author: Conn, J.

text:
    Freeman, Appellee, v. The Norwalk Cemetery Assn., Appellant.

      (No. 598
    Decided June 5, 1950.)

      Messrs. Freeman £ Freeman, for appellee.

      Messrs. Young £ Young, for appellant.
   Conn, J.

This is an action for injunction to restrain defendant from investing, in any investments other than those permitted by the statutes and laws of Ohio, monies held by it as trustee. An appeal has been taken by defendant on questions of law and fact from the Court of Common Pleas, and the cause in this court has been submitted on the original pleadings, copies of docket and journal entries, agreed statement of facts, stipulation and briefs of counsel.

It is admitted in the pleadings or stipulated by the parties that the defendant is a corporation organized and existing- under the laws of Ohio and owning, and operating a cemetery in the city of Norwalk, known as Woódlawn Cemetery; that the. defendant in its operation has separate funds, called the general fund and the permanent fund; that its general fund is derived from the proceeds of sales of burial lots, money received for services for lot care, maintenance, digging of graves, etc., and interest derived from its permanent fund; and that all operating expenses are paid from its general fund.

It is further stipulated that its permanent fund consists entirely of money paid to defendant by various persons, for care and maintenance of burial lots owned by them in the cemetery, under separate written agreements, of which the following, with some exceptions, is a copy:

“Permanent Fund.

“Obligation of the Norwalk Cemetery Association for the perpetual care of a private burial lot:

“The Norwalk Cemetery Association of Norwalk, Ohio, hereby acknowledges the receipt of - dollars from -, owner of lot No. —, which sum has been received and is to be held by said association as a permanent fund.

“The said association, in consideration of said payment hereby agrees with said--, heirs and assigns forever, to cause the grass which may grow upon said lot to be cut and removed from same when necessary, and forever kept in proper condition by top dressing and seeding at such times and in such manner as the trustees of said association shall deem expedient for the proper care of said lot and the improvement of the cemetery.

“Said association shall not be required to expend any sum on the care of said lot exceeding the net income derived from the investment of the before named sum of-dollars.

“Norwalk Cemetery Association

“- — —, President.

“Norwalk, Ohio,--, 19 — .”

It is also admitted that plaintiff has paid into the permanent fund, pursuant to such writing,- the sum of $100 for the care and maintenance of lots in the cemetery; that the total amount paid defendant in consideration of such written agreements up to March 1, 1950, is the sum of $71,819.12, of which amount $57,500 has been invested in United States government bonds, $10,000 deposited in the Home Savings & Loan Company and $4,319.12 in a commercial account with The Huron County Banking Company; that no part of the principal of the permanent fund is ever expended by defendant; that defendant takes care of all lots for which payments have been made into the permanent fund, though the net income from the amount so. paid is less than the actual cost of caring for such lots; and that due to declining interest rates and increased labor costs, the net income received from payments made into the permanent fund is substantially less than the actual cost of the care required for such lots.

The Norwalk Cemetery Association was organized nearly a hundred years ago for the purpose of owning and operating a cemetery in the then village of Nor-walk. The rules and regulations adopted by the cemetery association make provision for the creation of a permanent fund pursuant to the terms of the receipt and agreement hereinbefore referred to, “no part of which can be used for any purpose but- must be loaned out to provide monies with which to care for the lots.’’

The statutes of Ohio make provision for the establishment and operation of cemeteries by private companies or associations, townships and municipal'corporations, and also authorize the establishment and maintenance of union cemeteries by two or more townships or municipal corporations. 7 Ohio Jurisprudence, 4, Section 2.

The trustees of townships, municipal corporations and union cemeteries are authorized by statute to receive gifts in trust for the creation of a permanent fund, the income from which shall be used for the upkeep and care of burial lots in the respective cemeteries. In each instance, the statutes prescribe how the permanent funds so created shall be invested. Sections 3457, 4168, 4169 and 4193-1, General Code.

The provisions of the General Code relative to the powers and duties of cemetery associations are found in Chapter 7 of Division VI of Title IX, Corporations Not for Profit. Under the terms of Section 10110 in this chapter, cemetery associations are authorized to receive gifts “for the purpose of * * * maintaining * * * and beautifying therein any particular * * * cemetery lot * * * and appropriate such property, or the proceeds thereof, to any of the foregoing purposes according to the terms of the trust for which it has been given, granted or devised.”

Subsequent- sections in the chapter (Sections 10117, 10118 and 10119) provide for the creation of a sinking fund, how such funds may be invested and how expended. The sinking fund thus provided for and the interest thereon is substantially limited to capital improvements in the enlargement and maintenance of the cemetery grounds.

The trust fund for lot care and improvement created under the authority of Section 10110, General Code, and described as a permanent fund in the rules and regulations of the cemetery association, can be differentiated from the sinking fund authorized by other provisions of the Code to which reference has already been made. It is of some significance that the act authorizing the creation of a sinking fund was not passed until 1883 (80 Ohio Laws, 91), many years after the creation of the permanent fund of the association.

Section 10109, General Code, provides that all receipts and income should be applied to the payment of lands, etc., and to the general purposes of the association. No debts shall be contracted in anticipation of future receipts, except for the original purchase of the land and the laying out, enclosing and embellishing of the grounds and avenues therein. All its funds must be used exclusively for the purposes of the company, as hereinabove specified, or invested in a fund the income of which shall be so used and appropriated.

Section 10110, Genera] Code, to which attention has already been called, authorizes every cemetery association to receive gifts in trust for the uses and purposes therein defined.'

Section 10115, General Code, provides that any surplus derived from the sale of a portion of the premises must be invested upon interest, and the income derived therefrom applied to keeping in repair the unsold portion thereof.

Section 10117, General Code, provides for the creation of a sinking fund and Section 10118, General Code, prescribes how its funds shall be invested. Section 10119, General Code, provides for the expenditure of the sinking fund for more or less capital improvements. Although it makes no specific provision for paying off bonded indebtedness as is the case ordinarily with a sinking fund, it contemplates something in the nature of an endowment for such purpose.

Section 3457, General Code, authorizes township trustees to receive gifts, etc., in trust for a permanent fund to be invested by them, the income to be used in the case of any burial lot designated by the person making the gift. Under Section 3458, General Code, such funds are to be invested in interest-bearing securities, and the trustees may possibly invest the funds in stocks, although a comma is missing between the words “interest” and “dividends.”

Sections 4168 and 4169, General Code, authorize a city to accept and maintain a permanent fund for the care of a municipal cemetery. Such funds are to be invested in interest-bearing obligations of the city or other authorized interest-bearing securities.

The permanent fund of union cemeteries is to be invested under the same terms and conditions fixed by law for the investment of the funds of a minor by his guardian. Section 4193-1, General Code.

In the absence of statutory provisions or those provided in the trust agreement, a trustee is required to exercise the same degree of diligence and care that a man of ordinary prudence would exercise in the management and investment of his own money. Willis, Admr., v. Braucher, Gdn., 79 Ohio St., 290, 87 N. E., 185, 44 L. R. A. (N. S.), 873; In re Estate of Sedgwick, 74 Ohio App., 444, 59 N. E. (2d), 616.

If the trustee has greater skill than a man of ordinary prudence, he is under a duty to exercise such skill as he has. Restatement of the Law of Trusts, 448, Section 174.

In the instant case the rules and regulations of the defendant authorize it to receive deposits from owners of lots in the cemetery “large enough so that the interest upon same will keep the lot in good care perpctually. The'sum so deposited becomes a part of the permanent fund* no part of which can be used for any purpose but must be loaned out to provide means with which to care for the lots.”

Under the terms of the receipt and agreement hereinbefore referred to, given by the cemetery association to each lot OAvner Avho contributes to the fund for perpetual care for his lot, the defendant is under the heavy duty to preserve the amount so donated as a permanent fund for the perpetual care of the respective burial lots of those contributing to such permanent fund.

It appears to íoIIoav quite conclusively that in view of the absence of any statutory provision, or provision in the charter or in the rules and regulations of the cemetery association or in the agreement with the lot owners, expressly defining how the money in the permanent fund shall be invested, the defendant as trustee is required to exercise the same degree of diligence and care that a man of ordinary prudence Avould exercise in the management and investment of his own money.

The standard of care and good faith required of a trustee is stated in 40 Ohio Jurisprudence, 364, Section 138, as folloAvs:

“In the administration of the trust, the trustee owes the beneficiary the duty to exercise that degree of care and skill which an ordinarily prudent man would exercise in dealing with his own property. Unusual ability and extraordinary care are not required. This is the minimum standard to which a trustee must be held, and it is an external one. If a trustee does not have this degree of skill or exercise that amount of care, he is not excused. If he has a higher ability or greater skill than that of the ordinarily prudent man, he is under a duty to exercise this higher degree. ’ ’

See, also, Gilbert v. Sutliff, 3 Ohio St., 129; Willis, Admr., v. Braucher, Gdn., supra; Morris v. Mull, 110 Ohio St., 623, 144 N. E., 436, 39 A. L. R., 323; 54 American Jurisprudence, 286, Section 322; and Restatement of the Law of Trusts, 448, Section 174 (comment [a]).

In the Restatement of the Law of Trusts, 645, Section 227, relative to investments which a trustee can properly make, the rule or standard is stated as follows :

“In making investments of trust funds the trustee is under a duty to the beneficiary (a) in the absence of provisions in the terms of the trust or of a statute otherwise providing, to make such investments and only such investments as a prudent man would make of his own property having primarily in view the preservation of the estate and the amount and regularity of the income to be derived. ’ ’

The authorities clearly indicate that if the matter of making investments of trust funds is not regulated by statute, or provided for in the trust agreement, or otherwise limited, the common-law rule of ordinary care and prudence, as applied in the light of the facts of each case, quite uniformly prevails.

In view of these considerations, our conclusion is that the petition and prayer of plaintiff can not be granted and that the petition should be dismissed and the injunction dissolved.

Petition dismissed.

Fess, J., concurs.

Carpenter, J., not participating.


source: Caselaw Access Project

author: Hurd, J.

license: Public Domain

text:
    McCarthy, Appellant, v. The Cincinnati Street Ry. Co., Appellee.
    (No. 7265
    Decided July 18, 1950.)

      Messrs. Kunlcel d> Kunlcel, for appellant.

      Mr. Leo J. Brumleve, for appellee.
   Hurd, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Hamilton County, wherein a verdict was returned and judgment rendered thereon in favor of the defendant, in an action for personal injuries alleged to have been sustained by plaintiff while alighting from a streetcar on which she was a passenger.

In her petition, plaintiff alleges, in substance, that on April 26, 1948, at about 6:15 p. m., she was a passenger in an outbound Kennedy Heights streetcar;, that the car had come to rest at the corner of Washington avenue and Montgomery road for the purpose of loading and unloading passengers; that the door of the car, which was under the exclusive management, control and operation of defendant, was open for the purpose of permitting plaintiff to leave the car; that plaintiff was in the act of alighting from the car and was in the process of stepping from the step thereof to the street, when the motorman started the ear with a sudden, unexpected jerlc and caused the door thereto to be closed prior to the time when plaintiff had.fully alighted from such streetcar, throwing her with great force and violence into the street; and that as a proximate cause of the negligence and carelessness of defendant in maintaining and operating its streetcar and the door thereto, and the causing of such car to jerk suddenly and the door to close before plaintiff left the car,- she sustained serious injuries.

The answer of defendant admits that plaintiff was a passenger at the time and place alleged in the petition, but denies all liability in respect to her injuries.

The assignments of error are as follows:

3. The court erred in a special charge submitted to the jury at the request of defendant.

2. The court erred in the general charge to the jury.

3. The verdict is against the manifest weight of the evidence.

We are principally concerned with the first assignment of error, wherein the court at the request of counsel for defendant, charged the jury, in writing, before argument, as follows:

“The court charges you that, before you can return a verdict for the plaintiff, you must find that the plaintiff has proved facts by affirmative evidence tending to show that the conduct of The Cincinnati Street Railway Company fell below the standard represented by the conduct of reasonable men engaged in the operation of streetcars, under the same or similar circumstances, and that such conduct directly caused injury to the plaintiff. If the plaintiff fails to establish such proof by a preponderance of the evidence, that is, by the greater weight of the evidence, then the plaintiff cannot recover and your verdict must be for the defendant, The Cincinnati Street Railway Company.”

We have carefully considered the arguments of counsel in respect of this charge, and upon due consideration have reached the conclusion that the special charge as given before argument, though skillfully worded, is misleading and prejudicially erroneous as applied to the issues raised by the pleadings and the evidence in this case.

The vice in the charge as given is that it ignores completely the rule of law so well established in Ohio that a common carrier of passengers for hire owes to a passenger the duty of exercising the highest degree of care consistent with the practical operation of the railroad. See Pendleton St. Ry. Co. v. Shires, 18 Ohio St., 255; Cleveland Ry. Co. v. Arrison, 26 Ohio App., 359, 159 N. E., 580; Cincinnati St. Ry. Co. v. Henkel, 38 Ohio App., 243, 176 N. E., 101 (Motion to certify overruled); and Olszowy v. Cleveland Ry. Co., 47 Ohio App., 529, 192 N. E., 366.

See, also, 38 Ohio Jurisprudence, 157, Section 698, which, in part, reads as follows :

“The general rule applicable in the case of passengers is that a street or interurban railroad company owes the duty toward them to exercise the highest degree of care which an ordinarily careful and prudent company of this type would use under similar circumstances * * (Emphasis added.)

Numerous authorities are cited, including the cases hereinabove cited, in addition to the following: Cleveland City Rd. Co. v. Osborn, 66 Ohio St., 45, 63 N. E., 604; Brooklyn St. Ry. Co. v. Felley, 6 C. C., 155, 3 C. D., 393 (affirmed without opinion in 53 Ohio St., 646, 44 N. E., 1148, 33 W. L. B., 330); Ohio Traction Co. v. Miller, 13 C. C. (N. S.), 67, 22 C. D., 348; Holmes v. Ashtabula Rapid Transit Co., 10 C. D., 638 (reversed on other grounds in 67 Ohio St., 153, 65 N. E., 877); Altemeier v. Cincinnati Street Ry. Co., 4 N. P., 224, 5 O. D. (N. P.), 655 (affirmed by Circuit Court without opinion, which judgment was affirmed in 60 Ohio St., 10, 53 N. E., 300).

See, also,, 6 Ohio Jurisprudence, 945, Section 311, which is as follows:

“It is the duty of a common carrier of passengers, under most circumstances, to exercise the highest degree of care for their safety, which an ordinarily careful and prudent person would use under similar circumstances.” (Emphasis added.) Numerous authorities are therein cited.

That the foregoing rule of law is not peculiar to • Ohio is indicated by the following quotation from 10 American Jurisprudence, 163, Section 1245:

“The degree of care required of a common carrier is not capable of a precise formulation, applicable to all situations that may arise. ' In general, however, carriers of passengers are required to exercise the highest degree of care, vigilance and precaution for the safety of those it undertakes to transport, and are liable for the slightest negligence. It is clear that, the rule does not require such a degree of vigilance as will be wholly inconsistent with the carrier’s methods of transportation, or impracticable to such an extent as to interfere with its regular business. Nor does it require the utmost degree of care which the human, mind is capable of imagining or which men are capable of exercising. The practical effect of the application of the rule heretofore discussed is merely to require that the carrier exercise the highest degree of practicable care and diligence that is consistent with, the mode of transportation and the normal prosecution of its business.” (Emphasis added.) A multitude of authorities from jurisdictions throughout the entire United States are cited.

It is a peculiar coincidence that the question here presented was raised by the identical defendant in this case, in a somewhat different form in the earlier case of Cincinnati St. Ry. Co. v. Henkel, supra, decided December 8, 1930, by the Court of Appeals for Hamilton county, where, in an able opinion by Boss, J., it was held that it is not error on the part of the trial court to .refuse a charge requested by the defendant, before argument, in form as follows:

, “The court charges you that the conductor and motorman of the streetcar were bound to exercise that degree of care which ordinarily prudent persons would exercise as a motorman and conductor under circumstances similar to that present at the time the .plaintiff' sustained his injuries.”

The special charge requested and refused in that case, while in different form and phraseology, is practically the same in content and import as the special charge allowed by the trial court in the instant case.

The Court of Appeals for Hamilton county, by its judgment in that case, disapproved that charge and the Supreme Court overruled the motion to certify. We see no difference in principle between the special charges as requested in these two cases originating in the same judicial district. The defendant in argument and brief, in its attempt to sustain this particular charge, cites and quotes from the eases of Engelhardt v. Philipps, 136 Ohio St., 73, 23 N. E. (2d), 829, and Boles v. Montgomery Ward & Co., 153 Ohio St., 381, 92 N. E. (2d), 9. We have examined these cases carefully and have concluded that they must be distinguished from the instant case on the facts.

Engelhardt v. Philipps, supra, was an action on behalf of a minor, by his next friend, to recover damages for personal injuries sustained through using a diving tower at a swimming pool operated by defendant, the claim being made that the tower was negligently 'operated.

Boles v. Montgomery Ward & Co., supra, was an action by the plaintiff for injuries sustained when she slipped and fell after she had proceeded a few feet into the store of defendant. She claimed that her injuries were attributable to the negligence of defendant in permitting the floor of the store to be and remain in a slippery condition due to a combination of water and slush tracked into the store by other patrons and an oily dressing with which the floor had been previously treated by the defendant.

A mere statement of the facts in each case clearly shows the dissimilarity to the facts in the instant case, where plaintiff was a.passenger for hire upon a vehicle of a common carrier.

Undoubtedly the requested charge before argument would be applicable in an action against a common carrier by a member of the general public, not a passenger, claiming damages due to the negligence of defendant. In cases of that character the standard is ordinary care, but in passenger cases of the character of the instant case, the standard fixed is the highest degree of care consistent with the practical operation of the railroad. Any departure from this norm or standard of care required of- a common carrier of passengers by the use of words susceptible of misconstruction and misunderstanding would, by a process of disintegrating erosion, gradually weaken and ultimately dissipate a sound rule of law heretofore firmly established as part of our system of jurisprudence.

Concluding our consideration of this first assignment of error we are of the opinion that it is well taken and should be sustained; that the charge as given by the trial court in writing before argument was prejudicial to the rights of plaintiff; and that on this ground the judgment of the Common Pleas Court should be reversed.

We do not consider it necessary to dwell at any great length upon the second assignment of error, namely, that the court erred in its general charge to the jury. In the main we consider that the charge as given is correct, although at several points it appears to be unduly repetitious in respect of the burden of proof placed upon the plaintiff.

The plaintiff complains also that the trial court placed an undue burden upon her in the charge when the court combined two propositions, namely, that the car suddenly jerked and started, and that the door closed before plaintiff had fully alighted from the car.

We are of the opinion that the plaintiff is not in a position to complain of the combining of these two propositions inasmuch as they were combined in the petition and not pleaded as separate specifications of negligence.

In considering the general charge as a whole, we cannot find that it is prejudicially erroneous to the rights of plaintiff. However, we are of the opinion that upon well recognized principles of law the general charge will not operate to correct the error in the charge in writing given before argument.

We think in view of our conclusions here it is unnecessary to discuss the third assignment of error.

For the reasons stated the judgment of the Common Pleas Court is reversed and the cause remanded, for further proceedings according to law.

Judgment reversed.

Doyle and McNamee, JJ., concur.

Doyle, P. J., of the Ninth Appellate District, and McNamee and Hurd, JJ., of the Eighth Appellate District, sitting by designation in the First Appellate District.


author: Wiseman, J.

text:
    Mohler et al., Appellees, v. Baker et al., Appellants.

      (No. 2123
    Decided November 17, 1950.)

      Messrs. Nolan & Boesch, for appellees.

      Mr. George F. Holland, for appellants.
   Wiseman, J.

This is an appeal on questions ©£ law from the Common Pleas Court of Montgomery County which directed a verdict in favor of the plaintiffs. The plaintiffs brought an action on a promissory note and for foreclosure of a mortgage, executed to secure such promissory note, on a piece of real estate sold by the plaintiffs to the defendants.

The defendants, in their second amended answer and cross-petition, admit the signing of the note and mortgage, deny there is any sum due the plaintiffs upon such note, and allege:

“ * * * that there has .been a failure of the consideration herein in this, that said note and mortgage was given by these defendants to secure the payment of a balance due on the purchase of a dwelling house * * *.

“Defendants further answering say that said dwelling house was constructed by the plaintiffs herein; that said dwelling house was a California type bungalow constructed of cement and cement blocks, with a flat roof; that said plaintiffs represented to these defendants that the construction of the said dwelling house was proper and that the same would be durable against the weather, stating that the’ said dwelling house would not leak and would not sweat; that these defendants relying upon the representations of said plaintiffs purchased said home and executed said note and mortgage and said defendants moved into said dwelling house.

“Defendants further answering state that the said dwelling house did not shed water, as the same leaked and sweat; that all times the walls were damp; that the cement around the walls and windows would not set and become hard; that the cement is soft and can be removed with the fingers; that the doors in said dwelling house mildewed; that the roof leaked; that all the doors in said dwelling house swelled so that they could not be closed; that the floors in said dwelling have become uneven; that there is water on the floors at all times.

“Defendants further, answering and by way of defense state that the heating equipment for said dwelling house was a gas furnace in the basement; that the same was placed in a hole in said basement; that the said hole containing said furnace had no drain; that the same filled with water; that said gas furnace would not and could not operate.

“Defendants further answering and by way .of cross-petition make the answer herein a part of said cross-petition as if the same was rewritten herein, and further state, that as a result of the condition of said dwelling house that their personal goods, furniture, rugs, chairs, beds and other household furnishings have been damaged by the dampness of said residence and have mildewed, all to their damage in the sum of/two thousand dollars ($2,000).”

To the defendants’ second-amended answer and cross-petition the plaintiffs filed a reply in the nature of a general denial.

Upon the trial of the case the defendants, in making defense, .sought to introduce evidence as to the representations made by the plaintiffs as alleged in the defendants’ answer. Defendant Taylor Baker testified as follows:

“Q. Well, did you ask him about the property, about weather conditions ? A. I asked him if it would sweat or leak and he told me no.

■ “Q. You asked him if it would sweat or leak? A. That’s right.

“Q. That was how long before? A. It was a few days before we bought the property.

( Í if ^ if

“Q. He said that it would not leak? A. That’s right.”

This testimony was afterwards stricken. Later such defendant testified as follows:

“A. Mr. Mohler told me that the — and my wife— that it would not leak and would not sweat; that it was well constructed.”

Upon objection being interposed by counsel for the plaintiffs the answer was stricken. Later counsel for the defendants asked the witness this question:

“Q. I believe you stated — now, don’t answer the question — did he or did he not tell you — and this is before the deed was made — that this house would not leak and it would not sweat?”

An objection to this question was sustained. A prolonged discussion took place between counsel and the trial judge relative to the nature of the defense of the defendants, the basis for recovery on their cross-petition and the admissibility of evidence in respect thereto. The trial court took the position that there Are re three possible theories on which the defendants could proceed. First, fraud, second, breach of warranty and third, innocent misrepresentation.- Counsel for the defendants stated that they were not relying on fraud or breach of Avarranty. From the record it does not clearly appeal' on Aidiat principle of law defendants were basing their defense and seeking their right of recovery on the cross-petition. Apparently they were based on innocent misrepresentation. The court took the view that this defense would not be available to the defendants unless the defendants had rescinded the contract and tendered back the consideration in an effort to place the plaintiffs in statu quo.

In our opinion the record shows a misconception of the nature of the defense and defendants’ right of recovery on their cross-petition. This case falls within the principle of law laid down in Gleason v. Bell, 91 Ohio St., 268, 110 N. E., 513, wherein the court held in the first paragraph of the syllabus as follows:

“Where a purchaser was induced to buy and pay for a city residence, by false representations made to him by the vendor as positive statements of fact clearly implying knowledge of the owner of the truth of the facts stated, and made under such circumstances that the vendor should have known of the falsity of the representations, and they were of such a nature as to affect the charácter, utility and value of said property, and the purchaser had a right to and did rely thereon, and suffered damage by reason thereof, he may recover. In such a case an averment that the vendor knew the representations to be false and made them with intent to deceive is not essential. ’ ’

The court, on page 275, said:

“Under the circumstances detailed in this petition it is hot incumbent upon the plaintiff to aver and prove that the defendant knew the representations were false and made them with intent to deceive. The facts set up in this petition show that the party making the representations should have known whether they were true or false, and further show that they were made not as an expression of opinion but as positive statements of fact, with the intention that they should operate as an inducement to the sale of said premises. The recital of the transaction in the petition sufficiently shows that the representations were so made as to imply that the maker knew them to be true and intended that his statements should be so understood, believed and relied upon and operate as an inducement to the purchase of the premises.

“ ‘A positive statement implies knowledge, and if the party who makes it has no knowledge on the subject, he has told scienter what is untrue; he has affirmed his knowledge.’ 1 Bigelow on Fraud, 513.”

The court in Gleason v. Bell, supra, cited with approval Aetna Ins. Co. v. Reed, 33 Ohio St., 283. The second paragraph of the syllabus in the Reed case is as follows:

“An action will lie for a false representation of a material fact, whether the party making it knew it to be false or not, if he had no reason to believe it to be true, when made, and it was done with the intention of inducing the person to whom made to act upon it, and the latter does so, sustaining a damage in consequence. ”

In Mulvey v. King, 39 Ohio St., 491, the court held as follows:

“Where a person by means of false representations of facts materially affecting the identity and value of certain real estate, induces another to enter into a contract for the purchase thereof, upon the faith of such representations, and upon which he was justified in relying, the purchaser may, in an action brought by the vendor for the purchase price, recoup the damages which he has sustained by reason of such false representations, although the vendor believed them to be true when made, and had good reason for so believing. ’ ’

In the opinion, on page 494, the court said:

“It may be considered as well settled in this state, by the cases above cited, that an action for damages caused by misrepresentation cannot ordinarily be maintained, without proof of actual fraud, or such gross negligence as amounts, to fraud. When, however, a person claims the benefit of a contract into which he has induced another to enter by means of misrepresentations, however honestly made, the same principles cannot be applied. It is then only necessary to prove that the representation was material and substantial, affecting the identity, value or character of the subject matter of the contract, that it was false, that the other party had a right to rely upon it, and that he was induced by it to make the contract, in order' to entitle him to relief either by rescission of the contract or by recoupment in a suit brought to enforce it. ”

On page 495, the court said:

“But the testimony also fully proves that King was guilty neither of fraud nor of gross negligence in making those representations, his mistake having been occasioned by that of a surveyor in previously establishing the boundary line.

“The facts thus proved bring the case within the principles above stated and give a right of recoupment in an action for the balance of the purchase money, to the extent of the deficiency in the value of the property purchased. The rights of the purchaser do not rest upon the ground of fraud, actual or constructive, but that, to the extent of the difference in value between the property as it was represented to be, and the property conveyed, there is no consideration for his promise. ’ ’

The court in the Gleason case cited in support of this principle of law the case of Pierce v. Tiersch, 40 Ohio St., 168, which holds:

"In an action by mortgagee against mortgagor upon a note and mortgage given for the purchase money of the premises, the mortgagor may, as a defense, set up a counter-claim for damages by reason of the fraud of the mortgagee, in concealing from, him material facts as to the situation and extent of the premises.”

On page 172, the court said:

“And furthermore, in an action against the mortgagor for the purchase money, his right to set up a counter-claim for any excess in price through the vendor’s misrepresentations of the extent of the property, would be the same, whether such misrepresentations were wilful or innocent. ’ ’

The Gleason case was followed in Fries v. Gannon, 9 Ohio App., 387. See, also, Fillegar v. Walker, 54 Ohio App., 262, 6 N. E. (2d), 1010.

In a similar case, Fiebig v. Brofford, Court of Appeals for Franklin county, decided March 10, 1950 (unreported), wherein the action was instituted by the vendee against the vendor for damages by reason of false representations made respecting the construction of the residence purchased, this court followed Ins. Co. v. Reed and Gleason v. Bell, supra, and held that “in an action of this character it is not necessary to allege or prove scienter, or that the representation was made with the intent to deceive.”

On the question of the admissibility of such testimony where a deed had been delivered which did not contain such representations, see Fries v. Gannon, supra; Drew v. Christopher Construction Co., 140 Ohio St., 1, 6, 41 N. E. (2d), 1018.

In the case at bar the defendants’ answer, on its face, states a good defense, although it would be strengthened by certain amendments. The evidence sought to be introduced was admissible and the court committed error prejudicial to the rights of the defendants in striking this evidence. No other error assigned is well made.

The judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

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


author: Fess, J.

text:
    Deckant, Appellant, v. City of Cleveland, Appellee.
    (No. 21867
    Decided October 25, 1950.)

      Mr. Coleman Kiss and Mr. Albert H. Kiss, for appellant.

      Mr. Robert J. Shoup, Mr. John G. Cardinal and Mr. E. Sheldon Wirts, for appellee.
   Fess, J.

This is an appeal on questions of law from a judgment entered upón a verdict on behalf of the defendant.

Plaintiff was a passenger in an automobile operated in an easterly direction on St. Clair avenue in the city of Cleveland, upon which the defendant maintained a double set of streetcar rails. The city owns and operates the street railway. Automobiles were parked along the southerly curb ,of the street. Plaintiff’s driver turned to his left onto the streetcar rails. The south rail was two inches higher than the brick pavement adjacent thereto for a distance of approximately 80 feet. It, was raining and the street was in a slippery condition, and when the driver turned to his left to avoid the cars parked on his right, the front wheels of his car caught in the rail, skidded to the northerly side of the street and collided with a westbound, automobile. As a result of the impact, plaintiff was thrown out upon the pavement and sustained injuries.

In her petition plaintiff alleged that her injuries were caused by the negligence of the defendant in maintaining St. Clair avenue in such condition as to constitute a nuisance in that the streetcar rail was maintained approximately two inches above the pavement; that such condition was dangerous and unsafe for vehicular traffic; and that it had existed for many months. The answer was a general denial.

At the conclusion of the evidence, upon plaintiff’s request, the court correctly charged the jury as to the duty of the defendant to keep its streets open, in repair and free from nuisance. But upon request of the defendant, the court gave the following instruction, which is assigned as error:

"1. The court instructs you, as a matter of law, that the city of Cleveland is not an insurer of the safety of persons in the use of its streets. The city is not' obliged to keep its streets in such condition that it is impossible for accidents to happen. The city can nob be held responsible for injuries caused by every depression, difference in grade, or unevenness in the streets.” (Italics supplied.)

Tlie court, at defendant’s request, also instructed tlie jury as follows:

“2. The court instructs you, as a matter of law, that the city can not be expected to have its streets perfectly smooth and free from all unevenness and is not required to have them in a state of perfection; it is held to reasonable care only, and is not bound to anticipate improbable or unprecedented events and provide against their possible results.”

In the general charge, the court said:

“Under the law of the state of Ohio a municipality, and Cleveland of course is a municipality, is obligated to keep its streets open, in repair and free from nuisance. That is the statutory obligation which the city of Cleveland owes, that the city of Cleveland is obligated to perform for people in the rightful use of the streets.

“That does not mean that the city is an insurer. It does mean that the city must use ordinary and reasonable care to so maintain its streets as to be in a reasonably safe condition for the usual and customary mode of travel upon its streets.”

The duty resting upon municipal corporations, under Section 3714, General Code, to keep their streets and other public ways open, in repair and free from nuisance, requires only reasonable care and vigilance, in view of all the surroundings, to keep such streets and ways in a reasonably safe condition for travel.in the usual and ordinary modes, and does not exact that which is unreasonable or impracticable. Municipal corporations are not insurers of the safety of their public ways, and are liable only for negligence in creating a faulty condition in such ways, or in failing to repair, remove or guard against defects or obstructions thereon, after actual or constructive notice of their existence. The standard of care required to be exercised by municipal authorities in keeping ■ streets in repair and free from nuisance is that care which persons of reasonable and ordinary prudence exercise under like circumstances and conditions.

Taylor v. City of Cincinnati, 143 Ohio St., 426, 55 N. E. (2d), 724, 155 A. L. R., 44; City of Cleveland v. Amato, 123 Ohio St., 575, 176 N. E., 227.

Tire charge complained of was taken from the language of the opinion in City of East Cleveland v. Wald, 103 Ohio St., 373, 133 N. E., 798, reading as follows:

“A municipal corporation is not an insurer of the safety of persons in the use of its streets and sidewalks. City of Dayton v. Glaser, 76 Ohio St., 471, and Gibbs v. Village of Girard, 88 Ohio St., 34.

“ ‘While a municipality must generally respond in damages for injuries caused by its negligence, acts, or omissions in connection with the streets and sidewalks under its care and control, it cannot be held responsible for injuries caused by every depression, difference in grade, or unevenness in sidewalks.’ Cordish v. Bloom, Court of Appeals, Md., March 1, 1921 (113 A., 578).”

The charge. as given is an ^apt illustration of the rule that although an excerpt from an opinion is not necessarily erroneous, the practice is not approved and may provoke error. American Hard Rubber Co. v. Pierce, 18 C. C. (N. S.), 278, 33 C. D., 32. It will be noted that the instant charge incorporated only a portion of the sentence quoted from Cordish v. Bloom, supra, and eliminated the qualifying phrase.

As in the case of a general charge, an excerpt therefrom will be considered in the light of the charge as a whole, and a special charge will'also be considered.in connection with other special charges. Wymer-Harris Construction Co. v. Glass, Admx., 122 Ohio St., 398, 171 N. E., 857, 69 A. L. R., 517; Dietsch, a Minor, v. Mayberry, 70 Ohio App., 527, 47 N. E. (2d), 404.

Defendant asserts that, viewed in the light of the other special charges and the general charge, the court correctly charged the jury on the issues and the giving of the charge in question was not prejudicial. In support thereof, defendant cites Bartson, d. b. a. Bartson Driveway Co., v. Craig, an Infant, 121 Ohio St., 371, 169 N. E., 291, wherein it was claimed that a special instruction on contributory negligence was erroneous because it failed to include the rule of negligence as applied to a child. The Supreme Court held that the requested charge constituted a correct proposition of law and if counsel for appellant desired an instruction on the standard of care required of a child, it should have been requested. Under the well-established rule, an error of omission in a charge is not prejudicial.

A charge ought to be not only correct but also so adapted to the case and so explicit as not to be misconstrued or misunderstood by the jury in the application of the law to the facts as it may find them from the evidence. Little Miami Rd. Co. v. Wetmore, 19 Ohio St., 110, 2 Am. Rep., 373.

The issue for the jury to determine was whether the elevation in the rail, however slight, was such a defect as to show that the city failed to keep the street in repair and free from nuisance. The jury could well infer from the last sentence of the requested charge (without the qualifying phrase found in Cordish v. Bloom, supra) that the defect was not such a difference in grade or unevenness in the street as would make the city responsible. The error was not removed by the special charge given at the request of the plaintiff and the commendably correct general charge. The judgment is therefore reversed and the pause remanded to the Common Pleas Court for a new trial.

Judgment reversed.

Conn and Carpenter, JJ., concur.

Conn, Fess and Carpenter, JJ., of the Sixth Appellate District,, sitting by designation in the Eighth Appellate District.


author: Jackson, J.

text:
    Sheridan, Appellant, v. Werkheiser, Appellee, et al.

      (No. 520
    Decided April 18, 1950.)

      Mr. John C. Firmin, for appellant.

      Mr. John E. Pricldy and Mr. Richard J. Rinebolt, for appellee.'
   Jackson, J.

This is an appeal on questions of lav/. The alleged errors arise by reason of the trial court sustaining a demurrer to the second amended petition. The sustained demurrer set forth the single ground that the second amended petition did not state a cause of action against the defendant Dwight E. Werkheiser.

In the second amended petition two defendants, appellees, are named as concurrent joint tort-feasors.

The plaintiff, appellant, consummated a settlement with the defendant Frederick M. Hart, which settlement provided for reservation of all the rights to the plaintiff as against the defendant Dwight E. Werkheiser, and the appeal on behalf of the defendant Frederick M. Haft was dismissed with prejudice.

We are therefore concerned only with the appeal with reference to the defendant Dwight E. Werkheiser.

The second amended petition alleges that the plaintiff was riding in an automobile owned and driven by the defendant Frederick M. Hart on state route No. 12 southwest of the city of Fostoria in the county of Hancock, Ohio; that the plaintiff had no control or direction over the automobile in which she was riding; that on the 16th day of June, 1946, at about 1:30 a. m., the automobile in which the plaintiff was riding-crashed into the rear of another automobile owned and driven by the defendant Werkheiser, which automobile was standing on the northwesterly side of such highway and on the paved portion thereof; that there was a dry shoulder or berm thirty feet wide along the highway affording sufficient space to park the automobile of such defendant entirely off the paved or traveled portion, of the highway, of which fact defendant was well aware; that the automobile of the defendant was damaged, had lost its traction and was 'Coasting, and, that although it was practical for the defendant to stop, park or leave his automobile off the paved and main portion of the highway, he failed to do so, thereby impeding the free passage of other vehicles upon such highway which situation defendant knew about, or in the exercise of ordinary care should have known about; and that the defendant Frederick M. Hart (the party whose appeal was dismissed with prejudice) operated his automobile with four persons in the back seat and three other persons in the front seat, in addition to the driver Hart.

Plaintiff alleges further that Hart was guilty of wanton and wilful misconduct in that he was driving while intoxicated, driving with one hand, at a speed in excess of fifty miles per hour and concentrating his attention on a woman companion in the car; that he failed to slacken his speed after dimming Ms lights; that he was driving his automobile with knowledge that his acts would in all common probability result in injury to the plaintiff; that he drove his car consciously and indifferently under the aforesaid conditions ; and that by reason of the concurrent acts of the defendants, Frederick M. Hart and Dwight E. Werkheiser, plaintiff sustained bodily injuries and incurred medical nursing and hospital expenses, and lost wages from her employment by reason of being unable to work.

Paragraph (a) of Section 6307-64, General Code, as amended, effective September 6, 1941, provides, in substance, that no person shall 'stop, park or leave standing any vehicle upon the paved or main traveled part of a highway, outside of a business or residence district, when it is practicable to stop, park or leave such vehicle off such part of the highway, but in every event a clear and unobstructed portion of the highway opposite such standing vehicle shall be left for the free passage of other vehicles, and a clear view of such stopped vehicle shall be available from a distance of at least two hundred feet.

Paragraph (b) of this section provides, in substance, that the driver of a vehicle which is disabled may park on the paved or improved or main traveled portion of the highway if it is imposible to avoid stopping thereat and may temporarily leave such disabled vehicle in such position.

The contingencies provided for in this section of the General Code can be determined only after the facts are presented as to such stopping and parking a vehicle on a highway, and the determination of such facts in relation to their application to the provisions of the Code are questions for the jury and cannot be determined as a matter of law by the court. Pugh v. Akron-Chicago Transportation Co., 137 Ohio St., 164, 28 N. E. (2d), 501.

There is another fact which must be determined by the jury, namely, if a violation of this section becomes either a question of negligence, or negligence per se, it must be determined whether such negligence was the proximate cause of the damages that accrued. Betras, Admr., v. G. M. McKelvey Co., 148 Ohio St., 523, 76 N. E. (2d), 280; Zivkoff, Admr., v. Pennsylvania Rd. Co., 86 Ohio App., 84, 90 N. E. (2d), 148.

Under the allegations of the petition, both defendants are charged with liability because of their concurrent negligence, and under the law, concurrent tortfeasors are not onlv jointly but severally liable. Wery v. Seff, 136 Ohio St., 307, 25 N. E. (2d), 692; Larsen v. Cleveland Ry. Co., 142 Ohio St., 20, 50 N. E. (2d), 163.

A release of one concurrent tort-feasor from liability, given by tbe injured person, discharges all others so liable for the same harm unless the parties to the release agree that it shall not discharge the others. Payment by one such tort-feasor on account of a harm for which he and another are so liable diminishes the amount of the claim against the other whether it was so agreed at the time of payment and whether the payment was made before or after judgment; the extent of the diminution being the amount of the payment made, or a greater amount if so agreed between the payer and the injured person. 4 Restatement of the Law of Torts, 460, Section 885; Ash v. Mentansen, 24 Cal. (2d), 654, 150 P. (2d), 876.

In any event, however, the recovery against the other tort-feasors is confined to the excess of damages incurred, above the amount of the settlement, the settlement sum paid being considered as a satisfaction ■pro tanto. The intention of the parties as to the effect of the release is to be ascertained from the language of the agreement in connection with all the circumstances. 39 Ohio Jurisprudence, 241, Section 31; 35 Ohio Jurisprudence, 285, Section 47; Adams Express Co. v. Beckwith, 100 Ohio St., 348, 126 N. E., 300; Cleveland Ry. Co. v. Nickel, a Minor, 120 Ohio St., 133, 165 N. E., 719; Davis, Admx., v. Buckeye Light & Power Co., 145 Ohio St., 172, 61 N. E. (2d), 90; 7 Ohio Jurisprudence, 1014, Section 31.

For the above reasons, prejudicial error intervened in the sustaining of the demurrer to the second amended petition and the dismissal of such second amended petition by the trial court. Therefore the judgment is reversed and the cause remanded to the Common Pleas Court with instructions to overrule the demurrer, and for further proceedings according to law.

Judgment reversed.

G-tjernsey, P. J., and Middleton, J., concur.


author: Per Curiam.

text:
    The Val Decker Packing Co., Appellant, v. Treon, Appellee.
    (No. 451
    Decided November 18, 1950.)

      Messrs. Estabrook, Finn é McKee, for appellant. Messrs. Shipman & Shipman, for appellee.
   Per Curiam.

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

Plaintiff, appellant herein, instituted an action for a declaratory judgment wherein it alleges that it was the owner of a farm in Miami county which the defendant operated for the plaintiff from 1942 to 1948 under an oral agreement whereby each was to receive fifty per cent of the profit; that from time to time accountings had been made and profits equally divided; and that defendant failed to properly account for certain dairy operations. Plaintiff alleges further that some time prior to September 16, 1946, plaintiff and defendant orally agreed to undertake the feeding of 270 western feeder steers on the farm, plaintiff to purchase and pay for the steers, and defendant to receive, as added compensation for the care of such cattle, the sum of $20 per day; that the cattle were purchased by the plaintiff and delivered to the farm; and that such cattle were retained on the farm for 30 da.ys, after which 266 steers were delivered to and slaughtered in the packing plant operated by the plaintiff. The four steers remaining were kept on the farm and subsequently sold and the proceeds accounted for.

Plaintiff alleges also that defendant claims fifty per cent of the alleged profit realized on the 266 steers; that plaintiff tendered a check to the defendant for $793.13 covering the agreed sum of $20 per day for a 30-day period, and $193.13 for the cost of feed furnished from defendant’s stock; and that defendant accepted, retained and later cashed the check which was tendered in full satisfaction of any and all claims of defendant arising out of such transaction.

Plaintiff prays for a declaratory judgment with respect to the rights, duties and liabilities of the parties arising out of such oral agreement.

To plaintiff’s petition defendant filed an answer and cross-petition in which defendant admits certain allegations contained in the petition, but denies that there is anything due from defendant to plaintiff under the regular partnership agreement for the operation of the farm and then denies generally.

The defendant as a second defense, and by way of cross-petition, alleges that plaintiff and defendant entered into an oral agreement, with respect to the 270 steers, which provided that after the steers were sold all costs of purchase and feeding and other expenses in connection therewith should be deducted and the profits should be equally divided between plaintiff and defendant; and that- it was further agreed, in the event no profit was realized, the plaintiff was to pay the defendant $20 per day for his care of the cattle. Defendant alleges that he cared for the cattle for a period of 30 days and at the end of such period they were taken from the farm and slaughtered by plaintiff.

Defendant alleges further that he received plaintiff’s check in the amount of $793.13, and was advised by the officers of plaintiff company that the check covered the defendant’s compensation at the rate of $20 per day; that he was also advised by plaintiff, through its officers, that there was no profit realized on the transaction involving the 266 steers; that on or about January 15, 1947, he was advised by the officials of the plaintiff company that unless he cashed the check and accepted said payment he would receive nothing for his work; that the officers reiterated that the cattle were sold at a loss; and that by reason of such fraudulent representation he was induced to cash the check.

Defendant alleges further that subsequently he' learned a profit had been realized on the transaction involving the 266 steers slaughtered by plaintiff; that one-half of such profit amounted to $7,644.94; and that after deducting therefrom the amount of the check ($793.13), there was due defendant from plaintiff the sum of $6,851.71 with interest at six per cent from October 19, 1946.

To defendant’s cross-petition plaintiff filed an answer consisting of three defenses. In the first defense plaintiff admits certain allegations in the cross-petition, reiterates its claim that defendant was to be compensated for his work in caring for the steers at the rate of $20 per day and then denies generally. In its second defense plaintiff alleges that no profits were realized on the transaction. For its third defense plaintiff alleges that defendant received $793.13, in full satisfaction of any obligation due defendant by reason of the transaction.

Plaintiff alleges also that on January 14, 1947, the regular partnership operation of the farm was accounted for and settled; and that on July 23, 1947, another accounting and settlement Avas had between plaintiff and defendant involving the regular partnership operation of the farm, and upon the termination of defendant’s tenancy in March 1948 a final accounting and settlement was had involving the regular partnership operation.

To this answer of the plaintiff the defendant filed no reply.

It was stipulated and agreed by the parties to submit the issues to a jury. The jury rendered a verdict for defendant for the amount prayed for. Plaintiff’s motion for a new trial Avas overruled and judgment was entered on the verdict.

The first error assigned is that the court erred in overruling plaintiff’s motion for a directed verdict at the close of defendant’s case.

Plaintiff contends that since the defendant did not file a reply to plaintiff’s answer to defendant’s cross-petition, the allegations of plaintiff in its answer respecting the accountings and settlements arrived at between plaintiff and defendant on January 14, 1947, .July 23, 1947, and in March 1948, respecting the regular partnership, operation of the farm were not controverted and, therefore, must be taken as true; and that such settlements operated as full settlements for all obligations.

In our opinion the accountings and settlements involving the regular partnership operation of the farm did not encompass, and were not intended to include, obligations or rights of the parties arising out of the oral agreement involving the 266 steers.

Plaintiff contends that defendant’s acceptance and cashing of the check dated December 14, 1946, constituted an accord and satisfaction. Defendant admits he received $793.13, by check on the transaction. Accompanying the check was a letter signed by Walter O. Decker, vice-president of plaintiff company, which defendant received, the pertinent part thereof being as follows:

“We are pleased to enclose our check No. 3654 in the amount of $793.13, covering the feeding and handling of the 266 steers which were returned to our plant on October 18th and 19th, 1946.

“This check, as above, covers 75 bu. corn, etc. * * *. As per our agreement we are also allowing you $20 per day for 30 days feeding of these cattle, amount $600. Thus the total amount due you is $793.13, which we trust that you will find in order.”

Plaintiff contends that the words, ‘ ‘ the total amount due you is $793.13,” shows an intention on the part of plaintiff that the check was given in full satisfaction of defendant’s claim on this transaction.

The defendant offered evidence to show that before the check was cashed an officer of plaintiff company informed the defendant that if he did not accept and cash the check he would receive much less than the, amount of the check.

In 34 A. L. E., 1036, the controlling rule is stated as follows:

“By the great weight of authority the acceptance and use of a remittance by check, purporting to be ‘in full,’ or employing words of similar import, or accompanied by a letter to that effect, amount to an accord and satisfaction of the larger claim of the creditor, assuming that the claim was unliquidated or disputed, so that an express agreement to accept, and the actual acceptance of, the smaller amount in full satisfaction, would have been binding.”

In 1 Ohio Jurisprudence, 164, Section 10, the text is as follows:

“But where there is a controversy existing between the parties regarding the amount due, the tender by the debtor of a check marked ‘In settlement of account in full,’ and the acceptance and use of it by the creditor, operates as an accord and satisfaction.”

In support of the above text the case of Bettman v. Sporkin, 6 Ohio App., 23, 28 C. C. (N. S.), 553, 30 C. D., 219, is cited. See, also, 1 American Jurisprudence, 223, Section 22; 1 Corpus Juris Secundum, 523, Section 33; Wellnitz v. Dependabilt Homes, 48 Ohio Law Abs., 371, 74 N. E. (2d), 776; Platt v. Penetryn System, Inc., 151 Ohio St., 451, 86 N. E. (2d), 600.

We are of the opinion that it may be reasonably implied from the words used in the letter and the statement by the officer of plaintiff company that the check was intended to be payment in full for the amount due defendant and that defendant was in-.formed of plaintiff’s intention. However, defendant claims that he was induced to accept the check by reason of the alleged fraudulent representation made by the officers of plaintiff, company to the effect that no profit had been realized on the transaction. The plaintiff contends that defendant did not rely on such representations and, therefore, defendant has not proven all the eléments of fraud.

The defendant, in giving his reason for cashing the check, testified as follows:

“After I got that I had to make out my income tax and I knew that I had this much money coming, I knew the cattle made that much money — plaintiff’s objection overruled — and I knew that I had this much coming, I knew the cattle did not lose money, so I' cashed the checks and had my tax made out. ’ ’

It must be observed that under the oral agreement, as plaintiff understood it, plaintiff was to pay defendant $20 per day for the care of the cattle, and under the agreement as alleged in defendant’s cross-petition he was to receive $20 per day and, according to his testimony, he was to receive a reasonable sum for his work, if no profit was made. Under either version of the oral agreement defendant was entitled to $20 per day or a reasonable sum for his work. This situation explains the statement of defendant to the effect that he knew he had that much money coming.

The plaintiff claims that defendant did not rely on such representations and points to the statement of defendant to the effect that he knew the cattle did not lose money. The evidence is in conflict as to the weight and grade of the cattle and the market price at the time of slaughter. The defendant introduced evidence in support of the allegations in his cross-petition that plaintiff company, through its officers, falsely represented that no profit had been made on the transaction. The defendant testified that one of the Deckers told him: “We didn’t make any money. They didn’t weigh any more than they did in Kansas,” and “Bob, them cattle didn’t make any money. We took them cattle in at 21 cents”; and that one of the Deckers brought company records out to the farm to show’ defendant that the company at the time of slaughter had purchased other cattle at 20, 22, and 23 cents per pound. The defendant had no knowledge of the truth or falsity of these representations. The president of plaintiff company denied he had told defendant that the cattle lost money, and testified: “In fact, I didn’t know whether they lost money or made money, to tell the truth about it.” In view of this statement, how can it be claimed defendant did hot rely on such representations?

In determining whether defendant relied on the representations of plaintiff that no profit was made on the transaction, the statements made by plaintiff and defendant must be considered in the light of the method of doing business, as well as the conduct of defendant before and after the check was cashed.

For a period of years it was the practice for the plaintiff and defendant to make semi-annual settlements for the regular partnership operation of the farm. ' The plaintiff kept all the records and semiannually would make up a written report of receipts and disbursements and send it, together with a check for the amount due, to defendant. The defendant accepted the reports and cheeks and raised no question as to their accuracy. The defendant testified: “Because I trusted Bill Decker to be honest and faithful with me.”

The evidence shows that in July 1947, plaintiff notified defendant to vacate the farm in March 1948, which he did. This action was instituted in May 1948. For a period of many months after the check was cashed, defendant accepted the situation and it was only after the elapse of six or seven months that he had his records examined by a friend and then made a claim. The statement of defendant that he knew the cattle did not lose money may be regarded as an expression of an opinion and does not take from the jury the determination of the question as to whether defendant relied on the representations of plaintiff. In view of the entire factual development we cannot say that reasonable minds could not differ on this matter. Whether fraud was proven and whether defendant relied on the false representation were factual matters for determination by the jury.

The facts in this case fall within the principle of law laid down in the case of Pope, Admx., v. Mudge, 108 Ohio St., 192, 140 N. E., 501, wherein it was held, .as shown by the syllabus:

“It is error for the court to direct a verdict against the plaintiff, where, by giving to the evidence the most favorable interpretation toward him which any of the evidence will reasonably warrant, there is some evidence tending to support the allegations of the petition.”

“If, in ruling upon a motion to direct a verdict, the court is required to detect the truth from conflicting evidence of the same or different witnesses, the motion should be overruled. ’ ’

In Pope v. Mudge, supra, the plaintiff, who was asking relief on the ground of fraud, had stated in a deposition that he did not believe the things that Mudge said about his attorney. The court in its opinion, on page 198, in discussing whether this statement of the plaintiff was sufficient to take the case from the jury on the question of nonreliance on the representations made, said:

“In his charge to the jury sustaining the motion and directing the verdict he quoted at considerable length from the deposition wherein Pope asserted that he did not believe the things that Mudge said about his attorney, and were there no other testimony in Pope’s deposition than that quoted the action of the trial court in directing a verdict would not be disturbed by this court.

t í * # * While he did categorically deny that he believed the statements, he also undertook to describe the effect of the statement upon his mind and his resultant conduct thereafter.

“In arriving, therefore, at the probable truth of the matters testified to by him, it requires the consideration of his physical and mental condition as disclosed by the deposition and other evidence, consideration of inconsistent and contradictory answers in connection with each other and other evidence, consideration of the conclusions of the witness in connection with the facts from which such conclusions were drawn, whether such facts warrant the conclusions, whether the conduct of the witness was consistent with the conclusion he declared, if not, whether the expressed conclusion is to be believed in preference to the conduct, the succession of events, as detailed by the witness and other witnesses, in connection with the admitted fact that he had a verdict for the sum of $25,000. * * * In short, in detecting the truth of the matters testified to, it requires the exercise of the function of a trier of facts, whose privilege it Is to believe testimony which he finds worthy of belief and to disbelieve testimony which he finds unworthy of belief. Such is the function of a jury.”

In our opinion the trial court properly submitted to the jury the issue as to whether defendant relied on the representations of the officers of plaintiff company. All the other elements of fraud clearly appear, and since the jury returned a general verdict without interrogatories we may assume that this issue was resolved in favor of defendant. On this issue, and all the determinative issues in the case, the evidence was in conflict. There was sufficient evidence on this issue to support the verdict of the jury.

Plaintiff contends the court erred in refusing to give two special instructions to the jury, requested by plaintiff. The special instructions submitted failed to include a finding by the jury on the issue of fraud. Since the instructions requested not only stated principles of law applicable to certain issues in the case, but also required the jury in the event it resolved certain issues in favor of the plaintiff to return a verdict for the plaintiff, it was defective in that it did not include a finding by the jury on the issue of fraud.

Plaintiff contends the court erred in overruling plaintiff’s motion for new trial on the ground of misconduct of the jury. The motion for new trial was supported by affidavits to the effect that the jury deliberated 21 minutes before reaching a verdict. There is no statutory provision prescribing the length of time a jury shall deliberate before reaching a verdict.

In 64 Corpus Juris, 1019, Section 808, the rule is stated as follows:

“While the verdict should be the result of sound judgment, dispassionate consideration, and conscientious reflection, and the jury should, if necessary, deliberate patiently and long on the issues which have been submitted to them, yet, where the law does not positively prescribe the length of time a jury shall consider their verdict, they may render a valid verdict without retiring, or on very brief deliberation after retiring, although the trial court may, in its discretion, cause the jury to reconsider the case if their decision is so hasty as to indicate a flippant disregard of their duties. ’ ’

In 39 Ohio Jurisprudence, 1071, Section 342, the Ohio rule is stated:

“The law does not prescribe any length of time that a jury shall remain out in the consideration of their verdict; this, according to the general rule, is a matter addressed to the discretion of the trial court.”

There being no error in the record prejudicial to the rights of the plaintiff the judgment is affirmed.

Judgment affirmed.

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