author: By HORNBECK, J: By THE COURT:

text:
    LOGSDON, Plaintiff-Appellee, v. MAIN-NOTTINGHAM INVESTMENT COMPANY, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2362.
    Decided May 22, 1956.

      Altick & McDaniel, Dayton, By Hugh H. Altick, of Counsel, for plaintiff-appellee.
    Curtner, Brenton & O’Hara, Dayton, By Clifford R. Curtner, of Counsel, for defendant-appellant.
    (CONN and DEEDS, JJ, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By HORNBECK, J:

This is an appeal on questions of law from a judgment entered on a verdict in behalf of plaintiff and against the defendant in the sum of $10,000.00. Defendant appeals.

The following errors are assigned:

1. Errors of the Court in Overruling Motion for Directed Verdict at the Close of the Evidence:

(a) Plaintiff-Appellee failed to sustain the burden of proof as to negligence of Defendant as alleged in the Amended Petition.

(b) Plaintiff failed to sustain the burden of proof that the alleged accident occurred in a common hallway provided for common ingress or egress under the lease.

(c) Plaintiff failed to sustain the burden of proof as to control of the room, of creating a hidden pitfall, or of any notice that one existed.

(d) The evidence established that Plaintiff assumed the risk, proximately resulting in his injury.

(e) The evidence established that plaintiff was guilty of contributory negligence, as a matter of law, directly and proximately resulting in his fall.

2. Errors of the Court at the Conclusion of Plaintiff’s and Defendant’s Evidence in—

(a) Refusing to strike allegations of negligence from the amended petition.

(bj Overruling demurrer to petition and evidence at the close of plaintiff’s case.

(c) Overruling to non-suit on ground of departure, variance and surprise.

(d) Overruling motion to remove specifications of negligence from jury consideration.

(e) Overruling the motions to dismiss for the reason that the evidence established the defendant ABCo Construction Company was primarily liable and had effected settlement with plaintiff.

(f) Overruling motion to remove from the jury the allegation as to injuries.

3. The Court Erred in Permitting the Jury to Speculate on the Inference of Agency by Estoppel.

4. Errors of the Court in the Matter of Amendments of the Pleadings.

5. Errors of the Court in the Admission and Rejection of Evidence Prejudicial to Defendant.

6. Error of the Trial Court in the Giving and Special Instruction No. 1 of Plaintiff and Refusal to Give Defendant’s Special Instructions Nos. 3, 4, 5, 6, 7, 8, 9, 11, 12, 14, 15 and 16.

7. Errors of the Court in Its General Charge to the Jury on—

(a) Agency by estoppel and emphasis thereon.

(b) Burden of proof to establish contributory negligence.

(c) An invitee.

(d) Omission to charge on burden with respect to medical proof.

(e) Omission to charge as requested with respect to ingress and egress.

(f) Omitted to charge on terms of the lease with respect to occupancy.

(g) Refused to charge or define obligation of owner as to condition of premises.

(h) Refused to charge that room was not intended for common use of tenants but was for workmen of ABCo.

(i) Refused to submit issue of control of room.

(j) Refused to submit issue of notice of defendant.

(k) Refused to instruct the jury with regard to hazards of building construction.

(l) Refused to submit issue of assumption of risk.

(m) Refused to submit charge with respect to agency of ABCo and Sub -contractors.

(n) Refused to charge, on sole negligence of ABCo.

(o) Failed to submit issue of primary and secondary negligence.

8. The Court Failed to Define the Issues Raised by the Pleadings and the Evidence.

9. That the Verdict was Excessive and Rendered under Passion and Prejudice.

10. That the Jury was Permitted to Speculate as to the Damage for Injuries not Shown by the Evidence to be Directly and Proximately a Probable Result from the Accident.

11. Errors of the Court in Overruling Defendant’s Motion for Judgment Non Obstante Veredicto and for a New Trial and Rendering Judgment for Plaintiff.

The facts essential to an appreciation of the errors assigned are that plaintiff instituted his action for damages for personal injuries against the ABCo Construction Company and The Main-Nottingham Investment Company, which we hereinafter refer to as The Main-Nottingham Company. Subsequently, plaintiff settled his claim against The ABCo Construction Company for the sum of $3,500.00, taking the usual covenants of release and promise not to sue. The ABCo Construction Company was dismissed as a party defendant, and the cause proceeded to trial on the issues drawn between the plaintiff and the defendant-appellant.

Plaintiff’s amended petition, upon which he went to trial, averred that appellant was the owner of a commercial building located in the northern part of the City of Dayton and that on and prior to November 9, 1951, the Western and Southern Life Insurance Company, employer of plaintiff, had leased a portion of the building; that on said date plaintiff was in a hall on the main floor of said building which was provided by the owner thereof as a means of ingress and egress for the use of occupants of said building, including plaintiff, that he stepped upon a covering over a hole in the floor of the place where he entered, receiving certain injuries described.

The negligence charged against defendant-appellant was that it maintained a concealed pitfall in said hall, to-wit, the opening in the floor covered, as aforesaid. That it failed to warn plaintiff of the existence of the covered opening, failed to provide a cover which would support the weight of a person walking thereon, and failed to provide the hall with lighting which would render the covered opening visible to plaintiff.

The second amended answer of defendant admits that it was the owner of the property described in the petition under construction on November 9, 1951; that the ABCo Construction Company was the general contractor for the erection and completion of the building. Denies possession and control of the premises on the date set out in the petition; that it provided the hall as a means of ingress and egress for the use of occupants or the plaintiff; specifically denies the negligence charged against it and generally denies other allegations of the amended petition.

The second defense was a charge of contributory negligence against the plaintiff. The third defense charges assumed risk and the fourth defense avers that The ABCo Construction Company was in complete and exclusive control and management of the room where the plaintiff fell through the floor and that plaintiff had settled with said corporation for his claim against it and that said settlement was complete and adequate compensation and satisfaction of plaintiff’s claim.

The reply was a substantial denial of the affirmative defenses of the second amended answer.

Certain facts are either admitted or uncontradicted. Plaintiff was a district manager of The Western and Southern Insurance Company, stationed in Dayton, Ohio, which company had in 1950, prior to the beginning of construction of defendant’s building, leased from defendant certain quarters on the second floor, southeast corner of the building which was under construction on and prior to November 9, 1951. Plaintiff, as a representative of his company, visited the site of the new building while it was in process of construction two or three times a week. Prior to November 9, 1951, probably a week before, plaintiff’s company had been notified that its leased quarters were ready for occupancy and that it could move on that date. Plaintiff does not testify who gave the notice to his company but Gerald H. Wilks, a witness for the defendant and assistant secretary and director of ABCo and Main-Nottingham Companies, says that he notified plaintiff’s company that the building was ready for its occupancy. Certain furniture of plaintiff’s company was moved into its space either prior to or on November 9, 1951.

The defendant company, the owner of the building, had engaged The ABCo Construction Company to erect the building and it was not completed on November 9, 1951, although at least one other occupant than Western and Southern had moved or was moving into the building. The ABCo Construction Company and the defendant had the same secretary and director; also the same president, Arthur Beerman, who was on the premises during the time that the building was under construction, and on occasions when plaintiff visited the property. In Ocotber, 1951, Mr. Beerman was taken ill. The ABCo Construction Company had a general superintendent on the site of the building by the name of Feig.

On the afternoon of November 9, 1951, plaintiff entered the building preparatory to unloading certain office supplies from an express truck, then stationed on the west side of the building. There is some testimony to the effect that this truck was first on the east side of the building. There was a main entrance to the building on the west side thereof, but on the day of the accident it was closed. Plaintiff entered the building through a small door to the north, on the west side of the building, moved into a small room about 4-% x 8-% feet, went up to the main hall on the ground floor, then on upstairs to the leased quarters and brought some of his associates back with him over the same route that he followed going up to his company’s quarters. These men were preparing to move the supplies and, as one moved into the room with supplies, plaintiff, who was stationed therein, on request, stepped back to make room for the man with the supplies and in doing so, fell through a hole which was about 2-% feet wide by 3-V2 feet long, covered by plasterboard. Plaintiff fell some 9-% feet into a basement, landing on his back and head, and suffered severe injuries. The plasterboard was of insufficient thickness or structure to hold the weight of plaintiff.

Some facts are in dispute, but upon plaintiff’s version are: That he did not at any time know The ABCo Construction Company; that it was the building contractor; the relation of Beerman or Wilks to The ABCo Company; that he first learned of the ABCo Company after his fall. That, knowing Mr. Beerman to be the head of the defendant company from which plaintiff’s company had leased its quarters, plaintiff during the time that he was at the building had dealt with Mr. Beerman in the belief that he was in complete charge of construction; that he had introduced Mr. Feig to plaintiff and told him that Feig was the construction superintendent and that another individual at the site of the building, who was known to be Superintendent of Construction before Feig, had instructed plaintiff that if he wanted any information to consult Mr. Feig. It appears that men who were in the employ of ABCo were to do some work for Western and Southern in its quarters—placing of partitions, etc.,—although as we have said, it does not appear that plaintiff knew of any separate relations between ABCo and defendant company.

On the day of the accident, plaintiff had been called by phone at his downtown office and informed that an express truck was at the site of the building with supplies to be unloaded. That he went to the new building, knew the hallway floor was not completed, and was told by Mr. Feig, “We were not permitted to use the arcade floor in any respect that morning.” Plaintiff and at least one of his witnesses say that the Terrazzo floor in the hallway was under construction, and men were working on it the day of the accident. This is denied by the contractor who had the job of laying this floor, who says it was completed on the 4th or 5th day of November and was ready for use one day thereafter. A tarpaulin was hung over the front entrance on the east side. Preparatory to an entrance into the building, plaintiff inquired of Mr. Feig, who told him that he should use the entrance through the small door on the west side, and Feig unlocked and opened the door and thereafter placed certain cement blocks just inside the door to make access easier. That the small room into which this door opened was lighted only by the daylight from the open door. That plaintiff had not been into this room before the time Mr. Feig directed him to use it, and did not see the covered hole.

Neither Mr. Beerman, Mr. Feig, nor the individual whom plaintiff identified as Superintendent of Construction prior to Feig was a witness, and thus the statements and conduct attributed to them by plaintiff were not directly denied.

Defendant asserts and effers supporting testimony that The ABCo Construction Company had the contract to erect and complete the building for defendant; that it was not finished when plaintiff was hurt; that Feig, as Superintendent of Construction, was in the sole employ of ABCo; that access to the building on the day of the accident could have been made from the east entrance; that the tarpaulin hung in front of the door at this entrance was merely placed to keep out the cold, and could have been lifted. There is testimony that on the afternoon of the day when plaintiff was hurt, his company moved some of its effects into its quarters and entered the building from the east. That the way which plaintiff used to reach the rented quarters of his company was not a common way intended for use of occupants of the building; that Feig had no knowledge that the hole through which plaintiff fell had been covered; that there was provision for lighting of the room by a switch to the left of the entrance door. It is testified that the hole in the floor prior to, on the day of, and shortly before plaintiff’s accident, as late as 11:30 A. M„ had been covered by 2 x 4’s or 2 x 6’s and 2 x 8’s extending from the wall in Wigwam fashion to the floor beyond the hole.

This development in the evidence, if true, leaves unexplained who removed this covering. Mr. Serena, in charge of laying the flooring, after explaining the placing of the lumber over the hole, made this significant statement: “Well, if any body wanted to use that door there, they would have to remove those planks.” It appears that the plasterboard covering had been placed over the hole by a Mr. Kinderdine, several days before the accident, as were the planks. He says that “everybody used the small room,” evidently meaning all the workmen. When asked if he closed the door to the small room on the day he left after covering the hole, he answered: “No, I don’t think we did. I think the door was wired back, because I backed the truck right up to the door.” He also says there were men working on the steps of the west landing to the hallway in the arcade.

The five groupings in the first assignment of error are directed to the overruling of defendant’s motion for directed verdict at the close of the evidence, for the reason that plaintiff failed to sustain the burden of proof of the averments of his petition; that the accident occurred in a common hallway; failed to sustain the burden of proof as to the control of the room, of creating the hidden pitfall, or of any notice that one existed and that the proof established the plaintiff assumed the risk and was guilty of contributory negligence as a matter of law.

At this juncture, we are satisfied to say that the plaintiff established a case which entitled him to go to the jury, as against any of the foregoing assignments of error. We will discuss these assignments in other aspects later in this opinion.

The second group of errors is directed to: the refusal of the court to strike allegations of negligence from the amended petition; overruling demurrer to the petition and evidence at the close of plaintiff’s case; overruling motion to non-suit plaintiff on grounds of departure; varianee and surprise; overruling motion to remove specification of negligence from jury and overruling motion to dismiss for the reason that the evidence established primary liability of ABCo Construction Company and that plaintiff had effected a settlement with that company and in overruling a motion to remove from the jury the allegation as to certain injuries.

The third assignment of error is that the court erred in permitting the jury to speculate on the inference of agency by estoppel.

This is the material and controlling issue. If plaintiff failed upon this issue, all other assignments are inconsequential. The court instructed the jury on the subject of apparent and ostensible authority of an agent, and then said:

“This authority to act as agent may be conferred if the principal affirmatively or intentionally, or by lack of ordinary care, causes or allows third persons to act on an apparent agency. It is essential that two important facts be clearly established: (1) That the principal held the agent out to the public as possessing sufficient authority to embrace the particular act in question, or knowingly permitted him to act as having such authority; and (2) that the person dealing with the agent knew of the facts and acting in good faith had reason to believe and did believe that the agent possessed the necessary authority. The apparent power of an agent is to be determined by the act of the principal and not by the acts of the agent; a principal is responsible for the acts of an agent within his apparent authority only where the principal himself by his acts or conduct has clothed the agent with the appearance of the authority and not where the agent’s own conduct has created the apparent authority. * * *”

In our judgment this was a sound exposition of the law on the subject and is supported by the cases. The only question presented is whether the facts support the implicit findings in the verdict that the agency of defendant was established.

The Ohio cases on the subject are Combs v. Kobaker Stores, Inc., d. b. a. The Boston Store, 65 Abs 326, opinion by Judge Miller of this Court, who cited in support of the judgment 1 O. Jur. 676, Sec. 34; Fields, Inc., v. Evans, 36 Oh Ap 153, and Rubbo v. Hughes, 138 Oh St 178. The principle and its application are considered and discussed in 2 C. J. S„ Sec. 1062, 1063, and in 2 American Jurisprudence, Sec. 104, page 86, where it is said:

“The apparent authority of the agent is the same, and is based upon the same elements as the authority created by the estoppel of the principal to deny the agent’s authority; that is to say, the two are correlative, inasmuch as the principal is estopped to deny the authority of the agent because he has permitted the appearance of authority in the agent, thereby justifying the third party in relying upon same as though it were the authority actually conferred upon the agent. This has been the view of practically all the cases on the point.” (Citing many cases.)

Judge Zimmerman in the opinion in Johnson v. The Wagner Provision Co., 141 Oh St 584, at page 590, says:

“It (agency by estoppel) is usually applied in those cases where credit has been extended, action has been induced, delay has been obtained, or some other change in the position has occurred, in reliance upon the appearance of authority. That doctrine, as it might be in-vocable by a plaintiff in a tort action, rests upon the theory that one has been led to rely upon the appearance of agency to his detriment. Rubbo v. Hughes Provision Co., 138 Oh St 178.”

We hold that the plaintiff developed facts justifying and authorizing the application of the doctrine of agency by estoppel.

It must be assumed that the defendant knew that plaintiff’s company might be moving into its quarters on the 9th of November, 1951, which fact would necessitate its entrance into the building and that plaintiff had the right to expect that defendant would provide for such an entrance. When plaintiff learned of the notification to move, without express knowledge to the contrary, he would have reason to believe that it came from the defendant, the landlord of his company. Mr. Beerman was the head of defendant company, as well as of The ABCo Construction Company, which position in the ABCo was unknown to plaintiff. When then, if Beerman, by direction, acts and conduct led plaintiff to believe that Feig was the employee of defendant on the job, it would be estopped to deny the agency as to any acts which would be within the apparent scope of the agent’s authority. Accepting plaintiff’s testimony, as the jury had the right to do, plaintiff was informed by Feig that neither main entrance was available to him for the purpose of unloading and moving supplies of his company and that the only entrance was that which the plaintiff was directed to use.

It is true the record does not disclose that any other tenant or occupant used, or was directed to use, the small room as a means of entrance into the main portion of defendant’s building, and it was not ordinarily to be so used. However, that it was understood by plaintiff and Feig to be the only way to the main part of the building, and therefore a common way on the day and at the time of the accident, may be inferred from what did occur. That plaintiff upon his testimony had full right to enter the building as a tenant of defendant is apparent, and he was an invitee of defendant independent of, as well as by reason of, the direction of Mr. Feig.

The appellant insists that the court erred in failing to charge assumption of risk which, on motion, was withdrawn as a defense. It is basic that this principle arises only if the danger is obvious or when a party against whom it is invoked has knowledge of the danger and then assumes that risk. The doctrine is well stated in many of the cases cited by appellant. Masters v. N. Y. Central R. Co., 147 Oh St 293, fourth syllabus:

“A person, who brings about a condition or a situation obviously dangerous to himself by voluntarily exposing himself to a hazard created by another, assumes the risk of injury so created and thereby relieves such other of legal responsibility for an injury resulting from such exposure.”

In this cited case the plaintiff, a prospective passenger, was attempting to board a moving train and suffered injury. He was an experienced railroad man with full knowledge equal to that of the train crew of the circumstances relating to the hazard of such boarding. The court held that there was an assumption of risk as a matter of law. Contrast the facts in this case with those in the cited case. There is no variance in the law in the other cases cited by appellant. See also Dahnke v. Hunt, 55 Oh Ap 44; Flynn v. Sharon Steel Corp., 142 Oh St 145, 163, 164; Pioneer v. Great Atlantic & Pacific Tea Co., 59 Oh Ap 367; Ivory v. Cincinnati Baseball Co., 62 Oh Ap 514; Porter v. T. T. Rd. Co., 152 Oh St 466; Gill v. Arthur, 69 Oh Ap 386; Fay v. Thrasher, 77 Oh Ap 179; S. S. Kresge Co. v. Holland, 158 F. (2d) 495.

The contributory negligence of the plaintiff was an issue and properly submitted to the jury. The cases which are cited by appellant may be distinguished on the facts. No witness denies the testimony of the plaintiff as to the extent of the visibility in the room in which he was injured. One witness for the defense was interrogated on the subject but his expression that the room would be dark did not include the fact that there was in the room at the time of the accident the daylight from the open door. And failure of plaintiff to use a switch which would have afforded light may have been excused by the jury because of the fact that he did not know of its presence or location.

The late case of Johnson v. The Citizens National Bank of Norwalk, 152 Oh St 477, discusses and seems to modify the analyses of the facts in Flury v. Central Publishing House, 118 Oh St 154, and McKinley v. Niederst, 118 Oh St 334, where plaintiffs, without any precaution, stepped into totally darkened area ways and were injured. The court held in the Johnson case that, notwithstanding the fact that the elevator shaft into which plaintiff stepped was in semi-darkness only, he was chargeable with contributory negligence as a matter of law. This case, and all of the other cases discussed in the Johnson opinion presented facts not found here. The precaution that the plaintiff here was required to exercise in moving into the room with which he was unacquainted must be judged in view of the implied assurance of safety by the invitation and direction of Feig. We have examined the other cases cited: Leighton v. The Hower Corporation, 149 Oh St 72; Kauffman v. The First Central Trust Company, 151 Oh St 298. In the Leighton case plaintiff was injured when she fell off a step of which she said she was oblivious, although she had used it a few minutes before her fall. In the Kauffman case, an employer of lessee was injured on a faulty elevator which was in good condition when the building was leased and when installed; landlord was out of possession and control of the premises, there was no agreement to maintain or repair, and landlord was in no way connected with the business or activities being carried on on the premises. Recovery denied.

Appellant asserts that the liability here was primary against ABCo and only secondarily, if at all, against defendant.

The theory of the plaintiff and the support for the verdict is based on the theory of joint liability of ABCo and defendant, and that the settlement with ABCo reduced the amount of liability pro tanto only which the court charged.

Joint liability for tort lies where wrong doers have acted in concert in the execution of a common purpose, where the want of care of each is of the same character as the want of care of the other. Stark County Agricultural Society v. Brenner, 122 Oh St 560. Where two or more persons owe to another a common duty and by common neglect thereof, the other is injured, there is a joint tort with joint and several liability. Canton Provision Co. v. Gander, 130 Oh St 43, affirming 17 Abs 329. Davis v. Seasley, 18 Abs 607.

Following Davis v. Seasley, 18 Abs 607, page 15, The Globe Indemnity Co. v. Schmidt, 142 Oh St 595, holds that one constructively liable for a tort and one actually responsible are not joint tort feasors because not in paro delicto although either liable to any injured third person. To like effect. Larson v. Cleveland Ry. Co., 142 Oh St 20, cited in the reply brief.

Upon the plaintiff’s case it may be said that both ABCo and defendant were exercising some control of defendant’s building. Admittedly, Feig was acting for ABCo. The jury could find that he also was acting for the defendant. In this situation no question of primary or secondary liability arises, since all who actively participate in the tort are joint tort feasors. Maryland Casualty Co. v. Frederick Company, 142 Oh St 603, 3 Syl. Appellant cites the early, leading case of Burdick v. Cheadle, 26 Oh St 393, 7, 8. Plaintiff was a customer of Mattison, who was a sub-lessee of Hunt, lessee of defendant, Cheadle. Plaintiff was injured by falling shelves which had been improperly constructed by Cheadle. Court held that plaintiff must look to Mattison for his damage and pointed out that “The general rule is, that persons who claim damages on the account that they were invited into a dangerous place, in which they received injuries, must seek their remedy against the person who invited them.” In the instant case, the jury had the right to find that the defendant, as well as ABCo, invited plaintiff into the small room.

In Ripple v. The Mahoning National Bank, 143 Oh St 614, the landlord who was sued retained no control over room, a private office, in which plastering fell, injuring plaintiff. Same holding. Goodall v. Deters, 121 Oh St 432. Bello v. Cleveland, 106 Oh St 94, holds that abutting owner who solely created dangerous condition in a highway is primarily liable to injured plaintiff. Settlement with owner releases city which was secondarily liable.

It is urged that there is variance between the averments of the amended petition and the proof. That it is not assigned as negligence that defendant’s agent directed or invited plaintiff to enter the small room. This is true, but the testimony was competent and probative of the negligence which was charged. The following cases cited by appellant to establish variance, in our opinion do not support its contention. In Megrue et al, v. Lennox, 59 Oh St 479, the negligence charged was a failure to maintain a fence sufficient to turn stock. Evidence showed only that stock entered through an open gate. In Eureka Fire and Marine Ins. Co., et al v. Baldwin, 62 Oh St 368, it is held that proof of waiver of conditions of the contract not pleaded does not establish performance of all conditions of the contract. Other cases cited, Hisinger et al v. Trickett, 86 Oh St 286; Palmer v. Humiston, 87 Oh St 401, do not present facts germane to our question.

Assignment No. 5 directed to the admission and rejection of the evidence is in our judgment without merit. The experienced trial judge carefully and properly controlled the admission and rejection of the evidence and in the rulings no prejudice resulted to the defendant.

Assignment No. 6 refers to the giving of plaintiff's special instruction No. 1 and refusing to give defendant’s special instructions Nos. 3, 4, 5, 6, 7, 8, 9, 11, 12, 14, 15 and 16. Plaintiff’s special charge No. 1 related to the law of agency by estoppel, and was sound.

Defendant’s special charge No. 3 is too restrictive. No. 4 instructed the jury, without qualification, that if on the date of the accident it found that defendant provided a usable and passable hallway from the east entrance of the arcade to the center hallway and to the elevator and upstairs portion, for the use of The Western and Southern Life Insurance Company, and its employees, it should find for the defendant. This charge fails to give consideration to the effect of the statement of Feig that the only entrance to the building was through the room in which plaintiff was injured. It may have been a fact that the east entrance and hallway to the stairs could have been used, but if plaintiff believed and had good reason to believe that it could not be so used, by reason of the statement of Feig, plaintiff would not be bound by the actual situation.

No. 5 is incorrect in that it excludes a right of the jury to find that plaintiff had the right to believe, until in the exercise of ordinary care he knew otherwise, that there would be a safe floor in the room which he says he was directed to enter.

No. 6 was not responsive to the factual development.

No. 7 is highly improper because it would require a finding for the defendant if the jury found that the room in which plaintiff was injured, or area way, had not been completed or that any part of the building had not been turned over to the defendant.

No. 8 is too general in that it includes “existence of other conditions, as alleged in the petition.”

No. 9 also is too general, as is No. 10.

No. 11 is not a sound proposition of law applicable to the facts developed. No. 12 permits a finding for the defendant if the jury found that the place where the plaintiff fell was “in a dangerous condition.”

Request No. 14 precludes a finding for the plaintiff on the doctrine of agency by estoppel, as does No. 15.

No. 16 is based on the principle of primary and secondary liability

Assignment of error No. 7 questions the correctness of the general charge with special reference to agency by estoppel, burden of proof on the issue of contributory negligence, refusal to submit the issue of assumption of risk, to charge on the sole negligence of ABCo, to submit the issue of primary and secondary liability. We have discussed all, or nearly all of these propositions heretofore. It is not the obligation of the trial judge to charge on the negative aspects of proof and at length on situations which, if found, would absolve the defendant from liability. Such procedure would encumber the record unnecessarily and be of no assistance to the jury in deciding material and determinative issues. The trial judge properly charged the jury as to the essentials of proof to be made by the plaintiff to entitle him to a verdict; nothing less will support the verdict. There are several more sub-headings to this assignment, as to which we hold against the appellant without comment, as we do on Assignment No. 8, Failure to define the issues; 9, Verdict was excessive and rendered under passion and prejudice; 10, Jury permitted to speculate as to damages for injuries not shown by the evidence to be directly and proximately a probable result from the accident; and 11, Errors in overruling defendant’s motion for judgment non obstante veredicto, and for new trial and rendering judgment for plaintiff.

Decided June 26, 1956.

We have given careful consideration to the numerous errors assigned and discussed most of them. It is evident that appellant protected its record at every stage of the trial. The trial judge was considerate, patient and well grounded on the law of the case. Defendant’s rights were fully protected. We find no error assigned well made.

The judgment will be affirmed.

CONN and DEEDS, JJ, concur.

No. 2362.

OPINION

By THE COURT:

Submitted on application for rehearing. Although our rules now make no provision for such an application, we consider briefly the several causes set up.

Failure to fully consider:

I. Assignment of error No. 2 and assignment of error No. 7-j, refusal of the trial judge to give Special Instruction No. 8 relating to notice.

On páge 12 of the opinion, we state that we are considering the five groupings in the first assignment of error, one of which was “or of any notice that one existed and that the proof established the plaintiff assumed the risk and was guilty of contributory negligence as a matter of law.” (Emphasis ours.)

On page 13, we held that these assignments were not well made as against the right of the plaintiff to have his case submitted to the jury. It is true that we did not specifically discuss the question of the requisites of notice to the defendant, but we did hold generally near the end of the opinion that no error assigned was well made. We specifically held that defendant’s special instruction No. 8 relating to notice was properly refused. These holdings are sufficient to support a judgment entry, if desired, finding that the assignments relating to the failure of the court to charge further on the subject of notice to the defendant of the presence of the covered hole are not supported.

The application for re-hearing continues:

“This Court finds, on page 11 of the decision, that Mr. Feig had no knowledge of the hole through which the plaintiff fell, had been covered; and—‘as late as 11.30 a. m., had been covered by 2 x 2’s, or 2 x 6’s and 2 x 8’s extending from wall to wall in wigwam fashion to the floor beyond the hole.’ ”

This conclusion of appellant is not exact. That part quoted is but a recitation of the claim of defendant and of supporting testimony offered by it.

Appellant again presses the failure of the evidence to establish joint control on the part of Main-Nottingham and ABCo. This proposition was considered at length, and we expressed our views respecting it.

II. Counsel calls attention to our statement that Mr. Beerman had introduced Mr. Feig to plaintiff. Appellant is correct in this contention, and we were in error in the statement. However, in the light of all of the evidence on the subject, the variance is not such as to affect; the right of the plaintiff to have the question of agency by estoppel •determined by the jury.

Appellant excepts to our characterizing the west entrance to the Main-Nottingham building as a main entrance, and urges that the main entrance was on the east side. We had no misapprehension respecting the entrances to the east and west and which was the principal entrance. Both were intended eventually to afford entrances by tenants and the public to the building.

Appellant on page 6 states:

“The Court on page 10 has said that Mr. Feig ‘unlocked and opened the door and thereafter placed certain cement blocks just inside the door to make access easier.’ ”

This seems to us to be a hyper-critical criticism of the language employed. The record on the subject is as follows:

Q. to plaintiff: “Then what was done after the door was open?”
A. “Right under the door, there was about a 2 foot step and I called it to his (Feig’s) attention and he had a fellow who was working on the project place two or three cement blocks there for him to step on.”
“Qui facit per alium facit per se.” Manifestly, the fact that Feig instructed a workman to place the blocks instead of placing them himself makes no difference whatever in the effect of the testimony.

III. Appellant urges that we did not give application to the case of Gedra v. Dallmer, 153 Oh St 258, in our holding that the plaintiff made a case for the jury as to the joint liability of Main-Nottingham. We expressed our view of the law on the subject.

We gave full, careful and lengthy consideration to the manifold assignments of error and the voluminous briefs of appellant in our original opinion, and find no substantial reason for the granting of the application for rehearing. It will be denied.

HORNBECK, CONN and DEEDS, JJ, concur.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    HOLLENS et, Plaintiffs-Appellees, v. MONSON et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4873.
    Decided February 17, 1953.
    Charles O. Weilbacher, Columbus, for plaintiifs-appellees.
    Philip R. Bradley, Columbus, for defendants-appellants.
   OPINION

By THE COURT.

This is a law appeal from the Municipal Court of Columbus, which granted restitution to the plaintiff in an action in forcible detainer, and a money judgment for the use and occupancy of the premises.

The defendant-appellant raises several questions of law. The appellant claims the court erred in not permitting counsel to ask a witness of the plaintiff whether he was present during the entire time of the conversation between the plaintiff and the defendant at the time the premises were rented. An objection to this line of testimony was sustained on the ground that it was immaterial. However, the record shows that the witness had already testified on cross-examination that he was present during the entire period of the conversation. The ruling of the court on the second question put to the witness was not prejudicial.

Appellant contends that the court erred in not permitting him to introduce evidence relative to the nature of his military duties. The defendant had testified that he had been relieved from active duty at the Wright-Patterson Air Force Base and had been assigned to Ohio State University to do postgraduate study and research in nuclear physics. The court sustained an objection to a line of testimony in which counsel for the defendant attempted to present evidence in detail as to the defendant’s duties at the Ohio State University. In our opinion the ruling of the court was not prejudicial in view of the testimony already given,

Appellant contends that the cqiirt erred in refusing to stay the proceedings on the ground that the defendant was in military service and that under the Soldiers’ and Sailors’ Civil Relief Act the court should have exercised its discretion in favor of the defendant. The record shows that before any testimony was presented, the defendant filed a motion raising this question. The court stated that it preferred to hear all of the evidence before ruling on the motion. In giving judgment to the plaintiff the court was required to overrule the motion, although we find no specific ruling of the court on this matter. The court was required to exercise its discretion, on the facts presented, whether to sustain or overule the motion. We cannot say that the trial court abused its discretion or that its ruling was contrary to the evidence or contrary to law.

There was a conflict in the evidence as to the duration of the rental term. The trial court resolved this issue in favor of the plaintiff. The judgment of the court is supported by ample evidence.

Finding no error in the record prejudicial to the rights of the defendant, the judgment is affirmed.

WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.


author: Per CURIAM. By NICHOLS, J.

text:
    JOHNSON et, Plaintiffs-Appellants, v. GRIFFITHS et, Defendants-Appellees. BURKHARDT et, Plaintiffs-Appellants, v. GRIFFITHS et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    Nos. 3771, 3772.
    Decided April 27, 1955.

      Andrew L. Johnson, Youngstown, for plaintiffs-appellants.
    Loren Van Brocklin, Clyde W. Osborne, Jr., Youngstown, for defendants-appellees.
   OPINION

Per CURIAM.

Acting on the applications of Charles R. Smith and Geneva Markstrom, Warren C. Hegg as agent for Cecil Chambers, and John and Robert Blattman on September 24, 1953, and October 16, 1953, respectively, the Trustees of Boardman Township by amended zoning ordinance rezoned lands in accordance with applicants’ request from residence districts R-l and R-2 to industrial districts to permit erection and operation by applicant Smith of a system of warehouses and by applicant Markstrom to reestablish a lumber yard and mill previously destroyed by fire and by applicants Blattman Brothers to erect a tool and die shop on the rezoned lands and by applicant Chambers because he had been contacted “in relation to this by John Sederland, the Boardman Township Inspector.” Such rezoning was “subject to owners filing a restrictive covenant not to strip mine, such covenant to run with the land and to be filed with the Mahoning County Recorder.”

After due notice by publication in a newspaper of general circulation in Boardman Township and Mahoning County on May 29, 1953, the Mahoning County Planning Commission after full hearing had in accordance with law disapproved such zoning changes stating in a letter to counsel for defendant dated June 1, 1953, and signed by David' Rhodes, Planning Director, that:—

“Boardman Township is largely a residential area in which ample zones available for industry and business have been already set apart under the existing zoning ordinance. Extensions thereof should not be made except where the need is clearly apparent, the proposed use (either industrial or business) is appropriate to the area involved, and would not be detrimental to the surrounding area, and the owners of adjacent or contiguous property will not be seriously damaged thereby.”

Upon appeal to the court of common pleas of Mahoning County that court affirmed the action of the Board of Trustees of Boardman Township and entered final judgment for that board.

Plaintiffs appeal from the judgment of the court of common pleas to this court on questions of law in appeals numbered 3771 and 3772 on the docket of this court, and by assignments of error contend:—

“1. Error of said Board of Township Trustees in failing to pass a resolution declaring its intention to proceed under the provisions of the County Rural Zoning Act to amend and change said regulation rezoning the aforesaid lots and lands, before availing itself of such power conferred therein, as mandatorily required by §3180-26 GC, §519.02 R. C., §3180-27 GC, §519.03 R. C., and §3180-36 GC, §519.12 R. C.
“2. Error in that the Boardman Township Zoning Commission failed to submit a plan, including both text and maps, representing the recommendations of said zoning commission for the carrying out by said Board of Township Trustees of the powers, purposes and provisions set forth in said Act, as mandatorily required by §3180-29 GC, §519,05 R. C., and §3180-30 GC, §519.06 R. C.
“3. Error in that said Boardman Township Zoning Commission arbitrarily ignored, failed and refused to make use of the data information and counsel pertinent to the rezoning of said lots and lands, which were available from and furnished to it by the Mahoning County Planning Commission and the Mahoning County Planning Engineer for the use of said Boardman Township Zoning Commission in said rezoning matters, contrary to and in violation of §3180-29 GC, §519.05 R. C.
“4. Error in that said Township Zoning Commission failed and neglected to give notice of the public hearings held by it on May 18, 1953, and on May 25, 1953, as and in the manner mandatorily required by §3180-30 GC, §519.06 R. C., in that said notices failed to ‘state the place or places and times at which the text and maps of the zoning resolution may be examined.’
“5. Error in that said Township Zoning Commission failed to submit any proposed zoning or rezoning resolution, including text and maps, to the Mahoning County Planning Commission for approval, disapproval or suggestions and failed to certify its recommendations for a zoning or rezoning plan to said Board of Township Trustees, as and in the manner mandatorily required by §3180-31 GC, §519.07 R. C.
“6. Error of said Board of Township Trustees in failing to hold a public hearing on any such certification of a zoning or rezoning plan from said Township Zoning Commission, after receiving the same and before adoption of any such zoning or rezoning resolution, as and in the manner mandatorily required by §3180-32 GC, §519.08 R. C.
“7. Error of said Board of Township Trustees in failing to amend and change said regulation rezoning said lots and lands, in the same manner and for the same purposes as provided in said Act for the adoption of the original resolution or Boardman Township Zoning Ordinance, contrary to and in violation of §3180-36 GC, §519.12 R. C.
“8. Error of said Board of Township Trustees in failing to comply with the law in adopting, amending, rescinding, publishing and distributing said regulation.
“9. Said regulation as adopted, amended, changed and revised by said Board of Township Trustees is unreasonable and unlawful.
“10. Said Board of Township Trustees acted arbitrarily and unlawfully in amending, changing and revising said regulation; and the same constitutes invalid spot zoning or piecemeal zoning.
“11. Error in that said purported amendments to and changing of said Boardman Township Zoning Ordinance has no relation to the public health, safety, morals, comfort or general welfare, but the same is wholly foreign and detrimental thereto.
“12. Error in that said regulation as amended, changed, revised and adopted by said Board of Township Trustees is unconstitutional, invalid, void and of no legal force and effect, in that the same deprives the appellants herein of liberty and property without due process of law and denies to them equal protection of the laws, contrary to and in violation of Section 1 of the 14th Amendment to the Constitution of the United States and Article I, Section 1 and Section 19, Ohio Constitution.
“13. The aforesaid omissions, proceedings, actions, orders and failures of said Board of Township Trustees and Board of Township Zoning Commission, and the aforesaid findings and final judgments of the Court of Common Pleas affirming the same are not supported by sufficient evidence and are contrary to law and the evidence adduced.
“14. The Court of Common Pleas erred in his said findings and final judgments affirming said proceedings, actions and orders of said Board of Township Trustees.”

By brief plaintiffs contend that the questions presented are;—

“1. May the Boardman Township Trustees dispense with the requisite steps provided and mandatorily required by §3180-26 GC, §519.02, et seq, R. C., and thus put into effect the aforesaid purported amendments to said Zoning Ordinance contrary to the plain mandate of said statutes?
“2. Are the aforesaid regulations as purportedly amended and changed by said Boardman Township Trustees unlawful, unreasonable, and unconstitutional?
“3. Did the Court of Common Pleas commit prejudicial and reversible error in his said findings and final judgments affirming said proceedings, actions and orders of said Board of Township Trustees?”

Appeal numbered 3771 is taken from the amendment of the zoning ordinance governing the lands sought to be rezoned by Smith and Markstrom. Appeal numbered 3772 is taken from the action of the board of township trustees in amending the zoning ordinance governing the properties sought to be zoned by Chambers and John and Robert Blattman.

The record discloses exact compliance with the requirements of §519.01—§519.99 R. C., inclusive, with reference to township zoning under which the rezoning was had. Accordingly the procedural details taken with reference to such lands and the rezoning thereof will not be stated in this opinion, which procedural steps and action, in our opinion, constituted a sufficient certification of the action of the zoning commission, whose action constituted a resolution.

Further, the record discloses that defendants have complied with all statutory requirements with reference to submission of maps and plans as they were compelled to comply with such provisions of the Revised Code, which, holding as we do, we need not determine.

The Board of Trustees of Boardman Township, and the Zoning Commission thereof are under no duty to follow the decision of the Mahoning County Planning Commission. See §519.05 R. C.

Coming now to consider plaintiffs’ assigned ground of error number 4. While it is true that availability of the texts and maps for examination was not contained in the original advertisement of April 13, 1953, for public hearing, nevertheless they were available and the record discloses were inspected by counsel.

As applicable §519.06 R. C., provides:—

“Before submitting its recommendations of a zoning plan to the board of township trustees, the township zoning commission shall hold at least one public hearing, notice of which shall be given by one publication in one or more newspapers of general circulation in the township at least thirty days before the date of such hearing. The notice shall state the place and time at which the text and maps of the zoning resolution may be examined.”

The record discloses that not only one but two public hearings were held before the Township Zoning Commission in each of the zoning amendments under discussion, and that prior to the second of such hearings the fact that texts and maps of each proposed zoning change were available for inspection at the Boardman Township Fire Station No. 1 was advertised in a newspaper of general circulation in-Boardman Township and Mahoning County, and that a total of three public hearings were held on each proposed change before the Trustees of Boardman Township voted to amend the zoning ordinance.

In our opinion such procedure constitutes a substantial compliance with the statutory requirements and cured any defect in the procedure which plaintiffs contend was occasioned by failure to advertise the availability of such texts and maps for examination.

Now it is the claim of counsel for plaintiffs that the Board of Township Trustees erred to their prejudice “in failing to amend and change said regulation rezoning said lots and lands, in the same manner and for the same purposes as provided in said act for the adoption of the original resolution or Boardman Township Zoning Ordinance, contrary to and in violation of §3180-36 GC, §519.12 R. C.”

It is the contention of plaintiffs that:—

“As indicated by the transcripts of the record filed herein, no such resolution, or any resolution, has been passed by the township trustees in the exercise of the powers granted under this statute. As further indicated by said record, said amendments were not made in accordance with a comprehensive plan, or any plan whatsoever, in the exercise of the powers granted under this statute.”

Sec. 519.02 R. C., provides in part that all such regulations shall be uniform for each class or kind of use throughout any district or zone. This does not mean that there may be only one kind of use throughout the zone. It means uniformity within each kind of use.

We find no merit in this contention.

The Board of Trustees of Boardman Township have discretionary power as to the manner in which amendments to the original zoning ordinance of that township may be amended, which discretion, in our opinion, such board did not abuse.

“Amendments or supplements to the zoning resolution may be made as provided by §§519.02 to 519.11, inclusive, R. C., except that they may be made without submitting them to a vote of the electors, unless within thirty days * * Sec. 519.12 R. C.

Further, it is noted that the Board of Trustees of Boardman Township proceeded under the Boardman Township Zoning Ordinance approved by the electorate thereof at a general election held on November 2, 1948, and in strict compliance therewith.

Plaintiff’s assignments of error numbered 9 to 14 inclusive charges that the Board of Township Trustees acted arbitrarily and unreasonably in amending the Boardman Township Zoning Ordinance, and that its actions are “not supported by sufficient evidence and are contrary to law and the evidence adduced”; and that the “court of common pleas erred in his said findings and final judgment affirming said proceedings, actions and orders of said Board of Township Trustees”; and that the amendments made to the Boardman Township Zoning Ordinance have “no relation to the public health, safety and morals” of such township, and are in “violation of Section 1 of the 14th Amendment to the Constitution of the United States and Article I, Section 1 and Section 19, Ohio Constitution.”

In our opinion plaintiffs have failed to prove such charges by the required degree of proof.

“The power of a municipality to establish zones and to classify property accordingly is purely a legislative function which will not be interfered with by the courts unless such power is exercised in an arbitrary and unreasonable manner in violation of constitutional guarantees, and the facts to justify interference with the sound discretion of the legislative body must clearly appear from the evidence, and, if debatable, the legislation will be upheld. A determination of whether a zoning classification is unreasonable, arbitrary and capricious must depend upon the facts and circumstances of each particular case under applicable principles of law. Courts will not substitute their judgment for the will of the legislative body. The strong presumption of validity which applies to legislative acts in general, applies with equal force to zoning ordinances.” Cleveland Trust Company v. Village of Brooklyn, 92 Oh Ap 351 at 358.

“Before a court will take cognizance of a claim that the action of such officer or board is unlawful, arbitrary, unreasonable, or of such character as to constitute an abuse of discretion, facts must be set forth which warrant such conclusion.” 32 O. Jur., Section 93, Page 954.

“Courts have, therefore, consistently refused to interfere with the sound discretion of those upon whom rest the responsibility of fixing boundaries of zones unless the exercise of this function indicates a wholly capricious, arbitrary, and unreasonable action, entirely foreign to any consideration involving the safety, health, morals, or welfare of the public.” Central Trust Co. v. City of Cincinnati, 62 Oh Ap 139 at 143.

“If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.” Village of Euclid v. Ambler Realty Company, 272 U. S. 365, paragraph 4 of the syllabus.

“The rule is firmly established that the courts will not interfere with executive officers or boards in the performance of duties which are discretionary in their nature or involve the exercise of judgment, unless the action is such as to amount to fraud, bad faith, or a gross abuse of the judicial discretion conferred upon such officer or board.” 32 O. Jur. Section 73, Page 930.

We find no merit to plaintiffs’ contention that the regulations are not uniform for each class or district or zone. See Article 3, Page 2, of the Zoning Ordinance of Boardman.

The evidence discloses that not one of the plaintiffs in either appeal own any of the lands involved in the appeals, and accordingly the amendments around which the controversy revolves do not constitute a taking of their property.

“Not all amendments which change the character of a use district, of course, fall within the category of ‘spot zoning,’ as we generally understand the term. There have been numerous instances where the establishment of a district or zone might appear out of harmony with the general plan yet the courts have upheld it because it did no violence to the spirit and intent of the comprehensive zoning plan as expressed in the general zoning ordinance and, on the contrary, harmonized with an orderly growth of a new use for property in the respective localities.” Zoning Law and Practice, August, 1948 Edition, by Mr. E. C. Yokley, L. L. B., Section 82, Page 152.

Now as to plaintiffs’ contention that the restrictive covenant ordered by the Board of Trustees of Boardman Township “not to strip mine,” which covenant was “to run with the land and to be filed with the Mahoning County Recorder” was a condition precedent to the granting of the amendments in controversy we concur with the reasoning of counsel for appellees as stated in their brief:—

“Appellees submit and affirm that in each of the cases in which such a restrictive covenant was required, that covenant has been duly executed by the property owners involved and is being held by the Board-man Township Board of Trustees in trust pending the outcome of these appeals. It is submitted that to file of record such a restrictive covenant for any landowner would result in a harsh and unjust situation, should this court or some other reviewing court decide that these amendments are not valid.”

Of course, we find no violation of Section 1 of the 14th Amendment to the Constitution of the United States or Article I, Section 1 and Section 19, Ohio Constitution.

It is obvious from what we have said in this lengthy opinion disposing in considerable detail of each of plaintiffs’ numerous assignments of error that the judgment of the trial court must be and hereby is affirmed.

PHILLIPS, PJ, GRIFFITH, J, concur.

NICHOLS, J, dissents.

DISSENTING OPINION

By NICHOLS, J.

The judgment of the common pleas court should be reversed for errors of law occurring upon the hearing wherein that court held that amendments can be made to the zoning resolution of the Township of Boardman without complying with the provisions of the township zoning act relating to the adoption of the original zoning ordinance.

The facts disclosed by the record here demonstrate clearly that the amendments attempted by the township trustees to the original zoning ordinance constituted spot zoning only in each instance, and each amendment was made for the sole benefit of the property owner without any regard to the health, morals, or welfare of the residents of the township. Such spot zoning is unconstitutional.

“Zoning laws are based upon police power of state to enact laws for safety, health, morals, and general welfare of people. * * *

“Persons buying property in district within zoning ordinance have right to rely upon rule that general classification will not be changed, unless required for public good.” Kennedy et al v. City of Evanston, 181 North Eastern 312.

“City’s power to amend zoning ordinance can be exercised only when public interest requires amendment.

“Person purchasing property after enactment of zoning ordinance could assume classification would not be changed unless change was required for public good.” Phipps, et al v. City of Chicago, 171 N. E. 289.

“To justify an invasion of private rights as a valid exercise of police power, it must be shown that power was exercised for preservation of safety, health, morals or general welfare of public.” Dunlap v. City of Woodstock, 91 N. E. (2nd) 434.

Owners of property designated as residential under the original zoning ordinance have the right to rely upon the legislation fixed and determined until a proper and legal amendment is made according to the act. The value of plaintiffs’ residential property undoubtedly would be affected adversely by the establishment of industrial enterprises in accordance with the attempted amendments to the township zoning resolution.

To deprive the owners of other property in the zoned territory of the benefits of the original zoning resolution would be to deprive them of a constitutional property right contrary to the Constitution of the State of Ohio and of the United States.

Furthermore, each of the persons whose property was spot zoned by the Board of Trustees had an adequate remedy at law under the Act for relief against any unnecessary harshness occasioned to them by the original zoning act.

Sec. 519.13 E. C., requires that the township board of trustees appoint a board of zoning appeals with express authority under SubSection B of §3519.14 R. C., to relieve against the harshness or injustice to any individual property owner under the original zoning resolution.

The judgment of the common pleas court should be reversed and final judgment rendered for appellants.


author: By HORNBECK, J.

text:
    STATE, ex rel. KOVAL, Plaintiff-Relator, v. INDUSTRIAL COMMISSION and WHITE MOTOR COMPANY, Defendants-Respondents.
    Ohio Appeals, Second District, Franklin County.
    No. 5168.
    Decided March 1, 1956.
    Gilbert Weil, Cleveland, for plaintiff-relator,
    C. William O’Neill, Atty. Geni., Paul Tague, Jr., S. Noel Melvin, Asst. Attys. Geni., Columbus, for defendants-respondents, Industrial Commission,

      (FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By HORNBECK, J.

This is an action wherein relator prays that an alternative writ of mandamus issue to respondent commission, requiring it to enter an order granting his application for an award for compensation for lost time, or that in the alternative the respondent commission show cause why such order should not be granted; and that upon final hearing of this cause, said alternative writ be made permanent and that he recover his costs herein expended.

Relator’s petition is extended and sets out fully the factual developments upon which he predicates his claim for relief. The determinative fact is that the occurrence in which relator claims he suffered an accidental injury entitling him to compensation under the Workmen’s Compensation Act occurred more than two years before he filed formal application with the Industrial Commission for adjustment of claim by reason of his injury. More significant is the fact that he filed no written claim for compensation with his employer, the respondent, The White Motor Company, a self-insurer, within two years after the date of his claimed injury. Sec. 1465-72a CG.

In the situation thus presented, we are disposed to follow the opinion of Judge Doyle, of the Ninth Appellate District, in Shira v. B. F. Goodrich Co., 67 Abs 548. The first headnote of this case holds:

“The requirement in §1465-72a GC that a written claim for compensation under Workmen’s Compensation Act be filed within two years from the date of the injury is mandatory and jurisdictional.”

Nor would the representation, if wrongfully made by the medical director of the employer, that the relator had no compensable injury to his back, toll the statute, Greenwalt v. The Goodyear Tire and Rubber Co., 164 Oh St 1. The relator was put on timely notice that his employer denied that he had suffered an injury compensable under the Workmen’s Compensation Act.

The record supports the conclusion that Dr. Sikes of respondent company referred relator to Dr. Duncan for diagnosis and that the three times that he was seen by Dr. Duncan were under the original referral. It is also to be presumed that Dr. Duncan was paid or to be paid by the employer and that Dr. Duncan’s diagnosis which differed from that of Dr. Sikes was consistent with the conclusion that relator was suffering from an accidental injury. It is also true that Dr. Sikes had knowledge of the diagnosis of Dr. Duncan, that the relator did not have such knowledge and that relator was, in probability, caused to seek payment for sickness from the insurance company by the representation of Dr. Sikes, who may have, in good faith, accepted his own diagnosis. Notwithstanding these favorable facts in behalf of the relator the mere payment for medical services for him was not, in our judgment, a recognition that he suffered a compensable injury under the Workmen’s Compensation Act.

The determination whether or not an injury is compensable should not be left for determination to a self-insurer employer.

Under the statute controlling of the judgment in this case, we cannot afford any relief to the relator although we are satisfied that he suffered an injury in the course of his employment which, if adjudicated, may have been determined to be accidental in origin and cause and therefore compensable.

The writ will be denied.

MILLER, PJ, PESS, J, concur.


author: By BARTLETT, J. By BARTLETT, J.

text:
    KHOURY, d. b. a. CLUB CARNIVAL and d. b. a. ARTISTS AND ACTORS COCKTAIL BAR, Appellant, v. BOARD OF LIQUOR CONTROL, etc., Appellee.
    Common Pleas Court. Franklin County.
    No. 194,175.
    Decided January 8, 1957.

      Paul F. Ward, Charles T. Kaps, for appellant.
    C. William O’Neill, Atty. Geni., S. Noel Melvin, Asst. Atty Geni., for appellee.
   OPINION

By BARTLETT, J.

THE BOARD OF LIQUOR CONTROL ORDER (REJECTING APPELLANT’S APPLICATION FOR RENEWAL OF HIS D-5 PERMITS), IS AFFIRMED AND THE APPEAL THEREFROM DISMISSED.

This is an appeal under §119.13 R. C., seeking a reversal of an order of the Board of Liquor Control affirming the action of the Liquor Department in rejecting appellant’s application for renewal of his D-5 permits in the City of Cleveland, particularly for the premises known as “Club Carnival” and “Artists and Actors Cocktail Bar.”

In the exercise of its discretion, as vested in it by §4301.10, Sub-Paragraph (A) (2) R. C., wherein general authority is conferred upon the Department of Liquor Control, to grant or refuse such permits, said Department found that appellant was not a proper person to hold said Class D-5 permits in view of his past record of operation as a permit holder, both as an individual and as president and sole stockholder of Khoury’s Hough Bar, Inc., as indicated by the numerous violations of the Liquor Control Act and the Regulations of the Board of Liquor Control; and, therefore, refused and rejected said appellant’s application for the renewal of his said D-5 permits.

Upon appeal from the Department order rejecting his application for renewal of said D-5 permits, the Board of Liquor Control found upon the evidence submitted, that the appellant, during the permit year of 1955, through his agents and employees, on the permit premises in question did employ and permit certain female entertainers of his to approach and solicit his male patrons, to buy them intoxicating drinks, almost nightly; that the D-5 permits for said premises were suspended in December, 1954, for 45 days and 60 days again in June, 1955, for said solicitation of drinks by his female entertainers; that his D-5 permit for said premises was suspended in March, 1948, for 90 days on account-of lewd and indecent entertainment on said permit premises; and further that the appellant, through his agent, did hire a female 17 years of age in June, 1955, to approach and solicit male patrons to purchase intoxicating drinks for her on his permit premises, Khoury’s Hough Bar, Inc., 1807 E. 12th Street, Cleveland, which was padlocked for 1 year by the Common Pleas Court; that on said permit premises in question, in October, 1955, appellant, through his agent and employer, sold whiskey in a container to be taken off the premises; and the Board found from the evidence that permits of appellant for other premises were no less than six times suspended for various periods of time for violations of the Liquor Control Act and Regulations of said Board; and in view of the foregoing reasons, the Board of Liquor Control found that the appellant was not entitled to the renewal of his said D-5 permits.

Counsel for the appellant protest vigorously that the evidence showing the employment of the 17 year old female aforesaid was not competent, since she was employed by Khourys Hough Bar, Inc., and not by the appellant individually; but the appellant admitted under oath that at the time he was president and sole stockholder of said corporation.

The fiction of the corporate entity will be disregarded where it is attempted to be used as a shield for fraud or to evade the law, such as concealing illegal acts. Auglaize Box Board Co. v. Hinton et, 100 Oh St 505; Central Trust Co. v. Burke, 1 N. P. 169; State, ex rel Watson v. Standard Oil Co., 49 Oh St 137; 21 O. Jur. (2d) pp 130-138.

It is claimed by counsel for the appellant that the Department failed to introduce the Director’s order rejecting the application for renewal of appellant’s D-5 permits; and from that they urge that the Department has failed to sustain its burden of proof, and they further claim, as the result of such failure to offer the order of the Director, there was no way of determining what the reasons were for the rejection by the Director of the renewal of the permit in question.

On page 7 of the Record, counsel for the Department stated that the matter before the Board was

“an appeal from an order of the Department rejecting an application for the re-issuance of a Class D-5 permit to Norman Khoury, Club Carnival, at the address on the Rejection order, and the grounds for rejection are as set forth in the rather lengthy Rejection order which the Board has in front of it, and I believe counsel for the Appellant also has.”

On page 3 of the Record, counsel for the appellant stated:

“When the notice of the rejection was given to my client, my client was in California. The records of the Board will indicate that the appeal was mailed from the west coast.” (Emphasis ours.)

The rejection order itself was filed with the Court, on November 24, 1956, with a certificate attached thereto by Catherine Merz, Clerk of the Board of Liquor Control, stating it “is a true and correct copy of the order of rejection which was erroneously omitted when the exhibits and transcript were submitted to the Court of Common Pleas of Franklin County on July 21, 1955.”

The statement of counsel for the Department at the opening of the hearing that “the rather lengthy Rejection order which the Board has in front of it,” was not challenged at the time by counsel for the appellant nor denied by any member of the Board; all of which convinces this Court that the Rejection Order was presented to the Board at the hearing.

Then, too, counsel for the Department added in his opening statement: “and I believe counsel for the appellant also has.” (the Rejection Order.) This was not denied by counsel for appellant, but instead he admitted on page 3 of the Record that his client received “notice of the rejection” in California. The rejection order is in the nature of a letter to the appellant at the permit premises in Cleveland with the heading:

“November 10, 1955 ORDER”

This is convincing that appellant’s counsel had available at the Board hearing, his client’s copy of the order of rejection.

At the oral hearing before this Court, counsel for appellant moved to strike the certified copy of the order of rejection from the files of the Court. That motion will be overruled and the Court sua sponte will order it made a part of the record of this proceeding. After all, the Rejection Order is a record of the Department which consists of the Board itself and the Director. Sec. 4301.02 R. C.

In any event, the Court is convinced that the Rejection Order was before the Board at its hearing, and the appellant was in no manner prejudiced by the informal manner in which it was presented to the Board.

Counsel for the appellant state that there is but one permit involved in the instant case, but the Rejection Order is headed, “In Re: Application No. G. 16052-53 for re-issuance of D-5 Permit and Duplicate.” Apparently the Duplicate has also been given a number, all of which does not affect the merits of the instant proceeding.

It is argued by counsel for the appellant that since none of the exhibits filed in the instant case was certified and sealed by the Director, they were not proper evidence under §4301.10 A-2 R. C. This code provision is not a mandate that all such records of the Department must be so signed and sealed by the Director, but only provides that such a certificate signed by the Director with the seal of the Department attached, “stating that it appears from the records of the Department that no permit has been issued to the person specified therein, or that a permit, if issued, has been revoked, cancelled, or suspended shall be received as prima-facie evidence of the facts therein recited in any court, or before any officer of this state.” This provision only undertakes to make such certificates prima-facie evidence, but does not require all such records of the Department to be so certified to be competent evidence.

Sec. 4301.04-D R. C., authorizes the Board to adopt rules “regulating its procedure on appeal.” Pursuant thereto the Board has promulgated Rule 65, Section IV of which provides:

“In all hearings before the Board and the determination thereon, the production of evidence shall be governed in general by the rules of evidence and burden of proof required by Ohio courts in civil cases.”

At the hearing before the Board, Minnie G. Thornton was called as a witness for the Department. She testified she was Chief Clerk of the Permit Division, Clerical Section, Department of Liquor Control, and that she had under her immediate supervision and control records of the Department concerning applications and permits issued, some of which records she identified as exhibits which were later admitted in evidence.

Certain Journal Entries of the Board itself, involving suspensions, etc. of permits in the name of appellant, were admitted in evidence with certificates attached by Catherine Merz, Clerk of the Board, stating they were “true, correct and complete copy of journal entry filed in the above case—copies from our journal” etc.

Certainly these journal entries of the Board and records of the Department were admitted in accordance with the rules of evidence in Ohio courts.

After the repeal of Prohibition, the General Assembly of Ohio enacted the Liquor Control Act, creating the Department of Liquor Control, to strictly regulate and control the traffic in beer and other intoxicating beverages, and to effectuate that purpose, broad powers were conferred upon said Department. State v. Davis, 132 Oh St 308; State ex rel. v. Ferguson, 142 Oh St 179; State ex rel. v. Glander, 148 Oh St 188.

“Applications (for permits) may be filed and processed at any time, but the granting of them is a matter for the judgment and control of the department. * * * A permit is issued as a mere privilege and not as a matter of right, and its issuance is in the control of the department. (Emphasis ours.) Per Curiam Opinion of the Supreme Court, Board v. Tsantles, 156 Oh St 512, pp 514-515.

“2. Permits to carry on the liquor business which are issued under the provisions of the Liquor Control Act are mere licenses, revocable as therein provided, and create no contract or property right.” State ex rel. Zugravu v. O’Brien et al, 130 Oh St 23.

“2. Any conduct upon the part of an applicant for a permit which discloses that, in probability, such applicant would, if licensed, conduct his place so as to not conduce to the health, morals or general welfare of the public is sufficient basis for the refusal of a permit.” Scaravilli v. Board of Liquor Control, 61 Abs 514.

On page 516 of the foregoing case, the Court of Appeals of Franklin County, in a Per Curiam opinion, say:

“The Liquor Control Act in our opinion intends to empower the Department to make this determination as to the applicants either for a permit originally or upon renewal. As a matter of fact the Department has a better opportunity to judge the fitness of a permitee to have his license renewed than it would have respecting one who is applying for a permit for the first time.”

In the case of Meyer v. Dunifon, Director, etc., 88 Oh Ap 246, Miller, PJ, of the Court of Appeals for Franklin County, says on page 247:

“Since the Board of Liquor Control was the trier of the facts, it possessed wide discretionary powers * * *.”
“The court may not substitute its judgment for that of the agency but is confined to determining the rights of the parties in accordance with the statutes and other law applicable.” Farrand v. State Medical Board, etc., 151 Oh St 222.

See also Wallace v. Board of Liquor Control, 64 Abs 477.

“The courts must exercise care not to place themselves in the position of usurping the ‘regulation and control of the liquor traffic;’ and should carefully avoid hampering the agency duly authorized by constitutional enactment to provide such regulation and control; otherwise the Courts may find themselves responsible for the decontrol of such liquor traffic.” Olteanul Cultural and Athletic Club v. Board of Liquor Control, etc., Case No. 186,609, Dockets of this Court.

“1. The Director of Liquor Control by virtue of §§6064-7 and 6064-8 GC (now §§4301.09 and 4301.10 R. C.) is given the power to issue or refuse permits in the first instance.” Scaravilli v. Board of Liquor Control, supra.

Since the Department found “that the applicant is not a proper person to hold Class D-5 permits” etc., counsel for the appellant seem to labor under the impression that it was incumbent upon the Department to establish that Norman Khoury, the appellant, was a man of bad reputation morally and not a gentleman. The holding in the Scaravilli case, supra, is much broader;

“Any conduct of the applicant for a permit which discloses that, in probability, such applicant would, if licensed, conduct his place so as to not conduce to the health, morals or general welfare of the public, is sufficient basis for the refusal of a permit.” (Emphasis ours.)

The application in that case was also for the renewal of a permit.

It may be that Norman Khoury has too many other business ventures in other places, like California, which was mentioned by his counsel; and that during his enforced absences for long periods of time, he has been lax and not careful in seeing to it that his permit premises were in charge of reliable and competent managers. It is a known fact that absentee landlords do not serve the best interests of American farm life. It requires no stretch of the imagination that absentee permit holders, engaged in many other activities in the field of high finance, are not competent to give adequate attention to the running of taverns and bars where intoxicating beverages are sold and consumed. Laxity of supervision in the conduct of such places may be just as harmful to the public interest as if the course of conduct complained of were wilfully committed.

No. 195875.

Decided January 8, 1957.

“This court is not required to determine the issue as to ‘advisability’ of issuing such permits; but only to find whether the order of the Board, in the exercise of its discretion, upon consideration of the entire record, ‘is supported by reliable, probative and substantial evidence and is in accordance with law.’ ” Fawcett v. Board of Liquor Control, 67 Abs 53; Olteanul Cultural and Athletic Club v. Board of Liquor Control, supra.

This Court so finds and, therefore, affirms the order of the Board and dismisses the appeal therefrom.

OPINION

By BARTLETT, J.

REMANDED TO BOARD OF LIQUOR CONTROL FOR FURTHER CONSIDERATION.

The order of the Board has no relation to the order of the Department. It is argued the Board may take judicial notice of certain matters in its records, but that is not proof that this court should take judicial notice of. This appeal is from the order of the Department and nothing else. Such an appeal does not warrant the Board of Liquor Control to go roaming around on a frolic of their own. The shoemaker should stick to his last.

“1. The Director of Liquor Control by virtue of §§6064-7 and 6064-8 GC (now §§4301.09 and 4301.10 R. C.), is given the power to issue or refuse permits in the first instance.” Scaravilli v. Board of Liquor Control, 61 Abs 514,

“at the hearing before the Board the sole question was as to the propriety of the Director’s order. * * * The Board had before it only the question whether the Director as a matter of fact and law properly' refused the issuance of the renewal permit.” East Toledo Social Club v. Board of Liquor Control, 71 Abs 193.

In the appeal from the Directors order, the Board is confined to the sole issue of the propriety of the Directors order; but, under §119.13 R. C., “in the hearing of the appeal (from the Board) the Court shall be confined to the record as certified to by the agency,” but the order of the Board is not supported by any evidence certified by it to the Court. The Court, therefore, remands the proceeding to the Board for further consideration.