Ohio App., 151; O’Neill v. Bartlett, 53 Ohio App., 508, 5 N. E. (2d), 794.”

The Supreme Court of Ohio has stated in the case of Elser v. Parke, 142 Ohio St., 261, paragraphs 1 and 2 of the syllabus:

“1. Before an appellate court may remand a bill of exceptions to a trial court for correction upon application made under Section 11572-a, General Code, a showing must be made that an omission in such bill occurred through accident or error.

“2. Where the application for diminution of a bill of exceptions states that it is made after the appellate court had granted a rehearing- and for the purpose of supplying the appellate court with grounds for reversing the judgment of the trial court, the granting of such application is erroneous.”

The judgment of the trial court is contrary to law and prejudicial to the rights of the appellant. The judgment of the trial court is reversed, and, there being no dispute as to the facts of this controversy, the bill of exceptions is ordered to stand as presented to this court in the original action, being cause No. 4033 in this court.

Judgment reversed.

Stevens, P. J., and Doyle, J., concur.


author: Doyle, J.

text:
    Taylor, Appellee, v. City of Cleveland, Appellant.

      (No. 21398
    Decided March 22, 1950.)

      Mr. William J. Corrigan, Mr. Charles 1. Russo, Mr. Joseph B. Corrigan, Mr. Anthony F. Gaughan and Mr. Timothy F. McMahon, for appellee.
    * Mr. Lee G. Rowley, director of law, and Mr. Charles W. White, for appellant.
   Doyle, J.

James E. Taylor is a lieutenant in the fire department of the city of Cleveland. The litigation in the Common Pleas Court of Cuyahoga County involved the right of the lieutenant to recover a money judgment against the city upon a claim for overtime pay for work performed in his capacity as such fireman.

The action is one of six or seven hundred like actions against the city by individual members of the department, and was selected by counsel as a test case. .

The position of affairs as we find it to be in this appeal is a money judgment rendered upon a verdict of a jury in the amount of $3,688.96 in favor of the fire department lieutenant and against the city. The appeal now lodges the case in this court for affirmance or reversal of the judgment.

The petition of the claimant asserts that: He, against his protests, was ordered and required to work for periods in excess of eight hours a day and forty-eight hours a week, and did “work at his * * * duties for periods averaging seventy-two * * * hours per week”; he was required to “work under a so-called platoon system inaugurated by the defendant”; he worked “on the basis of a so-called twenty-four-hour * * * shift, whereby said plaintiff, as well as other city firemen, was on duty for a period of twenty-four * * * hours, and then relieved for a like period of twenty-four * # * hours.”

It was further claimed that “said platoon system was inaugurated, and kept in force, by defendant, without authority, and for the purpose of avoiding and evading the provisions of the charter of said city limiting the hours of labor, as aforesaid, and for the sole purpose of compelling and requiring plaintiff to work without compensation.”

The claimant then prayed for an award of $11,963.28 as the fair and reasonable value of his services on the basis of “time and one-half” pay for the number of hours worked in excess of the hours contemplated in the eight-hour-dav provision of the city charter.

In addition to pleading the above, the claimant amended his petition, over the'objection of counsel for the city, after he had rested his case, by inserting the provisions of Section 284 of the ordinances of the city ■of Cleveland. This ordinance will be set out later.

There are many assignments of error urged by the city, and several hundred pages of briefs filed, which argue pro and con the claims of the respective litigants. No useful purpose can be served by discussing each one of them. Basic laws will be set out, with a critical analysis of the facts in their relation to them.

1. Article II, Section 37, of the Constitution of Ohio, provides:

“Except in cases of extraordinary emergency, not to exceed eight hours shall constitute a day’s work, and not to exceed forty-eight hours a week’s work, for workmen engaged on any public work carried on or aided by the state, or any political sub-division thereof, whether done by contract, or otherwise.”

This provision of the Constitution applies to construction work performed on public projects, and its very language shows it not to be self-executing. The enabling legislation enacted by the General Assembly is contained in Section 17-1, General Code, which states in substance the provisions of the Constitution, and makes unlawful, required work in excess of the hours stipulated. The section, furthermore, specifically provides that it “shall be construed not to include firemen in cities and villages, and policemen in villages.”

The question of the interpretation of the language “for workmen engaged on any public work carried on or aided by the state, or any political sub-division thereof, whether done by contract, or otherwise,” was presented to the Supreme Court of Ohio in 1925, in a case which grew out of the indictment of the director of public service of the city of Akron for the alleged unlawfully required work of city employees engaged in operating the waterworks of the city of Akron, located in the adjoining county of Portage. It was there held that the Constitution of Ohio and the enabling statute (Section 17-1, General Code) relate solely to work performed on the construction of public improvements and not on their “maintenance or operation.” State v. Peters, 112 Ohio St., 249, 147 N. E., 81.

Under this interpretation of the Constitution, no debatable constitutional question can be raised by virtue of the language in the enabling statute specifically excluding firemen from its operation. Firemen are not employed to construct public works. See, also, Clements v. Sherwood, Dir. of Pub. Welfare, 70 Ohio App., 266, 45 N. E. (2d), 805.

It is our conclusion, therefore, that the Constitution of Ohio does not now and never has established a policy for the work day or work week for members of the fire department in cities of this state.

2. Proceeding now to the charter of the city of Cleveland, we encounter Section 196, as amended in the year 1917. It provides :

“Except in cases of extraordinary emergencies, not to exceed eight hours shall constitute a day’s work and not to exceed forty-eight hours a week’s work, for any city employee of the city of Cleveland in the classified service thereof, and for any workmen engaged in any public work carried on or aided by the municipality whether done by contract or otherwise. The council shal] by ordinance, provide for the enforcement of the provisions of this section.”

This provision of the charter is more comprehensive in its scope than the provisions of the state Constitution. It provides for a work day and work week “for any city employee of the city of Cleveland in the classified service thereof,” and firemen come within the bounds of classified service. The provision, however, is not self-executing “within the definition that a self-executing provision is one which supplies the rule or means by which the right given may be enforced or protected or by which a duty enjoined may be performed.” Stange v. City of Cleveland, 94 Ohio St., 377, at page 380, 114 N. E., 261.

In fact, the charter provision itself states that council shall by ordinance provide for the enforcement of its provisions. Such language indicates that it is not self-executing, and, unless ordinances are passed by the city council carrying it into effect, the provision of the charter would not be effective. See: Ellis, City Solicitor, v. Urner, City Auditor, 125 Ohio St., 246, at page 250, 181 N. E., 22.

3. The next step in this opinion will be the determination of the source of the authority to provide for a work day and work week for firemen in cities of this state.

As has been heretofore shown, the state Constitution does not provide such power. The charter of the city of Cleveland does not provide such power except through the enactment of enabling legislation, under the authority of the state, as will be hereinafter demonstrated.

Under the “Home Rule” amendment of the Constitution of Ohio (Article XVIII) there was not granted to municipalities absolute powers of local self-government. The powers granted were limited to matters and things purely local in character. The Legislature of the state was never stripped of its authority to legislate on matters pertaining to the preservation and protection of public safety and health, because such matters are of state-wide concern. The power given to municipalities to legislate on such matters was, and is, only such power as is specifically granted, plus the power to enact legislation which is-not in conflict with the general laws of the state. State, ex rel. Mowrer, v. Underwood, 61 Ohio App., 103, 22: N. E. (2d), 104; affirmed, State, ex rel. Mowrer, v. Underwood, 137 Ohio St., 1, 27 N. E. (2d), 773.

“2. Matters pertaining to the fire protection of a-municipality are of state-wide concern and subject to regulation by the General Assembly.” State, ex rel. Giovanello, v. Village of Lowellville, 139 Ohio St., 219, 39 N. E. (2d), 527.

A search of the statutes of the state reveals that the Legislature has only spoken of a work day and Avork week for firemen by saying that cities in the-state shall adopt the so-called two-platoon system, unless there has been adopted by a city “the eight-hour regulation for its fire department.” (Section 17-la, General Code.) In this legislation, cities are specifically granted the power to legislate in respect to an. “eight-hour regulation” for firemen. If cities do not so legislate, the hours of duty shall be those set out in the state law.

Section 17-la, General Code, as amended in 1939, and in force on the date from which overtime compensation is here sought, provided:

“It shall be the duty of the chief of the fire department of each city to divide the uniform force into not less than two platoons, and the said chief shall not keep a platoon of the uniform force on duty more than twenty-four consecutive hours, except in cases of extraordinary emergency, after which the platoon serving twenty-four hours shall be allowed to remain off duty for at least twenty-four consecutive hours. Each individual member of the platoons in addition to receiving a minimum of twenty-four hours off duty in-each period of forty-eight hours shall receive an additional period of tAventv-four consecutive hours off duty in each period of fourteen days. The chief of the fire department shall arrange the schedule of working hours to comply with the provisions of this section. In each eity all employes of the fire department shall be given not less than two weeks leave of absence annually, with full pay. The provisions of this section relating to off duty periods shall not apply to any city that may have adopted or may hereafter adopt the eight hour regulation for its fire department, but the provisions relating to the two weeks leave of absence shall apply thereto.” (118 Ohio Laws, 666.)

Reference is made to the amendment of this section in the year 1945, 121 Ohio Laws, 17. The amendment does not substantially change the legislation and does not affect the issues here presented.

It thus appears that, under the exclusive power of the Legislature of the state to regulate fire departments in the various cities in the state, that body has provided for the two-platoon system for all cities, unless the cities themselves, under the authority delegated, have legislated otherwise.

4. We now direct our attention to the ordinances of the city, if any, enacted pursuant to the delegated power given in Section 17-1a, General Code, supra. We have heretofore determined that the charter provision is not self-executing.

It appears that, for a period of many years prior to the date in 1940 from which the plaintiff commences his claim, there were no ordinances regulating the hours of work for firemen. Nor have any ordinances been enacted since 1940 on this subject, unless it can be said, as asserted by the plaintiff and concurred in by the trial judge, that an ordinance enacted in 1943 and inserted into the plaintiff’s petition over the objection of the city after the plaintiff had rested his ■case, provides for an eight-hour day and forty-eight-hour week, and overtime pay for firemen.

This ordinance is as follows:

“Sec. 284. Whenever it shall be necessary that one or more salaried officers or employes shall work beyond the number of hours regularly constituting a work day or work week in the division or department concerned, such officers and employes shall be compensated for such overtime work at the rate per hour computed by dividing the annual salary fixed for the position by the number of hours regularly constituting a work year for the concerned division or department; provided, however, that any appointing authority may, in lieu of authorizing compensation for overtime as herein provided, grant to the affected officer or employe time off from the performance of duty during regular hours of work in an amount equal to such overtime.”

This ordinance, under its terms, provides only for compensation for overtime work “beyond the number of hours regularly constituting a work day or work week in the division or department concerned.” (Emphasis ours.) The hours regularly constituting a work day or a work week in the fire department of Cleveland were those hours provided for under the platoon system set out in the statute and incorporated into the operation of the fire department. The record before us shows that this department now operates, and, for many years past has operated, under the platoon system, described in the plaintiff’s petition and required under the state law in the absence of local ordinances. The hours contemplated under this system are and were the hours regularly constituting a work day and work week in the department.

In respect to this ordinance, therefore, we must and do conclude that, in so far as firemen are concerned, overtime pay cannot, be allowed them except for work over and beyond the hours provided for under the platoon system. In the absence of-pertinent legislation by city council, the statute of ■ the state spells out the number of hours which regularly, constitute a work day or work week in the fire department.

The record before us does not show that the claimant worked a greater number of hours than those contemplated under Section 17-la, General Code (in fact, he does not so claim), and as a consequence thereof his case must fail.

In summation, we conclude that:

(1) The provision of the Constitution of Ohio hereinbefore set out (Article II, Section 37) does not apply to the maintenance of a fire department.

(2) The charter of the city is not self-executing and therefore cannot be said to be municipal legislation pursuant to authority delegated by the state..

(3) City ordinance No. 284, in so far as the fire department is concerned, does not permit overtime pay for work beyond an eight-hour day and forty-eight-hour week. If applicable at all, it would apply only to overtime pay for work beyond that stipulated in the state code and followed in the department for the past quarter century and more.

(4) The evidence does not show, nor does the petitioner claim, that he worked in excess of the hours specified under Section 17-la, General Code.

5. In view of the assertions made in the pleadings and statements made in the briefs of the litigants, it is, we think, appropriate to make the following observations :

(a) “The incumbent of an office has not, under "our system of government, any property in it. His right to exercise it is not based upon any contract or grant. It is conferred upon him as a public trust. The nature of the relation of a public officer to the public is inconsistent with either a property or contract right.” Wright v. City of Lorain, 70 Ohio App., 337, 341, 46 N. E. (2d), 325. See, also, Hull, Exrx., v. City of Cleveland, 79 Ohio App., 87, 70 N. E. (2d), 137.

“1. A public officer or public general employee holds his position neither by grant nor contract’, nor has any such officer or employee a vested interest or private right of property in his office or employment.” State, ex rel. Gordon, City Atty., v. Barthalow, Auditor, 150 Ohio St., 499, 83 N .E. (2d), 71.

(b) The right of all public employees to receive pay for their services to the public is derived solely from laws-enacted for such purpose (ex lege), and an implied obligation or an implied contract to pay for services cannot be successfully maintained in this state.1

6. Under the views here expressed, we find it unnecessary to pass upon the claim that the trial court erred in allowing, over objection, an amendment to the petition after the plaintiff had rested his case by including the context of ordinance No. 284 as enacted in 1943;’ nor do we find it necessary to pass on certain ■other errors asserted.

It is the conclusion of this court that the plaintiff has failed to make a case under any circumstances, and therefore the court erred in the following respects:

“In overruling defendant’s motion for a directed verdict at'-the close of all the evidence;

“In.holding in connection with its ruling on the second-motion for a directed verdict that Section 196 of the Charter and Section 284 of the Municipal Code of Cleveland, together, constituted a contract between plaintiff and defendant for the payment of compensation for any time plaintiff was required to be on duty in excess of 48 hours a week;

“In its charge by instructing the jury that the question whether plaintiff worked any overtime was :to be determined from the Charter and Municipal. Code, provisions ;

“In overruling defendant’s motion for a new trial;

“In entering judgment for the plaintiff instead of for the defendant.”

The judgment will be reversed and final judgment entered for the appellant, the city of Cleveland:','

Judgment reversed.

Guernsey, P. J., and Hunsicker, J., concur.

Guernsey, P, J., of the Third Appellate District,.and Hunsicker, J., and Doyle, J., of the Ninth Appellate District, sitting by designation in the Eighth Appellate District.


author: G-ueensey, P. J.

text:
    Haffner, Appellee, v. Schmeidl, Appellant.

      (No. 21530
    Decided December 19, 1949.)
    Messrs„ McKeehan, Merrick, Arter db Stewart and Mr. George Wm. Cottrell, for appellee.

      Mr. Julius A. Negin, for appellant.
   G-ueensey, P. J.

This is an appeal on questions of law from an order of the Municipal Court of Cleveland, granting a new trial and vacating and setting aside a judgment in a case in which John N. Haffner, the appellee, was plaintiff, and James A. Schmeidl, the apellant, was defendant.

The action was one for damages to an automobile, alleged to have been sustained through a collision between an automobile owned by plaintiff and driven by one Lois N. Lykens and an automobile driven by the defendant, and alleged to have been caused by the negligence-of the defendant.

IIpon the trial of the case in the Municipal Court of Cleveland the jury returned a verdict in favor of the defendant and judgment was thereafter duly entered upon the verdict.

The plaintiff then duly filed a motion for new trial, such motion, omitting the caption and signature of counsel, being in the words and figures as follows:

“Now comes the plaintiff and by his attorney moves the court for an order granting a new trial in the within cause for .the reason that the judgment of the jury is not sustained by sufficient evidence or is contrary to law,”

The court, following the filing of that motion, granted the same by an order reading as follows:

“Plaintiff’s motion for a new trial is hereby granted and the judgment heretofore rendered in favor of defendant against plaintiff is vacated and set aside and this cause is assigned for retrial.”

That is the order from which this appeal is taken. The defendant, appellant, assigns error by the court in making this order.

Under the Constitution and the statutes of the state of Ohio, as they existed prior to September 30, 1947, an appeal could not be taken from the granting of a motion for new trial unless the court in granting the same, abused its discretion.

Article IV, Section 6 of the Constitution was amended, effective January 1, 1945, to read in part:

“The Courts of Appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders of boards, commissions, officers, or tribunals, and of courts of record, inferior to the Court of Appeals within the district * *

Thereafter, Section 12223-2, General Code, was amended, effective September 30,1947, to read in part: 4 4 An order vacating or setting aside a judgment and ordering a new trial, is a final order which may be reviewed, affirmed, modified or reversed, with or without retrial * *

By virtue of this constitutional amendment, and the amendment of Section 12223-2, General Code, an appeal may now be taken from an order such as the one in the instant case, vacating or setting aside a judgment and ordering a new trial, irrespective of whether the court abused its discretion in the making of such an order.

Opon such an appeal the function of the reviewing court is to determine whether the trial court erred in the making of such order, and if it erred, to reverse such order; and if the trial court did not err, to affirm the order.

While a trial court may sua sponte set aside a judgment and grant a new trial upon a proper ground, it did not do so in the instant case as the record shows that the order so operating is predicated solely upon plaintiff’s motion for a new trial for which two grounds for the granting of a new trial are specified, to wit: (1) That the verdict of the jury is not sustained by sufficient evidence; (2) that it is contrary to law.

Consequently, it can not be presumed or assumed that the new trial was granted on any ground other than those specified in the motion.

While the defendant, under the provisions of Section 12223-2, General Code, had the right to x’equest the court to state in its order the grounds upon- which the new trial was granted and the judgment vacated or set aside, he did not avail himself of this right.

As the trial court predicated its order solely upon the motion and in it did not specify upon which ground of the motion the new trial was granted, it must affirmatively appear from the record, to warrant the reversal of the order, that the court erred in granting a new trial upon either of the grounds specified in the motion.

The bill of exceptions discloses that there was competent, substantial, and apparently credible evidence to sustain the verdict of the jury and the judgment rendered thereon, and that neither the verdict nor judgment is against the manifest weight of the evidence or contrary to law.

This being the case, the trial court erred in granting the motion for a new trial and vacating and'setting aside the judgment, and for this error the order appealed from is reversed, which has the effect of reinstating the judgment of the trial court.

The plaintiff, appellee, is ordered to pay the costs of this appeal and execution is awarded therefor, and the cause is remanded to the Municipal Court of Cleveland for execution of the judgment.

Order reversed.

Middleton and Doyle, JJ., concur.

Guernsey, P. J., and Middleton, J., of the Third Appellate District, and Doyle, J., of the Ninth Appellate District, sitting by designation in the Eighth Appellate District.


author: By the Court.

text:
    Dyer, Appellee, v. Hastings, a Minor, Appellant.
    (No. 391
    Decided January 19, 1950.)

      Messrs. Wetherill £ Schivemmer, for appellee.

      Messrs. Simpson £ McKinley, for appellant.
   By the Court.

This is an appeal on questions of law from an order of the Common Pleas Court of Hardin County, made upon motion of the plaintiff, vacating* and setting aside a judgment in favor of defendant and granting a new trial in an action wherein Joseph A. Dyer, the appellee, was plaintiff, and James Hastings, a minor, the appellant, was defendant.

The action is one for damages for personal injuries and medical expenses incurred by plaintiff incident to such injuries, and damages to the automobile owned by plaintiff, alleged to have resulted from a collision between the automobile operated by plaintiff and an automobile operated by defendant, and to have been caused by the negligence of defendant.

The judgment which was set aside and vacated was entered upon a verdict rendered by a jury in favor of defendant, and the motion was sustained and the order rendered upon the sole ground that “said verdict is against the weight of the evidence.”

Under the Constitution and statutes of the state of Ohio as they existed prior to September 30, 1947, an appeal could not be taken from the granting of a motion for a new trial unless the court, in granting the same, abused its discretion.

Article IY, Section 6 of the Constitution was amended, effective January 1, 1945, to read, in part:

‘ ‘ The Courts of Appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders of boards, commissions, officers, or tribunals, and of courts of record inferior to the Court of Appeals within the district # * *

Thereafter, Section 12223-2, General Code, was amended, effective September 30,1947, to read, in part:

“ * * * an order vacating or setting aside a judgment and ordering a new trial, is a final order which may be reviewed, affirmed, modified or reversed, with or without retrial, * *

By virtue of this constitutional amendment and the amendment of Section 12223-2, General Code, an appeal may now be taken from an order such as the order in the instant case, vacating or setting aside a judgment and ordering a new trial, irrespective of whether the court abused its discretion in the making of such order. Upon such an appeal the function of the reviewing court is to determine whether the trial court erred in the making of such order and if it erred, to reverse such order; and if the trial court did not err, to affirm the order.

It is the firmly established law of Ohio that a jury is the sole judge of the credibility of evidence, so that in considering a motion to set aside or vacate a judgment rendered upon the verdict of a jury and for a new trial, upon the ground that the verdict is against the weight of the evidence, a trial court is governed by the same rule of law as a reviewing court in vacating or setting aside a judgment and granting a new trial upon such ground.

From the text and authorities cited in support thereof in 2 Ohio Jurisprudence, 1153 to 1163, Appellate Review, Sections 635 and 636, we deduce that the rule applicable to both trial courts and reviewing courts in such procedure is:

No judgment may be vacated or set aside and new trial granted upon the ground that the verdict is against the weight of the evidence except as a matter of law; and a judgment will not be vacated or set aside and a new trial granted upon such ground where the verdict is supported by competent, substantial and apparently credible evidence which goes to all the essential elements of the case. See, also, 3 American Jurisprudence, 435, Appeal and Error, Section 883.

In formulating this rule the word, “substantial,” modifying the word, “evidence,” is used in the sense of “constituting more than a scintilla of,” and the word, “apparently,” as used to modify the word “credible,” is used to indicate that the court does not undertake to judge the credibility of the evidence, but only to judge whether it has the semblance of credibility.

The evidence in the instant case is in direct and sharp conflict on many essential elements of the case and is such that a verdict for either party would be supported by competent, substantial and apparently credible evidence.

In this situation it was the sole function of the jury to determine the credibility of the evidence, which it did by returning a verdict in favor of the defendant.

This verdict, as above mentioned, is supported by competent, substantial and apparently credible evidence, and the trial court therefore erred in ruling that it is against the weight of the evidence and granting plaintiff’s motion on this ground.

For this error the order of the trial court appealed from will be reversed as being contrary to law, at the costs of appellee, and the reversal of the order of the trial court having the effect of reinstating the judgment in favor of defendant, the cause will be remanded for execution on the judgment.

Judgment reversed.

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


author: Doyle, J. Stevens, P. J.,

text:
    Campbell, Appellee, v. Hughes Provision Co., Appellant.
    (No. 3973
    Decided April 20, 1949.)

      Mr. Raymond J. Finley, for appellee.

      Messrs. Wise, Roetsel, Maxon, Kelly <& Andress, for appellant.
   Doyle, J.

Appeal by the defendant from a judgment of the Court of Common Pleas of Summit County, in favor of the plaintiff, entered upon the verdict of a jury in the amount of $8,000, and against the Hughes Provision Company, the defendant.

Mrs. Margaret Campbell sought and received a judgment for damages arising out of personal injuries against the defendant company, which she claims arose as the proximate result of the negligence of the defendant company.

There is evidence tending to establish the following facts:

The defendant operates a retail store on South Main street in the city of Akron and sells provisions to the general public. Entrance to and from the store is gained through two swinging doors. The north door is hinged on its north side, and, when closed, extends in a northerly and southerly direction parallel with the street; when opened from the front, it swings inside clockwise in an arc of 90°, and, when swung outside, it swings counterclockwise in an arc of 90°. The south door is hinged on its south side, and swings as does the north door, except in an opposite direction. When the doors are closed, the southerly edge of the north door and the northerly edge of the south door meet in the center of the door opening. Each door is about three feet wide and consists in most part of a large pane of glass, surrounded by a wooden border of about six inches, the glass extending from the top to about twenty-four to thirty inches from the bottom.

Mrs. Campbell, at the time of the accident, was a woman 78 years of age. She entered the store, accompanied by her husband, through the north door, bent on the purchase of bread. Immediately after passing through the doorway and while standing in the area of the inside arc of the swing of the north door, she was struck by the door when it was pushed in from the outside by another person about to enter the store. The impact with the door knocked her down, and serious injuries resulted.

The petition originally contained ten different specifications of negligence. The court finally submitted to the jury but two — the others having been either withdrawn or stricken following objections to their propriety. The two specifications of negligence submitted were:

“8. In that the defendant failed to warn its invitees and patrons, such as the plaintiff, of the conditions then and there existing as hereinabove set forth.

“9. In that the defendant failed to provide adequate clearance between the extremity of the arc of the door and the display cases of said store.”

Appropriate to specification of negligence No. 9 above, there is evidence tending to prove that a bread counter extended in a generally easterly and westerly direction on the north side of the room, and that the distance between the easterly end of this counter and the east and west line of the north door when fully opened was between 16 and 18 inches. The testimony of the husband of the plaintiff describes the conduct of the couple and the conditions in the store as follows :

“Q. * * * why did you go into Wagner’s?

“A. Well, she said she was going for a loaf of bread, and we went in there, and she went on the bread side and I stopped on the side of the lunch meat.

i i * # #

“Q. Tell the jury which side the lunch meat is on, when you go in, and which side is the bread counter?

“A. The lunch meat is on the left side. The bread is on the right side of the entrance.

“Q. What did Mrs. Campbell do when she got in there? * * *

“A. She went to the bread counter.

“Q. All right. Now, tell the jury about how far was she, in feet, inside of the store, when you last saw her?

“A. Well, as near as I could .guess, about three feet.

“Q- And you say you then turned to the left, or the lunch meat counter — is that right — after that?

“A. Yes.

“Q. What was the next thing that you heard or saw?

“A. The next thing, I just turned around in time to see her knocked on the floor.

i (, # # #

“Q. Tell the jury, Mr. Campbell, whether or not, on that day — were there other people waiting to be waited on at the counter — at the bread counter there that day?

“A. They were lined up on the front of that counter where the bread was, and she- was on the outside of the row, a matter of about three feet.”

A Mrs. Katherine Ross testified:

“Q. You say you were in the store at this particular time?

“A. Yes.

“Q.What, if anything, happened that you saw at that time of the day?

“A. Well, I was waiting to be waited on. There was quite a crowd in the store at the time, and I was just standing around there waiting, and I saw this couple come in. The lady walked over to the bakery counter and her husband walked in the other direction. At that time the store was very crowded. She just stepped over to the bakery counter. Somebody came in the door and it swung around and knocked the old lady down. * * *

“Q. And where, exactly, as you remember it— whereabouts was Mrs. Campbell with reference to the door and the counter when she was struck by the door? Where was she standing?

“A. Well, she was just inside of the door. She had just stepped in and was waiting at the counter.

C ( * * *

“Q. Does that door swing way back to the counter or close to the counter?

“A. Yes, it swings way out.

i i # *

“Q. Now, tell the jury about how close Mrs. Campbell was to the counter when she was standing there?

“A. Well, I can’t tell exactly * * * because there were a few people waiting there, and she had to stand back of them and wait for her turn.”

The plaintiff herself testified:

“Q. You just tell me, in your own words, what happened there that day?

“A. Well, I went in the right-hand side and the bread counter you know is on the right-hand side when you come in the store, and I was there, I couldn’t just exactly say how but I didn’t seem to get clear in the door.

“Q. What happened to you?

“A. Well, I go to the floor.

“Q. What caused you to go to the floor?

“A. Well * * * I got knocked down.

( ( * *

“Q. Did you yourself pull or push the door to open it?

“A. I was on the inside of the door, just cleared the door a little bit as far as I can remember and there must have been someone that pushed the door and the door pushed me.

Í C # * *

“Q. Do you remember of going through the door?

“A. I remember getting clear of the door just a little bit.”

It would appear from the evidence that, when the plaintiff entered the store through the swinging door, the door swung back in place, and that, at the same time, she turned toward the bread counter and stood behind other customers in the space required for the inward swing of the door by other invitees of the defendant company. These are the controlling facts upon which we must determine the legality of the trial court’s judgment for the plaintiff.

1. It is said in 38 American Jurisprudence, Negligence, Section 131:

“The proprietor of a store, shop, or other place of business kept open for public patronage is not under an insurer’s liability as to the safety of persons who come thereon, but he does owe to customers who enter the premises, while the establishment is open for business, the duty of exercising ordinary care to keep the aisles, passageways, and such other parts of the premises as are ordinarily used by customers in transacting business in a reasonably safe condition for use by the persons thus entering, and to warn them of dangerous conditions upon the premises which are known, or which reasonably should be known, to him but not to them. This duty exists by reason of the fact that the customers enter the premises by the invitation, at least by the implied inyitation, of the proprietor.”

And to the same effect are: 29 Ohio Jurisprudence, Negligence, Section 61; Cincinnati Base Ball Club Co. v. Eno, 112 Ohio St., 175, 147 N. E., 86; Lake Brady Co. v. Krutel, Admx., 123 Ohio St., 570, 176 N. E., 226; Englehardt v. Phillips, 136 Ohio St., 73, 73 N. E. (2d), 829.

It is argued by the appellant that “before there can be a liability on the part of a storekeeper for the arrangement of its store, there must be competent evidence of the departure from some standard, and that it was not up to a jury, in the absence of such evidence, to fix the standard such as was done in the instant case. In the absence of proof as to a specific requirement or established custom or usage, it was not proper to leave to the jury the question as to whether the defendant’s storeroom was in a reasonably safe condition. In the absence of evidence of established or comparative standards of care as to the equipment, of a storeroom, it is not for the jury to say what those ■standards shall be.” In support of this claim the following Ohio cases are cited: Englehardt v. Phillips, 136 Ohio St., 73, 73 N. E. (2d), 829; Shoemaker v. Elec. Auto-Lite Co., 69 Ohio App., 169, 41 N. E. (2d), 433; Jackson v. Cincinnati Gas & Elec. Co., 70 Ohio App., 139, 42 N. E. (2d), 218.

We do not agree that the conduct of others fixes a legal standard of care. The substantive law tells what the standard of conduct for negligence is. This standard is fixed and is independent of the actual conduct of others. It consists of a failure to exercise that degree of care which an ordinarily careful and prudent person would exercise under the same or similar circumstances, in keeping the premises in a reasonably safe condition for the use of the persons invited to enter and transact business. Of course, it is fundamental that before failure to use such care can be made the basis for recovery, it must appear that the complainant falls within the class of persons to whom the duty of care was owing, and that the conduct of the defendant was such that a reasonably prudent and careful person should have foreseen or anticipated from such conduct the probability of injury to persons in the plaintiff’s general situation. Gedeon v. East Ohio Gas Co., 128 Ohio St., 335, 190 N. E., 924; Ford v. Wanamaker, 224 N. Y., 655, 121 N. E., 868.

It is established, we think, that the conduct of others doing business under similar circumstances and conditions, or under “established customs or usages,” may, under certain circumstances, be admissible in evidence as some evidence of the nature of the condition in question, because it indicates what, is the influence of the thing or condition on the ordinary person in that situation. It must not, however, be taken as a legal standard for the conduct required by law. II Wigmore on Evidence (Third Ed.), Section 461.

Professor Wigmore, in the above-mentioned treatise, quotes (at top of p. 490) the language of Holmes, J., in Texas & P. Rd. Co. v. Behymer, 189 U. S., 468, 47 L. Ed., 905, 23 S. Ct., 622, which we believe is entirely applicable to this discussion. He said:

“What usually is done may be evidence of what ought to be done; but what ought to he done is fixed by a standard of reasonable prudence, whether .it is usually complied with or not.”

We indulge the presumption that the jury by its general verdict found that the defendant failed in its duty to exercise reasonable and ordinary care by failing to warn of the “conditions then and there existing” and in failing “to provide adequate clearance 'between the extremity of the arc of the door and the display cases of said store,” and that what happened to the injured lady was something which was within the range of probability, should have been anticipated by the mind of a reasonably prudent and careful person, and had a causal connection with the tort. Under the law, as we understand it to be, we cannot say that such finding was manifestly against the weight of the evidence nor contrary to law. Joseph v. Horn & Hardart Co., 285 N. Y., 845, 32 N. E. (2d), 831.

2. It is claimed that the court in its general charge “imposed a greater duty on the defendant than that prescribed by law,” in that the jury was told “that the operators of stores owe a duty to patrons of the store to exercise ordinary care to prevent accidents and injuries to patrons while in the store and while the patrons are on the premises. But the operators ■of stores, such as the defendant, are not insurers .against all accidents and all injuries to such patrons while in the store.”

We find no error here. The charge is in almost the exact language of syllabus 1 of the case of S. S. Kresge Co. v. Fader, 116 Ohio St., 718, 158 N. E., 174, where it was said:

“1. Owners or lessees of stores owe a duty to the patrons of the store to exercise ordinary care to prevent accident and injury to the patrons while in the store, but they are not insurers against all accidents and injuries to such patrons while in the store.” (Emphasis ours.)

3. On the question of contributory negligence and assumption of risk, the appellant urges:

“If * * * it can be said that there was evidence of (. * * yi0iati0U of * * * duty imposed upon defendant * * *, then it is submitted that plaintiff herself was guilty of negligence and assumed the risk of injury, which bars her recovery herein as a matter of law.”

Many cases are cited in the attempt to sustain this claim — all of them well known to the members of this court. Of especial interest is Leighton v. Hower Corp., 149 Ohio St., 72, 77 N. E. (2d), 600, in which case the Supreme Court affirmed a judgment of this court (for the defendant) and in which case the same counsel were engaged. An analysis of those cases in the light of the facts of the case under consideration, while of academic interest, would require a discussion of such great length that its appropriateness to this decision would be of some doubt. It is, therefore, our purpose to discuss substantive legal principles, well grounded in this state, to the facts before us.

Negligence may be said to be the failure to do what a person of ordinary prudence would do under the circumstances of a particular case.

“While, primarily, neglect is an act of omission, it is clearly made to comprehend also acts of commission. It includes not only the omission to do something. which a reasonably prudent man guided by those impulses which regulate the conduct of human affairs would ordinarily do, but includes also the doing of things which such a man under similar circumstances would not do. It is very clear, therefore, that the legal duty * * * in any given case depends upon the surrounding facts and circumstances, and any legal controversy must leave to the jury a determination according to their own ideas of what a person of ordinary prudence would have done under those circumstances.” Payne, Dir. Genl., v. Vance, 103 Ohio St., 59, 67, 133 N.E., 85.

Can we say, as a matter of law, that reasonable minds can conclude only that the complainant, guided by those impulses which regulate the conduct of human affairs, omitted to do or did something which a reasonably prudent person would or would not have done under the same or similar circumstances?

As we follow her through the swinging door, we see her turning to a place in front of the bread counter and stopping immediately behind other persons waiting to be served. True, she was in a space within the arc of the inside swing of the door where she probably would not have stood had she thought out and calculated all of the consequences which might result, but can we say that this failure was negligence per set We think not. We think a jury question was presented and that it was for the jury to determine whether she was negligent according to their ideas of what a person of ordinary prudence would have done under the same circumstances. For her, reasonable care required precautions commensurate with the dangers to be apprehended. As an invitee to the store to buy bread, she had the right to assume that the floor space within a reasonable distance from the front of the counter was reasonably safe for her to stand; and it seems reasonable to us that an invitee under these circumstances might mistake the limit of the swing of the door and the limited safe space in front of the counter provided by the defendant for the accommodation of its customers. She had no duty, under the circumstances of this case, to take extraordinary precautions against a danger of which she had not been warned.

Assuming, however, that the facts justify the conclusion that the plaintiff was negligent as a matter of law, do these same facts justify the conclusion that as a matter of law her negligence was a proximate cause of her injuries?

“It is a well-established rule that to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence * * *, and that it was such that might or ought to have been foreseen in the light of the attending circumstances. In contemplation of law, an injury that could not have been foreseen or reasonably anticipated as the probable result of an act of negligence is not actionable.” 29 Ohio Jurisprudence, 483, Negligence, Section 68.

As we see the case before us, we believe that the question of proximate cause in connection with the claim of contributory negligence was a jury question; that it was for the jury to say whether or not, under the surrounding circumstances, a reasonably prudent person should or would have foreseen or anticipated the consequences of standing where plaintiff in this case stood.

Directing attention now to the claimed “assumption of risk,” the writer of this opinion examined this question in the case of Mudrich v. Standard Oil Co., ante, 8, 54 Ohio Law Abs., 1, 86 N. E. (2d), 324. It is there written:

“We recognize as a rule of law that, independently of the relation of master and servant, there may be, under certain circumstances, a voluntary assumption of risk of a known danger which will preclude an injured person from recovery. This rule rests on the general principle expressed in the maxim, volenti non fib injuria. However, before the principle may be applied to a given set of facts there must be evidence from which reasonable persons could reach different conclusions; first, that the injured person accepted a danger which was clearly understood and, second, that he had a foresight of the consequences and a readiness to accept them. Cardozo, Ch. J., in Zurich G. A. & L. Ins. Co. v. Childs Co., 253 N. Y., 324, 327, 171 N. E., 391. See, also, Bohlen, Studies in the Law of Torts, 516 et seq.”

We are of the opinion that reasonable minds could conclude only that the plaintiff legally did not assume the risk in the case before us. Certainly, the rule is not applicable to cases where the negligence of a defendant, which the injured party could not or might not reasonably have foreseen or expected, was the proximate cause of the injury, even though the act of a third person was the direct cause of such injury.

4. The appellant further claims that “the court erred in the admission of evidence by plaintiff by permitting plaintiff to read to the jury all of plaintiff’s deposition, taken as upon cross-examination by the defendant prior to trial, the plaintiff not being present for trial.”

It appears that both sides examined the plaintiff at the time of the taking of her deposition. The said deposition was duly taken and filed under the statutes. At the time of the trial, evidence was presented tending to show the deponent’s inability to attend the court sessions because of physical incapacity. The court, over objection, permitted the reading of the deposition to the jury, and it appears before us as a part of the record of trial.

Section 11525, General Code, provides:

“When deposition may be used. The deposition of a witness may be used only when it is made to appear to the satisfaction of the court that * * * from age, infirmity, or imprisonment, [he or she] is unable to attend court * *

We have examined the evidence bearing upon the physical condition of the deponent, and are of the opinion that the trial court, in the exercise of its judicial discretion, did not err in permitting the reading of the deposition to the jury under the provisions of the statute.

5. Examination has been made of the court’s charge to the jury; the submission of the issues of negligence, contributory negligence and proximate cause; and we find, in such examination, no error prejudicial to the rights of the appellant.

We have furthermore examined all other errors eiaiirted and find none of a prejudicial character.

The judgment will therefore be affirmed.

Judgment affirmed.

Hunsigker, J., concurs.

Stevens, P. J.,

dissenting. 1 find myself unable to agree with the conclusion announced by my associates.

From my reading of this record, 1 am unable to discern that plaintiff charged or proved actionable negligence of the defendant.

Then, too, it is my opinion that the plaintiff’s own evidence shows the plaintiff to have been guilty of contributory negligence, proximately contributing to her injury, as a matter of law.

For these reasons, I think the judgment of the Court of Common Pleas should be reversed, and final judgment entered for the defendant.


author: Ness, -T.

text:
    Kirchner, Appellee, v. New York Central System, Appellant.
    (No. 743
    Decided November 28, 1949.)

      Messrs. Bowman, Hanna & Middleton, for appellee.

      Mr. Alva W. Bachman, for appellant.
   Ness, -T.

This is an appeal on questions of law from a judgment entered on a verdict for plaintiff-appellee in the sum of $2,053.07. No assignments of error were filed by defendant-appellant, but in the absence of a motion to dismiss, this court is confronted with the burden of determining by a review of the briefs and bill of exceptions whether any prejudicial error intervened at the trial.

The first cause of action in the petition alleges that plaintiff was advised by the station agent of the defendant that a carload of sweet cream leaving Bowling Green at 3:40 p. m. on June 9, 1947, would arrive at Norfolk, Virginia, at 4:10 p. m. on June 10, 1947, but the shipment was not delivered by defendant as promised; that by reason of such delay, occasioned by the defendant, the cream soured, resulting in damage in the sum of $5,136; that the sour cream was later sold at Cleveland, Ohio, for $3,407.93, leaving net damages to plaintiff of $1,708.07 plus freight charges paid by plaintiff in the amount of $345; and that by payment of the freight charges plaintiff was entitled to the safe carriage and transport of the merchandise.

For his second cause of action, plaintiff claims $302 paid for freight on reshipment of the sour cream from Norfolk to Cleveland necessitated by the negligence of the defendant in the handling of the merchandise on the carriage and the violations of the promises of the defendant as to the time of delivery.

For his third cause of action, plaintiff claims $43 for telephone calls incident to the reshipment of the cream and mitigation of damages.

Strange to relate, no. motion or demurrer was filed by the defendant. The answer admits the shipment, denies, negligence in transportation,.and alleges that if damage resulted it was due to negligence of plaintiff in not employing proper methods used by shippers of sw;eet cream for transportation during hot weather.

Plaintiff testified that the station agent of the defendant told him the car of cream would arrive at Norfolk at 4:10 p. m. the following day, but did not testify that the agent said that the car would arrive at the sidetrack of the consignee at such time. Tt is apparent from the testimony that the station agent consulted the passenger time table and indicated that the fast passenger train to which the car was to be attached would arrive at Norfolk at 4:10 p. m., as indicated by the passenger train schedule. It appears from the testimony that, as a result of a previous arrangement between the consignee and the connecting carrier, the car of cream was detached from the passenger train of the connecting carrier at Newport News and following the normal route of transportation by the connecting carriers was delivered at the sidetrack of the consignee some time during the morning of June 12. An official of the consignee, testifying on behalf of the plaintiff, said that the purcha.se order stipulated the date of delivery and also that the shipment was to be delivered to its plant in Norfolk, Virginia. The consignee accepted the shipment and unloaded the cans of cream into the cooler of its plant on June 12, but notified plaintiff during the morning of June 13 that 200 of the 256 cans of cream were sour and could not be used for the manufacture of ice cream. Upon instruction from the plaintiff, the 200 cans of sour cream were reshipped via The Norfolk & Western Railway Company and the defendant, as connecting carriers, to Cleveland, Ohio.

In answer to interrogatories, the jury found that the defendant and its connecting carriers, or one of them, were negligent, and that the negligence causing the loss was “failure to supply necessary information to consignor at initial shipping point regarding total time required for final delivery to Southern Dairies Plant. ’ ’

Evidence on behalf of the plaintiff tended to show that 256 cans of sweet cream were delivered to the defendant at Bowling Green, that the car was properly iced, and that, within 24 to 36 hours after delivery to the siding of the consignee, the cream was sour. Under the Carmack Amendment (Section 20 [11], Title 49, ü. S. Code), the defendant was liable for loss, injury or damage caused by it or any connecting carrier. Plaintiff thereby established a prima facie case of liability of the defendant or its connecting carriers.

The uncontradicted evidence of the defendant indicated that the carload of cream was delivered to the Chesapeake & Ohio Railway Company at Columbus, Ohio, where it was attached to the “Sportsman” and arrived at Newport News a few minutes behind the passenger schedule. Instead of accompanying the passenger train to the passenger station at. Norfolk, the car of cream was detached at Newport News and, following a circuitous route via car ferry, Norfolk & Portsmouth Belt Line and The Norfolk & Western Railway Company, was delivered at the siding of Southern Dairies on the morning of June 12. There was no direct connection from the Chesapeake & Ohio Railway Company freight or passenger station to the siding of the consignee.

Although no specific instructions were given by the consignee to the railroad to spot the car of cream onto its private siding, it was done “automatically” in accordance with general or regular procedure with respect to carload shipments from the midwest. The consignee paid the switching charge incident to the movement. There was some evidence indicating that delivery from Newport News to the siding was a day later than the normal movement. But .there is no evidence tending to show that this day’s delay was the cause of the souring of the cream. On cross-examination, one of plaintiff’s witnesses said that 65 hours was not an “exhorbitant” period for sweet cream to be in transit, and that most of the cream received comes through property after two, three or four days in transit. When the ca,r was unloaded, there were 500 pounds of ice remaining in each of the two ice bunkers in the car. Neither the plaintiff shipper nor the agent of the defendant had any knowledge of any local arrangement at the terminal point for diversion of the shipment via the Belt Line at Norfolk. The shipper made no inquiry of the consignee with respect to any delay incident to delivery of the car at its siding. It was natural for the shipper and agent, who resided in Bowling Green, to assume that a car waybiiled from Bowling Green to Norfolk would arrive at Norfolk at the time indicated on the passenger schedule and no thought was given to the possibility that it would be diverted in delivery to the sidetrack of the consignee rather than to the freight or passenger station.at Norfolk.

Since the plaintiff established a prima facie case, the questions of the delay in the transportation and whether such delay was the proximate cause of the damage were for the jury. However, the jury found that the negligence causing the loss was the failure to supply necessary information regarding total time required to make final delivery. In his charge, the trial judge refrained from commenting upon the information given the shipper by the station agent, but, in the absence of a request to charge upon that subject, no prejudicial error intervened, particularly on a review where no assignments of error have been filed.

An interstate carrier can neither guarantee nor promise (as alleged in the petition) the time of delivery of a shipment. Chicago & Alton Rd. Co. v. Kirby, 225 U. S., 155, 56 L. Ed., 1033, 32 S. Ct., 648, 650; Atcheson Topeka & Santa Fe Ry. Co. v. Robinson, 233 U. S., 173, 58 L. Ed., 901, 34 S. Ct., 556; Davis v. Cornwell, 264 U. S., 560, 68 L. Ed., 848, 44 S. Ct., 510; Davis v. Henderson, 266 U. S., 92, 69 L. Ed., 182, 45 S. Ct., 24; Steindl v. New York Central Rd. Co., 296 Ill. App., 70, 15 N. E. (2d), 899.

Under the tariff applying to the shipment, the carrier was obligated to furnish without negligence reasonably expeditious transportation and delivery, and in the absence of negligence was not liable for any loss or damage resulting from souring or spoiling. The defendant, therefore, was not liable upon any promise to make delivery in a shorter period than reasonably expeditious transportation and delivery would require.

Since no duty was imposed upon the defendant to inform the plaintiff regarding the exact time of arrival of the car on the siding of the consignee, the finding of the jury in answer to the interrogatory was a finding upon an extraneous and immaterial issue and did not support the general verdict. The special finding imports that the jury found the defendant was not guilty of any other negligence. Masters v. New York Central Rd. Co., 147 Ohio St., 293, 70 N. E. (2d), 898. We therefore conclude that the verdict is manifestly against the weight of the evidence.

The judgment is reversed and the cause remanded for a new trial.

Judgment reversed.

Conn and Carpenter, JJ., concur.


author: Matthews, J.

text:
    Williams, Trustee, Appellee, v. Ledbetter et al., Appellees ; Boyce et al., Appellants.
    (No. 7194
    Decided January 23, 1950.)

      Messrs. Ragland, Dixon & Murphy, for appellee Williams, trustee.

      Mr. Carl L. Meier ancl Mr. William J. Walsh, for appellees Ledbetter and others.

      Messrs. Kyle, (Ionian é Heekin, Mr. John D. Boyce and Mr. Luden Wulsin, Jr., for appellants.
   Matthews, J.

This is an appeal on questions of law and fact from a judgment construing the will of John Mackey, deceased, and determining the beneficiaries to whom the corpus of a trust fund thereby created should be distributed on the termination of the trust. The action was instituted by the trustee and certain claimants were made defendants. Whether all persons having an interest are parties depends upon the true interpretation of the will submitted for construction herein. The parties are agreed as to the data upon which our conclusion must be based. That conclusion can be reached only by determining the meaning and extent of the testamentary intent of John Mackey as disclosed by his will and the application of that intent to the existing situation.

John Mackey executed his will on the 8th day of April, 1907. He died on July 19, 1908, and his will was duly admitted to probate by thé Probate Court of Hamilton County, on the 23rd day of July, 1908. On June 23, 1909, the plaintiff herein was appointed trustee and on December 29, 1909, the executors paid to him $20,000 to be held and disposed of in accordance with the terms of the will.

John Mackey left surviving him as his next of kin the following persons: Ella B. Strong, a niece; Wm. N. Allen, a nephew; George R. Boyce, a nephew; Sarah Sullivan, a niece; Edward Buckley, a grand-nephew; and Lydia Richter, a grand-niece.

In his will, he described his nieces and nephews as “his principal devisees.” He bequeathed to Ella B. Strong $25,000 absolutely; to William N. Allen $20,000 absolutely; to George R. Boyce $20,000 absolutely; and to Edward Buckley and Lydia Buckley $5,000 to share equally; $10,000 to certain friends, and $4,000 to religious and charitable institutions. These specific bequests totaled $104,000, and he provided that if his estate exceeded that amount “such excess shall be equally divided between the four principal devisees, viz.: Ella B. Strong, William N. Allen, George R. Boyce and Sarah Sullivan.”

The estate did exceed $104,000, and that excess was paid by the executors to the legatees in accordance with the aforesaid provision.

While he described his niece, Sarah Sullivan, as one of his “principal devisees,” the specific bequest to her was not given to her outright and unconditionally. That dispositive provision in her favor is found in the second paragraph on page 2 of the will, and is as follows: .

“I give and bequeath to my niece Sarah Sullivan, the daughter of my beloved sister, Sarah Buckley, of Cincinnati, Ohio, the sum of twenty thousand ($20,000) dollars, to be held in trust for her absolutely during her natural life and at her death her share shall remain in trust for the benefit of her daughter Marie who shall receive the income of the same during her natural life, and at the death of the said Marie, should she survive her mother, then the aforesaid share shall be equally divided between the remaining principal devisees.”

The person described in this provision as Marie, the daughter of Sarah Sullivan,. is identified as Marie Rockwell Smith, also known as Marie Cranston.

By a latter provision of the will, the testator provided that if any beneficiary should “oppose the disposal of my estate as I have seen fit to divide the same, then any such beneficiary shall be cut off and debarred absolutely from any and all benefits named in this will, and the share or shares shall be equally divided among the four principal devisees.” And in the same paragraph, he also provided that: “I further direct if one or more of the principal devisees should die, the same having one or more children, their share or shares shall be equally divided among their said children, not however until the youngest is of legal age, they to receive the income of the same. Should one or more of my principal devisees die without issue (children), then his or her share shall also be equally divided among the remaining principal devisees. ’ ’

Sarah Sullivan did not die without issue. ' Her daughter Marie survived her. There is a suggestion that she had other surviving children.

None of the “principal devisees” survived Marie Rockwell Smith, also known as Marie Cranston, who died on July 27, 1947. Ella B. Strong died on August 3, 1933; Sarah Sullivan died on January 15, 1937; George R. Boyce died on June 14,1938; and William N. Allen died on January 6, 1940.

The present claimants to the corpus of this trust fund are Irene A. Ledbetter and William N. Allen, Jr., children of William N. Allen, and Arthur Hewitt, surviving husband, and Allen E. Hewitt, surviving son of Bessie Hewitt, deceased daughter of William N. Allen; William B. Strong, son of Ella B. Strong; and John Boyce and Grace Boyce, adopted children of George R. Boyce.

Neither the grand-niece nor grand-nephew, nor anyone claiming through them are parties to this action. No one representing that class was a party to the action.

(1) On October 24, 1911, the trustee of Sarah Sullivan and Marie Rockwell Smith filed an action in the Superior Court of Cincinnati against all the “principal devisees,” setting forth the creation of the trust, his appointment as trustee, and the payment of $20,000 to him, to be held in trust for the use and purposes of the trust created in “paragraph 2 on page 2 of said last will and testament of J ohn Mackey. ’ ’ It was also alleged that divers questions had arisen and would arise and that the trustee had been advised and believed that it was necessary to the proper execution of the trust “under said paragraph of said last will” that he should receive the instructions of the court. He, therefore, prayed “judgment as to the meaning, correct interpretation, construction, and effect of the aforesaid paragraph * * * that this plaintiff may be instructed how and in what manner he is to apply the income received from said legacy * * * and to whom said income * * * is to be paid during the natural life of Sarah Sullivan and Marie Rockwell Smith and in what proportions; that this plaintiff may be advised * # # in what manner he is to apply the principal of said legacy” and that he may be instructed' as to any other questions “which may arise in the administration and execution of the trust created in the paragraph of said will hereinbefore fully set forth. ’ ’

Paragraph 2 on page 2 of the will which was fully set forth in said petition was:

“1 give and bequeath to my niece Sarah Sullivan, the daughter of my beloved sister, Sarah Buckley, of Cincinnati, Ohio, the sum of twenty-thousand ($20,000) dollars, to be held in trust for her absolutely during her natural life and at her death her share shall remain in trust for the benefit of her daughter Marie who shall receive the income of the same during her natural life, and at the death of the said Marie, should she survive her mother, then the aforesaid share shall be equally divided between the remaining principal devisees.”

A full copy of the will was attached to and made a part of the petition.

At the time the petition was filed in the Superior Court of Cincinnati, all the “principal devisees” were living, were parties to the action, and continued to live until long after the judgment in the case was entered. Each of them filed an answer asserting that according to the provisions of the last will and testament of John Mackey, deceased, he or. she, as the case might be, was entitled to a one-third of said legacy “referred to in plaintiff’s petition, subject to the life estates of said Sarah Sullivan and Marie Rockwell Smith, and each prayed that the court in “construing said paragraph of said last will * * * may adjudge this defendant to be entitled to the said one-third subject to the life estates of said Sarah Sullivan and Marie Rockwell Smith and for such other and further relief” to which he or she might be entitled in equity.

No reply was filed and no issue was raised in the pleadings as to the correct construction to be placed upon this language of the will. Certainly, no issue was presented as to the contingency of Marie Rockwell Smith surviving her mother and all the “principal devisees.”

On these pleadings, a judgment was entered. The specific date of the entering of this judgment does not seem to appear in the record. However, it was manifestly entered shortly after the petition was filed, probably in 1911, and during the life of all the “principal devisees” including Sarah Sullivan. If the specific date should be deemed material, it may be supplied, but as the court sees it, the exact date is unimportant.

In that judgment, after reciting that this cause came on for hearing upon the pleadings, the evidence and the arguments of counsel, and, after making certain immaterial findings, the court found that “paragraph 2 on page 2 of said last will and testament of John Mackey, deceased, provided as follows.” Then followed the quotation of paragraph 2 of said will.

Then, after finding that the parties to the action were those named in the will, the court proceeded to find that “diverse and important questions have arisen” as to the interpretation and effect “of paragraph 2 on page 2 of said last will and testament of John Mackey, deceased, which said paragraph of said will is hereinbefore set forth.”

Coming then to construe “the last will and testament of John Mackey, deceased, and of said paragraph 2 on page 2 thereof” the court found that its meaning and effect were “that the defendant Sarah Sullivan be entitled to receive and shall receive the income only from said legacy of twenty thousand ($20,000) dollars referred to in plaintiff’s petition for and during her natural life after deducting from said income all such expenses, costs and fees as may be properly and legally charged against the same by said plaintiff in and about the administration and execution of said trust.

“That the said defendant, Marie Rockwell Smith, a minor of the age of seventeen years be entitled to receive and shall receive for and during her natural life the income only from said legacy of twenty thousand ($20,000) dollars, referred to in plaintiff’s petition, from and after the death of her mother, Sarah Sullivan, after deducting from said income all such expenses, costs and fees as may be properly and legally charged against the same by said plaintiff in and about the administration and execution of his trust.

“That the defendants George R. Boyce, William N. Allen and Ella B. Strong are entitled to receive and shall receive one-third each of said principal of said legacy of twenty thousand ($20,000) dollars remaining, upon the death of the said Sarah Sullivan and Marie Rockwell Smith; that the amount to be received by the said defendants, George R. Boyce, William N. Allen and Ella B. Strong shall be subject to the life estates of said Sarah Sullivan and Marie Rockwell Smith in the income derived from said legacy and to the payment from said legacy of all such expenses, costs and fees as may be properly and legally incurred by the plaintiff herein in and about the administration and execution of his trust.”

It appears from the will of John Mackey and also from the agreed facts that in addition to his “principal devisees” he was survived by a grand-niece and grand-nephew, children of a deceased nephew, who were of his next of kin, but were not made parties to or mentioned in the Superior Court action. And they are not parties or represented in the present action.

It will be observed that nothing was adjudicated as to the effect of Marie Rockwell Smith surviving her mother and all of the other “principal devisees,” and it will also be observed that no mention was made as to the effect of a possible partial intestacy, resulting from such development and, yet, it is claimed that the judgment of the Superior Court of Cincinnati has decided this question, notwithstanding it was not mentioned at the time and did not in fact arise until the death of Sarah Sullivan on January 15, 1937, and probably not until the death of Marie Rockwell Smith on July 27, 1947. The judgment must be given first consideration, because if its effect is as claimed, it disposes of this case.

It strikes one at once that to hold that the Superior Court judgment is an adjudication of the rights of the children of the deceased nephew, and perhaps others, would violate the fundamental rule that only parties to an action are concluded thereby. And the fact that necessary parties to a complete determination of an issue were absent is very persuasive that there was no intention to pass upon that issue as to any of the parties and almost conclusive in the absence of direct and positive language to the contrary. There is no such language in the judgment. It is only by giving a specific meaning to general language that it can be determined that the court intended to adjudicate this question.

The Supreme Court had the subject of res judicata and estoppel by judgment under consideration in Norwood v. McDonald et al, Admrs., 142 Ohio St., 299, 52 N. E. (2d), 67, and in its opinion covered almost every, if not every, phase of the subject. It reduces our problem to a determination of the class into which the case at bar falls. We believe the rules set forth in the sixth and eighth paragraphs of the syllabus govern this case. These paragraphs are:

“6. Where a judgment is relied on by way of evidence as conclusive per se between the parties in a subsequent suit, it must appear by the record of the former suit that the particular controversy sought to be precluded was therein actually or necessarily tried and determined.”

“8. While all claims of right embraced in a single cause of action must be prosecuted simultaneously, a litigant cannot be required to prosecute simultaneously in a single action multiple causes of action, even though they relate to the same subject matter.”

In 30 American Jurisprudence, 943, Section 206, it is said:

“However, where, after the rendition of a judgment, subsequent events occur, creating a new legal situation or altering the legal rights or relations of the litigants, the judgment may thereby be precluded from operating as an estoppel. In such case, the earlier adjudication is not permitted to bar a new action to vindicate rights subsequently acquired. In this connection, it has been declared that a judgment is not res judicata as to rights which were not in existence at the time of the rendition of the judgment. ’ ’

The action in the Superior Court of Cincinnati was one for interpretation of the will and for instructions to the trustee as to his duties. It invoked the equity powers of the court over trusts and trustees. In doing so the plaintiff trustee subjected himself to the limitations upon the exercise of that power as determined by the usage and practice of that court. One of the time honored rules of chancery courts was that they would not give instruction or make a declaration unless there existed some present reason for so doing. They would not make a declaration of rights of instruct a trustee as to rights or duties under possible future circumstances that might never arise. In 16 American Jurisprudence, 292, Sections 18 and 19, it is said:

“As a general rule, the courts will not render a declaratory judgment as to future rights, but just as in ordinary actions will wait until the event giving-rise to the rights has happened, or, in other words, until the rights have become fixed under an existing state of facts.”

“Hence the courts will not, ordinarily, attempt to decide or declare the rights or status of parties upon a state of facts which is contingent or uncertain or until the question as to which a declaration is sought has actually arisen. This rule is similar to the one observed where the guidance of an equity or probate court is sought under the practice which prevails independent of declaratory judgment, statutes.”

In 1 Restatement of Law of Trusts, 806, Section 259, the fundamental rule is stated that a trustee who is reasonably in doubt as to his duties may apply to the court for instructions. Comment c. to that section is:

“The court will not instruct the trustee as to questions which may never arise or may arise in the future but which have not yet arisen. Thus, the court will not instruct the trustee as to the distribution of the trust property before the time for distribution arrives. ’ ’

We do not mean to imply that it is our view that a declaration as to status or rights that are contingent or uncertain and would arise in the future, if at all, would be void. What we do mean to say is that when we are construing this judgment we must consider that to construe it as claimed would require us to disregard the settled practice, in such cases, which, when taken with the fact that there was an absence of necessary parties to make any such declaration effective and conclusive, has led us to conclude that the court made no declaration on the issue now before the court. The extent of the declared intention of the testator remains to be decided as an original question in this case.

(2) We have quoted the provision of the will creating this trust and also the only other provision that could have any tendency to indicate an intention on the part of the testator to direct the disposition of the corpus of this fund upon the termination of the trust under the circumstances that developed. We have considered these provisions with a consciousness of the rule against so construing a will as to create a partial intestacy, but, after giving full weight to that rule, we conclude that the testator never contemplated any such development, and, therefore, completely failed to make any provision for it. The court cannot interpolate a provision for the testator.

Much has been said about the distinction between vested and contingent estates, and the distinction between conditions precedent and conditions subsequent, which would be of more or less importance if the testator had used language to which such rules could be applied. The absence of testamentary language makes it immaterial whether an estate would have vested or been defeated upon the death of Marie Rockwell Smith, had a “principal devisee” survived.

A reading of the quoted provisions shows that whether the “remaining principal devisees” had a vested or contingent future estate in the corpus of this trust fund, they could come into enjoyment only in the event that they survived the life beneficiaries. The “remaining principal devisees” were the only beneficiaries mentioned by the testator to take upon the termination of the trust. All four having died before Marie Rockwell Smith, the life beneficiary, there was no remaining beneficiary' and no testamentary direction as to the disposition of the fund. The case, therefore, presents the situation of a testator failing to anticipate a development and, for that reason, failing to make provision for it.

As we construe this will, the life estates of Sarah Sullivan and Marie Rockwell Smith, and the provision for the “remaining principal devisees” did not exhaust the entire title of the testator in this trust fund. There remained a residuum undisposed of by the will. This residuum or reverter, resulting from the absencer of “principal devisees,” was cast upon his next of kin at the time of his death, as determined by the statutes •of descent, and now belongs to those persons who can trace title from them. The adopted children of George R. Bovce inherit his share of the trust fund. All such persons should be made parties to this action for the decree to be an effective shield to the trustee.

A decree may be presented in accordance with this opinion.

Decree accordingly.

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