author: Conn, J. Fess, J.,

text:
    Adams, Appellee, v. Lambert, Appellee; The Clyde Kraut Co., Appellant.
    (No. 471
    Decided April 23, 1951.)

      Messrs. Dewey £ Dewey, for appellee Matilda Adams.

      Messrs. Stout £ Stout, for appellee Richard Lambert.

      Messrs. Culbert, Hyzer £ Gulbert, for appellant.
   Conn, J.

In the trial court a verdict for $2,000 was rendered for the plaintiff against defendant The Clyde Kraut Company, and at the same time the jury rendered a verdict in favor of the defendant Richard Lambert. A judgment was entered on the verdict against the defendant company, from which it appeals on questions of law.

In her amended petition, plaintiff stated that on or abodt November 6, 1948, she contracted with' defendant Richard Lambert, a poultry dealer in Fremont, Ohio, to kill, dress and deliver about 500 turkeys to the defendant company, a corporation doing business as a cold storage warehouse company at Clyde, Ohio; that defendant Lambert killed, dressed, and delivered the turkeys to defendant company; that on or about November 8, 1948, plaintiff contracted with defendant company to freeze, keep and store such turkeys at an agreed price per month per hundred pounds; that the turkeys were delivered to defendant company on or about November 8, 1948; and that subsequently, to wit, on or about December 10, 1948. it was discovered that the turkeys had spoiled and become unfit for human consumption and plaintiff was compelled to sell the turkeys for the sum of one cent per pound.

Plaintiff alleged further that the loss and damage she sustained was directly and proximately caused by the negligence of the defendants; that defendant Lambert was negligent in placing the turkeys in sealed cellophane bags before body heat had been removed from them; that they were not properly chilled before delivery to defendant company for cold storage ; that defendant company was negligent in failing to inspect the turkeys to see whether the body heat had been removed and in failing to chill or sharp-freeze them before attempting to freeze them; that defendant company stacked the turkeys in a large pile so that cold air could not circulate in and around them and the turkeys on the inside of the pile were not properly frozen; and that the defendant company failed to inspect the turkeys from time to time to ascertain whether they were being properly frozen, and marketable as a first class food product.

The defendant company demurred to plaintiff’s amended petition on the ground of misjoinder of parties defendant and misjoinder of separate causes of action against the defendants. This demurrer was overruled by the trial court and defendant company filed its answer admitting that it operates a storage plant and that plaintiff stored turkeys in its warehouse. The admissions were followed by a general denial and allegations charging plaintiff with contributory negligence, which it is alleged was the proximate cause of her loss. The alleged contributory negligence of plaintiff was denied in her reply.

The defendant company moved for judgment on the opening statement of counsel, at the close of plaintiff’s evidence, and at the close of all the evidence. It moved also for a directed verdict on the ground that plaintiff assumed the risk and was guilty of negligence as a matter of law. It moved also for a judgment non obstante veredicto and for a new trial, all of which motions were overruled. The actions of the trial court in overruling the several motions and in overruling the demurrer of defendant company on the ground of misjoinder of parties and misjoinder of separate causes of action are assigned as error, together with an assignment that the verdict is against the manifest weight of the evidence.

We will consider first the alleged error in overruling the demurrer of defendant company to plaintiff’s amended petition. It is contended by defendant company that on the face of the amended petition it appears that plaintiff had separate contracts with defendants, by the terms of which defendants were obligated to perform separately certain acts, each defendant having certain things to perform unlike those to be performed by the other; that there were no joint acts to be done by defendants; and that each proceeded as an independent contractor. On this premise, it is urged that there is a misjoinder of parties and “separate causes of action against the several defendants.”

These considerations appear to overlook the nature of the cause of action set up in the amended petition. This is not an action ex contractu as contended by defendant company. It is an action for damages, sounding in tort. A majority of the court is of the opinion 'that the amended petition shows on its face that the negligence of defendant Lambert was closely related to and merged with the negligence of defendant company, the proximate result of which produced a single and indivisible loss. It is not necessary that there be concert of action on the part of tort-feasors to make them jointly and severally liable when the loss is the proximate result of their concurring negligence.

The courts favor the adjudication of all issues arising out of the same subject matter in one action and the avoidance of a multiplicity of suits, unless a party is prejudiced by such procedure. It is not apparent how defendant company sustained any prejudice by the joinder of which it complains. If the defendants were severally as well as jointly liable for alleged tortious misconduct, plaintiff could have brought her action separately against each, and a judgment against one could not be set up as a bar to any later action, although plaintiff could have but one satisfaction of her damages.

Plaintiff sustained a single loss. This loss resulted proximately from the alleged tortious misconduct of defendants, as already pointed out. Were plaintiff to bring separate actions on the theory of nonjoinder and obtain a judgment and satisfaction thereof in one action, might not the judgment and its satisfaction be a' ■bar to her action against the other defendant, notwithstanding she did not receive full compensation for her loss? At least, under the more liberal rules of joinder that now prevail in Ohio, in comparison with the common law. and the early cases both before and since the adoption of the Code of Civil Procedure (51 Ohio Laws, 57), plaintiff may not be required to run the risk or incur the expense entailed in bringing separate actions and thereby be deprived of such benefit as may accrue to her in proceeding against the defendants as joint tort-feasors. Although not acting in concert, the defendants are alleged to have acted in such close relationship to each other that their tortious acts inseparably merged to produce plaintiff’s loss and damage.

Judicial opinion is divided as to the necessary elements of a joint tort. Some cases indicate that concert of action is a necessary element where a single injury results from separate acts. However, this test does not appear to be the present rule in Ohio. We call attention to Wery v. Seff, 136 Ohio St., 307, 25 N. E. (2d), 692. In that case, plaintiff sustained damages through the alleged combined negligence of defendants, who were a father and his minor son of the age of 15 years. The father had entrusted his motor vehicle to his son who was under the age specified in the statute. Each was charged with negligence. Demurrers were interposed by defendants on the ground of misjoinder of parties defendant and causes of action. The demurrers were sustained and the petition dismissed by the trial court. On appeal, the judgment was reversed by the Court' of Appeals, and its judgment was affirmed by the Supreme Court.

Defendants contended in that case, as defendants do in the instant case, that tort-feasors may be joined only when they act in concert. However, in Ohio it appears that ‘ ‘ concert in the execution of a common purpose” is no longer the essence of joint liability in tort, as was held in Stark County Agricultural Society v. Brenner, An Infant, 122 Ohio St., 560, 172 N. E., 659, and earlier cases. Judge Zimmerman, in Wery v. Seff, supra, in commenting on the Stark County Ag ricultural Society case, said the rule therein “is too narrowly stated.” We quote paragraph five of the syllabus of Wery v. Seff, sufra, as follows:

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

See, also, Blanton, Admr., v. Sisters of Charity, 82 Ohio App., 20, 79 N. E. (2d), 688; Micelli v. Hirsch, 83 N. E. (2d), 240; 30 Ohio Jurisprudence, 769, Section 46.

Defendants filed separate answers, neither of which made objection to misjoinder of parties defendant or misjoinder of separate causes' of action. Neither defendant moved to require plaintiff to elect at the close of plaintiff’s case or at the close of all the evidence. If such motions were made, they could not have been properly granted, as neither the amended petition on its face nor the evidence disclosed inconsistent causes of action. Frederickson v. Nye, 110 Ohio St., 459, 144 N. E., 299, 35 A. L. R., 1163; Roberts v. Lee, 72 Ohio App., 235, 51 N. E. (2d), 108.

Plaintiff could have brought an action on the contract she had with defendant Lambert, and a separate action on the contract with defendant company. In that event, in each action plaintiff as bailor would have had the burden of proving delivery of the turkeys and failure of their redelivery in good condition on demand. On failure to redeliver, the bailee in each case would have had the duty to go forward with the evidence. Having brought her action jointly in tort, she thereby made her election and was obliged to establish her claim of negligence by a preponderance of the evidence against one or both of the defendants. Ag ricultural Ins. Co. v. Constantine, 144 Ohio St., 275, 58 N. E. (2d), 658; 5 Ohio Jurisprudence, 124, Section 30.

It may be observed that the rule of nonjoinder as applied in those cases wherein tort-feasors incur as to a third party a primary and secondary liability, or where liability arises by virtue of the doctrine of respondeat superior, has no application in the instant case. Clark v. Fry, 8 Ohio St., 358, 72 Am. Dec., 590; Village of Mineral City v. Gilbow, 81 Ohio St., 263, 90 N. E., 800, 25 L. R. A. (N. S.), 627; Larson v. Cleveland Ry. Co., 142 Ohio St., 20, 50 N. E. (2d), 163; Albers, Admr., v. Great Central Transport Corp., 145 Ohio St., 129, 60 N. E. (2d), 669.

The majority of the court concludes that the assignment of error predicated on misjoinder should not be sustained.

The record discloses that there is credible evidence supporting one or more of the specifications of negligence on the part of defendant company and it does not appear that the verdict is manifestly against the weight of the evidence.

We have considered the remaining assignments of -error and are of the opinion that they should not be sustained.

The focal point of these assignments is the claim of defendant company that the turkeys were not properly killed in preparation for storage and were not in good condition when delivered to defendant company. On this issue, there is some conflict in the evidence. It is undisputed, however, that the turkeys which were delivered in cartons and stacked or ricked by defendant company preparatory for freezing in a manner permitting the circulation of air were in good condition upon redelivery. On the other hand, the evidence shows or tends to show that the.turkeys delivered to' defendant company in cellophane bags were stacked or piled against a wall in the storage room in such manner as to prevent the circulation of air in and around them, which tended to prevent prompt freezing.

The evidence shows that defendant Lambert employed the same method in killing, cleaning and preparing each of the turkeys for delivery to the defendant company, excepting only the type of container, and. that they were delivered promptly, almost immediately following preparation.

On the whole record it appears that a fact issue was presented to the jury and determined without prejudicial error, and that the trial court properly overruled the motions for judgment in favor of defendant company and the motion of defendant for a new trial.

Judgment affirmed.

Carpenter, J., concurs.

Fess, J.,

dissenting. In her amended petition, plaintiff alleged that on November 6, 1948, she contracted with the defendant Lambert to kill, dress and deliver her turkeys to the Kraut company’s warehouse, and that Lambert was guilty of negligence in failing to properly chill the birds before delivery to the Kraut company.

She alleged also that on November 8, 1948, she contracted with the Kraut company to freeze, keep and store the turkeys, and that the company was- negligent in six separate specifications of negligence, including failure'to inspect, failure to chill, failure to quick freeze, and in stacking unchilled and unfrozen turkeys in a large pile.

Defendant’s demurrer to the amended petition for •misjoinder was overruled. At the close of plaintiff’s case, defendant moved for dismissal on the ground that there was a misjoinder of parties defendant. At the close of the entire case, the defendant moved for a directed verdict upon the evidence, but did not renew its objection as to misjoinder. Among other grounds set forth in its motion for new trial, defendant set forth errors in overruling its demurrer for misjoinder of parties and separate causes of action. At no time did the defendant move the court to require the plaintiff to elect.

It appears upon the face of the petition that separate causes of action are improperly joined against separate defendants. Joinder of two or more defendants is proper only where, because of their relationship, concert of action or independent but concurrent action, each is vicariously responsible for the wrongful acts of the other or others to the extent of the entire damage. Larson v. Cleveland Ry. Co., 142 Ohio St., 20, 50 N. E. (2d), 163; Wery v. Seff, 136 Ohio St., 307, 311, 25 N. E. (2d), 692; Ader, Admr., v. Blau, 241 N. Y., 7, 148 N. E., 771, 41 A. L. R., 1216.

Ader, Admr., v. Blau, supra, was cited with approval in Larson v. Cleveland Ry. Co., supra, pp 32, 33, and O’Neill v. City of Cleveland, 145 Ohio St., 563, 571, 62 N. E. (2d), 353.

In the Ader case joinder of independent causes of action for death of a child was attempted against one defendant for maintaining a dangerous picket fence and against a physician for negligence in treating the injuries. In 1935, the joinder statute of New York was amended to overcome the decision in the Ader case and thereafter, under the amended statute, joinder of defendants liable to a plaintiff on different causes of action was allowed if the claims arose from the same transaction or series of transactions and separate trial of the causes of action involved common questions of law and fact. Great Northern Telegraph Co., Ltd., v. Yokohama Specie Bank, Ltd., 297 N. Y., 135, 76 N. E. (2d), 117, 119.

The instant case involves separate transactions and distinctly separate obligations on the part of each of the defendants towards the plaintiff. No concert of action, no independent but concurrent action is asserted for which each defendant acted on behalf of or as representing the other, so as to become vicariously responsible for the wrongful'act of each other to the extent of the entire damage to the plaintiff. Each is separately liable for damage arising out of his own negligence.

Although Section 11254, General Code, relating to joinder of plaintiffs, employs different language from that employed in Section 11255, General Oode, relating to joinder of defendants, Section 11306, General Code, relating to joinder of causes of action, applies without distinction to plaintiff's and defendants. Therefore, decisions relating to misjoinder of several canses of action of separate plaintiffs apply with equal force to misjoinder of several causes of action against separate defendants. In Ulmer v. Squire, Supt. of Banks, 71 Ohio App., 369, 50 N. E. (2d), 178, this court held that separate owners of stock who pledged their respective shares as collateral security for a single note of a third party could not join as plaintiffs against another for conversion of their stock, since there was no such concert of relation between them as would create a single cause of action or support a single judgment. As authority, the opinion cites Taylor v. Brown, 92 Ohio St., 287, 110 N. E., 739.

As to misjoinder of several causes of action against separate defendants for a single injury, see Morris v. Woodburn, 57 Ohio St., 330, 48 F. E.,.1097; and Village of Mineral City v. Gilbow, 81 Ohio St., 263, 272, 90 N. E., 800, 25 L. R. A. (N. S.), 627.

Later cases have injected the element of primary and secondary liability. Stark County Agricultural Society v. Brenner, an Infant, 122 Ohio St., 560, 172 N. E., 659; Albers, Admr., v. Great Central Transport Corp., 145 Ohio St., 129, 60 F. E. (2d), 669; Canton Provision Co. v. Gauder, a Minor, 130 Ohio St., 43, 196 N. E., 634; Kniess v. Armour & Co., 134 Ohio St., 432, 17 N. E. (2d), 734, 119 A. L. R., 1348; Losito v. Kruse, Jr., 136 Ohio St., 183, 24 F. E. (2d), 705, 126 A. L. R., 1194; Herron v. City of Youngstown, 136 Ohio St., 190, 24 F. E. (2d), 708.

The distinction between concurrent and related torts —and joint torts — made in Morris v. Woodburn, supra, has recently been approved in Maryland Casualty Co. v. Frederick Co., 142 Ohio St., 605, 611, 53 N. E. (2d), 795.

It is therefore concluded that since separate causes of action against several defendants appeared on the face of the petition, the demurrer should have been sustained.

Did the defendant waive the error by failing to renew his objection or in failing to move for an order requiring an election? If not waived, was the error so prejudicial as to require reversal?

The objection was properly and timely raised by demurrer. The order overruling the demurrer was not a final order from which an appeal could then be taken. Defendant was not, on it's motion made at the end of plaintiff’s case, entitled to a direction of a verdict in his favor or to a dismissal of the action upon the ground of misjoinder, but upon such motion he was entitled to an order requiring plaintiff to elect as between causes of action and defendants. Sylvama Development Co. v. Start, 25 Ohio App., 411, 158 N. E., 206.

Errors not assigned and therefore not determined by the intermediate reviewing court will not be considered by the Supreme Court. Davis v. Hines, 6 Ohio St., 473; Randall v. Turner, 17 Ohio St., 262; Woodward v. Sloan, 27 Ohio St., 592.

It may be inferred from these decisions that the error would be considered if assigned for determination in the intermediate court. See, also, Crane Twp., ex rel. Salter, Pros. Atty., v. Secoy et al., Twp. Trustees, 103 Ohio St., 258, 262, 132 N. E., 851, 18 A. L. R., 979. Under the early practice, error in overruling a demurrer was held to be waived by thereafter proceeding to trial. Campbell v. Cowden, Wright, 484; Mitchell v. McCabe, 10 Ohio, 405; Sullenberger v. Gest, 14 Ohio, 204; Watson v. Brown, 14 Ohio, 473.

However, in Bartges v. O’Neil, 13 Ohio St., 72, the Supreme Court held that the overruling of a demurrer to a petition which is legally insufficient because of misjoinder of two plaintiffs is prejudicially erroneous and constitutes ground for reversal, although thereafter an answer was filed, the case was tried, and trial resulted in judgment for the misjoined plaintiffs. The Bartges case holds also that, it not appearing from the record that the defendant might not have been prejudiced by the overruling of the demurrer, he is entitled to have the judgment reversed. This case was decided in 1861 at which time the first sentence of the present substantial justice statute — Section 11364, General Code — was in effect, that section having been enacted in 1853. The error in overruling the demurrer is analogous to an error of commission in a charge which is presumed to be prejudicial. Cleveland Ry. Co. v. Kozlowski, 128 Ohio St., 445, 191 N. E., 787. To require a defendant to stand on his demurrer for misjoinder and permit judgment to be taken against him in order, to have a final order to test his demurrer, as was required under the old practice, imposes too harsh a burden upon a defendant who may think he is improperly joined with another. It is an entirely different situation from that of a party who takes a dismissal after the sustaining of a demurrer.

The substantial justice statute (Section 11364, General Code) is to be applied only where there has been a fair trial, and not as a means of avoiding the requirements of the law. Knabb, Admr., v. Scherer, 45 Ohio App., 535, 187 N. E., 574; Taylor v. Schlichter, 118 Ohio St., 131, 160 N. E., 610; H. E. Culbertson Co. v. Wardin, 123 Ohio St., 297, 175 N. E., 205; Bush, Admr., v. Harvey Transfer Co., 146 Ohio St., 657, 67 N. E. (2d), 851.

If the error is manifest and substantial, such as is present in the instant case, in order to certify that substantial justice has been done, it must affirmatively appear from the record that the error did not operate prejudicially to the defendant. Bartges v. O’Neil, supra; Cleveland Punch & Shear Works Co. v. Consumers Carbon Co., 75 Ohio St., 153, 170, 78 N. E., 1009.

Under the law, the defendant company had the right to be tried alone. Although prejudice need not affirmatively appear (Bartges v. O’Neil, supra), a review of the evidence indicates that each of the defendants endeavored to shift responsibility for the loss to the other. This advantage to a plaintiff frequently appears in personal injury cases where two defendants are jointly liable. The demurrer should have been sustained, with leave to the plaintiff to file several petitions as provided by Section 11312, General Code. Upon the defendant’s motion to direct a verdict upon the ground of misjoinder, the court should have ordered the plaintiff to elect with which of the two causes of action he desired to proceed. Because of these errors prejudicial to the defendant, the judgment should be reversed and the cause remanded for a new trial as against the defendant-appellant.

       Although Section 211 of the New York Code relating to joinder of defendants as amended does not in terms include “series of transactions,” the phrase is included in Section 207 relating to joinder of plaintiffs. Section 258, which was formerly the counterpart of Section 11306, General Code, relating to joinder of causes of action, was amended in 1935 to permit joinder of two or more causes of action whether legal or equitable with provision for severance when required in the interest of justice. In reaching its decision in the Great Northern case, the court construed the amended Civil Practice Act as a whole and in the light of English decisions interpreted Section 211 as including’ “series of transactions.” Section 211, as amended in 1937, permits joinder of defendants against whom the right to any relief is alleged to exist whether jointly, severally or in the alternative, and judgment may be given according to their respective liabilities. The sections of the New York Code relating to joinder were amended to conform to the rules of the Supreme Court of Judicature of England. New York decisions relating to practice and procedure have heretofore been regarded as persuasive in interpreting the Ohio Code of Civil Procedure, but decisions rendered since the liberalization of the New York procedure relating to parties are no longer helpful in construing the subject under the Ohio statutes.

       In Wery v. Seff, 136 Ohio St., 307, 312, 25 N. E. (2d), 692, the court struck out the word “only” as appears in the third paragraph of the syllabus of the Brenner case, but in Larson v. Cleveland Ry. Co., 142 Ohio St., 20, 50 N. E. (2d), 163, the word “only” again appears in the fourth paragraph of the syllabus.


source: Caselaw Access Project

author: Metcale, J.

license: Public Domain

text:
    In re Adoption of Shaw: Shaw et al., Appellees, v. Kiser, Appellant.
    (No. 225
    Decided January 24, 1950.)

      Mr. O. E. Young, for appellees.

      Mr. John E. Houston, for appellant.
   Metcale, J.

Clement Shaw and Yana Shaw, husband and wife, filed a petition in the Probate Court of Brown County for adoption of Betty Lou Dyer, whose first name appeared at that time to he Dixie Lee Dyer, according to the certificate of birth contained in the record. The petition was brought under and by virtue of Section 10512-11, General Code (effective January 1, 1948, 121 Ohio Laws, 448).

The petition, after setting forth the other allegations necessary under the above section, alleged in respect to each of the parents of the child sought to be adopted that such parent has “wilfully failed to properly support and maintain said child for a period of more than two years immediately preceding the filing of this petition; and who has not been adjudged incompetent by reason of mental disability.” Such allegation is necessary under the provisions of Section 10512-14, General Code (121 Ohio Laws, 450), the pertinent part of which reads as follows:

“No final decree or interlocutory order of adoption shall be entered by the court unless there shall be filed with the court written consents to the adoption, verified or acknowledged, as follows

Í ( * # #

“ (2) By each of the living parents, adult or minor, except as follows:

6 Í * * *

“(d) If it is alleged in the petition that one or both of the parents have wilfully failed to properly support and maintain the child for a period of more than two years immediately preceding the filing of the petition, the court shall cause notice of the filing of said petition and the allegations of such failure to be given such parent or parents as provided in Section 10501-21 of the General Code. After such notice has been given, the Probate Court shall determine the issue as to such failure to properly support and maintain the child. The consent of the parent found by the Probate Court to have wilfully failed to properly support and maintain the child for such period shall not be required.”

Proper notices were served on each of the parents. The father appeared in open court and consented to the adoption, but the mother filed an answer in which she denied the allegation of wilfully failing to maintain and support the child; alleged-that she was divorced from the father and had since married another person; that by reason of having regained her health she was now in a position to support her child; and that no demand or request had ever been made upon her for any support; and prayed that the petition for adoption be denied and the child be turned over to her as its mother.

A hearing was had as provided by paragraph (2) (d) of Section 10512-14, General Code, and the court found the “allegations and averments of the petition to be true and that the said parents of said child had, during a period of more than'two years'immediately preceding the filing of said petition, wilfully failed to properly support and maintain said child, and therefore said action is retained by the court for further hearing.”

Upon further hearing as provided by law the court found “that the parents of said child were heretofore duly divorced by the Court of Common Pleas of Scio-to County, Ohio, but that no decree was made in said 'cause as to the custody of the children of the parties, but that the father of said child appeared in this court and consented to this adoption.

“The court further finds that said child was born on the 18th day of October, 1937, and that it has resided continuously in the home of the petitioners ever since she was only a few days of age, less than one month old.”

The court examined the petitioners separate and apart and stated in its journal entry that each petitioner desired the adoption; that from the testimony taken, the facts stated in the petition were found to be true; that the petitioners are persons of good moral character and • reputable standing in the community and possessed of sufficient means and ability to maintain and educate the child properly; that the best interest of the child would be promoted by such adoption; that the child is suitable for adoption; and that all the provisions of law relative to adoption had been complied with. The court entered the following order and decree:

“It is therefore by the court ordered and decreed that said adoption be and it is hereby granted; and it is further ordered that the name oí said child be and it is hereby changed from Betty Lou Dyer to Betty Lou Shaw.”

The defendant, Dixie Kiser, the mother of the child, appeals on questions of law from the order of adoption, and sets forth four separate assignments of error, all which go to one question, namely, the court’s finding that she had wilfully failed to properly support and maintain the child for a period of more than two years immediately preceding the filing of the petition.

The record discloses that on August 15, 1937, approximately two months before the child in question was born, its expectant mother, the appellant herein, went to the home of the petitioners, Mr. and Mrs. Shaw, she being a cousin of Mrs. Shaw, and advised Mrs. Shaw that she wanted her to have the child when it was born. A few days later Mrs. Shaw went to see the appellant to ascertain whether she really meant to give her baby away. She went back the following day, and on both occasions the appellant reiterated that she desired to give the petitioners her baby, and that she would let them know when it was born. Correspondence passed between them to the same effect.

The evidence discloses further that on the day the baby was born, or shortly thereafter, the petitioners were notified that the baby had been born and that Mrs. Shaw went to the home of appellant and obtained the child. Mrs. Shaw testified that she took the baby back to its mother sometime thereafter and told the mother that they were getting so attached to it they might want to keep it, and that its mother replied that since she had five other children, she did not know what she would do with this baby, and re-emphasized that petitioners could have it. The child was then taken back to petitioners’ home where it remained until August 16, 1949, at which time it was nearly 12 years of age. It then visited its mother for a week and two days for the purpose of taking a vacation. It was after this visit that the mother became desirous of obtaining the custody of the child.

The record discloses further that since the birth of Betty Lou her father and mother have divorced; that the father took custody of their other five children ; that three of these five are now self-supporting; that the father is maintaining the other two in the city of Dayton; that the mother has since remarried; that neither the father nor the mother has ever supported, maintained or otherwise contributed to the maintenance of this child; and that no demand has ever been made on them for such maintenance or for contribution thereto. The petitioners have treated the matter at all times as if the child was their own, which no doubt accounts for no demand being made upon either of the child’s parents for support.

It will be noted in passing that the provision requiring written consent was formerly contained in Section 10512-11, General Code, under which, section, all that was necessary was a finding that the parents had failed or refused to support the child for two consecutive years. Such provision is now found in Section 10512-14, General Code, as enacted, effective January 1, 1946, under which it is required that the court find that a parent not consenting must have wilfully failed to properly support and maintain the child for a period of more than two years immediately preceding the filing of the petition, and under which it is also mandatory that the petition contain an allegation to that effect. The petition in the instant case conforms to the statute. Thus it will be seen that the solution of this appeal depends solely upon the interpretation of the word “wilfully” as applied to the conduct of the dissenting mother, the appellant here. Does her failure to maintain and support this child, under all the circumstances shown in the record, amount to wilfullness? There is no question that she has failed so to do, but was it wilful?

Webster’s New International Dictionary (2 Ed.), defines wilful as “1. Willing; disposed or ready; also, wishful; desirous. 2. self determined; voluntary; intentional.”

Bouvier’s Law Dictionary (Baldwin’s Century Ed.), defines wilful as-“the voluntary act of a party, as distinguished from coercion. * * * intentional, not accidental.” Wilful neglect is therein defined as intentional neglect.

Anderson’s Dictionary of Law states “in common parlance ‘wilful’ me*ans intentional, as distinguished from accidental or involuntary.”

In 45 Words and Phrases, 238, it is said:

“Willful is a word of familiar use in every branch of the law, and it amounts to nothing more than this : that the person knows what he is doing, and intends to do what he is doing, and is a free agent.”

It seems clear to this court that in enacting Section 10512-14, General Code, the Legislature was careful to provide that any failure to properly support and maintain a child for a period of more than two years immediately preceding the filing of the petition for adoption must be intentional on the part of the parent, as opposed to such neglect being unintentional.

Counsel for appellant cites and relies heavily upon the case In Re Goodfleisch, 73 Ohio App., 17, 53 N. E. (2d), 913, in which the court held under former Section 10512-11, General Code, that where a petition for adoption failed to allege that the parent “has failed or refused to support the child” for such length as provided in that section, and where there is no proof of failure or refusal to support, it was error for the Probate Court to render a decree of adoption without such parents’ consent. Counsel reasons that since the enactment of Section 10512-14, General Code (121 Ohio Laws, 148), wherein the phrase, “wilfully failed to properly support and maintain, ’ ’ is substituted, the Goodfleisch case is more in point as being determinative of the instant ease because of the requirement of wilfulness as applied to the failure to properly support and maintain the child. It seems to this court that counsel is overlooking the other phraseology of former Section 10512-11, General Code, wherein it was-provided that the petition must allege and the court find that such parent has failed or refused to support the child. There was no such allegation in the petition in the Goodfleisch case; nor did the proof in that case substantiate any refusal on the part of the mother to support her child for the time required. In fact, in that case, as in the instant case, the mother had never been requested to support her child, such support was unnecessary, and she never had an opportunity to either support or refuse. However, in the section under consideration the Legislature in its wisdom eliminated the word “refused” and made the test simply that of wilfully failing to so support. Counsel for appellant also cites the case of In re Adoption of Gates, 84 Ohio App., 269, 85 N. E. (2d), 597, decided by the same Court of Appeals that decided the Goodfleisch case but since the present section containing the word, wilfully, became effective. However, in the Gates case the petitioner did not allege and the Probate Court did not find that the parents so objecting to the adoption had wilfully failed to properly support and maintain the child, finding only that they had not done so. In the Gates case the appellate court held that the petition failed to state a good cause of action and that the motion to dismiss should have been sustained and proceeded to do so.

This court agrees with the decisions of the Court of Appeals of the Second Appellate District in both the Goodfleisch and Gates cases, but insists that neither of those cases is applicable in the instant case. It is of interest to note that in the Gates case the court defined wilfully as being intentional. Certainly, the record in the instant case establishes clearly that appellant’s failure to properly support and maintain her child has been intentional not only for two years preceding the filing of the petition but since its birth.

It is difficult to conceive that an expectant mother with marital status could deliberately make arrangements for giving away her baby at birth. If this was due, as urged, to ill health and the fact that she was rearing five other children, there may be some excuse. Such justification may have continued even beyond the time the petitioners offered to return the child, for the reason that the ties of attachment were becoming too strong, if there was any doubt that the mother desired her child. However, as the years passed this mother and her husband were divorced, the father taking custody of and maintaining and supporting the other five children, thus relieving the mother of all responsibility therefor. Even though her health was fully recovered and she remarried, she continued to live in a childless home for years without any effort on her part to either see her child, obtain custody of it, support it, or maintain it. It was only when this daughter, approaching 12 years of age, visited her mother during the summer that appellant then desired her custody. "Whatever motive appellant has, or however commendable her desire is now to have her child, certainly her actions hereinabove enumerated justified the finding of the Probate Court that she had wilfully failed to properly support and maintain the child for a period of more than two years immediately preceding the filing of the petition.

The welfare of this child must not be lost sight of. Maintaining and supporting a child means a great deal more than furnishing the material necessities. This mother, the appellant, has wilfully failed and refused to furnish that for which there is no substitute— maternal affection and motherly contact. This duty, neglected on appellant’s part, has been admirably performed by the petitioners, and, while this in itself may not control in the determination of the wilfulness of appellant, it is a paramount factor once wilfulness is established. Neither appellant nor counsel have in any way attempted to show that the court was wrong in finding the petitioners suitably qualified to care for and rear-the child, nor do they claim that it is not in the best interest of the child to be adopted.

Counsel for appellant has advised this court that in the event it affirms the judgment of the Probate Court, he will request a certification of this case as being in conflict with the Gates case, supra. For reasons stated in the body of this opinion we do not find ourselves to be in conflict with the decision in the Gates case, agreeing therewith on the facts therein • stated. Therefore, the application to certify is denied.

None of the assignments of error are well taken, and the judgment and decree of adoption must be affirmed.

Judgment affirmed.

McCurdy, P. J., and Gillen, J., concur.


author: IIornbeck, J.

text:
    Royer, Appellee, v. The Shawnee Mutual Ins. Co., Appellant.

      (No. 4395
    Decided September 27, 1950.)

      Mr. Iiylas A. Hilliard, for appellee.

      Messrs. Williams, Reynolds, Murray & Deeg, for appellant.
   IIornbeck, J.

This is an appeal on questions of law from a judgment of the Municipal Court for plaintiff in the amount of $547.06 and costs, upon trial had to a judge of that court.

Seven errors are assigned hut one only is urged.

Plaintiff, on September 8, 1948, was the owner of a 1947 Cadillac automobile, and on that date, through one Sidney Franklin, representative of the Sanshuck Insurance Agency, Cleveland, Ohio, was issued a policy of insurance by the defendant company covering certain personal injuries and damages to and by the automobile as, specified in the policy. The term of the insurance was for sis months on and after September 18, 1948. On that date, and after the issuance of the policy, the insured car was involved in an accident resulting in damages thereto for which claim was made by the insured to the defendant company and payment made covering the loss. The Cadillac named in the policy was taken to a garage for repairs, which were not completed until sometime succeeding December 4, 1948.

On September 28, 1948, the plaintiff purchased another Cadillac automobile and within thirty days thereafter notified Franklin, through whom he had placed his insurance, of his purchase, and made inquiry of him as to whether the Cadillac last purchased was covered by his policy with the defendant company. In response to this notification, Franklin called the San-shnck Insurance Agency, later informing plaintiff that the second Cadillac was covered by his policy with the defendant company. Subsquent to this notice, on December 4, 1948, the plaintiff was involved in another collision in which the second Cadillac was damaged. The first Cadillac was in a garage for repairs at all times from the time of the collision in which it was involved until after the date of the second collision, which repairs were delayed because of inability to secure parts. Plaintiff made claim for damages to the second Cadillac by reason of the second collision, which claim was refused. Suit was instituted by the plaintiff upon the policy.

It is claimed by plaintiff that the defendant company is obligated by the terms of its policy to pay him the damages resulting from the collision in which the second Cadillac was involved. It is the claim of the defendant company that at the time of the second collision the second Cadillac damaged was not • insured. It further appears that in one of the conversations between the plaintiff and Franklin, plaintiff stated that he intended to sell the Cadillac described in the policy. However, he did not sell it until after the second accident.

The question presented requires construction of' the applicable provisions of the ninth paragraph of the policy, headed, “Automatic Insurance for Newly Acquired Automobiles,” and reading:

“If the named insured who is the owner of the automobile acquires ownership of another automobile and so notifies the company within 30 days following the date of its delivery to him, such insurance as is afforded by the policy applies also to such other automobile as of such delivery date:

“(a) If it replaces an automobile described in this policy, but only to the extent the insurance is applicable to the replaced automobile, or “(b) * *

The question is further narrowed down to the meaning of the language in paragraph (a), “If it replaces an automobile described in this policy. ’J If the second Cadillac replaced the Cadillac named in the policy then the judgment was properly entered in the trial court.

It is our conclusion that, under the facts appearing, the second Cadillac acquired did replace the Cadillac described in the policy. We make this determination from the language of the policy itself, independent of the statement of Mr. Franklin to the plaintiff that the second automobile acquired was covered.

The term, “replace,” means to take the place of.The first Cadillac insured ivas to be used by the plaintiff for “business and pleasure.” Manifestly, an automobile which was inert and could not be operated, and which was laid up in a garage for repairs, ceases to serve the purpose of the automobile which the defendant insured. Collision insurance is of no value on such a car. The second Cadillac was acquired for and did serve the insured as an automobile for business and pleasure. In the common acceptation of the term, ‘ ‘ replace, ’ ’ it replaced the automobile which was named in the policy. The fact that the insured retained the title to the Cadillac named in the policy as well as the second Cadillac purchased does not change the application of the terms of the policy, because, the use to which the second car was put clearly indicates that the purpose for which the second Cadillac was employed was to replace the Cadillac named in the policy.

Counsel say to the court that they have found no cases in which the facts parallel the facts developed in the instant case. We assume that this is true and have made no intensive search of the authorities. However, we do find that the situation developed here was anticipated and clarified in the language of the policy issued by the defendant insurance company and involved in the case of Dean v. Niagra Fire Ins. Co. (Cal.), 68 P. (2d), 1021. There paragraphs 2 and 3 provide:

“2. If the company does not cover all automobiles owned by the named insured at the date of such delivery [of the policy], the insurance shall be applicable only to such other automobile if it replaces an automobile described in this policy.

“3. The insurance afforded by this policy shall automatically terminate upon the replaced automobile at the time of such delivery.”

We do not have in this case the question whether the automobile named in the policy was insured during the period that it was replaced by the second Cadillac. However, we are satisfied that the second Cadillac was covered by the policy and that the judgment for the plaintiff was properly entered.

Judgment affirmed.

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


author: Doyle, J.

text:
    Manos, Appellant, v. Day Cleaners & Dyers, Inc., Appellee.

      (No. 4243
    Decided April 9, 1952.)

      Messrs. Englebeck £ Kaufmcmn, for appellant..

      Mr. Ralph Burroughs and Mr. Samuel Friedman, for appellee.
   Doyle, J.

An appeal on questions of law and fact from a judgment of the Court of Common Pleas of Summit County places this litigation for trial de novo in this court.

As stated by the trial judge in the Court of Common Pleas:

“The'plaintiff has two causes of action.

“The first cause of action is to prevent the defendant from building an edifice that would occupy the defendant’s property from property line to property line. It is claimed that the plaintiff has an easement over the erstwhile driveway that ran along the north side of the defendant’s land and within two feet of the building on the plaintiff’s property. It is claimed that this driveway was used by the owner and occupants of the plaintiff’s property for ingress and egress to the plaintiff’s property for a period of more than twenty-one years.

“The second cause of action is an action to have removed two inches of a brick building that admittedly projects into the plaintiff’s property on the west side thereof a distance of two inches.

“The defendant in the cross-petition seeks to have the court find that the two-inch western end of the plaintiff’s property has been occupied by the defendant’s building for more than twenty-one years, and to quiet the title to the two-inch strip of land and declare the ownership thereof to be in the defendant. ’ ’

The answer of the appellee to the appellant’s action in ejectment pleads the 21-year limitation for the bringing of the action.

' 1. It has long been the rule in this state that “1. Where one uses a way over the land of another without permission as a way incident to his own land and continues to do so with the knowledge of the owner, such use is, of itself adverse, and evidence of a claim of right. And where the owner of the servient estate claims that the use was permissive, he has the burthen of showing it.” Also, “2. When one who is the owner of a tract of land uses a way over the land of another for the convenience of egress and regress to his own land, without let or hindrance and without obstruction for the period of twenty-one years, he thereby, in the absence of anything to the contrary, acquires a right by prescription to its use as an incident to his land; and the right will pass by a conveyance or descent of the land.” Pavey v. Vance, 56 Ohio St., 162, 46 N. E., 898.

An essential element in the establishment of an easement by prescription under the foregoing general statement is proof that the use of the land was adverse or hostile to the real owner and under a claim of right. Without such proof, one cannot be said to possess or use as an owner. While it is difficult to put into words a definition of adverse user, it is probably safe to say that a use is not adverse if the use of another’s land is accompanied with an express or implied recognition of the landowner’s right to put an end to the use, or, as stated in 2 Tiffany on Real Property (2 Ed.), Section 519 (at p. 2042), “a user is adverse if not accompanied by any recognition, in express terms or by implication, of a right in the landowner to stop snch user now or at some time in the future. ’ ’

This court in Pierce v. Cherry Valley Farms, Inc., 76 Ohio App., 58, 63 N. E. (2d), 46 (affirmed, 146 Ohio St., 400, 66 N. E. [2d], 639), set forth the elements necessary for the establishment of an easement by prescription. We then said that “it must be adverse, under claim of right, continuous and uninterrupted, * * * with the knowledge and acquiescence of the owner of the servient tenement, and must continue for the full prescriptive period, while the owner of the servi-ent tenement is under no legal disability to assert his rights, or to make a grant.” In the instant case, we adhere to our determination of the necessary elements therein set forth.

We adopt the theory of the modern practice that an easement may be acquired based upon the presumption of a grant, made and lost in modern times which a court may find if there is evidence of enjoyment for a sufficient length of time under the circumstances heretofore set forth. See: Pavey v. Vance, supra.

Proceeding now to the application of the law to the facts before us. Assuming that the facts justify the conclusion that there was a continuous use for 21 years of the driveway in question (which conclusion may be seriously doubted), such conclusion alone is not sufficient to establish an easement where the use is in conjunction with the continuous use by the landowner who opened and used the driveway for his own purposes. As heretofore stated, a prescriptive title must be acquired adversely; and, as the evidence in this case and the reasonable inferences to be drawn therefrom indicate a permissive use or a neighborly accommodation, such fact is the antithesis of an adverse or hostile use, and, in sequence of reasoning, no prescriptive title is created.

In concluding the statement on this phase of the litigation, we are of the opinion that the evidence and the reasonable inferences to be drawn therefrom indicate a permissive use only, which, no matter how long or how ■ often continued, cannot ripen into an easement by prescription, since user as of right, as distinguished from permissive user, is lacking. See: 28 Corpus Juris Secundum, Easement, Section 18, and cases cited.

Thus far in this opinion we have briefly discussed the law relative to the acquisition of an easement by adverse use. We now proceed to analyze the law relative to the acquisition of a corporeal hereditament by adverse possession, and the statute limiting the time to bring an action in ejectment, as distinguished from the acquisition of an incorporeal hereditament by prescription.

The evidence shows that the building of the appellee has occupied a small strip of the appellant’s land (about 2 inches in width) since the year 1920, and from a time prior to the ownership of the property by the appellant, Freda A. Manos.. This lawsuit was commenced in 1947. There was, therefore, an actual, continuous, notorious and exclusive use and possession of the appellant’s (Manos’s) property for 27 years. Evidence was introduced and received, tending to prove that in the year 1937 or 1938 (17 or 18 years after the original possession of the appellee) the appellant and the appellee orally agreed that payment of $7.50 a month, plus the cleaning of two suits of clothes per month, would be made to the appellant, Manos, to pay her for the use of the small strip of land upon which the building stood, plus an additional area for parking purposes, etc. It is asserted by the appellant, Manos, that this arrangement with modifications lasted for two or three years. (The appellee denies specifically any such agreement.) It is claimed that this agreement interrupted an adverse use.

As we view the law in this state, we are not called upon to weigh this evidence, nor to determine whether an oral rental was agreed upon. This for the reason that the rules of law applicable to adverse possession of corporeal property for 21 years are not the same as those applicable to the acquisition of easements by prescription.

In this state it has long been a rule of property that:

“1. Where the statute of limitations is interposed in an action of ejectment, and it is shown that the original seizure was a disseisin, any subsequent act or declaration of the claimant, or his predecessor in title, which does not estop the claimant to plead the statute, nor suspend the right of the holder of the title to prosecute an action to recover possession, will not be sufficient to arrest the running of the statute. Neither a mere offer to buy within the twenty-one years, nor an acknowledgement by the claimant within that time that the title is in another, or that the claimant does not own the land, will have that effect. ’ ’ McAllister v. Hartzell, 60 Ohio St., 69, 53 N. E., 715.

The statute to which reference is made in the quotation above is now Section 11219, General Code, and is as follows:

An action to recover the title to or possession of real property, shall be brought within twenty-one years "after the cause thereof accrued, but if a person entitled to bring such action, at the time the cause thereof accrues, is within the age of minority, of unsound mind or imprisoned, such person, after the expiration of twenty-one years from the time the cause .of action accrues, may bring such action within ten years after, such disability is removed.”

Assuming the law to be that a valid lease, from the appellant, Manos, to the appellee, of the two-inch strip upon which the building is located, would arrest the running of the statute and would estop the claimant from pleading the statute of limitations, what is the legal effect of the claimed oral agreement to pay rent for the land, assuming that it is ■ sufficiently established by the evidence?

The courts of this state have consistently held that, to escape the operation of the statute of frauds (Sections 8620 and 8621, General Code) to validate a parol lease of real property, there must be a delivery of possession of the land, which possession is clearly referable to the contract of lease. Armstrong v. Kattenhorn, et al., 11 Ohio, 265. While this cited case was decided in 1842, nevertheless the rule found approval in the year 1949 in the ease of Snyder v. Warde, Admx., 151 Ohio St., 426, at pp. 433-434, 86 N. E. (2d), 489, in the following language:

“That delivery of possession will take an oral contract concerning lands out of the statute of frauds has been consistently held by this court since the case of Wilber v. Paine * * * [i Ohio, 251]. Bumiller v. Walker, 95 Ohio St., 344, 116 N. E., 797, L. R. A. 1918B, 96. Such delivery of possession must be referable to the contract. Armstrong v. Kattenhorn, 11 Ohio, 265; Crawford & Murray v. Wick, 18 Ohio St., 190, 98 Am. Dec., 103. However, as consistent as this court has been in holding that delivery of possession removes an oral contract from the statute of frauds, it has been just as consistent in holding that the payment of the consideration is not sufficient to take such a contract out of the statute (Sites v. Keller, 6 Ohio, 483; Pollard v. Kinner, 6 Ohio, 528) * *

In the case here for decision, at the time of the claimed oral agreement of lease, the appellee’s building had been standing on the appellant’s land for more than 16 years. Whether the original encroachment was by mistake or otherwise is of no consequence. The possession of the appellee from the beginning had been continuous and exclusive under the original encroachment, and “if the possession can be referred to any other source than the parol contract, which it is claimed to support, even to the wrongful act of the party in possession, or to a different contract, the statute applies,” and is not possession in pursuance to the oral lease, which alone can give it (the lease) life. Armstrong v. Kattenhorn, supra.

Adopting and paraphrasing the aphorism of the Supreme Court of this state as expressed in McAllister v. Hartzell, supra, at p. 93, to the case before us, we conclude that, where it is shown that the original seizure was a disseisin, no subsequent act or declaration of the claimant should be held to toll the statute which does not deprive the holder of the title of his right to prosecute his .action to recover possession or suspend the same. In applying the rule, it is clear that an oral agreement of lease, which was ineffectual because of the statute of frauds, did not deprive the appellant of a right to bring an action to recover possession of his property within the twenty-one-year period, nor was such oral agreement, if in truth and fact it was actually made, a sufficient acknowledgement of the claimant that the title was in the other, or that he did not own the land, to suspend the running of the statute of limitations. “Such acts and declarations raise no conclusive implication that the claimant intends to attorn to the holder of the title, or yield the possession.”

In concluding this phase of 'the litigation, we deny the plea for ejectment and quiet the title in the appel-lee to the small strip of land.

Decree for appellee.

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


author: Thompson, J.

text:
    Federal Ins. Co., Appellant, v. The International Harvester Co., Appellee.
    (No. 22382
    Decided February 25, 1952.)

      Mr. T. Edward McNamara and Mr. Robert. J. Qem-perline, for appellant.

      Messrs. Squire, Sanders & Dempsey, for appellee.
   Thompson, J.

This case comes to this court on appeal on a question of law by plaintiff, appellant, as the result of the action- of the trial court in sustaining a demurrer to plaintiff’s amended petition and, upon failure of plaintiff to plead further, entering judgment in favor of defendant, appellee. No opinion having been rendered by the trial court, and there being no Ohio case directly in point, the reasons for this court’s decision will be briefly stated.

The facts in the amended petition disclose that in April 1944, the defendant sold to one Downing two of its trucks insured by plaintiff against loss by fire. Both of these trucks were destroyed by fire the following month. Subsequently, plaintiff paid the insured for the loss and thereby became subrogated to any claims of its insured against defendant. The trucks were originally sold to Downing under a written warranty, a part of which is set forth in the amended petition as follows:

“The International Harvester Company warrants each new International Motor Truck to be free from defect in material and workmanship under normal use and service, its obligation under this warranty being limited to making good at its factory any part or parts thereof which shall be returned to it with transportation charges prepaid, and which its examination shall disclose to its satisfaction to have been thus defective, provided that such part or parts shall be so returned to it not later than ninety (90) days after delivery of such vehicle to the original purchaser, and that at the time of such return, the said vehicle shall not have been operated in excess of five thousand (5,000) miles.”

The amended petition alleges further that there was a defect in workmanship in that the cables selected by defendant for the purpose of connecting the storage batteries with the ignition device were too short or that there was a defect in the manner and method by which the cables were attached to the batteries and starting devices causing the insulation on the battery cables to wear, resulting in a short circuit which in turn ignited gasoline and caused the fire which destroyed the motor vehicles. The amended petition recites further that plaintiff did not have sufficient knowledge to set forth with certainty the exact nature of the defect or defects but asserts that defendant had full knowledge thereof. The amended petition alleges further that, by reason of the facts set forth, the defendant breached its warranty and that as a result of the defective workmanship and the breach of warranty, the trucks sold to Downing were lost by fire. The amended petition alleges further that because of the nature of the loss it has been impossible to comply with the condition in the warranty regarding the return of defective parts and that defendant by its conduct waived compliance with said condition and that both vehicles had been operated less than 5,000 miles. The amended petition states further that prior to the fire, each of the two vehicles had a reasonable value of $6,000, that their total salvage value after the fire was $2,500, that plaintiff had paid the loss iu the amount of $9,500 to the insured Downing, and that by reason thereof plaintiff had become subrogated to all rights that the latter had against the defendant. The amended petition therefore prays judgment against the defendant in the sum of $9,500 with interest and costs.

The defendant, the International 'Harvester Company, filed a demurrer to the amended petition “for the reason that said amended petition does not state facts which show a cause of action- against the defendant. ’ ’

The trial court sustained the demurrer and upon failure of plaintiff to plead further, final judgment was rendered for defendant. The case is therefore before this court on the single assignment of error, that the trial court erred in holding that plaintiff’s amended petition fails to state a cause of action.

Examination of the warranty set out in the amended petition discloses the nature of the original contract between the defendant and Downing, and the rights of Downing to which plaintiff became subrogated by payment of the loss.

In the brief on behalf of plaintiff the familiar rule is cited, applicable to insurance contracts, and appearing in Farmers National Bank v. Delaware Ins. Co., 83 Ohio St., 309, 94 N. E., 834, that a printed condition of doubtful meaning susceptible of two or more constructions will be construed most favorably to those dealing with the party employing the, doubtful or ambiguous language. In this case, however, we do not find that the language of the express warranty is ambiguous or susceptible of two meanings. In line with our finding that no such ambiguity is present in this instance, we must recognize that parties to a contract of sale may generally provide for a limitation of the rights of the buyer in case of breach of a stipulated warranty.

In the instant case, it will be noted that the breach alleged in the petition is that of an express warranty. No warranty can be implied which is inconsistent with an express warranty. 35 Ohio Jurisprudence, 870, Sales, Section 142. In Phillips v. Sharp, 44 Ohio App., 311, 185 N. E., 562, it was held that, where there is an express warranty, a warranty cannot be implied which is inconsistent therewith. This latter case is cited in an exhaustive note discussing circumstances in which an express warranty excludes an implied warranty of fitness in 164 A. L. R., 1321 at 1327.

This is also the purport of the Uniform Sales Act, adopted by Ohio, notably Subdivision (6) of Section 8395, General Code, providing as follows:

“An express warranty or condition does not negative a warranty or condition implied under this chapter unless inconsistent therewith.”

Counsel in briefs and argument have set out in more complete detail the exact language of the express warranty in this case, bnt in considering the sufficiency of the demurrer, we are not able to look beyond that portion of the warranty contained in the amended petition which we have quoted. Enough of the warranty was set forth in the amended petition to reveal that the company’s contract was “limited to making good at its factory any part or parts thereof which shall be returned to it with transportation charges prepaid, and which its examination shall disclose to its satisfaction to have been thus defective.”

Has breach of this warranty been pleaded by the allegation of the amended petition that plaintiff “duly performed all conditions on its part to be performed; that because of the nature of the loss it was impossible for plaintiff to comply with the condition in said warranty regarding the return of defective parts, and that defendant by its conduct waived compliance of said condition”? It is to be noted that the paragraph quoted from the amended petition does not set forth facts and circumstances, nor does any other paragraph set forth facts and circumstances, constituting a waiver of the condition. It sets forth merely the legal conclusion that the condition was waived. We are required to observe, nonetheless, that allegations constituting legal conclusions cannot be treated as admitted by defendant’s demurrer. Tolliver v. City of Newark, 145 Ohio St., 517, 62 N. E. (2d), 357, 161 A. L. R., 1391; Morrow v. City of Cleveland, 73 Ohio App., 460, 56 N. E. (2d), 333; 31 Ohio Jurisprudence, 661, “Pleading,” Section 103. Under the authorities referred to, we believe it clear that' the amended petition fails to set forth facts and circumstances constituting a waiver of the conditions of the warranty. It is equally clear that nowhere in the amended petition is it asserted that defendant refused to replace defective parts returned to it. Furthermore, it is significant that the prayer for relief is not for damages for breach of warranty, but for damages resulting from the destruction of the motor vehicles by fire.

In Latham, v. Ransome Concrete Machinery Co., 13 Ohio Law Abs., 65, a concrete mixer was sold under a warranty limiting the seller to “repair or furnish without charge, f. o. b. works where made, a similar part to replace any material which, within six months after shipment, is proved to have been defective at the time it was shipped” and providing that the company’s liability was limited solely to the replacement or repair of defective parts. The Court of Appeals for the Second Appellate District held that the rights of the parties were to be determined by the terms of the contract entered into betwéen them. Upon this point the court declared:

“The contract entered into between the said parties clearly provides that the defendant in error shall be hable only for the replacement or repair of defective parts; that there will be no other liability and that the contract expresses the entire agreement between the parties.

“Counsel for plaintiff in error refer to different,subdivisions of Section 8395, General Code.

“We can not escape the conclusion but that the language of the contract in question expressly provides that there shall be no other liability, and therefore negatives the provisions of the statutes in question.”

So' far as we can determine, two Kentucky cases, and no others, have passed upon the precise warranty before the court in this case. These cases are James v. International Harvester Co. (1943), 294 Ky., 722, 172 S. W. (2d), 670, and Black Motor Co. v. Foure (1936), 266 Ky., 431, 99 S. W. (2d), 177. In the James case, the International Harvester Company brought suit to recover the balance due on a truck which it had sold under a warranty identical with the warranty in the instant case. The truck had been destroyed by fire and the purchaser cross-petitioned for damages for ■loss of use of the truck. The Court of Appeals of Kentucky affirmed the judgment of the lower court in favor of the International Harvester Company in language which commends itself to us in the present case. The court declared:

‘ ‘ ‘.It is obvious that the seller and purchaser of any article may make a definite contract limiting the liability of each under the contract, and it will be noted that under the warranty in question the seller went no further than to agree to make good at its factory all defective parts of the truck which might be returned to the factory within three months from the time of the sale, provided that at that time the truck had not been run exceeding 5,000 miles.

“ ‘There was no charge or proof to the effect that at any time the plaintiff was given any opportunity to remedy any defects of material or workmanship in the truck as required by the contract. The parties to this litigation made a contract which they had the right to do, and no court is authorized to alter or change the terms of the contract. Now it may be possible that, even under the contract in question, if the truck was absolutely worthless for the purposes for which it was sold, the purchaser had the right within a reasonable time after the discovery of the condition of the truck to offer to rescind the contract and to return the truck. This they did not do. They kept the truck and used it from August 1938 until it was practically destroyed by fire, some six months, and during which time they •testify that they discovered the claimed worthless condition of the truck. They had the right to offer to rescind the contract or to rely upon the warranty. They did not offer to rescind nor did they undertake to have plaintiff to comply with its warranty by returning the defective parts for repair or replacement. Under the state of facts, as shown by the record, I am clearly of the opinion that the plaintiff is entitled to recover.’ ”

We do not find that the case of American Locomotive Co. v. National Wholesale Grocery Co., 226 Mass., 314, 115 N. E., 404, L. R. A., 1917D, 1125, cited by plaintiff appellant, is persuasive, since the terms of the warranty involved in that case were materially different from the terms of the warranty involved in the instant case. We are constrained to hold that under the contract here in question, which the parties were entitled to make, the trial court properly sustained the demurrer.

The judgment appealed from is affirmed.

Judgment affirmed.

Skeel, P. J., and PIurd, J., concur.


author: Ross, J.

text:
    Lewis (Anspach, Admx., substituted plaintiff), Appellant, v. City of St. Bernard, Appellee.

      (No. 7481
    Decided October 22, 1951.)

      Mr. John J. Rivers, for appellant.

      Mr. Joseph F. Rusche, for appellee.
   Ross, J.

An action for damages was commenced by the plaintiff named in the above entitled cause against the defendant municipality, it being alleged that such plaintiff was injured by reason of the failure of the defendant municipality to keep a certain street therein in repair. This action was instituted to recover damages for injuries to the person of the then plaintiff. The original plaintiff above named in the title of this case died and one Sylvia Anspach was appointed administratrix of the estate of Kate Lewis, the above named plaintiff. Upon motion, suggesting the death of such original plaintiff and request for revivor in the name of her administratrix, Sylvia An-spach was substituted as plaintiff and the action was thereupon revived in her name. She filed an amended petition seeking to recover damages for injuries to the person of her decedent, caused by the failure of the defendant municipality to keep a certain street within its boundaries in repair. ,

A demurrer was filed by the defendant' to such amended petition on the ground that no cause of action against the defendant was stated therein, “in that the plaintiff has died and by virtue of her death the alleged cause of action is abated.”

The demurrer was sustained by the trial court and the plaintiff not desiring to plead further the “cause” was “dismissed with prejudice.”

An appeal on questions of law from such judgment is now before this court and is here considered.

It would seem from what is said in the briefs and stated in argument that the basis for such action by the trial court is that the cause of action stated by the' substituted plaintiff is an action for nuisance, and that under the provisions of Section 11397, General Code, such action abates with the death of the plaintiff.

The major portions of the briefs and arguments are devoted to adverse contentions upon the question of whether the action is one predicated upon nuisance or mere negligence.

In view of the conclusions of this court, expressed hereinafter, it becomes unnecessary to determine this question.

Section 11397, General Code, provides:

“Unless otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto, except actions for libel, slander, malicious prosecution, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of either party.” (Emphasis added.)

The italicized portion of this section is of particular moment. Such section is a part of Part Third of the General Code (Remedial).

Section 11235, General,Code, provides:

‘ ‘ In addition to the causes which survive at common law, causes of action for mesne profits, or injuries to the person or property, or for deceit or fraud, also shall survive; and the action may be brought notwithstanding the death of the person entitled or liable thereto.” (Emphasis added.)

Section 11401, General Code, provides:

“If before judgment, one of the parties to an action dies, or Ms powers as a personal representative cease, but the right of action survives in favor of or against his representatives or successor, the action may be revived, and proceed in the name of such representatives or successors.”

If the phrase, “for a nuisance,” appearing in Section 11397, General Code, may be construed as including an action for personal injuries resulting from a nuisance (which may be seriously doubted as hereinafter noted), then obviously the provisions of Section 11235, General Code, and Section 11401, General Code, are within the purview of the opening words of Section 11397, General Code, supra, “unless otherwise provided,” for the action here in question is one for “injuries to the person” of plaintiff.’s decedent. In Section 11235, General Code, supra, it is definitely and specifically provided, without qualification, that such an action for “injuries to the .person” survives the death of the person suffering such injuries. Section 11401, General Code, supra, provides that when an action survives, as the instant action undoubtedly does, it may be revived in the name of the personal representative.

In view of the fact that all these sections noted were, in general substance, a part of the Act of March 11, 1853 (51 Ohio Laws, 57, 166) and of the amendment thereto in 90 OMo Laws, 139,140, it is unreasonable to suppose that the Legislature could have intended to pass conflicting statutes, or even that it did so. On the contrary, it would seem more reasonable to suppose that having sustained survivorship of actions for “injuries to the person” in one section (51 Ohio Laws, 122; 90 Ohio Laws, 140, post, that in the next section when it provided abatement “for a nuisance,” the Legislature intended by use of the latter expression, “for a nuisance,” to limit abatement to those actions in which nuisance was the essential subject of the action, rather than merely a proximate cause of injuries to the person. In other words, actions for the abatement of a nuisance were in the contemplation of the Legislature when the words, “for a nuisance,” were used.

The original text of these acts in 51 Ohio Laws, and the amendments in 90 Ohio Laws, develop clearly a perfect consistency and show that none of them, as finally amended in 1893, and as now in force, are in conflict with one another.

Sections 11235, 11397 and 11401, General Code (Sections 4975, 5144 and 5148, Revised Statutes), are all, in substance, a part of the act of March 11, 1853, “To Establish a Code of Civil Procedure.” (51 Ohio Laws, 57, 166.)

Under Title XII of this act, “Causes of Action Which Survive, and Abatement of Actions,” Section 398, 51 Ohio Laws, 122 (now Section 11235, General Code, Section 4975, Revised Statutes), provided:

“In-addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to real or personal estate, or for any deceit or fraud, shall also survive, and the action may be brought notwithstanding the death of the person entitled or liable to the same.”

The next section, being Section 399, 51 Ohio Laws, 122 (now Section 11397, General Code, Section 5144, Revised Statutes), provided:

“No action pending in any court, shall abate by the death of either or both of the parties thereto, except an action for libel, slander, malicious prosecution, assault, or assault and battery, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of the defendant.”

Under Title XIII, “Revivor,” Section 402 of the act, 51 Ohio Laws, 123 (now Section 11401, General Code, Section 5148, Revised Statutes), it is provided:

“When one of the parties to an action dies, or his powers as a personal representative cease before the judgment, if the right of action survive in favor of or against his representatives or successor, the action may be revived, and proceed in their names.”

On April 5, 1893, the Legislature amended the first two of these sections (90 Ohio Laws, 140), and in such amendment the original sections were given as noted. The numbers used in the Revised Statutes of Ohio, original Section 398 of the Act of 1853 became Section 4975, Revised Statute's, and is now Section 11235, General Code. It will be noted, however, that instead of the words, “injury to real or personal estate,” used in the act of 1853, the Legislature in the act of 1893 used the words, “injuries to the person,” as they now appear in Section 11235, General Code.

Original Section 399 of the Act of 1853 became Section 5144, Revised Statutes, now'Section 11397, General Code.

' Section 402 of the act of 1853 (51 Ohio Laws, 123), has been, essentially in its present form, a part óf the law of this state for many years, for on March 23, 1840, the Legislature passed an act “To Provide for the Settlement of the Estates of Deceased Persons.” (38 Ohio Laws, 1460- Sections 240 and 241 of this act (38 Ohio Laws, 186, 187) provided:

“When an executor or administrator shall die, be removed from office, or resign, or when his letters shall be revoked during the pendency of any suit in which he is a party, the suit may be prosecuted' by or against the administrator appointed in his place, if any shall be appointed, in like manner as if it had originally been commenced by or against such last administrator.

“The proceedings in such case, with respect to the appearance of the administrator de bonis non, whether voluntary, or upon citation, and with respect to making an administrator party defendant upon citation, after default to appear, shall be conducted in the manner prescribed in the act entitled, £an act to regulate the practice of the judicial courts,’ upon occasion of the death of either party during the pendency of a suit.”

It will be noticed that in Section 5144, Revised Statutes, as amended by the Act of 1893 (90 Ohio Laws, 140) the Legislature, in order to obviate any misunderstanding or possible conflict between that section (Section 5144) and Section 4975, next preceding, inserted the words, ££except as otherwise provided,” essentially the words now found in Section 11397, General Code, “unless otherwise provided.”

This explains the holding in the case of Village of Cardington v. Administrator of Fredericks, 46 Ohio St., 442, 21 N. E., 766, decided by the Supreme Court May 21, 1889. It was because of the construction of the provisions of Section 5144, Revised Statutes (Section 11397, General Code) by the Supreme Court in Village of Cardington v. Administrator of Fredericks, supra, that the Legislature in 1893 inserted the words in that section, “except as otherwise provided,” thus excluding from its operation actions for “injuries to the person. ’ ’

Again, it should be noted that Section 4975, Revised Statutes (Section 11235, General Code), applied, prior to the 1893 act, to actions for “injury to the real or personal estate,” and was not as clearly applicable to as many cases as the act of 1893 (now Section 11235, General Code), which uses the words, “injuries to the person. ’ ’

Even in the state of the law existing in 1889, it is stated on page 449 in the opinion in the case of Vil lage of Cardington v. Administrator of Fredericks, supra:

“The question is not without difficulty, and much may he said on the other side, hut, as conclusion, upon the grounds stated, we think the action abated upon the death of plaintiff by force of Section 5144.”

That case has been cited with approval many times by the Supreme Court. Almost in every instance it was noted as authority for the existence of a cause of action by one injured in the manner detailed in the statement of facts involved in the Village of Cardington case. It is significant that in no instance has it been cited as an authority by the Supreme Court for the proposition contended for by defendant in the instant action; to wit, that an action for damages for “injuries to the person” is abated even if such action is predicated upon a charge of nuisance.

It must be apparent that the Legislature in 1893 completely abrogated any effect in this respect which the case of Village of Cardington v. Administrator of Fredericks, supra, may have had up to that time. The statutory predicate for the ruling in that case upon the issue of abatement no longer exists. Thus, it clearly appears that all actions, where “injuries to the person” constitute the subject of action, are excluded from the operation of Section 11397, General Code (Section 5144, Revised Statutes, 90 Ohio Laws, 140), whether the action is predicated upon nuisance or negligence.

The instant action, therefore, being one in which the cause of action is predicated upon “injuries to the person” caused by the defendant, is one which survives under the provisions of Section 11235, General Code (Section 4975, Revised Statutes, 90 Ohio Laws, 140), and, therefore, may be revived under the provisions of Section 11401, General Code (Section 5148, Revised Statutes; 38 Ohio Laws, 186, Sections 240, 241; 51 Ohio Laws, 123, Section 402), and Section 11397, General Code (Section 5144, Revised Statutes; 51 Ohio Laws, 122, Section 399; 90 Ohio Laws, 140), by its terms' excludes the instant action from abatement because it is one for “injuries to the person” of the decedent.

Although it may not be necessary to employ the provisions of Section 10214, General Code (51 Ohio Laws, 57, Section 2), to aid in reaching the conclusions herein reached, it may not be amiss to note the language of such section, which provides:

“The provisions of Part Third and all proceedings under it, shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice. The rule of the common law, that statutes in derogation thereof must be strictly construed has no application to such part; but this section shall not be so construed as to require a liberal construction of provisions affecting personal liberty, relating to amercement, or of a penal nature.”

The sections of the Code herein involved are, of course, a part of Part Third of the Code.

Again, in what has been said herein, it is to be understood that no opinion is stated as to whether the instant action is predicated upon nuisance or negligence. A finding upon this question, if such question exists, is not necessary as a predicate to the conclusions herein reached.

The judgment of the trial court is reversed, and the cause remanded to that court with instructions to overrule the demurrer to the amended petition upon the grounds stated in such demurrer, and for such further proceedings as may be in accordance with law.

Judgment reversed.

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