author:
      Per Curiam.
     Ross, J.,

text:
    Bolser, Appellant, v. Smalley, Appellee.
    (No. 165
    Decided July 2, 1951.)

      Messrs. Hayes & Hayes, for appellant.

      Mr. C. Luther Swaim, for appellee.
   Per Curiam.

This is an action to recover damages for injuries alleged to have been received by the plaintiff through defendant’s negligence while she was a passenger for hire in a taxicab owned and operated by defendant.

The issues of fact were submitted to a jury which returned a verdict for the defendant, upon which judgment was rendered. This appeal is from that judgment.

The first error assigned is that the court erred in dismissing the original panel which had been seated in the jury box and in continuing the cause until a later date when the jury was selected from a new panel. The action of the court was motivated by the fact that plaintiff’s counsel had asked one of the panel, in the presence of the others, about having an action against an insurance company growing out of an automobile accident. The court considered the question as prejudicial and for that reason dismissed the whole panel.

We find no prejudicial error in such action. It was a matter which rested within the sound discretion of the trial court and we find no abuse of discretion.

Furthermore, there is no claim that the jury which was finally impaneled was prejudiced or in any other respect incompetent to weigh the evidence fairly and render an impartial verdict.

This action differs from most actions for damages for personal injuries caused by negligence in that the defendant not only denied any negligence but also denied any injury. The defendant alleged that there was no violent movement of the taxicab which could have caused physical injury to a passenger, and followed that allegation with the assertion that in fact no injury was suffered. There was evidence that plaintiff had been injured in a prior accident and also had suffered for years with a chronic ailment, and that this,' rather than any injury caused by defendant, accounted for her physical condition. This evidence required these two issues to be submitted to the jury, and they were so submitted.

In the general charge the court stated the issues as follows: “First, was the driver of the cab negligent in the manner claimed by the plaintiff, and, secondly, was the plaintiff injured as a proximate result of such negligence.”

The court also stated to the jury, among other things, that “it, therefore, becomes necessary for you to determine whether the injury that she complains of now is a proximate result of the mishap in 1948, or the mishap in 1939, or from some other cause, as from degeneration of the body tissues or disease.”

An examination of the assignments of error and brief discloses that no error is claimed to have been committed relating to the issue of whether the plaintiff had in fact been injured in any way by the conduct of the defendant. All the alleged errors relate to the issue of negligence and the damage in the event the jury found that defendant had been negligent and plaintiff had been injured as á direct result.

Such being the situation, it seems to us that the two-issue rule, as announced in Sites v. Haverstick, 23 Ohio St., 626, and applied in Bush, Admr., v. Harvey Transfer Co., 146 Ohio St., 657, 67 N. E. (2d), 851, and other cases, precludes us from reversing the judg-' ment appealed from.

The plaintiff’s whole case was based on her allegation that she had been injured. If she was not injured the conduct of the defendant, negligent or otherwise, became immaterial. No special interrogatories were submitted or requested. We cannot say that the general verdict in favor of defendant was not predicated on the finding of the jury that the piaintiff had received no injury.

We have examined all the assignments of error and find that, with three exceptions, they relate to rulings on matters falling within the sound discretion of the court on matters of an immaterial nature. We find no abuse of discretion.

One of the exceptions relates to the refusal of the court to give a special charge requested by plaintiff. This charge purports to state abstractly the duty of a common carrier toward his passengers without any attempt to relate the charge to the issues in the case at bar. It is not error for the court to refuse to give an abstract statement of the law, even though it is a correct statement. The charge is also incorrect in that it would require the carrier to insure the safely of the passengers. For these two reasons, the court was justified in refusing to give it.

There is another feature of this record, which, if we read it correctly, bears on the reversibility of the refusal to give the special' charge requested by plaintiff and the giving of the special charge requested by the defendant, and that is that the plaintiff alleged that the defendant was a common carrier, which was denied by the defendant. Our examination of the record fails to disclose any evidence on that subject, unless the reference to the vehicle as a taxicab and the answer of the defendant as that of a taxicab operator would justify an inference that he was holding hihiself out as a common carrier. Of course, the burden was on the' plaintiff to prove the allegation. In the absence of such proof the rule of ordinary care would be the measure of the defendant’s duty to the plaintiff. We 'call attention to this apparent failure of proof, without, however, making it the basis of our decision.

The special charge requested by the defendant, which the court gave, related to the defendant's duty when confronted with an emergency. This charge contained the statement that when so confronted, if “he did or attempted to do what any reasonably prudent person would have done under the same or similar circumstances, then he was not negligent.” It is claimed that this statement ignores the duty of a common carrier to use the highest degree of care toward passengers, which an ordinarily careful person would use under similar circumstances.

In 10 American Jurisprudence, 214, Section 1344, it is stated that “the decisions are in accord upon the proposition that a carrier is not liable for injuries to a passenger resulting from the application of the emergency brakes in order to avoid or prevent an imminent danger not otherwise avoidable, and reasonably believed to be attended with more serious consequences than the sudden application of brakes.”

In the general charge also the court applied the rule of ordinary care. At no place in the charge did the court refer to the defendant as a common carrier. This may be accounted for by the absence of proof on that subject. It seems that the only places where there is any suggestion that the defendant was being charged as a common carrier were the petition and the special charge presented by plaintiff. No exception was reserved to the refusal to give the Special charge or to’ the general charge as given.

We have concluded that the record as a whole shows no reversible error, and that substantial justice has been done.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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

Ross, J.,

concurring. I concur in the judgment of this court and also in the conclusion of the majority of the court that the application of the “two-issue rule” is required.

The special charge, mentioned in the majority opinion, and given at the request of the defendant, is as follows:

“The court charges you that where one, without fault of his own, is placed in a position of great mental stress or sudden emergency, the same degree of judgment and care is not required of him as is required of one who is acting under normal conditions. The test to be applied is whether or not the person in such a position of great mental stress or sudden emergency did, or attempted to do, what a reasonably prudent person would have done under the same or similar circumstances.

“If, therefore, you find from the evidence in this case, that the driver of the taxicab, without fault on his part, was placed in a position of great mental stress or sudden emergency, and that while in such a position, he did or attempted to do what any reasonably prudent person would have done under the same or similar circumstances, then he was not negligent.”

The first sentence of this charge does not state a correct principle of law, as is indicated by the later statement in the same charge of the correct rule.

In Pennsylvania Rd. Co. v. Lindahl, Admr., 111 Ohio St., 502, 511, 146 N. E., 71, Judge Allen stated the correct rule, as follows:

“When Lindahl was confronted with the sudden emergency of finding himself in an automobile crossing a track upon which a train was bearing down, he was required to use only that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances. It was a question of fact whether Lindahl saw the train in time to avoid the accident so far as he was concerned, and used the requisite degree of care, and that question was. rightly submitted to the jury.” See, also, 29 Ohio Jurisprudence, 408, 424, Sections 26, 35.

In a great many cases, error in instructions of the court is predicated upon a more or less academic viewpoint of the language used.

In this particular type of charge, however, it is my opinion that the language used has great influence upon a jury. It is told in definite and simple language that there is a different degree of care required of one presented with an emergency from that required of one confronted with an ordinary situation.

The applicable true rule is so simple that any attempt to modify it is bound to create confusion in the minds of the jurors.

I think the objectionable portion of the charge was prejudicially erroneous to the plaintiff and constituted reversible error.

Where the court in an instruction presents to the jury a correct and incorrect rule, the latter predominates, and the error, if prejudicial, vitiates the entire charge upon the particular point involved. Westropp v. E. W. Scripps Co., 148 Ohio St., 365, 366, 74 N. E. (2d), 340; Bosjnak v. Superior Sheet Steel Co., 145 Ohio St., 538, 539, 62 N. E. (2d), 305

But, as indicated in the majority opinion, there is no criterion before us to test the basis for the jury’s verdict for the defendant, so that unless we are brought within the scope of Bush, Admr., v. Harvey Transfer Co., 146 Ohio St., 657, 67 N. E. (2d), 851, the “two-issue rule” applies.

Obviously, the question of whether the plaintiff suffered any injury or consequent damages as a proximate result of defendant’s negligence, if such existed, presents a separate issue in the case. Section 11377, General Code; 39 Ohio Jurisprudence, 576, “Trial,” Section 2.

In this case the plaintiff alleged that she suffered injuries as the proximate result of defendant’s negligence. The defendant denied that she was so injured. As far as the record shows the issue of injury and damage was free from error prejudicial to the plaintiff.

In Bush, Admr., v. Harvey Transfer Co., supra, the third paragraph of the syllabus is:

“The two-issue rule is that error in the charge of the court dealing exclusively with one of two or more complete and independent issues required to be presented to a jury in a civil action will be disregarded, if the charge in respect to another independent issue which will support the verdict of the jury is free from prejudicial error, unless it is disclosed by interrogatories or otherwise that the verdict is in fact based upon the issue to which the erroneous instruction related.”

In that case where the two issues of negligence and contributory negligence were considered, it was held that the latter issue does not arise until the former is found to exist, so that the jury is, perforce, bound to first consider the issue of negligence, where contributory negligence is involved. Such, of course, is not the case here.

There seems, therefore, no reason for failing to apply, the two-issue rule to the instant case requiring affirmance of the judgment for the reasons inherent in the rule, in spite of the error in the charge on negligence. It may well be that the jury found negligence, but not proximate injury and consequent damage to plaintiff. It is questionable, even if this court were aware of the injurious effect of the special charge on negligence, whether the judgment should be reversed if it was also apparent that the jurj found no injury or damage.

The writer is bound to recede from his expression of approval of the charge here in question, as stated in Woodward v. Gray, 46 Ohio App., 177, 180, 188 N. E.; 304.


source: Caselaw Access Project

author: Ross, J.

license: Public Domain

text:
    Meyer, Appellant, v. The Cincinnati Street Ry. Co., Appellee. (Two cases.)

      (Nos. 7405 and 7406
    Decided May 28, 1951.)

      Messrs. Geoghegan, Levy S Daly, for appellant.

      Mr. G. R. Beirne, for appellee.
   Ross, J.

Appeals on questions of law from final judgments in two cases are presented to this court. The first appeal, No. 7405, involves an action by a husband for expenses, loss of consortium and other damages due to injuries suffered by his wife and alleged to be the proximate result of the concurrent negligence of two defendants.

The second, No. 7406, is an appeal in an action by the wife of the plaintiff .in appeal No. 7405 for damages for injuries so incurred by her.

These appeals are considered together, and as disposition of the issues presented in case No. 7406, involving the action by the wife, will control the action of this court in case No. 7405, involving the action by the husband, case No. 7406 will be herein considered as to facts and law.

In each action the trial court sustained a demurrer to the petition for misjoinder of parties defendant, and, the plaintiff not desiring to plead further, final judgment dismissing the defendant The Cincinnati Street Railway Company was entered.

In case No. 7406, it appears, according to the allegations of the petition, that the plaintiff was injured as the proximate result of the “joint and concurring acts of negligence” of the defendant company, in whose streetcar plaintiff was a passenger, and of the defendant Walker, the operator of a truck which he negligently permitted to collide with such streetcar.

The trial court sustained a demurrer to the petition on the ground that there was a misjoinder of parties defendant, basing its conclusion upon, the premise that the .degree of care appropriate to one defendant, the operator of the truck was not appropriate to the company which the trial court held was obliged to extend the highest degree of care to the passenger. The trial court relied upon the case of Seabold v. Dayton, 56 Ohio Law Abs., 417, 92 N. E. (2d). 701, as authority for its conclusion.

It appears from an examination of the Seabold case that the plaintiff therein was injured while a passenger in a bus of a street railway company, and that plaintiff’s injuries were alleged to be the proximate result of the concurrent negligence of the street railway company and the city of Dayton, in that the latter permitted a rotten tree to exist oí a public street in such city, which tree fell upon the bus while plaintiff was a passenger therein. The Court of Appeals of the Second Appellate District relied upon Bello v. City of Cleveland, 106 Ohio St., 94, 138 N. E., 526; Village of Mineral City v. Gilbow, 81 Ohio St., 263, 272, 273, 90 N. E., 800, 25 L. R. A. (N. S.), 627; Stark County Agricultural Society v. Brenner, 122 Ohio St., 560, 574, 172 N. E., 659 (see especially the third paragraph of the syllabus); Dash v. Fairbanks Morse & Co., 49 Ohio App., 57, 62, 63, 195 N. E., 413; and noted that the plaintiff relied upon two cases, namely, Garbe v. Halloran, 150 Ohio St., 476, 83 N. E (2d), 217; and Cleveland Ry. Co. v. Heller, 15 Ohio App., 346.

In the instant case, the plaintiff contends that the authorities upon which the Court of Appeals of the Second Appellate District relied as well as Seabold v. City of Dayton, supra, are in direct conflict with the case of Wery v. Seff, 136 Ohio St., 307, 25 N. E. (2d), 692. The second, third, fourth, and fifth paragraphs of the syllabus in that case are as follows:

“2. The vioiation of an ordinance making it unlawful for the owner of a motor vehicle to permit a person under the age of sixteen years to operate such vehicle upon any thoroughfare of the municipality constitutes negligence as a matter of law.

“3. A parent violating such ordinance by placing his automobile in sole charge of his child, becomes answerable in damages on the basis of his culpability in affording the child the opportunity of inflicting harm, where injury to a third person on a street of the municipality follows as a direct result of the careless operation thereof.

“4. In the event of injury to a third person under such circumstances, liability of the parent and child is not only primary but joint and several, and both may be joined as parties defendant in an action for damages on account of the injury.

“5. When two or more persons, under circumstances creating primary accountability, directly produce a single, indivisible injury by their concurrent negligence, they are jointly and severally liable, even though there is no common duty, common design or concerted action.”

The defendant company on the other hand contends that the case of Stark County Agricultural Society v. Brenner, 122 Ohio St., 560, 172 N. E., 659, still states the law applicable where defendants joined in an action owed different “degrees of care” to the plaintiff, and that although Wery v. Seff, supra, may be considered as an authority for the rule that it is not necessary now to show joint or concerted action in order to permit joinder if the negligence of defendants joined in an action is concurrent, still the requirement that the degrees of care must also be identical is the law under Agricultural Society v. Brenner, supra. In other words, the contention of the defendant company is that the third paragraph of the syllabus in the Agricultural Society case has not been completely overruled by the fifth paragraph of the syllabus of Wery v. Seff, supra, and that that paragraph may be still considered as law to the extent that in order to permit joinder of defendants it must appear that “the. want of care of each is of the same character as the want of care of the other,” although the defendant company still clings to the terminology, “degrees of care.” Defendant company seeks to reinforce this position by pointing out that the degrees of care of the defendants involved in Wery v. Seff were identical,, and that the Supreme Court in the fifth paragraph of the syllabus did not specifically refer to the third paragraph of the syllabus of Stark County Agricultural Society v. Brenner or state that a requirement of like character was no longer necessary for joinder.

The first contention of the company that Wery v. Seff involved defendants obligated by identical “degrees of care” will be passed for the moment.

As to the second contention that Stark County Agricultural Society v. Brenner is not specifically overmied in the syllabus in Wery v. Seff i which of course is a fact), it appears from an examination of the Agricultural Society case that the third paragraph of the syllabus as well as that portion of the opinion on page 574 consists of obiter dicta and, therefore, required scant attention by a court later considering such case as an authority. 11 Ohio Jurisprudence. 772, “Courts,” Section 123. In the opinion in the Agricultural Society case, Judge Marshall stated, on page 574:

“Even if there were negligence on the part of the agricultural society, its want of care must be of a different character from that charged against DeMichele. DeMichele is liable, if at all, for his negligence in leaving the explosive upon the fair grounds. The agricultural society is liable only if, knowing the existence of the explosive on the grounds, it failed to remove it.”

It appears also from this quotation that even in such obiter, and hence in the portion of the syllabus predicated thereon, the court did not consider ‘‘degrees of care,” but rather merely the character of care required of joined defendants. In any event, in view of the attitude of the court toward the merits of the case and the absence of negligence by the agricultural society, it was entirely unnecessary to pass upon the subject matter of the third paragraph of the syllabus.

At this point it seems appropriate, however, to consider what lias been said concerning “degrees of care.”

In 29 Ohio Jurisprudence, 408, “Negligence,” Section 26, it is stated:

“A classification of care into degrees is subject to the same criticism as a classification of negligence into degrees. In general, although exceptions apparently exist, the courts of Ohio have not differentiated as to the degree of care in an action for damages for a tort, the rule being that an individual is obligated to exercise ordinary care. What constitutes ordinary care necessarily varies with the facts and circumstances of each particular case. However, while the amount of care required may be different under various conditions, the degree required is the same, namely, that of ordinary care under ail the circumstances. In other words, the amount of care exacted in specific cases may increase or diminish accoiding to the circumstances, but the standard does not change. While the language of the Ohio cases occasionally appears to be inconsistent with this outlook, the underlying philosophy of Ohio negligence law is in accord with it. For example, it is asserted that the duty of a common carrier of passengers, under most circumstances, is to exercise the highest degree of care for their safety. This ‘highest degree’ of care, however, may well be regarded as but ‘ordinary’ care under the circumstances, the carrier-passenger relationship constituting one of the most significant circumstances.’- See, also, 29 Ohio Jurisprudence, 400, “Negligence,” Section 20.

Now, if the same character of care is required, then it may be safely concluded that few, if any, cases would arise where such character of care w< uld be identical. Certainly, the several characters of care involved in Wery v. Seff were no more similar than those involved in Stark County Agricultural Society v. Brenner. The former case involved the violation of wholly dissimilar city ordinances by the defendants; the second case involved an obligation on the part of DeMichele not to leave an explosive on the fair grounds and an obligation on the part of the agricultural society not to leave it on the fair grounds after notice of its existence thereon.

The defendant company cannot sustain its position by the assertion that in Wery v. Seff both defendants were charged with negligence per se. Even if such were the case, the description of negligence as per se does not refer to a differentiation of character or degree of care, but to the method of proof. In Swoboda v. Brown, 129 Ohio St., 512, 196 N. E., 274, the fourth paragraph of the syllabus is:

“The distinction between negligence and ‘negligence per se’ is the means and method of ascertainment. The former must be found by the jury from the facts, the conditions and circumstances disclosed by the evidence; the latter is-a violation of a specific requirement of law or ordinance, the only fact for determination by thé: jury being the commission or omission of the specific act inhibited or required.”

Defendant company refers to a statement of Judge Zimmerman in Wery v. Seff, supra, at page 312, as follows:

“Concerning this case [Agricultural Society v. Bren■ner] it is submitted that the judgmem of reversal was quite proper, but that the general proposition of law contained in the third paragraph of the syllabus, to the effect that tort-feasors may be joined only when ■they have acted in concert in the execution of a common purpose and when their negligence is of the same •character, is too narrowly stated. ‘Joint Torts and Several Liability’ (Prosser), 25 California Law Review 413, 432. Boyd v. Watts, 27 Ohio St., 259, 269; Covington Transfer Co. v. Kelly, 36 Ohio St., 86, 90, 38 Am. Rep., 558.”

The last case cited by Judge Zimmerman is of peculiar interest It involved an action by a passenger on a street railway car, who was injured when such car of a defendant collided with a wagon of a codefendant in Cincinnati, Ohio. In the opinion in Covington Transfer Co. v. Kelly, 36 Ohio St., 86, 38 Am. Rep., 558, it is stated:

“The exact question presented by this record, as we understand the bill Of exceptions, arises upon the fact assumed in the request to charge- and in the charge as given to the jury, that the wrongful acts of -the defendants below, the; railroad company and the transfer company, were not only concurrent in point of time and place, but in such manner that the wrongful act of each was a direct and proximate cotirse [sic] of the injury complained of by the pk.intiff; and this being so, it matters not whether the act of each, without the concurrence of the other, would have produced the injury, br, that the negligence of neither would have caused it without such concurrence; so that upon genera] principles ánd reason both or either ought to make compensation therefor. The general rule undoubtedly is, that where damage is caused by the joint or concurrent wrongful acts of two or more persons, they may be prosecuted therefor jointly or severally.” And, again, on page 93, it is stated:

“But, however this may be, we are unanimous in the opinion that for a personal injury to a passenger, who is himself without fault, occasioned by the joint and concurring negligence of the carrier and another person, there is', no sound principle of law which precludes the injured party from, seeking redress from both or either c-f the wrong-doers.”

• The rule in Wery v. Seff is reaffirmed in Gurbe v. Halloran, 150 Ohio St., 476, 83 N. E. (2d), 217.

Considerations of reason and justice do not tend to support the position of the defendant company. If Walker, the operator of the truck which collided with the streetcar in the instant case, complained about being associated with a codefendant, who, by reason of the circumstances in this case, was required to use more care toward its passenger than he, Walker, was required to use in the operation of his truck, a court, if the law were not fixed as it is, might be inclined to consider some possible prejudice as to him in being so associated with such codefendant. But how the railway company in the present action can so claim any possible prejudice is entirely beyond conception.

. It is the conclusion of this court that the judgment of the trial court in each of the cases must be reversed and the causes remanded to such court, with instructions to overrule the demurrer in each case.

Judgments reversed.

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


author: Fess, J.

text:
    Ulrich, Appellant, v. McDonough, Appellee.

      (No. 628
    Decided April 10, 1950.)

      Messrs. Smith S Lehrer, for appellant.

      Messrs. Flynn, Py & Kruse, for appellee.
   Fess, J.

This is an appeal on questions of law from a judgment entered upon a verdict for the defendant, returned by direction of the court at the conclusion of the evidence. Subsequent to the trial, the defendant died and the action was revived in the name of his administrator as defendant.

Plaintiff brought the action to recover for injuries sustained as a result of a collision, and alleged in his petition, in substance, that as he was crossing East Monroe street at its intersection with Perry street in the city of Sandusky, the automobile of defendant, proceeding in an easterly direction, struck the plaintiff, resulting in his injury. He alleged further that defendant failed to exercise ordinary care to avoid striking plaintiff, who was a pedestrian rightfully on the crosswalk within the intersection, in failing to have his automobile under proper control, in maintaining an improper lookout, in driving his automobile with defective lights, and in failing to accord plaintiff the right of way as a pedestrian, as provided by an ordinance of the city of Sandusky.

In his answer, instead of entering a general denial, defendant alleged that plaintiff agreed to compromise and settle the disputed claim of the plaintiff for the sum of $296.35, and in consideration of the payment thereof the plaintiff in writing released and discharged the defendant from the claims set forth in the petition. The release is set forth verbatim in the answer.

In his reply, plaintiff denied that he agreed to settle and dismiss, his claim and alleged that two checks were received by plaintiff at his home — one payable to plaintiff and the hospital and the other to plaintiff and his doctor; that plaintiff has the checks in his possession; that he does not know the source or purpose of them; and that if the checks are supposed to be evidence of consideration for a purported release, he is ready, willing and able to tender the same to the proper owners thereof. Plaintiff alleged further, that on February 18, 1948, an insurance adjuster called at his home and a paper was placed before him which he could not read because of the condition of his eyes; that he signed the paper with the understanding that it was merely for the payment of bills and not for a release or payment in full of any claims which he may have had for damages; and that any purported release in possession of any person or company is void.

The case proceeded to trial upon the above pleadings but apparently was tried as if the allegations of the petition were denied.

Section 11329, General Code, provides in part:

“Excepting averments as to value, or the amount of damage, for the purposes of an action, every material allegation of a petition, not controverted by the answer, and every material allegation of new matter in an answer not controverted by the reply, shall be taken as true.”

Under the state of the pleadings in this case the allegations of the petition with respect to the negligence of the defendant should- have been taken as true, and it was unnecessary for plaintiff to produce evidence in support of such allegations. But plaintiff elected to prove such allegations as well as those relating to damages.

When an issue is submitted to the jury as if the unadmitted allegations of a pleading had been properly denied, a demand for judgment on the pleadings after each party has introduced its evidence comes too late. Woodward v. Sloan, 27 Ohio St., 592; Lovell v. Wentworth, 39 Ohio St., 614; Franc v. Nirdlinger, 41 Ohio St., 298, 301; City of Tiffin v. Shawhan, 43 Ohio St, 178, 183, 1 N. E., 581; Cincinnati Gas & Electric Co. v. Johnston, 76 Ohio St., 119, 123, 81 N. E., 155; Heller v. Standard Accident Ins. Co., 118 Ohio St., 237, 241, 160 N. E., 707; Shoemaker v. Standard Oil Co., 135 Ohio St., 262, 20 N. E. (2d), 520.

At the conclusion of the taking of testimony, on motion of the defendant, the. court directed the jury to return its verdict on behalf of the defendant. In instructing the jury, the court did not indicate the ground upon which the motion was granted. Upon the record, it could possibly have been granted (1) for failure of plaintiff’s evidence to disclose any negligence on the part of the defendant; (2) because plaintiff’s action is barred by reason of the release; or (3) that the evidence disclosed plaintiff guilty of negligence as á . matter of law proximately contributing to his injury.

1. A review of the testimony indicates some evidence to support plaintiff’s claim that the defendant was negligent so that the direction of the verdict can not be supported upon this ground.

2. As to the release, on cross-examination plaintiff admitted that he signed the release in the presence of his brother-in-law who witnessed the instrument but was not called to testify at the trial. Plaintiff also testified that when he signed the release he thought he was settling for the doctor and hospital bills only. Upon receipt of the checks, plaintiff delivered them to his attorney. At the trial, upon cross-examination of the local agent of the insurance company, counsel for plaintiff asked the agent “At this time, if I tender you these checks, will you accept them as the authorized agent?” Defendant’s objection to this question was sustained. No further tender was made other than the statement of plaintiff’s counsel, “if you want them we will give them to you.”

The insurance adjuster testified that on the evening of February 18, 1948, he told plaintiff that there was no liability but that “if he was going to sign a release, the condition” would be the payment of the doctor and hospital bills by way of settlement. The adjuster said plaintiff had his glasses on when he, the adjuster, handed plaintiff the release but the adjuster was not positive as to whether plaintiff read it before he signed it. He did say that plaintiff had every opportunity to read it, if he did not.

If otherwise valid, the release became effective as a legal document when it was signed by the plaintiff. The failure of the plaintiff to accept the checks for the amount of the consideration set forth in the re- . lease did not invalidate it. A question is presented, however, as to whether the averments of the reply and evidence in support thereof are of such a nature as to tend to show that the release was void.

The leading case in Ohio on the subject of releases -in settlement of personal injuries is Perry v. M. O’Neil & Co., 78 Ohio St., 200, 85 N. E., 41, holding:

“1. A release of a cause of action for damages for personal injuries, that is void, is not a bar to such an action, and the plaintiff may, if it is set up by answer as a bar to his right of action, by reply aver the facts that make it void; but if it is not void, but only voidable, he can not maintain his action until the release is set aside.

“2. A cause of action for the cancellation of a release of damages for personal injuries and a cause of action for damages for such injuries may be united in the same petition.

“3. If the execution and delivery of the release are admitted, the burden of proving it void is upon the releasor. ’ ’

It will be noted that if the release is voidable, the action for personal injuries can not be maintained until the release is set aside, but that the action for cancellation may be united with the action for personal injuries. In such case, the equitable cause of action for cancellation is tried by the court. The equitable action should be tried and determined by the court prior to the trial of the personal injury action, but there is no abuse of discretion on the part of the trial judge in trying the two causes of action together. The determination of the equitable action is for the court, however, unless it elects to submit the matter to the jury for an advisory finding. Flynn v. Sharon Steel Corp., 142 Ohio St., 145, 50 N. E. (2d), 319.

If the allegations of the reply and the evidence in support thereof disclose that the release is void, a question of fact is presented for the jury under appropriate instructions of the court, and such instructions should include the effect of the consideration paid under the release, by way of mitigation or reduction of damages. The foregoing principle was not carried into the syllabus of the Perry case, supra, but is revealed by the authorities in other jurisdictions referred to in the opinion. In Flynn v. Sharon Steel Corp., supra, the third, fourth, and fifth paragraphs of the syllabus read as follows:

* “3. Ln an action for persónál injury where a release is pleaded in the answer, and the averments of the reply are of facts, which, if proven, would render the release void, such cause may proceed to trial and judgment without first determining the validity of the release.

“4. In such action the court in its discretion may submit an issue of fraud, as to such release, to the jury under proper instructions.

“5. In an action wherein an issue of fraud is submitted to the jury, its finding in respect thereto is not binding upon the court.” (Italics supplied.)

In the Flynn case, the averments of the reply set forth facts indicating the release was void. The trial court submitted the issue of the release to the jury and the judgment was affirmed. In the light of the facts in that case, the syllabus should not be construed as holding that the issues relating to a void release are to be determined by the court and not the jury. But when the release is not void but voidable, a party attacking it must seek its cancellation in a separate cause of action which is tried by the court without the intervention of a jury.

Whether a release is void or voidable depends on whether it was obtained by fraud in the factum or in the inducement. Fraud in the factum exists when there is fraud touching the execution of the instrument, such as misreading, the surreptitious substitution of one paper for another, or obtaining by some trick or device an instrument which the party did not intend to give. George v. Tate, 102 U. S., 564, 26 L. Ed., 232, referred to in Perry v. M. O’Neil & Co., supra. Where there is fraud in the procurement or execution of the release, it is void, and its validity may be attacked without restoration or tender, in the absence of a meeting of the minds, as where there was no knowledge on the part of the releasor of the nature of the instrument,, or no intention on his part to sign a release or such a release as the one executed. 53 Corpus Juris, 1233, 1235, Sections 50, 51, and 52; Picklesimer v. Baltimore & Ohio Rd. Co., 151 Ohio St., 1, 84 N. E. (2d), 214.

In Flynn v. Sharon Steel Corp., supra, fraud as to the nature of the instrument signed was proven. The opinion quotes from 19 Ohio Jurisprudence, 332, Section 18, as follows:

“ ‘On the other hand, where there is fraud in the execution such as * * * misrepresentation of the nature of the instrument signed, the transaction is wholly void and ineffective.’ ”

In the instant case the reply set forth allegations which, if shown by clear and convincing proof, wouid establish a void release. The evidence relating to the release is conflicting, but regarding the testimony of the plaintiff as true, then the release was void upon the ground of fraud as to the nature of the instrument. This evidence of the plaintiff therefore presented a question of fact for the jury and the court was not justified in directing a verdict for the defendant upon the ground that the release barred recovery.

3. With regard to the contributory negligence of the plaintiff, the facts of the case are also somewhat unusual in that a distinct odor of alcohol emanates from the evidence tendered on behalf of each party. The collision occurred between two and three o’clock a. m. on January 9, 1948. Plaintiff testified that he left his home in the afternoon of January 8th, went downtown, bought some tobacco and on his return home about six o’clock p. m. “changed his mind.” He recalls nothing further until be came to his senses in the hospital the next morning. He said:

•‘When I got there [nearby his home] 1 changed my mind. That is all I know, that afternoon, and I wasn’t drinking.

“Q. Do you recall being struck by an automobile, or anything? A. I can’t recall anything.

‘‘Q. What is the one thing that brings to your mind the fact that you were involved in an accident? A. I didn’t know that 1 even got hit until 1 came to in the hospital.”

Upon cross-examination, plaintiff recalled the details of his trip downtown and back to'a point near his home, but could recall no place where he could have been from six o’clock p. m. until three o’clock a. m. the following day. The only eye witness to the collision who testified was the defendant, who was called by plaintiff for dross-examination. Defendant did not take the stand on his own behalf for reasons best known to his counsel.

Upon cross-examination defendant admitted that within an hour prior to the collision he had been stopped by police officers who warned him that his headlights were too dim, and that he had been to several bars and had imbibed four or five bottles of beer. He testified:

“A. I went east on Monroe street, and down to Hancock street, and into Huron avenue and down there.

“Q. Did you hit Mr. Ulrich with your car? A. No, I didn’t. He fell into my car. He was going this way (indicating) * * *.

“Q. I asked you if your car struck Mr. Ulrich? A. No, he fell on the fender.

“Q. He fell on the fender? A. Yes, he struck my car instead of my car striking him.

“Q. Where were you when he struck your car? A. Well, he fell off the curb.”

Upon further cross-examination of defendant, which consists of three additional pages of the record, his answers are wholly unintelligible to a reviewing court because they were accompanied by gestures which do ■ not appear in the record. Where there is conflicting evidence and inconsistent answers by the same witness, it is the function of the jury and not the court to determine which of several inconsistent answers are more probably true. Painesville Utopia Theatre Co. v. Lautermilch, 118 Ohio St., 167, 172, 160 N. E., 683. But upon this portion of the record the answers of the defendant, from which it may be claimed that an inference may be drawn that plaintiff did not stumble or fall into the side of defendant’s car, are so confusing and unintelligible that a reviewing court can not find that such answers are either inconsistent or contradictory to defendant’s previous positive testimony that plaintiff fell into his car. The trial court had the opportunity to observe the gestures of the defendant and from aught the record reveals, the answers may have been consistent with his previous testimony.

Each of the two officers who reached the scene shortly after the accident said the plaintiff was lying in the street in front of defendant’s automobile which was stopped on defendant’s lefthand side of his line of travel; that defendant had liquor on his breath, but his speech was coherent; and that after a questioning at the police station he was released. One of the officers said also that plaintiff had liquor on his breath.

From the positive testimony of the defendant on cross-examination, plaintiff fell into the side of defendant’s car and, in the absence of explanation, was thereby charged with negligence as a matter of law proximately contributing to his injury. Rutter v. Norman (La. 1939), 189 So., 609.

Since plaintiff elected to introduce evidence relating to the claimed acta of negligence of the defendant notwithstanding the absence of denial thereof by defendant, and in view of the testimony of the defendant, the action of the court in directing the jury to return a verdict on his behalf was justified.

Judgment affirmed.

Conn'and Carenter, JJ., concur.


author: Doyle, J.

text:
    Warren, Appellant, v. Brenner et al., Appellees.

      (No. 1220
    Decided December 13, 1950.)

      Mr. Dan K. Cook, for appellant.

      Mr. Charles II. Lampen and Messrs. Keep S Scholz, for appellees Morris Brenner and Sophia Brenner.

      Mr. Harry W. Wagner, for appellee Alice J. Robinson.
   Doyle, J.

The facts relevant to this inquiry into the right of Morris Brenner, the owner in fee of a business block in. the village of Wellington, Ohio, to use a stairway in an adjacent business block, owned in fee by one Silvia L. Warren, in connection with the use of the second story of his (Brenner’s) building, are substantially as follows:

In the year 1901, W. W. Harvey was the owner in fee of the Warren building-; E. F. Robinson was a prospective purchaser of an undivided interest in the Brenner property. On the 18th day of June, 1901, they entered into the following written agreement (approximately a month prior to the date upon which Robinson acquired an undivided half interest in the fee): . -

“Lease Agreement

“This is to certify that on the 18th day of June, A. D. 1901, I, W. W. Harvey of Cleveland, Ohio, have for the consideration of one hundred and seventy dollars received to my full satisfaction of E. F. Robinson of Wellington, Ohio, have given to said Robinson the right and privilege to use the stairway leading up from the sidewalk to the second story of my brick building situated on the south side of West Main Street in the Village of Wellington, Lorain County, Ohio, and that I have also given said Robinson the right and privilege to make an opening at the top of the said stairway, said opening to be filled with a wood door, and the wood door to be covered by an iron door, said doors to be closed each and every night. Further, that in case said building and stairway be destroyed by fire or; otherwise and said building be rebuilt then ui that event this lease and agreement shall be in force during the lifetime of said stairway and building.

"“The said E. F. Robinson agrees to put the said stairway in order, and be to one-half of the expense in the future of keeping the stairway in good order and condition at all times.

“It is understood that this lease shall hold good during the life of said brick building and stairway.

“In witness whereof we hereunto set our hands'and sfeals at Wellington, Ohio, the day and year first above written.

•“(Signed) W. W. Harvey

“(Signed) E. F. Robinson

Signed, sealed and delivered in the presence of:

“(Signed) Fred Abbott

“(Signed) R, N. Goodwin” .

(Duly acknowledged by W. W. Harvey and E. F. Robinson.)

The instrument was, as above shown, executed with the statutory formalities of a deed.

Approximately a month after the date of the instrument (June 18, 1901), the Brenner property was conveyed to E. F. Robinson and his wife as tenants in common. It. also appears that the agreement was acknowledged on October 5, 1906, and later recorded on October 23, 1906, in the records of Lorain county.

Subsequently, W. W. Harvey disposed of the fee simple title to his property, and it is now owned by Silvia L. Warren, the appellant herein. The adjacent property was owned in fee from 1901 by E. F. Robinson and his wife as tenants in common until the said E. F. Robinson’s death in 1944, at which time the entire fee became vested in his wife. The said wife then conveyed to Morris Brenner, one of the defendants below and one of the appellees herein.

The stairway had been used under the agreement to accommodate the Robinsons and their tenants in the use of their second story for more than forty years; it is now being used by the grantee, Brenner, for the same purpose. Silvia Warren now seeks a judicial declaration that her stairway can no longer be used as a matter of legal right by Brenner or his tenants as a means of access to the second floor of his building. And this she seeks by way of a declaratory judgment, in this appeal on questions of law and fact from the Court of Common Pleas of Lorain County.

The legal snarl presented by the pleadings and the evidence challenges the professional interest of a court, and we approach it with an appreciation of tñe. difficulties which often exist in respect to the application of many of the rules which determine the quantum of estates to a given set of facts.

1. Estates may be said to fall primarily into “freehold estates” and “estates less than freehold.” Freehold estates are divided into (a) estates of inheritanee, which pass to the owners’ heirs, and (b) estates not of inheritance. Estates less than freehold include, inter alia, estates for fixed periods, the terminations of which are capable of ascertainment from the beginning (not life estates, however; such estates are freehold estates not of inheritance).

In this state prior to the year 1925, the use of the word “heirs” was necessary to create a fee simple by conveyance inter vivos. The word “heirs” was recognized as a word of limitation and not of purchase.

2. All easements appurtenant are estates in real property; therefore, freehold estates and estates less than freehold may exist in easements.

The essential qualities of easements, as stated by many distinguished members of the profession, are these: First, they are incorporeal; second, they are imposed upon corporeal property; third, they confer no right to a participation in the profits arising from such property; fourth, they are imposed for the benefit of corporeal property; fifth, there must be two distinct tenements — the dominant, to which the right belongs, and the servient, upon which the obligation rests.

An easement, although it is imposed on corporeal property, carries no corporeal interest in or right to the land. It is an invisible and intangible right and interest, which may be created by grant or agreement, conferring upon the grantee some lawful use out of or from the estate of another.

3. In partial summary and somewhat repetitious, it may bo said that an easement appurtenenat always implies an interest in the land, or buildings affixed thereto, and constitutes a part of the real property, over or in which it is to be enjoyed. The interest of an easement may be freehold or chattel, according to its duration. The word “freehold” is used to mean any estate of inheritance or for life, and may be corporeal or incorporeal, existing in or arising from real property. The word “chattel” is used to mean an estate less than a freehold; for instance, an estate for years, although it may last for a greater period than the life of the grantee.

This brings us to the circumstances of the case before us.

Wo first observe that words of inheritance are not employed in the instrument. Second, the estate granted was to be conditional or qualified — i. e., conditional at all times upon the life of the building and stairway as it was, or, if destroyed by fire or otherwise, during their “life” after being rebuilt.

Estates of “special limitation” are well known to the student. Such estates- may continue for the natural duration of estates in fee simple, for life or for years, or they may terminate before the end of such periods, owing to the happening of a contingency named; and such conditions may be annexed to every species of estate or interest in real property, including easements appurtenant.

While such estates resemble somewhat estates on condition subsequent, there is a fundamental difference. In an estate on condition subsequent, the words which provide for the termination of the estate on a contingency are not regarded as a part of the original limitation of the estate, but are considered to provide for the cutting off of the estate before its proper termination; while in an estate on special limitation, the words of contingency are regarded as a part of the limitation itself — they do not cut off an estate previously granted but merely name an alternative limit to the duration of the estate.

A critical analysis of the written agreement before us compels the conclusion, we think, that an estate of special limitation was created. Without words of inheritance, it could not, at the time of its origin, create a freehold estate of inheritance. In the absence of such words of limitation, there was created at the' most a life estate in the grantee, Robinson, whieh was alternatively limited to the occurrence of an- uncertain event which might have happened during the lifetime of the grantee, and thus “specially” terminated his estate, with the right of possession immediately reverting to the grantor as a matter of law.

In the preceding paragraphs we speak only of an easement appurtenant. Such an easement, we conclude, existed under the within agreement. The language of the instrument and the attendant facts indicate that it was created for the benefit of the grantee’s estate and was not intended to be a mere personal right to the grantee. Under many circumstances, whether an easement is in gross or appurtenant to some other estate, may be determined by the relation of the easement to such estate, or by the absence of any such relation. It is a rule of general application that an easement is seldom considered to be in gross when it can be fairly construed to be appurtenant to some estate.

Thus far, we have assumed that an easement appurtenant may be created by contract and grant, when the grantee is the owner in fee or becomes the owner in fee of an undivided half interest in the dominant estate. It is established that a tenant in common cannot grant an easement which will be binding, even as to his own interest, as against a subsequent grantee of all the tenants in common. We have assumed, for the purposes of this case, that the reverse is not so; that it is possible for an easement appurtenant to be created by the owner in fee of the entire servient estate for the benefit of a dominant estate by way of contract and grant, when the grantee is or becomes only a tenant in common in the fee of the dominant estate.

If our assumptions in the foregoing paragraph are not basically sound (we think they are), then we must conclude that there was created, by the instrument, only an easement in gross, or a license. If it be classified as an easement in gross, it constituted merely a personal interest in the land of the grantor; it became so attached to the person of the grantee that it could not exist except as so attached. And of course, it would terminate upon the death of the grantee.

If we classify the right given as a license, it likewise would have terminated with the death of the grantee. We are of the opinion, however, that under no circumstances may the right granted be classified as a license, because the use granted was more than a mere permission or personal privilege to use the stairway. A license passes no property or interest in real estate, while, as stated above, an easement implies an interest in real property. It is of the essence of a license that it is revocable at the will of the possessor of the land. Certainly, this legal relation was not bargained for by the parties under their written agreement. But if it be classified as a license, it terminated upon the death of the licensee.

We have further examined the instrument in the light of the relationship of landlord and tenant. While the distinction between a lease, a license, and an easement is generally plain, it is sometimes hard to classify.

Estates less than freehold are sometimes called leasehold estates, and the instrument of creation is generally called a lease. Such estates may be for a fixed period of time, the termination of which is either on a certain date or at a time which is capable of ascertainment from the beginning. They are classified as personal property. A purported lease, however, which attempts to create an estate less than a freehold by providing a tenancy to endure until a particular event occurs, the time of which occurrence cannot be ascertained beforehand, does not create an estate for years. If it did, a lease for life could create an estate for years, since as soon as the life ceases, the duration of the tenancy is known.

Under these requirements, it is plain that there was not created a leasehold interest in the property. As heretofore shown, it was not a lease for years. Nor was it for life nor one of perpetual duration.

It is the conclusion, therefore, of this court that the instrument under consideration created at the most a life estate of special limitation in an easement appurtenant, and that it terminated in 1944, when E. F. Robinson died. This being our judgment, it follows that Brenner no longer has a legal right to the use of the Warren stairway.

. A decree will be drawn for the appellant.

Decree for appellant. ■

Stevens, P. J., and Hunsicker, J., concur.


author: Hildebrant, P. J.

text:
    The State, ex rel. Freshcorn, v. Board of Education of Blanchester Local School District.

      (No. 166
    Decided May 28, 1951.)

      Messrs. Paxton & Seasongood, Mr. Lester A. Jaffe, and Mr. William, T. Bahlman, Jr., for relator.

      Mr. G. L. Schilling and Messrs. Dargusch, Caren, Greek é King, for respondent.
   Hildebrant, P. J.

Relator, a teacher employed under a continuing contract as local school head, was transferred from his administrative position to that of teacher with classroom duties only, with a consequent reduction in salary, by resolution of the respondent board unanimously adopted at a special meeting on April 22, 1950, pursuant to the provisions of Section 4842-9, General Code, the transfer being effective for the school year beginning September 1950.

By invoking the original jurisdiction of this court in mandamus, relator seeks to compel the respondent to restore him to his former administrative status as local school head, and requests a complete recoupment of salary losses occasioned by the transfer.

His claims are that the minutes of the special meeting of the board held on April 22, 1950, do not disclose that the resolution of transfer was adopted upon the recommendation of the county superintendent of schools, as required by the statute, and that, in any event, under his continuing contract the board had no power to fix his salary schedule below that of the preceding year.

The evidence before the court is in the form of a stipulation between the parties and the depositions of relator and two members of respondent board.

Section 4842-9, General Code, reads:

“Each board of education shall cause notice to be given annually not later than July 1 to each teacher who holds a contract valid for the succeeding school year, as to the salary to be paid such teacher during such year. Such salary shall not be lower than the salary paid during the preceding school year unless such reduction be a part of a uniform plan affecting the entire district. But nothing herein shall prevent increases of salary after the board’s annual notice has been given.

“A teacher employed as assistant superintendent, principal, supervisor, or other administrative head may be transferred to a lesser administrative position or to a teaching position upon recommendation of the superintendent of schools and approval of the board of education. A teacher employed as superintendent may be transferred to another position by a majority vote of the board of education. In no event shall the salary of any teacher so transferred be fixed at a rate lower than the highest paid in the district for the type of position to other teachers with similar training and experience. ’ ’

It is stipulated that no uniform plan of salary reduction affecting the entire district was involved, and that the minutes of the meeting of April 22, 1950, do not disclose any recommendation of transfer by the county superintendent of schools, required by the statute as a condition precedent to action by the board. It Is, however, stipulated that a written recommendation of transfer by the county superintendent is in the files of respondent and remained unopened in the possession of the board at all times during the meeting of April 22, 1950. The depositions show that the county superintendent was present in person at the meeting and made a formal oral recommendation of the transfer, upon which the board unanimously adopted the resolution of transfer. It is obvious that the written recommendation remained unopened because the county superintendent was there in person and orally made the recommendation which is not required by the statute to be in writing. The fact is that the board did have the recommendation required by law, upon which to adopt the resolution of transfer, and the omission of reference thereto in the minutes may be supplied orally to make that record speak the truth.

, 35 Ohio Jurisprudence, 26, Section 21, states:

“The general rule that records of inferior boards are not conclusive, but are presumptive only, is applicable to records of school boards. Thus, where ihe record of a school board shows that a meeting was held in pursuance of an adjournment, the presumption is, in the absence of all proof to the contrary, that the meeting was so held. The rule as to supplying omissions in the record by parol has been applied to school boards. Thus, where two school directors met at the usual place of holding meetings, at a regularly called meeting, and, acting officially, agreed with a qualified teacher to hire him to teach the school of said subdistrict for a certain time at an agreed compensation, but neither the clerk of the board nor said directors made any entry in the records of said subdistrict of their proceedings, such teacher ought not to and cannot be prejudiced by their omission or ministerial nonfeasance. He may prove, if he can do so, by competent parol testimony, such official action of said board.” See, also, Dixon v. Subdistrict No. 5, 3 C. C., 517, 2 C. D., 298.

It is stated in 35 Ohio Jurisprudence, 27, Section 24:

‘‘It is axiomatic that a record must speak the truth. When it does not do so, through inadvertence or mistake, those who have the authority and power may correct the record to make it conform to the truth.”

The burden of proving a clear legal right to the extraordinary relief sought rests upon the relator, and the evidence not only fails to establish that the board passed the transfer resolution without having a prior recommendation from the county superintendent, but, on the contrary, discloses beyond all doubt that both an oral and a written recommendation were made. It is, therefore, clear that relator has failed to meet the burden of proof required to compel restoration to his former position as local school head.

Relator contends that even if the transfer was made according to law the salary reduction was contrary to Section 4842-9, General Code, and the terms of his continuing contract. He cites opinions of the Attorney Genera] of Ohio which seemingly sustain that contention. This court is not bound by such opinions and, regardless of factual distinctions which might be pointed out, is not in accord therewith.

Relator’s continuing contract, the terms of which are stipulated herein, is as follows:

“An agreement entered into between the Blanchester Local School Board of Education, Clinton county, Ohio, and L. D. Freshcorn as local school head beginning September , 1947, and continuing in full force and effect until the said local school head resigns, elects to retire, or is retired pursuant to Section 7896-34 of the General Code or until this contract is terminated or suspended as provided by law. Said local school head agrees to remain in the district and further agrees to abide by and maintain the rules and regulations adopted by said board of education for the government of the schools.

“In full consideration for such services the Blanchester Local Board of Education agrees to pay the said L. D. Freshcorn the sum of four thousand and ..........no/100 dollars ($4,000) for the school year 1947-48, and such sums for each subsequent year as may be established by said board in accordance with Section 7690-3.

“Entered into at Blanchester, Ohio, this 9th dav of July, 1947.

“D. C. Spence President

‘ ‘ Mary Schnapp Clerk

“L. D. Freshcorn Teacher.”

It is a familiar rule that the pertinent statutes in effect at the time a contract is executed are to be read into it. In addition, by its very terms, relator’s contract is subject to the provisions of law consisting of all applicable statutes in the Teachers’ Tenure Act, which must be construed in pari materia.

Section 4842-7, General Code, provides for the assignment of additional duties beyond regular classroom duties and supplemental salary therefor and for discontinuance of such salary increase upon relief from the additional duties. This is a general section and must be read into relator’s continuing contract.

The first paragraph of Section 4842-9, General Code, in scope, applies to teachers generally and prevents reduction of salary unless in accord with a uniform plan not present hero. The second paragraph applies, not to teachers generally, but specifically to teachers employed as administrative heads and specifically provides for their transfer and contemplates and limits a salary reduction to the highest rate paid by the teaching position to which transfer is made.

By familiar rule of statutory construction, this special provision must control over the general one, which appears to be perfectly consistent with the provisions of Section 4842-7, General Code.

It, therefore, appears that relator has failed to meet the burden of proof required to sustain his contention of an illegal reduction of salary.

The writ of mandamus prayed for is hereby denied, and the costs of this action assessed against the relator.

Writ denied.

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


author: Guernsey, J. Jackson, J.,

text:
    Kuhn, Appellee, v. Bader, Appellant, et al.
    (No. 489
    Decided March 17, 1951.)

      Messrs. Younger & Purdy and Messrs. Short do Dull, for appellee.

      Messrs. Myers db Myers and Mr. Robert TouVelle, for appellant.
   Guernsey, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Mercer County, in an action wherein the appellee, George Kuhn, was plaintiff and Lloyd Bader, the appellant, and Otto Murphy were defendants. Defendant Murphy did not appeal.

The action is for damages for personal injuries sustained by plaintiff and alleged to have been caused by the negligence of the defendants.

The material facts in evidence, as disclosed by the bill of exceptions, are as follows:

1. The defendant Lloyd Bader' is the owner and operator of Bader’s Used Parts and Pilling Station Lot located on the northeast corner of U. S. route 127 and Ohio route 219, some four miles south of Celina. Immediately north of the Bader place of business is the Willet farm, the barn on which is 2,000 feet north of the gasoline pumps of the Bader filling station. Immediately west of the Willet farm is a farm owned by Raymond A. Younger. Plaintiff lived on this farm and his father John Kuhn had been a tenant thereon for more than 20 years.

2. On June 15, 1946, the date this cause of action arose, the defendant Bader had two persons employed and working for him, namely, the defendant Murphy and Bader’s brother, Vernon. Late daring the afternoon of that day the defendants Bader and Murphy went to Coldwater on business and while there slopped at the Star Restaurant where they engaged in conversation with one Adkins. The general subject of this conversation was hunting and guns. The defendant Bader told Adkins that they were going to do some target practicing with a deer gun and invited him to join them, but Adkins was on a call. Upon returning from Coldwater, defendants Bader and Murphy, together with Vernon Bader, between 5:30 and 6 o’clock ■that evening, did shoot a deer gun on and over the above-mentioned premises of the defendant Bader. There is some conflict as to just how many times each shot, but a fair statement from the evidence would be. that each of the three shot at least twice.

3. Evidence introduced by plaintiff as to the direction in which the shots were fired was to the effect, that the defendants, when questioned on the Monday-following plaintiff’s injury, said they were shooting-in an easterly direction.

4. Defendant Bader’s testimony was to the effect that all the shots fired by himself, Vernon Bader, and-Murphy, except one fired by Murphy, were fired in an easterly direction to-ward a large pile of dirt and a big pile of gravel as a target. The pile of dirt was seven-, or eight feet high and the pile of gravel, which stood'1 between the persons shooting and the pile of dirt, was four- or five feet high. The pile of dirt was thrown-out of an excavation made for the basement of a house under construction and was approximately 42 feet-long.

5. The defendant Bader testified further that he did-not shoot any shells at any place other than a target,, but that there was one shot fired by Murphy other than at a target, and that he, Bader, then told Murphy that he did not want any more shooting in the air, and: made him quit.

6. Lester Ebright, a witness called by the defendant Bader, testified that in the fall after the shooting Mur phy, in his presence, talked to Clarence Kuhn, a brother of the plaintiff, and ‘ ‘ admitted shooting George.”

7. Clarence Kuhn, called as a witness by the plaintiff, testified that the actual words used by Murphy in the conversation were: “Clarence, I want you to tell your brother and your father that I am very sorry that this had to happen. * * * You know I don’t have-a cent to my name; and I can’t help in that way.”

8. Murphy, although present at the trial, did not testify.

9. Witnesses called by plaintiff, who had questioned the defendants following the injury to plaintiff, testified that Bader had said to them that “there were no shots fired, in the direction of the barn”; that “they didn’t shoot north”; that “they hadn't shot to the north”; that “none of them shot to the north”; and that Murphy, when questioned by them, answered in the same manner.

10. At the time this shooting was going on the plaintiff, together with the tenant on the Willet farm, Meyer, and three other neighbor boys were unloading baled hay in the barn on the Willet farm from a tractor-drawn trailer, the floor of the barn being about two feet off the ground. While working on this trailer the plaintiff was struck by a bullet which passed through his head. At the time, plaintiff was facing west and the bullet entered in front of his left ear and came out on the right side of his face in front of his right ear.

11. When plaintiff’s injuries were discovered ho was carried out of the barn to a water pump, after which Meyer got in his model A Ford and drove down to the Bader filling station to call a doctor. Opon leaving the barnyard Meyer had a blowout and drove the remaining 2,000 feet on a flat tire. On arriving at the Bader station, Meyer encountered defendant Bader, and they went into the station together, where Meyer used the telephone.

12. Shortly before Meyer drove up, Hubert Becker arrived at the Bader station, parked on the south side of the station and walked around to the north where he met the defendants together with Vernon Bader coming to the front of the station. At that time defendant Murphy had the gun in his hands. He gave it to Becker together with the last two shells he had, and Becker walked east to the back of the station where he fired the two shells into a pile of sand or clay which had been dug out of the basement for a house then under construction. Before Becker shot he noticed and heard Meyer drive up, noticing particularly the noise which his car made because of its flat tire.

13. After Becker fired the two shells he came around to the front of the station and got Lloyd Bader and Vincent Meyer in his car and started toward Celina. He let Meyer out at the barnyard gate and took Bader on in to Celina.

14. The gun which the defendants used was a 32 caliber, special Winchester rifle commonly known as a deer gun. The undisputed evidence showed that the cartridge used in this gun contained 32.6 grains of gun powder, whereas an ordinary 22 long cartridge contains only 3 grains; that this amount of powder generates 35,000 pounds pressure per square inch when exploded; and that a bullet fired from this gun travels 2,260 feet per second with a range of between two and three miles. The ballistics expert from the Ohio Bureau of Investigation and Identification, whose testimony was uncontradicted, testified that in order to trap a bullet from this gun it was necessary to put two additional bales of cotton in the nest, and that it was the highest powered gun he had tested at the bureau during his 15 years of experience.

15. The defendant admitted at the trial that plaintiff was seriously injured. The evidence showed serious, permanent, physical impairment. The evidence showed further that the plaintiff, a young man in his twenties, now suffers frequent headaches; that he has a constant ringing in his ears; that he has partially lost his sense of taste and smell; and that he has a certain amount of numbness in his face and on part of his tongue;

16. The shooting took place on Saturday. Later that evening deputy sheriffs Richard Meiring and John Wiley went to the Willet farm to make an investigation. They discovered a bullet hole in the south side of the barn ten feet and six inches above the ground in line with the place where the plaintiff was standing when shot. The board containing the bullet hole was introduced as plaintiff’s exhibit No. 1. Upon sighting through the bullet hole over the place where plaintiff was standing, investigators discovered that the bullet had lodged in the roof of a hen house 213 feet north of the barn. The bullet was recovered and introduced in evidence as plaintiff’s exhibit No. 2. By sighting from the place where the bullet was found through the hole in the barn made by it, the Bader filling station could'plainly be seen. Thereupon deputy sheriffs Meiring and Wiley went to the Bader filling station and talked to Vernon Bader who gave them a high-powered gun Known as a 30-40. Later that night defendant Lloyd Bader went to the office of the sheriff and told him that the gun used was not the 30-40 which the sheriff had but a Winchester which the defendant Murphy then had at his home in Celina. The next morning, Sunday, deputy Meiring went to Murphy’s home and obtained from him the 32 caliber Winchester rifle which was introduced in evidence as plaintiff’s exhibit No. 3.

17. On Monday morning sheriff Raudenbush, deputy sheriff Wiley, Earl Willet, whose wife owned the Willet farm, and Raymond A. Younger, owner of the adjoining farm on which plaintiff lived and who at that time was common pleas judge of Mercer county, went to the Bader filling station and there interviewed both defendants. Vernon Bader had left town and did not return until Friday when he was interviewed by W'alier Bernard, prosecuting attorney, deputy sheriff Wiley, and Raymond A. Younger. Before this action was commenced Vernon Bader was killed in an automobile accident and, therefore, he was not a party defendant in this case.

18. On Monday morning the gun and the bullet were taken by deputy sheriff Meiring to the Ohio Bureau of Investigation and Identification at London, where extensive tests were made by Fred Dengler, the chief investigator and gun identification expert of the bureau, and his chief assistant, both of whom testified at the trial. Dengler testified, among other things, that he had fired a number of test shots from the gun; that the markings upon the bullets were similar to the markings upon the bullet identified as plaintiff’s exhibit A; and that ballistic tests disclosed that the test shots had been fired from the same gun as plaintiff’s exhibit A.

The defendant Murphy filed no answer and was not represented by counsel. The sole defense was made by Bader, who is now the defendant-appellant.

The jury returned a verdict of $5,000 against both defendants. Defendant Bader submitted three special interrogatories asking the jury, in the event of a verdict for plaintiff against both defendants, first, whether defendant Bader fired the shot, second, whether defendant Murphy fired the shot, or, third, whether Vernon Bader fired the shot. The jury did not answer any of these requests for special findings.

The plaintiff requested a special finding in the event of a verdict for plaintiff against both defendants and asked: “Is the jury able from the evidence to determine which defendant fired the shot causing damage to the plaintiff?” This special finding was answered, “No,” and was signed by all twelve members of the jury.

Judgment was. rendered upon the verdict, and this is the judgment from which appeal is taken by defendant Bader.

The defendant Bader assigns error in the following particulars:

1. The trial court erred in overruling the motion of defendant Bader to require the plaintiff to make his petition definite and certain.

2. The trial court erred in refusing to give judgment for the defendant Bader upon the pleadings.

3. The trial court erred in refusing to grant the motion of defendant Bader at the close of plaintiff’s case that a verdict for him be directed, which motion was renewed after both parties rested.

4. The trial court erred in its general charge to the jury.

5. The verdict of the jury and the judgment thereon are contrary to law.

Before considering these assignments of error we shall discuss the rules of law applicable to the facts established by the evidence. These rules, numbeied consecutively, are as follows:

1. Except where two or more persons, each acting independently, create or maintain a situation which is a tortious invasion of a landowner’s interest in the use and enjoyment of land by interfering with his quiet, light, air, or flowing water (4 Restatement of the Law of Torts, 449, Section 881), each of two or more persons whose tortious conduct is a legal cause of harm to another is liable to the other for the entire harm. 4 Restatement of the Law of Torts, 434, Section 875.

2. For harm resulting to a third person from the tortious conduct of another, a person is liable if he (a.) orders or induces such conduct, knowing of the conditions under which the act is done or intending the consequences which ensue, or (b) knows that the ether’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result, and his own conduct, separately considered, constitutes a breach of duty to the third person. 4 Restatement of the Law of Torts, 435, Section 876.

If the encouragement or assistance referred to in clause (b) is a substantial factor in causing the resulting tort, the one giving it is himself a tort-feasor and is responsible for the consequences of the other’s act. This is true both where the act done is an intended trespass and where it is merely a negligent act. 4 Restatement of the Law of Torts, 436, 437, Section 876, Comment on Clause (b).

Under this comment, on page 438, the following illustration of a negligent act is given:

“A and B are members of a hunting party. Each of them in the presence of the other shoots across a public road at an animal, this being negligent as to persons on the road. A hits the animal. B’s bullet strikes C, a traveler on the road. A is liable to C. ”

The facts stated in the above illustration are somewhat similar to, and apparently adopted from, the case of Oliver v. Miles (1926), 144 Miss., 852, 110 So., 666, 50 A. L. R., 357, wherein it was held:

“Where two parties were jointly engaged in a hunting expedition, and, during such hunt, both fired across a public highway, and a person traveling thereon was shot, the parties are jointly and severally liable, although it is impossible to tell with certainty who inflicted the injury.”

The following comment on that case appears in 38 American Jurisprudence, 944, Section 254:

“When the negligence of a member of a joint enterprise causes injury to a third person, such negligence is imputable to the other members of the enterprise and all may be held liable for the injury. Pursuant to this principle, the view has been taken that where two parties were jointly engaged in a hunting expedition and, during such hunt, both fired across a public highway, and a person traveling thereon was shot, the parties are jointly and severally liable, although it is impossible to tell with certainty who inflicted the injury.”

It does not appear from the opinion in the case of Oliver v. Miles, supra, that the shooting across the highway violated any law. ' The court referred to the shooting as a negligent act and then concluded that the parties were engaged in the unlawful enterprise of shooting at birds flying over a highway; that they were in pursuit of a common purpose; that each did an unlawful act in such pursuit; and that each was liable for the resulting injury to the boy, although no one could say definitely who shot him.

From the context it is apparent that the court used the word, “unlawful,” in the sense of “irregular, contrary to normal or acceptable procedure, especially not morally right or conventional,” and not in the sense of “not lawful, illegal.”

3. One who commands, directs, advises, encourages, procures, instigates, promotes, controls, aids, or abets a wrongful act by another has been regarded as being as responsible as the one who commits the act, so as to impose liability upon the former to the same extent as if he had performed the act himself. The liability in such case is joint and several. 52 American Jurisprudence, 454, Section 114.

4. The general rule is that two or more persons engaged in a common enterprise are jointly liable for wrongful acts done in connection with the enterprise. 52 American Jurisprudence, 455, Section 116.

5. For harm done to a third person from the tortious conduct of another a person is liable if he permits the other to act upon his premises or with his instrumentalities knowing or having reason to know that the other is acting or will act tortiously. 4 Restatement of the Law of Torts, 442, Section 877.

6. The word, ‘ ‘ tortious, ’ ’ is used throughout the Restatement of the Law of Torts to denote the fact that conduct, whether of commission or omission, is of such a character as to subject the actor to liability under the principles of the law of torts. 1 Restatement of the Law of Torts, 16, Section 6.

It is apparently used in the same sense in American Jurisprudence where tortious conduct is discussed.

7. Although it is not necessarily unlawful to shoot at a target, such act is dangerous and should be done with extraordinary care; and if the shooting is done where there are objects from which the balls may glance and endanger others, the act is wanton and reckless and the person doing the shooting will be chargeable civilly for injury resulting to another’s person. 4 American Jurisprudence, 129, Note 19; Welch v. Durand, 36 Conn., 182, 4 Am. Rep., 55.

It will be noted that none of the foregoing rules and the comments thereon, including the illustration of the applicability of rule No. 2 and the case cited in support of such illustration, except the rule designated No. 7 which has no application to the joint and several liability of persons engaged in the commission of a tort, is predicated upon the persons liable being engaged in a lawful joint adventure or common enterprise, but rather upon their being engaged in a common enterprise which is either inherently tortious in character or which by reason of the extraordinary danger and hazard to other persons and property at the location and in the manner it is pursued is tortious in character. Consequently the rules of law applicable to persons engaged in a nontortious joint or common enterprise are inapplicable to the facts of the instant case.

The liability of the defendants in the case at bar is, by the allegations of the petition and the manner in which the case was submitted to the jury, predicated upon the negligence of the defendants and such allegations are insufficient to charge the defendants with assault and battery as distinguished from negligence. Therefore, the rule which we have designated as No. 7 is applicable only to the question of the liability of the defendants for the acts done by them.

We will now consider the assignments of error in the order in which they appear and in the light of the rules mentioned, limited as hereinbefore set forth.

Assignment of Error No. 1.

The trial court erred in overruling the motion of defendant Bader to require the plaintiff to make his petition definite and certain.

Under the rules hereinbefore mentioned, the allegations of the amended petition were sufficient to inform the defendants of the facts plaintiff relied upon as a basis for his claim against them and each of them.

The cause of action pleaded is one for damages for a joint tort committed by defendants in pursuing a common enterprise.

The fact that defendants did not have proper backstops into which to shoot the bullets from the rifle or that they discharged the gun without taking proper aim is demonstrated by the allegations of the amended petition to the effect that the plaintiff, at a distance of about 2,000 feet from where the shooting occurred, was hit by a bullet from the rifle. No further allegations in this respect were necessary in order to fully inform defendants of plaintiff’s claim.

This assignment is therefore without merit.

Assignment of Error No. 2.

The trial court erred in refusing to give judgment for defendant Bader on the pleadings.

Under the rules hereinbefore mentioned, the plaintiff in his amended petition pleaded a cause of action for the recovery of damages for a joint tort, committed by the defendants in pursuance of a common enterprise, for which the defendants were jointly and severally liable. Therefore, the trial court did not err in overruling defendant’s motion for judgment on the pleadings.

Assignment of Error No. 3.

The trial court erred in refusing to grant the motion of the defendant Bader, made at the close of plaintiff’s evidence and renewed at the close of all the evidence, that a verdict for him be directed.

The evidence tended to prove that the defendants and Vernon Bader were engaged in the common enterprise of target shooting on plaintiff’s premises, in pursuit of which they used a large caliber rifle having a range of two or' three miles, within which range many people were residing and working. A bullet from this gun passed through the side of the barn in which plaintiff was working, passed through plaintiff’s head, and embedded itself in a wooden structure about two hundred feet distant. Plaintiff thereby sustained serious injuries.

The evidence disclosed further that the target at which the defendants shot was a pile of gravel in front of a pile of dirt. It is a matter of common knowledge, of which courts take judicial notice, that bullets fired into gravel have a tendency to ricochet in such a manner as to change their direction upon hitting the gravel. This would tend to prove that the defendants did not have proper backstops into which to shoot the bullets from the rifle.

The shooting of this rifle upon plaintiff’s premises, under the circumstances and surroundings shown by the evidence, constituted a tortious act on the part of both defendants for which they are jointly and severally liable.

This assignment is, therefore, without merit.

Assignment of Error No. 4.

The trial court erred in its general charge to the jury.

Section I. The trial court erred in instructing the jury as to the law relating to a joint enterprise, no evidence having been introduced at the trial tending to prove that the defendant Bader was engaged in a joint enterprise which caused any damage to plaintiff.

Section II. The instructions of the trial court as to the law relating to a joint enterprise were erroneous.

Section III. The trial court erred in instructing the jury as to the law relating to the doctrine of res ipsa loquitur, no evidence having been introduced at ■the trial tending to establish facts which warranted such an instruction.

We shall consider the various sections of this assignment of error in the order they appear.

Section I. We have already discussed the question raised by the first section of this assignment and held that the evidence adduced at the trial tended to prove that the defendant Bader was engaged in a joint tortious enterprise which caused damage to plaintiff. For the reasons mentioned in our discussion, the error assigned in this section of the assignment is without merit.

Section II. The court did not err in instructing the jury as to the law relating to joint enterprise, as the pleadings allege facts showing joint enterprise, the evidence showed joint enterprise, and the admissions of the defendant. Bader in his testimony showed joint enterprise in shooting at the target.

Under this section of this assignment the defendant Bader further complains that, at the commencement of the general charge, the court stated: “The question of a joint enterprise arises in this case.”

This statement is claimed by the defendant Bader to have been erroneous, but as joint enterprise is pleaded in the amended petition, and the admissions of such defendant on the witness stand showed that it existed, the court did not err in the respect mentioned.

Section III. Under this section of this assignment the defendant Bader contends that the court erred in instructing the jury as to the law relating to the doctrine of res ipsa loquitur, for the stated reason that there was no evidence tending to show that the rifle from which the bullet was fired was under the exclusive control and management of defendant Bader, and for the further stated reason that the undisputed evidence showed that Murphy fired in the air, establishing the existence of another equally efficient proximate cause.

The evidence did tend to prove that Murphy was the owner of the rifle in question, and that it was fired by the defendants and Vernon Bader in pursuance of their joint enterprise to shoot at a target. However, this evidence, in our opinion, did not tend to prove that the rifle was under the exclusive control and management of either of the defendants when it was being used by another of the persons mentioned.

The exclusive control and management of the means causing an injury by the person charged with causing the injury is a condition precedent to the application of the doctrine of res ipsa loquitur. Consequently, the court erred in charging on such doctrine.

The undisputed evidence did not show, as contended by defendant Bader, that Murphy fired in the air, thus establishing the existence of another equally efficient proximate cause. The evidence showed only that Murphy made a statement in the presence of one witness to the effect that he admitted firing the shot which injured the plaintiff, and that the defendant Bader testified that Murphy fired in the air. Opposed to this evidence was the testimony of witnesses to the effect that they inquired of each of the defendants whether any shots had been fired in any direction other than easterly, and that each of the defendants had stated none was so fired. In this situation, the jury had the right to believe or disbelieve the testimony as to Murphy shooting in the air or Murphy admitting that he was the one who fired the shot which injured plaintiff. The special verdict of the jury stating that it was unable to determine who fired the shot which injured plaintiff is conclusive on this point.

The question then arises as to whether the error of the court in charging upon the doctrine of res ipsa loquitur was prejudicial to defendant Bader.

As hereinbefore mentioned, plaintiff’s cause of action against the defendants is predicated upon the defendants having been engaged in a joint enterprise which, by reason of the extraordinary danger and hazard to other people and property in the location and the manner in which it was pursued, was tortious.

Upon the admissions by defendant Bader in his testimony of the facts showing that he, the defendant Murphy and Vernon Bader, at the time plaintiff was shot, were engaged in the joint enterprise of shooting at a target of the character described by him, in pursuit of which enterprise they each shot leaden bullets from a long range rifle of large caliber at such target, on and over defendant Bader’s premises which adjoined farms upon which people were residing' and working, and the uncontroverted testimony of an expert witness as to the caliber and range of the rifle and that the bullet which struck plaintiff was fired from the rifle those engaged in the enterprise were using, the court could properly have directed a verdict in favor of plaintiff and against defendant Bader upon all the issues of the case except the issue of damages, leaving that issue for the determination of the jury.

In support of our conclusion, we refer to the opinion in the case of Hayes v. Kentucky Joint Stock Land Bank of Lexington, 125 Ohio St., 359, 362, 181 N. E., 542, wherein it is stated :

“No other person testified to the contrary. * * * Her positive statement is not contradicted by any other witness, or by any other circumstances. Standing uncontradicted, it must be accepted as proof, in the absence of any testimony or circumstances, from which a contrary inference can be drawn. The record discloses none.”

The court having been warranted by the evidence in directing a verdict, as above mentioned, the charge upon the doctrine of res ipsa loquitur was not in any way prejudicial to defendant Bader.

For the reasons mentioned, this assignment is without merit.

Assignment of Error No. 5.

The verdict of the jury and the judgment thereon are contrary to law.

Our discussion of the other assignments of error clearly demonstrates that this assignment of error is without merit, so we will not discuss it further except to state our conclusion that it is without merit.

As we find no error in any of the particulars assigned by defendant Bader and specified and argued in his briefs, the judgment of the Common Pleas Court is affirmed, and the cause is remanded for execution.

Judgment affirmed.

Middleton, P. J., concurs.

Jackson, J.,

concurring in the judgment, but dissenting in part from the opinion. The writer of this opinion concurs in the affirmance of the judgment of the lower court and agrees with the majority opinion except that part thereof wherein it is stated that the court erred, but not prejudicially, in charging on the doctrine of res ipsa loquitur.

The charge of the court on res ipsa loquitur was correct and warranted by the pleadings and the evidence.

The doctrine of res ipsa loquitur is one of evidence and not one of substantive law. It is a common-sense appraisal of the probative value of circumstantial evidence. It was not intended to relieve plaintiff from the general burden of proving the negligence of the defendant or from proving such facts and circumstances which would make negligence a legal inference. In other words, until the plaintiff has presented all the testimony reasonably within his power he can derive no benefit from this doctrine.

However, in the instant case I am of the opinion that the plaintiff presented all the evidence reasonably within his power to explain the cause of the injury.

Where the plaintiff alleges negligence generally as to the cause of his injury he can rely on the maxim of res ipsa loquitur to establish such negligence.

The doctrine does not dispense with the rule that the party who alleges negligence must prove it. It merely determines the mode of proving it. Therefore, in applying the doctrine it is proper to permit the jury to infer negligence from the occurrence of an accident but it is not proper to require it to do so, that is, the doctrine furnishes circumstantial evidence which is sufficient to go before the jury, and such evh dence must be weighed but does not necessarily have to be accepted as sufficient.

It would seem clear that the permissive inference is always evidence and must be weighed as evidence, and that it is to be considered by the jury since it may reasonably be inferred from all the facts presented. However, circumstantial evidence is entitled to consideration only so long as reasonable men might base a conclusion upon it. The underlying reason for the rule of res ipsa loquitur is that the facts of the injury are solely within the knowledge of the defendant and not accessible to the plaintiff.

The doctrine of res ipsa loquitur being a rule of evidence, it is not necessary to plead it. Beeler v. Ponting, 116 Ohio St., 432, 433, 156 N. E., 599; 29 Ohio Jurisprudence, 617, 633, Sections 144, 145.

The above-stated principles were approved in Scovanner v. Toelke, 119 Ohio St., 256, 260, 163 N. E., 493.

It is said that one of the elements necessary for the application of the doctrine of res ipsa loquitur is that the party sought to be charged must have the exclusive control and management of the means causing an injury.

In the instant case the fact that there were two defendants who were shooting a single gun in a tortious joint or common enterprise meets the condition required.