text:
    Stuhlbarg, Appellee, v. Metropolitan Life Ins Co., Appellant.

      (No. 6253
    Decided July 12, 1943.)

      Messrs. Weinberger é Grad, for appellee.

      Messrs. Marble & Vordenberg, for appellant
   Hildebrant, J.

This "is an appeal on questions of law from a judgment entered oh a verdict for plaintiff in a suit to recover disability benefit and premium paid under protest under an insurance policy.

Plaintiff, holder of a life insurance policy with the defendant company, which policy contained disability and waiver of premium clauses, claims he became permanently and totally disabled on or before July 30, 1940, by reason of a mental disease. In the application and supplemental application made to the defendant company his occupation was given first as assistant foreman in the employ of the Cincinnati Cap Company, with duties of giving out and taking care of work in factory, later, as manager of Cap factory — same company. The evidence showed he later became a salesman.

Claim for disability on the company form, executed1 by plaintiff and his physician, Dr. Nathan Saltzman, on September 24, 1940, showed treatments by Dr. Saltzman from July 27, 1940, to August 2, 1940, with the doctor answering questions as to. the temporary or permanent disability by use of the word “indefinite.”

The company refused the claim on the ground that due proof thereof had not been made.

The record discloses trips to Florida and Michigan,, examinations by other physicians, with indefinite answers as to prognosis, and confusion as to whether they relate to a specific attack of the ailment or the permanent condition — also visits to various hospitals for short times and a treatment of occupational therapy advised and followed, with plaintiff’s brothers testifying they made up a fund to pay plaintiff ’s wages as a gratuity sufficient to maintain his family.

The pertinent provisions of the policy are:

‘ ‘ The Metropolitan Life Insurance Company in consideration of an additional premium of five dollars and twenty-five cents, payable at the same time and under the same conditions as the regular premium under the policy to which this agreement is attached, except that the additional premium shall cease on the anniversary of the policy after the insured has attained sixty years of age, doth hereby agree, that if while the above numbered policy is in full force and effect, and before default in the payment of any premium, the company receives due proof that the insured as the result of injury or disease occurring and originating after the issuance of the policy, has become totally and permanently disabled so as to be unable at any time to perform any work or engage in any business for compensation or profit, the company will allow the following benefits:

“(a) Provided said disability occur before the insured attains sixty years of age, but not otherwise, the company commencing with the anniversary of the policy next following receipt of such proof, will waive payment of each premium becoming due during such disability, and, in addition, commencing six months from the receipt of such proof, will pay each month during the continuance of such disability, to the insured or to the person designated by him for the purpose, or if there be no such person designated then to such person as may be found by the company to have the care of the person of the insured, a monthly annuity of $10 for each $1,000 of original insurance under the policy. The waiving of premiums and the monthly annuity payments shall be in addition to all other benefits and shall not affect any provision in the policy, except if there be any indebtedness under the policy, the interest on such indebtedness shall, if not otherwise paid, be deducted from the monthly annuity payments. The insured shall not have the right to •commute such monthly annuity payments. * * *

“Notwithstanding proof of disability may have been accepted by the company as satisfactory, the insured shall at any time, but not oftener than once a year, on demand from the company, furnish due proof of the continuance of such disability, and if the insured shall fail to furnish such proof, or if the insured is able to perform any work or engage in any business whatsoever for compensation or profit, no further premiums will be waived or allowed to accumulate as an indebtedness against the policy nor will any further monthly annuity payments be made.”

•' The issues are:

(1) Was plaintiff totally and permanently disabled within the terms of the policy?

(2) Did plaintiff furnish due proof of such disability within the terms of the policy?

■ In order to .determine the first issue, it is necessary to construe the language quoted supra. Like other contracts, polices of insurance should be construed so as to give effect to the intention and express language of • the parties, the intent according to the general rule being obtained originally from a consideration of the language of the entire policy as a whole in connection with the risk or subject matter. The general rule of contract construction that a written agreement should, in ease of doubt as to meaning, be interpreted against the party who drew it, is applied to policies of insuranee. Ohio is in accord with the general rule, and it has been held that in event of doubt,'under the.terms of the policy and the relation of the. parties, whether certain words were used in an enlarged or a restricted sense, other things, being equal, that construction will be adopted which is most beneficial to the promisee and thereby vindicates the intent of the parties and the objective of the contract. See 22 Ohio Jurisprudence, 340, Section 185, for statements and citations.

It has been held that policies requiring due proof of “total and permanent” disability and also continuing proof from time to time and if recovery is shown, the company’s obligation to pay shall cease, are contradictory and require construction, and the provisions construed together mean if insured is totally disabled and will probably be so for life, he comes within the provisions of the policy and the company is required to pay. 5 A. L. R., 1637.

The prevailing rule in most jurisdictions is that the “total disability” contemplated in such a clause in a life insurance policy does not mean, literally, a state of absolute helplessness, but rather such a disability as renders the insured unable to perform all the substantial and material acts necessary to the prosecution of his business or occupation in a customary or usual manner. Also the word “permanent” does not connote its literal construction, but the manner of its use is taken into account and a liberal construction has resulted.

From the variety of language used and disability claimed, a great many eases have resulted, and, therefore, each case must more or less be decided on its own facts and the provisions of the instant policy. An excellent discussion of the subject appears in 29 American Jurisprudence, 872 to 880, Sections 1160 to 1165, inclusive. See, also, 22 Ohio Jurisprudence, 332, 340, 775, Sections 175, 185, 669.

Ohio follows the prevailing rules- as indicated in Equitable Life Ins. Co. of Iowa v. Gerwick, 50 Ohio App., 277, 197 N. E., 923; Wright v. Metropolitan Life Ins. Co., 58 Ohio App., 83, 15 N. E. (2d), 970; Gibbons v. Metropolitan Life Ins. Co., 135 Ohio St., 481, 21 N. E. (2d), 588.

The court, therefore, is of the opinion that plaintiff was totally and permanently disabled within the terms of the policy, as in the petition alleged.

“Due proof” of total and permanent disability is a condition precedent to liability of defendant under the policy. Plaintiff furnished proof originally on forms provided by the company, as shown by'plaintiff’s exhibit 2, as follows:

“7 (a) State in detail the exact condition of the patient at'the present time. (a) Total disability.

“7 (b) What is the prognosis? (b) Indefinite yet.

“11 (a) Has the patient’s condition shown recent improvement? (a) Stationary.

“12 (a) Has the patient recovered sufficiently to engage in any gainful work, either for full or part time? (a) No.

“13 (a) Is he wholly unable to engage in any work, occupation, or business at the present time? (a)' Total disability.

“14 If wholly disabled at the present time, please give your opinion as to whether total disability will be permanent or temporary. Indefinite.

“15 If total disability will not be permanent, approximate a date on which work of any kind may be resumed. (No answer given by physician.)

“16 (a) Is there any reason why the patient cannot resume work for either full or part time and continue to receive necessary treatment? (a) Total Disability.’’

Subsequently, on November 26, 1940, a supplemental proof on company’s form, defendant’s exhibit 4, was submitted as follows:

“5 (a) State the nature of this injury or sickness. (a) Diabetes — Dementia praecox.

“5 (b). Give your diagnosis as finally made, (b) Same.

“5 (c) Has your diagnosis been confirmed by X-ray, electrocardiogram, or other laboratory tests? If so, state the nature and findings of tests, (c) date— 11/26/40. Nature, Urinalysis. Findings. 2 per cent sugar.

“11 (a) Has the patient’s condition shown recent improvement? (a) No.

“(b) Is the patient continuously confined to house? (b) No.

“12 (a) Has the patient recovered sufficiently to engage in any gainful work, either for full or part time? (a) No.

“(b) If so, give the date the patient was first able to resume any duties, (b) First able to resume any duties................

“13 (a) Is he wholly unable to engage in any work, occupation, or business at the present time? (a) Yes.

“(b) From what date to your personal knowledge, has the patient been continuously so disabled?' (b) 11/26/40 — July 27, 1940 his history.

“14 If wholly disabled at the present time give your opinion as to whether total disability will be permanent or temporary. Probably temporary.

“15 If total disability will not be permanent, approximate a date on which work of any kind may be resumed. 2 or 3 mos.

“16 (a) Is there any reason why the patient cannot resume work for either full or part time and continue to receive necessary treatment?

“(b) If so, please explain, (a) Yes. In addition to diabetes, (b) has melancholia.”

Dr. McIntyre diagnosed plaintiff’s disability as “manic depressive insanity” and described the characteristics of' the- same and advised occupational therapy

The court finds no substantial inconsistences in the proof in the record with total and permanent disability under the terms of the policy, and finds that the requirement as to due proof was properly met by the plaintiff. See Equitable Life Ins. Co. of Iowa v. Gerwick supra, and Wolf v. Prudential Ins. Co., 31 N. P. (N. S.), 154.

The court has examined the record in the light of the other assignments of error herein, and while the general charge is susceptible of criticism, we find no error prejudicial to defendant therein or in the remainder-of the record.

The judgment is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Matthews, J.

license: Public Domain

text:
    Moore, Appellee, v. Bureau of Unemployment Compensation of the State of Ohio et al., Appellants.

      (No. 6328
    Decided November 22, 1943.)

      Mr. G. F. Osier, for appellee.

      Mr. Thomas J. Herbert, attorney general, and Mr. John M. Woy, for appellant Bureau of Unemployment Compensation.

      Messrs. .Taft, Stettinius & Hollister, for appellants The Philip Carey Manufacturing Company and Leshner Division of The Philip Carey Manufacturing Company.
   Matthews, J.

This appeal presents the question of whether a married woman who leaves her employment, to re-establish a home by joining her husband who had provided a domicile for her and her children in a city other than that in which she had been employed, is entitled to unemployment compensation.

The Unemployment Compensation Board of Review ruled that the claimant could not serve a waiting period as defined by the Unemployment Compensation Act, or be paid benefits for the duration of any period of unemployment due to her voluntarily quitting work because of marital obligations. The board found also that she had quit her employment voluntarily because of marital obligations when she left her employment to reside with her husband in another city, and, therefore, denied her claim.

On appeal to the Common Pleas Court the finding and order of the board of review was reversed and the order of the referee allowing the plaintiff’s claim for benefits was reinstated. From that judgment, this appeal was taken.

The plaintiff quit .work on August 11, 1941. She filed her claim for benefits oh December 4, 1941. In the interim the Unemployment Compensation Act (Sections 1345-1 to 1345-35, G-eneral Code) was amended, effective October 1, 1941.

The plaintiff contends that when she quit on August 11, 1941, her rights under the law became fixed and vested and to apply the subsequent amendment to that event would violate the provisions of the Ohio Constitution against retroactive laws (Section 28 of Article II), and the provisions of the Fourteenth Amendment to the United States Constitution. It is also claimed that the law if applied as urged by defendants would impair the obligation of the marriage contract, contrary to the provisions in both Constitutions. As to this latter contention, it is sufficient to state that marriage has never been regarded as a contract within the constitutional prohibitions against laws impairing the obligation of contracts.

In 12 American Jurisprudence, 47, Section 416, it is stated:

“Marriage is not a contract within the meaning of the provision in the Constitution of the United States prohibiting states from impairing the obligation of a contract. ’ ’

Now, did the plaintiff’s rights become fixed on August 11, 1941?

It is certain, that her claim was not fully matured at that time. Ceasing to be employed was only the first step. Before she could obtain benefits it was necessary for her to seek and fail to obtain other employment and to establish her status as a person with capacity to work who was unable to obtain it at the time of filing her claim for benefits. In 11 American Jurisprudence, 1199, Section 370, it is said:

“A right cannot be regarded as vested, in the constitutional sense, unless it amounts to something more than a mere expectation of future benefit or interest founded upon an anticipated continuance of the existing general laws.”

That the Legislature did not intend to confer a vested right which it could not affect by subsequent legislation is clearly stated in the act, which was in force on August 11, 1941, in Section 1345-30, General Code, in which it is provided:

“All the rights, privileges, or immunities conferred by this act, or by acts done pursuant thereto, shall exist subject to the power of the General Assembly to amend or repeal this act at any time.”

The reservation is in accordance with the general principle that laws are passed, amended and repealed as changed conditions dictate in the exercise of sound public policy. This process inevitably affects different members of the public in different degrees, but if that imposed liability it would tend to make our laws as unchangeable as those of the ancient Medes and Persians.

In 11 American Jurisprudence, 1200, Section 372, the rule is stated:

“There can, in the nature of things, be no vested right in an existing law which precludes its change or repeal * * *. In no case is there an implied promise on the part of the state to protect its citizens against incidental injury occasioned by changes in the law.”

.. In Talley v. Unemployment Compensation Division of Industrial Accident Board, 63 Idaho, 644, 124 P. (2d), 784, the court applied a similar law to facts analogous to those in this case and reached the coniclusion that the claim of vested right was without merit. We, therefore, hold that the plaintiff’s rights must be determined by the application of the law effective October 1, 1941, and found in 119 Ohio Laws, 821.

The board of review’s finding that the plaintiff had quit her employment voluntarily because of marital obligations cannot be disturbed by the court if it is supported by substantial evidence. M. F. A. Milling Co. v. Unemployment Compensation Commission, 350 Mo., 1102, 169 S. W. (2d), 929, 146 A. L. R., 239. That she quit because of marital obligations is not merely conceded. It is asserted by her. The only issue is whether she quit voluntarily within the meaning of the law. .'•-•••

" The rules determining eligibility for benefits are found in Section 1345-6, General Code (119 Ohio Laws, 836), effective October 1,..1941. The only parts of that section that are at all relevant here are subdivisión c and paragraph (7) of subdivision d. These two parts are:

“c. An individual’s maximum weeks of benefits 'per year shall be reduced by six weeks in the event his unemployment results from discharge for just cause in connection with his work, or from voluntarily quitting his work without just cause in connection with such work.

“d. Notwithstanding the provisions of subsection (a) of this section, no individual may serve a waiting period or be paid benefits for the duration of any period of unemployment with respect to which the administrator finds that such individual: * * *

"(7) quit work voluntarily to marry or because of marital obligations.”

We have been furnished with many authorities on the meaning of the word "voluntarily.” The dictionary definition is not doubtful. What confronts us is the necessity of determining its meaning as used by the Legislature.

The context shows that the term is not used as the antonym of .physical impossibility. By the terms of subdivision c, if he is discharged for just cause, his benefits are reduced by six weeks, or if his unemployment results from his quitting, his benefits are reduced by the same period, unless there were some reason arising out of his work which justified his quitting. When there is a reason arising out of his work, Ms benefits are not reduced by six weeks, not because Ms quitting is involuntary, but because his voluntary act of quitting is justified under the law.

Now then, this provision is followed by the provision enumerating the absolute bars to benefits notwithstanding unemployment. If the employee quits work voluntarily to marry or because of marital obligations, there is no right to benefits. If such a reason for qmtting, that is, to marry or because of marital obligations, destroys the employee’s volition, every quitting under such circumstances would be involuntary, and the provision would be meaningless. If that had been the intent of the Legislature it would have placed in the appropriate place a provision that quitting to marry or because of marital obligations should be considered involuntary within the meaning of the act. It did not do so. It could not have meant that by the words employed.

In a certain sense, a person may be said to act under compulsion whenever he performs a moral or legal obligation. He is required or compelled to obey the laws, but a law-abiding citizen usually acts voluntarily to gain that description.

We construe the language used to mean that when an employee quits to marry or to perform marital obligations, he does so voluntarily and is not entitled to benefits.

In order to be entitled to benefits the claimant must be “able to work and available for work.” If the contract to marry or the obligation of an existing marriage makes quitting employment involuntary, then so long as that status continues, it would destroy availability for work, and that would exclude from unemployment benefits any person so situated; and the same conclusion is reached that the employee who quits to marry or because of marital obligations is not entitled to benefits.

For these reasons, the judgment of the Court of Common Pleas is reversed and the decision of the board of review is affirmed.

Judgment reversed.

Ross, P. J., and Hiloebrant, J., concur.


author: Hornbeck, J.

text:
    Spellman, Appellee, v. Industrial Commission of Ohio, Appellant. Erwin, Appellee, v. Industrial Commission of Ohio, Appellant.
    (Nos. 108 and 109
    Decided April 26, 1943.)

      Messrs. Gibbs & Gibbs, for appellees.

      Mr. Thomas J. Herbert, attorney general, Mr. Robert E. Hall and Mr. Albertus B. Conn, for appellant.
   Hornbeck, J.

These are appeals on questions of law from judgments of the Common Pleas Court in favor of each plaintiff and to the effect that each was entitled to share in the workmen’s compensation fund by reason of an accident suffered by the plaintiff in ease No. 109 and a fatal injury suffered by plaintiff’s decedent in case No. 108.

Otis Spellman and Nelson Erwin were employees of The United Paper Board Company of Urbana, Ohio, a contributor to the workmen’s compensation fund. Their employment required that they report for work at six o ’clock in the morning. On March 20, 1939, at 5:48 a. m., Erwin was a passenger in the automobile of Otis Spellman, on the way to their work, and as they' were about to enter the premises of their employer and while crossing the Pennsylvania Railroad tracks, they were struck by a cut of freight cars being switched on such tracks. Spellman was killed and Erwin seriously injured.

A plat is before us disclosing the premises of The United Paper Board Company, the railroad tracks contiguous thereto, and the streets in their vicinity. Elm street is a thoroughfare in the city of Urbana, running-north and south, connected on the north by a street known as Rhorer street. Miami street is a thoroughfare running east and west, intersecting Elm street about one square from the railroad tracks. Beech street formerly paralleled Miami street and crossed Elm street at the railroad tracks but at the time of the accident under consideration, Beech street had been vacated on both sides of the railroad. Ann street extends from Miami to Beech street, paralleling- Elm about one square to the east .thereof. The situation thus presented demonstrates that there was but one way of entrance into the building of The United Paper Board Company from the north and, insofar as we can determine from the plat, the only entrance or way from any other direction. In any event, Elm street to all practical intents and purposes ended at the premises of The United Paper Board Company. The Pennsylvania Railroad had eight tracks crossing Elm street which were adjacent to The United Paper Board Company. There were two other tracks of the Erie Railroad to the south of the Pennsylvania Railroad tracks. At the time plaintiffs were struck, they were within approximately 16 feet of the north property line of The United Paper Board Company.

In the trial court there was some difference of contention on one question of fact only, namely, whether there was more than one practical route to the place of employment of the employees. In this court counsel for the commission orally concede that there was but one practicable route-over which the employees could have traveled to reach their employment and that was the one upon which they were traveling at the time of their injuries.

The question presented is: Did the injury of Erwin and the death of Spellman arise out of and occur in the course of their employment? Counsel cite and discuss many cases in Ohio, from other states and from the United States Supreme Court. There is no case in Ohio' in which the facts parallel the instant case. Defendant cites Fassig v. State, ex rel., 95 Ohio St., 232, 116 N. E., 104, to the effect that,

“The provisions in Section 35, Article II of the Constitution, and in the statute with reference .to an injury received in the course of employment refer only to an injury which is the result of or arises out of the employment. Such provisions do not cover any injury which has its cause outside of and disconnected with the employment, although the employee may at the time have been engaged in the work of his employer in the usual way.”

Defendant also cites Industrial Commission v. Weigandt, 102 Ohio St., 1, 130 N. E., 38, to the effect thát the provisions of the Workmen’s Compensation Law “do not cover an injury which had its cause outside of and disconnected with the business in which an injured workman was employed,” and the further well recognized principle announced in Slanina v. Industrial Commission, 117 Ohio St. 329, 158 N. E., 829, that injuries caused by risk common to the public generally and not increased by the circumstances of the employment are not compensable. From these cases and others cited it is urged that, as the railroad tracks of the Pennsylvania Railroad were owned and under the sole control of the railroad company, The United Paper Board Company exercised no active ownership or control in respect thereto; that the tracks were across a public thoroughfare which was open to the public; that the hazard to the plaintiff was common to the public; and that the employees when injured had not come within the premises of their employer and had not entered upon their employment. Therefore, it could not. be said that their injuries grew out of or occurred in in the course of their employment. On the other hand, plaintiffs urge that to all intents and purposes, the thoroughfare over which the employees were required to move to reach the premises of their employer was exclusively used and employed for the benefit of The United Paper Board Company, for its employees and for those having business with it; that it, being the only way of entrance and being immediately adjacent to the premises of the employer and used by its employees by and with its knowledge and consent, was-within the zone of their employment; and that the hazards to which Erwin and Spellman were subjected were within the environment of their employment and incident thereto and so inseparably connected therewith as to require that it be said that the crossing of the tracks of Elm street had become a part of the premises of the employer.

Plaintiffs particularly rely upon Industrial Commission v. Henry, 124 Ohio St., 616, 180 N. E., 194. The judgment in that case was reviewed in this court and one member of the court, as now constituted, participated in the review. It is the recollection of that member of the court that the I£enry case was here determined upon the theory adopted by Judge Marshall in the concurring opinion, namely, that the employee was in the course of his employment while going for something to eat and that question was not influenced by the proximity of the railroad to the premises of the employer. Henry went to work for the Purity Ice Cream & Dairy Company shortly after midnight, preparatory to loading his milk wagon for delivery on his route as a part of and incidental to his employment. He fed his horses and while they were eating he ate his breakfast. This practice was an essential part of the custom of his employment, known, recognized and acquiesced in by his employer. Henry was on pay and in his employment at the time he was eating his breakfast and within reasonable limitations it made no difference where he ate his breakfast. However, when the opinion was written in the Supreme Court, Judge Allen gave much attention to the question of the proximity of the railroad tracks upon which Henry was killed and held that the location of the track adjacent to the plant constituted a hazard of employment, evidently different from and greater than that to which the general public was subjected. Judge Allen, however, did stress the fact that Henry at the time of his accident had already entered upon his employment and was traveling the most direct route to perform the next necessary act in the course of such employment. In the opinion, Cudahy Packing Co. of Nebraska v. Parramore, 263 U. S., 418, 68 L. Ed., 366, 44 S. Ct., 153, 30 A. L. R., 532, Bountiful Brick Co. v. Industrial Commission, 68 Utah, 600, 251 P., 555, and Lumberman’s Reciprocal Assn. v. Behnken, 112 Tex., 103, 246 S. W., 72, 28 A. L. R., 1402, are cited and commented upon with approval. The opinion also states that Industrial Commission v. Barber, 117 Ohio St., 373, 159 N. E., 363, is not applicable to the facts in the decided case. The first paragraph of the syllabus in the Henry case must therefore be read in the light of the opinion that the facts in the Barber case were not controlling. This branch of the syllabus reads:

“Where the claimant’s decedent had entered upon his employment in the early morning hours, had left the premises of the employer to get his breakfast at a restaurant, in accordance with a custom acquiesced in by the employer, and, while returning to the premises of the employer by a direct and necessary route along* a public thoroughfare, was struck by a train running* upon the tracks of a railroad so immediately adjacent to the premises of the employer that the only way of ingress and egress toward the restaurant was one-of hazard, the accident arose out of and in the course of the decedent’s employment.”

It is evident that the majority of the court shaped the syllabus and did give much effect to the proximity of the tracks of the railroad to the premises of the employer in conjunction with the fact that the only way of ingress and egress to the employer’s place of business was over such tracks.

Giving application to the language of the syllabus in the Henry case, we perceive no difference in the applicable facts in that case and the instant case except that in the Henry case he had actually entered into his employment prior to the time of his injury and was then in his employment.

We have no difficulty in differentiating Industrial Commission v. Barber, supra, because there the tracks of the railroad upon which the injury occurred, although not upon the premises of the employer, were in part, at least, under its direction and control. In Lumberman’s Reciprocal Assn. v. Behnken, supra, the place where the employee was injured was provided by the employer.

The ease of Cudahy Packing Co. v. Indus. Comm., 60 Utah, 161, 207 P., 148, 28 A. L. R., 1394, later reviewed in the United States Supreme Court, Cudahy Packing Co. v. Parramore, 263 U. S., 418, 68 L. Ed., 366, 44 S. Ct., 153, 30 A. L. R., 532, is, in its facts, a blue bottle case. The only factual difference between the instant case and the Cudahy case is that there it was found by the commission that the proximity of the railroads to the plant of the Cudahy Packing Company was essential to the successful operation of the plant. The Supreme Court considered this finding and said that it was .not controlling or of much significance.

The language of the -Utah statute provided benefits for “every such'-employee who is killed by accident arising out of,; or in the course of his employment, wheresoever such injury has occurred.” It will be noted that the phrases in the Utah Act are connected by the disjunctive “or.” Our statute employs the conjunction “and.” The Utah court noted this difference but said that under the facts the accident there under consideration would be held to arise both out of and occur in the course of the employment. The first paragraph of the syllabus of the Utah Supreme Court is:

‘ ‘ The death of an employee of a plant so located that it can be reached only by passing over railroad tracks crossing the highway, by being struck by an engine when he is going along the highway to work, arises out of or in the course of his employment within the meaning of the Workmen’s Compensation Act.”

It will be noted that this syllabus makes no mention of the necessity that the railroad tracks be in close proximity to the plant of the employer. The United States Supreme Court in reviewing the case, announced that for the purposes of the appeal it was bound by the construction and application of the statute as made by the Utah court. ' However, it did consider the reasonableness of the statute in the light of the underlying purposes of workmen’s compensation acts. The claim was there made by the appellant that the risk to which the employee was exposed was no greater than that to which the public generally was subjected. Upon this question Justice Sutherland said at page 424 (263 U. S.):

“The fact that the accident happens upon a public road or at a railroad crossing, and that the danger is one to which the general public is likewise exposed, is not conclusive against the existence of such causal relationship, if the danger be one to which the employee, by reason of and in connection with his employment, is subjected peculiarly or to an abnormal degree.”

The court held that the construction placed upon the statute by the Utah court was not subject to any constitutional objection under the federal Constitution.

The observations which Judge Allen made in the Henry case respecting the Cudahy Packing Company case in connection with the syllabus of the court are-strong support for the claim that the accident in the instant case occurred'in the course of plaintiffs’ employment. The Cudahy Packing Company case was under consideration by our Supreme Court in the later decision of Industrial Commission v. Baker, 127 Ohio St., 345, 188 N. E., 560. The Baker case in its facts does not parallel the instant case because Baker was killed at railroad tracks crossing a thoroughfare used generally by the public and a quarter of a mile from the entrance to the plant in which he was employed. Judge Matthias, writing the opinion, reverted to Fassig v. State, supra, and Industrial Commission v. Weigandt, supra, to define the meaning of “in the course of employment” as used in our Workmen’s Compensation Act. He discussed Industrial Commission v. Barber, supra, and emphasized the holding in this case as respects the zone of employment and that an employee:

“Enters upon the course of his employment within the contemplation of the Workmen’s Compensation Law when he reaches the zone of such employment that is under the control of his employer, even though such zone be outside the enclosure of his employer. The hazards which the Compensation Law (Section 1465-37 et seq., General Code) was regarded as covering are those growing out of the conditions and environments of the workman’s employment. Such limitation and restriction was carefully made in the syllabus, and any purpose to so extend the liability as to cover injuries occurring at all points between the place of employment and the place of abode of the employe was expressly disavowed in the opinion.”

The holding and reasoning of Judge Matthias in the Baker case and in construing the Barber opinion conflicts with the rationale .of Judge Allen in the Henry opinion because in the Henry case the railroad tracks upon which Henry was killed, although in fairly close proximity to the employer’s plant, were not upon the premises of the employer and it exercised no control whatever over them. Judge Matthias, also, discusses the Cudahy Packing Company case and emphasizes that the United States Supreme Court held only that the interpretation of the statute given by the Supreme Court of Utah was binding upon it and, that as construed, such statute was not violative of the federal Constitution. He further calls attention to the facts in the Cudahy case; that “the railroad over which the way extended was not only immediately adjacent to the plant, but, by means of switches, was connected with it, and in principle it was as though upon the actual premises of the employer.” This quotation is taken from Justice Sutherland’s opinion but we have been unable to find that the tracks upon which Parramore, the employee, was driving when killed ran into or became any part of the premises of the employer.

We might also examine the case of Industrial Commission v. Heil, 123 Ohio St., 604, 176 N. E., 458, which case this court also reviewed. The principle on which the Supreme Court decided the Heil case was never in doubt in this court and was given no consideration whatever in reaching our judgment. If the facts in thé Heil case permitted of no construction whatever except. those that the Supreme Court adopted, we would have hesitated not at all in reaching the same conclusion. We determined that upon the peculiar facts present in the Heil case there was an issue whether Heil’s employment began at the time when he left Springfield in the taxicab on his trip to the abattoir where he was employed. Of course, if this was hot an issue, then, inasmuch as he was injured upon a public highway a quarter of a mile from the right of way through which he entered the premises of his employer, ,it would have clearly required the holding that he was not in the course of his employment when injured. The Heil case has nothing in common with the facts in this case and the pronouncement there made is not at all helpful.

The principle of the Barber case is followed in McMillin v. Calco Chemical Co., Inc., 15 N. J. Misc., 68, 188 A., 694, where it was held that where the death of an employee resulted from being struck by a train while driving over the right of way located on employer’s land the accident arose out of and in the course of his employment. In Dent v. Ford Motor Co., 275 Mich., 39, 265 N. W., 518, an employee, upon leaving the employer’s plant after completing the day’s work, stepped into a public street and slipped on a railroad track when five feet from the employer’s premises. A finding that the accident happened on property of the employer based on the test that the track served the employer’s plant could not be sustained in the absence of evidence of ownership by the employer.

It is the general rule that where an injury is suffered by an employee in going to his work, it may not be said that it arose out of or occurred in the course of the employment. Any exception to the rule must arise because of unusual and varying circumstances. Exceptions may be found where the injury occurs before the employee has actually begun his work if the accident occurs after he is on the premises of his employer and so near in point of time as that it is reasonable to conclude that he was on his way to his work and, if at the time of the injury, the employee was in the zone of his employment. The zone of employment, as we interpret the cases, generally, includes premises owned or controlled by the employer or adjacent premises so near thereto as to be considered a part of employer’s premises when he exercises some direction or . control thereof. The Henry case' and the Cudahy cases held that the zone of employment included railroad tracks which were under no control of the employer and were not on the premises of the employer.

It is our conclusion that although there appears to be conflict with the principle of the Henry case in later opinions of our Supreme Court, it has not been reversed or modified and it may be given application to the facts here appearing. In the instant case the tracks were so immediately adjacent to the premises of the employer that the only way of ingress and egress to and from them was one of hazard and they were in such proximity to the premises of the employer that they may. be said, under all the circumstances, to be within the zone of the employee’s employment. In affirming this judgment, we recognize that this case is in the twilight zone and presents a factual situation which, in all details, has not been presented and has not been determined by our court of last resort.

The judgments are affirmed.

Judgments affirmed.

Barnes, P. J., and Geiger, J., concur.


author: Lloyd, J.

text:
    Weiser, Admr., Appellant, v. Smith, Appellee.
    (No. 3972
    Decided May 24, 1943.)

      Mr. W. W. Campbell and Mr. Earl W. Shoemaker, for appellant.

      Messrs. Welles, Kelsey, Gobonrn é Harrington, for appellee.
   Lloyd, J.

In the action commenced in the Court of Common Pleas the plaintiff, Claude J. Weiser, as administrator of her estate, sought to recover $590.88 for funeral and burial expenses of Constance Marie Weiser, whose death in an automobile collision occurring on August 7, 1941, in the State of Michigan, was proximately caused, it is alleged, by the negligence of the defendant, Smith.

The defendant in his answer admits the collision and the death of Mrs. Weiser, but denies that the cause thereof was the negligence of defendant. He further alleges:

“That heretofore, to wit, on or about October 1, 1941, the plaintiff herein instituted an action in this court against the defendant herein for damages for the alleged wrongful death of the plaintiff’s decedent, said Constance Marie Weiser, as a result of injuries alleged to have been sustained in the accident referred to in the petition herein; that said action, which became cause No. 159538 on the docket of this court, was prosecuted to trial; that the trial of said cause resulted in a verdict in favor of the defendant herein; that thereafter, to wit, on April 23, 1942, judgment in favor of the defendant herein and against the plaintiff herein was entered in said cause by this court; that no appeal was taken from said judgment; and that said judgment is res judicata of the issues sought to be raised in this cause and constitutes a bar to the maintenance of this action.”

In his reply, the plaintiff admits the foregoing allegations as to the commencement, the trial, the verdict and the judgment in the wrongful death action referred to therein, and that no appeal was taken from the judgment.

The defendant filed a motion for judgment in his favor on the pleadings. This motion was granted and judgment entered for the defendant. The plaintiff, appealing from this judgment on questions of law, assigns as error that the judgment is contrary to law.

Section 12102-31, General Code, provides that every court of this state shall take judicial notice of the statutes of every state of the United ‘States. Ohio and Michigan both have enacted wrongful-death statutes, those in Ohio being Section 10509-166 et seq., General Code. The corresponding statutés in Michigan relating to this subject are Sections 27.711 and 27.712, Michigan Statutes Annotated, 1943, Cumulative Supplement.

Section 27.712, so far as here pertinent, reads:

“Every such action shall be brought by, and in the names of, the personal representatives of such deceased person, and in every such action the court or jury may give such damages, as, the court or jury, shall deem fair and just, with reference to the pecuniary injury resulting from such death, to those persons who may be entitled to such damages when recovered and also damages for the reasonable medical, hospital, funeral and burial expenses * * *. After providing for •the payment of the reasonable medical, hospital, funeral and burial expenses for which the estate is liable, the- Probate Court shall determine as provided by law the manner in which the amount representing the total pecuniary loss suffered by the surviving spouse and next of kin shall be distributed * *

This section, it will be. observed, provides for the inclusion of “damages for the reasonable medical, hospital, funeral and burial expenses” as a part of the pecuniary injury recoverable in an action brought under the statute. It has been so frequently decided that the law of the state where the injury occurs governs the rights in this class of cases that comment beyond the mere statement of the fact is unnecessary.

Neither is it necessary to more than state the principle that the judgment of a court is final not only as to what is included therein, but also as to every other issue which the parties might have litigated and had determined in the action in which the judgment was rendered. In the instant case, therefore, the expenses for which judgment is sought were elements of damage which might properly have been presented in the wrongful death action, and the plaintiff is barred from attempting now to maintain a separate action for the expenses not asked for in the action theretofore brought and the judgment of the Court of Common Pleas is accordingly affirmed.

Judgment affirmed.

Carpenter and Stuart, JJ., concur.


author: Guernsey, P. J.

text:
    In re Estate of Knofler.
    (No. 959
    Decided July 3, 1943.)

      Messrs. Carhart S Carhart, for appellants.

      Mr. J. C. Williamson, Messrs.. Donithen S Michel and Mr. French Croio, for appellees.
   Guernsey, P. J.

These are separate appeals upon questions of law from an order made by the Probate Court of Marion county, Ohio, in the administration of the estate of Barney J. Knofler, deceased, in a proceeding instituted therein pursuant to the provisions of Sections 10504-63 and 10504-64, General Code, determining that the provision made by the testator, Barney J. Knofler, in his will, for his surviving insane spouse, Bertha A. Knofler, who died before such order was mhde, is better for such spouse than the provision made by law, and electing accordingly.

Appeals from this order were perfected by Edna S. Berringer as administratrix of the estate of Bertha A. Knofler, deceased, and by Richard Cheney and Ai'thur Cheney, heirs at law of Bertha A. Knofler, deceased.

Edna Munn, the sister of Barney J. Knofler, who is the residuary legatee and devisee under the last will and testament of Barney J. Knofler, deceased, one of the appellees herein, has filed her motion herein to dismiss the appeals, upon the following grounds:

1. That the order of the Probate Court of Marion county, Ohio, made on the 4th day of December, 1942, from which the appeal is taken, is not a final order and that by reason thereof no appeal can be had therefrom.

2. That the Court of Appeals of Marión county, Ohio, has no jurisdiction over the alleged appellee Edna Munn herein.

The right of election under a will is. a substantial right and the proceeding in which it is made is a special proceeding. '

The order made by the Probate Court therefore is an order affecting a substantial right made in a special proceeding and is, under the provisions of Section 12223-2, General Code, a final order which'may, upon review, be vacated, modified or reversed, and such order constitutes a judgment within the meaning of Section 6 of Article IV of the Constitution, conferring jurisdiction on the Court of Appeals to review, affirm, modify or reverse judgments of the Courts of Common Pleas, Superior Courts and other courts of record within the district, as may be provided by law.

It is contended by the movant, however, that the determination by the court of whether the provision made by the testator for the surviving spouse, in the will, or the provision by law, is better for such spouse, and electing accordingly, is a ministerial and not a judicial act, and consequently that no appeal may be had from it.

A judicial decision is the application, by a court or tribunal exercising judicial authority of competent jurisdiction, of the law to a state of facts proved, or admitted to be true, and a declaration of the consequences which follow. 2 American Jurisprudence, 857. The Probate Court in the instant case was a court exercising judicial authority of competent jurisdiction, and the order made by it constituted an application of the law to a state of facts proved, or admitted to be true, and a determination and declaration of the consequen-: ces which follow, bringing the order within the rule mentioned.

The determination of which of the provisions is better, and the election accordingly, therefore constituted the exercise of judicial discretion and such determination and election constituted a judicial decision.

For the reasons mentioned, the first ground of the motion is without merit.

The second ground of the motion for the dismissal of the appeal is that the Court of Appeals had no jurisdiction over the appellee Edna Munn.

As shown by the record, the appellee Edna Munn, as the residuary devisee and legatee under the will, is the only person to benefit through the order appealed from, and participated in and was represented by counsel in the hearing in the Probate Court at which the order was made, and while she is not a necessary party to the appeals, the appellee executor of the will of Barney J. Knofler being the only necessary appellee party, she is, on account of her interest in the estate, a proper party. Furthermore; the dismissal of the appeals as to her would not constitute a dismissal as to the executor.

For the reasons mentioned, the second ground of the motion to dismiss is without merit, and both grounds being without merit the motion to dismiss the appeals is overruled.

Barney J. Knofler made and executed his last will and testament at Marion, Ohio, on March 9,1942. Prior thereto, on the 2nd day of March, 1942, he had filed an affidavit in the Probate Court of Marion county, Ohio, charging his wife Bertha A. Knofler with being mentally incompetent. After proper hearing thereon, she was ordered committed to the Columbus State Hospital for the Insane, but was in the city of Marion, Ohio, in the family residence at the time of the making and execution of such will and was not physically committed to the Columbus State Hospital until March 11, 1942, where she remained in the same mental condition continuously until her death.

By his will, Barney J. Knofler gave all' of his propei’ty to Robert H. Reidenbaugh as trustee, with authority to pay his wife the income from the trust estate for her care, comfort and support during her natural life; and upon certain conditions and contingencies to use a part or all of the corpus of the estate for such purpose; and after her death such trustee was to turn over the estate to his sister Edna Munn. Barney J. Knofler, by his will, also divested his wife of all statutory rights, homestead, year’s allowance under the twenty per cent statute, as well as all claims under any other statutes, except only in one case, to wit:

“Should she, or any other person for her, for axxy reason, elect hot to take under my will, then my entire estate subject to her claims at law upon the same, shall pass without the intervention of my trustee, to my sister Edna Munn.”

In less than one month after Barney J. Knofler made his will he died. His will was filed for probate in the-Probate Court of Marion county, Ohio, on April 21, 1942, and admitted to probate by that court on April 28, 1942.

About two months after Barney J. Knofler made his will, Edna S. Berringer was appointed guardian of Bertha A. Knofler, surviving spouse of Barney J. Knofler, by the Probate Court of Marion county, Ohio, and served as such guardian until Bertha A. Knofler died on the 28th day of May, 1942.

Robert H. Reidenbaugh was appointed executor of the estate of Barney J. Knofler and Edna S. Berringer was appointed administratrix of the estate of Bertha A. Knofler by the Probate Court of Marion county, Ohio.

Robert H. Reidenbaugh, as executor of the last will and testament of Barney J. Knofler, filed his application in such court on May 22, 1942, directing the attention of the court to the fact that the widow was an incompetent person and confined to the Columbus State Hospital for the Insane, and that by reason thereof was unable to make an election as provided by law, and the Probate Court of Marion county, Ohio, in conformity with the provisions of Sections 10504-63 and 10504-64, General Code, appointed the Honorable Fred E. Guthery as commissioner to determine the value of the provision under the will of Barney J. Knofler, deceased, for his surviving spouse, and the value or right under the law.

On June 1, 1942, and subsequent to the death of Bertha A. Knofler, such commissioner made his report which he summarized as follows:

“Provisions under the will.

“So much of the income and corpus of the estate may be used in the care, comfort and support of the spouse, if it be necessary to use all of the same.

“Provisions under the law.

“Year’s allowance estimated at $1,200; selected under General Code 10509-54, $1,581.02; one-half of net estate $2,145.57. Total, $4,926.59.’’

Since the filing of the report the estimated value of the estate and the consequent value of the provisions under the law for the surviving spouse have been materially increased through the sale of stock at a price in excess of its appraised value, upon which the report was based.

Bertha A. Knofler is survived by her sister Edna S. Berringer and two nephews, Arthur Cheney and Richard Cheney, her only next of kin.

Barney J. Knofler was survived by his widow Bertha. A- Knofler and his sister Edna Munn and others as his only next of kin.

Bertha A. Knofler was 68 years of age at the time of her death.

On December 3, 1942, subsequent to the death of Bertha A. Knofler, the cause was heard by the Probate Court upon the foregoing report of Fred E. Guthery as commissioner to estimate the value of the provision made in the will of Barney J. Knofler, deceased, for his surviving spouse, Bertha A. Knofler, who was insane at the time of the death of Barney J. Knofler, and who continued in a state of insanity until the time of her death, and the value of rights of such insane spouse in his estate by law, and on the application of Edna S. Berringer, administratrix of the estate of Bertha A. Knofler, asking the court to determine that it is better for the surviving spouse of Barney J. Knofler and her estate to elect to. take under the provisions made by law, and a similar application by way of motion made by Arthur Cheney and Bichard Cheney, and the court thereupon finding that the provisions made by the testator for his spouse in his will are better for such spouse than the provisions to which she is entitled under the law, ordered, adjudged and decreed that an election for such widow to take under the will be made and entered upon the journal of the court, and dismissed the application of Edna S. Berringer, administratrix of the estate of Bertha A. Knofler, deceased, hereinbefore referred to.

This is the order from which the separate appeals are taken.

While the appellants assign error in a number of particulars, the errors may be summarized as follows:

Error in that judgment is contrary to law' and contrary to the evidence.

It is the contention of the appellants that upon the facts of the case, the insane spouse having died before the election was made and by reason thereof not being able to receive the benefit of the provisions of the will, the Probate Court should have determined that the provision made by law for the spouse, which would inure to the benefit of her estate, is better than the provision made for the insane spouse by the testator in the will, and should have elected accordingly.

In determining this question it is necessary to consider the following sections of the G-eneral Code, to wit, 10504-63, 10504-64 and 10504-60.

Section 10504-63. “When because of unsound mind, or other legal disability, the surviving spouse is unable to make an election, as soon as the facts come to the knowledge of the Probate Court, at any time within the time allowed by law for election, it shall appoint some suitable person to ascertain the value of the provision made for such spouse in lieu of the provisions made by law, and the value of the rights by law in the estate of the deecased consort.”

Section 10504-64. “On the return of the report of the person appointed to make such investigation, the court shall determine whether the provision made hy the testator for the surviving spouse, in the will, or the provision by law, is better for such spouse, and shall elect accordingly. It shall thereupon record upon its journal the election for such spouse under disability, by virtue of the proceeding herein provided, which election, when so entered, shall have the same force and effect as an election made by one not under such disability.”

Section 10504-60. “If the surviving spouse fails to make such election in person or by written instrument, or dies, at any time before the expiration of the time limit provided by law without having made such election, such spouse shall be conclusively presumed to have elected to take under the will and such spouse who fails to elect and the heirs, devisees and legatees of such spouse who dies without having elected and those claiming through or under them shall be bound accordingly, and persons may deal with the property of the decedent in accordance therewith.”

Section 10504-63, General Code, is analogous to and successor of Section 10574, General Code, repealed; Section 10504-64, General Code, is analogous to and successor of Section 10575, General Code, repealed; and Section 10504-60, General Code, is analogous to and successor of Section 10571, General Code, repealed.

The repealed sections were in effect and under consideration in the case of Ambrose v. Rugg, Admx., 123 Ohio St., 433, 175 N. E., 691, 74 A. L. R., 449.

That part of repealed Section 10571, which related to the same subject matter as Section 10504-60, then prescribed: “If the widow or widower fails to make such election in person as provided in Section 10570, or by written instrument as provided herein, within the time limit provided by Sections 10567 and 10568 or within the time limit provided in this section, then it shall be deemed that she or he has elected to take under the will and she or he shall be bound accordingly and persons may deal with property of the decedent- in accordance therewith. ’

From a comparison of these provisions with the provisions of Section 10504-60, General Code, it will be noted that Section 10504-60 prescribes a condition, to wit, the death of the surviving spouse, not prescribed in repealed Section 10571, General Code, upon which the conclusive presumption of an -election by such surviving spouse becomes effective.

The condition mentioned, not being prescribed by Section 10571, General Code, then in effect and applicable to the subject matter, the Supreme Court, in the case mentioned, held that the provisions of such section did not preclude an election to take under the law being made on behalf of an insane surviving spouse who died before the commencement of any proceeding to have an election made on her behalf by the Probate Court pursuant to the provisions of the then effective Sections 10574 and 10575, General Code, which, as above mentioned, have since been repealed and are succeeded respectively by Sections 10504-63 and 10504-64, General Code, now in effect.

The statutory provision as to the presumed election by a surviving spouse having been changed by the repeal of Section 10571, General Code, and the enactment in its place, of Section 10504-60, General Code, now in effect, the decision in the case mentioned is not now applicable to cases such as the instant case where a surviving insane spouse dies before the expiration of the time provided by law, without having made an election.

Under the plain wording of Section 10504-60, General Code, now in effect, upon the death of the surviving spouse, without respect to the sanity or insanity of such spouse, before the expiration of the time limit provided by law, where no election was made, it is conclusively presumed that such surviving spouse elected to take under the will, and this presumption is applicable to the facts and to the surviving spouse in the instant case.

By the use of the phrase “By the death of either or both of the parties thereto,” in that part of Section 11397, General Code, prescribing that “No action or proceeding pending in any court shall abate by the death of either or both of the parties thereto,” it is obvious that such provision is intended to apply and applies only to actions or proceedings of an adversary character, and is not intended to and does not apply to a special proceeding, such as the proceeding in question in the instant case, for the election of an incompetent surviving spouse, pursuant to Sections 10504-63 and 10504-64, General Code, which is not adversary in character.

As Section 11397, General Code, does not apply to the proceeding in question, the abatement of such proceeding is governed by the rules of the common law and under such rule? the proceeding abated on the death of the insane surviving spouse for whose benefit it was instituted.

As the conclusive presumption of an election on the part of the surviving insane spouse to take under the will became effective upon the death of the surviving insane spouse within the period limited by law without having made an election, before the order appealed from was máde, and such facts as to the death of the surviving insane spouse were in evidence before the court at the hearing upon which the order was made, the court should have made an order determining that the proceeding in which such election ,on her behalf was sought to be made abated upon her death and that by reason of her death there was a conclusive presumption that she had elected to take under the will. The only error in the order as made, is that the court attempted to do by election pursuant to the statutes mentioned what the law, by reason of the death of the surviving spouse, conclusively presumed had already been done.

Such error may be cured by a modification of the order so as to make the determination as to the abatement of the proceeding and the application of the conclusive presumption of an election to take under the will by reason of the death of the insane surviving spouse within the period limited by law without having made an election, as mentioned in the preceding paragraph.

It is therefore ordered that the judgment of the Probate Court be modified in the particulars herein-before set forth and, as modified, be affirmed at costs of the appellants.

Judgment modified and affirmed.

Jackson, J., concurs.


author: Hhdebrant, J. Ross, P. J.,

text:
    Robert A. Cline, Inc., Appellee, v. The Union Thread Co., Appellant.
    (No. 6274
    Decided July 6, 1943.)

      Mr..^Raymond. J. Kunkel, for appellee. -
    . Messrs .Fieman, Fry, Schulze <& Dreidame, for apr pellant.
   Hhdebrant, J.

This is an appeal on questions of law from the overruling of defendant’s motion for judgment notwithstanding the verdict, which was for plaintiff for the amount of a commission on a sale of real estate.

In December .1938, defendant informed plaintiff, together with other real estate brokers, by letter, that its industrial property located at 69th street,, adjacent to the Big Four Railroad tracks, was for sale. This was admittedly a general and not an exclusive listing. The parties will be referred to as plaintiff and defendant, as they appeared in the court below.

On April 10, 1941, plaintiff took a prospect, ■ one Nathan Brush, vice-president of Greif Bros, of Cleveland, Ohio, who later became the purchaser, to defendant’s property, introducing him to one of the officers and showing the property which on that date Brush rejected because it was a two-story building and principally because there was no sidetrack available. On August 6, 1941, plaintiff again showed Cincinnati real estate to Brush and exhibited a plat of defendant’s property, disclosing that a sidetrack had, in the interim, been extended to property adjacent to that of the defendant. Brush again rejected consideration of the property of defendant, without again viewing it, and stated they had decided to build.

One of defendant’s officers early in August, incidental to being in downtown Cincinnati, stepped in the offices of Cleneay-Nourse Company and urged them to find a buyer for defendant’s property:

Thereafter, early in August, one Steuewe, general superintendent of the purchaser, came to Cincinnati with general instructions to look for a site, including instructions to walk along the tracks in search of a site. Steuewe, not finding anything, started to telephone Cincinnati real estate brokers and contacted one Hoffmann of Cleneay-Nourse Company, who showed him the defendant’s site, with the sidetrack adjacent and available for extension onto the defendant’s property. Steuewe favored the site, and was to report that fact to his company. Hoffmann informed him he was leaving on vacation the following day and made tentative arrangements for a future meeting with Steuewe’s-superiors. Shortly thereafter, within four to ten days subsequent to August 6, 1941, the date of the last meeting between plaintiff and Brush, Brush again came to Cincinnati and, in the absence of Hoffmann, began direct negotiation with defendant for the purchase of the property, which culminated on August 26, 1941, in a tentative contract of purchase, conditioned on obtaining the consent of the state of Ohio in respect to the use of sidetrack over its property. During the negotiation, the parties contacted Hoffmann in regard to a reduction in commission, which was agreed upon.

Under the above facts, interpreted most favorably for the plaintiff, is the plaintiff entitled to a commission for the sale of such real estate?

There being neither an exclusive listing nor any contract, written or oral, setting forth the terms of representation, a ease is presented here, wherein the broker’s right to recover a commission is dependent upon performance by him in competition with others who might be similarly engaged. His right to compensation is contingent upon the success of his efforts. Anything less or different from that will not suffice, and, in the absence of an agreement with the seller, his unsuccessful efforts to effect a sale' entitle him to no commission. See Pfanz v. Humburg, 82 Ohio St., 1, 91 N. E., 863; Roush v. Loeffler, 18 C. C., 806, 6 C. D., 760; Hale v. Kumler, 85 F., 161; 8 American Jurisprudence, 1084, Section 168, and citations thereunder.

8 American Jurisprudence, 1087, Section 172, states the general proposition of law to be as follows:

“In the absence of a special contract, a broker must be the procuring cause of a sale or transaction in order to be entitled to commissions thereon. * * * When a broker is the procuring cause of a sale, is a question of considerable difficulty; in the main it is a question of fact for the jury, the decision in each case being dependent upon the particular facts and circumstances thereof.” See citations thereunder. See, also, 6 Ohio Jurisprudence, 211, Section 39.

It is therefore apparent that the variety of cases involving original introduction of parties, acquaintance of broker and prospect, presence of broker at consummation of sale etc., are illustrative only of the general principles of the law as applicable to the facts and circumstances of the particular case and hence not determinative of the instant case. The general principles of law outlined above have been followed in the Ohio cases cited, under their particular facts. We,must, therefore, apply those general principles to the facts of the instant case.

Plaintiff testified that Brush rejected the property on April 10, and again on August 6, and that his exhibition of the plat showing sidetrack on the property adjacent to the north was not sufficient to cause Brush to view the property again. He further testified that he did not again contact the purchaser until learning of negotiations between Brush and defendant, brought about by his competitor. Meanwhile, the visit of purchaser’s general superintendent to the Cleneay-Nourse Company’s office resulted in his being taken to view this particular real estate.

The premises then presented an appearance changed' and different from that on April 10. The extension of the sidetrack to the premises adjacent on the north, constructed with a fill, rendered defendant’s premises suitable, which fact was so reported to the purchaser by the . general superintendent. Hoffmann being on vacation, Brush negotiated directly with defendant to discuss price, terms, possession and all collateral matters involved, such as the necessary consent of the state of Ohio for use of the track.

The petition alleges that plaintiff, on August 6,1941, found a buyer ready, willing and able to buy defendant’s property, and he so notified defendant.

The answer is in the form of a general denial and the burden of proving every material allegation in the petition rests upon the plaintiff.

No evidence of the purchaser’s ability to buy on August 6, 1941, appears in the record. The fact that no one seemed to question that ability cannot be substituted for proof thereof, which proof the court deems necessary under the pleadings. C. O. Frick Co. v. Baetzel, 71 Ohio App., 301, 47 N. E. (2d), 1019. Nor is there any proof of purchaser’s willingness to buy on that date, but, on the contrary, plaintiff’s agent testified that Brush did not view the site again on that day, but rejected it, stating they were going to build. Plaintiff’s agent further testified he never saw or contacted either the purchaser or defendant after that day, and no price, terms, or collateral conditions were discussed, let alone agreed upon. That the purchaser was ready to the point of anxiety to buy an industrial site somewhere in Cincinnati is clear. But an agreement by a real estate broker to procure a buyer implies not only one able to comply, but the completion of the task of getting the parties together on all the terms disclosed, to the point of entering into an enforceable agreement. This plaintiff did not do, and. had not done so on August 6,1941, and thereby left the field open to all competitors. The rule applicable here is stated in Wilson v. Mason, 158 Ill., 304,. 311, 42 N. E., 134, 49 Am. St. Rep., 162.

Plaintiff argues to this court that there were collusion and fraud on the part of the purchaser and ■defendant, to avoid payment of a full commission to plaintiff. If such were present, there is no doubt that plaintiff would be entitled to a commission. Plaintiff relies principally upon the sequence of events and their timing as well as upon some measure of conflict or confusion in the testimony of defendant’s officers with reference to who made disbursements. This court feels the record discloses no substantial evidence of collusion or fraud by reason of the above. The leading case of Vreeland v. Vetterlein, 33 N. J. L., 247, well states the law in a situation similar to the one we have here.

The court -below was, therefore, in error in overruling defendant’s motion for judgment non obstante veredicto and that judgment is hereby reversed and the cause remanded with instructions to enter judgment non obstante veredicto for defendant.

Judgment reversed and cause remanded.

Matthews, J., concurs.

Ross, P. J.,

dissenting. An examination of the record' shows that on April 10, 1941, the agent for the purchaser refused the property because of lack of switching facilities. However, on August 6, 1941, the ■same representative of the purchaser was shown a plat indicating that switching facilities would then be easily available, a spur upon adjacent property having been Installed.

The purchaser then contacted the seller, and defendant, through another real estate agent and by a different representative, a ,few days later concluded a sale.

Such a situation presents a factual issue for a jury as to whether the plaintiff or another agency was the procuring cause of the sale. The jury found for the plaintiff.

I think the order of the trial court directing a new trial cannot be disturbed in view of the law preventing appeal by the plaintiff from such order.


author: Washburn, J.

text:
    Tefft, Appellee, v. Tefft, Appellant.
    (No. 3590
    Decided November 19, 1943.)

      Mr. John G. Grimm, for appellee.
    • Messrs. Buckingham, Doolittle é Burroughs, for appellant.
   Washburn, J.

This is an appeal on questions of law from the Court of Common Pleas, which, in a like proceeding, affirmed the judgment of the Municipal Court.

In the Municipal Court this cause was tried upon an agreed statement of facts, which is in the record as a part of the bill of exceptions allowed by the trial court.

Appellee was the plaintiff in the trial court, and will be hereinafter referred to as “plaintiff,” and the appellant will be referred to as “defendant.”

Plaintiff and defendant were wife and husband. Plaintiff brought suit for divorce against the defendant in September, 1940, and in October, 1940, filed an amended petition in which she prayed for an order for temporary alimony and to restrain the defendant from molesting her, and for a divorce and “sufficient permanent alimony, together with such other relief as the court may see fit. ’ ’

No answer or other pleading was filed by the defendant, but on December 7, 1940, plaintiff and defendant entered into an agreement which recited that “differences have arisen between the parties hereto, making it impossible for them to live together hereafter, and proceedings have been instituted by Mrs. Tefft for divorce.” Further, that “* * * in consideration of the premises it is agreed by and between the parties hereto as follows: that Avery S. Tefft relinquishes and releases to Mabel Tefft all claim, right or title to all property owned by them whether real or personal and of every nature and description. That he agrees hereby to pay all outstanding obligations owed by himself and Mrs. Tefft or either of them, said obligations being only those outstanding at the date hereof. That Avery S. Tefft agrees to pay to Mabel Tefft, starting from the date of this agreement, the sum •of ten dollars ($10) per week as temporary and permanent alimony for herself, said payments to continue after the date of final hearing of 4he above-mentioned divorce proceedings and until abrogated by mutual agreement of the parties hereto or by order of court.

“It is further agreed that upon final hearing of the above proceedings, this agreement shall be submitted to the court hearing.same, and if same meets with his approval, it shall be incorporated in and made a part of the decree of divorce, should said be granted.”

The parties did not live together thereafter, and the granting of the divorce was not contested. The decree granting plaintiff a divorce from defendant was entered on December 21, 1940, without making any mention of said contract or making any order whatsoever as to alimony.

Defendant paid alimony according to the contract from its date (December 7, 1940) to about March 1, 1943, and then ceased paying; and thereafter, on June 21, 1941, suit was filed in this case in the Municipal Court of Akron to recover $131, the amount claimed to be then due under the contract. Upon trial, judgment was entered for that amount; and, upon appeal on questions of law to the Common Pleas Court, the judgment was affirmed.

It is claimed by the defendant in this court that the contract in question is utterly invalid, for the reason that the parties were not permitted to enter into such a contract at common law, and that the act of March 19,1887, “to define the rights and liabilities of husband and wife” does not authorize the parties to enter into such a contract.

The pertinent sections of that act are as follows:

“A husband or wife may enter into any engagement or transaction with the other, or with any other person, which either might if unmarried; subject, in transactions between themselves, to the general rules which control the actions of persons occupying confidential relations with each other.” Section 7999, General Code.

“A husband and wife can not by any contract with each other alter their legal relations, except that they may agree to an immediate separation, and make provisions for the support of either of them and their children during the separation.” Section 8000, General Code.

By the case of DuBois v. Coen, Exr., 100 Ohio St., 17, 125 N. E., 121, it is established that “4. The term 'legal relations’ used in the act comprises not only the purely marital relations existing between them but also the property provisions which the law gave to each upon the death of a consort.”

While that case mentions statutory rights given to the wife, such as dower, year’s support, and homestead rights, and any interest which she might have under the laws of the state in the personal property owned by the husband, it is evident from the opinion that any other statutory provision made for the benefit of husband or wife, such as alimony, is included in the term “legal relations.”

In that case there was no separation of any kind between the husband and the wife, and the writer of the opinion, each time the proposition to be decided was stated, was'careful to point out that the contract under consideration was “without contemplating separation” and “without a view to separation,” and the opinion contains the following observation: “Whether the husband and wife act would permit such a contract to be made in a case where separation occurs we do not now decide.”

In the case of Hoagland v. Hoagland, 113 Ohio St., 228, 148 N. E., 585, after calling attention to the fact that, in the case first mentioned, it was not decided as to whether or not a husband and wife could contract as to certain of their legal relations if such contract was made in contemplation of a separation, the court decided that ‘ ‘ 2. Sections 7999 and 8000, General Code, when construed together, permit a husband and wife, contemplating such separation, to enter into an engagement mutually releasing each other’s right to dower and distributive share in the other’s property; they are also authorised thereby to contract for the future support of either of them and their children during such separation.” (Italics ours.)

Thus, in those two cases, the court recognized a contract for the support of the wife as involving the legal relations of the parties and as being prohibited by the statute unless the same was made in contemplation of a separation which occurs.

What character of separation was embraced in such statements by the court? Did they include only a temporary separation, which the parties could terminate by again living together as husband and wife and which would terminate the contract? Or, did they include a permanent separation'by divorce?

It seems to us that these questions were answered in the case of Mendelson v. Mendelson, 123 Ohio St., 11, 173 N. E., 615. That case was an action on a contract made in contemplation of separation, for support during separation. Later,- as was evidently contemplated, the parties were divorced, but .the' decree did not mention said agreement or make any order as to support, and the suit was for the amount claimed to be due under and by virtue of the terms and provisions of the separation agreement. The court held that “2. A decree of divorce, which is silent on the subject, does not of its own force terminate a separation agreement previously entered into by the parties pursuant to the provisions of Section 8000, General Code.”

In view of the opinions rendered in the foregoing three cases, we are of the opinion that the contract in the instant case was valid and enforceable, notwithstanding the contract was not submitted to the court granting the divorce for its approval.

While it is the general practice to submit such agreements to the court granting the divorce for its approval, we find no law requiring that to be done. Such practice is commendable, but whether it should be required is a matter for the Legislature. The fact that plaintiff’s attorney failed to present the instant contract to the court and have it made a part of the judgment of the court, was to the disadvantage of plaintiff, for, if that had been done, collections could have been enforced by contempt proceedings, in addition to proceedings by civil suit, but such neglect was of no disadvantage to the defendant.

No other defenses were presented in either the trial court or in this court.

Judgment affirmed.

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


text:
    Jamison, Appellant, v. Industrial Commission of Ohio, Appellee.

      (No. 6261
    Decided May 3, 1943.)

      Mr. Henry P. Karch, for appellant.

      Mr. Thomas J. Herbert, attorney general, Mr. Rob■ert E. Hall and Mr. Edward A. Schott, for appellee.
   Matthews, J.

The Industrial Commission denied the plaintiff’s application for compensation on the ground that his injury had not arisen out of and in the course of his employment. On appeal to the Common Pleas Court, at the close of counsel’s opening statement to the jury on behalf of the plaintiff, the court ■sustained the defendant’s motion for an instructed verdict, overruled plaintiff’s motion for a new trial and entered judgment for the defendant. This appeal is from that judgment.

Counsel for appellee correctly state the issue raised ■by this appeal as follows: “The sole question involved is whether or not the plaintiff-appellant received an injury arising out of his employment.”

As the judgment was rendered on the opening statement, which, for the purposes of this appeal is assumed to be true, we examine that statement for the factual basis of a decision.

We find this in the opening statement:

“* * # this action arose through an accident occurring on the 27th day of February, 1939, to this man here, Orlee Jamison, while he was in the employ of the Hoetker Coal Company. Now, the young man had been employed there for several years as a common laborer, using a shovel, shoveling coal from the cars, and on this particular day, February 27, 1939, he was occupying that labor position up until the evening when he was asked to serve as a night watchman during the absence of the regular night watchman. Now, he evidently had no experience as a night watchman. He had a conference with Mr. Hector and was shown the equipment the night watchman had for that purpose. In the desk drawer was a gun and a flash light in the office of the company down on Budd street. Prior to that time this man, on the 9th day of February, married, and on this — after he went to work there after his marriage to this woman she had at different times during the day time taken lunch to him so that on this evening after he was engaged as night watchman — he had worked already for twelve hours practically up tó that time, and she went over that evening at his request and brought his lunch to him, arriving there somewhere around eight o’clock or a little later, and while she was there and while it was raining, it was' a dark evening and raining, and on these premises the proprietor had a lot of dogs, and he particularly instructed- this man to look after those dogs and give them milk and if the dogs made any noise or barked he should go and see what the disturbance was, and while his wife was there with him that evening he was called out by a disturbance or noise from the barking dogs about three times. This is all in the record and will be read to you.

“Now the claimant’s case is this, while he was employed there and while his wife was there he had occasion to go out three times to quell any disturbance or to see if any persons were approaching the property. It was a dark night and the first time he went out he was called out when he was eating a sandwich, he went out and his wife stayed there. Prior to his going-out I think the record shows he told her about being a watchman and what the duties were and that he had a gun and a flash light, so he went out twice and the third time he went out he didn’t take his.gun with him but left it there and told his wife she should not use it unless somebody disturbed her, and he was gone a little longer than expected and she was a little nervous and she heard a noise and saw someone approach and she didn’t know who it was and she suddenly picked up the gun and fired, supposedly in the air, according to his instructions, and shot him through the body, the bullet going in on one side and out on the other side of his abdomen. It pierced the stomach and destroyed one of the kidneys which had to be removed, and also lacerated the liver.”

Now there is no suggestion in this statement that the plaintiff’s wife was on the premises at the request or with the knowledge of the employer. In bringing the plaintiff’s lunch and staying with him during his watch, she was performing no act for or on behalf of the employer. What she did was personal to her and the plaintiff. She was no part of the employer’s establishment or its activities or environment, to the hazards of which the plaintiff subjected himself by accepting employment. The plaintiff created whatever hazard there was by his wife’s presence. Such hazard did not and would not have existed otherwise in his employment.

The plaintiff’s duty was to protect his employer’s property from trespassers and intruders from without, and any accidental injury from that source would be traceable to a hazard peculiar to the employment. But an injury from an agency on the premises, brought there after his employment for purposes of his own, cannot be said to have any causal relation to the employment. While the gun was there at the time of the employment, it was simply the instrumentality. The cause of the plaintiff’s injury was its intentional discharge by his wife.

We think the case falls within the principle of the case of Highway Oil Co. v. State, ex rel. Bricker, Atty. Genl., 130 Ohio St., 175, 198 N. E., 276. We quote the second paragraph of the syllabus:

“There is no causal connection between an employment and an accidental injury, and such injury does not. result from or arise out of the employment, where an employee in the course of his employment as an attendant at a gasoline service station is injured by the-accidental discharge of a firearm which he caused to be-brought to the station at the request of a fellow employee for self-protection, without the knowledge or acquiescence of the employer.”

At pages 181 and 182 of the opinion it is stated:

“Causing the gun to be brought onto the employer’s premises was Hurst’s own unauthorized act, bearing-no reasonable relationship to the services he was engaged to render. He thereby became subject to a danger of his own creation, to which the performance-of his duties did not expose him; a danger not fairly within the anticipation of his employer; an added peril foreign to, the contract of hire. Of course, if Hurst had been shot by robbers at the service station in the-course of his employment, quite a different question would be presented.”

As is said in Ashbrook v. Industrial Commission,. 136 Ohio St., 115, 24 N. E. (2d), 33, an injury arises out of the employment “ ‘when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury.’ ” The fatal defect in the-plaintiff’s position is that his injury was caused by his wife, an agency entirely foreign to the conditions-under which he was required to perform his work. It. did not arise out of the employment.

For these reasons, the judgment is affirmed.

Judgment affirmed.

Ross, P. J., and Hiltjebbant, J., concur.