author: McNamee, J.

text:
    State, ex rel. McHenry, v. Calhoun, Jr.
    (No. 21718
    Decided March 13, 1950.)

      Messrs. Rocker S Schwarts, for relator.

      Messrs. McKeehan, Merrick, Arter é Stewart, for respondent.
   McNamee, J.

This action in prohibition, originating in this court, presents the question: May a justice of peace, having jurisdiction of the person and subject matter, be prohibited from hearing and determining an action for damages to property that could have been asserted as a counterclaim in another action pending in the Common Pleas Court between the same par-tie ■ in which the plaintiff in Common Pleas Court sought recovery of damages for injuries to person and property in an amount in excess of the jurisdiction of the justice!

The facts are: On July 22, 1949, automobiles owned and operated by James McHenry and William A. W'-ihon collided on Carroll boulevard in University H ' ghts, Ohio. On August 13, 1949, McHenry institued suit in Common Pleas Court of Cuyahoga County against Wishon, seeking recovery of damages to plaintiff’s automobile and injuries to his person which he chums to have sustained as a result of the collision. On October 21, 1949, Wishon filed an answer in (he Common Pleas Court and instead of filing a counter-chum, he instituted suit in the court of respondent, justice, against McHenry, seeking to recover the damages to his automobile alleged to have been sustained in-the same collision. On November 4, 1949, McHenry filed a motion in the justice court to dismiss the bill of par-ti- -dnrs on Cíe «-round of the pendency of another action in Common Pleas Court between the same parties and arisin«- oid of the same transaction. This motion was overruled by the justice of peace on November 28, 1949. Thereafter, on December 2, 1949, McHenry filed his petition in this court for a writ of prohibition seeking to prohibit the justice of peace from proceeding to hear and determine the action instituted in that court by Wishon.

It is conceded that the justice of peace has jurisdiction of the person and subject matter of the action filed in his court, the amount of damage sought to be recovered there being $165. Likewise, it is conceded that in the action pending in Common Pleas Court the damages sought to be recovered amount to several thousand dollars beyond the jurisdiction of the justice of peace. •

In support of his claim relator invokes the rule: “As between courts of concurrent and co-extensive jurisdiction, the one whose power is first invoked by the institution of the proper proceedings and the service of the required process acquires the right to adjudicate upon the whole issue, and to settle the rights of the parties to the exclusion of all other tribunals.” 11 Ohio Jurisprudence, 726, Section 81.

This rule is founded in considerations of judicial comity and a duo regard for the orderly administration of justice. It is a condition of the operation of the rule that the causes of action be the same in both cases. 11 Ohio Jurisprudence, 729, Section 82.

As stated by Matthias, J., in State, ex rel. Maxwell, v. Schneider, 103 Ohio St., 492, 495, 134 N. E., 443:

“The pendency of another action may be successfully pleaded as a defense only when it is clearly made to appear that such pending action is between the same parties, upon the same cause of action.”

The condition of identity of causes of action is met in actions for divorce, where the dissolution of a status is the subject of the action.

Priority of jurisdiction- accompanied by judicial competence to determine the. whole case, is preemptive of the jurisdiction of other courts of coordinate powers. Thus,- while the statute may confer concurrent jurisdiction of the same cause upon, courts of coordinate au-. thority, the rule here sought to be invoked operates to invest exclusive jurisdiction in the court first acquiring jurisdiction of the subject matter and person. It is to protect this exclusive jurisdiction against infringement by another court of equal authority that a superior tribunal will intervene by the issuance of a writ of prohibition. Formerly, under the old system of pleading, a plea in abatement was effective to stay proceedings where there was another action pending between the same parties for the same cause. Pleas in abatement no longer being authorized by the Code of Civil Procedure, the pendency of another action for the same cause may be raised by demurrer or motion when that fact appears upon the face of the petition filed in the second cause or as is more frequently the ease; by answer, when the pendency of another action is not disclosed by the petition. See 1 Ohio Jurisprudence, 36, Section 12. Where such defenses are unavailing, recourse may be had to a superior tribunal for a writ of prohibition. When necessary, resort to a superior tribunal may be made in the first instance.

“In Ohio the purpose of the writ is to keep inferior courts within the limits of their own jurisdiction, and to prevent them from encroaching upon the jurisdiction of other tribunals.” 32 Ohio Jurisprudence, 568, Section 6.

When there is a conflict of jurisdiction between courts of coordinate authority that cannot be resolved by. an appropriate order of the court last acquiring jurisdiction of the person, the intervention of a superior tribunal is necessary. Neither court of concurrent jurisdiction may prohibit or enjoin the other from proceeding to hear the. .cause and if one court enjoins the parties from proceeding, the other may retaliate by-like action. As observed by the author of the text in 28 American Jurisprudence, 380, Section 190:

“For if one may enjoin, the other may retort by injunction, and thus the parties be without remedy, since they are liable to a process for contempt in one if they dare to proceed in the other.”

The rule that the court first acquiring jurisdiction retains it to the exclusion of other courts of coordinate authority, has no application where the conflict of jurisdiction is between a court of general jurisdiction and one whose limited powers are inadequate to afford full relief to the parties. See 11 Ohio Jurisprudence, 730, Section 83. Nor, is the rule applicable in those cases where the second action is based upon a different cause of action in favor of a different party. This is true, even though the different causes of action arise out of the same transaction. As conceded, the justice of peace has jurisdiction of the subject matter and person in the action instituted by Wishon against Mc-Plenry. The Common Pleas Court was invested with authority to hear and determine Wishon’s claim of property damage against McHenry, if the former had filed a cross-petition therefor in the action pending in Common Pleas Court, but under the terms of Section 11315, General Code, the filing of a counterclaim by a defendant is permissive — not obligatory. The general rule that a defendant must set up every defense, legal or equitable, or be deemed to have waived them does not apply to a counterclaim. Witte v. Lockwood, 39 Ohio St., 141.

“But while it is the better and usual practice for a defendant to avail himself of any counterclaim he may have against the. plaintiff’s action, he is not compelled to do so, but may reserve it and sue on it in a separate action, although, if he fails to do so, he will be penalized as to costs in the subsequent action.” 36 Ohio Jurisprudence, 580, Section 92.

See Covington & C. Bridge Co. v. Sargent, 27 Ohio St., 233; Swenson v. Cresop, 28 Ohio St., 668; Witte v. Lockwood, supra.

The penalty for a defendant’s failure to set up a counterclaim is found in Section 11624, General Code, •the pertinent part of which reads:

“* # # if a defendant omits to set up a counterclaim he cannot recover costs against the plaintiff in any subsequent action thereon. * ”* *”

It is the clear policy of the law to include all causes of action arising out of the same transaction in a single suit. Although the procedure adopted by Wishon in filing a separate action for damages in the justice court instead of asserting a counterclaim in the pending action in the Common Pleas Court is incompatible with that policy, such action on his part is not effective to divest the justice court of the jurisdiction conferred upon it by law. The law of this state which permits the filing of a counterclaim as a separate action, is the rule in most of the states. In an extensive annotation in 8 A. L. R., 695, the law in this country and elsewhere is summarized as follows:

‘ ‘ The general rule is that a defendant, having a claim, available by way of setoff, counterclaim, or cross-petition, has an election.so to plead it, or to reserve it for a future independent action, and a prior action in which a claim might have been asserted as a setoff, counterclaim, or cross-petition is no bar to a subsequent independent action thereon.”

The foregoing statement of the rule is supported by cases from thirty-three states, including Ohio, and cases from the federal courts, Canada and England. As bearing directly upon counterclaims arising out of automobile collisions, see Seager v. Foster, 185 Iowa, 32, 169 N. W., 681, 8 A. L. R., 690; Republic Auto Ins. Co. v. Madel, 253 Mich., 663, 235 N. W., 819.

A writ of prohibition should never issue unless it clearly appears that the inferior court is about to exceed its jurisdiction. The pendency in Common Pleas Court of McHenry’s suit against Wishon did not constitute a bar to the prosecution of Wishon’s action in the justice court. This being so, the jurisdiction of the respondent justice of peace is unaffected by the pending action in Common Pleas Court and there exists no basis for the issuance of a writ of prohibition.

In view of the conclusion reached, we need not and do not express any opinion on the question whether there are other remedies available to the relator. Solely as a matter of information, and expressly disclaiming any intention to indicate an opinion thereon, or an approval thereof, we direct attention to the note in 125 A. L. R., 337, which discusses “the right to enjoin the prosecution of an action in court of limited jurisdiction, because of some counterclaim or right on the part of the defendant which is beyond the jurisdiction of such court.”

Writ denied.

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


source: Caselaw Access Project

author: Doyle, J.

license: Public Domain

text:
    Mudrich, a Minor, Appellee, v. Standard Oil Co. et al., Appellants.
    (No. 21114
    Decided March 14, 1949.)

      Messrs. Harrison, Thomas, Spangenberg & Hull, for appellee.

      Messrs. McAfee, Grossman, Taplin, Hanning, Newcomer é Haslett, for appellants.
   Doyle, J.

Appeal from a judgment of the Common Pleas Court of Cuyahoga County, in favor of plaintiff, entered upon a verdict of a jury in the amount of $25,000 and against The Standard Oil Company, the defendant.

The plaintiff is a minor who, through his next friend, sought and received a judgment for damages against the defendant which he claims arose as the proximate result of the negligence of the defendant’s servant.

There is evidence tending to prove that the defendant, The Standard Oil Company, pursuant to an order from the proprietor of a general store and gasoline filling station, delivered, by tank wagon truck, gasoline to fill two underground tanks which served the pumps of the station. In the process of filling, one of the tanks overflowed, and, before the servant of the defendant could stop the flow, a quantity of the gasoline drained away over the hard frozen ground and eventually collected in several pools, the one farthest away being at the base of a tree near the building about 15 feet from the source of the overflow and spillage. Thereupon, the servant of the defendant entered the store to prepare an invoice and collect for his delivery. Upon the completion of this transaction, he informed, and pointed out to the person in charge, one Richard Solka (aged 16 and son of the owner), of the accident of spilling and stated that it would soon evaporate. Richard Solka gave no directions nor made any request to the defendant’s servant in connection with the accidental spillage nor did either one do anything about it.

Sometime later, the plaintiff, Theodore Mudrieh, aged seven years and eight months, and Jimmie Solka, the seven-year-old son of the owner of the business, came to the store and station from school and commenced to play in and about the premises. After playing at marbles for awhile, they then helped George Solka, an eleven-year-old son of the owner, pile beverage cases at the side of the store. Tiring of this work after a short time, they again commenced to play. During this period of play the seven-year-old JimmieSolka entered the store and secured matches. He then lighted the two pools of gasoline which remained from the spillage of several hours before. The plaintiff testified:

“Q. Did he light both puddles with matches? A. Yes.

“Q. Then what happened after that? A. Well I went and got some mud and put out the first puddle. Then Junior was looking for something to put out the big puddle. While he was looking for that I went to jump in to put it out.”

There is evidence to indicate that the eleven-year-old George Solka and the seven-year-old plaintiff, Mudrieh, put out the smaller of the two fires with mud and slag. After this was accomplished, George Solka started to secure cardboard with which to smother-out the larger fire near the base of the tree. At this time, the plaintiff decided to put it out by jumping on it. lie thereupon jumped into the fire with both feet. The splashing of the unconsumed gasoline and the flames fired his clothes, resulting in serious and severe burns with an accompanying permanent injury.

The issues presented by the appellant in this appeal, which seeks a reversal of the judgment of the Court of Common Pleas and a final judgment in favor of the said appellant, are in substance as follows:

“1. That the Standard Oil Company, as a business visitor, owed to the plaintiff only the duty owed by the land occupier, George Solka, Sr., and that George Solka, Sr., owed no duty to the plaintiff with respect to the open and visible puddle of gasoline.

“2. Even if the defendant owed to the plaintiff a duty different from that owed to the plaintiff by the land occupier, the defendant contends that the spillage -of gasoline was not, as a matter of law, the proximate cause of the plaintiff’s injury.

“3. The plaintiff assumed the risk involved in.his actions when he deliberately jumped into an open fire with both feet.”

Is it the law of this, state that the owner or lessee of premises upon which he conducts a business benefits from a rule that restricts his duty toward gratuitous licensees to abstention only from wilful or wanton injury and warnings of hidden perils?

The affirmative of this question is the premise upon which the appellant claims that it owed no duty to the injured person, for the reason that it was entitled to the same immunities from liability to the plaintiff as the occupier and user of the land.

There are many theories adopted by the courts of other states on this question, and the courts of Ohio have not been particularly helpful in clearing the confusion.

It is true, as claimed by the appellant, that in this state the following is a correct statement of the law:

“4. A licensee takes his license subject to its attendant perils and risks, and the licensor owes him no duty except to refrain from wantonly or wilfully injuring him and to exercise ordinary care after discovering him to be in peril; he should not be exposed to hidden dangers, pitfalls or obstructions.

“5. The foregoing rule is not altered by the fact that the injured person is a child of tender years.” Hannan, Admr., v. Ehrlich, 102 Ohio St., 176, 131 N. E., 504.

See, also, Wheeling & Lake Erie Ry. v. Harvey, 77 Ohio St., 235, 83 N. E., 66; Soles, Admr., v. Ohio Edison Co., 144 Ohio St., 373, 59 N. E. (2d), 138.

The principles stated in Hannan, Admr., v. Ehrlich, supra, however, must be read in the light of the facts of that case. There, a statical condition existed, and the conclusions stated were pronounced to apply to such a condition. As a matter of fact, the Chief Justice in his opinion indicated that the rule is not an inflexible one, for he commented, at page 187:

“A well-defined distinction runs through the cases, between injuries caused by a dangerous statical tíondition and premises where dangerous active operations are being carried on. A much higher degree of care is necessary in protecting children in the latter case than in the former. If the statical condition of the premises is such that the dangers are easily perceived, no liability can arise; but if the statical condition is made perilous by the active and negligent operation thereof by the owner, a different situation is presented. ”

The court of last resort in this state has not disavowed the principles pronounced in a number of other older cases. For instance', Judge Shauck, in Cincinnati, Hamilton & Dayton Rd. Co. v. Aller, 64 Ohio St., 183, 193, 60 N. E., 205, distihguished the case then under consideration from thé case of Harriman v. Railway Co., 45 Ohio St., 11, 12 N. E., 451. He said:

“While in Harriman v. Railway Co., the recovery was by one who was upon the grounds of the company by permission only, thé injury was not occasioned by any real or alleged defect in the construction of the road. The injury there resulted from the operation of the road. The doctrine of the case is that when the company became aware that persons were using ;the road for purposes of their own it became its duty, not to alter the construction of its road, but to operate dt consistently with the facts thus known to it. It: was held to be a violation of that duty to add new and further peril to such permitted use without taking precaution against injuries which would naturally result therefrom. Not only does such added peril from the operation of the road appear as a fact in the case, but in the syllabus it is stated as a ground of recovery; and in the opinion the question for decision is stated as follows: ‘ An owner may, without protest or objection, permit his premises to be used by the public so long, in the same condition, that his acquiesence in the continuation of such use, until some warning or notice on his part, might reasonably be expected; and if under such circumstances and with hnoioledge of ihe same, he should place or leave some new, dangerous structure or instrument in the way so used, and from which he might reasonably apprehend danger of injury to those accustomed to such use, can he claim exoneration from liability in case such injury shall occur, on the ground that the law imposed no duty on him to keep his premises in a safe and suitable condition for trespassers and licensees who enter by permission only?’ ” (Italics ours.)

The answer to this question was “no.”

Again, there may be found in Ziehm v. Vale, 98 Ohio St., 306, at page 313, 120 N. E., 702, the following language:

“The distinction between the legal duty due uninvited persons, in cases arising from the construction of the premises and in those arising from their negligent operation, is clearly made and discussed in C. H. & D. Rd. Co. v. Aller, 64 Ohio St., 183. On page 193, Shauck, J., in discussing the case of Harriman v. Rail way Co., 45 Ohio St., 11, said of that case: ‘The injury was not occasioned by any real or alleged defect in the construction of the road. The injury there resulted from the operation of the road. ’ ’ ’

This court is of the opinion that if the licensor-proprietor negligently spilled gasoline and permitted it to remain in open pools on the premises, and as a proximate result thereof a social visitor was injured, the social visitor (a gratuitous licensee) being rightfully there may maintain an action. Even if such visitor was there under a permission which at any time could be revoked, and under circumstances which did not make the proprietor responsible for any defect in the existing condition of the premises, he could still be held liable for any negligent act of himself or his servant which made the premises dangerous and which in fact injured the social visitor.

Now, it is urged, as heretofore stated, that the business visitor is entitled to the same immunities as the proprietor. It may be that in a proper case we would so decide. However, if active negligent acts of the proprietor of premises could render him liable to an infant gratuitous licensee on the premises, certainly active negligent conduct of the business visitor which caused the proprietor’s premises to become unsafe and perilous to an infant social visitor could likewise make him liable.

It is further claimed by the appellant that “even if the defendant had some duty to the plaintiff, the defendant’s act was not the proximate cause of the plaintiff’s injury. The act of Jimmie Solka in lighting the fire was a supervening, independent act which proximately caused the plaintiff’s injury, and plaintiff’s voluntary act in jumping into the fire was a contributing cause of the injury. Both these acts were unusual and unforeseeable circumstances.”

It is usually true that, when a third party enters the picture of a tort action, the situation is made more complex than if the injury is the result of only one person’s conduct. The basis of tort liability, however, never changes. It has four distinct steps:

1. Did the defendant owe the plaintiff a duty against the risk in question (against the danger of third persons throwing matches in pools of gasoline and the innocent attempt of a child to put out the ensuing fire) ?

2. Did the defendant violate that duty? (Was it negligent?)

3. Was the plaintiff hurt?

4. Was there a causal connection between defendant’s violation of duty and plaintiff’s hurt?

Now, under the facts of the ease under consideration, the mere spilling of the gasoline caused no harm in and of itself. But the negligence, if any, was the failure to protect against the very danger that the plaintiff suffered — i. e., the danger of someone accidentally or intentionally igniting the gasoline, and the danger of an infant rightfully in and about the. premises, receiving injuries in an attempt to put it out.

Once that duty is recognized and determined to have been violated, there cannot be much doubt about the relation of cause and effect between the defendant’s-negligence and the plaintiff’s hurt. Independent agencies, when combined with defendant’s conduct, only-save a defendant from liability when they introduce a risk not within the scope of the defendant’s duty. They seldom play a part in the matter of causal relation between his conduct and plaintiff’s hurt, except to concur with his conduct. They do not break a chain of causation.

The jury in the instant case found by its verdict that a duty was owed by the defendant company to this plaintiff; that what happened to the child was something which was within the range of probability and should have been anticipated by the mind of a reasonably prudent and careful person. In other words, the jury found that the negligence of the defendant was the proximate cause of the plaintiff’s injury. Under the law as we understand it in this state, we cannot say that such finding was manifestly against the weight of the evidence nor contrary to law.

We do not think it necessary to further labor the question of proximate cause. It has been under consideration in many Ohio cases in which claims were made that the chain of causation was broken by the independent acts of third persons. Judge Bevis cites quite a number in Gedeon, Admr., v. East Ohio Gas Co., 128 Ohio St., 335, 190 N. E., 924. Reference is made to that case and the cases and texts which the learned .judge cites to support his conclusions.

A further claim is made that “the plaintiff assumed the risk involved in his actions when he deliberately jumped into an open fire with both feet. ’ ’

Contributory negligence and assumption of risk were pleaded as defenses by the defendant, in addition to a general denial. The court charged the jury fully on contributory negligence as applicable to a minor, both before the argument of counsel, at the request of the defendant, and in the general charge prior to submission of the case to the jury. It is now claimed that the court committed error prejudicial to the rights of the defendant in refusing to give the jury before argument of counsel the following instruction on assumption of risk:

“If you find from the evidence that the plaintiff, Theodore Mudrich, saw the fire which Jimmie Solka ignited, then you may consider whether Theodore Mud-rich assumed the risk incident to stepping upon said fire. By assumption of risk is meant that one who exposes himself voluntarily- to an open and visible danger or peril is responsible for his own conduct and cannot recover whether or not the defendant was guilty of negligence. In determining whether Theodore Mud-rich assumed the risk of the fire ignited by Jimmie Solka in this case, you must consider whether a boy of Theodore Mudrieh’s age and experience would or would not have assumed the risk.”

We recognize as a rule of law that, independently of the relation of master and servant, there may be, under certain circumstances, a voluntary assumption of risk of a known danger which will preclude an injured person from recovery. This rule rests on the general principle expressed in the maxim, volenti non fit injuria. However, before the principle may be applied to a given set of facts, there must be evidence from which reasonable persons could reach different conclusions: First, that the injured person accepted a danger which was clearly understood and, second, that he had a foresight of the consequences and a readiness to accept them. Cardozo, Ch. J., in Zurich G. A. & L. Ins. Co. v. Childs Co., 263 N. Y., 324, 327, 171 N. E., 391. See, also, Bohlen, Studies in the Law of Torts, 516 et seq.

The members of this court are of the opinion, and so decide, that reasonable minds could come to no other conclusion than that, when the seven-year-old child jumped into the fire for the purpose of extinguishing it, he did not accept a danger which he clearly understood, and that he did not have a foresight of the consequences of his act and a readiness to accept them.

It is further observed that, if it be assumed that the rule of assumption of risk is proper in the case, the requested charge should not have been given. It failed to state the premises upon which the rule is predicated. Under the rule a plaintiff must voluntarily, consciously and deliberately elect to encounter a known risk. No risk can be said to be assumed until the plaintiff has knowledge of the danger, a foresight of the consequences, and a readiness to accept them.

We therefore hold, for the reason above stated, that a charge to the jury on assumption of risk would have been improper. We do not question the duty of the court to submit to the jury, as it did, the issue of contributory negligence.

Examination has been made of all of the errors claimed, and we find none of a prejudicial character.

In our examination of the authorities treating the various questions involved, we encounter Rossiaki v. West Side Motors, Inc., decided by the Court of Appeals of the Second Appellate District and noted in 19 Ohio Law Abs., 191. We determine that the judgment to be entered in the case under consideration is in conflict with the judgment of the Second District Court of Appeals in the ease above noted. We, therefore, certify this case to the Supreme Court of Ohio for review and final determination, under authority of Section 6, Article IV, of the Constitution of Ohio.

Judgment affirmed.

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

Doyle, J., of the Ninth Appellate District, sitting by designation in the Eighth Appellate District.


author: Hildebrant, J.

text:
    Tritsch, Appellee, v. Bach, Appellant.
    (No. 7144
    Decided October 24, 1949.)

      Mr. Harry Kasfir, for appellee.

      Messrs. Burke é Cooney, for appellant.
   Hildebrant, J.

This appeal on questions of law is from the Common Pleas Court, wherein the plaintiff recovered a verdict and judgment for damages for breach of an oral contract to form a partnership.

In his petition, plaintiff alleges, in substance, that defendant importuned plaintiff to leave his employment, continuously held for the past nine and one-half years, and if he would do so, he, the defendant, would make plaintiff á full partner in his business; that, relying on such promise, plaintiff quit his employment and on July 8, 1947, started to work at defendant’s place of business, where he continued to work until March 26, 1948, a period of some nine months, when defendant denied the existence of any agreement to form a partnership and advised plaintiff he was no longer able to employ him. Plaintiff alleged also that during the period between July 8, 1947, and March 26, 1948, he made numerous requests on defendant to consummate a partnership agreement, but that defendant evaded and made excuses for delay until the time of openly denying the agreement. The petition then details plaintiff’s claims for damages, totaling $2,470.92.

From his petition, it is clear that plaintiff conceived his cause of action to be at law for damages for the breach of an executory contract to form a partnership. It is well established that such an action at law will lie in a proper case, and the court has no quarrel with citations made to that effect.

It is also firmly established, so as not to require citation, that once the legal relationship of partners is established, one may not sue the other in an action at law for violation of the rights of a partner, but is remitted to the equitable action of accounting and dissolution to determine the rights and liabilities between partners.

The record here is so meagre as to make it very difficult for the courts to determine exactly what the agreement was, if there was a meeting of the minds at all.

However, the plaintiff’s own testimony supplies the legal solution by reason of its being subversive to his declared cause of action at law for damages for breach of an executory contract to form a partnership.

Plaintiff testified that he believed he was a partner all the while between July 8, 1947, and March 20, 1948; that each man had an equal drawing account; that he deposited bonds with the defendant for safe keeping and to be available for use in the business, although he was to contribute no cash but payment for half the assets was to be taken from profits to be determined at the end of the year; that he had asked for such an accounting, which was postponed by the defendant; and that he had asked to see the books, which request was refused.

Plaintiff’s testimony, therefore, amounts to an admission that the actual partnership relation according-to his belief started when he quit his former employment and went to work at defendant’s place of business. Taking this admission to be true, it is subversive of the cause of action declared upon and required final judgment for the defendant.

It is stated in 53 American Jurisprudence, 298, Section 367:

“"Where a party’s own testimony, if true, would defeat his right to a verdict, and such statements are not modified or explained, a verdict may be directed against him.”

39 Ohio Jurisprudence, 819, Section 193, states:

“When a party testifies to positive and definite facts which, if true, would defeat his right to recover or conclusively show his liability, and such statements are not subsequently modified or explained by him so as to show that he was mistaken, although testifying in good faith, it has generally been held that he is conclusively bound by his own testimony, and cannot successfully complain if he is nonsuited or the court directs a verdict against him.”

In Hodges v. Ettinger, 127 Ohio St., 460, 462, 189 N. E., 113, Stephenson, J., says:

“The testimony of a party to an action necessarily subversive to his interests in the particular action is regarded in all courts as conclusive.”

In Winkler v. City of Columbus, 149 Ohio St., 39, 77 N. E. (2d), 461, it is stated in the syllabus:

“Where, in an action for personal injury, plaintiff’s testimony amounts to an admission that she was guilty of negligence at the time and place, which contributed directly to her injury, it is the duty of the trial court to sustain a motion for a directed verdict in favor of defendant. ’ ’

And, at page 44, Turner, J., states:

“The Court of Appeals assumed that because plaintiff testified one way in chief and contrarily on cross-examination, the case should be left to the jury to choose between her conflicting statements. That would be proper in the case of an ordinary witness, but where the testimony involved is that of the plaintiff and the plaintiff’s testimony whether in chief or cross-examination, discloses negligence on the part of plaintiff contributing directly to her injury the fact has been settled and the matter becomes a question of law to be determined by the court.”

Other cases in accord are: New York Central Rd. Co. v. Stevens, Admr., 126 Ohio St., 395, 185 N. E., 542, 87 A. L. R., 884; E. Kahn’s Sons’ Co. v. Ellswick, 122 Ohio St., 576, 579, 172 N. E., 668; Cleveland, C., C. & St. L. Ry. Co. v. Lee, Admr., 111 Ohio St., 391, 145 N. E., 843.

The judgment is, therefore, reversed, and the cause remanded, with instructions to render final judgment for the defendant.

While we find error in the instructions as to the measure of damages, in view of the foregoing, no further comment is necessary here.

We find no other error in the record, prejudicial to the appellant.

Judgment reversed.

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


author: Wiseman, J.

text:
    In re Estate of Price.
    (No. 675
    Decided November 12, 1949.)

      Mr. Jesse K. Brumbaugh and Mr. Hugh A. Staley, for appellant, administratrix.

      Mr. Martin D. Pluess and Messrs. Marchal é Marchal, for appellee, claimant.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Darke County, granting leave to the appellee claimant, Ralph White, tq present his claim for damages against the estate of Arthur Price, deceased.

On May 9, 1947, the claimant and decedent were involved in an automobile accident in which the claimant sustained serious injuries and decedent died as a result of his injuries. The claimant was confined to the hospital from the date of the accident until October 3,1947. On May 20,1947, Monnie E. Price was appointed administratrix of decedent’s estate. The four-month period within which a claimant was required to present a claim expired on September 20,1947. The claimant failed to present his claim within the four-month period. On February 3, 1948, he filed his petition in the Probate Court for authority to present his claim, which was within nine months from the date of the appointment of the administratrix. Thereafter, on July 25, 1948, an amended petition was filed. The probate judge being interested, the case was certified to the Court of Common Pleas pursuant to Section 10501-9, General Code. The Common Pleas Court rendered judgment in favor of the claimant and from that judgment this appeal is taken.

In the amended petition it was alleged that the claimant did not have actual notice of the appointment of the administratrix in sufficient time to present his claim within the period prescribed by law; that the claimant was subject to a legal disability, to wit, a mental disability during a portion of the four months following the appointment of the administratrix; and that the administratrix waived the presentment and allowance of such claim. The Common Pleas Court found against the claimant on the first and third grounds alleged and in his favor on the second ground.

The administratrix contends that the judgment of the trial court is contrary to law. We find no reported case in Ohio deciding this precise question.

. The présentation of claims against an estate after the expiration of four months from the appointment is qontrolled by Section 10509-134, General Code. This section in part provides that “if upon hearing the court finds * * * that the claimant was subject to any legal disability during such period or any part thereof, then the court may authorize such claimant to present his claim to the executor or administrator after the expiration of such period.” (Emphasis' ours.)

The term, ‘ ‘ legal disability, ’ ’ as used in that section is defined in Section 10512-2, General Code, as follows:

“The term ‘legal disability’ as used in this act shall include the following: (a) persons under the age of twenty-one years; (b) personé’of- unsound mind; (c) persons in captivity; (d) persons under guardianship of the person and estate or either.” (Emphasis ours.)

The assertion of the right of the claimant to present his claim after the expiration of four months was based on the fact that during a portion of the four-month period he was of “unsound mind.” Section 10213, General Code, in part provides that, “in the interpretation of part third, unless the context shows that another sense was intended; * * ‘of unsound mind’ includes every species of mental deficiency or derangement.”

In Lowe, Gdn., v. Union Trust Co., 124 Ohio St., 302, 178 N. E., 255, the court held that the term, “of- unsound mind,” used in Section 12270, General Code, has a broader and more inclusive meaning than the word, “insane.’’ The court in that ease had under consideration the definition of the words, “of unsound mind,” as set forth in Section 10213, General Code. The court in that case stated, on page 307, that it was proper to consider whether the litigant “was suffering from some species of mental deficiency or derangement so as to be unable to look into her affairs, properly consult with counsel, prepare and present her case, and assert and protect her rights in a court of justice.” The court followed the case of Bowman v. Lemon, 115 Ohio St., 326, 154 N. E., 317, which laid down the same test with respect to mental deficiency or derangement.

We now consider whether the evidence in this case shows that the claimant was suffering from some mental deficiency or derangement “so as to be unable to look into * * * [his] affairs, properly consult with counsel, prepare and present * * * [his] case, and assert and protect * * * [his] rights in a court of justice. ’ ’

The physician attending the claimant while he was confined in the hospital testified that he had a basilar skull fracture; that at the time he entered the hospital he was bleeding from both ears; that the femur of his right leg was broken in 18 or 20 pieces; that he was suffering from shock; that he was mentally confused; that for a period of three or four weeks after the accident his senses were not clear and there was an element of mental confusion; and that he was kept under sedation because of the severe pain. The physician testified further that for a period of six to eight weeks the claimant suffered from mental confusion; that he was kept under sedatives until the month of September; and that for a period of three to four weeks he was administered hypnotic drugs, the portions of which were gradually reduced.

The trial court found that during a portion of the four-month period following the appointment of the administratrix the claimant was under a legal disability. In our judgment the evidence, when construed most favorably to the claimant, supports the judgment of the trial court.

The administratrix contends that the judgment of the trial court is contrary to law for the reason that the court misconstrued Section 10509-134. The point is made that under the construction given this section by the trial court if the claimant was under a legal disability for any infinitesimal portion of time during the four months immediately following the appointment of the administratrix he would have been entitled to an order allowing him to present his claim. Under the evidence presented we are not required to pass on this question. Section 10509-134 provides that if the claimant was subject to any legal disability during the four-month period “or any part thereof’’ he is entitled to the benefit of such section. The question presented to this court for determination is largely factual. On the evidence adduced the trial court was justified in finding that for at least two months from the date of the appointment of the administratrix the claimant was of unsound mind and in such mental condition that he was not able to look into his affairs, properly consult with counsel, prepare and present his case, and assert and protect his rights in a court of justice, which is the test laid down by our Supreme Court. Since the evidence shows that the claimant was for a substantial portion of the four-month period of unsound mind, we are not required to decide the question whether a claimant, who was of unsound mind for a period of one week or one day after the date of the appointment of fiduciary, is entitled to the benefit of the section.

The provisions of Section 10509-134 must be construed liberally in favor of the claimant. See In re Estate of Erbaugh, 73 Ohio App., 533, 546, 57 N. E. (2d), 294. Section 10214, General Code, in part, provides that “the provisions of part third and all proceedings under it, shall be liberally construed, in ordqr .to,promote its object, and assist the parties in obtaining justice.” The, Probate Code sections are remedial and fall into Part Third of the General Code. In our opinion the trial court did not misconstrue the provisions of Section 10509-134 or the evidence applicable thereto.

The judgment is affirmed.

Judgment affirmed.

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


author: By the Court.

text:
    Maxfield, Appellee, v. Bressler, Appellant.
    (No. 7187
    Decided December 12, 1949.)

      Mr. Wm. J. Wise and Mr. L. W. Scott, for appellee.

      Mr. Charles B. Terry and Mr. Fred L. Hoffman, for appellant.
   By the Court.

(1) This case originated in the Municipal . Court of Cincinnati, from which it was appealed to the Court of Common Pleas of Hamilton County. While it was pending in that court it was discovered that through inadvertence the bill of exceptions had been filed and stamped in the Court of Appeals and given the number of a prior appeal of this case to this court. Upon discovery of the error, the defendant appellant, moved, the Comm on Pleas Court for an order for leave- to- file the bill of exceptions in this case in. the Common Pleas Court. The court granted this motion. It is urged in this court that the Common Pleas Court erred in this respect and that neither that court nor this court can consider any errors requiring a reference- to the bill of exceptions.

The bill of exceptions haying been duly filed, settled, and certified to by the trial judge, and notice of appeal to the Common Pleas Court having been duly filed, the time for filing the bill of exceptions in the Common Pleas Court on appeal rested within the sound discretion of that court. We find no ground for disturbing the action of that court in granting leave to file the bill of exceptions and considering it on appeal. We will consider it as one of the original papers on this ■ appeal of the case from the Common Pleas Court.

(2) . At the first trial of this case the Municipal Court entered judgment for the defendant on the ground that the contract was unenforceable under the laws of Kentucky, because the plaintiff had not been licensed by that state as an architect, and the action was to recover for preparation of plans for a building located in that state. On appeal to this court, this judgment was reversed on the ground that in our view the Kentucky statutes were inapplicable, Maxfield v. Bressler, 38 Ohio Law Abs., 449, 55 N. E. (2d), 424. The defendant appellant urges errors based on the applicability of the Kentucky statutes and cites the .same cases as were under consideration on the first appeal. We adhere to our original conclusion and find the trial court committed no error in ruling on the second trial in conformity thereto.

(3) The next assignment of error is that the court erred in sustaining the plaintiff’s demurrer to the fourth defense, contained in the defendant’s fourth-amended statement of defense. In that defense, the defendant alleged that the plaintiff made certain false representations as to his ability as an architect, but there was no allegation that the defendant relied on them in entering into the contract. The court, for that reason, was justified in sustaining the demurrer. The fact that the statement ended with a general denial did not prevent the sustaining of the demurrer, for the reason that after eliminating the fourth defense, there still remained four general denials in the fourth amended answer. Furthermore, the defendant filed a fifth amended statement of defense, in which were reiterated substantially all the allegations of this defense.

(4) The defendant appellant contends that the plaintiff appellee was not a party to the contract sued upon and, therefore, cannot recover in this action, even though he may have a cause of action on a different contract. This contention arises from the fact that the plaintiff appellee alleged in his bill of particulars that the contract was in writing and attached a copy. The signatures to this copy and the original which was introduced in evidence are the plaintiff appellee’s and Woodrow Bressler’s, a son of the defendant appellant. However, all the essential terms of the contract are alleged in the bill of particulars, and in the contract the contracting party other than the plaintiff appellee is described as the owner for whom the services were to be performed and it was the owner who agreed to pay the architect’s fee and perform all the other promises forming the consideration for the plaintiff appellee’s promises.

. There is no contention that the law required this contract to be evidenced by writing signed by the party to be charged. There was, therefore, no necessity to allege that it was in writing and the allegation may be disregarded as surplusage. Indeed, even where the law requires a contract to be evidenced by a written memorandum signed by the party to be charged, it is not'necessary for the pleader to allege that the contract sued on was in writing. 9 Ohio Jurisprudence, 618, Section 366.

At the trial it was sufficient for the plaintiff appellee to prove that the defendant appellant had entered into a contract with him embodying the terms alleged. This proof could consist not only of testimony but also of unsigned written memoranda or written memoranda signed by another, if proper foundation was laid.

Of course, the parol evidence rule excluding evidence of all prior and contemporaneous negotiations on the same subject applies only between parties who have integrated their contract into a writing, but that does not mean that an unsigned memorandum or one signed by another has no evidential value.

It seems clear that the defendant appellant was the party with whom the plaintiff appellee contracted. She was the owner of the land and she contracted for the erection of the building. The contracting party is described as the owner in the writing signed by plaintiff appellee and Woodrow Bressler. A reading of the defendant appellant’s testimony is sufficient to conclusively identify her as the contracting party and her testimony is corroborated by all the facts and circumstances. She was asked this question, “What if anything was said about who the contract would be with”? and she answered, “With me.”

(5) We are also of the opinion that there is sufficient circumstantial evidence that Woodrow Bressler was authorized to act for his mother in negotiating with the plaintiff appellee, and that his mother adopted the contract as her own after it was entered into. Therefore, both by prior authorization and subsequent ratification, she became bound by it. We find no substantial error in the admission of this evidence.

(6) Error is claimed in that the court unduly limited the defendant in the introduction of evidence and in the interrogation of witnesses. The extent of examination rests largely in the discretion of the trial court and we find no, abuse of that discretion in this-case.

(7) It is claimed that the court erred in giving certain special charges, mostly on the ground that they were abstract. Perhaps tire court would have been justified in refusing to give them on that ground, but having given them, the question before this court is whether they are correct statements of law — and we find no substantial error in them. Nor do we find the other criticisms valid.

(8) We have examined the special charges requested by defendant appellant. We find these charges inapplicable to the case as proven.

(9) Refusal to submit certain special interrogatories to the jury is assigned as error. From what we have already said our view of the essential nature of this case is manifest. When the nonessentials are cleared away, there is very little left beyond the proof of the entering into the contract by the defendant appellant and its terms and substantial performance by the plaintiff appellee. These interrogatories had no substantial evidence to support them or related to immaterial matters.

• (10) We find no prejudicial error in the general charge. A possible "compromise” among the jurors, referred to, on the amount is unusual and not to be recommended, but there is no suggestion of a "quotient” verdict and the court told the jury clearly that the verdict must be one "in which you all concur.”

We are of the opinion that substantial justice has been done in this case.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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


author: Hornbeck, J.

text:
    Huston, Appellee, v. Industrial Commission of Ohio, Appellant.
    (No. 2025
    Decided April 7, 1949.)

      Mr. Strother Jackson and Mr. Harry P. Jeffrey, for appellee.

      Mr. Ilugli S. Jenkins, attorney general, Mr. R. Rrookt Allow ay and Mr. Joe F. Asher, for appellant.
   Hornbeck, J.

The appeal is from a judgment on a verdict in behalf of plaintiff, holding that she is entitled to participate in the state insurance fund.

Six errors are assigned, all of which we have examined, but upon the record there is only one question of substance, namely, did the facts developed present an issue for the consideration of the jury whether the injuries sustained by’the plaintiff’s decedent were in the course of and arose out of his employment within the meaning of the Workmen’s Compensation Act.

There is no substantial dispute in the facts, the difference between the parties arising out of an interpretation of them.

Plaintiff V decedent, Theodore Huston, was under written contract, the assistant manager of the Cliffs Cabs .Company. The position which he held was created due to the death of a former partner of the owner of the business. Under the contract, and upon the testimony of the employer, Huston had the widest authority and his duties were to advance the business interests of his employer. At the time of the injuries complained of, he was acting as assistant manager and in charge of the business.

It was the practice, expressly stated by the employer to be authorized, for Huston to take his meals while on duty, and, on the night of his injuries, August 25, 1945, he had, with another employee, a driver, gotten into a cab of the company and had driven to a restaurant where they were ordering food. As was the custom, the driver of the cab had turned over money of the company to Huston, which he had in his possession at the time he was killed.

While Huston and the driver were seated at the counter of the restaurant, a man entered and staged a holdup. An employee of the restaurant, a cook, the driver of the cab and Huston were the only persons present other than the bandit. As the bandit was about to open a door, probably to leave the restaurant, Huston struck at but failed to hit him whereupon the bandit shot and killed Huston, while his hands were in the air.

It is inferable that Huston felt that he might deter the bandit in his purpose to rob or bring about his detention and arrest. Huston’s acts, manifestly, were unwise, but in the most favorable light to plaintiff, may it be said that his injuries arose out of and occurred in the course of his employment? We are of the opinion that the jury had the right to so determine.

Huston, to all intents and purposes, was the alter ego of his employer. It may be presumed-that the bandit would have taken money from any person in the restaurant from whom it might have been secured. If the owner of the cab company, instead of Huston, had acted as he did, could it not be said that he acted in the interest of his business? The apprehension or defeat of the purpose of the bandit was in the interest of those who were involved in the holdup. The money of the cab company was a part of the property to be protected. The mere fact that decedent had temporarily deviated from active operation of the cab of his employer does not prevent the determination that at the time he was killed he was acting in the course of his employment.

The factual development here as to course of employment is much like and may be controlled by the adjudication in Industrial Commission v. Henry, 124 Ohio St., 616, 180 N. E., 194, a case which arose in Clark county and in which this court affirmed a judgment for the plaintiff, 10 Ohio Law Abs., 393.

Likewise, we believe there was causal connection of the injury with the employment through the activities, conditions and environments of the employment. Industrial Commission v. Weigandt, 102 Ohio St., 1, 130 N. E., 38.

The practice of Huston to go out with the drivers of the cabs and participate in the activities of the company and to leave a-cab in front of a restaurant and take a meal and then resume its occupancy, permits the conclusion that there was such connection between the employment and its activities as to support a finding that the decedent’s injuries arose out of his employment.

We do not discuss and attempt to differentiate this case from the many cited by defendant in its helpful brief but are satisfied that distinction can be made and that the evidence in this case supported the verdict. ■

The judgment will be affirmed.

Judgment affirmed.

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


text:
    City of Cleveland, Appellee, v. Gorman et al., Appellants.

      (No. 21432
    Decided November 14, 1949.)

      Mr. Lee C. Howley, director of law, and Mr. James M. McSioeeney, for appellee.

      Mr. Frank T. Cullitan, prosecuting attorney, Mr. R. W. Edwards and Mr. Saul S. Danaceau, for appellants.
   McNamee, J.

This appeal is from a judgment of the Common Pleas Court in favor of the city of Cleveland (hereinafter referred to as the city) and against the Board of County Commissioners of Cuyahoga County (hereinafter referred to as the commissioners) in the sum of $1,442,165.37. The judgment represents the amount expended by the city for the care, maintenance, education and support of delinquent children committed by the Juvenile Court of Cuyahoga County to Hudson Boys Farm School from August 19, 1937, to August 31, 1947, and to Blossom Hill School for Girls from October 31, 1939, to April 30, 1945. Both of these institutions are now and since their establishment have been owned and operated by the city and supported by taxes raised by the city.

The issue presented by this appeal is whether, under the provisions of Sections 1639-34 and 1639-57, General Code, the commissioners of a county are liable for expenditures made by a city for the care, maintenance, support and education of delinquent children committed by a Juvenile Court to correctional institutions of the municipality where no appropriations of county funds have been made by the commissioners or requested by the Juvenile Court for such purposes and where the Juvenile Court has neither authorized nor approved payment of such expenditures to the city.

The facts are not in dispute. More than forty years ago the city established a boys farm at Hudson, Ohio. Several years later Blossom Hill School for Girls was established by the city at Independence, Ohio. Throughout the years these institutions have been used exclusively for the custodial care, reformation and discipline of wayward boys and girls committed thereto by the Juvenile Court of Cuyahoga County.

The Bureau of Inspection and Supervision of Public Offices made findings against the commissioners in favor of the city for the cost of operating and maintaining these institutions, in the amounts and for the periods hereinabove noted. The findings of the bureau are based on Attorney General’s Opinion No. 4228 (1941), in which it was held that Sections 1639-34 and 1639-57, General Code (117 Ohio Laws, 520, effective August 19, 1937), imposed upon Cuyahoga county the duty of bearing the expenses of the care, maintenance, education and support of delinquent children committed to correctional institutions of the city since the effective date of the new Juvenile Court Act.

Section 1639-57, General Code (117 Ohio Laws, 537), read:

“It is hereby made the duty of the county commissioners to appropriate such sum of money each year as will meet all the administrative expense of the court exercising the powers and jurisdiction conferred in this chapter, including reasonable expenses of the judge and probation officers in attending conference at which juvenile or welfare problems are discussed, and such sum each year as will provide for the care, maintenance, education and support of the neglected, dependent and delinquent children, other than children entitled to aid under the aid to dependent children law, Section 1359-31 et seq¡, General Code, and for necessary orthopedic, surgical and medical treatment, and special care as may be authorized by such court, for any neglected, dependent or delinquent children, as herein provided. All disbursements from such appropriations shall be upon specifically itemized vouchers, certified to by the judge of the court.” (Effective August 19, 1937.)

The only duty imposed upon the commissioners by the above quoted section is to appropriate the funds required by the Juvenile Court for the various purposes referred to therein. That duty has been performed.

Section 2460, General Code, provides:

“No claims against the county shall be paid otherwise than upon the allowance of the county commissioners, upon „ the warrant of the county auditor, except in those cases in which the amount due is fixed by law, or is authorised to be fixed by some other person or tribunal, in which case it shall be paid upon the warrant. of the county auditor, upon the proper certificate of the person or tribunal alloioing the claim. No public money shall be disbursed by the county commissioners, or any of them, but shall be disbursed by the county treasurer, upon the warrant of the county auditor, specifying the name of the party entitled thereto, on what account, and upon whose allowance, if not fixed by law.” (Emphasis supplied.)

The commissioners possess no authority to approve or allow claims against the county on account of any of the matters referred to in Section 1639-57, General Code, and it is manifest that the Juvenile Court is the only “person or tribunal” empowered to incur obligations on behalf of the county for such purposes.

The last paragraph of Section 1639-34, General Code (117 Ohio Laws, 531), which is pertinent read:

“Any expense created by the court for the care, maintenance and education of dependent, neglected or delinquent children, or for orthopedic, medical or surgical treatment or special care of such children under the provisions of this chapter, except such part thereof as may be paid by the state or federal government, shall be paid from the county treasury upon specifically itemised vouchers, certified to by the judge of the court.” (Emphasis supplied.) (Effective August 19, 1937.) i

The foregoing section provided also that the juvenile judge may order parents who are financially able to do so, to pay the expenses incident to the care of children committed by the court. The record discloses that some payments were made by parents of children committed to the municipal institutions and that these payments were received by the city.

In his opinion, the Attorney General reasons that by virtue of the terms of the last paragraph of Section 1639-34, General Code, quoted above, all expenses not borne by parents of children committed to municipal correctional institutions must be paid out of the county treasury. Reduced to the terms of a syllogism, the reasoning of the Attorney General may be stated as follows:

Major premise: The last paragraph of Section 1639-34, General Code, imposes the liability upon the county for all expenses connected with the care, maintenance, support and education of children committed by Juvenile Court, except such part thereof as may be paid by the state or federal governments. Minor premise: The city paid the expenses resulting from the commitment by Juvenile Court of delinquent children to the Hudson Boys Farm and Blossom School for Girls, no part thereof being paid by the state and federal governments. Conclusion: The city is entitled to reimfoursement from the county for such expenses. The conclusion is wrong because the major premise is wrong. This may be demonstrated by a consideration of the strange and unusual consequences that would follow from an acceptance of the Attorney General’s conclusion as valid.

Section 1639-30, General Code (117 Ohio Laws, 530, effective August, 1937), which enumerated the institutions to which neglected and dependent children may be committed, read in part:

“2. Commit the child to a suitable public institution or agency or to a suitable private institution or agency incorporated under the laws of the state, approved by the state department of public welfare and authorized to care for children or to place them in suitable family homes.”

By the terms of the foregoing section, the juvenile judge may commit delinquent children to institutions supported by private charity as well as to those maintained by public funds. It is a matter of general knowledge that the juvenile judge frequently makes commitments to such private institutions. If, by virtue of the terms of Section 1639-34, General Code, a municipality is entitled to reimbursement of expenses resulting from the commitment of children to its correctional institutions by the juvenile judge, then under similar circumstances all the private charitable institutions to which such children are committed also would be entitled to reimbursement for the expenses resulting therefrom.

Section 1639-34, General Code, makes no reference to either private or public institutions, consequently it makes no distinction between them. No preferential right to payment is granted to municipalities. If the county is liable for all expenses (except that part paid by the state and federal governments) it is liable to all institutions who have been put to expense by reason of the commitment of neglected, dependent and delinquent children thereto by the Juvenile Court. This-would impose upon counties the enormous financial burden heretofore voluntarily assumed by the numerous private and public charitable institutions throughout the state. Manifestly no such radical legislative purpose can be read into the language of the statute.

“* * * the General Assembly will not be * * * presumed to have intended to enact a law producing unreasonable * * * consequences.” 37 Ohio Jurisprudence, 643, Section 352.

The plain and evident purpose of the statute is to obligate the county for such expenses only as are authorized and approved by the judge of the Juvenile Court.

Any ambiguity in the language of the 1937 act that may have cast doubt upon the legislative purpose in this regard was dispelled by the amendment of September 5, 1941. As noted above, Section 1639-34, General Code, in its original form provided that “any expense created by the court * * * shall be paid out of the county treasury * * *.” The 1941 amendment substituted the word “ordered” in lieu of “created,” thus clarifying the intent of the Legislature that payments out of the county treasury were to be made only for such expenses as were authorized by the judge of the Juvenile Court. In the context of the original statute, the word ‘ ‘ created ’ ’ may be understood in the sense of * authorized.” It is in this sense that the word “ordered” is used in the amendment.

“* * * the presumption is that every amendment of' a statute is made to effect some purpose. * * * That purpose may be either to alter the operation and effect of' earlier provisions or to clarify the meaning thereof.”' 37 Ohio Jurisprudence, 768, Section 438. See, also, Thomas v. Huesman, 10 Ohio St., 152; Commrs. of Knox County v. McComb et al., Exrs., 19 Ohio St., 320; City of Cincinnati v. Holmes, Admr., 56 Ohio St., 104, 46 N. E., 514; Lytle v. Baldinger, 84 Ohio St., 1, 95 N. E., 389, Ann. Cas. 1912B, 894.

There can be no doubt that the amendment was intended to and did clarify the meaning of the language •of the 1937 act. Additional proof of this is to be found in the following sentence which was added to Section 1639-34, General Code, by the admendment effective September 5, 1941 (119 Ohio Laws, 733):

“The court shall not be responsible for any expense resulting from the commitment of children to any home, welfare board, or other institution, association, or agency, unless such expense has been authorised by the court at the time of commitment.” (Emphasis supplied.)

This portion of the amendment in clear and positive terms makes the authorization of the Juvenile Court n,t the time of commitment a condition precedent to the accrual of liability against the county for expenses resulting from the commitment of children to any institution.

In both the original act and the amendment to Section 1639-34, General Code, as well as in Section 1639-57, General Code, certification by the juvenile judge of “specifically itemized vouchers” is an essential prerequisite of payment out of the county treasury. It does not appear' that such vouchers covering the expenses resulting from the commitment of children to the Hudson Boys Farm and the Blossom Hill School for Girls were certified for payment by the juvenile judge, nor does it appear that such expenses were “created” by the court. There is no evidence of any authorization of such expenses by the court concurrently with the commitment of delinquent children since the effective date of the 1941 amendment. The absence of these essential elements of a valid claim against the county is conclusive against the right of the city to reimbursement.

State, ex rel. Clarke, Judge, v. Bd. of County Commrs. of Lawrence County, 141 Ohio St., 16, 46 N. E. (2d), 410, lends no comfort to the cause of the city. That case involved an action in mandamus in which the Supreme Court held that it was the duty of the commissioners to appropriate a sum of money sufficient to meet the administrative expenses of Juvenile Court. No question of the liability of the county for expenses resulting from the commitment of delinquent children was involved. It is of interest, however, that Judge Zimmerman in commenting upon the purpose of Section 1639-57, General Code, said at page 18:

“In recent years there has been an increasing solicitude on the part of the state for wayward, unfortunate and neglected children. Through legislative action the Juvenile Court has been made responsible to an important extent for improving the environment and surroundings of these potential citizens and to correct unfavorable conditions besetting them, not only for the advantage of the individual child but for the benefit of the state as well.”

The views herein expressed are in harmony with the foregoing observations of the Supreme Court. The Legislature has granted to the Juvenile Court authority commensurate with its enlarged responsibility for the welfare of neglected, dependent or delinquent children.' The court may obligate the county for the payment of expenses necessary to the proper discharge of its responsibility but it is not contemplated that such action will be taken where the welfare of such children is subserved adequately by their commitment to private or municipal institutions that voluntarily assume the expenses resulting therefrom.

We are of the opinion and hold that a county is not liable for expenses resulting from the commitment of delinquent children to correctional institutions of a city unless such expenses have been authorized and approved by the juvenile judge at the time and in the manner specified in Section 1639-34, General Code.

For the reasons hereinabove stated the judgment of the Common Pleas Court is reversed and final judgment is entered for defendants, appellants.

Judgment reversed.

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


author: Miller, P. J.

text:
    Blum et al., Appellees, v. Hodapp et al., Appellants.
    (No. 1959
    Decided June 10, 1949.)

      Messrs. Harshman $ Young, for appellees.

      Messrs. Jacobson & Durst, for appellant.
   Miller, P. J.

This cause comes into this court on appeal on questions of law and fact by Alfred S. Dane-man'from the judgment of the Common Pleas Court of Montgomery County, in which court a judgment was granted to the plaintiffs, appellees here, awarding them an injunction against the threatened use by the defendants of a one-story business building, upon the ground that such use violated a certain building restriction on the plat in which it was located.

The amended petition, which named as plaintiffs approximately 106 lot owners, alleged the creation of certain building restrictions in the Berkley Heights plat, about the year 1906. These restrictions were as follows:

’ ‘ ‘ And the said grantee, his heirs and assigns as part of.the consideration herein, doth hereby agree and covenant with the said grantor, its successors and assigns, .for the faithful performance of the following conditions, to wit:

“First, That no house shall be built upon said premises costing less than twelve hundred dollars ■($1,200). .

■ “Second, That no building or part thereof shall be placed and set less than 25 feet back from the line of Tra'ctión avenue on said plat, provided that steps, windows, porticoes, and other usual projections appurtenant thereto, are to be allowed in said reserved space. '■

“Third, That no building or part thereof shall be used in any manner so as to be reasonably objectionable to the occupants or owners of neighboring property. ’ ’

The entire amended petition of plaintiffs was groúridéd upon the claim that number three of these building restrictions was being violated by the ■ defendants and an injunction was granted.

In substance the amended petition averred that the defendants had erected a one-story building and had intended to use the same in conducting ‘‘the business of assembling, storing, packing and shipping therefrom bronze grave markers and of storing, packing and shipping therefrom other articles; will engage in the business of carrying on, experimentally or otherwise, the process of adhering ceramic material or glass to steel by use of heat, and other industrial or manufacturing activities or processes; that such uses as aforesaid or any of them on the said premises or in the said building will cause irreparable damage to the property of these plaintiffs and all neighboring property used for residence purposes; will cause noise, disturbance and great increase in traffic and parking of trucks and motor vehicles in the neighborhood; will impair the desirability for residence purposes and the value and •rental value of the property of these plaintiffs and other neighboring property; for all of which these plaintiffs have no adequate remedy at law. * * *”

We have carefully read the entire record containing some 420 pages and without entering into a discussion of the testimony of the various witnesses, will say that we are in full accord with the separate findings of fact as found by the trial court, and our findings will therefore be the same. However, we are compelled to differ with the trial court upon the law applicable thereto.

An examination of the record discloses that two legal questions are presented: (1) Was the action prematurely brought? (2) If the answer is in the negative, can one- lot owner under the facts here presented enjoin another lot owner from violating a restrictive covenant in the deed? In other words, can the- restrictive covenants be enforced by the grantor only or can they be enforced by any lot owner in the subdivision?

In answer to the first question, we are of the opinion that the action was not prematurely brought. Although the restriction relates solely to the use to which the building was to be applied, and although never so used, we find that the record clearly establishes that the intended use would be reasonably objectionable to the occupants or owners of the neighboring property. The intentions of the defendants are clearly set forth in their testimony and, unless restrained, a violation would ensue, provided the covenants were legally enforceable by these plaintiffs.

This leads to the second question which we are compelled to resolve in favor of the defendants. The rules applicable to the facts in the case at bar are well set forth in Lopartkovich v. Rieger, 66 Ohio App., 332, 33 N. E. (2d), 1014. At page 334 appears the following language:

“Judge Washburn, of this court, when sitting as a member of the Court of Appeals of the Eighth Judicial District, set out the following rules in a case similar in some respects to the case at bar. It was there said:

“ £As we interpret the decisions in Ohio, the rule is that, when an owner has a general plan of uniform restrictions, and such restrictions are inserted in each ■deed of an allotment, one purchaser cannot enforce such restrictions against another purchaser unless the restrictions are so drawn that each purchased covenants and agrees, for the benefit of every other lot ■owner, that he will observe the restrictions, or unless the purchaser against whom the restrictions sought to be enforced has notice of such a general plan and purchases his lot with reference thereto. Such notice is shown when the recorded plat contains the general ■scheme or plan, or when the allotter in his deeds covenants that all sales of lots in his allotment shall be subject to like restrictions.’ * * *”

It will be noted under the aforesaid rule that at least one of the following requirements must be met: (1) The restrictions must be so drawn that each purchaser covenants and agrees for the benefit of every other lot owner that he will observe the restrictions; or, (2) The purchaser against whom the restriction is sought to be enforced had notice of a general plan and purchased his lot with reference thereto. Such notice is shown when the recorded plat shows the general scheme or plan or when the allotter in his deeds covenants that all sales of his lots in the allotment shall be subject to like restrictions. Now the first requirement is not met for the record discloses each purchaser did not covenant and agree to observe the restrictions for the benefit of every other lot owner.

The plaintiffs do not agree with us on this proposition, claiming that the third clause of the restriction is for the benefit of all the lot owners of the subdivision, but the restriction itself states that it shall be applicable only “to the occupants or owners of neighboring property.” Can all the lot owners of the subdivision be said to be owners of neighboring property? Webster’s New International Dictionary, Second Edition, defines “neighboring” as “being near; adjacent.” Examining further in the same authority the word “adjacent” is defined as “lying near, close or contiguous, bordering on.” One of the synonyms noted is “adjoining” which word has been defined in Olmsted v. Schrembs, 30 Ohio App., 430, 165 N. E., 51, as “meaning premises which touch and are' in contact with premises involved * * With this definition in mind, as well as the legal principle that when a restriction in a conveyance is doubtful all doubts should be resolved in favor of the free use thereof for lawful purposes by the owner of the fee, we are compelled to say that the restrictions contained in paragraph 3 of each deed is not for the benefit of all the lot owners in the subdivision, but is only for the--benefit of the adjacent lot owners.

We shall next consider whether there was a general plan for the entire addition, and if so, whether the defendants had notice of the same. We find that the planners of the addition did follow a general plan, the same restrictions appearing in the conveyances to all the lots in the addition with the exception of lots 1, 2 and 3. Since the plat showed that there are approximately 287 lots in the addition, we think the failure to include the restriction in the three aforesaid lots cannot be said to destroy the general plan of the subdivision. This general plan, however, was not noted upon the recorded plat. Had it been, notice thereof would have been imputed to each lot purchaser and he would have been bound thereby. The defendants would also have had notice of the general plan if the deed had provided that the restrictions were for the benefit of all the other lot owners. Kiley v. Hall, 96 Ohio St., 374, 117 N. E., 359, L. R. A. 1918B, 961. But such a provision is not found in any of the deeds. The plaintiffs, therefore, cannot claim equitable relief under the gem eral plan theory because of lack -of notice of the same to the defendants. The plaintiffs have attempted to distinguish the case at- bar from Kiley v. Hall and Lopartkovich v. Rieger, supra, upon the theory that the grantor covenanted and agreed’ to bind ‘ ‘ itself, its successors and assigns” to the same conditions. Had it done so, the plaintiffs-would-be entitled to the relief sought. Wallace v. Clifton Land Co., 92 Ohio St., 349, 110 N. E., 940. But an examination of the covenants fails to support the plaintiff in this proposition, the covenants providing, “* * * and the said grantee, his heirs and assigns as part of the consideration herein, doth hereby agree and covenant with the said grantor, its successors and assigns, for the faithful performance of the following conditions * * These restrictions are clearly unilateral and not bilateral as urged by the plaintiffs. The plotter in no way bound itself to impose the restrictions upon any of the lots it might later convey. This it was not compelled to do.

“If he does not bind himself, then his grantee, having no right of action against him, cannot pursue any other grantee to whom he may subsequently convey the whole or part of the remaining lands.” 21 A. L. R., 1303.

Since the major premise of the plaintiffs’ argument is not supported by the evidence, that the covenant was mutual, his case must also fail. All the authorities ■cited on this question by the plaintiffs are based upon this premise.

Our judgment is in favor, of the defendants.

Judgment for defendants.

Hornbeck and Wiseman,. JJ., concur.


text:
    Hoefler & Stoecklein Co., Appellee, v. Martin et al., Appellants.

      (No. 2050
    Decided August 13, 1949.)

      Messrs. Shaman, Winer & Shulman, for plaintiff appellee.

      Messrs. Estabrooh, Finn & McKee, for defendant appellee.

      Mr. D. H. Wysong, for appellants.
   By the Court.

This cause is submitted on motions of plaintiff-appellee and defendant-appellee to dismiss the appeal on the ground that defendants-appellants failed to file a bill of exceptions, assignment of errors and brief within the time required by supplement to Rule VII of the Courts of. Appeals.

On May 24, 1949, this court dismissed the appeal on questions of law and fact and ordered the case retained for hearing on questions of law, and further-ordered that defendants-appellants be required to file their bill of exceptions, assignment of errors and brief within the time • prescribed by supplement to Rule VII.

The period of time prescribed in supplement to Rule VII having expired, and no bill of exceptions, assignment of errors and brief having been filed, the motion to dismiss the appeal is .sustained.

Motion sustained.

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


author: Matthews, J.

text:
    Carson, Appellant, v. Metropolitan Life Ins. Co., Appellee.
    (No. 7198
    Decided January 23, 1950.)

      Mr. John A. Kiely and Mr. B. Edward Tepe, for appellant.

      Messrs. Marble dé Vordenberg, for appellee.
   Matthews, J.

This is an appeal in an action to recover on provisions for double indemnity in life insurance policies in the event death should result directly and independently of all other causes from bodily injuries caused solely by external, violent, and accidental means. Upon proof of death, the defendant paid the amount due upon death regardless of the cause, leaving only the issue of whether the death resulted from external, violent and accidental means.

At the trial in the Common Pleas Court it developed that there was no dispute that death of the insured was caused by external and violent means. This left the issue whether death had resulted from accidental means.

At the close of the plaintiff’s evidence, the defendant moved for an instructed verdict, which motion was granted by the court. Judgment was entered on this verdict and it is from that judgment that this appeal was taken.

There is substantially no dispute as to the data upon which it is necessary to predicate our determination of whether the insured’s death resulted from accidental means.

In her brief, the plaintiff summarizes the evidence as follows:

“James R. Carson was 28 years of age and married. He had two children, a boy six and a girl five years of age. He had suffered from phlebitis, but had been in good health and had not consulted a physician since Christmas, 1947. He was cheerful and in good spirits. On May 6, 1948, an hour or so before his death, he ate a hearty breakfast of cereal, ham and eggs, and when he left home he promised his little daughter a toy.

‘ ‘ He was the owner and operator of a gasoline service station and auto repair business. There his business was going on as usual and he was his usual cheerful self. Mr. Carson had planned work ahead and had planned a trip over Decoration Day to see his mother. On his arrival there he was jolly with Ballard Lamb, his employee, checked the work to be done and then sent Mr. Lamb after a fan belt for a repair job on hand. Mr. Carson was seated at his desk looking over mail when the helper left the building. Just as Mr. Lamb left the office and was a step from the door, he heard a shot and dashing in, he found Mr. Carson standing, bent over, and holding his chest, with the revolver lying on the floor in front of the desk.

“The revolver, which caused the death, was a 1917 model gun. It would fire if the hammer were struck. It was customarily kept in the lower drawer of the desk. On May 5th, however, a city police patrolman, Howard W. Jackson, had come in uniform to-Mr. Carson’s place of business to work on his own automobile. To give the patrolman a safe place to put his own gun and belt, Mr. Carson had removed his own gun from the bottom drawer and put it in the top drawer. That evening when Patrolman Jackson left Mr. Carson’s gun was not replaced, but remained in the top drawer.

“On May 6th, 1948, after Mr. Carson’s death his father-in-law found in his automobile the toy he had promised his little girl and another for his little boy. ’r

A reading of the bill of exceptions leads to the conclusion that this is a fair summary of the evidence.

The defendant’s summary is much longer. It goes more into detail as to the state of the insured’s health and his financial condition. But certainly the evidence would justify the conclusion that the insured was in reasonably good health, and that while he was not very prosperous financially, there was nothing in the condition of his health or his business that would create a spirit of desperation in a normal man. And certainly there is abundant evidence that the insured was in no such mood, but, on the contrary, was cheerful right along up to the last time he was seen just a few seconds before he received the shot from which he died.

The only fact which we would add to plain tiff’s summary is that these insurance policies were inssued on January 8, 1943, more than five years before insured’s death.

The trial court reached the conclusion that “there has not been a single circumstance in this case that would warrant you in finding that this was an accidental death,” and, for that reason, the motion for an instructed verdict was sustained.

The fatal wound was inflicted when the insured was alone. When he was last seen prior thereto he was seated in a swivel chair in front of his desk engaged in opening his mail. The revolver was in the desk. No one entered the room before the shot was fired. No one saw the insured with the revolver in his hand or saw him take it from the desk drawer or handle it in any way whatsoever. Still we can conclude with certainty that he did handle it, and that as a result of his handling it it was discharged and the bullet was caused to pass through his body. We can say that any contrary conclusion would be so unreasonable that reasonable persons would not differ about it. But that is not enough to exclude liability on these policies as a matter of law. To do so, we must go further and draw the conclusion that the insured intended to discharge the revolver and intended to cause the bullet to penetrate the vital organ or organs of his body in order for the evidence to show that the means of his death was not accidental. Of course, if that was what he did and intended, the means would not be accidental, although the result might conceivably be, and, as these policies created liability not on accidental death, but only on death from accidental means, no liability would result. Stated shortly, can we say, from the acts and intentions shown by the evidence, that the insured intended to and did commit suicide?

From the earliest times, suicide has been condemned. The great religions denounce it as immoral, and in early English law the felo de se forfeited his estate and was given an ignominious burial. That attitude toward self-destruction lingers in ameliorated form in American life today. To hold that the insured committed suicide, we must find that he disregarded this historic interdiction and also the strong instinct for self-preservation which controls most men in the things they do. Without any evidence of what actually happened while the insured was in that room at the time the shot was fired, we do not think we can so hold. There is nothing in the evidence tending to indicate that the insured had formed an intent to commit suicide. An affirmative finding that he intended to kill himself would be unsupported by the evidence. Would a contrary finding be equally lacking in evidential support? We believe not.

This question was under consideration in the case of Mitchell v. Industrial Commission, 135 Ohio St., 110, 19 N. E. (2d), 769. The widow of a night watchman asked compensation for herself and children on account of the death of her husband in the course of his employment. The night watchman died of a bullet wound inflicted at night while he was alone on the premises. The circumstances indicating accidental death were very meager. The Industrial Commission denied compensation. On appeal, a jury found for the plaintiff and judgment was entered thereon. The Court of Appeals affirmed this judgment. The Supreme Court granted a motion to certify, and, on final hearing, affirmed the judgment. The second paragraph of the syllabus of that case, referring to the presumption against suicide, is:

“Such presumption is in the nature of evidence and operates to its fullest extent only where there is no proof as to whether a death, by external and violent means, was accidental or suicidal.”

The court reviewed the decisions in other jurisdictions on the nature of the presumption against suicide and quoted with apparent approval from Provident Life & Accident Ins. Co. v. Prieto, 169 Tenn., 124, 83 S. W. (2d), 251, 103 A. L. R., 191, as follows:

“■‘This presumption is not displaced by-proof of ■circumstances which merely tend in a greater or less ■degree to show suicide, but in such case it is a question for the jury whether they overturn the presumption.’ ”

At page 115, the court said:

“In the instant case the evidence before the .court showed that the instrument with .which the decedent ■came to his death had been furnished by his employer. It was used by him in his work as a night watchman. There was some evidence of disorder and confusion. There was no motive for suicide shown. Mitchell was found in the building which he was required to watch. With such" evidence pointing in the direction of an accidental death, an issue for the jury was presented in the instant case. There was other evidence strongly indicating suicide — the fact that the doors of the building were all locked, that there were four loaded cartridges in the revolver and one empty shell, that the "bullet causing the fatal wound came from the same revolver, that the bullet traveled in an almost horizontal ■direction, and that Mitchell’s body was almost under a wash stand where there was a mirror. All of these ■circumstances, while possessing considerable probative force, nevertheless were not of such a convincing character as to warrant the court taking the issue from ■the jury.”

In Hassay v. Metropolitan Life Ins. Co., 140 Ohio St. 266, 43 N. E. (2d), 229, the facts bear no resemblance to the facts in the case at bar, but the provision of the policies involved in the cases are the same. There were a verdict and a judgment for the defendant. That judgment was affirmed. The court cited Mitchell v. Industrial Commission, supra, with approval, and reiterated the principle of that case in the first paragraph ■of the syllabus, in which, after declaring that the burden rested upon the plaintiff to prove that death re-suited from external, violent, and accidental means, said: “upon a showing of death by external and .violent means, the law raises a presumption that death was accidental and, upon such showing aided by the presumption, a prima facie case for plaintiff is made.”

In Hrybar v. Metropolitan Life Ins. Co., 140 Ohio St., 437, 45 N. E. (2d), 114, a general verdict was returned for the plaintiff in an action on a similar insurance policy. The court instructed the jury that suicide was an affirmative defense, the burden of proving which was on the defendant. On appeal, the Court of Appeals reversed the judgment for this error and entered final judgment for the defendant, based on its conclusion that the defendant’s motion for an instructed verdict should have been sustained. The Supreme Court sustained a motion to certify, and, on final hearing, held with the Court of Appeals as to the burden of proof, but against it as to the ruling on the motion for an instructed verdict. Consequently, the case was remanded to the Common Pleas Court for further proceedings. In reaching that conclusion the Supreme Court simply applied the principles enunciated by it in Hassay v. Metropolitan Life Ins. Co., supra, which it had decided at the same term of court.

Brunny, Admx., v. Prudential Ins. Co. of America, 151 Ohio St., 86, 84 N. E. (2d), 504, did not involve intentional self-destruction. It related to the presumption of death from absence. The similarity of the presumption against suicide caused the court to comment on such cases, including Mitchell v. Industrial Commission, supra. The court found that the evidence was so clear and overwhelming that Brunny was still alive that there was no room for the operation of the presumption of death from absence and, therefore, rendered final judgment for defendant. It held that any presumption from absence- was completely rebutted, and that “reasonable minds could not fairly conclude that the presumption should stand.” There is nothing in the case at bar which would require reasonable minds to conclude that the presumption against suicide should not stand.

This same effect of the presumption against suicide was applied in the recent case of Shepherd v. Midland Mutual Life Ins. Co., 152 Ohio St., 6, 87 N. E. (2d), 156, the sixth paragraph of the syllabus of which is:

‘ ‘ Where it is shown that death resulted from bodily injury caused by violent and external means, there is a presumption that death did not result from suicide, intentional self-infliction of injury, the criminal assault of another, or other nonaccidental means, but that the death was due to accidental means, in the absence of affirmative proof to the contrary.”

For these reasons, we are of the opinion that the plaintiff produced evidence of death by external and violent means and that there was no evidence of non-accidental means of such a nature as to require the court to conclude as a matter of law that the presumption against intentional self-destruction had been neutralized.

Our conclusion is that the court erred in sustaining the defendant’s motion for an instructed verdict at the close of the plaintiff’s evidence, and in entering judgment for it.

The judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

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