author: By SKEEL, J:

text:
    O’BRIEN, an infant, by Charles O’Brien as her next friend, Plaintiff-Appellee, v. SMALL, d. b. a. BELL MOTOR SALES, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23215.
    Decided December 1, 1954.

      Joseph O. Coy, Cleveland, for plaintiff-appellee.
    Harry J. Dworkin, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, J:

This appeal comes to this court on questions of law, from a judgment entered for plaintiff partly by direction and partly upon the verdict of a jury in the Municipal Court of Cleveland.

The action was one seeking return of money alleged to have been paid by the plaintiff on the purchase of an automobile after disaffirming the contract on the ground that plaintiff purchaser was a minor, both at the time the purchase was made and at the time of disaffirmance.

The plaintiff’s petition alleges that she is a minor; that the defendant, David Small, d. b. a. Bell Motor Sales is engaged in the business of selling automobiles in the City of Cleveland; that on June 4, 1952, she then being 19 years of age, purchased by written contract a 1949 Hudson automobile from the defendant, the purchase price being $1030.00 (this figure as alleged is in error, the purchase price being $1495.00). $516.30 being paid in cash and the balance of the purchase price, insurance premiums, finance charges of $1322.64 was represented by note and chattel mortgage on the automobile. This obligation was transferred to the Sun Finance Company to whom the plaintiff was directed to make all future payments. Thereafter, a payment of $73.48 was made to the Finance Company.

On August 25, 1952, the Finance Company repossessed the automobile for failure to make payment under the terms of the mortgage. The plaintiff thereafter disaffirmed the contract and demanded the return of the amount she claims to have paid, in the total sum of $589.69

The Sun Finance Company was made a party defendant but the plaintiff’s prayer seeks relief only against the defendant Small.

The defendant, Small, by his amended answer and cross-petition denies plaintiff was a minor when the purchase was made; denies that she paid $516.20 on the purchase price of the automobile or that he received the July 2nd payment of $73.48. The answer alleges that plaintiff’s husband, Charles O’Brien, made an agreement to purchase a Hudson automobile at which time he made a deposit on the purchase price of $30.00 That thereafter said Charles O’Brien and the plaintiff came to defendant Small’s place of business to complete the negotiations for the purchase of such automobile and at the specific request of Charles O’Brien who was the purchaser of such automobile it was placed in the name of plaintiff, she then representing herself to be 21 years of age. That at the time of the conclusion of the sale, Charles O’Brien paid sufficient additional money to make up the total sum of $116.20 which in part was in payment of sales tax, filing fees, transfer of plates and insurance premiums. It is further alleged that the plaintiff did not pay any money to Small in this transaction.

By way of cross-petition, defendant Small alleges that the Hudson automobile was sold to Charles O’Brien, husband of plaintiff (he having been made a party defendant) and title to the automobile was put in plaintiff’s name at his request, she then and there representing herself to be 21 years of age. That the placing of title in the name of Peggy O’Brien was procured by fraudulent representations, wilfully made by plaintiff. Peggy O’Brien and defendant Charles O’Brien. The defendant Small prays for compensatory damages in the sum of $500.00 and punitive damages in like amount, because of the alleged fraudulent conduct and tortious acts of plaintiff and defendant, Charles O’Brien.

Plaintiff and defendant, Charles O’Brien, deny the affirmative allegations of the answer and cross-petition of Small.

The evidence conclusively establishes that the plaintiff was a minor on June 4, 1952, the day the Hudson automobile was purchased and that the certificate of title was placed in her name. The purchase order signed by Peggy O’Brien shows the following:

Purchase price $1495.00; title $4.85, sales tax $44.85. Plates or transfer $1.50; Total $1546.20. Part payment with order $30.00. cash on delivery $86.20, 1941 Oldsmobile $400.00. Balance to be financed $1030.00

The 1941 Oldsmobile which was turned in on the purchase price of the Hudson automobile, for which an allowance of $400.00 was made was purchased by Charles O’Brien in 1951 and shortly thereafter the certificate of title was transferred to Peggy O’Brien, the explanation ot such transfer made by plaintiff being that her husband wanted to make her an anniversary gift. This was also the explanation of Mr. O’Brien at the beginning of his testimony. On cross-examination, however, he testified:

“Q. And then some time two months later you say you put it in your wife’s name as an anniversary present? Is that how you put it in your wife’s name?
“A. No, sir, that is not true.
“Q. Now, tell the jury the truth and I think you will tell the truth.
“A. Well, I had filed bankruptcy.
“Q. All right. And that was why you put it in your wife’s name, isn’t that true?
“A. Yes, that is right.
“Q. So your wife wasn’t telling the truth when she said, ‘My husband put it in my name as a wedding anniversary present.’ There was no truth to that was there?
“A. No, sir.”

The evidence as to whose money was used to complete the necessary down payment and to pay sales tax, title fees and fee for changing the license plates, is in conflict as is equally true of the reason why the Hudson was put in plaintiff’s name and the evidence as to whether or not plaintiff represented that she was 21 years of age.

The court in the general charge instructed the jury:

“Now, you were instructed that in the opinion of the court, the defendant has offered no evidence whatever which m law would warrant your consideration of defendant’s cross-petition. That leaves the plaintiff’s petition for your consideration. Nov; the court instructs you in this respect that as a matter of law the plaintiff being unquestionably a minor at the time the contract was executed, she is entitled to the return of whatever consideration she parted with in the making of the contract ”

The jurors were then instructed to determine the value of the “Olds” and add to such value the sum $116.00 cash that was paid to Bell Motor Sales, and return a verdict in that amount for the plaintiff. No definition of the issues will be found in the charge.

The defendant claims the following errors:

1. The trial court erred in directing a verdict for the appellee

2. The trial court erred in denying appellant’s motion to withdraw from the consideration of the jury the items of damage based on sums collected by the appellant for state sales tax, title fees and transfer fees.

3. The trial court erred in overruling appellant’s motion that the issue concerning the value of the 1941 Oldsmobile be withdrawn from the consideration of the jury.

4. The trial court erred in permitting appellee’s husband to testify as to the value of the 1941 Oldsmobile.

5. The trial court erred in overruling appellant’s motion for a mistrial,

6. The trial court erred in failing to send exhibits “A” and “C” to the jury.

7. The verdict was excessive and the result of passion and prejudice.

The defendant’s first assignment of error is well taken. Where there is evidence of a violation of a legal duty by tortious acts or fraudulent conduct on the part of plaintiff, the defendant is entitled to have such issue presented to the jury under proper instruction of the court. If, in fact, the defendant established the affirmative allegations of his cross-petition, seeking damages for tortious and fraudulent conduct, by the proper degree of proof, then he would be entitled to a judgment even though no damage was shown and nominal damages should be allowed with costs on the cross-petition.

Winslow v. Ohio Bus Line, 148 Oh St 101, 73 N. E. (2) 504, 35 O. O. 91; Stenger v. Meyer, 19 Abs 304; Morris v. Huber, 15 Abs 71.

The court was in error in directing a verdict for the plaintiff and restricting the jury to a determination of the value of the Oldsmobile.

It was also an issue in the case as to whether or not the money received by the defendant was that of the plaintiff or her husband. A receipt is not conclusive and the fact that the written order indicated the money was received from the plaintiff does not preclude the defendant from showing, by parol evidence, that the money paid on the contract was received from and was the property of Charles O’Brien.

Dean v. King, 22 Oh St 118; Page & Co. v. Ry. 2 Dec. Rep. 716; Wood v. Perry, Wright, 240.

There is evidence in the record tending to show that the money paid in cash on the purchase of the Hudson automobile, or at least part of it, was the property of Charles O’Brien. This issue should have been submitted to the jury under proper instructions from the court. A minor in disaffirming an executed sale is entitled to recover back only such property as was that of the minor, and which the minor parted with in the transaction. Whether or not the Oldsmobile which was turned in was the property of the plaintiff, or her husband, was also an issue in the case. The husband testified that he purchased the car and then transferred it to his wife to save it from being taken from him in a proceeding in bankruptcy. This evidence directly contradicted the plaintiff’s claim of a gift. Even though the certificate of title indicated that she was the owner of the legal title, yet, if a gift was not intended when the title was put in her name and the purpose was to keep it out of the reach of Charles O’Brien’s creditors, she would then hold the title in trust for her husband. Douglas v. Hubbard, 91 Oh Ap 200, 107 N. E. (2) 884, 48 O. O. 308.

It must logically follow that so long as the trust property can be identified, even though changed in character by trading one automobile for another, the trust relationship continues with respect thereto. There is evidence in the record in support of the claim of the defendant that it was the intention of Charles O’Brien to have title to the Hudson automobile put in his name, which evidence, together with the surrounding circumstances, would strongly tend to establish that the trust relationship with respect to the Hudson automobile was to continue under the same circumstances as was claimed as to the Oldsmobile, if such trust relationship is found to have been established.

It is a well recognized principle of law that an infant is bound by and cannot disaffirm an obligation imposed by law. Burlovic v. Farmer, Admr., 162 Oh St 46, 115 N, E. (2) 411. Funds expended for sales tax under §5739.03 R. C„ fees expended to secure from the county clerk a certificate of title to a motor vehicle, and for the transfer of automobile license plates, are obligations of the purchaser and are imposd by law. The court was therefore in error in instructing the jury that money paid to the defendant to defray such obligations could be recouped' by an infant in .disaffirming the purchase of an automobile. We therefore sustain the defendant’s second claim of error.

The right of an infant upon the disaffirmance of the purchase of personal property, is to receive back that which the infant parted with as consideration for the contract. If the plaintiff was the owner of the property in the Oldsmobile, then upon disaffirmance she would be entitled to have the Oldsmobile returned to her, or if the other party to the contract has put it beyond his power to return the automobile then the value thereof would be the basis of recovery. But plaintiff’s petition does not seek the return of the Oldsmobile but alleged that the consideration for the purchase of the Hudson automobile was money which admittedly was not the fact. There was, therefore, a variance between the petition and the proof.

Sec. 2317.49 R. C. provides:

“No variance between the allegations in a pleading and the proof is material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. When it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court. It also must be shown in what respect he has been misled. Thereupon the court may order the pleading to be amended upon such terms as are just.”

The defendant should have been apprised of the fact that the value of the Oldsmobile would be an issue in the case if he was unable to return it in determining plaintiff’s right to recover if and when her right to recover what was parted with in consideration for the purchase of the Hudson automobile is established. The court should have required the plaintiff to amend her petition to conform to the proof and sustained the defendant’s objections to evidence until the amendments had been made.

The defendant, however, being a dealer in motor vehicles, would be prepared to meet evidence as to the value of an automobile without great difficulty. So as to him the variance was not so material as to require a reversal of the case if it were not for the other errors herein considered.

The court, over the objection of the defendant, permitted plaintiff’s husband to testify as to the value of the Oldsmobile. To do so constituted error prejudicial to the rights of the defendant. His right to testify as to the value of a motor vehicle (not being or claiming to be an expert on that subject) could only be based on the fact that he was the owner. If he was the owner, then the plaintiff could not claim its value after the disaffirmance of the contract for the claimed purchase of the Hudson. If he did not own the Oldsmobile, then he was clearly incompetent to give his opinion of its value.

One other question is presented by the record. The court failed to send certain exhibits (certificates of title) to the jury room while the jury was deliberating on its verdict. The reason given for not doing so was that the county clerk refused to leave his records with the trial court after they had been received in evidence. Such reason is without merit. The court, not the county clerk, is vested with the right to determine whether or not a public record shall be received in evidence and when so received, such record must be treated as all other exhibits in the case. If an agreement that a photostatic copy may be substituted is not possible, then the court has no alternative except to see to it that the exhibit remains in the evidence.

For the foregoing reasons, the court sustains all of the errors claimed by the defendant. The judgment of the Municipal Court of Cleveland is therefore reversed and the cause is remanded for further proceedings according to law. Exceptions noted. Order see journal.

HURD, PJ, KOVACHY, J, concur.


source: Caselaw Access Project

author: Per CURIAM:

license: Public Domain

text:
    OIL CITY REFINERS INC., Plaintiff-Appellee, v. DLUZYNSKI, Jr. et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22614.
    Decided March 23, 1953.
    Krewson & Williams, Cleveland, for plaintiff-appellee.
    Woodle & Wachtel, Cleveland, for defendants-appellants.
   OPINION

Per CURIAM:

This is an appeal on questions of law and fact from the Court of Common Pleas of this County, wherein judgment was rendered in favor of the plaintiff against the defendants, John Roski and Theodore and Alphonse Dluzynski. The case is submitted to this Court by a stipulation of counsel for the parties, upon a transcript of the proceedings had and evidence offered and received in the trial court, together with certain additional evidence which by stipulation has been offered and received herein.

Judgment was rendered by the trial court against defendants in the total sum of $4944.29 in an entry which directed the County Clerk and Sheriff to pay that amount to plaintiff out of certain funds in the hands of the Sheriff as proceeds of the sale of certain property growing out of a partition suit. In the petition the plaintiff asserted the existence of a special right to a claim by way of subrogation against the funds in the hands of the sheriff because the plaintiff had paid and discharged a certain note secured by a mortgage covering premises on Miles Avenue at East 140th Street, title to which was in the name of Pauline Roski, wife of defendant John Roski, and Walentina Dluzynski, widow of Theodore Dluzynski Sr. Theodore Dluzynski Sr., and John Roski appeared as makers together with their wives on the said note, and also joined in the mortgage. Theodore Dluzynski died shortly after the execution of the note and mortgage. Title to this property was transferred to the defendants herein some years after the note and mortgage was paid off by plaintiff. The petition filed did not pray for a personal judgment against any of the defendants.

The record discloses that plaintiff made the payments on the note and mortgage on behalf of John Roski and Theodore Dluzynski Sr., and charged them for the same on its books. There is no evidence whatever to show that the title holders to this property, Pauline Roski and Walentina Dluzynski, had any knowledge of such payments or authorized John Roski and Theodore Dluzynski Sr., to arrange for the same. Moreover, no assignment of the note and mortgage was made to the plaintiff, or any other lien acquired or taken as evidence of the transaction by it.

Prom the entire record, we have reached the conclusion that there is no right of action in the plaintiff against these defendants and that consequently no right of subrogation flows from the payment of the obligation in question.

See 38 O. Jur., Subrogation, Sec. 31, page 282, which in part reads as follows:

“* * * where a party furnishes the money to pay off the lien and the transaction shows that there was no intention to take any other lien in its place, the doctrine of subrogation does not apply.”

This case being before us for trial de novo, it is our view that the decree should be for the defendants appellants. Exceptions allowed. Order see journal.

HURD, PJ, KOVACHY, J, SKEEL, J, concur.


text:
    SHAPIRO, Plaintiff-Appellee, v. KORNICKS et, Defendant-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23245.
    Decided January 26, 1955.

      Paul P. Sogg, Cleveland, for plaintiff-appellee.
    Keith Lawrence, Cleveland, for defendant-appellants.
   OPINION

By SKEEL, J:

This appeal comes to this court on questions of law from a judgment for the plaintiff appellee entered on the verdict of a jury. The action is one seeking damages for the breach of an alleged verbal warranty claimed, to have been made by the defendant, as an inducement whereby plaintiff purchased certain residence property from the defendant under a written purchase agreement.

The plaintiff’s petition, after alleging the purchase of the property from the defendant, alleges:

“Plaintiff further states that when she purchased the premises, the defendants herein did orally warrant that the same was built in a first class manner, free from any latent defects. * *

The petition then alleges that after taking possession, certain defects appeared, necessitating certain repairs, which allegation is followed by a long list of items, including “leaking basement; crumbling front steps; cracked front door; radial cracks in basement floor; support column for steel beam; dark red stain in back and insufficient coats of paint,” and many others, whereby it is alleged the total cost of repairs was over three thousand dollars for which amount plaintiff asked judgment. All of the affirmative allegations of the petition are denied by answer except that the defendant did sell a house and lot to the plaintiff under the terms of a written contract in which all of the terms of the sale were set forth, the contract being signed by both buyers and the seller.

A reply denied that all of the terms of the agreement were contained in the written agreement.

The evidence discloses that the purchasers intended to purchase a fully completed house. The defendant builder was not employed by the plaintiff and his wife, now deceased, to build a house for them under a building contract. The defendant claims that the house was fully completed when the contract was made. The plaintiff in his evidence claims some unfinished items, but such items are not referred to in the pleadings and did not form a part of the subject matter of this action.

The evidence shows that before purchase of the house and lot the purchasers examined it with the assistance of others, including plaintiff’s father who had been a carpenter for many years and familiar with residence construction. The only evidence in the record, as to any statement by the seller that would tend to support plaintiff’s claim of “verbal warranty” which evidence was that of the plaintiff, even if it be granted that such evidence is admissible, to vary or add to the terms of the written contract, was as follows:

“Q. Was there any discussion at that point about how the house would be finished or when?
“A. None at all. This was supposed to be a receipt.
“Q. When was the discussion — was there a discussion as to when the house could be completed?
“A. Not as to when, but if it would be, completed.
“Q. What was that discussion?
“A. We pointed out several things that were not completed in the home and actually at a later date I drew up a list of these things and Mr. Kornicks- agreed verbally to see that they are finished.
“Q. What else was said about the house as to its condition and work, and so forth?
“A. He said it was guaranteed to be of good workmanship.
“Mr. Lawrence-: I object to that and ask it go out
“The Court: I will sustain that. What was said at that time?
“The Witness: We asked him directly, ‘did you use the best materials and build this house good’? and he says, T have got a reputation behind me where I couldn’t afford to build a bad home.’ ”

After the agreement to purchase was signed, the plaintiff also testified that the defendant told the plaintiff and his father-in-law, who was going to help finance the purchase,—

“I know your father and I have been building for 35 years and all my homes are good homes.”

The most that can be said for this evidence is that the defendant’s, statement “I have a reputation behind me where I can’t afford to build a bad home” is at most an expression of opinion and could not have been considered by the purchaser as an express warranty.

There is, therefore, no competent evidence in the record to support the plaintiff’s claim of express warranty. In any event the contract of sale between the parties was in writing and cannot be extended or modified by parol evidence. The sales agreement introduced in evidence, sets forth the description of the property, the consideration for the sale, the place the deal was to be escrowed and provides for pro-ration of taxes. The escrow agreement which was drawn by plaintiff’s lawyer, filled in all of the remaining details of the transaction and the contract was carried out — the plaintiff, or rather his wife, becoming the grantee and owner and defendant received the full consideration as provided by the agreement as modified in the escrow agreement. Neither of these writings in which the terms of the sale are fully set forth makes mention of a warranty. The sale of said property under a contract such as was the basis of the sale in this case, must be judged on the contract and the seller is not liable for damages because of the defective conditions of the property claimed to have developed, after the purchasers came into possession, unless the seller was guilty of fraud, in failing to make disclosure of known latent defects or other fraudulent representations.

In 19 O. Jur., 422, Sec. 134, the rule is stated as follows:

“Statements by the vendor of real property as to its condition, quality and character are generally regarded as mere expressions of opinion and, when such is the case, do not constitute fraud. But some courts hold that false representations as to the quality of land may constitute fraud, if made under such circumstances as will justify reliance thereon. In Ohio, misrepresenting the quality of land is a cheat which will entitle the purchaser to recover for his injury.”

In the case of Kerr v. Parsons, 83 Oh Ap 204, it is said in the fourth paragraph of the syllabus:

“4. In the absence of written warranty in compliance with the statute of frauds, no implied warranty as to condition arises in connection with a sale of real estate induced by oral representations.”

And at page 208, the court says:

“Ordinarily, there is no implied warranty as to the condition of real estate sold or leased and oral evidence of a warranty would not be admissible to add to a deed or lease. 4 Thompson on Real Property (Perm. Ed.) 2, et seq., Sections 1545, 1546. An express warranty to be enforceable, would be required to be in writing to satisfy the statute of frauds.”

The question of fraud is not pleaded in this case and the plaintiff’s case must be tried on the issues presented by the pleadings.

The defendant also claims that the court committed error prejudicial to his rights, in the admission of evidence. On cross-examination, the defendant was asked if he did first-class work, to which he answered that he had not had any complaints in thirty-five years, except those of the plaintiff, which were not made until the plaintiff had been in the house for a year. Then the defendant was asked:

“Q. Never had a complaint from anybody?
“A. Thirteen (probably meant thirty) years they send me a Christmas card, for years, I can mention a dozen places.
“Q. Isn’t it a fact, Mr. Kornicks, you have unfinished houses in South Euclid that they will not let you finish?
“Mr. Lawrence: I object to that.
“The Court: Sustained.”

Thereafter, the South Euclid building inspector was called and asked if there was a record in the city of Mr. Kornicks not complying with building regulations. The witness was permitted to answer the question in the affirmative, as bearing on the credibility of Kornicks as a witness. Permitting these questions and compelling the witness to answer constituted reversible error. The building inspector could not, under any circumstance, testify as to complaints of other purchasers of which he had no knowledge, and the alleged complaints about which he had testified were in no sense in conflict with the defendant’s testimony on the subject of complaints of customers. The admission of the testimony of the building commissioner as to his complaints against the defendant’s deviation from plans, was highly prejudicial and constituted reversible error.

The plaintiff both testified that before and after the agreement of sale was made, but before the escrow was concluded, the buyer requested and the defendant agreed to make certain corrections, additions or repairs, and to finish certain unfinished items as a part consideration for the purchase' of the house. The parties differ materially as to what these items were, the defendant testifying that he was to put an additional railing around the stair well in the dttic (which he’ claims was voluntarily done); a ridge board at the peak of the roof; repair a broken window in the side door; loosen up the windows stuck with paint, and one or two other minor items.

The plaintiff testified to many other items which he claims were not done and which, in part, make up the list of items for which damages are asked, for failure to finish this work. While the pleading of the plaintiff did not clearly allege such default, yet, if liberally construed, such claim might be said to be included in plaintiff’s cause of action, and in all events evidence was received without objection on the part of the plaintiff, in support of such claim and defendant’s claim that all such promises made were fully performed by him. Whether the defendant completed the house was therefore an issue in the case and should have been submitted to the jury under proper instructions from the court.

An examination of the charge discloses that the issue of completion of the house was not clearly defined and that the remainng issues presented by pleading and the evidence were not properly or clearly defined so that the jury could know what issues of fact were being submitted to them.

We find, therefore, that substantial justice was not done the defendant for the reasons set forth in this opinion, and the judgment is reversed and the cause remanded for further proceedings according to law. Exceptions noted. Order see journal.

HURD, PJ, KOVACHY, J, concur.


author: By THE COURT.

text:
    GREEN, Plaintiff, v. OHIO STATE RACING COMMISSION, Defendant.
    Ohio Appeals, Second District, Franklin County.
    No. 5203.
    Decided December 7, 1954.

      Paul M. Herbert, Columbus, and William H. Deddens, Cincinnati, for plaintiff.
    Hon. C. William O’Neill, Attorney General, Hugh A. Sherer and Thomas R. Lloyd, Assistant Attorneys General, Columbus, for defendant.
   OPINION

By THE COURT.

This is an original action in prohibition in which a demurrer has been filed to the petition upon the ground that the same does not state facts sufficient to constitute a cause of action.

The petition, after setting forth the capacity of the parties, provides:

“Plaintiff further says that the defendant Ohio State Racing Commission caused a certain alleged charge to be filed against plaintiff in the office of the defendant, said alleged charge being as follows:
“ ‘Notice is hereby given to Henry Green that the Ohio State Racing Commission has before it for consideration certain charges against him, and for determination in connection therewith of whether the said Henry Green should be ruled off the turf, such charges involving alleged violations of the Ohio Horse Racing Act and the Ohio Rules of Racing, more particularly §3769.09 R. C., and Rules 45 and 46, Ohio Rules of Racing, such charges being specifically as follows;
“ ‘In that the said Henry Green, on or about August 19th, 1954, at the Hamilton, Ohio, racetrack, being then and there an unlicensed mutue) employee of Ohio Sports Enterprises, Inc., during the conduct of a horse racing meeting by said Ohio Sports Enterprises, Inc. under authority of a permit therefor issued by the Ohio State Racing Commission, did then and there knowingly, wrongfully and‘unlawfully deny to one Jack Carmody full and free access to the mutuel plant of said Ohio Sports Enterprises, Inc., the said Jack Carmody being then and there an official inspector of the Ohio State Racing Commission and engaged in his official duties as such inspector.
“ ‘Notice is further given the said Henry Green (1) that he is entitled to a hearing on said charge prior to the making of an adjudication order with respect thereto if such hearing be requested within thirty days of the time of the mailing of this notice, and (2) that at such hearing he may appear in person or by counsel or other representative as is permitted to practice before the Commission, or may present his position, arguments or contentions in writing and that at such hearing he may present evidence and examine witnesses for and against him.
“ ‘Request for a hearing on these charges, if a hearing is desired, should be addressed to the Ohio State Racing Commission, Wyandotte Building, Columbus, Ohio, and may include a request on the matter of setting a specific date for the holding of such hearing.
Edward Corrigan
Secretary, Ohio State Racing Commission.’ ”
“Plaintiff further says that on or about October 13, 1954, he appeared before said Commission, the defendant herein, and filed his Plea in Abatement which was overruled and a Demurrer to said alleged charge setting out in substance that the Ohio State Racing Commission had no authority in law or jurisdiction to hear or to determine, adjudicate or issue any order whatsoever upon said alleged charge hereinbefore set out, but that said Plea in Abatement and Demurrer were overruled by defendant and the defendant proceeded to herein take testimony relative to said alleged charge.
“Plaintiff further says that at the conclusion of said hearing the defendant advised plaintiff that it would give the evidence and the testimony consideration and would announce its adjudication and order later.
“Plaintiff further says that the defendant proposes to issue an order and adjudication later, though without lawful power to do so.
“Plaintiff further^ says that the defendant proposes to issue an order which will rule him off of the turf, not only of every horse racing track in Ohio, but in the United States by the reason of reciprocal understandings between the state of Ohio and other states relative to the conduct of horse racing; that the plaintiff has heavy investments in the horse race track at Hamilton, Ohio, that he has employment at said track and other tracks which the defendant now proposes to take from the plaintiff unless a Writ of Prohibition is issued by this Court.
“Plaintiff further says that the proposed action of the defendant will do irreparable harm to the plaintiff and cause him such injuries that no other proceeding in any Court is available to prevent said injury and damage to his reputation, standing and to his investments except by this Court in this proceeding.
“WHEREFORE, plaintiff prays that a' Writ of Prohibition issue prohibiting the defendant from engaging in any further proceedings whatsoever or making any adjudication whatsoever on the alleged charges herein set out, and that pending final hearing of this cause by this Court there issue forthwith an order requiring the defendant to show cause why a Writ of -Prohibition should not issue and that a hearing thereon be set by this Court as early as is convenient and that the plaintiff recover his costs herein expended.”

At the outset it should be noted that a writ of prohibition is a high prerogative writ to be used with great caution in the furtherance of justice and only when there is no other regular, ordinary and adequate remedy. State ex rel. Nolan, v. ClenDenning, 93 Oh St 264, It may be invoked against inferior courts or tribunals possessing judicial or quasi-judicial powers in order to keep the same within the limits of their own jurisdiction. It must be conceded that the Ohio State Racing Commission possesses certain quasi-judicial powers under §3769.01 R. C. et seq.; hence the first question we shall consider is whether or not there is an adequate remedy at law or in equity to the plaintiff herein. The Racing Commission is an administrative agency of the State of Ohio whose orders are subject to appeal .under §119.12 R. C. of the Administrative Procedure Act. This section not only provides for an appeal from the order of the agency but it provides further that the court may grant a suspension of the order, fix' its terms and upon final determination may reverse, vacate or modify the order or make such other ruling as is supported by the evidence and the law. The plaintiff’s rights may not be determined in Ohio until there is a final adjudication and the same rule should apply in the sister states. Should any of them deny him rights to which he is entitled his relief should be sought in the states denying him his lawful privileges.

The demurrer will be sustained for the reason that the plaintiff has an adequate remedy at law.

WISEMAN, PJ, MILLER and HORNBECK, JJ concur.


text:
    MATTHEWS, Plaintiff-Appellee, v. BOARD OF REVIEW, BUREAU OF UNEMPLOYMENT COMPENSATION, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22637.
    Decided February 16, 1953.
    Miller, Davis & Folk, Cleveland, for plaintiff-appellee.
    C.,Wm. O’Neill, Atty. Geni., C. E. McLeod, Asst. Atty. Geni., Columbus, for defendant-appellant.
   OPINION

Per CURIAM:

Judgment affirmed for the reason that claimant was able to work and available for work as a rough carpenter and painter. He did not belong to a union and his application for membership in the union being refused, he was unable to obtain employment in such occupations and then clearly qualified for unemployment compensation under §1345-6a(4) GC, effective September 29, 1947. In Hinkle v. Lennox Furnace Co., 84 Oh Ap 478. the second paragraph of the syllabus provides:

“(2) Where the evidence in a proceeding for unemployment compensation, establishes that, although the claimant is not able to work and available for work in his usual trade or occupation, he is able to work and available for lighter work in other occupations for which he is reasonably fitted and is unable to obtain such work, he is eligible to receive benefits.”

This case was affirmed by the Supreme Court December 22, 1948, 150 Oh St 471. Exceptions noted. Order see journal.

HURD, PJ, KOVACHY, J, SKEEL, J, concur.


author: PER CURIAM:

text:
    SPRINGER et, Plaintiff-Appellants, v. MITTLEMAN COMPANY, Defendants-Appellees. MITTLEMAN CO. et, Plaintiffs-Appellees, v. JACKSON et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 22861, 22862.
    Decided November 23, 1953.
    Woodle & Wachtel, Cleveland, for J. H. Springer et al.
    M. D. Malitz, Cleveland, for Mittleman Co.
   OPINION

PER CURIAM:

The court permitted the appellant to present his arguments on assignments of error Nos. 1, 7 and 8, leaving the other assignments of error for later consideration.

Assignment of error No. 1 has to do with requiring the plaintiff to elect at the conclusion of plaintiff’s case upon which cause of action he would proceed, it being claimed by appellant that the causes of action are not inconsistent. We find that the causes of action are inconsistent and the court correctly directed plaintiff to elect.

Assignments of error Nos. 7 and 8 have to do with whether or not the court complied with plaintiff’s request for findings of fact and conclusions of law. We find from the record that the court’s order to journalize and consider its written opinion as findings of fact and conclusions of law filed with the papers in the case, is in full compliance with §2315.22 R. C. and therefore these assignments of error are overruled

The causes are returned to the active list for reassignment on December 17, 1953, for argument on the remaining assignments of error. Exceptions noted.

HURD, PJ, KOVACHY, J, SKEEL, J, concur.


author: By GRIFFITH, J.

text:
    SPRINGER et, Plaintiffs-Appellants, v. MITTLEMAN COMPANY, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 22861, 22862.
    Decided February 11, 1954.
    Woodle & Wachtel, Cleveland, for plaintifis-appellants.
    Myron D. Malitz, William H. Rosenfeld and Alfred Palay, Cleveland, for defendant-appellee.
    (DOYLE, PJ, HUNSICKER, J, of the 9th District, GRIFFITH, J, of the 7th District, sitting by designation in the 8th District.)
   OPINION

By GRIFFITH, J.

This is an appeal on questions of law from a judgment entered in the Common Pleas Court of Cuyahoga County for the defendant.

The case of Springer, et al., v. The Mittleman Company is an action for damages, the plaintiffs claiming that they were induced by fraud to purchase the assets of the Supreme Suitcase Company, a division of the defendant corporation.

By stipulation, the decision of this case is determinative of Case No. 639908.

There were nine assignments of error set forth by plaintiff-appellant. Three of these assignments, to wit, 1, 7, and 8, have previously been presented by way of briefs and arguments and passed upon by this Court.

The remaining assignments, to wit, 2, 3, 4, 5, 6, and 9, remain for determination.

Aside from the matter of admission and rejection of evidence, the principal issue on this appeal concerns the weight and sufficiency of the evidence, and the law applicable thereto. The Trial Court made its findings of fact and law, and it is for this Court, from the mass of evidence disclosed by the record, to test the findings of that Court.

The Trial Court’s pronouncement of the law applicable to the issues in this case is concise, all inclusive, and correct. As to the findings of fact, we have no difficulty in following that Court.

The Court of Appeals, upon assignment of error involving the weight of the evidence, can reverse the judgment below only when the finding of fact of the Court is so manifestly contrary to the nature and reasonable inference to be drawn from the evidence as to produce a result in complete violation of substantial justice.

“The reviewing court is required to indulge every reasonable presumption in favor of the validity and regularity of the judgment under review, and if there is substantial evidence in the record from which reasonable minds might reasonably draw different conclusions, the judgment must not be disturbed.”

Hellebush et, v. Tischbein Apothecaires, Inc., 54 Oh Ap, 162. Hamden Lodge v. Ohio Fuel Gas Company, 127 Oh St 469, 189 N. E. 246.

Therefore, finding no merit to assignments 2, 3, 4, 5, 6 and 9, the same are hereby overruled, and the judgment of the Court of Common Pleas is affirmed. Exceptions noted. O. S. J.

DOYLE, PJ, HUNSICKER, J, concur.


author: By MILLER, J.

text:
    BRANHAM, Appeal of, In re.
    Ohio Appeals, Second District, Franklin County.
    No. 4716.
    Decided October 13, 1953.

      Ganger & Ganger, Hugh McNamee, Gilbert H. Wieder, of Counsel, Cleveland, for appellant, J. E. Branham.
    C. William ONeill, Atty. Genl., C. V. Thomas, Robert B. Rady, Asst. Attys. Genl., Columbus, for State Fire Marshal.
   OPINION

By MILLER, J.

This is a law appeal from the judgment of the Common Pleas Court sustaining an order of the State Fire Marshal which affirmed an order issued by Elmer M. Cain, Chief of the Division of Fire, Cleveland, Ohio. The order commanded the appellant to tear down and demolish a two story frame barn located at the rear of 8617 Quincy Avenue: to remove all materials and remedy all dangerous conditions, the reason assigned being that the same “is structurally unsafe, is in a dilapidated condition and is a fire hazard to neighboring property, and constitutes a fire hazard and endangers life and other buildings or property.” The order was made under authority of §835 GC, which law as far as applicable is as follows:

“If the state fire marshal, a deputy state fire marshal, or assistant fire marshal, or any officer mentioned in the preceding section, upon an examination or inspection finds a building or other structure, which for want of proper repair, by reason of age and dilapidated condition, defective or poorly installed electrical wiring and equipment, defective chimneys, defective gas connections, defective heating apparatus, or for any other cause or reason is especially liable to fire or endangers life or other buildings or property, such officer shall order such building or buildings to be repaired, torn down, demolished, materials removed and all dangerous conditions remedied.”

It should be noted first that we recognize this statute is in derogation to the rights of private property and must be strictly construed. State, ex rel. Oil Co., v. Dauben, 99 Oh St 406. The authority conferred upon the officer to tear down is not exclusive, but there is the further authority to order repairs to be made. This requires the exercise of a sound discretion and in construing the statute strictly it would seem that an order to destroy should issue only as a final resort: that private property should never be destroyed when it might be lawfully preserved.

In Maxedon v. Rendigs, Commr., 9 Oh Ap 60, at p. 61, in speaking of the powers conferred by this statute, the Court appropriately stated:

“But the property must constitute a nuisance, and the peril be imminent, to warrant such summary action as its destruction. The exercise of such power in its nature must be arbitrary, but it arises from necessity and must always be distinctly for the public welfare and with full recognition of the inviolateness of private property as guaranteed in the Bill of Rights (Sec. 19, Art. I of the Constitution).”

In this cited case the Court found that the building could be repaired so as to meet all safety requirements and therefore enjoined its destruction, but in the case at bar there was a decided conflict in the testimony as to whether or not the building was susceptible to being repaired.

An examination of the record discloses that Emmett T. Porter, who has had twenty-four years experience with the Cleveland Fire Department, testified that the building was in a dilapidated condition, was a fire hazard and could not be repaired. Mark Booth, the Deputy State Fire Marshal, testified that the building was in a dilapidated condition, was a fire hazard and that it adjoined other buildings in which people were living. He was of the further opinion that it could not be repaired. Charles Higgins, a City Building Inspector, and former fireman, testified that the building was in a rotted condition, was structurally unsound, and unsafe for occupancy. John Dries, another City Building Inspector, testified that the building was dilapidated, out of plumb, and in danger of collapsing. Malcolm S. Douglas, Secretary of the Board of Building Superintendents and Building Appeals, a former inspecctor and consulting engineer, who had served on the faculty of Case Institute of Technology, the University of Maine, and the University of Wisconsin, testified that the building was dilapidated and in an unsafe condition and that it was about 75 per cent deteriorated.

After carefully considering the entire record we are of the opinion that the order appealed from is supported by reliable, probative and substantial evidence and is in accordance with law.

The judgment will be affirmed.

WISEMAN, PJ, HORNBECK, J, concur.


author: By DULL, J.

text:
    GILLETTE, Plaintiff, v. BROOKHART et, Defendants.
    Common Pleas Court, Mercer County.
    No. 14286.
    Decided August 11, 1954.

      David M. Myers, Celina, for plaintiff.
    Don W. Montgomery, Celina, K. B. Cope, Canton, for defendants.
   OPINION

By DULL, J.

The demurrer of the defendant lessor to the amended petition of the plaintiff lessee based on the grounds that it allegedly does not state facts sufficient to constitute a cause of action was submitted to the court upon the memorandum of counsel for the defendant lessor and the later oral arguments of counsel for the plaintiff lessee and of counsel for the defendant lessor.

The amended petition of the plaintiff lessee omitting the caption, jurat and signatures reads as follows:

“Plaintiff says defendants, Dora M. Brookhart and The National Bank of Lima are the duly appointed, qualified and acting executors of the estate of E. J. Brookhart, deceased, having been appointed as such on the 15th day of August, 1950, by the Probate Court of Mercer County, Ohio.
“That on the 13th day of December, 1950, being within four months after the appointment of the executors, plaintiff presented to Dora M. Brookhart, one of such executors, plaintiff’s claim in writing.
“That on the 19th day of December, 1950, said claim was rejected by said Dora M. Brookhart and The National Bank of Lima as executors of said estate.
“And now, within two (2) months after the date of rejection of said claim plaintiff brings this his action on the said claim.”

Plaintiff says that on or about the 24th day of August, 1949, he and E. J. Brookhart, deceased, entered into a contract regarding the farms owned by E. J. Brookhart, deceased, which contract states in part:

“It is understood that this lease shall be automatically renewed from year to year but may be terminated at any time by mutual consent by either party giving to the other ninety days written notice of his intention to terminate said contract on the following March 1st or anniversary date of said lease.”

That the defendants did avail themselves of this part of the contract and the plaintiff has vacated the farms which were the subjects of the contract.

The contract further states:

“It is understood and agreed that it is the intention of the parties hereto to build up a commercial dairy herd.”

The contract further states:

“If the lessee shall fail to perform the labor or exercise the care agreed upon the (to) such an extent as to threaten or cause serious injury to crops, stock or farm, the lessor shall have the right to re-enter and take full possession of the farm, and the lessee shall peaceably vacate the premises. The differences between the two parties shall be deferred to a board of three arbitrators, one to be chosen by each party and the third by these two. The decision of these arbitrators shall be final and binding upon the parties to this contract.”

The contract further states:

“Upon the termination of this lease, all partnership property shah be sold at public aution or private sale, or otherwise disposed of as agreed between the partners.”

The contract further states:

“If the lessee shall die during the term of this lease, the lessor shall, have the right to take possession of said premises, to employ such labor as may be necessary to perform the work which the lessee should have performed, deduct the cost of such labor from the lessee’s interest in the crops and livestock, or from the proceeds to be derived from their sale, and pay the balance to the representatives of said lessee.
“Plaintiff says that pursuant to the terms of the contract which states the purpose of the contract was to build up a commercial dairy herd, that he did expend sums of money for stock and equipment to be used for a number of years as was the intention of the parties; that it was understood that there would be a loss in the operation for the first few years but that thereafter a substantial profit would be made each year; that unfortunately Mr. E. J. Brookhart passed away and the executors of his estate saw fit to disregard and did not fulfil the agreement and intentions of E. J. Brookhart, deceased. That the plaintiff was informed by the defendant, Dora M. Brookhart, that he was failing to perform labor and was not exercising proper care; that she even was afraid of his doing damage to the land and property; that he was then served with a notice to vacate the premises which he did. The defendants failed to present the differences to a board of three (3) arbitrators pursuant to the terms of the contract.
“Plaintiff says that because of the failure of the executors to faithfully fulfil and perform the contract entered into by E. J. Brookhart, deceased, and plaintiff; that he has been damaged in the amount of seven thousand, eight hundred ($7,800.00) dollars.
“Plaintiff says that said claim is justly due and that no payments have been made thereon, but that there is a set-off in the amount of two thousand eight hundred thirty seven dollars and fifty cents ($2837.50), which amount plaintiff was indebted to E. J. Brookhart, deceased, which leaves a balance of $4962.50 still due this plaintiff.
“Wherefore, plaintiff prays judgment against the defendants in the amount of $4962.50 and for all other relief as is proper at law or in equity.”

It has long been accepted that a demurrer searches the record and admits facts that are well pleaded.

“A demurrer to a petition attacks it for defects appearing on its face; where it attacks the petition on the ground that it does not state a cause of action, it raises the question whether, assuming that the facts pleaded are true, they are sufficient in law to show a cause of action in favor of the plaintiff against the defendant. The court in passing upon the demurer has no right to go outside of the petition for information, but must rely wholly and entirely upon the language used therein.” 31 O. Jur., p, 702.

Further, “In the interpretation of a contract the document is construed strictly against the person who prepared it, and favorably to the person who had no voice in the selection of the language. It is presumed that one using words, uses those most favorable to his interest and therefore all doubtful terms or ambiguous words are to be construed against him.” Vol. 9 O. Jur., pages 429 and 430. The deceased lessor in this case was an attorney, corporation executive and a landord for many years. The lessee is a tenant farmer of, presumably, average intelligence, education and experience.

“It is elementary that every cause of action must contain two factors: First, plaintiff’s primary right and defendant’s corresponding primary duty: second, the wrongful act or omission of the defendant by which such primary right and duty have been violated, and the material facts only which constitute such primary right and duty and the wrongful act or omission, violative thereof need be alleged.” Vol. 9, O. Jur. page 609.

From a careful study of the amended petition of the plaintiff lessee, the court finds two alleged primary rights of the plaintiff lessee and two alleged primary duties of the defendant lessor which the defendant lessor is alleged to have failed to perform or violated.

The two alleged primary rights of the plaintiff lessee being: (1) the plaintiff lessee had the right to have the defendant lessor fulfill or carry out the provisions and intentions of the parties to the contract and (2) the plaintiff lessee had the right to submit to three arbitrators any differences arising between the plaintiff lessee and the defendant lessor in case the defendant lessor charged the plaintiff lessee with failure to perform.

The two alleged primary duties of the defendant lessor which the defendant lessor is alleged to have failed to perform or violated are: (1) the defendant lessor had the duty to fulfill or carry out the provisions and intentions of the parties to the contract and (2) the defendant lessor had the duty to submit to three arbitrators any differences arising between the plaintiff lessee and the defendant lessor in case the defendant lessor charged the plaintiff lessee with failure to perform.

The second right of the plaintiff lessee and the second duty of the defendant lessor will be considered first.

The court views this action as one for breach of contract.

“The bringing of an action for breach of contract constitutes a waiver on the part of the plaintiff of his right to arbitration under an agreement therefor within the scope of the Ohio Arbitration Act.” Vol 4, O. Jur. 2d page 662.

Further, “The plaintiff had a right to arbitration. It waived such right by bringing the action. The defendant construction company had the right to arbitration. It waived such right by answering and making no defense on this basis and proceeding through the trial to verdict without availing itself of the rights under the contract or statute. It met the issue of defective workmanship and breach of contract squarely. The case was tried by all parties on the basis that the breach of the contract was the issue. It is now too late to raise a different issue. The record shows no other presented.” Board of Education of Addyston Village School District v. Nolte Tillar Bros. Construction Co., Inc., Volume 71 Oh Ap 476.

Hence, it is the considered opinion of the court that although the plaintiff lessee had a right to arbitrate and the defendant lessor had a corresponding duty, the plaintiff lessee by bringing this action waived such right. Consequently, if the right is waived, the failure of the defendant lessor to perform cannot be the basis of an action for breach of contract.

This leaves the first right of the plaintiff lessee and the first duty of the defendant lessor to be considered. Such right and such duty as alleged in the amended petition are broken down into two parts: (a) the right of the plaintiff lessee to have the defendant lessor fulfill or carry out (1) the provisions and (2) the intentions of the parties to the contract; (b) the duty of the defendant lessor to fulfill or carry out (1) the provisions and (2) the intentions of the parties to the contract.

The contract contains three pertinent provisions of termination:

“If the lessee shall fail to perform the labor or exercise the care agreed upon the (to) such an extent as to threaten or cause serious injury to crops, stock or farm, the lessor shall have the right to re-enter and take full possession of the farm, and the lessee shall peaceably vacate the premises. The differences between the two parties shall be deferred to a board of three arbitrators, one to be chosen by each party and the third by these two. The decision of these arbitrators shall be final and binding upon the parties to this contract.
It is understood that this lease shall be automatically renewed from year to year but may be terminated at any time by mutual consent or by either party giving to the other ninety days written notice of his intention to terminate said contract on the following March 1st or anniversary date of said lease.
Upon. the termination of this lease, all partnership property shall be sold at public auction or private sale, or otherwise disposed of as agreed between the partners.”

The first provision gives the defendant lessor the right to terminate for cause with no notice to the plaintiff lessee and is coupled with the already-passed-upon right to arbitrate.

Although the plaintiff lessee alleges in his amended petition that he was informed by the defendant lessor that the defendant lessor was terminating the contract for cause, the plaintiff lessee also alleges that he was given notice according to the second provision for termination open to either party to the contract.

Hence it is the second provision for terminataion that is to be considered.

The syllabus of Ferguson v. Buddenberg, 57 Abs 473, states:

“Where a tenant, upon request and notice to vacate voluntarily abandons premises rented from week to week, without protest, no action for damages against the landlord, based on fraud or misrepresentations as to reasons for such request to vacate can be maintained under rights recognized by the common law or the Federal Housing and Rent Act, or any statute of Ohio.”

On page 474 of the opinion, the court states:

“To permit the maintenance of the present action would open the door wide to a recourse to the courts, whenever after voluntary change of quarters, the vacating tenant discovered that the landlord had rented such vacated quarters for an additional amount.
If the plaintiff had any rights in the premises, he voluntarily released and waived such rights by vacating the premises without- protest.”

Further, par 8 of the syllabus of Green Bay Auto Distributors, Inc. v. Willys-Overland Motors, Inc., 63 Abs page 515, states:

“A provision in a contract between a manufacturer and a distributor pf goods giving either party the right to cancel and terminate the contract at any time by giving 30 days written notice to the other party, gives an unqualified right to cancel such contract according to its terms without incurring liability for doing so.”

On page 529 of the opinion, the court states:

“In the instant case it is clear that Martin’s dealership was to continue no longer than either he or the Ford Motor Company desired it to continue and that its right to terminate it was subject to no conditions as to good or bad faith, motive, intent, or results, except as to the requirement of advance notice if such termination was desired by the Ford Motor Company.”

The plaintiff lessee alleges that notice to terminate was given to him by defendant lessor according to the second provision for termination. Further, the plaintiff lessee does not allege in his petition that the third provision for the disposal of partnership property in case of termination was not fulfilled or carried out. The defendant lessee in his memorandum states that such provision was fulfilled or carried out. At 'the oral hearing on the demurrer, this was not disputed by the plaintiff lessee.

Hence, it is the considered opinion of the court that the right of the plaintiff lessee to have the defendant lessor fulfill or carry out the second provision for termination of the contract has not been violated by the defendant lessor, nor has the defendant lessor failed to perform any corresponding duty.

The plaintiff lessee in his amended petition alleges:

“The contract further states:
“It is understood and agreed that it is the intention of the parties hereto to build up a commercial dairy herd.”

The plaintiff lessee in his amended petition further alleges:

“Plaintiff says that pursuant to the terms of the contract which states the purpose of the contract was to build up a commercial dairy herd, that he did expend sums of money for stock and equipment to be used for a number of years as was the intention of the parties: that it was understood that there would be a loss in the operation for the first few years but that thereafter a substantial profit would be made each year ”

Par. 1 and 2 of the syllabus of Blosser v. Enderlin, 113 Oh St 121, states:

“1. The agreement of parties to a written contract is to be ascertained from the language of the instrument, and there can be no intendment or implication inconsistent with the express terms thereof.
2. Except where the reformation of a written contract is sought in equity, evidence can not be introduced to show an agreement between the parties materially different from that expressed by clear and unambiguous language of the instrument.”

Gurtler, d. b. a. W. A. Gurtler & Co., v. Kauer, Dir., et al, 92 Oh Ap 125, of the opinion states:

“The intent of the parties controls in the interpretation of the contract and the intention must be gathered from the language employed.”

The language of the contract itself relative to the intentions of the parties is clear and unambiguous. They intended to build a commercial enterprise. Such entails the expenditure of time, effort, thought and money — among other things. Fortunately, in this country, profit is still the underlying motive in all such undertakings. As to when a profit can be realized is always a matter of many diverse factors only a few. of which can be foreseen or provided for. In the instant case, some factors were provided for: others were not.

The plaintiff lessee in his amended petition alleges that during the term the contract was in force the original lessor died. There is a provision in the contract as to the specific steps to be taken in the event the lessee died, but none as to the specific steps to be taken in the event of the lessor’s death. Perhaps it was an oversight. Certainly it is unfortunate.

The plaintiff lessee does not allege that during the term in which the contract was in force the defendant lessor did anything to prevent, or failed to do anything necessary to, the building up of a commercial dairy herd. The plaintiff lessee does not allege any fraud, illegality or bad faith on the part of the defendant lessor.

Paragraph 9 of the syllabus of Green Bay Auto Distributors, Inc. v. Willys-Overland Motors, Inc., citation supra, states:

“The function of a court is to interpret and enforce contracts not to make or extend them.”

On page 530 of the opinion the court states:

“And while, as we said in the Kirkmeyer (Kirkmyer) Case, there is a natural impulse to be impatient with the form of contract which places the comparatively helpless dealer at the mercy of the manufacturer, we do not make the contracts for the parties, and we cannot protect them against lawful agreements and conditions which they may see fit to make for themselves. * * * Our function is to interpret and enforce contracts, not to make or extend them.”

The syllabus of Ullman v. May 147 Oh St 468, states:

“(1) Where a written agreement is plain and unambiguous it does not' become ambiguous by reason of the fact that in its operation it will work a hardship on one of the parties thereto and corresponding advantage to the other. (Ohio Crane Co. v. Hicks, 110 Oh St 168, approved and followed.)
(2) Courts do not relieve a party competent to contract from an improvident agreement in the absence of fraud or bad faith.
(3) A person competent to contract who, pursuant to a written agreement with another has performed services, is entitled to compensation therefor only in accordance with the terms of such bargain, in the absence Of fraud, illegality or bad faith.
(4) In the absence of fraud or bad faith, a person is not entitled to compensation on the ground of unjust enrichment if he received from the other that which it was agreed between them the other should give in return.”

The contract of employment in last cited case too contained a provision that it could be terminated by either of the parties upon giving to the other party not less than seven days’ written notice of the intention to cancel.

Hence, it is the considered opinion of the court that the right of the plaintiff lessee to have the defendant lessor fulfill or carry out the intentions of the parties to the contract has not been violated by the defendant lessor, nor has the defendant lessor failed to perform any corresponding duty.

Therefore, the demurrer of the defendant lessor to the amended petition of the plaintiff lessee is sustained.

Exceptions to this ruling are granted to the plaintiff lessee.


author: By HUNSICKER, PJ.

text:
    FIORILLI, Plaintiff-Appellee, v. SUN LIFE INSURANCE CO. OF AMERICA, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23319.
    Decided January 12, 1955.
    Paul Mancino, Cleveland, for plaintiff-appellee.
    Arter, Hadden, Wykoff & VanDuzer, Cleveland, for defendant-appellant.
    (DOYLE, J, HUNSICKER, J, of Ninth District; GRIFFITH, J, of Seventh District sitting by designation.)
   OPINION

By HUNSICKER, PJ.

This is an appeal on questions of law from a judgment rendered on a verdict returned by a jury in the Municipal Court of Cleveland Ohio.

On April 7, 1952, the appellant, Sun Life Insurance Company of America, herein called Sun Life, issued a policy of insurance on the life of John H. Fiorilli, now deceased. The premiums were regularly paid as they became due. After the death of John H..Fiorilli, his widow, the appellee herein filed the proper proofs of death and requested Sun Life to pay the $1,000 face amount of the policy. Sun Life refused to make payment, claiming that under a provision in the policy of insurance, they declared

the policy to be void. They then tendered into court the premiums paid by John H. Fiorilli on said policy.

The jury returned a verdict for $1,000 for Mrs. Fiorilli, and the Sun Life then appealed to this court, saying that the trial court committed prejudicial error in the trial of the case (a) in the admission of evidence, (bi in its charge to the jury, and (c) in failing to direct a verdict in favor of Sun Life, because of the provision of the policy with reference to serious illness by the insured within a period of two years.prior to the issuance of the policy.

The provision of the policy relied upon by Sun Life to declare the policy void, reads as follows:

“Policy When Voidable: If, within two years prior to the date of issue of this policy, the Insured has been rejected for life insurance by this or any other insurer, or has received institutional, hospital, medical, or surgical treatment or attention, and the Insured or any claimant under the policy fails to show that the condition occasioning such" treatment or attention was not of a serious nature, or was not material to the risk, this policy shall, subject to the clause entitled ‘Incontestability’ be voidable by the Company either before or after any claim unless reference to such treatment or attention, or such prior rejection, is endorsed on this policy by the Company; provided, however, that this policy shall not be voidable because of absence of endorsement referring to any information which was disclosed in a written application for this policy. If this policy is voided by the Company, the Company’s liability shall be limited to an amount equivalent to all premiums paid, without interest.”

It is alleged in the second amended answer to the amended petition, and not denied in reply, that John H. Fiorilli, the deceased insured withiu two years prior to the issuance of the policy herein sued upon, had been examined by two medical doctors, and that x-rays were taken of the insured at a hospital.

No medical witness testified for either party in the case and it was admitted that John H. Fiorilli, within a period of two years prior to the issuance of this policy of insurance had: broken his foot; spent the greater part of two days having x-rays made of some portion of his body; and received a diet for a stomach ulcer from a physician. There was also testimony by his wife-beneficiary, Mrs. Fiorilli, the plaintiff below and appellee here, that the deceased adhered only partially to a rigid diet None of the statements with reference to medical or hospital care were endorsed on the policy of insurance as issued to John H. Fiorilli.

The plaintiff, Mrs. Fiorilli, and another lay witness in her behalf, testified that: the deceased worked as a carpenter each day that work was available; his previous employment was that of a punch press operator; he appeared physically well; he made no complaints of physical discomfort and moved about as a normal well individual.

Does the testimony introduced by Mrs. Fiorilli meet the burden of proof required under the “Policy When Voidable” provision set out above? Has she shown “that the condition occasioning such treatment or attention was not of a serious nature or was not material to the risk?” (Emphasis ours.)

The charge of the court was not as complete as it might have been, and the full force and effect of the above provision concerning a voidable policy was not set forth at length; but neither party asked for additional instructions, and hence the well-known rule with respect to omissions must be invoked by this reviewing court.

We are faced, then, with but a single question, which is: Was the evidence before the jury sufficient to establish the facts called for by the policy provision, or must medical evidence be presented?

In the cases bearing a factual relationship to the instant action; to-wit, Davis, Admr., v. Metropolitan Life Ins. Co., 29 Abs 129, and McReynolds v. Washington National Ins. Co., 27 Abs 316 — there was a great deal of medical testimony introduced by the insurance company bearing on the poor physical condition and unsoundness of health of the insured, and no effort was made on the part of the claimant to assume the burden of proof on the issue called for by a similar policy provision.

Other cases, such as Shafer v. National Life & Accident Ins. Co., 88 Oh Ap 295, and Gibson v. National Life and Accident Ins. Co., 92 Oh Ap 425, have been cited as authority for the view that testimony of lay witnesses is not sufficient, but we do not view these cases as controlling herein.

We are not dealing in this case with the validity of the policy provision, or its application when no proof is presented by the claimant where it is shown that, within the time called for in the policy provision, there is medical attention or illness. We are confronted with the problem as to whether the testimony of lay witnesses is competent to establish in this case the non-serious aspect of the medical and hospital attention which John Fiorilli received within the two-year period prior to the issuance of this policy of insurance. Were these conditions which necessitated medical and hospital attention in this case “serious” as that term is used in this portion of the policy of insurance?

In the case of Vida v. Metropolitan Life Ins. Co., 133 Oh St 563, a physician testified as to the medical condition and lay witnesses testified that at the time in question the “insured was not sick.” The court then said at page 566:

“There is thus a direct and vital conflict of evidence upon the only issue in this case (sound health) and it should be determined by the jury.” (Portion in parenthesis ours.)

In- Village of Shelby v. Clageft, 46 Oh St 549, the court said:

“1. A non-professional witness who has had opportunities to observe a sick or injured person, may give in evidence his opinion of the condition of such person, in respect of his being weak and helpless or not, and of the degree of suffering which he endured, provided such opinion is founded on his own observation of the person to whom his evidence relates, and is limited to the time that the person was under the observation of the witness.”

See, also:

Boze v. Industrial Commission 32 Abs 238; McDonald v. Great Atlantic & Pacific Tea Co., 34 Abs 380.

The evidence as to prior physical condition and the continued good health of John H. Fiorilli was properly admitted, and hence became a matter to be weighed by the jury for the purpose of determining the question as to the serious nature of the medical and hospital attention which he received within the two-year period prior to being issued the policy of insurance.

The record reveals competent, credible evidence, with reasonable inferences to be drawn therefrom, tending to support all of the essential elements of the case. The weight of the testimony and the credibility of the witnesses were questions for the trier of the facts.

We have examined all of the claimed errors and find none prejudicial to the substantial rights of the appellant.

The judgment is affirmed.

DOYLE, J, GRIFFITH, J, concur.


author: By PHILLIPS, J.

text:
    ERICSON et., Plaintiffs-Appellees, v. GRENGA et, Defendants-Appellants.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3545.
    Decided October 21, 1952.
    Paul E. Stevens and Pauline Church, Youngstown, for plaintiffs-appellees.
    Harrington, Huxley & Smith, Youngstown, for defendants-appellants.
   OPINION

By PHILLIPS, J.

In their action filed in the court of common pleas against defendants plaintiffs sought to restrain them from obstructing, closing, or building upon land described as being the southerly 11.09 foot portion of Youngstown City lot number 4102, owned by defendants, all of which land was used as a driveway.

Plaintiffs allege in their amended petition that:

“.For more than 21 years last passed the owners of the property now owned by plaintiff and their tenants have used this drive-way for the purpose of reaching the house located at the westerly end of plaintiff’s property and also the business structure located on the southerly side of the plaintiff’s property. * * *
“That said use was open, notorious, continuous, and adverse and constitutes a way by prescription across the defendant’s property. That defendants are now threatening to close up the way and to place obstructions in it and to build upon it. * * * That plaintiff has no adequate remedy at law and that if defendants continue their obstructions of said way that plaintiff will suffer irreparable damages.”

By joint answer defendants alleged purchase of Youngstown City lots number 11836, and the southerly portion of lot number 4102, and Youngstown City lot numbers 522 and 523 on November 5, 1945, and May 9, 1951, respectively for the purpose of enlarging their business established in Youngstown: and specifically denied the open, notorious, continuous and adverse use of any of such lots for more than 21 years, and the acquirement by plaintiffs of prescriptive rights therein as alleged in their amended petition.

The trial judge found that plaintiffs had acquired by prescription a right of way over the southerly portion of Youngstown city lot number 4102 to a width of 11.09 feet and terminating at the westerly line of Youngstown city lot number 9362 for driveway purposes, but that such right of way was not to be used in connection with the shop situated at the southeasterly corner of plaintiff’s property, namely Youngstown city lot number 9362, and entered judgment accordingly.

Defendants appealed from that judgment to this court on questions of law and fact, and the appeal was submitted to us on a transcript of the testimony taken and evidence submitted in the trial court.

By brief defendants contend that “the sole question in the court below and the sole question presented before” this court “is whether plaintiffs-appellees have acquired prescriptive rights in and to the southerly portion of Youngstown city lot number 4102” to a width of 11.09 feet.

We will weigh the evidence to determine whether the necessary elements to “make out a use by prescription” are present by the definition quoted by defendants’ counsel from Vol. 1, O. Jur., page 558, which is:

“* * * that the use and enjoyment of what is claimed as an easement was adverse under a claim of right, exclusive, continuous, and uninterrupted for the period of twenty-one years, besides being within the Knowledge of the owner of the estate over which the easement is claimed.”

The evidence discloses that the easement of plaintiffs over the portion of Youngstown city lot number 4102 in dispute was open, notorious, adverse, continuous and hostile under claim of right for more than twenty-one years, all with the knowledge of the owners of such southerly portion of such lot. All the elements of right by prescription are present

The judgment of this court is that the plaintiffs have acquired an easement over the southerly portion of Youngstown city lot number -4102 to the westerly line of Youngstown city lot number 9362 for driveway- purposes, except that such right of way shall not be used in connection with the building situated on plaintiffs’ property and known for street numbering purposes as 736 Market Street, Youngstown, Ohio,

An entry drawn in accordance with this finding and opinion taxing the costs equally among the parties may be presented for signature.

NICHOLS, PJ, GRIFFITH, J, concur.


author: By THE COURT:

text:
    SPECKMAN, Plaintiff-Appellee, v. SPECKMAN, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2297.
    Decided November 18, 1954.
    James C. Baggott, Dayton, for plaintiff-appellee.
    J. H. Patrieoff, Gus W. Byttner, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal on questions of law from an order of the Common Pleas Court changing a former custodial order respecting two. minor daughters of the parties. The defendant-appellant had been awarded the custody of the children at the time a divorce decree was granted to her husband, the pl.aintiff-appellee. The order appealed from was a result of a hearing upon a motion of the husband to modify the custodial order. The action of the court is the subject of the appeal and the assignments of error are divided into seven headings.

It will not be necessary to consider the assignments separately. All of them relate to the correctness of the order, it being challenged because there was no change of circumstances and no facts adduced which. support it.

We are cited to many cases wherein is discussed the attitude of courts, and ours, respecting the practice of entrusting children to the care of their mother. It is recognized that a mother by nature is ordinarily better qualified to give young children the nurture, care and attention required than the father. We need not advert to our opinions, and we do not modify them in any particular. However, we could not, if we would, take away from the trial court the right to consider, weigh and resolve the ultimate question, namely, What is for the best interest of the children? Recognizing that right, we cannot hold that there has not been a change of circumstances, or that the facts did not support' the action which the court has taken. We say this, even though had we been passing upon the matter originally we may have reached a different conclusion.

We have a motion of appellee to strike the reply brief of appellant from the files because it contains subject matter which is no part of the record.

We have read the brief with a full appreciation of our obligation to restrict our consideration to the evidence taken in the trial court. Therefore, the brief has not prejudiced the appellee. Likewise we have disregarded all statements of counsel which are subject to the same objection directed to part of the reply brief. The motion will be denied.

The judgment must be affirmed.

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


author: By DOYLE, J:

text:
    STATE, Plaintiff-Appellee, v. HANSEN, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22705.
    Decided February 2, 1953.
    Joseph H. Crowley, Law Director, August Bessaney, Asst. Police Prosecutor, Cleveland, for plaintiff-appellee.
    Milton Firestone, Cleveland, for defendant-appellant.

      (HUNSICKER, PJ, DOYLE, J, STEVENS, J, of the Ninth District sitting by designation in the Eighth District.)
   OPINION

By DOYLE, J:

The appellant, Ann Hansen, was found guilty in the Municipal Court of the City of Cleveland of unlawfully residing in or occupying “a certain house room at 5801 Plough Avenue, for the purpose of prostitution and lewdness.” (Sec. 13031-13 GC.) Pursuant to the overruling of a motion for a new trial, the accused was sentenced to one year in the workhouse. An appeal to this court on questions of law lodges the case here for review.

Among the various assignments of error are the following:

4. That the verdict is contrary to law.

6. That the verdict was manifestly contrary to the weight of the evidence.”

To these assignments of error we now direct our attention.

In the Bill of Exceptions appears a recitation of the entire evidence which necessarily formed the basis for the conviction. It appears in its entirety on but one page. It is to the effect that three police officers at about ten o’clock in the evening journeyed to the defendant’s residence; three men were seen to enter the building; in about ten minutes two of the officers knocked on the front door and were admitted by the defendant. Upon entering the living room they observed the three men quietly and orderly sitting there; one of the men, in response to a question from an officer, said that “he had come there to have a party and that the price therefor was $10.00 which he felt was too much money.” This statement was immediately denied by the defendant. The officer who testified to the foregoing, in answer to the question, “Did you see any act of vice committed or about to be committed?” said, “No.”

The third officer went to the rear of the house and testified that he “looked into the bathroom window through a hole in the window shade and saw the defendant * * * in the bathroom, stripped to the waist; that a few minutes later he saw a man, fully clothed, alone in the bathroom.” The officer continued by saying that he was unable to tell what the man was doing.

The foregoing constitutes the entire evidence which furnished the basis for conviction, except for the additional fact that the defendant was dressed in a bathrobe.

It will be observed that there is no evidence indicating the reputation of the defendant or the reputation of the house in which she lived. (§13031-15 GC.) For aught that appears, the defendant was a person of good repute. The hearsay testimony of the officer relative to the statement of one of the guests, even if admissible and believed, falls far short of proof beyond a reasonable doubt that the' accused resided in the house “for the purpose of prostitution and lewdness.” The record of evidence presented here is an excellent illustration of a failure of proof in a criminal case. This court cannot, and will not, affirm the conviction when the evidence at most indicates only a bare suspicion of guilt. The degree of proof is beyond a reasonable doubt.

The judgment will be reversed and final judgment will be entered for the defendant and the accused will be discharged.

Judgment reversed and final judgment for defendant appellant. Exceptions- noted. Order see journal.

HUNSICKER, J, STEVENS, J, concur.


text:
    VAN HEE, Plaintiff-Appllee, v. JACKSON, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22673.
    Decided February 16, 1953.
    John F. Ray, Jr., Cleveland, for plaintiff-appellee.
    Max Efros, Cleveland, for defendant-appellant.
   OPINION

PER CURIAM:

This appeal comes to this court on questions of law from an order overruling a motion to vacate a judgment entered for the plaintiff by default.

The record discloses that service was had by U. S. mail and that at the time the letter containing the summons was mailed to what had been the defendant’s Cleveland' address, she was then living in California. The letter was forwarded to her in California and was received by her after judgment by default had been taken. The foregoing facts are not in dispute.

Thereafter, she returned to Cleveland and employed counsel to file a petition to vacate the judgment after term. The petition was filed and when it came up for trial, the parties entered into an agreement that the petition to vacate should be dismissed and this defendant would bring another action against Center City Corporation and the entry of the court on the petition to vacate was, “Petition to vacate judgment is dismissed at defendant’s request.”

Thereafter, counsel for the plaintiff wrote the lawyer then representing defendant a letter in which it was stated that it was their understanding that plaintiff was to take no action upon his judgment until the defendant’s rights against the Center City Corporation were determined by action to be begun at once by the defendant unless a third party intervened, the defendant to at once take care of delinquent personal property and sales tax.

Thereafter, the defendant filed a second petition to vacate said judgment which the court overruled and it is this order that is now here on appeal.

It is the contention of the plaintiff that the defendant entered her appearance by filing the first petition to vacate the default judgment, and then entering into an agreement to dismiss and in dismising such petition at her request. It is further contended that by such agreement the default judgment became a valid and enforcible judgment.

There can be no doubt but that the judgment when entered was absolutely void for want of service. There is no evidence in the record that in any way disputes the defendant’s claim that at the time service by mail was attempted she was not a resident of the city of Cleveland. The judgment being void, the agreement to dismiss the petition to vacate and to withhold attempts to enforce it did not have the effect of giving life to that which did not then exist.

The filing of the petition and appearing in court in person and by counsel did enter the defendant’s appearances in the case so that now the court is vested with jurisdiction over her person in this proceeding and is now empowered to try the cause on its merits.

The order of the court overruling the petition to vacate is reversed and the cause remanded with instructions to vacate said judgment and for further proceedings according to law. Exceptions noted. Order see journal.

HURD, PJ, KOVACHY, J, SKEEL, J, concur.


text:
    HUTSON, Plaintiff-Appellee, v. HUTSON, Jr., Defendant-Appellant.
    Ohio Appeals, Second District, Fayette County.
    No. 274.
    Decided December 30, 1954.
    Otis B. Core, Washington C. H., for plaintiff-appellee.
    Charles S. Hire, Washington C. H., for .defendant-appellant.
   OPINION

By THE COURT:

This is an appeal from the judgment of the Common Pleas Court decreeing the plaintiff-appellee a divorce upon the grounds of gross neglect of duty and awarding the sum of $250.00 per month “as and for alimony and support of plaintiff and said minor children.” The appeal is noted as being one on questions of law and fact, but since this is not a chancery case the court will sua sponte dismiss such appeal but retain the same for determination on questions of law only.

The errors assigned may be epitomized as follows:

(1) The judgment is contrary to law and against the manifest weight of the evidence.

(2) The court erred in overruling the appellant’s motion for a new trial.

It is urged by the appellant that in determining the need of the appellee, for support money, the court gave consideration to evidence presented when the case came on for hearing on the question of temporary alimony. This testimony is incorporated in the bill of exceptions and we think the court did not err in so doing. The question of need was again developed on the trial on the merits, which definitely showed need but the same was not itemized to the extent that it was in the preliminary hearing. This evidence did not show that there had been any change in conditions affecting the needs of the appellee from those existing at the previous hearing. The appellee was still in bad health, needed medical attention, unemployed, without funds and with two small children to support. The evidence clearly establishes the need for support money and under present living conditions we cannot say that the allowance of $250.00 per month is excessive. On an appeal on questions of law from a judgment of the Common Pleas Court awarding alimony to a wife where a divorce is granted because of the husband’s aggression, the reviewing court may not ordinarily substitute its judgment as to what it deems reasonable as an allowance of alimony for the judgment of the trial court on that question. Henry v. Henry, 157 Oh St 319.

We find further that the award is not contrary to law as urged by the appellant since the same is not separated into two parts, to wit: (1) Alimony; and (2) Support money for the children. Under such an order jurisdiction is retained in the Common Pleas Court and the same may be modified upon a proper showing being made.

In overruling the motion for a new trial the court did not err in refusing to consider facts arising subsequent to the time of trial. The court properly stated in its order that such evidence may not be given consideration on such a motion.

We find no error in the record and the judgment will be affirmed.

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


text:
    NASCO, Plaintiff-Appellee, v. FERGUSON, Defendant-Appellant, and CENTRAL GREYHOUND LINES, INC., Defendant-Appellee.
    Ohio Appeals, Seventh District, Lake County.
    No. 513.
    December 11, 1952.
    Morris Morgenstern, Bernard B. Direnfeld, Cleveland, for defendant-appellant, Loretta May Ferguson.
    Lester W. Donaldson, Painesville, Donald M. Marshman, Cleveland, for defendant-appellee, Central Greyhound Lines, Inc.
   OPINION

By GRIFFITH, J.

Anthony Nasco filed his second amended petition in the Court of Common Pleas of Lake County against Loretta May Ferguson and Central Greyhound Lines, Inc., charging that the negligence of both defendants caused an automobile collision resulting in damages to him, the plaintiff.

Defendant, Ferguson, filed an answer and cross-petition against the plaintiff, Nasco, and also against Central Greyhound Lines, Inc., asking in her cross-petition for damages against plaintiff and her co-defendant, Central Greyhound Lines, Inc.

Central Greyhound Lines, Inc., filed a motion to strike the cross-petition of Ferguson filed against it from the pleadings. The Court sustained the motion and ordered the cross-petition against Central Greyhound Lines, Inc., struck from the pleadings and granted to the defendant, Ferguson, leave if she so desired, to file an amended answer and cross-petition to the petition of the plaintiff within twenty-one days. This appeal ensued.

The sole question is whether one co-defendant in a tort action may file a cross-petition against the other co-defendant and the plaintiff. By its ruling, the Court did not hold that Ferguson could not file a cross-petition against the plaintiff which she has an unquestioned right to do.

The pleading filed by Ferguson clearly is a cross-petition. Sec. 11303, sub-section 3, GC provides for the filing of a cross-petition and gives its definition as follows:

“Answer, which if it demands affirmative relief may be styled a cross-petition.”

Sec. 11317 GC, provides:

“Counterclaim. A counterclaim is a cause of action existing in favor of a defendant against a plaintiff or another defendant, or both, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action.”

Ferguson, in her answer, denies the plaintiff’s claim in its entirety and seeks affirmative relief by way of cross-petition. This she admittedly may do as against the plaintiff, Nasco, but this is not a cross-demand on the part of Ferguson as against Central Greyhound Lines, Inc., but is an original demand for affirmative relief. Central Greyhound Lines, Inc., has made no claims against defendant, Ferguson.

Whether or not defendant, Ferguson, may set up by way of cross-complaint or cross-petition a cause of action and demand affirmative relief against her co-defendant depends upon whether or not the relief Ferguson asks involves the transaction which constitutes the subject-matter of the plaintiff’s action.

The subject matter of the action is the plaintiff’s right to have the defendants, Ferguson and Central Greyhound Lines, Inc., exercise the required degree of care in respect to him. Manifestly, the relief demanded by Ferguson in her cross-petition against Central Greyhound Lines, Inc., involves the plaintiff’s main right.

In this case, Ferguson demands a money judgment against her co-defendant. It is the purpose of the petition and cross-petition to express one object, namely, the rights of the parties arising out of the subject matter adjudicated.

The allegations of the amended petition and cross-petition show that each party to the action asserts rights and charges liabilities which relate to the transaction which affect each of the three parties to the action. Nasco will be affected by the relief sought by Ferguson.

If Ferguson prevails on her cross-petition, both Nasco and Central Greyhound Lines, Inc., will be affected. Therefore, plaintiff’s right cannot be adjudicated without an adjudication of the rights of both defendants. The transaction was the collision. The relief each party seeks involves this transaction.

A counterclaim is in the nature of a separate and independent action. It is broader than recoupment set off or cross-action and includes them all securing full relief which a separate action at law would have secured.

We are of opinion, therefore, that the Court was in error in striking appellant, Ferguson’s cross-petition as against Central Greyhound Lines, Inc., from thé pleadings.

Judgment reversed.

NICHOLS and PHILLIPS, JJ, concur.