author: Montgomery, J.

text:
    Abbott, Appellant, v. Industrial Commission of Ohio, Appellee.
    (No. 693
    — Decided December 13, 1946.)

      Messrs. Graham & Graham and Mr. R. N. Lar rimer, for appellant.

      Mr. Hugh 8. Jenkins, attorney general, Mr. C. G. L. Yearick and Mr. R. Rrooke Allotvay, for appellee.
   Montgomery, J.

The claimant, appellant here, filed •with the Industrial Commission of Ohio a claim for •compensation under the provisions of Section 1465-82, •General Code, on the ground that she was the widow •and dependent of the decedent, Bernard Abbott, who, •concededly, was an employee of an employer amenable to the provisions of the Workmen’s Compensation Act, and was killed in the usual course of his employment.

Rehearing having been granted, the right of the claimant to participate was denied, and from that action of the Industrial Commission an appeal was perfected to the Court of Common Pleas of Muskingum county. The commission defended upon the ground that the claimant was not the widow or a lawful dependent of the decedent. The trial court having rendered judgment for the commission,' defendant below,, this appeal was perfected to this court.

There are three assignments of error: First, that the court did not file, as requested, a separate finding of facts and conclusions of law; second, error in the admission of evidence; and third, that the judgment of the court was manifestly contrary to the weight of the evidence.

It is the common understanding, and the more general practice, that when request is made for a separate finding of facts and conclusions of law, the same shall be clearly stated, and such finding shall be filed and journalized. Such is not the requirement of the statute governing that matter. The section is 11421-2, General Code, which is in the following language:

“When questions of fact are tried by the court,, its findings may be general for the plaintiff or defendant, unless, with a view of excepting to the court’s decision upon questions of law involved in the trial, one of the parties so requests, in which case, the court shall state in writing the conclusions of fact found separately from the conclusions of law.”

The trial court did, in our judgment, sufficiently comply with the requirements of that section in the written opinion which he filed. While the separate conclusions might have been set forth in more concise terms, there can be no question from a reading of that opinion what the court determined, both as to the facts and as to the law.

The case on which claimant relies chiefly to sustain her contention that the filing of an opinion was insuf.ficient is that of Gray v. Field, 19 W. L. B., 121, 10 Dec. Rep., 170, a decision of the Hamilton County District Court, rendered in December 1884. It will be noted that the syllabus, there holding the filing of the opinion insufficient and discussing the opinion, says: “Which ■does not state the conclusions of all the vital facts.” And the court in the course of its opinion, on page 122, .after discussing the state of the record, says: “For if not prejudiced, such en;or is not cause of reversal.”

The first paragraph of the syllabus in the case of Oxford Township v. Columbia, 38 Ohio St., 87, is:

“1. Where a party requests that the court state •separately the conclusions of law and fact under the civil code, Sec. 280 (Rev. Stats. Sec. 5205), and the request is not complied with, a judgment against such party should be reversed, unless it appear from the record that he was not prejudiced by the refusal.”

It is true that the Supreme Court in the much later ■case of Cleveland Produce Co. v. Dennert, 104 Ohio St., 149, 135 N. E., 531, when restating the mandatory •character of the predecessor of the section now under consideration, distinguishes the Oxford Township case, ■Siipra. But in his opinion Chief Justice Marshall says:

“We are of the opinion, however, that section 11470, General Code, does confer a substantial right and that .a denial of that right constitutes such error as should cause this court to reverse the judgment, unless it can be determined by this court without weighing the evidence that plaintiff in error has not been prejudiced. ’ ’

From a reading of the record in the instant case we fail to see how the claimant was prejudiced, even though no finding should have been filed by the trial court. The stipulation' entered into at the beginning of the trial in the lower court recites:

“That the record shall show at the close of plaintiff’s case a motion by defendant for a directed verdict or finding in favor of defendant and that the plaintiff is not entitled to participate in the State Insurance Fund, and in the event of an adverse ruling on said motion, the renewal of said motion at the conclusion of all the evidence. ’ ’

Either one of those motions might well have been sustained. In .order to arrive at the proper decision in this case it was not necessary for the trial court, and it is not necessary for us, to weigh the evidence. The essential facts are not disputed. Therefore, it comes within the qualification laid down by Judge Marshall in the Cleveland Produce Co. case, supra.

Let us consider briefly the facts: More than 50 years ago, and the claimant is conflicting in her statements and does not state clearly the date of it, she, being then, perhaps, 15 years of age, contracted a marriage with a man named Samuel H. Renker in the state ,of Pennsylvania. She lived with him a few weeks in Pennsylvania and in the city of Cleveland, when they were separated, and she has had no contact with him since.

In the year 1902 she began to cohabit with a man in the state of Ohio named William H. Medley, and this continued for 27 years, at the end of which time they separated. The question is whether this ivas a common-law marriage, or simply an illegal cohabitation, which question we will discuss later. It is conceded that there was no divorce between these parties.

On July 29,1939, this claimant married the decedent, Bernard Abbott, and lived with him until September 17, 1940, the date of his death.

During the pendency of the application before the Industrial Commission this claimant brought an action in the Common Pleas Court" of Muskingum county to annul the ancient marriage with Samuel H. Renker, •and, he consenting, the Court of Co'mmon Pleas, with a nonresident judge sitting, entered a.decree of annul■ment.

That proposition is stressed by claimant, but it gives us no concern. Nor are- we concerned with the claim made that an attack upon it is a collateral attack. Obviously, that annulment decree could be of <no effect here, having'been obtained at the time it was obtained, because all rights of the parties hereto, such as may have existed on either side, had matured before that annulment action was brought or the decree obtained. The right to participate in benefits due to the death of Bernard Abbott must be determined as of the date of his death. If her marriage with Renker was valid and subsisting, then her two subsequent performances were illegal and invalid. If the Renker marriage were not subsisting, and she later contracted a common-law marriage with Medley, then she could not claim as a dependent of Abbott. If either of those former marriages was valid and in full force at the time of her marriage to Abbott, she was simply guilty of bigamy •at that time.

We find an interesting case discussing á similar situation in Vaughan v. Dalton-Lard Lumber Co., 119 La., 61, 43 So., 926, a decision of the Supreme Court of Louisiana. The three paragraphs of the syllabus of that case are:

“1, Under article 2315 of the Civil Code of 1870, as ■amended by Act No. 71, p. 94, of 1884, the right to sue for damages for the death of the husband, or for personal injuries suffered by him, is restricted to his lawful wife or widow, and cannot be extended by construction so as to include Ms putative wife by a bigamous marriage. In tbe case at bar both women were living at the time of the death of the husband.

“2. Such statutory right of action, arising after the death of the husband is not one of the civil effects of marriage which inures to the benefit of the putative wife under articles 117 and 118 of the Civil Code.

“3. Article 2315 of the Civil Code, as amended, should be strictly construed, and the exceptional right of action granted therein should be restricted to the classes of persons specially designated as beneficiaries. All classes not expressly included are excluded.”

Was the Renker marriage valid? The general proposition is noted in the case of Evans v. Reynolds, 32 Ohio St., 163, the second paragraph of the syllabus of which is:

“A marriage, solemnized in due form, is presumed to be lawful until some enactment which annuls it is produced and proved by those who deny its validity.” Section 12102-31, General Code, says:

“Every court of this state shall take judicial notice of the statutes of every state, territory and other jurisdiction of the United States.” 1

The law of Pennsylvania as to the issuance of marriage licenses is found in Pennsylvania Laws of 1885, No. 115. It is long, imposes definite and specific obligations upon the clerk of a court issuing a marriage license as to finding out whether there be any impediment thereto, provides that a marriage license shall not issue to persons under 21 years of age without the consent of their parents or guardians, and imposes a penalty upon any clerk issuing such marriage license without such written and verified consent. It does not by its terms invalidate the marriage.

It is the generally accepted and correct rule that, in the construction of the statutes of another state, the construction, if any, placed thereon by the courts of that state shall determine the courts of this state. If there had been no construction of that Pennsylvania statute, or its predecessor, we would construe it to hold that it does not invalidate the marriage. But Pennsylvania courts have spoken. In the year 1856, in the case of Beelman v. Roush, 26 Pa. (2 Casey), 509, the Supreme Court of Pennsylvania in the course of. the opinion on page 511, says:

“It is true that no justice of the peace or minister may marry a minor without the consent of the parent, but that does not affect the validity of the marriage itself, much less of the previous contract between the parties.”

Counsel for the Industrial Commission in their brief call attention to a number of Pennsylvania cases of more recent date to the same effect. They, however, but adhere to the holding in the Beelmcm case, supra. Such holding seems clearly to be the law of Pennsylvania, and, consequently, the law to be applied in Ohio.

Attention is directed to the discussion contained in 32 Ohio Jurisprudence, 269, 270, 271, from which we quote:

“In Ohio, in accordance with the rule prevailing in all jurisdictions, the validity of a marriage is -determined by the law of the place where the contract is entered into. If valid where it is solemnized, it is valid everywhere; if* invalid there, it is invalid elsewhere. * * * The better rule, however, is that capacity or incapacity to marry depends on the law of the place where the marriage is celebrated, and not on that of the domicil of the parties.”

We hold that the claimant’s marriage to Samuel H. Renker was valid, at least, until the time of its annulment by the Common Pleas Court of Muskingum county, and, as heretofore stated, that belated annulment cannot affect the rights of the parties in the instant case. Were we wrong in our conclusion as to the Renter marriage, and if it were -void at the time of the commencement of the relationship with Medley, we would hold that the arrangement was such as to constitute a common-law marriage in Ohio. The evidence ■clearly shows such a condition as to bring it within the latest pronouncement of the Supreme Court as it appears in the case of Markley v. Hudson, 143 Ohio St., 163, 54 N. E. (2d), 304, the first paragraph of the syllabus of which is:

“1. An agreement to marry in praesenti, made by parties competent to contract, accompanied and followed by cohabitation, as husband and wife, with the •result that they are treated and reputed as husband and wife in the community in which they reside, constitutes a common-law marriage.”

That' Marldey case distinguishes the earlier case of In re Estate of Redman, 135 Ohio St., 554, 21 N. E. (2d), 659, because in the Redman case the record showed that the beginning of the relationship between the parties therein involved was simply one of illegal cohabitation.

And in addition to those facts which bring the Medley agreement within the provisions set forth in the Marldey case, there is, then, the significant fact that Medley and this woman did adopt a child in the Probate Court of Coshocton county. They did it as husband and wife, and their application, which both of them signed, sets forth that they were at that time husband and wife.

Referring to the claim of admission of improper evi-° ■dence, so far as the Medley situation is concerned, iit is true that the trial court permitted the asking, and answering, of leading questions while Medley was upon the stand, and that should not have been done, but, regardless of that, none of it was contradicted by this woman. And, in any event, it is not prejudicial, in view of our holding with reference to the Renter marriage.

In our judgment, therefore, there is no question that the Renker marriage was valid, but, even if it were not, then the Medley arrangement constituted a valid common-law marriage, and, in either event, the subsequent marriage of this claimant to Abbott was a bigamous one and invalid, and prohibited her from participating in the fund in question;

The judgment is affirmed.

Judgment affirmed.

Sheriok, P. J., and Putnam, J., concur.


source: Caselaw Access Project

author: Matthews, P. J.

license: Public Domain

text:
    Brawley et al., Appellants, v. Anderson, Appellee.
    (No. 6726
    — Decided January 20, 1947.)

      Mr. Fred L. Hoffman, for appellants.

      Mr. R. E. Simmonds, Jr., for appellee.
   Matthews, P. J.

The plaintiffs alleged that the defendant, assuming to act as the agent for a real estate owner, employed them to find a purchaser for the real estate; that he warranted he had authority to enter into the contract with them; that they relied upon such warranty and found a purchaser who was ready, willing and able to. purchase the real estate at the price fixed by defendant; and that they so notified the defendant and sent to him the purchaser’s written offer, but defendant, instead of submitting the offer to his pretended principal, returned it to them.

The plaintiffs alleged also that the defendant was not authorized to represent the owner and that by reason of his breach of his warranty of his authority, the plaintiffs lost their commission, and have been damaged in the sum of $1,500.

By answer, the defendant, as a first defense, denied that he represented or warranted that he was authorized to make a contract with the plaintiffs on behalf of the real estate owner, and, as a second defense, pleaded a judgment in a prior action between the same parties as an election and estoppel, and, as a third defense, the same judgment was pleaded as res judicata. i

By way of explanatory denial, the plaintiffs replied that the prior action was not on the contract or warranty of the agent of his authority, but was on a contract to sell the real estate and that the court held that no such contract had been entered into.

After the issues were thus made, the court, on the plaintiffs’ motion, ordered that the issues raised by the second and third defenses and the reply thereto be heard before the trial of the first issue.

In accordance with that order, a trial took place at which a jury was waived. We quote the entire bill of exceptions, excepting the formal parts, to wit:

“Counsel for plaintiff and defendant informed the court that they both felt that the matters set forth in the defendant’s second and third defenses should be heard prior to a hearing of the entire ca#e on its merits ; that in the event that the court decided in favor of the defendant on its affinna-(tive) defenses it would eliminate the necessity of an extended hearing of the ease on its merits; thereupon it was stipulated by and between counsel for plaintiffs and defendant that the issues raised by the second and third defenses of the .defendant’s answer should be submitted to the court without the intervention of a jury upon an agreement .that the pleadings and entries made in - case No. A-92071 in the -Hamilton county Common Pleas Court should comprise all the evidence submitted by the plaintiffs and defendant on such issues.

“Thereupon such pleadings and entries were considered as offered in evidence and accepted by the court.

“Such pleadings and entries are attached hereto, made a part hereof, and marked exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10.

“Thereupon both plaintiffs and defendant rested and counsel for the respective parties argued their sides of the case to the court.”

As a result of that trial, the court found on the issues raised by the second and third defenses in favor of the defendant and on that finding entered judgment that the defendant “go hence without day and recover of the plaintiffs his costs.” This appeal is from that judgment.

It will be observed that there was no finding as to the first issue, no waiver of it, and no stipulation as to what judgment should be rendered in the event the court found for the plaintiffs on the issues raised by the second and third defenses. Nor was there an agreement that the final judgment should be made to depend on the finding on the second and third issues.

In 53 American Jurisprudence, 789 et seq., it is stated that:

“Findings as to certain issues may become unnecessary in view of other findings made by the court. Thus, where the finding of a certain fact ■ necessarily controls the judgment, the omission of the court to find on other issues does not constitute reversible error.”

We are, therefore, presented here with the question of whether the second or third defenses, or both, have been proven, and, therefore, bar a recovery, no matter how valid the plaintiffs ’ original claim may have been. If both the second and third defenses- are found to be insufficient in law upon the proof, the judgment must be reversed and the cause remanded for further proceedings according to law.

An examination of the pleadings in the action upon which the second and third defenses of election of remedies and res judicata are predicated discloses that the plaintiffs, in direct and specific language, alleged that the defendants, who were this defendant and the owner of the real estate, “employed the plaintiffs to find a purchaser” for certain described property at a price of $22,500, and agreed that as a commission for finding such a purchaser they could retain all over that sum which the purchaser was willing to pay. And the court in rendering judgment for the defendant, specifically found “that no contract was entered into between the plaintiffs andJhe defendant W. M. Anderson, individually, as alleged in plaintiffs ’ petition. ’ ’

In the petition in the action at bar, the plaintiffs allege that the defendant assumed to act as agent for the property owner in negotiating a contract between them and the property owner, whereby he was to employ them as her agents to find a purchaser for the real estate, but that no such employment resulted because the defendant was not authorized to act for the property owner. The plaintiffs allege1 that the defendant warranted his authority, that they relied upon his assumption of authority, acted upon it, found a purchaser, and were damaged by his breach of his warranty of authority.

It is manifest that the contract sued on in the first action is an entirely different contract from that alleged in this action.

In Norwood v. McDonald, 142 Ohio St., 299, at page 306, 52 N. E. (2d), 67, it is said:

“It is to be observed that ‘in the application of the doctrine of res judicata, if it is doubtful whether- a second action is for the same cause of action as the. first, the test generally applied is to consider the identity of facts essential to their maintenance, or whether the same evidence would sustain both. If the same facts or evidence would sustain both, the two actions are considered the same within the rule that the judgment in the former is a bar to the subsequent action. If, however, the two actions rest upon different states of facts, or if different proofs would be required to sustain the two actions, a judgment in one is no bar to the maintenance of the other.’ 30 American Jurisprudence, 918, Section 174. See, also, 2 Freeman on Judgments (5 Ed.), 1447, Section 687; Bell v. Merrifield, 109 N. Y., 202, 16 N. E., 55, 4 Am. St. Rep., 436; Curtiss v. Crooks, Trustee, 190 Wash., 43, 66 P. (2d), 1140.”

Now in order to recover on the cause of action in the prior case, it was necessary for the plaintiffs to prove that the defendants employed them to secure a purchaser ready, willing and able to buy the real estate from them. In other words, they were required to prove that defendant employed them to find a person with whom he would personally enter into contractual ■relations.

In the case at bar, it is sufficient for a recovery to produce evidence that defendant assumed, without authority to do so, to represent himself as agent for a third person, on whose behalf he employed the plaintiffs to find a purchaser for the third person’s real estate, and that plaintiffs accepted the employment by the third person and found such purchaser.

Now would this proof be sufficient for a recovery in the prior action? It could be sufficient only if as a matter of law an unauthorized agent, by failing to bind his pretended principal, is automatically substituted in the contractual relation and bound by the same terms.

In Comment a under Section 329 of the Restatement of the Law of Agency,,it is stated:

“The rule stated in this section applies irrespective of whether or not the agent is a party to the transaction which he purports to conduct for the principal. His lack of authority does not make him a party to the contract, except when he signs a negotiable instrument. ’ ’

The law of Ohio is in accord with that statement. In Trust Co. v. Floyd, 47 Ohio St., 525, 26 N. E., 110, 21 Am. St. Rep., 846, 12 L. R. A., 346, it was held that the unauthorized agent, although acting in good faith, is personally responsible to those who in ignorance of his want of authority, act upon his assumption of authority. In that case, however, the facts were fully set forth in the petition and there was no necessity to determine the exact basis of the liability. However, the court, at page 540, said:

“The rule, on this subject^ as stated in Story on Agency, is, that an agent cannot be sued on the very instrument itself, as a contracting party, unless there be apt words to charge him. Section 264a. Still another class of cases establish the rule, which we are inclined to adopt, that in cases like the one we are considering, the agent is liable upan his implied promise that he possesses the authority he assumes to have. Smith’s Leading Cases, vol. 2, pt. 1, 408 (eighth ed.,) and cases there cited. Lewis v. Nicholson, 83 Eng. C. L., 512.

“In White v. Madison, supra, in a learned opinion it is held, that the liability of the agent in such cases, rests upon the ground that he warrants his authority, and not that the'contract is to be deemed his own.”

See, also, 1 Ohio Jurisprudence, 798.

In Hagen v. Candler, Inc., 189 Ga., 250; 5 S. E. (2d), 739, 126 A. L. R., 108, in which it was held that a person who assumed to act for a nonexisting person was liable on the contract made in the name of such non-existing person, the court discussed the- distinction between that case and the case of a person assuming to act for another existing person, and, at page 258, said:

“In every contract there is a legal presumption that the parties thereto intend that it shall be an enforceable obligation. This is true whether the principals actually enter into the contract by themselves or through the medium of agents. In eases where the contract is entered into by an agent in the name of an existing principal, there is an additional presumption that the agent intended to bind the principal. For this to be true-, however, it must appear, not only that the contract is entered into in the name of a principal who is in existence, but also that there is nothing in the contract indicating- an intention to bind the agent. Where such appears from the contract, the legal inference is that the principal and not the agent is to be bound. On the contrary, where the contract is entered into by an .agent in the name of a non-existent principal, no such inference is possible; for it would be a legal absurdity to assume that an agent intended to bind a principal who was not in existence. Under such circumstances, the agent having entered into a contract which as a. matter of legal presumption he intends can be enforced, and it being manifestly impossible to enforce the contract against a principal who has no existence, it is assumed that the agent intended that the contract - .should be enforced against him. It therefore appears that the decision of the Court of Appeals in this case is not contrary to the rulings in the cases we have had under discussion.”

See, also, 2 American Jurisprudence, 251.

' In the case at bar there was an existing person for whom it is alleged the defendant assumed to' act and, therefore, the case comes under the Ohio rule, which conforms to the great weight of authority to the effect ■that the agent is not liable on the contract which he .assumes to negotiate for such person, but is liable upon his warranty of authority.

In the first case, the plaintiffs clearly stated a case for liability against the defendant for breach of a ■contract, whereby he personally employed them as real -estate brokers to find a purchaser of real estate. They never departed from that basis of liability. And the •court by its recital in its judgment clearly indicated that the only issue adjudged was whether the defendant had so employed the plaintiffs.

We, therefore, hold that the record offered in proof •of the second and third defenses does not prove either .an election of remedies or res judicata.

For these reasons, the judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

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


author: Miller, J.

text:
    Kohnle et al., Appellees, v. Carey, Appellant.
    (No. 1888
    Decided May 1, 1946.)

      Messrs. Estabrooh, Finn & McKee, for appellees.

      Messrs. Matthews & Altick, for appellant.
   Miller, J.

This is an appeal on questions of law from a judgment rendered in the Common Pleas Court of Montgomery county, Ohio.

The action arose ont of an automobile collision ■wherein the automobile of the plaintiff, Edward L. Kohnle, an appellee herein, was alleged to have been •damaged by the negligence of the defendant, Wilbur Carey, appellant herein, in the operation of his automobile.

Plaintiff Indemnity Insurance Company of North America, the other appellee herein, was awarded .judgment against the defendant for $201.50, beingsubrogated to that extent by virtue of a policy of $25 •deductible collision insurance on the automobile of Kohnle. Kohnle was awarded judgment against the •defendant for $25.'

The case was tried to the court without the intervention of a jury, and, upon request, the trial court separately stated in writing- its conclusions of fact and .law pursuant to Section 11421-2, General Code.

The first assignment of error is that the judgment is not sustained by sufficient evidence of negligence of •defendant.

The trial court found defendant guilty of negligence in one respect only, to wit, that defendant violated the .assured-clear-distance requirement of Section 6307-21, General Code, which states in part:

“(a) No person shall operate a motor vehicle * * * in and upon the streets and highways at a speed greater or less than is reasonable or proper, having- due regard to the traffic, surface and width of the street or highway and of any other conditions then existing, .and no person ¡ shall drive any motor vehicle * * * in .and upon any street or highway at a greater speed than will permit him to bring- it to a stop within the .assured clear distance ahead. ’ ’

It is the contention of the defendant that there is no •evidence in the record supporting that conclusion, but •on the contrary the record is clear that defendant’s lane of travel was open and unobstructed until Mrs. Kohnle made her sudden right turn, after signaling for a left turn, thus reducing defendant’s assured clear distance ahead.

The record discloses that the automobile of Kohnlewas being driven by his wife, Esther B. Kohnle, in a westerly direction on state route 73, which is a two-lane highway divided by a center line. The automobile of the defendant was likewise being 'driven in a westerly direction on state route 73 and in the rear of Kohnle’s car. The trial court found, and we think properly so, that Kohnle’s automobile just prior to the collision was in a position on the highway so that the left front and rear wheels thereof were from two to-three feet left of the center of the road; and that Mrs. Kohnle had her left arm extended to the left in a position near enough to her horizontal to permit an inference on the defendant’s part that she intended to make a left turn. There was a private driveway- on the left and had she intended to make a left turn onto it she could have done so immediately without interfering-with the continued forward movement of defendant’s car on the right hand or north side of the road. However, on the right side of the road there was an entrance to a cemetery. The driver of Kohnle’s car, without giving further warning, attempted to turn into the cemetery and the car was at an approximate 90-degree angle when struck on its right side by the car of the defendant.

The record discloses that the defendant’s automobile was approximately 33 feet from the point of collision when Kohnle’s car made the right turn. The defendant contends that his assured clear distance was suddenly lessened or cut down by the sudden right turn, in other words, Kohnle’s car was.being driven across the defendant’s path when the collision occurred.

The law on “assured clear distance ahead’’ is clearly set forth in Smiley v. Arrow Spring Bed Co., 138 Ohio St., 81, 33 N. E. (2d), 3, 133 A. L. R., 960, the second paragraph of the syllabus of which provides:

“To comply with the assured-clear-distance-ahead provision of Section 12603, General Code, the driver of a motor vehicle must not operate it at a greater speed than will permit him to bring it to a stop within the distance between his motor vehicle and a discernible object obstructing his path or line of travel, unless such assured clear distance ahead is, without his fault, suddenly cut down or lessened by the entrance, within such clear distance ahead and into his path or line of travel, of some obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding therewith..”

The doctrine is well established^ that a sudden and unexpected entry into the path of travel will take a case out of the assured-clear-distance statute. We so held in the cases of Reeves v. Joe O. Frank Co., 76 Ohio App., 1, 62 N. E. (2d), 886, and Proctor v. White, 22 Ohio Law Abs., 115.

The question in this case the answer to which is determinative is whether Kohnle’s automobile suddenly entered the path or line of travel of the car of the defendant.

State route 73, as stated previously, is a two-lane highway divided by a center line. The • lane on the left of the center of the highway was the path or line of travel of ears moving in an easterly direction, and the lane to the right of the center of the highway was the path or line of travel for cars moving in a westerly direction. To avoid the operation of the assured-clear-distance rule it is essential that the object in question enter the path or line of travel. Kohnle’s car, however, never left the westerly path. Its left wheels may have been somewhat over the center line of the highway by approximately two or three feet, but in part,, at least, it remained in the path or line of travel of the defendant’s car. One cannot be said to enter a space which one has never left. The vital importance of this element of unexpected entry into the path or line of travel was stressed by this court in the Reeves caser supra. There the court said, in discussing the rule announced in the Smiley case:

“In applying the rule laid down here it is of vital importance whether the truck was parked on the main portion of the traveled highway or whether it was parked completely on the berm and then started up and cut across the highway in front of the plaintiff. If the latter was the case, then the assured-clear-distance rule would not apply and there would be no violation of Section 6307-21, General Code, by the plaintiff. ’ ’

The language there used, we think, plainly implies “if the former was the case, then the assured-clear-distance rule would apply.”

Counsel for defendant have cited numerous other cases which involve such fact patterns as intersection collisions, a car coming into the highway from a filling; station, a car coming into the highway from a private driveway, and the like. Those cases throw no light on the point involved here and accordingly are not discussed further.

It is our conclusion that the two cars involved in the instant case were traveling in the same path or line of travel, and that the trial court did not err in finding that defendant violated Section 6307-21, General Code.

The second assignment of error is that the judgment is not sustained by sufficient evidence of damages. The only evidence as to damages was that offered ’by Kohnle, who testified in one instance, after doing some figuring, as follows: " .

“Well I know that' I cofisidered that car, age and everything considered, would be worth at least $900 before the accident; and I know darn well afterwards it wasn’t worth much more than $673.50.

“Q. All right. And I believe you testified that you paid the Albert and Harry garage $224.50? A. Paid the Albert and Harry garage $224.50. And there was an extra charge of $2 by the Franklin garage to get the car fixed so we could drive it back to Dayton. ’ ’

On cross-examination of. Kohnle he testified as follows:

“Q. Are you familiar with values of 1939 Oldsmobile sedans? A. Yes, in a way I am; for tax purposes; and I always looked it up at that time, and I just recall —either yes or no, I can’t say that I know definitely the exact dollar-and-cent value of the car at that time:

“Q. You figured it out to the exact cent a little while ago, didn’t you? A. I took a value that I had been using.

“Q. Well, thpn, you didn’t give us the value of that car on the open market immediately before the accident, did you? A. No.

“Q. You picked some arbitrary figure that you had been using for tax purposes and gave that to us as the value of that car before the accident, is that right? A. Yes.

“Q. And then when you arrived at this figure for the value of the car after the collision you based that solely on the amount of the repair estimate, did you not? A. Yes, I.did; and I think that is very fair because the car wasn’t worth nothing after that accident.

• “Q. Mr. Kohnle, we aren’t interested' in thoughts here, see; we are just trying to get the facts. That is what you did? A. That was the only way I had to do it, yes.

“Q. That was the only way you had to do it. You are not an expert on the value of wrecked automobiles, are you? A. No.

“Q. And you have no idea of the value of a wrecked car; you can’t give an expert opinion on the value of a wrecked car merely by looking at the car after the accident, can you? A. No.”

From this testimony we are of the opinion that there was sufficient evidence of damages to sustain the judgment of the trial court. It is true that the measure of damages is the difference in value immediately before and immediately after the accident; the cost of repairs is evidence of damages.

In 13 Ohio Jurisprudence, 139, Section 64, we find this statement:

“Although the general rule for the measure of damages for an injury to personal property by the tort of another is the difference in tihe market value of the property immediately before and immediately' after the injury, the cost of repairs may be shown, as shedding light upon the extent of the damage * *

The testimony of Kohnle as to the value before and after the accident was admissible even though he admitted on cross-examination that he was not an expert on the value of wrecked cars. 17 Ohio Jurisprudence, 473, Section 379, states:

“It is established in Ohio that the owner of personal property, because of such ownership, has a sufficient knowledge of its value to be qualified to give an opinion thereon which will be some evidence of the actual value, though not conclusive.”

The doctrine here announced was recently confirmed in the case of Bishop v. East Ohio Gas Co., 143 Ohio St., 541, 56 N. E. (2d), 164.

We find no error in the record and the judgment is affirmed.

Judgment affirmed.

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


author: Ross, J.

text:
    Aetna Ins. Co., Appellant, v. Railway Express Agency, Inc., et al., Appellees.
    (No. 6732
    — Decided February 24, 1947.)

      Messrs. Dolle, O’Donnell & Cash, for appellant.

      Messrs. Gray don, Head & Ritchey, for appellees.
   Ross, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Hamilton county, in favor of the plaintiff for an amount limited by the provisions of an express receipt.

The plaintiff claims the limitation in such receipt is inapplicable in favor of the defendant railroads and that the trial court should have rendered judgment for the full amount of the loss suffered by the plaintiff’s ,assured.

The merchandise which was destroyed was consigned to the plaintiff’s assured via Railway- Express Agency, Inc., a duly accredited agent for the two railroad defendants.

, The case was submitted to the trial court upon, the pleadings and agreed statement of facts.

The plaintiff, an insurance company, paid to the Wright Aeronautical Corporation the full amount of the loss to a shipment sustained when such shipment of aeroplane parts' was damaged through the admitted negligence of the New York Central Railroad Company in the operation of one of its trains. The plaintiff became subrogated to the claim of the assured against the railroad company by virtue of an assignment.

The shipment was placed in a baggage car of the New York Central Railroad Company by employees of the express agency, and was thereafter at all times in the continuous physical custody of the express agency employees. The train, including the baggage car- was operated over the tracks of the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company, and that was the only connection of that railroad with the facts herein involved.

The railroads are required by law to furnish express facilities for the benefit and use of- the public.

The defendant New York Central Railroad Company, with other railroads, acquired property owned by the American Railway Express Company, formed the Railway Express Agency, Inc., and designated such agency as the agent of such railroads to perform their duties incident to carriage of express shipments. The agency filed tariffs with the Interstate Commerce Commission, showing fates and charges for the- carriage of goods by express..

In unloading the shipment from the baggage car, it became necessary to put the shipment* upon a hand truck, placed on the tracks of. the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company, and while such truck, upon which a part of such shipment was placed, was so located, it was negligently struck by a train operated by the New York Central Railroad Company, and the portion of the express shipment so unloaded thereon was damaged. ‘

The reasonable value of the property so damaged amounted to $7,091.81.

Under the terms of the uniform express receipts, the limit of liability of the Railway Express Agency, Inc., and all carriers handling the shipment for any loss and damage to the shipment involved, was $1,322.

The plaintiff, as assignee of the claims of the consignee, claims the full amount of the loss from the railroads, upon the theory that the limitation applying to the agency is inapplicable to excuse the railroads from liability due to the negligence of the New York Central Railroad Company.

The extent of liability depends upon the language of the express receipt, which contained the _f olio wing:

“1. The provisions of this receipt shall inure to the benefit of and be binding upon the consignor, the consignee, and all carriers handling this shipment and shall apply to any reconsignment, or return thereof.

“2. In consideration of the rate charged for carry"iiig said property, which is dependent upon the value thereof and is based upon an agreed valuation of not exceeding fifty .dollars for any shipment of 100 pounds or less and not exceeding fifty cents per pound, actual weight, for any shipment in excess of 100 pounds, unless a greater value is declared at the time of shipment, the shipper agrees that the company shall not be liable in any event for more than fifty dollars for any shipment of 100 pounds or less, or for more than fifty cents per pound, actual weight, for any shipment weighing more than 100 pounds, unless a greater value is stated herein. Unless a greater value is declared and stated herein- the shipper agrees that the value of the shipment is as last above set out and that the liability of the company shall in no event exceed such value.”

The claim of the plaintiff is that the railroads did not handle the shipment and,- hence, cannot avail themselves of the limitation of liability, although as to the express agency the provision is admittedly a valid limitation of liability.

In so contending the plaintiff limits the meaning of the word “handling” to its narrowest sense, to wit, to actual physical contact with the shipment itself. It is the contention of plaintiff that in order to apply the limitation to the railroads their employees must have had physical contact with the various items of the shipment in loading, transportation, or unloading, and that the mere operation of the train in which the baggage car was located is insufficient to justify the claim of the railroads that they handled the shipment.

The effect of this construction of the express, receipt, maintained by the plaintiff, is to limit the operation of the limitation contained in sucfi receipt to the agent of the railroads.

If such railroads, in carrying out the duty imposed upon them by law to carry express shipments, had not employed a joint agency, and a contract of limitation had been agreed to directly by the railroads and the shipper, there could be no question that such limitation would have applied.

, Is such limitation less forceful in favor of the railroads because executed through this joint agency? There seems no logical reason to so conclude.

The employees of the railroad agency were actually physically handling .the shipment” when employees of the railroad negligently operating other facilities of the railroad caused damage to such shipment. Obviously, the contract of limitation was not entered into by the express agency merely to limit its liability as an agent of the railroads, but in order that the liability of its principals should also be limited:

If the express agency is an entirely separate entity and not (as it is) a joint agent of the railroads, then the railroads are not carrying out the duty imposed upon them by law to carry express shipments.

The railroads share in the profits and losses of the express agency. If a lower rate is accepted by their agency for a shipment by reason of the limitation of liability, then the railroads receive a smaller return for the services rendered through their agency and their own employees in hauling the cars that contain the shipment, which reached its destination through the joint efforts of persons directly employed by the railroads and indirectly employe^ by the railroads through their agency.

Article II of the contract between the railroads and the agency provides in part:

“Sec. 1. The .rail company hereby constitutes and appoints the express company its exclusive ageixt (a) for the conduct and transaction of the express transportation business, including the off line auxiliary service (commonly known and referred to as pick-up and deliver), upon such passenger, express or mail trains of the rail company as may be agreed to, over the main •lines, branches and extensions of all railroads now or hereafter, during the continuance- of this agreement, owned or leased, and operated by the rail company,

It seems clear, therefore, that the “handling” of the shipment by the employees of the agency was a “handling” by the railroads, through the employees of their duly constituted agent, and that the contract executed by tbe. agency would bind tbe railroads, the shipper, and consignee.

However, even if it be claimed the contract applied only to those employees of the agency “handling” the shipment, the position of the plaintiff cannot be sustained.

Both shipper and consignee knéw that a shipment by express requires that the car into which the shipment is placed must be transported from the point of shipment to the point of delivery over the rails of some railroad, that the car in which the shipment is placed will become part of a train which will be drawn by a locomotive over the rails of a railroad, and that engineers, firemen, conductors, brakemen, switch-men, telegraph operators, and many other employees of the railroad will cooperate with the baggage and express men in seeing that such shipment arrives at its destination. To say that only the few employees who are actually physically in direct contact with the packages or items of the shipment handle it is to place a strained construction upon the word “handling” so narrow in meaning that it cannot be reasonably supposed the parties to the agreement intended such construction.

Of course, the word “handling” has been construed to have different «connotations, varying with the environment in which it is framed. See 19 Words and Phrases (Permanent Ed.), 52 et seq. See, also, John J. Sesnon Co. v. United States, 182 F., 573, 577.

The Shorter Oxford English Dictionary defines handling: “The action of handle * * * (2) treatment— management. ’ ’

Undgr. the word “Handle” there appears “(3) To manage, direct, conduct, control.”

Webster’s New International Dictionary (1945) defines the word as “(1) A touching, controlling, managing, using, dealing with, etc., with the hand or hands, or as with the hands.”

The word “handle” is defined “ (5) To manage, control, direct, as he handled his regiment finely.”

It is a matter of common knowledge that the use of this word as applied to freight or express shipments implies the control, direction and movement of such freight or express shipment from point of receipt to point of destination. Such is the commonly accepted meaning of the term and it is inconceivable that any person familiar with such shipments would limit the meaning of the word to actual physical contact with the shipment.

For these reasons, the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

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


author: By the Court.

text:
    New York Central Rd. Co., Appellant, v. Karl Kiefer Machine Co., Appellee.
    (No. 6744
    — Decided January 6, 1947.)

      Messrs. Harmon, Colston, Goldsmith é Hoadly, Mr. Henry B. Street and Mr. Edward G. Weber, Jr., for appellant.

      Mr. Jerome Goldman and Mr. A. Julius Freiberg, for appellee.
   By the Court.

This is an appeal from a judgment for the defendant in an action in which the plaintiff, a common carrier of freight, sought to recover a charge for demurrage on a shipment of steel bars from Cleveland to Cincinnati.

One of the essential elements of the plaintiff’s case was compliance with that provision of the rules of the Public Utilities Commission of Ohio requiring thát “notice shall be sent or given consignee * * * in. writing * * * within 24 hours (one day) after arrival of shipment and billing at destination, such notice to specify point of shipment and commodity. When the' address of the consignee does not appear on billing and is not known, notice of arrival must be deposited in the United States mail bearing return address, same to be preserved on file if returned.” It is concedéd that demurrage would not begin to" run until such compliance.

The parties do not agree on the meaning of that rule. The plaintiff contends that depositing the notice in the United States mail, properly addressed, is a compliance. The defendant, while conceding that the deposit of the notice in the mail, properly addressed, raises an inference or presumption that the notice was actually delivered to the defendant, contends, nevertheless, that actual delivery is required and that before plaintiff can recover, there must be a finding of actual delivery.

However, we find that it is not necessary to the decision of this, case that we resolve this dispute as to the meaning of the rule.

The plaintiff concedes that the burden was upon it to prove the mailing of the notice of arrival. The burden of persuading the trier of the facts that the notice had been properly mailed never shifted, and.the plaintiff failed to persuade the trial court that it had mailed the notice.

At the request of the plaintiff the trial court made separate findings of facts and conclusions of law, and in its findings of facts it did not find that the notice had been mailed. No finding was made, on that issue and facts not found are presumed not to exist. James v. West, Admr., 67 Ohio St., 28, 65 N. E., 156. The findings are, therefore, insufficient to support a judgment for plaintiff upon plaintiff’s own interpretation of the rule respecting notice or the mailing of notice. *

We have before us, however, not only the findings of fact, but also the evidence upon which they were based. We can, therefore, test the findings in determining what judgment to render. We have done this and have reached the conclusion that the evidence justifies the findings. There are many circumstances shown in the evidence which cast doubt on the testimony of the plaintiff’s witness that he mailed the notice. Certainly, the court was not required under the circumstances to accep(t such testimony as conclusive; As the burden was on the plaintiff the court could not find that the notice had been mailed unless it could say that on the evidence it was more probable that it had been mailed than that it had not been. If the evidence was equally balanced, it could not make an affirmative finding— and that is in substance what the court did.

We find no prejudicial error in the record, and the judgment is affirmed,

Jtidgment affirmed.

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


text:
    Scott, Appellant, v. Cismadi et al., Appellees.
    (No. 6720
    — Decided March 24, 1947.)

      Mr. Fred L. Hoffman, for appellant.

      Mr. Robert G. McIntosh, Mr. Chester 8. Burr and Mr. Peter J. McCarthy, Jr., for appellees.
   Ross, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton county. A motion for an instructed verdict in favor of the defendant, Anna Cismadi, administratrix of the estate of Tony Cismadi, was sustained at the close of the plaintiff’s opening statement. The trial resulted'in a verdict for the other defendants, Prank H. Cismadi and Anna Cismadi. Judgment was entered accordingly.

The plaintiff alleges in her amended petition that the defendant Frank H. Cismadi on the 17th of November 1944, at about 9 p. m., so negligently operated an automobile that it struck the plaintiff as she was attempting to cross from the southwest .corner of Madison road and Woodburn avenue to the northwest corner of such intersection; that she was on a crosswalk when she was so struck and had started to cross-Madison road upon a green light; and that she-slipped and fell, and before she could reach the northwest corner of the intersection the light changed to red against her.

She alleges further that the injuries which she received by being so struck were the proximate result, of the negligénce of Frank Cismadi, in that he operated such vehicle without having it under proper control, at a speed of 20 miles per hour, which was greater than would permit him to stop within the assured clear distance ahead, and which was a menace to the life and limb of the plaintiff; that he failed to yield the right of way to plaintiff upon such crosswalk; that he failed to use ordinary care in the operation of such vehicle; that he ‘ ‘ drove his car into this plaintiff, who was upon the crosswalk, after he saw or should have seen her in the exercise of ordinary care ’ ’; that he failed to keep a proper lookout; and that in the operation of such vehicle at such time and place he violated the provisions of four ordinances of the city of Cincinnati, containing provisions applicable to reckless driving, speed, right of way of pedestrians, and passing vehicles stopped on crosswalk.

Plaintiff alleges further that such vehicle was ■ owned by one Tony Cismadi; that such vehicle was operated as set forth above- with the authority of defendant Tony Cismadi; that Tony Cismadi has since deceased and Anna Cismadi is the duly appointed and •qualified administratrix of his estate. Plaintiff alleges further an ordinance of the city of Cincinnati providing that “The violation of any Section or provision of the Traffic Code by means of a motor vehicle shall be prima facie evidence that such violation was committed by or with the authority or permission of the owner of such vehicle.” Plaintiff alleges further that Anna Cismadi signed the application of the defendant Frank Cismadi for !án operator’s license, which defendant was then 16 years of age, and that his negligence is, therefore, imputed to her.

Frank H. Cismadi in his answer filed a general denial, and alleged that the plaintiff, without warning of any kind, jumped from or in front of a car moving parallel to his, into and against the front part of his automobile. This the plaintiff denied. Anna Cismadi, in her personal and representative capacities, filed general denials.

From the evidence it appears that the plaintiff left the curb at the southwest corner of Madison road and Woodburn avenue in the city of Cincinnati and started to cross Madison road upon or near a crosswalk, when the green light was in her favor, that she slipped and fell during the crossing and that before she could reach the northwest corner of such streets, she was struck by or ran into the automobile driven by Frank H. Cismadi who had stopped his automobile on the •east side of Woodburn avenue and started westwardly .across Madison road upon the green light turning in his favor. Another automobile immediately S9uth of his vehicle on Madison road was also waiting for the light. Both vehicles started forward when the light •changed to green, the south car slightly in advance of that driven by Cismadi. The operator of the other car- avoided striking the plaintiff only by suddenly ¿swerving his vehicle, after warning from a passenger riding with him, and the plaintiff then sprang into the path of the automobile driven by Cismadi, and ran into it or was struck by it.

The plaintiff attached two interrogatories to her amended petition, which interrogatories were answered by Frank H. Cismadi: (1) “Where was the plaintiff when you first saw her?” Answer: “When I first saw Dorothy Scott she was jumping from or in front of ail'automobile proceeding west in the westbound traffic lane next to the center line of Victory Parkway (Madison road) at or near the intersection of Victory Parkway and Woodburn avenue into and against the front part of my automobile' which I was driving west in the second west bound, traffic lane on Victory Parkway.”

(2) “Did you yield the right of way to the plaintiff?” Answer: “Dorothy Scott did not have the right of way. ’ ’

The evidence was in conflict upon the issues thus presented. There was substantial evidence sustaining the verdicts in favor of defendants.

The plaintiff presents eight assignments of error. These are disposed of as follows:

(1) The first deals with the instructed verdict in • favor of Anna Cismadi as administratrix of the estate of Tony Cismadi, deceased, and is based upon the fact the decedent owned the automobile causing plaintiff’s injuries, the authority given Frank H. Cismadi to drive it, and the ordinance quoted in plaintiff’s amended petition.

The trial court committed no error prejudicial to plaintiff in so instructing a verdict for the administratrix.

(2) The plaintiff claims the trial court committed error in refusing to submit to the jury nine interrogatories which were in writing and separately tendered by the plaintiff.

The interrogatories so considered are as follows:

(.a) “Did the plaintiff start across Madison road ■on a green light?”

(b) “Did the plaintiff start to cross Madison road ■before the defendant Frank Cismadi entered the intersection?”

(c) “Did the light change while the plaintiff was ■crossing Madison road?”

(d) “Did the defendant Frank Cismadi ascertain whether there were any pedestrians on the crosswalk before driving his car into 'the intersection?”

(e) “Did the defendant Frank ,H. Cismadi as he •drove, west on Madison road at the time and place in ■question-keep a proper lookout for pedestrians using Madison road?” ,

(f) “Did the defendant Frank H. Cismadi yield the right of way to the plaintiff?”

(g) “Did the defendant Frank H. Cismadi blow his horn or give any warning signal to the plaintiff?”

(h) “Was the defendant Frank H. Cismadi operating his automobile with due regard for the safety and .rights of pedestrians at the time it struck the plaintiff?”

(i) “Was the plaintiff injured as the result of being ■struck by an automobile the defendant Frank Cis:madi was operating?”

Section 11420-17, General Code, provides:

“When either party requests it, the court shall instruct the jurors, if they Lender a general verdict, specially to find upon particular questions of fact, to be •stated in writing, and shall direct a written finding thereon. The verdict and finding must be entered on the journal and filed with the clerk.”

Section 11420-18, General Code, provides:

“When a special finding of facts is inconsistent with the general verdict, the, former shall control the latter, ■and the court may give judgment accordingly.”

It is often not possible for a party in one interrogatory to require an answer which will dispose of all or even one of the issues presented. On the contrary, “each interrogatory submitted to a jury for answer should be limited to a single, direct and controverted issue of fact and should be so stated that the answer will necessarily be positive, direct and intelligible.” Elio v. Akron Transportation Co., 147 Ohio St., 363, 71 N. E. (2d), 707.

For instance, the answer to an interrogatory may show negligence, but not that such negligence is the proximate cause of injury. An interrogatory may even be directed to specific acts of negligence. Masters v. New York Central Rd. Co., 147 Ohio St., 293, 298, 70 N. E. (2d), 898; Davison v. Flowers, 123 Ohio St., 89, 174 N. E., 137.

It is not necessary that an interrogatory require an answer containing an ultimate fact, if the answer required will establish a probative fact from which such ultimate fact as a matter of law must be inferred. 39 Ohio Jurisprudence, 1160.

The third paragraph of the syllabus in Gale v. Priddy, 66 Ohio St., 400, 64 N. E., 437, is:

“The trial court should exercise with great deliberation and caution the power of withdrawing or refusing to submit questions propounded; and although the questions must be such that the answers thereto will establish ultimate and determinative facts, and not such as are only of a probative character; yet questions the answers to which establish probative facts from which an ultimate material fact may be inferred as a matter of law, should be allowed. Schweinfurth, Admr., etc., v. Railway Co., 60 Ohio St., 215, explained and qualified. The Cleveland & Elyria Electric R. R. Co. v. Hawkins, 64 Ohio St., 391, approved and followed.” . '

And, again, in the second paragraph of the syllabus in Mellon, Dir. Genl. of Rds., v. Weber, 115 Ohio St., 91, 152 N. E., 753, it is stated:

“Section 11463, General Code, requiring the court, on the request of either party, to instruct the jurors, if they render a general verdict, specially to find upon particular questions of fact stated in writing, and to render written findings thereon, is mandatory in character, provided such questions require answers which establish probative facts from which an ultimate material fact may be inferred as a matter of law. A refusal to submit such an interrogatory to the jury, when properly requested, for an answer thereto in the event a general verdict is rendered, is prejudicial error. ’ ’

The general purpose of interrogatories is well stated in the second paragraph of the syllabus in Cleveland & Elyria Electric Rd. Co. v. Hawkins, 64 Ohio St., 391, 60 N. E., 558:

“The purpose of section 5201 of the Revised Statutes is to elicit from the jury such special findings, of fact as will test the correctness of the general verdict, if' a general verdict is returned; and it requires the court, upon request, to direct answers to be returned to such questions, stated in writing, as will elicit from the jury a finding of any fact whose legal effect may be, when considered with other facts admitted or to be found, to show whether or not the general verdict results from an erroneous application of the law; but it does not require the submission to the jury of questions whose purpose is only to ascertain the mental processes by which the jury may arrive at conclusions of fact.”

The problem then presented by this assignment of error/is whether any one or all of the interrogatories refused by the trial court required answers which would have' established the absence or existence of (1) ultimate facts affecting the issues involved; (2) probative facts from which the absence or existence of relevant ultimate facts must be, as a matter of law, inferred, and (3) which in the' aggregate or with facts admitted or to tie found will show .whether the general verdict results from an erroneous application of the law.

It is not always easy to determine what are ultimate and what are probative facts, and some attention to the attempts of courts to define those terms is required.

Ultimate facts lie in the area, between evidence and a conclusion of law. They are the essential and determining facts on which the final conclusion of law is predicated. They are deduced by inference from evidentiary facts which can be directly established by testimony or evidence.

Ultimate facts are those facts which may be pleaded establishing- the existence of a legal right, the violation of a legal right, or a legal defense to a cause of action based theréon. Ultimate facts are the logical results of the proofs or evidence. They are conclusions of facts, the final resulting effect of which is reached by the processes of logical reasoning from evidentiary facts. An 'ultimate fact may be and often is the result of an inference drawn from more than one evidentiary fact.

See 34 Words and Phrases (Perm. Ed.), 6 et seq.

Coming now to examine the interrogatories in detail, it is impossible to tell from the general verdict whether the jury found the defendant Frank H. Cismadi free of negligence, that he was guilty of negligence, but that such negligence was not the proximate cause of the plaintiff’s injuries, or that the plaintiff was'guilty of contributory negligence, which was the proximate cause or a contributing cause of her injuries.

Let it be supposed that tbe jury found, in answer to tbe interrogatories submitted, that the plaintiff started across Madison road on a green light (as far as any interrogatory is concerned, she may have attempted to do so in the middle of the block) before the defendant Frank H. Cismadi entered the intersection, and the light changed while plaintiff was crossing Madison road (where?); that such defendant did not ascertain" whether there were any pedestrians on the crosswalk (which crosswalk is not stated) before driving his car into the intersection; that he did not keep a proper lookout for pedestrians using Madison road (on crosswalks or wandering about the street or on the sidewalk?) ; that he did not yield the right of way to plaintiff (where?); that he was not operating his automobile with due regard for the safety and rights of pedestrians (which would call for a conclusion of law as well as fact); and that plaintiff was struck by the' automobile operated by such defendant. Under such state of facts would the trial court have been bound to enter judgment against the verdict? And if not, what purpose could the interrogatories serve except to give the plaintiff information as to the jury’s conclusion upon certain details of the proof.

All' the interrogatories w^ere properly refused, and especially those which called for conclusions of law or mixed conclusions of law and fact. Mason Tire & Rubber Co. v. Lansinger, 108 Ohio St., 377, 382, 140 N. E., 770.

As stated hereinbefore, a party is not required to and should not attempt to cover all the issues in one interrogatory, but it is obviously necessary that the interrogatories submitted must either separately or in the aggregate require answers from the jury which, upon examination, if found favorable to the proponent and contrary to the verdict, will permit the court thus' to test the verdict and comply with the provisions of Section 11420-18, General Code..

All the interrogatories, giving them the most liberal construction, if answered in .favor of the plaintiff, would not have presented a" situation calling for the application of Section 11420-18, General Code. Such being the case, they could serve no lawful purpose. They could only furnish a basis for concluding that the jury in its mental processes gave credence to certain evidence and refused it to other evidence. That is not a purpose justifying the submission of interrogatories recognized by law. See Cleveland & Elyria Electric Rd. Co. v. Hawkins, supra.

(3) It is claimed that the trial court committed error in the general charge.

(a) Failing to state the issues to the jury.

The record fails to sustain this contention of the plaintiff.

(b) Failing to charge upon specific matters requested by plaintiff.

There was in response to the request of the court for suggestions from counsel only the statement of plaintiff that “Thq only thing the plaintiff wishes to call attention to charge on the matters contained in the special charges which the plaintiff presented to the court and the court refused.”

No error, prejudicial to plaintiff, appears in the failure of the court to further charge upon such a request.

(c) No error, prejudicial to plaintiff appears in the charge on contributory negligence, considering all the law on this subject given to the jury.

(d) No error appears, prejudicial to plaintiff, upon the charge upon the assured-clear-distance-ahead rule, considering all the law given to the jury.

(e) No error, prejudicial to the plaintiff, appears in the entire charge of the court, both general and special, upon the subject of traffic lights.

(4) T\ie court committed no error, prejudicial to, the plaintiff, in refusing the special charges tendered by plaintiff.

(5) The court committed no error, prejudicial to the plaintiff, in giving the charges submitted by the defendants.

(6, 7) No error, prejudicial to the plaintiff, appears in the action of the trial court considered in these assignments of error, involving the weight of the evidence and motion for new trial.

(8) No error, prejudicial to plaintiff, appears in the record.

The judgment is affirmed.

Judgment affirmed. ■

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


author: Miller, J. By the Court.

text:
    Spanable, Appellant, v. The New York Central Rd. Co., Appellee.
    (No. 3879
    — Decided September 23, 1946.)

      Mr. R. N. Larrimer, and Mr. John M. Collins, for appellant.

      Messrs. Wilson <& Rector, for appellee.
   Miller, J.

This is an appeal on questions of law from a judgment of the. Common Pleas Court of Franklin county. The action was one for damages for personal injuries, the amended petition alleging that on April 7, 1944, the plaintiff was a passenger on a train being operated by the defendant in and through the state of Ohio; and that the train was derailed and as a result thereof plaintiff suffered certain injuries.

In its answer the defendant pleaded the general .issue and as a second defense, that the plaintiff, prior to the accident, for a valuable consideration, had executed in writing a full and complete release to the defendant for all claims, demands and causes of action whatsoever on account of the matters set forth in the amended petition.

At the conclusion of the'plaintiff’s case the'defendant’s motion for a directed verdict was sustained on the ground that the second defense, having been established by the evidence, barred the plaintiff’s recovery.

The record discloses that on the date alleged in the. amended petitipn the plaintiff was a passenger on a train being operated by the defendant in this state and that the plaintiff was en route from Dayton to Columbus. While so traveling, the locomotive ran into an open switch, derailing the train and causing some injuries to the plaintiff. The plaintiff was riding on a free or gratuitous pass, she being the wife of a New York Central Railroad engineer who had applied for and received the pass issued by the defendant under authority of an act of the Congress of the United States known as the Hepburn Act, an amendment to the Interstate Commerce Act. That amendment limited free transportation to certain designated individuals, including members of employees’ families. The plaintiff’s pass contained the following agreement:

“In consideration of receiving this free pass each of the persons named thereon using the same voluntarily assumes all risk of accidents and expressly agrees that the company shall hot be liable, under any circumstances whether of negligence of itself, its agents, or otherwise, for any injury to his or her person, or for any loss or injury to his or her property; and that, as for him or her in the use of this pass, he or she will not consider the company as a common carrier or liable to him or her as such. And as a condition precedent to the issuing and use thereof, each of the persons named on the face of this pass states that he or she is not prohibited by law from receiving free transportation, and that the pass will be lawfully used. If presented-by any' other than the person named thereon the conductor will take up this pass and collect fare. Transferring of a pass by an employee will be cause for dismissal. Holder required to be identified on request of conductor. ”

Plaintiff executed the. above quoted agreement as follows:

“I agree to the above conditions.”'

(Signed) “Mrs. F. E. Spanable.”

The signing of that agreement by the plaintiff was witnessed by C. J. Jones, conductor, who also signed it. The pass is in the bill of exceptions as defendant’s exhibit A.

In the brief the plaintiff urges that she thought she was signing- a receipt to show that she had used the pass and that she did not»know it was to be considered as a release. However, there is nothing in the record to support that argument. The record shows only that it was stipulated by the plaintiff’s attorney that she had signed the release in the presence of the defendant’s conductor who also signed the pass, and that the execution of the agreement was prior to the injury complained of.

By agreement-of plaintiff’s attorney defendant’s exhibit A, the pass, was introduced in evidence out of order, and thereupon defendant’s motion for a directed verdict was submitted to the court, which motion was sustained, the court finding that the plaintiff’s acceptance of the pass conditions was a complete defense.

The errors assigned all relate to that ruling of the court.

The question for our consideration, therefore, involves the validity of the agreement entered into by the plaintiff when she accepted and used the gratuitous pass providing for free, transportation from Dayton to Columbus, Ohio. It is undisputed that the plaintiff was sui juris and responsible and, therefore, bound by any contract she might execute.

The question is one of first, impression in this state. The plaintiff has made reference to several Ohio cases, none of which is identical to the case at bar. The first is that of Graham & Co. v. Davis & Co., 4 Ohio St., 362, 62 Am. Dec., 285, which involved the carriage of goods by river steamboat. The court held that the steamboat company, a common carrier, could limit its liability fox-loss of goods, arising fx;om causes over which it had no control, by special contract, but not as to losses oecasioxxed by its own. negligexxce. The distinguishing feature between that case and -this one is that in the former the carrier was acting as a carrier for hire and the goods were being transported for a valuable consideration. In this case the plaintiff paid no fare, her transportation being purely gratuitous.

The ease of Welsh v. P., Ft. W. & C. Rd. Co., 10 Ohio St., 65, 75 Am. Dee., 490, involved the carriage of livestock, which carriage was also for a valuable consideration.

The case of C., P & A. Rd. Co. v Curran, 19 Ohio St., 1, 2 Am. Rep., 362, involved what is known as a “drover’s pass.” In that case the railroad company made a contract for the shipment of livestock at a specified rate axxd issued to the shipper a “drover’s pass” entitling him to go with his stock and return on a passenger train. The coux-t held that the contract of transportation of the stock axxd the pass constituted a single contract and that the holder of the pass was not a gratuitous but a paying passenger. With particular reference to the question involved in this case the court in the Curran case, supra, said, at pages 13 and 14:

“Whether the general obligation,resting on the company as to the care to be exercised in the management of its trains may be qualified by special contract in cases of gratuitous services rendered in the carriage of a passenger, or of goods, is a question we are not called on to consider * * * and in respect to which we express no opinion.” (Italics ours.) ■

Counsel cite also the case of New York Central Rd. Co. v. Mohney, 252 U. S., 152, 64 L. Ed., 502, 40 S. Ct., 287, affirming a judgment of the Court of Appeals for Lucas county, Ohio. In that case the injured passenger was an employee who was travelling on an annual pass. The Court of Appeals held that the pass was issued to Mohney as part consideration of'his employment as a matter of fact; therefore, the pass was not free as in the instant case, the plaintiff not being an employee of the defendant.

This precise question, however, has been decided by the Supreme Court of the United States in numerous cases and by the courts of other states. The only argument against the validity of the conditions of a free pass has always been that such an agreement was against public policy. That argument was repudiated by the United States Supreme Court in Northern Pacific Ry. Co. v. Adams, 192 U. S., 440, 48 L. Ed., 513, 24 S. Ct., 408, wherein the court held:

“When a railroad company gives gratuitously, and a passenger accepts, a pass, the former waives its rights as a common carrier to exact compensation; and, if the pass contains a condition to that effect, the latter assumes the risks of ordinary negligénce of the company’s employees; the arrangement is one which the parties may make and no public policy is violated thereby. * * * ’ ’

13 Corpus Juris Secundum, 1191, says:

“By the weight of authority, a stipulation in a free pass exempting a carrier from liability to the passenger for negligence is valid, and this rule applies to interstate free passes; * *

Counsel for plaintiff seek to draw a distinction between the United States Supreme Court cases and this case in that in the United States cases 'the passes were issued for interstate transportation while in this case the plaintiff’s pass was for an intrastate ride. Since our own Legislature has never spoken on this subject, we are of the opinion that this distinction is not material. Counsel for the plaintiff contend also that the giving of this pass to the wife of an employee was a part of the salary or wages of the employee. Again the United States Supreme Court, in the case of Charleston & W. C. Ry. Co. v. Thompson, 234 U. S., 576, 58 L. Ed., 1476, 34 S. Ct., 964, has spoken. The first two paragraphs of the syllabus are as follows:

“1. Under the free pass provision of the Hepburn Act of June 29, 1906, a free pass issued by a railroad company between interstate points to a member of the family of an employee is gratuitous and not in' consideration of services of the employee.

“2. As a pass issued to a member of the family of an employee of a railroad company is free under the provision of the Hepburn Act permitting it to be issued, the stipulations contained in it and on which it is accepted, including one exempting -the company from liability in case of injury, are valid. ’ ’

For other cases upholding the trial court’s ruling that an agreement to waive a claim for injury on the part of the user of a free pass is valid and binding, see the following: Bush v. Bremner, 29 F. (2d), 844; Stevens v. Colombian Mail S. S. Corp., 15 F. Supp., 534; Northern Pacific Ry. Co. v. Adams, supra; Kansas City So. Ry. Co. v. Van Zant, 260 U. S., 459, 67 L. Ed., 348, 43 S. Ct., 176; 10 American Jurisprudence, 118,119.

The public policy of the state of Ohio, in' an inferential way, 'may be gathered from legislation enacted relative to automobiles. Formerly, if a guest or a free passenger riding in an automobile were injured through the negligence of the owner and driver of the -car, the driver of the car was held responsible for his own negligence if it caused an injury to his guest or. free passenger. Only recently the General Assembly of Ohio passed what is known as the “guest statute” which removes that liability from the operator of the automobile except in cases where the negligence was wilful or wanton. If the state of Ohio does not hold the driver of an automobile responsible for ordinary negligence to his free passenger, it would not seem reasonable that the public policy of Ohio would be opposed to granting, by contract, the same rights to a railroad company.

We are of opinion that the acceptance of the conditions of the pass by the plaintiff constituted a valid contract with the defendant which relieved the defendant of all responsibility for the injuries suffered by the plaintiff. Railroads may contract as private carriers for the transportation of persons whom they are not bound as common carriers to receive. The test as to whether a particular contract is that of the public or private carrier is whether the customer, as one of the ■general public, had the right to compel the carrier to undertake the transportation. The plaintiff certainly had no such right, and, as to her, the status of the defendant was that of a private carrier. We find no error in the record, and the judgment is affirmed.

Judgment affirmed.

Hornbeck, P. J., and "Wiseman, J., concur.

(Decided November 7, 1946.)

On Application for rehearing.

By the Court.

This is an application for rehearing-which was filed on October 24, 1946. The record discloses that the decision was filed on September 23,1946,. and, therefore, the application was not filed within ten days after the decisión as required by Rule XI.

The application is accordingly ordered stricken from, the files.

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


text:
    Swank, Appellant, v. Wilson, Appellee.
    (No. 1971
    — Decided April 16, 1947.)

      Messrs. Randolph & Johnson, for appellant.

      Mr. J. Dale McNamar and Mr. Harold E. Rutledge, for appellee.
   Montgomery, J.

The action in the Court of Common Pleas was one for partition of three "tracts of real estate, the first tract consisting of approximately 40 acres of land outside the corporate limits of. the city of Newark, and the second and third parcels being property within the city. Commissioners were appointed under the provisions of Section 12029 et seq., General Code. They made a division of the first tract of land between the parties and returned the appraised value as to the second and third parcels. No question is here raised about these latter two parcels. The plaintiff, appellant herein, filed a motion to confirm the report of the commissioners, and the defendant, appellee herein, filed exceptions thereto so far as the first tract is concerned.

The trial court found that the acreage proposed to be aparted, while originally farm land, is, by reason of its proximity to the city of Newark, of a value much in excess of farm land value; that it should be divided with reference to its availability as building lots and not as farm land; and that the commissioners had. not taken into consideration the existence of a street already in existence along the south boundary line. The court found further that the division of the acreage between the parties was inequitable and unjust. The order of the court was that the exceptions of the defendant as to the partition of the first parcel be Sustained; that the motion of the plaintiff to confirm so far as it affects the first parcel be overruled; and that the return of the commissioners so far as the first parcel is concerned be set aside and held for naught. The order was that an alias order of partition issue to the sheriff commanding him by the oaths of the commissioners heretofore appointed to cause to be set off and divided between the parties, as tenants in common, the parts to which they are respectively entitled, and if the same cannot be divided without manifest injury to the property that the commissioners appraise the same at its just value in money. No further action was taken in the Court of Common Pleas, and from that order this appeal was perfected.

During the presentation of this cause in oral argument the question arose in the minds of the members of the court as to whether there was a final order from which an appeal could be perfected to this court, and counsel were invited to discuss'that proposition. They saw fit not to discuss it at any length, but announced to the court that the question was not being raised and that the cause was being submitted upon its merits. Regardless of the desires of counsel, which may be laudable enough, they could not, by consent, confer jurisdiction upon this court, and, if there was no final order from which an appeal could be perfected, this court would have no jurisdiction to hear and determine the merits of the cause. Furthermore, if the order is not a final order, it follows that no appeal would lie and, consequently, no jurisdiction would be vested in this court.

The leading case in Ohio which determines the nature and character of partition actions is that of Wagner v. Armstrong, 93 Ohio St., 443, 113 N. E., 397. The second paragraph of the syllabus of that case is:

“All partition cases were originally cognizable in courts of chancery only and must still be regarded as chancery cases and therefore appealable under such terms and procedure as may be provided by law. ’ ’

- The importance of that decision, so far as we are concerned, lies in the last few quoted words. While appeal does lie in a chancery case, it can be only “under such terms and procedure as -may be provided by law.”

Section 12223-2, General Code, reads:

“An order affecting a substantial right in an action, when in effect it determines the action and prevents a judgment, * * * is a final order which may be reviewed, affirmed, modified, or reversed * *

We direct attention to the case of Hoffman v. Knollman, 135 Ohio St., 170, 20 N. E. (2d), 221. That'case arose in Fairfield county, in this appellate district, and the opinion in that case in this court was written by the scrivener of this opinion. In that opinion, with his associates concurring, he held that, in spite of the amendment to Section 12223-2, General Code, enacted by the Legislature shortly before that decision, the granting- of a new trial was not a final order from which an appeal would lie. Upon the case being admitted to the Supreme Court, the judgment of this court was affirmed in a long' and well considered opinion, Hoffman v. Knollman, supra.

The second paragraph of the syllabus in the Hoffman case is:

“An order of a trial court setting aside a general verdict of a jury and granting a new trial is not a final determination of the rights of the parties and -is not, therefore, a judgment or final order reviewable by the Court of Appeals, unless it clearly appears that the trial court has abused its discretion in granting such, order. ’ ’

Counsel for plaintiff, in brief and argument, stress the case of Terrell v. Leonard, 17 C. C. (N. S.), 89, 32 C. D., 34, wherein it was held that before the award of commissioners will be set aside it must appear clearly that the discretion thus vested in them has been plainly abused, or that they have made a manifest mistake. However, the question for our immediate consideration is not whether the commissioners abused their discretion, but whether the trial court abused his discretion in setting aside their award. When that question was propounded to counsel during the course of the oral argument they responded that there was no charge of abuse of discretion as against the trial court, and that question is, therefore, eliminated from our consideration. - We refer again to the Hoffman case. The court in its opinion, on page 181, says:

“Though this court has interpreted the term ‘judgments’ so as to include ‘final orders,’ it has limited its application to acts or decrees of the court which give final effect to the central purpose or some independent branch of the litigation, finality being the touchstone in the determination of that quality.” •

And, again, on page 184, the court says:

“There must be a dismissal of the action or some judgment in the broadest sense, determining the ultimate rights of the parties. The general verdict of the jury, as well as the granting of a motion for new trial, are merely interlocutory steps in the progress of the trial toward finality and judgment, but up to that point in the trial there is neither a judgment .nor final order.”

Attention is directed to the recent case, decided by the Supreme Court of Ohio, of Meyer v. Daniel, d. b. a. Oakley Realty Co., 147 Ohio St., 27, 67 N. E. (2d), 789.

In the course of the opinion in the case of Fulton v. Madlener, 57 Ohio App., 345, 14 N. E. (2d), 27, the court said on page 355:

“While the granting of a motion does' affect a substantial right of the party in that it prevents a judgment, predicated upon the verdict, it does not by any stretch of construction, no matter how liberal, determine the action, or result in a final determination of the rights of the parties.” •

Counsel concede that there is no case in Ohio governing our exact proposition, and we have been unable to find any. We have cited the foregoing authorities because of what seems to us the very obvious parallel between the two situations. The granting of a motion for new trial is very similar to an order of the trial court “setting aside the report of the commissioners. The one order is no more final than the other. In each ease the matter is held in abeyance, or, rather, in a state to proceed toWard a final determination. The rights of nobody are fixed by the order. There is nothing to indicate, and there is no presumption, that any injustice would be done this plaintiff by the commissioners proceeding further to act under the orders of the court. So far, at least, she has not been deprived of any substantial right.

In 40 American Jurisprudence, 70, Section 82, this proposition is stated:

“The view that a decree in a partition suit adjudicating the rights and interests' of the respective parties, ordering and appointing commissioners to make partition according to the respective rights and interests, of the parties as therein determined, is not a final, but an interlocutory, decree, and that an appeal does not lie therefrom, is sustained by the great weight of authority.” ,

Of course, that rule is not uniform and we are not bound by such statement, but it is interesting as indicating the general trend of thought upon the proposition. And coming to an application of the doctrine' in other states which do permit appeals in such cases, it is interesting to note the exceptions and limitations placed thereon.

For instance, it was held in -the case of Loud v. Brigham, 154 Mass., 107, 26 N. E., 1004, that:

“Exceptions taken and allowed in the Superior Court in partition proceedings which result in an interlocutory finding for the petitioner, may thereupon, before further proceedings are had in that court, be entered and heard in this court, if justice requires' that it should be done. ” '

ííowever, it will be observed that that is done only in case the court should find that justice requires, and there there was a finding for the petitioner, thereby, at least, fixing some right, which is contrary to our situation. And the Massachusetts court, on page 109 of the opinion, said:

“This court has uniformly held that exceptions to interlocutory rulings or orders cannot be entered and heard in this court, when by subsequent proceedings in the case in the court where it is pending according to the regular course of proceedings the exceptions may become immaterial. A party may seem to be aggrieved by an interlocutory ruling, and, yet, as the cause proceeds to a conclusion he may in the court where it is pending prevail to the full extent of his claim, and it would be useless for this court to hear and decide exceptions before it appeared that the excepting party had been injured by the rulings excepted to if they were erroneous.”

And in the ease of Bergman v. Rhodes, 334 Ill., 137, 165 N. E., 598, 65 A. L. R., 344, the tenth paragraph of the syllabus, as reported in A. L. R., is:

“Where no appeal was prosecuted ■ from a decree appointing commissioners in a proceeding by the beneficiaries of a testamentary gift of the proceeds of certain lands, to divide the property in kind, its validity may not be questioned on appeal from an order vacating a decree confirming the report of the commissioners.”

This court, therefore, on. its own motion, dismisses the appeal perfected in this case, and remands the case to the Court of Common Pleas for further proceedings.

Appeal dismissed,.

Putnam, P. J., and McClintock, J., concur.