text:
    Gardner, a Minor, Appellee, v. Heldman, Appellant.

      (No. 6905
    Decided March 15, 1948.)

      Messrs. Merland, O’Meara, Santen S Willging and .Mr. John A. Kiely, for appellee.

      Messrs. Harmon, Colston, Goldsmith <& Hoadly and Mr. Henry B. Street, for appellant. ‘ ,
   Ross, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton county, entered by the court in favor of the plaintiff.

The plaintiff brought the action through his father and next friend. In his petition he alleges that he, on September 19, 1943, was a minor, 12 years of age; that on that day he was employed by the Losantiville Country Club as a caddy and was assigned for duty as such to the defendant; that while performing such duties for the defendant he was struck in the head by a golf ball driven by the defendant, and thereby permanently injured; that when the defendant drove the golf ball the plaintiff was standing some fifteen feet away from the defendant and in the direct line of the intended and anticipated flight of the ball; that defendant knew plaintiff was in a position of danger and plaintiff was unconscious of his peril; that the defendant drove the ball directly toward plaintiff without warning plaintiff of his danger and without taking any precaution for the safety of plaintiff; that the ball struck plaintiff in the head, causing a depressed fracture of plaintiff’s skull; that defendant was negligent in failing tó warn plaintiff of his danger, in failing to order plaintiff to a position of safety, in driving the ball directly toward plaintiff, and without taking precaution for the safety of plaintiff; and that such negligence was the direct, proximate result of plaintiff’s injuries. The plaintiff alleged the various incidents of suffering and treatment which plaintiff underwent in an effort to remedy the damage caused by defendant’s negligent acts.

In the answer, defendant admits the age of plaintiff, that he was employed as a caddy by the cluh, was assigned to duty as such, with the defendant at the place and time alleged in the petition and that the plaintiff was struck by a golf ball driven by defendant. Otherwise, the answer was a denial of the allegations of the petition.

From the record, it appears that the plaintiff was a caddy as alleged in the pleadings and that he was assigned as such to the defendant who had full authority to direct his conduct as a caddy during his service as such while so assigned. At the seventh tee, the defendant’s wife first drove off the “ladies’ tee” which was situated directly in front of and some three feet below that used by men. After driving, the defendant’s wife and the plaintiff moved over to the left side of the “ladies’ tee” and stood there while the defendant drove off from about the middle of the men’s tee. The plaintiff stood to the right of defendant’s wife and somewhat closer to the men’s tee than the defendant’s wife. This position placed the plaintiff about fifteen feet in front of and some ten feet to the left of the defendant.

The ball, when driven by defendant instead of following a straight course swerved sharply to the left striking the plaintiff in the head and severely injuring him. It is obvious that the defendant knew of plaintiff’s position and as an experienced golfer should have appreciated that the plaintiff was in a,position of peril, and the evidence shows that he did. The defendant in no way attempted to change the plaintiff’s position.

The jury returned a verdict in favor of the plain-' tiff for $10,000. This amount was subjected to an order of remittitur and a reduction of $3,500 was accepted by the plaintiff.

The defendant assigns as error the action of the trial court in permitting an amendment to the petition during the trial, in that plaintiff was permitted to strike from the petition the words “in the exercise of ordinary care should have known” so that the clause including the words so struck read: “Defendant knew that plaintiff was in a place of great danger and that plaintiff who was then 12- years of age was unconscious of his peril.”

It is claimed this change injected the issue of “last clear chance” into the case. It is evident from a reading of the petition that this is not true and such issue was never presented to the jury'. The doctrine of “last clear chance” is predicated upon the premise that the plaintiff by reason of his negligence has placed himself in a position of peril, but by subsequent action has caused the contributory negligence to disappear, but is still subjected to peril by his former acts and has a right to require the defendant to use ordinary care to protect him from the results of such former negligence.

Both from allegation and evidence it is apparent that the plaintiff, after taking his position in an area of peril, did nothing to change such position.

If he was negligent in taking such position in the first place, he did nothing to remove the charge of negligence which would attach to such action. If the plaintiff was negligent, he was continuously so from the time he took his position until he was struck by the ball.

In any event, that amendment did not change the •cause of action of the plaintiff, and it does not appear how the defendant was in any way prejudiced by the action of the court. See L. & N. Rd. Co. v. Greene, 113 Ohio St., 546, 149 N. E., 876; Douglas, Admx., v. Daniels Bros. Coal Co., 135 Ohio St., 641, 22 N. E. (2d), 195, 123 A. L. R., 761; Section 11364, General Code.

It is claimed by defendant there was no evidence of negligenóe requiring the submission of this issue to the jury, but in the consideration of this claim the defendant in his brief apparently confuses this claim with the charge of contributory negligence upon the part of plaintiff. Such being the case, the two claims ■will be considered together.

At the outset, those cases dealing with nonliability for injury to participants ox .spectators in sports have no application. The plaintiff was not a participant in the game of golf being played by the defendant and his wife. The plaintiff was an employee of the golf club, placed by the club under the direction and control of the defendant.

The plaintiff had some experience as a caddy, but this experience was very limited. He was a child of 12 years, and possessed the judgment and discretion characteristic of that age. It was a question for the jury to decide whether that judgment and discretion was sufficient to hold the plaintiff responsible for taking a position which turned out to be in an area of •danger. The defendant’s wife took a position near plaintiff, in which she was even more exposed to danger than plaintiff. The jury would have, been justified in concluding that the plaintiff had the right to rely upon her more mature judgment. It may be assumed that neither the wife nor the plaintiff considered themselves in position of peril, and that, therefore, certainly, the plaintiff as a matter of law cannot be considered to be guilty of contributory negligence, which latter issue was fully presented to the jury in the charge of the court.

Now as to the negligence of the defendant: The court might _not be justified in finding that the acts of the defendant constituted negligence as a matter of law, but, certainly, his actions presented a question for the jury to determine as negligence or not. The defendant testified that he had played golf for 30 years, on an average of once a week, that he was an average golfer, shooting about “fifty-five” (nine holes), and that he and every golfer hooks or slices a ball. .The game of golf has become so familiar to the public through the use of public and private golf courses that certain characteristics of the game may be considered to be a matter of common knowledge,, and it is a matter of common knowledge that the performánce of a golf ball when struck from a tee by a player using the appropriate club is completely unpredictable. That this particular ball would take the course it did was easily within the realm of possibility, if not probability, and the defendant as an experienced golfer knew this. He knew or certainly should have-known that anyone, unless some distance behind him,-' could be struck by a driven ball, but the defendant was called for cross-examination and made a most interesting statement. He.was asked to state what he did at the seventh tee. He said: “I addressed the ball. I swung. 1 knew Teddy would be bit. I swung at the-ball. The ball went off of the tangent to the left and the next thing I knew Teddy had been hit.” (Emphasis added.)

In spite of the fact that the defendant knew Teddy would be hit, he did not delay driving, until the plaintiff had taken a position of safety. The defendant did not warn him of the knowledge he had of his danger or tell him, as he had the right to do, to go to the rear of his tee.

It is claimed that the case of Englehardt v. Philipps, 136 Ohio St., 73, 23 N. E. (2d), 829., is conclusive as to the plaintiff’s negligence.

In that case the plaintiff was the sole arbiter of his actions. He was under no obligation to do or not do any particular thing. He was not employed by anyone or subject to the direction of any person, particularly one who was familiar by reason of long experience with the hazards of the situation. He was at a swimming pool with-children of his own age. It was also held in that case that there was in evidence no standards of care applicable to the operator of the swimming pool, which the jury could apply to the operator of the particular pool. Having determined that owing to the absence- of such evidence the defendant was not negligent, it would seem the statement of the court as to contributory negligence was mere obiter.

See Bush, Admr., v. Harvey Transfer Co., 146 Ohio St., 657, 67 N. E., (2d), 851. The Englehardt case can thus be distinguished from the case at bar.

It is urged by the defendant that there was no duty on the defendant to warn the plaintiff that he, defendant, was going to strike the ball. Certainly,- this is true, but it is equally true that the jury was justified in concluding that the defendant having longer experience was required to direct his caddy to remove himself from the possible line of flight of the ball. Defendant’s failure to do so, in view of his statement that he knew Teddy would be hit is incomprehensible. Defendant cites the case of Benjamin v. Nernberg (1931), 102 Pa. Sup. Ct., 471, 157 A., 10, from which he quotes:

“Plaintiff was not in the line of defendant’s play; he was not where anyone could reasonably believe that, he was in danger of being struck by a ball * *

The exact opposite of that situation is here presented. There were just three alternatives presented' when the defendant struck the ball, either it would go straight out the fairway, or go to the right, or left., There is nothing in the evidence' to indicate that in the previous six holes the defendant had been so erratic as to warn the plaintiff of danger. On the other hand, the defendant in his past experience must have had such incidents occur as to cause him to fear that Teddy would be hit as he said.

The case of Stober v. Embry, 243 Ky., 117, 47 S. W. (2d), 921, is cited in support of the position of the defendant that there is no duty on the part of a player to' warn a caddy of danger, who is aware that the player is about to drive a ball. In the first place, the plaintiff in that case had been a caddy for- five years. The plaintiff in the instant case had caddied only about a year and a half. In the Stober case, the caddy was 16 years of age. The plaintiff here was 12. In the Stober case the caddy was stationed according to instructions in a place “supposed to be safe” some 50-yards from the tee in the rough off the fairway, which was from 75'to 100 yards wide. One of the plaintiff’s associate caddies ducked, but the plaintiff was hit. The. disparity in the facts in the Stober and the instant cases is apparent. If no other difference is apparent, the opportunity to “duck” is enough to distinguish the situation. Certainly, the plaintiff in the instant-case had no opportunity to “duck.”

Associated with the consideration of this matter is the claim of the defendant that the giving of a special charge was error. This charge is:

“If you find hy a preponderance of the evidence that the defendant, as he prepared to drive his ball, saw plaintiff in a position of peril with reference to the intended line of flight of the ball, then the defendant owed to the plaintiff the duty of warning him of his position of peril and failure to warn him would constitute negligence.”

Now that charge must be carefully read. It states if the defendant saw that the plaintiff was in a position •of peril, then it was the duty of the defendant to warn plaintiff of his peril. It is to be remembered the defendant had testified he knew that Teddy would be hit. Only the driver of a golf ball has any real idea of just what he intends, to try, to do. He knows how he is gripping his club, what stance he is taking, what his swing will be, what the past effect of the club he chooses has been, what his experience in accomplishing his intentions has been, and the element of chance in the entire operation.

The plaintiff certainly did not possess all that knowledge. He saw the defendant standing ready to drive the ball and had the right to presume he was sufficiently efficient so that the ball would not take -the acute line of flight it did. The defendant handling the club was aware of possibilities of which the plaintiff was bound to be wholly ignorant. Even more than that, the defendant not only was aware of possibilities, but he had stated on the stand he knew Teddy would be hit. Under such circumstances, his duty was imperative, and the charge was not erroneous.

If the jury found, as the evidence justified, that the defendant saw plaintiff in a position of peril, certainly, it was warranted in concluding that the defendant’s failure to warn the plaintiff of a danger clearly known to him was negligence, and the proximate cause of plaintiff’s injuries.

That charge does not state a rule of “last clear chance.” It is merely a charge upon negligence. No error appears in giving the charge, in view of the evidence in this case.

It is claimed the verdict was excessive. The evi»denee not only sustained the amount of the judgment but the amount of the verdict.

No error appears in the record or judgment, prejudicial to defendant, and such judgment may be affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Doyle, J.

license: Public Domain

text:
    Kaltenbach, Appellee, v. Cleveland, Columbus & Cincinnati Highway, Inc., et al., Appellants.
    (No. 20836
    Decided March 5, 1948.)

      Messrs. Davis, Davis & Handelman, for appellee.

      Messrs. Duncan & Thomas, for appellant Cleveland, Columbus & Cincinnati Highway, Inc.

      Mr. Robert J. Shoup and Mr. Richard G. Green, for .appellant city of Cleveland.
   Doyle, J.

Plaintiff was a passenger on a streetcar ■of The Cleveland Transit Company which proceeded easterly on Lorain avenue. Contemporaneously a tractor ánd semi-trailer of the Cleveland, Columbus & Cincinnati Highway, Inc., was being driven westerly ■on the same street. A panel truck was double-parked between the west-bound car tracks and the north curb ■of the street. When the driver of the tractor-trailer .approached the double-parked truck, he turned his vehicle to the left, crossed the west-bound car tracks, proceeded on beyond the space between the double tracks and onto the east-bound tracks. He then, after passing the double-parked vehicle, turned back toward the right side of the street; but before he could drive his equipment “clear” of the east-bound tracks, the streetcar upon which the plaintiff was riding “rubbed •and scraped” the rear end of his unit.

It is the claim of the passenger that “through the ■concurrent, joint and separate carelessness, recklessness, negligence and unlawful conduct of this defendant (The Cleveland Transit System) * * * and of the defendant The Cleveland, Columbus & Cincinnati Highway, Inc., * * * the streetcar * * * and (the) truck * * * collided with great force and violence, hurling plaintiff to the floor of the streetcar * * *, and plaintiff says that the speed with which she was precipitated to the floor of said streetcar was greatly accelerated as a result of the negligence of the defendant The Cleveland Transit System, in failing to bring the aforesaid streetcar to a stop with proper care, but instead applying the brakes so as to cause a sudden and unusual jerk.” '

Each of the defendants, the City of Cleveland (as. operator of The Cleveland Transit System), and The-Cleveland, Columbus & Cincinnati Highway, Inc., was specifically charged with various acts of negligence which it is claimed proximately resulted in plaintiff’s injuries.

A jury in the Court of Common Pleas of Cuyahoga county awarded substantial damages to the plaintiff' against both defendants, and the judgment entered thereon is the final order from which each defendant has appealed.

The second amended petition of the plaintiff specifically charged The Cleveland, Columbus & Cincinnati Highway, Inc., with negligence in the following-respects :

“1. That this defendant, through its regularly employed agent and servant, wrongfully, negligently and unlawfully failed to have its motor truck under proper and reasonable control;'

“2. Thaj; this defendant wrongfully, negligently and unlawfully failed to use ordinary care in keeping a proper lookout for the aforementioned streetcar;

“3. That this defendant wrongfully, negligently and unlawfully failed to check the speed of its motor truck, so that it might avoid colliding with said streetcar;

‘‘4. That this defendant, through its agent, drove its truck beyond the center line of said street and over on its left side of the street, where said streetcar was coming;

“5. That this defendant, through its agent, failed to operate its motor truck in such a manne’r as to bring it to a stop within the assured clear distance ahead;

“6. That this defendant, by its agent, wrongfully, negligently and unlawfully failed to yield,the right of way to the regular flow of traffic going on said Lorain street, a main public highway in the city of Cleveland. ’'

The pleading likewise charged specific acts of negligence against The Cleveland Transit System. It charged:

“1. That this defendant, by its agent and employee, was negligent in failing to keep its, streetcar, under proper control at said time;

“2. That this defendant, by its agent and employee, was negligent in failing to bring said streetcar to a stop when the operator of said streetcar had seen, or in the exercise of ordinary care should have seen, the peril they were confronted with as a result of the truck of the defendant The Cleveland, Columbus & Cincinnati Highway, Inc., turning from the center of the street into the path of said streetcar;

“3. That this defendant, by its agent and employee, failed to sound a gong or claxon, warning the truck operator of the danger of collision between the streetcar and said motor vehicle ;

“4. That this defendant, by its agent and employee, failed to keep a proper lookout for other vehicular traffic on said highway, and thereby avoiding an accident and protecting its passengers, including this plaintiff, from injury ;

“5. That this defendant, by its agent and employee, immediate at the collision, applied the brakes to its streetcar in such a manner as to cause a sudden, unnecessary and unusual jerk, accelerating the speed with which this plaintiff was precipitated to the floor of the streetcar.77

On the trial, evidence was introduced by the plaintiff tending to support these claims of negligence. Likewise, the defendants introduced evidence in support of their respective general denials.

Thus stood the litigants when the court" charged the jury. The issues of negligence were clearly defined in the pleadings, and in no instance did the plaintiff complain of nor allege a want of knowledge in respect of the negligence which was claimed gave rise to a right of action.

Consideration will be first given to the charge of the trial court, in which it is claimed the jury was • erroneously instructed on the doctrine res ipsa loquitur. The court in part charged the jury as follows: •

“* * * and then she (the plaintiff) continues and makes certain allegations or claims of negligence against each and both of these defendants.

“Those allegations of negligence as against The Cleveland, Columbus & Cincinnati Highway, Inc., and the city of Cleveland operating the streetcar system, are not important in this case. The thing that is of importance in this case is that the plaintiff must prove to you by a preponderance of the evidence that she received injuries as a result of this collision. I will call it a collision, no matter how severe that collision was, it was a collision because it is conceded and admitted in this case that there was contact between this truck and this street car, and that will be the first issue for you to determine. * * *

“That second amended petition and those two answers — one by The Cleveland, Columbus & Cincinnati Highway, Inc., and the other by the city of Cleveland— make up the issues in the lawsuit; and, as I said to you at the outset, the first issue which you will determine is whether or not the plaintiff has proved to you by a preponderance of the evidence that she was injured as a result of this collision. * * *

“Collisions such as this kind do not just happen. There is a cause for this collision, and the fact that this plaintiff was a passenger upon this streetcar and that there was a collision between this truck and this streetcar raises what in law is known as a prima facie case. That simply means that the fact that this collision occurred between this truck and this streetcar calls upon each defendant for an explanation; an explanation as to the conduct of its driver in the case of the trucking company, and an explanation on the part of the city of Cleveland for the act of its motorman. * * *

“When I say to you that the fact that a collision occurred raises a prima facie case in favor of this plaintiff as against both defendants, that does not mean that either defendant must prove to you by a preponderance of the evidence that the defendant, the trucking company’s driver, exercised ordinary care in the manner in which he controlled and operated the truck; it does not require that the'trucking company prove that to you by a preponderance of the evidence. It means that the trucking company must explain the conduct of its driver so as to meet that prima facie case, and to meet that prima facie case you must find the driver of the truck at and immediately prior to the collision was in the exercise of ordinary care in the manner and method in which he controlled the truck.

“Likewise, the defendant the city of Cleveland must meet that prima facie case, and it meets that prima facie case by your finding under a preponderance of all the evidence in the case that its motorman in charge of the operation of that streetcar at and just prior to the collision was in the exercise of the highest degree of care consistent and commensurate with the practical operation of the streetcar. # * *

“Either one or the other, or both, of these defendants, are responsible to this plaintiff in damages, provided she has shown you by a preponderance of the evidence, that is, proven to you by a preponderance of the evidence, that she received injuries directly as the. the result of this collision.”

The Supreme Court of this state has well stated that “This doctrine (res ipsa loquitur) has been the subject of much confusion and great divergence of opinion. The adjudicated cases and the text writers are not in agreement as to what the doctrine really is or how or when it should be applied.” Fink v. New York Central Rd. Co., 144 Ohio St., 1, at p. 4, 56 N. E. (2d), 456.

It may be said, however, that it is now established in this state that the doctrine does not apply to cases when the pleadings assert specific acts of negligence against a defendant or defendants and there is direct evidence (even though of such a character that different inferences could be reasonably drawn therefrom) as to the precise cause of the injury, and all of the facts and circumstances attending upon the occurrence appear.

“1. The doctrine of res ipsa loquitur is not applicable in a case where the petition and proof disclose that plaintiff had knowledge of the facts and circumstances showing the claimed negligence of defendant. ’ ’ Winslow v. Ohio Bus Line Co., 148 Ohio St., 101, 73 N. E. (2d), 504.

This rule is supported by the general theory set out in 38 American Jurisprudence, Negligence, Section 297, and its supporting authorities. It is:

“The distinctive function of res ipsa loquitur is neither to permit the characterization of the tolerance cl luiown conditions, defective instrumentalities, or improper methods of work, as negligence per se, nor to permit the inference of unknown faults of omission «or commission constituting negligence from circumstances, in addition to the bare physical cause of the accident, tending of their own force to establish negligence, but rather to permit an inference of negligence as the responsible human cause of the accident from the accident itself in connection with its bare physical canse, including in the conception of physical cause the defendant’s control of the instrumentality or place connected with the accident, without the aid of any evidence, direct or circumstantial, extrinsic or intrinsic, indicating negligence in the instant case. In other words, in the situation to which res ipsa loquitur as a distinctive rule applies, there is no evidence, circumstantial or otherwise, at least none of sufficient probative value, to show negligence, apart from the postulate, which rests on common experience and not on the specific circumstances of the instant case, that physical causes of the kind which produced the accident in question do not ordinarily exist in the absence of negligence, that is, in the absence of a breach of duty such as defendant owed to plaintiff. Rejection of the doctrine of res ipsa loquitur does not mean that negligence may not be established by circumstantial evidence as well as by direct evidence.”

The doctrine res ipsa loquitur is based, at least in part, on the theory that the defendant in charge and control of the instrumentality which causes the injury either knows the cause of the accident or has the best opportunity of finding out the cause, and that the plaintiff has no such knowledge, and is therefore compelled to rely upon the proof of the happening of the accident in order to establish negligence.

Using the above-stated rules of law as premises, it follows in logical order that the pleadings and proof, presented by the injured lady to the court and jury preclude the application of the doctrine.

The rule res ipsa loquitur in Ohio is one of evidence, which permits a jury, but, not the court in a jury trial, to draw an inference of negligence when the instrumentality causing the injury was under the exclusive management and control of the defendant, and the accident occurred under such circumstances that, in the ordinary course of events, it would not have occurred if ordinary care had been observed. Fink v. New York Central Rd. Co., supra; Glowacki, a Minor, v. North Western Ohio Ry. & Power Co., 116 Ohio St., 451, 157 N. E., 21, 53 A. L. R., 1486.

It is not a rule of substantive law, and, contrary to many jurisdictions, does not create a presumption of negligence.

It seems apparent from the part, of the charge to the jury, heretofore set out, that the trial court attempted to apply the rule here discussed. And while the charge, tafeen as a whole, might be said to be the application of a modified version of the rule, the part heretofore quoted was sufficient to mislead the jury in its application of the proper rules of law to the facts adduced in support of the pleadings, and was prejudicial to the rights of both defendants.

Contrary to the charge of th§ court, (1) the allegations of negligence were important; (2) the defendants were not called upon to explain their conduct as a. precedent requirement to a verdict in their favor; (3) the jury was not called upon to find that the respective servants of the defendants were exercising a particular degree of care in order that a prima facie case against them was successfully “met.”

The burden of proof was upon the plaintiff to prove her case by a preponderance of the evidence. It was her duty to prove that the negligence of either one or both of the defendants proximately caused her injuries. Her burden of persuasion never shifted. She at no time was entitled to the benefit of an inferénce of negligence from the mere happening of the collision. It was her burden, before she was entitled to a verdict, to prove her charges of negligence, and injuries proximately resulting therefrom.

There is evidence in this record from which a jury might reasonably conclude that the accident proximately resulted from one or several acts of negligence. The double-parked truck, the motioning forward of the driver of the tractor-trailer by the driver of the parked truck, and the response to such signal, is evidence which could be properly weighed by the jury in its appraisement of the issues of negligence and proximate cause of the respective defendants; likewise, other evidence of the conduct of the respective servants of the defendants is such that reasonable minds could reach different conclusions on the question of culpable negligence.

The facts of this case do not fall within the following rules, pronounced in Winslow v. Ohio Bus Line Co., supra:

“2. Where the facts pertaining to any issue are neither contradicted nor permissive of conflicting inferences, when they are clearly settled and the course dictated by ordinary care can be so clearly discerned as to permit but a single inference, there is nothing proper for submission to a jury. Such issue is to be decided by the trial court as a matter of law and the jury instructed accordingly.

“3. If all the material facts touching the alleged negligence admit of no rational inference but that of negligence, the question of negligence becomes a matter of law merely and the court should so charge the Jury.***”

Epitomizing our conclusions heretofore stated: The coitrt’s charge to the jury was prejudicially erroneous as against both defendants. The petition and proof disclose “that the plaintiff had knowledge of the facts and circumstances showing the claimed negligence” of the defendants. It was incumbent upon her to prove injuries which proximately resulted from the negligence of either one or both defendants before recovery. She was not entitled to an inference of negligence from the mere happening of the accident under the doctrine res ipsa loquitur.

Examination has been made of the remaining claimed errors urged in argument, and we find them to be not of a prejudicial character.

The judgment is reversed and the cause remanded.

Judgment reversed.

Hurd, P. J., and Skeel, J., concur.

Doyle, P. J., of the Ninth Appellate District, sitting by designation in place of Morgan, J.


author: Hildebrant, J.

text:
    Blanton, Admr., Appellant, v. Sisters of Charity, d. b. a. Good Samaritan Hospital, et. al., Appellees.
    (No. 6887
    Decided January 26, 1948.)

      Mr. Walter K. Sibbalcl and Mr. Irwin I. Aronoff, for appellant.

      Mr. Leo J. Brümleve, Jr., and Messrs. Galvin, Tracy, Geogjiegan, Levy <& Milliken, for appellees.
   Hildebrant, J.

The sole question for decision in this appeal on questions of law here under consideration is whether a doctor, who was the operating surgeon, and a hospital, organized noi for profit and for charitable purposes only, wherein the operation was performed, may be sued as joint tort-feasors for their separate negligence' in the post-operative care of the patient, a minor child, who was permitted to bleed to death following a tonsilectomy.

The lower court sustained a demurrer on the ground of misjoinder of parties defendant and, the plaintiff refusing to plead further, dismissed the petition.

The amended petition, here under consideration on demurrer contains the following allegations:

“Plaintiff says that the defendant, Matthew M. Applegate, in the performance of his employment as aforesaid, failed to exercise due and ordinary skill,, care and attention in the particulars following:

“(1) That said defendant, before performing said operation, failed to obtain adequate laboratory data necessary to the determination of the true physical condition of the decedent.

“(2) That said defendant, after removing the tonsils of the deceased, failed to render such continued further care and treatment as the necessity of the condition of the decedent required.

“(3) That said defendant, after he knew the decedent had suffered a hemorrhage and was bleeding profusely, failed to render unto his said patient any care -or attention until the loss of blood caused his death.

“(4) That said defendant, after he knew the decedent had suffered a hemorrhage and was bleeding profusely, for á period of about two hours, failed to attend his patient and in that interim 'requested other persons, who are unknown to plaintiff and whom the said defendant believed to be incompetent, to render ■care and attention to his patient.

“Plaintiff further says that the defendant, Sisters •of Charity, of Cincinnati, Ohio, in furnishing hospital ■services to the decedent as aforesaid, failed to exercise skill, care, diligence and attention in the particulars following:

“(1) That said defendant, after it knew, or in the •exercise of proper care should have known, said dece•dent had suffered a hemorrhage and was bleeding profusely, failed to promptly notify the defendant, Matthew M. Applegate, that such condition of his patient existed.

“(2) That said defendant, after it knew, or in the exercise of proper care should have known, said decedent had suffered a hemorrhage and was bleeding profusely, failed to furnish to said decedent proper care and attention and the use of its hospital facilities in time to prevent its said patient from bleeding to •death.

“ (3) That said defendant was negligent in employing nurses and attendants "who were unskilled, incompetent and unfit for such employment, and in retaining them in its employ throughout the time mentioned in this amended petition, and in permitting them to •attend said decedent.”

In testing the amended petition, on demurrer, the plaintiff is entitled to a liberal construction thereof and the benefit of every inference reasonably deducible therefrom.

There is considerable conflict of opinion as to what constitutes a joint tort.

We note at the outset that the allegations of the amended petition here are of neglect as distinguished from wilful tort.

Referring to negligent injuries, it is stated in 39' Ohio Jurisprudence, 236, 237, Section 27:

“ ‘The authorities are, perhaps, not agreed beyond this, that where two or more owe to another a common duty and by a common neglect of that duty such other person is injured, then there is a joint tort with joint and several liability.’ If an injury is the result of a neglect to perform a common duty resting on two or more persons, although there may be no concert of action between them, a person injured may elect to-sue all parties owing the common duty, or each separately, depending on whether he treats the liability as-joint or separate. The ‘common duty,’ referred to in this rule, must not be misunderstood. It may be merely the duty of two or more persons to exercise due-care ; if they fail in such duty and their negligent acts concur in producing the injury, there is a joint liability. ’ ’

In 30 Ohio Jurisprudence, 769, Section 46, the Ohio-rule is stated to be:

“Stated broadly, the rule in Ohio is that if an injury is the result of neglect to perform a common duty resting on two or more persons, the injured party may,, at his election, sue all of the parties owing the common duty jointly, or sue each separately, although there' may have been no concert of action between them.”

Under the facts here alleged the defendants were collaborating in closest concert in a common enterprise so that from the relation each bore to the patient a duty arose running djrectly to each participant, and for the violation or neglect of which, resulting in injury, a primary liability would flow direct to each,. which neither could escape by showing the other to be also guilty of a wrong. As pertinent here, we cite the language in Transfer Co. v. Kelly, 36 Ohio St., 86, at page 90, 38 Am. Rep., 558:

“* * * the wrongful acts of the defendants below, the railroad company and the transfer company, were not only concurrent in point of time and place, but in such manner that the wrongful act of each was a direct and proximate course of the injury complained of by the plaintiff; and this being so, it matters not whether the act of each, without the concurrence of the other, would have produced the injury, or, that the negligence ■of neither would have caused it without such concurrence ; so that upon general principles and reason both ■or either ought to make compensation therefor. The general rule undoubtedly is, that where damage is caused by the joint or concurrent wrongful acts of two or more persons, they may be prosecuted therefor jointly or severally.”

Also, Dash v. Fairbanks, Morse & Co., 49 Ohio App., 57, at page 64, 195 N. E., 413 (quoting from 62 Corpus Juris, 1133, Section 45):

“ ‘'While there is language in some decisions to the effect .that concert of action is necessary, at least in the case of willful torts, as a general rule where the separate and independent acts of several tort-feasors, especially where such acts are negligent, combine to produce directly a single injury, each is responsible for the entire result, even though his act or neglect alone might not have caused it. It has been said that to make tort-feasors liable jointly there must be some sort of community in the wrong doing, and the injury must be in some way due to their joint work, but it is not necessary that they be acting together or in concert if their concurring negligence occasions the injury.’ ”

The allegations in the amended petition bring it within the holding in the first paragraph of the syllabus of Lakeside Hospital v. Kovar, Admr., 131 Ohio St., 333, 2 N. E. (2d), 857, so that the following statement in Maloney v. Callahan, 127 Ohio St., 387, at pages 391 and 392, 188 N. E., 656, is directly applicable to the amended petition here:

“The petitions allege acts of concurrent negligence-of a similar character on the part of both defendants,, jointly contributing to and proximately causing the collision and resulting injuries, which allegations on their'face make such defendants properly joinable in the same action.”

Without the support of the citations above set forth,, Wery v. Seff, 136 Ohio St., 307, 25 N. E. (2d), 692, in the fifth paragraph of the syllabus, would seem decisive of the case:

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

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


author: Matthews', P. J.

text:
    Brod, Appellee, v. The Cincinnati Time Recorder Co., Appellant.
    (No. 6847
    Decided November 3, 1947.)

      Mr. Alton E. Purcell, for appellee.

      Mr. Milton B. Schott, for appellant.
   Matthews', P. J.

This is an appeal from a judgment entered on the pleadings and the facts developed in a colloquy between the court and counsel at the opening of the trial.

In the amended petition, the plaintiff'alleged that he purchased certain choses in action from the defendant and that the defendant executed and delivered to him a written assignment therefor in the following language:

“For value received, The Cincinnati Time Recorder Company, an Ohio corporation, the assignor, does, without recourse on it, hereby sell, assign, transfer and set over unto Joseph T. Brod, doing business, as National Merchandise Company of Cincinnati, Ohio, the assignee, all of its right, title and interest, in and to the book accounts and debts listed and described in schedule hereto annexed, marked exhibit ‘A’ and made a part hereof;

“It being understood and agreed that this assignment is made without any representations or warranties as to the legality or correctness of said accounts and such assignment is subject to any and all counterclaims, setoffs and credits to which the debtors listed on said schedule may be entitled. ’ ’

The plaintiff alleged that, of the choses in action so assigned, there were certain ones totaling $1,548.50, which had been paid to an employee of defendant who had embezzled the amount collected, but that at the time of the assignment the defendant had no knowledge of the collection or embezzlement.

The plaintiff also alleged that after he discovered evidence indicating the collection and conversion of those choses in action the defendant agreed that if plaintiff would obtain proof thereof, defendant would present the claim therefor to the bonding company that guaranteed the fidelity of the employee, and in the event of collection defendant would pay to plaintiff any amount collected thereon from such bonding company.

The plaintiff also alleged that, relying on the defendant’s promise, he did collect proof, and, as a result, the defendant collected $1,548.50 from the bonding company, but refused to pay to the plaintiff the amount so collected. The plaintiff prayed judgment for that amount.

By answer and stipulation, the defendant admitted the execution and delivery of the assignment, the fact that its employee collected the money due on certain choses in action, as alleged by the plaintiff, that the fidelity of the employee was guaranteed by a bonding company, and that defendant presented its claim to the bonding company, and received from it the sum ■of $709.80.

The defendant specifically denied that it promised the plaintiff that if he would furnish' proof of the collection and conversion, defendant would proceed against the bonding company, and in the event, of collection it would- pay the plaintiff the amount so collected.

On these .facts appearing, the court entered judgment for the plaintiff for $709.80. This appeal is from that judgment.

On the argument of this case, plaintiff’s counsel ■quite frankly conceded that had the collecting agent accounted to his employer for the money collected, the plaintiff, under the terms of the. assignment, would have had no cause of action, notwithstanding his discovery after the assignment that the amount due on the choses in action was less than the parties supposed at the-time of the assignment. In view of the provision that the assignment was made “without any representations o'r warranties as to the legality or correctness of said account” and “subject to any and all ■counterclaims, setoffs and credits,” it would be difficult to withhold that concession. He contends, however, that the fact that the embezzlement was discovered after the assignment and the amount collected from the indemnifying bonding company presents a different juristic situation. In support of that contention, chief reliance is placed upon the case of Allen v. Hamman Lumber Co., 44 Ariz., 145, 34 P. (2d), 397, and to a lesser degree upon Heisen v. Smith, 138 Cal., 216, 71 P., 180, and on a long line of cases holding that a transfer of tangible personal property carries with it the right of the vendor against a tort-feasor who had converted the property to his own use.

Allen v. Hamman Lumber Co. and Heisen v. Smith, supra, applied to somewhat unusual circumstances the familiar rule that the assignment of a chose in action carries with it all liens and every remedy or security that is incidental to the subject matter of the assignment. In the first case, the insurance company elected to pay the damage to the mortgaged premises, notwithstanding it could have defended on the ground that it had not consented to the assignment of the mortgage thereon. In the policy there was an express recital that it was for the benefit of the mortgagee. AH the court held was that as the insurance company chose to consider itself liable and pay, it was obliged to pay to the holder of the mortgage, and that the assignor of the mortgage having received th§ money from the insurance company was obliged to account therefor to his assignee.

In the second case, the ward obtained a judgment against her .guardian for failure to account as guardian. The court held that she could enforce the judgment against the sureties upon the guardian’s bond, and that upon assigning the judgment, the assignee of the judgment could also.

The cases holding that the vendee of tangible personal property succeeds to the rights of the vendor against a tort-feasor who has converted the property are inapplicable. Conversion of an intangible would seem impossible in the nature of things. So _it is generally held that an action for conversion of choses in action cannot be maintained. 53 American Jurisprudence, 809, Section 5. In any event, there was no conversion of this chose in action.

Now what was the legal effect of the embezzlement of this money by the defendant’s employee?

It is conceded that the embezzler was the defendant’s duly authorized agent to collect. Payment to him was payment to the defendant. To the extent of the' payment, the debt was extinguished and the debtor discharged. A new relation was established. The collecting agent became bound to the defendant to account to it for the amount collected, and the surety upon his bond was bound to see that he faithfully discharged that obligation. His failure, for any reason, made his surety liable, but his surety was never bound to see that the defendant’s debtors paid their debts. The collecting agent’s surety was never collateral to their obligations to the defendant.

As we view it, the amounts paid to the defendant’s agent were credits extinguishing in part or whole the debts due defendant. The question confronting us is: What effect in law has that fact upon the relation of assignor and assignee wljen at the time of the assignment the assignor has no knowledge that the payments have been made?

There is no doubt that in the absence of an express agreement there is an implied warranty that the assigned chose in action is a valid obligation and that the amount of money purporting to be due on it is owing and unpaid at the time of the assignment. 4 American» Jurisprudence, 308 et seq.

Does the language of this assignment exclude the warranty that would otherwise be implied? We think it does. It would seem that the language used was chosen for the very purpose of warning the assignee that every risk was to be assumed by him. He was told that the assignor made no representation or warranties as to the legality or correctness of the account, and then he was specifically told that the assignment was subject to any and all counterclaims, setoffs and credits to which the debtors might be entitled.

To hold that the defendant was bound to pay to the plaintiff the amount which its agent had collected from the debtors would be creating a liability in the presence of an express agreement to the contrary. In 4 American Jurisprudence, 309, it is said: “There may, of course, be an express agreement that the assignor is exempt from liability for any reason specified therein, and that the purchaser takes at his risk absolutely.”

It seems clear that, had the credit manager, aftér the assignment to the plaintiff, disclosed to the de-' fendant, bis employer, that he had made collections and had accounted therefor, the plaintiff would have had no cause of action against the defendant on this assignment, or, if the employee had disclosed his collection without accounting to the defendant, this assignment would not have had the effect of transferring the cause of action against the employee from the defendant to the plaintiff, so as to enable the plaintiff to maintain an action against the employee. It is not perceived how the fortuitous circumstance that the defendant had taken the precaution to require a surety for the employee’s fidelity would give to the plaintiff a cause of action against the surety when he had none against the surety’s principal.

Reduced to its final analysis, is this not a case in which the assignor had made a collection of which it was unaware and made an assignment in good faith while in ignorance of the collection, but took the precaution of guarding itself against liability by express provision in the assignment?. We think so.

For these reasons, we are of the opinion that the assignment gave the plaintiff no cause of action against the defendant for the amount collected from the bonding company. If we are right in this conclusion, the court erred in entering judgment for the plaintiff.

It is alleged in the amended petition that the defendant, subsequent to the assignment, promised the plaintiff that if he would furnish proof of the default of its employee, it would present the claim to the bonding company and would pay to the plaintiff whatever was received by it, and that relying upon that promise or offer, he did furnish proof which enabled the defendant to collect from the bonding company the sum of $1,548.50. By answer, the defendant denied these allegations. Thus, an issue of fact was raised which has not been decided. The judgment to be entered depends upon the decision of that issue.

For these reasons, 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.


author: By the Court.

text:
    Holmes, Appellee, v. Holmes, Appellant.
    (No. 6910
    Decided February 9, 1948.)

      Mr. Arthur C. Friclce and Miss Ruth Nieclerlehner, for appellee.

      Messrs. Rosen & Rosen, for appellant.
   By the Court.

Tlie trial court granted the plaintiff a divorce from the defendant on the ground of wilful absence for three years.

On this appeal, many reasons are assigned for reversing that judgment. .

(1) It is said that the plaintiff never provided a home and that, therefore, the defendant’s absence was not wilful.

It is true that during the 16 years this marriage subsisted, no permanent home was established. This resulted from the fact that their occupations were in different localities practically all the time. The failure to establish a home was attributable as much to the defendant as to the plaintiff.

We do not understand that wilful absence can exist only when a permanent home is established.

(2) It is said that divorce proceedings were pending during much of the time covered by the period of absence and that this time cannot be included in computing the time no matter how wilful and unjustified the absence may have been and no matter how unrelated the absence was to the grounds upon which the pending divorce case was predicated.

We do not find any such inflexible rule. Whether the time covered by the pendency of the divorce case may be included in calculating the duration of the wilful absence depends upon circumstances. 17 American Jurisprudence, 208, Section 109.

(3) It is said that the plaintiff has been guilty of adultery and that that is a bar to a divorce. The evidence shows that the plaintiff went through the form of 'a marriage with another woman with whom he lived and to whom a child was born.

That fact does not necessarily constitute adultery. 17 American Jurisprudence, 170, Section 37. There is evidence in this case that a divorce had been granted when plaintiff entered into the marital relation with this other woman, that this divorce was later set aside, and that as soon as he was notified of it, he discontinued his relation with the other woman.

(4) If the plaintiff and his witnesses were believed, the defendant wilfully and voluntarily left him in 1940, declaring that the separation was final and that she never returned or offered to return. The trial court believed this testimony. The defendant was, therefore, found to have been wilfully absent for more than three years, and the court awarded a divorce on that ground'.

The trial court found that the plaintiff’s conduct was not a bar to the granting of a divorce, and that nothing was shown to reduce the period of wilful absence to less than three years.

We find substantial evidence in the record to support the finding of the court.

The judgment is affirmed.

Judgment affirmed.

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


author: Ross, J. Matthews, P. J.

text:
    Peck, Appellant, v. Williams, Appellee.
    (No. 6908
    Decided March 1, 1948.)

      Mr. Leonard H. Freiberg, for appellant.

      Mr. Raymond J. Dorger and Mr. Hoivard Williams, for appellee.
   Ross, J.

This is an appeal on questions of law and fact.

In her amended petition the plaintiff states, in her first cause of action, that she incorporates in such amended petition an exhibit attached to her original petition, that it is a true copy of an instrument in existence, signed by plaintiff and defendant, that such instrument is void for uncertainty, that it does not constitute a contract, that defendant claims it is a binding contract, vthat it constitutes a cloud on the title to, plaintiff’s real estate described and referred to in the instrument, and 1 ‘ it affects her financial rights and obligations.”

In her second cause of action, plaintiff incorporates by reference the allegations of her first cause of action and further states that she is 65 years of age, a widow for the past ten years, and is unfamiliar with “complicated legal matters.” The plaintiff then proceeds to relate facts tending to show that she was over-persuaded by defendant, her husband, and plaintiff’s daughter into signing such contract, that she was unfamiliar with its terms, because' she did not have reading glasses with her and plaintiff’s daughter and defendant talked in loud voices during a purported reading of the instrument by defendant’s husband. Plaintiff alleges further that if she is bound by the terms of such instrument, she will be required to spend “unknown but large sums of money under the exclusive agency and control of the defendant who would employ an architect and contractors to erect a building for which plaintiff would have to pay, the only discretion left to plaintiff being approval of plans*” that “after such building would be built plaintiff under the alleged contract would be bound to give defendant a ten-year lease in a store and on a five room apartment in the building for a rental of $1,200 a year, which under present building costs and in that business neighborhood no matter how cheaply the building was put up would be grossly inadequate,” that the interests of plaintiff and.defendant would be in conflict in such undertaking, that in addition to such provisions plaintiff is required to lease the premises now occupied by defendant for an unknown and indefinite period at the existing rental of $50 per month and plaintiff is thus prevented from selling such premises or occupying same and plaintiff cannot improve such business site, and that there is no consideration to support such alleged contract.

The plaintiff prays for a declaratory judgment holding the alleged contract void and “in the alternative” that the court find plaintiff signed the instrument under undue influence, duress and fraud, and that the contract should be surrendered and cancelled, and for all other and proper relief.

Referring to the exhibit attached to the original petition and incorporated by reference in the amended petition, after describing certain real estate, it is provided:

“Whereas the said Antonia K. Peck is desirous of having, a building containing two stores and apartments constructed on the above described premises, and

“Whereas said Antonia K. Peck is a resident of Springfield, Ohio and desires to have a resident of Cincinnati, Ohio to act as her agent during the progress of the construction of said building on the said above described premises, and

“Whereas the said Antonia K. Peck is desirous of leasing the store and the five room apartment immediately above the store located at the north end of said proposed building being the store and apartment adjoining the Roselawn Theatre.

“Now therefore in consideration of $1.00 and other good and valuable consideration, receipt of which is hereby acknowledged, the said Antonia K. Peck agrees with Evalyn Williams that the said Evalyn Williams shall be and she is hereby appointed the agent of Antonia K. Peck to represent the said Antonia K. Peck in the handling of all matters pertaining to the erection of said building according to the plans approved and accepted by the said Antonia K. Peck.

“It is further agreed between the said Antonia K. Peck and Evalyn Williams that the said Antonia K. Peck in consideration of the services rendered to the said Antonia K. Peck and other good and valuable consideration that the said Antonia K. Peck at -the time of the completion and acceptance of said building to be erected on the premises herein described by the said Antonia K. Peck, she shall execute a lease to the said Evalyn Williams for the storeroom and live room apartment immediately above said storeroom located in the north end of the said building, adjoining the Roselawn Theatre for a period of ten (10) years at a rental of $1,200 per year joayable in monthly installments of $100 per month.

“It is further agreed between the said Antonia K. Peck, who is the owner of the premises at 1508 Mira-mar Court now occupied by the said Evalyn Williams, and the said Evalyn Williams that the said Evalyn Williams shall have the right-to occupy the said Mira-mar Court property on the same terms as at the present time until the lease herein referred to is executed and the said Evalyn Williams has possession of the five room apartment located in the building to be constructed on the premises herein described.

“That said Evalyn Williams accepts the appointment as agent of said Antonia K. Peck and agrees to handle the details and look after the interest of Antonia K. Peck during the erection and construction of the building on the premises herein above set out and as hereinbefore stated, without any compensation being paid her for her services.

“Evalyn Williams agrees to accept the lease as above herein referred to and to vacate the premises known as 1508 Miramar Court, Hamilton county, Ohio when the building is completed and fully erected on the premises hereinabove described and the five room apartment located above the store on the north side of said building is in a tenantable condition.

“This agreement is binding upon and inures to the benefit of the heirs, executors, administrators and assigns of the parties hereto.

“In witness, whereof the parties hereto have hereunto set their hands to duplicates hereof on the day and year last above written.

“Witness: , Mrs. Antonia Peck

“Antonia Peck

“Howard Williams Mrs. Evalyn Williams.”

That instrument, it appears from the evidence, was drawn by the defendant’s husband, who is an attorney at law. The plaintiff was not represented by counsel, nor did she receive the advice of any attorney until long after the execution of the instrument.

Without in detail setting out the various circumstances, it clearly appears that at the time this instrument was executed the plaintiff and defendant were friends, that plaintiff was induced to and did place the greatest trust and confidence in the defendant and her husband, and that he had previously represented the plaintiff in certain legal matters. . It further appears from the evidefice that the daughter of plaintiff, who was present at the execution of the instrument and signed it as a witness, was even more friendly with the defendant and that after friendly relations-between plaintiff and defendant ended, this daughter continued such friendly relations and left her mother,, going to live with a relative -by marriage of defendant. It further appears that this same daughter exerted herself to the utmost in causing her mother to-enter into the agreement. The evidence clearly develops a situátion in which the plaintiff was caused to and was justified in relying upon the utmost good faith of defendant.

The evidence also clearly develops that the value of the premises which plaintiff agreed to lease the defendant in the building to be constructed and paid for by plaintiff would be far greater than the value upon which a $1,200 annual rental would be predicated.

Turning to the contract, it is apparent that in certain respects thb charge of indefiniteness and uncertainty is fully justified.

The plaintiff is obligated to erect a building regardless of any eventuality. She is so obligated, regardless, of cost, building regulations, or zoning requirements. She is bound to rent a portion of the premises to the defendant at a fixed sum, even though such sum would be wholly inadequate to meet the proportionate cost of upkeep and expense.

It is true the plaintiff is given the right to approve-the plans and specifications when and if they are submitted. There is nothing; in the contract or the evidence to indicate that the defendant is obligated to do anything to expedite the proposed undertaking, and the inference is that she would be perfectly content to contemplate indefinite delay in such accomplishment in view of the fact she is guaranteed by the terms of the contract occupancy of her present residence rented from plaintiff at $50 per month. The plaintiff’s only escape from a life time obligation, yes, even an obligation to the “heirs, executors, administrators, and assigns” of the defendant is to erect a building in which she gives the defendant a store and apartment at the rate of $1,200 per year.

There is nothing in the evidence to indicate that the defendant had any greater ability to supervise the erection of a store and apartment building than any other individual. It appears from the evidence that an architect was to be employed. Just what defendant, as plaintiff’s agent, was supposed to do is left to conjecture. The language of the contract is she is hereby appointed the agent to represent the plaintiff “in the handling of all matters pertaining to the erection of said building, according to the plans approved and accepted” by the plaintiff. The defendant could employ an architect without any limit as to his compensation and the plans presented by -him could involve almost unlimited expenditure by the plaintiff. There is no limit as to how many such pláns could be presented. The employment of the architect could be ■extended indefinitely. It is also apparent that under the wide scope of the defendant’s employment as •agent of plaintiff she'could always be sure that plans and specifications would only be presented plaintiff insuring quarters in the proposed store and apartment building more than adequate considering defendant’s obligation to pay $1,200 yearly for same.

A reading of this agreement, considering the circumstances of the parties, suggests that the only certain eventuality is that the defendant may remain in her present occupancy of premises belonging to plaintiff at least for the rest of her life, and that the plaintiff is prohibited from any use of either property, the store and apartment site and the residence occupied by defendant as long as the contract which defendant has caused to be recorded is in existence.

It is significant in the instant case that although the husband of defendant occupied the premises as tenant of plaintiff, and was an attorney, having served plaintiff in his professional capacity, and was more capable of rendering the services in connection with the construction of the proposed building than the defendant, she rather than he is selected as agent and she rather than he is assured occupancy theraof for an indefinite period.

In 3 Pomeroy’s Equity Jurisprudence (5 Ed.), 776, 777, Section 951, it is stated:

“Where there is no coercion amounting to duress, but a transaction is the result of a moral, social, or domestic force exerted upon a, party, controlling the free action of his will and preventing any true consent, equity may relieve against the transaction, on the ground of undue influence, even though there may he no invalidity at law. [As stated by the American Law Institute, ‘Where one party is under the domination of another, or bj^ virtue of the relation between them is justified in assuming that the other party will not act in a manner inconsistent with his welfare, a transaction induced by unfair persuasion of the latter, is induced by undue influence and is voidable.’ It is immaterial, on the question whether a court of equity will set aside a gift, grant or bequest for undue influence in its procurement, whether the influence was exercised by the beneficiary or another.] ”

Certainly, the plaintiff had the right to assume that the defendant would not act in a manner inconsistent with the plaintiff’s welfare. The evidence contains not the slightest suggestion that the plaintiff was advised that she was- putting a limitation on her right of disposition of her property, that the instrument she signed would be recorded and thus become a cloud upon the title of each, piece of real estate, and that the defendant and her husband could remain in her property for an indefinite period, even for life, if the plaintiff did not erect the store and apartment building. Can it be conceived if the plaintiff had been so advised, by these friends and confidants, in whom she had a full right to trust for advice and counsel, of the nature of the act they requested, yes, urged her to perform in executing this contract, that even she, inexperienced as she was in business matters, would have jeopardized her control over her real estate, by an indeterminate, indefinite, ambiguous obligation to this defendant?

The evidence shows that the plaintiff having had previous professional dealings with the husband of defendant, came to defendant for advice and counsel. The evidence ^hows that the defendant and her husband went to the home of plaintiff and, ably assisted by plaintiff’s daughter, urged her to sign the instrument, assuring her of their continued interest in her welfare.

It is true that equity will not extend relief by cancellation of an instrument merely because the action of the signer is improvident, or that the consideration is inadequate, or that the party is induced by persuasion to sign, but, certainly, where it appears that a confidant, in whom the signer has a right to rely for guidance and advice, and in whom she has safely placed her trust in the past, urges her to sign an instrument which entails radically unequal obligation against such signer’s interest, and is indefinite and ambiguous in specifying the obligation of the party securing such signature, and the signer is not acquainted with the legal effect of her acts, while the other contractor is guided by the advice of her husband, an attorney at law, a just cause is presented for equitable intervention.

. .Counsel for defendant in their brief quote a letter-' written by plaintiff to defendant. This letter is as follows:

“Mrs. Williams:

“I will drop you a few lines asking you if you could find out weather you could move in the upstairs if I build they claim here you couldn’t because you are no-G. I. there was a family here that build a house for himself but they told him he has to sell his house to a G. 1.1 wouldn’t like to have enny trouble like that you see Mrs. Williams I cant haul my girls enny more to work since I was sick my left hand 3 fingers, fealsstiff and dead its hard on me and I thought if I put up a smaller building so you could live upstairs it would be fine and save me lots of worry you find out for me please your water bill I didnt get for this month they send me a notice and I didnt pay it I ans them back and tell them I couldn’t pay no bills if I didnt get them Mrs. Williams how about you take it over and take it off the rent then send me a receit for it. well I will close for now let me hear from you soon.

“From your Friend Mrs. Antonia Peck R. D. 5 So Burnett Rd, Springfield, Ohio.”

' This letter, with others of plaintiff, in evidence, .when compared with the contract drawn by defendant’s husband indicates clearly the disparity in advantage between the parties. It is apparent from the-evidence that the plaintiff was inexperienced and greatly limited in any ability to cope with the problems presented.

Again, in the brief of counsel for defendant, it is-stated:

“It is not the intention of the parties hereto to authorize Mrs. Williams to build a building. The contract was to provide Mrs. Peck, a resident of Springfield, Ohio, with a personal representative in Cincinnati, Ohio, who would and could consult with a Cincinnati architect for the purpose of having plans prepared for a building suitable for Mrs. Peck’s lot and for the purpose of submitting the plans to Mrs. Peck for her approval or rejection.”

If that is true, then the consideration moving to plaintiff was more inadequate, indefinite, and ambiguous than would be inferred from the use of the words in the contract appointing defendant plaintiff’s agent to represent plaintiff “in the handling of all matters pertaining to the erection of said building.”

That merely reinforces the conclusion that such language is indefinite and ambiguous in defining the obligation of the defendant. .

No issue can be taken with authorities cited by defendant, for they cover the power of courts of equity •in specific situations. Each case involves different facts. It is apparent that in certain cases equity will extend relief. This is such a case.

The claim of ratification by acceptance of rent from the defendant cannot be urged successfully against the right of plaintiff to relief.

The plaintiff did not exercise her prerogative of cancelling the contract by her own acts. She is seeking that relief now from this court. Acceptance of the rent is not inconsistent with the position she now takes before this court. As long as the defendant remains in plaintiff’s property she is entitled to rent therefrom.

It is the conclusion of this court that the instrument involved should be cancelled and surrendered to plaintiff and a decree quieting the title of plaintiff to the premises described in the petition should be entered and a decree so providing may be presented accordingly.

Decree accordingly.

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

Matthews, P. J.

In my opinion, the instrument which the plaintiff seeks to have cancelled and the recording of which clouds her title is too indefinite to constitute a binding contract and relief should be .granted the plaintiff on that ground.


text:
    Jones, Appellant, v. The Columbus & Southern Ohio Electric Co., Appellee.
    (No. 3985
    Decided October 8, 1947.)

      Mr. L. P. Henderson, for appellant.

      Messrs. Burr, Porter, Stanley & Treffinger, Mr. Ralph E. Weaver and Mr. Bruce G. Lynn, for appellee.
   By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin county, in an action in which' the plaintiff claimed damages for personal injuries «suffered by her while a passenger on a gasoline bus operated by the defendant company. The plaintiff claims the trial court committed prejudicial error in directing a verdict for the defendant at the close of all the evidence.

Briefly stated, the facts are as follows:

On January 29, 1944, at about 9:30 p. m., the gasoline bus was traveling in a southerly direction on the right side of Front street in th§ city of Columbus, at a speed of from 25 to 35 miles per hour. At such time an automobile was being driven in a northerly ..direction on such street, and a short distance south of the gasoline bus the automobile sideswiped another automobile headed south which had stopped in the center of the street and was waiting for traffic to-clear to make a left turn. The automobile being driven in a northerly direction suddenly swerved from-its right side of the street and crossed the center line-thereof, the right side of the automobile coming m contact with the right side of the standing automobile. The moving automobile then traveled a distance, variously estimated by the witnesses at from 30 to 200 feet on the west and wrong side of the street, colliding with the right front of defendant’s bus and then crashed into a line of automobiles parked on the west side of Front street. The automobile came to a stop at the side of the bus. The bus was approximately 25 feet in length and moved a distance less than its length after the collision before coming to a'stop. The operator of the bus, upon seeing the automobile being driven on the wrong side of the street, directly in the path of the bus, in an attempt to avoid a head-on collision, swerved the bus slightly to the left toward the center of the street and applied the brakes. In the sudden stop, the plaintiff, who was at that time a passenger on. the bus and seated immediately back of the operator, was thrown- against the interior part of the bus and injured.

The situation in this case is not dissimilar from that presented in the case of Cleveland Ry. Co. v. Orwig, 124 Ohio St., 134, 177 N. E., 201, and requires the application of the same principle of law. In the Orwig case, a 'bus was being operated in a westerly direction on a public highway at a speed of from 30 to 35 miles per hour. An automobile traveling in the opposite direction at a speed of about 25 miles per hour approached the bus to within 150 feet when the steering wheel of the automobile suddenly locked, causing the automobile to swerve from the right to the left side of the highway directly in the path of the bus. The driver of the bus swerved his vehicle to the left in an attempt to avoid a head-on collision, but a collision occurred and a passenger on the bus was injured. The court held that on the evidence a verdict should have been directed for the defendant, and, on page. 137, stated:

“It is apparent from the undisputed facts that the collision would not have occurred but for the locking of the steering wheel of the car, causing its driver to so lose control over it that it careened to the wrong side of the highway. This and not the conduct of the bus driver was the proximate cause of the accident. It is evident from the record that in the sudden emergency which confronted him the bus.driver did what he could to avoid the collision, as he was in duty bound to do. In the situation here presented, the cases are determined upon the principle announced in Cleveland City Ry. Co. v. Osborn, 66 Ohio St., 45, 63 N. E., 604.”

In the case at bar, the plaintiff contends that there was ample time for the operator of the bus to reduce speed and stop; that a sudden application of the brakes was not necessary; and that the emergency had passed before the operator of the bus applied the brakes. The physical facts do not support that contention. Taking a view of the evidence most favorable to the plaintiff, which the court is required to do, we find that the front end of the automobile was near the rear of the bus when both vehicles came to a stop. There is no evidence that the speed of the automobile was reduced before it crashed into. the parked automobile. The combined distance traveled by the bus and the automobile after the collision was 25 feet— the length of the bus. The automobile sideswiped the right front of the bus and traveled some distance before crashing into the parked automobiles. It is evident that the bus traveled but a few feet after the collision before coming to a stop, indicating that the brakes were applied before or about the time of the collision with the automobile. The bus and the automobile would have been found in different relative positions, if the bus had traveled a considerable distance after the collision and after the emergency had passed before the brakes were applied, as contended by the plaintiff.

Although the witnesses in the case at bar differed with reference to time and distance, nevertheless, in construing the evidence most favorable to the plaintiff, could reasonable minds. reasonably arrive at different conclusions? We do not think so. After construing the evidence most favorable to the plaintiff,, we fail to see what the operator of the bus did which he should not have done, or what he failed to do which he should have done.

The rule of law applicable to. such a situation is stated in Cleveland City Ry. Co. v. Osborn, supra, as follows:

“Where a passenger on a street railway car was thrown from the car and injured by the sudden stopping of the car in the effort to avoid a collision, and by the shock of a collision which was not brought about by the negligence of the defendant, it is damnum absque injuria.” t

In Canton Motor Coach, Inc., v. Hall, 46 Ohio App., 516, 189 N. E., 505, the court, on page 523, said:

“The mere proof of the happening of an injury to a passenger, without showing an actual definite breach of duty by the carrier, is insufficient in law to constitute a ground of actionable negligence, and the evidence in the record before us in the instant case clearly shows that the cause of the collision was not the negligence of the bus driver, but that of another person who created an emergency in which the bus driver acted in the only way possible for an ordinarily prudent person to act.

“We are of the opinion that the record before us fails to sustain the verdict on the issue of negligence, or on the issue of proximate cause. It therefore follows, and is the opinion of this court, that the court below erred in overruling the motions of the defendant for a directed verdict made at the close of the plaintiff’s case in chief and at the close of all the testimony in the case.”

In the case at bar, it is our opinion that the record clearly shows that the cause of the collision was not the negligence of the bus driver but that of the driver of the automobile which collided with the bus and which created an emergency in which the bus driver acted as an ordinarily prudent person would act under the same circumstances.

Other errors are assigned which are covered by a determination of the question relative to the action of the court in directing the verdict.

As we find no prejudicial error in the record, the judgment is affirmed.

Judgment a/firmed.

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


author: Matthews, P. J.

text:
    Kenny, Appellant, v. Metropolitan Life Ins. Co., Appellee.
    (No. 6933
    Decided March 15, 1948.)

      Mr. G. R. Beirne, for appellant.

      Mr. Harry E. Marble, for appellee.
   Matthews, P. J.

This action is on three insurance policies, to recover the additional insurance provided by the provision captioned “Benefit In Event Of Death By Accidental Means As Defined Herein,” to wit:

“Upon receipt of dne proof that the death of the insured resulted, independently of all other causes, from bodily injuries caused solely by external, violent, and accidental means, the company will pay, as an additional death benefit, an amount equal to the amount payable under the schedule, unless such injuries were sustained while employed in a mine occupation on mine (open pit or underground) premises, in which case only one half of such'additional amount shall be payable. The additional benefit shall be payable only if (a) death occurs within 90 days from the date of such injuries and while premiums are not in default beyond the grace period, and (b) such injuries were sustained by the insured after attaining age 15 and before attaining age 70. The additional benefit shall not be payable if the insured’s death (a) is caused or contributed to by disease or infirmity, or (b) is the result of self-destruction, whether sane or insane, or (c) is the result of the inhaling of any gas or fumes, whether voluntarily or otherwise, or (d) is the result of travel or. flight in any species of aircraft, except as a fare-paying passenger, or (e) is the result of participation in an assault or felony, or (f) occurs while in military or naval service in time of war. The additional benefit shall be reduced by any amount payable as benefit in event of loss of eyesight or limbs as a result of the same injuries. This benefit is granted without specific extra premium, the cost being included in the premium for this policy.”

The plaintiff is the widow of the insured and the named beneficiary in the policies.

A jury returned a verdict for the plaintiff for the full amount of the additional insurance provided in the policies. After the rendition of the verdict and before the entering of th.e judgment thereon, the defendant filed a motion for judgment notwithstanding the verdiet. This motion was sustained and judgment was-entered for'defendant. This is an appeal'from that, judgment.

During the trial, the court permitted two physicians' to testify. One of these physicians testified on behalf of the plaintiff and one on behalf of the defendant as-to information obtained in the confidential relation of physician for the insured. The defendant objected to-the testimony offered by the plaintiff on the ground that its admission violated Section 11494, General Code, and the plaintiff objected, for the same reason,, to the testimony offered by the defendant.

In the entry sustaining the defendant’s motion for judgment, the court recited that “the court erred in admitting medical evidence for the reason that such evidence was privileged by reason of the provisions of Section 11494 of the Ohio General Code; and that in the absence of such evidence, there was not sufficient evidence offered by the plaintiff to support the essential elements of her claim, and that the defendant is, therefore, entitled to a judgment, and- the motion is-well taken and should be sustained.”

At the threshold, two questions are presented by this record. The first is whether the admission of the-testimony of the physicians violated Section 11494, General Code, under the circumstances of this case,, and the second is whether, in any event, the court was justified in entering judgment for the defendant upon the record here presented. A general outline of the record may be helpful in thé solution of these problems.

There is abundant competent evidence in the record,, without recourse to any confidential communication, that the insured was a healthy man about 46 years of' age and had been performing manual labor for more than a quarter of a century, and was so engaged when, on August 27, 1945, a hoist fell upon the fore part of his foot, breaking the bones of all the toes and crushing the bones and flesh of the big toe. He was taken at once to a hospital, where his injuries were treated, and in a day or so his foot was placed in a cast. Four days thereafter he was taken home, where he was confined, and in bed moist of the time for five or six weeks, during which he did not leave the house except to go to his physician for treatment. He walked on crutches. On October 25th, he visited his physician, who, upon examination, discovered that dry gangrene had set in, and that some part of the foot including the big toe should be amputated to prevent the spreading of the poison. The insured was taken home, and on the morning of October 27, 1945, he died without forewarning to anyone. The plaintiff discovered his critical condition just- a few minutes before his death. She had the family physician called and he responded at once, but the record shows contradictory statements as to whether the insured was alive or dead when he arrived.

The plaintiff’s theory was and is that some part of the gangrenous membranes became separated, got into the blood stream, was carried along until it reached a blood vessel in the lungs, heart, or brain, which was too small to allow it to pas's, thereby producing a clogging or blocking of the blood stream in a vital organ and causing death. There is plenty of competent scientific or expert testimony in the record to support this theory.

We, therefore, conclude that the court erred in sustaining the defendant’s motion for judgment, even assuming that the court was justified in disregarding, on this motion, the testimony of the physicians, which was before the jury and upon which it may have relied in reaching a verdict.

By Section 11601, General Code (116 Ohio Laws, 413), effective on September 2, 1935, the court is re-' quired to render judgment in disregard of the verdict, when, upon the statements in the pleadings “or upon the.evidence received upon the trial,” it is found that the party against whom the verdict was returned is entitled to such judgment.

The method of invoking this power of the' court has always been by motion for judgment notwithstanding the verdict, or non obstante veredicto, as it was styled at commop law. By Section 11599-1, General Code (122 Ohio Laws, —), effective on September 27, 1947, it is provided that a motion for judgment notwithstanding the verdict may not be filed after a judgment in conformity to the verdict shall have been approved by the court in writing and filed with the clerk for journalization.

Now what is the issue on a motion for judgment notwithstanding the verdict? It is manifest that it raises the same issue as a motion for a directed verdict made at the close of all the evidence. It is said in J. & F. Harig Co. v. City of Cincinnati, 61 Ohio App., 314, 22 N. E. (2d), 540, that it is nothing more than an iteration of that motion. And a motion for a directed verdict is “in the nature of a demurrer to the evidence” and “involves, for its purposes, an admission or assumption of the truth of the evidence supporting the facts essential to the claim of the party against whom the motion is directed, as well as an admission of all the facts which the evidence proves or tends to prove or support and all reasonable inferences which a jury might draw therefrom.” 39 Ohio Jurisprudence, 799, 800.

In other words, such a motion calls upon the court to determine the one issue of whether there is any evidence of substantial probative value in support of the adverse party’s claim or defense. It poses the question of the materiality of the evidence. It does not raise any issue as to the competency of the evidence that has been received.

Reverting to Section 11601, General Code, it will be ■observed that it is only when the court finds that “upon the evidence received” the party against whom the verdict has been returned is entitled to judgment, that the court is justified in disregarding the verdict and rendering judgment for the movant. The power of the court is not made to depend on competent evidence, or ■admissible evidence, but upon evidence that has been received. It challenges the sufficiency of the foundation upon which the verdict was returned, which, of ■course, is all the evidence which the jury was permitted to consider.

In Wilkeson v. Erskine & Son, 145 Ohio St., 218, 61 N. E. (2d), 201, the court had occasion to apply Section 11601, General Code. Quoting from 39 Ohio Jurisprudence, 799 et seq., the court said: “The trial judge, in ruling upon a motion, to direct a verdict or for a nonsuit on the evidence introduced, must not only assume the truth of the evidence in behalf of the party against whom the motion is directed, hpt must construe the evidence most strongly in favor of that party.” (Italics ours.) It will be observed that it is the evidence introduced that must be analyzed to ■determine whether it has any substantial probative value.

We are of the opinion, therefore, that the court was not justified in disregarding any of the testimony of the physicians which had been received in evidence, in passing upon the motion for judgment notwithstanding the verdict.

For these reasons, the judgment is reversed and the cause is remanded with instructions to overrule the motion for judgment notwithstanding the verdict and for further proceedings according to law.

Judgment reversed.

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