source: Caselaw Access Project

author: By REYNOLDS, J.:

license: Public Domain

text:
    MOTORS INSURANCE CORPORATION et, Plaintiffs-Appellants, v. ROBINSON et, Defendants-Appellees.
    Common Pleas Court, Franklin County.
    Appendix “A”
    No. 4614.
    Decided March 22, 1951.
   OPINION

By REYNOLDS, J.:

This case is before the court on defendants’ demurrer to plaintiffs’ petition.

In this action plaintiffs seek to enjoin the defendants from refusing to grant insurance agents licenses to persons nominated by Motors Insurance Corporation or from refusing to admit such persons to examination to determine their qualifications to be licensed as insurance agents or from refusing to renew insurance agents licenses held by the individual plaintiffs and those whom they represent, or from revoking licenses upon the ground that the principal use of such licenses has been, is, or will be to procure insurance covering solely the .interests of persons, firms or corporations other than such licensees or their employees or employers in motor vehicles which such licensees or their employer, or employers, have sold or are selling.

The petition recites that Motors Insurance Corporation is a corporation, under the laws of the state of New York and engaged in the business of insuring against the risks of physical damage, to and theft of motor vehicles, and is conducting said business in the state of Ohio, among other places through licensed agents, who in the main are connected with the business of motor vehicle sales; that it has complied with all the laws of Ohio relative to foreign insurance companies, other than life, engaged in business of the kind herein described; that it was authorized to transact such business in Ohio by a certificate of authority issued to it by the division of insurance, Department of Commerce of the state of Ohio on May 9, 1940, which certificate has been renewed annually; that pursuant to such certificate Motors Insurance Corporation has transacted such insurance business in Ohio since September, 1948, as of which date agents appointed by it, were first licensed as insurance agents by- said division of insurance, acting through the then superintendent of insurance of Ohio; that since said date 935 individuals and 247 corporations have been appointed by said Motors Insurance Corporation and licensed by said division of insurance as agents of said corporation in Ohio, and at the present time there are approximately 912 such individual agents and that all of said corporations and approximately 863 such individuals are either motor vehicle dealers or officers or employees of such dealers and are doing business in approximately 454 different locations in Ohio; that the remaining agents are employees of plaintiffs’ branch offices in Ohio whose duties are substantially limited to receiving and forwarding applications procured by other licensed agents, and that all of said agents have met all the qualifying requirements for the issuance and renewal of licenses to act as insurance agents as provided by §644 GC; that plaintiff, The Avondale Motor Car Company, is a corporation under Ohio laws, with its principal place of business in Cincinnati, and is a dealer in motor vehicles, and is also licensed to procure applications for insurance in Ohio, as agent of Motors Insurance Corporation, pursuant to' license issued in September, 1948, by the superintendent of insurance, on the requisition of said Motors Insurance Corporation, which license was renewed on July, 1949, and is now in full force and effect; that plaintiff, Fred Kahn, is engaged in business as a dealer in motor vehicles, at Lebanon, Ohio, and holds a license issued by the state of Ohio, to procure insurance as agent of plaintiff; that plaintiff John L. Cashman is an employee of The Winders Chevrolet Company, an Ohio corporation, with its principal place of business in Columbus, where it is engaged in the business of dealing in motor vehicles, and that the . said Cashman holds a license to procure applications of insurance as agent of Motors Insurance Corporation, pursuant to a license issued by the state of Ohio on the requisition of Motors Insurance Company, which said license is in full force and effect; that plaintiffs bring the action on behalf of themselves and the representatives of the class above described, who are similarly situated and who would be similarly affected by the threatened actions complained of, and that there is a community of interest among the plaintiffs and the other said representatives of Motors Insurance Corporation above referred to; that defendant Walter Robinson is the duly qualified and acting head of the division of insurance within the Department of Commerce of the state of Ohio, with the title of superintendent of insurance; that defendant Robert L. Moulton is the duly appointed and qualified director of commerce of the state of Ohio, and as such, authorized to exercise the powers vested by the laws of Ohio in said department, including all powers invested in the office.of the superintendent of insurance; that the actions and threatened actions of which complaint is made herein have been and presumably will be taken and done in the name of the superintendent of insurance by defendant Walter A. Robinson under the authorization and with the approval of defendant Robert L. Moulton; that a very considerable proportion of the sales of motor vehicles by practically all dealers in the state of Ohio are transactions in which payment of the larger part of the purchase price is made in deferred installments. Generally, however, the dealer is not equipped to handle these transactions himself and must arrange for the financing thereof with some financial institution or institutions which generally require either a legal lien upon or a legal interest in the vehicle and insurance against physical damage and theft of the vehicle; that in case of deferred payments the cost of insurance is added, a chattel mortgage is given to the seller to secure the payments, and this is assigned to the institution financing the transaction, and the insurance premium is paid by it to the insurer; that the agents of plaintiff Motors Insurance Corporation, solicit and place the insurance incidental to such sales, but may not make the placement of such insurance with the said Motors Insurance Corporation a condition of such sales or such financing, an option of procuring such insurance through an agent and in a company of the purchaser’s choice being given each purchaser, but in most cases purchasers have elected to insure with said Motors Insurance Corporation. (Emphasis ours.)

In addition to the above described insurance placed by plaintiffs’ agents, they also placed' damage and theft insurance on vehicles sold for cash by the dealer with whom or which the agent is connected; on vehicles not sold by the dealer with whom the agent is connected, and on renewal policies on vehicles whether or not originally sold by the dealer with whom the agent is connected; that the insurance so written covers only the retail purchaser or owner but subject to any known lien or interest; that in no instance has an agent placed any insurance on vehicles owned by such agent or his employer, and the entire premium cost is borne solely by the retail purchaser or owner; that defendants have determined that if a majority or some other substantial number of policies of insurance placed in Ohio pursuant to a license issued under §644 GC by a person engaged in Ohio in the motor vehicle sales business cover motor vehicles which had been sold by such person 'or his or its employer or employees, then <it is the duty of the superintendent of insurance to revoke or refuse to grant or to refuse to renew such license, even though none of such policies has insured or would insure any interest of such person or employer as seller, and even though the entire premium cost of such insurance is or would be borne solely by the retail purchaser or owner of the motor vehicle.

The petition further alleges that defendants’ interpretation of the statute involved, to wit: §644-3 GC and related statutes, is incorrect, and that the practical effect of their enforcement as interpreted by defendants would be to destroy the insurance business of plaintiff in Ohio and would exclude persons connected with the business of selling motor vehicles from engaging in such insurance business in Ohio; and that unless enjoined, defendants will revoke existing licenses and refuse to renew or issue new licenses to agents representing plaintiffs, and which.acts are and would be unconstitutional and result in irreparable loss.

The prayer of the petition is that defendants be enjoined from enforcing §§644 and 644-3 GC as thus interpreted, to wit: from refusing to grant insurance licenses to persons otherwise qualified on the nomination of Motors Insurance Corporation, or from refusing to admit such persons to examinations to determine their qualifications to be licensed as insurance agents, or from refusing to renew licenses held by plaintiffs and those whom they represent, or from revoking such licenses, upon the sole ground that the principal use of such licenses has been or is or will be to procure, receive, forward, solicit, place or effect insurance covering solely the interests of persons, firms or corporations other than such licensees or their employees or employers on motor vehicles which such licensees or their employees or employers have sold or are selling.

Defendants filed a demurrer to the petition on the ground that it does not state facts sufficient to show a cause of action and the case is now before this court on said demurrer.

The case has been argued at length and both sides have filed extensive briefs which the court has read and re-read before coming to a conclusion on the' questions involved, which in substance are these, namely, do §§644 and 644-3 GC inhibit the licensing of the persons by whom and ,on whose behalf this action is brought, and if so, are the statutory provisions invalid as being violative of the constitutional provisions of the state of Ohio and the United States.

The statutes in question are §§644 and 644-3 GC which provide as follows:

“Sec. 644 GC. Agent’s license issued, when; notice of appointment; contents, revocation or cancellation of license; renewal; review; exceptions.

“No person shall procure, receive, or forward applications for insurance unless a resident of this state and duly licensed-by -the superintendent of insurance. Upon written notice by an insurance company authorized to transact business in this state of its appointment of a person to act as its agent the superintendent of insurance, if he is satisfied that the appointee is a suitable person and intends to hold himself out in good faith as an agent; that appointee is honest, trustworthy and understands the duties and obligations of an agent and is familiar with the insurance laws of the state and with the terms and provisions of the policies and contracts of insurance he proposes to effect; that in applying for such license it is not appointee’s purpose or intention principally to solicit or place insurance on. appointee’s own property or that of relatives, employers or employees or that for which they or the appointee is agent, custodian, vendor, bailee, trustee or payee, shall issue to appointee a license which shall state in substance that the company is authorized to do business in this state and that the person named therein is a constituted agent of the company in this state for the transaction of such business as it is authorized to transact therein. Such appointee, if he has not theretofore held a license as an insurance agent in this state, shall be required to submit to a hearing and examination as to the above qualifications. Such notice by an insurance company of its appointment of an agent shall be upon a form furnished by the superintendent of insurance and shall be accompanied by a statement under oath’by the appointee which shall give appointee’s name, age, residence, present occupation, occupation for the five years next preceding the date of the notice and such other information, if any, as the superintendent of insurance may require, upon a blank furnished by him. Such examination and hearing shall be held and decision rendered by the superintendent of insurance within thirty days from .date of application for license. The superintendent of insurance, after the granting of such license, for cause shown, and after a hearing, may determine any persons so appointed, or any person heretofore appointed as agent to be unsuitable to act as such agent, and shall thereupon revoke such license, and notify both the company and the agent of such revocation. Unless revoked by the superintendent of insurance or unless cancelled by him on written notice from the company or the agent that the agent’s authority to act for the company has been terminated by the company, such license and any other license issued to an agent or any renewal thereof shall expire on the 30th day of June next after its issue. But any license issued and in force when this act takes effect or thereafter issued, may, in the discretion of the superintendent, be renewed for a succeeding year'or years by a renewal certificate without the superintendent’s requiring the detailed information required by this act. A foreign or alien insurance company shall pay a fee of two dollars for every such license and for each renewal thereof.

“The action of the superintendent of insurance in granting, revoking, renewing or refusing to grant, revoke or renew such license shall be subject to review in accordance with the provisions of the administrative procedure act.

“An insurance company shall be bound by the acts of the person named in the license within his apparent authority as its agent.

“This section shall not apply to life insurance companies, including fraternals nor to domestic mutual protectivé assessment fire associations as defined in §9593 GC nor affect the provisions of §644-2 GC thereof.”

“Sec. 644-3 GC. Refusal to grant or renew license and revocation of license; investigation of written complaint; appeal; hearing. It shall be the duty of the superintendent of insurance to refuse to grant any license applied for, to refuse to renew, and to revoke any license of or to any appointee, agent, solicitor or foreign broker, when he is satisfied that the principal use of such license has been or is to procure, receive or forward applications for insurance of any kind, other than life, or to solicit, place or effect such insurance directly or indirectly upon or in connection with the.property of such appointee, agent, foreign broker or solicitor or that of relatives, employers, employees, or that for which they or the appointee, agent, foreign broker or solicitor are or is agent, custodian, vendor, bailee, trustee or payee, or to evade or violate the provisions of §9589-1 GC.

It also shall be the duty of the superintendent of insurance when a written complaint is filed with him that any such appointee, agent, foreign broker or solicitor has been, is or will be using any license or renewal thereof directly or indirectly for the purpose or purposes above set forth, to investigate such complaint forthwith. Provided, however, that in the event the superintendent of insurance finds there is no probable cause for complaint, he may order the complaint' dismissed. Such action of the superintendent of insurance shall be subject to review by appeal to the court of common pleas of Franklin County, Ohio, provided such appeal shall be filed by. the complainant with the superintendent of insurance and the court within thirty days after such action by the superintendent. Said cause shall proceed as a new civil action with the right of either party to submit evidence and to appeal.

Unless, the complaint has been dismissed as aforesaid, immediately upon completion of such investigation, the superintendent of insurance shall fix a time and place at which such complaint will be heard and shall give notice thereof to the complainant and to the appointee, agent, foreign broker or solicitor complained oí. The date set for such hearing shall be within thirty days, but not earlier than fifteen days after the date of such notice. The complainant shall be a party, and any other person as defined by §154-62 GC upon application to the superintendent of insurance and for good cause shown may be made a party to such hearing. At such hearing, any party shall have the right to produce and examine witnesses and to participate in the investigation and hearing with all rights of a party under the provisions of the administrative procedure act including the right of appeal from any order - entered therein to the common pleas court of Franklin County.”

Counsel for plaintiffs argue at length about the ambiguities and grammatical faults of these sections, as a result of which the intention of the legislature is at best difficult to determine, but that in the- last analysis the conclusion as to the legislative intent is that it was to prevent the obtaining of insurance at discriminatory rates.

As supporting this theory, a comprehensive history of the various, legislative enactments governing the insurance business is indulged to indicate a continued and consistent purpose to prohibit rebating and otherwise discriminatory practices in connection with insurance premiums.

The state of Ohio first began to supervise and regulate the insurance business in this state when it organized a separate department and provided for a superintendent of insurance and made it unlawful for any person or company to engage in the insurance business unless licensed by the said superintendent.

In 1910 the legislature enacted what is substantially now §9589-1 GC, which prohibited rebates or other special favors as an inducement to secure insurance.

In the case of State v. Conn, 110 Oh St, 405, the Supreme Court stated that

“the purpose of the fire insurance act (§9589-1 GC) was to prevent discrimination as to rates directly or indirectly by the insurer between its insured, and that it has not for one of its purposes the prevention of competition between insurance companies as to the rate which each may charge.”

In 1917 the legislature amended 644 and also enacted §§644-1, 644-2, 644-3 and 644-4 GC.

Sec. 644-3 GC provided for the revocation or withholding of a license by the superintendent of insurance when he is satisfied that the principal use of such license was-to effect insurance upon the property of the licensee or applicant for a license.

The purpose of this statute would appear to be that licenses should not be granted to persons who were not intending to use the same for the general insurance business, but rather for their own individual benefit, since by the provisions of §9589-1 GC, a duly authorized agent was entitled to the regular commission on policies of insurance on his own property, the insurance covering which he himself effected.

The following is the wording of §644-3 GC as originally enacted in 1917:

“Sec, 644-3 GC. It shall be the duty of the superintendent of insurance to withhold any license applied for, or revoke any license to any agent, solicitor, or broker when he is satisfied that the principal use of such license is to effect insurance upon the property of such agent, broker or solicitor, or to evade or violate the provisions of §9589-1 GC.”

The statute remained in this form until amended in 1949 and which amended statute has been heretofore set forth.

While the amendment is perhaps needlessly verbose and should not be held up as an example of the best English or grammatical perfection, yet it seems clear that the legislature intended to add to the reason for refusing to grant or renew licenses or for revoking one already issued, that the principal use was to effect insurance upon the property of the licensee, the further provisions that the principal use also included property of relatives, employers, employees, or the property for which the licensee, relatives, employers or employees, is or are agent, custodian, vendor, bailee, trustee or payee.

It is the contention of plaintiffs that even should the statute be construed most unfavorably to them, that the restriction as to the insurance involving property for which certain named persons are vendors, that it could refer only to the time that the named persons held the property either actually or theoretically and that as soon as the property was sold and the property belonged to the purchaser, the restriction no longer applies.

In other words it is desired to construe the restrictive provisions of the statute as relating to insurable interests of the licensees, their relatives, employers, etc.

If this had been the intention of the legislature a great deal of trouble was indulged to express a simple purpose, and which could have been simply and directly stated.

Nor can the court agree that the primary purpose of the legislative enactment was to further lessen the chances of rebating or the affording of unfair advantages to persons insured, and to accomplish this the legislature was narrowing still further the field of activity of the licensee.

In view of the provisions of §9589-1 GC which specifically prohibits rebating or other special favors or inducements to secure insurance, and provides for the revocation of licenses in cases of violations, the query naturally arises why there should be any necessity for a statutory provision curtailing an agent’s activities for fear of his violating this statute.

The absolute guaranty that there would be no violation of §9589-1 GC, would be, of course, to inhibit the licensee from writing any insurance, which of course lends to an absolute absurdity, toward which the suggested legislative purpose is at least a small step.

Prior to 1935 about the only conditions precedent to the granting of a license to- a person affording him the right to act as an insurance agent were that some insurance company authorized to transact business in this state give a written notice to the superintendent of insurance of appointment of such person as agent, and the superintendent be satisfied that the appointee is a suitable person and intends to hold himself out in good faith as an agent.

In 1935 §644 GC was amended, setting out the further conditions, that before the superintendent should issue a license that he should be satisfied that the appointee “is honest, trustworthy and understands the duties and obligations of an agent and is familiar with the insurance laws of the state and with the terms and provisions of the policies and contracts of insurance he proposes to effect; that in applying for such license it is not appointee’s purpose or intention principally to solicit or place insurance on appointee’s own property or that of relatives, employers or employees or that for which they or the appointee is agent, custodian, vendor, bailee, trustee or payee * * (Emphasis ours.)

Subsequent to this enactment the interpretation placed on the added conditions precedent to the issuing of licenses was that they precluded automobile salesmen since presumably they would use their licenses to insure automobiles sold and being sold by their employers.

In the case of Motors Insurance Corporation v. Dressel, 80 Oh Ap, 505, decided in our own Court of Appeals, the court held that the superintendent of insurance could not add to ■the qualifications or conditions for an insurance agent’s license and that automobile, salesmen could not be denied licenses simply for that reason.

This case affirmed the decision of Judge Leach of this court and in the case of Automobile Insurance Agency v. Lloyd, 36 Abs 448, the same judge held that where the applicants had the qualifications set out in §644 GC and

“Intend to hold themselves out in good faith as insurance agents * * * there is nothing to show that it is their purpose and intention principally to solicit or place insurance on their own property or that of relatives, employers or employees, or that for which they or the appointee is agent, custodian, vendor, bailee, trustee or payee,” they are entitled to be licensed.

After the decision in the Dressel case, supra, the Motors Insurance Corporation filed applications for numerous persons connected with General Motors automobile dealers, and the superintendent of insurance held hearings to determine whether or not the applicants intended to use their licenses principally in connection with automobiles sold by agencies with which they were connected, and in granting the licenses the superintendent found from the evidence that the applicants expected to secure most of their business from persons other than their own or employers’ customers.

It clearly appears, therefore, that the interpretation placed on the added provisions of §644 GC made in 1935, was that there was a restriction against licensees placing insurance on motor vehicles sold by them or their employers, and this restriction was not limited to or determined by the vendor’s interest, but was intended to apply to those transactions where the licensee or his employer had actually sold the particular automobile involved.

The purpose of the restriction was undoubtedly intended to prevent an unfair advantage in the placing of insurance and the licensing of persons who were not intending to do a general insurance business, • but simply to supplement their primary business of selling automobiles.

This having been the interpretation of the provisions of §644 . GC, prior to the amendment of §644-3 GC when the added provisions for revocation were incorporated which were in effect those provisions of §644 GC added in 1935, it is concluded by the court that the legislature intended the same interpretation of the amended 644-3 GC and that the restrictions with respect to insurance on property of which the licensee or his employer is the vendor applies to the time the sale is consummated, and the licensee is in an especially advantageous position to place the insurance.

This leaves then the question whether the statute so interpreted is violative of any constitutional right.

In this connection it must first be noted that it is generally recognized that the insurance business is one ves'ted with a public interest and as such properly subject to government control.

See Verducci v, Casualty Co., 96 Oh St, 260.

Such being the case .the right to engage in the insurance business is not an absolute right but a privilege accorded by the state granted upon specified terms and conditions. The restrictive provisions therefore in connection with the granting of licenses for selling insurance are not the deprivation of property nor do they afford special privileges. On the contrary, they seek to avoid special privileges being enjoyed or of which special advantage may be taken.

Counsel for plaintiff have cited numerous cases in support of their theory that legislative regulation of business is unconstitutional, most of which cases are readily distinguishable on the facts and will not be individually discussed.

The case most nearly comparable to the instant case is that of Hauser v. North British and Mercantile Title Insurance Co., 206 N. Y., 455, in which the New York court held invalid a statute requiring an applicant for an insurance license to file an application stating that he “is engaged or intends to engage in good 'faith principally in the insurance business, or that he conducts or intends to conduct such business in connection with a real estate agency or real estate brokerage business.”'

The question naturally arises as to why an agent might not conduct an insurance business in connection with other business than the real estate business, and it is apparent that the law did not have a general application.

The syllabus of that case is as follows:

“A statute under the guise of an exercise of the police power cannot arbitrarily interfere with that liberty of pursuit; the equal protection of the laws means equality of opportunity to all in like circumstances, and classification to be valid must not be arbitrary and discriminate against persons without a basis in reason.”

In its opinion the court said:

“We may readily concede that, as a measure regulative of a business pursuit, which, from the extent to which it is carried on, is presumably, affected with a public interest, the requirement by the legislature of a license would not be an unreasonable exercise of power. That would afford an opportunity for inquiry into antecedents and fitness of character, and be a reasonable enough precaution in the public interest. But the legislature has prescribed in this statute a condition for the issuance of the license, which is a purely arbitrary restriction. There is no good reason, and no public interest can, conceivably, be subserved in prohibiting persons from conducting the business of an insurance agent or broker, in connection with any other lawful business, or occupation in which they may be engaged.”

This distinguishes that case from the instant one, where the restriction is general and not of limited application since it is referable to any kind of business.

The statute under consideration does not deprive any class, group or individual from securing an insurance license if he has the necessary qualifications and intends to use his license to conduct a general insurance business, qualified only by the provision that the license is not to be used primarily to effect insurance on his own. property, or that of relatives, employees, employers, or that for which they or the licensee are or is agent, custodian, vendor, bailee, trustee or payee.

It, therefore, cannot be successfully maintained that the effect of the statute is to deprive any one from the right or ability or opportunity to secure a license to sell insurance.

In the ease of Daniel v. Family Security Life Insurance Co., 336 U. S., 220, the Supreme Court of the United States upheld the validity of a South Carolina statute forbidding undertakers to serve as life insurance agents.

From a reading of the court’s opinion and the note appended, containing reasons advanced before the legislative committee when the law was under consideration, we must come to the conclusion that the law was aimed at the possible evil of a monopolistic control of a certain kind of life insurance, providing among other benefits, the payment of funeral expenses, for the reason that undertakers would be in an advantageous position to effect such insurance.

The same argument was pressed in that case as is now voiced, namely, that an insurance lobby had secured the passage of the law, and the court properly held that it was not equipped to decide the desirability of the law. The reasons inducing the legislation are immaterial, if a valid statute is enacted into iaw.

In the instant case it is not difficult to see that if automobile salesmen may be licensed as insurance agents without restriction or limitation, the effecting of all kinds of insurance involving automobiles could conceivably and reasonably become in theory, if not in fact, a monopoly controlled by that company or companies which were successful in having the automobile agents licensed to sell their insurance.

The prevention of such an eventuality could well have been the purpose of the legislature in enacting the law under consideration, which the court determines is not in contravention with any of our state or national constitutional provisions.

Counsel stress the provision of the statute with respect to the word “solicit” and put out the difficulty of determining the percentage of solicitation as between the general public, and the restricted classes. The court is of the opinion that this question will present little or no difficulty, and that only those solicitations which result in effecting insurance will be regarded. In other words, the word “solicit” is to be regarded as related to and to be interpreted with “place and effect,” and a mere solicitation without method effecting any insurance would be disregarded.

After all, it is only the insurance actually placed which can give the superintendent any accurate information as to whether there has been any violation of the licensee’s promise that his purpose is not principally to insure his own property and that of relatives, employers or employees or that for which they or he is vendor, etc.

Any abuse of discretion on the part of the superintendent of insurance in refusing to issue licenses because of any questions relating to the insurance of property of which the licensee or his employer is vendor, is subject to review or correction by the courts, so that the agents’ or prospective agents’ rights are properly guaranteed.

The fact that a law may be difficult of application or the subject of administrative abuse does not of itself make the law invalid.

For the reasons stated, the court has determined that the petition does not state facts sufficient to constitute a cause of action and therefore defendants’ demurrer is sustained.


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    MOTORS INSURANCE CORPORATION et, Plaintiffs-Appellants, v. ROBINSON et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4614.
    Decided October 23, 1951.
    Eagleson & Laylin and Ballard, Dresbaeh & Crabbe, Columbus, for plaintiffs-appellants.
    C. William O’Neill, Atty Geni., Ralph Klapp, Asst. Atty. Geni., Columbus, for defendants-appellees.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court construing §§644 and 644-3 GC and also holding that the same is not in violation of Article I, Section 2 of the Constitution of Ohio, and of the Fourteenth Amendment to the Constitution of the United States.

We have examined the well-considered opinion of Judge Reynolds and are in accord with the logic and legal conclusions contained therein.

Finding no error in the record, the judgment will be affirmed.

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


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    SADLER, Plaintiff-Appellee, v. BROMBERG, d. b. a. STERLING SUPPLY COMPANY, et al., Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4468.
    Decided October 11, 1950.

      John F. Sisson, Columbus, for plaintiff-appellee.
    Benjamin F. Le.vinson, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin County, Ohio.

Defendant-appellant contracted to install steel wall tile and certain plumbing fixtures in the kitchen and bath room in the residence of plaintiff-appellee. Several months after the tiling was installed a number of the squares of the tile fell from the walls and ceiling of both the kitchen and the bath room. Defendant-appellant made repairs at various times, replacing the tile which had fallen, but the tile continued to fall from the walls and ceilings of both rooms.

Plaintiff sued for damages for breach of contract. The jury returned a verdict for $1300.00. Judgment was entered on the verdict. On motion for new trial the Court found the verdict to be excessive in the sum of $300.00. The motion for new trial was overruled upon the plaintiff accepting a remittitur in the sum of $300.00.

The defendant-appellant assigns as error that the verdict is contrary to law; against the manifest weight of the evidence; was returned by reason of passion and prejudice on the part of the jury, and is excessive; misconduct of counsel for plaintiff; that the judgment is not sustained by sufficient evidence, and is contrary to law. After a careful consideration of the entire record in the case we do not find such assigned errors well made.

The defendant-appellant also assigns as error that the Court erred in its general charge. The Court charged on circumstantial evidence and stated that from certain facts proven the jury had a right to draw direct logical inferences in determining the existence of other facts. The Court charged that the inference must be based on reason and that the verdict should never be arrived at based purely upon guesswork or conjecture. The defendant contends that the charge should have been more complete on this matter. The defendant only took a general exception to the charge. The error complained of cannot be urged here inasmuch as counsel for defendant made no request for an additional charge, although the record shows that the Court invited suggestions at the end of the charge. If error was committed it was an error of omission and not of commission and would not constitue reversible error if the charge as given is unobjectionable. Columbus Ry. Co. v. Ritter, 67 Oh St 53, 65 N. E. 613; Portney v. Frank, 77 Oh Ap 357, 65 N. E. (2d) 290; Hubbard v. Cleveland C. & C. Highway, 81 Oh Ap 445, 76 N. E. (2d) 721, 50 Abs 78; Bachman v. Ambos, 83 Oh Ap 141, 79 N. E. (2d) 177, 50 Abs 97; Kleinhans v. American Gauge Co., 83 Oh Ap 453, 80 N. E. (2d) 626, 52 Abs 104; Vol. 2 O. Jur. p. 909.

The defendant-appellant also contends that the Court gave an erroneous charge with respect to the measure of damages. The Court charged as follows:

“The measure of damages in this case would be in such an event the reasonable cost of material and labor required to restore this job so as to place it in the condition contemplated by the parties when they signed this contract, that is, such an amount as would be the reasonable cost of restoring the job in both the kitchen and the bath room in a substantial and workmanlike manner.”

The defendant contends that the measure of damages is the difference in market value of the property immediatel' before and after the injury. This is the rule with respect to personal property. It is not generally applied to actions for damages growing out of real estate building contract cases. In the written contract which was entered into the defendant agreed to perform the work in a “substantial and workmanlike manner.” Whether or not the defendant had performed its contract in a substantial and workmanlike manner was the principal issue in the case. In Vol. 123 A. L. R. p. 520, a statement with respect to the measure of damages in such cases is as follows:

“In almost all, if not in all, of the jurisdictions in which the precise point has arisen, cost of correction or completion rather than loss in property value ordinarily affords the proper basis for measuring the damages which result to the owner from the breach of a building or construction contract, or other contract to change the condition of real property. The propriety of applying such measure of damages is especially clear where correction or completion would not involve unreasonable destruction of work done by the contractor and the cost thereof would not be grossly disproportionate to the results to be obtained.”

In support of the editor’s note numerous cases are cited from various states of the Union. No case is cited from Ohio. However, in Vol. 13 O. Jur. p. 100 the text is as follows:

“In fixing the measure of damages recoverable against a building contractor who has so negligently done his work that the parts built by him are useless, the jury are at liberty to take into their estimate of the injury the money paid out to put the building in the condition it would have been in, if the work had been well done; also, the inconvenience and interruption of the plaintiff in the enjoyment of the premises, the loss of its use, the injury to the furniture, and whatever else entered into the injury actually sustained, and also the expense of obtaining legal redress.”

In support of the text the case of Somerby v. Tappan, Wrig'ht, 229, 570, is cited. ,

In our opinion the trial court properly charged with respect to the measure of damages.

Finding no error in the record prejudicial to the defendant-appellant, the judgment is.affirmed.

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


author: Per CURIAM:

text:
    EDWARDS, Estate of, In re, BIANCO, CATARBY, Former Executors, Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21985.
    Decided February 19, 1951.
    Garfield, Baldwin, Jamison, Hope & Ulrich, Cleveland, for appellants.
   OPINION

Per CURIAM:

This appeal comes to this court on questions of law from a final order of the Probate Court overruling the application of the Executors of the estate of LaVinnie D. Edwards, deceased, in effect seeking a declaratory judgment that one Ariton Verbsky, also known as Arriton Verbsky, an heir at law of the deceased, who was not served with notice of the application seeking the probate of the will of the deceaséd, is estopped from making any claim objecting to the probate of the will or to the administration of said estate which is now closed.

The evidence clearly shows that said Ariton Verbsky, a. k. a. Arriton Verbsky, had full and complete knowledge of the probate of the will and the administration of the estate; that during the entire time, his conduct indicated an intention to waive any objection to the probate of said will or to the administration of the said estate and that he did execute a waiver when the matter came to his attention, and further testified that as to his best recollection he was in fact served with notice.

He further testified that he was perfectly willing that the probate court enter a decree estopping him from making any claim contesting the validity of the ordér of probate of the will or the administration of the estate and that by virtue of his conduct, the executors were misled by his silence and failure to timely object to the probate of said will and the administration of the said estate.

The court finds that by virtue of his conduct and full and complete knowledge of all the proceedings and the entire absence of any claim of fraud, that the case comes clearly within' the exception set forth by the Supreme Court in the case of Scholl v. Scholl, 123 Oh St 1, wherein at page 6 of the opinion the court said:

“Failure to give notice might not be fatal if the circumstances were such that the principle of estoppel would apply.”

This court holds that the probate court, having equitable jurisdiction in the administration of estates, and the power to entertain an action seeking a declaratory judgment to determine the rights or status of persons interested in such proceedings, had the power, in the interest of justice, to enter a finding in such declaratory judgment action holding that Ariton Verbsky, also known as Arriton Verbsky, is estopped from asserting any claim adverse to the probating of the will or the administration of the estate, now closed.

Coming now to enter the judgment which should have been rendered below upon the record, the said Ariton Verbsky; also known as Arriton Verbsky is held to be estopped from making any claim adverse to the entering of the will for probate or against the administration of the estate, now closed. Exc. Order see journal.

SKEEL, PJ, HURD, J, McNAMEE, J, concur.


text:
    BORDEN’S RED WING ICE CREAM COMPANY, Plaintiff-Appellee, v. BURROWS, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2097.
    Decided April 5, 1950.
    J. D. Chamberlain, Jr., Dayton, for plaintiff-appellee.
    Harold E. Smock, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

This is a law appeal from the judgment of the Common Pleas Court affirming that of the Municipal Court. One of the errors assigned is that the plaintiff at no time complied with a court order requiring the plaintiff to file an itemized statement of the account sued upon. The record shows that an attempted compliance was made by amending at bar. If any error was committed by the trial court in this respect it cannot be said to be prejudicial for the judgment entry, approved by counsel for the defendant, recites in part as follows: (

“The Court finds that the allegations of the Statement of Claim are confessed by the defendant to be true * *

It is further claimed that the Court acquired no jurisdiction over the defendant, as he was served with summons at his residence which is not in the City of Dayton. However, the defendant entered his appearance by filing the motion to amend the petition on October 11, 1948.

We find no merit to any of the errors assigned and the judgment is ordered affirmed.

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


author: By STEVENS, PJ.

text:
    JAICH, Plaintiff, Appellant, v. BELKIN et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22059.
    Decided February 5, 1951.
    M. P. O’Brien, Cleveland, for plaintiff-appellant.
    Crossen & Chamberlain, Cleveland, for defendant-appellees.
    (STEVENS, PJ, HUNSICKER, J, DOYLE, J, of the 9th District sitting by designation in the 8th District.)
   OPINION

By STEVENS, PJ.

In' this appeal upon questions of law from a judgment for plaintiff for $5000.00, growing out of a fall by the plaintiff in defendant’s store, there, are five assignments of error, here presented:

1. Error in the charge of the court on the “hand rail statute,” §1006 GC:

2. Error because of the trial court’s refusal to direct a verdict for defendant at the conclusion of all the evidence;

3. Refusal of the court to charge that the defendant is not an insurer, as requested orally by defendant at the conclusion of the general charge;

4. This assignment is abandoned by the plaintiff.

5. Excessiveness of the verdict.

The record in this case establishes conclusively that the plaintiff slipped and fell on the bottom step of the top flight of steps and that at the locus of her slipping there was a hand rail which fully complied with the requirements of §1006 GC.

There is no evidence of a defective stairway either from wear or structural defects. There is evidence that there was no hand rail at the location of the landing and the three steps leading therefrom. This, however, is not the location of plaintiff’s fall.

From our examination of this entire record, we are unanimously of the opinion that at the conclusion of all the evidence there was no issue requiring submission to the jury by the court and the trial court should therefore have directed a verdict for defendant at the conclusion of all the evidence.

Having failed to do so, it is the duty of this court to enter the judgment which the trial court should have entered.

The judgment for plaintiff is reversed and reasonable minds being able to reach but one conclusion and that adverse to the claims of plaintiff, final judgment is entered for the defendants.

Reversed and final judgment for defendants. Ex. Order see journal.

HUNSICKER, J, DOYLE, J, concur.


author: By SKEEL, PJ.:

text:
    DAVIS, Plaintiff-Appellee, v. ZUCKER, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22203.
    Decided November 26, 1951.

      Harrison, Spangenberg & Hull, Cleveland, for plaintiff-appellee.
    Arter, Hadden, Wykoff & Van Duzer, Cleveland, for defendant-appellant.
    (DOYLE, J, of 9th District sitting by designation in place Of HURD, J.)
   OPINION

By SKEEL, PJ.:

This appeal comes to this Court on questions of law from a judgment entered in the Common Pleas Court of Cuyahoga County in favor of the plaintiff appellee. The plaintiff filed her action against the defendant, seeking damages which she claims to have sustained as a proximate result of certain alleged acts of negligence of the defendant charged to have been committed while operating his automobile in an easterly direction on Superior Avenue in the City of Cleveland at about 5:25 P. M. on August 18, 1949.

The plaintiff, at the time of the accident, was attempting to cross from the north side of Superior Avenue to the eastbound car stop on the south side of Superior Avenue on the westerly crosswalk of East 59th Street. East 59th Street intersects Superior Avenue from the north, but not from the south.

At the time the plaintiff started to cross Superior Avenue an east-bound street car was approaching. She signaled the motorman of her desire to become a passenger, and the motorman thereupon brought the street car to a stop. The street car stopped with its front end at the west side of the west cross-walk of East 59th St., and at a point within the regular stopping place, as indicated by a stop sign attached to a trolley pole 27 feet west of the intersection.

The defendant at the time in question was driving his auto-. mobile easterly and was either just approaching or. had reached the side of the street car when the street car began to stop on plaintiff’s signal. As the street car slowed down and stopped, the defendant applied his brakes but did not stop until he had passed beyond the front end of the street car. The plaintiff either walked rapidly or ran in front of the street ear and as she stepped into the eastbound roadway she was struck by defendant’s automobile and seriously injured.

The claims of the respective parties as to the' negligence proximately causing the plaintiff’s injuries are in direct conflict. The question of the extent of plaintiff’s injuries is not in serious dispute.

It is the claim of the plaintiff that as she signalled the street car to stop she walked rapidly to and then waited in the devil strip until it did stop, the street car making an ordinary stop at a usual stopping place; that after the street car stopped she walked past the front end to board it at the front door and as she stepped into the east roadway to reach the front door she was struck and severely injured by defendant’s automobile which defendant was driving in a negligent manner at a dangerous rate of speed and failing to stop as required by law which he could and should have done in the exercise of ordinary care.

The defendant on the other hand contends that plaintiff’s negligence was the sole proximate cause of her injuries in that the street car made a sudden emergency stop upon plaintiff’s signal; that she ran from the north side of the street directly in front of the street car which came to a sudden stop as she passed in front of it and that she ran into the front side of defendant’s car as he, in the exercise of due care, was attempting to stop because of the sudden emergency created by the plaintiff’s alleged negligent conduct.

The defendant claims the following prejudicial errors.

1st, in the court’s general charge

(a) in defining “preponderance of the evidence”

(b) as to what speed constituted negligence per se

(c) on the subject of the effect of an emergency relieving defendant from an alleged violation of law

(d) permitting the jury to consider as an element of plaintiff’s damages a postponement of marriage

2nd, in admission of evidence

(a) as to effect of skid-marks by a police officer claiming to be an expert

(b) Plaintiff’s evidence on postponement of marriage.

3rd, Verdict against the weight of the evidence.

4th, Excessive damages.

5th, In overruling motion for new trial.

An examination of the record discloses credible evidence supporting the necessary allegations of plaintiff’s petition and we therefore hold that the defendant’s claims of error Nos. 3 and 5 are not well taken. The same is true of defendant’s claim that the verdict is excessive. This claim is based in part on the evidence which was received as to the necessity of plaintiff postponing the date of her contemplated marriage. Where a woman, who, prior to an injury sustained by the alleged negligent acts of another, was eligible to marry and is so injured as a proximate result of such claimed negligence, so as to minimize or destroy her prospects of marriage or to make it difficult or impossible for her to assume the duties of marriage, if such claims are’ supported by evidence, the jury should be instructed to consider such circumstances, in determining the plaintiff’s damage. Smith v. Pittsburg & W. R. R. 90 Fed. 783.

The evidence that was introduced on this subject was properly received. Likewise, there was no error in the court’s charge on the question because all the court did was to read the allegations contained in plaintiff’s petition. Assignments of error 1 (d), and 2 and 4 are therefore overruled.

The defendant further claims that it was error to admit expert testimony of a police officer on the extent of certain skid marks which plaintiff claims were left as a result of defendant’s attempt to stop his automobile, and to give his opinion, based upon the length and density of such skid marks as to the speed of defendant’s motor vehicle just before he applied his brakes. The officer in the first instance gave evidence of his qualifications as an expert on this subject. The extent of his knowledge and dependability of his conclusions as disclosed by the record became a question of fact for the jury. It is a matter of general knowledge that, as a result of many years of study and research by traffic engineers, it is possible to accurately judge the speed of a motor vehicle from skid marks. We find no error in the admission of this evidence.

There are three other claims of error, all of which have to do-with the court’s general charge. Two of such claims deal with claimed misstatements of rules of law applicable to issues material to the case which were called to the court’s attention and which the court then proceeded to correct by a proper charge of the law on the subject.

The first of these was as to the speed section of the General Code. The court first charged that any speed in excess of twenty-five miles per hour at the place of the accident, constituted negligence per se. This was clearly wrong and if left unchanged would constitute prejudicial error. But the error was called to the court’s attention, whereupon, in clear and understandable language, the court directed the jury to disregard the improper statement and then gave a correct' charge on the subject.

The second of the charges had to do with the statement of the law in case of a sudden emergency affecting the defendant’s obligation to abide by the law of stopping when a street car is stopping or has stopped at a regular stopping place for passengers. Of course, if a sudden emergency developed by the sudden stopping of the street car, where, under the circumstances in the exercise of ordinary care the defendant was unable to comply with the law requiring him to stop his automobile at a regular car stop when a street car is stopping or has stopped to take on or let off passengers, the failure to stop would not constitute negligence. Whether the charge on this subject, as first given, was sufficiently complete is not now important. The claim that it was not, was presented to the court and the court then gave a complete and correct statement of the law applicable to defendant’s contention, insofar as it was supported by. the evidence:

To hold that incorrect statements of the law, which, if not corrected, would constitute prejudicial error, cannot be withdrawn from the consideration of the jury, and a correct charge given, would subject the trial of a case to technical hazards clearly unnecessary to do justice between the parties. Lawrence v. Kern, 111 Oh St 564.

Here, the correct rules on the issues of speed and emergency were, because of the correction made by the. court, made to appear in clear and unmistakable language. No error can be founded on the correction as made or upon the circumstances that made it necessary to correct the charge as first given.

Coming now to the question of the charge of the Court on the burden of proof. The Court charged the jury as follows:

“Before the plaintiff may recover in the action, she must prove to you, by a preponderance, of the evidence, one or more of the essential allegations of her petition, and by a preponderance of the evidence we mean the greater weight of the evidence, or that evidence which appeals more strongly to your minds than the evidence offered by the defendant to the contrary.” (Emphasis ours.)

It is the defendant’s contention that the charge deprived him of the benefit of any evidence introduced on behalf of the plaintiff, that might be considered favorable to his case, in seeking to negative or counter-balance the effort of the plaintiff to establish her case by the greater weight of the evidence.

There can be no question but that both parties are entitled to have the jury weigh all of the evidence in considering the issues and determining whether or not the party having the burden of proof on a particular issue has sustained his contention in that regard by the greater weight of the evidence. A charge which confines a party to his own evidence without the benefit of any evidence introduced by his adversary, favorable to his case, is erroneous.

Valencic v. Akron & Barberton Belt R. R., 113 Oh St 287, 13 N. E. (2d) 240.

Cincinnati Traction Co. v. Williams, 115 Oh St 124, 152 N. E. 30.

Cincinnati St. Ry. Co. v. Keehan, 45 Oh Ap 75, 186 N. E. 812.

Cincinnati Traction Co. v. Egrich, 25 Oh Ap 546, 159 N. E. 484.

The plaintiff’s contention is that, granted the charge was erroneous, an examination of the record discloses that, when considering all of the plaintiff’s evidence in its most favorable light as to the contentions of the defendant, in meeting the allegations of negligence charged against him, and in considering the question of contributory negligence on the part of the plaintiff, there is absolutely no help for defendant’s case coming from the plaintiff’s evidence. We have carefully examined the record, with this contention in mind, and after a careful consideration of all of plaintiff’s evidence introduced to establish the defendant’s negligence, we are unable to say that reasonable minds would not differ on the question of whether or not some part of such evidence might not be helpful to the defendant’s case.

An examination of that part of the charge, now being considered, discloses that it is totally different than the charge which was held prejudicial in the Williams case, supra. This part of the charge is concerned with the burden which plaintiff must assume in making out her case, and defining the term “Preponderance of the evidence.” The jury is told that the plaintiff must prove the allegations of her petition by a preponderance of the evidence, and that * * * “by a preponderance of the evidence we mean the greater weight of the evidence, or the evidence which appeals more strongly to your minds than the evidence offered by the defendant to the contrary.”

“The preponderance of the evidence does not necessarily mean the greater number of witnesses. It simply means the greater weight of the testimony.”

The last paragraph of the part of the charge just quoted is a full and correct definition of what is meant by the preponderance or weight of the evidence, and was meant to apply to the obligations of both parties, where applicable. It must be considered, therefore, that the paragraph to which the defendant takes exception had application only to the plaintiff.

This part of the charge does not deprive the defendant of the right to have the jury consider, on his behalf, any of plaintiff’s evidence that they might think supports his contentions.

The. court in effect says that she must show or establish the material allegations of her claims of negligence proximately causing her injuries 'and damages, by the greater weight of the evidence, that is, that evidence dealing with and supporting the material claims of the plaintiff which appeals more strongly to the minds of the jurors than the evidence offered by the defendant to the contrary.

This part of the charge does not, in any way, limit the evidence which the jury may consider as supporting the defendant’s contentions or, from his standpoint, the evidence that weighs against the plaintiff’s attempt to establish her case. The jury, under this instruction, as against the plaintiff, may consider all of the defendant’s evidence which is unfavorable to her case, and also any evidence introduced by plaintiff that can be said to support the contentions of defendant or assist him in meeting and attempting to counterbalance all evidence supporting the plaintiff’s case.

We, therefore, conclude that this instruction does not come within the orbit of the objections that were held prejudicial as limiting or denying to one party whatever support for him may be found in the evidence of his adversary in the cases above cited.

An examination of the whole charge discloses that the plaintiff has far more reason to complain than the defendant. Before argument a special, instruction was requested and given in which the jury was told that if, by the preponderance of the evidence, it is established that plaintiff was negligent and such negligence proximately contributed in the slightest degree to cause her injury, she could not recover. This instruction does not include an instruction as to who has the burden of proof in establishing negligence on the part of the plaintiff. In three places in the general charge, the jury was instructed that at all times the plaintiff must have been in the exercise of ordinary care for her own safety and if she failed to exercise ordinary care she could not recover. In no one of these instances is the question of proximate cause or burden or proof considered.

Keeping in mind that that part of the charge quoted above, which the defendant here assigns as prejudicial error, had to do with the' plaintiff’s case and in no way limited the jury’s consideration of all the evidence in his behalf, this claim of error is. overruled.

The judgment is, therefore, affirmed. Exc. Order see journal.

DOYLE, J, THOMPSON, J, concur.


author: By WISEMAN, J.

text:
    STATE, Plaintiff-Appellee, v. DEAN, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4535.
    Decided February 13, 1951.
    Ralph J. Bartlett, Pros. Atty., George T. Tarbutton and Edmund B. Paxton, Asst. Pros. Attys., Columbus, for appellee.
    James F. Henderson, John H. Baker, Columbus, for appellant.
   OPINION

By WISEMAN, J.

This is a law appeal from the Common Pleas Court of Franklin County in a criminal case in which the defendant was found guilty of murder in the first degree with recommendation of mercy.

For his first assignment of error defendant claims there was no evidence produced to show that the crime was committed in Franklin County. An employee of the County Engineer’s office was called as a witness who prepared a plat of certain locations in Franklin County, and this plat was introduced as State’s Exhibit C. This plat shows roadways and streets extending from downtown Columbus to the place where the body was found on the bridge shortly after the crime was committed- During the examination of the employee who prepared the plat this question was propounded:

“Q. At the request of the Prosecuting Attorney did you prepare a plat of certain locations in Franklin County?

“A. I did.”

A deputy sheriff who was called as a witness testified as follows:

“Q. You were the first there?

A. No, we had a cruiser there.

Q. Who was in that cruiser?

A. Frank Martin and John A. McFerin.

Q. They got there before you did?

A. Yes, they patrol that end of town and county.”

In the ease of State v. Dickerson, 77 Oh St 34, 82 N. E. 969, it was held that:

“In the prosecution of a criminal case, it is not essential that the venue of the crime be proven in express terms, provided it be established by all the facts and circumstances in the case, beyond a reasonable doubt, that the crime was committed in the county and state as alleged in the indictment.”

In Fry v. State, 43 Oh Ap pp. 154, 158, 182 N. E. 695, it was held that:

“Venue of criminal prosecution may be laid in general terms.”

In State v. Schroyer, 66 Oh Ap 30, 31 N. E. (2d) 469, and in State v. Stewart, 79 Oh Ap 340, 64 N. E. (2d) 252, this Court held that venue need not be established by direct evidence but it is sufficient if all the facts and circumstances in the case show beyond a reasonable doubt that the crime occurred in the city, county and state as alleged. In Vol. 22 C. J. S., page 291, it is stated that:

“Aside from any statutory provision, the finding of a body in a county would warrant a finding that the murder was committed in that county.”

In our opinion there were sufficient facts .presented to the jury from which they could conclude beyond a reasonable doubt that the crime was committed in Franklin County, State of Ohio.

In his second assignment of error the defendant claims that the Court committed error in permitting Clyde Blanton, a brother of the wife of-the man who was killed, to testify after he had been in the court room during the testimony of the preceding witness. At the beginning of the trial the Court ordered a separation of witnesses. During the progress of the trial Clyde Blanton was called from Kentucky to testify. Upon arriving he entered the court room and was sitting in the court room while certain portion of the testimony was being given. It appears from the record that the witness was not informed that the Court had ordered a separation of witnesses. The Prosecuting Attorney made a statement to the effect that he did not know the witness was in the court room. Under these facts it became a matter of judicial discretion on the part of the trial judge to permit the witness to testify. There is no charge made in this case that the witness remained in the court room through connivance of the Prosecuting Attorney or in deliberate violation of the court order. Even under such circumstances the Court is vested with discretion to refuse or permit the examination of the witness. Dickson v. State, 39 Oh St 73; see also Laughlin v. State, 18 Ohio, 99.

Under the state of the record the Court is of the opinion that the trial judge properly exercised his discretion in permitting the witness to testify and no prejudicial error resulted in so doing.

Defendant claims the Court committed prejudicial error in instructing the jury after the jury had been deliberating for several hours. The charge of the Court was identical with the charge given by the Court in the case of Andrews v. State, 15 C. C. (N. S.) 241, in which it was held that:

“It is not an abuse of discretion for a trial judge to keep a jury out for forty hours in an important case and then send them back to their room with an admonition as to the importance to all concerned that they should agree upon a verdict.”

We find that the charge was in all respects proper and that prejudicial error was not committed.

We do not find any prejudicial error in the Court reading a portion of its general charge to the jury when the jury was returned for further instructions. Sec. 11420-6 GC, expressly provides for giving additional instructions when requested by the jury. See Richards v. State, 43 Oh Ap 212, 183 N. E. 36.

The defendant claims that the Court committed prejudicial error in not granting motion for new trial on the basis of newly discovered evidence which could not have been obtained with reasonable diligence prior to the trial. In our opinion the evidence which defendant incorporated in affidavits in support of the motion for new trial and which is made a part of the bill of exceptions does not constitute newly discovered evidence. It does not appear that this evidence is of such a character as probably to produce a different verdict on retrial. Vol. 30 O. Jur. pp. 75, 81.

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

HORNBECK, PJ, MILLER, J, concur.


author: By HOY, J.

text:
    ROMAN AND GOVERNMENT EMPLOYEES INSURANCE COMPANY v. CHAMPION.
    Common Pleas Court, Hamilton County.
    No. A-130197.
    Decided February 19, 1952.
    Brumleve, DeCamp & Wood, Cincinnati, for plaintiffs.
    Robert O. Smith, Aug, Elder & Rielly, Cincinnati, for defendant.
   OPINION

By HOY, J.

. This matter is before the court on defendant’s motion to quash service of summons, counsel for defendant having entered his appearance solely for the purpose of contesting the jurisdiction of the court.

Plaintiffs are Henry R. Roman, a resident of Hamilton County, Ohio, and Government Employees Insurance Company, a foreign corporation authorized to do business in the state of Ohio. Defendant is James Howard Champion, a resident of the state of Michigan. The action is for personal injuries and property damage claimed to have been sustained as the result of an automobile collision which occurred in Warren County, Ohio. The plaintiff, Government Employees Insurance Company, claims as subrogee, having paid a portion of the property damage alleged to have been sustained by the plaintiff Roman.

Plaintiffs filed their petition in this county and served the defendant through the Secretary of State pursuant to the provisions of §§6308-1 and 6308-2 GC.

Briefly stated, the question to be determined is whether the venue of such an action is limited to the county in which the cause of action arose or whether plaintiffs may choose any Ohio county for the venue of their action. It involves the construction of §§6308, 6308-1, 6308-2 and 11276 GC.- These sections are as follows:

“Sec. 6308 GC. Actions for injury to a person or property, caused by the negligence of the owner or operator of a motor vehicle, may be brought, by the person injured, against such owner or operator in the county wherein such injury occurs. A summons in such áction against any defendant or defendants shall be issued to the sheriff of any county within this state wherein such defendant or defendants reside and may be served as in other civil actions, notwithstanding any contrary provision of law for the service of summohs in' civil actions.”

“Sec. 6308-1 GC. Any non-resident of this state, being the operator or owner of any motor vehicle, who shall accept the privilege extended by the laws of this state to nonresident operators and owners, of operating a motor vehicle, or of having the same operated, within the state of Ohio, or any resident of this state, being the licensed operator or owner of any motor vehicle under the laws of this state, who shall subsequently become a nonresident or shall conceal his whereabouts, shall by such acceptance or licensure, as the case may be, and by the operation of such motor vehicle within the state of Ohio, make and constitute the secretary of state of the state of Ohio his, her, or their agent for the service of process in any civil suit or proceeding instituted in the courts of the state of Ohio against such operator.or owner of such motor vehicle, arising out of, or by reason of, any accident or collision occurring within the state in which such motor vehicle is involved.”

“Sec. 6308-2 GC. Such process shall be served, by the officer to whom the same shall be directed or by the sheriff of Franklin' county, who may be deputized for such purpose by the officer to whom the service is directed, upon the secretary of state of the state of Ohio, by leaving at the office of said secretary, at least fifteen (15) days before the return day of such process, a true and attested copy thereof, and by sending to the defendant, by registered mail, postage prepaid, a like true and attested copy thereof, with an endorsement thereon of the service upon said secretary of state, addressed to such defendant at his last known address. The registered mail return receipt of such defendant shall be attached to and made a part of the return of service of such process.”

“Sec. .11276 GC. An action other than one of those mentioned in sections eleven thousand two hundred and sixty-eight, eleven thousand two hundred and sixty-nine, eleven thousand two hundred and seventy and eleven thousand two hundred and seventy-one against a nonresident of this state, or a foreign corporation, may be brought in any county in which there is property of, or debts owing to the defendant, or where such defendant is found, or where the cause of action or some part thereof, arose.” (Secs. 11268 to 11271 GC.)

So far as the writer has been able to learn, this question has not been passed upon by the Supreme Court of Ohio but there are several decisions of our Courts of Appeal which are applicable. In the case of Schaeffer v. West, 53 Oh Ap, 270, 7 O. O.79, the plaintiff brought an action in Montgomery county against a foreign corporation domiciled in Kentucky for personal injuries sustained in an automobile • collision which occurred in Medina County, Ohio. The cause of action arose after the passage of §§6308-1 and 6308-2 GC but before their effective dates. The court sustained a motion to quash the service of summons obtained pursuant to these sections, not only upon the ground that they were not retroactive in character, but also upon the ground that the action was improperly brought in Montgomery county. Counsel for plaintiff in that case contended that the words “in the Courts of the State of Ohio against such owner of such motor vehicle” contained in §6308-1 GC permits the filing of such an action in any Ohio county which plaintiff might choose. In disposing of this contention the court used the following language:

“Our interpretation of the language quoted is that the section does not attempt to fix the place where a cause of action defined in the section shall be tried, but relates only to the service oí process in any civil suit, or proceedings instituted in any court of the State of Ohio in which venue is reposed under the law.

The effect of §.6308-1 GC, is to make the non-resident amenable to our laws in the same manner and under the same conditions as a resident. The place where a cause of action must be instituted is, therefore, governed by our venue statutes in the situation presented, and not by §6308-1 GC.”

The case of Sprague v. French decided by the Court .of Appeals of the Second Appellate District and reported in 24 Abs, 543 is squarely in point. In that case the automobile accident occurred in Hancock county and plaintiff filed his action in Franklin county against the defendant who was a resident of Chattanooga, Tennessee. Plaintiff contended that he had a right to bring this action in Franklin county, because, under the provisions of §6308-1 GC, the defendant had constituted the Secretary of State, his agent for the service of summons and that the residence of the Secretary of State in Franklin, county was imputed to the defendant. Syllabi 1 and 4 of that case read as follows:

“1. Sees. 6308-1 and 6308-2 GC are supplemental to §6308 GC, and the scope of these sections is limited to extending the remedies in automobile accidents against non-resident defendants the same as are allowed against resident defendants but does not extend the scope or meaning of §11276 GC so that defendants not found in Franklin county may through service on the Secretary of State be said to have been found there.

4. An action cannot be brought in Franklin County against nonresident defendants for personal injuries sustained in automobile accidents in other counties, when the only process upon such defendants is served through the sheriff of Franklin County and the Secretary of State.”

If it be claimed that the fact that the plaintiff, Government Employees Insurance Company, is a foreign corporation alters the situation, such claim is disposed of by the ruling of the court in the case of Travelers Insurance Company v. Miller decided by the Court of Appeals for the Second Appellate District and reported in 27 Abs 406. This case holds that §6308 GC, giving an injured party the right to bring his action in a county where the cause of action arose, is a right personal only to the party injured, and does not extend to his assignee or subrogee and is also authority for the proposition that even as to the injured party the venue of a personal injury action against a nonresident of Ohio is limited to the county where the cause of action arose.

While the Supreme Court oí Ohio has apparently not been required to pass on this question, the statutes of the state of Pennsylvania as to venue and deputized service upon nonresident defendants in auto accident cases are identical with ours and the Supreme Court of Pennsylvania had the exact question before it in the case of Williams et ux v. Meredith, 326 Pennsylvania 570 (192 Atlantic 924). In holding that the right of service of process by deputization upon a nonresident defendant in a motor vehicle case exists only where a suit has been instituted in the county where the accident occurred, the court points out that under the common law rule established by centuries of precedent, service of process in actions in personam must be served personally within the jurisdiction of the court in which the action was commenced upon the person to be affected thereby and that this rule prevails unless a statute clearly manifests that a different method as to service has been promulgated by the legislature and that statutes in derogation of the common law must be strictly construed. In his opinion, Mr. Chief Justice -Kephart states that he cannot conclude that the legislature, in enacting the venue and deputization statutes, intended to sweep away all the protection accorded to nonresident defendants by the common law rules and expose them to suit in any county in the state irrespective of where the accident .occurred while suit against a resident for a similar accident must be brought in the county where it took place and where personal service can be had on the defendant and that to create a different rule for nonresidents might give rise to a very serious constitutional question.

It seems apparent to this writer that the basic purpose of venue legislation is to prevent one from being compelled to defend himself in a strange forum. No one can complain against being required to defend himself in the forum of his residence. Neither can he complain if he is compelled by statute to defend himself in a forum in which he is alleged to have committed a tortious act. But to require one to defend himself in a forum where he had never been, chosen entirely at the whim of his adversary, is contrary to the spirit and purpose of our Constitution.

Accordingly, the court finds that it is without jurisdiction to entertain plaintiffs’ action and that defendant’s motion to quash service of summons is well taken.

An entry may be presented in -accordance herewith saving plaintiffs’ exceptions.


text:
    LYNN et, Plaintiffs-Appellants, v. LAUNDRY WORKERS INTERNATIONAL UNION et, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2115.
    Decided August 17, 1950.
    Joseph W. Sharts, Harold H. Singer, Dayton, for plaintiffs-appellants.
    Robert C. Knee and Fred M. Kerr, Dayton, for defendantsappellees.
   OPINION

By THE COURT:

This is an appeal on questions of law from the judgment of the Common Pleas Court of Montgomery County, Ohio, dismissing the petition of the plaintiffs in Case No. 102043.

This case is related to the case of Cheerhart Cleaners, Inc. v. Tinsley, et al., Court of Appeals Case No. 2112 60 Abs 356 (Common Pleas Court Case No. 101535) and decided this same date.

On March 31, 1950, Jack Lynn, Alice Clark and Louise Dixon, for themselves and on behalf of others, who they alleged have a common interest with themselves as employees of the Cheer-hart Cleaners, Inc., filed their petition setting forth in substance the same allegations made by the plaintiff in its petition in Case No. 101535, and in addition, alleged that there is no bona fide labor dispute in existence; that the pickets curse and call said plaintiffs “scabs,” using vile and abusive language; that the purpose of such acts is to humiliate, annoy, disturb and coerce the plaintiffs; that said acts are a constant interference and nuisance to the plaintiffs in their employment, and subjects them daily to great hardship, interference and intimidation. It is further alleged that the Union is not a bona fide Labor Union for benefit of employees, but is a racket and conspiracy to extort by terroristic methods sums of money out of employees’ wages for the benefit of the officials of the Union. Plaintiffs pray for a temporary and permanent injunction against picketing the places of business of the Cheerhart Cleaners, Inc., and against further intimidation, annoyance, interference, name-calling and insults under pretense that a strike is in progress. The petition also alleged the filing of the action by Cheerhart Cleaners, Inc. (Common Pleas Case No. 101535), the entering of a consent decree, the substance of said decree, and that the order had been violated by the Laundry Workers International Union, Local Union No. 248, Ted Williams, Ed Kelly and Harold Waechter, as individuals and as representatives of said Union.

The defendants moved for an order to strike the petition from the files. The court treated the motion as a demurrer and sustained the same.

A motion to strike from the files may be treated as a demurrer. Halliday v. Public Utilities Commission, 118 Oh St 269, 160 N. E. 713; Zajachuck v. Battery Company, 106 Oh St 538, 140 N. E. 405; Vol. 31 O. Jur. pp. 677, 853.

The plaintiffs electing not to plead further, the action was dismissed and from this order an appeal was taken.

The court sustained the demurrer “on the ground that the application herein is a collateral attack upon a former judgment of this court in Case No. 101535 in which the same parties were parties by caption or by reference, and that all the relief asked for in this petition could be obtained if justified by proof, by contempt proceedings and by an application for modification of the former order in the former case.”

In our opinion this action is ^ not a collateral attack on the judgment in Case No. 101535. To require the plaintiffs herein to rely on contempt proceedings in the • other action would operate to deny them their remedy which the facts alleged would justify. Furthermore, the record does not disclose that' the plaintiffs in this action were parties to the other suit by name or by reference. In Case No. 101535 the only party plaintiff was Cheerhart Cleaners, Inc. Twenty-three employees of the company were named defendants; the three named plaintiffs in this action were not included. Members of the Union in the other action were made defendants by representation but nowhere is it disclosed in this proceeding that the plaintiffs in this action were members of the Union or embraced in that class of Union members made parties defendant by representation. On the other hand, in this action the plaintiffs alleged that they would not join the Union and object to being coerced to do so or lose their employment.

The appellees herein contended that the rights of the plaintiffs were identical with those of their employer, the Cheer-hart Cleaners, Inc.; that the issues involved were being litigated in the other action; that no relief is sought in this action which was not sought or could not be granted in Case No. 101535. Conceding that there is some merit in this contention, this action is not between the same parties; also, different facts are alleged.

Furthermore, on demurrer all facts well pleaded are accepted as true. The question at issue is presented and must be decided on the pleadings. The petition in its essential allegations states.a good cause of action. Non-union or nonstriking employees may enjoin a labor union from interfering with the non-union or non-striking employees in the performance of their duties. See Ipsaro v. Material Drivers’ Union, 1 Abs 490.

In our opinion the motion to strike the petition from the flies should have been overruled. In dismissing the petition the court committed error prejudicial to the rights of the plaintiffs.

Judgment reversed and cause remanded for further proceedings according to law.

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


text:
    HALL, Plaintiff-Appellant, v. BRICK, Defendant-Appellee, MURMAN et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 22127, 22128.
    Decided June 18, 1951.
    Karl J. Ertle, Cleveland, for plaintiffs-appellants.
    McNeal & Barry, Cleveland, for defendant-appellee.
    McNeal & Barry, Cleveland, for defendants-appellants.
   OPINION

Per CURIAM:

The two cases herein, the first involving Mrs. Hall, which was a suit for personal injuries and the second, an action by her husband for loss of service, were tried together in the trial court and were argued at the same time in this Court. In the action brought by Mrs. Hall for personal injuries against the defendant, Brick, owner and operator of a beauty parlor and the defendants, Murman, the owners of the premises, plaintiff sought to recover for injuries sustained by her when she fell down a stairway leading to the basement of certain premises. Plaintiff at the time had entered the shop of Mrs. Brick and after having had h.er hair done, asked for a place of privacy in which to arrange her clothes. The testimony as to what then transpired is conflicting, the defendant, Mrs. Brick, having testified that she pointed to a corner of the beauty parlor. Plaintiff and her companion testified, however, that Mrs. Brick pointed in the direction of a doorway, or specifically informed the plaintiff to proceed through a certain door which plaintiff opened. Plaintiff, at any rate, did proceed through a door which she opened entering a darkened passageway at the top of a flight of stairs .down which plaintiff fell.

Plaintiff’s case and that of her husband for loss of service was heard by a jury. In addition to the testimony by Mrs. Brick, the operator of the beauty parlor and testimony of plaintiff’s witnesses, there was testimony by Mr. Murman, one of the owners of the premises, and as to the latter there was testimony that the landlord rather than the beauty parlor operator had control of the premises. Testimony was before the jury that the hallway was dark at the time and that there was no handrail leading to the basement. The jury after instructions of the trial court and after submission of the case, brought in a verdict in favor of the defendant, Mrs. Brick, and against the defendants, Mr. and Mrs. Murman, owners of the premises.

This Court having studied the' bill of exceptions in this case, finds that; as to the verdict' of the jury in favor of the defendant, Brick, and against the plaintiff, there was evidence from which the jury could properly reach such a conclusion since the testimony of plaintiff and her companion was in conflict with that of defendants, particularly with reference to the circumstances under which plaintiff opened the door leading to the passageway. The jury may have reached their verdict in favor of the defendant, Brick, either on the ground that there was no negligence by the defendant, Brick, or that any negligence on the part of said defendant was not the direct and proximate cause of the injuries to plaintiff. This Court, as a reviewing court, is not inclined to substitute its judgment for that of the jury, the trial court in its instructions having correctly pointed out the alternatives to the jury.

With reference to the verdict in favor of plaintiff and against the defendants, Murman, this Court further finds that said verdict was not necessarily inconsistent with the jury’s finding in favor of the defendant, Brick. The jury, in rendering its verdict against the defendants, Murman, apparently determined that the defendant, Brick, was not negligent, or that the injuries to plaintiff were sustained wholly because of failure of the defendants, Murman, owners of the premises, to maintain a handrail or adequate lighting as provided by §1006 GC.

Since there was conflicting testimony and the verdict of the jury against the defendants, Murman, was not inconsistent with a finding in favor of defendant, Brick, the trial court did not commit error in entering judgment on the verdict. Having examined the evidence and observing that questions of fact were presented upon which reasonable minds might have reached different conclusions with respect thereto, it was the province of the jury to perform the function of weighing the conflicting evidence. Hampden Lodge v. The Ohio Fuel Gas Co., 127 Oh St 469. The jury having determined the matter in the one circumstance in favor of plaintiff and the other adversely, this Court will not disturb the jury verdict.

The Court has examined the other assignments of error and finds no error on the part of the trial court in the introduction and exclusion of evidence and further finds that the Court did not err, in withdrawing from consideration of the jury, ordinances of the City of Lakewood, the Court having properly charged the jury as to the requirements of §1006 GC.

The judgment of the trial court is, therefore, affirmed. Exceptions. Order see Journal.

SKEEL, PJ, HURD, J, THOMPSON, J, concur.


text:
    SOUTH MAIN AKRON, INC., Plaintiff-Appellant, v. LYNN REALTY, INC. et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4639.
    Decided September 5, 1951.
    Robert Dow Hamilton, Columbus, for plaintiff-appellant.
    Vorys, Sater, Seymour & Pease, Columbus, for defendantsappellees.
   OPINION

By THE COURT.

Submitted upon motion by the defendants-appellees seeking an order striking from the files the bill of exceptions filed in the trial court on June 14, 1951, and in this court on July 14, 1951, for the reason that the same was not filed within the time required by §11564 GC.

The record discloses that the appeal is on questions of law from the judgment overruling a motion by the plaintiff-appellant for the appointment of a receiver. This motion was made before the trial of the cause and upon the merits and before answer. This order was entered on April 12, 1951, and notice of appeal from the same was filed on April 30, .1951. The bill of exceptions was filed in the Common Pleas Court on June 14, 1951, which was approximately sixty-three days after the date of the judgment entry. No motion for a new trial was filed. Subsequent to the entry of the court’s order of April 12, 1951, to wit, on May 5, 1951, an entry was filed, duly signed by the trial judge, which was identical to the one of April 12 and appears to be a carbon copy of the same. Later, on May 18, 1951, another carbon copy of the entry of April 12, 1951, properly signed by the trial judge was again filed. The original notice of appeal was directed to the judgment of April 12, but on June 13, 1951, the appellant filed an “Amendment to Notice of Appeal,” designating the purported entries of May 5, 1951, and May 18, 1951, as additional orders or judgments appealed from. It is well recognized as the law of this state that a bill of exceptions not filed within the time required by §11564 GC will be stricken by the appellate court upon motion. Teegarden v. Teegarden, 80 Oh Ap 79; Eubank v. Industrial Commission, 59 Oh Ap 189. If the judgment entries of May 5 and May 18 were authorized the court would be required to give its approval to the amendment. Mosey v. Hiestand, 138 Oh St 249. But it is our conclusion that the trial court was without authority to make the subsequent judgment entries, as they are identical with the first judgment and no additional pleadings were filed nor further hearings had after the first judgment entry. Since the two subsequent entries were not authorized as all of the issues were adjudicated in the first order, they confer no additional rights upon the appellant.’

The motion will be sustained.

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