author: By GOLDMAN, J.

text:
    O’NEAL, Plaintiff, v. TRUSTEES, SPRINGFIELD FIREMEN’S PENSION AND RELIEF FUND, Defendant.
    Common Pleas Court, Clark County.
    No. 50900.
    Decided April 29, 1959.

      Lucas, Juergens & Stoll, Springfield, for plaintiff.
    Richard H. Wehler, City Solicitor, Springfield, for defendant.
   OPINION

By GOLDMAN, J.

This is an action for declaratory judgment brought by plaintiff, a city fireman formerly a member of the City of Springfield Fire Department. Plaintiff was dismissed for cause from the Springfield Fire Department and seeks to establish his right to a refund of contributions made by him to the Firemen’s Pension and Relief Rund during the period he served as such fireman. Defendants, the Trustees of The Springfield Firemen’s Pension and Relief Fund, in their answer aver that the pension laws of Ohio prohibit them from making such refund, but concede that a justiciable question is presented and join in the prayer for declaratory judgment to determine their right to refund the contributions admittedly made by plaintiff. The cause was submitted to the Court for its determination upon an agreed statement of facts and briefs filed by the parties.

The agreed statement of facts discloses that plaintiff was appointed to the position of Fireman First Class on the City of Springfield Fire Department, on or about March 17, 1949; that on August 5, 1955 he was suspended as fireman by the Chief of the Fire Division on charges filed relating to the use of intoxicating malt or beverage in violation of the Rules and Regulations of the Fire Department; that a public hearing was held on said charges on August 16, 1955, before the Acting Director of Public Safety for the City of Springfield, Ohio; that at said hearing plaintiff was found guilty of neglect of duty, violation of the rules of the fire division relating to the drinking of intoxicating malt or spirituous beverages, failure of good behavior while on duty and other acts of misfeasance and malfeasance in office during the times and as charged in said suspension. Furthermore, the order of suspension was confirmed and adopted, and it was further ordered that no remuneration be paid plaintiff from or after the date of such suspension, which was on August 5, 1955, and the plaintiff was removed as acting fireman.

An appeal was taken to the Civil Service Commission of the City of Springfield, Ohio, and a trial board appointed by the Commission found that the plaintiff did drink intoxicating malt or spirituous beverages while on duty as a fireman in violation of the rules and regulations and instructions for the government of the Fire Department of the City of Springfield, and said board recommended to the Civil Service Commission that the plaintiff be removed as a fireman and as an active member of the Fire Division of the City of Springfield. Ohio, as of August 26, 1955, and that no remuneration be paid plaintiff from and after the effective date of his suspension, August 5, 1955. The recommendation of the trial board was apparently accepted and confirmed by the Civil Service Commission of the City of Springfield, Ohio. In any event no further appeals were taken by plaintiff from the foregoing-orders and findings.

In a statement submitted to the Court by the City Auditor for the City of Springfield, Ohio, with the consent and approval of counsel, it appears that through payroll deductions, from the time of his appointment to the fire department of said city, on or about March 17, 1949, to the termination date of his employment, plaintiff has contributed $938.13 to the Firemen’s Pension and Relief Fund by way of payroll deductions.

The ultimate question presented to the Court for determination, is whether or not a fireman, after service for approximately six years and five months, thereafter removed as an active member of the fire division for the specific reason that he drank while on duty in violation of the Rules and Regulations of the Fire Department, following charges preferred against him and after hearings held in accordance with law, is entitled to a refund of contributions made by him through payroll deductions to the Firemen’s Pension and Relief Fund.

In support of his contention that he is entitled to such refund plaintiff in his brief emphasizes equitable considerations which he urges upon this Court, based on alleged unfairness and injustice that would follow were these funds to be denied him. To do so he urges would be tantamount to inflicting a fine or punishment on him in addition to being removed from the rolls as a fireman. Plaintiff claims there is no statutory authority or reason, based on equity for such drastic action and that the order of removal made no provision for the forfeiture of the funds in question. Plaintiff further urges his right to refund on the ground that the statutes relating to pensions are silent and make no provision for refund of contributions in those instances where a fireman is discharged from the service for cause. Therefore, he concludes, to permit the defendant to retain these contributions would be unjust and inequitable.

Plaintiff further states that an exhaustive and diligent search for reported decisions in Ohio, or other jurisdictions, on this question, fails to disclose any dealing with the specific issues here involved save an Attorney General’s Opinion, to which further reference will be made.

Defendants in their brief concede that the statutes involved provide specifically only for a refund to one who voluntarily resigns from active service and make no specific provisions for the same where one is removed from the service for cause as in the instant case. Defendants contend however that there are no vested rights in pension funds until a pension is granted, that until such time no vested rights accrue even though contributions to the fund are compulsory, and that because pension funds are public funds they cannot be disbursed except and only by clear authority of law. Thus, defendants contend that they have no authority to make the refund demanded by plaintiff, even if they felt so inclined, unless ordered to do so by the Court.

The sections governing pension funds are to be found in Chanter 741.01 R. C. The various sections included therein provide for the establishment of a Firemen’s Relief and Pension Fund and set forth in great detail the manner of its organization and direction governing its operation.

In searching for provisions relating to disbursements and distributions of monies in the pension fund we note that §741.08 R. C., provides for a refund of contributions to a fireman who elects to remain as a member of a Municipal Retirement System, where one exists, which section is inapplicable to the instant case. Otherwise the manner and method and authority for disbursements and distributions of pension funds are governed by the provisions of §741.18 R. C. This section, in paragraphs (a) through (j) sets forth, with particularity and exactness, the various categories of disbursements of benefits and pensions under the circumstances and contingencies therein described.

The section also specifically requires that the board of trustees of a local fireman’s relief and pension fund shall adopt rules and regulations for the management of such fund and for the disbursement of benefits and pensions as therein set forth, which means they can not be enlarged or expanded or otherwise altered by local action, insofar as the disbursements of pension funds are concerned.

Further examination of §741.18 R. C., suggests two paragraphs which warrant comment. Thus, paragraph (e) permits limited pension payments to one who has served 15 years or more and is discharged for reasons other than intemperate habits, ete. (Emphasis throughout this opinion by the Court.) In the instant case plaintiff did not serve 15 years and was discharged for reasons which would deny him a pension even if he had served the required time. The significance of this paragraph is in the apparent declaration by the legislature of the principle and policy not to provide a pension for one discharged from the service for certain specified causes, which include the one involved in this action.

Paragraph (i) provides that a member of a fund who voluntarily resigns is entitled to receive a refund of the contributions credited to his account, but attention is directed to the provision that such retirement must be voluntary, which again is not the situation here presented.

It is a familiar rule of statutory constructions that, “expressio unius est exclusio alterius” the “expression of one thing is the exclusion of another.” For a recent application of this rule see 165 Oh St p. 445 and 37 O, Jur., p. 555. Applying the rule to the statute here under consideration, it would seem that by specifying the conditions under which a refund of contribution may be made, the legislation expressed an intention to deny such refund under any other conditions.

It must also be granted that the Firemen’s Pension Fund is a “Public Fund,” “All public property and public monies, whether in the custody of public officers or otherwise, constitute a public trust fund and all persons, public or private, are charged by law with the knowledge of that fact. Said trust fund can be disbursed only by clear authority of law.” State, ex rel. Smith v. Maharry, 97 Oh St 272.

Also to same effect, “a municipal police relief fund established under the law is a public trust and can be disbursed only by clear authority of law. — The rule of construction, expression unius est exclusio alterius, is applicable to amended §4628 GO —” State, ex rel. Hall v. Board of Trustees of Pension Fund of City of Lakewood, Ohio, et al, 149 Oh St 367. Thus, it is clear that pensions and refunds or disbursements from the pension fund can be granted only under clear authority of law.

Is there a clear authority of law that requires defendants to make refund to plaintiff of his contributions to the fund in the circumstances here existing? This leads to a consideration of the nature of these contributions and the rights that result therefrom. The authorities are unanimous in holding that in Ohio a right to pension or to other relief under the pension laws becomes vested only when the right to receive the pension or relief becomes fixed, pursuant to the rules governing the fund, but once such rights become vested they cannot thereafter be set aside. This is because Ohio has a so-called “vested rights statute” §741.15 R. C., which is as follows:

“The granting of relief or pension to any person pursuant to the rules adopted by the Board of Trustees of the Firemen’s Relief and Pension Fund vests a right in such person to obtain and receive the amount fixed by the board. Such right may be enforced by an action in mandamus instituted in the Court of Common Pleas in the county in which the person granted such relief or pension resides.” For a collection of Ohio authorities on this point see 52 A. L. R. 2d p. 471 etc. and McQuillin on Municipal Corporations, Vol. 3, Sec. 12,144, and supplement.

Coming now to the specific issue before the Court, whether or not contributions may be refunded to a member of the fund upon his discharge from the service for cause, there is indeed little authority in Ohio other than an informal opinion rendered by the Attorney General for Ohio dated June 5, 1956, to which reference has heretofore been made. The Bureau of Inspection and Supervision of Public Offices requested an opinion on a number of questions, including the following: “May a fireman who has served either more or less than 15 years, but who is discharged for dishonesty, cowardice, intemperate habits, or conviction of a felony, obtain a refund of the contributions made to the Firemen’s Relief and Pension Fund?” In answer to this request the Attorney General stated the following:

“A member of the Firemen’s Relief and Pension Fund, who has served either more or less than 15 years, but who is discharged from the Fire Department by reason of dishonesty, cowardice, intemperate habits, or conviction of a felony has no right to a refund of the contributions made by him to the firemen’s relief and pension fund.”

Although this seems to be the only expression of opinion in Ohio on this specific issue, which was directed to the Court’s attention, the many authorities reported in other jurisdictions seemingly agree with the foregoing and with the statement appearing in McQuillin on Municipal Corporations Vol. 3 on Page 522, as follows:

“Contributions made by an employee to the pension fund are not the property of the Contributor or his estate and as a general rule are not recoverable, either by the employee or by his dependents, especially where the contributor has been discharged for cause.”

The Court of Appeals of Georgia interpreting a statute similar to the one in Ohio held:

“A police officer of the City of Atlanta had no vested property right in sums assessed against his salary as a member of the police department for the police pension fund and the officer upon his discharge from the police department could not recover the amount which he had contributed to the pension fund.” Green v. West, 9 S. E. 2d 102.

The Court of Civil Appeals of Texas, interpreting a municipal pension law in which as here the contributions were compulsory, held: •

“A policeman who became a member of city pension fund and contributed 5% of his base salary from January 11, 1944, until he was discharged for cause on March 15, 1955, was not entitled to a return of approximately $1500 contributed to the fund out of salary, since contributions made to pension fund are not property of contributor or his estate and hence are not recoverable.” Reagan v. Board of Firemen. Pension Fund, etc., 307 S. W. 2d 958.

See also to the same effect, Jud v. City of San Antonio, 313 S. W. 2d 903 and Gaines v. Shank, 312 S. W. 2d 268. The Reagan case is well reasoned and contains a number of citations from other jurisdictions supporting the holdings there made.

This Court has been unable to find any authority from any jurisdiction contrary to those here cited.

Taking into consideration the rule of statutory construction heretofore noted, the various sections of the pertinent Ohio statutes dealing with the issues here presented, the right to pension funds as those rights have been interpreted by the Courts in Ohio and elsewhere and giving consideration to the over-all purpose of pension funds as set forth in §741.18 R. C., the Court reaches the following conclusions, to-wit:

The right of a fireman to monies in the pension fund is limited to the right of protection and participation in the fund by way of retirement pensions, disability benefits and death benefits, and for a refund of his contributions only upon voluntary resignation from active service; that the presence of those clearly stated uses of the pension fund and the absence of any provisions for any other expenditures, exclude other kinds of expenditures or refunds such as plaintiff here seeks.

The contributions to the fund obviously are for the purpose of furnishing the capital out of which the purposes of the pension laws may be realized. There is nothing in the entire chapter dealing with pension laws which would indicate the fund to be in the nature of an enforced savings account, as plaintiff would have it appear, and accordingly no rights to any monies therein result except as specifically provided by the statutes creating the fund and governing its operation. One who becomes a member of the Fire Department accepts appointment thereto subject to the provisions of law regulating and governing such employment, including the provisions of the pension laws, and they become a part of the terms of his employment. One cannot thereafter defeat the application of those terms merely on the grounds that they now seem to him to apply unfairly.

It may be that the law ought be otherwise, but only the Legislature can provide the relief, which plaintiff seeks, for as the statutes now stand, the Legislature quite clearly intended to deny recovery in situations of this kind.

The Court therefore finds that plaintiff is not entitled, as a matter of law, to a refund of his contributions made to the Firemen’s Pension & Relief Fund, and that there exists no authority in law which warrants or requires defendants to make the refund sought.

An entry in accordance with these findings and holdings may be drawn and submitted.


source: Caselaw Access Project

author: By HORNBECK, PJ.

license: Public Domain

text:
    CENTRAL LOAN, INC., Plaintiff-Appellant, v. FARMERS AND MERCHANTS BANK, Defendant-Appellee.
    Ohio Appeals, Second District, Greene County.
    No. 579.
    Decided November 26, 1957.

      Schlafman & Elliott, Fairborn, By Merritt E. Schlafman, of Counsel, for plaintiff-appellant.
    Smith, McAllister & Gibney, Xenia, By John V. Gibney, of Counsel, for defendant-appellee.
   OPINION

By HORNBECK, PJ.

This is an appeal on questions of law from an order of the trial court sustaining defendant’s motion for new trial after the court had instructed the jury to return a verdict for plaintiff in the sum of $2,286.59 with interest and costs.

Plaintiff’s action was predicated upon the following facts. On and prior to December 1954, plaintiff and Fairborn Appliance, Inc., for which Randall E. Hedrick was authorized to act, were depositors in defendant bank.

On December 22, 1954, Hedrick gave to plaintiff a check payable to it drawn upon the Xenia National Bank, Xenia, Ohio, in the sum of $435.00. On December 23, 1954, plaintiff deposited this check in the defendant bank and the amount thereof was credited to the account of the plaintiff in defendant bank. This check is plaintiff’s Exhibit B.

On December 29, 1954, plaintiff was payee on another check drawn on defendant bank made by Fairborn Appliance, Inc. over the signature of Randall E. Hedrick in the sum of $2,488.00.

On December 30, 1954, plaintiff deposited this check in defendant bank which was credited in the amount thereof to its account. This check is plaintiff’s Exhibit A.

On December 31, 1954, Fairborn Appliance, Inc. over the signature of Randall E. Hedrick, made and delivered to plaintiff a check drawn on defendant bank for $1,055.30, which on January 4, 1955 was deposited with defendant bank and plaintiff was credited in that amount in its account. This check is plaintiff’s Exhibit C.

Plaintiff claims that the defendant had accepted check, Exhibit B by allowing more than 24 hours to elapse from the presentment for payment before debiting plaintiff’s account.

It further appears and is pleaded that on January 5, 1955, defendant debited plaintiff’s account in its bank in the amount of $3,978.30, the sum total of the foregoing three checks, claiming that the checks were not good and that the defendant had the right to charge the amount thereof back to plaintiff’s account.

On January 10, 1955, defendant credited plaintiff’s account in the amount of $1,691.71 partial payment of the total debit against it and applied this sum in full payment of check Exhibit B, $435.00 and $1,055.30, thé amount of the second check, Exhibit C and applied the sum of $240.00 the balance remaining of the $1691.71, to Exhibit A, $2,488.00, leaving a balance of the debit against plaintiff, according to the computation of defendant bank, in the amount of $2,286.59 for which sum plaintiff prayed judgment.

Plaintiff claims that as all checks were accepted by defendant bank and the amounts thereof were credited to plaintiff’s account in said bank, it constituted payment of said checks. against which the debit against its account could not legally be made.

Defendant answering says that it admits that the plaintiff maintains a checking account in its bank. That the checks were issued as set out in the petition. That it debited the plaintiff’s account in the amount of $3,978.30, the sum total of the three checks. That it thereafter, on January 10, 1955, credited plaintiff in the amount of $1,691.71: avers that it had the right to charge the account of said three checks back to plaintiff’s account. Other allegations of the petition were generally denied.

The cause came on to be tried to a jury and the evidence developed the facts on behalf of plaintiff substantially as alleged in its petition. Defendant offered as a part of its case the testimony of Mr. Scarborough, Cashier of defendant bank, “that check, Exhibit B, $435.00, was deposited with defendant bank on December 23 and sent through its normal channels for collection and on January 3 returned by the Xenia National Bank through the Fifth Third Union Trust Company, Cincinnati, Ohio, “Drawn against uncollected funds.” This testimony was accepted. Then, defendant proferred the testimony of its officer to the effect that on January 3, 1955, he called Mr. Wilson, who is the Manager of plaintiff company, and “informed him that Check Exhibit B had been returned and that Mr. Wilson directed him to hold the check or that he would get in touch with Mr. Hedrick of Fairborn Appliance, and have him come and make the deposit or he himself would come in and sign a debit memo and pick the check up.” The trial judge refused to accept this testimony.

Defendant also offered to show that on each of the other checks within 24 hours after presentment to the bank, plaintiff, through its General Manager “was notified by telephone by the Cashier of the defendant bank and that on January 5, 1955, the General Manager of the Plaintiff initialed debit memos charging the plaintiff’s account with the three checks set forth in the petition; that on January 10, 1955, Fairborn Appliance’s account had a balance of the credit shown in plaintiff’s petition which credit was given to plaintiff’s debits.” Apparently, this testimony was not received.

The deposit slips with which the checks were deposited with defendant bank were offered by both parties and admitted. It was further developed that at the time the checks were debited against the account of plaintiff, the Fairborn Appliance, Inc. account with the defendant was overdrawn.

Defendant moved for a new trial on the grounds “that the final order and judgment is not sustained by the evidence or is contrary to law. Error of law occurring at the trial and excepted to by the defendant,”

The trial judge upon consideration of the motion handed down an extended opinion quoting many of the statutes of the Commercial Transaction Title, of the Revised Code and reviewing many of the applicable authorities and granted the motion for new trial.

The contention of the appellant is that the trial judge abused his discretion in granting the motion. Webster v. The Pullman Co., 51 Oh Ap 131.

Appellant, in the trial court and here, cites and relies on Petrie v. Savings Bank, 8 Oh Ap 266; Providence Savings Bank and Trust Co., v. Hildebrand, 49 Oh Ap 207; First Farmers National Bank v. Gilbert, 13 Abs 514; Taft, et al. v. Guardian Trust Co., 17 Abs 54; Carter v. Tyler Bank & Trust Co., 132 Fed. Suppl 495, and certain sections of the Banking Act.

Appellee cites and relies upon The Elyria Savings & Banking Co. v. Walker Bin Co., 92 Oh St 406; The Smith & Setron Printing Co. v. The State, ex rel. Fulton, Supt. of Banks, 40 Oh Ap 32; §1305.12 R. C.

The trial judge in his decision granting the motion for a new trial was of the opinion that the deposit slip which was employed in each instance when the checks were deposited constituted a contract respecting the rights of the parties as to the handling of the checks and that upon the evidence which was accepted and that which was proferred by the defendant, there was a question of fact for determination of the jury.

The deposit slip reads:

“Farmers and Merchants Bank Fairborn, Ohio
“In receiving items for deposit or collection, this bank acts only as depositor’s collecting agent and assumes no responsibility beyond the exercise of due care. All items are credited subject to final payment in cash or solvent credits. This bank will not be liable for default or negligence of its duly selected correspondents nor for losses in transit. And each correspondent so selected shall not be liable except for its own negligence. This bank or its correspondents may send items directly or indirectly to any bank including the payor. And accept its draft or credit as conditional payment in lieu of cash. It may charge back any item at any time before final payment whether returned or not. Also, any item drawn on this bank not good at close of business on day deposited.
Date Amount
This is a Receipt
for your Deposit”

Insofar as this deposit slip has application to the deposits of the three checks in question, it became a part of the contract under which the checks were tendered and accepted by the bank.

The general rule controlling the relation between banker and depositor is well-stated in 9 C. J S. 547, Paragraph 267-C:

“The parties may contract as to the terms and conditions under which the bank will handle a deposit, and, in the absence qf a, violation of statute or other rule of law, a bank deposit is subject to any agreement that the depositor and banker may make with regard to it, so long as the rights of third persons are not injuriously affected.”

As to a deposit for collection, it is said in 9 C. J. S. 583, Paragraph 280:

“One depositing a check or other paper for collection, ordinarily creates the relation of principal and agent between himself and the bank, although after collection the funds will as a rule become a general deposit creating the relationship of creditor and debtor between depositor and bank; and, where paper deposited for collection is forthwith credited to the depositor’s account, the relationship of the parties is that of creditor and debtor and not principal and agent.”

The cases cited by appellant all involved deposits of checks which were credited to the payee without any contract between the parties other than the implied contract created by the applicable statutes and custom in banking. The deposits here must be considered in the light of the express contract between the parties and their respective acts pursuant thereto.

Upon the element of time as presented by the record there was a period of some 13 days between the credit by the bank of the first check for $435.00 and the debiting of plaintiff’s account. The time was shorter, but appreciable, between the crediting of the other two checks and the. debiting against them. However, defendant’s agent proferred testimony that the fact that the second and third checks were not good was transmitted to plaintiff by telephone shortly after they had been credited This, of course, did not become an issue because of the directed verdict

That part of the deposit slip which has reference to the checks drawn on defendant bank is as follows:

“In receiving items for deposit * * *, this bank acts only as depositor’s collecting agent and assumes no responsibility beyond the exercise of due care. All items are credited subject to final payment in cash or solvent credits. * * *”
“It” (the bank) “may charge back at any time any items drawn on this bank not good at close of business on day deposited.”

The other part of the deposit slip which is not immediately quoted has application only to deposits left for collection which would relate to the first check in the sum of $435.00.

There then arose upon the evidence submitted and the evidence proferred a factual question as to the rights of the parties respecting the checks and their handling under the applicable provisions of the Code, in the light of the specific contract between the parties, by reason of the terms of the deposit slip. Did the bank exercise “due care” within the meaning of the deposit slip in the manner .in which it treated the deposit and debited the checks?

The trial judge was correct in holding that he had committed an error of law in sustaining the motion of plaintiff for a directed verdict and in granting the motion for new trial did not abuse his discretion.

The case of the Provident Savings and Trust Co. v. Hildebrand, supra, cited by appellant, recognizes (page 208) that:

“There was no evidence of any agreement between defendant in error and the bank that the check was deposited for collection, or for any other purpose than as an unconditional credit to the account of defendant in error, which then executed amounted to complete payment of the check.”

The court held that the transaction was completed as between the bank and depositor and that it was liable to the depositor.

In Paige v. Springfield National Bank, 12 Oh Ap 196, Judge Richards, sitting by assignment in this district said, at page 202 of the opinion:

“We think there can be no question that if a bank credits a depositor with the amount of the check drawn upon it by another customer, and there is no want of good faith on the part of the depositor, the act of the bank in giving the credit is equivalent to a payment in money, if nothing is said to indicate a different result, even though the bank should later ascertain that the drawer of the check was without funds to meet the same; but it is also true that the bank could have received the check conditionally. 3 Ruling Case Law, 526.”

The Court held that:

“Whether the bank in such case (under the facts appearing) assumed the duties of a collection agent is a mixed question of law and fact, to be determined by the jury under appropriate instructions of the court as to the law.”

The most favorable case for appellant is Carter et al v. Tyler Bank & Trust Co., 132 Fed. Supp. 495 (U. S. District Court, Texas) where it was held that a drawee, collector bank, was liable on four drafts which it held for four days before returning them as uncollectible, although it was shown that in the delay the bank was following a banking custom.

In the leading Ohio case of Petrie v. Garfield Savings Bank, et al, 8 Oh Ap 266, no question of collateral agreement between the bank and the depositor was raised. The payee and the maker were depositors in the defendant bank upon which the' check was drawn and the bank passed it to the credit of-the checking account of the depositor. It was held that such action on the part of the bank amounted not only to an acceptance but also to a payment of the check. But for the contract in this case, evidenced by the deposit slips, the Petrie case and the Provident Savings Bank & Trust Co. case would have application.

We do not discuss, because defendant is not an appellant, its contention, in the motion for new trial, that it had the right to introduce testimony purposed to show an accord and satisfaction between the parties. Nor, do we discuss, because not vital to the broad question presented by the appeal, the specific issues that may be drawn as to the extent to which the defendant will be entitled to debit plaintiff’s account on the checks sued upon.

The judgment will be affirmed.

WISEMAN and CRAWFORD, JJ, concur.


author: By DUFFY, J.

text:
    SEVERNS, Plaintiff-Appellant, v. COLUMBUS READY-MIX CORPORATION, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6040.
    Decided May 26, 1959.
    James F. Decker, Al Frericks, Columbus, for plaintiff-appellant.
    Brownfield & Malone, John A. Carnahan, of Counsel, Columbus, for defendant-appellee.
   OPINION

By DUFFY, J.

This, a civil action, was begun in the Municipal Court of Columbus, Ohio.

Both parties agree that the trial was had on February 26, 1958, and submitted to the trial judge for decision. On April 23, 1958, the trial judge rendered a judgment for the defendant by entering the judgment himself on the “half sheet” in accordance with the system used in that court.

On the same day, cards were mailed to the attorneys for the respective parties; and on April 25, 1958, the plaintiff-appellant filed a motion requesting the court to render separate findings of law and fact. The parties then filed separate memoranda in connection with this motion; and on July 16, 1958, the trial judge made the following entry on the “half sheet”:

“Motion requesting that the court find separately the facts herein and conclusions of law is hereby denied.
“It is the considered opinion of the court that such request under provisions of §2315.22 R. C., is not timely made. Such request was made after journal entry of judgment had been entered upon the half-sheet and filed with the Clerk of this court and no motion for a new trial having been filed herein within the statutory period therefor, said journal entry of judgment as entered upon the half-sheet constitutes the journal entry of the final order in this case. Sec. 2315.22 R. C., expressly directs that such request for such findings must be made ‘before the journal entry of a final order, judgment, or decree has been approved by the court in writing and filed with the clerk of the court for journalization.’ ”

The case was appealed to the Court of Common Pleas of Franklin County, Ohio, from this order of the trial judge. There the motion of the appellees for dismissal of the appeal, for the reason that the order from which it was taken was not a final order, was sustained by the Court of Common Pleas.

The case has been appealed to this court on a question of law; and, while separate assignments of error were not filed, it appears from the briefs and arguments of the parties that the appeal rests on the upholding of the Municipal Court’s order overruling plaintiff’s motion for separate findings of fact and conclusions of law.

In their briefs, counsel have reviewed many cases of law dealing with the filing of the motion for separate findings of fact and conclusions of law; but the cases cited all deal with §11421-2 GC, and §2315.22 R. C„ prior to the last amendment of that section on September 30, 1955. A review of those cases can be obtained from a reading of the Supreme Court case of Levick v. Bonnell, 137 Oh St 453, 30 N. E. (2d), 808; and the case of Fisk v. Glechoff, 92 Oh Ap 400, 105 N. E. (2d), 670. The latter case held that where the judgment of the Municipal Court was entered in the absence of the parties and on the day following notice of entry of judgment, a request for separate findings of fact and conclusions of law, even though made after judgment, was timely and should have been granted.

Sec. 2315.22 R. C., now reads as follows:

“When the questions of fact are tried by the court, its findings may be general for the plaintiff or defendant, unless, before the journal entry of a final order, judgment, or decree has been approved by the court in writing and filed with the clerk of the court for journalization, one of the parties requests otherwise, in which case, the court shall state in writing the conclusions of fact found separately from the conclusions of law.”

The law prior to the last amendment of September 30, 1955, did not contain the words “before the journal entry of a final order, judgment, or decree has been approved by the court in writing and filed with the clerk of the court for journalization.”

It should be noted that in this case, the court had for its consideration a motion for the findings of fact and conclusions of law, but no motion for a new trial was given to the trial court for its consideration. In most of the cases reviewed dealing with a motion having been made following the notice of entry of judgment, there was also a motion for a new trial, so that the trial court always had to pass on a motion which would be a final order or an order from which an appeal could be taken.

As the trial judge and the Common Pleas judge who reviewed the case commented, since the motion for separate findings of fact and conclusions of law in this case was made after the last appealable order was rendered, the motion was made too late. The order which the trial court rendered on July 16, 1958, was not a final order within the purview of §2505.02 R. C.; and the Court of Common Pleas was correct in its dismissal of the appeal.

The judgment of the Court of Common Pleas is affirmed.

BRYANT, PJ, concurs.

MILLER, J, not participating.


author: By SKEEL, J.

text:
    CRAIG, Plaintiff-Appellant, v. SPITZER MOTORS OF COLUMBUS, INC. et, Defendants-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6016.
    Decided May 26, 1959.

      William F. Brown, Columbus, for plaintiff-appellant.
    Crabbe, Garek & Sillman, Justin L. Sillman, of Counsel, Columbus, for defendants-appellees.
    (SKEEL, J, of the Eighth District, sitting by designation in the Tenth District.)
   OPINION

By SKEEL, J.

This appeal comes to this court from a judgment entered for the defendants by the Court of Common Pleas of Franklin County. The judgment was entered after the court had granted defendant’s motion to strike certain allegations from plaintiff’s third amended petition The plaintiff not desiring to plead further, the court dismissed his petition without trial on the merits and entered judgment for defendant

The plaintiff filed his third amended petition seeking damages (both compensatory and punitive) for an alleged breach of warranty, which warranty, it is claimed by the plaintiff was the inducement for entering into the contract with the defendant, Spitzer Motors of Columbus, whereby he agreed to and did purchase a 1957 Dodge automobile. It is alleged that the defendant represented that the Dodge automobile had been used as a demonstrator by one of its salesmen who left his employment after driving the automobile only fifty one miles. It is further alleged that such statements were untrue and that the defendant knew they were false and that they were made purposely to deceive the plaintiff and to induce him to purchase said automobile, that the plaintiff, relying on the representations of the defendant, did purchase said automobile to his damage. The plaintiff alleges that in truth and fact, the defendant sold the automobile to one John Speelman on June 27, 1957, who used $aid automobile to pull a house trailer, and said automobile was repossessed in the State of Florida by the Commercial Credit Corporation on October 9, 1957. Plaintiff alleges that the automobile would have been worth $3400.00 if it had been as represented, whereas, in fact, its value, when delivered to the plaintiff, was only $1800,00,

Following the allegations in plaintiff’s third amended petition that the defendant knowingly and purposely misrepresented the facts about the Dodge automobile for the purpose of defrauding him and that plaintiff acted upon defendant’s representations, believing them to be true and was thereby defrauded, the third amended petition then recites:

“Further plaintiff says that the defendants are guilty of gross and malicious fraud and their wilful and malicious acts show a reckless indifference to the rights and safety of other persons and that he is entitled to punitive damages * *

The defendant’s motion to strike the above quoted paragraph from the third amended petition was granted by the court, the court saying in a memorandum opinion, filed with the papers in the case, on August 8, 1958: “* * * and as before decided by this court, no facts are pleaded entitling plaintiff to punitive damages.” The statement “as before decided by this court” referred to an earlier ruling on motions of the defendant seeking to strike totally different allegations from the original petition, the amended petition and the second amended petition.. The ruling for the defendant on its motion to the original petition was one seeking to compel the plaintiff to elect on which of two alleged inconsistent causes of action the plaintiff would proceed. The ruling was as follows:

“Plaintiff must elect and file an amended petition accordingly. If plaintiff rescinds he may, under §1315.70 R. C., return the car, or offer to do so, and collect back the price already paid, including the amount he received from and was charged by Commercial Credit Corporation. * * * On the other hand, he may affirm the contract, and keep the car, and sue in law for fraud. He cannot maintain the two inconsistent causes of action.”

The motions to the amended petition and second amended petition, in which the allegations were quite similar, set out the delivery of a Chevrolet to the defendant, and one hundred dollars in cash, the balance of the purchase price being paid by a loan from the Commercial Credit Company, and alleging that the cost of the Dodge, as delivered, was $4255.00, whereas in truth and fact, the value of said delivered automobile was not $4255.00, but was of the value of $1800.00, all to plaintiff’s damage in the sum of $2750.00. This part of the second amended petition set out in the motion was taken out of context and when the part of the petition which precedes it is considered, a charge of wilful fraud in the inducement was clearly set out. The ruling on the motion to strike language from the second amended petition was as follows:

“Plaintiff has waived the remedy of rescission and has elected to affirm the sale and sue for fraud. The measure of damages would be the difference between the value of the automobile if it had been a demonstrator, as represented, and the value of the automobile which plaintiff received. See Elder v. Shoffstall, 90 Oh St 265, Syllabus 3. Other allegations are immaterial, improper and irrelevant to the issues of the case.”

The foregoing history shows that the questions presented by the motion to the third amended petition were not the same and had not been previously decided.

The ruling of the court, striking the allegations from the third amended petition, as outlined, had the effect of confining the plaintiff to a presentation of his claim for compensatory damages. The plaintiff, not desiring to plead further, suffered judgment to be entered for the defendant. It is clear that the successive rulings, granting defendant’s motions to each of the plaintiff’s four petitions, whereby his claim for punitive damages was said to be inconsistent or not to be maintained where compensatory damages are claimed, had the legal effect of denying him the right to seek such damages in this action even though facts were pleaded which justified such claim with a claim for compensatory damages. If, therefore, he proceeds to trial on the merits, on the allegations remaining in his third amended petition after the motion was granted, he would be forever foreclosed from seeking punitive damages. The plaintiff claims the following errors:

“1. The granting of branch three of the motion of July 23, 1958, of defendants-appellees, for an order requiring plaintiff-appellant to strike allegations of punitive damages is contrary to law.
“2. The Court committed error in holding that the Third Amended Petition of plaintiff-appellant shows no facts to show any right to punitive damages.
“3. The Court abused its discretion in sustaining the motion of defendants-appellees.
“4. By so ruling the Court has precluded plaintiff-appellant remedy for defendant-appellees’ alleged fraud and deceit, the Court has changed plaintiff-appellant’s cause of action from one of fraud and deceit to an action in contract and in so doing, the Court has materially prejudiced the plaintiff-appellant’s substantial rights.”

The right of a purchaser of personal property to seek in one action both compensatory and punitive damages, particularly in an action founded in tort, cannot be questioned. The obligation of an express warranty is one imposed by law and the action for its breach was originally considered to be in tort. (Williston on Sales, paragraph 197, Single Volume 1909.) Although there is some authority to the contrary, there is responsible authority that such damages may be recovered in an action ex contractu.

In 16 O. Jur. (2d), paragraph 146, page 283, it is said:

“Breach of Contract. As a general rule, damages for breach of a contract are limited to the pecuniary loss sustained, and exemplary damages are not recoverable. In practically all kinds of contract violations, the courts in Ohio have sought to compensate the injured party, not to reward him. This rule does not obtain, however, in those exceptional cases where the breach amounts to an independent, wilful tort, in which event exemplary damages may be recovered under proper allegations of malice, wantonness, or oppression — as, for example, in actions for breach of promise of marriage. It is true, also that if the breach involves an infraction of a duty imposed by law, it may be thus punished. Thus, railroad companies or street railroad companies are frequently held liable in punitive damages for the wrongful expulsion of passengers when attended with malice, insult, and the like.”

The case of Smithhisler v. Butter, 157 Oh St 454, 105 N. E. (2d), 868, cited by the defendant, does not question the right to claim both compensatory and punitive damages in a single action nor did the Supreme Court suggest that under proper pleadings both compensatory and punitive damages might not be recovered in a single tort action. The only question presented in the Smithhisler case was whether or not the court correctly charged the jury on the elements necessary to entitle the plaintiff to an award of punitive damages.

In the case of Saberton v. Greenwald’s Jewelry Co., 146 Oh St 414, 66 N. E. (2d) 224, the action was one for breach of warranty in which both compensatory and punitive damages were included in the prayer of plaintiff’s petition. The trial court refused to submit that question to the jury. The Supreme Court, in reversing this ruling of the Court of Common Pleas, said:

“1. Sec. 8453 GC, permits and §8449 GC, does not forbid an action ex delicto^ against the seller where a sale of merchandise has been induced by fraud or misrepresentation.
“2. In an action to recover damages for a tort which involves the ingredients of fraud, malice or insult, a jury may go beyond the rule of mere compensation to the party aggrieved and award exemplary or punitive damages.”

This conclusion is supported in the case of Richard v. Hunter, 151 Oh St 185, 85 N. E. (2d) 109, where the jury found that the plaintiff did not suffer compensatory damages in an action for trespass. The Supreme Court held:

“1. Exemplary or punitive damages may not be awarded in the absence of proof of actual damages.
“2. In an action for trespass upon land, a verdict returned by the jury, expressly denying the recovery of compensatory damages, is an affirmative finding that no actual damages were established.
. “3. In such action, a verdict for the plaintiff, wherein the jury assessed ‘the amount due to the plaintiff from the defendants * * * at the sum of none dollars, for compensatory damages; and * * * at the sum of two hundred dollars for punitive damages,’ is defective and will not authorize a judgment in favor of the plaintiff.”

The Sales Act (§1315.70 R. €.), in dealing with the action available for breach of warranty in a sales transaction, provides that a buyer has the right to waive a rescission of the sales contract upon breach of warranty, keep the goods and seek damages for the breach. The measure of damages is, as set out in this' section, the difference between the value of the goods received and the value they would have had had the goods been as represented. This rule, however, does not exclude the rii¿ht to punitive damages as well as compensatory damages if the facts i .stify such result. Sec. 1315.71 R. C., provides:

“Secs. 1315.01 to 1315.76 inclusive, R. C., do not affect the right of a buyer or a seller to recover interest or special damages in any case where interest or special damages may be recoverable, or to recover money paid when the consideration for the payment of it has failed.”

See also §1315.74 R. C.

The ruling oí the trial court on defendant’s motion to strike the first full paragraph on page two of plaintiff’s third amended petition does not meet the claims of the defendants who allege the allegations to be inflammatory and conclusions of law, not statements of fact. The court’s ruling, as above set out, was that no facts were alleged to support a claim for punitive damages. Both the claims of the defendant and the ruling of the court are in error. It is not for the defendant to choose the words plaintiff must use in charging him with fraud and deceit. The allegations state facts, which if contained in an affidavit or indictment in a criminal action for obtaining property by false pretenses or larceny by trick, would be sufficient to sustain such charge. The necessary elements to sustain a claim for punitive damages, as well as compensatory damages, are sufficiently pleaded to require the defendant to answer and meet the issues by evidence.

The judgment of the Court of Common Pleas is, therefore, reversed and the cause is remanded with instructions to overrule such motion and for further proceedings.

BRYANT, PJ, DUFFY, J, concur.


author: By JOHN V. CORRIGAN, J.

text:
    McCOY, Plaintiff, v. BUCKEYE STEAMSHIP COMPANY, Defendant. THOMPSON, Plaintiff, v. JUPITER STEAMSHIP COMPANY, Defendant. HERLIHY, Plaintiff, v. GREAT LAKES STEAMSHIP COMPANY, Defendant.
    Common Pleas Court, Cuyahoga County.
    Nos. 714272, 685482, 714585.
    Decided April 28, 1959.

      S. Eldridge Sampliner, Cleveland, for plaintiffs.
    McCreary, Hinslea & Ray, Cleveland, for defendants.
   OPINION

By JOHN V. CORRIGAN, J.

The questions raised in these three cases are generally the same.

The attorney for the plaintiff has filed a petition and annexed thereto has set forth certain interrogatories to be answered by the defendant. At a later date the plaintiff has set forth additional interrogatories not annexed to any pleading which he requests be answered by the defendant. The defendant has demurred to the second series of interrogatories on the basis that two sets are not permitted by statute and that filing two sets constitutes harassment.

Ohio now has two statutes dealing with interrogatories. Sec. 3309.43 R. C., permits the annexing of interrogatories to a pleading. Sec. 3317.07 R. C., permits the filing of interrogatories separate and apart from a pleading. Sec. 3317.07 R. C., further states that “* * * No party may, without leave of court, file more than one set of interrogatories to be answered by the same witness.” There is no longer any doubt that §3309.43 and §3317.07 R. C., are to be construed in a different manner. In the case of Olenik v. Calo, 7 O. O. 2d 321, one of the judges of this Court has stated that the differentiation is that under §3309.43 R. C., the guide given the court to decide whether the interrogatories are subject to a demurrer is that they must be “pertinent to the issues made in the pleadings.” (For an understanding of what “pertinent” means see the Syllabus in Powers v. Ruebach, 66 Abs 30, 49 O. O. 54), but that the test under §3317.07 R. C., is whether or not the questions could be asked “as if under cross-examination.” In the latter section “pertinent to previous pleadings” was inserted not to restrict the use of interrogatories as a substitute for the taking of a deposition, but to limit their use to issues made by the pleadings. The Legislature felt that without restrictive language the interrogatories might deal with irrelevant matters not involved in the litigation and in which the interrogator should have no right to inquire about.

Thus we see that §2317.07 R. C., was introduced to offer the adverse party a means of eliciting information without the expense, inconvenience and time ordinarily required in the taking of a deposition. It was not introduced to supplement §2309.43 R. C.

Having determined that the tests to be applied against demurrer are different under the two sections of the Code cited above, it becomes obvious that a party should have the privilege and right of not only electing under which statute he will file his interrogatories but also of being able to use both means and that the portion of §2317.07 R. C., which states that the party may file only one set of interrogatories is construed to mean that he may file only one set of interrogatories, directed to the same witness, under §2317.07 R. C., and is not construed to mean that he may not file another set of interrogatories under §2309.43 R. C.

In the instant cases the second set of interrogatories does not seem to be filed under the same theories in each individual case, in McCoy v. Buckeye Steamship Company, 714272, they are filed separate and apart and the plaintiff does not indicate under which section they are filed. Since he has filed a first set annexed to his petition, that set must be construed as being filed under §2309.43 R. C. Therefore, to have filed the second set properly he must have filed them under §2317.07 R. C., and for the reason stated above the. court holds that they are filed properly and overrules the demurrer to the interrogatories.

In the case of Thompson v. Jupiter Steamship Company, 685482, the plaintiff clearly states on the interrogatories annexed to the petition that they are filed in accordance with §2309.43 R. C. He further states on the interrogatories filed separate and apart that they are also filed pursuant to §2309.43 R. C. The law is clear that interrogatories filed in accordance with §2309.43 R. C., must be annexed to a petition or filed at the same time, see Tipton v. Diffendal, 2 O. O. 2d 195. The demurrer to these interrogatories, therefore, should be sustained as they were filed two years after the filing of the petition.

In Herlihy v. Great Lakes Steamship Company, 714585, there is no statement as to what authority the interrogatories annexed to the petition are filed. It, therefore, must be assumed that they were filed pursuant to §2309.43 R, C. The interrogatories filed separate and apart state that they are filed pursuant to §2309.43 R. C., and for the reasons stated in the Thompson v. Jupiter Steamship Company case above, the demurrer to these interrogatories should be sustained.

Permitting amendments or changes to interrogatories already filed would be permitting more than one set to be filed. So in the past the Court has refused so to do, but in these cases, in the interest of simplicity, the Court will, upon request of counsel, permit the plaintiff to amend by an interlineation the Section under which the interrogatories filed separate and apart were said to be filed. The defendant then may answer or demur to each of the said interrogatories.


author: By WALSH, J.

text:
    BRINEGAR, a Minor, Guardianship of, In re.
    Probate Court, Butler County.
    No. 6676.
    Decided June 15, 1959
    William D. Schaeffer, Hamilton, for applicant.
    Ralph A. Henderson, Hamilton, for Rev. Garvin.
    John Moser, Asst. Prosecutor, for Welfare Department of Butler County, Ohio.
   OPINION

By WALSH, J.

On May 18, 1959, Geneva Frye filed an Application for the appointment of and as guardian of the person and estate of Edwin Glenn Brinegar, a minor age twelve (12), a resident of Hamilton, Ohio. The Application alleges that the name of the person having custody of said minor, is the Department of Public Welfare, Maple Avenue, Hamilton. Ohio, Warren Harding, Director, legal guardian. That the probable value of the personal property of the ward is Fifty ($50.00) Dollars, and there is no real property in said ward’s estate.

Notice of hearing on Application for Appointment was served upon the said Edwin Glenn Brinegar, age twelve, and upon Reverend Lowell B. Garvin, custodian of said minor. The Department of Welfare was also served by handing a, true copy thereof with the endorsements thereon to Warren Harding, Director, legal guardian of said minor.

Attorney Ralph Henderson, as next friend of the Court, and as counsel for Reverend Lowell B. Garvin, filed a Motion asking that the Application for Letters of Guardianship be dismissed, for the reason that there was a lack of appearance of the Applicant at the hearing, set for May 26, 1959, and further that this Probate Court has no jurisdiction in this matter inasmuch as the Juvenile Court of Butler County, Ohio, has already taken jurisdiction of Edwin Glenn Brinegar, a minor, age twelve. in Case No. 15277, in said Juvenile Court.

Upon hearing the Motion, it was agreed by counsel for Reverend Lowell B. Garvin and attorney for the Applicant Geneva Frye, that the Welfare Department of Butler County, Ohio, does have permanent custody of the minor, having received permanent custody by order of the Juvenile Court in Case No. 15277; that said Welfare Department did place the said Edwin Glenn Brinegar in the home and under the custody of the Reverend Lowell B. Garvin, and his wife Margorie Garvin.

Without going into the merits of the case, or hearing any testimony as to whether or not it would be for the best interest of the minor to have a guardian so appointed, the Court notified all counsel that it would be necessary to first determine whether or not the Probate Court could entertain jurisdiction to hear factual testimony on the Application.

It is conceded that the Applicant, Geneva Frye is the natural mother of Edwin Glenn Brinegar, minor, age twelve.

It is the understanding of this Court that when the Juvenile Court awarded the Welfare Department of Butler County, Ohio, permanent custody of Edwin Glenn Brinegar, the mother was then relieved of all parental rights and parental responsibilities. Since such order of the Juvenile Court is still in full force and effect, the applicant herein, although the natural mother, stands in the shoes of an utter stranger and is asking the Probate Court, to be appointed guardian of the person of said minor, when the Juvenile Court has entertained original and continuing jurisdiction therein.

In the case of Hoffman v. Hoffman, 15 Oh St 427, the Court in its Syllabus states:

“1. Where a court of common pleas, on rendering a decree the custody, care, and control’ of the minor children of the marriage to one of the parties, a probate court, while such decree remains in force, cannot, as between the parties to the decree, legally interfere with the custody so decreed, either by habeas corpus or letters of guardianship.
“2. The jurisdiction of the court of common pleas over the subject of the custody of children in divorce cases is a continuing jurisdiction: and may, on proper application, be invoked to modify orders originally made in respect to the custody of children whenever the character and circumstances of the case or of the parties require it.”

The law is well settled that once a Common Pleas Court has made an order affecting custody of children, that said order is continuing and that said Court retains jurisdiction. Citing Van Divort v. Van Divort, 100 Oh Ap 500, and Stafford v. Stafford, 78 Abs 581.

As to the jurisdiction of the Juvenile Court, the case of In Re: Torok: 161 Oh St 585, states:

“1. Under the provisions of §1639-16 GC (§2151.23 R. C.), the Juvenile Court is invested with original jurisdiction to determine the custody of any child not a ward of another court.
“2. In order to determine such right of custody, it is not necessary for the court to find first that such child is delinquent, neglected, dependent, crippled, or otherwise physically handicapped. (The syllabus in the case of Paddock v. Ripley, 149 Oh St 539, limited and distinguished.)”

There is a later case which decides the right of the probate court to interfere with the continuing jurisdiction of a Common Pleas Court over the custody of minor children, which is found in In Re: Adoption of Biddle, 168 Oh St 209. In that case, the Common Pleas Court in granting a divorce decree, awarded custody of an infant child of the parties to the mother. Later, an Adoption Petition was filed by the grandparents, seeking adoption of the infant child of the divorced parents, and the question arose as to whether or not, since the Common Pleas Court had continuing jurisdiction, a Probate Court could, without the consent or permission of the Common Pleas Court, proceed to hear and grant the adoption. And the Court in the following syllabi, sets forth the present law governing jurisdiction:

“1. Jurisdiction over adoption proceedings is vested exclusively in the Probate Court by the provisions of §3107.02 R. C.
“2." A Probate Court has jurisdiction to hear and determine an adoption proceeding relating to a minor child notwithstanding the fact that the custody of such child is at the time within the continuing jurisdiction of a divorce court.
“3. A final decree of adoption results, under the provisions of §3107.13 R. C., in terminating the child and parent relationship between the child and its natural parents and creating an entirely new child and parent relationship between the child and its adoptive parents.
“7. Within the meaning of §3107.09 (c) R. C., a child is ‘legally placed in the home of the petitioners,’ when such child was brought there voluntarily by the parent immediately after birth and so maintained there after such parent was subsequently awarded legal custody in a divorce action, and under such circumstances the Probate Court is the ‘proper Court’ to determine whether the placement was ‘beneficial to the child.’ ”

In the above cited Biddle case, the case of Hoffman v. Hoffman was also cited, wherein the Court mentions that “a divorce court has continuing jurisdiction of a minor child over which it has acquired jurisdiction in a divorce action,” and also cites Adams, Judge v. State ex rel., 104 Oh St 475, wherein it was held in effect that a Probate Court lacks jurisdiction to enter a guardianship order with respect to a minor child whose custody is within the jurisdiction of a divorce court.

It is the opinion of this Court that since the Juvenile Court has entertained jurisdiction of Edwin Glenn Brinegar, a minor, and has by decree, placed the permanent custody of said minor, with the Welfare Department of Butler County, Ohio, and that said Juvenile Court has original and continuing jurisdiction, that this Probate Court is without jurisdiction and authority to grant Letters of Guardianship in this cause.

This Application being primarily one to secure Letters of Guardianship of the person of Edwin Glenn Brinegar, a minor age twelve, and it being understood between the Applicant and the Court that said minor has no estate, that this Court denies Letters of Guardianship of the estate, as a matter of law.

The Court is of the opinion that said Motion is well taken and does hereby sustain same.

An entry may be drawn according to the opinion expressed herein.


author: By MILLS, J.

text:
    GREER et, Plaintiffs, v. STIVER, Extrx. et, Defendants.
    Common Pleas Court, Montgomery County.
    No. 111340.
    Decided February 28, 1958.
    Beigel & Mahrt, for plaintiffs.
    Miller & Compton, for defendants.
   OPINION

By MILLS, J.

This cause comes on for consideration of the motion of the defendants, Geraldine Stiver, Russell G. Miller and Charles Melvin Miller, by their counsel, moving the court for an order dismissing the within action for want of jurisdiction of this court to hear such action for the reason that the mandatory provisions of §§2701.02 and 2741.09 R. C., controlling such actions were not complied with.

It appears that this action was filed on one day prior to the expiration of the six months period, which is the statute of limitations in the contest of will cases; summons was issued on said day against all persons, except Wanda Shaffer.

Sec. 2305.17 R. C., reads:

“An action is commenced within the meaning of §§2305.03 to 2305.22 inclusive, and §1307.08 R. C., as to each defendant, at the date of the summons which is served upon him or on a codefendant who is a joint contractor, or otherwise united in interest with him. When service by publication is proper, the action is commenced at the date of the first publication, if it is regularly made.
“Within the meaning of such sections, an attempt to commence an action is equivalent to its commencement, when the party diligently endeavors to procure a service, if such attempt is followed by service within sixty days.”

The court finds as a matter of fact that Wanda Shaffer is united in interest with codefendants except the executrix of the estate of Florence O’Brien, and therefore the action was commenced upon service of summons on other members of the same class as Wanda Shaffer.

In the case of Draher v. Walters, 130 Oh St 92, the court in passing on limitations of actions in the contest of wills and so forth says:

“Service of summons upon one of the legatee-devisee defendants, in an action to contest the validity of a will, is to be deemed commencement of the action as to each of the defendants of that class, and also the executor. Actual service of summons can thereafter be made upon the remainder of the defendants of that class.”

The Draher v. Walters case is a Supreme Court case, and is followed in Frederick v. Brown, reported in 141 N. E. 2nd, 683, in a will case decided by Judge Collier, wherein the second syllabus reads as follows:

“Where a party to a will contest has been dismissed as a plaintiff, he may be made a party defendant, and where others in the same class have been properly served with summons, may be served after the six month period of limitation.”

The court, therefore, overrules the motion of the defendants listed above, to dismiss this action for want of jurisdiction of this court.


author: By MILLER, J.

text:
    BROWN, Plaintiff-Appellant, v. SCHULENBERG, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6068.
    Decided February 25, 1959.
    Russell H. Volkema & Harold Dragoo, Columbus, for plaintiff-appellant.
    Gingher & Christensen, Paul R. Gingher, of Counsel, Columbus, for defendant-appellee.
   OPINION

By MILLER, J.

Submitted upon motion of the defendant-appellee, seeking an order to strike the bill of exceptions, assignments of error, and brief from the files, and for an order dismissing the appeal or, in the alternative, for an order affirming the judgment of the trial court.

The appeal is on questions of law from a judgment of the Court of Common Pleas entered upon the verdict of a jury. An examination of the transcript of docket and journal entries discloses that the plaintiff-appellant filed his notice of appeal on November 20, 1958. Thereafter, on January 6, 1959, a bill of exceptions was filed in the Court of Common Pleas, which was forty-seven days after the notice of appeal had been filed. Then, on January 16, 1959, said bill of exceptions was filed in this court and, on February 2, 1959, the plaintiff-appellant filed his assignments of error and brief, which was seventy-four days after the filing of the notice of appeal. We do not regard the failure to file the assignments of error and brief in accordance with Rule VII (2) as fatal, for that was only a violation of a court rule which may be waived in order that substantial justice may be served. Therefore, the motion to strike the assignments of error and brief will be overruled. However, we regard the failure to file the bill of exceptions with the trial court not later than forty days after the filing of the notice of appeal in accordance with §2321.05 R. C., as fatal.

This section of the Revised Code provides in part as follows:

“* * * the party excepting must reduce his objections to writing as a bill of exceptions, and file them in the cause, not later than forty days after the perfecting of the appeal by the filing of the notice of appeal within the time provided by §2505.07 R. C.”

The statutory forty-day requirement is in addition to court rule and, therefore, may not be waived. See Clark v. Davenport, 74 Abs 544, and Fortner v. Adams, 74 Abs 143.

In Tenesy v. Cleveland, 133 Oh St 251, the court clearly states the mandatory requirement in the syllabus as follows:

“1. When an appeal is taken on questions of law, it is mandatory that a bill of exceptions be filed in the trial court within the forty-day limitation prescribed by §11564 GC, to enable a reviewing court to consider the contents of such bill.
“2. Where such bill of exceptions is not filed in the trial court within the time so prescribed, and the errors assigned are such as can be disclosed only by a bill of exceptions, the reviewing court has no alternative but to affirm the judgment.”

See also Mayborn v. Continental Casualty Co., 165 Ohio St 87.

As a result of the failure to file the said bill of exceptions within the time fixed by §2321.05 R. C., a motion to strike the same must be and is hereby sustained. We have examined the assignments of error and find that they are such as may be disclosed only by a bill.of exceptions; hence, the court has no alternative but to affirm the judgment. Tenesy v. Cleveland, supra.

It is to be noted that the court did not lose jurisdiction of the cause because of the failure to seasonably file and, if other errors were assigned which did not require a bill of exceptions to exemplify the same, the case would have to be retained for determination on such error assignments.

The judgment is affirmed.

BRYANT, PJ, DUFFY, J, concur.


author: Per CURIAM:

text:
    KANE, Plaintiff-Appellee, v. CONTINENTAL STEAMSHIP CO., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24773.
    Decided March 25, 1959.

      Lawrence Landskroner, for plaintiff-appellee.
    Russell V. Bleecker, for defendant-appellant.
   OPINION

Per CURIAM:

This appeal comes to this court on questions of law from a judgment entered on the verdict of a jury in favor of the plaintiff. The action is one based on The Federal Employers Liability Act. The plaintiff was a wheelsman in the employ of the defendant on the Steamship Charles . E. Dunlap commencing March 26, 1952 until June 10, 1952, at which time he left his employment on the ship at Cleveland, Ohio.

In the early afternoon of June 9, 1952, the plaintiff claims to have been walking down a ladder (steep steel steps) into the chain locker room when he was caused to fall because of some soapy water on one of the steps which he testified was “worn.” The plaintiff claims to have fractured a bone in his left ankle. He was wearing high shoes. He made no report of the incident, claiming he thought he had sprained his ankle. The incident occurred when the ship was in Lake St. Clair.

After the alleged fall, he stood his next watch in the wheelhouse and then, as the ship aproached the Cleveland Harbor, he prepared to leave the ship on the morning of the 10th of June on arrival because his contract of employment then expired. As he left the ship, he asked the Captain for a hospital ticket for dental work. He left the ship with a suitcase and sea bag. He carried the suitcase (weighing 40 lbs.) down the ladder to the dock. The bag was lowered by rope. He carried both the suitcase and bag to the gate, ordered a taxi, went directly to the La Salle Hotel at 1518 Payne Avenue, checked in and proceeded to get drunk. He did not go to the Marine Hospital for any kind of treatment, dental or otherwise, until June 16th, when he wanted some treatment for “threatened” delirium tremens because of his excessive drinking as diagnosed by the Doctor at the Hospital. He did not suggest to the Doctor at the Hospital that he had experienced an injury to his ankle before leaving the boat on June 10th.

Early in the morning of June 18, 1952, he was picked up by the police on the sidewalk in a drunken condition with some abrasions on his left ankle encrusted with blood. This is the ankle he claims to have injured by slipping on the step covered with soapy water on the ship. His explanation of the accident of June 18th is that he was returning to his Hotel at about midnight when his ankle collapsed under him and he could not get up. He testified he laid on the sidewalk until daybreak His statement is as follows:

“Q. Did you have anything to drink?
“A. Yes, I did.
“Q. Were you drunk at that time?
“A. I had something to drink, yes.
“Q. You were there how long, then, until when?
“A. Till daybreak..
“Q. Then what happened at daybreak?
“A. At daybreak someone came by and I said, ‘Would you please call me an ambulance or the police.’ And the police finally came.”

The plaintiff was taken to Charity Hospital and then to Marine Hospital where a cast was applied on his left ankle. His explanation to the doctors was:

“Q. Did you talk to the doctor?
“A. The doctor asked me what happened and I told him that I had collapsed on the street 11 or 12 hours before and I have a hospital ticket and I wanted attention right away. They started x-raying and put the cast on and also gave me medical treatment for alcoholism.
“Q. Were you drunk then?
“A. I had a few drinks, yes.”

The plaintiff did not report any injury to his left ankle by slipping on a soapy step while aboard ship while being treated for a broken ankle at the hospital on June 18th. His explanation for the failure to make such a report was because “they did not ask me.” The first notice the defendant received about any claimed injury aboard ship was received from plaintiff’s lawyer about September 23, 1952.

The plaintiff’s evidence as to the condition of the step was as follows:

“Q. And were those grooves — you looked at the step that you fell from, is that what you said?
“A. That is correct, sir.
“Q. Can you tell the jury, were those grooves there on that step?
“A. There were grooves on that step, but they were worn just like the rest of them.”

No where in the evidence is the extent of the “worn” condition explained. Likewise when explaining about the soapy water on the step, which is the condition which plaintiff claims as the negligence of the defendant upon which his action is based, the plaintiff testified:

“Q. You said there was soapy water on the ladder?
“A. That is correct.
“Q. How long had it been there?
“A. I do not know, sir.”

The room where the ladder was located, as above described as the chain locker room, also contained a washing machine for the use of the seamen to clean their clothes. Soap was also furnished, contained in a drum sitting beside the washing machine, and a wire had been strung across the room to be used as a clothes line.

The defendant claims the following errors:

“1. For want of a scintilla of evidence of negligence on the part of the defendant-appellant the trial Court erred in denying its motion for judgment non obstante veredicto.
“2. The trial Court erred in denying the motion of the defendant-appellant for judgment non obstante veredicto in view of the incredible testimony upon which the plaintiff’s case is based; such testimony cannot support a verdict.”

The first of these claims is well taken. While this court cannot weigh the evidence, in considering the question of whether the alleged negligence charged against the defendant proximately caused the plaintiff damage, in passing on a motion for judgment non obstante veredicto, it must be remembered that the only fact witness was the plaintiff. His case either stands or falls on the most favorable construction to be given to his own story.

It is indeed unusual that the plaintiff, a seaman well versed as to his rights to medical care, should not even have mentioned his alleged slip on a soapy step to someone when the alleged slip occurred, or, to the Captain as he left the ship, or, to the doctor at Marine Hospital six days later when there seeking medical help for threatened delirium tremens on June 16th, or, to someone when he was taken to the hospital after lying half the night on the sidewalk in at least a partially drunken state. Be that as it may, there is no conflict in the evidence as to his statement that he could not establish how long the soapy water had been on the step and as to the fact that he did not attempt to fix the extent of the wear on the tread of the ladder.

Even under the interpretation of the Jones Act by the Supreme Court of the United States, some negligence of the employer must be shown to make out a case. This Act is not one based on the theory of Workmen’s Compensation. The presence of soapy water, on a step without a showing that it was there because of the defendant’s negligence or, if not there because of defendant’s negligence, that the defendant had knowledge thereof and did not act with due care to eliminate the danger or, that it was there a sufficient length of time so that the defendant, in the exercise of due diligence could and should have discovered it, and with like diligence caused its removal in time to have avoided injury to the plaintiff, does not establish negligence of the employer. No evidence is present on this question. Plaintiff suggests in his brief that the defendant should have produced evidence refuting the plaintiff’s claim of soapy water on the step. Just how this could be possible when the plaintiff made no such claim or advised the defendant of such claim until three months thereafter is hard to imagine.

The law is well settled that where some foreign substance is spilled or thrown, or is found on a floor or stairway creating a dangerous condition which dangerous condition causes injury to another, it must be shown by one who suffers injury therefor, before recovery can be had, that either the owner or occupier of the premises created such dangerous condition, negligently, or if not that, that such dangerous condition was maintained a sufficient length of time so that in the exercise of due care it should have been discovered and corrected. Johnson v. Wagner Provision Co., 141 Oh St 584, 49 N. E. 2d 925. There are a number of federal cases which support this rule. In the case of Daniels v. Pacific-Atlantic S. S. Co., 120 Fed. Sup. 96, it was said:

“There is no evidence that the oil on the wheelhouse floor was there for any length of time prior to the accident. Unless the defendant had actual or constructive notice of the condition so as to furnish it with an adequate oportunity to remedy the condition, then there is no cause of action for negligence under the Jones Act. Boyce v. Seas Shipping Co., 2d Cir. 1945, 152 Fed. 2d 658; Anderson v. Lorentzen, 2d Cir. 160 Fed. 2d 173; Lauro v. United States, 2d Cir. 162 Fed. 2d 32; Guerrini v. United States, 2d Cir. 1948, 167 Fed. 2d 352; Adamowski v. Gulf Oil Corp., D. C., 93 Fed. Supp. 115; * * *”

A case not directly in point but to like effect is Harris v. Penn. R. R., 168 Oh St 582.

There being no evidence of negligence on the part of the defendant, the judgment is reversed and the cause remanded with instructions to grant the defendant’s motion for judgment non obstante veredicto, and in the journal entry of such judgment, to comply with the provisions of §2323.181 R. C., as to its ruling on defendant’s motion for new trial, by providing that the motion for new trial heretofore granted to the defendant, shall be had only should the judgment non obstante veredicto, here granted defendant, be reversed upon further review

HURD, PJ, KOVACHY and SKEEL, JJ, concur.


author: By BRYANT, J.

text:
    BLESS, d. b. a. CAPITOL DRUGS, Appellant, v. BOWERS, Tax Commr., Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5742.
    Decided February 25, 1959.
    Albert Leshy, Columbus, for appellant.
    Mark McElroy, Atty. Geni., Columbus, for appellee.
   OPINION

By BRYANT, J.

This cause is before this court upon appeal from the Board of Tax Appeals of William Bless, dba Capitol Drugs, Appellant, herein called Mr. Bless, from a deficiency sales tax assessment and penalty. As originally made, this was as follows: sales tax assessment, $1,687.35'; fifteen per cent penalty, $253.10, making a total of $1,940.45.

Upon rehearing before the Tax Commissioner, it was found that the tax auditors had made a mistake of $8,000 in a credit due Mr. Bless, and the figures were revised downward as follows: sales tax assessment, $1,223.40; penalty, $122.34 (if paid in thirty days) making a total of $1,345.74, but if not paid in thirty days, penalty would be $183.51, totalling $1,406.91.

Mr. Bless objected to the penalty but to no avail and he then appealed to the Board of Tax Appeals which summarily affirmed the order and assessment including the penalty as made by the Tax Commissioner.

On July 24, 1957, Mr. Bless filed his notice of appeal to this court, which in part is as follows:

“The plaintiff hereby gives notice of appeal to the Court of Appeals, Franklin County, Ohio, from a judgment rendered by the Board of Tax Appeals, State of Ohio on the above entitled cause on the 27th day of June, 1957. Said appeal is on question of law and fact.” (Emphasis added.)

On August 23, 1957, upon demand of Mr. Bless, the Board of Tax Appeals filed in this court a transcript of the record of the proceedings before the Board and also before the Tax Commissioner.

On January 10. 1959, counsel for the Tax Commissioner filed a motion to dismiss for want of prosecution, contending that except for the notice of appeal of July 24, 1957 and the filing of the transcript on August 23, 1957, no steps had been taken by or on behalf of Mr. Bless. Proof of service of the above motion by mailing on January 8, 1959, to counsel of record for Mr. Bless has been filed.

More than five weeks have passed since the filing of the motion to dismiss. We note that this is described as an appeal “on questions of law and fact.” It is not within the ten classes of cases described in 82501.02 R. C., and hence can not be more than an appeal on questions of law.

We shall treat the motion to dismiss in this case as a motion to reduce the appeal from one on questions of law and fact to an appeal on questions of law only and as such the motion is sustained and the appeal is accordingly reduced. Rule V, D, of this court, entitled “Reduction of an Appeal on Questions of Law and Fact to One on Questions of Law Only,” provides as follows:

“Whenever an appeal on questions of law and fact is reduced to an appeal on questions of law, the Court shall forthwith make an order fixing the time, not exceeding thirty (30) days, for the presentation and filing of a bill of exceptions in the trial court (82321.05 R. €.). If a bill of exceptions has been filed, it shall be refiled as of the date of the entry reducing the appeal to one on questions of law. Assignments of error and briefs shall thereafter be filed within the time prescribed by Rule VII A (2).”

Accordingly the document, in this case described as the bill of exceptions, shall be refiled in accordance with the above rule, and the assignment of errors and briefs shall be filed by appellant in compliance with Rule VII A (2).

Many months have passed by without any action on the part of the appellant and it may be that such appeal has been abandoned. The passage of the time called for by the rule will so indicate.

MILLER, J, concurs.

DUFFY, J, not participating.


author: By DANACEAU, J:

text:
    HOUSE OF BEAUTY, INC., Plaintiff, v. LUKAS et, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 715117.
    Decided March 27, 1959.
    C. F. & R. H. McConnell, Cleveland, for plaintiff.
    Julian Cohen, Cleveland, for defendants.
   OPINION

By DANACEAU, J:

Beginning in June, 1955, plaintiff has been operating a beauty shop at 5349 Broadview Road in the city of Parma under the name of “House of Beauty, Inc.” Ever since July of 1958 defendants have been engaged in the same business in the same city of Parma, at 5770 Ridge Road, using the name of “Ridgewood House of Beauty.” The defendants also took steps to incorporate and were granted articles of incorporation by the Secretary of State.

It appears from the evidence that plaintiff has been annoyed by very many calls, mostly by telephone, inquiring as to whether the Ridgewood House of Beauty was a branch of the business of plaintiff. On one occasion the laundry of plaintiff was delivered by mistake to the defendants’ place of business. It also appears that some of plaintiff’s customers were puzzled by the name but they were quite able to discriminate and to find their way to the desired beauty shop. It appears that the services in such shops are of a personal nature and that such personal services of the operator are of considerable significance. The use of the words “House of Beauty” was not original with plaintiff. There had been previously in existence in the city of Parma, at 5954 State Road, another main artery like Broadview and Ridge Roads, a beauty shop known as “Mary Ellen’s House of Beauty” now no longer in business. Scattered throughout greater Cleveland are a large number of beauty shops with names that have incorporated therein the words “House of Beauty.” Plaintiff acknowledges the wide spread use of the words “House of Beauty” in the surrounding community in the county, but asserts the right to the exclusive use thereof in the entire area of the city of Parma.

Words such as “Beauty Shop,” “Beauty Parlor,” “Beauty Salon,” “Beauty House,” or, in reverse, “House of Beauty,” “Salon of Beauty,” “Parlor of Beauty,” “Shop of Beauty” are all descriptive of the beauty business.

Such words are generic, describe the nature of the business carried on, and, being in common use, may not be exclusively appropriated.

Words of common use are regarded as common property, “public juris,” and may be used by others in combination with other descriptive words, provided they are not so used in combination with other descriptive words as to render it probable that they would mislead persons possessing ordinary powers of perception. This case is one where both parties have used, as have others, as part of their name, words of a generic significance, properly descriptive of their business. Neither has an exclusive right to its use.

The evidence in this case does not disclose a design to deceive or mislead the customers of plaintiff and there is no evidence of an actual loss of business by the plaintiff to the defendants resulting from the mere use by the defendants of the name “Ridgewood House of Beauty:” nor is there any evidence of a probable loss of business in the future for such reason.

The facts in this case are altogether different from those in the “Pickwick case,” 79 Oh Ap 493, or of the Cleveland Opera case, 22 Oh Ap 400. They are more akin to the facts in the United Electric Fixture & Supply Co. v. United Electric Supply Co., 74 Abs 76, in which Judge Rutherford, sitting as a member of this court, held that—

“1. Where the evidence in an action seeking to enjoin defendant from doing business under its corporate name, United Electric Supply Co., fails to show that defendant changed its name with any calculation or intent to induce persons to deal with it in the belief they were dealing with the plaintiff, United Electric Fixture Supply Co., but was for the purpose of making defendant’s corporate name descriptive of the business engaged in, and there was no direct evidence or reasonable inference of facts to establish either any financial loss or probability of future damage resulting to plaintiff by defendant’s use of such name, and the evidence further shows the actual confusion caused by defendant’s use of such name to be trifling, the court will not enjoin the use of the name by the defendant.”

The subsequent corporate status of the defendant, Mary K. Lukas, as Ridgewood House of Beauty, Inc., is of little, if any, significance to the issues of this case. Had plaintiff been entitled to injunctive relief against the defendant, Mary K. Lukas, its right thereto would not be defeated by the fact that articles of incorporation in the name of Ridge-wood House of Beauty, Inc., had been granted.

Upon consideration of the pleadings, the evidence, and the arguments of counsel, the Court finds that the plaintiff has not sustained its burden of proof to warrant the issue of an injunction.

Judgment will therefore be for the defendants. O. S. J.


author: By BETTMAN, J.

text:
    PAULSON et, v. B. & L. MOTOR FREIGHT, Inc. BEAUCHAMP et, v. B. & L. MOTOR FREIGHT, Inc. NATIONWIDE MUTUAL INSURANCE CO., v. B. & L. MOTOR FREIGHT, Inc. et.
    Municipal Court of Cincinnati.
    Nos. 621671, 628301, 621725.
    Decided May 8, 1957.

      Robert McIntosh, Louis Dietz, Cincinnati, for plaintiffs in Case No. 621671.
    Edward J. Utz, Cincinnati, for plaintiffs in Case No. 628301 and for the plaintiff in Case No. 621725 and for the defendant McCoy in Case No. 621725.
    Milton Bloom, Cincinnati, for the defendant B. & L. Motor Feight, Inc. in all three cases.
   OPINION

By BETTMAN, J.

The evidence in the instant cases shows the facts to be almost beyond dispute. The cases arise out of an automobile collision which occurred on the Loekland Highway, Hamilton County, Ohio, at approximately 3:30 p. m. on August 15, 1955. A tractor-trailer unit owned by defendant and operated by its driver in the course of its business, collided with the rear end of an automobile owned by plaintiff, Frances Paulson. This automobile, in turn, was pushed by the force of the collision against other automobiles stopped in line at a stop sign on the highway. Plaintiffs are all either owners of the automobiles damaged in the chain reaction from the collision or insurance companies subrogated to their rights against defendant, B. & L. Motor Freight, Inc.

The evidence showed that the driver of the B. & L. Motor Freight, Inc. tractor-trailer had been stopped at a traffic light and when the light changed had commenced accelerating. He had shifted into third gear and was proceeding at a rate between ten and fifteen miles per hour. When approximately 100 to 125 feet away, noticing the line of stopped vehicles in front of him, the driver had tried to apply his air brakes, using first the foot or service pedal and then the hand valve, to no effect. By this time he was within approximately 50 feet of the rearmost stopped vehicle and he applied his hand brake. This brake had very little effect (Deposition, page 23) and having no clear path to either side, the truck proceeded into the rear end of the line of stopped cars.

Without reviewing all of the evidence, it is sufficient to say that in the opinion of the court the driver of defendant’s tractor-trailer was not guilty of any negligence in the operation of his vehicle, nor is there evidence which would sustain the burden of proof as to negligence by the driver or any other employee of defendant in the maintenance of the vehicle. The evidence shows that the immediate cause of the collision was the unforeseen breaking of the air hose line.

In the judgment of this court, the decision in the instant case rests on an interpretation of §4513.20 R. C. Sec. 4513.20 (A) R. C., provides “Every * * * motor vehicle * * * shall be equipped with brakes adequate to control the movement of and to stop and hold such * * * vehicle, including two separate means of applying the brakes, each of which means shall be effective to apply the brakes to at least two wheels.” (Emphasis by the court.)

It is apparent that the legislature intended by this section to require two separate means of applying the brakes so that if one means failed, the vehicle would still be equipped with “brakes adequate to control the movement of and to stop * * * such * * * vehicle.” Where the section states the vehicle shall have “two separate means of applying the brakes,” the word “brakes” means brakes “adequate to control the movement of and to stop” such vehicle. The words “effective to apply the brakes to at least two wheels” do not lessen the requirement that the brakes be adequate to control the movement of and to stop the vehicle, but are an additional requirement.

Sec. 4513.20 R. C., is not without its ambiguities and these ambiguities are reflected in the interpretations placed on various parts of the section in counsels’ memoranda. Plaintiffs contend that defendant failed to comply with §4513.20 (E) R. C., in that the hand brake was connected to a drum on the drive shaft and this did not constitute a “positive connection from the operating lever to the brake shoes or bands.” It obviously did constitute a positive connection to the tractor’s two rear wheels which complies with the intent if not the letter of the paragraph, but whether this constituted compliance or not is immaterial. No evidence was introduced showing that any such failure, if it was a failure, proximately resulted in the damage.

Defendant argues that it did comply with the statute in that it did have two separate means of applying the brakes— a hand brake which complied with paragraph (E) and a service brake complying with paragraph (G). The court agrees that as far as the evidence introduced indicated, defendant did have such equipment. However, the court does not concur in the conclusion that compliance with paragraphs (E) and (G) is all that is necessary to comply with (A). The court is of the opinion that (E) and (G) are additional requirements not limitations on the requirement in (A) that there be two separate means of applying brakes adequate “to control * * * and * * * stop” the vehicle.

The fact that §4513.20 R. C., sets up specific standards for the capabilities of the “service or foot brake” in paragraph (G) does not mean that there is no standard for the capabilities of the secondary brake system. It is up to the court to determine the meaning'of the words in (A) “adequate to control * * * and to stop.”

Was the secondary brake system “adequate”? The court is of the opinion that the evidence clearly indicates it was not. It was not able to stop defendant’s vehicle travelling at a rate of twelve miles per hour, on a level concrete surface, within 40 or 50 feet. In fact, the evidence clearly indicates that the secondary brake system was not even designed to stop the vehicle. It was “for parking only” (Deposition p. 26); “ample for holding a parked load” (Deposition p. 41); “effective as much as a parking brake could be” (Deposition p. 43); “not made to stop trucks” (Deposition p. 47).

The failure of defendant to comply with §4513.20 (A) R. C., constitutes negligence and this negligence was the proximate cause of plaintiffs’ damage.

Furthermore, in addition to the negligence shown by a violation of the statutory standard, the court is of the opinion that defendant is guilty of common law negligence. Negligence is defined as the failure to exercise that degree of care which persons of ordinary care and prudence are accustomed to use under the same or similar circumstances, in order to bring the enterprise engaged in to a safe and successful termination, having due regard for the rights of others and the object to be accomplished.

In common parlance, the secondary or hand brake system of vehicles .is often referred to as the “emergency brake.” That, it seems, would mean a brake sufficient to stop the vehicle in an emergency such as when the primary brake system failed, as it did here.

Is it the exercise of ordinary care in the year 1955 to operate a vehicle, weighing in excess of three tons with a load of 10 or ll tons, on the crowded highways of this state equipped with a brake system which, without advance warning, through the severing of any one of a number of couplings or air lines, leaves the vehicle substantially without any means of being brought to a stop? In the judgment of this court it is not and such failure to exercise ordinary care constitutes negligence which proximately caused plaintiffs’ damages.

The court is aware that the brake equipment carried on defendant’s tractor-trailer is similar to that carried by many tractor-trailers presently on the road. That fact is not, however, conclusive as to the degree of care which should be exercised by an ordinary reasonably prudent man under the circumstances.

Plaintiffs argue that defendant is -guilty of negligence in that it violated §4511.21 R. C. — the “assured clear distance rule.” Technically this is true in that defendant’s agent was obviously proceeding at a speed at which its secondary brake system could not halt the vehicle within an assured clear distance ahead. Plaintiffs draw the analogy to vehicles operated with defective brakes or lights. The court does not, however, see how this line of reasoning adds anything to the simple proposition that it was negligent to operate a vehicle at all without two adequate means of bringing the vehicle to a stop. The negligence was in the design of the vehicle, not in its operation. Unless it was negligent not to have two adequate brake systems, then there was no negligence. Defendant is not required by §4511.21 R. C., to operate his vehicle so as to avoid hitting anything under all conceivable circumstances. If defendant’s vehicle had been equipped with two adequate brake systems and by some freak both had simultaneously failed, there would be no liability. Sec. 4511.21 R. C-, does not make defendant an insurer.

Defendant in its memorandum raises the point that plaintiffs did not, in their petitions, allege a violation of §4513.20 R. C., as a cause of the collision. While this is true, the violation of the statute was involved during the trial and furthermore was made an issue by defendant’s answer setting out the condition of defendant’s brakes and plaintiff’s reply thereto denying the answer. The court must take judicial notice of statutes of Ohio applicable to the facts in evidence.

All facts other than the negligence of defendant having been stipulated by counsel, an entry may be presented giving judgment to plaintiffs as prayed for.