text:
    Mays et al., Appellees, v. Hartman et al., Appellants.
    (No. 6836
    Decided October 20, 1947.)

      Mr. J. G. Williams, for appellees.

      Mr. Leo J. Brumleve, Jr., for appellants.
   Matthews, P. J.

The plaintiffs entered into a written contract with the defendants to do certain work and furnish certain material in making alterations in and additions to a dwelling .house in Cincinnati, as shown on the plans and specifications attached to and made a part of the contract. The plaintiffs agreed that all work would be done in a first-class workmanlike manner, and completed within 90 days from September 6, 1945 — the date of the contract. They also agreed that the entire cost, including material,, labor, superintendent’s fees and profits- “shall not exceed $4,600, and the parties of the second part shall' not be liable to the party of the first part for any sum-in excess thereof.”

The plaintiffs agreed to carry workmen’s compensation and public liability insurance, and to strive at all times to keep all costs as low as possible. Within the-maximum cost of $4,600, it was agreed that the plaintiffs were to be paid $2 per hour while on the job for-superintending, and had the right to employ all other workmen at the scale of wages in Cincinnati at the time the contract was made. It was agreed that the-plaintiffs should be paid “every two weeks for all costs of material and labor furnished by them or under their supervision, upon delivery of receipted bills therefor.”

Upon completion of the alterations and additions,, the defendants agreed to pay to the plaintiffs ten per cent “for overhead charges and an additional ten (10) per cent for profit” limited, however, as already noted, to a total cost including fees and profits of $4,600.

The plaintiffs entered upon the work, and on September 20, October 8, October 20, and November 8,. 1945, delivered receipted bills for labor and material aggregating $2,252.15, and the defendants in each instance paid the amounts to the plaintiffs within a few days after the bills were submitted.

The latter part of November (either the 27th or 30th) the plaintiffs delivered to the defendants receipted bills totaling $1,476.59. There is a dispute as to the details, but there is no dispute that the defendants did not pay this last item, but after some discussion with the plaintiffs arranged for them to meet in the office of their attorney on December 5th, to discuss the situation. At that meeting the plaintiffs produced other receipted bills which made the total unpaid to the defendants $1,715.35.

There is no dispute that at this meeting of December 5th the plaintiffs asked for payment of the receipted bills and that the defendant Charles Hartman called attention to the status of the work on the dwelling and the possibility of mechanic’s liens being filed against the premises, and the parties made an estimate of what it would cost to complete the work required by the contract. Attention was called to the fact that the plaintiffs had already presented receipted bills for $3,967.49, and that left only $632.51 as the maximum to be paid to the plaintiffs for full performance of the contract. The total cost of the alterations and additions was estimated by the defendants at $1,851.13 above the maximum of $4,600. In reaching this figure the items were taken up separately and an estimate made. Both plaintiffs and defendants took part in this process, but to what extent the plaintiffs agreed is in dispute. The parties discussed the situation presented by the payments apparently being disproportionate to the progress of the work, but the meeting adjourned without any agreement being reached or any payment being made.

On one hand, it is claimed that defendants refused to pay. On the other,, it is claimed that there was no refusal to pay, that, the meeting adjourned with the understanding 'that Ben Mays, who had attended the meeting on behalf of the plaintiffs, was to .consult J. K. Mays in the light of the developments at the meeting, and that another conference should be held thereafter. However, no such meeting was held. On December 6,1945, which was the next day after the meeting, the plaintiffs discontinued all work on the dwelling house, and, on March 23, 1946, filed this action on the contract to recover not only for the labor and materials actually furnished but also 10 per cent for overhead and 10 per cent for profit “as provided in said contract’? making a total, including $561.19 for extras, of $3,020.89. The plaintiffs did not allege full performance of the contract. They alleged that the defendants had failed and refused to pay the amount of the receipted bills and that the plaintiffs had performed all conditions on their part to be performed up to that time.

The defendants by answer pleaded the terms of the contract, alleged that the plaintiffs had failed to complete the performance of their contract, and denied generally the allegations of the petition. By cross-petition, the defendants alleged that after the plaintiffs had abandoned the contract without excuse, they were required to expend $1,514.20 in excess of the maximum contract price and they prayed judgment for that amount.

By reply to the answer and answer to the cross-petition, the plaintiffs alleged that they abandoned the work only after defendants’ refusal to pay and because thereof, and that the defendants’ interference prevented completion within the 90 days from date of contract.

The jury returned a verdict of $1,510 for the plaintiffs and judgment was entered thereon. It is from that judgment that this appeal was taken.

Neither the pleadings nor the evidence raised any .issue as to the making of the contract. The contract was in writing and the terms were undisputed. The only issues were as to which party had been guilty of a breach of the contract and the damage resulting therefrom.

It should be observed that the evidence is conflicting as to what took place at the conference on December •5th. The defendant, Charles R. Hartman, denied that he refused to pay. His testimony was that he delayed his decision to pay or not until he was informed of the ■attitude of the plaintiffs on the subject of the disproportion of payment and performance by the plaintiffs, and that the plaintiffs were to notify him thereon ; and that without doing so the plaintiffs abandoned the contract.

Section 276, paragraph (a), of Restatement of Contracts is:

“Unless the nature of a contract is such as to make performance on the exact day • agreed upon of vital importance, or the contract in terms provides that it shall be so, failure by a promisor to perform his promise on the day stated in the promise does not discharge the duty of the other party.” ,

Assuming, without deciding, that the absolute refusal of the defendants to pay would constitute a breach of a condition which would justify the plaintiffs in abandoning the contract, we are of the opinion that no such situation is presented here. As the evidence was conflicting, it became an issue of fact as to whether the first breach was committed by the defendants in refusing to pay, or whether the plaintiffs committed the first breach by abandoning the work the next day, instead of waiting a reasonable time for the defendants to perform by paying the installment, assuming that the defendants were not justified in so withholding payment.

At the request of the plaintiffs, the court gave two •special charges, to which the defendants excepted, and which they now assign as error. These special charges' are:

“Whether or not the work could be completed and the materials furnished within the price stipulated in the contract (exhibit 2), has nothing to do with the obligation of the defendants to pay to the plaintiffs up to a total of $4,600 when and if money became due under the terms of the contract.”

“If your verdict is in favor of the plaintiffs, you will add to any amount found due for labor and materials furnished by the' plaintiffs, or under their supervision, an amount equal to 10 per cent of all labor and materials furnished, for overhead charges under the contract, and another 10 per cent for profit; provided that the- total amount of your verdict cannot exceed $4,600 plus the reasonable value of all extras ordered by the defendants and furnished by the plaintiffs, less $2,252.15 previously paid by the defendants, plus 6 per cent interest from December 5, 1945, on the remainder.”

Taken together, those two special charges gavé to the plaintiffs the full damage resulting from the breach of all the defendants’ promises without any deduction by reason of being relieved of performance of promises made by them. By abandoning the contract, whether for just cause or otherwise, the plaintiffs avoided the completion of the alterations and additions at a cost in excess of the contract price. By so doing, they relieved themselves of a burdensome promise and cast upon the defendants the burden.

In Restatement of Contracts, at Section 335, the rule applicable to the situation is stated as follows:

“If the defendant’s breach of contract saves expense to the plaintiff by discharging his duty of rendering a performance in return1 or by excusing him from the performance of a condition precedent, the amount of this saving is deducted from the damages that would otherwise be recoverable.”

In the footnote to Section 335, this illustration of the application of the rule is given:

“A contracts to build a house for $10,000 promised by B. When it is partly built, B repudiates the contract. A’s recoverable damages are $10,000 less the amount saved by A in not having to complete the house.”

Where the specific situation is covered by the Restatement of the Law, we deem it unnecessary to cite supporting authority. It is the highest authority under such circumstances. However, the same rule is stated in 17 Corpus Juris, at pages 927 et seq.

That rule was applied in Molyneux v. Twin Falls Canal Co., 54 Idaho, 619, 35 P. (2d), 651, 94 A. L. R., 1264, under these circumstances as stated in the syllabus as reported in A. L. R.:

“In a contractor’s action for loss of profits through not being permitted to complete performance of his contract, allowance should be made, in ascertaining the damages recoverable, of a reasonable amount for release from care, trouble, risk, and responsibility which would have attended the full execution of the contract. ’ ’

Although we construe the petition to state a cause of actiop on the contract and not on quantum meruit, we think the same measure of damages should be applied. In 5 Williston on Contracts (Rev. Ed.), at page 4132, the author states that when once it is admitted that the plaintiff has a valid claim, the only problem would be “possible advantages received by the plaintiff from the part performance which had taken place, or (2) a possible right of recoupment or deduction in behalf of the defendant for the plaintiff’s failure completely to fulfill his contract.”

And, at pages 4123, and 4124, it is said:

“* * * and the weight of authority strongly supports the statement that a builder, whose breach of contract-is merely negligent, can recover the value of his work less the damages caused by his default, but that one who has willfully abandoned or broken his contract cannot recover.”

We are of the opinion the issue as to whether the ‘defendants by withholding payment dr the plaintiffs by abandoning the work committed, the breach of the contract should have been submitted to the jury. The party in default could not recover either on the contract or in assumpsit. Mehurin v. Stone, 37 Ohio St., 49, at page 55 et seq., where it is said:

“The judge in his opinion employs language which would lead to the inference that a different rule from the one above stated prevails in regard to building contracts, as respects the performance by the builder; and he cites in support of that view, Hayward v. Leonard, 7 Pick., 181. This case, however, in view of its peculiar facts, is not understood by the Supreme Judicial Court of Massachusetts, as laying down any rule peculiar to building contracts. In Olmstead v. Beale, 19 Pick., 528, after stating the general rule to be, that, where under the contract, performance by one party is to precede payment by the other, no recovery could be had either upon the contract, or upon an implied assumpsit, where the precedent conditions were not performed, the court say, ‘The cases of Hayward v. Leonard, 7 Pick., 181, and Smith v. First Congr. Meeting-House in Lowell, 8 Pick., 178, are neither incompatible with, nor exceptions to the rule.' It will be found in these and other similar cases, that there was an express or implied assent to the deviations from the contract, or a substantial performance of it. The equitable principle which governs them, and which itself is of recent introduction, only extends to unimportant, accidental arid unintentional deviations, which, from the differences of opinion, that so often exist, in relation to the exact requisition in the details of a special contract, had become indispensable to the administration of justice in such cases. But where there is an important.and voluntary deviation or omission from the contract, the doctrine of Faxon v. Mansfield, 2 Mass., 147, will apply, and the contractor can have no remedy for the materials furnished and the services performed.’ ”

See, also, Ginther v. Shultz, 40 Ohio St., 104.

However, as one or the other was in default and one or the other entitled to recover, the measure of damage would he the same no matter which was the defaulter, with the exception that the defaulter would be limited to recoupment against the damages suffered by the non-defaulter.

If the jury found that the defendants committed the breach, then the plaintiffs would be entitled to recover the damages resulting to them by the failure of the defendants to perform their promises, less the benefit resulting to the plaintiffs from being relieved of the necessity of full performance on their part.

If the jury found that the plaintiffs committed the breach, then the defendants would be entitled to recover their damage for the plaintiffs’ failure to completely perform, which, of course, would give the plaintiffs credit for the part performed by them.

We find no other prejudicial error in the record.

For failure to submit the issue of breach to the jury, and error in giving the special charges, the judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

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


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Schmidt et al., Appellees, v. Village of Deer Park, Appellant.
    (No. 6833
    Decided November 17, 1947.)

      Mr. William R. Collins, for appellees.

      Mr. J. Louis Warm, for appellant.
   By the Court.

This is an appeal on questions of law from a judgment enjoining the collection of street and sidewalk assessments. The improvements were commenced and the assessments levied in the latter part of 1938. The improvements were completed in November 1939. This action was instituted on the 25th day of February 1941.

The assessments were levied on the basis of the footage fronting upon the streets improved. There is some evidence, of the value of the property after the improvement, which shows that the assessments were less than one-third of such value. There'is no evidence of the value of the property before the improvement. However, it is manifest that the improvement enhanced the value somewhat, and no contention was made by defendant, appellant herein, by brief or oral argument, that the assessments exceeded the benefits.

The validity of the assessments is assailed because of two alleged procedural defects: .

(1) That the defendant failed to serve the plaintiffs, Albert T. Thiedeman and Grace E. Thiedeman with written notice of the passage of the resolution of necessity in the manner prescribed by Section 3818, General Code..

(2) That there was incorporated in the municipal legislation provision for improving many streets and sidewalks in addition to the streets here involved, thus violating Section 4226, General Code.

As a corollary, it is contended that to sustain these assessments would violate the du'e-process clauses of the federal and state Constitutions.

The record shows that all the plaintiffs during all the time the improvement of these streets was pending resided in the premises abutting on the streets against which these assessments were levied. They were informed of the contemplated improvements and assessments, and appeared before council and urged that the improvements be not made. They knew that the council decided to proceed and watched the work progress to completion without filing any protest as required by law ór otherwise to the assessment. It was only after the improvement had been completed and they had been notified of the maturity of the first installment of the assessment that the- plaintiffs protested, and that protest was by filing this action.

The only dispute relates to whether the Thiedemans received the written notice of the passage of the resolution of necessity. The clerk testified that he left the notice at their usual place of -residence with the person whom he found there. The Thiedemans testified that they did not receive it.

It is not contended by the plaintiffs that they wfere prevented from asserting any claim for damages by reason of not receiving the written notice of the passage of the resolution of necessity.

The record is clear that the passage of all the resolutions and ordinances relating to these improvements was duly published as required by law.

The trial court construed Section 3812, General Code, to authorize the incorporation of one improvement by legislation, and further construed Section 3815-1, General Code, authorizing the inclusion of more than one, as not applying to the improvements involved here. The court thereupon applied Section 4226, General Code, prohibiting the inclusion of more than one subject in the same legislation, and found that this legislation violated that section. For that reason, the collection of the assessments was enjoined.

We do not think it is necessary to discuss the soundness of the plaintiffs’ contentions or the basis of the trial court’s decision, as we have reached the conclusion that the plaintiffs were in no position to assert defects in the legislation authorizing these improvements and assessments. It is our view that the plaintiffs by their inaction with full knowledge of the facts have waived whatever right they had to object.

In City of Cuyahoga Falls v. Beck, 110 Ohio St., 82, 143 N. E., 661, the court had under consideration the question whether a property owner with actual notice, who failed to file objection, could, after the improvement was completed, enjoin the collection of, the assessment on the ground that it exceeded one-third of the value of the property after the improvement. The court held:

“Where the property owner has received actual notice of the amount of the assessment, failure to file such written objection constitutes waiver of the right to question the assessment in a court of equity under Section 12075, General Code, and this is true even though the assessment exceeds 33 1-3 per cent of the actual value of the lot or parcel of land in question after the improvement is made.”

If inaction after notice deprives a property owner of standing in a court of equity to raise the question of the amount of the benefit in relation to the value of his property, stronger, reasons would seem to deprive him of the right to found his claim for equitable relief on purely technical defects in the. legislative procedure.

This court has had before it on several occasions the question whether a property owner may remain inactive after notice until the improvement has been completed and then secure an injunction against collection of the assessment on the ground that the statutes have not been followed in some respect. We have held that he waived the defect. Joseph Oker Sons Co. v. City of Cincinnati, 45 Ohio App., 466, 187 N. E., 314, and City of Cincinnati v. Board of Education, 63 Ohio App., 549, 27 N. E. (2d), 413. In the latter cáse there was involved the broad question of the jurisdiction of the courts to interfere with the. action of assessing authorities.

We are not unmindful of the case of Joyce v. Barron, Treas., 67 Ohio St., 264, 65 N. E., 1001, holding that where there is an entire failure to, give the written notice of the passage of the resolution of necessity “and the resident owner has no notice or knowledge of the making of the improvement until after it is wholly completed” the assessment will be enjoined. The quoted part distinguishes that case from the present one, as well as the fact that there was service, albeit defective, of the written notice in the present case.

In City of Bartlesville v. Holm, 40 Okla., 467, 139 P., 273, 9 A. L. R., 627, the court held as stated in the syllabus:

“Where jurisdiction is conferred upon a municipal body to provide for paving its streets and charge the cost thereof against the property benefited, according to the method provided by law, a property owner who stands by while such work is being prosecuted, with full knowledge that large expenditures are being made for such improvement which will benefit tais property, or, upon due notice, fails to appear at the proper time and before the ti-ibunal prescribed by law, and present his objections, if he have any, will not, after the work is completed, be afforded relief by injunction against assessments levied against the property benefited, to pay for such work.”

The elements of an estoppel or waiver under the ■circumstances of this case are set forth in the fifth paragraph of the syllabus of Tone v. City of Columbus, 39 Ohio St., 281, 48 Am. Rep., 438, whieh we quote:

“Active participation in causing the improvement to be made will estop the party engaged therein from ■denying the validity of the assessment; but to create .an estoppel from silence merely, it must be'shown that the owner had knowledge: 1. That the improvement was being made; 2. That it was intended to assess the cost thereof, or some part of it, upon his property; 3. That the infirmity or defect in the proceedings existed which he is to be estopped from asserting; and 4. It must appear that some special benefit accrued to his property from such improvement which it is inequitable, under the circumstances, he should enjoy without compensation.”

We find all the stated elements of an estoppel in this case.

Section 3902, General Code, provides:

“When it appears to the council that a special assessment is invalid, by reason of informality or irregularity in the proceedings, or when an assessment is adjudged to be illegal, by a court of competent jurisdiction, the council may order a reassessment, whether the improvement has been made or not.”

It would appear to be a vain thing to enjoin the collection of this assessment when the village council has the power to impose the identical burden by a reassessment. If there had been a showing that prejudice had resulted to the plaintiffs by the irregularities in these proceedings, and that such prejudice could be corrected by a reassessment, a different case would be presented.

For these reasons, the judgment is reversed, and,, as it appears on the record that the defendant is entitled to a judgment in its favor, such judgment maybe entered.

Judgment reversed.

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


author: Hornbeck, J.

text:
    Dependabilt Homes, Inc., Appellant, v. Haettel, Appellee.
    (No. 4028
    Decided October 20, 1947.)

      Mr. Benjamin Levinson, for appellant.

      Mr. Guy V. Fridley, for appellee.
   Hornbeck, J.

This appeal on questions of law is from a judgment of the Common Pleas Court on a verdict of the jury for the defendant..

Four errors are assigned: (1) The overruling of plaintiff’s motion for directed verdict at the close of its evidence in chief and at the close of all of the testimony; (2) the admission of testimony offered on behalf of defendant; (3) the general charge to the jury; and (4) the verdict is manifestly against the weight of the evidence.

All four assigned errors are so closely related that they may be considered generally.

The action was upon a written contract wherein the plaintiff proposed to purchase certain property, therein described, in the city of Columbus, owned jointly by the defendant and a brother. The price offered was $2,550. There are other provisions in the contract, which are not necessary to an appreciation of the questions presented. At the bottom of the contract there is printed an acceptance form, which is, in part, “I hereby accept and agree to the above proposition. * * *” The acceptance was signed by Mary M. Haettel only.

Upon defendant’s failure to make a deed to the plaintiff after request on her so to do, it instituted its action for damages- in the sum of $950, such amount being the claimed difference in value between the purchase price in the contract and the value of the property as of the date when plaintiff demanded a deed.

The answer of the defendant admitted the signing of the acceptance to the purchase proposal but says that it “was upon the condition and understanding with the agent of the plaintiff that her brother, Joseph A. Haettel, was the owner of an undivided one-half interest in the property, that this acceptance would be binding only if and when her said brother agreed to and accepted the same; and that the brother refused to accept the offer of the plaintiff, and therefore the contract of purchase and sale was not completed.”

The court admitted evidence of the defendant as to what she told the real estate agent, at the time she signed the acceptance, as to the ownership of the property, and that, prior to the date of the signing of the contract, the real estate broker knew that she owned only one-half of the property and that her brother owned, the other half, and stated why he knew, and further, that when she signed the acceptance she told him that her contract was conditional upon the further acceptance by her brother.

Plaintiff objected to that testimony on the grounds (1) that it varied the terms of the written contract, and (2) that it could not be binding upon the plaintiff because the real estate broker was not its agent.

The first question, then, is whether the subject matter of that testimony was at variance with or in contradiction of the express terms of the written contract.

Counsel for plaintiff cites Frankel Chevrolet Co. v. Snyder, 37 Ohio App., 378, 174 N. E., 751. The first paragraph of the syllabus thereof is:

“Parol evidence may be given to prove separate oral agreement constituting condition precedent to attaching of obligation under contract.”

However, it is asserted that the proof here establishes a condition subsequent.

The effect of the testimony of the defendant is that the acceptance of the purchase proposal was not to be binding upon her unless and until her brother also accepted. We have no doubt that this was a condition precedent, which is variously defined as “ a fact which ■ must exist or occur before a duty of immediate performance of a promise arises.” Rosenblum v. Sun Life Assurance Co. of Canada, 51 Wyo., 195, 203, 65 P. (2d), 399, 401, 109 A. L. R., 911, 914; Bowers v. Bowers (Tex.), 99 S. W. (2d), 334, 337.

An estate on a condition precedent is one where no right vests until the condition is performed. Mitchell v. Mitchell, 143 Ind., 113, 119, 42 N. E., 465, 467.

The second question is, did the proof raise an issue of fact whether the broker was the agent of the plaintiff at the time the defendant signed the acceptance. If it did, then the issue was properly presented to the jury and if the broker was its agent, any statements made by tbe defendant to the broker would be binding upon his principal and would be admissible.

Upon the factual development in the record, this presents a very nice question. There appears evidence from which the jury could find that at the time of the signing of the acceptance the broker acted as ■agent for both parties. This issue was not presented and no error could be predicated upon it because it would not materially change the situation, if established. The jury was hot required to answer such a question but did answer negatively the question: “Was the Central Realty Company and Mr. Bernhardt the agent of the defendant, Mary M. Haettel?” Even though that interrogatory was improperly answered and the evidence would support the conclusion that the broker was the agent of the defendant, it would not destroy the import of the general verdict that the broker was the agent of the plaintiff.

Without quoting at length from the record, it appears that the defendant had placed the property in question with the broker for sale in September 1945, and the proposal in question not having been made until February 1946, it is manifest that, if this was the only contract, thére would be no subsisting agreement between the broker and the defendant. However, after stating the lapse of time, the defendant says that she again sent for the broker and after conversation he said he would try to find a purchaser. Later, on cross-examination, she was asked and she answered:

“Q. The Central Realty Company was your agent, was it, at the time he procured a purchaser for you? A. Yes, he brought the contract.”

If she had not added the words, “he brought the contract,” we would have an express acknowledgment that the broker was the defendant’s agent when the acceptance was signed. But the whole answer permits of the inference that she concluded that the broker was her agent because he brought the contract..

By the principle announced in Pope, Admx., v. Mudge, 108 Ohio St., 192, 140 N. E., 501, even upon hqr answer and her other testimony, under all the other circumstances appearing, we are satisfied that there was support for the averment of the answer that the broker was the agent of the plaintiff and for the-general verdict of the jury.

Some of the circumstances indicating that the broker was the agent of the plaintiff are:

The representative of the purchaser came with the-broker to the home of the defendant at the time when, the purchase proposal was made to her. The representative of the plaintiff was active in the transaction and made the proposal in writing to the defendant through the broker. He changed the proposal, as to the amount of the purchase price, in writing, and particularly, the notation at the bottom of the acceptance over the signature of the defendant that she was to-pay no commission, permitting the conclusion that the commission was to be paid by the plaintiff, evidence from which inference could be drawn that the broker was its agent. Rojek v. Kuskowski, 1 Ohio Law Abs., 184.

Objection is urged to the questioning of the defendant by the court. If at any time in the trial of a cause,, a judge is prompted, in the interest of justice, to develop facts germane and pertinent to an issue of fact to be determined by the jury, it is proper that he do so.

Upon careful consideration of the whole record, we find no assigned error prejudicial to the cause of the plaintiff.

The judgment is affirmed.

Judgment affirmed.

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


author: Skeel, J.

text:
    The Weldon Tool Co., Appellant, v. Kelley, Appellee.
    (No. 20666
    Decided November 3, 1947.)

      Mr. T. Edward McNamara, for appellant.

      Messrs. Davis & Young, for appellee.
   Skeel, J.

This action comes to this court as an appeal on questions of law from a judgment for the ■defendant entered in the Municipal Court of Cleveland.

The plaintiff was the owner of a Chevrolet truck which, on the date of the accident (October 21, 1944), was parked on the north curb of Payne avenue just -■east of East 21st street in the city of Cleveland. The defendant was then and there driving his automobile in a southerly direction on East 21st street. When he came to the intersection of Payne avenue with East '21st street he brought his automobile to a stop because a police traffic signal light then in operation .at that intersection displayed the red or “stop” sign for East 21st street traffic and green or “go” sign for Payne avenue traffic. There was one automobile in front of the defendant as he stopped at the intersection. When the traffic light changed so that East 21st street traffic conld proceed through the intersection, the defendant put his automobile in gear and started forward with other traffic. He testified that just before he started: “I had a pain once or twice suddenly and I put my hand against my heart.”" He testified further on cross-examination, when called by the plaintiff:

“Then I made a left turn. All of a sudden I got three or four jabs, all of a sudden, just like a knife was stuck in my heart and everything was getting dark, so I thought the best thing was for me to turn-in the station, but before I got in everything was blank, I couldn’t see.

“Q. And you don’t know what happened? A. I know that I hit something but that is all.

“Q. Ho you remember anything of the accident?' A. Not until I went into the hospital.

. “Q. Do you remember standing in the street? A. No, I do not.

“Q. You don’t remember talking to Mr. Marino? A. No, sir.

“Q. Do you remember the other car that was involved in this accident? A. I do not.

“Q. Well, do you know whether there was another car involved? A. I don’t know. I know I hit an object but what it was I don’t know.”

And in testifying in his defense, the defendant said in part:

“Q. And you stated that while waiting for the traffic light to turn green you had a couple of sharp pains in the region of your heart? A. I had two severe pains in my left—

“Q. When the light changed to green did you start up? A. Yes, sir. One car went west and mine turned east.

“Q. You turned to the east? That would he to your left? A. To my left.

“Q. And after you had started to make the left turn did you get any more pains? A. I got three or four or five, very sharp, and all of a sudden I started to blur, so I all of a sudden was kind of blurred.

“Q. And from the time that you first got this blurry sensation, until the impact occurred, do you have any idea as to how much time elapsed? A. It was maybe about a half a minute’s time, because I made a sharp turn to get into Sharp’s gas státion to prevent — but before I got there I heard the car crash and I couldn’t see how — I couldn’t see the driveway. I couldn’t see.

“Q. You mean you had blanked out before you had. hit this automobile? A. Blacked out completely.

* # # * #

“Q. Were you conscious at the time you hit this other automobilé? A. Yes, I was.

“Q. Did you see the other automobile before the impact occurred? A. I didn’t see nothing. I know that I hit some kind of an object but what it was I couldn’t tell you.”

There is no other testimony in the record as to his physical and mental condition at the time of the accident, and there is no evidence that he had ever before been subject to a heart attack or “black out.”

The plaintiff sets forth six claims of error, but in its brief states:

“We have assigned six (6) errors, which may be reduced for the purposes of this brief to one; that going to the'finding and judgment of the court.”

We shall confine our consideration of the case, therefore, to the question as to whether the judgment is manifestly against the weight of the evidence or contrary to law.

There can be no question that the defendant’s automobile was being operated on the wrong side of Payne avenue in violation of law when it struck the plaintiff’s truck and, therefore, unless such conduct can be excused he would be guilty of negligence per se. As a part of the plaintiff’s case, the defendant was called for cross-examination and, when so called, testified that at the time of the accident he had “blacked out,” was unable because of a sudden physical ailment to see or control his automobile. And there is no other evidence, medical or otherwise, which in any way challenged the truth of his statement.

In the case of Satterthwaite v. Morgan, Jr., 141 Ohio St., 447, 48 N. E. (2d), 653, paragraph one of the syllabus provides:

.“In directing a verdict for the plaintiff, the trial court must assume that all the facts" claimed by way of defense and supported by evidence are true, and must also find that they, do not constitute a valid defense to the case made by the plaintiff.”

See, also, Kormos v. Cleveland Retail Credit Men’s Co., 131 Ohio St., 471, 3 N. E. (2d), 427.

The defendant, to excuse his conduct in driving on the wrong side of Payne avenue and striking the plaintiff’s truck, when called _ by the plaintiff for cross-examination under the statute, and as above set forth, testified that at the time of the accident, because of a sudden physical ailment he “blacked out” and lost control of his automobile. That evidence was not challenged by any other testimony. If the court finds, therefore, that such'was the fact the plaintiff’s own evidence would fail to establish one of the essential elements of its case, that is, that the defendant was negligent.

In 1 Cyclopédia of Automobile Law & Practice, 468, Section 656, the rule is stated as follows:

“Painting or momentary loss of consciousness by the driver of an automobile due to fatigue is not in itself actionable negligence, and, if a driver stricken by paralysis or seized by an epileptic fit still continues with bis hands on the wheel of the automobile which he is driving, and, unconscious, so directs it as to cause its collision with another, he cannot be held negligent for the way in which he controls it.

“The holding is otherwise if a driver is subject to frequent attacks of vertigo or similar affliction which renders him powerless to control a moving machine and, with full knowledge of such affliction, and its effect, intentionally runs a machine at a speed dangerous to other travelers and persons on the highway.”'

In the case of Cohen v. Petty, 65 F. (2d), 820 (Court of Appeals of the District of Columbia [1933]), the court had for consideration almost the identical question presented by the record before us. There the defendant was stricken suddenly. The defendant testified as follows, which evidence was' not contradicted :

“I was going along, jus't casually along, and I said, ‘My; Tree, I feel awfully sick,’ and with that! went back like that (indicating). I just remember my hands getting away from the wheel. I did not have time to think of any danger or anything else. I just fainted out and passed out.”

The court held:

“1. Evidence that automobile guest was injured in ac'cident resulting from driver’s sudden illness and fainting held insufficient to take to jury issue of driver’s negligence.

“2. One suddenly stricken by illness, which he had no reason' to anticipate while driving automobile,. which rendered it impossible for him to control car, was not chargeable with negligence.”

The headnotes of the case of Slattery v. Haley, 52 Ontario Law Rep., 95, are in part as follows:

“The defendant, driving his automobile along a city street, was taken suddenly ill, and without any preliminary symptoms or warning, became unconscious, and fell back in his car. No one else was in the ■car, which, thus left without any guidance, ran upon ■the sidewalk, and, coming in contact with a boy, so injured'him that he died. The boy’s father brought an action under the Fatal Accidents Act, R. S..0.1914, Ohp. 151:

“Held, That the defendant was not liable. The use of the highway was lawful, and the only ground of liability was negligence — failure to discharge the duty of taking care. The sudden illness which overtook the defendant excused his failure to discharge that duty. The thing which caused the injury was something which he could not control.

“To create liability for an act which is not wilful and intentional but merely negligent it must be shown to have been the conscious act of the defendant’s volition. ’ ’

Arid on page 99 of the report, the court said:

“I think that it may now be regarded as settled law that to create liability for an act which is not wilful and intentional but merely negligent, it must be shown to have been the conscious act of the defendant’s volition. He must have done that which he ■ought not to have done, or. omitted that which he ■ought to have done, as a conscious being. Failing this the occurrence is a ‘mere accident,’ ‘a pure accident,’ or, as it is often, but not accurately, put, ‘an inevitable accident.’ ”

In the case of Armstrong v. Cook, 250 Mich., 180, 229 N. W., 433 (1930), it appears that the plaintiff was a gnest in an automobile driven by her daughter and owned by her husband. She sat in the back seat. She and her daughter had been working in moving household goods and the daughter had become considerably fatigued. At a street intersection, plaintiff’s daughter brought the automobile to a stop and then pushed the controls into second gear. The automobile crossed the intersection, collided with a pole at the side of the street and the plaintiff was injured. As the automobile crossed the intersection, the daughter through sheer nervousness lost consciousness or fainted, recovering at the moment of the impact. Reversing a judgment for the plaintiff, the court held:

“Where sole proximate cause of automobile striking pole after crossing intersection was driver’s fainting or losing consciousness, guest or gratuitous passenger riding in automobile could not recover damages for injuries so received; fainting or losing consciousness not being actionable negligence.”

See, also, Harrington v. H. D. Lee Mercantile Co., 97 Mont., 40, 33 P. (2d), 553 (1934).

By the great weight of authority, one who becomes suddenly stricken or loses consciousness due to an unforeseen cause, while driving an automobile, and as a proximate cause thereof .injures another, cannot be charged with negligence under such circumstances.

The plaintiff having failed to establish any negligence on the part of the defendant, the. court was correct in entering judgment for the defendant.

The judgment is affirmed.

Judgment affirmed.

Hurd, P. J. and Morgan, J., concur.


author: Hildebrant, J.

text:
    Myers, Appellant, v. Columbia Casualty Co., Appellee.
    (No. 6772
    Decided May 5, 1947.)

      Mr. 4-lfred B. Myers, for appellant.

      Messrs. Rendigs & Fry, for appellee.
   Hildebrant, J.

This is an, appeal on questions of laHv by the plaintiff from a judgment for defendant, entered after the Common Pleas Court sustained a demurrer to the petition, the plaintiff declining to plead further.

The demurrer was based on three grounds:

“(1) That it appears on the face of the petition, and copy of the bond attached, thát the court has not jurisdiction of the subject matter of this action.

“ (2) That it appears from the face of the petition, and copy of the bond attached, that the facts therein contained are not sufficient to state a cause of action in favor of the plaintiff and against this defendant.

“(3) That it appears from the face of the petition, and copy of the bond attached, that plaintiff has not legal capacity to sue.”

The sole defendant is the surety on a bond, given by the executors of the estate of a Florida decedent, for the faithful performance of their duties.

Plaintiff, a resident of Cincinnati, Ohio, claims á breach of the bond by reason of the failure and refusal of the executors to make distribution according to the will and the law.

Only the questions of law raised by the demurrer to the petition may be considered by the court and, since the entry in the Common Pleas Court is general and since any one ground of demurrer, if well taken, is sufficient to sustain the judgment, we will consider the allegations of the petition in connection with each ground of demurrer separately.

The demurrer admits the proper and well-pleaded averments of the petition and whatever by fair and reasonable intendment can be implied therefrom. Only the facts appearing on the face of the petition are challenged by the demurrer, and these facts will be construed in a light most favorable to the plaintiff.

We consider first the second ground of demurrer and examine the petition to determine whether it states a cause of action.

The petition alleges the bond in suit to be an executor’s bond given as an incident to the settlement of the estate of a Florida testate decedent. It, therefore, appears from the face of the petition that the bond was executed in accordance with the statutory requirements of the state of Florida, which become a. part of the contract and govern it whenever its obligations are sought to be enforced. Those obligations depend upon the law under which the contract was made. 11 American Jurisprudence, 410, Section 122. In this case, the laws of Florida, where the contract was made and where it was to be performed, control the obligations arising out of this particular contract. The petition alleges also that the administration of the Florida estate has now been closed, so that it appears from the face of the petition that all the statutory requirements incident and necessary to the administration of the will and estate here involved have been complied with, including those of final account and discharge.

Section 12102-31, General Code, requires that this court take judicial notice of the laws of Florida here involved and the allegations above referred to will be regarded' as spreading before this court whatever authority there may exist in the laws of Florida for plaintiff’s cause of action.

The court is informed by reference to Laws of Florida — Regular and Extraordinary, 1945, Chapter 734 of Florida Probate Law and Fourth Part — wherein Section 734.04, Distribution, provides in part:

“Upon the approval of the final accounts of the personal representative, he shall surrender the possession of all real estate to the heir or devisee entitled thereto and pay over and distribute all personal property to those entitled thereto. An order of final discharge of the personal representative' shall be evidence of sneh surrender or distribution, and unless revoked or unless reversed on appeal, shall be conclusive as to the rights of all heirs, devisees, legatees and distributees.”

From the above section it appears that an allegation of a revoking or reversal on appeal of the discharge would be necessary to give rise to an obligation on the bond. No such- allegation is contained in the petition in the instant case, and, for that reason* it fails to state a cause of action, and the demurrer on that ground should be and hereby is sustained.

In view of the foregoing, consideration of the first and third grounds of demurrer is not vital to the disposition of this case.

However, we will speak as to the first ground of demurrer.

The petition avers the giving of the bond by the executors, with defendant as surety thereon, and the breach thereof, upon which the substantive right of recovery is grounded.

The substantive rights of plaintiff being grounded on the contractual obligation expressed in a bond, the action is a personal one, transitory in nature, and the Ohio rule of comity is that jurisdiction of such a transitory action may be exercised by the court and an obligation resting in contract may be. enforced in any jurisdiction where service may be had on the defendant. 32 Ohio Jurisprudence, 210, 211. We quote with approval from Roseman v. Fidelity & Deposit Co., 265 N. Y. Supp., 557, 148 Misc., 132:

“As was stated in Clark Plastering Co. v. Seaboard Surety Co., 259 N. Y., 424, 429, 182 N. E., 71, 72: ‘The question then resolves itself into this: May a remedy be granted in this state to enforce against a citizen thereof a promise, expressed in a bond, executed in a foreign state, pursuant to the requirements of a statdte of that state? The courts of this state are open to all suitors and will enforce transitory rights of action, where the liability asserted is recognized by the common law, is contractual in its nature and is not violative of our public policy. This obligation of comity is only denied, as before suggested, where a foreign statute is sought to be enforced against a citizen, which has created a liability, or has granted a remedy, unknown to the common law, or contrary to our declared policy. (Per G-ray, J., in Hutchinson v. Ward, 192 N. Y., 375, at page 381 [85 N. E., 390, 127 Am. St. Rep., 909].) The cause of action here is upon a contract voluntarily made; it is not unknown to the common law; it is not contrary to our declared policy; and neither liability nor remedy has been supplied by a foreign statute.’ ” ¡

It was, therefore, error to sustain the first ground of demurrer.

As to the third ground of demurrer: The petition does aver that both the law of Ohio and the provisions of Section 734.24 of the Florida statutes authorize the-bringing of this action.

Section 734.24 of the Florida statutes provides:

“Any bond given by a personal representative or a curator, upon the breach thereof may be put in suit and prosecuted from time to time by the party damaged, in the name of the Governor of the state for the use of the party damaged, until the whole penalty of said bond is recovered. The county judge shall deliver to any person on request and on payment of his legal fees for the same, a true copy of any bond given by any personal representative or curator, and such copy certified by said judge, with the seal of the court annexed, shall be prima facie proof of the bond.”

That section states merely how suit on the bond may be maintained in Florida, but does not in any way attempt to provide an exclusive remedy. Plaintiff, invoking the jurisdiction of this forum, is governed by the remedial law of Ohio and appears to be the real party in interest and entitled, under Section 11242, General Code, to bring the suit.

It was, therefore, error to sustain the demurrer on the third ground.

The judgment is affirmed.

Judgment affirmed.

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


author: Middleton, J.

text:
    Wiler, Appellee, v. Board of Review, Bureau of Unemployment Compensation, Appellant, et al.
    (No. 486
    Decided August 6, 1947.)

      Mr. Ralph D. Cole, Jr., and Mr. Divight C. Murray, for appellee.

      Mr. Hugh 8. Jenhins, attorney general, and Mr. John M. Wop* for appellant.
   Middleton, J.

This cause comes into this court on appeal on questions of law from a judgment o.f the Court of Common Pleas of Hancock county.

On the 12th day of July, 1945, the claimant filed 'with the Bureau of Unemployment Compensation, his claim for unemployment compensation, pursuant to the provisions of Section 1345-1 et seq., General Code. The claim was disallowed on July 31, 1945, by the administrator, for the stated reasons that:

“The evidence submitted does not establish that claimant is able to work as required by Section 1345-6 a (4), General Code.”

Thereafter, on August 8, 1945, claimant filed his request for reconsideration of his claim, and stated therein:

“I am capable of any work except extremely close, work. When I do this type of work my eye bothers me. I am available for work but must be home at noon to care for my wife. I can leave her for 5 hours in the morning and 5 hours in the afternoon.”

On hearing of that application the claim was disallowed, the administrator making the following statement of fact:

“At the time claimant filed his original claim for benefits he submitted signed statement to the effect that he had not worked since December 9, 1944, and that he really did not feel that he was physically able to work. At a later date he stated that any employment which he might accept must permit him to be home at noon so that he could take care of his wife.

“Claimant’s various statements fail to prove beyond a reasonable doubt that he was able to work or that he was actively seeking work. It will therefore be held that he has not satisfactorily established his availability for work.”

The administrator made the following decision:

“Claimant has failed to prove that he was able and available for work at the time of filing his original claim for benefits. Claim is accordingly disallowed.”

From that decision the claimant appealed to' the board of review, and on the appeal the board of review, through its referee, made the following findings of fact:

“The testimony developed at the hearing reveals that the obstacle to full daytime* employment, resulting from the alleged care required by his wife, could have been surmounted. However, the reply of claimant to certain questions of the referee indicates that he is very reluctant to accept work that would not permit him to come home at’ noontime; that he still entertains high hopes of being reemployed by the base period employer because it had been suggested to him in the early part of this year that there was a possibility of him being reinstated.”

And further:

“The' facts reveal that claimant suffers with permanent disabilities, but that these were not the direct cause for separation from employment and do not prevent him from performing services similar to those he had performed during the period in which they occurred. In view of this fact, it is found that claimant is able to perform work for which he is reasonably fitted. However, the testimony reveals a reluctance on the part of the claimant to accept any employment that would keep him away from home at the noon hour. This attitude of the claimant is in violation of the provisions contained in subsection a (4) of Section 1345-6 of the General Code in that it constitutes a limitation of the condition of availability, the fulfillment of which is an essential requirement to the establishment of a valid claim. This term, as used under the law, implies a readiness and willingness to accept any kind of employment for which an individual is reasonably. fitted, without limitations or restrictions. Having failed in this aspect, the claim for unemployment benefits is disallowed.”

Upon those findings of fact, the referee, on November 7, 1945, rendered the following- decision :

“Claimant, at the time of filing his claim, was not available for work within the meaning of Section 1345-6 a (4) of the General Code of Ohio. Pursuant thereto, his claim for unemployment benefits is disallowed. The decision upon reconsideration of the’ administrator, dated August 10, 1945, is modified to conform hereto.”

Following that decision, the claimant filed an application for leave to institute a further appeal from the decision of the referee and stated in his application:

“I am not satisfied with the decision of the board of review on my claim as mailed on 11/7/45 and desire a review before board of review. There is some misunderstanding. I said I preferred being home at noon to look after invalid wife. But if job would require me being away all day I would accept same.”

That application was disallowed by the board of review.

From that disallowance the claimant appealed to the Court of Common Pleas which court found, on hearing, that the decision of the board of review was unreasonable, void, and against the manifest weight of the evidence.

The court found further that the claimant was, at the time of filing his claim, and thereafter, capable -of and available for work, within the meaning of those terms as set forth in Section 1345-6, General Code.

The court reversed the decision of the board of review disallowing the claim.

It is from that judgment of the Court of Common Pleas that appeal is taken to this court.

The board of review sets forth the following assignments of error:

1. The court erred in reversing the decision of the referee of the board of review.

2. The court erred in holding that the decision of the board of review is unreasonable, void and against the manifest weight of the evidence.

3. The court erred in finding that the claimant, Lewis N. Wiler, was, at the time of filing his claim and thereafter, capable and available for work within the meaning of the unemployment compensation law.

Section 1345-6, General Code, provides as follows:

“* * * a. No individual shall be entitled to any benefits unless he or she * * *

“(4) is able to work and available for work in his usual trade or occupation, or in any other trade- or occupation for which he is reasonably' fitted; and

‘ ‘ (5) is unable to obtain work in his usual trade or occupation or any other employment for which he is reasonably fitted including employments not subject to this act. * * *”

The availability of the claimant for work is the sole issue in this case.

The board of review, on the 7th day of November, 1945, found the claimant able to perform work for which he is reasonably fitted. However, the referee held:

“The testimony reveals a reluctance on the part of the claimant to accept any employment that would keep him away from home at the noon hour.”

With his decision, the referee filed what is termed “Memorandum of Testimony.” The following is all that is contained in this memorandum of testimony which reflects in any way upon the claimant’s availability for work, to wit:

“Affiant Wiler further testified that he can see very little through his left eye because of a bobbit burn; that however he is able to read the papers; that he has had only been informed of work once by USES— and he was willing to take it but they refused to tell him where it.was and he has heard nothing from them; that he is 71 years of age and has no trade; that his wife is an invalid for 13 yrs. and cannot walk; that he has to be there at noon to help her get meal; that when working he came home at nooA; that he is drawing old benefits of $31.51 month and wife gets $15.76; which he has been drawing since January 1945; that the only factory work be probably at Buckeye Ditcher and it isn’t likely they will hire him.”

Upon that memorandum of testimony and the findings of fact set forth in the decision of the board of review, by its referee, is based the disallowance of claimant’s claim.

It is conceded that there was not a refusal to work by the claimant, and no work was ever offered to him.

The board based its holding that the claimant was unavailable, upon the finding of the board that the claimant was “reluctant” to accept any employment that would keep him away from home at the noon hour.

However, the referee, in his findings of fact, made a positive finding that: “The testimony developed at the hearing reveals that the obstacle to full daytime employment, resulting from the alleged care required by his wife, could have been surmounted.”

As stated above, there is no claim made that employment of any kind was ever offered to claimant.

There is nothing in the record, as shown by the memorandum of testimony, or in the findings of fact made by the referee, which justifies the decision of the board of review that the claimant was unavailable for work.

The judgment of the Court of Common Pleas is, therefore, affirmed.

Judgment affirmed.

Jackson, P. Í., and Guernsey, J., concur.


author: Wiseman, P. J.

text:
    Hubbard, Admx., Appellant, v. The Cleveland, Columbus & Cincinnati Highway, Inc., Appellee.

      (No. 3999
    Decided October 20, 1947.)

      Messrs. Herbert & Dombey and Mr. John H. Matthews, for appellant.

      Messrs. Wiles & Doucher and Messrs. Howell, Roberts & Duncan, for appellee.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin county, in an action for wrongful death, brought by Blanche Hubbard, administratrix of the estate of Maynard H. Hubbard, her husband, who was killed in a collision between two tractor-trailer outfits. The essential facts appear in the special verdict of the jury.

At the conclusion of plaintiff’s case the defendant rested. Upon request of the defendant the court gave before argument special instructions to the jury. At the conclusion of all the evidence the defendant requested the court to direct the jury to give a special verdict in writing upon all the issues which the case presented, as provided by Section 11420-16, General Code. The plaintiff submitted a form of special verdict in narrative form. The form of special verdict submitted by the defendant contained interrogatories.

The special verdict returned by the jury is as follows :

“We thé jury in this case, by the concurrence of nine or more of our number, as shown by those signing below, do find the facts in this case, by the greater weight of the evidence as follows:

“On February 15,1945, about 3:30 o’clock a. m. there-was a collision between two trucking outfits on State Highway No. 42 a short distance north of the city of Mansfield, Ohio, as a result of which, Maynard H. Hubbard, the plaintiff’s decedent,, was killed.

“One of the trucking outfits, consisting of a tractor and one trailer, was driven by said Maynard H. Hubbard, and was travelling on said highway No. 42 in a northerly direction. Said highway No. 42 runs in a north and south direction; it is about 31 feet in width of the improved portion, which is divided into three lanes of traffic at the place of the accident, which lanes are marked by painted lines on the roadway and each lane is about 10 feet in width. The lane on the west side of said highway is for south moving traffic; the lane on the east side is for north moving traffic, and there is a center lane.

“At the time of the collision there was a coating of ice over the improved portion of the roadway. The trucking outfit of the defendant consisted of a tractor and two trailers, was being driven by Jack Finn, an -employee of the defendant, he then being engaged upon the business of the defendant, and said trucking outfit was being driven in a southerly direction on said highway No. 42.

“The plaintiff has not proven that the defendant’s tractor or trailers were being operated on the wrong side of the road at the: time of collision with the tractor ■and trailer being driven by Mr. Hubbard.” (Italics for emphasis.)

The court rendered judgment on the verdict in favor of the defendant. Plaintiff, appellant herein, assigns •as error:

“1. That the special verdict failed to find any ultimate facts giving rise to the accident; did not determine proximate cause and was not sufficiently compíete upon which a judgment could have been entered.

“2. That the Court of Common Pleas erred in entering judgment in favor of defendant on the special verdict of the jury.

“3. That defendant, by its counsel, was guilty of misconduct in submitting special instructions to the jury dealing with legal principles when they knew that a special verdict in the case would be requested by them.

“4. That defendant, by its counsel, was guilty of misconduct in treating .the jury to a lunch.

' “5. The court erred in not more fully submitting the issues of fact to the jury.

“6. For errors apparent on the face of the record.”

The plaintiff in her first assignment of error strongly contends that the jury failed to find any ultimate facts and did not determine proximate cause; and that the finding of the jury that the plaintiff failed to prove that the collision occurred “qn the wrong side of the road” was a conclusion of law. Section 11420-14, General Code, provides:

“A special verdict is one by which the .jury' finds facts only as established by the evidence; and it must so present such facts, but not the evidence to prove them, that nothing remains for the court but to draw from the facts found, conclusions of law.”

Does the special verdict meet the requirements of Section 11420-14, General Code? The two charges of negligence made against the defendant on which evidence was offered and the case was submitted to the jury were: That the defendant “failed to keep said tractor and trailers under control,” and, that the defendant “failed to keep said traetor and trailers on its right side of the road, but instead thereof, it came across to the left side of the road and struck the truck operated by plaintiff’s decedent near his right curb,. being defendant’s left side of the road.” The highway on which the trucks were traveling was a three-lane highway and .properly marked as such. Under the provisions of Section 6307-33 (b), General Code, neither driver was permitted under the law to use the center lane except under certain conditions which, it is conceded, do not exist in this case.

The plaintiff based her action on the claim that her decedent was traveling north in the east lane of the highway at the time of the collision, and that, if the collision happened on that side of the highway, the defendant’s tractor-trailer would have been traveling on the wrong, side of the highway. The only place where the collision could have occurred which would have permitted the plaintiff to recover was in the east lane; if the collision occurred in the center or west lane, obviously, under the pleadings and the evidence, the plaintiff had no right of „ recovery. Throughout the trial the expression “the wrong side of the road” was frequently used to refer to the east or northbound lane of traffic; the location was definite. Under the charge of negligence and the evidence it could mean nothing but the east lañé of traffic. In the form of special verdict submitted by the plaintiff is found this language:

“That defendant’s said tractor and two trailers, or a part thereof, thereupon came over onto the wrong or its left side of the road and into the most easterly lane occupied by the vehicle driven by Maynard Hubbard, deceased.” (Italics-for emphasis.) *

In the special verdict, the jury found that the plaintiff did not prove the collision occurred ‘ ‘ on the wrong side of the road.” This was tantamount to a finding that the collision did not occur in the east or northbound lane of traffic as claimed by the plaintiff. This was the ultimate fact which the plaintiff was required to prove in order to recover. In our opinion the finding was not a conclusion of law or a mixed finding of fact and law.

The jury, having found against the plaintiff on the one determinative ultimate- fact, discharged its full duty. No-other finding was required. The jury was not required, in view of its special finding of fact, to go further and determine the proximate cause. Where there is a judgment for the defendant, proximate cause is not a necessary element of finding in the special verdict. If there is no finding of fact in the special verdict from which the court could conclude the defendant was negligent, the element of proximate cause is clearly immaterial. In our opinion the jury in its special verdict so presented the essential facts that nothing remained for the court but to draw from the facts found, conclusions of law. The court very properly entered a judgment for the defendant on the special verdict.

Were defendant’s counsel guilty of misconduct in requesting special instructions when they knew that a special verdict would be required by them? There is no claim made here that the instructions were improper. The error assigned relates to the conduct of counsel. Under Section 11420-1, paragraph 5, General Code, either party may request that written instructions be given before argument. The duty to give a proper special instruction is mandatory. 39 Ohio Jurisprudence, 1024 (cases cited). The special instructions -were confined to the question of the burden of proof-. Such instructions were proper in view of a request for a special verdict. In our opinion counsel were not guilty of misconduct, and there is no showing of prejudicial error.

For. her- fourth assignment of error the appellant claims that defendant, by its counsel, was guilty of misconduct in treating the jury to a lunch. There is no showing in the record that the jury knew wlm paid for their lunch on the day they were taken in a bus from Columbus to Mansfield to view the premises. The bill of exceptions does not properly present this matter for the consideration of a reviewing court.

It is claimed the court erred in not more fully submitting the issues of fact to the jury. It is contended that the court should have instructed the jury that an inference was permissible from defendant’s failure to produce any evidence, and that such evidence, if produced, would have been unfavorable to the defendant. The plaintiff relies on the application of the rule of law stated in 20 American Jurisprudence, 188, as follows:

“It is a well-established rule that where relevant evidence which would properly be part of a case is. within the control of the party whose interest it would naturally be to produce it, and he fails to do so, without satisfactory explanation, the jury may draw an inference that such evidence would be unfavorable to him. ’ ’

The record does not disclose that at any time the defendant was called upon to produce any evidence. The defendant had a right to rest at-the close of.plaintiff ?s case, on the theory that there was a failure of proof, without an unfavorable inference being drawn against it, as a matter of law. The rule of law hereinabove quoted applies to a party in presenting' evidence in support of his own case. We know of no principle of law ’•which would have required the court to charge the jury in this case, that since the defendant did not produce any evidence, the jury would have a right to infer that any evidence it would 'have produced would have been unfavorable to the defendant. Furthermore, at the end of the general charge the court inquired of counsel whether they requested additional charges. The record does not show that counsel for the plaintiff'requested the court to give a charge covering this matter. The charge as given was proper and not misleading to the jury. It is well settled that reversible error cannot be predicated on the failure of the trial judge to charge on a particular phase of the case, if the charge as given is correct and not misleading to the jury, unless such omission is called to the attention of the court, and such other instructions are specifically presented and refused. 39 Ohio Jurisprudence, 1008, 1009. See, also, Portney v. Frank, 77 Ohio App., 357, 65 N. E. (2d), 290, and cases therein cited.

Under the sixth assignment of error it is claimed that the finding of the jury was against the manifest weight of the evidence. After carefully considering all the evidence, both direct and circumstantial, and any proper inferences which may be drawn from the facts proved, we cannot conclude that the verdict of the jury was against the manifest weight of the evidence. There is ample evidence to support the verdict.

Finding no prejudicial error in the record, the judgment is affirmed.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


author: Middleton, P. J.

text:
    The State of Ohio, Appellee, v. Krauss, Appellant.
    (No. 145
    Decided November 27, 1945.)

      Mr. Oscar 0. Raberding, prosecuting attorney, for appellqe.

      Mr. Otis T. Lippincott and Mr. Thomas W. Danaher, for appellant.
   Middleton, P. J.

This is an appeal on questions of law from a judgment of the Juvenile Court of Auglaize county.

Defendant was tried and found guilty as charged in the following affidavit:

“The state of Ohio, Auglaize county. Juvenile Court.

“Before me, Harry F. Wittenbrink, Judge and ex-officio clerk of the Juvenile Court in and for said county, personally appeared Edna Ralston residing at -St. Marys, Ohio, who, being first duly sworn according to law, says that on or about the 14th day of February, 1945, and on many other occasions in the county of Auglaize aforesaid, one Mildred Krauss, alias Mildred Howell Krauss, alias Mildred Howell residing at St. Marys, Ohio, did'aid, abet, cause, encourage and contribute toward or act in a way tending to cause the dependency and the neglect of the following children, to wit:

“Arliss Ralston, a daughter, age eight years, and Sheldon Ralston, a son four months, in that she induced one Robert Ralston, husband of this affiant and father of Arliss Ralston and Sheldon Ralston, to openly and notoriously go out with her, the said Mildren Krauss, and did induce the said Robert Ralston to live with her in a clandestine manner for a long period of time and on one occasion went out with the said Robert Ralston in the presence of Arliss Ralston; that the said Mildred Krauss induced the said Robert Ralston to live with her for a long period of time so that he was unable to 'give said children the proper parental care and influence, thereby endangering the health of both said children and the morals of the oldest child, Arliss, and that all of her acts toward said children created conditions which tend to cause said children tb become neglected and dependent upon others for proper support and all of her acts toward said children are contrary to the statute in such case made and provided and against the peace and dignity of the state of Ohio.

“Edna Ralston.

“Sworn to before me and signed in my presence, this 12th day of March, 1945.

“Harry F. Wittenbrink, Judge and ex-officio clerk of the Juvenile Court.”

The first assignment of error attacks the sufficiency of the affidavit which was attempted to be drawn under' Section 1639-45, General Code.

Defendant interposed the following motion at the commencement of the trial, which motion was overruled :

“First. That no testimony be accepted or permitted to go to the jury in this case.

“Second. That the court take the case from the jury for the reason that there is no valid, legitimate lawful charge against the defendant.”

Section 1639-45, General Code, provides as follows:

“Whoever abuses a child or aids, abets, induces, causes, encourages or contributes toward the dependency, neglect or delinquency, as herein defined, of a child or a ward of the court, or acts in a way tending to cause delinquency in such child, or who aids, abets, induces, causes or encourages a child or a ward of the court, committed to the custody of any person, department, public or private institution, to leave the custody of such person, department, public or private institution, without legal - consent, shall be fined not less than five dollars, nor more than one thousand dollars or imprisoned not less than ten days nor more than one year, or both. Bach day of such contribution to such dependency, neglect or delinquency, shall be deemed a separate offense. ’ ’

It will be noted that the affidavit does not charge that the defendant contributed to the delinquency of the minor, nor does it charge that the defendant acted in a way tending to cause the delinquency of the minor. Any charge set out in the affidavit must be predicated on Section 1639-45, Section 1639-3 or Section 1639-4, General Code.

Section 1639-3 reads:

“For the purpose of this chapter the words ‘neglected child’ includes any child:

“1. Who is abandoned by its parents, guardian or custodian.

“2. Who lacks proper parental care’ by reason of the faults or habits of its parents, guardian or custodian.

“3. Whose parents, guardian or custodian neglect or refuse to provide it with proper or necessary subsistence, education, medical or surgical care, or other care necessary for its health, morals or well being.

“4. Whose parents, guardian or custodian neglects or refuses to provide the special care made necessary by its mental condition.

“5. Who is found in a disreputable place, or visits or patronizes a place prohibited by law; or who associates with vagrant, vicious, criminal, notorious or immoral persons.

“6. Who engages in an occupation prohibited by law, or is in a situation dangerous to life or limb or injurious to the health or morals of itself or others.”

The affidavit charges that the defendant induced Robert Ralston to live with her for a long period of time “so that he was unable to give said children the proper parental care and influence, thereby endangering the health of both said children and the morals of the oldest child, Arliss.” There is no charge made in the affidavit that the two minor children were denied or did not receive proper parental care, as defined in Section 1639-3.

Section 1639-4 defines a dependent child as follows :

“1. Who is homeless or destitute or.without proper care or support, through no fault of its parents, guardian or custodian.

“2. Who lacks' proper care or support by reason of the mental or physical condition of its parents, guardian or custodian.

“3. Whose condition or environment is such as to warrant the state, in the interests of the child, in assuming its guardianship.”

The affidavit fails to set forth that the minors named, or either of them, were dependent, as defined in the above section.

The statement in the affidavit that the defendant did “act in a way tending to cause the dependency and the neglect of the following children” charges no offense under the laws of the state of Ohio.

Section 1639-45 provides for punishment of one who “acts in a way tending to cause delinquency in such child. ’ ’

“The record of the conviction of the . minor child upon a charge of delinquency was properly admitted in evidence as tending to show that shé was a delinquent child, without proof of which the charge must fail no matter how culpable his acts may be, for if she had not become a delinquent then in the very nature •of things he could not have contributed to her delinquency. It is the initial fact to be proven, and the fact to which the evidence offered in the case ought to be first directed, and upon failure of proof of this fact the defendant would have been entitled to his discharge.” Fisher v. State, 84 Ohio St., 360, 369, 95 N. E., 908. See, also, Anss v. State, 16 Ohio App., 502.

“Affidavit charging defendant contributed to delinquency- of a minor held fatally defective, even after judgment of conviction, where it did not specify some facts showing minor was delinquent child, within meaning of Section 1644, General Code. * * *

“Affidavit charging one with contributing to delinquency of a minor states no charge, under Section 1654, G-eneral Code, unless it charges some one or more acts of delinquency specified in Section 1644 [now Section 1639-2], since words ‘as herein defined,’ as used in Section 1654 [now Section 1639-45], insofar as they relate to delinquency, refer to definition of delinquent child contained in Section 1644.” Edmonds v. State, 30 Ohio App., 195, 164 N. E., 649.

The above cases involved. charges of delinquency. However, the reasoning of the court in those cases applies with equal force to charges involving dependency and neglect of a minor.

“Statute defining offense cannot be extended by construction to person or things not within its terms, though apparently within its spirit. * * *

“No conviction can rest on affidavit which charges no offense against laws of the state.” Peefer v. State, 42 Ohio App., 276, 182 N. E., 117.

The affidavit in the instant case is insufficient in that it wholly fails to set out any charge against the defendant. The judgment of the court below is reversed as being contrary to law, and this court, coming now to render the judgment the court below should have rendered, dismisses the affidavit and discharges the defendant.

Even if the affidavit were sufficient in law, a careful reading of the record fails to show any facts adduced by the1 state which would support a charge against the defendant. There is nothing in the record to prove that any of the acts charged to have been committed by the defendant resulted in the neglect or dependency of the children. The evidence does not sustain the judgment.

Judgment reversed.

Jackson and Guernsey, JJ., concur.


author: Ross, J.

text:
    City of Cincinnati, Appellee, v. Hawkins, Appellant. City of Cincinnati, Appellee, v. Levine, Appellant.
    (Nos. 6790 and 6792
    Decided May 26, 1947.)

      Mr. R. J. Paul, for appellee in cause No. 6790.

      Mr. Harry S. Williams, Jr., for appellant in cause No. 6790.

      Mr. R. J. Paul and Mr. Don Burkholder, for appellee in cause No. 6792.

      Mr. Benjamin S. Schwartz and Mr. Harry M. Washerman, for appellant in cause No. 6792.
   Ross, J.

These two cases, although not consolidated, involve identical questions. In each case, the Common Pleas Court of Hamilton county affirmed a final judgment of the Municipal Court of Cincinnati. In each case, a motion to dismiss the appeal on questions-of law was filed in this court by appellee, on the ground that the brief of appellant was not filed with the transcript from the Common Pleas Court, as required by Section 13459-3, General Code.

That section provides in part: “The brief of the appellant shall be filed with the transcript and shall contain the assignments of error' relied on in such-, appeal. ’ ’

Is that provision jurisdictional in character or does it repose in the Court of Appeals a right to exercise-a sound discretion in the interests of justice?.

It is the conclusion of this court that the latter alternative presents a proper construction of the statute.

Referring again to Section 13459-3, General Code,, it will be noted that the first sentence of this section provides: “the proceedings to review such judgment or final order, shall be by appeal whjfch shall be instituted by filing notice of appeal with'the court rendering such judgment or order and .with filing a copy thereof in the appellate court where leave to appeal must be obtained.” (Emphasis added.)

Now, it will be noticed that the appeal is, therefore, instituted when the notice of appeal is filed as required by the statute.

According to Webster’s New International Dictionary, the word, “institute,” is derived from a Latin word meaning “to place in.” It is defined as meaning ‘ ‘ to set up; to originate and establish; to cause to he; to found.”

In the Shorter Oxford English Dictionary (1933), the word is defined, “to set up, establish, found, or-(lain, to introduce, bring into use or practice, to set on foot, initiate, start.”

The words, “shall be instituted,” indicate that when the notice of appeal is filed “such appeal” is an accomplished fact. The later provisions in the section applicable to further action in connection with the appeal are ancillary to and subsequent in point of time to the appeal which has been effected, i. e., “instituted. ’ ’ /

This court held in State v. Ahlbrandt, 79 Ohio App., 199, 69 N. E. (2d), 658, that an act (116 Ohio Laws, 104), designated as “an act to establish a simplified method of appellate review,” applied not’ only to appellate procedure in civil eases but also to'appellate procedure in criminal cases, as in such act noted, and, unless specific provisions of the Code applicable to appellate procedure in criminal cases provided otherwise, Section 13459-3, General Code, was amended by such act (116 Ohio Laws, 104) changing the old procedure for review by petition in error to procedure by appeal. In the Ahlbrandt case, this court applied the provisions of Section 12223-21, General Code, found in the Code under Title V, “Procedure On Appeal,” and Chapter I, “Appeals,” to a criminal case, upon the basis that there was in the provisions of the Code applicable only to criminal procedure no provision covering the matter contained in Section 12223-21, General Code, and reversed the judgment of the Common Pleas Court of Hamilton county for failure to comply with the provisions of Section 12223-21, General Code, and to state its grounds of reversal of the judgment of the Municipal Court of Cincinnati. As further noted in the Ahlbrandt case, Section 12223-1, General Code,, unquestionably applies to criminal procedure, so far as it does not Conflict with provisions in the Code of Criminal Procedure.

It will also appear from an examination of the provisions of the Code applicable to appeals in criminal cases that nowhere is it provided what a notice of appeal shall contain. Can it be doubted that Section 12223-5, General Code, would be applicable?

On the other hand, where a provision of the Code •applicable to appeals in criminal cases is definite and specific, that provision controls as against general provisions applicable to all appeals. State v. Ahlbrandt, 78 Ohio App., 123, 69 N. E. (2d), 95.

Our attention has been directed to a number of decisions of the Courts of Appeals, which consider Section 13459-3, General Code.

In State v. Jarcho, 65 Ohio App., 417, 30 N. E. (2d), 444, the Second District Court of Appeals held that the provisions of that section were mandatory. It will be noticed, however, that that court stated in its opinion that it considered Rule VII of the Court of Appeals as mandatory and always enforced it as such. Other Courts of Appeals consider that Rule VII reposes in the court a sound discretion to relax the enforcement of the same in the interests of justice. Gusweiler v. Riverview Apartments, Inc., 54 Ohio App., 132, 6 N. E. (2d), 587; Leashley v. Rezac, 132 Ohio St., 304, 7 N. E. (2d), 229.

It would seem, therefore, that the Jarcho case and others of similar import may be sustained upon the principle that those appellate courts consider that both provisions of Section 13459-3, General Code, applicable to briefs, and Rule VII of the-Court of Appeals are binding upon them, rather than that either of such provisions is jurisdictional in character.

The same Court of Appeals (Second District) followed the Jarcho case in State v. Smith, 33 Ohio Law Abs., 612, 35 N. E. (2d), 968.

In State v. Bell, 52 Ohio App., 11, 2 N. E. (2d), 786, the Court of Appeals of the Fifth District held that the provisions of Section 13459-3, General Code, were mandatory, but at pages 12 and 13 of the opinion, the court stated:

“As heretofore stated, only forty-two days had elapsed between the filing of the notice of appeal and the submission of the cause. Counsel might have withheld, until the fiftieth day, the filing in this court of his brief and bill of exceptions, but under Section 13459-3, General Code, they are to be filed at the same time. We could with propriety sustain the motion to dismiss for failure to file brief, but we are not doing so, since the procedure is new to counsel and the court,, and because we deem it important to pass upon the other branch of the state’s motion. The motion to dismiss for failure to file brief is overruled for the reasons indicated.”

It is evident that the Court of Appeals of the Fifth District did not consider the provisions .applicable to briefs jurisdictional.

In State v. Parnell, 56 Ohio App., 77, 10 N. E. (2d), 18, the Court of Appeals of the Sixth District followed State v. Bell, supra. It is apparent, however, from the reasoning of the opinion that the provisions of Section 13459-3; General Code, while considered as mandatory in reference to briefs, as are the provisions of Rule VII of the Court of Appeals, are not considered jurisdictional.

It is true that the sections of the Code applicable to appeals in criminal cases contain no such specific provision as is found in Section 12223-4, General Code. That section provides “* * * and no step required to. be taken subsequent to the perfection of the appeal shall be deemed to be jurisdictional.”

The Supreme Court has repeatedly held that the only jurisdictional step now necessary to perfect an appeal on questions of law is the filing of a notice of appeal. Loos v. Wheeling & Lake Erie Ry. Co., 134 Ohio St., 321, 16 N. E. (2d), 467; Damar Realty Co. v. City of Cleveland, 140 Ohio St., 432, 45 N. E. (2d), 209; Bauer v. Grinstead, 142 Ohio St., 56, 50 N. E. (2d), 334; State, ex rel. Curran, v. Brookes, Jr., 142 Ohio St., 107, 50 N. E. (2d), 995.

There appears no reason why the provisions of Section 12223-4, General Code, should be limited to civil cases.

In any event, the language of Section 13459-3, General Code, is such as to require a conclusion that the filing of the notice of appeal is the only jurisdictional requirement to permit the Court of Appeals to entertain the appeal. The appeal as therein provided is 1 ‘ instituted, ” that is perfected, when the notice is properly filed.

Valid reasons appear for the exercise of this court’s sound discretion in permitting the filing of briefs. To hold otherwise, would require a strict -and limited construction of the appellate procedure act, and result in a decision by this court otherwise than upon the merits and interfere with the due administration of justice.

Briefs may be filed, if not already filed, in the cases here involved and the cases will be set down for hearing upon the trial docket.

The motion to dismiss in each case is overruled.

Motions overruled.

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